nan QUEEN’S BENCH FOR SASKATCHEWAN Date: 2013 07 04 Citation: 2013 SKQB 264 Docket: U.F.C. No. 1020 of 1993 Judicial Centre: Saskatoon, Family Law Division BETWEEN: SITHEMBILE BERYL NKWAZI and GEOFFREY NKWAZI Counsel: Sithembile Beryl Nkwazi petitioner, on her own behalf Jason R. Brunton for the respondent FIAT DUFOUR J. July 4, 2013 1) The respondent is medical specialist who seeks to expunge child support arrears that have accumulated as result of his not paying child support for many years. He is 72 years old and practising internal medicine and rheumatology in the United States. He is looking to retire in the next few years and does not want the issue of child support arrears to interfere with his plans. 2) The petitioner is 63 years old, deeply in debt, on long term disability and still caring for one of their children who will likely never be independent because he suffers from serious mental illness. The application 3) The respondent seeks to vary two orders, one that was issued in 1998 and the other that was issued in 2001. He wants to expunge the arrears in respect of each and also seeks a declaration that their three children are no longer children of the marriage. Brief history 4) The petitioner originally hails from Zimbabwe and the respondent from Malawi. Although the dates are not absolutely clear in the materials, they lived together in England for several years prior to getting married in 1983. The petitioner was registered nurse and the respondent was in residency in rheumatology and internal medicine. At some point they moved to Moose Jaw where the respondent completed his residency. 5) They had three children during their years together: Mandela was born in October, 1978 and the twins Bogani and Thabani were born in September, 1984. The respondent moved to Ontario after the parties separated in 1988 and took job with medical clinic for about $175,000 year. The children stayed with the petitioner in Moose Jaw. The petitioner was not able work as registered nurse in Saskatchewan until she upgraded her education, which she did slowly over the years as and when she could afford it. 6) From the very beginning, the respondent vigorously resisted paying much in the way of child and spousal support. He was adamant that he should not pay more than $2,000 month total because she and the children ate simple, inexpensive African diet and did not need more than that. He was especially chafed by spousal support obligations. The petitioner averred, and the respondent did not dispute, that he said to her “you are not my relative why should support you?” 7) The first few years after the separation were marked by continual stream of vigorously contested applications over spousal and child support. The respondent retained prominent Regina lawyer Dr. Morris Schumiacher. It appears that no expense was spared, with Dr. Schumiacher filing lengthy dissertations of law and fact tomes even on applications where very little money was at issue. The petitioner hired E.F.A. Merchant who was almost always successful, obtaining orders for both spousal and child support. Neither of these two prominent lawyers comes cheaply. 8) Obtaining support order, however, was not synonymous with obtaining support. The respondent often simply stopped paying the ordered support for periods of time or paid less than ordered. Sometimes the petitioner had to resort to welfare to provide for the children. She was unable to put the children into extracurricular activities such as soccer and, as she put it, they “lived on sick leave, holiday pay and borrowing.” 9) The respondent left his stable, lucrative employment in Ontario in 1994 and moved to Milwaukee. Even though there was great demand in Canada for doctors with his specialties, he said that the prospects were better in the United States. 10) The legal wrangling over child and spousal support continued. By 1997 the respondent was $46,000 in arrears, most of it being in respect of child support. With nothing coming in and in desperate straits, the petitioner brought an application to have him cited for contempt. This was the eighth contested application in as many years. With the respondent gearing up to resist once again, and her being unable to afford more legal bills, the petitioner accepted his offer of $24,000 rather than fight for the $46,000 to which she was entitled. 11) Then, just six months later, and despite just having shed $22,000 of support arrears, the respondent brought an application to reduce his child support obligation of $2,500 month because, he said, he was earning less money than he had earned in the past. Wilkinson J. carefully analysed the materials, which included engaging in labourious and tedious comparison of the U.S. and Canadian taxation systems and costs of living. In the end, she imputed income to him of $177,000 and ordered him to pay $2,589 per month in child support. 