Docket: CACV2445 Geoffrey Nkwazi Appellant (Respondent) – v. –, 2014 SKCA 61

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 61 Date: 2014-05-23 Between: Docket: CACV2445 Geoffrey Nkwazi Appellant (Respondent) – and – Sithembile Beryl Nkwazi Respondent (Petitioner) Coram: Richards C.J.S., Ottenbreit and Herauf JJ.A. Counsel: Beau Atkins for the appellant Sithembile Nkwazi appearing on her own behalf Appeal: From: 2013 SKQB 264 Heard: March 26, 2014

Disposition: Appeal dismissed Written Reasons: May 23, 2014 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Herauf OTTENBREIT J.A. I. Introduction [ 1 ] This is an appeal by Geoffrey Nkwazi (the “father”) from a Queen’s Bench Chambers decision, cited as 2013 SKQB 264 , fixing child support arrears owed by him at $183,746.00 and ordering on-going child support in the amount of $927.00 per month for his son, Thabani Nkwazi. Sithembile Beryl Nkwazi (the “mother”) made an application to tender fresh evidence.

Much of it consisted of documents related to the history of litigation between the parties. Apart from a letter being exhibit “B” to the mother’s affidavit, the father made no objection to the evidence being admitted for the purposes of the appeal and accordingly there was an order that the evidence be admitted save for that letter. For the reasons hereinafter set forth, the appeal of the father is dismissed. II. Facts and Background [ 2 ] The father married the mother in 1983.

The two of them had three children: Subi Mandela Nkwazi, born October 12, 1978, Bongani Nkwazi and Thabani Nkwazi, twins, born September 24, 1984. The mother and the father separated in 1988 and the children thereafter resided with the mother who raised them. Thabani still resides with the mother. The mother continues to care for Thabani who has a serious psychotic illness and may be dependent on her for the rest of her life.

The mother receives $800.00 per month from Social Services and Thabani receives $200.00 per month because of his illness. [ 3 ] The father is a medical doctor with a specialty in rheumatology and internal medicine and has worked at various posts in Canada in the United States. Most recently he lives and works in the United States. [ 4 ] Since the parties separated in 1988 they have been in almost constant litigation over the payment of child support.

Various support orders were obtained by the mother over the years but it is a fair statement that the father stopped paying the ordered support for periods of time or paid less than ordered. The mother has had a difficult time collecting support from the father. The father at various times over the years made applications to expunge his arrears of child maintenance and in some cases was successful in doing so. [ 5 ] The father sought to retroactively vary the most recent support order dated March 7, 2001, where his income was imputed to be $109,912.00.

That order required him to pay $1,683.00 in s. 3 basic child support pursuant to the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”), and a further $249.00 per month in s. 7 expenses.

The father also sought to expunge all the arrears pursuant to the 2001 order and a previous support order dated July 20, 1998. [ 6 ] For the purposes of the Chambers application, the parties agreed that Mandela ceased to be a child of the marriage on June 30, 2002, when he completed his University studies and that Bongani ceased to be a child of the marriage on June 30, 2008, when she discontinued her University studies.

There was no agreement respecting when Thabani ceased to be a child of the marriage. [ 7 ] The father filed affidavit evidence which purported to show that between 1998 and 2011 his reported income was lower than that imputed to him pursuant to the 1998 and 2001 orders. The father’s material on the motion also set out in substantial detail the maintenance that he believed he ought to have been paying based on his actual income based on the 2006 Guideline table amounts. III.

Decision of the Chambers Judge [ 8 ] Before the Chambers judge, the father argued that he had actually overpaid child support because his obligation should not have been based on his last imputed income of $109,912.00 but rather his actual income over the years. Using the Guideline tables and his actual income, he calculated that he had overpaid child support by $40,000.00.

The father also argued that as an alternative, all arrears under the 1998 and 2001 orders should be expunged. [ 9 ] There was some dispute as to the exact amount the father was in arrears so the Chambers judge proceeded to determine what the arrears were.

He first addressed whether Thabani remained a child of the marriage and concluded that Thabani was a child of the marriage throughout and continued to be at the date of the application. [ 10 ] He determined that based on the 2001 order and an income of $109,912.00, and taking into account the duration Mandela, Bongani and Thabani were children of the marriage, the total amount the father should have paid under the 2001 order was $186,300.00. The Chambers judge then set off the child support money collected from the father between July 1, 2001, and April 12, 2013, being $9,562.00.

He added into this arrears under the 1998 court order of $7,008.00, which the parties had agreed was correct, and arrived at a total arrears of $183,746.00. [ 11 ] After reviewing the evidence of actual income presented by the father, he determined that the father had the ability to pay the maintenance ordered.

