Docket: CACV2402 Roy Lamontagne (Petitioner) Appellant - v. -, 2013 SKCA 100

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 100 Date: 2013-09-12 Between: Docket: CACV2402 Roy Lamontagne (Petitioner) Appellant - and - Denise Culham (Respondent) Respondent Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: Roy Lamontagne, the appellant on his own behalf Anna C. Singer for the respondent Appeal: From: 2013 SKQB 96 Heard: September 12, 2013 Disposition: Dismissed (orally) Written Reasons: September 18, 2013

By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Herauf J.A. [ 1 ] The appellant seeks to overturn a decision dismissing his application to rescind arrears of child support and for failing to order child support based upon his present income consisting of Employment Insurance benefits.

The appellant also seeks to overturn the decision allowing the respondent’s application for retroactive s. 3 and s. 7 expenses and fixing current child support obligations by imputing income to him. [ 2 ] In an oral decision, the Court dismissed the appeal with costs. The Court undertook to reduce our reasons for doing so to writing. These are those reasons. [ 3 ] The facts are carefully set out in the decision of the chambers judge and can be found at 2013 SKQB 96 . [ 4 ] The appellant seeks leave to adduce fresh evidence before this Court consisting of photocopies of his medical charts.

The appellant’s medical condition was a live issue before the chambers judge. All we need say is that the information provided in the fresh evidence application could not reasonably be expected to have affected the result as it does not shed any new light on this issue. Accordingly, the application to admit fresh evidence was dismissed. [ 5 ] The appellant’s variation application was based upon hardship.

The chambers judge found that the appellant failed to recognize that he voluntarily took on a second family, knowing full well his ongoing obligation to pay child support for his children from his relationship with the respondent. This voluntary act on the appellant’s part provided the appellant with no excuse or legal justification to abrogate his financial support for his other children. The chambers judge also found as a fact that the appellant was intentionally unemployed because he elected to be a stay at home dad with no earned income.

As a result, the chambers judge utilized s. 19 of the Guidelines to impute income to the appellant for child support purposes. The chambers judge imputed an annual income to the appellant of $69,373 being his earned income in his last year of employment. [ 6 ] We found no error in the decision of the chambers judge. He could come to no other conclusion based upon his factual findings and his analysis of both s. 10 and s. 19 of the Guidelines .

We did not give effect to the appellant’s submissions related to ss. 10 and 19 of the Guidelines . [ 7 ] With respect to the ground of appeal relating to retroactive child support, the chambers judge found as a fact that the appellant wilfully disobeyed his disclosure obligations set out in the court order. As a result, there was an accumulation of arrears based upon his increased annual income. The chambers judge refused to allow the appellant to profit from his own disobedience. Once again, we did not give any effect to this ground of appeal.

The factual findings of the chambers judge are entitled to deference. [ 8 ] The appellant’s ground of appeal relating to the failure of the chambers judge to take his bankruptcy into consideration is also without merit. It is somewhat of a red herring because non-discretionary income for the calculation of surplus income takes into account financial obligations for all of the appellant’s dependents.

In addition, even though child support is a provable debt in bankruptcy it is not extinguished by a bankruptcy discharge. [ 9 ] While it is acknowledged that the chambers judge made two to three factual errors in the judgment, we are certainly not satisfied that they were material misapprehensions and therefore did not affect the ultimate decision. In sum, there was ample evidence before the chambers judge to support his decision and the chambers judge made no palpable or overriding errors. He identified and applied the law correctly.

There was no error of principle, no significant misapprehension of the evidence, nor was the award clearly wrong. For these reasons, we dismiss the appeal with costs to the respondent fixed at $1,500.