Karla Xiomara Rauda Claimant - v. -, 2012 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN The Children’s Law Act, 1997 The Family Maintenance Act, 1997 Citation: 2012 SKPC 027 Date: February 8, 2012 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Karla Xiomara Rauda Claimant - and - Clifton Francis Respondent Appearing: Mr. Philip Ventzek For the Claimant Mr. Clifton Francis In Person DECISION M.T. GORDON , J [ 1 ] The applicant, Karla Rauda, brings an application pursuant to The Family Maintenance Act for a child support order for the child, Aryana Rauda, born January 16, 2008.

In addition, the applicant requests the following relief: that the respondent pay his portion of child care expenses pursuant to

section 7 of the guidelines. Secondly, that the child be designated as a beneficiary on any pension,

insurance and health plans that the respondent may have, and thirdly, that the respondent provide copies of his income tax return every year to the applicant and that the respondent advise the applicant within fourteen days of finding employment. Issue [ 2 ] The issues are to determine the appropriate amount of child support, for the child Aryana Rauda, born January 16, 2008. This requires a determination of the respondent’s income, and whether the Court should impute income. The respondent makes an application of undue hardship. The Facts [ 3 ] The mother, Karla Rauda, has two children.

Only one child is the subject of the application, namely Aryana Rauda. Clifton Francis is the father of the child and has never provided any money for the child. There is an interim order of Judge Kovatch, dated July 7, 2011, where Mr. Francis is ordered to pay, once without prejudice, $92.00 a month for the child. [ 4 ] Ms. Rauda met Mr. Francis in the Spring of 2007. They lived together less than a year and were not living together when Aryana was born. Mr. Francis has had very little contact with the child. Ms.

Rauda works as a special care aide at Donna’s Compassionate Care and works varying hours of twenty to forty hours per week. Ms. Rauda’s mother lives with her as well and babysits the child while Ms. Rauda is at work. At present, her mother is away on a family emergency for an indefinite period of time and the child has been going to the YMCA Learn and Play Centre since September 2011. The cost is $75.00 for Aryana, which Ms. Rauda pays. Ms. Rauda’s mother does contribute to rent and other costs. [ 5 ] Ms. Rauda testified that Mr.

Francis was not working before they started living together but she was aware that he had worked at Brake Check as a mechanic and as well as a trucker for approximately two weeks. Ms. Rauda claims that Mr. Francis tried to start Crown Renovations. She saw a Facebook page as well as his truck advertising the business. [ 6 ] Mr. Francis was cross-examined extensively about his work experience. He indicated that he had worked for PR Developments for various retirement homes back in 2003, earning between $9.50 and $10.00 an hour.

He also worked in the past for Brake Check, most recently in 2007, where he earned $10.00 an hour. He does not have enough education to apprentice. He did work in 2002 for Jay’s Trucking and Freight Systems, but was laid off. He admitted that in August 2009, he started Crown Renovations and put a logo on his truck advertising the business and also on his Facebook page. He testified that he had no jobs from this endeavour and in March of 2011 when he was served with this application, he removed the logo from his truck. Mr.

Francis felt that he is not capable of working right now due to high stress in the family and having to assume most of the home responsibilities. He admitted he had a hard time trusting other people and if the children had good day care he would be able to work. [ 7 ] Mr. Francis has filed the required and appropriate financial information. Mr. Francis testified he is not working and cannot work due to the fact that he is responsible for caring for three children. His wife suffers from depression and he needs to be home for her. He agreed that his tax returns accurately reflect his income.

His most recent tax return shows income of $14,029.00. His 2009 and 2008 tax returns show income of $9,642.00 and $10,282.00. However, from the chart he filed as Exhibit D-4, he suggested that the $14,300.00 is the total income for both he and his wife. [ 8 ] Mr. Francis filed a letter from his wife’s doctor, Dr. Rinisland, with respect to her condition and the fact that Mr. Francis is required to assist. He talked about how he and his wife would like to go to SIAST in 2012 to upgrade. They both would be eligible for the Provincial Training Allowance.

