J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 527 Date: 2006 12 12 Docket: U.F.C. No. 1140 of 1993 Judicial Centre: Saskatoon, Family Law Division IN THE MATTER OF THE INTER-JURISDICTIONAL SUPPORT ORDERS ACT, S.S. 2002, c. I-10.03 BETWEEN: BRADLEY GARY McLAUGHLAN and CHANTEL ROSANNE BRAUN Counsel: No one appearing for the applicant No one appearing for the respondent FIAT WILSON J. December 12, 2006 1) The applicant, Bradley McLaughlan, applies pursuant to the Inter-jurisdictional Support Orders Act, S.S. 2002, c. I-10.03 for a variation of support for the parties’ one child, Desiree May Braun-McLaughlan, born February 14, 1992. Mr. McLaughlan seeks both a variation in regard to his ongoing child support payments as well as rescission of arrears which have accumulated under the original child support order. 2) Mr. McLaughlan resides in British Columbia and Ms. Braun, along with the child, Desiree, resides in Saskatoon, Saskatchewan. Mr. McLaughlan has properly proceeded under The Inter-jurisdictional Support Orders Act in light of his residence and the fact that the original order was made pursuant to provincial as opposed to federal legislation. 3) By order dated July 17, 1995, granted in the Provincial Court of Alberta, Mr. McLaughlan was ordered to pay the sum of $500 per month as and for the support of the child, Desiree, which payments were to commence on the first day of September, 1995 and continue on the first day of each and every month thereafter until further order. This order was made prior to the introduction of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] and, thus, Mr. McLaughlan has established the necessary change in circumstance, namely, the introduction of the Guidelines, in order to proceed with his variation regarding his ongoing maintenance payments. 4) Mr. McLaughlan has provided income tax summaries reflecting his income for the years from 1995 through to 2004. In addition, he swore financial statement, on February 15, 2006, wherein he sets out his current earnings. According to the evidence filed by Mr. McLaughlan, Mr. McLaughlan is earning the gross annual sum of $45,784. Based on these earnings, Mr. McLaughlan has an obligation, according to the British Columbia Tables, to pay the sum of $425 for the one child. Ms. Braun was served with this motion in October, 2006. It is, in my view, fair to adjust Mr. McLaughlan’s ongoing child support payments as at November 1, 2006. make the following order: The applicant, Bradley McLaughlan, shall pay to the respondent, Chantel Braun, as and for support of the child, namely, Desiree May Braun-McLaughlan, born February 14, 1992, the sum of $425 per month as child support, commencing on November 1, 2006 and continuing on the first day of each and every month thereafter. Mr. McLaughlan’s income, for the purposes of determining the appropriate quantum of child support, is determined to be the sum of $45,784. 5) Turning to the issue of arrears, Mr. McLaughlan provides evidence that he is currently in arrears under the July 17, 1995 order in the sum of $56,365.60. Mr. McLaughlan provides little explanation for his failure to pay the child support he was ordered to pay. In his materials he advises “we had a very bad breakup and being stubborn, I never looked back on that part of my life. That is why I never paid”. 6) As set out by M-E. Wright J. in Wurmlinger v. Cyca, 2003 SKQB 152 (CanLII), (2003), 231 Sask. R. 282 (Q.B.), at para. 2, number of factors are to be considered when determining whether arrears should be rescinded. The factors set out by Wright J. are as follows: 1. The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5. Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payments of arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. 7) Mr. McLaughlan has failed to provide the Court with an explanation as to his significant delay in seeking relief from child support arrears. Further, upon reviewing the income tax summaries filed by Mr. McLaughlan, it appears that he did have the ability to pay the ordered child support in some of the years since the order was granted. Mr. McLaughlan’s evidence as to his income from 1995 to 2004 is as follows: Year Gross income 1996 8,463 1997 $16,415 1998 $19,257 1999 $32,951 2000 (Business income reported as being gross commissions of $95,863 with total income of $12,871 no full income tax return filed to assess) 2001 (Business income reported at $85,050 with income after expenses (-$34,830) no full income tax return filed to assess) 2002 2,099 2003 $31,892 2004 $45,784 Mr. McLaughlan’s reason for failure to pay his support is as set out above. He was stubborn. Mr. McLaughlan provides no evidence as to why he earned little income from 1995 to 1998 and in 2002, and does not, in any way, suggest that he was ill, injured or unable to work for any reasonable reason. 8) Mr. McLaughlan appears to be suggesting that his payment of ongoing support, and any payment he must make towards arrears, leaves him in financial difficulties, given he has remarried and has two more children. However, in order to allow Mr. McLaughlan rescission, would have to determine that he has, firstly, present inability to pay arrears and, secondly, that he will not in the future be able to pay the arrears. (Vide: Wurmlinger v. Cyca, supra; Diebel v. Diebel (1997), 1997 CanLII 11005 (SK QB), 155 Sask. R. 96 (Q.B.)). 9) Given that Mr. McLaughlan is currently earning the sum of $45,784 per year, he can afford to pay reasonable payment towards the outstanding arrears. 10) For all the reasons set out above, I am dismissing Mr. McLaughlan’s application for rescission of arrears. J. D. L. Wilson
FIAT: The applicant applies for a variation of support for the parties' one child, born in February 1992. The applicant seeks both a variation and rescission of arrears which have accumulated under the original support order. HELD: 1) The applicant has established the necessary change in circumstance, namely the introduction of the Guidelines. Based on the applicant's income, his child support payment is reduced from $500 per month to $425 per month.  2) The applicant is in arrears in the amount of $56,365.60. He has provided little explanation for his failure to pay the child support he was ordered to pay other than he was stubborn. It is apparent that he had the ability to pay. The application for rescission for arrears is dismissed.