J. 2002 SKQB 378 F.L.D. A.D. 1998 No. 148 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: [O.E.L.A.B.] and [D.G.B.] CO-PETITIONERS RESPONDENT D. Heffernan for the co-petitioners [J.C.M.] on his own behalf JUDGMENT RYAN-FROSLIE J. September 23, 2002 [1] [N.G.K.B.] was born on January 13, 1998 and is currently four and one-half years of age. Her mother, [O.E.L.A.B.], and her father, [J.C.M.], lived together for period of time separating in April of 1998, shortly after [N.G.K.B.]’s birth. [N.G.K.B.] has resided with her maternal grandmother, [D.G.B.], since January of 1999. [D.G.B.] and [O.E.L.A.B.] are joint petitioners in this court action. On February 4, 2002, all of the parties agreed to judgment granting [D.G.B.] and [O.E.L.A.B.] joint custody of [N.G.K.B.] with reasonable access on reasonable notice to [J.C.M.]. The issue of child support was adjourned sine die with an order that [J.C.M.] provide to the petitioners copies of his tax returns for 1999, 2000 and 2001 and his notices of assessment for 1999 and 2000. That documentation was provided as ordered. The parties have been unable to reach an agreement with respect to child support and accordingly have proceeded to trial. [2] The issues before the Court are:1. Child support including s. 7 expenses.2. Whether the child support order should be made retroactive.3. Costs. [3] [N.G.K.B.] lives alone with her maternal grandmother. Her mother, [O.E.L.A.B.], and her father, [J.C.M.], retain separate residences. [4] [N.G.K.B.] is described by her grandmother as an “exuberant child” who is good with words and likes to play and sing. It is obvious [D.G.B.] loves [N.G.K.B.] great deal and is very proud of her granddaughter. [5] [N.G.K.B.] has large birthmark on her left cheek which is very noticeable. [D.G.B.] has displayed great deal of sensitivity to [N.G.K.B.]’s need to meet and deal with people’s reactions to that mark. [D.G.B.] recognized [N.G.K.B.] needed to become involved at an early age with other children and to deal with the questions that children and adults alike would pose to her about the mark. Beginning in the year 2000 [D.G.B.] enrolled [N.G.K.B.] in, among other things, pre-school, music program through the University of Saskatchewan, gymnastics, and as of the fall, 2002, kindergarten. [D.G.B.] testified that these activities have involved [N.G.K.B.] with other children. They have helped [N.G.K.B.] deal with people’s response to her birthmark, have improved her self-image and have helped her to develop self-confidence. [N.G.K.B.]’s answer to questions about her mark exemplifies the extraordinary job [D.G.B.] has done in this regard “Creator gave me that because am special.” [6] [D.G.B.] takes in boarders to earn an income. In addition she receives Canada Pension, small amount of interest, and some social assistance. Her 2001 tax return shows her gross annual income as $9,517.08. find this to be her income for child support purposes. [7] [O.E.L.A.B.] lives on her own and is currently employed as waitress at Peter D’s restaurant. She has held this employment since January 14, 2002, according to her record of employment filed as Exhibit P-6 in these proceedings. She works an average of 35 hours per week and earns minimum wage plus tips. [O.E.L.A.B.] testified she estimates her current income at $14,970.99 as set out in her financial statement dated September 26, 2001. Her 2001 tax return shows gross income of $10,129.89 but this figure does not include tips. find [O.E.L.A.B.]’s income for child support purposes to be $14,971. [O.E.L.A.B.] has provided financially for [N.G.K.B.], paying to her mother, [D.G.B.], $1,570 in 2001 and $875 so far in 2002. [8] [J.C.M.] works as rigger and is currently employed with Lockwell Servicing Limited. He has worked for number of different companies in 2002 replacing workers who were off work due to illness or other causes. The amount of time he works varies depending on the weather and fluctuations in the industry itself. All parties agreed [J.C.M.]’s income for child support purposes should be based on his 2001 income as reflected on his tax return. That income was $35,269.44. [9] On February 23, 1999, an interim order for child support was granted. [J.C.M.]’s income at that time was found to be $24,000 per annum and he was ordered to pay child support of $202 per month commencing March 1, 1999. [J.C.M.] has paid this support and he voluntarily increased it to $300 per month effective April, 2002. No claim for s. expenses was made in the 1999 interim application. 