As part of that program there is fully subsidized day care for the children. Mr. Francis said that the children have not had a good experience at day care and this causes stress on his wife so they are trying to find alternate day care. [ 9 ] Mr. Francis stated there had been a child protection hearing with respect to the children as a result of his wife’s difficulties with depression. Both he and Amber are attending family counselling and working on strategies to help them cope with Amber’s depression and maintain stability in the household. Last year, a child from a previous relationship of Mr.

Francis came to live with

them. McKenzie is eleven years of age. As a result, Mr. Francis feels that it is crucial that he be at home most of the time. [ 10 ] He was cross-examined extensively on his financial statement, Exhibit D-2, and acknowledged that there were expenses of $360.00 per year for meals outside the home and $1,200.00 for entertainment expenses which was mainly entertainment for the children, such as movies, cable television, etc. [ 11 ] In argument, Mr. Ventzek suggested that Mr. Francis chooses to be unemployed when he could be working. Mr. Ventzek asks this Court to impute income to Mr.

Francis as there is evidence that he has worked in the past and is capable of working. Mr. Ventzek suggested the Court impute income of $20,800.00 which is close to what he earned when he worked at Brake Check. With respect to the undue hardship application, Mr. Ventzek says the Mr. Francis has not met the onus as required in the guidelines. Mr. Ventzek filed three various calculations using the Child View computer program and urged the Court to use the calculation which is based on the imputing income of $20,800.00. [ 12 ] Mr.

Francis argued that he does not receive sufficient income to pay child support when he is on social assistance. He claims his income does not meet the threshold level on the child support guideline chart. He says his wife’s illness is very trying on him and he must be at home to assist her and the children. Relevant Legislation [ 13 ] 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; [ 14 ] 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. 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; [ 15 ] 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. Analysis and Decision [ 16 ] 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. [ 17 ] 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 regarding the amount of child support. [ 18 ] The information from the drafters of the guidelines explained as follows: The child support payment

schedule show the basic amount that the support paying parent should pay according to his or her income and the number of children. Income will be defined broadly in the guidelines, but the income of a new partner and spouse will only be relevant if the Court is asked to make a determination of undue hardship. The

schedule amounts are fixed by a formula that calculates the appropriate amount of support in light of economic data on average expenditures on children across different income levels. The formula reserves a basic amount of income for the payer’s self support, and adjusts for the impact of federal and provincial income taxes. There are separate tables for each province to take differences in provincial income tax rates into account.

[19] First of all, both parties have provided the required financial information in the form and within the time lines required by thelegislation. Both parties testified at the hearing, adopting their financial statements and income tax returns that were filed and providingfurther details about their financial situation. It is apparent that both parties are living with limited resources. Both parties are strugglingto make ends meet for themselves and the children in their care. [20] The first question that the Court needs to consider is to determine the respondent’s, Mr. Francis’, annual income. Asindicated, Mr.

Francis filed all the required financial documents as well as testified in some detail as to the income received by him andhis current wife, Amber. There was some variation in his evidence as to his total yearly income which he could not account for. However, he did agree while testifying and this is confirmed in the financial statements and all documents including tax returns providedby him, that his line 150 income in his 2010 tax return was $14,039.00, and that this is an accurate figure. Mr.

Francis also filed his2009 tax return showing a line 150 income from social assistance payments of $9,642.90, and a 2008 notice of assessment and tax returnshowing a total line 150 income of $10,282.00. [21] The applicant requested that the Court impute income pursuant to

section 19 of the guidelines. Mr. Ventzek suggested thatMr. Francis is intentionally unemployed or under-employed. Mr. Ventzek suggested that there is subsidized day care available for Mr.Francis’ children and that Amber, his wife, does not require his constant attention every hour of the day. Mr. Ventzek suggested thereare enough supports in place that Mr. Francis could return to work even if it was at a wage close to the minimum wage. Mr. Ventzekasks this Court to impute a yearly income of approximately $20,000.00. This equates to a full-time job at $10.00 an hour. [22] Ryan-Froske J. considered the application of s. 19(1)(

