Alisha Marie Amey - v. -, 2015 SKPC 081

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 081 Date: June 2, 2015 Location: Moose Jaw _____________________________________________________________________________ Between: Alisha Marie Amey - and - Obang Apijiu Omot Appearing: Phillip Ventzek For the Claimant James Struthers, Q.C. For the Respondent JUDGMENT M. GORDON, J INTRODUCTION [ 1 ] The only issues are the quantum of child support and child care expenses that the respondent should pay the applicant for the child Noah William Patrick Amey, born May 28, 2013. This involves the Court determining the respondent’s income.

The proceedings are governed by s. 3 of The Family Maintenance Act, 1997 and the child support guideline tables for Saskatchewan. [ 2 ] There were numerous interim orders made, the first one being November 25, 2014, in which the respondent was to pay $164.00 in child support. Likewise, similar orders were made December 16, 2014, January 27, February 21, March 10 and April 7, 2015. All orders were with respect to child support only (not child care expenses) and they were made without prejudice to either party.

[3] A hearing was held May 19. Both parties had filed his or her financial information. In addition, Mr. Omot had filed anaffidavit. The claimant asks the Court to impute income to the respondent. The claimant argues that Mr. Omot has a history of part-timejobs as well as he was working full-time at the pork plant. He suffered a non-work related accident and was on disability. He later wasfired from the pork plant. At that point, Mr. Omot decided to further his education at SIAST (Sask Polytechnic) and is currently takingupgrading courses in literacy and mathematics.

It is anticipated the courses will last a couple of years. The claimant argues, based onthe cases of Hamblin v Masniuk, 2014 SKQB 284 [Hamblin] and Pontius v Murray, 2011 SKCA 121 [Pontius], that the respondent isdeliberately under-employed. The claimant suggests that a person cannot be relieved of their child support obligations by, in this case,returning to school. In paragraph 9 in Hamblin, Mr. Justice Megaw stated as follows: In Tice, Archambault J. dealt with an applicant who was employed as an electrician but voluntarily left his position to start his ownbusiness.

As is the case here, the applicant in Tice did not apply for any other jobs prior to embarking on his new venture. In refusing togrant the request for variation the court stated: 5 It is now well established law in this province that where a parent voluntarily and without sufficient justification ceases hisemployment to continue education or for some other reason or to engage himself/herself in less lucrative employment, he/she will not berelieved of the obligation to continue supporting dependent children…(cites omitted) [4] In the Pontius case at paragraph 9, Mr.

Justice Ottenbreit has this to say about imputing income: [9] Section 19(1)(

a) of the Federal Child Support Guidelines reads: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of thespouse... The term “under-employed” concerns situations where a parent, for whatever reason, chooses to earn less than they are capable ofearning. “Intentionally” does not necessarily mean that the parent in question is attempting to avoid paying child support or does not carefor the child.

A subjective intent to evade or reduce a child support obligation is therefore not necessary. See: Beisel v. Henderson, 2004SKQB 280 , [2006] 2 W.W.R. 502. [5] Mr. Ventzek, for the claimant, outlined his client’s position in a brief filed with the Court. It is asked that the Court imputeincome of $21,216.00 per year. According to the

summary of child support calculations from Childview from 2015, this would meanthat the child support for Noah would be $164.00 per month and Mr. Omot’s proportionate share of the child care expenses would be at42.91 percent or an additional $57.00 per month for a total of $221.00. There was no disagreement that the claimant Alisha Amey’semployment income is $26,312.00. [6] The claimant also notes that Mr. Omot has never offered, when he was on disability for example, to assist with child care orhave any significant involvement with the child. Mr. Omot has only made two payments in the amount of $164.00 each.

