Chopek v. McKenzie, (2015) 325 Man.R.(2d) 249 (QBFD)

JudgeMacPhail, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateDecember 15, 2015
JurisdictionManitoba
Citations(2015), 325 Man.R.(2d) 249 (QBFD);2015 MBQB 207

Chopek v. McKenzie (2015), 325 Man.R.(2d) 249 (QBFD)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.014

Karen Pearl Chopek (petitioner) v. Alan McKenzie (respondent)

(FD 03-01-69729; 2015 MBQB 207)

Indexed As: Chopek v. McKenzie

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

MacPhail, J.

December 15, 2015.

Summary:

A final 2004 order provided that the mother had sole custody of the parties' daughter and the father had no access and no child support obligations. The parties agreed to a variation order that permitted the mother to change the child's residence from Manitoba to British Columbia, effective July 1, 2014. The variation order gave the father such access as the parties agreed to and required him to pay child support of $400 per month on a semi-monthly basis. The $400 was a reduced, non-Table amount, so that the father would be able to visit the child in British Columbia. The mother applied to vary the variation order, seeking Guideline child support retroactive to July 1, 2014; to have any arrears resulting from the variation to be paid in one lump sum; to have the father to provide his financial statements annually by June 1; and to have the child support paid on the first day of the month.

The Manitoba Court of Queen's Bench, Family Division, granted the mother's application to retroactively vary the child support and ordered the father to pay Guideline child support ($702.71 per month) on a semi-monthly basis. Any resulting arrears were to be determined by the Designated Officer of the Maintenance Enforcement Program and enforced as the Officer felt appropriate. The court ordered the father to provide annual financial disclosure to the mother by sending her a copy of his Income Tax Return and Notice of Assessment or Reassessment for each taxation year by June 1 of the following calendar year.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - A 2004 order provided that the petitioner (the mother) had sole custody of the parties' daughter and the father had no access and no child support obligations - The parties agreed to a variation order that permitted the mother to change the child's residence from Manitoba to British Columbia, effective July 1, 2014 - The order gave the father such access as the parties agreed to and required him to pay a reduced, non-Table amount of child support ($400 per month) on a semi-monthly basis - The reduced amount was intended to enable the father to visit the child in British Columbia - The mother applied to vary the order, seeking, inter alia, Guideline child support retroactive to July 1, 2014, to be paid on the first day of each month - The father opposed the application on the basis that he had not been able to see his child - The Manitoba Court of Queen's Bench, Family Division, stated that child support was the child's right - The father spent no funds to visit her in 2014 or 2015 and he made no meaningful effort to arrange a visit - He was paying significantly less than the Table amount of support and made no contribution to any extraordinary or special expenses - In those circumstances, presumptively he should be paying the Table amount - The court ordered the father to pay Guideline child support ($702.71 per month based on his income of $83,339) on a semi-monthly basis retroactive to July 1, 2014 - The court refused to order the full support to be paid on the first of each month, as the father had organized his affairs based on the semi-monthly payment schedule and there was no evidence justifying a variation of that schedule - See paragraphs 21 to 25.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of period payments or lump sum award - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of period payments or lump sum award - A 2004 order provided that the petitioner (the mother) had sole custody of the parties' daughter and the father had no access and no child support obligations - The parties agreed to a variation order that permitted the mother to change the child's residence from Manitoba to British Columbia, effective July 1, 2014 - The order gave the father such access as the parties agreed to and required him to pay a reduced, non-Table amount of child support ($400 per month) on a semi-monthly basis - The reduced amount was intended to enable the father to visit the child in British Columbia - The mother applied to vary the order, seeking, inter alia, Guideline child support retroactive to July 1, 2014, to be paid on the first day of each month - The Manitoba Court of Queen's Bench, Family Division, held that there was a change in circumstances as the father's income had increased from $71,300 in 2013, to $83,339 in 2014 - His 2015 income was expected to be $80,000 - The father sought to deduct a $500 monthly car allowance from his income - However, it was not the taxable benefit that was deducted, it was the actual expenses which an employee was entitled to claim under the Income Tax Act which was deducted - The father had not provided a copy of his full 2014 income tax return - The onus was on him to provide the necessary evidence to establish that the allowance should be deducted from his line 150 income pursuant to Schedule III of the Guidelines - He had not met that onus - The father's income was his 2014 line 150 income of $83,339 and his current annual income from January 1, 2015 of $80,000 - See paragraphs 12 to 20.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See second Family Law - Topic 4017 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - [See second Family Law - Topic 4017 ].

