Foster v. Amos, 2010 SKQB 409

• Judge: Ball, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 02, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKQB 409;(2010), 365 Sask.R. 133 (FD)

Foster v. Amos (2010), 365 Sask.R. 133 (FD)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. NO.032

Rhonda Lynn Foster (petitioner) v. Gregory Brent Amos (respondent)

(1994 F.L.D. No. 20; 2010 SKQB 409)

Indexed As: Foster v. Amos

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Ball, J.

November 2, 2010.

Summary:

The parties cohabited from August 1991 to November 1994. Under a January 2006 order, the father paid child support of $491 per month for the one child of the relationship, based on his 2005 income of $60,700. In July 2010, the mother applied to vary the order, retroactively to October 2009, based on the father's increased income. The mother also claimed amounts under s. 7 of the Federal Child Support Guidelines relating to the child's university expenses and the child's purchase, operation and maintenance of an automobile.

The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the mother's application, ordering the father to pay the Federal Child Support Guidelines amount of support of $803 per month, based on his 2009 income of $92,313, retroactively to January 1, 2010. The court also determined the s. 7 expenses.

Family Law - Topic 2352

Maintenance of wives and children - Maintenance of children - Termination of obligation - Voluntary withdrawal of child - The parties cohabited from August 1991 to November 1994 - Under a January 2006 order, the father paid child support of $491 per month for the one child of the relationship, based on his 2005 income of $60,700 - In July 2010, the mother applied to vary the order, based on the father's increased income - The father opposed the application on the basis, inter alia, that the child had unilaterally terminated her relationship with him - The child had reached the age of majority and was in full-time attendance at university - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the application - The child had only recently attained the age of majority, was living with her mother, was employed part-time, had achieved good marks and had reasonable and sensible career goals - The fact that the father was paying for supplementary education and contributing to an RESP for his child from another relationship was evidence that educating the child was important to him and that, if the relationship with the mother had remained intact, he would have supported the child's efforts - She remained a "child of the marriage" - While support might not be payable where a child had unilaterally terminated the relationship with the payor parent, there had to be clear and unequivocal actions taken by the child to exclude the parent from his or her life - As well, the termination must not have been justified by the parent's actions - Here, the evidence was well short of that - See paragraphs 11 to 30.

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - The parties cohabited from August 1991 to November 1994 - Under a January 2006 order, the father paid child support of $491 per month for the one child of the relationship, based on his 2005 income of $60,700 - In October 2009, the mother asked the father for updated financial information and for adjusted support - The father was unresponsive - In July 2010, the mother applied to vary the 2006 order, retroactively to October 2009 - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the mother's application, ordering the father to pay the Federal Child Support Guidelines amount of support of $803 per month, based on his 2009 income of $92,313, retroactively to January 1, 2010 - A retroactive order was equitable here, where there was no evidence that it would cause undue hardship to the father, particularly if the arrears ($3,120) were paid in a periodic manner - See paragraphs 69 and 70.

