QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 376 Date: 2007 10 22 Docket: DIV. No. 06883 of 2004 Judicial Centre: Prince Albert BETWEEN: TIMOTHY PAUL FEIST and SUSAN ALLYSON FEIST Counsel: R.G. Parchomchuk for the petitioner G.B. Heinrichs for the respondent JUDGMENT KONKIN J. October 22, 2007 [1] On this matter there are two applications brought before the court, the first by the petitioner, Timothy Feist, for an order varying the child support order granted by Mr. Justice R.D. Maher on the 3rd day of August, 2005 by: (a) Varying the child maintenance to reflect the current income of the respondent, such variation to be made as of the 1st day of May, 2007; (b) To order the respondent to pay her proportionate share of s. expenses pursuant to the Federal Child Support Guidelines, SOR/97-175; and (c) Costs of this application fixed in the amount of $1,500. [2] The second application is brought by the respondent, Susan Feist, for an order varying the custody order of Mr. Justice R.D. Maher, dated the 3rd day of August, 2005 by changing the primary residence from the petitioner to the respondent. [3] In dealing with the second application first, the test for variation has been set out in cases such as Talbot v. Henry (1990), 1990 CanLII 2648 (SK CA), 84 Sask. R. 170 (C.A.), where at para. 25, the court states: [25] Thus there is two-stage inquiry: (1) The reviewing judge must determine whether there has been change in the condition, means, needs or other circumstances of the children. In determining whether there has been change, substantially different considerations apply. The parties are not in pari passu, and the person seeking to vary the order bears the onus as described above of demonstrating material change which will adversely affect the needs of the children. If there has been no material change, the inquiry ends there and the order remains. (2) If the applicant has demonstrated material change in the conditions, means, needs or other circumstances of the child, the court must decide whether the material change is such that the best interests of the child require variation of the order. In other words, if there has been material change, then the only consideration with reference to that change is the best interests of the child. [4] In this case, the applicant mother argues that there has now been clear declaration in two separate writings of the oldest child’s desire to have primary residence change from her father to her mother. Further, there is some evidence that the younger child wishes to also live with her mother or, at the least, live in the same residence as her older sister. [5] The other relevant factors in this case are as follows: (a) By interim order dated July 21, 2004, Rothery J. determined that primary residence of the two children, Jill and Kara, would be with the father, Timothy, with liberal access to the mother, Susan. (b) Pursuant to an order of the court, custody and access report in anticipation of trial was prepared and filed with the court on June 10, 2005. This report recommended amongst other things, that should Timothy live in Nipawin and Susan elsewhere, that the principal residence of the girls should remain in Nipawin with their father. (c) Pursuant to divorce judgment of the 3rd day of August, 2005, the parties were awarded joint custody of the two children with primary residence to be with the father, Timothy. [6] Counsel for the father filed number of cases with the court including Bzowey v. Bzowey, 2005 SKQB 12 (CanLII), 136 A.C.W.S. (3d) 1082, and Beutler v. Maki, 2002 SKQB 513 (CanLII), 226 Sask. R. 280. In both the referenced cases, an application had been made to vary custody and access order which had been made five years previous. In both cases, the age of the child in question was similar to the age of the oldest child, Jill, in this application. In Bzowey, the child for whom an order was sought was 11 years of age. In Beutler, the child was 12. [7] In both Bzowey and Beutler, the application was brought on the point that the child in question sought change in the primary care, to have the order varied so that the child could live with the other parent. [8] In Bzowey v. Bzowey, Wilson J. states at paras. 14 It is well established that before court should consider the merits of an application for variation of custody, the court must be satisfied that there has been material change in the circumstances of the child since the last custody order was made (Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), R.F.L. (4th) 291 (Sask. C.A.) cited with approval in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27). It is also well established that change alone is not enough the change must have altered the child’s needs or the ability of the parents to meet those needs in fundamental way. As set out by the Supreme Court of Canada in Gordon v. Goertz, the question is whether the previous order might have been different had the circumstances now existing prevailed earlier. 15 The change in circumstance raised by Mr. Bzowey is that the wishes of Tomas should now be considered by the court, given his age. Mr. Bzowey argues that Tomas was only six years old at the date of the order providing Ms. Orr custody of the children and is now 11 years old. Mr. Bzowey says that the wishes of Tomas can now be considered by court and that, given his age, could be given weight by the court. 16 On the evidence before me am unable to decide whether Tomas has genuine desire to live with his father or whether Ms. Orr’s assessment of the situation is more accurate. There is simply too much conflict on the evidence before me to make determination. In circumstances where the court is faced with such conflict on the affidavits, hearing is often ordered. However, have concluded hearing is not necessary in this matter. Even if accept Mr. Bzowey’s position that Tomas has genuine desire to live with Mr. Bzowey, am not convinced that Tomas’s wish, given his age, can be considered material change in circumstances such as to move to the next stage. 