Family Law - Topic 4045.17

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases - Evidence and proof - [See second Family Law - Topic 4017 ].

Family Law - Topic 4090.2

Divorce - Corollary relief - Incidental matters - Method of payment - [See Family Law - Topic 4001.1 ].

Cases Noticed:

Duncan v. Mokelki, [2008] Sask.R. Uned. 176; 2008 SKQB 442, refd to. [para. 16].

Counsel:

No one present, for the petitioner;

Gerald S. Ashcroft, for the respondent;

Wendy D. Post, for the Designated Authority for the Province of Manitoba appointed pursuant to the Inter-jurisdictional Support Orders Act.

This application was heard by MacPhail, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on December 15, 2015.

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4 practice notes
  • Determination of income; disclosure of income
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2020
    • June 23, 2019
    ...See also KM v SW, 2014 BCSC 2240. 66 Shaw v Shaw, [2002] OJ No 2782 (SCJ). 67 Gartman v Hancherof, 2015 BCSC 160. 68 Chopek v McKenzie, 2015 MBQB 207; BNM v PJM, 2017 SKQB 331. 69 Chopek v McKenzie, 2015 MBQB 207. D etermination of Income; Disclosure of Income 123 deducted in determining a ......
  • Determination of Income; Disclosure of Income
    • Canada
    • Irwin Books Child Support Guidelines in Canada, 2022
    • July 27, 2022
    ...(SCJ). See also KM v SW, 2014 BCSC 2240. Shaw v Shaw, [2002] OJ No 2782 (SCJ). Gartman v Hancheroff, 2015 BCSC 160. Chopek v McKenzie, 2015 MBQB 207; BNM v PJM, 2017 SKQB Chopek v McKenzie, 2015 MBQB 207. BNM v PJM, 2017 SKQB 331. 126 Child Support Guidelines in Canada, 2022 Several cases h......
  • Table of Cases
    • Canada
    • Irwin Books Child Support Guidelines in Canada, 2022
    • July 27, 2022
    ...305 Chopek v McKenzie, 2015 MBQB 207......................................................................................................................125 Chou v Chao (1996) 21 RFL (4th) 45, [1996] BCJ No 378 (SC).................................................................................
  • Table of cases
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2020
    • June 23, 2019
    ...................................................................................................................466 Chopek v McKenzie, 2015 MBQB 207 .................................................................................................................... 122 Chou v Chao (1996) 21......
4 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Child Support Guidelines in Canada, 2022
    • July 27, 2022
    ...305 Chopek v McKenzie, 2015 MBQB 207......................................................................................................................125 Chou v Chao (1996) 21 RFL (4th) 45, [1996] BCJ No 378 (SC).................................................................................
  • Table of cases
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2020
    • June 23, 2019
    ...................................................................................................................466 Chopek v McKenzie, 2015 MBQB 207 .................................................................................................................... 122 Chou v Chao (1996) 21......
  • Determination of Income; Disclosure of Income
    • Canada
    • Irwin Books Child Support Guidelines in Canada, 2022
    • July 27, 2022
    ...(SCJ). See also KM v SW, 2014 BCSC 2240. Shaw v Shaw, [2002] OJ No 2782 (SCJ). Gartman v Hancheroff, 2015 BCSC 160. Chopek v McKenzie, 2015 MBQB 207; BNM v PJM, 2017 SKQB Chopek v McKenzie, 2015 MBQB 207. BNM v PJM, 2017 SKQB 331. 126 Child Support Guidelines in Canada, 2022 Several cases h......
  • Determination of income; disclosure of income
    • Canada
    • Irwin Books Archive Child Support Guidelines in Canada, 2020
    • June 23, 2019
    ...See also KM v SW, 2014 BCSC 2240. 66 Shaw v Shaw, [2002] OJ No 2782 (SCJ). 67 Gartman v Hancherof, 2015 BCSC 160. 68 Chopek v McKenzie, 2015 MBQB 207; BNM v PJM, 2017 SKQB 331. 69 Chopek v McKenzie, 2015 MBQB 207. D etermination of Income; Disclosure of Income 123 deducted in determining a ......

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