J. 2004 SKQB 280 F.L.D. A.D. 2003 No. 247 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE INTER-JURISDICTIONAL SUPPORT ORDERS ACT, S.S. 2002, C. I-10.03 RESPONDENT [V.G.B.] (by telephone) on her own behalf L. R. Johnson for the respondent FIAT RYAN-FROSLIE J. June 21, 2004 [1] This is an application pursuant to The Inter-jurisdictional Support Orders Act, S.S. 2002, c. I-10.03 by Ms. [V.G.B.] for a declaration of paternity and child support. At the request of this Court, Ms. [V.G.B.] appeared by telephone to give evidence with regard to her claims for undue hardship, s. expenses and retroactive child support. 1. Mr. [E.H.]’s income for child support purposes. 2. Should the child support be set at greater than the Table amount based on undue hardship to Ms. [V.G.B.]? 3. Section expenses. 4. Should the child support order be retroactive? [2] Both Ms. [V.G.B.] and Mr. [E.H.] testified with regard to this application and the facts, for the most part, are not in dispute. [3] The parties never lived together but had an intimate relationship which resulted in the birth of child, [K.V.P.A.], born December 7, 1995 (age 8). Mr. [E.H.] is shown as [K.V.P.A.]’s father on her birth registration and he acknowledges paternity. Ms. [V.G.B.] has three other children aged 13, and years of age, respectively. Mr. [E.H.] is not the father of any of those children. [4] [K.V.P.A.] resides with her mother and three siblings at Bragg Creek, Alberta. Ms. [V.G.B.] lives alone with her children. At the time [K.V.P.A.] was born, Ms. [V.G.B.] was attending law school in Saskatoon, Saskatchewan. She graduated from the College of Law in the spring of 1997. She continued in university, working towards her Masters in Law. She did not begin her articles until late 2002. During her articles, her salary was $40,000 gross per annum. Ms. [V.G.B.] has recently passed her bar exams. She testified this will likely result in an increase in her salary to between $50,000 and $60,000 per year. Her tax summaries and/or returns for the last five years show her income as follows: 1999 $25,431 2000 $22,601 2001 $34,473 2002 $21,744 2003 $42,837 In addition, she receives child support for her eldest child of $3,300 per year, GST rebate which is estimated on her 2003 tax return to be $191.32 quarterly ($765.28 per year), and the child tax credit which is estimated on her 2003 tax return to be $560.35 per month ($6,724.20 per year). She receives no child support for her youngest child. She has applied for child support for her daughter, [J.], though no order has yet been made with regard to that application. [5] Ms. [V.G.B.] incurs child care costs with regard to [K.V.P.A.]. Those costs were $601.25 in 2003. This includes $125for [K.V.P.A.] to attend one week camp during the summer. (The written material filed by Ms. [V.G.B.] indicates the cost of the camp is $175). [K.V.P.A.] is involved in Junior Forest Rangers and basketball and also attends canoe camp. She is bused to school and the bus fees are $80 per year. [6] Ms. [V.G.B.] has significant level of debt largely consisting of student loans. Her debts are as follows: 1. Canadian student loan through the Southwest Credit Union Acct. No. 3304698: $51,983.23. According to Ms. [V.G.B.]’s testimony, this loan was all incurred by September, 1995. Very little of the loan would have assisted with living expenses after [K.V.P.A.]’s birth. 2. Saskatchewan Student Loan through Royal Bank, Account No. 0424: $34,221.87. Ms. [V.G.B.] testified $15,086.02 of this amount was advanced by November 30, 1995 which is prior to [K.V.P.A.]’s birth. 3. Royal Bank line of credit No. 05305446-001: $23,082. This account was opened on January 20, 2000. Form of Ms. [V.G.B.]’s application, which is her financial statement, shows this money was used to purchase van and for moving expenses. Ms. [V.G.B.] testified this money was also used for living expenses although she could not “guess” what amount was used for that. 4. H.R.C.C. Employment Insurance overpayment: $2,000. 5. Royal Classic Visa: $139.39. Ms. [V.G.B.] testified the Visa is paid off monthly and was used to purchase things for [K.V.P.A.] such as bed. 6. United Furniture: $1,481.63. Ms. [V.G.B.] testified she used this money to purchase furniture in December, 2002. This loan has also been paid off since the filing of her application. [7] Mr. [E.H.] is of Aboriginal descent and currently resides at Montreal Lake. He has two other children, aged 15 and years of age, respectively, from two different mothers. Mr. [E.H.] is currently unemployed. He last worked from December, 2002 to May, 2003 for the FSIN as writer and researcher. This was contract position and he earned $1,900 every two weeks. Prior to that he assisted with the provincial election in October/November, 