Aalbers v. Aalbers, (2015) 472 Sask.R. 195 (CA)

JudgeCaldwell, Herauf and Whitmore, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateDecember 09, 2015
JurisdictionSaskatchewan
Citations(2015), 472 Sask.R. 195 (CA);2016 SKCA 1

Aalbers v. Aalbers (2015), 472 Sask.R. 195 (CA);

    658 W.A.C. 195

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. JA.001

Johnny William Aalbers (appellant/respondent) v. Jacqueline Nicole Aalbers (respondent/petitioner)

(CACV2649; 2016 SKCA 1)

Indexed As: Aalbers v. Aalbers

Saskatchewan Court of Appeal

Caldwell, Herauf and Whitmore, JJ.A.

December 9, 2015.

Summary:

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2014), 461 Sask.R. 118, dismissed Mr. Aalbers' application to vary his child and spousal support obligations. He appealed and applied to adduce fresh evidence that a child of the marriage had since left the mother's care and was now living with him.

The Saskatchewan Court of Appeal dismissed the application to adduce fresh evidence, and declined to hear the appeal as Mr. Aalbers' support obligations were in arrears in the approximate amount of $160,000. The appeal was adjourned sine die, until all arrears and court-ordered costs were paid in full.

Family Law - Topic 2427

Maintenance of spouses and children - Appeals - Hearing of appeal - Bars - [See Family Law - Topic 4170 ].

Family Law - Topic 4170

Divorce - Practice - Appeals - Duty of appellate court - Discretionary orders - The appellant appealed the dismissal of his application to vary his child and spousal support obligations - The Saskatchewan Court of Appeal exercised its discretion and declined to hear the appeal as the appellant's support obligations had not been honoured since 2010, and were in arrears in the approximate amount of $160,000 - The appellant alleged he could not afford to make those payments - Yet, he had paid approximately $500,000 in legal fees in the ongoing disputes with his former wife - "This must be one of the most flagrant cases of disregard for court orders for child and spousal support ... . By his actions, [the appellant] has impeded the course of justice in this case. ... This Court will not hear this matter until all arrears of child and spousal support and any court-ordered costs against [the appellant] have been paid in full." - In the interim, the matter was adjourned sine die - See paragraphs 14 to 26.

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - The appellant appealed the dismissal of his application to vary his child and spousal support obligations - He applied to adduce fresh evidence that a child of the marriage had since left the respondent's care and was now living with him - The Saskatchewan Court of Appeal dismissed the application - While the first branch of the "Palmer test" was satisfied, namely, the evidence was not available at the trial, the second branch of the test (that the evidence must be relevant) was not satisfied - The "fresh" evidence did not have any bearing on the issue of the arrears of spousal and child support; on whether the appeal should be heard; nor on whether the trial judge erred in his decision - With respect to the third and fourth branches of the test, while the evidence was credible and had not been contradicted, it could not reasonably be taken to have affected the result of the judge's decision - Neither did it have any effect on whether the Court should decline to hear the appeal - The appellant's remedy was not to adduce fresh evidence, but to make an application to vary the child support before the Court of Queen's Bench - See paragraphs 9 to 13.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Family Law - Topic 4171 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 9].

Dickie v. Dickie (2006), 206 O.A.C. 257, revd. (2007) 357 N.R. 196; 221 O.A.C. 394; 2007 SCC 8, appld. [paras. 16, 17].

Hadkinson v. Hadkinson, [1952] 2 All E.R. 567, refd to. [para. 23].

Counsel:

W. Timothy Stodalka, for the appellant;

R. Bradley Hunter, Q.C., and Carmen Khuu, for the respondent.

These applications were heard and decided on December 9, 2015, by Caldwell, Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Whitmore, J.A., delivered the following reasons for judgment of the Court.

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8 practice notes
  • M.H. v A.B., 2019 SKCA 135
    • Canada
    • Court of Appeal (Saskatchewan)
    • 17 Diciembre 2019
    ...Court, not only in criminal cases, but in the context of civil and family law litigation as well (see, for example, Aalbers v Aalbers, 2016 SKCA 1, 472 Sask R 195; Ackerman v Ackerman, 2014 SKCA 86, [2014] 10 WWR 429 [Ackerman]; Gritzfeld v Zuidema Farms Inc., 2009 SKCA 51, [2009] 6 WWR 201......
  • Ghremida v Elgahwas,
    • Canada
    • Court of Appeal (Saskatchewan)
    • 9 Febrero 2023
    ...underpayment while this Court sorted out the child support issue. 61 This Court faced a somewhat similar situation in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 [ Aalbers]. In that case, the appellant father had refused to make any payments towards his court-ordered support obligation......
  • Ghremida v Elgahwas,
    • Canada
    • Court of Appeal (Saskatchewan)
    • 9 Febrero 2023
    ...[61]           This Court faced a somewhat similar situation in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 [Aalbers]. In that case, the appellant father had refused to make any payments towards his court-ordered support obligation......
  • ASHLEY DAWN HECK (MESZAROS) v. MICHAEL LEE MESZAROS, 2020 SKQB 230
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • 17 Septiembre 2020
    ...paid. [26] In light of this, the court requested the parties consider the effect of the Court of Appeal decision in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 on whether this non-payment could be an impediment to the mother’s applications proceeding on the matters presented. Initially......
  • Request a trial to view additional results
8 cases
  • M.H. v A.B., 2019 SKCA 135
    • Canada
    • Court of Appeal (Saskatchewan)
    • 17 Diciembre 2019
    ...Court, not only in criminal cases, but in the context of civil and family law litigation as well (see, for example, Aalbers v Aalbers, 2016 SKCA 1, 472 Sask R 195; Ackerman v Ackerman, 2014 SKCA 86, [2014] 10 WWR 429 [Ackerman]; Gritzfeld v Zuidema Farms Inc., 2009 SKCA 51, [2009] 6 WWR 201......
  • Ghremida v Elgahwas,
    • Canada
    • Court of Appeal (Saskatchewan)
    • 9 Febrero 2023
    ...underpayment while this Court sorted out the child support issue. 61 This Court faced a somewhat similar situation in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 [ Aalbers]. In that case, the appellant father had refused to make any payments towards his court-ordered support obligation......
  • Ghremida v Elgahwas,
    • Canada
    • Court of Appeal (Saskatchewan)
    • 9 Febrero 2023
    ...[61]           This Court faced a somewhat similar situation in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 [Aalbers]. In that case, the appellant father had refused to make any payments towards his court-ordered support obligation......
  • ASHLEY DAWN HECK (MESZAROS) v. MICHAEL LEE MESZAROS, 2020 SKQB 230
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • 17 Septiembre 2020
    ...paid. [26] In light of this, the court requested the parties consider the effect of the Court of Appeal decision in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 on whether this non-payment could be an impediment to the mother’s applications proceeding on the matters presented. Initially......
  • Request a trial to view additional results

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