nan 2001 SKQB 128 D.I.V. A.D. 1998 No. 148 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: LAYNA KATHLEEN SEGALL (formerly LAYNA KATHLEEN FELLINGER) and RONALD KIM FELLINGER RESPONDENT James J. Vogel for the petitioner Mark H. Hawkins for the respondent JUDGMENT McINTYRE J. March 14, 2001 [1] consent judgment of January 10, 2000 arising out of settlement pre-trial conference provides, inter alia: 2. AND IT IS HEREBY FURTHER ORDERED AND ADJUDGED that the Respondent, Ronald Kim Fellinger, shall have access to the children of the marriage at all reasonable times including the following: a) On alternate weekends from Friday evening at 7:00 p.m. until Sunday evening at 8:30 p.m., to be extended to Monday evening in the event of long weekend.... 3. AND IT IS HEREBY FURTHER ORDERED AND ADJUDGED that the Respondent, Ronald Kim Fellinger, shall pay the Petitioner, Layna Kathleen Segall, for the support, maintenance, and education of the children the sum of $1,000.00 per month, such sum representing basic child support of $774.00 per month and further $226.00 per month for the Respondent's proportionate share of child care costs. For purposes of calculating the child support, the income of the Respondent is set at $59,800.00. Under the terms of the judgment the petitioner has custody of their children, Rikki-Lee, age 12 and Lucas, age 7. [2] On November 23, 2000, the respondent served an application to vary the child support provisions of the consent judgment including his contribution to child care expenses as well as the access provisions. The respondent says his income is reduced and refers to his 1999 tax return indicating an income of $42,386.34. It was the respondent's understanding the children no longer attended institutional daycare. The respondent also noted that he works all day Saturday in the family business and that his mother will not provide child care on Saturdays for him any more as result of an incident between his mother and Rikki-Lee. He says there are no suitable babysitters in the area. As he cannot secure child care for the children while he is at work Saturdays, he wishes to have the specified access portion of the judgment varied so as to provide for access to commence every Saturday evening, continuing to Sunday evening. [3] The petitioner works full time for the Government of Saskatchewan. She also takes university classes. While the children are no longer attending commercial daycare facility the petitioner uses child care services in her home. In 1999 she spent $5,357.80 on child care. She produced child care receipts for 2000 of $2,790.00 plus $1,100.00 which is said to be owed to family member. She also provided detailed evidence as to the child care services that she requires as result of either her work or her pursuit of education. She estimates her child care expenses will be something in excess of $4,000.00 this year. The fact that someone may come into her home to provide child care services as opposed to using commercial child care service is of no consequence. Counsel for the respondent acknowledged that the petitioner would have about $4,000.00 in child care expense. [4] The petitioner says they agreed upon child support in total amount of $1,000.00 per month at the settlement pre-trial conference, not based upon his reported income but rather, to reflect his true income including cash and unreported income. The petitioner says that the most current income tax return of the respondent available at the pre-trial conference was his 1998 tax return which indicated an income of $43,209.40. It was also noted that his prior tax returns never showed reported income of any where near $59,800.00. The petitioner's evidence also indicated lifestyle and spending during the marriage which was inconsistent with his reported income. [5] As noted the respondent's 1999 tax return shows an income of $42,386.00. The respondent suggests his income in 2000 will be $44,000.00. The respondent says that he agreed to child support based upon an income of $59,800.00 because he would receive fairly substantial gifts of money from his father each year. His father died June, 1999 (before the pre-trial conference) and the respondent says he has not received any gifts since that time. He says his mother is not able to afford to help him in the same way as his father did. note the respondent indicates that over the years his father had managed to put away substantial amount of money. His father's will left house in Moose Jaw to one son and the family business to four sons in equal shares, including the respondent. The residue of his estate was left to his wife. The respondent says he did not agree to impute income at the pre-trial conference. He says "I simply agreed to pay child support at this amount". The petitioner says the agreement at the pre-trial was not based on the gifts but rather what she describes as his true income. [6] Pertinent provisions of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) (the "Act") and the Federal Child Support Guidelines (SOR/97-175, as am.) (the "guidelines") include: The Divorce Act 15.1(1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to pay for the support of any or all children of the marriage. (3) court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. (7) Notwithstanding subsection (3), court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. (8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. 17.(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (b) custody order or any provision thereof on application by either or both former spouses or by any other person. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (5) Before the court makes variation order in respect of custody order, the court shall satisfy itself that there has been change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. The Guidelines 3.(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. 14. For the purpose of subsection 17(4) of the Act, any one of the following constitutes change of circumstances that gives rise to the making of variation order in respect of child support order: (a) in the case where the amount of child support includes determination made in accordance with the applicable table, any change in circumstances that would result in different child support order or any provision thereof; (b) in the case where the amount of child support does not include determination made in accordance with table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section of chapter of the Statutes of Canada, (1997). 15.(1) Subject to subsection (2), spouse's annual income is determined by the court in accordance with sections 16 to 20. (2) Where both spouses agree in writing on the annual income of spouse, the court may consider that amount to be the spouse's income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21. 19.(1) The court may impute such amount of income to spouse as it considers appropriate in the circumstances .... Variation of the Access Order [7] Pursuant to s. 17(5) of the Act the onus is on the respondent to satisfy the Court that there has been change in the condition, means, needs or other circumstances of the children so as to warrant variation of that part of the custody order which deals with access. Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670 requires that any change of circumstance relied upon must constitute material change of circumstance which is defined as "change, such that, if known at the time, would likely have resulted in different terms;" and "that if the matter which is relied on as constituting the material change was known at the relevant time, it cannot be relied upon as basis for variation". [8] The respondent does not suggest that there has been any change in his hours of work or work schedule. What has changed is that his mother is no longer available to provide child care during the day on the Saturday of his access weekends. The respondent lives in less than desirable neighbourhood and says there is no one suitable in the area to babysit the children. He has not satisfied the Court that there are not other child care services available to him. However, irrespective of whether there are other child care services available to the respondent, the fact is that there has been no change in the circumstances of the children since the consent judgment. There is no basis to vary the access provisions of the consent judgment in the manner requested. [9] It is evident from the affidavit material filed by both parties that there is substantial and ongoing conflict between them which affects their ability to make arrangements with respect to the parenting provisions in the consent judgment. As a result there will be an order that the petitioner is not to schedule activities for the children during the respondent's access periods without his consent. There will further be an order that if the respondent chooses not to exercise access during any of his specified access times he is to provide seven days' written notice to the petitioner. If he chooses not to exercise access on Friday night or during the daytime on Saturday, he is to provide the required notice to the petitioner. These orders have been made in order to provide some predictability for the children. It does not constitute a variation of the custody/access regime but rather, specific directions with respect to execution of the custody/access regime. Variation of the Child Support Regime [10] The analysis begins with examining the framework within which the application to vary must be considered. If the parties agreed to impute income to the respondent then the order was made pursuant to s. 15.1(3) of the Act including basic support in table amount based upon the imputed income. If this is the basis of the order the application to vary is to be dealt with under s. 14(a) of the guidelines. The alternative is that it is simply an agreed upon amount that differs from the amount that would be determined in accordance with the applicable guidelines, in which case the order was made pursuant to s. 15.1(7) of the Act and the application is to be dealt with under s. 14(b) of the guidelines. [11] have concluded that it is not necessary to determine which of these two alternate approaches constitutes the basis of the consent judgment as the material question before the Court at this time is the same in both instances. If the parties agreed to impute income the respondent has the onus of satisfying the Court that there has been material change in his condition, means, needs or other circumstances, which if known at the time of the consent judgment, would have resulted in different determination of his income. If the basis of the original order was the imputation of income to the respondent there is no basis to vary just because his subsequent taxable income is less than the imputed income. His taxable income in 1998 was $43,209.40. In 1999 it was $42,386.00 and in 2000 it is anticipated to be $44,000.00. There has been no material change in this regard. The question is whether there has been some other material change of circumstances which would make the income imputed to the respondent inappropriate? [12] If the level of child support was simply an agreed upon amount the question is whether there has been material change in the "condition, means, needs or other circumstances of either spouse or of any child who is entitled to support" pursuant to s. 14(b) of the guidelines. There is no suggested change in the circumstances of either the petitioner or the children. The question is whether there has been any material change in the circumstances of the respondent. Once again there is no material change in the taxable income of the respondent. The questions becomes, in substance, the same as the question posed above. Has there been some other material change of circumstance which would make the agreed upon amount of support inappropriate? [13] The respondent suggests the change of circumstance lies in the fact he says his mother is not able to provide gifts in the same manner as his father did. The question becomes whether the respondent has satisfied the Court that there has been material change in circumstance such that the issue of child support ought to be revisited. In this regard it is noted that the respondent provided no evidence as to the amount, the method or when his father provided him with "gifts" as he describes them. His father passed away prior to the pre-trial conference. The allegation is that he has received no gifts since then and his mother is not able to afford to help him. Without evidence of the earlier gifts there is no means of comparing the present circumstance to the past. The respondent says his mother does not have the means but there is no evidence in this regard. The situation is somewhat akin to that where payor, particularly the self-employed, claim his or her income has changed substantially. The onus is on the individual to provide cogent, and where possible, independent or objective verification of the change of circumstances. This application was brought just ten months after the pre-trial conference. The material does not satisfy the Court there has been any material change in the respondent's circumstances. [14] The application is dismissed with costs to the petitioner fixed in the amount of $1,000.00.
The mother had custody of the 12 and year olds under the terms of the January 10, 2000 consent judgment. The father applied to vary child support in November on the basis of his reduced income. HELD: The application was dismissed with costs to the petitioner fixed at $1,000. The onus is on the applicant to provide cogent, independent or objective verification of change of circumstances. This application was brought 10 months after the pre-trial conference. It was of no consequence that someone may come into the home rather than using commercial day care service. There was no change in the father's hours of work or the schedule. The only change was that the mother was no longer available to provide care during Saturday of his access weekends. The mother was not to schedule activities during the father's access periods without his consent and he was to provide 7 days written notice if he chooses not to exercise access during specified times. This was not a variation of the custody/access regime but rather specific directions to provide some predictability for the children.