2002 and was paid $1,000. From 1997 to the spring of 2002, he attended the University of Saskatchewan taking Bachelor of Arts degree. For at least two summers he took intersession and summer session. Mr. [E.H.] would like to continue with his education and eventually obtain law degree but cannot do so at this time for financial reasons. Mr. [E.H.] testified he has genetic heart problems for which he was hospitalized in September, 2002. Since that time he has been on medication. His mother and all of her siblings died of heart failure. His older brother has also been hospitalized for heart problems. While Mr. [E.H.] provided no medical reports to support his claim, am satisfied that he suffers from genetic heart condition which affects his ability to do physical labour. accept his heart problems have also resulted in him suffering from depression. [8] Mr. [E.H.] has been attempting to obtain employment with the provincial government. To that end, he has been working on two proposals, one relating to justice conference, and the second to the creation of an aboriginal justice vehicle. If he is hired by the government, he expects to earn approximately $30,000 per year. If neither of his proposals are accepted, he would like to return to university. Mr. [E.H.] testified he has entered two-week contract with his band writing community newsletter. He will be paid $800 to $900 for that work. Mr. [E.H.] lives in home given to him and his brother by his late mother. His younger brother has been lending him money to get by. Mr. [E.H.] testified there is court order requiring him to pay $65 per month for his oldest daughter. He is currently $1,900 to $2,100 in arrears of that order. There is no child support order for his seven-year-old daughter but he is trying to work things out with her mother. Both Ms. [V.G.B.] and Mr. [E.H.] acknowledge there have been no agreements or court orders with regard to [K.V.P.A.]’s support nor has Mr. [E.H.] made any support payments. In addition to the child support arrears, Mr. [E.H.] owes approximately $12,000 in student loans and $840 for tuition for the 2001/02 school year. Mr. [E.H.] has not filed tax return because he is an “Indian” pursuant to the Indian Act and any income earned was on reserve. [9] Ms. [V.G.B.] testified she had few conversations with Mr. [E.H.] about child support over the years and that he indicated he would help when he was “able”. The first of these conversations occurred shortly after [K.V.P.A.]’s birth in January, 1996. Ms. [V.G.B.] testified she understood Mr. [E.H.] was student at the time. She did not bring court application before now because she held the view that Mr. [E.H.] would contribute when he could and it was not her place to pressure him to pay. She has since changed her view. [10] Ms. [V.G.B.] elected to have the laws of the Province of Saskatchewan apply to this application which is The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 and The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2, including the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175]. 1. Mr. [E.H.]’s income for child support purposes [11] Sections 15 to 20 of the Guidelines sets out the method by which court should determine income for child support purposes. In accordance with s. 16, the general rule is that an individual’s income for child support purposes is determined using the sources of income set out under the heading “total income” in the T-1 General form issued by Canada Customs and Revenue Agency and adjusted in accordance with Schedule III of the Guidelines. Mr. [E.H.] has been unemployed since May, 2003. There is no evidence that he is being anything other than honest with regard to his financial circumstances. The only issue is whether the Court can impute income to him pursuant to s. 19(1)(a) of the Guidelines on the basis he is intentionally under-employed or unemployed. That section reads as follows: 19.(1) The court may impute such amount of income to spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of child of the marriage or any chid under the age of majority or by the reasonable educational or health needs of the spouse. [12] Pursuant to s. 19 of the Guidelines, the court has the discretion to impute income to parent where it considers that appropriate in the circumstances. Section. 