J. 2004 SKQB 379 D.I.V. A.D. 1994 No. 016328 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: MONICA LYNN DOROSH (ANTONOWITSCH) and WAYNE JOSEPH DOROSH RESPONDENT Ian D. McKay, Q.C. for the petitioner Wayne Joseph Dorosh self-represented FIAT SANDOMIRSKY J. September 17, 2004 [1] On February 13, 2004, the respondent, Wayne Joseph Dorosh, acting on his own behalf, applied to this Court, in Chambers, to vary the support and access provisions contained within consent judgment of this Court granted May 2, 1995. That judgment provided for the divorce of the petitioner and respondent, distribution of the matrimonial property estate of the couple, as well as custody, access and support for the child of the marriage, Letitia Paige Dorosh (born August 22, 1989). [2] Mr. Dorosh sought to alter custody in 1997. Mr. Justice McIntyre rendered judgment upon that application on July 31, 1997. Central to that application was Mrs. Dorosh, now Antonowitsch’s declared intention to relocate with Letitia from Saskatchewan to Kelowna, British Columbia. In written decision Mr. Justice McIntyre dismissed Mr. Dorosh’s interim application and directed trial on the issue of whether there should be variation of the custody provisions of the May 2, 1995 judgment. The terms of the 1995 judgment prescribe that Ms. Antonowitsch, is the sole custodian of Letitia. The matter never proceeded to trial. [3] On January 20, 2003, Mr. Dorosh again applied for variation of the 1995 judgment. At that time Mr. Dorosh requested the following relief: (a) variation of custody and access based on the wishes of the child; and (b) variation of the child support which was set in 1995 at $250.00 per month to be redefined under the provisions of the Federal Child Support Guidelines (SOR/97-175, as am.). [4] Letitia was then 13 years old. Today she is 15 years old and Grade 10 student at Sheldon Williams Collegiate in Regina. [5] On January 24, 2003, Mr. Justice Smith ordered that the last of the variation applications be adjourned sine die in order to await “Voices of Children” report. The status of matters was revisited in chambers on November 25, 2003, at which juncture Mr. Justice Scheibel provided directions to the parties to assist in bringing Mr. Dorosh’s last application to vary before the Court in readied state for argument. [6] This application finally proceeded to be argued before Madam Justice Dawson on January 21, 2004. written decision was rendered on January 26, 2004. That fiat has direct bearing upon the present application and therefore the text is set forth and read as follows: Wayne Dorosh applies to vary the custody and child support order of May 2, 1995. Mr. Dorosh seeks to vary the custody order on the basis that his daughter, Letitia, born August 22, 1989, (currently 14 years old) wished to spend more time with him. “Children’s Voices Report” was prepared. The assessment and/or conclusion of the assessor is contained on page 5: Letitia treasures both of her parents, and is able to benefit from each relationship’s strengths to the fullest. She would not like to alter her relationship with either parent, only the time she is able to spend with her dad. She indicates, that given her age, she should be able to determine when she can be with both parents. She recognizes, as she gets older, she will likely spend more time with her friends than with either parent, however, she would like to maximize her time with both parents. By having both parents agree to allow her to make her decisions about when she sees them, instead of having set schedule, Letitia believes she would benefit the most in both relationships. Letitia appeared very genuine in her desire to spend increased time with her father, and indicates the flexibility that has been recently added to the access schedule is exactly what she desired. Both parties indicate that Letitia has been spending more time with Mr. Dorosh, taking into account Letitia’s schedule. It appears that Letitia has access to Mr. Dorosh when she requests it and at the times that are convenient to Letitia. Mr. Dorosh acknowledges that this type of access is agreeable to him. Hopefully both parents will consider the “Children’s Voices Report” in the future and treat each other with respect and encourage and foster Letitia’s relationship with each of her parents, the two most important people in Letitia’s life. The access order shall be varied as follows: Wayne Joseph Dorosh shall have reasonable access to Letitia Paige Dorosh at all reasonable times having regard to Letitia’s wishes and her school and activities schedule. Mr. Dorosh seeks to vary the child support order and asks that the court order that he pay zero (0) child support on the basis that he has his daughter in his custody at least 40% of the time and on the basis that his income has changed. The child support order of May 2, 1995 required Mr. Dorosh to pay child support in the amount of $250.00 per month. am not satisfied that Letitia is in the