UFC A.D. 1993 No. 523 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: TWILLA YVONNE DANSEREAU and MICHAEL GERARD DANSEREAU RESPONDENT Twilla Yvonne Dansereau for herself Michael Gerard Dansereau for himself JUDGMENT KLEBUC J. January 20, 1999 [1] There are two applications before the Court under The Family Maintenance Act s.s. 10 ("The Act"): in the first, the respondent, Michael Gerard Dansereau (“Dansereau”), seeks an order providing for the following relief:1. Variation of the child maintenance payable pursuant to the order of F.W. Dickson J. dated July 16, 1993 (the “Order”) by reducing the maintenance payable thereunder from $250.00 per month for each of Braden Thomas Thiessen, and Dorian Brooks Thiessen, (the “Children”) to the amounts specified under the Federal Child Support Guidelines( “the Guidelines”), as adopted by The Act;2. Cancellation of the arrears of $13,273.39 in maintenance payments accrued under the Order;3. Variation of the access provisions of the Order with the view of providing him with greater access to the Children. [2] In the second, the petitioner, Twilla Yvonne Thiessen (“Thiessen”), seeks an order varying the order of D.H. Wright J. dated September 12, 1994 by striking out paragraph 2 thereof. Paragraph 2 provides that: “both parties are restrained from removing the children of the relationship from the Province of Saskatchewan without the written consent of the other party or an order of this Court.” Thiessen did not proceed by way of notice motion nor did she filed appropriate affidavit evidence in support of her application. In the circumstances I was not prepared to hear her application and advised her to apply by notice motion with appropriate supporting affidavits. [3] The material filed by Dansereau confirms that he earned the following gross annual income: 1993 $10,552. 00 1994 $11,685.00 1995 $18,397.00 1996 $33,494.00 1997 $30,548.00 1998 $22,993.00. [4] The Statement of Arrears provided by the Director of Maintenance Enforcement confirmed that the arrears under the Order as of July 8, 1998 were $13,472.39. Dansereau disagreed with the Statement of Arrears and filed with the Court copies of personal money orders payable to Saskatchewan Maintenance Enforcement, receipts allegedly signed by Thiessen and cheques payable to Thiessen that totalled $4,394.00. With respect to the money orders payable to Saskatchewan Maintenance Enforcement, am satisfied that they were credited on the arrears set forth in an aforementioned Statement of Arrears. am further satisfied that Thiessen received child maintenance of $1,584.00 directly from Dansereau which is not accounted for in the Statement of Arrears dated January 7, 1999. In the result the arrears are $11,838.39 and not $13, 472.39 to set out in the Statement of Arrears. [5] The principles of law governing child support for infant children are well-known and specifically provided in The Guidelines and The Act. The principles governing the extinguishment of arrears are canvassed in Currie v. Currie (1989), 1989 CanLII 4470 (SK CA), 74 Sask. R. 52; 18 RF L. (3d) 20 (Sask. C.A.); Merryweather v. Merryweather (1994), 1995 CanLII 10821 (SK QB), 130 Sask. R. (Q.B.). Bulych v. Bulych (1993), 1993 CanLII 8970 (SK QB), 117 Sask. R. 157 (Q.B.). will apply those principles to the matter before me. [6] There are three issues before me: the first is whether the Order should be varied by decreasing the amount payable thereunder; the second issue is whether all or any portion of the arrears under the Order should be extinguished because Dansereau's income was insufficient to discharge his obligations under the Order during specific period; the third is whether the terms of access should be varied. will deal with these issues individually. [7] With respect to the first issue, am satisfied that Dansereau had gross income of $22,993.00 in 1998 and $30,548.00 in 1997. Therefore, the appropriate current child maintenance payable by Dansereau under The Guidelines is $325.00 per month based on his 1998 income and would have been $437.00 per month for the year 1998. Since The Guidelines were not in force prior to 1997, they do not automatically apply to the variation of maintenance payable prior to 1997. [8] With respect to the second issue, am satisfied that Dansereau's annual income for the years 1996 to 1997 was sufficient to enable him to pay the child support under the Order. Consequently, am not prepared to the extinguished or reduce the arrears accrued during such period. With respect to the years 1993 to 1995, inclusive, I am satisfied that he was not in a position to pay the full monthly maintenance provided by the Order and therefore I am prepared to reduce the arrears by ordering that upon the payment of $5000.00 on account of the arrears accrued prior to December 31, 1998, the balance of the arrears accrued prior to such date shall be extinguished. [9] Regarding the issue of access, the parties agree that Dansereau should have access to the children not less than one full weekend per month between 6:00 p.m. on Friday to 6:00 p.m. on Sunday upon two weeks prior notice together plus other periods of time when he is available to attend at Saskatoon for the purpose of exercising access in a manner consistent with the best interest of the children including their need to be available for school. Thiessen assured the Court that she does not wish to restrict Dansereau's access to the children and that access has not been problem in the past. [10] In summary, order, direct and adjudge pursuant to The Act: 1. The order made by Mr. Justice F.W. Dickson of this Court on the 16 day of July, 1993 which provided for payment of maintenance as follows: That the Respondent MICHAEL GERARD DANSEREAU, shall pay to the Petitioner as and for maintenance for the children the sum of $250 per month per child to commence July 15, 1993 and continuing on the fifteenth day of each month thereafter. shall be varied in accordance with this Order. 2. That the Respondent Dansereau's gross annual income is $22,993.00. 3. That the respondent Dansereau of the City of Prince Albert in the Province of Saskatchewan shall pay to the petitioner Thiessen of the city of Saskatoon in the province of Saskatchewan the sum of $325.00 per month for the maintenance of the following children:Braden Thomas Thiessen, born April 27 1990Dorian Brooks Thiessen, born Dec. 19, 1992commencing on the first day of February, 1999 and payable on the first day of each and every month thereafter for so long as they remained children within the meaning of The Act. 4. Upon the respondent Dansereau paying the sum of $5000.00 on account of the arrears accrued under the Order as of December 31, 1998, the unpaid arrears accrued to such date shall be extinguished unless otherwise ordered. 5. That the Maintenance Enforcement Officer for the Province of Saskatchewan shall limit garnishment of the respondent’s wages to $175.00 per month on account of the arrears plus $325.00 per month on account of the current maintenance due. 6. That the respondent and Dansereau shall have access to the children on the terms heretofore stated. 7. No costs are awarded to either party.
In the first application under the Family Maintenance Act the father sought to reduce child maintenance of $250 per child per month to an amount in accordance with the Federal Child Support Guidelines; cancellation of arrears of $13,273.39; and increased access. In the second application the mother sought to have the paragraph in the 1994 order restraining the parents from removing the children from the province without the other's written consent or court order struck. HELD: 1)The mother was advised to apply by notice of motion with appropriate supporting affidavits.  2)The arrears were $11,838.39 as the father had paid money directly which was not accounted for in the Statement of Arrears. Since the Guidelines were not in force prior to 1997, they do not automatically apply to a support payable prior to 1997. The father's income was sufficient for him to pay child support for 1996 and 1997. Arrears for 1993 to 1995 inclusive were reduced as he was not able to pay according to the order at those times. Upon payment of $5,000 the balance of arrears accrued prior to December 31/98 would be extinguished. 3)The father was to pay child support of $325 per month for the two children. Garnishment of his wages by the Maintenance Enforcement Office were to be limited to $175 per month for arrears plus the current maintenance due. 4)The parties agreed the father should have access not less than one full weekend per month upon two weeks prior notice plus when he was available to attend at the city in a manner consistent with the children's best interests and their need to be available for school.