19 sets out non-exhaustive list of circumstances where court may consider imputing income to parent. One of those circumstances is where parent is “intentionally under-employed or unemployed”. [13] Any analysis of s. 19(1)(a) requires three-step process. Firstly, the court must determine whether the parent is intentionally under-employed or unemployed. Secondly, if the parent is intentionally under-employed or unemployed, the court must determine whether any of the exceptions set out in s. 9(1)(a) apply. Those exceptions cover situations where the under-employment or unemployment is required by reason of (1) the needs of child of the marriage; (2) the needs of any child under the age of majority; (3) the reasonable educational needs of the payor; or (4) the reasonable health needs of the payor. Finally, if court determines parent is intentionally under-employed or unemployed and that none of the exceptions set out in s. 19(1)(a) apply, then the court must decide whether to exercise its discretion and impute income. [14] There are two lines of judicial authority dealing with the meaning of “intentionally under-employed or unemployed” One line of authority holds that “intentionally” means “voluntarily”. It applies where parent chooses to be under-employed or unemployed. No specific intent to evade child support is necessary. This was the approach adopted by the Manitoba Court of Appeal in Donovan v. Donovan, 2000 MBCA 80 (CanLII), (2000), R.F.L. (5th) 306 (Man. C.A.), the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.) and by Justice Dawson of this Court in Mullen v. Mullen, 2004 SKQB 65 (CanLII), [2004] S.J. No. 85 (Q.B.) (QL). The second line of authority holds that “intentionally” in s. 19(1)(a) requires specific intent by the parent paying child support to evade that obligation. This line of reasoning was adopted by the Alberta Court of Appeal in Hunt v. Smolis-Hunt, 2001 ABCA 229 (CanLII), (2001), 20 R.F.L. (5th) 409 (Alta. C.A.). [15] Obviously, an individual who chooses to be under-employed or unemployed to avoid paying child support is “intentionally under-employed or unemployed”. cannot, however, conclude that is the only circumstance envisioned by s. 19(1)(a). adopt the reasoning of the Manitoba Court of Appeal in Donovan and the Ontario Court of Appeal in Drygala, supra and find “intentional” extends to situations where parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact the parent “chooses” to be under-employed or unemployed, brings their situation within the meaning of “intentional” and creates the circumstance envisioned by s. 19(1)(a). The reason for such choice does not change the fact it is “intentional” but it may impact the court’s decision whether to exercise its discretion and impute income. [16] The principles to be employed by court in determining whether to exercise its discretion where parent is intentionally under-employed or unemployed have been considered by number of courts. Justice Steel of the Manitoba Court of Appeal in Donovan, supra, indicated the question is what is reasonable in the circumstances. At para. 18 he set out the principle as follows: decision as to whether person is capable of earning more income than they are presently earning depends on the context. Fundamentally, the court will impute income in the same fashion that it did before the introduction of the Federal Child Support Guidelines. Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable at the time they are taken considering all the circumstances. [17] Julien Payne, in his article Imputing Income, “Determination of Income, Disclosure of Income,” Child Support in Canada, Danrab Inc., August 3, 1999, described the principles which apply as follows: 1. There is duty to seek employment in case where parent is healthy and there is no reason why the parent cannot work. It is “no answer for person liable to support child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor.” (Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 166 D.L.R. (4th) 528 (B.C. C.A.) at para. 30). 2. When imputing income on the basis of intentional under-employment, court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate, and other obligations. 3. parent’s limited work experience and job skills do not justify failure to pursue employment that does not require significant skills or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As general rule, parent cannot avoid child support obligations by self-induced reduction of income. These principles have been quoted in numerous cases including Donovan, supra and Drygala, supra. [18] Some examples of situations where the court has exercised its discretion to impute income pursuant to s. 9(1)(a) are as follows: 1. Where parent retired at relatively early age and chose to pursue unremunerative employment. (See: Donovan v. Donovan, supra). 2. Where parent chose to quit his job and instead become full-time student. (See: Drygala v. Pauli, supra). 3. Where the parent was able-bodied and in good health but chose to work only part time. (See: Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C. C.A.)). 