J.C. Y. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: JAMES RYAN SAVENKOFF APPLICANT (PETITIONER) and KATHRYN JOAN MACKAY RESPONDENT Patrick R. Koskie for the applicant David K. Rusnak for the respondent FIAT GUNN J. September 25, 1995 James Savenkoff (the "applicant") applies for anorder varying the support provisions of a judgment granted byLane J. of the Supreme Court of Ontario, on February 27, 1989,and seeks an order requiring a total payment of $570.75 permonth for both children. Kathryn Joan MacKay (the "respondent") opposes the application. He also seeks an order expunging any arrears. The relevant terms of the divorce judgment are as 1. THIS COURT ORDERS AND ADJUDGES that the respondent wife shall have custody of the children of the marriage, namely, Ryan Douglas Savenkoff born October 4, 1981, and Brett James Savenkoff born April 4, 1983. 3. THIS COURT ORDERS AND ADJUDGES that (a) The petitioner husband shall pay to the respondent wife for her support and for the support of the two infant children the sum of $1,200.00 per month payable to the Support and Custody Order Enforcement Office. (b) The respondent wife shall no longer be entitled to the petitioner husband's support upon the respondent wife obtaining full time employment or January 1, 1990, whichever occurs first. Upon the happening of the first of the above events, the support payable by the husband shall be exclusively for the support of the infant children. (c) Upon the wife obtaining full time employment or January 1, 1990, whichever first occurs, the parties shall confer either personally or through their solicitors or, if agreed, through mediator to reassess the quantum of support payable. The obtaining of full time employment alone shall not automatically constitute material change in circumstances that warrants reduction in support. It shall, rather, constitute an event that shall make support reviewable based on the new financial circumstances of each child and the parties. In this regard, the parties shall co-operate fully with each other and provide such financial information as is reasonably requested from either party. In the event that agreement cannot be reached within 30 days of the commencement of negotiations either party shall be entitled to apply to this Honourable Court to determine the quantum of support. Until new determination of the quantum of support is made, the quantum of support shall not change. (d) Any monies payable by the petitioner husband to the respondent wife on account of child support will be increased on the anniversary date of the order herein and every year thereafter in accordance with Section 34(6) of The Family Law 5. THIS COURT ORDERS AND ADJUDGES that the petitioner husband shall maintain all medical, dental, drug and other health benefit plans currently available through his employment with General Motors of Canada Limited or available through such other employment as he may obtain for the benefit of the children for so long as they are entitled to his support The applicant submits an agreement was reached inAugust of 1989 in accordance with paragraph 2(c) of thejudgment reducing the maintenance from $1,200 per month to$500 per month, which amount was paid from August, 1989 up toand including August, 1993. further agreement was then made increasing the monthly maintenance commencing September 1, 1993 to $554.13 and further increasing the maintenance in January, 1994 to $570.75. The applicant says in addition to the above maintenance, he provides $50 per month directly to the children as allowance, contributes approximately $1,500 per year for hockey expenses and pays annual return air fare of approximately $2,200 in order that he may exercise access to his children. The applicant became unemployed in 1993, having accepted severance package with General Motors. Due to his father's poor health he moved to the Pelly District to assist with his parents' farming operation. He is currently helping with the farm and is working part time as the rink superintendent in the Town of Pelly earning $320 per month during the winter months. The respondent denies any agreement to reduce themaintenance from the original order. However, she does suggest there were agreements to pay additional costs which have not been honoured. She says the arrears pursuant to the judgment are nowin excess of $55,636.21. The respondent submits her expenses for the children are high as result of their desire to participate in sports activities (which include travel), the need for orthodontic treatment, and her desire to enrol one of the children in private school for gifted children. I have reviewed all of the material filed and havedetermined it will not be possible to deal with this matter in asummary way. The respondent alleges the arrears are in excess of $55,636.21 on the basis of the original order. The applicant alleges there were agreements to amend the original order as contemplated by the order and that he has complied fully with the original order and with all amendments thereto. He denies there are any arrears. This cannot be resolved on the basis of theinformation before the Court. The Court must also determine whether or not there has been change in circumstances justifying variation, and the appropriate level of maintenance at this time. I direct there be a trial of the issue: 1. To determine the quantum of the arrears, if any, pursuant to the original order or pursuant to any subsequent agreements found by the Court. 2. To determine whether there has been change in circumstances justifying variation, and if so the appropriate level of maintenance at this time. The action shall be proceeded with in accordance with The Queen's Bench Rules including the right to conduct examinations for discovery if desired and participation in pre- trial conference.
FIAT The Husband alleged that a child support order, originally in the amount of $1,200.00, had been reduced by mutual agreement to $500.00 per month in 1989 when the Wife commenced employment. He applied to vary the order to correspond to the alleged agreement. The Wife denied any agreement to reduce the original order and sought judgment for arrears in the amount of $55,000.00. HELD: On a review of all material filed, the Court concluded that it was not possible to resolve the matter summarily. The Court directed a trial of the issues between the parties.