Babich v. Babich, 2015 SKQB 22

• Judge: Megaw, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 20, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 22;(2015), 466 Sask.R. 259 (FD)

Babich v. Babich (2015), 466 Sask.R. 259 (FD)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.058

Byron Grant Babich (petitioner) v. Erinn Maria Babich (respondent)

(2014 F.L.D. No. 349; 2015 SKQB 22)

Indexed As: Babich v. Babich

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Megaw, J.

January 20, 2015.

Summary:

The parties married in 2007 and separated in 2014. The father ran a very successful farming operation that had assets of almost $35 million. There were three children of the marriage, the youngest of whom was born shortly after the parties separated. At issue on this interim application was, inter alia, the appropriate parenting arrangement, the determination of the father's income for support purposes, the father's child and spousal support obligation and the mother's request for an interim distribution of property.

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

Family Law - Topic 880.6

Husband and wife - Marital property - Distribution orders - Interim relief - The parties married in 2007 and separated in 2014 - The father ran a very successful farming operation that had assets of almost $35 million - There were three children of the marriage, the youngest of whom was born shortly after the parties separated - The father's income for support purposes was determined to be $746,000 - He was ordered to pay interim monthly child support of $11,643 and spousal support of $8,000 - At a previous hearing, the father had been ordered to pay $25,000 to the mother - At this hearing, the mother sought a further payment of $75,000 as an interim distribution of property - The Saskatchewan Court of Queen's Bench, Family Law Division, declined to order the lump sum payment - The matter was very much in its infancy - The father might claim an exemption for assets owned prior to the marriage - Further, the court could not conclude that there would be considerable delay in getting to trial - There were certain cash assets, but those might be required in the short term to pay the support obligation - See paragraphs 96 to 103.

Family Law - Topic 948.2

Husband and wife - Marital property - Distribution orders - Practice - Interim distribution or borrowing against - [See Family Law - Topic 880.6 ].

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - The parties married in 2007 and separated in 2014 - There were three children of the marriage, the youngest of whom was born shortly after the parties separated - At issue on this interim application was the appropriate parenting arrangement - For the previous few months, the parties had adopted a three day on/three day off regime - The father asserted that this shared parenting should continue as the status quo - The mother asserted that she had not voluntarily entered into this arrangement and that it was not in the children's best interests - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered that, on an interim basis, the parties were to share joint custody - The children were to reside with the mother and the father was to have specified access - The father had not been the primary parent - The status quo was one where the mother was the primary caregiver and was responsible for the children's day to day activities - There was no compelling reason to change that status quo - Stability for the children was of the greatest importance - The court set out a parenting regime that maximized the father's contact with the children in recognition of his active role as a parent - See paragraphs 24 to 47.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - [See Family Law - Topic 1897 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - The parties married in 2007 and separated in 2014 - The father ran a very successful farming operation that had assets of almost $35 million - There were three children of the marriage, the youngest of whom was born shortly after the parties separated - The mother had been the primary parent and had not worked outside the home after the marriage - At issue on this interim application was the father's spousal support obligation - The father's income for support purposes was determined to be $746,000 - He was ordered to pay monthly child support of $11,643 - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered the father to pay monthly spousal support of $8,000 - The Spousal Support Advisory Guidelines (SSAG) showed a range of spousal support payments based on the father's income of between $15,600 and $18,403 - However, the court was not prepared to simply apply the SSAG range - When dealing with incomes potentially in excess of the $350,000 "ceiling" provided for by the SSAG, the court had to "pause and recognize" that further additional evidence might be required - The SSAG were not merely a "plug and play" - The mother's expenses might be exaggerated, as urged by the father - However, they were not to be properly recorded as zero - Further, the spousal support would be subject to income tax payable by the mother - See paragraphs 81 to 95.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non-divorce cases) - Calculation or attribution of income - The parties married in 2007 and separated in 2014 - The father ran a very successful farming operation that had assets of almost $35 million - At issue was the determination of the father's income for support purposes - The father asserted that an income of $300,000 should be attributed to him - His income tax return for the previous year showed a line 150 income of $818,470.30 - The Saskatchewan Court of Queen's Bench, Family Law Division, stated, "On the information presently before me, I am not in a position to conclude that the petitioner's income ought to be reduced to a figure of $300,000.00 for purposes of calculating the child and spousal support obligations on this interim application. In the event this matter were to proceed to trial and more complete and explanatory evidence provided, an adjustment of the amounts now ordered to be paid may be appropriate in favour of both the petitioner and the respondent. However, in light of the magnitude of this farming operation, together with its historical performance, I determine that the petitioner's income is in the amount of $746,000.00 for purposes of this interim application. I calculate this amount by removing the taxable capital gain and other income." - There was insufficient evidence to satisfy the court that the father would not earn an income that was similar to the previous year's, subject to minor adjustments - See paragraphs 48 to 75.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where income over $150,000 - The parties married in 2007 and separated in 2014 - The father ran a very successful farming operation that had assets of almost $35 million - There were three children of the marriage, the youngest of whom was born shortly after the parties separated - At issue on this interim application was the father's child support obligation - The father's income for support purposes was determined to be $746,000 - The Saskatchewan Court of Queen's Bench, Family Law Division, ordered the father to pay monthly child support of $11,643 - There was no reason here to deviate from the Federal Child Support Guidelines amount - While the court had not been provided with any significant information concerning the needs and circumstances of the children, there was information indicating that the parties had lived a lifestyle while they were together that was commensurate with the income disclosed - See paragraphs 76 to 80.

