(orally) Dated: 19990331 Docket: 3108 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Sherstobitoff JJ.A. GARY DOUGLAS SCHOENROTH and JACQUELINE DAWN RYBA COUNSEL: Mr. M. Phillips for the appellant for the appellant Ms. D. Ansell for the respondent for the respondent DISPOSITION: On Appeal From: D.I.V. No. 003512 of 1995, J.C. of Moose Jaw Appeal Heard: March 26, 1999 Appeal Decided: March 26, 1999 (orally) Written Reasons: March 31, 1999 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Tallis The Honourable Mr. Justice Vancise SHERSTOBITOFF J.A. [1] At the conclusion of the hearing of this appeal, the result of the appeal was announced from the bench with brief written reasons to follow. These are the reasons. [2] The appeal was from an order which varied a child maintenance order. The original order had been based on a written agreement between the parties entered into about a week before the Federal Child Support Guidelines, SOR/97-175, came into effect. The application to vary, made about year later, was based mainly on the coming into effect of the guidelines. [3] The judge hearing the application to vary was faced with conflicting affidavits. She thereupon decided not to allow evidence on all issues in dispute between the parties. She thought that evidence was required on only three issues which she proceeded to define. This decision gave rise to the first ground of appeal. The appellant argued that he was denied the right to lead evidence respecting matters relevant to the issues between the parties. In all of the circumstances of this case, we can not see that the appellant was deprived of the right to lead evidence on any relevant issue and we must accordingly find that the judge made no reversible error. However, we do not wish to be taken to approve of the procedure followed by the judge, and we reaffirm the principles stated in Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (Sask. C.A.). [4] Another ground of appeal was that the judge erred in finding that an order to vary would not be inequitable within the meaning of s. 17(6.2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.), (as am. by S.C. 1997, c. 1), by reason of the terms of the written agreement and resulting order, which, the appellant argued, contained special provisions to benefit the children. We can find no reversible error in the judge’s decision, explained in the reasons for judgment, to reject the appellant’s arguments respecting that issue. [5] Similarly, we can find no error in the judge’s decisions, supported by written reasons, that (a) the appellant did not have custody of or access to the children for enough time to bring him within s. 9 of the Guidelines; (b) the appellant’s income, for the purposes of the Guidelines, should include the bonuses he received from his employer in 1996 and 1997, and (c) Mr. Elliott did not have a business based in the home. [6] The last ground of appeal concerned the $230.00 per month the appellant was ordered to pay in respect of extraordinary expenses for extracurricular activities with the meaning of s. 7(1)(f) of the Guidelines. The judge seems to have proceeded on the assumption that the appellant objected to payment of these amounts only because the respondent never consulted him in respect of incurring the expenses. She erred in this respect. The appellant did say that he had no objection to the children participating in the activities which gave rise to the expenses. However, he also said that he believed such expenses were included in the monthly maintenance payments he agreed to in the written agreement and in the subsequent order based on the agreement. He never said in his evidence that he thought these expenses to be extraordinary so as to fall within the purview of s. 7(1)(f), if the application to vary was successful. Accordingly, the judge never addressed the question as to whether the expenses were extraordinary within the meaning of s. 7(1)(f), or whether, given the standard of living that these children were accustomed to, and given their parents’ income, they were ordinary expenses and thus included in the table amount fixed by s. 3(1)(a) of the Guidelines. [7] The expenses in question related to activities such as swimming, hockey, soccer, gymnastics, snowboarding and music. Absent any evidence to the contrary, it seems to us that the activities were ordinary activities and the expenses were of an ordinary rather than an extraordinary nature, given the income of these children’s parents. Accordingly, the judge erred in requiring the appellant to pay a portion of them under s. 7(1)(f) in addition to the table amount fixed under s. 3(1)(a). [8] That portion of the judgment relating to payments under s. 7(1)(f) of the Guidelines is set aside. In all other respects, the appeal is dismissed. Each party shall bear his and her own costs. DATED at the City of Regina, in the Province of Saskatchewan, this 31st day of March, A.D. 1999. SHERSTOBITOFF J.A. concur. TALLIS J.A. concur. VANCISE J.A.
An appeal from an order varying a child maintenance order which had been based on a written agreement between the parties entered into a week before the Federal Child Support Guidelines came into effect. The application to vary made about a year later was based mainly on the coming into effect of the guidelines. The decision to not to allow evidence on all issues because of conflicting affidavits gave rise to the first ground of appeal. The appellant also argued that the judge erred in finding that an order to vary would not be inequitable within the meaning of s.17(6.2) by reason of the terms of the written agreement and resulting order which contained special provisions to benefit the children. He also objected to the s.7(1)(f) order for $230 per month for extraordinary extracurricular expenses. HELD: The appeal was dismissed with the exception of the payments under s.7(1)(f) which were set aside. 1)The applicant was not denied the right to lead evidence on any relevant issue. Although the judge made no reversible error the procedure followed was not approved of. The principles stated in Zaba v. Bradley were reaffirmed. 2)No reversible error was found in the finding the appellant did not have custody of or access to the children for enough time to bring him within s.9; that the appellant's income for purposes of the Guidelines should include the bonuses received from his employer; and that he did not have a business based in his home. 3)The judge erred in not addressing the question as to whether the expenses were extraordinary within the meaning of s.7(1)(f). The activities were ordinary given the income of the parents and fell within the table amount fixed under s.3(1)(a).  4)Each party was to bear his/her own costs.