Dergousoff v. Dergousoff, (1999) 177 Sask.R. 64 (CA)

• Judge: Tallis, Cameron and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 04, 1998
• Jurisdiction: Saskatchewan
• Citations: (1999), 177 Sask.R. 64 (CA);1999 CanLII 12250 (BS SC);1999 CanLII 12250 (SK CA);[1999] 10 WWR 633;48 RFL (4th) 1;177 Sask R 64;199 WAC 64

Dergousoff v. Dergousoff (1999), 177 Sask.R. 64 (CA);

   199 W.A.C. 64

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. MY.031

Brent Dergousoff (appellant) v. Armelle Antoinette Schille (Dergousoff) (respondent)

(No. 2983)

Indexed As: Dergousoff v. Dergousoff

Saskatchewan Court of Appeal

Tallis, Cameron and Lane, JJ.A.

April 9, 1999.

Summary:

A mother applied to vary a child support order. The father countered with an applica­tion to vary the order's custody provision.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 167 Sask.R. 66, dismissed the father's application and allowed the mother's application. The father appealed.

The Saskatchewan Court of Appeal dis­missed the custody appeal and allowed the child support appeal.

Family Law - Topic 2255

Maintenance of wives and children - Jurisdiction - Automatic increases or indexing - A father earned over $150,000 annually - The trial judge ordered him to pay child support under the Federal Child Support Guidelines - He also ordered that the amount payable increase or decrease in each succeeding year, depending on the father's income in the preceding year - The Saskatchewan Court of Appeal deleted the provision - The court stated that "[e]ven if the judge was empowered to do this, which is doubtful, we are of the respectful opinion he ought not to have done so. As long as the father's income exceeds $150,000 annually, the amount he is bound to pay in discharge of his obliga­tion to maintain the children lies in part within the discretion of the court, acting under s. 4. Accordingly, the amount does [not] lend itself to this treatment." - See para­graph 107.

Family Law - Topic 2255

Maintenance of wives and children - Jurisdiction - Automatic increases or indexing - A trial judge ordered a father to pay child support under the Federal Child Support Guidelines - He also ordered that the amount payable increase or decrease in each succeeding year, depending on the father's income in the preceding year - The Saskatchewan Court of Appeal deleted the provision because, inter alia, "... the ability of either party to apply for variation in the future [should not] be fettered in this way. The Guidelines allow for annual disclosure of the income tax returns of each of the spouses, and it would have [been] better, in our judgment, had the judge left the parties free in the future to apply for vari­ation in keeping with the provisions of the Act and the Guidelines." - See paragraph 107.

Family Law - Topic 3264

Separation agreements, domestic contracts and marriage contracts - Enforcement - Jurisdiction - [See Family Law - Topic 4045.6 ].

Family Law - Topic 3357

Separation agreements, domestic contracts and marriage contracts - Effect of agree­ment - Maintenance of children - [See Family Law - Topic 4045.1 and Family Law - Topic 4045.6 ].

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance and awards - Jurisdiction - Automatic increases - [See both Family Law - Topic 2255 ].

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support Guidelines - General - In 1996 a couple consented to a support order for four children - In 1997, after the Federal Child Support Guidelines came into effect, the mother applied to vary the child sup­port in accordance with the Guidelines - Sections 14(c) and 17 of the Divorce Act provided that the court "may" vary a child support order that was made before the Guidelines came into effect, in accordance with the Guidelines - The Saskatchewan Court of Appeal discussed the effect of the word "may" in s. 17 - The court held that the trial judge did not err in holding that he was required, in consequence of the intro­duction of the Guidelines, to redetermine the amount in keeping with the Guidelines - See paragraphs 40 to 59.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support Guidelines - Special or extra­ordinary expenses - [See Family Law - Topic 4045.6 ].

