PERRY MARTIN KOOT PETITIONER - v. -, 2003 SKQB 129

2003 SKQB 129 DIV. A.D. 19 94 No. 016014 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: PERRY MARTIN KOOT PETITIONER - and - LAURIE LYNN MCLAREN RESPONDENT Perry Martin Koot on his own behalf B. L. Galey for the respondent FIAT RYAN-FROSLIE J. March 20, 2003 [ 1 ] Laurie McLaren applies to vary the order of Justice Maurice dated September 14, 2001 which required her to pay child support of $150 per month. She asks that her ongoing support obligations be set in accordance with the Federal Child Support Guidelines [ Divorce Act Regulations , SOR/97-175 ] and that all arrears be extinguished. ISSUES [ 2 ] The issues are as follows:

1. Has there been a change of circumstances since the making of the order that would warrant a variation? 2. If there has been a change of circumstances, should the order be varied? 3. Should the arrears under the order be extinguished?

FACTS [ 3 ] The affidavit material filed in support of this application is not contradictory and accordingly this Court is in a position to determine the facts necessary to resolve the issues. [ 4 ] Laurie McLaren and Perry Koot were married on December 23, 1983, separated on September 4, 1994 and were divorced on July 3, 1996. [ 5 ] Laurie and Perry had four children, namely: Lindsay Koot, born June 21, 1985 (age 17) Mitchell Koot, born February 2, 1988 (age 15) Benjamin Koot, born January 17, 1990 (age 13); and Samuel Koot, born April 4, 1992 (age 10). [ 6 ] On July 16, 1997, following a pre-trial conference, a consent judgment was issued pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) granting Perry sole custody of the four children of the marriage with reasonable and generous access to Laurie.

Laurie was ordered to pay to Perry child support in the sum of $150 per month commencing July 1, 1997 in accordance with the Guidelines . Laurie’s income was assessed for child support purposes at $10,800 gross per annum. [ 7 ] In March, 2000 Laurie commenced an application for variation of the July, 1997 judgment. She requested custody of all four children be given to her. Her financial statement in support of that application sworn March 8, 2000, attested she was employed with the Midwest Health District at that time and that her gross employment income was $720 per month ($8,640 per year).

Her 1999 income tax return was attached to that financial statement which showed her employment income for that year to be $7,795.51. She also had RRSP income of $3,803.23, bringing her total income for 1999 to $11,598.74. [ 8 ] On April 14, 2000, Justice Kovatch ordered a custody and access assessment be done. This assessment was completed in August of 2000 and recommended all four children remain with Perry. [ 9 ] A pre-trial conference was held on September 18, 2000 and led to a consent order granted by Justice Maurice on September 18, 2000.

Pursuant to that order, the residence of one child, Mitchell, was changed from Perry’s home to Laurie’s home. Laurie agreed to continue to pay $150 per month child support. [ 10 ] Laurie’s affidavit of March 7, 2003 (para. 6) attests that she quit her job at the Wolsley Hospital in September, 2000 when Mitchell came to live with her. Laurie’s 2000 tax return shows her income for that year as $10,458.56, $8,362.54 of that amount being employment income earned from the Midwest Health District.

Laurie testified that in September, 2000 she also worked for the Kyle Hotel as a waitress. [ 11 ] In her March 7, 2003 affidavit, Laurie attests she agreed to pay $150 per month child support because she “...knew that it

would be very difficult for the Respondent [Perry] in relation to the matter financially....” [ 12 ] By September 14, 2001, Laurie no longer worked for the Wolsley Hospital. Her sole source of employment income was from her job as a waitress with the Kyle Hotel. This employment required her to work evenings and weekends. This was not satisfactory because Mitchell was residing with her and accordingly she quit this employment in October, 2001. Her 2001 income tax return indicates her income in that year was $7,399. Of this amount only $4,275.29 was employment income.

The balance of her income for that year was a pay out of her pension benefits from SAHO accumulated as a result of her employment at the Wolsley Hospital. [ 13 ] In 2002 Laurie worked for her husband’s firm, Kyle Agencies, and earned $600 gross per month ($7,200 gross per year). In December, 2002, Laurie obtained a part-time job with the library in Kyle. She attests her current income comes from two sources, namely, Kyle Agencies, and the library.

She attests that the total income is $600 per month ($7,200 per year), being $150 per month from the library and $450 per month from Kyle Agencies. [ 14 ] Mitchell is involved in hockey. According to Laurie’s financial statement, she spends $2,200 per year on Mitchell’s activities, lessons and supplies ($183.33 per month). It is important to note that according to the evidence filed, Mitchell started playing hockey in 2000 when he went to reside with Laurie. This was prior to the September, 2001 order now under review. [ 15 ] Perry is currently employed with Canada Safeway as a clerk.