1. Child support including s. expenses [10] Based on a gross annual income of $35,269.44, [J.C.M.], who resides in Saskatchewan, should pay ongoing support for [N.G.K.B.] of $293 per month. [11] In addition to this monthly payment, an add-on is claimed pursuant to s. of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] for expenses relating to [N.G.K.B.]’s child care, education and extracurricular activities. [12] Section 7(1) of the Guidelines provides that court may allow an amount to cover all or any portion of certain expenses enumerated in that section. In determining whether to allow such expenses the court must take into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parties and the child, and to the spending pattern prior to separation. [N.G.K.B.] has no independent needs and as she was only three months of age when [O.E.L.A.B.] and [J.C.M.] separated, there was no prior spending pattern for this Court to consider. Child Care Expenses [13] Section 7(1)(a) of the Guidelines provides that the court may consider child care expenses in support order. Those child care expenses are limited however to those “...incurred as result of the custodial parent’s employment, illness, disability ... education or training for employment.” [14] [D.G.B.] testified she has incurred child care expenses for [N.G.K.B.] only when she or [D.G.B.]’s parents have medical appointment or when [D.G.B.] has had to meet with her lawyer. While illness can qualify as legitimate reason for requiring child care, the illness must relate to the child’s custodian, not to third party. Based on the evidence before me, find that the child care expenses incurred in this case do not meet the requirements set out in s. 7(1)(a) and accordingly are not allowable. [15] Section 7(1)(d) of the Guidelines enables court to include in support order “extraordinary expenses for primary or secondary school education or for any other educational program that meet the child’s particular needs.” [D.G.B.] testified that she enrolled [N.G.K.B.] in pre-school in 2000 and in kindergarten in 2001. The pre-school expenses for 2001 are set out in Exhibit P-9 and total $380. The kindergarten expenses for 2002 are set out in Exhibit P-16 and total $20. [16] The Saskatchewan Court of Appeal in Kofoed v. Fichter, 169 Sask. R. 149 (C.A.) has indicated that in determining whether an expense is extraordinary the court must look at the joint income of the parties. This is so because the Table amount for child support takes into consideration ordinary expenses relating to school and extracurricular activities. In this case it is clear that [N.G.K.B.]’s enrollment in pre-school and kindergarten were in her best interest. It is also clear that the expense was reasonable in relation to the means of the parties which totals $59,757.52 calculated as follows:[D.G.B.]’s income $ 9,517.08[O.E.L.A.B.]’s income 14,971.00[J.C.M.]’s income 35,269.44Total: $ 59,757.52 The question is whether these expenses qualify as extraordinary. I find that a $20 expense for kindergarten cannot meet such a qualification. The expense relating to the pre-school would qualify as extraordinary given [D.G.B.]’s limited income of $9,517.08 per year ($793.09 per month). The problem with this claim is that in order to succeed, the court must find that retroactive order is warranted. For reasons set out further in this judgment, retroactive s. 7 expenses are not warranted. Extracurricular activities [17] Section 7(1)(f) of the Guidelines relates to extraordinary expenses for extracurricular activities. [D.G.B.] testified that [N.G.K.B.] is involved in gymnastics, music program through the University of Saskatchewan, swimming classes and craft camp. The expenses relating to these items are as follows: Gymnastics 218.00 Craft camp 100.00 Music program (Sept. 4/01 to April 9/02) 307.00 Music program 2002/03 512.00 Swimming classes 80.50 Total: 1,217.50 There is no issue that [N.G.K.B.]’s participation in these activities is in her best interest. also find them reasonable given the means of the parties. The issue is whether they qualify as “extraordinary” expenses. Given [D.G.B.]’s limited resources, find that they do. [18] Sections 7(2) and (3) of the Guidelines sets out the guiding principle in determining how such expenses should be shared. They are to be shared in proportion to the parties’ respective incomes taking into account any subsidies, benefits, income tax deductions or credits relating to the expense. In this case there are no such subsidies, benefits, tax deductions or credits. find [J.C.M.]’s contribution to [N.G.K.B.]’s s. 7(f) expenses should be 59% being his proportionate share. am not prepared to allow any retroactive s. expenses. [J.C.M.] should however pay his 59% of the costs of [N.G.K.B.]’s music program commencing in September, 2002 as well as 59% of any future costs relating to that program, [N.G.K.B.]’s gymnastics, swimming and craft camp. [D.G.B.] shall provide [J.C.M.] the receipts for these expenses as they are incurred and [J.C.M.] shall pay his 59% share of those expenses within 10 days of receiving such receipts. 