Peterson v. Peterson, (2011) 384 Sask.R. 22 (FD)

• Judge: Sandomirsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 05, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 384 Sask.R. 22 (FD);2011 SKQB 365

Peterson v. Peterson (2011), 384 Sask.R. 22 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. NO.002

Gwendolyn Anne Peterson (petitioner) v. Christie Arnie Peterson (respondent)

(1998 DIV. No. 527; 2011 SKQB 365)

Indexed As: Peterson v. Peterson

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Sandomirsky, J.

October 5, 2011.

Summary:

On August 5, 1999, the respondent/father was ordered to pay child support for his three children. The petitioner/mother now applied to vary the order, both on a retroactive and an ongoing basis. The youngest child was 17 and attending grade 12. The two eldest were 19 and 21. Each had been pursuing post-secondary education and working part-time. All continued to live with the petitioner. The parties' incomes had almost doubled.

The Saskatchewan Court of Queen's Bench, Family Law Division, found that the threshold of "material change" had been met, and varied the child support order respecting each of the three children.

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds (incl. changed circumstances) - [See Family Law - Topic 4045.8 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - In December, 2008, the petitioner/mother applied to vary the child support order granted in 1999 - The three children were currently 17, 19 and 21 - The petitioner claimed for retroactive child support to be calculated upon the actual income of the respondent/father - The sum sought was the accumulated shortfall for the years 2006 to August 31, 2009 ($19,466) - The Saskatchewan Court of Queen's Bench, Family Law Division, held that a recalculation claiming $19,466, in addition to ongoing child support, would impose a hardship on the respondent - The court found no evidence of blameworthy conduct on the respondent's part: he paid child support as ordered; he voluntarily increased his monthly payments; he provided other assistance to the children; he made his financial disclosure as and when requested - The respondent's responsibility to make a timely disclosure of his income and to adjust child support was January 1, 2009 - In obedience to the principles and factors enunciated in D.B.S., a retroactive adjustment ($656) was warranted for the youngest child - The court addressed the different considerations relating to the two children over the age of majority and in full-time attendance in post-secondary educational institutions - See paragraphs 45 to 50.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See third and fourth Family Law - Topic 4045.11 ].

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - The petitioner/mother applied to vary the child support order granted some 12 years ago - The youngest child was 17 years old and attending grade 12 on a full-time basis - There was no dispute that the respondent/father should pay, on an ongoing basis, the required Guideline amount of child support - The child continued to be a child of the marriage under the age of majority and was therefore entitled to the presumptive benefit of s. 3(1) of the Guidelines - The respondent sought a review of child support anticipating that the child would graduate from high school the next summer - The Saskatchewan Court of Queen's Bench, Family Law Division, held that a review was inappropriate - The proper procedure was to invoke an application to vary if a material change of circumstances related to the child could be demonstrated next summer - See paragraphs 6 to 8.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child Support Guidelines (incl. non-divorce cases) - Special or extraordinary expenses (incl. calculation of amount) - [See second Family Law - Topic 4045.11 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Changed circumstances - Twelve years had passed since the child support order under review - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the threshold of "material change" had been met - "The mere passage of time is not of itself a material change of circumstance ... [I]t is the change of facts relevant to children's needs and parents' means or financial abilities that have their geneses in the passage of time which would be relevant, not time passing of itself" - The eldest of the children were 19 and 21 years of age - Each had been pursuing post-secondary education - They both continued to live with their mother, and both worked part-time while attending school - The parents' incomes had almost doubled in the past 12 years though the cost of living had risen proportionately - The needs of the children were greater "as their lifestyles change with advancing age" - A fresh examination of all relevant facts was merited including evidence of change - See paragraphs 3 to 5.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child Support Guidelines (incl. non-divorce cases) - Children over the age of majority - In the context of an application to vary child support, the Saskatchewan Court of Queen's Bench, Family Law Division, revisited the state of child support law for children over the age of majority and considered whether a court should engage in a contextual analysis of the individual case before it - "By engaging in a contextual analysis, the scope of the inquiry extends beyond a needs and means analysis, the condition of the child and expands the scope of the analysis under the language 'other circumstances'. The focus on the student's needs and parents' means gives way to a more expansive analysis mandated by s. 3(2)(b) of the Guidelines." - See paragraph 60.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child Support Guidelines (incl. non-divorce cases) - Children over the age of majority - The petitioner/mother applied to vary the child support order - The application put the respondent/father on notice that the petitioner was seeking retroactive child support going back two years to January 1, 2007, "so as to bring the Respondent's actual payments in line with the payments he ought to have made under the terms of the Child Support guidelines and in accordance with his actual income for the years, 2005, 2006 and 2007" - Two of the children were over the age of majority and had been pursuing post-secondary education - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the Guideline or table amount contemplated by s. 3(2)(a) of the Guidelines, combined with a s. 7 analysis was "inappropriate" given the children's own considerable incomes in the years in question - Thus, the analysis proceeded under s. 3(2)(b) of the Guidelines, namely, consideration of the condition, means, needs and other circumstances of each child and the financial ability of each parent to contribute - See paragraph 67.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child Support Guidelines (incl. non-divorce cases) - Children over the age of majority - In December, 2008, the petitioner/mother applied to vary the child support order granted in 1999 - Kayla (21) had graduated from high school in June, 2008 - From July 1, 2008, until August 30, 2009, she worked full-time - Kayla returned to school in September, 2009, and successfully completed a two-year program, while earning income from part-time employment - Kayla currently worked on a full-time basis at a local car wash - The petitioner claimed a pro-rated retroactive order requiring the respondent/father to reimburse her for the educational costs she paid ($3,097.93), being the shortfall after Kayla's contributions from earnings and student loans - The respondent argued that there were no unmet needs for Kayla and as such, no support was payable - The Saskatchewan Court of Queen's Bench, Family Law Division, disagreed - During the period, from July 1, 2008, until August 30, 2009, Kayla's status as a child of the marriage was suspended - No child support was therefore payable by the respondent for that period - However, Kayla regained her status as a child of the marriage upon her return to full-time post-secondary schooling in a timely fashion - The court held that the amount required of the respondent fell to be determined under s. 3(2)(b) of the Guidelines - The petitioner's request for a retroactive order was meritorious and reasonable - Thus, the respondent was required to pay his proportionate share of the $3,097.93 - See paragraph 81.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child Support Guidelines (incl. non-divorce cases) - Children over the age of majority - The petitioner/mother applied to vary, on a retroactive and ongoing basis, the child support order granted some 12 years ago - Sarah (19) was pursuing post-secondary education toward acceptance into nursing school - The petitioner sought an order requiring the respondent/father to reimburse her for his proportionate share of the education expenses she paid ($5,225.73), being the shortfall after Sarah's contributions from earnings and student loan income - The respondent argued that Sarah's combined income was ample to meet her needs without being financially dependant upon her parents - The Saskatchewan Court of Queen's Bench, Family Law Division, disagreed - The amount required of the respondent fell to be determined under s. 3(2)(b) of the Guidelines - The petitioner's request was meritorious and reasonable - Thus, the respondent was required to pay his proportionate share of the $5,225.73 and of the shortfall on current and ongoing educational expenses, as well as $265 per month toward other expenses, and a contribution towards household expenses, concluding at the end of April, 2012 - See paragraphs 82 to 88.

