N.T.G. PETITIONER - v. -, 2022 SKKB 264

REDACTED VERSION KING ’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 264 Date: 2022 12 02 Docket: FLD-RG-00285-2013 Judicial Centre: Regina BETWEEN: N.T.G. PETITIONER - and - J.A.M.G. RESPONDENT - and - DIRECTOR OF THE MAINTENANCE ENFORCEMENT OFFICE Appearing: No one appearing for the petitioner Jamie-Lee Denton for respondent (applicant) No one appearing for the Director FIAT ROBERTSON J.

December 2, 2022 Application [ 1 ] This decision addresses an application by the respondent, J.A.M.G. [J.A.M.G.] for an order: to stay enforcement of maintenance; to reduce or extinguish child support arrears; for parenting time with the children; for communication between parents by email; and costs. Notice of Application [ 2 ] The application was heard on November 25, 2022. No one appeared for the respondent, N.T.G. [N.T.G.], nor for the Maintenance Enforcement Office [MEO]. Ms.

Denton, who is J.A.M.G.’s lawyer, said she had notified MEO of the application and MEO had told her it did not intend to participate in the hearing. I also questioned whether N.T.G. had received notice through

Facebook as authorized by the substitutional service order of August 22, 2022 by Chow J. That order was specific to those materials. The endorsement on the court file required service by Facebook and by personal service on the respondent’s mother. But the order issued instead required substitutional service on N.T.G.’s mother, S.G., only if service by Facebook was unsuccessful ( i.e . evidence of actual notice). Regardless, from Ms.

Denton’s answer to my question, I was satisfied that N.T.G. received notice of the application. [ 3 ] N.T.G. has since blocked receipt on Facebook and his mother’s telephone is out of service, so that mode of substitutional service is no longer viable.

Facts [ 4 ] The following chronology is taken from documents on the court file: 2004 January 1 Parties began cohabiting 2005 ******* H.H.G. born 2008 ******* W.A.G. born 2011 ******* L.W.G. born 2012 October 20 Parties ceased cohabiting 2013 July 30 Petition filed 2016 December 9 McIntyre J. order that J.A.M.G. pay child support of $487 by January 1, 2017 2017 January 18 Krogan J. order that J.A.M.G. pay child support of $487 by February 1, 2017 March 17 Wilson J. order that J.A.M.G. pay child support of $487 per month (based on income of $23,200: J.A.M.G. affidavit, at paragraph 10) March 31 McMurty J. order that J.A.M.G. pay child support of $487 per month April 21 Dufour J. order that J.A.M.G. pay child support of $487 per month 2022 August 22 Chow J. order authorizing substitutional service on N.T.G. by Facebook and by personal service upon the respondent’s mother October 17 Layh J. order exempting parties from mandatory mediation or family dispute resolution [ 5 ] The application is supported by an a ffidavit of J.A.M.G. sworn August 3, 2022 [J.A.M.G.

Affidavit]. In it, J.A.M.G. says she has re-partnered and started a new family, so is now a homemaker and not seeking employment. [ 6 ] The J.A.M.G. Affidavit at paragraph 10 states that the monthly child support of $487 was based upon an estimated annual income of $23,200. [ 7 ] The J.A.M.G. Affidavit at paragraph 12 states her gross income from 2017 to 2021. Ms. Denton, in argument, gave the support payable based on those incomes, as shown in the table below:

Year J.A.M.G. Affidavit Monthly Child Support Payable 2017 $28,798.58 ($12,790.50 on line 150 in Tax Return) $590 2018 $36,576.28 $714 2019 $15,888.00 $211 2020 $12,500.00 $50 2021 $5,000.00 $0 [ 8 ] After the hearing of the application, J.A.M.G.’s lawyer filed a draft order at my request. That draft order proposes the following relief: 1. The Maintenance Enforcement resulting in the garnishment of the Respondent’s Child Tax Benefits is hereby stayed. 2. The lien on the Petitioner’s [ sic – J.A.M.G.] bank account shall be lifted and her driver’s license shall be returned. 3.

