RENEE MARIE BOUDREAU PETITIONER - v. -, 2014 SKQB 336

QUEEN ’ S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 336 Date: 2014 10 16 Docket: FLD 394 of 2013 Judicial Centre: Saskatoon BETWEEN: RENEE MARIE BOUDREAU PETITIONER - and - ALDERIC DESIRE BOUDREAU RESPONDENT Counsel: Beau Atkins for the petitioner Jason Brunton for the respondent FIAT ELSON J. October 16, 2014 Introduction

[ 1 ] The petitioner, a relative newcomer to Saskatchewan, seeks an increase in the respondent ’ s child support obligations, which are presently set out in a corollary relief order issued by the Supreme Court of Nova Scotia on January 25, 2013. That order incorporated the terms of an earlier separation agreement, between the petitioner and the respondent, which provided for child support in an amount that is less than that which would have been determined in accordance with the Federal Child Support Guidelines (SOR/97-175) [ Guidelines ].

The petitioner now comes before this Court to seek a variation of child support so that the amount is fully determined in accordance with the Guidelines , and is made retroactive to February 1, 2013. [ 2 ] Although it is asserted that there has been a material change in circumstances, it is apparent that the petitioner, through the guise of variation proceedings, is actually seeking reconsideration of both the previous order and of the agreement she made. At best, the matters she regards as material changes in circumstances were either foreseeable or self-induced.

It follows that, under the specific analysis described below, the application must be dismissed. Background [ 3 ] The evidence shows that the parties were married on July 10, 2004 in Nova Scotia. There was one child born of the marriage, Gabriel Julien Boudreau (known as “Gabe”), born July 6, 2005. The petitioner also had a child from a previous relationship who was adopted by the respondent. That child is Wesli Marie Boudreau, born March 14, 1994 (now 20 years of age). [ 4 ] The parties separated in June, 2010.

In May of 2012, the petitioner moved with Gabe to Fort McMurray, Alberta, where she had secured full-time employment with Suncor as a coker operator. She remained there until October 2012, when she moved, again with Gabe, to Warman, Saskatchewan where her mother lives. At first, she commuted from Warman to her job in Fort McMurray. In April of 2013, she left her job and moved permanently to Warman. The respondent has remained in Nova Scotia throughout this time.

He is employed as a teacher. [ 5 ] Shortly after the petitioner moved to Alberta, the parties negotiated the terms of a separation agreement, which the petitioner signed on June 28, 2012. In the steps leading up to the agreement, the respondent was represented by counsel but the petitioner was not. It appears that the respondent’s counsel was justifiably concerned about this and made arrangements to protect the integrity of the agreement. Specifically, counsel prepared an affidavit of independent legal advice which the petitioner was required to swear at the time she signed the agreement.

In that affidavit, the petitioner acknowledged that she had received a request from the respondent ’ s solicitor to obtain independent legal advice prior to signing the agreement, but that she had declined to do so. The affidavit went on to say that the petitioner acknowledged sufficient understanding of the agreement, and was signing it “ without any undue stress, fear, duress, improper understanding, undue influence or false inducement. ” The affidavit further contained the petitioner ’ s opinion that the agreement was fair and that it was in her best interests to sign it.

In the application before this Court, neither the petitioner nor her counsel took any issue with either the essential validity or the probity of the agreement. [ 6 ] The terms of the separation agreement are comprehensive and reasonably clear. The agreement acknowledges that both Gabe and Wesli are children of the marriage within the meaning of the Divorce Act , RSC 1985, c 3 (2d Supp) [ Divorce Act ], and provides for joint custody in respect of both children.

