Bird v. Bird, (2013) 419 Sask.R. 214 (FD)

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 24, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 419 Sask.R. 214 (FD);2013 SKQB 157

Bird v. Bird (2013), 419 Sask.R. 214 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.037

Donald Bird (petitioner) v. Aleta-Jo Bird (respondent)

(2008 Div. No. 483; 2013 SKQB 157)

Indexed As: Bird v. Bird

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Ryan-Froslie, J.

April 24, 2013.

Summary:

The parties separated in 2008 after 10 years of marriage. The wife had a child from a prior relationship who lived with the parties. At issue was the division of family property, ongoing and retroactive spousal support, and retroactive child support.

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

Courts - Topic 589

Judges - Duties - To self-represented party - [See Evidence - Topic 7000.4 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - Spouses separated after 10 years of marriage - Issues included child support and spousal support - Halfway through the trial, the wife sought to tender as evidence a "medical report" - The report purported to be signed by a psychologist who practiced in the United States and gave the psychologist's opinion respecting the wife's mental state - The husband opposed its admission on the grounds that he had not been given prior notice of its existence - The wife, who was self-represented, argued that the court should give her the assistance necessary to present her case - The Saskatchewan Court of Queen's Bench, Family Law Division, ruled that the report was not admissible - The report did not meet all the requirements of s. 22 of the Evidence Act - There was no evidence that the psychologist was authorized to practice in Canada, so the report could not be admitted without proof of the psychologist's signature, qualifications and authority to practice - Even if the report was admissible, there was the issue of its late production - The wife had been advised numerous times of the need to present medical evidence and how to go about it - She failed to follow the Rules - Admission of the report would significantly prejudice the husband - See paragraphs 31 to 49.

Evidence - Topic 7003

Opinion evidence - Expert evidence - General - Procedural prerequisites to admission of - [See Evidence - Topic 7000.4 ].

Evidence - Topic 7079

Opinion evidence - Reports by experts - Medical reports - [See Evidence - Topic 7000.4 ].

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - [See first and second Family Law - Topic 888 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - [See second Family Law - Topic 888 ].

Family Law - Topic 880.8

Husband and wife - Marital property - Distribution orders - Evidence - Spouses separated after 10 years of marriage - At issue was division of the family property - The wife sought to tender as evidence an appraisal of the family home by a certified land appraiser - She had provided the husband with a copy of the report after the pre-trial conference - The husband opposed its admission because no notice of expert witness had been provided in accordance with Queen's Bench Rule 284D - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the appraisal to be entered as an exhibit - The wife only sought to file the appraisal, not to call the appraiser as an expert witness, so rule 284C applied - Although rule 284C required the appraisal to be provided before the pre-trial conference, it had still been provided in a timely fashion and the husband had not been caught "unawares" by its production - The husband would not be significantly prejudiced by its admission - Any prejudice could be dealt with by giving the husband an opportunity to call rebuttal evidence - See paragraphs 50 to 58.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - Spouses separated in March 2008 after 10 years of marriage - The husband initiated an application for the division of family property in September 2008 - The husband's pension was a defined benefit plan based on best years' earnings - The parties agreed that the commuted value of the husband's pension should be used for division purposes - The husband relied on a valuation done in May 2011 that determined the commuted value of his pension accrued during the marriage was $192,325 - The wife relied on a calculation done in September 2012 that determined the commuted value to be $296,944 - Both calculations represented the amount of money needed on the particular date that they were performed in order to fund the pension - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the appropriate valuation date for the pension was the application date - The May 2011 valuation was the closest to the application date and the most appropriate for division purposes - This was so because the factors driving changes to the commuted value were not just interest rates, but also the husband's age, his years of service, mortality rates and other factors - See paragraphs 80 to 104.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - Spouses separated in 2008 after 10 years of marriage - At issue was the valuation of the family home - The husband valued the home at $540,000 based on a January 2012 appraisal - He testified that the home needed new shingles and a new driveway that would cost $30,000, but he did not present any independent evidence to substantiate those costs - The wife valued the home at $575,000 based on an August 2011 appraisal - The wife's appraisal took into account the need for a new driveway and shingles - The Saskatchewan Court of Queen's Bench, Family Law Division, took an average of the two appraisals and valued the house at $557,500 - This was the fairest approach, given the fact that the appraisals were done just five months apart, had used most of the same comparables, and the court had not heard evidence from either appraiser to substantiate their analysis - No allowance was made for the driveway or shingles because this was clearly taken into account in the wife's appraisal - See paragraphs 63 to 69.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - Spouses separated in March 2008 after 10 years of marriage - From the date of separation until July 2009, the wife remained in the family home with her son - The husband paid the mortgage, taxes and insurance on the home, but he did not pay any child or spousal support during that time - The husband moved into the family home when the wife moved to the United States in July 2009 - The parties agreed that the house should be valued as of the adjudication date and that the mortgage should be taken into consideration in its division - The husband argued that the court should use the amount outstanding on the mortgage as of the application date ($348,525), because he alone had been responsible for paying the mortgage and therefore any reduction in the balance outstanding was attributable solely to his efforts - The wife argued that the court should use the amount outstanding as of the adjudication date ($304,790), because the husband's mortgage payments from March 2008 to July 2009 were in lieu of support - She submitted that the husband's payments after he moved into the home amounted to no more than occupational rent - The Saskatchewan Court of Queen's Bench, Family Law Division, agreed with the wife - There was no reason to vary from the general principle that an asset and the debt associated with it should be valued as of the same date - See paragraphs 70 to 79.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - [See Family Law - Topic 880.28 ].