Maintenance Enforcement shall reimburse the Petitioner [ sic ] for the Child Tax Benefit garnishments for the months of May, June, and July 2022 in the amount of $5,611.74. 4. The Petitioner [ sic ]shall pay child support arrears in the amount of $5,739.00 to the Maintenance Enforcement Office within 12 to 24 months of this Order. 5. The Petitioner [ sic ] shall file her 2022 Tax Returns no later than July 1 st , 2023 such that ongoing child support may be determined. 6. The Order granted by the Honourable Justice J.E. McMurtry on March 31 st , 2017 is hereby varied. 7.

The issues of parenting and costs are adjourned to December 2 nd , 2022. ISSUES [ 9 ] The application raises the following issues: 1. Should the enforcement of maintenance be stayed? 2. Should child support arrears be extinguished or reduced? 3. Should the mother be given parenting time? 4. Should an order be made for communication between the mother and father? 5. Should costs be ordered? ANALYSIS [ 10 ] This decision will only address the issues of whether enforcement of maintenance should be stayed and whether child support arrears should be reduced or stayed.

Enforcement of Maintenance Order [ 11 ] J.A.M.G. does not identify the statutory authority for relief sought.

Section 53.1 of The Enforcement of Maintenance Orders Act, 1997, SS 1997, c E-9.21 [ Act ] provides general authority for the court to suspend enforcement measures, but only for up to six months: Suspension 53.1

(1) If the director has commenced a default hearing pursuant to

section 51, the payor may apply to the court for an order suspending enforcement measures, on any conditions the court considers appropriate, for a period not exceeding six months.

(2) An order may be made pursuant to this

section only if the court is satisfied that the payor is unable for valid reasons to make the payments required under the maintenance order.

(3) An order made pursuant to this

section does not suspend or affect: (

a) any enforcement measure authorized by

an Act of the Parliament of Canada; (

b) any registration or filing made by the director pursuant to The Land Titles Act, 2000 or in the Personal Property Registry; or (

c) any proceeding or enforcement measure taken pursuant to sections 41 and 42.

(4) The court may not make an order that has the effect of suspending any proceeding, action or matter mentioned in subsection (3).

(5) The payor shall serve notice of an application made pursuant to subsection (1) on the director. [ 12 ] The then Minister of Justice and Attorney General, the Honourable Don Morgan, K.C., spoke to the Legislative Assembly on November 26, 2008 about the purpose of this legislation in the second reading speech to the Legislature on Bill No. 69 – The Enforcement of Maintenance Orders Amendment Act, 2008 : … Hon. Mr. Morgan: — Thank you, Mr. Speaker. I rise today to move second reading of The Enforcement of Maintenance Orders Amendment Act, 2008 . The maintenance enforcement program was created in 1986.

It is the sole provincial program whose primary function is to enforce the right of a dependent spouse or child to support payments. ... Mr. Speaker, the current Act provides a variety of mechanisms to assist the director in the enforcement of delinquent accounts. For example, the director may attach pension entitlements and RRSPs [registered retirement savings plan], place garnishments, suspend drivers‟ licences and federal licences, and also seize and sell personal property. However, to increase the office’s effectiveness, additional enforcement tools are needed.

This is what we aim to achieve with the passage of this Bill. … (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) 26 th Leg, 2 nd Sess (26 November 2008) at 1877) [ 13 ]

Section 53.1(5) requires service of the application on the director. Although proof of service was not filed with the application, I accept, as noted above, counsel’s assurance that notice was given and MEO did not wish to participate in the hearing of this application. [ 14 ] J.A.M.G. complains that her only income is the Canada Child Benefit [Child Benefit] and it is being garnished. The Child Benefit is paid to the parent for the benefit of the child. It has been successful in reducing child poverty.