custody of Mr. Dorosh 40% of the time and, in fact, Mr. Dorosh acknowledged in Chambers that Letitia had not spent as much time with him lately due to her own interests and commitments. Mr. Dorosh failed to file any income tax returns, notices of assessment or re‑assessment in support of his application. His affidavit sworn November 29, 2002 indicated that he was on disability. He attached to that affidavit T4 for 2001 which indicated that he received $9,383.565 from Saskatchewan Social Services. His financial statement sworn November 29, 2002 indicated that he was self‑employed but currently on disability and set out his income from disability to be $9,383.56. Mr. Dorosh filed further financial statement, on July 25, 2003. This financial statement was unsworn. Again this unsworn statement indicated that his income was $9,383.56 from disability income. Nowhere in the material does Mr. Dorosh state that he did not file income tax returns. Mr. Dorosh has not provided this information to the petitioner. advised Mr. Dorosh in Chambers that would be prepared to grant him an adjournment to file the appropriate financial information. also advised Mr. Dorosh that he bore the onus to prove that there was change in circumstances sufficient to warrant variation in child support and that he was required to file income tax returns, notices of assessment and pay stubs or disability income pay stubs. Mr. Dorosh did not wish to adjourn the application and asked the court to consider his application based on the evidence on file. Mr. Dorosh was, as of August 2003, 10 months in arrears of child support. I dismiss Mr. Dorosh’s application to vary child support and arrears. This is without prejudice to Mr. Dorosh to bring an application to vary with respect to the same relief if supported by the appropriate financial disclosure and documentation. There are no costs awarded. [7] What remains to be determined upon this application are the matters of custody, child support and cancellation of the arrears of child support. [8] Madam Justice Dawson did not address the matter of custody of Letitia. Accordingly, Ms. Antonowitsch remains the custodial parent pursuant to the provisions of the 1995 judgment. Should this order of custody be varied at this time? [9] variation application entails twostep process as set out in the Divorce Act, R.S.C. 1985, c. (2nd Supp.) at s. 17. That process was defined by the Supreme Court of Canada in the decision of Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670. material change of circumstance must be demonstrated to have occurred since May 2, 1995 by which the 1995 judgment, as it pertains to custody, is no longer appropriate. If this threshold step is met the Court will then proceed with fresh examination of the relevant facts and circumstances pertaining to custody, including the evidence of change. [10] The mere passage of time, in this instance nine years, would constitute material change of circumstance relevant to custody. Letitia is now 15 years old whereas at the time of the 1995 judgment she was merely six years old. Therefore it is appropriate in the circumstances to ask whether there should be variation of the custody order when Letitia is 15 years old. [11] The Children’s Voices Report dated June 4, 2003, described Letitia as “confident, happy, articulate, bright and spirited 13-year-old girl. She displays high level of maturity, understanding, emotional stability and insight into her relationships, activities and future.” Reading the Voices Report, if it characterizes Letitia accurately, then one can delight in the wholesome and mature outlook which Letitia exhibited. [12] The Voices Report quotes Letitia as indicating that she has two “awesome” parents. She says that she loves them and wants to be with them both. Letitia indicates that she has great relationship with both, although she recognizes her relationship with each of them is very different from her relationship with the other. [13] This enthusiasm which Letitia displays to each parent should not be confused by either parent—particularly Mr. Dorosh. Mr. Dorosh enjoys generous and fulfilling relationship with Letitia and he must not confuse his daughter’s affection and enthusiasm toward him as being to the exclusion of her mother. Madam Justice Dawson did not have to deal with declaration on the matter of custody because it was not requested at that time. But neither was it necessary. Today, Letitia is 15 and presumably all the wiser than she was two years ago. [14] In the Voices Report Letitia is quoted as indicating “her parents do not get along well together ‘at all’.” “[T]hey’ve tried to talk, but they are just two different people. They just need to not be together. don’t know how they were ever together.” Letitia then concluded, “Now it is better because they don’t talk.” The Voices Report continues at some length to quote Letitia’s view of her parents’ personalities and behaviour with remarkable wisdom given her