a) in V.G.B. v. E.H., 2004 SKQB 280, 250 Sask. R. 272. She sets outthe process to be followed at paragraph 13: Any analysis of s. 19(1)(

a) requires a three-step process. Firstly, the court must determine whether the parent is intentionally under-employed or unemployed. Secondly, if the parent is intentionally under-employed or unemployed, the court must determine whetherany of the exceptions set out in s. 9(1)(

a) apply. Those exceptions cover situations where the under-employment or unemployment isrequired by reason of (1) the needs of a child of the marriage; (2) the needs of any child under the age of majority; (3) the reasonableeducational needs of the payor; or (4) the reasonable health needs of the payor. Finally, if a court determines a parent is intentionallyunder-employed or unemployed and that none of the exceptions set out in s. 19(1)(

a) apply, then the court must decide whether toexercise its discretion and impute income. [23] In Yaremchuk v. Yaremchuk (1998), 1998 ABQB 118 , 38 R.F.L. (4th) 312, the Court stated that “intentional under-employment” must be proven and result in the payor’s intention to undermine or avoid child support obligations. The payor cannotvoluntarily change his lifestyle and expect to pass the consequences on to the children. There was no evidence the payor has turneddown employment or made reckless business decisions. [24] I am not prepared to impute income at this time. I did not find that Mr.

Francis is intentionally unemployed or under-employed. His 2008, 2009 and 2010 income tax returns did not show any business income from Crown Renovations. Mr. Francistestified he did not receive any money from this short-lived business venture. He admits removing the logo from his truck when servedwith these proceedings. In some circumstances this may cause some suspicion as to whether income is not being reported. However, inthis case, I accept his explanation. There is documentation filed (Exhibit D-1) to confirm that Mr.

Francis is in receipt of socialassistance and that he has been required to be at home due to his wife’s health up to this point. Mr. Francis spoke about the possibility ofhe and Amber returning to school as early as January 2012, if all arrangements can be made. This is a sensible move. With sometraining, Mr. Francis should be able to obtain a better paying job. The children are getting older, will be in school and child care issubsidized. I am prepared to accept the respondent’s evidence of his income as reported in his 2010 tax return, which is $14,029.00.

Heand Amber have two children, ages three and one, as well as one child from a previous relationship of Mr. Francis who is eleven, livingin their home. In addition, the medical information provided, and in particular the letter of November 21, 2011, from Dr. H. Volker Rinisland, confirm that Amber has been under his care for four years and: ...she has struggled with significant depressant illnesses since the birth of her first child in 2008. Treatment has included hospitaladmission and fairly intensive drug and cognitive therapy by mental health professionals and by me.

Her husband is her main supportduring this time and I suspect Amber’s illness takes up a significant amount of his time, finances and emotional energy.

[ 25 ] In addition, Mr. Francis indicated that this has in fact been the case and he has been attending counselling as well. I accept that at this point in time Mr. Francis has his hands full with caring on a daily basis for the children and Amber, and I am of the opinion it would not be appropriate to impute even minimum wage income to him. I am satisfied Mr. Francis is doing his best to keep his family going and together. I accept living and coping with a family member with mental health problems, such as depression, is exhausting and can be a full-time job. I accept Mr.

Francis’ evidence that he and Amber are attending and following the recommendations of the various counsellors, doctors and other professionals, including their workers at social services. This is not to say that the situation will not change, but the applicant can apply for a variation order at that time. [ 26 ] Mr. Francis has a work history of minimum or close to minimum wage jobs. However, most of these are of some vintage and not relevant in these proceedings. [ 27 ] The father suggests that he and his family will suffer undue hardship if he is required to pay any amount of child support. [ 28 ]

Section 3 of The Family Maintenance Act clearly states the obligation to pay child support in accordance with the guidelines and table amount. This is the norm. There are numerous decisions stating and applying this principle.

