nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 30 Date: 2011 01 19 Docket: F.L.D. 216/2010 Judicial Centre: Regina, Family Law Division BETWEEN: TRICIA LEANNE JONES and ROBERT GORDON BLYTH Counsel: Peggy M. Benko for the petitioner Jeffrey G. Brick for the respondent JUDGMENT KRAUS, J. January 19, 2011 [1] This is a review of the issues of parenting and support as directed by the interim order of August 18, 2010. [2] In her affidavit, sworn December 17, 2010, the petitioner attests to: her financial circumstances (paras. to 8) her annual income of $19,500.00 (para. 5) her attempt to obtain report from the school counsellor about the boys (para. 9) the referral of the boys by the family physician to psychologist and her opposition to overnight access (para. 10) the continued alcohol and drug usage by the respondent (paras. 11 to 13) her discussions with the respondent concerning work in the oil patch (paras. 14 and 15) her need of child and spousal support (para. 17). [3] In his affidavit in response, sworn January 4, 2011, the respondent attests to: regular exchanges of the children for access (paras. 8, and 14) opposition by the petitioner to overnight access and his assertion that he does not use alcohol prior to or during parenting time and that he only drinks socially and not to excess (para. 19) the absence of receipts for expenses of child care, speed skating and soccer pursuant to s. of Federal Child Support Guidelines (SOR/97-175, as am) (the “Guidelines”) (paras. 21 and 22) the reduction in the petitioner’s income from expected income ($23,500.00) to actual ($19,500.00)(para. 23) his qualified offer to contribute to s. expenses (para. 24) his desire to increase parenting time on weekends to overnight, and one overnight during the week (para. 26) his denial of drug and marijuana usage (paras 27 and 28) his continued membership in the pipefitters union and regular checks of job postings in the oil patch (para. 29) his present employment with local construction company and his income (weekly gross of $600.00 to $1,000.00) and expenses (paras. 34 to 37) letters from social worker and family physician (paras. 38 and 39) his activities with the children and wishes for increased access (paras. [4] The letter dated December 14, 2010 from the social worker of the Regina Qu’Appelle Health Region (Exhibit “C” to the respondent’s affidavit) states that the respondent was admitted to hospital in Moosomin in March, 2010 expressing major concerns about his suicidal thoughts, high anxiety levels and drug use which were detrimental to himself and to his children, and followed through with treatment for addictions and psychiatric evaluation. The letter dated December 14, 2010 from Dr. Rolts of Moosomin (Exhibit “D”) states that as result of motor vehicle accident in 2006, the respondent suffered permanent disability of his right leg including right foot drop, and he uses an orthotic. [5] In her affidavit in reply sworn January 7, 2011, the petitioner attests: the children are scheduled to see psychologist at Mental Health, on referral by Dr. Van de Merve, with weekly sessions which may increase to two or three times weekly (para. 8) she is opposed to overnight and unsupervised access by reason of the admission of the respondent to suicidal thoughts, high anxiety levels and drug use and that such were detrimental to himself and the children, and the respondent has not produced the psychiatric evaluation, nor clinical notes from the addictions worker (para. 9) the respondent is moving to Moosomin with his girlfriend about whom she knows nothing. When they were together, the respondent never helped the children with school work or made them meals and, on numerous occasions, was passed out on the couch, either drunk or suffering from hangover. She continues to be concerned regarding the safety of the children (para. 9) she has smelled the odour of marijuana on the respondent’s breath when he picked up the children, and he continues to smoke marijuana and drink excessively (para. 11) the respondent told her that he had been out on the pipeline and welded 17 joints of pipe but would not return to the pipeline and work as he did previously until the issue of child support was settled by the court (para. 12) the employer of the respondent in the construction business is very good childhood friend of the respondent and they worked together on the pipelines (para. 14) in the years subsequent to his diagnosis with drop foot in 2006, the respondent’s tax returns showed that he earned: $150,252.00 2006 $105,628.00 2007 $130,704.00 2008 $154,550.00 2009 (para.15) the doctor’s letter does not state that the respondent cannot work on the pipeline as he had done until their separation (para. 16). POSITION OF THE PARTIES [6] The petitioner submits that after the parties separated in December, 2009 the respondent did not return to work on the pipeline nor has he provided any evidence to show that he cannot go back to such work. She argues that the respondent, young man in his early 30's, has the ability to earn the amount of income which he did earn prior to their separation and that income should be imputed to him under s. 19 of the Guidelines. The petitioner points to the current job of the respondent in the construction field, physical and difficult work, which shows that he is capable of working and earning in excess of $150,000.00 as he did in 2009. She submits that the parenting issue should be adjourned pending reporting by the childrens’ psychologist. The petitioner requests child support retroactive to September 1, 2010, share of the annual child care expenses of $4,300.00, and monthly spousal support of $2,500.00. She also seeks costs of $1,500.00. [7] The respondent submits that the petitioner, who wants minimal access, is attempting to strip away his parenting