JOANNE KIM WURMLINGER PETITIONER - v. -, 2003 SKQB 152

2003 SKQB 152 U.F.C. A.D. 19 89 No. 543 J.C. S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: JOANNE KIM WURMLINGER PETITIONER - and - NORBERT WILLIAM CYCA RESPONDENT G. V. G. Vanstone for the petitioner G. G. Walen, Q.C. for the respondent FIAT M-E. WRIGHT J. April 1, 2003 [ 1 ] The parties entered into an agreement on September 22, 1994 whereby the respondent’s child support obligation for Kaitlin, born May 4, 1988, was reduced from $900 to $450 monthly.

The respondent also satisfied outstanding arrears of $26,000 by way of a lump sum non-taxable payment to the petitioner of $18,000. The respondent made all child support payments under the agreement, albeit frequently late, until November, 2000, when he terminated all payments. He now seeks to have the arrears rescinded and to have his ongoing support redetermined in accordance with the Federal Child Support Guidelines [ Divorce Act Regulations , SOR/97-175 ]. The petitioner seeks a contribution from the respondent to certain expenses which she says fall within the ambit of s. 7 of the Guidelines , supra.

These issues will be dealt with in order.

I. The Arrears [2] I turn first to the question of the arrears. The factors to be considered when determining whether or not arrears of supportshould be rescinded have been set out in a number of cases including Jensen v. Jensen (1990), (SK CA), 28 R.F.L.(3d) 350 (Sask. C.A.); Aime v. Aime (1990), (MB CA), 27 R.F.L. (3d) 1 (Man. C.A.); Snider v. Kennedy (1994), (SK KB), 118 Sask R. 178 (Q.B.); Kaatz v. Kaatz (2001), 2001 SKQB 480 , 212 Sask. R. 62 (Q.B.); Wolkowski v.Doroshenko (2002), 2002 SKQB 114 , 216 Sask. R. 237 (Q.B.) and Wiome v. Wiome, 2002 SKQB 402 , [2002] S.J.No. 615 (QL) (Q.B.). These factors are: 1.

The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5. Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payment of arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. [3] First, there are few legally justifiable reasons for failing to pay a child support obligation. The respondent did not have onewhen he terminated payments in November, 2000.

He did so only as the result of a dispute with his then 12-year-old daughter thatresulted in her refusing to have contact with him. Similarly, there can also be no issue with respect to the ongoing needs of the child.Instead, the respondent relies upon what he says is delay by the petitioner in enforcing the arrears. He failed to earlier apply for relieffrom payment due to his belief that the petitioner would not be enforcing payment.

The respondent also says that he was, at least for aportion of the time, unable to pay, and continues to be unable to pay the arrears. [4] Generally speaking, in the absence of estoppel or detrimental reliance, delay is not a defence to enforcement (Cho v. Cho(2001), (ON CA), 56 O.R. (3d) 150 (C.A.)). Here the respondent became aware of the petitioner’s intentions withrespect to ongoing support in the summer of 2002 when she requested financial disclosure from him. This was approximately 18 monthsafter he ceased paying. In December, 2002, the respondent was contacted by the Maintenance Enforcement Office.

The petitioner did notsooner advise him of her plans, although she had made earlier unsuccessful attempts to commence enforcement proceedings. Therespondent now suggests that this inaction, or more correctly put, silence, on her part should preclude her from enforcing the arrears andshould relieve him from his obligation to pay. An 18 to 24 month period between the cessation of payment and the commencement ofenforcement is not an inordinate length of time such that it could reasonably be said that the respondent was lulled into a sense that therewas no need to pay, nor any need to attempt to vary his obligation.

The petitioner did nothing which could lead to the conclusion that thearrears would not be enforced or were not payable. As important, the respondent made no inquiries of her – an imprudent decision inlight of a previous history of enforcement of arrears. Delay is not a factor here which favours the respondent. [5] The respondent alternatively suggests that his reduced financial circumstances should lead to a rescission of the arrears.The respondent is a realtor. In the 2000 taxation year, his net commission income was $35,266; in 2001 it was $25,041; and in 2002 it isestimated to be only $13,933.