Given all of the circumstances, I am prepared to stay enforcement, but only with respect to the garnishment of the Child Benefit, because it is intended for the child. This suspension is only for six months, as limited by s. 53.1(1) of the Act . [ 15 ] I decline to grant the other relief sought in the draft order, namely lifting the lien on J.A.M.G.’s bank account or the suspension of her driver’s licence. In so deciding on her driver’s licence, I have applied s. 41 of the Act . [ 16 ]

Section 41 of the Act authorizes MEO to have a payor’s driver’s licence suspended.

Section 43 authorizes the court to review such a suspension on specified grounds. Section 43(1) limits the grounds for relief to: (

a) arrears less than three months; or (

b) where “a person’s health is or would be seriously threatened by the suspension.” This special provision is distinct from the general relief provided under s. 53.1. Relevant parts of ss. 41 and 43 are reproduced below: DIVISION 6 Licence Suspension Licence may be suspended 41

(1) In this

section and in sections 42 and 43: “administrator” means the administrator designated pursuant to

section 3 of The Traffic Safety Act ; “licence” means driver’s licence within the meaning of The Traffic Safety Act .

(2) The director may direct the administrator to suspend a payor’s licence where: (

a) the payor is in arrears in an amount not less than three months’ payments respecting an obligation under a maintenance order that is filed in the office; (

i) in an amount equal to at least 3 months of payments under the maintenance order; or (ii) in an amount equal to less than 3 months of payments under the maintenance order but the director has made a decision pursuant to

section 15.3 to enforce the lesser amount; (

b) in the opinion of the director, all reasonable steps have been taken to enforce the maintenance order; (

c) the director has served the payor with written notice pursuant to subsection 42(1) of the director’s intention to direct the administrator to suspend the payor’s licence; and

(

d) after receiving notice pursuant to subsection 42(1), the payor has not, within the notice period, made arrangements satisfactory to the director to fulfil the obligation under the maintenance order. ... Application to the court 43

(1) The court, on application, may order the administrator to cancel a suspension mentioned in subsection 42(2) or (3.2) or not to suspend a payor’s licence pursuant to that subsection where the court is satisfied that: (

a) the payor is not in arrears in an amount not less than three months’ payments respecting an obligation under a maintenance order that is filed in the office; or (

b) a person’s health is or would be seriously threatened by the suspension.

(2) A person applying to the court shall serve the director with notice of the application. [ 17 ] J.A.M.G., as applicant-payor, has the onus of satisfying the court on an evidentiary basis that her driver’s licence suspension should be lifted. In Stroich v Stroich , 2021 SKQB 304 at para 8 , Keene J. commented on the onus on applicants under s. 43: [8] I will also comment on his request that the suspension on his driver’s license be lifted pursuant to s. 42 of the Act . In this regard I have reviewed s. 43(1)(

a) and (

b) reproduced above. It is clear that his arrears exceed three months. Again he has not provided a satisfactory evidentiary basis under s. 43(1)(

b) to establish that his health is or would be seriously threatened by the driving suspension. The onus is on Mr. Stroich to provide acceptable evidence and the above reproduced para. 10 from his affidavit does not meet the evidentiary standard.

Accordingly even though this application is not before me, I nevertheless have considered it and dismiss his application to have his driving suspension lifted. [ 18 ] In D.R.C. v J.E.M. , 2022 SKQB 26 , I dismissed an application to lift a driver’s licence suspension for a man who resided in a rural area, stating at paras. 19-23: [19] The suspension of driving privileges is one of many tools the Legislature has provided MEO to encourage or compel defaulting payors to pay court-ordered support. The enforcement measures are intended to cause inconvenience, including serious inconvenience, to defaulting payors.

Otherwise, they would be ineffective. [20] It is unfortunate, but inevitable, that suspension of a payor’s driving licence may occasionally affect others, including the payor’s family. But the responsibility for that lies with the defaulting payor. [21] On the construction proposed by D.R.C., most rural residents could claim exemption under s. 43(1)(b). That could not have been the intent nor is such a construction consistent with the plain meaning of the words “ a person’s health is or would be seriously threatened by the suspension”.

