Jochems v. Jochems

• Jurisdiction: Saskatchewan
• Judge: Sandomirsky, J.
• Date: 26 May 2014
• Citation: (2014), 447 Sask.R. 83 (FD),2014 SKQB 156
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Jochems v. Jochems (2014), 447 Sask.R. 83 (FD)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JN.010

Tyler Jason Jochems (petitioner) v. Hilarie Margaret Jochems (respondent)

(2012 DIV. No. 1690; 2014 SKQB 156)

Indexed As: Jochems v. Jochems

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Weyburn

Sandomirsky, J.

May 26, 2014.

Summary:

The parties were married in 2010 and lived in Saskatchewan. Their baby was born in April 2012. When the baby was three months old, the mother left Saskatchewan and began residing with the baby in Manitoba. The father applied for interim orders requiring the wife to return the baby to Saskatchewan, granting joint custody and directing that each parent have equal parenting time.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2013), 415 Sask.R. 312, granted the parties joint custody and ordered the mother to return the baby to Saskatchewan based on a structured transition that would lead to the baby spending overnights with the father. If the mother decided to remain in Manitoba, primary caregiving responsibilities would transfer to the father. The mother appealed, arguing that the order should be set aside to the extent that it would involve a change in primary caregiver if she did not move back to Saskatchewan.

The Saskatchewan Court of Appeal, in a decision reported at (2013), 417 Sask.R. 232; 580 W.A.C. 232, dismissed the appeal.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a final divorce judgment, granted primary care of the child to the mother in Manitoba. The father would parent the child on the first, third and fifth weekends of a five week cycle, commencing at noon on Wednesdays to offset the distance between the parties' homes. The father was ordered to pay spousal support and retroactive and ongoing child support.

Family Law - Topic 1895

Custody and access - Considerations in awarding custody - Changing child's residence - The divorced parents of a very young child both sought to be primary caregiver but the father wanted to live in Saskatchewan while the mother wanted to live about four hours away in Manitoba - The Saskatchewan Court of Queen's Bench, Family Law Division, discussed the order of analysis in a mobility case where there was no preceding court order or agreement upon which a status quo argument was founded - The first step was to determine which parent should be designated as the parent who would bear the primary responsibility of parenting the child - It followed that that parent would provide the primary residence for the child - The second step was to assess from a child centred perspective which locale accorded with the child's best interests - See paragraphs 149 and 150.

Family Law - Topic 1895

Custody and access - Considerations in awarding custody - Changing child's residence - The parties were married in 2010 and lived in Saskatchewan - Their child was born in April 2012 - When the child was three months old, the mother took her to Manitoba on the pretense that she was going to visit her parents - She did not return to Saskatchewan and severely curtailed the father's capacity to spend parenting time with the child - The father petitioned for divorce - An interim order granted the parties joint custody and required the mother to return the child to Saskatchewan by September 2013 - The Saskatchewan Court of Queen's Bench, Family Law Division, granted primary care of the child to the mother in Manitoba - The child was more closely bonded to her mother - A change in her primary care would be highly disruptive - The mother was most alive to the subtleties and nuances of the child's needs - Although the circumstances had curtailed the father's opportunity to bond with the child, he appeared to have only superficially considered the responsibility, depth and nuances of being a primary parent - The maximum contact principle, which was based on quality of time and not quantity of time, could be recognized by granting the father parenting time every first, third and fifth weekend of a five week cycle, commencing at noon on Wednesdays to offset the distance between the parties' homes - See paragraphs 145 to 178.

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - [See both Family Law - Topic 1895 ].

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - [See second Family Law - Topic 1895 ].

Family Law - Topic 2076

Custody and access - Joint custody - Principal home - [See second Family Law - Topic 1895 ].

Family Law - Topic 2211

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

Family Law - Topic 2213

Maintenance of spouses and children - General principles - Extent of duty to support - [See Family Law - Topic 2329 ].