He has held this employment since prior to the parties’ separation. His income from this employment in 2002 was $34,606 gross per annum. [ 16 ] Perry acknowledges he agreed to waive the child support payable by Laurie to the end of September, 2002. He attests that he did this to give Laurie a chance to get settled in her new job as a librarian. The parties agreed the arrears should be extinguished to the end of December, 2002 and this was ordered on March 7, 2003. ANALYSIS 1. Has there been a change of circumstances? [ 17 ]

Section 17 of the Divorce Act deals with applications for variation of child support. Section 17(4) provides that before a court makes a variation order with regard to child support, it must satisfy itself that “...a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order...”. Section 17(6.2) reads as follows: Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Section 14 of the Guidelines sets out the circumstances that give rise to a variation of child support.

Section 14(

b) deals with situations where child support is not in accordance with the Tables. In such situations, variation requires a “...change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support...”. [ 18 ] Laurie argues that a change in circumstances has occurred because her income has decreased by 30 percent and because the costs associated with her having custody of Mitchell are greater than she expected.

[19] The burden of proving a change of circumstance lies with Laurie. She must establish a change has occurred sinceSeptember 14, 2001 which is the date of the last order. The evidence provided does not establish either of the changes alleged by Laurie.On September 14, 2001 when the current order was granted, Mitchell had resided with Laurie for at least a year. He had participated inhockey in the year 2000.

Laurie would have had a very good idea of the costs associated with his care and his involvement in hockey atthe time the September 14, 2001 judgment was rendered. [20] The evidence provided by Laurie indicates her gross income from employment in 2001 was $4,275.29. She knew inSeptember, 2001 that she had terminated her employment with the Wolsley Hospital in September, 2000, a year prior, and heremployment at the Kyle Hotel terminated effective October, 2001. These matters were within her knowledge and contemplation whenshe reached the agreement with Perry on September 13, 2001.

This agreement was incorporated by the consent of both parties intoJustice Maurice’s order of September 14, 2001. There has been virtually no change in income since 2001. In fact, Laurie’s employmentincome has increased from $4,275.29 in 2001 to $7,200 in 2003. Laurie’s application must fail. 2. If there has been a change of circumstances, should the order be varied? [21] Even if Laurie had been able to establish a change of circumstance, her support would not have been varied.

I find herSeptember 13, 2001 agreement with Perry which was enshrined in the September 14, 2001 order was, in effect, a “consent order”pursuant to s. 15.1(7) of the Divorce Act. That order did not contain the Guideline amount, rather it contained special provisions withinthe meaning of s. 17(6.2) of the Divorce Act. Laurie was represented by counsel when she made the agreement with Perry. It is presumedshe knew s. 8 of the Guidelines would normally apply to her situation and that if applied Perry would be required to pay support to her.

Itis obvious the parties agreed to a different arrangement and in Laurie’s own words, the reason for this was that Perry would have“financial difficulties” without such a provision. This is obvious when one realizes Perry was supporting three children on his income of$35,000 while Laurie and her husband’s incomes exceeded that amount and they were supporting only one child, namely, Mitchell. Theagreement reached between Laurie and Perry was obviously considered equitable by them and was made to balance the standards ofliving available for their children in the two households.

Applying the principles set out in McIllwraith v. McIllwraith (1999), (NB KB), 210 N.B.R. (2d) 391 (Q.B.); Eilers v. Eilers, [1998] B.C.J. No. 1021 (QL) (S.C.) and Segall v. Fellinger [2001]S.J. No. 209 (QL) (Q.B.), no change should be made to that order in the current circumstances. [22] The case of Seman v. Amundrud, [2000] S.J. No. 548 (QL) (Q.B.) relied on by Laurie is distinguishable from the situationbefore this Court. Seman did not involve “special provisions”, rather, what was at issue in that case was the tax treatment of the supportordered. 3.

Should the arrears under the order be extinguished? [23] Laurie’s child support arrears up to and including December, 2002 were extinguished by consent. [24] Laurie’s application to vary the ongoing child support and to extinguish the child support arrears accumulated sinceDecember 31, 2002 is dismissed. Her arrears for 2003 (January to March, 2003, inclusive) are set at $450.

These arrears shall be paid atthe rate of $50 per month commencing April 1, 2003 and continuing on the first day of each and every month thereafter until the saidarrears are paid in full. [25] There shall be no order as to costs. ____________________ J.