Court of Appeal for Saskatchewan Docket: CACV2634 Citation: Prescesky Prescesky, 111 Date: 2015-10-26 Between: Daniel Steven Prescesky Appellant (Petitioner) And Mandy Lee Prescesky Respondent (Respondent) Before: Lane, Jackson and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Whitmore On Appeal From: 2014 SKQB 334 (CanLII), Battleford FLD Appeal Heard: 27 May 2015 Counsel: Karina Jackson for the Appellant Donnon F. Revering for the Respondent Jackson J.A. I. Introduction [1] This is an appeal from the decision of Turcotte J. on October 16, 2014, ordering Daniel Prescesky to pay retroactive child support to his former wife, Mandy Lantz, in the amount of $21,645 and costs in the amount of $1,500 (Prescesky v Prescesky, 2014 SKQB 334 (CanLII), 456 Sask R 306 [Prescesky]). [2] Turcotte J. ordered retroactive child support for the period from January 1, 2009, to August 31, 2012, inclusive. Importantly, on May 12, 2011, the parties agreed to fix support by varying previous support order thus giving rise to the major issue on this appeal, notably, whether Turcotte J. had the authority to order the payment of retroactive support both before and after that date. [3] By way of background, Daniel Prescesky and Mandy Schmidt were married on November 4, 1995. They have two children Rylee Prescesky (18 years old) and Chase Prescesky (16 years old). The parties separated in March of 2005. [4] They were able to settle their differences at the outset of their break-up. On June 29, 2006, Kreuger J. issued Consent Divorce Judgment ordering that the parties shall have joint custody of the children who will live with the mother. On the same day, Kreuger J. also issued Consent Child Support Order [2006 Consent Child Support Order]. The relevant terms of that order are as follows: 3. The Petitioner [Mr. Prescesky] shall pay to the Respondent [Ms. Prescesky] for the support of the Children the sum of $1,220 to be paid on the 1st day of each and every month commencing June 1, 2006, and continuing thereafter until child is no longer Child within the meaning of the Divorce Act. 4. The Petitioner and the Respondent intend that child support payable in clause above shall include any babysitting expenses incurred by either party. 5. On or before June in each year the parties shall exchange T-4 Slips, Tax Returns and Notices of Assessment. The parties agree that they will endeavor to adjust from year to year, the amount of child support payable to reflect the amount payable pursuant to the Federal Child Support Guidelines. (pp. 1–2) It should be noted that clause of the 2006 Consent Child Support Order requires the parties to exchange financial information and to endeavour to make adjustments, but it does not specify the effective date of any such adjustments. [5] Payments continued in accordance with this order until October of 2008 when, while living in Alberta, Mr. Prescesky was arrested for drinking and driving. He received an immediate driver’s licence suspension, which affected his ability to work. As result, he moved back to Saskatchewan to work on his father’s farm where he was making $1,500 month. He applied to the Court of Queen’s Bench at Battleford to vary the 2006 Consent Child Support Order to reduce the amount of support to the children of his former marriage. In his affidavit, he swore that he anticipated his annual income would be $18,000 only. [6] By 2008, the parties had moved on with their lives in other ways. Both had remarried and started other families. Mr. Prescesky married Trisha (maiden name not shown in the record) and Ms. Prescesky married Darcy Lantz and assumed his last name. In May of 2008, Mr. Lantz was diagnosed with rare form of cancer. In October of 2008, he underwent his first major surgery, becoming progressively more ill during the time span covered by this matter, ultimately dying of his illness in August of 2012. [7] Smith J. heard the first variation application. He allowed Mr. Prescesky’s variation application. In doing so, he set Mr. Prescesky’s annual income at $55,000, which reduced his child support obligations from $1,220 to $769 month commencing December 1, 2008 [2008 Variation Order]. Smith J. further ordered Mr. Prescesky to deliver his income tax information to Ms. Lantz by June 30 of every year, commencing June of 2009, but did not make any other change to the 2006 Consent Child Support Order. [8] Just one month later, in January of 2009, number of factors resulted in Mr. Prescesky deciding to resume employment in Alberta. The drinking and driving charges were stayed and Mr. Prescesky regained his licence. By February of 2009, he had regained good employment in Alberta and was earning roughly what he had been earning in 2008. Nonetheless, he continued to make payments in accordance with the 2008 Variation Order in the amount of $769 per month. [9] On February 17, 2011, Ms. Lantz served Mr. Prescesky with Notice to Disclose pursuant to the Queen’s Bench Rules requiring him to provide her and the Court with financial and property statements. [10] In March of 2011, Mr. Prescesky, in the course of an access exchange, asked to meet with Ms. Lantz. While what was said and done on that occasion was matter of testimony at the trial, it is uncontested that Mr. Prescesky told Ms. Lantz he was financially strapped and the most he could afford to pay for child support was $950 per month, which corresponded to an income of $67,000 based on the Alberta tables (Prescesky, para. 27). [11] Thereafter the lawyers exchanged letters. On March 15, 2011, counsel for Mr. Prescesky sent Ms. Lantz’s counsel financial information, which included his 2008 and 2009 income tax returns and assessments, his 2010 T4 Slip and pay stubs up to and including February 9, 2011: (a) 2008 Income Tax Return and Reassessment confirming income of $82,728.25; (b) 2009 Income Tax Return and Assessment confirming income of $78,304.81; (c) 2010 T4 slip showing income of $89,605.78; and (d) pay stubs for the period ending January 12, 2011, January 26, 2011, and February 9, 2011, showing taxable earnings for the year to date at $15,166.20. The pay stubs were accompanied by letter dated March 8, 2011, stating the following: Daniel has been full-time, permanent employee of Coal Valley Resources Inc., Coal Valley Mine, since February 19, 2009. He is Temporary Backhoe Operator in our Pit Operations Department. Should the temporary bid end, he would revert back to his original position of