role. The respondent admits drinking and having struggled with depression which he says was caused by being away from his family in order to work on the pipeline. He says everyone has depression upon the break up of relationship but it should not be the basis for denial of access. Since the interim order last August, the respondent has exercised access and there is no evidence that the children are fearful of him. The social worker pointed out the struggles of the respondent and he should not be condemned for admitting and dealing with them. The respondent requests an extension of parenting to overnight, to commence after school on Friday to Sunday evening, and each Wednesday until 8:00 p.m. As to the issue of his income, the respondent submits that he does not assert that disability prevents him from working on the pipelines and, although he does not want to go back to the pipelines, he is actively looking for work and it is just matter of finding it. The case authorities do not require him to work in particular field, the respondent submits, and at the present there is no available opportunity. The respondent says he intends to go back to the pipelines but at the present he does not have the ability to pay spousal support. As to costs, the respondent points to his application for variation which was settled when the petitioner returned from Pense. pre-trial conference should be directed the respondent says he is ready to proceed. [8] The petitioner replies that she is not ready to proceed to pre-trial conference since she requires information as to availability of work on the pipelines. The respondent, who does not assert disability preventing him from working on the pipelines, should be engaged in work that pays more than his construction job. The petitioner says the respondent had no income when the child support order was made last August requiring him to pay $500.00 monthly child support. She also says that the respondent has 14 years of experience working on the pipelines. DECISION [9] I am not persuaded on this review that it is in the best interests of the children to change the interim access order made last August, either by restricting access or by enlarging it. Those questions are best left for trial where full and complete evidence and issues of credibility can be considered and adjudicated. [10] The issues of the respondent’s income and the petitioner’s entitlement to spousal support were also adjourned for review by the interim order made last August. The respondent admits that he is capable of working on the pipelines but he has only presented sparse evidence as to his efforts to earn reasonable income between last August and the date of this review, despite the findings in the order that he had the capability to earn well in excess of $100,000.00 per annum. [11] In my view, the respondent is intentionally under-employed as contemplated by Parliament in s. 19(1)(a) of the Guidelines. To his credit, the respondent does not assert that his disability prevents him from working on the pipelines but the respondent’s decision to work in construction earning substantially less than he earned when working on the pipeline during his 14 years experience was not reasonable in all of the circumstances. [See V.G.B. v. E.H. 2004 SKQB 280 (CanLII), 250 Sask.R. 272 and Donovan v. Donovan 2000 MBCA 80 (CanLII), 190 D.L.R. (4th) 696] I impute annual income to the respondent of $130,294.00, the average income of the three previous years of his employment but I do not impute that income to him prior to September 1, 2010 since he was hospitalized last March and followed through with treatment for addictions and psychiatric evaluation. [12] Effective December 1, 2010, the interim child support obligation of the respondent is $1,752.00 monthly, the table amount for two children under s. 3 of the Guidelines. decline to award retroactive child support before December 1, 2010 on this interim review. [13] Effective December 1, 2010, the parties shall share child care expenses of $4,380.00 annually in proportion to their respective incomes, pursuant to s. 7 of the Guidelines. determine the annual income of the petitioner to be $19,500.00. [14] Considering the existing means and needs of the parties, I decline to order interim spousal support since I am not satisfied that the respondent has the existing ability to pay it. However, the respondent must immediately obtain employment and work to his earning potential. (See Hunt v. Smolis-Hunt 2001 ABCA 229 (CanLII), 205 D.L.R. (4th) 712). All of the issues respecting spousal support may be settled at pre-trial conference or will be determined at trial. [15] The issues respecting retroactivity of child support, ongoing child support, access and spousal support are directed to pre-trial conference after February 28, 2011 provided that disclosure of information relating to availability of work on the pipelines is provided to the petitioner by that date. [16] Costs of $1,500.00 are awarded to the petitioner, payable no later than May 31, 2011.
The parties had obtained an interim order in August 2010 and applied to vary the order pertaining to access and child support. HELD: 1) The Court declined to vary the interim access order and ordered the matter to trial. 2) The respondent is intentionally under-employed and the Court imputed annual income to him of $130,294 and child support was varied accordingly. Section 7 childcare expenses are to be shared pro rata. 3) The Court declined to order interim spousal support as the Court was not satisfied that the respondent had the existing ability to pay it. 4) The issues regarding retroactive child support, ongoing child support, access and spousal support were directed to pre-trial conference. 5) Costs of $1,500 were awarded to the petitioner and payable no later than May 31, 2011.