Focus On

MAINTENANCE AND SUPPORT - Child support - Calculation or attribution of income - Financial disclosure - Considerations - Dependent children - Child's age - Child support guidelines - Presumptive rule

Thursday, October 12, 2017 @ 8:28 AM  


Lexis Advance® Quicklaw®
Appeal by the father from a special hearing child support judgment. The parties married in 1995, separated in 2004 and divorced in 2006. They had three children. The oldest daughter was the mother's child from a prior relationship and was adopted by the father. She had severe permanent disabilities. The youngest two children were the father's biological children. All three children initially resided with the mother post-separation. The father's financial disclosure was a matter of contention before and after trial. In 2009, the father arbitrarily reduced his support payments on the basis he spent more than 40 per cent of his time with the youngest two children. In 2011, the father ceased support of the oldest daughter upon her obtaining age 18. In 2013, a special hearing resulted in an order recalculating the father's support obligation with the result he owed a further $45,811 in basic support, and approximately $11,000 in additional s. 7 expenses. The Chambers judge determined the oldest child regained the status of a child for support purposes between September 2012 and June 2014. Support was ordered on a set-off basis for the youngest children in the sum of $2,700 per month. The father appealed.

HELD: Appeal allowed in part. The chambers judge did not err in determining the oldest child remained a child of the marriage during the period at issue, but erred in calculating support for her on the basis of s. 3(2)(a) of the Federal Child Support Guidelines (Guidelines). Support was adjusted accordingly. In addition, the chambers judge erred in principle in the approach to calculating support for the two children in shared custody pursuant to s. 9 of the Guidelines by inappropriately importing hardship analysis in the absence of the requisite extraordinary circumstances, and in inappropriately requiring equal standards of living between the parties' households. The issue of quantifying support on the basis of shared custody was remitted for a rehearing. No error arose from use of a capital gain to impute income to the father. The appeal was dismissed in all other respects.

Kuski v. Wetsch, [2017] S.J. No. 411, Saskatchewan Court of Appeal, J.G. Lane, R.K. Ottenbreit and N.W. Caldwell JJ.A., September 14, 2017. Digest No. TLD-October92017007