12) The respondent was back year after that, again seeking to reduce his child support obligations. This time it was because the medical clinic for which he was working in Milwaukee had closed its doors. Rather than take other employment in the United States or in Canada, he opened his own clinic and made very little: $59,000 in 1999, nothing in 2000 and $15,000 in 2001. The respondent had not been paying child support for some time by this point and the petitioner was tapped out. She could not afford lawyer and relied on the kindness of her Regina lawyer Jim Vogel, who represented her at no charge (as an aside, the petitioner exhibited Mr. Vogel’s file to her most recent affidavit. Even though he was not being paid, and did not expect to be paid, he went to extraordinary lengths for not inconsiderable length of time in an effort to have the respondent pay the petitioner that which he owed. He did not send her bill.). Wilkinson J. reduced his support obligations somewhat, imputing income to him in the amount of $109,912. Her fiat of March 7, 2001 read: The essence of the respondent father’s argument is that the only possible solution available to him, as specialist in internal medicine, was to start up his own medical practice at the age of 59, after many years of salaried employment. ... On many past occasions the respondent has acknowledged the competitive nature of the medical community in Milwaukee and there are significantly more physicians there than there are per capita in Saskatchewan or in other parts of Canada. ... His sole incentive for moving to Milwaukee in the first place was the opportunity to earn more income than he could in Canada. His prospects in Milwaukee have greatly diminished, while there is currently an urgent need for specialists in Canada. ... To embark on private practice at the age of 59 in foreign country where one possesses neither the security of citizenship nor the guarantee of the right to work permanently, is not the most reasonable option in all of the circumstances. ... while the respondent was working in Canada, he had an average annual income, after expenses, of $109,912 by his own calculations. As the most conservative estimate of his income earning capacity, this is, in all the circumstances, reasonable income level to be imputed to the respondent for present purposes. 13) Wilkinson J. ordered that the respondent pay $1,683 in s. basic child support pursuant to the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] and further $249 per month in s. expenses. The respondent had not been paying child support on the 1998 order and he did not pay on this one either. He violated the order right off the bat: in the last six months of 2001, he paid total of $383; he paid $2,335 in 2002, $3,742 in 2003 and $298 in 2004. 14) Actually, to say that the respondent “paid” the support is not accurate. In fact, almost every dollar that was applied to child support was taken from the respondent by garnishment process or the interception of federal government monies directed to him. He did not pay child support willingly it had to be snatched away from him. 15) Now the respondent is back before the Court, this time seeking to expunge the arrears that have accrued on both the 1998 and 2001 orders in preparation for his retirement. The petitioner is on long‑term disability. She has been diagnosed with generalized anxiety disorder and depression (backed up by up-to-date medical reports). 16) There are arrears in respect to both orders. will first deal with the arrears that accrued pursuant to the July 20, 1998 order because there is no dispute as to the calculations. Income was imputed to the respondent in the amount of $177,000 and he was ordered to pay $2,589 per month in child support. He paid the ordered amount for while but by September, 1999 was paying only fraction of that. In 2000, he paid only $1,317 of the $31,068 he was obliged by order to pay. He was in arrears of approximately $40,000 by the time of the March, 2001 order. Over the next 11 years, the Saskatchewan Maintenance Enforcement Office (MEO) managed to collect more than $30,000 in dribs and drabs by garnishment process or the interception of money. Neither party disagreed with MEO’s calculations that the arrears in respect to the 1998 order were $7,008 as at April, 2013. The respondent’s positions in respect of the March 7, 2001 order 17) The respondent’s first argument is that he actually overpaid child support because, he says, his child support obligations should not be based on the last imputed income of $109,912 but, rather, on his actual income over the years. He supplied voluminous financial documentation to show that his actual earned income was: 1998 $105,195 2005 $64,577 1999 $59,037 2006 $62,743 2000 $0.00 2007 $83,383 2001 $15,130 2008 $73,942 2002 $20,600 2009 $74,793 2003 $43,003 2010 $88,085 2004 $59,000 2011 $87,754* *this does not include his pension income, which brings his actual 2011 income to just under $105,000 18) The respondent calculates that using the Guideline table on these incomes, he actually overpaid child support by $40,000. take his argument to be that, as matter of right, his child support obligations should be calculated using the income he actually earned. I do not accept that assertion. Let us back up moment. The 1998 order imputing his income to be $177,000 was varied on March 7, 2001 when his income was imputed to be $109,912 and this resulted in lowering his monthly child support obligation to $1,683. The 2001 order has not been varied and therefore his child support obligations are still calculated on an income of $109,912. His actual income is only relevant to my considerations as to whether ought to exercise my discretion to rescind or reduce the arrears that have accrued. will address that issue later in this fiat. 19) The respondent’s second argument is that if do not accept his primary argument which do not all arrears should be expunged. He does not state in his application just how much the arrears are that he wants expunged, but it appears that he believes them to be $32,865. They are actually much, much higher. The respondent’s mistake is that he does not understand the way MEO functions. MEO puts out documents called statements of arrears. The statements have two columns one listing how much money ought to have been paid each month and the