Coal Rock Hauler. His current hourly rate as Backhoe Operator is $35.19. (As Coal/Rock Hauler he would earn $31 .77 an hour). He works an average of 42 hours per week and earns base annual salary of $76,854.96 (or $69,385.68). His base salary does not include premium time paid at time and half for hours of every shift; overtime at double time, or shift premiums for nights and weekends. He successfully passed his probationary period and prospects for continued employment are good. (Appeal Book, p. 101a) [12] On April 11, 2011, counsel for Ms. Lantz wrote to counsel for Mr. Prescesky enclosing Variation Order with Ms. Lantz’s consent endorsed on it. The terms of the Variation Order “estimated” Mr. Prescesky’s income at $67,000 annually, and adjusted his child support payment corresponding to $950 month until further order of the Court. Notably, counsel for Ms. Lantz stated the following in his letter: “It should be noted that our client, in the spirit of cooperation, is foregoing approximately $7250 in arrears of child support that are potentially owing to our Client if our Client pursued retroactive order” (Appeal Book, p. 125a). No mention was made of the forbearance to sue for arrears in the amount of $7,250 in the Variation Order. [13] Mr. Prescesky’s counsel then filed the Variation Order with the Court of Queen’s Bench, which was issued under the direction of Allbright J. on May 12, 2011 [2011 Variation Order]. No financial information was filed with the Court. [14] On December 2, 2011, Mr. Prescesky applied to vary the 2006 Consent Child Support Order and the 2011 Variation Order by making his home the primary residence of Chase Prescesky and varying the amount of support he would have to pay accordingly. In support of his application, Mr. Prescesky filed financial statement showing employment income, estimated, for 2011 in the amount of $132,000. [15] In July of 2012, Ms. Lantz applied to vary the 2008 Variation Order and the 2011 Variation Order claiming arrears dating from January 1, 2009. [16] On September 6, 2012, Rothery J. made an interim order declaring Mr. Prescesky’s current annual guideline income to be $129,495 and directing Mr. Prescesky to pay interim child support to Ms. Prescesky in the amount of $1,822 per month for the two children, both of whom remained in her care. Rothery J. directed the issue of retroactive child support to pre-trial and trial. [17] The issue of ongoing child support from (and after) September 1, 2012, was resolved by agreement of the parties prior to the trial. At some point, Mr. Prescesky abandoned his request to change the primary residence of Chase Prescesky, leaving the issue of retroactive child support as the only issue for trial. [18] When the dust settled and all figures were known, this is the total amount of possible arrears for the period from January 1, 2009–August 31, 2012 (inclusive): Daniel’s Income Amount Paid Per Month Guideline Amount Payable Per Month Total Arrears (year) 2011 (January to March) 2011 (April to December) 2012 (January to September) $35,817 (Appeal Book, p. 98a) [19] Ultimately, brief trial took place to consider whether Ms. Lantz was entitled to retroactive child support for the period from January 1, 2009, to and including August 31, 2012, and, if so, in what amount. III. Decision of the Trial Judge [20] At trial, Turcotte J. found Mr. Prescesky owed retroactive child support to Ms. Lantz. In making this order, Turcotte J. determined that the subsequent orders were all variations of the 2006 Consent Child Support Order and each order was made subject to further order from the court. Turcotte J. referred to the disclosure requirements under the initial child support order. According to these obligations, Mr. Prescesky had positive obligation to supply Ms. Lantz with his financial information and any change in circumstances that would affect his child support payment: “On or before June in each year the parties shall exchange [tax information]. The parties agree that they will endeavor to adjust from year to year, the amount of child support payable to reflect the amount payable pursuant to the Federal Child Support Guidelines” (2006 Consent Child Support Order, para. 5). [21] Turcotte J. did not accept Mr. Prescesky’s testimony that he routinely gave Ms. Lantz his financial information as he was required to do. Instead, Turcotte J. found he only gave this information on three occasions: (i) in accordance with these court proceedings; (ii) at the 2011 meeting between the two of them in Mr. Prescesky’s truck; and (iii) through his lawyer prior to the 2011 Variation Order. He found the failure to inform Ms. Lantz of the 2009 material changes and to have adjusted his child support was “blameworthy conduct within the meaning established by D.B.S.” (Prescesky, para. 47: D.B.S. S.R.G., 2006 SCC 37 (CanLII), [2006] SCR 231 [D.B.S.]). [22] In 2011, Mr. Prescesky persuaded his former wife that monthly child support order of $950 per month was all he could afford. The difference between this amount and his actual 2011 income were quite different. The size of this discrepancy was another factor suggesting full retroactive review of Mr. Prescesky’s child support obligations from 2009. [23] Turcotte J. determined that Mr. Prescesky’s actual income in 2009, 2010, 2011 and 2012 was in fact $78,305, $89,750, $128,746 and $134,808 respectively. According to the Federal Child Support Guidelines, SOR/97-175 [Guidelines], he underpaid in every year. Based on these numbers, he concluded Mr. Prescesky was supposed to have paid child support in the amount of $65,808 from the period of January 1, 2009, through August 30, 2012. Instead, he paid $36,913 only, leaving shortfall of $28,895. [24] While both parties state they are dealing with financial hardship, Turcotte J. found, combined with his wife’s income and minus their expenses, Mr. Prescesky’s household should have an annual surplus of over $20,000. [25] Ms. Lantz was prepared in 2011 to forgo $7,250 in child support arrears and this amount was deducted from the shortfall by Turcotte J. out of fairness. [26] Turcotte J.’s order required that Mr. Prescesky pay Ms. Lantz retroactive child support in the amount of $21,645 paid in installments of $601.25 on the 15th day of each month for 36 months. These retroactive payments were to be in addition to Mr. Prescesky’s child support obligation arising from Rothery J.’s 2012 variation order of $1,822 on the first day