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds (incl. changed circumstances) - The parties cohabited from August 1991 to November 1994 - Under a January 2006 order, the father paid child support of $491 per month for the one child of the relationship, based on his 2005 income of $60,700 - In July 2010, the mother applied to vary the order, based on the father's increased income - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the application - There had been a material change in circumstances since the 2006 order - The child had reached the age of majority and was in full-time attendance at university - The incomes of the parents were materially different from what they were in 2006 - See paragraphs 9 and 10.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The parties' adult child was a full-time university student, who remained a "child of the marriage" - The mother claimed amounts under s. 7 of the Federal Child Support Guidelines relating to the child's university expenses and the child's purchase, operation and maintenance of an automobile - The child had purchased the automobile with the help of a loan from her grandfather - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the mother's claim regarding projected loan payments - These were not a s. 7 expense, but were, rather, expenditures for the acquisition of a capital asset - The costs of operating and maintaining the automobile were not strictly "expenses for post-secondary education" under s. 7(e) of the Guidelines - These expenses were only recoverable as s. 7 expenses to the extent that they were necessary, reasonable and in the best interests of the child - The court accepted a total of $600 per year in automobile insurance, operating and maintenance costs as recoverable s. 7 expenses - This combined with the child's annual university expenses of $6,900 led to a determination of total s. 7 expenses of $7,500 - The child earned approximately $10,000 annually after tax from part-time employment - It was appropriate for the child to contribute just under half of that ($4,500) to the costs of her education - This left $3,000 to be prorated between the parties on the basis of their respective incomes - An RESP that the mother had established and contributed to post-separation was not included in the determination of the father's child support obligation and did not affect the amount payable by the father under s. 7 - However, the parties were to share proportionately in any tax benefit received due to the child's tuition, education and textbook tax credit - See paragraphs 48 to 68.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - The parties cohabited from August 1991 to November 1994 - Under a January 2006 order, the father paid child support of $491 per month for the one child of the relationship, based on his 2005 income of $60,700 - In July 2010, the mother applied to vary the order, based on the father's increased income - The father opposed the application on the basis, inter alia, that paying the Federal Child Support Guidelines amount of support would cause him undue hardship since he was also required to pay child support for his child from another relationship - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the application - The father's adjusted annual income for 2009 was $92,313 - Support payable on that amount was $803 per month - The father paid a total of $452.50 per month in child support and other expenses for his other child - Further, he voluntarily paid an additional $2,400 per year for supplementary education for that child and contributed $2,000 per year to an RESP - The father did not have an unusually high level of debts - He made annual contributions to a registered pension plan and to an RRSP - Payment of the Guidelines amount of support would not cause him to suffer undue hardship - See paragraphs 31 to 47.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - [See Family Law - Topic 2384 ].

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - [See Family Law - Topic 2352 ].

Cases Noticed:

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 12].

Brooke v. Hertz (2008), 327 Sask.R. 162; 2008 SKQB 461 (Fam. Div.), refd to. [para. 13].

Radford v. Radford (2010), 361 Sask.R. 9; 2010 SKQB 157 (Fam. Div.), refd to. [para. 13].

Zaba v. Bradley (1996), 137 Sask.R. 295; 107 W.A.C. 295; 18 R.F.L.(4th) 1 (C.A.), refd to. [para. 13].

Athwal v. Athwal, [2007] B.C.T.C. Uned. B47; 2007 BCSC 221, refd to. [para. 20].

Olszewski v. Willick (2009), 343 Sask.R. 247; 472 W.A.C. 247; 2009 SKCA 133, refd to. [para. 20].

Hamel v. Hamel (2001), 213 Sask.R. 197; 260 W.A.C. 197; 2001 SKCA 115, refd to. [para. 20].

Geran v. Geran (2008), 325 Sask.R. 89; 2008 SKQB 460, refd to. [para. 33].

Hanmore v. Hanmore (2000), 255 A.R. 163; 220 W.A.C. 163; 2000 ABCA 57, refd to. [para. 40].

Bowman v. Ward (2005), 270 Sask.R. 297; 2005 SKQB 400 (Fam. Div.), refd to. [para. 40].

Amos v. Fischer, [2006] Sask.R. Uned. 10; 2006 SKQB 53 (Fam. Div.), refd to. [para. 41].

Jackson v. Holloway (1997), 161 Sask.R. 31; 35 R.F.L.(4th) 272 (Q.B.), refd to. [para. 44].

Messier v. Baines (1997), 161 Sask.R. 132 (Q.B. Fam. Div.), refd to. [para. 46].

Hiemstra v. Hiemstra, [2005] A.R. Uned. 253; 44 Alta. L.R.(4th) 315; 2005 ABQB 192, refd to. [para. 55].

Hannah v. Warner (2008), 322 Sask.R. 137; 2008 SKQB 372 (Fam. Div.), refd to. [para. 59].

Woodworth v. Woodworth, [2008] B.C.T.C. Uned. 935; 2008 BCSC 1316, refd to. [para. 62].

Desjardins v. Bart, [2006] O.J. No. 3657 (C.A.), refd to. [para. 62].

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. 69].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada 2009 (2009), generally [para. 57].

Counsel:

Nicole L. Sarauer, for the petitioner;

Timothy W. Stodalka, for the respondent.

This application was heard by Ball, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following fiat on November 2, 2010.