D.Y. v. H.Y., (1998) 170 Nfld. & P.E.I.R. 298 (PEITD)

• Judge: DesRoches, J.
• Case Date: November 09, 1998
• Jurisdiction: Prince Edward Island
• Citations: (1998), 170 Nfld. & P.E.I.R. 298 (PEITD)

D.Y. v. H.Y. (1998), 170 Nfld. & P.E.I.R. 298 (PEITD);

    522 A.P.R. 298

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. DE.021

D.Y. (applicant) v. H.Y. (respondent)

(1101/3958)

Indexed As: D.Y. v. H.Y.

Prince Edward Island Supreme Court

Trial Division

DesRoches, J.

December 7, 1998.

Summary:

The parties entered into a separation agree­ment and some of its clauses were incorpor­ated into the divorce judgment. The parties had joint custody and the husband paid child and spousal support. Immediately before the wife's last spousal support payment was due she applied for a variation of custody of the youngest son with access to the father and a variation of child and spousal support.

The Prince Edward Island Supreme Court, Trial Division, in a decision not reported in this series of reports, allowed the wife's motion for interim spousal support.

The Prince Edward Island Court of Appeal, in a decision reported at (1998), 170 Nfld. & P.E.I.R. 44; 522 A.P.R. 44, allowed the hus­band's appeal and vacated the interim order.

The Prince Edward Island Supreme Court, Trial Division, ordered that: the wife have sole custody of the youngest son; the hus­band have visita­tion to the youngest son; child support be varied; and there be no variation in spousal sup­port.

Family Law - Topic 2074

Custody and access - Joint custody - Ter­mination of - [See Family Law - Topic 4064 ].

Family Law - Topic 2384

Maintenance of wives and children - Vari­ation of - Grounds - [See Family Law - Topic 4006 ].

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance and awards - Effect of agreements - As per a separation agreement, a divorce judgment provided that a wife receive time limited spousal support - The wife was diagnosed with chronic fatigue syndrome after the divorce judgment, but had symp­toms before the separation agreement date - She sought to extend spousal support, arguing that a material change in circum­stances existed - The Prince Edward Island Supreme Court, Trial Division, applied the Supreme Court of Canada trilogy cases (Pelech v. Pelech, Richardson v. Richard­son and Caron v. Caron) and denied a spousal support variation - The court stated that: the separation agreement was intended to be final; each party had independent legal advice; the wife's health problems were considered in settling the spousal support provisions; and there was no evi­dence that her health problems were related to the marriage - See paragraphs 35 to 68.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Variation of periodic pay­ment or lump sum award - [See Family Law - Topic 4006 , Family Law - Topic 4045.4 and Family Law - Topic 4045.5 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Support Guidelines - Special or extraordi­nary expenses - The parties divorced and the husband paid child support for the two children of the marriage - The youngest child had behavioral problems resulting in a criminal conviction - The wife applied for a variation of child support, claiming extraordinary expenses for the youngest child, namely an organized hockey pro­gram, recreational skiing, costs of his driver education and his insurance - The Prince Edward Island Supreme Court, Trial Division, considered the income levels for Guideline purposes and only allowed the hockey program as an extraordinary expense under s. 7 of the Guidelines - The hockey program was in the child's best interests because he would benefit from the discipline and the need to cooperate with others - See paragraphs 31 to 34.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support Guidelines - Calculation of income - The parties divorced and the husband paid child support - The husband was the sole shareholder of Daijoch Enterprises Ltd., that owned 100% of East Coast - East Coast paid the husband, its president, an annual salary and other benefits - East Coast had significant retained earnings for the last three years - The wife applied for, inter alia, a variation of child support - At issue was whether the husband's income would be calculated based on East Coast's income - The Prince Edward Island Supreme Court, Trial Division, applied s. 18 of the Child Support Guidelines and calculated the husband's income based on East Coast's pre-tax income - His annual draw from East Coast did not reflect all the money available to him for the pay­ment of child support - See paragraphs 18 to 28.