With respect to Gabe, the agreement stipulates that primary residence would be with the petitioner in Alberta and that the respondent would have reasonable parenting time at all reasonable times upon reasonable notice. Specific reference is made to parenting in July and August of each year, as well as arrangements for Christmas school vacation in each year and one week during March or Easter break in each year. [ 7 ] With respect to the child support, the

preamble to the agreement stipulates that the respondent was receiving annual income, for child support purposes, of $70,000.00, while the petitioner’s annual income for the same purpose was described as $80,000.00. Despite these figures, the agreement provides for the respondent to pay $75.00 per month, payable the first day of each month commencing July 1, 2012. The parties specifically addressed the fact that the amount of child support is different than that which would be determined under the Guidelines . The specific wording of the agreed upon acknowledgment reads as follows: 4.

CHILD SUPPORT (a) ...The parties agree that this is a deviation from the Federal Child Support Guidelines having regard to the costs of access to the Husband resulting from the relocation of Garbriel (sic) Julian Boudreau from the province of Nova Scotia.

[ 8 ] It was further agreed that both parties would share special expenses pursuant to s. 7 of the Guidelines in accordance with their respective incomes. No child support, pursuant to either s. 3 or s. 7 of the Guidelines , was provided for with respect to Wesli. [ 9 ] Some time after the agreement, divorce proceedings were commenced by the respondent in Nova Scotia. The date these proceedings were commenced was not disclosed in any of the material before me. In any event, from the corollary relief order, dated January 25, 2013, it is evident that the parties were divorced by an order on that same date.

The terms of the corollary relief order repeated the descriptions of income from the separation agreement and further repeated the explanation for the deviation from the Guidelines . [ 10 ] When this application was originally made, on October 22, 2013, the petitioner was seeking sole custody of Gabe as well as child support for both Gabe and Wesli . She also sought orders setting out terms for the respondent’s access to Gabe.

The petitioner, in her first affidavit, deposed that despite the discounted child support obligations, which were designed to help defray access costs, the respondent had not been exercising access as set out in the separation agreement. She also described certain events, as part of the respondent’s history, which led her to be concerned about the respondent exercising access in the future. [ 11 ] As for her reasons for leaving Fort McMurray and moving to Warman, the petitioner explained that she found Fort McMurray to be a difficult place to raise a child while employed full-time.

In particular, her monthly childcare expenses were in a range between $1,500.00 and $1,800.00. At some point, her mother, who resides in Warman, came to Fort McMurray to assist with childcare. In October 2012, the petitioner decided to move to Warman and commute to her job in Alberta. This arrangement continued until April 2013, when the petitioner left her job and moved permanently to Warman. According to her, this permanent move was prompted by the respondent bringing an application, in Nova Scotia , to vary the existing parenting arrangement.

Despite the fact that this application was discontinued (presumably for lack of jurisdiction), the petitioner did not return to her employment in Fort McMurray, choosing to remain in Warman. [ 12 ] Wesli is a student at the University of Calgary . At the time of the petitioner ’ s first affidavit, Wesli was in her second year of a bio-sciences program, with the expectation she would pursue continued education in nursing. The petitioner deposed that the biological father has continued to support Wesli as she pursues post-secondary education.

According to the petitioner, she and Wesli ’ s biological father share these education costs. The petitioner seeks the respondent ’ s assistance in covering 25% of Wesli ’ s post- secondary education costs. [ 13 ] The respondent swore a response affidavit on March 3, 2014. He denies that he has not exercised the opportunity to have access with Gabe. Specifically, he deposed that Gabe visited with him in Christmas of 2012 and 2013, as well as the summer of 2012.

According to the respondent, there had been a problem related to visits in the month of March as the school break in Nova Scotia did not coincide with the school break in Saskatchewan. Much of the affidavit talks about the history the respondent has had with his son as well as the concerns he has had relative to Gabe’s schooling. The respondent has also been concerned about the petitioner’s new relationship with a man from the United States. There has been a concern about the petitioner relocating to either Wyoming or California.

The respondent denied any of the issues raised by the petitioner serving as a concern for him exercising access with Gabe. As for Wesli, the respondent admits having adopted her, but otherwise denies the existence of a true child parent relationship. According to the respondent, Wesli is much closer to her biological father then she is with him. [ 14 ] Following receipt of the respondent’s affidavit, the petitioner deposed the second affidavit on March 20, 2014. The second affidavit reflects a distinct and noteworthy change in the petitioner’s position.