then age of 13 years. What wisdom can come “out of the mouth of babes.” [15] Letitia has been in the primary care of her mother. Her principal residence continues to be with her mother and is closely located to her collegiate and circle of friends. It is clear that her best interests require that the status quo be continued. [16] Mr. Dorosh and Ms. Antonowitsch are not candidates for joint custody and shared parenting. Letitia’s view of the dysfunctional relationship between her parents compels this Court to preserve the status quo as being in the child’s best interests. Ms. Antonowitsch will continue as the sole custodian. Mr. Dorosh should not be offended by this conclusion. Rarely would court of law be so bold as to try to mandate an intelligent, mature and wholesome 15-year-old’s custody in the circumstances that prevail here. Both parents are in fact to be congratulated that they have parented Letitia to be who she is today. Letitia herself is to be congratulated on the manner in which her personal skills manage her relationship with each of her mother and father. [17] In January of this year Madam Justice Dawson varied access as was prescribed in the 1995 judgment. Nothing has changed to warrant a variation. The material change threshold has not been met. The existing access order allows Letitia to define the extent of access or time spent with each of her mother and father. At her age, Mr. Dorosh and Ms. Antonowitsch should be alive to the fact that Letitia deserves significant amounts of time to pursue her own social life, school studies, extracurricular activities and to have the freedom of quiet and private time. Letitia should not be made to feel obligated to spend more time with her mother and father at the expense of her own growing freedom and independence. Nor should the natural growth of child toward independence be misconstrued as sign of disaffection. Mr. Dorosh’s Driver’s Licence [18] The Court has allowed the director to reinstate Mr. Dorosh’s driver’s licence. This enables Mr. Dorosh to pick up and deliver Letitia without reliance on others. This also complements Mr. Dorosh’s opportunity to pursue employment in meaningful way and this Court encourages that the licence continue to be reinstated unless there is future disobedience of this Court’s judgment and order. Child Support and Arrears [19] Mr. Dorosh asks to have the accumulated arrears of child support expunged and that his obligation to contribute to Letitia’s care and maintenance be reduced from $250.00 per month to zero. [20] In his application Mr. Dorosh states his request on the basis that the parties share custody of Letitia, that is, that Letitia is residing with her father at least 40% of the time. In Mr. Dorosh’s supporting affidavit he fails to provide the Court with any evidence that Letitia is indeed residing with him or under his direct supervision and control. There is the mere statement that there is a “50-50 living arrangement from the beginning of the proceedings.” Nor does Mr. Dorosh provide any evidence nor explanation at to why he has failed to pay child support which creates the present arrears. [21] In an unsworn financial statement filed on July 25, 2003, Mr. Dorosh informs the Court that he is self-employed. He states in the year 2001 he received $9,383.56 in Employment Insurance benefits and had no other income. In the same financial statement Mr. Dorosh claims his annual living expenses are modest $14,160.00, thus creating an annual deficit of $4,776.44. In calculating his expenses, Mr. Dorosh included his obligation to pay $3,000.00 per year in child support. In fact, Mr. Dorosh acknowledges that he has not made those payments for the better part of two years. statement of arrears filed in the proceedings together with accrued arrears to and including the month of September 2004, would now total $5,734.00. [22] Throughout oral argument Mr. Dorosh asserted that he pays for many of Letitia’s needs and is building up an education trust fund for her college years. However, in the financial statement no expense is disclosed for either purpose, indeed no childcare costs are disclosed. The Employment Insurance benefits which Mr. Dorosh received in 2001 and any disability benefits since that date, would provide Mr. Dorosh with bare subsistence and no financial ability to provide for Letitia as he claims. [23] second financial statement was filed on February 13, 2004, unsworn and undated, in which Mr. Dorosh claims that he has been unemployed since the year 2000. Again, he claims to have received Employment Insurance benefits totalling $9,383.00 and expenses identical to that claimed in the earlier financial statement. In addition, Mr. Dorosh filed notices of assessment for the tax years 2001 and 2002 in which it is affirmed that Mr. Dorosh’s total income was $9,383.00 in the year 2001 and rose to $9,940.00 in the year 2002. Mr. Dorosh filed 2002 income tax return which disclosed his annual income was $9,940.00 