L.T. PETITIONER - v. –, 2023 SKKB 74

REDACTED VERSION KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 74 Date: 2023 04 10 Docket: FLD-RG-00040-2015 Judicial Centre: Regina, Family Law Division BETWEEN: L.T. PETITIONER - and – R.U. RESPONDENT Counsel: Joanne Moser, K.C. for the petitioner Michelle M. Pearson for the respondent FIAT ROBERTSON J. April 10, 2023 INTRODUCTION [ 1 ] This fiat addresses a support variation application by the respondent, R.U. [R.U.], seeking to end payment of support effective June 1, 2019 and to fix arrears at $7,300. For the reasons which follow, the application is dismissed.

BACKGROUND [ 2 ] On May 7, 2015, Elson J. made an interim order that R.U. pay s. 3 child support of $581 per month and s. 7 child support of $368 per month for a total monthly payment of $949 to the respondent, L.T. [L.T.], for their child, S.L.U., born ---------------, ----. This support order was based upon R.U.’s income of $70,000 and L.T.’s income of $14,000. [ 3 ] On October 21, 2016, Schwann J. (as she then was) gave judgment following trial ( 2016 SKQB 347 ) [ Schwann Judgment ]. The Schwann Judgment ordered R.U. to pay child support of $743 per month based on his annual income of $88,500.

R.U. was also ordered to pay 86% for s. 3.1 and s. 7 extraordinary expenses, based upon his annual income of $88,500 and L.T.’s income of $13,600. Child support arrears were set at $4,951.61 as of September 19, 2016. The Schwann Judgment also provided for annual recalculation after exchange of income tax returns on or before June 1 of each year. This was not done.

[ 4 ] Child support remained and remains in arrears. Child support arrears as of January 23, 2023 were $50,656.08. [ 5 ] R.U. filed in support of his application an affidavit sworn November 29, 2022 [R.U. Affidavit] and an affidavit of S.W.E. sworn December 19, 2020. L.T. filed in response an affidavit sworn March 20, 2023 [L.T. Affidavit]. The affidavits state the following reported incomes. Year R.U.

L.T. 2015 $66,060.64 2016 $89,982.12 $18,896 2017 $96,392.00 $17,760 2018 $93,932.63 $19,850 2019 $54,625.84 $20,399 2020 $0.00 $20,518 2021 $11,797.06 $20,014 2022 *$11,000 $21,414.12 *from Form I Financial Information RELEVANT LAW The Family Maintenance Act, 1997 [ 6 ] Section 3(1) of The Family Maintenance Act, 1997 , SS 1997, c F-6.2 [ FMA ], requires both parents to provide for their child: Obligation to provide child maintenance 3(1) Every parent has an obligation to provide maintenance for his or her child to the extent that the parent is capable of doing so. [ 7 ]

Section 10 of the FMA requires “a material change in circumstance” for variation of ordered support. If a payor establishes a change in circumstances when arrears were accumulating, which rendered the payor unable to pay child support for a substantial period, it is open to the court to vary the support or rescind arrears. The onus is on the applicant to provide evidence establishing the material change in circumstances.

Case law [ 8 ] In D.B.S. v S.R.G., L.J.W. v T.A.R.; Henry v Henry; Hiemstra v Hiemstra , 2006 SCC 37 at paras 37 – 38 , [2006] 2 SCR 231 , the Supreme Court of Canada confirmed the long-established principles that support is the right of the child and that parents have a financial obligation to their children arising at birth and continuing after separation.

The court also explained at para. 68 that under the Federal Child Support Guidelines , SOR/97-175 the payor parent is always under a free-standing legal obligation — independent of any court order — to pay child support commensurate with income. [ 9 ] In Colucci v Colucci , 2021 SCC 24 at para 113 , 458 DLR (4 th ) 183 [ Colucci ] , the Supreme Court summarized the principles that apply to cases in which the payor applies to decrease child support: [113] To summarize, where the payor applies under s. 17 of the Divorce Act [RSC 1985, 3 (2d Supp)] to retroactively decrease child support, the following analysis applies:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors ( adapted to the decrease context) guide this exercise of discretion. Those factors are: (

i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines . [ 10 ] Nkwazi v Nkwazi , 2013 SKQB 264 at paras 27-29 , 425 Sask R 169 [ Nkwazi ]; affirmed 2014 SKCA 61 , 438 Sask R 185 also provides guidance on whether to cancel arrears of child support:

27) The starting point in considering an application to expunge arrears is that, in the absence of some special circumstance, arrearsshould only be expunged where the payee has established on a balance of probabilities that he or she cannot pay and will not in the futurebe able to pay, the arrears. 28) After that determination is made, the Court usually considers a variety of factors, such as those found in the decision of M-E.Wright J., Wurmlinger v Cyca, 2003 SKQB 152, 231 Sask R 282 (Sask QB), at para. 2: [2] . . . 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 arrears would cause hardship to the payor; and 7. The payor's ability to pay the arrears at the time they were incurred. 29) In addition, many courts consider the criteria set out in S.(D.B.) v G.(S.R.), 2006 SCC 37, [2006] 2 SCR 231 ("D.B.S.") with somemodifications.