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - [See Family Law - Topic 2326 ].

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2353 and first Family Law - Topic 4001.1 ].

Family Law - Topic 2326

Maintenance of spouses and children - Maintenance of spouses - Effect of income or potential income of claimant - The parties met when the wife (Aleta) was a police officer in Toronto and the husband (Donald) was a lawyer in Regina - They married in 1998 - Aleta gave up her employment and moved to Regina - She could not get a comparable position in Regina, so she decided to attend university - She excelled in university, but left school in 2003 and did not pursue any further education - Aleta was employed for six months in 2005, earning close to $26,000, but otherwise did not work outside the family home during the relationship - She dedicated herself to caring for the family, including her son and Donald's daughter - The family relocated twice to accommodate Donald's career - The parties separated in 2008 - Donald's income was $353,411 - Aleta sought spousal support - She testified that she was unable to work because of anxiety and auditory issues - The Saskatchewan Court of Queen's Bench, Family Law Division, held that Aleta's assertions were insufficient to establish an inability to work for medical reasons - Aleta was intelligent and articulate - Given her age, training and general circumstances, she could earn an annual income of at least $52,000 - Given the fact that Donald had assumed all of the family debt and would likely need to borrow to pay out Aleta's property interest, support in the lower range ($4,000/month) was appropriate - Support was payable until September 2015 - This would give Aleta sufficient time to become financially independent and would adequately compensate her for the economic disadvantages suffered as a result of the relationship and its breakdown - See paragraphs 132 to 155.

Family Law - Topic 2328

Maintenance of spouses and children - Maintenance of spouses - Effect of spouse's ability to work - [See Family Law - Topic 2326 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - [See Family Law - Topic 4034 ].

Family Law - Topic 2345.1

Maintenance of spouses and children - Maintenance of children - Awards - Lump sum - [See Family Law - Topic 2353 ].

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - The parties married in 1998 and separated in March 2008 - The wife (Aleta) had a son from a prior relationship (Chip) who lived with the parties - Aleta assumed a traditional role during the relationship and did not work outside of the home except for a six month period - The husband's (Donald's) income was $267,049 in 2008 and $220,916 in 2009 - Chip's biological father paid $300/month in child support - Aleta sought retroactive child support from Donald from the date of separation to when the first interim child support order was made in October 2009 - The Saskatchewan Court of Queen's Bench, Family Law Division, held that a retroactive child support award was appropriate - Aleta had no income at the time of the separation - Accordingly, Chip's needs could only be satisfied by Aleta depleting her family property (her share of the bank accounts) - Given Donald's significant income, Aleta should not have had to use her family property to support Chip - Chip was presumptively entitled to child support - The fact that retroactive support was not specifically pleaded was mitigated by the fact that it was obviously a "live" issue - It was clearly identified as such by an agreement entered into by the parties at a pre-trial conference and by the judge in completing the pre-trial management form - Neither hardship nor a failure to disclose income were relevant - Donald's total child support obligation for the relevant period was $30,402 (based on his income and the amount paid by the biological father) - See paragraphs 167 to 179.