other showing how much was actually paid each month and then tallies the difference (the arrears) when someone asks for statement. Here, the MEO statement shows the arrears to be $32,865 as at October, 2004. The MEO statement does not record ongoing monthly child support obligations of $1,689 after that date. That does not mean and this is where the respondent made his mistake that his child support obligation ceased as at October, 2004, it simply means that MEO has stopped recording it on the statements. It is commonplace for MEO to stop recording ongoing child support payments once the children have turned 18. That is what happened here. The respondent’s child support obligation under the 2001 order continued even though MEO did not record it on its statement. Calculating the amount of child support the respondent ought to have paid 20) The first step is to determine the applicable Guideline support payable based on the number of their children who were children of the marriage during different time periods. “child of the marriage” as defined in the Divorce Act, R.S.C. 1985, c. (2nd Supp.) is one who is under the age of majority or over the age of majority “... and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. child remains “child of the marriage” until order of the Court or agreement of the parties (Smith v. Smith, 2007 SKQB 294 (CanLII), 301 Sask.R. 75). The respondent asserts, and the petitioner does not dispute, that Mandela ceased to be child of the marriage in 2002 when he completed his university studies. They also agree that Bogani ceased being child of the marriage in 2008 when she discontinued her university studies. There is no agreement in respect of Thabani. 21) The respondent says that Thabani ceased being child of the marriage in 2002 when he turned 18. The petitioner disagrees, and so do I. Thabani suffers from a serious psychotic illness and has lived with the petitioner continuously. The petitioner exhibited recent medical report that states Thabani “continues to receive treatment for Schizophrenia, the effects of which have left him incapable of living independently at the present time.” Based on that opinion and the petitioner’s affidavit, find that Thabani remains child of the marriage (See: Briard v. Briard, 2010 BCCA 431 (CanLII), 94 R.F.L. (6th) 33). 22) In summary, I find that Mandela ceased to be a child of the marriage on June 30, 2002 and Bogani ceased being a child of the marriage on June 30, 2008 (June 30 being the approximate date of the end of the school year). Thabani continues to be a child of the marriage. Using the respondent’s imputed income of $109,000 and the dates upon which Mandela and Bogani ceased to be children of the marriage, it is possible to calculate the amount of child support owed by the respondent: July 1, 2001 June 30, 2002: (although the order was issued in March, 2001, it was not effective until July 1, 2001). This is the period during which all three children were children of the marriage. The s. Guideline support payable was $20,196 ($1,683 12) and the s. support was $2,988 ($249 12) for total arrears of $23,184. July 1, 2002 June 30, 2008: Bogani and Thabani were children of the marriage during this period. The s. Guideline support for this period is $1,493 per month for total of $107,496 ($1,493 72). There is not enough evidence for me to calculate s. expenses with any degree of accuracy, so will not include them. July 1, 2008 June 30, 2013: only Thabani was child of the marriage during this period. The s. Guideline amount is $927 per month for total of $55,620 ($927 60). 23) In summary, the total amount the respondent should have paid under the 2001 order is $186,300. Child support collected from the respondent between July 1, 2001 April 12, 2013 24) Money was collected from the respondent in respect of the 2001 order as follows: 2001 (July to December) 383 2007 2013 In total, the respondent paid $9,562 under the March 7, 2001 order. Total arrears 25) The respondent avers that he “helped Mandela” with the cost of his university education and that he paid Bogani’s university tuition. He did not indicate how much that was and he provided no receipts. will give him no credit for any amounts that he might have paid in this respect. He also deposed that he gives Bogani $7,250 year to help her with her rent. The petitioner says that he loaned Bogani that amount of money in 2012 and expects to be paid back. In any event, such loan(s) or gift(s) occurred after Bogani ceased to be child of the marriage and is therefore not relevant. 26) The arrears under the 1998 order are $7,008 and the arrears under the 2001 order are $176,738 ($186,300 - $9,562). His total arrears are $183,746. Should the arrears be expunged or reduced? 27) The starting point in considering an application to expunge arrears is that, in the absence of some special circumstance, arrears should only be expunged where the payee has established on balance of probabilities that he or she cannot pay and will not in the future be able to pay, the arrears. 28) After that determination is made, the Court usually considers variety of factors, such as those found in the decision of M-E. Wright J., Wurmlinger v. Cyca, 2003 SKQB 152 (CanLII), 231 Sask.R. 282, at para. 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 payment of arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. 