S.M.K. v. G.A.K., 2015 SKQB 178

• Judge: Goebel, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 19, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 178;(2015), 478 Sask.R. 109 (QB)

S.M.K. v. G.A.K. (2015), 478 Sask.R. 109 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.055

S.M.K. (petitioner) v. G.A.K. (respondent)

(2004 DIV No. 267; 2015 SKQB 178)

Indexed As: S.M.K. v. G.A.K.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Goebel, J.

June 19, 2015.

Summary:

A 2006 child support judgment, which incorporated the terms of a 1998 consent order, required the father to pay child support of $170/month for the two children of the marriage (see (2006), 283 Sask.R. 82). The father applied to vary child support and sought an order rescinding and/or cancelling any arrears. The mother agreed that there were grounds to vary child support given that the children were no longer "children of the marriage" as defined in the Divorce Act, but opposed any cancellation of arrears.

The Saskatchewan Court of Queen's Bench dismissed the application.

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 2523

Maintenance of spouses and children - Enforcement - Orders - Arrears of maintenance - [See all Family Law - Topic 4050 ].

Family Law - Topic 4006.1

Divorce - Corollary relief - Maintenance awards - To children - Effect of agreements - [See first Family Law - Topic 4050 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See third Family Law - Topic 4050 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - A father was required to pay child support of $170/month for the parties' two children pursuant to a 2006 order - He applied for an order cancelling any arrears, which the mother had calculated based on the non-payment of support for periods beginning in 2010 - The father argued that arrears should not have accumulated during those months because the mother agreed in 2008 and 2009 that he would provide vehicles for the children and pay hockey expenses in lieu of support - The Saskatchewan Court of Queen's Bench dismissed the application - The onus was on the father to satisfy the court that the parties agreed to "reasonable" arrangements which altered the support order and would render its enforcement inequitable - In determining whether the agreement was "reasonable", the court had to consider not just the order itself, but the objectives of child support generally and the amount that would have been payable under the Guidelines - The father did not meet this onus - First, the evidence was controverted and established, at best, that there might have been an agreement to waive support payable in 2008 and 2009 - The arrears which were being enforced accumulated after that date - Second, even if there was such an arrangement after 2009, it was not reasonable - The agreement did not provide any direct or indirect financial benefit to the children approximating what they would have been entitled to under the Guidelines - See paragraphs 8 to 17.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - A father was required to pay child support of $170/month for the parties' two children pursuant to a 2006 order - He applied for an order cancelling any arrears, alleging that he paid money directly to the children for two years - The Saskatchewan Court of Queen's Bench dismissed the application - It appeared that the amounts paid from the father to the children were voluntary gifts or allowances as arranged directly between the father and the children - Absent clear evidence of an agreement by the mother to receive child support in this manner, such payments could have no legal impact upon the father's obligation to comply with a clear and unequivocal order - See paragraphs 18 and 19.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - A 2006 child support judgment, which incorporated the terms of a 1998 consent order, required the father to pay child support of $170/month for the two children of the marriage (J. and B.) - J. turned 18 in May 2012 - B. was removed from his high school classes in January 2014, turned 18 in March 2014, returned to school in the fall of 2014, and was removed again in November 2014 - The father applied for an order cancelling the arrears that had accumulated since the children turned 18 - The Saskatchewan Court of Queen's Bench held that B. remained a "child of the marriage" until November 2014 and that support of $170/month was payable until that date - Although the 2006 judgment fixed support for two children, it was originally determined in 1998 and was never varied despite significant increases in the father's income - Given the modest amount payable compared to the table amount that the father would have been paying for one child based on an income of $55,000 ($453/month), the court was not inclined to reduce the amount provided for in the judgment for the purpose of determining arrears - See paragraphs 22 to 25.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - A father was required to pay child support of $170/month for the parties' two children pursuant to a 2006 order - He applied for an order cancelling any arrears - The Saskatchewan Court of Queen's Bench dismissed the application - The father had not met the onus of demonstrating on a balance of probabilities that he could not pay the arrears - His income information indicated an annual income in the range of $56,000 - His financial statement demonstrated that he would be able to make reasonable payments without altering his present lifestyle - While there was some delay by the mother in enforcing the judgment, it was not extensive - Arrears began to accumulate in January 2010 and the father was contacted by the Maintenance Enforcement Office in November 2011 - It was after this initial contact that most of the arrears accumulated - The father had not demonstrated that he was materially prejudiced by the delay - Arrears were calculated at $6,300 and were payable at the rate of $262.50/month - See paragraphs 27 to 32.

Counsel:

Barbara A. Degenstien, for the petitioner;

G.A.K., on his own behalf.

This application was heard before Goebel, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on June 19, 2015.