Sasha Tamara Wahpooseyan Claimant - v. -, 2013 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN The Children ’ s Law Act, 1997 The Family Maintenance Act, 1997 Citation: 2013 SKPC 058 Date: April 8, 2013 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Sasha Tamara Wahpooseyan Claimant - and - Garnet Perreault Respondent Appearing: Mr. Philip Ventzek For the Claimant Self-Represented In Person DECISION M.T. GORDON , J [ 1 ] The claimant, Ms. Wahpooseyan commenced proceedings pursuant to The Family Maintenance Act for a child support order

for the child, Jesse Scott Wahpooseyan, born February 15, 2009. The first return date of the application was July 31, 2012. A consent order of October 9, 2012 imputed a gross annual income to the respondent of $19,760.00, the equivalent to minimum wage earnings for full-time employment in Saskatchewan. Consequently the respondent was ordered to pay $155.00 per month child support commencing October 1, 2012. At the time the respondent was represented by Mr. Jamie Struthers, Q.C. from Regina Legal Aid. The matter was then adjourned to January 19, 2013 for a review of this order.

On January 19, counsel for the claimant advised that he had not yet received the updated financial statement from the respondent that had also been included in the consent order of October 9, 2012. The matter was then adjourned to February 12, 2013 to be spoken to and on February 12 the matter was adjourned to March 21, 2013 for a hearing. [ 2 ] Mr. Perreault filed an updated financial statement and financial information just prior to the hearing on March 21, 2013.

Issue [ 3 ] The only issue before the Court is the appropriate amount of child support pursuant to The Family Maintenance Act and the child support guidelines. This requires a determination of the respondent’s income. Ancillary matters are the commencement date for support and whether there should be any retroactive support. In addition the claimant asks that the child be designated as a beneficiary on any life insurance policies and pension plans. Position of the Parties [ 4 ] The applicant asks this Court to impute income to the respondent.

She testified that when she and the respondent were dating and after the birth of their child in 2009, the respondent was always employed. He worked at Brake Check and Caribou Autobody as a mechanic as well as doing mechanical work on the side for cash. The claimant also testified that the respondent told her he did mechanical work and that he also worked driving a tow truck. The applicant testified that in the fall of 2012, the respondent told her he was working on the rigs in the Weyburn area.

She testified that she has seen the respondent’s vehicle at Caribou Autobody and at one point in time the respondent showed her his two week pay cheque which was over $800.00. The claimant says the respondent is healthy and able to work. The claimant said that she has three children and her only income is her child tax benefit of $1,050.00 which includes the money from the universal child care benefit and $370.00 every four months for the GST rebate. The claimant says that the respondent has not paid any money towards the October 9, 2012 order and when asked to do so he refuses or says “I’ll pay you next week”.

The claimant testified that she believes the respondent lives with his girlfriend. [ 5 ] The claimant also testified that the respondent had a lot of contact with the child Jesse as a baby and had him for overnight visits. However, the visits seem to be less frequent now. In February 2012 the respondent gave to the claimant $60.00. She has not received any other income. [ 6 ] The respondent’s position is that he is prepared to pay child support of $155.00 per month. He suggested this amount could be reviewed at the end of 2013.

He filed his most recent tax return and disputes the claimant’s position that he has additional income. The respondent says he has to keep two places as his residence; the one in Moose Jaw where he lives with his mother and pays her some money every month and then in Regina as currently he is working at White City. The respondent states he has other children that he supports as well and wants to ensure that all children are treated equally and fairly.

Relevant Legislation [ 7 ] The relevant portions of The Family Maintenance Act are as follows: 3(1) Every parent has an obligation to provide maintenance for his or her child to the extent that the parent is capable of doing so.

(2) Subject to subsections (4) and (5), the amount of maintenance to be provided pursuant to the obligation mentioned in subsection (1) is to be determined in accordance with the guidelines.

(3) On application, the court shall order maintenance for a child in accordance with the guidelines. ...

9(1) On an application pursuant to this Act , the court may make an interim or final order on any terms and conditions that the court considers appropriate, including one or more of the following provisions: (

a) that an amount be paid periodically, either for an indefinite or limited period, or until a specified event occurs; ... (

c) that maintenance be paid with respect to any period before the date of the order; [ 8 ] The relevant portions of the Federal Child Support Guidelines are as follows: 3.

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

b) the amount, if any, determined under

section 7.

(3) The applicable table is (

a) if the spouse against whom an order is sought resides in Canada, (

i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order, or for a variation order in respect of a child support order, is made or the amount is to be recalculated under

section 25.1 of the Act , 7.

(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 (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; 10.

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. 15.

(1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20. 16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. 17.

(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under

section 16 would not provide the fairest determination of the annual income, choose

not to apply sections 6 and 7 of

Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate. 19.

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

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 9 ] There are other provisions in the guidelines, specifically

section 21, which speaks of the obligation of the applicant as well as the respondent to provide income and other financial information. [ 10 ]

Section 25 again provides that the respondent is obligated upon request to provide current financial information to the claimant. Analysis and Decision [ 11 ] The Province of Saskatchewan adopted the child support guidelines that were enacted under the Federal Divorce Act , R.S.C. 1985, c. 3 . The child support guidelines included the child support tables together with a set of Regulations regarding the use of the tables. The child support guidelines were revised, effective January 1, 2012. [ 12 ] The child support guidelines are designed to protect the best interests of children.

They are to ensure that the children get appropriate consistent child support from both parents. One of the purposes of the guidelines was to reduce conflict and the need for lengthy negotiations and hearings regarding the amount of child support. [ 13 ] Both parties have provided the required financial information in the form required by the legislation. Both parties testified at the hearing adopting their financial statements and income tax returns that were filed and providing further details about their financial situation. It is apparent that both parties are living with limited resources.