derived from social assistance. [24] Ms. Antonowitsch has filed three affidavits in this proceeding, each at different date during this protracted application. In the most recent of these affidavits, sworn March 18, 2004, she attests that Mr. Dorosh’s title to his residence at 258 Scarth Street was transferred into the name of his parents in April 2001. The new title appears in the names of Joe and Irene Dorosh and is dated March 29, 2001. It discloses the property to be valued at $50,000.00 and shows that previous first mortgage granted by CIBC was discharged from the title on April 25, 2001. copy of the transfer from Mr. Dorosh to his parents was also entered as an exhibit indicating consideration was paid to the transferor of $50,000.00. [25] No evidence has been provided by either party as to why this transfer occurred and what proceeds were realized from the “sale.” Mr. Dorosh asserted in his oral argument that the bank was foreclosing. However, the title evidence would indicate that if such proceedings were instituted they did not conclude and the mortgage was paid out and discharged. [26] Ms. Antonowitsch suggests in her affidavit that Mr. Dorosh earns an income in construction, in the siding business, and also assists his family in buying and selling antiques. At paragraph 15 of her affidavit Ms. Antonowitsch states: 15. THAT had discussions with him and even though he was claiming in his materials that he was not working he admitted to me that he was in fact working however indicated that he wouldn’t be providing any documentation to substantiate this. [27] In the same affidavit, at paragraph 17, Ms. Antonowitsch denies that Letitia has spent 40% or more of her time with the respondent. The measure of time for the purposes of the 40-60 guideline rule examines total time including days when child is at school. Letitia remains under her mother’s dominion and control while in school. She visits with her father at times and in the manner which she deems appropriate. That is what Madam Justice Dawson’s order provides. During the summer holidays Letitia may have spent equal amounts of time under the charge and care of each of her parents, but on the whole there is no evidence that Letitia’s time with her father exceeds 40% or more of the year within the meaning of the Guidelines. [28] Finally, the affidavit of Ms. Antonowitsch, states that Mr. Dorosh has admitted to her that he does work on his parents’ farm, assists in the trading of antiques and does siding contracts. [29] In oral argument Mr. Dorosh asserted that he contributed to his daughter’s care and that he is also contributing to her education trust fund. If these expenditures were in fact made over and above his own living costs, would be compelled to accept the fact that he has financial resources available to him other than the $9,940.00 of social assistance which is disclosed in his tax return and financial statement. [30] Despite the grounds for relief recited in the application for variation, the heart and essence of Mr. Dorosh’s application is based upon his claim that his health has, and continues to preclude him from being able to work. Initially Mr. Dorosh filed letter from his personal physician, Dr. R. H. Hatfield which letter is dated April 19, 2004 and reads as follows: The patient has been struggling with depression and anxiety for quite some time now. He is on medication for these problems and we are doing the best we can, but he is not in any position to work or look for work at the present time. The above patient has been under my care for the last six years and has experienced this problem for all these years. He has had his ups and downs, but is unable to work presently and has been unable to work for all these years. cannot say when my patient will be able to return to the work force. It is his intention to return at some stage, but due to the severity of his illness and its chronic nature, don’t foresee return in the next years. He has been off work since 2000 until the present. [31] An application was granted to Ms. Antonowitsch compelling Dr. Hatfield to produce his clinical notes and recordings on Mr. Dorosh’s file. subsequent court order was granted allowing Ms. Antonowitsch to examine Dr. Hatfield for discovery. The transcript of evidence reveals an extensive and thorough cross-examination of Dr. Hatfield upon his April 19 letter, clinical notes and his assessment of his patient, Mr. Dorosh. Nowhere in Mr. Dorosh’s case did he reveal nor did he claim to be an alcoholic, heavy drinker or one who uses marijuana. Mr. Dorosh claims that he suffers from chronic depression and anxiety. Mr. Dorosh relies solely upon Dr. Hatfield’s evidence to prove that he is so debilitated by his state of depression and anxiety that he could not and will not be able to earn livelihood. [32] The following excepts from Dr. Hatfield’s evidence at discovery are germane to this application for rescission of arrears and eliminating Mr. Dorosh’s obligation