Docket: 1715 Sonia Vicki Smith (Richert) Appellant - v. -, 2011 SKCA 25

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 25 Date: 20110217 Between: Docket: 1715 Sonia Vicki Smith (Richert) Appellant - and - Mervin Bryan Smith Respondent Coram: Jackson, Richards & Ottenbreit JJ.A. Counsel: Larry Ayers for the Appellant Anna Singer for the Respondent

Appeal: From: DIV No. 171 of 1998, J.C. Saskatoon Heard: February 17, 2011 Disposition: Appeal Dismissed (orally) Written Reasons: February 24, 2011 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards Ottenbreit J.A. [ 1 ] The Appellant, Sonia Vicki Smith (Richert), appeals a decision of the Chambers judge declining on an application to vary the existing maintenance order to: (

i) retroactively rescind the maintenance payable by the Appellant for her three children, (ii) fix the amount of any overpayment resulting from that rescission, and (iii) order the Respondent to pay such overpayment to the Appellant. The decision of the Chambers judge is a discretionary one and the standard of review permits only limited intervention respecting such decisions. [ 2 ] Assuming that the Chambers judge had the jurisdiction to order retroactive rescission of the maintenance, there was no palpable and overriding error made by him in coming to his decision.

His decision turns on the matter of delay which he explains in paras. 7 and 17 of his Fiat made December 11, 2008. In that respect, it is noteworthy that attempts were made by the Appellant in 2005 to resolve variation issues but these appear to not have been pressed forward. [ 3 ] The decision of the Chambers judge must be sustained. He was not satisfied, on the whole of the evidence, that the delay by the Appellant in bringing the application for variation in 2007 had been satisfactorily explained by the Appellant.

The Chambers judge concluded the justice of the case required that there be no order for repayment by the Respondent and we see no reason to interfere with that decision. The appeal is dismissed. The Respondent shall have his costs to be fixed at $2,000.00.