of every month subject to further variation from the court. Both parties were ordered to give each other their financial information by July 1st of every year. Costs were awarded to Ms. Lantz in the amount of $1,500. [27] Mr. Prescesky appeals to this Court from the order of Turcotte J. Analysis [28] Mr. Prescesky submits that Turcotte J. erred: (i) by varying the 2011 Variation Order, which he submits was a final order issued by consent of the parties in accordance with their prior agreement; (ii) by varying the 2011 Variation Order without first finding a material change in circumstances; (iii) by misapprehending the facts when he found Mr. Prescesky did not advise Ms. Lantz of changes to his circumstances; and (iv) by misapprehending the facts by failing to find unreasonable delay. [29] These arguments form the issues on appeal, which may be stated as follows: (a) Did Turcotte J. have the jurisdiction to vary the 2011 Variation Order? (b) Was it necessary to find a material change in circumstances before the 2011 Variation Order could be varied? (c) Did Turcotte J. err by finding Ms. Lantz had not been advised of changes in circumstances? (d) Did Turcotte J. err by failing to find unreasonable delay? [30] In passing, should note that Mr. Prescesky’s counsel raised in oral argument potential additional ground of appeal, notably that if her client were ordered to pay arrears, the adjustment should be made as of the date the financial information was to be exchanged rather than at some earlier time. Given the wording of the 2006 Consent Child Support Order, which does not direct that an adjustment should be made as of particular date, that issue does not arise in this appeal. A. Did Turcotte J. have the jurisdiction to vary the 2011 Variation Order? [31] Mr. Prescesky and Ms. Lantz each filed an “Application for Variation” with the Court of Queen’s Bench. Mr. Prescesky’s application requested the following: (i) to vary the 2006 Consent Child Support Order so as to vary the primary residence of Chase from the primary care of Ms. Lantz to his care; and (ii) to vary the 2006 Consent Child Support Order and the subsequent child support orders to take into account the change in custody. Ms. Lantz also filed an “Application for Variation” to vary the 2006 Consent Child Support Order and the subsequent orders both prospectively and retroactively. Neither party indicated under what authority they asked the Court of Queen’s Bench to make the requested orders. [32] On the question of his authority to vary the 2011 Variation Order with respect to arrears arising prior to it issuing, Turcotte J. wrote the following: [43] The 2008 variation order permitted Mandy to pursue the issue of imputation of income to trial. It is clear that order was not intended to be final order and was subject to further determination by the Court. The 2011 variation order varied the interim order granted December 4, 2008. Neither the 2008 variation order nor the 2011 variation order varied the provision of the child support order that the parties would endeavour to adjust annually the child support payable by Daniel based on their annual exchange of financial information and the amount payable under the Guidelines. Both orders were made subject to further order of the Court. Accordingly, this Court retains jurisdiction to review Daniel’s child support obligations in the context of all of the evidence presented at the trial and determine the issues based on that evidence. (See: Hall Hall, 2011 SKCA 86 (CanLII), 337 DLR (4th) 89, and the cases cited therein at paragraph 1.) (Emphasis added, Prescesky) [33] Mr. Prescesky argues that Turcotte J. erred by treating the 2008 Variation Order as an interim order and the 2011 Variation Order as something other than final order—and then proceeding to vary it. His counsel asserts that the 2011 Variation Order was an un-appealed final order covering past arrears and was based on projected salary of approximately $120,000. Further, he argues that the Court could not “go-behind” the 2011 Variation Order as it was issued by consent in accordance with the parties’ agreement. The parties had an agreement and the Court sanctioned it. [34] As support for these propositions, Mr. Prescesky relies upon two streams of authority. First, he asserts that Turcotte J. could not overturn decision of judge of the same court, dealing with the same lis. In this regard, he refers to Procknow Procknow (1985), 1985 CanLII 2767 (SK QB), 42 Sask 19 (QB) [Procknow] decision wherein McIntyre J. wrote the following: [5] agree basically with the solicitor for the respondent that this motion is waste of the court’s time, and that it is in conflict with the consent order of Mr. Justice W. Matheson and have no right to make change to any order of brother judge, unless there is agreement by counsel for the party, and again have no right to sit in appeal on any order granted by brother judge. If the applicant did not agree with the order of February 5, 1985, then he should not have instructed his solicitor to consent to it. (Emphasis added) [35] Second, he argues that in the area of family support orders, the courts draw a clear distinction between interim orders, which can be varied on an interim basis as a matter of jurisdiction, and final orders. In support of these arguments, Mr. Prescesky points to this comment in L.R. D.T. (1998), 1998 CanLII 13814 (SK QB), 178 Sask 115 (QB): [3] Any variation results in final order or determination. Often an application to vary final order is dealt with on the basis of affidavit evidence if, following the approach in Dufour v. Dufour, [1995] S.J. No. 293 (Q.L.) (Sask. Q.B.), the chamber judge is able, on the affidavit evidence, to find the material facts necessary to disposition of the application. Similar statements are made in Gaspers Gaspers, 2007 SKQB 353 (CanLII) at paras 10–11 (aff’d 2008 SKCA 94 (CanLII)) and Malinowski Malinowski, 2010 SKQB 27 (CanLII) at para 12, 349 Sask 210 [Malinowski]. [36] In my view, it is important not to confuse these two lines of authority. Procknow is good law, but it relies on common law principles and does not necessarily apply to child support orders. Whether the Court can vary an interim or a final order on an interim basis for child support is governed not by common law principles, but by the Divorce Act, RSC 1985, c 3 (2d Supp). [37] Sections 15.1 and 17 of the Divorce Act confer the jurisdiction to make and vary child support order on the Court of Queen’s Bench in this Province. For clarity, the applicable Divorce Act provisions are as follows: Definitions 2(1) In this Act, “child support order” means an order made under subsection 15.1(1); “support order” means child support order or spousal support order; Child support order 15.1(1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to pay for the support of any or all children of the marriage. Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). Terms and conditions 15.1(4) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. Order for variation, rescission or suspension 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (b) custody order or any provision thereof on application by either or both former spouses or by any other person. Terms and conditions (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. Factors for child support order 17(4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (Emphasis added) [38] The differences between s. 15.1 and s. 17 of the Divorce Act raise some questions as to the proper scope of an application under each section. This appeal concerns the question of judge’s authority to vary final order pursuant to s. 17 on an interim basis. The question arises in this appeal because Turcottte J. found the 2008 Variation Order to be an interim order, which has implications for the interpretation of the 2011 Variation Order, and he clearly varied the 2011 Variation Order. [39] Turning first to the question of the authority to vary final order on an interim basis pursuant to s. 17, this Court in brief oral reasons held in Frey Frey (1987), 1987 CanLII 4734 (SK CA), RFL (3d) 154 (Sask CA) at paras 5–6 [Frey] that “there is no power” to grant “interim maintenance” on an application pursuant to the equivalent of s. 17 of the Divorce Act, but judge could make an order to “relieve injustices.” Since Frey, it has become accepted that the Court in Frey held that there is no expressly legislated power to vary an interim order: McRann McRann, 2005 SKQB 207 (CanLII) [McRann] at para 12. [40] Some courts in Canada have not followed Frey (see, for example, Yeo Yeo (1998), 1998 CanLII 27672 (PE SCAD), 42 RFL (4th) 418 (PEISC (AD) [Yeo]) and commentary in Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada in Canada, 2015 (Toronto: Irwin Law, 2015) at 502. As result, the Court of Queen’s Bench has over the past 10 years or so been confronted by similar arguments as those being made by Mr. Prescesky on this appeal; that is to say, the courts lack the authority to vary final order on an interim basis (see Keogan Weekes, 2005 SKQB 114 (CanLII) at paras 19–33, 263 Sask 309; McRann at paras 12 and 13; Lepage Lepage, 2006 SKQB 18 (CanLII) at paras 32–34, 283 Sask 1; and Ford Ford, 2011 SKQB 349 (CanLII) at para 4). [41] We have not been asked to overrule Frey, nor do think it is necessary to consider doing so. While recognize the debate in the jurisprudence as to the proper interpretation of ss. 15.1 and 17 of the Divorce Act, some observations are in order. First, much of the jurisprudence taking different approach predates the Supreme Court of Canada’s explication of the proper method of statutory interpretation in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] SCR 27 at 40–41 [Rizzo]. Following the modern approach to statutory interpretation, the words of provision must be “read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo, p. 28). note as well that the jurisprudence that questions Frey is founded on case authority that predates such authorities as D.B.S., which interpret the Divorce Act in accordance with the modern approach to statutory interpretation. [42] Second, ss. 15.1 and 17 apply to spousal support orders as well as child support. In that regard, it is significant that Yeo is spousal support case. It relies on the “clear” words of the statute and the need for “finality” in spousal support orders. It also leaves open the possibility of different interpretation for child support orders: [20] The Divorce Act contemplates that to the extent possible matters of custody, access and support should be addressed with the objective of finality in mind. With these issues the objective is not always achievable; however, where finality has been achieved in the form of final limited-term order, it was the clear intention of Parliament that any variation of that order would be dealt with once at final hearing where the complex threshold issues may be addressed fully. make this statement subject to whatever parens patriae jurisdiction may exist to vary orders respecting custody, access and child support on an interim basis, an issue which is not before the court. (Emphasis added, Yeo) [43] But it is well-recognized that child support orders are seldom “final,” in the sense of addressing rights in permanent way. The determination of divorce can be said to be final, but corollary relief for children seldom is. Legislation cannot address every question that will be raised. In the area of divorce, where law and procedure are linked, Parliament can only draft in broad principles, leaving the process by which orders are made up to the provinces and territories to resolve. [44] Third, courts have for some time interpreted s. 15.1 as allowing for successive interim orders: Spytkowsky Spytkowsky, 2009 SKQB 292 (CanLII) at para 18 [Spytkowsky] and Malinowski at para. 12. Such authority is said to rest on inherent jurisdiction: see Julien D. Payne and Marilyn A. Payne, in Canadian Family Law, 6th ed (Toronto: Irwin Law, 2015) at p. 487. With respect, find recourse to “inherent jurisdiction” to be questionable, preferring instead to construe the legislation in question, but take no issue with the conclusion that interim orders made under s. 15.1 may be varied on an interim basis. Again, nothing in the language of s. 15.1 specifically authorizes the making of multiple interim orders, but the application of the principles of statutory interpretation support the conclusion nonetheless. In making this comment, am addressing the authority to make more than one interim order under s. 15.1(2), not the circumstances under which successive orders should be made. [45] Fourth, generally speaking, interim orders are used for “interim” matters. Sandomirsky J. wrote the following in Jacobson Jacobson, 2011 SKQB 402 (CanLII): [1] Counsel is reminded that interim relief in family proceedings is generally to be sought in