TRACY LYNNE WERNER (BUCKLE) PETITIONER - v. -, 2012 SKQB 495

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 495 Date: 2012 11 26 Docket: FLD 269 of 2007 Judicial Centre: Regina BETWEEN: TRACY LYNNE WERNER (BUCKLE) PETITIONER - and - WADE BUCKLE RESPONDENT Counsel: Evan B. Thompson for the petitioner Thomas Campbell for the respondent JUDGMENT PRITCHARD J. November 26, 2012 [ 1 ] There are two chambers applications before the court. Wade Buckle (the “ father ” ) applies to vary the existing child custody and support order to recognize that one child of the marriage now resides with him while the other continues to reside with the mother.

This parenting change occurred on April 10, 2011 and the father seeks a retroactive recalculation of his child support obligations from that date and an order extinguishing any existing arrears. The father also seeks a further recalculation of ongoing child support obligations based on the current incomes of each parent. [ 2 ] Tracy Werner (the “ mother ” ) counters with her own application for an order confirming the balance owing for arrears of base child support and for arrears of s. 7 expenses that she has paid for both children.

The mother opposes any extinguishing of existing arrears and also asks that no reduced child support be ordered until the father has satisfied his obligations under the Inter-spousal

Contract entered into by the parties. The father had agreed to pay the Scotia Bank line of credit but has now declared bankruptcy thereby extinguishing this obligation. As a result, the bank is seeking payment from the mother of the current outstanding balance of approximately $29,057.00. [ 3 ] There are two children of the marriage: Brennen born April 30, 1998 and Graham born January 3, 2001. At the time the existing order was made, the mother had sole custody and both boys resided with her.

Since mid April 2011, Brennen has resided with his father and to the extent the father, or other family members on his behalf, had being paying child support up to that date, it then ceased entirely. [ 4 ] The existing child support order was made September 4, 2009. Based on the father ’ s 2008 income of $61,283.06, he was ordered to pay child support of $858.00 per month for the two children commencing September 1, 2009. He was also ordered to forthwith pay costs of $1,000.00.

Under the parties ’ Inter-spousal Contract dated September 10, 2009, the father also agreed to pay not less than 50 percent of the children ’ s s. 7 expenses. [ 5 ] The Statement of Arrears as at November 30, 2011, shows that neither the costs of $1,000.00 nor any of the base child support payments required to be paid were made in 2009. Arrears as at December 31, 2009 total $4,432.00.

This changed in the following year as the Statement of Arrears shows base child support arrears in 2010 of only $582.00, and between January 1 and April 1, 2011, base child support of $4,000.00 was paid resulting in an overpayment for that period of $568.00 [$4,000.00 - ($858.00 x 4) = $568.00]. [ 6 ] The Statement of Arrears shows total arrears for base child support of $9,452.00 plus unpaid costs of $1,000.00 for total arrears of $10,452.00. However, this amount includes arrears from May 1, 2011 to November 30, 2011 for two children even though one child was no longer living with the mother.

If these arrears are deducted from the Statement of Arrears, the actual amount owing as of April 30, 2011 is only $4,446.00 [$10,452.00 - ($858.00 x 7)]. These arrears of $4,446.00 accrued when both boys were residing primarily with their mother and is very close to the total amount outstanding that should have been paid in the first year of the order. There is no evidence as to the father ’ s inability to make the base child support payments at that time and I am therefore not prepared to extinguish them or the costs included in the original order.

The manner in which these arrears are to be paid will be dealt with later. [ 7 ] The existing order requires base child support to be recalculated June 1 of each year based on the previous year ’ s income. This was never done and the father asks the court to now do it retroactively as his income decreased significantly in the years following the order. Under the existing order, the father ’ s 2008 income is stated to be $61,283.00.

The evidence on this hearing indicates that it was $57,670.00 in 2009; $30,427.00 in 2010; $34,044.00 in 2011 and is expected to be approximately $11,000.00 in 2012. [ 8 ] I have already determined that the arrears that arose in the four months immediately after the existing order was issued will not be extinguished. Although these arrears are to be enforced, I am prepared to consider a retroactive variation of the original order effective May 1, 2011 being the month following the time when the parenting arrangement significantly changed.

If a variation application had been made at that time, it would have been reasonable to have looked at each parties income in 2010 to establish the amounts payable by each under their new shared parenting. In that year, the father earned $30,427.00 and the mother earned $34,385.00. This would result in the father paying base support of $254.00 for one child and the mother paying $289.00 for a net monthly difference of $35.00. These new amounts would have been payable for the period May 1, 2011 (one month prior to the normal change date under the existing order) to and including May 1, 2012.

Effective June 1, 2012 child support would again be adjusted based on each parent ’ s 2011 income. The mother ’ s income in 2011 was $40,307.00 and the father ’ s was $34,045.00. Under the 2011 Guidelines, the father would pay $262.00 and the mother would pay $317.00 resulting in a net difference of $55.00 per month. [ 9 ] Based on the foregoing, the mother has underpaid child support to the father since Brennen went to live with him. However, the mother says that the father was underemployed throughout this time and was capable of earning much more.

She asks this court to impute additional income to him similar to the amount he was earning in 2008 and 2009. [ 10 ] I accept the father ’ s explanation for returning to Saskatchewan. The fact that Brennen has been residing with the father for some time now tends to support his father ’ s explanation that this son, in particular, needed his father closer to him than in the Province of Alberta. The father returned to this province in early 2010. He earned $30,427.00 in his first year back and $34,044.00 in his second year.

