Docket: CACV2263 Valerie Lynn Kindlein (Demas) Appellant - v. -, 2012 SKCA 107

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 107 Date: 2012-11-15 Between: Docket: CACV2263 Valerie Lynn Kindlein (Demas) Appellant - and - George Samuel McKnight Respondent Coram: Jackson, Richards and Caldwell JJ.A. Counsel: Mark H. Demas for the appellant George McKnight for the respondent Appeal: From: FLD 147 of 1997, J.C. of Prince Albert

Heard: Pursuant to Rule 40 of The Court of Appeal Rules Disposition: Dismissed Written Reasons: November 15, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell Richards J.A. I. Introduction [ 1 ] This is an appeal from a Queen’s Bench decision expunging child support arrears. As per the order of Ottenbreit J.A., the Court has reached its decision on the basis of written submissions only. [ 2 ] In 1997, George McKnight, the respondent, was declared to be the father of a child born to the appellant, Valerie Kindlein.

A child support order was made. There then followed a multi-year period during which the Maintenance Enforcement Office was sometimes in the picture and sometimes not. Arrears grew to an amount somewhat in excess of $4,000.00. Ultimately, a Queen’s Bench judge ordered that the arrears which had accumulated to December 31, 2006 should be expunged. Ms. Kindlein appeals. [ 3 ] I conclude, for the reasons set out below, that Ms. Kindlein’s appeal must be dismissed. II. BAckground [ 4 ] Mr. McKnight and Ms. Kindlein met in the latter part of 1995.

They had what was, at most, a short term relationship of a few months duration. Ms. Kindlein became pregnant and gave birth to a daughter in October of 1996. [ 5 ] In June of 1997, Rothery J. authored a judgment declaring Mr. McKnight to be the father of the child, granting custody to Ms. Kindlein and ordering Mr. McKnight to pay maintenance in the amount of $125.00 per month for so long as the child remained a “child” within the meaning of The Children’s Law Act, 1997 , S.S. 1997, c. C-8.2.

Rothery J. specified that the maintenance obligations included in her judgment were to be enforced by the Director of Maintenance Enforcement. [ 6 ] Mr. McKnight soon approached Ms. Kindlein and, according to Ms. Kindlein, the two agreed that he could make maintenance payments directly to her. Ms. Kindlein advised Maintenance Enforcement of the new arrangement. [ 7 ] Mr. McKnight did not fully comply with the agreement and, early in 1998, Ms. Kindlein re-registered Rothery J.’s judgment with Maintenance Enforcement. [ 8 ] A few months later, Mr. McKnight again approached Ms.

Kindlein and made alternative payment arrangements by providing her with post-dated cheques. As a consequence, on June 23, 1998, Ms. Kindlein once again wrote to Maintenance Enforcement to indicate that its assistance was not required. [ 9 ] Ms. Kindlein says that Mr. McKnight closed his bank account in December of 1998 and did not provide any new cheques. She says he made threats to the effect that her daughter would be taken away and, as a result, she did not re-register Rothery J.’s judgment until 2006. [ 10 ] For his part, Mr. McKnight denies having made any threats.

He deposes that he did not make all of the maintenance payments required by Rothery J.’s judgment because he was working only to a limited degree and because Ms. Kindlein advised him that he was not required to make the payments. He says Ms. Kindlein had moved to another province and did not contact him or take steps to enforce Rothery J.’s judgment until 2006 when she re-registered it. [ 11 ] Mr. McKnight is now married. He lives with his wife and three children. [ 12 ] In December of 2011, Mr.

McKnight brought an application for variation on the basis that his income had changed significantly since Rothery J.’s order had been made in 1997. He also asked for a retroactive adjustment of the amount of his monthly payments and requested that his arrears be set aside or revised. [ 13 ] In response, Ms. Kindein filed a cross-application. She asked for a declaration that Mr. McKnight had been intentionally unemployed or under-employed and for an order varying Mr. McKnight’s support obligations to reflect an imputed income or, in the alternative, an amendment to the support order reflecting Mr.