order to: 1. Manage the process or procedure of the action; 2. Preserve assets and keep the parties “whole” until trial; and 3. provide interim relief, in the form of support/maintenance order, use and preservation of family property, financial management pending settlement or trial, and to ensure adequate parenting. [2] Interim relief is not generally available to resolve issues in contest. trial or pre-trial allows for more thorough and judicious resolve of the issues. Generally, most issues should not be resolved in chambers upon conflicting affidavit evidence. [46] While that is the general rule, it is also correct that substantive issues are being resolved in Chambers, with the possibility that the decision will be revisited at later date. For example, in Graham Tomlinson, 2010 SKCA 101 (CanLII) at para. 27, 324 DLR (4th) 156, this Court held that retroactive child support may be ordered on an application for interim child support when the facts and law are clear and there is no triable issue. Such an award remains an interim order and, in principle, subject to variation, but once the issue of retroactive support is concluded in Chambers in clear case, the parties may find it unnecessary to further address the issue by way of pre-trial conference or trial. On the other hand, in Malinowski, McIntyre J. ordered retroactive support on an application in Chambers, making it clear that the resulting order would be final order (see paras. 12 and 19). [47] Fifth, the move away from the formalism of another era can be explained in terms of access to justice, which Wilson J. explained in Spytkowsky: Although there is an expectation that parties will eventually proceed through the various processes and obtain final orders or judgments regarding custody and child support, it is not unusual for parties to rely, for years, on an interim order. It is certainly preferable for parties to finalize the custody and child support issues either at the time of the divorce judgment, or within reasonable period of time thereafter. However, many do not …. In Spytkowsky, for example, it would have been costly to force trial rather than vary the prior interim order originally made in Chambers that had been in effect for 14 years and where material change in circumstances could be shown. On the evidence, it appeared that the youngest child was no longer child of the marriage and it was also appropriate to remit arrears of child support. In such circumstance, provisional order was appropriate and was appropriately made. [48] Sixth, section 17 does not use the word “interim” nor does it use the word “final.” The word “final” is imported into this area of the law from the practice domain dealing largely with “interlocutory” orders, which can have implications for appellate practice, but have less bearing when determining the rights of children. [49] Having regard for these considerations, and applying the modern principle of statutory interpretation, and the Supreme Court authority above-mentioned, conclude that Parliament did not intend to limit the court’s authority to vary final orders—in Chambers or otherwise. Section 17(1) specifically confers the authority to vary, rescind or suspend, prospectively or retrospectively any order. The only question is whether it can be done on an interim basis. [50] see no reason in principle why court, faced with an application to vary, should not be able to make an interim order pending final resolution of the matter—in the appropriate case. The affidavit evidence may not rise to the level of certainty needed for final order, but the judge may nonetheless be satisfied that need, hardship and change of circumstances dictate that the judge should act immediately rather than waiting to test the evidence and make final determination. In such circumstances, it would be an exercise in formalism to insist that the matter be set down for hearing or trial in order to make final order—which may exacerbate hardship and surely will increase cost. The better interpretation of ss. 15.1 and 17 is to permit variation for child and spousal support orders on an interim basis leaving the development of the common law to determine when the discretion to do so should be exercised. [51] Since substantive orders can be made in the appropriate case in Chambers on an interim or on final basis—and that both an interim order and final order can be varied—the distinction between what is an interim and final order becomes less important in the Court of Queen’s Bench,[1] but it also becomes more difficult to determine whether an order is interim or final. The problem is compounded because many seemingly interim orders remain in place for many years and govern the whole of the parties’ relationship. The determination of whether an order is final remains important in case such as this where one party asserts that the matter in issue has already been decided. [52] Sometimes the answer to the question as to whether an order is an interim or final order will be patently clear because the order uses the word “interim” or the order refers to pending pre-trial conference or to the trial—or indicates its essential character as final order. The absence of appropriate descriptors, however, does not mean that the order is automatically interim or final. Whether an order is interim or final depends on all of the circumstances, including the terms of the order, the question to be resolved and where the parties are in the process of resolving their dispute. In some cases, it is also true that it is not necessary to determine whether an order is interim or final because the Court’s authority does not depend on the classification. In my view, this is one of those cases. [53] I will now turn to consider the nature of the orders in question and the authority that can be invoked to sustain their variation. [54] Once it has been determined that final order may be varied on an interim basis, it is quite clear that the 2008 Variation Order is an interim order. While Mr. Prescesky made an application to vary the 2006 Consent Child Support Order, which invoked the Court’s authority under s. 17, Smith J. expressed his order in the terms of an interim order: 1. The Consent Child Support Order granted by the Honorable Mr. Justice D.K. Krueger pronounced on the 29th day of June, 2006, is varied as follows: a) For the purposes of ongoing child support, the income of the Petitioner, DANIEL STEVEN PRESCESKY, is set at $55,000 per year, and he shall pay child support in the amount of $769 per month commencing December 1, 2008, until further order of the Court. 