Tessman v. Tessman, 2012 SKQB 11

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 10, 2012
• Jurisdiction: Saskatchewan
• Citations: 2012 SKQB 11;(2012), 389 Sask.R. 55 (FD)

Tessman v. Tessman (2012), 389 Sask.R. 55 (FD)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. JA.023

Brenda Lyn Tessman (petitioner) v. Darren Jacob Tessman (Ford) (respondent)

(2006 DIV No. 004902; 2012 SKQB 11)

Indexed As: Tessman v. Tessman

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Moose Jaw

Dawson, J.

January 10, 2012.

Summary:

A father applied for confirmation of a provisional order made by the Alberta Court of Queen's Bench, varying his ongoing child support obligation and rescinding arrears of child support.

The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses separated in 2004 - They had two children - A December 2007 Saskatchewan order set monthly child support at $866 based on imputed annual income of $60,000 - In October 2008, the father brought an application in Alberta to vary the December 2007 child support order - The Alberta Court of Queen's Bench found the father to have a gross annual income of $14,400 and varied the child support to $245 per month - The father applied for confirmation of the Alberta order - The Saskatchewan Court of Queen's Bench, Family Law Division dismissed the application - The court found that the father's employment choices were not reasonable and that he was underemployed - He was in his early forties and was healthy - He had not produced any evidence to explain why he continued to pursue employment that had provided him with remuneration of less that $5,000 per year, nor had he produced any evidence to suggest that he was not capable of obtaining other employment or that he had attempted to obtain any other type of employment - The courts had considered a variety of factors in attempting to determine an individual's capacity to earn income - They had considered factors such as job, history, age, education, skills, health and standard of living when the parties were married and available job opportunities - In the circumstances, the court found it appropriate to impute income to the father of $20,000 which was close to minimum wage in Alberta - The court ordered the father to pay monthly child support of $300 for two children - See paragraphs 11 to 27.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - The Saskatchewan Court of Queen's Bench, Family Law Division held that the factors to be considered with respect to cancellation of arrears of maintenance were: "1. The nature of the maintenance order sought to be varied; 2. The ongoing financial capacity of the payor; 3. The ongoing needs of the child; 4. Any unexplained delay in enforcing arrears; 5. Any explanation as to the delay in seeking relief from the arrears; 6. Whether enforcement of payment of arrears would cause hardship to the payor; and 7. The payor's ability to pay the arrears at the time they were incurred." - See paragraph 31.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - Spouses separated in 2004 - They had two children - A December 2007 Saskatchewan order set monthly child support at $866 based on imputed annual income of $60,000 - In October 2008, the father brought an application in Alberta to vary the December 2007 child support order - He sought cancellation of accumulated arrears of maintenance - The Alberta Court of Queen's Bench rescinded all arrears of child support - The father applied for confirmation of the Alberta order - The Saskatchewan Court of Queen's Bench, Family Law Division dismissed the application - There was no delay on the part of the mother in enforcing the arrears - The arrears had been registered with the enforcement agency and that agency had undertaken to enforce the arrears, including limiting the father's ability to drive -The father was now 41 or 42 years of age - The court determined that he was and had been intentionally under-employed or unemployed - He did not indicate what assets he had or whether he had an ability to borrow - While he referred to a previous health problem, he did not elaborate on it and nor did he suggest that he had any health issues which precluded him from obtaining any type of employment that could offer him a sustained and a reasonable income that would support himself and his children - The father had not met the onus of establishing, on a balance of probabilities, that he could not at present and will not in the future be able to pay the arrears - The court ordered payment of the arrears in monthly installments of $100 - See paragraphs 29 to 36.

Cases Noticed:

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 230 W.A.C. 116; 2000 MBCA 80, refd to. [para. 21].

Strand v. Strand (1999), 246 A.R. 70; 50 R.F.L.(4th) 174; 1999 ABQB 358, refd to. [para. 21].

Martel v. Martel (2000), 193 Sask.R. 225; 2000 SKQB 227 (Fam. Div.), refd to. [para. 21].

Jewell v. Dixon, [2005] Sask.R. Uned. 99; 2005 SKQB 204 (Fam. Div.), refd to. [para. 30].

Jensen v. Jensen (1990), 86 Sask.R. 257; 28 R.F.L.(3d) 350 (C.A.), refd to. [para. 30].

Aime v. Aime (No. 2) (1990), 65 Man.R.(2d) 195; 27 R.F.L.(3d) 1 (C.A.), refd to. [para. 30].

Snider v. Kennedy (1994), 118 Sask.R. 178 (Q.B.), refd to. [para. 30].

Kaatz v. Kaatz (2001), 212 Sask.R. 62; 2001 SKQB 480 (Fam. Div.), refd to. [para. 30].

Wolkowski v. Doroshenko (2002), 216 Sask.R. 237; 2002 SKQB 114 (Fam. Div.), refd to. [para. 30].

Wiome v. Wiome, 2002 SKQB 402 (Fam. Div.), refd to. [para. 30].

Wurmlinger v. Cyca (2003), 231 Sask.R. 282; 2003 SKQB 152 (Fam. Div.), refd to. [para. 30].

Oxman v. Oxman, [2004] Sask.R. Uned. 33; 2004 SKQB 93 (Fam. Div.), refd to. [para. 30].

Counsel:

Brenda Lyn Thompson (Tessman), for herself;

No one appearing for Darren Jacob Tessman (Ford).

This application was heard by Dawson, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Moose Jaw, who delivered the following judgment on January 10, 2012.