D.J.G. v. N.M., (2007) 296 Sask.R. 108 (FD)

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 19, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 296 Sask.R. 108 (FD);2007 SKQB 137

D.J.G. v. N.M. (2007), 296 Sask.R. 108 (FD)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MY.025

D.J.G. (claimant/respondent) v. N.M. (respondent/appellant)

(2005 F.L.D. No. 240; 2007 SKQB 137)

Indexed As: D.J.G. v. N.M.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Ryan-Froslie, J.

April 19, 2007.

Summary:

A mother sought a declaration that the respondent was the natural father of her child and child support. The respondent eventually conceded paternity.

The Saskatchewan Provincial Court, in a decision reported at 270 Sask.R. 206, declared that the respondent was the child's father and ordered him to pay monthly child support of $1,739 based on deemed annual pre-tax income of $249,016. The respondent appealed.

The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the appeal.

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 2342.1

Maintenance of wives and children - Maintenance of children - Dependent child - A. was born in 1987 - In June 2003, A.'s mother commenced an application for child support - The trial court ordered the father to pay child support - The father appealed, asserting, inter alia, that the trial judge had erred in finding that A. was a child within the meaning of the Family Maintenance Act because he was not attending school - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the appeal - The Act defined a child as a person under the age of 18 years - The requirement to provide support for such a person was mandatory - There was no discretion in the court to disallow support where a child was not attending school - See paragraphs 12 to 14.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - In June 2003, a child's mother commenced an application for child support - The trial court ordered the father to pay child support of $1,739 per month based on an income of $249,016, retroactive to June 2003 - The father appealed, asserting, inter alia, that the trial judge had erred in making the order retroactive to the application date - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the appeal - The trial judge found that much of the two year delay between the application and the trial was to enable the father to retain counsel and make disclosure as well as arranging for counsel to attend court in the far north, where the parties lived - The judge recognized that the order would create immediate substantial arrears, but felt that there was substantial "retained cash" in the father's business - The father was aware of his obligation to pay support - It would be unfair to the mother to allow delay caused largely by the father to affect the start date - The evidence showed that the father had considerable income and there was no evidence that a retroactive award would cause him undue hardship - See paragraphs 34 to 38.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - In June 2003, a child's mother commenced an application for child support - The trial court ordered the father to pay child support based on an income of $249,016 - The income was derived from a gas bar and convenience store - The father had been the sole proprietor of the business from 2000, when it was established, to November 2004, when the business name was transferred to the father's wife - The father appealed, asserting, inter alia, that the trial judge had erred in finding that he had an interest in the business and in imputing business income to him because the business was his wife's and he had no income - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the appeal - There was evidence, including Corporations Branch certificates and vehicle registrations, on which the trial judge could reasonably conclude that the father owned the business - Loans for the business were taken out in the father's name - Once the trial judge found that the business was jointly owned, it was open to him to impute an appropriate portion of its income to the father - This was so because the father had alleged he was unemployed and earning nothing while the trial judge found otherwise - See paragraphs 15 to 18.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A. was born in 1987 - His parents were both of First Nations ancestry and resided on a reserve - Neither paid federal or provincial income tax - In June 2003, A.'s mother commenced an application for child support - The trial court determined the father's income and ordered child support - The father appealed, asserting, inter alia, that the trial judge had erred in grossing up the father's income for unpaid tax - The father submitted that because A. was close to maturity, no gross up should have been made - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the appeal - Individuals who paid child support did so, as a general rule, based on their gross income before tax - To treat individuals who did not pay tax differently than those who did was contrary to the stated objectives of the Federal Child Support Guidelines - Further, it was inequitable for a child who was on the verge of independence to receive less child support than he would if he was younger - There was no reason to interfere with the trial judge's discretion - See paragraphs 22 to 24.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Where income over $150,000 - A child's mother commenced an application for child support - She stated that she needed $900 per month to meet the child's needs - The trial court ordered the father to pay child support of $1,739 per month based on an imputed income of $249,016 - The father appealed, asserting, inter alia, that the trial judge had erred in awarding the Federal Child Support Guidelines amount of support for that portion of his income that was over $150,000 per year because the child's needs would have been met with the Guidelines amount of $1,076 per month based on an income of $150,000 - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the appeal - In determining whether the Guidelines amount of support was inappropriate, children's needs were merely one factor to be considered - The trial judge's failure to consider the mother's evidence regarding the child's needs was an error of law, but not one that would change the ultimate outcome - The balance of the evidence, including a large disparity in incomes between the parties' households and the father's financial ability to contribute to the child's support, indicated that the Guidelines amount of support was appropriate - See paragraphs 25 to 33.

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 11].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 11].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 11].

Hamel v. Hamel (2001), 213 Sask.R. 197; 260 W.A.C. 197; 2001 SKCA 115, refd to. [para. 11].

C.P. v. L.H. (2006), 279 Sask.R. 94; 372 W.A.C. 94; 2006 SKCA 61, refd to. [para. 24].

Merasty v. Merasty (2000), 194 Sask.R. 91 (Q.B.), refd to. [para. 24].

Dahlgren v. Hodgson (1998), 228 A.R. 332; 188 W.A.C. 332; 43 R.F.L.(4th) 176; 1999 ABCA 23, refd to. [para. 24].

Frances v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 27].

Dergousoff v. Dergousoff, [1999] 10 W.W.R. 633; 177 Sask.R. 64; 199 W.A.C. 64 (C.A.), refd to. [para. 29].

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. 31].

Counsel:

H.A. Cotton, for the claimant/respondent;

L.G. Greenhorn, for the respondent/appellant.

This appeal was heard by Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on April 19, 2007.