L.J.L. v. L.R.S., 2013 SKQB 168

• Judge: Turcotte, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 03, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 168;(2013), 420 Sask.R. 89 (FD)

L.J.L. v. L.R.S. (2013), 420 Sask.R. 89 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.054

L.J.L. (petitioner) v. L.R.S. (formerly L.R.L.) (respondent)

(1995 Div. No. 04972; 2013 SKQB 168)

Indexed As: L.J.L. v. L.R.S.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Prince Albert

Turcotte, J.

May 3, 2013.

Summary:

A mother applied to confirm a provisional child support variation order made in Ontario.

The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the application in part.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See second Family Law - Topic 4045.11 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties married in August 1990 - The mother had a child from a prior relationship, formally adopted by the father during the marriage - The parties had two children - During the marriage, the parties resided on the family farm - The father was primarily responsible for the day-to-day operations of the farm and the mother was essentially a stay-at-home mother - The parties separated in July 1995 - At a pre-trial settlement conference, the parties reached an agreement with respect to custody, access, child support and spousal support - The mother moved to Ontario - In 2011, the mother obtained a provisional child support variation order in Ontario - She applied to confirm the order in Saskatchewan - At issue was, inter alia, determination of the father's income - The Saskatchewan Court of Queen's Bench, Family Law Division, noted that the father had a grade 10 education - He worked on the farm and also had off-farm income working in the bush - He no longer earned off-farm income where he had health problems - The provisional Court imputed income to the father in the amount of $80,000 per annum, but had no income information from the father upon which to base that determination - The father's income information indicated that his actual income had been significantly less than $80,000 per year - Accordingly, the court was not prepared to confirm that part of the provisional order - See paragraphs 55 and 56 - To arrive at a determination of a farmer's income for child support purposes, the courts had adopted a flexible approach, having regard for the provisions of ss. 15 to 20 of the Guidelines - This flexible approach allowed for consideration of the reasonableness of farming expenses claimed by a farmer for income tax purposes in determining the income for child support purposes - Applying these principles, the court determined the father's income - See paragraphs 57 to 62.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - The parties married in August 1990 - The mother had a child from a prior relationship, formally adopted by the father during the marriage - The parties had two children - During the marriage, the parties resided on the family farm - The father was primarily responsible for the day-to-day operations of the farm and the mother was essentially a stay-at-home mother - The parties separated in July 1995 - At a pre-trial settlement conference, the parties reached an agreement with respect to custody, access, child support and spousal support - The mother moved to Ontario - In 2011, the mother obtained a provisional child support variation order in Ontario - She applied to confirm the order in Saskatchewan - At issue was, inter alia, the entitlement of adult children to child support - The provisional court determined that Jason ceased being a child of the marriage as at April 2011 - Nevertheless, the provisional court made orders with respect to the payment of ongoing child support with respect to Jason for the years 2004 to 2011, together with the payment of tuition expenses incurred by Jason during some of those years - The Saskatchewan Court of Queen's Bench, Family Law Division, was not prepared to confirm this part of the provisional order - As Jason was no longer a child of the marriage at the time of the provisional hearing in Ontario, there was no jurisdiction for the provisional court to make the orders that it did - See paragraph 63.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Children over the age of majority - The parties married in August 1990 - The mother had a child from a prior relationship, formally adopted by the father during the marriage - The parties had two children - During the marriage, the parties resided on the family farm - The father was primarily responsible for the day-to-day operations of the farm and the mother was essentially a stay-at-home mother - The parties separated in July 1995 - At a pre-trial settlement conference, the parties reached an agreement with respect to custody, access, child support and spousal support - The mother moved to Ontario - In 2011, the mother obtained a provisional child support variation order in Ontario - She applied to confirm the order in Saskatchewan - At issue was, inter alia, the entitlement of adult children to child support - As at the date of the provisional hearing each of Dustin and Annette were over the age of 18 - Dustin was in his second year of university and Annette was completing her high school diploma - It was anticipated that Annette would start attending university in the fall of 2012 - On that basis, the provisional court granted an order that had prospective and retrospective effect for each of Dustin and Annette, including a requirement that the father reimburse the mother for certain educational, orthodontic and activity expense items - Further, the provisional order retroactively varied the terms of the judgment with respect to the child support payable for Dustin, and prospectively varied the child support payable for Dustin and Annette - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the evidence did not support a finding that the father should pay retroactive support for the children to a date earlier than the date of the provisional hearing in Ontario - In the circumstances, it was appropriate that there be a continuing order of child support - However having regard for the father's circumstances and taking into consideration Dustin and Annette's ability to contribute to their own post-secondary education, the court concluded that the measure of that award should only be based on the Table amount of support having regard for the court's determination of the father's income - See paragraphs 64 to 88.

Family Law - Topic 4047.2

Divorce - Corollary relief - Maintenance - Enforcement - Confirmation of provisional order - [See both Family Law - Topic 4045.11 ].

Cases Noticed:

Kyler v. Kyler (1992), 104 Sask.R. 146; 42 R.F.L.(3d) 315 (Q.B.), refd to. [para. 2].

Pattison v. Craig, [1995] S.J. No. 284 (Q.B.), refd to. [para. 2].

Spytkowsky v. Spytkowsky, [2010] O.T.C. Uned. 1760; 2010 ONSC 1760, refd to. [para. 2].

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. 4].

Geran v. Geran (2011), 371 Sask.R. 233; 518 W.A.C. 233; 2011 SKCA 55, refd to. [para. 4].

Ethier v. Skrudland (2011), 366 Sask.R. 203; 506 W.A.C. 203; 2011 SKCA 17, refd to. [para. 4].

Johnson v. Johnson et al. (2012), 399 Sask.R. 196; 552 W.A.C. 196; 2012 SKCA 87, refd to. [para. 58].

Poff v. Fenell (1998), 173 Sask.R. 275 (Q.B. Fam. Div.), refd to. [para. 58].

Dean v. Friesen (1999), 185 Sask.R. 208; 50 R.F.L.(4th) 363 (Q.B. Fam. Div.), refd to. [para. 58].

Rudachyk v. