J. 2001 SKQB 163 D.I.V. A.D. 1996 No. 02446 J.C.S.C. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: GORDON CLARK McMILLAN PETITIONER (RESPONDENT) and WENDY LEE McMILLAN RESPONDENT (APPLICANT) P.G. Alberts for the applicant, Wendy Lee McMillan Gordon Clark McMillan on his own behalf FIAT BAYNTON J. March 20, 2001 [1] The applicant mother applies to vary the terms of the child support order made against her on March 1, 1999. It provided that she pay $400 per month support for the three children of the marriage, namely Brady McMillan born November 19, 1996, Jessica McMillan born May 2, 1989, and Kory McMillan born February 2, 1991. The order was made in connection with previous variation application brought by the applicant to vary former $450.00 per month child support order. [2] The March 1st, 1999 order imputed annual income of $18,000 to the applicant and set ongoing support at $400.00 per month (consisting of regular support of $334.00 plus $66.00 towards s. 7 medical and extraordinary expenses consisting primarily of hockey expenses). The applicant in her second variation application seeks cancellation of the arrears of $3,800 on the basis that she will otherwise in effect be required to overpay child support had it been calculated in accordance with the Guidelines on the basis of her actual (not imputed) income for the years 1999 and 2000. She also seeks a variation of the ongoing child support to $17.00 per month, being the Guideline amount based on her projected annual income for 2001 of just over $7,000. [3] acknowledge that if the basic level of child support for the two years in question was based on the applicant's actual adjusted average income for those two years rather than on her imputed income of $18,000, there would be no arrears of child support outstanding at this time. But the applicant must accept responsibility at least in part for permitting the arrears to accumulate over the two years. The court is reluctant to encourage irresponsibility on the part of applicants by rewarding them when they bring applications to retroactively vary court orders. However, the applicant is entitled to some relief in the circumstances. I order the cancellation of arrears of $1,900, being one-half of the total of $3,800 in arrears. [4] also acknowledge that it is unlikely the applicant will earn $18,000 during the year 2001. But on the basis of the material filed, am satisfied that she is capable of earning $15,000 during the year. Applicants are not entitled to variation order setting child support at the level that automatically flows from the choices they make respecting their employment and income. The court must factor in as well, the ability of the applicant to pay reasonable level of child support. The applicant is clearly capable of paying more than $17 per month for her three children. I fix basic child support for the three children under the Guidelines at $250.00 per month based on an imputed annual income of $15,000. [5] Neither party filed current information respecting the s. expenses which, as claimed by the respondent in 1999, appear to be exorbitant. I reduce the applicant\'s share of the s. 7 expenses to $50.00 per month for total ongoing child support of $300.00 per month commencing April 1, 2001. [6] Had the applicant been more reasonable in her submission for variation, would have awarded her costs. In the circumstances, there will be no order as to costs.
FIAT. The mother applied to vary the terms of the 1999 child support order under which she was to pay $400 per month composed of $334 for regular support plus $66 for s.7 medical and extraordinary expenses for their three children based on an imputed annual income of $18,000. She sought to cancel arrears of $3,800 on the basis she will overpay if child support had been calculated in accordance with the Federal Child Support Guidelines on the basis of her actual income for 1999 and 2000. She also sought to reduce child support to $17 per month based on a projected income of $7,000. HELD: 1)One-half of the arrears were cancelled. The mother must accept responsibility in part for allowing arrears to accumulate over the 2 years. 2)The mother was to pay $250 per month based on an imputed income of $15,000. She was capable of contributing more than $17 per month. Her share of s.7 expenses was reduced to $50 per month. Neither filed current information. 3)Costs would have been ordered if the mother had been more reasonable in her submission for variation.