DAVID CRAIG MacGREGOR Applicant - v. -, 2010 NWTSC 30

MacGregor v. Munroe, 2010 NWTSC 30 Date: 2010 04 29 Docket: S-1-FM-2010000013 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF THE INTERJURISDICTIONAL SUPPORT ORDERS ACT, S.N.W.T. 2002, c. 19 BETWEEN: DAVID CRAIG MacGREGOR Applicant - and - CARYN MUNROE Respondent MEMORANDUM OF JUDGMENT [1] On this application, the Applicant applies for a variation in the amount of child support he was ordered to pay, from $700.00 per month to $200.00 per month, and requests that arrears of over $46,000.00 be reduced to a zero balance as at September 2009. The application is made pursuant to

Part 3 of the Interjurisdictional Support Orders Act (“ISO”). The Applicant resides in British Columbia. The Respondent and the 16 year old child for whom support is payable reside in Yellowknife. [2] The child support of $700.00 per month is payable pursuant to an order of this Court made on May 29, 1995, just over a year after the child was born. [3] The Respondent does not oppose some reduction in the amount of ongoing child support.

In late October 2009 she sent correspondence to Maintenance Enforcement requesting that the ongoing payments be reduced to $300.00 from October 20 forward and she reiterated that position on this application. She does, however, oppose elimination of the arrears, pointing out that she has borne and continues to bear the majority of the expenses to raise the child. She expects the expenses to continue as she would like the child, who is now in grade 10, to pursue post-secondary education. [4] The Applicant brought a previous application in 2006 (N.W.T.S.C.

Docket S-1-FM2006000146), seeking to have the monthly child support reduced to $250.00 per month retroactive to December 31, 2002 and that arrears of approximately $9000.00 as at the latter date be rescinded.

That application was dismissed in January 2007 by Richard J. of this Court, who found that the Applicant had not satisfied the Court that there had been a change of circumstances justifying a reduction of the amount of support payable or that he was unable to pay the arrears. [5] To succeed on his application, the Applicant must satisfy the Court that there has been a change of circumstances since the 1995 order was made in the sense of a change in his condition, means, needs or other circumstances: [6]

Section 14 (

c) of the Guidelines also provides that where the child support order was made before the Children’s Law Act came into force, the coming into force of the Act constitutes a change of circumstances. The Act came into force on November 1, 1998. Since then, child support is no longer calculated based on an assessment and weighing of the financial circumstances of both parents. Instead it is a calculation based on the province of residence and income of the payor parent.

The Court considers not only what the payor declares as his or her income, but what he or she is capable of earning. [7] It is evident from the Applicant’s materials that he relies in part on the coming into force of the Act and the Child Support Guidelines and in part on a continuing decrease in his income over the last 14 years. [8] The Applicant’s material includes Canada Revenue Agency documents showing his declared annual income as follows: 1995 - $46,519.00 1996 - $45,430.00 1997 - $35,696.00 1998 - $42,174.00 1999 - $31,548.00 2000 - $30,294.00 2001 - $15,463.00 2002 - $ 7,039.00 2003 - $ 2,946.00 2004 - $ 727.00 2005 - $ 7,320.00 2006 - $ 9,000.00 2007 - $ 9,800.00 2008 - $ 9,912.00 [9] He also indicates he earned $11,558.00 to June 19, 2009 [10] In dismissing the earlier application, Richard J. noted that the Applicant had not explained why he left remunerative employment in Yellowknife and had not indicated what efforts he had made in recent years to obtain employment that would allow him to meet his child support obligations to his son.

Nor had he explained how he supported himself in the years where his declared income was in the range of $700.00 to $7,000.00 per annum. [11] In the materials now filed, the Applicant explains that he was working at three jobs in Yellowknife, that he was transferred to Vancouver with one of those jobs in 1996 and that it was much harder there to make the salary he had made in Yellowknife. He had no reason to remain in Yellowknife as the Respondent at that time moved away from Yellowknife with the child.

