D.B. v. L.H., 2015 SKQB 152

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 27, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 152;(2015), 475 Sask.R. 200 (FD)

D.B. v. L.H. (2015), 475 Sask.R. 200 (FD)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.011

D.B. (petitioner) v. L.H. (respondent)

(2014 FLD No. 335; 2015 SKQB 152)

Indexed As: D.B. v. L.H.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

McMurtry, J.

May 27, 2015.

Summary:

A father sought an order retroactively varying his child support payments under a 1999 order (incorporated into a January 2001 divorce judgment) by rescinding all outstanding arrears and prospectively terminating all child support payments. The father stopped paying in March 2001 when he was told that he was not the father, and the mother made no attempts to vary or actively enforce the child support order. Thirteen years had passed and the father had had no contact with the child during that time. The mother had also removed the child from the province without the father's consent contrary to a court order.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2014), 429 N.B.R.(2d) 29; 1119 A.P.R. 29, held that, although there were no statutory references in the father's motion, it would consider it a motion under ss. 18 and 19 of the Divorce Act, and its order would be provisional, subject to confirmation or variation in the Province of Saskatchewan, where the mother now resided. The court varied the existing order, based on material changes since the making of the original order. The court then rescinded all arrears from March 2001 based on the mother's conduct. The court made no order for ongoing child support. The father applied for confirmation of the provisional order in Saskatchewan.

The Saskatchewan Court of Queen's Bench, Family Law Division, refused to confirm that part of the provisional order that required the mother to reimburse the father for child support paid, but it did confirm that part of the New Brunswick decision rescinding arrears after March 1, 2001 (when the father stopped paying), where the mother had not sought the payment of arrears. The court ordered that beginning September 1, 2015, the 1999 order would continue in force, obligating the father to pay child support of $144/month.

Editor's Note: certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2523 ].

Family Law - Topic 2349

Maintenance of spouses and children - Maintenance of children - Termination of obligation - General - [See Family Law - Topic 2523 ].

Family Law - Topic 2352

Maintenance of spouses and children - Maintenance of children - Termination of obligation - Voluntary withdrawal of child - [See Family Law - Topic 2523 ].

Family Law - Topic 2367

Maintenance of spouses and children - Defences or bars - Delay or estoppel - [See Family Law - Topic 2523 ].

Family Law - Topic 2370

Maintenance of wives and children - Defences or bars - Disentitlement by conduct - [See Family Law - Topic 2523 ].

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - [See Family Law - Topic 2523 ].

Family Law - Topic 2523

Maintenance of spouses and children - Enforcement - Orders - Arrears of maintenance - The parties divorced in January 2001 when their child was an infant - The father sought an order retroactively varying his child support payments by rescinding all outstanding arrears and prospectively terminating all payments - In March 2001, he had stopped paying support under a 1999 order (incorporated into the divorce judgment) when he was told that he was not the child's father and the mother denied access - The mother made no attempts to vary or actively enforce the order - She continued to declare that her boyfriend was the child's biological father - She also removed the child from the province without the father's consent - The father's paternity was not established until after he filed a notice of motion in 2012 and the court ordered paternity testing - Thirteen years had now passed and the father had had no contact with the child, who was now aged 14, and did not want a relationship with his father - A New Brunswick Court of Queen's Bench judge provisionally varied the 1999 support order, holding that the mother's decision to remove the child from his father's life was a change so material, as to support the father's decision to terminate child support - Laches should not apply - In any event, the mother had acquiesced in the delay as she did nothing herself, and went so far as to ask the father to execute documents releasing him of any parental rights or obligations - Further, the father had remarried and had three children to support; they struggled financially and had limited means; and the father did not have the ability to pay during certain periods - The court also rescinded all arrears from March 2001 based on the mother's conduct - The father applied for confirmation of the provisional order - The Saskatchewan Court of Queen's Bench, Family Law Division, refused to confirm that part of the order that required the mother to reimburse the father for child support paid, but confirmed that part of the decision rescinding arrears after March 1, 2001, where the mother had not sought the payment of arrears - The court ordered that beginning September 1, 2015, the 1999 order would continue in force, obligating the father to pay child support of $144/month - The mother's income was limited to Social Assistance - If the court had confirmed the provisional order and required her to reimburse the father, her ability to care for the child would have suffered considerably - The child support that had been paid was pursuant to a valid court order - The parties had followed very few provisions of that order - Therefore, the mother's failure to obtain the father's consent before moving out of New Brunswick was not so egregious as to warrant the extraordinary step of requiring the custodial parent to reimburse the noncustodial parent for child support paid - The single provision of the 1999 order followed by the parties put the mother in the position of sole custodial parent for all of the child's life to date, incurring the costs associated with raising a child that child support was designed to cover - As for the arrears, the court was not satisfied that the father would be unable pay in the future - His income had remained the same or increased in every year but one - While he had added to his financial obligation by having more children, that factor did not, on its own, warrant a finding of a change in circumstances - In particular, his household did not appear to be suffering a greater hardship than the mother's.

Family Law - Topic 2526

Maintenance of spouses and children - Enforcement - Orders - Termination or variation - [See Family Law - Topic 2523 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 2523 ].

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of - Jurisdiction - [See Family Law - Topic 2523 ].

Family Law - Topic 4023

Divorce - Corollary relief - Maintenance awards - Effect of delay or laches - [See Family Law - Topic 2523 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - [See Family Law - Topic 2523 ].

Family Law - Topic 4047.2

Divorce - Corollary relief - Maintenance - Enforcement - Confirmation of provisional order - [See Family Law - Topic 2523 ].

Counsel:

No one present, for the petitioner/father;

Stacy O'Brien, for the respondent/mother.

This application was heard by McMurtry, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following decision on May 27, 2015.