Docket: 1965 Marcia Anne Pontius Appellant - v. -, 2011 SKCA 121

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 121 Date: 20111011 Between: Docket: 1965 Marcia Anne Pontius Appellant - and - Colin Donegan Murray Respondent Coram: Vancise, Ottenbreit and Caldwell JJ.A. Counsel: Kendra L. Jacobs for the Appellant No one appearing on behalf of the Respondent Appeal:

From: F.L.D. No. 363 of 2006, J.C. Regina Heard: October 11, 2011 Disposition: Allowed (orally) Written Reasons: October 24, 2011 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Caldwell Ottenbreit J.A. [ 1 ] Marcia Pontius (“Ms Pontius”) appeals the decision of the chamber judge who granted a variation application by Colin Murray (“Mr. Murray”) to reduce his ongoing child support obligation to $0. Other parts of the chamber judge’s decision are not appealed. When the matter came before this Court, Mr. Murray did not appear.

After argument and considering the written material filed by both parties, we allowed the appeal with brief remarks and indicated written reasons would follow. These are the written reasons. [ 2 ] Mr. Murray, who lives in British Columbia, brought an application for variation pursuant to the Inter-jurisdictional Support Orders Act , S.S. 2002, c.

I-10.03, requesting that the Saskatchewan maintenance order dated October 16, 2007 whereby he was obligated to provide maintenance for his son, Hunter Murray, born in 1998, in the amount of $196.00 per month, be reduced to zero and that arrears be set or fixed as of August 1, 2009 on the basis of the actual amount of Mr. Murray’s earnings. This maintenance order determined Mr. Murray’s income at $21,600.00 per annum. [ 3 ] This matter first came on for hearing in the court below in January of 2010, and the chamber judge at that time ordered that Mr.

Murray file his 2009 income tax return and file an affidavit outlining his attempts to obtain employment. Subsequent to that, Mr. Murray filed an affidavit indicating that the job market on the sunshine coast of British Columbia where he was living is minimal and his employment prospects were seasonal. [ 4 ] The matter next came on in March of 2010. At that time, the chamber judge imposed on Mr.

Murray a number of conditions which included disclosing the sources of his income in the years 2008 and 2009, whether he had received money from any source which is not reported on his 2008-2009 tax returns, indicating whether he was on social assistance, explaining whether any of the monies he had received are deductible from social assistance, providing the Maintenance Enforcement Office in Kelowna with details of the employment he procures on a monthly basis as well as advising if he has made any effort to seek such employment.

Lastly, he was to advise if he suffers from any medical conditions, physical or emotional, that preclude him from working, and if so, to file a medical certificate from his physician to that effect. [ 5 ] In due course, Mr. Murray provided his 2008 and 2009 tax returns and a response in general terms to the other conditions imposed on him in March. He indicated that he did not have a medical certificate indicating he could not work. He also indicated that he was on social assistance. [ 6 ] The chamber judge reduced ongoing support to zero but declined to deal with the arrears.

There was nothing in the fiat of the chamber judge which indicates the reasons for reducing the ongoing support. [ 7 ] Pursuant to The Family Maintenance Act, 1997 , S.S. 1997, c. F-6.2, under which the support order was made, a change of circumstances must be established before a court will proceed with variation. [ 8 ] Ms Pontius in the court below essentially argued that Mr. Murray’s income had not changed because income should be imputed to the Respondent pursuant to s. 19(1) (

a) of the Federal Child Support Guidelines , SOR/97-175. The first ground of her appeal was that the chamber judge failed to deal with this argument and impute income. Although it might be inferred that the chamber judge dismissed this argument, it was incumbent on him, given that a child was involved, to at least address the argument and find a change in circumstances. Given his failure to do so, it can be addressed in this Court.

[ 9 ] Section 19(1) (

a) of the Federal Child Support Guidelines reads: 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... The term “under-employed” concerns situations where a parent, for whatever reason, chooses to earn less than they are capable of earning. “Intentionally” does not necessarily mean that the parent in question is attempting to avoid paying child support or does not care for the child.

A subjective intent to evade or reduce a child support obligation is therefore not necessary. See: Beisel v. Henderson , 2004 SKQB 280 , [2006] 2 W.W.R. 502. [ 10 ] There was evidence before the chamber judge that Mr. Murray was intentionally under-employed or unemployed in that he chose, for whatever reason, to earn less than he was capable of earning. The original chamber order imposing maintenance of $196.00 a month was based on income of $21,600.00. This income is approximately just over $10.00 an hour and only slightly in excess of what may be termed to be a minimum wage. Moreover, it appears that Mr.

Murray chose to move from Kelowna, where he was earning a substantial income, to other places in British Columbia where he, curiously in this economic environment, has been unable to find employment. [ 11 ] Additionally, there was no evidence that Mr. Murray was medically unfit to work. It would be reasonable under the circumstances, given his age and education and the fact that he is able-bodied, to be able to find a job that paid at least the minimum wage. In Donovan v.

Donovan , 2000 MBCA 80 , 190 D.L.R. (4th) 696, Steel J.A. at para. 18 states: A decision as to whether a person is capable of earning more income than they are presently earning depends on the context. Fundamentally, the court will impute income in the same fashion that it did before the introduction of the Federal Child Support Guidelines . Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable at the time they are taken considering all the circumstances. Mr.

Murray is, in our view, deliberately under-employed and income of at least $21,600.00 could be imputed to him. Accordingly, there is no basis to vary the order. [ 12 ] An order reducing ongoing maintenance to zero would additionally not be in keeping with the spirit of the child support legislation and the Guidelines ,

section 1(

a) and (d): 1. The objectives of these Guidelines are (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; . . . (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. The appeal is therefore allowed. The order of Mr. Justice Kraus for $196.00 per month remains in full effect. Additionally, the parts of the chamber judge’s order not appealed from remain in effect. Counsel advised the Court that arrears as of October 1, 2011 was $8,632.00 based on the existing order. That amount will be fixed as the arrears owing as of October 1, 2011. [ 13 ] Ms Pontius has also asked for costs. This is an appropriate case where costs should be awarded and these are fixed at $2,500.00.