17 In Johns v. Hinkson (1996), 1996 CanLII 6863 (SK QB), 151 Sask. R. 168 (Sask. Q.B.) Gerein J. (as he was then) succinctly states the current approach of the court to the “wishes of the children” issue: [9] There is no principle of law that the wish of child is absolute and in itself determines the issue of custody. Such an approach would ignore the statutory mandate to “. take into consideration only the best interests of the child”. In my opinion the correct approach is to take into account all the circumstances, including the wish of the child. The weight to be given to that wish will depend on number of things including the maturity, experience and age of the child. The last will frequently, but not always, bear some relationship to the child’s maturity. However, in all instances the wish of the child must correspond with what is in his or her best interests if it is to be adopted and put into effect. [9] am of the view that this case sets out the correct principles for consideration of this matter, and the facts in that case are remarkably similar. In each case, the court is asked to make the change based solely on the wishes of the child. There is even evidence from the custody and access report from 2005 that the children, or at least the older child, Jill, expressed similar sentiments about living with her mother, albeit then perhaps on trial basis. It cannot even be strenuously argued that the wishes of the child, Jill, have in fact changed. Those considerations were before the court in the form of custody and access report when the decision was made in 2005. also note from the report of 2005 that there was concern from the assessor that at least Jill may be expressing wishes and desires that may not necessarily be hers but may be made by her in an attempt to express the mother’s wishes or desires. [10] The court should be loathe to make variation order solely on the expressed wishes of child of 11 or 12 years of age without some evidence as to why that current expression of interest has been stated. It may well be that the child truly does wish change. It may also be that the child, as was referred to in the custody and access report, may be simply reflecting the views and therefore the pressures placed on that child by the non-custodial parent. If court is to make variation order based solely on the current statement of child of this age, then is the court required to make that variation every time that child changes his or her mind and writes different letter. [11] In the Beutler v. Maki case, the court found that the child truly had changed his wish from the time that the order had been made some five years previous. The court found that this was fresh desire to change residence from one parent to the other. As Dickson J. stated at para. [27] The father therefore bears the onus of demonstrating that Taylor’s wish to live with him is material change in the condition, needs or other circumstances of the boy which has adversely affected him. am hard put to recognize the mere expression of Taylor’s wish, no matter how many adjectives counsel may attach to it, to be material change in his condition or needs that will adversely affect his best interest if not addressed by an order vesting custody in his father. [12] Likewise in this case, no evidence has been put forward about the negative impact of the continuation of the current order. The simple fact is the applicant comes to court arguing that the order should be changed because the oldest daughter at least wishes it to be changed, and because she is mature and thoughtful child for her age. [13] With all respect, cannot agree. agree with cases such as Bzowey and Beutler to conclude that there has been no material change demonstrated. In this case, there is strong indication that at the time the decision was made in 2005, Jill had expressed desire to try living with her mother. She now expresses this desire in stronger terms, but it is not change. [14] These children were born, have grown up, and continue to live, go to school and have friends in Nipawin. There is no information before the court to suggest that this is no longer in the best interests of these children. [15] I find that as no material change has been demonstrated, this application must be dismissed. [16] With regard to the application by the father for change in child support, as the mother in her affidavit material confirms that she has in fact commenced as of June 2007, to pay support based on her new income, and as there is agreement between the parties, each from their own affidavit material, that that current support level should be $619 per month, the order of Mr. Justice Maher of August 3, 2005, shall be amended to reflect that the gross annual income of the respondent, Susan Allyson Feist, is determined to be $44,303.81. The order shall further be varied to increase the amount of child support being paid by Susan from $559 per month to $619 per month, and the proportionate share of s. expenses shall raise from 41% to 43% for Susan. [17] There shall be no order as to costs in this matter. J. D.B. KONKIN
The respondent applies for an order varying the custody order by changing the primary residence from the petitioner to the respondent. HELD: 1) The present circumstances are remarkably similar to the circumstances in Bzowey v. Bzowey, 2005 SKQB 12. In both cases, the Court is asked to make the change based solely on the wishes of the child. There is even evidence from the custody and access report from 2005 that the children, or at least the older child, Jill, expressed similar sentiments about living with her mother. It cannot even be strenuously argued that the wishes of the child, Jill, have in fact changed. Those considerations were before the Court in the form of the custody and access report when the decision was made in 2005. 2) The Court should be loathe to make a variation order solely on the expressed wishes of a child of 11 or 12 years of age without some evidence as to why that current expression of interest has been stated. It may well be that the child truly does wish a change. It may also be that the child, as was referred to in the custody and access report, may be simply reflecting the views and therefore the pressures placed on the child by the non-custodial parent. 3) No evidence has been put forward about the negative impact of the continuation of the current order. There is no information before the Court to suggest that the current situation is no longer in the best interests of the children. No material change has been demonstrated. The application is dismissed.