29) In addition, many courts consider the criteria set out in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII), [2006] S.C.R. 231 (“D.B.S.”) with some modifications. In Jean‑Francois v. Barnes, 2012 ONCJ 124 (CanLII), [2012] O.J. No. 1080 (QL), the Court phrased the four primary factors for the Court to consider in applications to expunge arrears (at para 58) as: a) The reason for the delay in bringing the motion to change. b) The conduct of the parties. c) The circumstances of the child, both past and present. d) Any undue hardship to either party. (See as well: Vaughan v. Vaughan, 2007 ONCJ 21 (CanLII), [2007] O.J. No. 138 (QL); Collins v. Garmoe, 2012 ONCJ 244 (CanLII), [2012] O.J. No. 1872(QL); Galloway v. Cassino (Barrett), 2008 ONCJ 577 (CanLII), [2008] O.J. No. 4525 (QL); and Corcios v. Burgos, 2011 ONSC 3326 (CanLII), [2011] O.J. No. 2422 (QL)) 30) will begin with the threshold factor: the onus is on the respondent to establish on balance of probabilities that he cannot now pay, and will not in the future be able to pay, the arrears. The respondent comes up well short. In fact, his materials indicate that he can pay off the arrears in few years without altering his lifestyle. 31) The respondent’s financial statement shows that his 2011 income (employment and pension) was $104,450. The expense portion of his financial statement shows annual expenses of $90,560 which, he says, would leave him with an annual surplus of $13,890. After reviewing his itemized expenses, however, find that the surplus far exceeds that amount. will deduct the following of the respondent’s “expenses” from his calculations: $11,000 for new roof in 2011 that is one time expense $1,920 for “other” some nature of explanation is required $7,250 for rent and transportation for Bogani the respondent’s desire to gift or loan money to Bogani is discretionary and will not allow him this item as an expense. $35,000 for child support. suspect that the respondent is referring to that which he thinks are his total arrears. Actually, $5,427 was collected from him in 2011 but because my purpose in examining the respondent’s financial statement is to determine how much is available for the payment of child support arrears, will remove this item from his expenses. 32) After removing the above from the expense portion of his financial statement, the respondent had about $58,000 left over after paying his living expenses in 2011. Further, note from the respondent’s income tax returns that he owns house that does not have mortgage and which was valued at more than $200,000 for the purpose of the property tax assessment. 33) Considering the above, I cannot find that the respondent does not have the ability to pay the arrears, which I have calculated to be $183,746. The respondent says that he is “hoping to retire in the next two years or so ... If am unsuccessful in this application, will have to continue to work into my eighties....” He overstates the case based on his 2011 income and expenses, he can pay off the arrears in about three years. 34) Although it is hardly necessary after this finding, will comment on some of the other factors set out in Wurmlinger and D.B.S. 35) The respondent says that he did not have the ability to pay the arrears at the time that they were incurred. Not so. He had the “ability” to pay the arrears because he could have taken employment that paid him at least $110,000 year. He knew that he was expected to maximize his earning capacity but simply chose not to. Now, some 12 years later, he argues that the Court should use his actual, rather than his imputed income. The fact remains that rather than seek employment that could pay him handsomely, he chose to flail away in private practice for years and earn much less than he otherwise would have. The law as it pertains to imputed income has not changed. In V.G.B. v. E.H., 2004 SKQB 280 (CanLII), 250 Sask.R. 272, Ryan Froslie J. (at para. 17) endorsed principles set out in an article by author Julien Payne, which principles include: 4. Persistence in unremunerative employment may entitle the court to impute income. 5. parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As general rule, parent cannot avoid child support obligations by self‑induced reduction of income. 36) These principles hold true today. The respondent has provided no reason why he chose the financially less rewarding route and therefore see no reason to vary Wilkinson J.’s order that he pay child support based on an imputed income of $109,912. 37) now turn briefly to the D.B.S. factors. The respondent did not say why he brought this application to expunge arrears. am somewhat perplexed, but more so intrigued. With few rare exceptions, he has not been complying with any of the many support orders that have issued over the last 25 years or so. He managed to get away with paying only about 5% of that which he owes pursuant to the 2001 order. Why is he concerned now? do not know but doubt it is because he wants to clear his conscience. 38) The arrears have mounted considerably over the years and, in some cases, it might be appropriate to reduce them because of the passage of time. No so here. From the respondent’s pattern of non‑payment, have no hesitation in finding his conduct to be blameworthy, as described in D.B.S., at paras. 106 and 107: [106] ... would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.... [107] ... payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct ... 39) Then there is the issue of whether there is undue hardship to the parties. The respondent is putting money away for his retirement. He says that he does not know how long he will be able to work because he has “recently been battling prostate cancer and had surgery in 2008 with respect to the cancer was battling. also suffer from high blood pressure and hypertension, which am currently being treated for.” He provides no independent verification to support his claims of illness or how his medical condition might affect his ability to work or earn an income. The petitioner says that Mandela told her that the cancer has been in remission for five years an assertion with which the respondent does not disagree. do not consider the respondent’s claims of illness to be worthy of much consideration. 