Family Law - Topic 2322

Maintenance of spouses and children - Maintenance of spouses - Principle of equality of standard of living - [See Family Law - Topic 2329 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - The parties began cohabiting in November 2008 and married in 2010 - They separated shortly after their child's birth in April 2012 - Except for one year of maternity leave, the wife worked before and after separation in various daycare settings - The husband was a heavy equipment and truck mechanic - The wife's income was $38,000 while the husband's was $92,000 - In divorce proceedings, the wife sought spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the wife had suffered an economic disadvantage in the pursuit of her career - She had to relocate several times when the husband unilaterally quit his employment - The wife had also borne the significant part of the financial consequences arising from the child's care over and above the Guideline contributions received from the husband - The wife's lifestyle was disparate when compared to the parties' lifestyle prior to separation - The husband was ordered to pay the wife $1,300/month for two years - An indefinite award was not justified given the parties' ages, the brief duration of their marriage, and the fact that their careers were established before they began cohabiting - See paragraphs 186 to 197.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - The parties were married in 2010 and lived in Saskatchewan - Their child was born in April 2012 - When the child was three months old, the mother took her to Manitoba and severely curtailed the father's capacity to spend parenting time with the child - The father petitioned for divorce - An interim order required the father to pay child support beginning in February 2013 - The mother sought retroactive child support for the period August 2012 to February 2013 (the seven months immediately following her departure to Manitoba up to the date of the interim order) - The father testified that he had been asked to pay child support during this period, but refused because he was waiting to be told by court order how much he was required to pay - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the father was fully aware of his obligation to pay interim child support and his excuse had no merit - He was ordered to pay $4,760 in retroactive support - See paragraphs 180 to 185.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties began cohabiting in November 2008 and married in 2010 - They separated shortly after their child's birth in April 2012 - The husband petitioned for divorce - Except for one year of maternity leave, the wife worked before and after separation in various daycare settings - The husband was a heavy equipment and truck mechanic - The wife's income was $38,000 while the husband's was $92,000 - An October 2013 interim order required the husband to pay spousal support - The wife sought retroactive spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the wife's delay and the hardship to the husband were compelling reasons to disallow the claim for retroactive support - The wife had the option of applying for spousal support in the 14 months preceding October 2013 but did not exercise it - She had the use of her parents' home and her parents met many of her costs and needs - Her employment income subsequently supplemented her needs - See paragraphs 198 to 200.

Family Law - Topic 4001.1

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

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 2329 ].

Cases Noticed:

Olfert v. Olfert (2012), 402 Sask.R. 71; 2012 SKQB 301 (Fam. Div.), affd. (2013), 417 Sask.R. 283; 580 W.A.C. 283; 2013 SKCA 89, refd to. [paras. 138, 139].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 138].

N.D.L. v. M.S.L. (2010), 289 N.S.R.(2d) 8; 916 A.P.R. 8; 83 R.F.L.(6th) 214; 2010 NSSC 68 (Fam. Div.), refd to. [para. 143].

S.L. v. C.B. (2013), 429 Sask.R. 221; 2013 SKQB 333 (Fam. Div.), refd to. [para. 145].

Moreira v. Garcia Dominguez, 2012 ONCJ 128, refd to. [para. 146].

Haider v. Malach (1999), 177 Sask.R. 285, 48 R.F.L.(4th) 314 (C.A.), refd to. [para. 146].

S.S.L. v. J.W.W. (2010), 284 B.C.A.C. 27; 481 W.A.C. 27; 81 R.F.L.(6th) 38; 2010 BCCA 55, refd to. [para. 148].

Thurston v. Maystrowich (2010), 354 Sask.R. 113; 2010 SKQB 154 (Fam. Div.), refd to. [para. 148].

R.K.L. v. S.R.N. (2012), 397 Sask.R. 219; 2012 SKQB 220 (Fam. Div.), refd to. [para. 149].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 71 R.F.L.(6th) 235; 2009 NBCA 18, refd to. [para. 150].

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. 181].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 44 R.F.L.(4th) 1, refd to. [para. 191].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 191].

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. 198].

Authors and Works Noticed:

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (2008), generally [para. 197].

Counsel:

W. Timothy Stodalka, for the petitioner;

James J. Vogel, for the respondent.

This matter was heard before Sandomirsky, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Weyburn, who delivered the following judgment on May 26, 2014.