QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 173 Date: 2010 05 14 Docket: F.L.D. No. 260 of 2005 Judicial Centre: Saskatoon, Family Law Division BETWEEN: JAMES BUTLER and JODI POSEHN Counsel: M. Vanstone for the petitioner N. Turcotte for the respondent FIAT MAHER J. May 14, 2010 Introduction [1] The petitioner applies to vary the consent parenting judgment and the consent child support order granted by Justice R. S. Smith on February 2, 2007. The petitioner requests that the parenting judgment be varied to provide four day on and four day off rotation to the parenting schedule and the deletion from paragraph of the parenting judgment the respondent’s final decision making provision. The petitioner, as well, seeks several additional adjustments to the initial parenting judgment. In regard to the child support order, the petitioner seeks that the child support order be varied to provide that his $762 per month payment that he currently makes not be increased or decreased in the years to come. [2] The respondent opposes the application and says that there has been no material change of circumstances since the granting of the parenting judgment and child support order on February 2, 2007. Therefore the petitioner’s application should be dismissed. [3] The parties are the parents of twins, April Posehn and Colby Posehn, born August 28, 2005. The parties never lived together. The respondent went on maternity leave on June 30, 2005, from her position at the Calder Centre in Saskatoon. She then relocated to Regina to be with her family where the children were born. The respondent as single parent was able to access family supports after the twins were born in Regina. [4] The petitioner resided in Saskatoon. The respondent’s evidence is that she has provided generous access to the petitioner since the birth of the twins. [5] The petitioner in October of 2005 brought an application for joint custody of the twins, payment of child support by him, and an order that the respondent provide her three previous years tax returns and notices of assessment. That application resulted in the consent child support order and the parenting judgment of February 2, 2007, that the petitioner now seeks to vary. [6] The child support order determined that the petitioner’s income for Guideline purposes was $53,624 and the respondent’s was $54,581. The petitioner was ordered to pay child support in the amount of $762 per month plus one half of net child care costs and one half of any health or dental costs not covered by insurance. The parties were ordered to exchange their tax returns in May of each year and the child support payment was to be adjusted as of June 1st to account for any changes in income. [7] The parenting judgment provided joint custody with the children having their primary residence with the respondent. The petitioner was to have access twelve days per month. The petitioner was to be responsible to pay the respondent’s relocation costs from Regina to Saskatoon. The order provided the following on increasing parenting time to the petitioner: In the future the Petitioner may seek additional parenting time with the children (without the necessity of proving “change in circumstances”) up to and including ‘half-time’ parenting arrangement such that the children would spend equal time with each parent, provided the Petitioner would not seek change in the maintenance arrangements, and would continue to provide basic Guidelines maintenance as he currently does, with no deduction based on increased parenting time. [8] The parenting judgment provided at paragraph the following on health care and education matters, “the respondent, Jodie Posehn, shall have the final decision with due consideration to the petitioner’s opinion.” [9] The respondent has relocated to Saskatoon with the petitioner having paid her costs of relocation. The petitioner now has access to the children 50% of the time. The parties have been following an equal parenting schedule for the past two and one-half years. The petitioner’s view is that the equal parenting “has worked wonderfully for the twins as they are healthy, happy, well cared for, and well adjusted”. The petitioner acknowledges under the current parenting judgment the respondent consults with the petitioner prior to making significant decisions regarding the welfare of the twins. 1. Has the petitioner established material change of circumstances since the parenting judgment or the child support order of February 2, 2007? 2. If there has been material change in circumstances from either of the orders, what are the appropriate terms and conditions of varied judgment or order? [11] The Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, McLachlin J. (as she then was) set out three conditions that must be satisfied before court can begin to consider the merits of variation application. The conditions she set out are at paras. 10 13 and are as follows: 10 Before the court can consider the merits of the application for variation, it must be satisfied there has been material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary custody or access order absent change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), R.F.L. (4th) 291 (Sask. C.A.). 11 The requirement of material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194. 12 What suffices to establish material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5. 