In Jean-Francois v Barnes, 2012 ONCJ 124, [2012] OJ No 1080 (Ont CJ), the Court phrased the four primary factors forthe Court to consider in applications to expunge arrears (at para. 58) as: [58] . . .

a) The reason for the delay in bringing the motion to change.

b) The conduct of the parties.

c) The circumstances of the child, both past and present.

d) Any undue hardship to either party. ANALYSIS Material change in circumstances [11] R.U. does not claim any change in circumstance in relation to the child or L.T. He does claim a change incircumstance in his financial situation, evidenced by the significant drop in his reported income after 2018. R.U. dates this change towhen he lost his job with Bunge Inc. as of June 1, 2019. R.U. attributes his loss of employment to the seizure of his passport by theMaintenance Enforcement Office for failure to pay arrears of child support (R.U. Affidavit at paras. 9-11).

If so, then the loss ofemployment was within his control. [12] In Colucci at para 61, the Supreme Court stated that the decrease of income “must be real and not one ofchoice” [emphasis added]: [61] Most commonly, the retroactive variation claim will be based on a material change in income. To meet the threshold, a decreasein income must be significant and have some degree of continuity, and it must be real and not one of choice (Willick [(SCC), [1994] 3 SCR 670], at pp. 687-88; Earle v. Earle, (B.C.S.C.), at para. 27; MacCarthy v. MacCarthy, 2015BCCA 496, 380 B.C.A.C. 102, at para. 58, citing Earle; L.M.P. v.

L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 33; Gray [2016ONCA 152, 129 OR (3d) 201], at para. 39; Brown v. Brown, 2010 NBCA 5, 353 N.B.R. (2d) 323 (“Brown”), at para. 2; Templeton [2018ONSC 815], at para. 35). Trivial or short-lived changes are insufficient to justify a variation (Templeton, at para. 35). In this way, thethreshold inquiry preserves some sense of certainty and predictability for the parties and the child, while allowing some flexibility inresponse to changes in the payor’s income. [13] R.U. is responsible for the consequences of his decision to not pay child support.

Travel to the United States wasnecessary for his work. By choosing not to pay child support, enforcement action was taken, including to seize his passport. As a resultR.U. was unable to travel outside Canada. [14] There is nothing to suggest that R.U. is not capable of work. On the contrary, he says he continued to seek andfound work in the field of plumbing and heating and in general construction. In 2021 he re-incorporated RU Mechanical in order to bidon commercial jobs. According to L.T., R.U. is a Red Seal plumber and gas fitter (L.T. Affidavit at para. 19).

This is confirmed in theSchwann Judgment at para 101. [15] R.U. provides little evidence of his search for work. L.T. provided evidence of employment opportunities in hisarea (L.T. Affidavit, Exhibit “R”). L.T. disputes that R.U.’s reported income represents his actual income, saying that he “works underthe table”. There is evidence supporting L.T.’s claim. [16] In Colucci at paras 62 and 107, the Supreme Court emphasized the onus on the payor to disclose sufficientreliable evidence of the change of material circumstances and hardship and “a complete picture of their financial situation”:

[62] The payor must have disclosed sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice. A decision to retroactively decrease support can only bemade based on “reliable, accurate and complete information” (Earle at para. 28).

The payor cannot ask the court to make findings onincome that are contrary to the recipient’s interests “while at the same time shielding information that is relevant to the determination oftheir income behind a protective wall” (Templeton, at para. 67; see also Tougher v. Tougher, 1999 ABQB 552, at paras. 14-15; Terry [2004 NSCA 118, 227 N.S.R. (2d) 99], at para. 9). . . . [107] The final factor is hardship to the payor if the period of retroactivity is not lengthened beyond the presumptive date.

The payormust adduce evidence to “establish real facts” supporting a finding of hardship (Goulding [2014 ABCA 138, 42 R.F.L. (7th) 259], atpara. 57). Bald assertions are not enough (ibid). The payor must also provide a complete picture of their financial situation, includingincome, assets and debts. For example, in this case, an assessment of hardship requires consideration of not only Mr. Colucci’s presentincome and future earning capacity, but also the funds he received from his mother’s estate and any other assets. [17] R.U.’s materials filed in support of his application fall short in this respect.