Section 10 of the guidelines places the onus or responsibility on the party claiming undue hardship to establish the basis for it. [ 29 ] Undue hardship must be established within the parameters of

section 10. In my view, undue hardship is to be restrictively interpreted. [ 30 ] Mr. Francis relies on section 10(2)(d). He has a legal duty to support his three other children who live with him and are under 18 years of age. Their monthly rental increased when Mr. Francis’ eleven year old son moved in with them. [ 31 ] Mr. Francis testified that even the smallest outing for the children are a burden on the family. The entertainment, meals outside the home and child care expenses indicated on his financial statement are not extravagant or out of line as the plaintiff suggested. Mr.

Francis testified that these amounts are for family outings. In addition, Mr. Francis states one of the recommendations of his counsellor was that he and Amber should have “date” nights once a month. [ 32 ] Section 10(3) of the Regulations also requires a comparative analysis of the standard of living in the two homes. This requires a comparison of all the household income and expenses.

This means that unless it is established that payment of the table amount would result in the father’s household having a lower standard of living than the mother’s household, the Court cannot consider the undue hardship application and reduce the support amount required by the guidelines. [ 33 ] Using the Child View computer program, Mr. Ventzek filed three calculations using three different income amounts for the father, to show the household income ratio.

The household that has the higher ratio has the higher standard of living. [ 34 ] Child View is a common and accepted program used by all levels of Court in this province. It complies with the test set out in section 10(4)

Schedule II of the Regulations . The applicant mother suggests I use the calculation where income is imputed to the payor father. I am not prepared to do so for reasons already enumerated. I am prepared to look at the Child View results where the father’s income of $14,000.00 is used. The results clearly show that the mother has the higher ratio and therefore has the higher standard of living. In fact, all three calculations show the mother to have the higher standard of living. [ 35 ] Therefore, I am satisfied that Mr. Francis has met the test and undue hardship exists.

As a result of section 10(1) which states the Court may award an amount of child support that is different than the tables. The presiding judge has the discretion under section 10(1) to order a different amount of child support from the guidelines. In some cases, the Court has tried to equalize the income of the two households by reducing the amount of child support. [ 36 ] I am still of the view, even though Mr. Francis’ household has the lower standard of living, that he should pay some child support. Accordingly, I fix the amount of child support at $25.00 per month, retroactive to July 1, 2011.

[ 37 ] In addition, Mr. Francis shall provide a copy of his income tax return and notice of assessment to the applicant every year. In addition he shall notify the applicant within thirty days of any change of household income. [ 38 ] Child care expenses are considered under s. 7 of the Federal Child Support Guidelines.

Section 10 of the guidelines does not explicitly provide relief from s. 7 expenses if there is a finding of undue hardship. [ 39 ] In Deveau v. Groskopf , 2000 SKQB 186 , the Court noted that one of the results of a finding of undue hardship has been that s. 7 expenses have been disallowed or set off against access costs. At paragraph 29, the Court stated: The question that remains is the consequences that flow from the finding of undue hardship. In some cases the courts have reduced the Table amount, in others courts have disallowed s. 7 expenses or set off access costs against s. 7 expenses.

If the appropriate objective is to establish a level of support that meets the Guideline requirement as closely as possible in the circumstances, yet still allows the father to enjoy his reasonably exercised access rights, some balancing of interests is necessary. [ 40 ] I decline to award, at this time, any amount for child care expenses. [ 41 ] Since Mr. Francis is not employed, and has no pension plan or insurance, there will be no other orders. [ 42 ] While the respondent will see this amount as too high, and conversely the applicant too low, the reality of the situation is both parents have a limited income.

Each parent is trying to do his/her best to provide for their family unit. However, the law is clear; it is the child’s right to have financial support from both parents to the extent as provided for in the legislation. Dated at Moose Jaw, Saskatchewan this 8 th day of February, 2012. ______________________________________ M.T. Gordon, J