Koback v. Koback, 2013 SKCA 91

• Jurisdiction: Saskatchewan
• Court: Court of Appeal (Saskatchewan)
• Judge: Ottenbreit, Caldwell and Herauf, JJ.A.
• Citation: 2013 SKCA 91,(2013), 423 Sask.R. 35 (CA)
• Date: 12 June 2013

Koback v. Koback (2013), 423 Sask.R. 35 (CA);

    588 W.A.C. 35

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.002

David Koback (appellant/respondent by cross-appeal/respondent) v. Lori Koback (respondent/appellant by cross-appeal/petitioner)

(CACV2343; 2013 SKCA 91)

Indexed As: Koback v. Koback

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Herauf, JJ.A.

August 29, 2013.

Summary:

The parties were married in 1984, separated in 2000 and divorced in 2004. They had two children, born in 1991 and 1994. In 2002, the parties entered into a comprehensive separation agreement. One of the terms required the disclosure of income information each year for the purposes of updating the parties' child support obligations. Such disclosure did not occur until 2011. With disclosure, it was apparent that the father's child support payments had lagged behind his increases in income. In 2012, the mother sought orders for retroactive and ongoing child support.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at [2012] Sask.R. Uned. 116, made a number of determinations. The father appealed and the mother cross-appealed.

The Saskatchewan Court of Appeal allowed the appeal in part and allowed the cross-appeal in part.

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - In a corrigendum to a support order, a chambers judge ordered the father to pay $8,004 in retroactive soccer expenses as a special expense under s. 7 of the Federal Child Support Guidelines - The father appealed, asserting, inter alia, that he had been deprived of an opportunity to respond to the issue when it was raised after the chambers judge's written reasons had been filed - The Saskatchewan Court of Appeal allowed the appeal - The father had the right to make submissions on this issue - The order was set aside and the chambers judge was ordered to reconvene a hearing relating to retroactive soccer expenses - See paragraphs 51 to 58.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties were married in 1984, separated in 2000 and divorced in 2004 - They had two children, born in 1991 and 1994 - In 2002, the parties entered into a comprehensive separation agreement - One of the terms required the disclosure of income information each year for the purposes of updating the parties' child support obligations - Such disclosure did not occur until 2011 - With disclosure, it was apparent that the father's child support payments had lagged behind his increases in income - In 2012, the mother sought orders for retroactive and ongoing child support - A chambers judge ordered the father to pay retroactive child support amounting to half of the deficiency that had accrued between 2004 and 2009 - The father appealed from both the decision to award retroactive support and the date from which retroactive support was to be calculated - The Saskatchewan Court of Appeal dismissed the appeal - The chambers judge's finding that the mother had repeatedly requested income information was reasonable - The father's conduct was blameworthy - It could not be said that the chambers judge's exercise of discretion was unreasonable - When blameworthy conduct was present, the proper date for retroactivity was the date from which the increased support should have been paid - See paragraphs 25 to 38.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties were married in 1984, separated in 2000 and divorced in 2004 - They had two children, born in 1991 and 1994 - In 2002, the parties entered into a comprehensive separation agreement - One of the terms required the disclosure of income information each year for the purposes of updating the parties' child support obligations - Such disclosure did not occur until 2011 - With disclosure, it was apparent that the father's child support payments had lagged behind his increases in income - In 2012, the mother sought orders for retroactive and ongoing child support - A chambers judge ordered the father to pay retroactive child support amounting to half of the deficiency that had accrued between 2004 and 2009 - He declined to order retroactive support for the years 2010 and 2011 on the basis that "the evidence is too complex and contradictory to clearly determine the fault or blameworthy conduct" - The mother appealed - The Saskatchewan Court of Appeal allowed the appeal - The facts regarding the parties' income in those years were now clear - The potential arrears for those years totalled $9,246 - The mother should have the option to take this issue to pretrial - The dismissal of this portion of the claim for retroactive support was set aside and replaced with a direction that it be set for pretrial - See paragraphs 59 to 76.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - A chambers judge ordered the father to pay his proportionate share of the parties' two children's university tuition expenses as a special expense under s. 7 of the Federal Child Support Guidelines - The father appealed, asserting that the chambers judge had erred by neglecting to credit the father with his proportionate share of the tuition tax credits that the mother received - The Saskatchewan Court of Appeal allowed the appeal - Under s. 7(3) of the Guidelines, the court was to "take into account", inter alia, income tax deductions or credits relating to the special expense - That phrase appeared to provide for some discretion - Nevertheless, the chambers judge's failure to consider the father's claim appeared to be contrary to s. 7(3) - If the requirement to take the tuition tax credits into account meant anything, it had to mean that, even if courts retained discretion not to give the payor parent the benefit of their share of the tax credits, they had to explicitly provide a reason for doing so - The chambers judge failed to do so - It was apparent that the wife had been claiming the credits - The court ordered that, from 2009 onward, the parties were to share any tax benefit from credits under the Income Tax Act in proportion to their respective incomes - See paragraphs 16 to 24.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - In a corrigendum to a support order, a chambers judge ordered the father to pay $8,004 in retroactive soccer expenses as a special expense under s. 7 of the Federal Child Support Guidelines - The father appealed, asserting, inter alia, that the order applied to a period in excess of three years and there was inadequate documentation - The Saskatchewan Court of Appeal dismissed the appeal - The same rationale regarding retroactive child support applied to the order for retroactive soccer expenses - The father's conduct had been blameworthy - Regarding documentation, s. 7 specifically provided that expenses could be estimated - This wording provided the chambers judge with the authority to make the finding that he had made on the basis of affidavit evidence - The chambers judge's choice to make the determination in the absence of receipts was not unreasonable - See paragraphs 43 to 50.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Child support guidelines - Exceptions and exemptions (incl. undue hardship) - [See Family Law - Topic 4050 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - The parties were married in 1984, separated in 2000 and divorced in 2004 - They had two children, born in 1991 and 1994 - In 2002, the parties entered into a comprehensive separation agreement - One of the terms required the disclosure of income information each year for the purposes of updating the parties' child support obligations - Such disclosure did not occur until 2011 - With disclosure, it was apparent that the father's child support payments had lagged behind his increases in income - In 2012, the mother sought orders for retroactive and ongoing child support - A chambers judge fixed the arrears for the years 2004 to 2009 at $21,884 - He then ordered the father to pay one half of that amount, $10,942, within 30 days - The mother appealed, asserting that the reduction to one half was based on a finding that the full payment would constitute a hardship to the father and that the chambers judge had erred by not considering the possibility of alleviating the hardship by ordering payment by instalments - The Saskatchewan Court of Appeal dismissed the appeal - There was no doubt that the chambers judge had formulated his reasoning with a "broad consideration of hardship" in mind - He fashioned an order that minimized hardship for the father and fit the circumstances - The chambers judge had balanced the competing factors and had properly utilized his discretion - See paragraphs 77 to 88.

