K.J.S. v. B.C.K., (2007) 294 Sask.R. 184 (FD)

• Judge: M-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 10, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 294 Sask.R. 184 (FD);2007 SKQB 122

K.J.S. v. B.C.K. (2007), 294 Sask.R. 184 (FD)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MY.024

K.J.S. (petitioner) v. B.C.K. (respondent)

(2005 FLD No. 54; 2007 SKQB 122)

Indexed As: K.J.S. v. B.C.K.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

M-E. Wright, J.

April 10, 2007.

Summary:

Parents of a young child separated. At issue on the mother's application was custody and the parenting arrangement, the father's level of income for child support purposes and the mother's request for an order retroactively increasing the father's child support obligation.

The Saskatchewan Court of Queen's Bench, Family Law Division, ordered joint custody of the child with equal parenting time. The court determined the father's income and retroactively determined the father's child support obligation to 2003.

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 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - A mother and father in North Battleford separated when their child was less than one year old - The parties shared almost equal parenting for four years - The wife and child relocated temporarily to another city - When they returned to North Battleford, a consent interim order determined that the child's primary residence was with the mother - The father had access for four days every second week - Both parents had new relationships and second children - The mother sought sole custody with the father's access restricted to every second weekend, asserting that the child needed the security of one home - The father sought joint custody and equal parenting time - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered joint custody with equal parenting time - The child had adjusted well from an early age to spending extended periods of time with each parent, an arrangement that was altered only by the wife's temporary move - Maximum contact with each parent provided an opportunity for the child to maintain meaningful and significant relationships with both parents and with each younger sibling - See paragraphs 22 to 37.

Family Law - Topic 2072

Custody and access - Joint custody - When available - [See Family Law - Topic 1900 ].

Family Law - Topic 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - A mother and father separated in 2000 - Under a 2001 interim order, the father paid child support based on an income of $26,000 annually - His 2002 income was $36,574 - In 2003, the father worked temporarily in Alberta, earning $61,000 - In 2004, the mother sought current financial information - In June 2005, the father was ordered to make financial disclosure - Full financial disclosure was not complete until 2006 - The father's earnings were $21,000 in 2004, increasing to $38,000 in 2005 and 2006 - The mother sought a retroactive increase in child support - The Saskatchewan Court of Queen's Bench, Family Law Division, retroactively determined the father's child support obligation to 2003 - The father avoided complying with his legal obligation to provide current financial information - Although he would not have had effective notice of the mother's intention to seek increased child support until her 2004 request for current financial information, as of 2003, when his income had increased, the father could no longer reasonably rely on the 2001 child support order - Due to his blameworthy conduct, an order retroactive to 2003 was appropriate - See paragraphs 47 to 62.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother and father separated in 2000 - The father worked as a welder in a family business, earning an annual income of $38,000 - For part of 2003, the father worked for a U.S. company in Alberta - His income for the 2003 taxation year was $61,000 - He was laid off when the contract was completed - The mother asserted that an income of $61,000 should be imputed to the father because he was capable of earning that in the Alberta oil patch - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the father's annual income for child support purposes was $38,000 - The father was not intentionally under-employed within the meaning of s. 19(1)(a) of the Federal Child Support Guidelines - Section 19(1)(a) did not apply where a payor, through no fault of his or her own, was laid off, terminated or given reduced hours of work - However, even if his decision to return to Saskatchewan to work was "intentional", it was a reasonable exception required by the needs of his children - See paragraphs 38 to 46.

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 24].

C.G.H. v. D.M.H. (2002), 222 Sask.R. 141; 2002 SKQB 319 (Fam. Div.), refd to. [para. 26].

V.G.B. v. E.H., [2004] 1 W.W.R. 502; 250 Sask.R. 272; 2004 SKQB 280 (Fam. Div.), refd to. [para. 41].

Drygala v. Pauli (2002), 164 O.A.C. 241; 29 R.F.L.(5th) 293 (C.A.), refd to. [para. 43].

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. 51].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 19(1)(a) [para. 21].

Counsel:

H.A. Cotton, for the petitioner;

L.G. Greenhorn, for the respondent.

This application was heard by M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on April 10, 2007.