It is clear that in each of the 2000 and 2001 years the respondent had an ability to honour his obligation,particularly in light of the favourable tax treatment that he would have received. While his income was reduced in 2002, that alone doesnot necessarily justify rescission of arrears by virtue of what amounts to a retroactive variation of child support. The respondent took noaction until December, 2002, after he had been contacted by the Maintenance Enforcement Office. This proceeding was thencommenced, first returnable in February, 2003.

Any reduction in arrears by way of a retroactive variation will accordingly occur only asa result of his ongoing support obligation being redetermined effective March 1, 2003.

[6] Finally, before leaving the issue of arrears, the respondent has plead an inability to pay the arrears if not rescinded. Apresent inability to pay does not in itself justify a variation or recession of arrears, although it may justify a suspension of enforcement, oran order that the arrears be paid over a period of time. The onus is on the respondent to establish on a balance of probabilities that hecannot at present and will not in the future be able to pay the arrears (Diebel v. Diebel (1997), (SK KB), 155 Sask.R. 96 (Q.B.); Kulyk v. Srayko (1997), (SK KB), 162 Sask. R. 184 (Q.B.)).

The respondent works in an occupationwhere his income fluctuates. There is no suggestion that his present financial circumstances will be long lasting. He has assets in whichhe has, and continues, to acquire equity. As such, I am not satisfied that he has a permanent incapacity to pay. II. Ongoing Child Support [7] With respect to his ongoing child support obligation, the respondent has suggested that even though his income has beendeclining steadily, an average be taken of his net commission income earned in the three preceding taxation years.

This approach hasmerit in that it does recognise the variable nature of the respondent’s income and also reflects his hope that his level of income willincrease over that of 2002, in part by way of reduction in office expenses. This would result in an income, for the purposes of theGuidelines, of $24,746 annually, and a monthly child support obligation of $210. [8] Conversely, the petitioner says that an income of $40,000 annually should be imputed to the respondent on the basis thathe is underemployed, and on the basis that his standard of living appears to exceed his means.

She also suggests that he should reducecertain business expenses or alternatively they should not be considered when arriving at his income for Guideline purposes. [9] There must be a solid evidentiary basis for the court to impute income. That is not the case here. The respondent is 53years of age – he has been in his current occupation for 24 years. He requires a vehicle to carry out his occupation and is including only70% of the cost of leasing and operation in his estimated business expenses.

The amount that the petitioner is suggesting be imputed tothe respondent exceeds the amount that he has earned in any of the three preceding taxation years. He has provided the required financialdisclosure. The cases relied upon by the petitioner in support of her position are distinguishable. In Cholodniuk v. Sears (2001), 2001SKQB 97 , 204 Sask. R. 268 (Q.B.) the respondent, and perhaps his spouse, engaged in an unsophisticated scheme to divertfunds with a view to avoiding payment of child support and thwarting enforcement. Van Gool v. Van Gool (1998), (BC CA), 44 R.F.L. (4th) 314 (B.C.

C.A.) stands for the proposition that when imputing income the court may consider not only theamount of income that is earned, but also the amount of income that could be earned were the respondent working to capacity. It cannotbe concluded on the evidence in this case that the respondent is not working to capacity nor that he is persisting in non-remunerativeemployment, given his age, training and experience. In Findlay v. Soutar, [2002] B.C.J.

No. 679 (QL) (S.C.), the court did not imputeincome, rather it refused to vary downward a child support obligation established pursuant to the Guidelines where the financialdisclosure was insufficient and did not adequately explain the apparent co-mingling of personal and business expenses. In Tynan v.Moses (2002), 2002 BCSC 100 , 25 R.F.L. (5th) 445 (B.C. S.C.) the respondent experienced a self-induced reduction in incomewhen he left a salaried position to operate his own non-profitable business.

Full financial disclosure was not provided. [10] Accordingly, for the purposes of the Guidelines, I find the respondent’s annual income to be $24,746 and direct that hepay support on behalf of Kaitlin in the amount of $210 monthly, commencing March 1, 2003. III.