Family Law - Topic 2483

Maintenance of spouses and children - Awards - Lump sum payments - [See Family Law - Topic 2353 ].

Family Law - Topic 2484

Maintenance of spouses and children - Awards - Periodic payments - [See Family Law - Topic 2326 ].

Family Law - Topic 2486

Maintenance of spouses and children - Awards - Effect of income or potential income of claimant - [See Family Law - Topic 2326 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties married in 1998 - The wife (Aleta) gave up her employment in Toronto and moved to Regina to be with the husband (Donald) - Aleta was employed briefly in 2005, but otherwise did not work outside the family home during the relationship - She dedicated herself to caring for the family, including her son and Donald's daughter - The family's lifestyle was modest but comfortable - The parties separated in March 2008 - Aleta remained in the family home until July 2009 - Donald assumed payment of all the debts and expenses respecting the family home - He also gave Aleta $25,000, which represented half of the parties' bank accounts - Aleta sought retroactive spousal support from March 2008 to September 2009 - The Saskatchewan Court of Queen's Bench, Family Law Division, held that a retroactive award was not appropriate - There was no evidence that Aleta's needs were not being met during that time - This was underscored by the fact that no application for spousal support was made until she left the family home in July 2009 - The provision of ongoing support adequately met her current needs - There was no evidence that Donald had hidden assets or failed to make appropriate disclosure - Aleta had first raised the issue of retroactive support mid-trial - There was no explanation for why it had not been raised during the interim application or pre-trial process - Allowing her to raise the issue now would result in significant prejudice to Donald - Given Donald's current income and assets, a retroactive award covering an 18 month period would result in a hardship for him - See paragraphs 156 to 166.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See Family Law - Topic 2353 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance and awards - Awards - Periodic payments - [See Family Law - Topic 2326 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance and awards - Awards - Lump sum - [See Family Law - Topic 2353 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See Family Law - Topic 2326 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Effect of division of matrimonial property - The parties met when the wife (Aleta) was a police officer in Toronto and the husband (Donald) was a lawyer in Regina - Aleta had a son (Chip) - The parties married in 1998 - Aleta gave up her employment and moved to Regina - She could not get a comparable position in Regina, so she decided to attend university - In 2001, the parties moved to Prince Albert because Donald had been hired as a prosecutor - Aleta commuted to a university in Saskatoon, but left school in 2003 and did not pursue any further education - In 2003, Donald's daughter (Jasmine) began living with the parties - Donald's granddaughter also lived with them for an eight month period - Aleta was employed briefly in 2005, but otherwise did not work outside the family home during the relationship - She dedicated herself to caring for the family - In 2006, Donald was appointed a judge and the family relocated to Meadow Lake - The parties separated in 2008 - Aleta sought spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division held that Aleta was entitled to both compensatory and non-compensatory spousal support - Respecting compensatory support, Aleta sacrificed her career to marry Donald - She cashed in her pension and shared it with Donald - She moved twice to accommodate his career - Respecting non-compensatory support, Aleta assumed a traditional role in the marriage - She had primary care of Chip, Jasmine, and the granddaughter - When the relationship ended, Aleta was unemployed and totally financially dependent on Donald - Aleta's significant property settlement ($262,015) did not satisfy her entitlement to spousal support - Most of the settlement was in the form of RRSPs and pension benefits, some of which were locked in and unavailable to her - While Aleta had to use her property settlement to generate income, she should not have to deplete her assets to support herself - See paragraphs 124 to 131.

Practice - Topic 1002

Parties - Parties unrepresented by counsel - Duty of court - [See Evidence - Topic 7000.4 ].

Cases Noticed:

Haines v. Riou, [1994] 5 W.W.R. 752; 121 Sask.R. 11 (Q.B.), refd to. [para. 32].

Boyko v. Broomfield et al. (1993), 111 Sask.R. 313 (Q.B.), refd to. [para. 32].