Although these sums are considerably less than his prior earnings, I am not prepared to find that he was significantly

underemployed in 2010 and 2011. Similarly, I am not prepared to retroactively require the mother to pay the additional $35.00 per month from May 1, 2011 to May 1, 2012 or the $55.00 per month from June 1, 2012 to October 1, 2012 that might otherwise have been payable based on a simple set-off of Guideline amounts.

These are nominal amounts totalling less than $750.00 and, given the additional family debt that the mother may be saddled with because of the father ’ s bankruptcy, it would simply not be fair or reasonable to make such a retroactive order. [ 11 ] I now turn to the father ’ s application for a reduction in his child support obligation based on his current income. As at mid- November, the father expects his 2012 income to be significantly less than earned in 2011.

He therefore submits that he is in need of an immediate adjustment of his child support obligations rather than waiting for the annual adjustment in June 2013. There is no doubt that if a payor ’ s income has dropped significantly in 2012 from his or her 2011 income that paying child support from June 1, 2012 to May 1, 2013 based on the higher 2011 income can cause real hardship to the payor. The reverse is true for the recipient if the payor ’ s income increases significantly in that time while payments continue to be based on a lower income.

Here, the father says that his actual income for 2012 is only expected to be $11,000.00 as compared to his 2011 income of $34,044.00. He therefore asks the court to immediately, if not retroactively, adjust his child support obligations to reflect this reality. Although in proper circumstances the court might entertain such an application, in this case, I am satisfied that the father is currently underemployed and I decline to do so. [ 12 ] The evidence establishes that the father suffered a major depressive episode in 2007 and continues to suffer from this often chronic condition.

He says the ongoing effects of depression affect his income earning capacity and at this time, he is only capable of working at minimum wage on a part-time basis. The father has filed medical evidence but it falls well short of linking his depression to an inability to work. There is no evidence that the father is actively seeking ongoing treatment for depression (other than when he is in crisis mode) or that he is otherwise taking steps to deal with his medical issue. He has a responsibility to his children that requires him to seek treatment to reduce the debilitating aspects of his condition.

There is no medical evidence that because of the depression the father is not able to earn at least $34,000.00 annually as he did in 2011. This amount will be imputed to him. [ 13 ] The most recent evidence of the mother is that her income has reduced significantly effective October 2, 2012. This is when she started full-time classes for training to be a Licensed Practical Nurse. Prior to that, she had been working nearly full-time hours by combining three separate relief positions as a Continuing Care Assistant for the Sunrise Health Region.

Her tuition and books for her current program of study are being paid by her union up to a maximum of $10,000.00. It is a tremendous opportunity for the mother to upgrade her skills and earning potential.

While attending classes full-time she will also maintain her janitorial work on the side earning approximately $1,375.00 per month or $16,500.00 per annum. [ 14 ] Effective October 1, 2012 and for so long as the mother remains in full-time attendance in her current program, the mother ’ s child support obligations for Brennen shall be reduced to the Guideline amount of $128.00 per month based on her current income of $16,500.00. With the modest imputed income of $34,000.00, the father ’ s child support obligation for Graham shall remain at $262.00 per month for a net difference of $134.00.

Effective October 1, 2012 the father shall pay the sum of $134.00 per month to the mother as base child support and shall continue for one month following the month that the mother completes her program. The mother ’ s child support obligations with respect to Brennen will obviously increase once she obtains her new employment and new calculations will be required at that time.

In the meantime, given the limited resources between both parents, for so long as the mother is at school, there will be no order in respect of s. 7 expenses for either child. [ 15 ] There are, however, s. 7 expenses that the mother has established as paid by her since 2009. These total $11,370.11. One half of that amount or $5,685.00 should have been paid by the father.

This amount, plus arrears of base child support and costs from 2009 of $4,446.00 leaves total arrears of $10,131.00. [ 16 ] Until further order or the agreement of the parties, the father shall pay the arrears of $10,131.00 by way of monthly instalments of $100.00 per month on the 15 th day of each month commencing December 15, 2012. So long as the arrears are paid as required hereunder, no enforcement proceedings shall be taken. [ 17 ] It is expected that the mother ’ s income will exceed the father ’ s imputed income once she has completed her educational program.

This will eliminate the set-off amount of base child support being paid to her. Therefore, effective the month following an adjustment of child support in which the mother ’ s income exceeds the father ’ s imputed income, the father ’ s monthly payments towards the arrears will increase by $200.00 per month. All monthly payments required to be made by the father with respect to arrears may be set off by the mother against base child support that she would otherwise be required to pay to the father for the support of Brennen.

If the arrears are not paid in full before Brennen is no longer a child within the meaning of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), the

balance owing at that time will continue to be payable by the father until the full arrears are paid. [ 18 ] There has been mixed success but the mother has been primarily successful and nominal costs are hereby awarded in the amount of $750.00 which will be added to the arrears and paid by the father as hereinbefore provided. [ 19 ] Counsel are at liberty to seek a telephone conference if there are any mathematical issues relating to this decision or if clarification is required with respect to the somewhat complicated repayment

schedule for the arrears. J. J.L.G. PRITCHARD