Family Law - Topic 4095

Divorce - Corollary relief - Incidental matters - Order re income tax benefits respecting children - [See first Family Law - Topic 4045.4 ].

Family Law - Topic 4248

Divorce - Evidence and proof - Affidavit evidence - A chambers judge made a number of determinations based on controverted affidavit evidence and made a child support order - The father appealed, asserting that the chambers judge was in no position to make a support order without obtaining further evidence - The Saskatchewan Court of Appeal dismissed the appeal - Rule 605(1) of the Queen's Bench Rules explicitly empowered judges to "try" issues on the basis of affidavit evidence - The father provided no authority for his position that basing a decision on controverted evidence constituted, by itself, reversible error - Contradictions in affidavit evidence alone were not enough to invalidate a support order, even where the order was based solely on affidavit evidence - See paragraphs 12 to 15.

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. 8].

Twist v. Twist, [1997] Sask.R. Uned. 135 (C.A.), refd to. [para. 15].

Bromm v. Bromm (2010), 362 Sask.R. 190; 500 W.A.C. 190; 2010 SKCA 149, refd to. [para. 15].

Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd. et al. (2002), 223 Sask.R. 236; 277 W.A.C. 236; 218 D.L.R.(4th) 86; 2002 SKCA 100, refd to. [para. 15].

McLaughlin v. McLaughlin (1998), 113 B.C.A.C. 224; 184 W.A.C. 224; 167 D.L.R.(4th) 39 (C.A.), refd to. [para. 19].

Brooke v. Hertz (2008), 327 Sask.R. 162; 2008 SKQB 461 (Fam. Div.), refd to. [para. 19].

Crowdis v. Crowdis (2003), 235 Sask.R. 201; 2003 SKQB 236 (Fam. Div.), refd to. [para. 19].

Chrones v. Scott, [1998] 1 W.W.R. 477; 160 Sask.R. 79 (Q.B.), refd to. [para. 19].

Finlay v. Minister of Finance of Canada et al. (1990), 115 N.R. 321; 71 D.L.R.(4th) 422 (F.C.A.), refd to. [para. 21].

R. v. R.R.J. (2009), 279 B.C.A.C. 1; 473 W.A.C. 1; 2009 BCCA 580, refd to. [para. 21].

R. v. J.E.O. (2013), 417 Sask.R. 244; 580 W.A.C. 244; 2013 SKCA 82, refd to. [para. 21].

Smith v. Smith (2010), 349 Sask.R. 247; 2010 SKQB 2, refd to. [para. 24].

Hughes v. Payson (2011), 372 Sask.R. 97; 2011 SKQB 116 (Fam. Div.), refd to. [para. 49].

Aboo v. Mota, [2010] Sask.R. Uned. 179; 2010 SKQB 368 (Fam. Div.), refd to. [para. 49].

Peltier v. Peltier (2008), 314 Sask.R. 211; 435 W.A.C. 211; 2008 SKCA 151, dist. [para. 56].

Peltier v. Taylor - see Peltier v. Peltier.

D.M.N. v. P.D.L., [2005] Sask.R. Uned. 38; 2005 SKCA 151, refd to. [para. 57].

Naby v. Laverdiere - see D.M.N. v. P.D.L.

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 61].

Locke v. Goulding (2012), 318 Nfld. & P.E.I.R. 91; 989 A.P.R. 91; 2012 NLCA 8, refd to. [para. 85].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 7(3) [para. 18].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.).

Rules of Court (Sask.), rule 605(1) [para. 14].

Counsel:

Rani L. Grewall, for the appellant;

Roger J.F. Lepage and André Poulin-Denis, for the respondent.

This appeal and cross-appeal were heard on June 12, 2013, by Ottenbreit, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On August 29, 2013, Herauf, J.A., delivered the following reasons for judgment for the court.