J. 2001 SKQB 50 F.L.D. A.D. 2000 No. 143 J.C. W. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF WEYBURN BETWEEN: HOWARD LESLIE MERRILL PICKERING and SANDRA ARLENE MOORE (Formerly known as SANDRA ARLENE PICKERING) RESPONDENT D.G. Bobbitt, Q.C. for Howard Leslie Merrill Pickering N.M. Drew for Sandra Arlene Moore JUDGMENT GUNN J. January 29, 2001 [1] Howard Pickering ("Howard") applies to vary the order of Matheson J. of the Court of Queen's Bench of Alberta by extinguishing his maintenance arrears from January 12, 1993 to the present and for an order eliminating any further obligation to pay maintenance for his children. HISTORY OF THE PROCEEDINGS [2] The parties married November 30, 1974 and divorced October 15, 1992. There were two children of the marriage: Cary Stephen Pickering, born April 9, 1975 and Tyler Scott Pickering, born April 12, 1979. The parties executed separation agreement October 3, 1991 wherein they agreed to joint custody of the children and in the event both children were living with one of the parties that the "non-custodial" parent pay maintenance of $175.00 per month per child to the "custodial" parent. This agreement was confirmed in the judgment of Matheson J. on September 14, 1992. [3] Initially each of the parties had one child in their custody and pursuant to their agreement and the divorce judgment, no maintenance was payable. From and after November 1992, Sandra Moore ("Sandra") had both children living with her and maintenance was then payable by Howard in the sum of $4,200.00 per year. Sandra registered the divorce judgment with the Maintenance Enforcement Office in Alberta in January 1993. [4] Howard says he has experienced depression and unemployment over the past number of years. He declared bankruptcy in July 1994. According to the records provided, Howard's income for the relevant time periods is the following: 1992 $48,000.00 1993 20,265.00 1994 3,952.00 1995 (social assistance) 3,254.00 1996 5,488.00 1997 17,579.00 1998 21,086.00 1999 29,079.54 [5] The payments made during those years reflected in documents from the Maintenance Enforcement Office in Alberta are the following: 1993: 4,368.00 1994: 1,666.84 1995: 392.98 1996: 1997: 213.86 1998: 2,794.87 1999: 4,917.93 2000: 3,152.00 [6] Up to and including August 18, 2000 Howard is in arrears of payment of $13,693.52. [7] Cary graduated from University of Calgary in July of 2000 with degree in Chemistry. He is now pursuing degree in education with an expected graduation date of April 2003. Sandra says he was financially dependent on her during his university years. Tyler is currently attending the Alberta College of Art and Design with an expected completion date of April 2002 and is still financially dependent on Sandra. However, on March 31, 2000 Sandra wrote to the Alberta Maintenance Enforcement Office to advise them that effective that date she was no longer seeking any ongoing maintenance for the children. She did, however, wish to receive the arrears in payments. Both children have significant student loans, and Sandra says she would use any arrears received to help reduce the student loans for her children. [8] At the time of the agreement, Howard earned $48,000.00. By 1993, the first year in which he was required to pay total of $4,200.00 his income was only 42% of his 1992 income. However, he actually paid little in excess of his required payment that year. In 1994, 1995 and 1996 his income had dropped to 8%, 6% and 11% of his 1992 income. In those years he paid 39%, 9% and 0 of his required maintenance. In 1997, Howard's income improved somewhat. He earned 36% of his 1992 income, but paid only $213.00 or 5% of the maintenance owing. In 1998 he earned 43% of his 1992 income and paid 66% of his required support. In 1999 he earned 60% of his 1992 income and paid 117% of his required support. [9] Based on the original order, the arrears are substantial. However, it is clear that the circumstances, and Howard's ability to pay, changed substantially during the term of the order. He would, on the basis of the evidence filed, have been entitled to apply for variation of the order long before this. Sandra does not dispute the income earned or the payments made during the relevant years. [10] In all of the circumstances there will be an order eliminating the arrears of payment from January 12, 1993 to the present. There will also be an order terminating any ongoing obligation for support based on Sandra's representations to the court and her letter to the Alberta Maintenance Enforcement Office.
The father applied to vary the Alberta order by extinguishing his maintenance arrears from January 1993 to the present and for an order eliminating any further obligation to pay child support. The parties married in 1974 and divorced in 1992. They agreed to joint custody of their two children in their 1991 separation agreement. One child was expected to graduate in 2002 and the other in 2003. The father said he suffered depression and was unemployed for several years. HELD: Arrears from 1993 were eliminated. He paid 39, 9 and 0% of the required support in 1994, 1995 and 1996 when his income dropped. He paid 5% in 1997, 66 in 1998 and 117% in 1999. Any ongoing obligation was terminated in view of the mother's letter to the Alberta Maintenance Enforcement Office and her representations to the court that she was no longer seeking support.