Antonishyn v. Boucher, (2011) 373 Sask.R. 154 (FD)

• Judge: Sandomirsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 08, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 373 Sask.R. 154 (FD);2011 SKQB 147

Antonishyn v. Boucher (2011), 373 Sask.R. 154 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. AP.041

Joanne Antonishyn (petitioner) v. Marc Boucher (respondent)

(2010 DIV. No. 509; 2011 SKQB 147)

Indexed As: Antonishyn v. Boucher

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Sandomirsky, J.

April 8, 2011.

Summary:

At issue on this motion was interim child and spousal support.

The Saskatchewan Court of Queen's Bench, Family Law Division, determined the issues accordingly.

Editor's Note: For a prior decision between these parties relating to, inter alia, interim exclusive possession of the family home and household goods and interim custody and primary residence/care of two children of the marriage, see [2010] Sask.R. Uned. 209 (Fam. Div.).

Family Law - Topic 2224

Maintenance of wives and children - Interim relief - Interim maintenance - The Saskatchewan Court of Queen's Bench, Family Law Division, provided a list of principles to be considered on an interim spousal support application - See paragraphs 37 to 39.

Family Law - Topic 2987

Maintenance of husbands - Awards - Interim maintenance - [See Family Law - Topic 2224 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The petitioner sought interim child support - The respondent objected to paying any s. 7 expenses at this interim stage - He argued that with the payment of $1,496 monthly child support, the Canada Child Tax Benefit and GST rebate payments the petitioner received, and, given the petitioner's right to occupy the family home with its contents, she would end up with more net disposable income in her household than he would - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the argument - The respondent had not made an undue hardship claim under s. 10 of the Guidelines - The court's discretion and the respondent's obligations were fixed by s. 3 of the Guidelines which included the table amount (s. 3(1)) and any amount determined under s. 7 - The respondent's gross annual income ($109,361) set the basic table amount of child support as well as his pro rata share of any special or extraordinary expenses - While s. 3 stated a presumptive rule and was therefore rebuttable, the respondent's argument was not a recognized legal exception which drove a successful rebuttal - See paragraphs 18 and 23 to 25.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - [See Family Law - Topic 4045.4 ].

Family Law - Topic 4076

Divorce - Corollary relief - Interim maintenance - General - [See Family Law - Topic 2224 and Family Law - Topic 4084 ].

Family Law - Topic 4084

Divorce - Corollary relief - Interim maintenance - Awards - The petitioner sought interim spousal support after a 13 year marriage - She earned $47,657 annually - The respondent earned $109,361 annually - The petitioner adduced evidence that her career was compromised as a consequence of the role that she had assumed within the marriage and the marriage breakdown - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that an interim spousal support order was normally not compensatory, addressing imminent economic hardship in the immediate post-separation period - The petitioner might be able to demonstrate an entitlement to spousal support based upon economic disadvantage at a later stage but at this point she had not provided evidence by which the court could measure the economic disadvantage in order to compensate her with a dollar award - At the interim stage, case law emphasized that the need for spousal support and the other spouse's means or ability to pay might well justify an interim spousal support award - The court found that the petitioner was suffering the economic hardship of the marriage breakdown to a greater degree than the respondent - She had demonstrated an interim need for spousal support to diminish the economic disparity in each household and that the respondent had the means to pay interim spousal support - The court awarded the petitioner $600 monthly interim spousal support, in addition to child support for the parties' two children - See paragraphs 39 to 44.

Cases Noticed:

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 25].

L.J.W. v. T.A.R. - see D.B.S. v. S.R.G.

Henry v. Henry - see D.B.S. v. S.R.G.

Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.

Frass v. Frass, [2006] Sask.R. Uned. 62; 2006 SKQB 189 (Fam. Div.), refd to. [para. 38].

Hein v. Hein, [2004] Sask.R. Uned. 134; 2004 SKQB 277 (Fam. Div.), refd to. [para. 38].

Marcotte v. Marcotte (2008), 315 Sask.R. 280; 2008 SKQB 223 (Fam. Div.), refd to. [para. 38].

Skomorowski v. Bernier, [2009] Sask.R. Uned. 52; 2009 SKQB 55 (Fam. Div.), refd to. [para. 38].

Cey v. Cey, [2004] Sask.R. Uned. 239; 2004 SKQB 493 (Fam. Div.), refd to. [para. 38].

Messer v. Messer (1997), 163 Sask.R. 101; 165 W.A.C. 101; 33 R.F.L.(4th) 426 (C.A.), refd to. [para. 38].

Van De Sype v. Riviere (2009), 336 Sask.R. 284; 2009 SKQB 269 (Fam. Div.), refd to. [para. 38].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, 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. 38].

Counsel:

Mary E. Neufeld, for the petitioner;

E.F. Anthony Merchant, Q.C., for the respondent.

This motion was heard by Sandomirsky, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following fiat on April 8, 2011.