In the affidavit, the petitioner advised that she was not requesting much of the relief described in the original application. Specifically, she was no longer seeking sole custody of Gabe, and was no longer asking for a variation of the parenting and access schedule. However, the petitioner continued to seek orders for, inter alia , child support for Gabe, commencing February 1, 2013, as well as s. 7 expenses in respect of Wesli’s post-secondary education.

In addition, she advised that she was seeking an order that neither parent consume alcohol or drugs in Gabe’s presence, an order that the cost of airfare between Nova Scotia and Saskatchewan be shared equally between the parties, as well as an order for s. 7 expenses proportional to the respective incomes of the petitioner and the respondent. [ 15 ] The petitioner does not deny the respondent’s evidence about the access he has exercised, despite the fact that it directly contradicts her earlier affidavit.

Instead, she claims that the expenses he incurs in this respect are minimal, and are significantly less than the amount she expected at the time she signed a separation agreement.

[ 16 ] As to the petitioner’s income, which was not addressed in the first affidavit, the second affidavit asserts that her income is significantly less than it was when she worked in Alberta, reduced from as much as $150,000.00 per year down to $21,600.00 per year. Her tax return for 2013 actually shows employment income of $60,806.83, employment insurance income of $12,133.00 and other income, from Sun Life Assurance, of $9,783.58, all for a total of $82,723.41. This, the petitioner claims, is the main reason she is seeking assistance from the respondent to provide support for Wesli’s academic pursuits.

Issues [ 17 ] The issues raised by this application are as follows: a. In assessing the merits of the application, what consideration, if any, can this court give to the agreement between the parties and the fact that its terms were incorporated into the order, which the petitioner now seeks to vary? b. Has there been a material change in circumstances such that a variation order, in respect of child support, is justified? c. If so, should the variation be retroactive to February 1, 2013, as the petitioner contends?

Significance of the Agreement between the Parties [ 18 ] The agreement in this case presents a somewhat interesting issue. By itself, it poses no obvious impediment to the petitioner ’ s application to vary child support. Child support is the right of the children. Parents cannot, by agreement, oust the jurisdiction of the court to determine child support obligations.

In this case, however, the incorporation of the agreement into the corollary relief order changes the situation considerably, principally by restricting this Court ’ s ability to vary its terms. [ 19 ] The authority for a superior court to make such an order, such as the one issued by the Supreme Court of Nova Scotia, is set out in s. 15.1(5) of the Divorce Act . This provision permits a court to award an amount that is different from the amount that would be determined in accordance with the Guidelines provided the court is satisfied: (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of the child; and (

b) that the application of the applicable Guidelines would result in an amount of child support that is inequitable given those special provisions. [ 20 ] Because the respondent’s child support obligations were incorporated into the subject order, this Court must presume that it was issued only after the Nova Scotia court was satisfied as to the two essential elements set out in s. 15.1 of the Divorce Act . More particularly, it is not for this Court to revisit the issues or question the decision that was made in this respect.

To the extent the petitioner ’ s application invites this Court to do so, whether directly or indirectly, care must be taken to avoid any such intervention. Change in Circumstances [ 21 ] The jurisdiction for the court to vary the terms of a corollary relief order is included in s. 17 of the Divorce Act . For the purpose of this application, the relevant sub-sections of the provision are as follows:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; or (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. ...

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of whichthe variation order is sought.

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change ofcircumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variationorder made in respect of that order. ...