The Chambers judge further determined that the father had the ability to pay the maintenance order at the time the obligation was incurred since the father, rather than seek employment that would maximize his earnings, chose to be underemployed and earn much less than he otherwise would have and had provided no reason why he chose the less financially rewarding route. He

therefore saw no reason to vary the 2001 order that the father pay child support based on an imputed income of $109,912.00 retroactivelyor otherwise. [12] The Chambers judge then considered the factors which would justify expunging the support arrears. He determined that from thefather’s pattern of non-payment, he had no hesitation in finding his conduct to be blameworthy.

The Chambers judge was not convincedthe father would suffer undue hardship to not have the arrears expunged because he was in ill health and found the claims of ill health tobe unproven. [13] The Chambers judge ordered on-going maintenance in the amount of $927.00 per month for Thabani. IV. Standard of Review [14] There is no dispute as to the standard of review. It is that set forth in Hickey v.

Hickey, (SCC), [1999] 2 S.C.R.518: 10 … Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts whensuch decisions are reviewed. 11 Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an errorin principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. … V. Issues [15] The father abandoned several grounds of appeal. The following issues remain to be considered by the Court: 1. Did the Chambers judge err in failing to consider s. 3(2)(

b) of the Guidelines in determining the arrears for the children over the ageof 18 and attending a post-secondary educational institution? 2. Did the Chambers judge err by determining child support for Thabani under s. 3(2)(

a) of the Guidelines and by failing to considerthe social assistance payments received by the mother and Thabani? 3. Did the Chambers judge err by relying on the mother’s offensive affidavit material and in making a final determination rather thansetting the matter for pre-trial where the Court would have the benefit of viva voce evidence? VI. Analysis 1. Did the Chambers judge err in failing to consider s. 3(2)(

b) of the Guidelines in determining the arrears for the children overthe age of 18 and attending a post-secondary educational institution? [16] The father argues that with respect to Mandela and Bongani the Chambers judge should have employed the three-step procedure outlined in Rebenchuk v. Rebenchuk, 2007 MBCA 22, 279 D.L.R. (4th) 448, to determine first whether the child was a child of themarriage, second whether the table amount in the Guidelines was inappropriate and, if not, then moving on to the analysis unders. 3(2)(

b) to consider the condition, means, needs and other circumstances of the child and the financial ability of each spouse tocontribute to the support of the child. While such an approach is usually mandated, it was unnecessary in this case. [17] The father’s argument that the Chambers judge should have analysed whether Mandela and Bongani remained children of themarriage for six years after they turned 18 is surprising. The father admitted that Mandela and Bongani were children of the marriageuntil 2002 and 2008, respectively, when they each attained the age of 24 years.

The Chambers judge stated: 20 … The respondent asserts, and the petitioner does not dispute, that Mandela ceased to be a child of the marriage in 2002 when hecompleted his university studies. They also agree that Bongani [sic] ceased being a child of the marriage in 2008 when she discontinuedher university studies. … Therefore, the only issue with respect to Mandela and Bongani which remained for the Chambers judge to determine was the quantum ofmaintenance. [18] I can find no error in the Chambers judge approaching the issue of past maintenance for Mandela and Bongani on the basis ofs. 3(2)(

a) of the Guidelines. It was, in my view, not necessary for the Chambers judge to determine if maintenance under s. 3(2)(

a) wasinappropriate. This is because the father in his affidavit material was explicit that the appropriate amount of maintenance he should pay,if his arguments were accepted by the Chambers judge, was that set forth in para. 24 of his affidavit. This was an amount calculated byhim on the basis of s. 3(2)(

a) of the 2006 Guideline table amounts and his income as set forth in his affidavit material. [19] A thorough review of the decision of the Chambers judge and the affidavit evidence of the father filed in support of his motionmakes it clear that the father presented and argued the application, as did the mother, on the basis that if maintenance were to be varied atall it would be pursuant to s. 3(2)(

a) of the Guidelines and the 2006 Guideline table amounts once issues like the duration of each childremaining a child of the marriage and the actual income of the father were determined. The decision of the Chambers judge with respectto this issue is entirely appropriate. Given the standard of review I cannot say he erred. This Court will accordingly not, as requested bythe father, send the case back to the Court of Queen’s Bench to have it reheard on a different basis than argued because the father wasunsuccessful the first time around in the approach he took. This ground of appeal must fail. 2. Did the Chambers judge err by determining child support for Thabani under s. 3(2)(

a) of the Guidelines and by failing toconsider the social assistance payments received by the mother and Thabani? [20] The father argues the Chambers judge made three errors respecting Thabani: (

i) determining that Thabani was a child of the

marriage, (ii) approaching and determining the issue of quantum pursuant to s. 3(2)(a), and (iii) disregarding the social assistance payments received by Thabani and his mother. [ 21 ] The starting point for the analysis is the Chambers judge’s finding that Thabani was a child of the marriage. Section 2(1) of the Divorce Act reads as follows respecting that definition: “child of the marriage” means a child of two spouses or former spouses who, at the material time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; Adult children who are incapable of economic self-sufficiency, because of illness or disability, fall within the definition of “child of the marriage.” [ 22 ] The Chambers judge came to the conclusion that Thabani was still a child of the marriage after 2002, when he turned 18, and at the date of the hearing because he could not live independently and could not withdraw himself from his mother’s care.