4. Where parent chose to remain at home with young children from another relationship. (See: Zieglgansberger v. Venyige, 2003 SKQB 512 (CanLII), (2003), 240 Sask. R. 109 (Q.B.); Lachapelle v. Vezina (2000), 2000 CanLII 22446 (ON SC), 11 R.F.L. (5th) 328 (Ont. S.C.)). 5. Where parent attempts to avoid child support by self-induced reduction in income. (See: Cholodniuk v. Sears, 2001 SKQB 97 (CanLII), (2001), 204 Sask. R. 268 (Q.B.); Tynan v. Moses, 2002 BCSC 100 (CanLII), (2002), 25 R.F.L. (5th) 445 (B.C. S.C.)). 6. Where parent voluntarily left employment to establish business where he earned significantly less income. (See: Neisz v. Spagrud (1998), 1998 CanLII 13752 (SK QB), 174 Sask. R. 174 (Q.B.)). [19] Based on the evidence, Mr. [E.H.]’s ability to earn income is limited by his health to sedentary types of employment. Mr. [E.H.] has been pursuing secondary education and was engaged in that pursuit at the time that [K.V.P.A.] was born. There is no suggestion or evidence that his pursuit of education was “unreasonable”. His current education and writing skills enable him to earn an income in limited fields. [20] Within the next two weeks, Mr. [E.H.] will earn $800 to $900 for publishing the newsletter for his band. That contract is only for period of two weeks and will represent his total earnings to date in 2004. Other than that contract, Mr. [E.H.] has been unemployed since May, 2003. He has, however, been working on proposals for the provincial government and he expects reply to those proposals in the near future. The evidence in this case does not support finding of intentional unemployment. Mr. [E.H.] has been actively working towards obtaining position with the provincial government. Given his health, his education, experience and skills, find his approach to obtaining employment has been reasonable. Should the provincial government turn down his proposal, Mr. [E.H.] has duty to actively seek employment commensurate with his education, skills, experience and physical limitations. The onus will be on him to establish that any continued unemployment is unintentional or, if intentional, that it is reasonable in the circumstances and does not warrant the imputation of income. As Mr. [E.H.]’s current income is below the amount normally required for Table support, no support shall be ordered at this time. There shall be an order, however, that Mr. [E.H.] advise Ms. [V.G.B.] within 30 days of the date of this order whether he obtained employment and/or contract position with the provincial government and, if so, his remuneration from that position. Ms. [V.G.B.] shall have leave to return this matter to the court for review in the event Mr. [E.H.] obtains employment or in the event he remains unemployed for further period of three months. Three months should be sufficient time for Mr. [E.H.] to obtain job and begin fulfilling his obligation to his daughter, [K.V.P.A.]. 2. Ms. [V.G.B.]’s claim for undue hardship [21] Ms. [V.G.B.] requests this Court to set child support at rate higher than the Table amount based on undue hardship. She argues her standard of living is below that of Mr. [E.H.] due to the fact she has four dependent children and very high debt load. [22] Section 10 of the Guidelines sets out the basis for an undue hardship claim. Such claims involve two-stage analysis. First, the applicant must establish that circumstances exist which would cause undue hardship if the Table amount of support is ordered. If this test is met, then the parties’ standard of living must be examined to ensure the applicant would have lower standard of living if the Table support were paid. [23] Section 10(2) sets out non-exhaustive list of circumstances which may give rise to finding of undue hardship. Ms. [V.G.B.] seeks to bring herself under s. 10(2)(a) and (d) which read as follows: 10.(2) Circumstances that may cause spouse or child to suffer undue hardship include the following: (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn living. ... (d) the spouse has legal duty to support child, other than child of the marriage, who is (i) under the age of majority. [24] The evidence establishes Ms. [V.G.B.] has three other children in her care which she must support. She also has significant debt. Some of that debt relates to the accumulation of assets such as vehicle and furniture and not for support purposes or to earn living. Moreover, the vast majority of the student loans were accumulated prior to [K.V.P.A.]’s birth and while they were accumulated to enable Ms. [V.G.B.] to take post-secondary education, some of that education, in particular, her pursuit of Masters degree, was not necessary to enable her to obtain gainful employment. Whether these circumstances create undue hardship is question of fact and it is difficult threshold to meet. “Undue” has been interpreted by the case law to