2. The Respondent, MANDY LEE PRESCESKY, may proceed to trial for the purposes of imputation. 3. The Petitioner, DANIEL STEVEN PRESCESKY, is directed to provide to the Respondent, MANDY LEE PRESCESKY, copy of his income tax return by June 30th of each year, commencing June 30, 2009, until further order of the court. (Emphasis added, Appeal Book, p. 198a) [55] The application before Smith J. was contested. Mr. Prescesky filed financial material in support of his submission that his income should be fixed at $1500 per month rather than the $85,000 per year, which he had been earning up to that time. Smith J. did not accept Mr. Prescesky’s evidence—hence the clause in the 2008 Variation Order leaving open for future resolution the question of the amount of Mr. Prescesky’s income. [56] The proper way to read the 2008 Variation Order is that it sets the amount of Mr. Prescesky’s income at $55,000 per year as an interim figure. It was contemplated when the 2008 Variation Order issued that the parties would revisit it. say this because there was no “imputation” issue with respect to the period before the 2008 Variation Order; the order is all about what effect the future would have on the amount of Mr. Prescesky’s income. [57] It is more difficult to determine the nature of the 2011 Variation Order because it was intended to reflect an agreement between the parties—which is usually the hallmark of final order. The 2011 Variation Order reads as follows: 1. Paragraph 1(a) of the Variation Order granted by the Honourable Mr. Justice R.S. Smith pronounced on the 4th day of December, 2008, is varied as follows: a) For the purposes of ongoing child support, the income of the petitioner, DANIEL STEVEN PRESCESKY, is set at an estimated $67,000 per year, and he shall pay child support in the amount of $950 per month commencing April 1st, 2011, until further order of the court. 2. On or before December 31st of each year commencing in 2011 DANIEL STEVEN PRESCESKY shall provide to the Respondent statement showing the value of the RESP’s for the two children of the marriage. (Emphasis added, Appeal Book, p. 214a) [58] There are only two changes to the 2008 Variation Order: estimating the income at $67,000, instead of setting it at $55,000 and adding clause to ensure Mr. Prescesky prove annually he is fulfilling an obligation assumed in the original 2006 Consent Child Support Order to contribute to his children’s RESPs. [59] While the 2011 Variation Order does not specifically address the question of what to do with respect to arrears arising before it, by virtue of its structure, which amends clause 1(a) only, it can be read as an amendment to the interim 2008 Variation Order that kept alive the possibility of Ms. Lantz pursuing an action in the Court of Queen’s Bench to impute further income to Mr. Prescesky and to recover any arrears arising from that exercise. Turcotte J. emphasized the following: “The 2011 variation order did not affect the obligation on Daniel to provide copy of his income tax return by June 30 of each year, nor did it purport to address the provision granting leave to Mandy to pursue the issue of income imputation to trial” (Prescesky, para. 52). Admittedly, there may be another way to read the 2008 Variation Order: i.e., that Ms. Lantz would be able to pursue the imputation of income at trial as result of Mr. Prescesky’s move to Saskatchewan only, but the 2011 Variation Order did not give effect to that interpretation. [60] As he did with the 2008 Variation Order, Mr. Prescesky filed “Variation Application” with the Court, but the only supporting material he filed to secure his order in 2011 is one page Memorandum to the Judge that contained no substantive provisions. The draft Order was the only document filed with the Memorandum. [61] Significantly, and as have indicated, Ms. Lantz in side letter agreed to forgo $7250 worth of arrears arising prior to the 2011 Variation Order. No mention is made of this in the 2011 Variation Order. The amount that Ms. Lantz was prepared to forgo does not cover all of the arrears for that period, which is some further evidence to support the decision of Turcotte J. that the 2011 Variation Order kept alive the right to pursue the difference between the actual arrears and what she had agreed to forgo. [62] The substance of what Mr. Prescesky filed with the Court of Queen’s Bench—the terms of the 2011 Variation Order and the circumstances surrounding it—all point to the 2011 Variation Order being an interim order, notwithstanding the parties’ prior agreement. [63] In my view, however, nothing turns on the question of whether the 2011 Variation Order is interim or final because of its terms. Every order, whether classified as interim or final, must still be construed. [64] In this case, the 2011 Variation Order amended previous interim order, which permitted Ms. Lantz to proceed to trial, and used the term “estimated” and continued to require Mr. Prescesky to provide his financial information annually. [65] The fact of the parties’ prior agreement is of no assistance to Mr. Prescesky. The parties did not reduce their oral agreement to writing—beyond what is reflected in the 2011 Variation Order. For her part, Ms. Lantz testified that she accepted something less to avoid the cost of litigation and she would insist upon term to that effect: And as result of that communication with Mr. Prescesky, what agreement, if any, did you arrive at with Mr. Prescesky? took him at his word at what his income would be, and we you know, was going through an emotional time with my husband, finances weren’t the greatest. So to avoid any more court costs, thought it would be in the best interest to try to come to an agreement with him and just end it so could go back into the home. (Trial transcript, p. T19) [66] The parties had some form of an agreement; but it was not sufficiently documented, its terms were in dispute at trial and they remain nebulous in this Court. If it were term of the oral agreement that Mr. Prescesky would not apply again to the Court of Queen’s Bench in order to avoid court costs—at least in the foreseeable future—he breached that agreement by bringing his third application seven months later. Moreover, the 2011 Variation Order states that it is subject to “further order of the