He stated: 21 … Thabani suffers from a serious psychotic illness and has lived with the petitioner continuously. The petitioner exhibited a recent medical report that states Thabani “continues to receive treatment for Schizophrenia, the effects of which have left him incapable of living independently at the present time.” … [ 23 ] There is no question that the Chambers judge applied the correct legal test to determine if Thabani was a child of the marriage: i.e. , is Thabani unable to withdraw from his mother’s charge by reason of illness, disability or other cause.

There is also no question that there were ample facts before the Chambers judge about Thabani’s medical and psychological condition and living situation, which the father did not dispute, which would allow the Chambers judge to arrive at the conclusion that Thabani had met the criteria to be found a child of the marriage.

Given the standard of review, I cannot say the Chambers judge erred in any way respecting this issue. [ 24 ] The last two errors the Chambers judge allegedly made can be conveniently dealt with together. [ 25 ] Having found Thabani a child of the marriage, the Chambers judge then determined quantum of maintenance pursuant to s. 3(2) (

a) of the Guidelines . Section 3(2) (

a) and (

b) read as follows: Child the age of majority or over 3(2) Unless otherwise provided under these Guidelines , where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 26 ] The default approach to assessment of maintenance for a child over the age of 18 is to use the table amounts as mandated by s. 3(2) (a). Section 3(2)(

a) creates the same presumptive rule as s. 3(1) does for children under the age of majority, whereby, unless otherwise provided by the Guidelines , the amount of a child support order is the amount set out in the tables. The onus to prove that the table amounts are inappropriate and that s. 3(2) (

b) applies lies on the party asserting that proposition ( Rebenchuk v. Rebenchuk , at para. 60 ; Canada v. Canada-Somers , 2008 MBCA 59 , 228 Man. R. (2d) 106, at para. 19 ). [ 27 ] On the hearing of this appeal, counsel for the father admitted that the father’s counsel at the Chambers hearing made no request that the Chambers judge consider s. 3(2) (

b) of the Guidelines in his analysis and determination of the matters in issue. The father’s notice of motion mentions neither s. 3(2) (

a) nor s. 3(2) (

b) but specifically requests an order that Thabani be found to have ceased to be a child of the marriage as of 2002 when he turned 18. It therefore appears that the main thrust of the father’s argument before the Chambers judge was that Thabani was no longer a dependent as soon as he turned 18. The issue of social service payments was only an incidental matter which was not explored by the father. More to the point, he did not specifically argue that the receipt of such payments mandated an approach under s. 3(2)(

b) of the Guidelines . [ 28 ] Understandably, the Chambers judge made no reference to s. 3(2) (

b) but proceeded to assess maintenance under s. 3(2) (

a) as he did for Mandela and Bongani. It may be inferred that he determined such an approach was appropriate in the context of the issues raised by the arguments of counsel. His approach can be directly attributed to the father’s arguments as outlined earlier that the table amounts were germane to the resolution of quantum. It may be fairly stated the father took the position that resort to s. 3(2) (

a) was appropriate despite the social service payments. [ 29 ] In the circumstances of this case, where the issue of the social service payments was not fully explored with robust evidence of Thabani’s needs and means and argument with respect to whether s. 3(2) (

a) of the Guidelines was inappropriate, the Chambers judge was correct to fix the maintenance based on the table amounts, notwithstanding the social service payments. I see no error in this regard. 3. Did the Chambers judge err by relying on the mother’s offensive affidavit material and in making a final determination rather than setting the matter for pre-trial where the Court would have the benefit of viva voce evidence? [ 30 ] This ground of appeal must fail.

The father acknowledges that before the Chambers judge an objection to affidavit evidence was not filed with respect to the mother’s affidavit nor was there any verbal objection to her material but argues that the Chambers judge, in any event, should not have allowed all the evidence. The aspects of the mother’s affidavit, which were objectionable, were not outlined

by the father to this Court. [ 31 ] None of these arguments were made before the Chambers judge. It was clear that the parties proceeded as if the application would be determinative of the issues raised on the affidavit material filed. There was not a hint of a request for a pre-trial conference or that the Chambers judge could not make a determination on the material before him without viva voce evidence. This ground of appeal fails as well on the basis that it raises an entirely new issue on appeal and will, in the circumstances of this case, not be entertained by the Court (see: Luzny v.

Craik (Town) , 2013 SKCA 94 , 423 Sask. R. 116). VII. Conclusion [ 32 ] The appeal of the father is dismissed with costs of $500.00 to the mother. DATED at the City of Regina, in the Province of Saskatchewan, this 23 rd day of May, A.D. 2014. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Herauf J.A.” Herauf J.A.