2. Should the support order be made retroactive? [19] [D.G.B.] asks that the support order, including the s. expenses, be made retroactive to August 2000. She argues that financial disclosure was requested from [J.C.M.] as early as June, 2000 but he failed to provide that information until March, 2002. [J.C.M.] argues he was unaware of the request for financial disclosure. [20] [O.E.L.A.B.] testified that she instructed her lawyer to write to [J.C.M.]’s lawyer to obtain financial disclosure in 2000. Exhibit P-17 is letter from [O.E.L.A.B.]’s legal counsel to [J.C.M.]’s legal counsel. That letter requests [J.C.M.] to provide copy of his 1999 income tax return. No return was provided in response to that letter. [21] Exhibit P-18 is further letter from [O.E.L.A.B.] and [D.G.B.]’s lawyer to [J.C.M.]’s legal counsel. It refers to telephone conversation between legal counsel on February 1, 2001 where they agreed “...updated financial information from the parties would be necessary.” [J.C.M.] did not provide any financial disclosure as result of that conversation. [22] Neither Exhibit P-17 nor Exhibit P-18 mentions s. expenses. Section expenses were not specifically mentioned in the petition or the amended petition nor was there any reference to them in the interim application in 1999. [D.G.B.] testified that no request was made of [J.C.M.] for s. expenses until the day of this hearing and no information verifying s. expenses was provided to him before this date. [23] [J.C.M.] testified he kept folder of all correspondence from his legal counsel and that he could find no letter to him requesting financial information nor does he recall receiving such request. [J.C.M.] stated he was unaware financial information was required of him until February, 2002 when he appeared for the first trial date. At that time he agreed to an order for financial disclosure and complied with that order. As result of that disclosure he also unilaterally increased his support payments to $300 per month effective April, 2002. [24] Section 9(1)(c) of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 clearly gives this Court power to make retroactive support orders. The jurisprudence however is clear that retroactive support orders should not be given as matter of course. There must be some justification for such orders. [25] The issue of retroactive child support has been canvassed by number of courts of varying levels in Canada. This Court has followed the approach taken by the British Columbia Court of Appeal in L.S. v. E.P. (1999), 1999 BCCA 393 (CanLII), 50 R.F.L. (4th) 302 (B.C. C.A.). In that case the British Columbia Court of Appeal set out the policy considerations and factors Court should consider in granting retroactive child support. The factors militating in favour of and against retroactive child support are set out in paras. 66 and 67 of that decision which read as follows: review of the case law reveals that there are number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) significant, unexplained delay in bringing the application. [26] The evidence indicates [J.C.M.]’s 1999, 2000 and 2001 income as set out in his tax returns was as follows: 1999 $41,024.00 2000 $39,520.00 2001 $35,269.44 If [J.C.M.] had provided his tax returns each year and paid child support in accordance with his income as disclosed thereon, he would have paid child support as follows:May, 2000: $335 per month based on 1999 income of $41,024;May, 2001: $324 per month based on 2000 income of $39,520; andMay, 2002 - $293 per month based on 2001 income of $35,269.44. The petitioner asks that maintenance be awarded retroactive to August, 2000 as request for financial disclosure had gone to [J.C.M.]’s lawyer in June, 2000. If the petitioner’s request is granted, this would mean retroactive maintenance of $2,497 calculated as follows: August, 2000 to April, 2002 ($335 $202 $133 months) $1,197; May, 2001 to March, 2002 ($324 $202 $122 11 months) $1,342; April, 2002 to September, 2002 ($293 $300 $7 6) $42 (credit). [27] There is no question [N.G.K.B.] needed the child support and that [J.C.M.] clearly had the ability to pay. It is also clear request for financial disclosure was made to [J.C.M.]’s legal counsel as early as June, 2000. [J.C.M.] testified that request was not forwarded to him. [J.C.M.] could not locate such request in his records. When he became aware what financial disclosure was needed he provided the same immediately. It is also notable that [J.C.M.] voluntarily increased his maintenance payment in April, 2002. accept that [J.C.M.] did not intentionally fail to provide the financial information. There was no evidence that [D.G.B.] has had to encroach on capital or incur debt to meet [N.G.K.B.]’s expenses though am satisfied that given her level of income it has been difficult to provide adequately for all of [N.G.K.B.]’s needs. It is clear that [J.C.M.] was aware of his obligation to provide support for [N.G.K.B.] and that negotiations have been ongoing for some time as to what level his obligation should be assessed at. It is noteworthy that the s. expenses were not raised with [J.C.M.] prior to the