to pay support for his daughter: Then goes down to—when he told you that he was drinking heavily, did he tell you how long that had been going on? When questioned him at that time, he said that he’d been drinking heavily big part of his life, and said to him, discussed alcohol with you before put you on the medications, and he said that, stopped and I’ve started and I’ve stopped and I’ve started. There have been times in my life where I’ve actually not drank, but I’ve been—I have had—I have been using alcohol for good period of my life. So did he tell you that he’d been using it for quite while before he attended on June the 11th of '01? Basically what he said was—his words to me was that, I’ve started drinking heavily again. So at that time, questioned him and he said that he’d been drinking on and off for good proportion of his life. And so said to him, well, you obviously have to stop being on these medications, and said to him, would you think you’d be able to stop by yourself or do you think you need some help? And he said, no, he thinks he can stop by himself. Did you offer to send him for some assessment or rehab? did and he said that he didn’t feel it was necessary. He said he thinks he can stop by himself. Did it cause you concern that one of the most common medical causes of depressive episodes, other than primary depression, is alcohol? It did cause me concern and it still does to this day. It still does? Yeah. And he may not have depression. It may be as result of his drinking and his drug intake; isn’t that correct? That’s correct. And once again going through this, and think you’ve agreed, “The most common medical causes of depressive episode (other than primary depression) include: Substance abuse and/or dependence involving sedatives, especially alcohol”? Alcohol is the biggest cause of depression there is. And the use of alcohol can cause the same type of symptoms as the depression? Absolutely. And that’s compounded if, in fact, he’s taking drugs such as marihuana? Oh, yeah, it’s compounded, very much so. So you had sent him—so at this point in time it was causing you some concern as to whether or not it was clinical depression or if it was depressive symptoms as result of his drinking; isn’t that correct? That’s correct, it absolutely was big concern for me. ... Did you continue to talk to him about his use of alcohol throughout this period of time? Yeah, spoke to him about it on every visit. said to him, so how’s the drinking going? You know that you shouldn’t be drinking on these medications, and said, are you drinking? And his stock answer to me was, have couple of beers every now and again. That was his stock answer to me. So the bottom line was he hadn’t quit drinking? Absolutely. ... No. And the types of symptoms that he was showing with are consistent with the use of alcohol and drugs as well? Absolutely. Sure they are. And, mean, as you can see on January the 14th of '02, he’s smoking marihuana and drinking still. ... And then we go to this January the 14th of '02. He comes in, he’s not doing that well, he’s smoking marihuana and drinking? Absolutely. He’s taking medication, but he’s having many anxiety episodes, which explain to him could largely be brought on by his marihuana that he’s mixing with his alcohol, and the fact that the medications aren’t working is because he’s drinking excessively. ... So covering both of those aspects to determine whether or not he was actually depressed or if it was because of his drinking? Correct. said, listen, you’ve got to go and get some help with regards to this. can send you to the right people to look at your alcoholism and to look at your depression, and he refused. Did he say why? He said, think can stop drinking. think can get this under control. just need my medication. So said, well, can’t force you, but don’t think you can get it under control because it’s been going on for many years now. And to the best of your knowledge, he hasn’t got it under control; it’s still going on? Correct, to the best of my knowledge. ... So basically what we’re dealing with is if—or what is causing his major problems is self-induced? Correct. If he stops his drinking, stops the drugs, he can go back to work right now, can’t he? would say he probably would need to be on his antidepressant medication, but if he stayed on his antidepressant medication and if he stopped drinking and he stopped using marihuana, he would be able to go back to work And that’s been the situation from day one, if he stayed away from the booze, stayed away from the marihuana, took his medication? think that that’s been his problem all his life has been his booze, yes. And that’s what we’re talking about, his booze? Yeah, think that’s been his big problem. And, in fact, if he stopped the booze and if he stopped the medication—I think as you said earlier, he may not need any medication because that may be causing his symptoms? Correct. would say that you’ve summed it up. He may