R. v. Brown (R.) (2010), 368 Sask.R. 69; 2010 SKQB 420, refd to. [para. 32].

Planchot v. Planchot, [2009] Sask.R. Uned. 164; 2009 SKQB 396 (Fam. Div.), refd to. [para. 33].

Family and Children's Services of Cumberland County v. D.M. et al. (2006), 247 N.S.R.(2d) 43; 785 A.P.R. 43; 29 R.F.L.(6th) 268; 2006 NSCA 75, refd to. [para. 33].

F., Re, [2001] Fam. C.A. 348 (Aust. Fam. Ct. Full Ct.), refd to. [para. 46].

Ridout v. Ridout (2006), 205 Man.R.(2d) 146; 375 W.A.C. 146; 27 R.F.L.(6th) 237; 2006 MBCA 59, refd to. [para. 48].

Beug v. Schmidt (2008), 321 Sask.R. 102; 2008 SKQB 380 (Fam. Div.), dist. [para. 51].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17; 3 R.F.L.(4th) 291 (C.A.), refd to. [para. 59].

Mang v. Hyshka, [2009] Sask.R. Uned. 85; 69 R.F.L.(6th) 274; 2009 SKQB 164, refd to. [para. 72].

Ioanidis v. Ioanidis (2007), 297 Sask.R. 41; 2007 SKQB 233 (Fam. Div.), refd to. [para. 72].

Russell v. Russell (1999), 180 Sask.R. 196; 205 W.A.C. 196; 1 R.F.L.(5th) 235 (C.A.), refd to. [para. 76].

P.M. v. S.M. (2012), 393 Sask.R. 229; 546 W.A.C. 229; 2012 SKCA 55, appld. [para. 89].

Carlson v. Carlson (1984), 34 Sask.R. 287 (C.A.), refd to. [para. 108].

Dembiczak v. Dembiczak (1985), 42 Sask.R. 314; 48 R.F.L.(2d) 113 (C.A.), refd to. [para. 108].

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 108].

Seaberly v. Seaberly (1985), 37 Sask.R. 219; 44 R.F.L.(2d) 1 (C.A.), refd to. [para. 108].

Vilcu v. Grams (1999), 172 Sask.R. 201; 185 W.A.C. 201; 43 R.F.L.(4th) 385 (C.A.), refd to. [para. 108].

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. 117].

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. 117].

Thomas v. Thomas (2011), 384 Sask.R. 70; 2011 SKQB 372, refd to. [para. 117].

Salisbury v. Soodaeva-Salisbury (2011), 376 Sask.R. 276; 2011 SKQB 258, refd to. [para. 117].

Skomorowski v. Bernier, [2009] Sask.R. Uned. 52; 2009 SKQB 55 (Fam. Div.), refd to. [para. 117].

Bradley v. Bradley (2005), 262 Sask.R. 215; 347 W.A.C. 215; 2005 SKCA 53, refd to. [para. 123].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 60 R.F.L.(6th) 263; 2008 BCCA 507, refd to. [para. 129].

W. v. W., [2005] B.C.T.C. 1010; 19 R.F.L.(6th) 453; 2005 BCSC 1010, refd to. [para. 129].

Muirhead v. Muirhead (1995), 59 B.C.A.C. 144; 98 W.A.C. 144; 14 R.F.L.(4th) 276; 6 B.C.L.R.(3d) 229 (C.A.), refd to. [para. 133].

Frank v. Linn (2013), 412 Sask.R. 164; 2013 SKQB 28, refd to. [para. 134].

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. 135].

Litzenberger v. Litzenberger (2012), 392 Sask.R. 294; 2012 SKQB 122, refd to. [para. 140].

Holmes v. Matkovich (2008), 258 B.C.A.C. 86; 434 W.A.C. 86; 59 R.F.L.(6th) 60; 2008 YKCA 10, refd to. [para. 143].

Jens v. Jens (2008), 260 B.C.A.C. 185; 439 W.A.C. 185; 57 R.F.L.(6th) 31; 2008 BCCA 392, refd to. [para. 143].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 156].

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. 169].

Authors and Works Noticed:

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (2008), generally [para. 117].

Counsel:

Brent D. Barilla and Gregory G. Walen, Q.C., for the petitioner;

Aleta-Jo Bird, respondent, on her own behalf.

This matter was heard before Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on April 24, 2013.