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been consideredin making the order in respect of which the variation order is sought.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. [22] Sub-section 17(4) directs the court to s. 14 of the Guidelines. As the subject order does not predate May 1, 1997,the court must apply either s. 14(

a) or s. 14(b), which read as follows: 14. For the purposes of subsection 17 (4) of the Act, any one of the following constitute a change of circumstances that gives rise tothe making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any changein circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change inthe condition, means, needs or other circumstances of either spouse or of any child who is entitled to support;... [23] In the present case, the corollary relief order does not reflect a determination made in accordance with a table inthe Guidelines. Accordingly, I am satisfied the court is obliged to follow the criteria set out in s. 14(b). See Clarke v Babansee, 2009BCCA 122. [24] Irrespective of whether the court applies ss. 14(

a) or (b), the applicable test for finding a change ofcircumstances under s. 17(4) was set out in the frequently referenced decision of the Supreme Court of Canada in Willick v Willick (SCC), [1994] 3 SCR 670 (QL) [Willick], where Sopinka J. made the following comment at para. 21: 21 In deciding whether the conditions for variation exist, it is common ground that the change must be a material change ofcircumstances. This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this isthat if the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis forvariation. The controversial aspect of this appeal is whether it is also a precondition to variation that there be a change in thecircumstances of the payor spouse and the child or children in whose favour the support provisions were made. In determining this issueit is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard tothe means of the parents.

The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between thosefactors changes in a material way. There can be a material change in the relation of the factors if one of them undergoes a significantchange because the relationship between them is altered.

[ 25 ] It is acknowledged that the petitioner in this case bears the onus of establishing a material change in circumstances to justify the variation she requests.

She contends that she has met this onus by establishing: 1) that she now earns less income as a result of her relocation from Fort McMurray to Warman; 2) that Wesli ’ s education expenses have increased; and 3) that the respondent is spending less on access costs than had been anticipated at the time of the separation agreement. [ 26 ] As I read the evidence, it is apparent that the focus of the petitioner’s position is that the circumstances throughout the time in question has been unsatisfactory, rather than any discernible change in those circumstances.

The petitioner ’ s counsel seems to recognize this when he argues that the threshold for finding a change in circumstances is low, particularly when measured in relation to the needs of the children. [ 27 ] While the threshold may well be low, there at least must be evidence of a change that is sufficient to satisfy the test in Willick . In this case, it is very difficult to accept that the petitioner’s evidence reflects a truly material change in circumstances from that which existed at on June 28, 2012, when she signed the agreement, or on January 28, 2013, when the corollary relief order was issued.

As she describes the apparent needs of the children, those needs should have been no less clear to her before each of these relevant dates. The circumstances facing the petitioner and her son in Fort McMurray ought to have been known by the date of the agreement, and would certainly have been known before the date of the order. Although there is no direct evidence on the point, it also seems reasonable to infer that Wesli’s plans for post-secondary education would have been anticipated by the spring of 2012. Having said this, they were obviously known before the end of 2012.

As for the matter of the respondent ’ s access costs, I find it difficult to believe that the petitioner did not give some consideration to this issue. Specific cost estimates were not set out in the agreement.

Accordingly, to the extent the respondent was able to negotiate airfares, with standby fees and the like, the petitioner ought to have understood that, by the terms she agreed to, he was clearly free to do so. [ 28 ] With respect to the purported change in the petitioner’s income, the petitioner ignores the fact that her reduction in income is entirely attributable to intentional underemployment, without any persuasive explanation for it.

In saying this, it must be acknowledged that, normally, the intentional underemployment of the recipient parent does not result in a s. 19 imputation of income for that parent, particularly in regard to support under s. 3 of the Guidelines . In my view, this case is made exceptional by the terms of the current order and the agreement it has incorporated under s. 15.1(5) of the Divorce Act .

While the ostensible reason for the deviation from the Guidelines was to defray the respondent’s access costs, I cannot help but presume that the stated income of the petitioner in the agreement was a factor in the acceptance of that deviation. In other words, in applying s. 15.1(1) of the Divorce Act , some comfort was drawn from the fact that the petitioner’s income was not insignificant, and was stated to be greater than the respondent’s income.

Indeed, as it turned out, the petitioner’s annual income, before she relocated to Warman, was as much as $150,000.00, considerably more than the $80,000.00 stated in the agreement and the subsequent order. In my view, it then follows that the petitioner’s decision to walk away from a well paying position in Fort McMurray must, on the specific facts of this case, be seen as intentional underemployment. Just as intentional underemployment by an obligor parent cannot justify a reduction in table support, it ought not to justify an increase in this instance.

