Wurmlinger v. Cyca,

• Jurisdiction: Saskatchewan
• Judge: M-E. Wright, J.
• Neutral Citation: 2003 SKQB 152
• Citation: 2003 SKQB 152,(2003), 231 Sask.R. 282 (FD),[2003] SJ No 247 (QL),231 Sask R 282,(2003), 231 SaskR 282 (FD),231 SaskR 282,[2003] S.J. No 247 (QL),231 Sask.R. 282
• Date: 01 April 2003
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Wurmlinger v. Cyca (2003), 231 Sask.R. 282 (FD)

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. AP.036

Joanne Kim Wurmlinger (petitioner) v. Norbert William Cyca (respondent)

(1989 U.F.C. No. 543; 2003 SKQB 152)

Indexed As: Wurmlinger v. Cyca

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

M-E. Wright, J.

April 1, 2003.

Summary:

In 1994, the parties agreed that the father would pay child support of $450 per month. In November 2000, the father terminated all payments. The father now sought to have the arrears rescinded and to have his ongoing support redetermined in accordance with the Federal Child Support Guidelines. The mother sought a contribution from the father for certain expenses under s. 7 of the Guidelines.

The Saskatchewan Court of Queen's Bench, Family Law Division, ordered that the father pay child support of $210 per month plus his proportionate share of certain s. 7 expenses. The court refused to rescind the arrears of child support, but suspended the enforcement of arrears until October 1, 2003.

Family Law - Topic 2367

Maintenance of wives and children - Defences or bars - Delay or estoppel - A payor father terminated all child support payments in November 2000 - He now sought to have the arrears rescinded - The father relied upon the mother's delay in enforcing the arrears - The Saskatchewan Court of Queen's Bench, Family Law Division, held that delay was not a factor which favoured the father - The court stated that an 18 to 24 month period between the cessation of payment and the commencement of enforcement was not an inordinate length of time such that it could reasonably be said that the father was lulled into a sense that there was no need to pay, nor any need to attempt to vary his obligation - The mother did nothing which could lead to the conclusion that the arrears would not be enforced or were not payable - As important, the father made no inquiries of her, which was an imprudent decision in light of a previous history of enforcement of arrears - See paragraphs 3 to 4.

Family Law - Topic 2523

Maintenance of wives and children - Enforcement - Orders - Arrears of maintenance - [See Family Law - Topic 2367 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A mother sought a contribution from the father for certain expenses under s. 7 of the Federal Child Support Guidelines, including expenses related to the child's secondary education - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the presumptive amount of child support that the father paid pursuant to s. 3 of the Guidelines included a component that was attributable to ordinary secondary school expenses - The court concluded that the cost of a bus pass to travel to and from school and an annual expense of $265 to cover the cost of participation in band, including equipment rental, trips, books and uniforms, were not extraordinary expenses - See paragraph 15.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A mother sought a contribution from the father for certain expenses under s. 7 of the Federal Child Support Guidelines - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the cost of acquiring a computer for the child's use was an extraordinary expense for secondary education to which the father should contribute - The child was in Grade 10 and was maintaining an honour roll status - She required a computer for her school work and assignments and it would clearly be in her best interests to have access to a computer at home - The estimated cost was not unreasonable having regard to the combined income of the parties, which was just under $79,000 annually - See paragraph 16.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - A mother sought a contribution from the father for certain expenses under s. 7 of the Federal Child Support Guidelines - The Saskatchewan Court of Queen's Bench, Family Law Division, held that expenses for vitamins and health supplements due to a vegetarian diet and high performance athletic activity did not fall within any provision of s. 7 and was disallowed - See paragraph 14.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A father was a realtor - His net commission income was $35,266 in 2000 and $25,041 in 2001 - In 2002 it was estimated to be only $13,933 - The mother argued that an annual income of $40,000 should be imputed to the father on the basis that he was underemployed and that his standard of living appeared to exceed his means - She also suggested that he should reduce certain business expenses or, alternatively, that they should not be considered when arriving at his income for purposes of the Federal Child Support Guidelines - The Saskatchewan Court of Queen's Bench, Family Law Division, determined the father's income to be $24,746, which was the average of his net commission earned in the previous three years - It could not be said that the father was not working to capacity or that he was persisting in non-remunerative employment, given his age (53), training and experience - See paragraphs 7 to 10.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - [See Family Law - Topic 2367 ].

Cases Noticed:

Jensen v. Jensen (1990), 86 Sask.R. 257; 28 R.F.L.(3d) 350 (C.A.), refd to. [para. 2].

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

Snider v. Kennedy (1994), 118 Sask.R. 178 (Q.B.), refd to. [para. 2].

Kaatz v. Kaatz (2001), 212 Sask.R. 62 (Q.B. Fam. Div.), refd to. [para. 2].

Wolkowski v. Doroshenko (2002), 216 Sask.R. 237 (Q.B. Fam. Div.), refd to. [para. 2].

Wiome v. Wiome, [2002] S.J. No. 615 (Q.B.), refd to. [para. 2].

Cho v. Cho (2001), 150 O.A.C. 247; 56 O.R.(3d) 150 (C.A.), refd to. [para. 4].

Diebel v. Diebel (1997), 155 Sask.R. 96 (Q.B. Fam. Div.), refd to. [para. 6].

Kulyk v. Srayko (1997), 162 Sask.R. 184 (Q.B. Fam. Div.), refd to. [para. 6].

Cholodniuk v. Sears (2001), 204 Sask.R. 268 (Q.B.), dist. [para. 9].

Van Gool v. Van Gool (1998), 113 B.C.A.C. 200; 184 W.A.C. 200; 44 R.F.L.(4th) 314 (C.A.), dist. [para. 9].

Findlay v. Soutar, [2002] B.C.T.C. Uned. 111 (S.C.), dist. [para. 9].

Tynan v. Moses, [2002] B.C.T.C. 100; 25 R.F.L.(5th) 445 (S.C.), dist. [para. 9].

Counsel:

G.V.G. Vanstone, for the petitioner;

G.G. Walen, Q.C., for the respondent.

This matter was heard before M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on April 1, 2003.