Cases Noticed:

Wiegers v. Gray (2008), 307 Sask.R. 117; 417 W.A.C. 117; 2008 SKCA 7, refd to. [para. 3].

Wiegers v. Wiegers - see Wiegers v. Gray.

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. 5].

Gordon v. Goertz (1994), 123 Sask.R. 144; 74 W.A.C. 144; 3 R.F.L.(4th) 84 (C.A.), refd to. [para. 5].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 8].

Geran v. Geran (2011), 371 Sask.R. 233; 518 W.A.C. 233; 2011 SKCA 55, consd. [para. 11].

Zaba v. Bradley (1996), 137 Sask.R. 295; 107 W.A.C. 295; 18 R.F.L.(4th) 1 (C.A.), refd to. [para. 30].

S.A.F. v. R.L.G., [2005] Sask.R. Uned. 199; 22 R.F.L.(6th) 371; 2005 SKQB 519 (Fam. Div.), refd to. [para. 30].

D.J.F. v. E.K. (2005), 264 Sask.R. 119; 2005 SKQB 131 (Fam. Div.), refd to. [para. 30].

Hamel v. Hamel (2001), 213 Sask.R. 197; 260 W.A.C. 197; 2001 SKCA 115, refd to. [para. 32].

Foster v. Amos (2010), 365 Sask.R. 133; 2010 SKQB 409 (Fam. Div.), refd to. [para. 32].

Hagen v. Rankin (2002), 213 Sask.R. 257; 260 W.A.C. 257; 2002 SKCA 13, refd to. [para. 32].

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. 39].

Henry v. Henry - see D.B.S. v. S.R.G.

Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.

K.B.A.S. v. G.E.S. (2006), 286 Sask.R. 16; 2006 SKQB 439 (Fam. Div.), refd to. [para. 40].

Tochor v. Kerr (2011), 368 Sask.R. 187; 2011 SKQB 42, consd. [para. 44].

Rebenchuk v. Rebenchuk (2007), 212 Man.R.(2d) 261; 389 W.A.C. 261; 2007 MBCA 22, refd to. [para. 75].

Boyachek v. Fleming (2011), 366 Sask.R. 163; 506 W.A.C. 163; 2011 SKCA 11, refd to. [para. 77].

Counsel:

Deryk J. Kendall, for the petitioner;

Brent D. Barilla, for the respondent.

This application to vary was heard before Sandomirsky, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment, dated October 5, 2011.