QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 284 Date: 2014 09 08 Docket: F.L.D. 359 of 2009 Judicial Centre: Regina (Family Law Division) BETWEEN: JENNY LYNN HAMBLIN and BRUCE MASNIUK Counsel: Jenny Hamblin appearing on her own behalf Bruce Masniuk appearing on his own behalf JUDGMENT MEGAW J. October 6, 2014 INTRODUCTION [1] There are two applications before the court. The respondent father has applied to reduce his child support obligation and to extinguish arrears of child support as result of him quitting his job and embarking on an apprenticeship program to become an electrician. The petitioner mother has applied to become the sole custodian parent of the parties’ two daughters. Both parties therefore seek to vary the existing court order regarding support and parenting. [2] The order involved is final order granted by Wilson J. at the conclusion of the pre-trial conference in this matter dated March 20, 2012. The claim for support was initially made in the Petition pursuant to The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. BACKGROUND FACTS [3] The parties have two children who are now eight and nine years of age. The children reside with the petitioner and the respondent is to have reasonable access on reasonable notice. It appears the respondent has not been exercising access and has had little involvement in the lives of the children. [4] At the time the order was granted the respondent was found to be earning $75,000 per year. He was working for Sysco in Regina in Senior Merchandising manager position. At the end of August 2013 he voluntarily terminated his employment. In his affidavit he indicated he left the job due to its high stress level which was causing health difficulties for him. At the initial return date of this motion the respondent was directed by the chambers judge to present appropriate medical evidence that the termination of his employment at Sysco was medically necessary. During oral submissions before me the respondent indicated he did not plan on filing any medical information and stated that he left his employment because he was “fed up”. There was no other explanation provided. [5] Following the termination of employment the respondent commenced work as an apprentice electrician with local electrical company. His hourly wage went from $36.50 to $14.00. He deposed that he was presently earning $29,000 year and any increases would be small for the next period of time. The respondent is presently 43 years of age. He is in excess of $10,000 in arrears of his support obligation. [6] The petitioner seeks sole custody of the two children because she is the only one providing for the children and is the only one parenting the children. She deposes that the respondent has essentially been an absentee father. The respondent provided no response to the petitioner’s allegations and declined to give any further information at the chambers hearing. The respondent did not appear to have any interest in the discussion on parenting. [7] As indicated, this final order for child support is sought to be varied pursuant to s. 10 of The Family Maintenance Act, 1997 in which there must be material change in circumstances to warrant variation of the child support provisions. The preliminary question is therefore whether voluntary change constitutes material change. For voluntary change to be material change it must be reasonable in the circumstances. There are number of decisions confirming this interpretation and refer to Wong v. Wong (1996), 1996 CanLII 7235 (SK QB), 150 Sask.R. 101, [1996] S.J. No. 695 (QL) (Sask.Q.B.); Tice v. Tice (1997), 1997 CanLII 11451 (SK QB), 153 Sask.R. 73, [1997] S.J. No. 32 (QL) (Sask.Q.B.); Kuzub v. Kuzub, 2002 SKQB 259 (CanLII), 220 Sask.R. 192; and McRann v. McRann, 2005 SKQB 207 (CanLII), 263 Sask.R. 139. [8] In Wong, Laing J. considered an application seeking to reduce child support as result of the applicant quitting his job and relocating to operate small auto repair shop. The applicant’s income decreased and he was struggling to build the repair shop business. The court refused to find the reduction in income to be material change in the circumstances as the change in employment was voluntary, was not reasonable and did not accurately reflect the applicant’s ability to earn income. [9] In Tice, Archambault J. dealt with an applicant who was employed as an electrician but voluntarily left his position to start his own business. As is the case here, the applicant in Tice did not apply for any other jobs prior to embarking on his new venture. In refusing to grant the request for variation the court stated: It is now well established law in this province that where parent voluntarily and without sufficient justification ceases his employment to continue education or for some other reason or to engage himself/herself in less lucrative employment, he/she will not be relieved of the obligation to continue supporting dependent children…(cites omitted) [10] In McRann, Wilkinson J. dealt with the father’s decision to change employment voluntarily. At para. she states: There is substantial case law stating that an unreasonable, self-induced income reduction is insufficient justification for varying child support order. [11] Wilkinson J. then goes on to explain the rationale behind the court’s insistence on any change in employment or income being reasonable from an objective viewpoint (at para. 9): Parents are entitled to make employment or career changes that may impact on their ability to pay support so long as the decision is reasonable at the time having regard to relevant considerations such as personal factors (the parent’s age, education, experience, skills, historical earning capacity, health considerations and the motivations behind the change) and external factors (standard of living experienced by the intact family, availability of work, mobility and freedom to relocate) The onus is upon the support payor to prove reasonableness… [12] In the case before me, the respondent was employed in position for considerable period of time and was earning good salary. As indicated, the respondent advised the court he needed to change his employment because he was fed up with the situation. He advised candidly that he did not apply for any other positions to continue earning the same or similar level of income. Instead, he decided to embark upon change in career with significant financial consequences to his children. [13] In the circumstances am unable to determine his decision to just terminate his employment was reasonable. The respondent has financial obligations to his children. While his position at Sysco may not have been working out to his satisfaction, he could have embarked upon job search to find something within the same pay range that would have suited his career aspirations. Failing that, he could have engaged in discussions with his employer to determine if something could be changed or altered to allow him to remain in his position. Failing all of that, he should have simply stayed put to allow him to satisfy his child support obligations. What was not reasonable decision was to just quit and expect the petitioner then to absorb greater financial burden for the children. [14] In the result, the respondent’s voluntary decision to significantly reduce his income is found to be insufficient grounds to vary his child support obligation. It is apparent he is capable of earning considerably higher income and has taken no steps to test the job market. Accordingly, the application to vary child support by the respondent is dismissed. The respondent’s decision was ill-conceived. have considered Tice like suspension of payments to allow the respondent to obtain appropriate remunerative employment. However, this does not appear to be an appropriate case for the court to exercise its discretion in this way. In light of the court’s decision, the respondent will need to take immediate steps to put himself back into position to provide for his child support payments. [15] The petitioner has brought an application to change the custody and access arrangements for the two girls. While it is apparent the respondent is less than an involved father, it does not appear that situation is new development in the relationship between the parties. It appears this application to vary was brought more out of frustration for the respondent’s lack of involvement than as result of any material change that has taken place. As a result, I am unable to find that there has been a material change in circumstances as required to vary the existing order, and the petitioner’s application in this regard is dismissed. [16] While there was an application brought by each of the parties, the application to vary the child support was the significant matter before me. The petitioner has been successful in opposing this application and accordingly is entitled to costs which fix in the amount of $200.00 payable forthwith.
HELD: The court dismissed both applications. The respondent’s voluntary decision to significantly reduce his income was insufficient grounds to vary his child support application. The court found that there had not been a material change in the circumstances with regard to the petitioner’s application.