Court.” [67] In these circumstances, it was reasonable for Turcotte J. to assume the authority to review the 2011 Variation Order in accordance with its terms. His conclusion in this regard is reinforced by the fact that the parties did not place before Allbright J. in 2011 the means to allow him to assess the agreement’s reasonableness. [68] The authority of judge to accept an amount less than the Guidelines amount must be considered in light of the judicial obligations imposed by s. 17(6.4) and (6.5) of the Divorce Act, which read as follows: Consent orders 17(6.4) Notwithstanding subsection (6.1), court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. Reasonable arrangements 17(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. [69] Having regard for these provisions and the Guidelines, Turcotte J. concluded the following: [39] Where child support order has been granted by the Court with the consent of the spouses, but in the absence of financial information to have allowed the Court the opportunity to assess the amount of spouse’s income and the appropriateness of the child support proposed under the consent order, such an order will be presumptively valid but nevertheless subject to future review and prospective or retroactive variation in appropriate circumstances. (Prescesky) [70] In support of this proposition, he relied on Jane Doe Alberta, 2007 ABCA 50 (CanLII) at paras 25–26, 278 DLR (4th) [Jane Doe], leave denied, 2007 CanLII 27569 (SCC), which in turn relies on such authorities as Richardson Richardson, 1987 CanLII 58 (SCC), [1987] SCR 857: “A spouse cannot barter away his or her child’s right to support in settlement agreement. The court is always free to intervene and determine the appropriate level of support for the child” (p. 869). [71] Mr. Prescesky distinguishes Jane Doe and the authorities on the basis that—in this case—the parties embodied their agreement in the 2006 Consent Child Support Order. Given the nature of the interests at stake, being the interests of the children in proper level of support, it is distinction without difference. [72] In short, I conclude that Turcotte J. did not err by concluding he had the authority to vary the 2011 Variation Order and to order Mr. Prescesky to pay arrears arsing before it and compelling him to pay the Guidelines amount for the period following it. B. Was it necessary to find a material change in circumstances before the 2011 Variation Order could be varied? [73] Subsection 17(4) of the Divorce Act requires that court varying child support order shall satisfy itself that change of circumstances, as provided for in the applicable Guidelines, has occurred. Section 14 of the Guidelines provides as follows: Circumstances for variation 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes change of circumstances that gives rise to the making of variation order in respect of child support order: (a) in the case where the amount of child support includes determination made in accordance with the applicable table, any change in circumstances that would result in different child support order or any provision thereof; (b) in the case where the amount of child support does not include determination made in accordance with table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section of chapter of the Statutes of Canada, (1997). In D.B.S., the Court confirmed that the power to vary previously ordered award is triggered by material change in circumstances (see para. 66). Mr. Prescesky asserts that full disclosure was made in March of 2011—an order was consented to and issued in May of 2011—and thereafter there was no change in circumstances. [74] This is variation on the first argument. As have indicated, the parties’ agreement was not defined, the parties did not place any evidence before Allbright J., the consent order amended an interim order and the order was made subject to further order of the Court. In such circumstances, the resulting order remains completely vulnerable to further review by court possessed of all the evidence upon which to judge the issue of the adequacy of the support. In my view, these factors make Miller Miller (1992), 42 RFL (3d) 426 (Sask CA) distinguishable. By the terms of the 2011 Variation Order, the parties left to a future court the finalization of the amount of child support based on Mr. Prescesky’s income.  Faced with this state of affairs and these words, the Court of Queen’s Bench retained the power to vary or rescind the order without searching for a change in circumstances. C. Did Turcotte J. err by finding Ms. Lantz had not been advised of changes in circumstances? [75] Mr. Prescesky points to his testimony where he said he had told Ms. Lantz about the changes in his situation or he had sent financial information with the children. He argues that this was reasonable approach to the issues dividing the parties and Turcotte J. should have accepted that evidence. It is clear, however, from the following paragraphs, that Turcotte J. found that Mr. Prescesky did not inform Ms. Lantz of the 2009 or 2010 changes: [46] Daniel acknowledged that he and Trisha did not stay in the Mayfair area to farm with his father. Rather, they moved back to Edson, Alberta in January or February 2009. Their return to Alberta was precipitated by number of events. He testified that he could not make the numbers work financially for him to continue farming. His .08 charges were resolved in December 2008 by stay entered by the Crown, facilitating the return of his driver’s license and his ability to return to work. Trisha’s father had died suddenly, and she needed to be closer to her mother to assist her. [47] Having regard for Daniel’s evidence before the Court set out in his affidavit sworn October 15, 2008, these changes in his circumstances were material and should have been disclosed. Further, the change in Daniel’s personal and employment circumstances occurring in early 2009 was clearly “change in circumstances” as contemplated by s. 17 of the Divorce Act and s. 14 of the Guidelines. The letter from his employer dated March 8, 2011 exhibited under tab 26 of R-1 indicates that Daniel resumed employment with that company on February 19, 2009. variation of the child support being paid by Daniel pursuant to the child support order as varied by the 2008 variation order would be warranted based on the increase in his income. No evidence was led that Daniel advised Mandy in early 2009 of