It would be contrary to the spirit and intent of The Enforcement of Maintenance Orders Act, 1997 to give such a broad meaning to s. 43(1) (b). It is intended to apply to exceptional cases where there is a real and serious threat to a person’s health created by the suspension of driving privileges that cannot reasonably be addressed by other alternatives. [22] D.R.C. filed an affidavit sworn December 29, 2021 in support of his application. In that affidavit, at para. 9, he states his “serious health related reasons”. 9. THAT I need my driver’s license for the following serious health related reasons: i.

To get food for myself and my children ii. To pick my children up from school when they show potential covid-19 symptoms iii. To work when there is work. iv. To transport myself and the children to all and any health related needs. [23] These reasons do not constitute a serious threat to a person’s health within the meaning of s. 43(1) (

b) of The Enforcement of Maintenance Orders Act, 1997 . I am not satisfied, on the evidence, that the suspension of D.R.C.’s driver’s licence should be disturbed. The application is therefore dismissed. [ 19 ] J.A.M.G. did not seriously contend that the suspension of her driver’s licence constituted a serious threat to a person’s health, so that part of her application is dismissed. Expunging or reducing arrears [ 20 ] The J.A.M.G. Affidavit at Exhibit “B” provides an MEO statement of account showing accumulation of child support arrears from July 1, 2018 until May 16, 2022.

The total arrears then were $16,718.12. [ 21 ] In Hrappsted v Ash , 2018 SKQB 172 , Brown J. summarized relevant case law for an application to expunge arrears of child support: [5 ] The factors the court must consider in such an application have been identified in a number of decisions including Bowen v Halliday , 2015 SKQB 152 , 475 Sask R 200 [ Bowen ] ; Longley v McFadden , 2016 SKQB 210 [ Longley ] ; and Wiome v Wiome , 2002 SKQB 402 [ Wiome ] . The principles set out therein are to be kept in mind and applied where appropriate.

[6] Justice McIntyre observed in Wiome that, in dealing with the issue of arrears Justice Wilkinson’s observation in Kulyk vSrayko (1997), (SK KB), 162 Sask R 184 (Sask KB) at para 3 was informative: [3] …In the absence of special circumstances a variation order should only be considered where the former spouse has established on abalance of probabilities that he or she cannot pay and will not in the future be able to pay the arrears: Haisman v Haisman (1994), 1994ABCA 249 , 157 AR 47 (Alta CA); Diebel v Diebel (1997), (SK KB), 155 Sask R 96 (KB), Laing, J. [7] Ross v Vermette, 2007 SKQB 272, 309 Sask R 17 [Ross], is also of assistance and states: 11 …it is a fundamental principle that parents have a joint legal obligation to contribute to the support of their children.

Further, the rightto support is the right of the child and is not a right that can be negotiated away by means of an agreement between the parents. … [8] Recently in Longley at para 48, Justice Megaw affirmed the principles set out in Bowen, Ross, Allaire v Greyeyes, 2008 SKQB81, 313 Sask R 178 and Wolkowski v Doroshenko, 2002 SKQB 114, 216 Sask R 237, that the factors bearing on the outcome include: 48… 1. The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5.

Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payment of the arrears would cause hardship to the payor; and 7. The payor’s ability to pay the arrears at the time they were incurred. [9] Justice Goebel in Kun v Kun, 2015 SKQB 178, 478 Sask R 109 [Kun] described the ability to pay criteria.

At para. 28, it isstated that, while not being a threshold determination; 28 … its prominence renders the remaining factors of little impact where a payor has the present or future ability to pay the arrears. [10] Simon must therefore demonstrate that he does not have the ability to pay the arrears presently and that he will likely not beable to pay the arrears in the future. [22] In Gray v Rizzi, 2016 ONCA 152, 395 DLR (4th) 480 [Gray] the Ontario Court of Appeal held the factorsoutlined in D.B.S. v S.R.G; L.J.W. v T.A.R.; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37, [2006] 2 SCR 231 govern when anapplication for retroactive variation of child support arrears is made.