McKnight’s actual income for the years 2008 to 2010 and an imputed income going forward. [ 14 ] The applications came before Currie J. in March of 2012. He varied Rothery J.’s order to the extent of setting new income levels

for Mr. McKnight for 2008, 2009 and 2010. He confirmed Mr. McKnight’s arrears as being $4,368.00 and left the parties to moveforward, if necessary, to trial on the question of the level of Mr. McKnight’s support obligations beginning as of January 1, 2011. Mr.McKnight’s application to set aside the support arrears was adjourned to allow additional material to be filed. [15] Mr. McKnight’s application with respect to his arrears came before a different Chambers judge on April 12, 2012. The judge wrotea fiat expunging Mr. McKnight’s arrears as they had accumulated up to December 31, 2006.

The judge explained his decision asfollows: There is significant conflicting evidence whether the Petitioner agreed not to seek maintenance or waived payment of maintenance from1997 to 2006. The easy solution would be to set the issue of expungement of these arrears to trial, but suspend enforcement until a finaldecision is made. The legal costs and time commitment of the parties makes that an unworkable solution. On all of the evidencepresented and bearing in mind Haisman v. Haisman [(1994), 1994 ABCA 249 , 22 Alta. L.R. (3d) 56], I am still prepared toexpunge all arrears arising until December 31, 2006. III.

Analysis [16] Ms. Kindlein submits that the Chambers judge erred in two ways when he decided to expunge the arrears accruing to the end of2006. First, on the basis of the affidavit evidence, she says it was not clear that she had in fact agreed not to seek maintenance or hadwaived payment of maintenance. Second, and in any event, Ms. Kindlein contends she would have had no right or authority to waive thepayment of maintenance because Mr. McKnight’s obligations were, in effect, owed to their child and not to her. [17] In my respectful view, Ms. Kindlein has misconstrued the reasoning of the Chambers judge.

I do not understand him to have basedhis decision on a conclusion that Ms. Kindlein had agreed not to accept support payments or had waived such payments. Rather, Iunderstand him to have said the factual record was conflicting but that, notwithstanding the conflict, he was prepared to expunge thearrears which had accumulated to the end of 2006. In other words, he did not find that Ms. Kindlein had agreed to waive the supportobligations. [18] Rather, the Chambers judge referred expressly to Haisman v. Haisman (1994), 1994 ABCA 249 , 116 D.L.R. (4th) 671(Alta. C.A.).

It seems clear enough that, in doing so, he was referring to the principle articulated in that case to the affect that, in theabsence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce oreliminate arrears unless the judge is satisfied on a balance of probabilities that the former spouse cannot then pay, and will not in thefuture be able to pay, the arrears. In my view, this was the basis of the decision of the Chambers judge. [19] Ms.

Kindlein goes on, however, to argue in the alternative that there was simply no factual basis for expunging the arrears in thiscase. I am also unable to accept her argument on this point. [20] Although it might not have been overly compelling, there was evidence on which the Chambers judge could have reached hisconclusion about Mr. McKnight’s ability to pay the 1997-2006 portion of the arrears. Historically, Mr. McKnight has earned a very lowincome. In 2010, he was placed on what appears to be a discipline-type leave of absence from the hospital where he had worked.

Hedeposes that since then he has made significant efforts to find new or alternative employment but that his efforts have been unsuccessful. Mr. McKnight is married and has three children. His wife works casually as a licensed practical nurse. She is presently the solebreadwinner for him and their three children. In the wake of the current proceedings, Mr.

McKnight also has an obligation to pay childsupport going forward and to retire arrears accumulated from 1996-2011 at the rate of $100 per month. [21] There could obviously be stronger factual grounds for finding that a child support debtor is unable to pay arrears. However, theChambers judge made no error in principle and I am not prepared to find that his assessment of the evidence warrants the intervention ofthis Court. IV. Conclusion [22] In my view, for the reasons set out above, this appeal must be dismissed. Given that the amount in issue here is very small and thatMr.

McKnight was unrepresented by counsel, there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of November, A.D. 2012. “Richards J.A.”_____________________ Richards J.A. I concur. “Jackson J.A.” Jackson J.A.

I concur. “Caldwell J.A.” Caldwell J.A.