not, but certainly think that if he stopped drinking and he stopped taking his marihuana, he would be able to go back to work. could control that depression if there indeed was still depression, which there may not be, as you say. agree with you. ... But even with his situation, as you’ve said, the alcohol, he could go out and do—there are all kinds of jobs that he could do? For example, out on the farm, he could do that? He could. And he could have done that from day one? He could. I’ve never felt as result of never attending, never going to the hospital because he was that bad, I’ve never seen any suicidal ideation, and I’ve never ever seen any kind of situation where I’ve felt that he’s been too depressed to work. So the answer to that question is, yes, do believe that he could even do something now. There are people— He could have since 2002? ... Going back to the time that you signed the first one with Human Resources, he could have gone out and done construction work, he could have done manual labour work, he could have done farm work, he could have done siding, he could have done all of that? told him so. Yes, and he was well aware of that and he could have done it then and he can still do it today? Yes. And he can go out and earn money to pay something towards his daughter? [33] The Court recognizes that alcoholism is disease and that in chronic state can be debilitating. In the exchange quoted above, Dr. Hatfield emphasizes that Mr. Dorosh exacerbates his depression and anxiety with the use of alcohol and marijuana. At minimum, with abstinence and medication Mr. Dorosh could function normally. At best, with abstinence Mr. Dorosh’s anxiety and depression may be eliminated. In either scenario, Dr. Hatfield states that since 2002 he believes Mr. Dorosh could have worked and thereby contributed to Letitia’s support. [34] Based upon this medical evidence I cannot conclude that Mr. Dorosh’s generalized anxiety and depression disorder is beyond his own control—that is, Dr. Hatfield does not say that Mr. Dorosh was, is or will be incurable. He is not hopelessly addicted and never has been. If that were so, would equate such hopeless addiction as debilitating illness which precluded Mr. Dorosh from working and thereby earning livelihood by which he could contribute to the support of his daughter. If that were the case, would have cancelled the accumulated arrears because Mr. Dorosh’s illness was beyond his control. However, the evidence of Dr. Hatfield, and indeed of Mr. Dorosh himself, is that Mr. Dorosh still has power over his own destiny and could choose to help himself by eliminating alcohol and marijuana use. [35] Mr. Dorosh’s health nemesis must be examined in light of the law regarding rescission of child support arrears. The burden of proof or onus to show that nonpayment of child support over the time the arrears accrued was the consequence of matters over which he had little or no control lies upon the applicant/payor, Mr. Dorosh. In his pleadings he stated Letitia resided with him 50% of the time, fact which is not true. In his oral argument, Mr. Dorosh relied almost exclusively upon the fact that his depression and anxiety disorder was reason to expunge the arrears of support and to reduce his future obligation to zero. find this argument totally lacks merit. [36] At no time in his affidavit material, nor oral argument, did Mr. Dorosh make reference to alcohol or marijuana. He urged the Court to believe that his depression and anxiety disorder is genetic in origin. Dr. Hatfield confirmed the extent to which alcohol and drug misuse is self-inflicted and that even were the depression and anxiety physiologically manifested, that proper use of medication would control the disorder permitting Mr. Dorosh to work. Dr. Hatfield also would not foreclosure the prospect that abstaining from the use of alcohol and marijuana may eliminate the depression and anxiety symptoms altogether, thereby removing the need for medication. Therefore find that Mr. Dorosh was capable of controlling his depression and anxiety by either abstaining, or by abstaining and using his medication properly, throughout the period 2002 to the present. Mr. Dorosh has failed to meet the burden of proof by demonstrating that his depression and anxiety disorder was the consequence of origin and factors beyond his control and thus preventing him from working and having an income with which to pay his child support obligations during the period under review. The application for variation of child support and cancellation of child support arrears is dismissed with costs. [37] To assist Mr. Dorosh in understanding the applicable law, quote from the recent decision of Madam Justice Wilkinson of this Court delivered in the case of Stadnyk v. Stadnyk, 2004 SKQB 230 (CanLII); [2004] S.J. No. 355 (QL) (Sask. Q.B.), together with the authorities quoted therein. Paragraphs 26, 30 and 33 of that decision are instructive: [26] The established jurisprudence, as