Amos v. Fischer, (2013) 413 Sask.R. 126 (FD)

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 13, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 413 Sask.R. 126 (FD);2013 SKQB 49

Amos v. Fischer (2013), 413 Sask.R. 126 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MR.002

Gregory Brent Amos (petitioner/respondent) v. Bonnie Joanne Fischer (respondent/applicant)

(2002 F.L.D. No. 295; 2013 SKQB 49)

Indexed As: Amos v. Fischer

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Schwann, J.

February 13, 2013.

Summary:

The parties began cohabiting shortly after the birth of their son (Brayden) in 2001 and separated less than a year later.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at [2006] Sask.R. Uned. 10, granted sole custody to the mother but imposed a shared parenting regime. The father was ordered to pay the mother child support of $216 per month and a proportionate share (almost 70%) of s. 7 expenses. The mother applied for retroactive adjustments to the order, and an order directing the father to take Brayden to his scheduled extracurricular activities in the weeks that he was in his father's care. The father sought a Contino (2005 S.C.C.) analysis of child support based on the shared parenting arrangement coupled with recognition that the mother's new husband stood in loco parentis to Brayden.

The Saskatchewan Court of Queen's Bench, Family Law Division, was unable to determine the issue of retroactive support because neither party had addressed the relevant factors in evidence or in argument. The income of both parties had increased. The court set off the child support amounts that each party was required to pay based on their current incomes and ordered the father to pay $571 per month on a go-forward basis. The court conducted a Contino analysis and declined to modify the set-off amount. The father was ordered to pay 73% of s. 7 expenses, and $838 for unpaid s. 7 expenses. The court dismissed the mother's application for an order directing the father to take Brayden to his activities.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - [See Family Law - Topic 4045.7 ].

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2360.1 ].

Family Law - Topic 2346.1

Maintenance of wives and children - Maintenance of children - Concurrent obligations of natural parent and step-parent - [See Family Law - Topic 4045.7 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 2360.1 ].

Family Law - Topic 2354.1

Maintenance of wives and children - Maintenance of children - Effect of income of respondent's spouse - [See Family Law - Topic 4045.7 ].

Family Law - Topic 2360.1

Maintenance of wives and children - Maintenance of children - Variation of award or agreement - The parties cohabited shortly after the birth of their son (Brayden) and separated less than a year later - In 2006, Kraus, J., imposed a shared parenting regime - The father's income was $60,700 and the mother's was $27,500 - Kraus, J., set off the table amounts and ordered the father to pay $216/month in child support, and his proportionate share (almost 70%) of s. 7 expenses - The mother applied for variation of the order - She sought retroactive adjustments from January 2010 onward, and an order directing the father to take Brayden to his extracurricular activities in the weeks that he was in his father's care - The father's current income was $106,142 and the mother's was $41,000 - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the change to the parties' incomes was a material change in circumstance justifying variation of the final order - The father was ordered to pay $571/month and 73% of s. 7 expenses - Neither party had addressed the D.B.S. (2006 S.C.C.) factors in evidence or in argument - The court was therefore unable to determine the claim for retroactive support - The parties were directed to file further material addressing the D.B.S. factors - The court dismissed the mother's request for an order directing the father to take Brayden to his activities - It was brought within the framework of a variation application - Absent evidence of a material change in circumstance in relation to this particular issue, no order could be made - See paragraphs 4 to 17, 40 and 41.

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds (incl. changed circumstances) - [See Family Law - Topic 2360.1 ].

Family Law - Topic 2442

Maintenance of wives and children - Evidence - Requirement of - [See Family Law - Topic 2360.1 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The parties cohabited shortly after the birth of their son and separated less than a year later - In 2006, Kraus, J., ordered the father to pay his proportionate share of s. 7 expenses - The mother applied for variation of the order - She filed evidence of a $1024 underpayment of s. 7 expenses on the father's part - The father took issue with the inclusion of amounts paid for school fees and supplies - The Saskatchewan Court of Queen's Bench, Family Law Division, held that school fees and supplies were not proper s. 7 expenses and should be excluded - The father was ordered to pay $838 for unpaid s. 7 expenses - See paragraphs 37 to 39.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The parties cohabited shortly after the birth of their son (Brayden) and separated less than a year later - In 2006, Kraus, J., imposed a shared parenting regime and ordered the father to pay child support - The mother applied for variation of the order - The father sought a Contino (2005 S.C.C.) analysis of child support based on the shared parenting arrangement coupled with recognition that the mother's new husband stood in loco parentis to Brayden - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the father's income was $106,142 and the mother's was $41,000 - The court calculated the amount of child support that each party was required to pay and ordered the father to pay the set-off amount - The court conducted a Contino analysis and declined to depart from the set-off approach - Neither party provided evidence as to the increased cost of the shared parenting arrangement - Brayden had no special needs - The mother's husband's income was $74,900 - Both parties had comparable living standards and devoted roughly the same amount of household income to the cost of raising Brayden - While the father earned significantly more money than the mother, that consideration was set off by the fact that the mother shared most of her core household expenses with her husband, which allowed her to absorb the costs required to maintain Brayden's standard of living - Her remarriage was a relevant consideration to the Contino analysis and an evidentiary finding on the loco parentis issue was therefore unnecessary - See paragraphs 18 to 36.

Family Law - Topic 4045.10

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Persons obligated to support children (in loco parentis) - [See Family Law - Topic 4045.7 ].

Cases Noticed:

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 21].

Swindler v. Belanger - see K.H.S. v. N.M.B.

K.H.S. v. N.M.B. (2005), 275 Sask.R. 129; 365 W.A.C. 129; 2005 SKCA 131, refd to. [para. 32].

James v. Belosowsky (2012), 403 Sask.R. 12; 2012 SKQB 316, dist. [para. 33].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 40].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (4th Ed. 2011), pp. 395, 396 [para. 34]; 397 [para. 21].

Counsel:

Gregory Brent Amos, self represented;

Kathleen Peterson, for the respondent/applicant.

This application was heard before Schwann, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on February 13, 2013.