Both parties are struggling to make ends meet for themselves and their children. [ 14 ] The first question that the Court needs to consider is to determine the respondent’s annual income as defined by the child support guidelines. The respondent filed his 2010 Notice of Assessment, 2011 Notice of Assessment and a copy of his 2012 tax return as well as his year to date earnings with Knoll Transport Limited Canada. If I average his line 150 income for 2010, 2011 and 2012, the result is $28,264.00 a year which according to the tables would be approximately $210.00 per month for the child Jesse.

On the other hand, if I use his current income with Knoll Transport, his year to date earnings from January 1 to the pay period ending March 9, 2013 are $11,530.00. As I calculate that pay period is 10 weeks which equates to roughly $1,153.00 per week and on an annual basis that would translate to an income of $48,426.00. [ 15 ]

Section 16 of the child support guidelines specifies that the annual income is to be determined using the sources of income set out under the heading “Total Income” on one’s tax return. This is usually referred to as line 150 income. [ 16 ]

Section 17 of the child support guidelines speaks to the situation where the Court is of the opinion that the aforementioned manner does not provide the fairest determination of annual income. The Court can determine annual income by looking at the most recent taxation year or averaging the past three years. [ 17 ] Mr. Perreault testified that he has a grade 10 education and is not qualified as a mechanic but works as a general labourer. The claimant tried to suggest he was a mechanic or at least a mechanic’s helper but there is really insufficient information provided so I accept Mr. Perreault’s testimony in that regard.

[18] The claimant testified that Mr. Perreault had other sources of income such as Caribou Autobody. While that may be true it isthe most recent source of income that is most useful and applicable in these proceedings. It is noted that Mr. Perreault just startedworking for D.J. Knoll Transport three to four months ago. He is on full-time and works a minimum of 30 to 40 hours per week at$23.00 per hour. He is on probation for the first six months. Knoll Transport is located in White City and as a result Mr. Perreault hasbeen staying in Regina as well as maintaining a home with his mother here in Moose Jaw.

I find that to be a reasonable decisionespecially given the weather conditions this year but also given the cost of driving back and forth between the cities. While it is not adeductible expense for tax purposes, I am prepared to take that into consideration. The respondent also testified that pursuant to a courtorder he is required to pay $262.00 per month for a daughter Courtney and he also pays $150.00 to his mother for his child Jacinta andthere are outstanding court proceedings with respect to the child Cooper. [19] Mr.

Perreault argued undue hardship but he did not present the required evidence under the child support guidelines andaccompanying calculations to substantiate this claim. However, again, I am prepared to take into account these other obligations and thefact that he is trying to get his financial affairs in order. [20] With respect to the applicant’s argument that I should impute income I am not prepared to do that.

The good news is Mr.Perreault is employed and if he successfully completes his probation this employment appears to be a good steady source of income forhim and a place where he is prepared to stay. [21] In Yaremchuk v. Yaremchuk, 1998 ABQB 118 , [1998] 38 R.F.L. (4th) 312, the Court stated that: Intentional “under employment” must be proven and result in the payer’s intention to undermine or avoid child support obligations. [22] As I said, I am not prepared to impute income at this time. I do not find that Mr. Perreault has been intentionally underemployed.

He has explained his reasons for leaving Warner Industries and I accept the reasons; racism is all too prevalent and Mr.Perreault testified he received employment insurance as a result of discontinuing at Warner. [23] Counsel for the applicant tried to suggest that Mr. Perreault’s expenses as outlined on his financial statement were excessivein some areas. This is not a useful line of questioning as personal expenses are not relevant in the determination of the appropriateamount of child support in accordance with the child support guidelines. [24] Mr. Perreault is halfway through his probationary period at D.J.

Knoll Transport. He testified he is prepared to work longerhours if requested and this might well be the case as spring finally arrives. The applicant asked me to impute income to Mr. Perreault of$24.00 per hour which calculates out to $49,920.00 per year based on an eight hour day and a five day week. Mr. Perreault admits he iscurrently making $23.00 an hour. However as I have stated, he testified he works a minimum of 30 hours per week and that is reflectedon the statement of earnings that was filed as D-1 in these proceedings.

If I extrapolate and use the figure of $23.00 per hour for a 30hour week times 52, he will earn a gross income of $35,880.00. [25]

Section 17 of the child support guidelines talks about patterns of income. In my view 17(

b) is applicable here and therefore Iam going to average the income received by Mr. Perreault as stated on his income tax returns for 2010, 2011, 2012 and 2013 projectedwhich calculates to an average of $30,168.00. This is somewhat less than what it is anticipated he will earn at his current employment. In my view this is the fairest way of proceeding in accordance with the guidelines. I do have to be mindful that this is a new job he hasstarted and he is still on probation. Therefore based on an income of $30,616.00, child support for Jesse shall be fixed at the sum of $232.00 per month.

The first payment to be made on or before the 1st day of May 2013 and payable on the first day of each and everymonth thereafter for so long as the child remains a child within the meaning of The Family Maintenance Act, 1997, or until or unlessfurther or otherwise ordered. The other relief granted is an order that the respondent designate his dependent, namely Jesse ScottWahpooseyan, as a beneficiary of the respondent’s life insurance policy irrevocably and that the respondent pay all premiums on that lifeinsurance policy. There was no evidence to show that the respondent is a member of any pension plan.

In the initial documents theclaimant did not ask that the child be designated as a beneficiary under any health plan that the respondent may have. The respondentindicated that all the child’s health expenses would be covered as he is of First Nations origin. [26] As there was an issue to be tried there will be no order as to costs.

Dated at Moose Jaw, Saskatchewan this 8 th day of April, 2013. ______________________________________ M.T. Gordon, J