Family Law - Topic 4064

Divorce - Corollary relief - Custody of children - Variation of custody order - The parties divorced and agreed to joint cus­tody of the children of the marriage - The youngest son was 16 years old and had behavioral problems resulting in crimi­nal convictions - The son breached his proba­tion order and was incarcerated - The parties were unable to effectively com­municate about the son, who did not want to live with the husband - The wife sought, inter alia, sole custody of the son - The Prince Edward Island Supreme Court, Trial Division, awarded sole cus­tody of the son to the wife - A material change in circum­stances existed because the son's situation could not have been reasonably contem­plated at the time of the divorce - The parties had encountered too much conflict for shared custody - See paragraphs 5 to 17.

Family Law - Topic 4065

Divorce - Corollary relief - Custody of children - Conduct necessary to support variation - [See Family Law - Topic 4064 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241; [1996] 5 W.W.R. 457; 19 R.F.L.(4th) 177; 134 D.L.R.(4th) 321, refd to. [para. 10].

Lucken v. Hopkins (1994), 8 R.F.L.(4th) 226 (B.C.C.A.), refd to [para. 14].

Campbell v. Martijn, [1998] 1 P.E.I.R. 429; 163 Nfld. & P.E.I.R. 126; 503 A.P.R. 126 (S.C.), refd to. [para. 32].

Racette v. Gamauf, [1997] 2 P.E.I.R. 333; 158 Nfld. & P.E.I.R. 38; 490 A.P.R. 38 (S.C.), refd to. [para. 32].

Read v. Read (1995), 133 Nfld. & P.E.I.R. 166; 413 A.P.R. 166; 16 R.F.L.(4th) 147 (P.E.I.T.D.), refd to. [para. 43].

Tully v. Tully (1993), 49 R.F.L.(3d) 31 (Ont. Gen. Div.), refd to. [para. 45].

Dommisse v. Dommisse, [1994] B.C.J. No. 714 (S.C.), refd to. [para. 46].

Debacker v. Debacker (1993), 143 A.R. 228; 49 R.F.L.(3d) 106 (Q.B.), refd to. [para. 47].

Snyder v. Snyder (1993), 138 A.R. 255; 47 R.F.L.(3d) 13 (Q.B.), refd to. [para. 47].

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. 47].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 15 R.F.L.(4th) 201, refd to. [para. 48].

B.(G.) v. G.(L). - see L.G. v. G.B.

Stroud v. Stroud (1996), 75 B.C.A.C. 48; 123 W.A.C. 48; 20 R.F.L.(4th) 392 (C.A.), ref'd to. [para 48].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 162; 119 D.L.R.(4th) 405, refd to. [para. 49].

Kilpatrick v. Kilpatrick (1997), 27 R.F.L.(4th) 296 (S.C.), refd to. [para. 50].

T.L.A.T. v. W.W.T. (1996), 78 B.C.A.C. 136; 128 W.A.C. 136; 24 R.F.L.(4th) 51 (C.A.), refd to. [para. 51].

T.(T.L.A.) v. T.(W.W.) - see T.L.A.T. v. W.W.T.

Van Blaricom v. Van Blaricom (1996), 92 O.A.C. 29; 24 R.F.L.(4th) 410 (Div. Ct.), refd to. [para. 51].

Kloos v. Kloos (1996), 110 Man.R.(2d) 129; 118 W.A.C. 129; 20 R.F.L.(4th) 1 (C.A.), refd to. [para. 51].

Osadchuk v. Osadchuk, [1997] B.C.T.C. Uned. 078; 27 R.F.L.(4th) 167 (S.C.), refd to. [para. 51].

Crandall v. Crandall (1996), 179 N.B.R.(2d) 59; 455 A.P.R. 59; 23 R.F.L.(4th) 387 (C.A.), refd to. [para. 51].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 52].

Linton v. Linton (1990), 42 O.A.C. 328; 30 R.F.L.(3d) 1 (C.A.), refd to. [para. 56].

Santosuosso v. Santosuosso (1997), 97 O.A.C. 42; 27 R.F.L.(4th) 234 (Div. Ct.), refd to. [para. 57].

Authors and Works Noticed:

McLeod, James G., Annotation to Kilpa­trick v. Kilpatrick (1997), 27 R.F.L.(4th) 296 (S.C.), pp. 297 - 298 [para. 50].

Counsel:

Gary S. Scales, for the applicant;

M. Lynn Murray, for the respondent.

This application was heard in chambers at Charlottetown, Prince Edward Island, on November 9, 1998, by DesRoches, J., who delivered the following decision on Decem­ber 7, 1998.