40) As indicated above, the respondent will have few lean years until he has paid off the arrears of child support. Yes, that will be bit of hardship. But not an undue hardship. For an example of undue hardship, consider the petitioner’s plight. 41) The petitioner has struggled for 25 years to get the respondent to pay child support. She was not very successful. She and the children often lived like paupers, accepting welfare when she was simply unable to earn enough to pay for the children’s care. Now she is 63 years old, suffering from anxiety and depression and on long term disability. She receives $43,000 year. But for his child support arrears, the respondent is in the black. The petitioner is not even close. She still makes monthly payments on the $106,000 of debt that remains from that which she borrowed to support the herself and the children during the many periods of time that the respondent stopped paying support. She continues to care for Thabani, who has serious psychotic illness and may be dependent on her for the rest of her life. She receives some money from Social Services to help defray the costs of Thabani’s care but she has so much debt to service that she cannot put money away for Thabani’s care after she passes. That is undue hardship. 42) Now the respondent seeks to extinguish the arrears because he wants to prepare for his retirement. Even if he has to work longer than he wants, so be it the petitioner should receive the full amount that, but for his dodging his obligations, would have been available to her when she was raising their children. It is repugnant to even suggest reducing the arrears. 43) order as follows: 1. The respondent’s application to reduce or expunge child support arrears is dismissed. 2. As of April 30, 2013, the respondent’s arrears under the orders of Madam Justice Wilkinson dated March 7, 2001 and July 20, 1998 are fixed at $183,746. 3. The children Mandala and Bogani are no longer children of the marriage. 4. The child Thabani remains a child of the marriage. 5. Commencing June 1, 2013 and continuing on the first day of each month thereafter until further order of the Court, the respondent shall pay basic child support in the amount of $927 per month. 44) Given that the petitioner was self represented, there shall be no order as to costs. J. G. D. Dufour
The parties had three children during their marriage. After the marriage ended in 1988, the husband respondent, medical specialist, moved from Moose Jaw to Ontario where his annual income was about $175,000. The children stayed with the petitioner wife in Moose Jaw. She was not able to work as registered nurse until she upgraded her education, which she slowly did as she could afford it. She and the children lived on very little income and relied upon social assistance because the respondent often did not pay child support. The parties were regularly in court. In 1994, the respondent left his position in Ontario and moved to Milwaukee, believing his prospects were better in the U.S. However, he lost his position in Milwaukee and opened his own clinic. His income dropped to as little as $15,000 in 2001. In this application, the respondent applied to vary two support orders, one made in 1998 and the other issued in 2001. He sought to expunge the arrears in respect of each and a declaration that the three children are no longer children of the marriage. His reason for seeking to have the arrears expunged was because he, now 72, wanted to retire in the next couple of years. The petitioner, 63, deeply in debt and on long-term disability, was still caring for one of their children because he suffers from schizophrenia. HELD: The Court held that two of the children had ceased to be children of the marriage as of 2002 and 2008 respectively. With respect to the third child, the Court found that as a result of the serious and long-term mental health problems suffered by him, he remained a child of the marriage. The Court then found that the respondent's arrears in respect of the 1998 child support order were $7,000. Based upon the respondent's imputed income of $109,000 per year established by the Court in its 2001 order, and the dates upon which the two children ceased to be so under the Divorce Act, the Court calculated the amount of child support owed by the respondent at $186,300. The Court rejected the respondent's argument that he could not afford to pay the arrears because his expenses left him with an income surplus of only $13,000. The Court discounted most of the claimed expenses and found that the respondent had $58,000 at his disposal and therefore had the ability to pay his arrears. The Court found that the respondent had chosen to minimize his earning capacity by staying in the U.S. in private practice and thus the respondent could not assert that the Court should use his actual income rather than his imputed income to vary the amount of child support he was ordered to pay in 2001. The undue hardship that the petitioner had suffered for 25 years constituted the most compelling reason for the Court to refuse to reduce or expunge the respondent's arrears. The application was dismissed and the respondent ordered to pay arrears and to pay child support in the amount of $927.