His Form I Financial Informationunder Assets lists his lakefront cabin and a 1983 Ford Truck as his only assets, but states no values. The only debt listed is $2,600 for“Loan for snowmobile”. (There is no snowmobile listed under Assets). I am not satisfied that the materials filed provide “a completefinancial picture”. [18] R.U. resides with his partner in a lakefront cabin on Rossman Lake that he owns in the Rural Municipality of -------, Manitoba.

There is no mortgage registered against the property. [19] This property is described in the Schwann Judgment at para 63, summarizing R.U.’s evidence at trial: [56] R.U. continues to live in the lakefront cabin. It is located in a relatively small community of eight neighbours. There are nochildren in the immediate vicinity and it is a minimum 15 minute bus ride to the -------- school and 30 minutes to ----------’’. [57] The cabin is spacious and equipped with a top end kitchen. Construction is almost complete. S.L.U. has her own bedroom andthere are bunkbeds for his other two children.

The spiral staircase is not yet finished but a child barrier has been erected at the top floorto prevent S.L.U. from accessing it. R.U. testified that a public health nurse had attended his cabin unannounced and found no issues orproblems. . . . [63] R.U. believes he can provide S.L.U. with a far better lifestyle than L.T. He has a high end cabin and enjoys a wonderful lakefrontlifestyle living within close proximity to Riding Mountain National Park.

He has a secure job, a good life, perfect health and no drinkingproblem. [20] L.T.’s affidavit includes photographs showing R.U. and his partner on a ski trip in the mountains and in Mexicoin 2023 (L.T. Affidavit at Exhibits “B”, “T” and “U”). It is difficult to reconcile this lifestyle with R.U.’s claim of poverty. [21] From the affidavit evidence filed, I am not satisfied that R.U.’s financial situation constitutes a change incircumstance that justifies varying child support or reducing arrears.

On the contrary, the evidence suggests that R.U. is eitherintentionally under-employed or is understating his actual income. The unreliability of his reported income does not provide a soundbasis for any change from the amount set in the Schwann Judgment. [22] I therefore dismiss the application because the applicant-payor has failed to satisfy the threshold requirement ofshowing a material change in circumstances.

Other relevant criteria [23] While not necessary for my decision, I will briefly review the other criteria identified in Nkwazi that would benormally considered if the threshold material change of circumstances was satisfied. Nature of the maintenance order sought to be varied [24] The order sought to be varied is a final order following trial. Ongoing financial capacity of the payor [25] As discussed above, the payor is a journeyman plumber and gas fitter apparently in good health, so both able towork and with the ability to earn a good income. While not argued, I considered the impact of the Covid-19 pandemic.

I take judicialnotice that many workers experienced a temporary loss of income during the Covid-19 pandemic. But the economy has rebounded. Ongoing needs of the child [26] The child is nine years old and entirely dependent upon her parents for financial support. This burden has fallenentirely to the mother. L.T. supports herself and the child on a limited income. She has been a recipient of the Saskatchewan Supplement

Program since 2015. In effect, the public has stepped in to fulfill the continuing default of the payor. Any unexplained delay in enforcing arrears [ 27 ] There is no unexplained delay in enforcing arrears. The payor has been continuously in arrears since before the 2016 Schwann Judgment . The mother’s affidavit at tab “A” includes a Saskatchewan Maintenance Enforcement Statement of Account which states initial arrears of $1,647 as of June 5, 2015. Those arrears remained and grew, despite enforcement action.

Any explanation for delay in seeking relief from the arrears [ 28 ] The application seeks a retroactive adjustment back to June 2019. The notice of hearing was filed January 19, 2023 or three and one-half years later. The application does not provide an explanation for this delay in making application for variation. Whether enforcement would cause hardship to the payor [ 29 ] Enforcement invariably causes some hardship to the payor. That is the point of enforcement action. But as discussed above, the payor has both assets and the ability to earn income to address the arrears.

Conduct of the parties [ 30 ] The payor’s conduct is blameworthy. The payor earned more income in 2016 – 2018 than that attributed to him in the Schwann Judgment , so underpaid for those years. Yet the arrears continued. This indicates that the failure to pay arrears was and is a deliberate choice. As the mother’s lawyer said, it is not a question of “ability to pay”, but rather of “desire to pay”. Conclusion [ 31 ] From my review of these criteria, even if the threshold of material change was satisfied, I would exercise my discretion to dismiss the application.

DECISION [ 32 ] The application is dismissed because R.U. failed to satisfy the threshold requirement of showing a material change in circumstances that would warrant variation of child support or reduction of child support arrears. Costs [ 33 ] I exercise my discretion to award costs fixed at $1,000 payable forthwith by R.U. to L.T. J. D.N. ROBERTSON