Agioritis v. Agioritis, 2011 SKQB 257

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 29, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 257;(2011), 376 Sask.R. 304 (FD)

Agioritis v. Agioritis (2011), 376 Sask.R. 304 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. AU.007

Anastasia Agioritis (petitioner/respondent) v. George Agioritis (respondent/applicant)

(2006 F.L.D. No. 364; 2011 SKQB 257)

Indexed As: Agioritis v. Agioritis

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Schwann, J.

June 29, 2011.

Summary:

The parties were married in 1989 and separated in 2006. There were four children of the marriage. The husband petitioned for joint custody, access to the children, and a division of family property. The wife countered with a petition for divorce, custody, child and spousal support, exclusive possession of the family home, and a division of family property. Parenting, child support and spousal support were enshrined in consent judgments granted in 2008. The parties were granted joint custody, with the wife to have primary residence. The husband was ordered to pay child support of $2,532 plus $200 per month for s. 7 expenses. Spousal support, initially fixed at $2,500, was reduced to $2,000. The agreement drafted by the parties, as reflected in the judgments, provided for a review of both child and spousal support along with the parenting arrangement. The husband applied to vary the judgments.

The Saskatchewan Court of Queen's Bench, Family Law Division, proceeded on the basis this was a review application as opposed to the more stringent threshold required on a variation application. The court adjusted the judgments on an interim basis. In some respects the evidence was controverted or lacking in precision. A trial was directed on the application to vary the parenting schedule, child support (including retroactive adjustment) and spousal support.

Family Law - Topic 1946.1

Custody and access - Variation of custody and access rights - Interim order pending hearing of variation application - An agreement drafted by the parties, as reflected in two consent judgments, provided for a review of both child and spousal support along with the parenting arrangement - The husband applied to vary the judgments - The Saskatchewan Court of Queen's Bench, Family Law Division, proceeded on the basis this was a review application as opposed to the more stringent threshold required on a variation application - The court discussed the test to be applied on a "review" application, and determined that "something is sufficiently different" so as to justify adjustment having regard to the totality of the circumstances - Having said that, the court was not satisfied that it could do more than adjust the previous final orders on anything more than an interim basis - In some respects the evidence was controverted or lacking in precision - See paragraph 38.

Family Law - Topic 1946.1

Custody and access - Variation of custody and access rights - Interim order pending hearing of variation application - A consent judgment granted the parties joint custody of their four children, with the wife to have primary residence - The judgment provided for a review - The father wanted to begin overnight visits with the two youngest children (ages 11 and 8) and proposed almost three days of every week - The wife accepted that the two oldest children (ages 18 and 16) wished to live with the father and did not oppose a variation as it related to them - She contended that the proposal with respect to the two youngest children was effectively a shared parenting arrangement - The Saskatchewan Court of Queen's Bench, Family Law Division, proceeded on the basis this was a review application and increased the father's parenting time on an interim basis, "as the matter should proceed to trial" - It was in the youngest children's best interests to see more of their father and experience more interaction with their older siblings - There was also merit to the need for the parenting arrangement to coincide with the father's schedule - See paragraphs 40 to 42.

Family Law - Topic 1982

Custody and access - Review - Considerations (incl. best interests of child) - [See second Family Law - Topic 1946.1 ].

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - [See first Family Law - Topic 1946.1 ].

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - An agreement drafted by the parties, as reflected in two consent judgments, provided for a review of child support along with the parenting arrangement - The father applied to vary the judgments - There were four children of the marriage - The mother accepted that the two oldest children (ages 18 and 16) wished to live with the father and did not oppose a variation as it related to them - The father had income from three sources - His net income reported in his 2010 tax return was $129,714 - It was not appreciably higher than the amount set out in the consent judgment - The mother urged the court to use $156,125, an average of the father's line 150 income over the past three years - The Saskatchewan Court of Queen's Bench, Family Law Division, was not sure either figure suggested by the parties was fair - Consequently, the court used the figure of $135,000 for purposes of this interim order - The difference between the mother's child support obligation and the father's was $1,563 (Guidelines, s. 8, split custody) - See paragraphs 44 to 48.

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - A consent judgment provided for a review of spousal support along with the parenting arrangement - The husband applied to vary the judgment - He sought a reduction of spousal support and/or the imposition of a fixed term - There were two issues: the amount of the husband's income, and the duration of spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, determined the matter should proceed to a pretrial conference, and then, if necessary, to trial - Neither of the two issues had been satisfactorily addressed - The court needed to hear evidence, properly tested by cross examination, on the factors and analysis as set out in Bracklow v. Bracklow (1999) (S.C.C.) - In the interim, the court decided to preserve the status quo such that spousal support remained at $2,000 per month - The wife had a financial need - She had not advanced her career or improved her earning potential, and the youngest two children were not at an age when they should be left alone - See paragraphs 49 and 50.

Family Law - Topic 4088

Divorce - Corollary relief - Incidental matters - Interim relief - General - [See both Family Law - Topic 1946.1 and both Family Law - Topic 4018.1 ].

Cases Noticed:

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 29].

Kletzel v. Kletzel, [2005] Sask.R. Uned. 97; 16 R.F.L.(6th) 137; 2005 SKQB 174 (Fam. Div.), consd. [para. 37].

Dorval v. Dorval (2006), 285 Sask.R. 104; 378 W.A.C. 104; 2006 SKCA 21, consd. [para. 38].

Lorencz v. Lorencz, [2010] Sask.R. Uned. 24; 2010 SKQB 58 (Fam. Div.), refd to. [para. 38].

Clark v. Geran, [2010] Sask.R. Uned. 47; 2010 SKQB 121 (Fam. Div.), refd to. [para. 38].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 49].

Counsel:

Joanne C. Moser, for the petitioner;

Cara L. Haff, for the respondent.

This application was heard before Schwann, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on June 29, 2011.