13 It follows that before entering on the merits of an application to vary custody order the judge must be satisfied of: (1) change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. It is common ground that the petitioner, being the applicant, has the onus to establish that the three initial conditions have been met (See: Talbot v. Henry,[1990] .W.W.R. 251 (Sask. C.A.); 1990 CanLII 2648 (SK CA), 1990 S.J. No. 159 (QL)). A. The parenting judgment [12] The petitioner’s request is to change to the parenting time in the judgment and delete the respondent’s final decision making provision. His wish is to share decision making responsibilities with the respondent. He asserts at paragraph 38 of his affidavit of November 23, 2009, that “the respondent has acted as if she is the only authority and occasionally attempts to control parenting decisions”. The petitioner in his reply affidavit of April 29, 2010, says the following at paragraph 18: ... now that we are now in the same city and share the responsibility for the twins’ care on an equal basis would like to share decision making responsibility with the respondent. In my view there has been no health or welfare issues pertaining to the children that we have not, one way or another, managed to resolve through dialogue. [13] When one compares the detailed terms of the parenting judgment and the evidence of the petitioner and apply them to the three requirements as set out in Gordon v. Goertz, supra, I am satisfied that the petitioner has not established a material change of circumstances. The parties, to their credit, have worked hard at co-parenting the children. The petitioner’s wish is to eliminate the respondent’s veto. However, paragraph 2 of the judgment details a process of consultation by the respondent on issues of parenting concerning the health and education of the children. It does provide that the respondent shall have the final decision with “due consideration to the petitioner’s opinion”. It is obvious from the petitioner’s evidence that the respondent is following the terms of paragraph 2 with consultation and that the current arrangement has worked well in the interest of the twins. [14] I find that the petitioner has not satisfied me that a material change of circumstance has occurred. The original judgment contemplated in detail the parenting arrangement that has been followed. The petitioner has failed to meet the onus upon him in this regard and I dismiss the application. B. The Child Support Order [15] The petitioner seeks to have his child support payment as set out in the February 2, 2007, order at $762 be changed so that the $762 payment would not increase or decrease in the years to come. The current child support order clearly provided in paragraph for the child support to be adjusted annually after the exchange of tax returns. The parenting judgment provided that when an equal parenting arrangement occurred that the petitioner, “would continue to provide basic Guidelines maintenance as he currently does, with no deduction based on increased parenting time.” [16] The petitioner in support of his application to vary the child support details his increased costs as result of the shared parenting arrangement. However, must consider that in the context of the petitioner’s 2009 income tax return. His line 150 income is $77,942.41 less union dues of $882 which establishes his Guideline income for 2009 at $77,060 which results in monthly child support obligation pursuant to the original order of $1072 per month for the twins. [17] What evidence is there to establish material change of circumstance? The petitioner agreed on the granting of the original orders on how child support should be calculated in ongoing years and both parties were required to produce their tax returns. The petitioner has increased costs now that he has the children 50% of the time. However the cost of the children’s care on that occurring was dealt with in the original order. The only change is the petitioner’s income which has increased by $22,479. That, in my opinion, is not a material change of circumstance as the change of the petitioner’s income on equal parenting were clearly provided for in the original child support order and parenting judgment. I therefore dismiss the petitioner’s application to vary the child support order. [18] find that the petitioner’s 2009 income for child support purposes is $77,060. order, pursuant to the terms of the original judgment, that the petitioner shall commence paying child support in the amount of $1,072 per month commencing June 1, 2010, and continuing monthly thereafter until further order or agreement of the parties. [19] The petitioner’s 2008 line 150 income is $58,251.05 and he is entitled to union due deduction of $1,243. find that his 2008 Guideline income is $57,008. find that his child support obligation from June 1, 2009, to May 1, 2010, is $797. The petitioner therefore owes the respondent $420 for child support as he appears to have paid only the original $762 per month. The $420 is to be paid by the petitioner within thirty days. [20] The respondent has been successful in having the petitioner’s applications to vary dismissed. She is therefore entitled to her costs, which fix in the amount of $1,500 to be paid within thirty days. J. R. D. Maher
The petitioner and respondent are the parents of twins. The petitioner father sought variation of a consent order. The consent order provided that the parties would have joint custody of the children with the primary residence with the respondent. The order also provided that the respondent would have the final decision with respect to health and education matters, after consultation with the petitioner. The situation had evolved to the point that the petitioner had relocated to the same city as the respondent and children. For the past two and a half year, the petitioner had access to the children 50% of the time. The petitioner acknowledged that under the current arrangement, the respondent consulted him before making decisions regarding the welfare of the children. The consent order dealt with child support payable, provided that tax returns be exchanged annually and set out how child support should be calculated on an ongoing basis. The petitioner sought to have the child support arrangement varied so that his support obligation would not increase or decrease in the years to come. The petitioner cited increased personal costs to exercise access to the children. HELD: The petitioner had not established a material change in circumstances sufficient to justify a change to the parenting arrangement. The original consent order provides that the respondent must consult with the petitioner on issues of health and education and the current arrangement has worked well for the children. The petitioner also failed to establish a material change in circumstances sufficient to alter the agreed child support arrangement. The issue of increased costs for the petitioner to exercise access to the children was dealt with in the original consent order. The only change in circumstances is that the petitioner's income has increased. The petitioner's application to vary the parenting arrangement and child support order was dismissed. The respondent was awarded costs.