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support Guidelines - Maintenance - Exceptions and exemptions - A trial judge varied a con­sent order and ordered a father to pay support in accord­ance with the Federal Child Support Guidelines - He rejected the father's claim under s. 17(6.2) of the Divorce Act that the Guidelines amount should be deviated from because the order or agreement con­tained special provisions respecting the spouses' financial obliga­tions that benefitted the children - He also rejected the mother's claim under s. 7 of the Guidelines for special or extra­ordinary expenses - Nevertheless, he ordered the father to purchase sporting equipment for the children in addition to making regular monthly payments, as provided in the agreement - The Saskatchewan Court of Appeal deleted the term - Having rejected the father's case under s. 17(6.2) of the Act and the mother's case under s. 7 of the Guidelines, the judge appeared to be with­out authority to add the term to the order - See para­graphs 104 to 106.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support Guidelines - Where income over $150,000 - Under s. 4(b) of the Federal Child Support Guidelines, if the payor's income was over $150,000, the court could make an order that deviated from the amount determined under s. 3 of the Guidelines, if that amount was "inap­pro­priate" - A trial judge determined whether the amount under s. 3 was inap­propriate without regard for such addi­tional amount, if any, as might have been required under s. 7 (extraordinary expenses) - The Saskatchewan Court of Appeal held that the trial judge did not err in doing so - See paragraphs 60 to 63.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support Guidelines - Where income over $150,000 - Under s. 4(b) of the Federal Child Support Guidelines, if the payor's income was over $150,000, the court could make an order that deviated from the amount determined under s. 3 of the Guidelines, if that amount was "inap­pro­priate" - The Saskatchewan Court of Appeal held that an "inappropriate" amount of money could either exceed or fall short of the purpose, which was to maintain the children of the marriage according to the measure of the obligation - The measure of the obligation lay in the condition, means and actual needs of the children and the relative means of the spouses - See paragraphs 64 to 80.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support Guidelines - Where income over $150,000 - For incomes in excess of $150,000, the amount of support payable under the tables of the Federal Child Sup­port Guidelines was composed of two amounts, namely a fixed amount in respect of the first $150,000 and a proportionate amount in respect of the excess - How­ever, s. 4(b) of the Guidelines permitted the court to make an order that deviated from that amount, if it was "inappropriate" - The Saskatchewan Court of Appeal held that the amount could be less than the sum of the fixed amount attributable to the first $150,000 and proportionate amounts spec­ified by the table, but not less than the fixed amount attributable to the first $150,000 earned by the payor spouse - See paragraph 80.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Support Guidelines - Where income over $150,000 - [See first Family Law - Topic 2255 ].

Statutes - Topic 4988

Operation and effect - Enabling Acts - Power coupled with duty - Imperative power - "May" construed as imperative - [See Family Law - Topic 4045.1 ].

Words and Phrases

Inappropriate - The Saskatchewan Court of Appeal discussed the meaning of the word "inappropriate" as found in s. 4(b) of the Federal Child Support Guidelines, SOR/97-175 - See paragraphs 64 to 80.

Cases Noticed:

Francis v. Baker (1998), 107 O.A.C. 161; 34 R.F.L.(4th) 317 (C.A.), not folld. [para. 30].

Falconbridge Mines, Re (1981), 121 D.L.R.(3d) 403 (Ont. C.A.), refd to. [para. 46].

Willick v. Willick, [1994] 3 S.C.R 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [paras. 42, 118].

Julius v. Bishop of Oxford (1880), 5 A.C. 214 (H.L.), refd to. [para. 50].

Williams v. Moody Bible Institute of Chi­cago, [1937] 2 W.W.R. 316 (Sask. C.A.), refd to. [para. 51].

Wang v. Wang (1998), 110 B.C.A.C. 302; 178 W.A.C. 302; 164 D.L.R.(4th) 146; 39 R.F.L.(4th) 426 (C.A.), refd to. [paras. 56, 123].

Garard v. Garard (1998), 111 B.C.A.C. 269; 181 W.A.C. 269; 164 D.L.R.(4th) 347; 41 R.F.L.(4th) 1 (C.A.), refd to. [paras. 56, 132].

R. v. Zeolkowski, [1989] 1 S.C.R. 1378; 95 N.R. 149; 58 Man.R.(2d) 63; [1989] 4 W.W.R. 385; 61 D.L.R.(4th) 725; 50 C.C.C.(3d) 566; 69 C.R.(3d) 281, refd to. [para. 126].

Thomson v. Canada (Minister of Agricul­ture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, refd to. [para. 127].

Johnston v. Johnston, [1998] N.S.J. No. 177, refd to. [para. 130].

Meuser v. Meuser, [1998] B.C.J. No. 2808 (C.A.), refd to. [para. 132].

Statutes Noticed:

Divorce Act, R.S.C. 1985, sect. 15.1(1), sect 15.1(3), sect. 15.1(5) [para. 43]; sect. 17(1), sect. 17(4), sect. 17(6.1), sect. 17(6.2) [para. 18].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 3(1), sect. 4 [para. 21]; sect. 14 [para. 24].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (3rd Ed. 1994), p. 163 [para. 73].

McLeod, James G., Annotation to Francis v. Baker (1998), 34 R.F.L.(4th) 317, generally [para. 66].

Counsel:

F.C. Zinkhan, for the appellant;

E.F.A. Merchant, Q.C., for the respondent.

This appeal was heard on November 4, 1998, by Tallis, Cameron and Lane, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered on April 9, 1999, and the follow­ing opinions were filed:

Cameron, J.A. (Tallis, J.A., concurring) - see paragraphs 1 to 110;

Lane, J.A. - see paragraphs 111 to 136.