D.I.V. A.D. 1996 No. 268 J.C.S. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: BONNIE MARY BIGGAR PETITIONER (RESPONDENT) and ALLAN WALTER ALEXANDER BIGGAR RESPONDENT (APPLICANT) S.J. Pillipow for the petitioner (respondent) Allan Walter Alexander Biggar on his own behalf FIAT M-E. WRIGHT J. July 13, 1998 [1] The applicant, Allan Walter Alexander Biggar, seeksto vary the child support provisions contained in a judgmentfor divorce granted September 17, 1997 to an amount thataccords with the Federal Child Support Guidelines [Divorce ActRegulations, SOR/97-175]. [2] The applicant and respondent, Bonnie Mary Biggar, married on June 21, 1985. They have two children, Kate Belinda, born November 19, 1988 and Robyn Claire, born October 4, 1990. The parties separated on July 3, 1995 and on July 23, 1997 enteredinto an interspousal agreement. [3] Pursuant to the terms of their agreement, the respondent has custody of the children and the applicant has reasonable access on reasonable notice. The parties agreed that child support payable by the applicant would be in accordance with an interim order made in this proceeding on June 10, 1996. That order required the applicant to pay child support in the amount of $700 per month for each of the two [4] The agreement also provided for final division of matrimonial property. The respondent waived any claim to further spousal support, subject to payment by the applicant of $500 per month continuing only until April 15, 1998. [5] A judgment for divorce was granted September 17,1997. The parties` agreements regarding custody, access andchild and spousal support were incorporated into the judgment. [6] The applicant is employed as the manager of coffee shop. His employer, Rita Bourgault, with whom he resides, confirms that his employment started April 1, 1998 and that his annual salary is $24,000. The respondent is on leave from her employment with the federal government. She first applied for leave in August, 1997 because she intended to return to Prince Edward Island where her family resides. She has delayed this move, but still plans to relocate to that province during the summer of 1998. She has requested transfer with the federal government. [7] At the time of their marriage, both the applicant and respondent were employed by the federal government and were residing in Prince Edward Island. They moved to Saskatoon in 1991. At the time of the separation the applicant continued to be employed by the federal government at the National Hydrology Research Institute. His annual salary was approximately $55,500. [8] By letter dated October 9, 1996, some four months after the interim order for child support was granted, the applicant was notified that his services were about to become redundant to departmental requirements. His last day of employment with the federal government was May 2, 1997. He received retiring allowance of $75,646, of which approximately $40,000 was rolled into registered retirement savings plan. [9] Since October, 1996 the applicant has searched for comparable employment. He filed in support of his application summary of the positions he has applied for and the inquiries he has made. His lack of success in this endeavour is not due to lack of effort on his part to secure more remunerative employment. The applicant explains his failed efforts as in part due to lack of broad range of experience. He was employed continuously with the federal government from 1980 and his experience is accordingly limited to middle management in the federal public service. [10] In 1997, the applicant`s total income as reported on his T1 General form for that year was $107,731 comprised of employment income of $27,111, his retiring allowance of $75,646 and RRSP income of $4,975. [11] The applicant has made all support payments required under the judgment. His spousal support obligation has terminated. He says he has depleted all of his savings over the last year of unemployment and that his child support obligation should now be varied to conform to that which he would be required to pay under the Guidelines, supra, based on an annual income of $24,000. [12] The respondent opposes the application. She says there has been no change in circumstances since the judgment was granted. Further, she has no income other than that she receives as support from the applicant and the child tax benefit. Alternatively, she asserts that there are special provisions in the parties` separation agreement which would permit the court to award an amount that differs from the amount prescribed by the Guidelines; in this case, greater amount. THE LEGISLATION [13] The Divorce Act, R.S.C. 1985, c. (2nd Supp.): 17.(4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making variation order in respect of child support order, court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, judgment or written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit child, or that special provisions have otherwise been made for the benefit of child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. [14] The Federal Child Support Guidelines, supra: 14. For the purposes of subsection 17(4) of the Act, change of circumstances is (a) in the case where the amount of child support includes determination made in accordance with the applicable table, any change in circumstances that would result in different child support order or any provision thereof; (b) in the case where the amount of child support does not include determination made in accordance with table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section of chapter of the Statutes of Canada, (1997). [15] The judgment which the applicant seeks to