He also says that he was laid off from a job with one of the airlines in 2003; the type of job is not specified. In 2007 he tried to start a moving company but was unsuccessful - that was information also missing from his 2006 application. He is now trying to learn carpentry, but work is slow. [12] A letter dated July 20, 2009 from a renovator indicates that the Applicant has been working for him as a carpenter’s helper in a sub-contractor capacity since November 2008. The renovator speaks well of him and indicates that he has shown a willingness to work whatever hours necessary to get the job done.

He works at an hourly rate of $22.50 and in 2009 to June 19, 2009 had worked 576.5 hours. However, this amounts to less than a full 40 hour work week. [13] At the time his application was signed, in 2009, the Applicant estimated his total income for 2009 would be $23,212.00. [14] It is clear that the Applicant’s income has fluctuated over the years and decreased from time to time with the most dramatic decreases beginning in 2001. In 2005 his income began to increase very slowly.

On the figures he has provided, his 2009 income would have been more than double his 2008 income. [15] Although the Applicant has provided more information than he did in 2006, he has still not given any details as to what work, if any, he did in the years when his income was very low and what efforts he made during those years to find and maintain employment. Nor has he provided any information as to efforts to supplement his less than full-time carpentry work.

The only explanation he offers is that he is limited in the work he can do as he has no education and no driver’s licence, although he does not say for how long he has been without the latter. There is no information before me as to the circumstances of the licence suspension but I infer that it may be related to the enforcement of child support arrears by authorities in British Columbia. [16] The Respondent testified that the Applicant has a highschool education and worked at landscaping and trucking when they were together. She testified that he is in good shape and pursues bodybuilding as a hobby.

The only thing that would have prevented him from earning money according to her evidence is a period when he was incarcerated for 8 or 9 months about 6 years ago. [17] The Applicant’s material also includes information as to his expenses and lack of assets. The expenses seem reasonable except that there is no explanation as to why he needs a storage locker at a cost of $178.00 per month.

He has also provided a letter from the Respondent’s mother referring to his close contact with the parties’ son and his expenditures to maintain that contact as well as the child’s contact with his extended family in eastern Canada. That letter also refers to the Applicant’s lengthy struggle with addiction. Although the letter is not under oath, the Respondent did not raise any issue with what was said in the letter. [18] It is to the Applicant’s credit that he makes the efforts he does to maintain contact with his son.

However the fact that he has struggled with addiction is not an excuse for failing to obtain employment to help with the support of his child.

The child’s interests have to come first. [19] It appears that the change in circumstance brought about by the Child Support Guidelines was not addressed before Richard J.; the Applicant has also provided more extensive information about his past years’ income on this application than he did on the previous one, even though he has still not explained adequately why his income was so low for so long. [20] I have considered whether Richard J.'s dismissal of the earlier application means that I should not deal at all with the arrears that he was asked to rescind at that time.

I have concluded that the dismissal is not a bar to considering all the outstanding arrears, including those that were the subject of the application before him. As I have noted, the Applicant provided more information on this application and it does not appear that he asked in the earlier application that his child support payments be brought in line with the Guidelines. The recalculation of child support ordered before November 1, 1998 to conform with the Guidelines is not uncommon on applications of this nature, for example as in Saunders-Roberts v.

Roberts (unreported), S.C.N.W.T. 6101-02603, February 14, 2002, which was a divorce case but the governing legislation is similar. [21] On this application it is appropriate to consider whether, when the Applicant was earning a reasonable income, the child support payable would have been adjusted had he applied to the Court for that relief under the Guidelines.

Since the coming into force of the Guidelines is deemed by the statute to be a change in circumstance, he would have been entitled to ask that his child support payments be adjusted to conform to them. [22] Under the Guidelines that were in effect until May 1, 2006, $700.00 per month was the amount of support payable for one child by a payor resident in British Columbia earning annual income of approximately $90,000.00. Under the current Guidelines, a payor earning $75,300.00 pays $700.00.

