J. F.L.D. A.D. 2000 No. 467 J.C. S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON RESPONDENT Jacqueline Lane for the petitioner Brendan W. Pyle for the respondent JUDGMENT R. S. SMITH J. June 4, 2003 [1] The parties have three children aged four to eight years. On December 13, 2002 an order issued directing that the respondent father pay child support in the amount of $454.00 per month. [2] Since the issuance of the order the respondent has been, for the most part, unemployed by reason of health problems and, as a result, arrears of child support are constantly accruing. [3] The respondent is involved in litigation against the Government of Canada wherein he seeks damages for abuse he allegedly suffered while attending an Indian Residential School. Affidavits indicate that examinations for discovery are complete but the respondent’s solicitor handling that claim advises no offer to settle has been received. [4] The petitioner brings an application seeking an order that: (a) the Respondent, [M.E.H.], and his counsel are required to report to the Court forthwith as to the potential [sic] are required to advise the Court within three days of the lawsuit involving the Respondent’s claim for his time at Gordon’s residential within three days of the said lawsuit being settled; (b) the Respondent, [M.E.H.], is hereby restrained from disposing of any money that he has received or may receive in relation to the lawsuit without further Order of the Court with the exception of paying any and all legal fees and disbursements plus taxes owing to his solicitors. [5] The petitioner bases her application on the ground that if the respondent receives damages from the Government of Canada that may well be his only significant asset and, more to the point, the only asset that can be used to meet the respondent’s outstanding and ever accruing child support obligations. [6] An identical application was thoughtfully canvassed by Pritchard J. in Anderson v. Anderson (1999), 1999 CanLII 12597 (SK QB), 184 Sask. R. 125 (Q.B.). [7] In Anderson, as in this application, the section relied upon by the petitioner is s. of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 (the “Act”). Section provides: 8(1) On application by claimant, the Court of Queen’s Bench may make an interim or final order restraining the disposition or wasting of assets that would impair or defeat claim pursuant to this Act. The court concluded in Anderson that it was not necessary to find predilection or intention on the part of the respondent to waste assets in order to issue an order under s. 8. The threshold to be met in such an application was simply that the disposition or wasting of the asset would impair or defeat claim under the Act. Pritchard J. opines at para. 11 of Anderson: [11] When respondent has only one asset that could reasonably become source of satisfying claim under the Act, not only his or her dependants, but society as whole has an interest in ensuring that the asset will be used first and foremost for such purpose. If the asset is not available for claim under the Act, then it is society who will inevitably assume respondent’s responsibility for his or her dependants.... [8] Following that analysis, Pritchard J. then granted an order restraining the first $40,000.00 of the funds to be received by the respondent. In Anderson the court concluded s. of the Act only authorizes restraining orders against those against whom claim under the Act may be made and therefore made no order vis-a-vis the respondent’s counsel. [9] In this matter the solicitor for the respondent asserts that Anderson is wrongly decided. Counsel for the respondent argues that the order in Anderson was made against money but money did not exist at the time of the order. At the time the order issued there was only cause of action or chose in action. The respondent asserts that the only order that could be made with respect to chose in action is that it not be assigned by the respondent. [10] I must respectfully reject the respondent’s analysis and confirm that I am in full accord with the conclusion in Anderson that an order can be made with respect to damage awards even though, at the moment of the order, there is only a cause of action in existence and no precise amount of damages are known. [11] There is no question that a cause of action or chose in action is property and thus the subject of an order of s. 8 of the Act. It is of no consequence that the order may direct itself to the property when it takes another form i.e., money. To adopt any different analysis would be to unnecessarily limit the remedial application of s. 8. [12] The respondent takes exception to the petitioner’s request that there also be an order requiring him to give notice to the petitioner as to when the respondent’s claim is settled. The respondent grounds his objection that s. provides no authority to order the respondent, let alone third party, to report to the petitioner any sort of information. [13] am of the opinion that the respondent’s position is unreasonably narrow. The purpose of s. is to ensure that property is not wasted and thus impair or defeat claim under the Act. Given that overarching purpose it is only logical that orders can be made by the Court that are ancillary or natural incident of the primary order preserving the property. Such orders can involve third parties being required to take certain steps if they are inextricably linked to the property being preserved. [14] In short, it is not offensive to direct that the respondent’s counsel, at the time of such settlement, if there is such settlement, pay monies into Court. Such an order does not impact the rights of the respondent’s counsel but merely imposes clerical task which is natural incident to the preservation of the asset in debate. [15] Accordingly, it is ordered that in the event the respondent receives a settlement in his law suit against the Government based on his claim of abuse suffered at the Indian Residential School, the first $50,000.00, after payment of reasonable solicitor fees and disbursements, shall be paid into Court so that the parties might speak to the distribution of same. It is further ordered that the respondent’s counsel, the Merchant Law Group or any new counsel shall pay the settlement proceeds into Court, in accordance with the foregoing. [16] The petitioner shall have her costs of this application which set at $350.00.
The father was unemployed by reason of health problems and was in arrears on the December 13, 2002 child support order for $454 per month. He was seeking damages against the federal government for alleged abuses suffered while attending an Indian Residential School. The mother sought to attach the possible damage award for child support. HELD: The first $50,000 of any settlement proceeds, after payment of reasonable solicitor fees and disbursements, shall be paid into Court by his counsel. The Court agreed with the conclusion in Anderson that an order can be made with respect to damage awards even though, at the moment of the order, there is only a cause of action in existence and no precise amount of damages are known. There was no question that a cause of action or chose in action is property and thus the subject of an order under the Family Maintenance Act s.8. It is of no consequence that the order may be in another form such as money. To adopt any different analysis would be to unnecessarily limit the remedial application of s.8. Given the overarching purpose to ensure property is not wasted, thus impairing or defeating a claim under the FMA, it was logical orders can be made by the Court that are ancillary or a natural incident of the primary order preserving the property. The mother was awarded costs of the application set at $350.