vary was made after the coming into force of the Guidelines. It does not however include determination of child support made in accordance with table. Accordingly, it is s. 14(b) of the Guidelines which applies to this application. Before varying the existing order, must be satisfied that there has been change in the condition, means, needs or other circumstances of the applicant or the respondent, or either child of the marriage. [16] There is no change in the circumstances of therespondent or either child disclosed in the material filed. At the time of the order the respondent was, as she is now, on leave from her employ with the federal government. [17] The applicant at the time of the order was unemployed. He was however still benefitting from his retiring allowance which raised his total income in 1997 to an amount in excess of $100,000. He no longer enjoys that income. He is now employed earning only $24,000 per annum. Iam satisfied that there has been a change in the applicant`sfinancial means and circumstances and that a variation of theexisting order is warranted. The applicant has experienced significant reduction in the level of his income since 1997 and has been unable to obtain employment which compensates him at level commensurate with that which he received while employed by the federal government. [18] The provisions of the Divorce Act require any variation order be made in accordance with the applicable Guidelines. Based on an annual income of $24,000, theapplicant`s child support obligation is $341 per month for thetwo children. However, s. 17(6.2) permits the court to make child support order that is different than the amount that would otherwise be determined in accordance with the Guidelines if it is satisfied that there are special provisions in previous order or agreement that directly or indirectly benefit child and that the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The respondent relies on this section in support of her assertion that an amount of child support greater than that prescribed by the Guidelines should be ordered. [19] Pursuant to the parties` separation agreement, the respondent assumed responsibility for and repaid loan to the applicant`s parents in the amount of $25,000. She did this by taking out mortgage on the former matrimonial home. She says that she agreed to this only as part of comprehensive agreement dealing with all outstanding issues between the parties, including child and spousal support. Had she not been obliged to make this payment, she says she would have agreed at that time to lower child support payment from the [20] cannot conclude on the evidence presented that there is any special provision in the parties` agreement that directly or indirectly benefits either child. The agreementprovides for child support in a specified amount greater thanthat provided for in the Guidelines based on the applicant`scurrent income, an obvious benefit to the children. However Ido not equate this with a "special provision" as contemplatedby s. 17(6.2) of the Divorce Act given the change in thecircumstances of the applicant. To conclude otherwise and to accept the respondent`s position would be to foreclose any future variation application seeking reduction in the existing child support obligation irrespective of and without regard to the applicant`s present condition, means and other circumstances. (1) The applicant`s total income is $24,000 per annum; (2) The applicant shall pay to the respondent asand for the support of the two children of themarriage, Kate Belinda, born November 19, 1988,and Robyn Claire, born October 4, 1990, the sumof $341 per month commencing the 1st day ofJuly, 1998, and continuing on the first day ofeach month until further order. [22] There shall be no order as to costs.
FIAT. The father sought to reduce the support contained in the 1997 divorce judgment which incorporated the parties' interspousal agreements regarding custody, access and child and spousal support. The parties were married in 1985 and separated in 1995. The mother was on leave from her employment. When his federal government management position was declared redundant, the applicant received a retiring allowance of $75,646 in May 1997. The respondent opposed the application on the basis there had been no change in circumstances since the judgment was granted; she had no other income than the support payments and child tax credit; alternatively, there were special provisions in the parties' separation agreement which would permit the court to award an amount that differs from the amount prescribed by the Guidelines.HELD: 1)The judgment the applicant sought to vary was made after the coming into force of the Guidelines. It did not however include a determination of child support made in accordance with the Guidelines. There was no change in the childrens' or mother's circumstances. The applicant was unemployed but was still benefiting from his retiring allowance at the time of the order which he no longer enjoyed. A variation was warranted as there had been a change in the father's financial means and circumstances. The Guideline support obligation for two children is $341 per month.  2)It could not be concluded on the evidence presented that there was any special provision in the parties' agreement that directly or indirectly benefited either child. The provision for child support in a specified amount greater than that provided in the Guidelines was not a 'special provision' as contemplated by s17(6.2) of the Divorce Act given the change in circumstances of the applicant whose annual income had dropped from $55,500 to $24,000 a year.  3)No order was made as to costs.