There is no evidence before me to suggest that the Applicant has ever been able to attain that level of income. [23] The Applicant moved to Vancouver in 1996; his explanation for moving is reasonable. His income for that year was $45,430.00, which is also reasonable. However, he has not adequately explained why his income fluctuated so much in the years after that. Had he applied to a Court after the Guidelines came into effect in 1998 to have his child support payments varied to be consistent with the Guidelines, I believe he would likely have been successful to a point.

He would have had to show that he was employed to the best of his capabilities or explained why his income dropped so dramatically in those years where it did.

Absent an explanation, he most likely would have obtained an adjustment based on whatever reasonable level of income he had been able to achieve, such as $45,430.00. [24] The Guidelines amount of support payable monthly for one child on income of $45,430.00 was $385.00 until May 1, 2006, when it changed to $421.00. [25] For the above reasons, in my view it is appropriate to adjust the arrears owing to reflect what the Applicant would most likely have been required to pay under the Child Support Guidelines.

Although re-calculation will reduce the arrears, I do not find it appropriate to cancel them completely. [26] The case most often cited and followed by this Court on the issue of cancellation of arrears of child support is Haisman v. Haisman, 1994 ABCA 249 (CanLII) , [1994] A.J.

No. 553 (C.A.), in which the following principle is stated (at paragraph 47): .. in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor can not then pay, and will not at any time in the future be able to pay, the arrears. [27] In Haisman, the Court also said that the mere accumulation of arrears, without evidence of a past inability to pay, is neither a change of circumstance nor a special circumstance (paragraph 25). [28] The Applicant has not fulfilled the test in Haisman: he has not shown that he was unable to pay a reasonable level of child support in the past and he has not shown that he is unable to pay any arrears now and that he will not likely be able to pay them in the future.

His income has already increased significantly from what it was over the last few years and it should continue to increase as he becomes more skilled in carpentry or finds other work to supplement the hours he worked in 2009. [29] I therefore order that the arrears of support be recalculated and adjusted only to the following extent: the child support payable by the Applicant is varied retroactively from $700.00 per month to (i) $385.00 per month for the period January 1, 1999 to April 30, 2006 and (ii) $421.00 per month from May 1, 2006 ongoing to date.

Since I do not have a current statement from Maintenance Enforcement, I will leave it to them to perform the necessary calculations to determine what the arrears are to date. [30] I order that the ongoing child support be varied to and continue in the amount of $421.00 as the Applicant is under-employed, not working full-time and the amount of support should be based on what he is capable of earning as inferred from what he has been able to earn in the past. [31] I recognize that the Respondent agreed in late 2009 to have the ongoing payments reduced to $300.00 (which happens to be the support amount based on annual income of $32,100.00 under the Guidelines), although her agreement appears to have been conditional on the arrears not being varied.

If she maintains her consent to the child support payments being reduced to that amount notwithstanding the reduction in the arrears as a result of this decision, counsel for the Designated Authority may obtain her consent on the formal order (with an affidavit of execution) and submit it to me. Otherwise, the formal order will reflect ongoing child support in the amount of $421.00. [32] I also order that the Applicant provide the Respondent with a copy of his filed income tax returns and any notices of assessment by July 1 of each year commencing July 1, 2010 for the 2009 taxation year. V.A. Schuler J.S.C.

Dated at Yellowknife, NT, this 29th day of April 2010 Counsel for the Designated Authority: Erin Delaney The Respondent, Ms. Munroe appeared in person. No one appeared for the Applicant, Mr. MacGregor. S-1-FM 2010000013 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF THE INTERJURISDICTIONAL SUPPORT ORDERS ACT, S.N.W.T. 2002, c. 19 BETWEEN: DAVID CRAIG MacGREGOR Applicant - and -

CARYN MUNROE Respondent MEMORANDUM OF JUDGMENT OF THE HONOURABLE JUSTICE V.A. SCHULER