J. 2004 SKQB 62 D.I.V. A.D. 1998 No. 003884 J.C. M.J. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF MOOSE JAW BETWEEN: JANICE LEE (OVERS) PETERSEN and GARY JOSEPH OVERS RESPONDENT T.G. Graf, Q.C. for the petitioner D.M. Chow for the respondent FIAT MATHESON J. February 20, 2004 [1] When the judgment, dated December 14, 1999, was amended to provide that the primary residence of the child, Cassie, should be with her father, the question of the payment of maintenance by the mother was adjourned pending fulfilment of the requirement that the mother, Janice Petersen, produce all information relating to her ability to pay maintenance, and for her examination by the respondent to determine her income. [2] The examination has been completed, and by agreement of counsel the questions to be resolved are whether Janice Petersen has produced all relevant financial information, and whether a trial should be directed as to the amount of maintenance payable by her. FINANCIAL INFORMATION [3] When the foregoing order was made on June 4, 2003, Janice Petersen was engaged in farming enterprise with her father, who owned, or leased all of the farmlands and equipment involved in the enterprise. Janice Petersen testified that the arrangement entailed her working on the farm with her father. She would be charged 20 percent of the expenses and would receive 20 percent of the profits. [4] Janice Petersen has produced her income tax returns, prepared by her accountant. But counsel for Mr. Overs has complained that “Mrs. Petersen has no farm/cattle income or expense banking accounts of her own, she has no permit book and offers nothing to substantiate her annual income from the farming and cattle operation with her father other than her annual tax returns”. Counsel for Mr. Overs has asserted that Janice Petersen should be required to produce her father’s farming accounts. [5] It is difficult to comprehend exactly what an examination of Janice Petersen’s father’s books of account would reveal which would assist Mr. Overs in establishing that Janice Petersen has earned more income than the amount revealed in her income tax returns. Although counsel for the respondent has stated that Janice Petersen “and her family members continue to shelter financial information relevant to these proceedings”, there is not shred of evidence to support that statement. [6] It has also been submitted that the financial records of the trucking corporation, owned by Janice Petersen’s husband, should be disclosed. The reason therefor is that “counsel for Mr. Overs cannot effectively determine the amount of income that should be attributed to Mrs. Petersen from the numbered corporation”. [7] Although it has been asserted that Janice Petersen “performs significant duties for the numbered corporation but draws no income from it”, Janice Petersen testified that she devoted but one hour per month performing such duties. When one considers that the corporation owns but one truck, operated by Mr. Petersen, from which all of the income of the corporation is derived, the suggestion that income from the corporation should be imputed to Janice Petersen is nothing less then ludicrous. [8] The fact that Mr. Petersen’s income is deposited into joint account with Janice Petersen is no different than occurs in many households. Because spouses maintain joint bank account, into which the breadwinner deposits his or her earnings, does not justify imputing portion of that income to the homemaker spouse. [9] Counsel for Mr. Overs also seeks financial information relating to Mr. Petersen’s ranching operations, where the Petersens resided. Janice Petersen looked after the ranch while Mr. Petersen was operating the truck. It has been submitted that income should be imputed to Janice Petersen from the ranching operation. Whether that submission has any more merit than the other assertions by counsel for Mr. Overs need not be canvassed, because Mr. Petersen could not, because of the recession in the cattle business, continue his trucking operation from the ranch; the Petersens have moved their residence to Lloydminster. Janice Petersen is therefore not at the present time looking after the ranch nor engaged in farming with her father. [10] Neither Janice Petersen’s father, nor Mr. Petersen, are parties to these proceedings. To require them to produce their financial records, in the absence of even the slightest evidence such production would disclose anything which would in any manner assist in determining the amount of child maintenance payable by Janice Petersen, would be totally unjust. TRIAL OF THE ISSUE [11] Counsel for Mr. Overs has stated “the only way to obtain the full and complete picture of the petitioner’s income and entitlement to income on an annual basis is to hear from witnesses at viva voce hearing”. [12] On the basis of the material presently available, the only benefit which would be derived from ordering trial of the issue as to the amount of child maintenance to be paid would be to enhance counsels’ fees. The parties can ill afford such expense, and they would be poorly advised to pursue such course. [13] Both applications are dismissed, with costs to Janice Petersen in the amount of $500.00. [14] The application for calculation of the amount of child maintenance is returned to the Chamber list for March 8, 2004.
FIAT: The issue to be resolved was whether the petitioner had produced all relevant financial information in order for the Court to determine the amount of maintenance to be paid by her. HELD: The application was dismissed with costs in the amount of $500 to the petitioner. Neither the petitioner's father nor the petitioner's husband was a party to the proceedings. To require them to produce their financial records, in the absence of even the slightest evidence such production would disclose anything which would in any manner assist in determining the amount of child maintenance payable by the petitioner, would be totally unjust.