2002 SKQB 207 D.I.V. A.D. 1999 No. 678 J.C.R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: CONNI LYNN (CUSTER) FRANKLIN and TOD MASON CUSTER RESPONDENT Mary Lou Senko for the petitioner Lynda D. Bordessa for the respondent FIAT BALL J. May 15, 2002 [1] The respondent father applies to vary a consent order dated April 5, 2001, by reducing his required child support payments from $236.00 per month to $19.00 per month. The consent order was granted one month after the respondent had quit his employment at Lilydale Foods in Wynyard. Although he remained unemployed, the respondent agreed to pay child support based upon an imputed annual income of $17,386.00, which is what he had been earning at Lilydale Foods. [2] The material indicates that the respondent’s circumstances have changed since April of 2001. First, he is now employed as tow truck driver, and says that he is earning an annualized income of only $7,510.00. Second, following the consent order he purchased a one-half ton truck on which he has been making payments of $624.00 per month. Third, he is no longer residing with his girlfriend, with whom he shared expenses. The second and third of these “changed circumstances” do not justify any reduction in his child support obligations. [3] Income should not be imputed to a payor based on former employment that is no longer available or practicable. (See: Magee v. Magee (1997), 1997 CanLII 11187 (SK QB), 159 Sask. R. 223 (Q.B.). The respondent says that he quit his employment at Lilydale Foods, which involved shift work and weekends, so that he could exercise access to his children. Given that he agreed to pay child support based upon imputed income from his former employment, either he expected to earn comparable income elsewhere (failing which he could return to Lilydale Foods), or he quit to avoid his child support obligation. [4] The real issue is whether the respondent is intentionally underemployed or unemployed within the meaning of s. 19(1)(a) of the Federal Child Support Guidelines (SOR/97-175, as am.). I cannot decide that issue on the basis of the material filed. do not know if his former employment remains available or practicable or what efforts he has made to secure alternate employment. [5] I am therefore directing a trial of the issue of whether the respondent is intentionally underemployed to be held before me on a date to be set by the local registrar in consultation with counsel. The onus will be on the respondent to establish that his current employment is commensurate with his ability, experience, training and the market place in which he resides.
FIAT. The father applied to vary the April 2001 consent order, granted 1 month after he quit his employment, by reducing monthly child support payments from $236 to $19. He agreed to pay support based on an imputed annual income of $17,386, although he remained unemployed. HELD: A trial of the issue was directed, as it could not be decided on the material filed whether he was intentionally unemployed or underemployed. The father's circumstances had changed since the consent order. The fact he no longer resided with a girlfriend and was making payments on a truck did not justify any reduction. Income should not be imputed based on former employment that is no longer available or practicable.