Kinasewich v. Kinasewich, (2001) 301 A.R. 244 (QB)

• Judge: Perras, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 16, 2001
• Citations: (2001), 301 A.R. 244 (QB);2001 ABQB 759

Kinasewich v. Kinasewich (2001), 301 A.R. 244 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. OC.079

Sidney Douglas Kinasewich (applicant) v. Sandra Gail Kinasewich (respondent)

(Action No. 4803 76242; 2001 ABQB 759)

Indexed As: Kinasewich v. Kinasewich

Alberta Court of Queen's Bench

Judicial District of Edmonton

Perras, J.

September 6, 2001.

Summary:

A father applied to retroactively vary a child support order that was granted on March 2, 2000 (see 260 A.R. 181). The variation was sought by the father on the grounds that: (1) two of the three children were no longer children of the marriage: (2) there had been a reduction in his income which amounted to a change in circumstances; and (3) he challenged the expenses claimed by the mother under s. 7 of the Child Support Guidelines.

The Alberta Court of Queen's Bench found that there had not been a change in circumstances and the order would not be varied retroactively. The existing order would be adjusted accordingly after the father's income was appropriately determined for the purposes of the Guidelines and taking into account changes made to the s. 7 expenses.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - A father applied to retroactively vary a child support order that was granted on March 2, 2000 - The variation was sought on the basis of a reduction in his income - The Alberta Court of Queen's Bench held that the reduction in income was not substantial nor was it due to some special circumstance and it did not constitute a change in circumstances - The father had not established a present or future inability to pay - Therefore, there was no basis upon which child support payments should be retroactively varied - In any event, there was authority in Alberta that retroactive orders should only be to the date of the initial application - While the father had sought to make the order retroactive to January 2000, the notice of motion was not filed until June 4, 2001, and the order would only be retroactive from that date - After the parties had determined the father's income, support payments would be adjusted according to the Child Support Guidelines - See paragraphs 28 to 33.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - A son turned 18 on January 8, 2000, and was still enroled in school until he dropped out in December 2000 - The Alberta Court of Queen's Bench held that despite the son's absenteeism and not passing any courses, he was still a child of the marriage during that time - However, as he was now employed and working full time, as of December 2000, he was no longer a child of the marriage - See paragraph 44.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - Awards - To children and children defined - The Alberta Court of Queen's Bench held that a son would still be a child of the marriage even after he turned 18 years old as long as he was pursuing a professional hockey career - As for how long child support would continue, the court left it to the parties to agree or reapply to the court - See paragraph 47.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Awards - Variation of periodic payments or lump sum award - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines - Special or extraordinary expenses - The Alberta Court of Queen's Bench held that golf was not a reasonable expense under s. 7 of the Child Support Guidelines for the teenaged boys in this case - Golf was a luxury for the boys having regard to the reality of the high costs of golf memberships and the means of each parent - See paragraphs 37 to 39.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - A father was a self-employed businessman - The mother disputed the father's stated income on the basis that business expenses that were deducted from the income were not reasonable and that payments made to the father's common law spouse were not legitimate wages - The Alberta Court of Queen's Bench held that certain company expenses which had a significant personal benefit component should be added back to the father's income and that there was no reason why the amounts should be grossed up prior to doing so - Payments to the father's common law spouse were to be added back as income once the industry standard of her wages had been determined - One half of other benefits received by the father's common law spouse were to be added back to his income - See paragraphs 11 to 27.

Cases Noticed:

Hauger v. Hauger (2000), 268 A.R. 25 (Q.B.), refd to. [para. 14].

Millar v. Millar, [1998] B.C.T.C. Uned. F17 (S.C.), refd to. [para. 14].

Lavoie v. Wills (2000), 280 A.R. 16; 13 R.F.L.(5th) 93 (Q.B.), refd to. [para. 14].

Adams v. Adams, [2000] A.R. Uned. 107; 5 R.F.L.(5th) 9 (Q.B.), refd to. [para. 14].

Wilcox v. Snow (1999), 181 N.S.R.(2d) 92; 560 A.P.R. 92; 3 R.F.L.(5th) 171 (C.A.), refd to. [para. 14].

Mills v. Mills (2000), 265 A.R. 37 (Q.B.), refd to. [para. 22].

Dahlgren v. Hodgson (1998), 228 A.R. 332; 188 W.A.C. 332 (C.A.), refd to. [para. 22].

Sarafinchin v. Sarafinchin, [2000] O.T.C. Uned. 754; 189 D.L.R.(4th) 741 (Sup. Ct.), refd to. [para. 24].

Holtby v. Holtby (1997), 42 O.T.C. 101; 30 R.F.L.(4th) 70 (Gen. Div.), refd to. [para. 24].

Haisman v. Haisman (1994), 157 A.R. 47; 77 W.A.C. 47; 22 Alta. L.R.(3d) 56 (C.A.), refd to. [para. 28].

Ennis v. Ennis (2000), 281 A.R. 161; 248 W.A.C. 161; 77 Alta. L.R.(3d) 289 (C.A.), refd to. [para. 32].

Gamache v. Gamache (1999), 241 A.R. 388 (Q.B.), refd to. [para. 32].

MacMinn v. MacMinn (1995), 174 A.R. 261; 102 W.A.C. 261 (C.A.), refd to. [para. 32].

Authors and Works Noticed:

MacDonald, J.C., and Wilton, A.C., Child Support Guidelines Law and Practice (1998 Looseleaf), p. 7.6 [para. 25].

Counsel:

Brenda L. Stothert-Kennedy (Pollock Stothert-Kennedy), for the applicant;

Carolyn L. Seitz (Duncan & Craig), for the respondent.

This application was heard on July 16, 2001, before Perras, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on September 6, 2001.