Section 7 Expenses [11] The petitioner’s annual income is $53,812. She has itemized expenses for Kaitlin of approximately $9,000 annually whichshe says come within the meaning of s. 7 of the Guidelines and which she says the respondent should pay his proportionate share. Basedupon the respondent’s income as determined, his proportionate share would be 31%. [12]

Section 7 provides an exhaustive list of those expenses that may be “added on” to the amount of child support payablepursuant to s. 3 of the Guidelines. Some of those expenses must be extraordinary, others merely ordinary. In each case however,irrespective of the category of the expense, consideration must be given the necessity of the expense in relation to the child’s bestinterests and to the reasonableness of the expense having regard to the means of the parents and their spending patterns prior to theseparation. [13] The three categories into which the petitioner has placed Kaitlin’s expenses are found in ss. 7(1)(c), (

d) and (

f) whichprovide for contribution to:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: ... (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; ... (

f) extraordinary expenses for extracurricular activities. [ 14 ] The health related expenses for Kaitlin are for eye care and for vitamins and health supplements due to a vegetarian diet and high performance athletic activity. The first expense, eye care, does fall with in s. 7(1)(c), however no order is necessary. The respondent has indicated that the insurance program of his spouse will provide for his contribution to this expense, as it did with Kaitlin’s dental requirements.

The second expense does not fall within any provision of s. 7 and is accordingly disallowed. [ 15 ] The second expense relates to Kaitlin’s secondary education. However, the petitioner has failed to request contribution to only those expenses which qualify as “extraordinary” as required under s. 7(1)(d). It must be recalled that the presumptive amount of child support that the respondent pays pursuant to s. 3 includes a component that is attributable to ordinary secondary school expenses. The cost of a bus pass to travel to and from school is not an extraordinary expense.

Nor in my view is an annual expense of $265 to cover the cost of Kaitlin’s participation in band, including equipment rental, trips, books and uniforms. That leaves the issue of the computer which the petitioner wishes to purchase for Kaitlin’s use at an estimated cost of $1,300. [ 16 ] Kaitlin is in Grade IX. She is an accomplished student and is maintaining an honor roll status. She requires the use of a computer for her schoolwork and assignments. It would clearly be in Kaitlin’s best interests to have access to a computer at home.

The estimated cost is not unreasonable having regard to the combined income of the parties, which is just under $79,000 annually. In this case it is not possible to consider the family’s prior spending patterns as they separated when Kaitlin was only 10 months old. In all these circumstances, the cost of acquiring a computer for Kaitlin’s use is an extraordinary expense for secondary education to which the respondent should contribute. [ 17 ] The extracurricular activities in which Kaitlin is involved are extensive. They include soccer at the all-star level; track and field, fitness, weight training and tennis.

She has also been taking violin lessons for six years. The petitioner estimates that the cost of these activities is $4,250 annually in addition to a $2,000 expenditure which she wishes to incur to acquire a violin for Kaitlin rather than continue with the $210 annual rental cost. While all of these activities may be in Kaitlin’s best interests, they are all not extraordinary, nor are they reasonable having regard to the means of the parties.

The only expenses to which the respondent should be required to contribute are the costs associated with Kaitlin’s high level soccer, estimated at $2,800 and her music training, estimated at $910 exclusive of the violin purchase. IV.

Summary [ 18 ] In conclusion, there shall be the following determinations and orders: 1. For the purposes of the Guidelines , supra, the petitioner’s annual income is $53,812 and the respondent’s is $24,746; 2. Commencing March 1, 2003, the respondent shall pay for the support of Kaitlin the sum of $210 per month and continuing on the first day of each month thereafter until further order; 3. The respondent’s proportionate share of allowable s. 7 expenses is 31%;

4. The respondent shall pay 31% of the cost of acquiring a computer for the use of Kaitlin (to a maximum total cost of $1,300) within 30 days of presentation of a receipt evidencing the purchase; 5. The respondent shall pay 31% of the cost of Kaitlin’s participation in “all-star” soccer and violin training by way of monthly payments of $96 commencing April 1, 2003 and continuing on the first day of each month thereafter until further order; 6. The petitioner shall provide to the respondent receipts evidencing payment of “all-star” soccer and violin training expenses within 30 days of incurring those expenses; 7.

The parties shall each provide the other with complete copies of their T1 General returns by May 30 every year that child support is payable, commencing with May 30, 2003, and with copies of their notices of assessment or reassessment within 30 days of receipt; 8. Except to the extent of the retroactive variation provided for in para. 2, the respondent’s application to rescind arrears is dismissed; 9. Enforcement of the arrears is suspended to October 1, 2003; 10. Given the divided success of the parties, there will be no order as to costs. ____________________ J.