Shannon Lea Leflar Claimant - v. -, 2012 SKPC 081

IN THE PROVINCIAL COURT OF SASKATCHEWAN The Children’s Law Act, 1997 and The Family Maintenance Act, 1997 Date: May 14, 2012 Location: Moose Jaw, Saskatchewan Citation: 2012 SKPC 081 _____________________________________________________________________________ Between: Shannon Lea Leflar Claimant - and - Stacey Allan Forsythe Respondent Mr. Brendan Pyle For the Claimant In Person For the Respondent _____________________________________________________________________________ DECISION M.T.

GORDON, J _____________________________________________________________________________ [ 1 ] The Claimant, Shannon Leflar, made an application for child and spousal support pursuant to The Family Maintenance Act . Background

[ 2 ] The first return date was April 12, 2011. By consent the matter was adjourned from time to time. The Respondent, Stacey Forsythe, was working with his lawyer and it was expected financial information would be filed shortly. Finally on June 7, 2011, a hearing date of October 6, 2011 was scheduled. On October 6, 2011, counsel for Mr. Forsythe was granted leave to withdraw. Mr. Forsythe requested that a new hearing date be set as he was consulting new counsel. The Claimant objected. The Claimant requested an interim order for spousal support.

Based on the Childview spousal support guidelines, and the income information filed by the Claimant as to the Respondent’s income, an interim order was made. Income of $75,000.00 was imputed and an order was for spousal support of $844.00 a month commencing October 31, 2011 and is attached to this decision. [ 3 ] It is noted that Mr. Forsythe had six months to file the required financial information and neglected or failed to do so. [ 4 ] The matter was again adjourned and finally a hearing date of April 10, 2012 was set. [ 5 ] The Claimant did not pursue her claim for child support.

Her daughter Jayne is now twenty-four years of age and will convocate with a Bachelor’s degree this spring. Her future plans are uncertain. [ 6 ] The Claimant, Shannon Leflar, testified that she is forty-nine years of age and resides in a rented basement suite in Moose Jaw. [ 7 ] She knew the Respondent from dating him in the 1980s. In 2000 they started dating again and lived together from Easter 2007 to approximately February 2009. [ 8 ] Ms. Leflar testified as to her work history, specifically at Panda Tire and Holiday Homes. Due to health problems she had to leave these jobs.

Since 2005 her health has deteriorated significantly. She suffers from migraines, depression, stress and chronic pain. She also has chronic anemia and must have blood transfusions every six to eight months. She is waiting for further tests. [ 9 ] Currently she is working part-time (twenty hours a week) at Panda Tire at $12.00 per hour. She has applied to upgrade her education and enrolled in a two year business program at SIAST. Her tuition and books will be paid by Moose Jaw Careers and Development. Her rent is $750.00 per month which is supplemented by $179.00 a month.

She pays $90.00 a month registration for her half-ton truck and $100.00 a week for gas. Some of her medication is covered by insurance, but she pays approximately $70.00 a month. [ 10 ] She has debts of approximately $15,000.00 for utilities and taxes with respect to the joint home which she still owns with the Respondent at Tuxford. She also owes $3,000.00 to Canada Revenue Agency and $150.00 to the Rentalsman. In addition she has various legal bills that are not paid. She has accepted assistance from family members. [ 11 ] Ms. Leflar testified as to the various jobs Mr. Forsythe has had over the years.

Most recently from November 2010 to March 2011, he was a long haul truck driver with Canopex. From December to March 2012, he worked for BLS Asphalt. Ms. Leflar had filed pay stubs of the Respondent from December 2010 showing his pay per long haul truck trip. [ 12 ] On cross-examination Ms. Leflar agreed that they had separated on two previous occasions for short periods of time. [ 13 ] Mr. Forsythe testified that his health was poor as well. He has degenerative disc problems in his back and neck. He takes medication and has been under the care of Dr. Hugo.

He also gets a cortisone shot for his knee pain. [ 14 ] Mr. Forsythe is forty-nine years old, has a grade ten education and he has mainly worked as a truck driver. He took an apprenticeship course in heavy duty mechanics but did not follow up. Given his age, health and education, trucking is the best work for him. [ 15 ] Mr. Forsythe presented some income information, being his most recent record of employment and a one page tax return

summary for 2008, 2009 and 2010. Submissions [ 16 ] Ms. Leflar requests spousal support of thirty-six months as well as payment of arrears of the interim order. [ 17 ] The parties cohabited for a significant period of time and jointly had a home and assets. [ 18 ] The Claimant has the need for spousal support and the Respondent has the means to pay. [ 19 ] The Respondent objects to paying any spousal support because the Claimant did not make any claim for over two years.

He would have agreed to pay if she had made her claim earlier. [ 20 ] In addition, the Respondent says he has back problems and makes a lot less now. He does not think he should have to pay any support now. Analysis [ 21 ] The Family Maintenance Act governs these proceedings. Following are the sections of legislation relevant to these proceedings. “spouse” means:

(

d) a person who has cohabited with another person as spouses: (

i) continuously for a period of not less than two years; or (ii) in a relationship of some permanence, if they are the parents of a child; (« conjoint ») Spousal maintenance 5(1) On application, the court may order a person to provide maintenance for his or her spouse, in accordance with need, to the extent that the person is capable of doing so.