Family Law - Topic 4059

Divorce - Corollary relief - Custody of children - Interim custody - [See Family Law - Topic 1897 ].

Family Law - Topic 4084

Divorce - Corollary relief - Interim maintenance - Awards - [See Family Law - Topic 4021.5 ].

Cases Noticed:

Guenther v. Guenther (1999), 181 Sask.R. 83 (Q.B. Fam. Div.), refd to. [para. 27].

Agawa v. Davis (2011), 378 Sask.R. 136; 2011 SKQB 214 (Fam. Div.), refd to. [para. 28].

Gilewich v. Gilewich (2001), 215 Sask.R. 21; 2001 SKQB 536 (Fam. Div.), refd to. [para. 44].

C.R.L. v. R.E.L., [1998] Sask.R. Uned. 5; 1998 CanLII 13661 (Q.B. Fam. Div.), refd to. [para. 44].

Poirier v. Poirier (2011), 381 Sask.R. 111; 2011 SKQB 298 (Fam. Div.), refd to. [para. 44].

Stelter v. Stelter (2012), 405 Sask.R. 63; 563 W.A.C. 63; 2012 SKCA 117, refd to. [para. 51].

Bear v. Thompson (2014), 446 Sask.R. 160; 621 W.A.C. 160; 2014 SKCA 111, refd to. [para. 52].

Larson v. Larson, [2014] Sask.R. Uned. 62; 2014 SKQB 258 (Fam. Div.), refd to. [para. 69].

Dand v. Dand (2014), 441 Sask.R. 251; 2014 SKQB 101 (Fam. Div.), refd to. [para. 69].

Dand v. Ady - see Dand v. Dand.

Gursky v. Gursky (2008), 317 Sask.R. 186; 2008 SKQB 253 (Fam. Div.), refd to. [para. 69].

Austin v. Austin, [2007] O.T.C. 2467; 45 R.F.L.(6th) 401 (Sup. Ct.), refd to. [para. 69].

Henderson v. Casson (2014), 42 R.F.L.(7th) 357; 2014 ONSC 720, refd to. [para. 69].

Shaw v. Przybylski, [2014] A.R. Uned. 699; 2014 ABQB 667, refd to. [para. 69].

Dewey v. Dewey, [2009] B.C.T.C. Uned. 1674; 2009 BCSC 1674, refd to. [para. 69].

R.E.G. v. T.W.J.G. (2013), 414 Sask.R. 30; 575 W.A.C. 30; 2013 SKCA 34, refd to. [para. 77].

Antonishyn v. Boucher (2011), 373 Sask.R. 154; 2011 SKQB 147 (Fam. Div.), refd to. [para. 82].

Frank v. Linn (2014), 442 Sask.R. 126; 616 W.A.C. 126; 2014 SKCA 87, refd to. [para. 89].

Savoy v. Savoy (2014), 456 Sask.R. 16; 2014 SKQB 293 (Fam. Div.), refd to. [para. 101].

Counsel:

James J. Vogel, for the petitioner;

Ronald J. Miller, for the respondent.

This application was heard by Megaw, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on January 20, 2015.