These factors include concerns about delay, misconduct, the child’scircumstances, and hardship. However, in Gray, the court made a distinction between: (

a) a current inability to pay arrears that arose at atime when they were capable of being paid; and (

b) a sustained inability to make child support payments due to a change incircumstances that impaired the ability to make the payments as they came due. [23] If a payor establishes a change in circumstances when arrears were accumulating, which rendered the payorunable to pay child support for a substantial period, it is open to the court to vary the support or rescind arrears. [24] J.A.M.G.’s application is not unlike others that come before the court where a parent has re-partnered andstarted a new family.

As in some of those cases, the parent seeking relief seems to give priority to their new family over their old family. What is different in this application from others I have encountered is that the applicant-parent is the mother as opposed to the father. Butthe gender of the parent is not material to the test. [25] There is a change in circumstance since the child support order was made in that J.A.M.G. has re-partnered andhas two young children with her new partner. While J.A.M.G. says her new partner is currently unemployed, that would seem to be atemporary situation since, according to the J.A.M.G.

Affidavit at paragraph 8, they moved to their --------- home in the summer of 2021for his work. His past and anticipated future income will help to support their family. [26] J.A.M.G. has made a choice to work in the home rather than outside the home for income which could be used to pay her child support obligations. Further, J.A.M.G. was gainfully employed in 2018 whenthe arrears began to accumulate, so it would seem she made a choice then as to whether to pay ordered child support.

At that time her annual income was 36,576.28, which,according to her lawyer, would justify monthly child support of $714, although the ordered child support was for only $487 per month. Itwould appear she had the financial capacity to pay during at least part of the time that the arrears accumulated. [27] Further, her current unemployment is related to her young family. This is usually a temporary condition. Givenher income and employment history, as stated in the J.A.M.G.

Affidavit at paragraphs 12 and 13, I infer J.A.M.G. is capable of and likely will resume gainful employment in the future. [28] Finally, the temporary suspension of garnishment of the Child Benefit will provide some relief to what appearsto be a temporary lack of income. [29] Having regard to the evidence before me, I am not satisfied that J.A.M.G. has established on a balance ofprobabilities that she cannot pay and will not in

the future be able to pay the arrears. The application is therefore dismissed. Parenting arrangement [ 30 ] According to the J.A.M.G. Affidavit at paragraph 21, J.A.M.G. has since the summer of 2017 had no contact with the children for whom child support was ordered. She has no knowledge of the location of N.T.G. or their children, who presumably still reside with N.T.G., except that she believes they reside in and are attending school in Regina.

If so, I would have thought she should be able to locate them through the school board. [ 31 ] During the hearing, I questioned whether the court should make an order for parenting and communication when it would seem it could not be practically implemented. Given the lack of information and participation by N.T.G., this part of the application was adjourned to December 2, 2022 to allow counsel to seek advice from senior counsel. Variation of child support [ 32 ] There may well be a case for variation of child support; however, the application before me did not identify that as a remedy sought.

If I were to consider it, I might be inclined to impute income to the mother, since it appears to me that she has made a choice to work in the home rather than seek other employment. But since that remedy was not identified in the notice of application, I prefer to leave it to be determined on proper pleadings. Costs [ 33 ] The application was not opposed. There was mixed success. The respondent (applicant) was represented by Legal Aid. While this does not disentitle a party to costs, it is relevant that the applicant herself has not paid for legal representation.

Having regard to Rule 11-1 of The Queen’s Bench Rules and all the circumstances, I make no order as to costs.

Summary [ 34 ] The application for parenting time is adjourned to December 2, 2022. [ 35 ] The application to suspend maintenance enforcement is dismissed, except for suspending garnishment of the Canada Child Benefit for six months. [ 36 ] The application to extinguish or reduce child support arrears is dismissed. [ 37 ] There is no order as to costs. [ 38 ] The Local Registrar is asked to provide a copy of this decision to the Director of the Saskatchewan Maintenance Enforcement Office. J. D.N. ROBERTSON