(2) An order for the maintenance of a spouse should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the spousal relationship or its breakdown; (

b) relieve any economic hardship of the spouses arising from the breakdown of the spousal relationship; and (

c) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. Amount of maintenance 7(1) In determining the amount, if any, of maintenance to be paid for a dependent spouse, the court shall take into account the needs, means and economic circumstances of the parties, including: (

a) the age and the physical and mental health of the spouses; (

b) the length of time the spouses cohabited; (

c) the measures available for the dependent spouse to become financially independent and the length of time and cost involved to enable the dependent spouse to take those measures; and (

d) the legal obligation of the respondent to provide maintenance for any other person. Financial statements 21(1) In this

section and in

section 23, “court” means the Provincial Court of Saskatchewan. («tribunal»)

(2) Subject to subsection (3), when an application for maintenance is made pursuant to this Act , the claimant and the respondent shall serve on the other party and file with the court: (

a) a completed financial statement in the form and manner prescribed in the regulations; and (

b) any other financial information or documents that the court may order

(3) The financial statement mentioned in clause (2)(

a) need not be filed and served where: (

a) maintenance is sought only for a spouse; and (

b) the parties consent.

(4) Where a party fails to file the financial information required pursuant to subsection (2), the court may draw whatever inferences appear to be reasonable having regard to all the circumstances. No limitation 26 Notwithstanding The Limitations Act , there is no limitation period respecting any proceedings pursuant to this Act . [ 22 ] The parties were clearly spouses within the meaning of the Act . They cohabited for a period of nine years. [ 23 ] There is no time limitation in bringing an application. The Respondent’s suggestion that the delay by Ms.

Leflar should relieve him from an obligation to pay is without merit. [ 24 ] In my view, Ms. Leflar is entitled to spousal support and the only issues are the quantum and duration of such support. [ 25 ] The Respondent filed a financial statement on May 24, 2011. In my view, this statement is incomplete and raises more questions than answers. On or about November 15, 2011, the Respondent provided copies of his tax return

summary for 2008 and 2009 and deposit account history. Again, this information is incomplete. Finally, on April 19, 2012, as ordered by the Court, Mr. Forsythe provided a copy of his 2011 tax return

summary. In my view, Mr. Forsythe is deliberately failing to provide his complete financial information. At trial he again produced only the one page

summary of his tax return for 2008 and 2009 and his record of employment for BLS Asphalt Inc. from December 12, 2011 to March 7, 2012. In this period of time his total insurable earnings were $16,017.75. His 2011 shows a total income of $36,503.94. [ 26 ] Ms. Leflar filed copies of the Respondent’s pay information for December 2010 from Forsythe Trucking and Can Amex Trucking Systems Inc. showing that the Respondent was paid from $1,827.00 to $2,380.00 per trip.

He made more than one trip per month. [ 27 ] Regrettably, the Court is left with less than satisfactory information with respect to the Respondent’s income. [ 28 ] I accept that both parties have some health problems. However, the Claimant satisfied me she is working to the extent she is able. She is taking concrete steps to upgrade so she can secure better paying work in the future. In the meantime, she is living in a basement suite trying to make ends meet. Her most costly expenditure is her truck.

She accepts help from family members on occasion. [ 29 ] On the other hand, I found the Respondent’s evidence to be vague and in generalities. He appeared to be more focused on blaming the Claimant for various deficiencies. The Respondent listed several health problems but provided no medical evidence to show that this interfered with his employment. He is an experienced truck driver but claims that he cannot obtain employment until at least May due to road bans. The Claimant provided a more detailed work history of the Respondent. The

summary tax returns for 2008 and 2009, as I have mentioned, did not tell me the whole story. The Court had to order the Respondent to file his 2011 tax return.

[ 30 ] The parties have not yet finalized family law proceedings commenced by the Respondent in June 2009. It seems that both parties are watching their assets deteriorate rather than finalize matters. The parties need to resolve their property issues as it appears to be a drain on both of them. However, this Court can only be concerned with the application for spousal support. [ 31 ] Based on the tax return summaries filed by the Respondent for 2008 to 2011 inclusive, I find the Respondent’s income for this application to be $38,363.00 a year.

While I have questions and concerns as to whether this is the Respondent’s real income, considering the evidence as a whole, I conclude that it is most appropriate to average the Respondent’s income of the last four years. The Respondent testified he was going to return to the work he was best suited to, being a truck driver. [ 32 ] The Claimant is working half-time and earning $12.00 per hour. Her 2011 tax return shows a line 150 income of $10,656.00. [ 33 ] The parties lived together for nine years.

The Claimant assisted and contributed to their financial position throughout the relationship. [ 34 ] Therefore, in accordance with sections 5 and 7 of The Family Maintenance Act , Stacey Forsythe is ordered to pay the Claimant the sum of $400.00 per month, retroactive to October 31, 2011. All payments are to be made on the last day of each and every month up to and including the 31 st of December 2014. Dated at Moose Jaw, Saskatchewan, this 14th day of May, 2012. _______________________________________ M.T. Gordon, J