day of trial. There is no evidence before me as to [J.C.M.]’s ability to pay retroactive support or whether such an order would interfere with his ability to meet his ongoing support obligations. There is no suggestion that retroactive support is way of obtaining assets or spousal support in the guise of child support. It is also clear that the application for child support was made in timely fashion. It is not clear why the petitioners did not seek financial disclosure through the court. [28] Weighing all of the factors, find that there is no basis upon which s. payments should be made retroactive. do however find that some retroactive child support is warranted based on the Tables. As can find no blameworthy conduct on the part of [J.C.M.], am not prepared to award maintenance retroactive to August of 2000. I find that retroactive child support should be fixed at $1,500. This amount is to be paid by [J.C.M.] in equal monthly instalments of $100 commencing October 15, 2002 and continuing on the 15th day of each and every month thereafter to and including December 15, 2003 at which time the arrears should be paid in full. [29] Rule 608 of The Queen’s Bench Rules of Court provides that costs are in the discretion of the court. Rule 608(2) raises the presumption that successful party is entitled to costs in family law proceeding. [30] In this case ongoing support was not an issue. The main issues related to the s. expenses and the retroactivity of the support order. The result has been mixed and as such there shall be no order as to costs. 1. find that [J.C.M.]’s income for child support purposes is $35,269.44, that [D.G.B.]’s income for child support purposes is $9,517.08 and that [O.E.L.A.B.]’s income for child support purposes is $14,970.99. 2. I order [J.C.M.] to pay to [D.G.B.] as support for his daughter, [N.G.K.B.], born January 13, 1998, the sum of $293 per month commencing October 1, 2002 and continuing on the first day of each and every month thereafter so long as [N.G.K.B.] remains a child within the meaning of The Family Maintenance Act, 1997, supra. 3. [J.C.M.] shall pay to [D.G.B.] $302, being 59% of [N.G.K.B.]’s 2002 music program expense. This shall be paid by [J.C.M.] in three monthly instalments, $100 on October 15, 2002, $100 on November 15, 2002 and $102 on December 15, 2002. 4. [J.C.M.] shall pay to [D.G.B.] 59% being his proportionate share of the ongoing costs of [N.G.K.B.]’s participation in the music program, gymnastics, swimming lessons and craft camp. [D.G.B.] shall provide to [J.C.M.] the receipts for these expenses as they are incurred and [J.C.M.] shall pay his 59% share of those expenses within ten days of receiving such receipts. 5. There shall be no order for retroactive payment of s. 7 expenses. 6. [J.C.M.] shall pay $1,500 as retroactive child support. This amount shall be paid in equal monthly instalments of $100 per month commencing October 15, 2002 and continuing on the 15th day of each and every month thereafter up to and including December 15, 2003. 7. [J.C.M.] shall provide to [D.G.B.] and [O.E.L.A.B.] copy of his tax return by May 15 in each year commencing May 15, 2003. 8. There shall be no order as to costs.
All of the parties agreed on February 4, 2002 that the mother and grandmother would have joint custody of the 4 year old. The father was granted reasonable access on reasonable notice. The issue of child support was adjourned sine die with an order that the father provide copies of his income tax returns for the past 3 years. Issues were whether child support should be retroactive; s.7 expenses; costs. HELD: 1)The father was to pay ongoing monthly child support of $293 for so long as the child remains a child within the meaning of the Family Maintenance Act. 2)He was to pay retroactive child support of $1,500 in monthly installments of $100. There must be some justification for retroactive support orders. This Court followed the approach taken by BC Court of Appeal in L.S. v. E.P., which set out the factors a court should consider in granting retroactive child support. He should have paid $335 in 2000; $324 in 2001; $293 in 2002. It was not clear why the petitioner did not seek financial disclosure through the Court. 3)The father was to pay his 59% share of the costs of the music program, gymnastics, swimming and craft camp within 10 days of receiving receipts. There was no prior spending pattern for the court to consider, as the child had no independent needs and was only 3 months old when the parents separated. While illness can qualify as a legitimate reason for requiring child care, the illness must relate to the child's custodian, not to a third party. The preschool expense was reasonable in relation to the total means of the three parties. The $20 kindergarten enrollment expense did not qualify as extraordinary. Retroactive s.7 expenses were not warranted. 4)There was no order for costs as results were mixed.