Retroactive Child Support [ 29 ] If I am wrong in finding there has not been a material change in circumstances, I believe I should comment on the petitioner’s argument that any ordered increase in child support should be retroactive to February 1, 2013. [ 30 ] The leading, and most authoritative, decision on the retroactive variation of child support orders is D.B.S. v S.R.G., L.J.W. v T.A.R., Henry v Henry, Hiemstra v Hiemstra, 2006 SCC 37 , [2006] 2 SCR 231 [ D.B.S. ] . In this decision, the court described the factors a court must consider in a request for retroactive increase in child support.

In Labrecque v Labrecque , 2011 SKQB 260 , 384 Sask R 299 , Ryan-Froslie J. (as she then was) wrote a helpful commentary on the D.B.S. factors in paras. 87-89 , which deserves repeating here: 87 In determining whether a Court should go beyond the application date when varying a child support award, Justice Bastarache set out four factors to consider. Those factors are not exhaustive and no one factor is determinative of the issue. Rather, it is a question of "balancing" the factors to determine what is fair in the circumstances. 88 The factors as set out in D.B.S . , beginning at para. 100 , are as follows: (

i) Does the recipient have a reasonable excuse for why support was not sought earlier?

Delay in seeking child support is not presumptively justifiable. If a recipient knows he/she may be entitled to child support or an increase thereof but arbitrarily decides not to pursue it, that is not reasonable. On the other hand, if for financial or emotional reasons or because of intimidation by the payor, the recipient delays in proceeding with an application, then that may be reasonable. (ii) Conduct of the payor This conduct may be either responsible or blameworthy.

For example if a payor has paid s. 7 expenses beyond what he was obligated to or satisfied his obligation in another way, then that "good" conduct would mitigate against a retroactive award.

On the other hand, any conduct that puts the payor's interests above those of his/her children, for example, hiding income, attempting to mislead the recipient with respect to their income or intimidating the recipient so that he/she will not bring a support application is blameworthy conduct and will militate in favour of a retroactive award. (iii) Circumstances of the child This includes the circumstances as they existed at the time the support should have been paid as well as the child's current circumstances.

As Justice Bastarache pointed out at para. 113 of D.B.S. : [113] ... the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit . [Emphasis added] (iv) Hardship to the payor Because retroactive awards are based on past income versus present income and because a payor may have acquired other familial obligations, such awards may result in hardship to them. 89 Finally, D.B.S . established that the general rule with respect to what date a retroactive award should begin is the date of effective notice, i.e. the date when the recipient first gave an indication to the payor that child support should be paid or renegotiated.

However, where the payor has engaged in blameworthy conduct which includes not only situations where the payor has intimidated or lied to the recipient but also where the payor has withheld information, the date the payor's income increased may prove to be the more appropriate date for the retroactive award to commence. ... [ 31 ] In the present case, I find none of the relevant factors support a retroactive award.

The petitioner offers no excuse or explanation for the delay in bringing the application, nor does she identify any blameworthy conduct by the respondent that may have caused the delay. [ 32 ] Primarily, if not exclusively, the petitioner rests her case on the circumstances of the children for the material time, going back to February 1, 2013. Considering that the corollary relief order was only five days old by this date, I can only conclude that she is simply inviting the court to revisit the merits of the original order. For the reasons already stated, I am satisfied that I cannot do so.

Parenting and Access [ 33 ] As for the other issues raised by the petitioner, in regard to parenting and access costs, I am not satisfied that any variation of the corollary relief order is called for or shown to be necessary. The issue of s. 7 expenses is already addressed in the current order, and I see no reason for a variation of that provision, either. Conclusion [ 34 ] In the result, the application is dismissed, with costs awarded in favour of the respondent and fixed in the amount of $1,000.00.

__________________________________J. R. W. ELSON