The claimantsays that Mr. Omot could easily work evenings and two full-time shifts on the weekend and still get his school work done. [7] Mr. Struthers, on behalf of the respondent, points out that Mr. Omot is attending school and receiving a provincial trainingallowance of $744.00 per month for 10 months of the year. According to the information filed, it is expected Mr. Omot will take twoyears to complete his education at SIAST. [8] Mr. Omot’s affidavit indicates that he and the claimant did not cohabit but were involved in a brief sexual relationship in theearly fall of 2012. Mr.

Omot was born in South Sudan Africa and moved with his family as a refugee to Moose Jaw in 2004, when hewas 14. He graduated from Central Collegiate in 2011, however he struggled in school and his final marks were low. He has worked ata number of minimum wage part-time service jobs over the years. He was working at the pork plant which was full-time and was paid$18.00 per hour. However, due to a non-workplace incident, he froze his right hand and later was terminated from the pork plant. It wasat this time he decided to return to school and upgrade his education. School is Monday to Friday from 8:50 to 3:30. Mr.

Omot says that

he has reading and assignments to do after school. His counsel says that Mr. Omot can look for some part-time work but the Court must consider what reasonably can be expected from Mr. Omot at this point in time. [ 9 ] Apparently there were some discussions between counsel to have Mr. Omot seeing the child on a regular basis. I do not find that Mr. Omot left his full-time employment to avoid his child support obligations. I find that his decision to return to school and improve is a valid and legitimate one which will benefit not only himself but his child and, quite frankly, society.

He will have an opportunity to obtain employment at more than minimum wage. The provincial training allowance is only $744.00 per month. Obviously Mr. Omot will have to supplement that by working at least part-time. I also noted that the two months of the summer he could work as well. I am prepared to accept the calculations put forward by Mr. Struthers on behalf of Mr. Omot. Therefore the provincial training allowance of $744.00 per month for 10 months is $7,440.00. I am prepared to impute income of $6,788.00 as suggested by the respondent ($14,232.00 minus $7,440.00).

I am satisfied that represents a reasonable amount that Mr. Omot can realistically earn without neglecting his studies. This translates to $84.00 per month child support and his proportionate share of the net child care expenses of $1,604.00 for the year according to the claimant’s evidence which was not disputed. Given the income that I have found, the calculation filed by Mr. Struthers shows that Mr. Omot’s proportionate share is 33.52 percent and Ms. Amey’s is 66.48 percent. This translates to $45.00 per month payable by the respondent. Mr. Omot shall pay

section 3 table amount of $84.00 per month for the child Noah as of June 1, 2015 and likewise on the first of each and every month thereafter as well as

section 7 child care expenses in the amount of $45.00 per month. This totals $119.00 per month. [ 10 ] With respect to the period from November 25, 2014, the first return date of this application, I accept the calculation of Mr. Omot’s gross annual income for 2014 as filed by the claimant’s solicitor. In

summary, the total non-taxable disability insurance income was $15,291.36. This is grossed up non-table income to $20,590.00 and his year to date earnings from the pork plant are $10,481.31. So the total gross annual income for child support purposes for 2014, I accept at $31,071.31. [ 11 ] The claimant asks for $164.00 per month child support and this was granted by way of the interim orders. There have only been two payments made. The first return date of the application, as I have said, was November 25. Mr.

Omot was served by registered mail on November 4 and the first interim order was made on November 25 for $164.00 to be paid by December 1. Therefore I calculate the arrears for 2014 to be $164.00 X 2, which equals $328.00. I understand that Mr. Omot has made these two payments. [ 12 ] The ongoing table child support for 2015 will be based on the income that I have calculated based on the respondent’s submissions for 2015 in the amount of $14,232.00. Mr. Omot therefore should have paid a total of $119.00 per month (child support plus child care) for five months which is a total of $595.00.

He has not made any payments and therefore this amount is due and owing. Counsel did not make any submissions as to how the arrears should or could realistically be paid. I hope counsel will be able to arrive at an agreement with respect to the arrears. Failing that, they may contact the Court and make submissions. M. Gordon, J