Wilson v. Wilson, (1998) 165 Sask.R. 241 (QB)

Judge:McIntyre, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:April 02, 1998
Jurisdiction:Saskatchewan
Citations:(1998), 165 Sask.R. 241 (QB);1998 CanLII 14060 (FCA);165 Sask R 241;[1998] 8 WWR 493;1998 CanLII 14060 (SK QB)
 
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Wilson v. Wilson (1998), 165 Sask.R. 241 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. AP.042

Donald Gordon Wilson (petitioner/applicant) v. June Alice Agnes Wilson (respondent/respondent)

(1989 Q.B. No. 012122)

Indexed As: Wilson v. Wilson

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McIntyre, J.

April 2, 1998.

Summary:

Following a 1994 divorce, the father was ordered to pay $650 per month child support for each of two children. The father applied to vary child support on the ground that his present income as a farmer was substantially reduced. At issue was the calculation of the father's income for the purposes of the Fed­eral Child Support Guidelines.

The Saskatchewan Court of Queen's Bench allowed the application and reduced child support to $494 per month per child.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation of income - Following a 1994 divorce, the father was ordered to pay $650 per month child sup­port for each of two children - The father applied to vary child support on the ground that his present income as a farmer was substantially reduced - He earned $47,000 in 1994 and claimed his 1997 income was $23,415.23, as stated in his draft 1997 income tax return - The father claimed that ss. 16 and 17(1)(a) of the Guidelines should be applied to fix his income as stated in the 1997 draft return - The Saskatchewan Court of Queen's Bench held that the objective was to determine the fairest indicator of a person's income - A farmer's income fluctuated - The 1997 reduction in income reflected a drought - His 1998 income may increase - The fairest way to measure the father's income was to average the most recent three years of income information available.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation of income - At issue was the amount of a self-employed farmer's income for the purposes of the Federal Child Support Guidelines - For income tax purposes, the farmer was permitted to deduct capital cost allowance - The Saskatchewan Court of Queen's Bench stated that the farmer's disposable income was considerably more than his taxable income and "the calcula­tion of expenses for the purposes of the Income Tax Act, such as capital cost al­lowance, reflect tax policy and not issues related to one's support obligations" - The court stated that where it was fair to do so, a portion of capital cost allowance claimed on property other than real property should be added back into income to more rea­sonably reflect the farmer's disposable pre-tax income - The court added back 50% of the capital cost allowance claimed on non-real property - See paragraphs 27 to 40.

Cases Noticed:

MacDonald v. Rasmussen (1997), 161 Sask.R. 103 (Q.B.), refd to. [para. 9].

Henry v. Henry, [1997] O.T.C. Uned. 655 (Gen. Div.), refd to. [para. 10].

Seiferling v. Langmaier, [1998] Sask.R. Uned. 015 (Q.B.), refd to. [para. 23].

Gorgichuk v. Gorgichuk (1997), 154 Sask.R. 273 (Fam. Div.), refd to. [para. 26].

Pyper v. Neville (1995), 132 Sask.R. 300 (Fam. Div.), refd to. [para. 26].

Doege v. Doege (1998), 162 Sask.R. 145 (Q.B.), refd to. [para. 29].

Beeler v. Beeler (1997), 161 Sask.R. 167 (Q.B.), refd to. [para. 30].

Nakonechny v. Nakonechny, [1997] Sask.R. Uned. 80 (Q.B.), refd to. [para. 31].

Jones v. Jones (1994), 122 Sask.R. 114; 4 R.F.L.(4th) 293 (Q.B.), refd to. [para. 31].

Levesque v. Levesque, [1994] 8 W.W.R. 859; 155 A.R. 26; 73 W.A.C. 26; 4 R.F.L.(4th) 375; 20 Alta. L.R.(3d) 429; 116 D.L.R.(4th) 314 (C.A.), refd to. [para. 35].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 16, sect. 17(1), sect. 19(1)(g), sect. 19(2) [para. 8].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Counsel:

M.S. Scott, for Donald Gordon Wilson;

B.J. Cram, for June Alice Agnes Wilson.

This application was heard before McIn­tyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on April 2, 1998.

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