outlined in Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C.C.A.) and Pagani v. Pagani, 2000 BCSC 75 (CanLII), [1999] B.C.J. No. 3051 (B.C.S.C.) (QL), is that the court must consider not only the amount of income actually earned, but also the amount that could be earned if payor was working to capacity. The general rule is that parent cannot avoid child support obligations by self‑induced reduction of income. The petitioner’s decision to pursue romantic relationship that jeopardized his career potential created self‑induced reduction of income. It cannot stand on any higher footing than an arbitrary termination of employment without justification, or unilateral decision to pursue higher education rather than working. In these cases, the courts have not been prepared to relieve payor of the child support obligation. [30] Recent appellate decisions confirm that parent can be found to be intentionally under‑employed if that parent is not reasonably maximizing his or her income, regardless of whether there is any accompanying intention to avoid child support obligation. See: Llewellyn v. Llewellyn (2002), 2002 BCCA 182 (CanLII), 26 R.F.L. (5th) 389 (B.C.C.A.) and Drygala v. Paul (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.). [33] Except for the limited rescission of arrears affected by this retroactive variation, am not prepared to discharge the arrears further. It must be established not only that payor has present incapacity to pay, but also that he or she will not be able to pay at any time in the future. See: Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), R.F.L. (4th) (Alta. C.A.); Diebel v. Diebel (1997), 1997 CanLII 11005 (SK QB), 28 R.F.L. (4th) 100, 155 Sask. R. 96 (Q.B.). [38] Mr. Dorosh’s belief that he was not able to work since 2002 and cannot work at the present time is self-induced and false belief. If Mr. Dorosh were willing, there is no reason for me to believe that he could not earn an annual income of $24,000.00, which impute as being his annual income for child support purposes. Commencing September 1, 2004, Mr. Dorosh will pay to Ms. Antonowitsch the sum of $202.00 on the first day of each and every month for so long as Letitia is child within the meaning of the Divorce Act. This order, being made subsequent to May 1, 1997, falls under the provisions of the Guidelines and amended provisions of the Income Tax Act, R.S.C. 1985, c. (5th Supp.) with consequence that the amount paid is nondeductible for Mr. Dorosh’s tax purposes and is nontaxable in the hands of Ms. Antonowitsch. The after tax effect should equate to the former level of real support. [39] Ms. Antonowitsch is entitled to her taxable costs against Mr. Dorosh.
FIAT: The issues to be determined on this application are custody, child support and cancellation of the arrears of child support. HELD: 1) On the issue of custody, the mere passage of time, in this instance 9 years, would constitute a material change in circumstances relevant to custody. The child is now 15 years old. The parties are not candidates for joint custody and shared parenting. The child's view of the dysfunctional relationship between her parents compels this Court to preserve the status quo as being in the child's best interests. The petitioner will continue as the sole custodian.  2) The access was varied in January 2004. Nothing has changed to warrant a variation. 3) There was no evidence to support the respondent's statement that the child is living with him half the time. There was no evidence or explanation as to why he has failed to pay child support, which creates the present arrears. The evidence with respect to the respondent's finances was unsworn and out of date. In oral argument, the respondent asserted that he contributed to his daughter's care and that he is contributing to her education trust fund. If these expenditures were in fact made over and above his own cost of living, the Court would be compelled to accept the fact that he has financial resources available to him other that the $9,940 of social assistance which is disclosed in his tax return and financial statement. 4) The essence of the respondent's application for variation of the child support is based on his claim that his health has precluded him from working. The respondent's doctor was examined and, based on that medical evidence, the Court could not conclude that the respondent's generalized anxiety and depression disorder is beyond his control. The evidence was that the respondent could choose to help himself by eliminating alcohol and marijuana use. The respondent failed to meet the burden of proof by demonstrating that his depression and anxiety disorder was the consequence of factors beyond his control and thus preventing him from working and having an income with which to pay his child support obligations during the period under review. The application for variation of child support and cancellation of child support arrears is dismissed with costs.