the change in his personal and employment circumstances. Daniel’s failure to advise Mandy of these changes in his circumstances and to have adjusted his child support payable constitutes blameworthy conduct within the meaning established by D.B.S. militating in favour of retroactive review of his child support obligation. [49] As noted, para. of the child support order included provision requiring the parties to disclose their financial information annually with view that the child support payable would also be adjusted from year to year commensurate with the Guidelines. The variation order granted December 4, 2008 specified that Daniel was to provide Mandy with copy of his income tax return by June 30 of each year. do not believe Daniel when he testified that he provided his financial information to Mandy as required pursuant to either the child support order or the 2008 variation order. accept Mandy’s evidence that Daniel did not provide her with copies of his income information other than through these court proceedings or as noted in the exchange of correspondence from his lawyer to her lawyer set out in tabs 26 and 27 of R-1. (Emphasis added, Prescesky) [76] These are findings of fact Turcotte J. could make. In order for this to be sustainable ground of appeal, Mr. Prescesky would have to demonstrate “significant misapprehension of the evidence” (see Hickey Hickey, 1999 CanLII 691 (SCC), [1999] SCR 518 at para 11 [Hickey]). He is unable to overcome that hurdle. D. Did Turcotte J. err by failing to find unreasonable delay? [77] Turcotte J. also found that “there was no unreasonable delay on Mandy’s part in seeking a retroactive review of Daniel’s child support obligation” (para. 48). He made this finding while recognizing that she had to have known that Mr. Prescesky had moved. Given his earlier finding that she had not received disclosure, this finding regarding unreasonable delay is insulated from review in this case (see Hickey). V. Conclusion [78] The appeal is dismissed. It would seem appropriate to fix costs at the same amount as at trial: $1500. “Jackson J.A.” Jackson J.A. concur. “Jackson J.A.” concur. “Whitmore J.A.” Whitmore J.A. [1] What is an interim or final order for the purposes of appellate review remains an important issue, but that is not the issue am addressing on this appeal.
Family – Child Support – Arrears – Appeal The appellant appealed from the decision of a Queen’s Bench judge ordering him to pay retroactive child support to the respondent in the amount of $21,645. The order indicated that the period in question would include support from January 2009 to August 2012 (see: 2014 SKQB 334). An original support order was issued by consent in 2006. It required that the appellant pay the respondent $1,220 per month in child support and that the parties would exchange their financial information yearly in order to adjust the amount of child support payable. In 2008, the appellant applied to vary the order because he had lost his position and his income was reduced to $1,500 per month. In his affidavit, he swore that his annual income would be $18,000. The application was allowed and the amount of support reduced to $769 per month based upon the judge setting the appellant’s income at $55,000 and directing him to provide his financial information to the respondent each year. One month later in 2009, the appellant regained his former employment position and began earning as much as he had in 2008 but he continued to pay $769 per month without informing the respondent of the change in his circumstances. In February 2011, the respondent served a notice to disclose. The parties met and made an oral agreement that the appellant would pay $950 per month based upon the appellant’s claim that he was still financially strapped and the respondent acquiesced because she was unwilling to engage in further court battles with him. The appellant’s lawyer provided the respondent’s lawyer with financial information that showed that the former was earning a substantially higher income. The respondent also indicated to the appellant that she would forgo about $7,200 in arrears. The terms of the agreement were submitted to the court, without the financial information or the respondent’s forbearance to sue, and a variation order was issued based upon them. In July 2012, the respondent applied to vary the 2008 order and the 2011 variation order claiming arrears from January 2009. Eventually the issue of retroactive child support went to trial. The trial judge found that the appellant had not given the respondent financial information as was required and his failure to inform her of the material change in his circumstances in 2009 constituted blameworthy conduct. The appellant’s income for the years 2009 through 2012 was assessed by the court and the amount of arrears established. The appellant argued that: 1) the trial judge did not have the jurisdiction to vary the 2011 variation order. He maintained that the 2011 order was final and could not be varied on an interim basis; 2) it was necessary to find a material change in circumstances before it could be varied; 3) the respondent had been advised of the change in circumstances; and 4) the trial judge had erred in failing to find unreasonable delay on the part of the respondent.  HELD: The appeal was dismissed. The court held with respect to each issue that: 1) a court can vary an interim or a final order on an interim basis for child support under the authority of ss. 15 and 17 of the Divorce Act. Although it might be necessary in some cases to determine whether an order is final or interim, it was not necessary to do so here because the nature of the terms of the orders in question and the circumstances surrounding the granting of the 2011 variation order. The trial judge had not erred in concluding that he had authority to vary it and to order the appellant to pay arrears before the agreement and compelling him to pay the Guideline amount for the period following it; 2) the terms of the 2011 order left it to a future court to finalize the amount of child support based upon the appellant’s income. Therefore the court retained the power to vary or rescind the order without searching for a change in circumstances; 3) the trial judge’s findings of fact on this point were supported by the evidence; and 4) the trial judge found that the respondent had not received disclosure and thus there had been no unreasonable delay.