mean “excessive, extreme and unreasonable”. Justice Wright of this Court in Messier v. Baines (1997), 1997 CanLII 11210 (SK QB), 161 Sask. R. 132 (Q.B.), at para. 10, discussed the objectives of the child support Guidelines and their effect on s. 10. She held “[T]hese objectives will be defeated if courts too readily deviate from the presumptive rule set out in s. of the Guidelines absent compelling reasons for doing so....” This reasoning has been adopted by other courts such as the Alberta Court of Appeal in Hanmore v. Hanmore, 2000 ABCA 57 (CanLII), (2000), R.F.L. (5th) 348 (Alta. C.A.) and the British Columbia Court of Appeal in Van Gool v. Van Gool, supra. In Van Gool, the British Columbia Court of Appeal, at para. 51 stated: .. The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant has the legal responsibility for another child or children and/or because the standard of living of the applicant's household is lower than that of the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship. [25] In this case, Ms. [V.G.B.] has not provided the necessary evidence to establish undue hardship. While the fact she has other children to support and heavy debt load are circumstances which may result in undue hardship, the parties’ financial situations do not warrant such finding in this case, nor can Ms. [V.G.B.] establish that her standard of living is less than that of Mr. [E.H.]. 3. Section expenses [26] Ms. [V.G.B.] requested an order pursuant to s. of the Guidelines that Mr. [E.H.] pay his proportionate share of the following expenses: Child care: $476.25 ($601.25 less camp expense in 2003 of $125) Rivendale camp: $175.00 (for 2004) Red Cross registration: $25.00 Junior Forest Rangers registration: $50.00 Flatwater canoe camp: $70.00 Used cross-country skiis: $70.00 Used skates: $40.00 School fees: $70.00 Unspecified other fees: $50.00 Bus fees: $80.00 The application involves claims pursuant to s. 7(1)(a)(d) and (f) of the Guidelines which read as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking 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 spouses and those of the child and to the family’s spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent’s employment, illness, disability or education or training for employment; ... (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; ... (f) extraordinary expenses for extracurricular activities. [27] Section expenses are often referred to “add ons” to Table support. These expenses cover items that are not normally covered in regular child support orders. Some s. expenses such as those relating to extracurricular activities must be “extraordinary”. The Saskatchewan Court of Appeal in Kofoed v. Fichter (1998), 1998 CanLII 12342 (SK CA), 39 R.F.L. (4th) 348 (Sask. C.A.) held that “extraordinary” means in contradiction to usual expenses. In such cases s. expenses are exceptions rather than the rule. Each case must be decided on its own facts, taking into account the necessity and reasonableness of the costs incurred as well as the means and needs of both parents. In this case, Mr. [E.H.] does not earn income sufficient to pay Table support. Ms. [V.G.B.] will be earning approximately $55,000 per year. In addition, she receives child support for at least one of her other daughters, child tax benefit in excess of $6,700 per year, and GST rebate. Her means exceed $65,000 per year. The cost of [K.V.P.A.]’s extracurricular activities which include camp registrations, Junior Forest Rangers and Red Cross come to approximately $320 per year ($26.67 per month). The cost for skates and cross-country skiis is approximately $110 per year ($9.17 per month). Given Ms. [V.G.B.]’s means, these expenses cannot be considered extraordinary. [28] Expenses relating to primary education must also be “extraordinary”. Most parents do not have to pay to bus their children to school. This cost may therefore considered as out of the ordinary and may qualify as proper s. 7(d) expense as do the expenses incurred for child care necessitated by Ms. [V.G.B.]’s employment. In light of Mr. [E.H.]’s current income, no order should be made for s. expenses at this time. 4. Should the child support order be retroactive? [29] parent’s obligation to provide financial support for their children arises on the birth of the child (See: MacMinn v. MacMinn (1995), 1995 CanLII 6247 (AB CA), 17 R.F.L. (4th) 88 (Alta. C.A.) at para. 15). This does not mean, however, that court should automatically make its child support orders retroactive to that date. Normally child support orders take effect from the date of the application or the date support was demanded. (See: Evans v. Gravely (2000), 2000 CanLII 22593 (ON SC), 14 R.F.L. (5th) 74 (Ont. S.C.) at para. 18, and Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 46 R.F.L. (5th) 455 (Ont. C.A.)). Both The Family Maintenance Act and the Divorce Act, R.S.C. 1985, c. (2nd Supp.) allow courts to make retroactive child support orders if the circumstances warrant it. The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising the child. In granting retroactive order, judge must consider need as well as ability to pay. (See: Brett v. Brett (1999), 1999 CanLII 3711 (ON CA), 44 O.R. (3d) 61 (Ont. C.A.)). The factors court should consider in determining whether to grant retroactive support were set out by the British Columbia Court of Appeal in L.S. v. E.P., 1999 BCCA 393 (CanLII), (1999), 50 R.F.L. (4th) 302 (B.C. C.A.) at paras. 66 and 67 as follows: .. 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. These factors have been quoted with approval by courts in Saskatchewan. (See: [W. (A.)] v. [C. (D.)], 2000 SKQB 495 (CanLII), [2000] S.J. No. 751 (Q.B.) (QL)). [30] In this case, the evidence establishes need on the part of the child but it does not establish corresponding ability to pay on the part of Mr. [E.H.]. Mr. [E.H.] was attending university during much of [K.V.P.A.]’s life and has not had full-time employment. Even his part-time employment has been very limited. He is not currently in position to provide child support though hopefully that will change in the near future. There is no evidence of any blameworthy conduct by Mr. [E.H.]. He has not provided false or misleading financial disclosure. While Ms. [V.G.B.] has incurred substantial debt, much of that debt was incurred before [K.V.P.A.]’s birth or to enable her to attend university or acquire assets such as van and furniture. There is no evidence Ms. [V.G.B.] ever made formal request for financial disclosure from Mr. [E.H.] prior to this court application. She acknowledges that the delay in bringing the application is due to her decision not to pursue Mr. [E.H.]. Mr. [E.H.] has no ability to pay substantial arrears if child support order was made retroactive and any such order would clearly impair his ability to provide ongoing support, not just for [K.V.P.A.], but for his other children as well. Based on the evidence, an order for retroactive child support is not warranted. Conclusion [31] By agreement, there shall be an order pursuant to s. 45 of The Children’s Law Act, 1997 declaring Mr. [E.H.] the biological father of the child [K.V.P.A.], born December 7, 1995. [32] Mr. [E.H.] does not currently earn sufficient income to pay child support. He is to advise Ms. [V.G.B.] within 30 days of the date of this order whether he received an offer of employment or contract from the provincial government and if so, the terms of his employment, including his gross income. Ms. [V.G.B.] shall have leave to bring this matter back before the Court once Mr. [E.H.] obtains employment or if he remains unemployed for period of three moths. [33] Ms. [V.G.B.]’s requests for child support in an amount greater than the Table amount pursuant to s. 10 of the Guidelines, and for retroactive child support are dismissed. [34] Ms. [V.G.B.]’s application for s. expenses is dismissed with leave to bring the issue of child care and busing back before the Court once Mr. [E.H.] obtains employment.
This was an application pursuant to The Inter-jurisdictional Support Orders Act for a declaration of paternity and child support. HELD: By agreement there was an order pursuant to s. 45 of The Children's Law Act, 1997 declaring the respondent the biological father of the child. The respondent does not currently earn sufficient income to pay child support. He was to advise the petitioner within 30 days if he receives an offer of employment or contract and if so, the terms of his employment including his gross income. 1) The respondent's ability to earn income is limited by his health to sedentary types of employment. There is no suggestion or evidence that his pursuit of education is unreasonable.  2) An individual who chooses to be underemployed or unemployed to avoid paying child support is 'intentionally underemployed or unemployed'. That is not the only circumstance envisioned by s. 19(1)(a) of the Guidelines. The Court adopted the reasoning of the Manitoba Court of Appeal in Donovan v. Donovan and the Ontario Court of Appeal in Drygala v. Pauli and found that 'intentional' extends to situations where a parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact that the parent chooses to be underemployed or unemployed, brings their situation within the meaning of 'intentional' and creates the circumstances envisioned by s. 19(1)(a). The reason for such a choice does not change the fact it is intentional, but it may impact on the Court's decision whether to exercise its discretion and impute income.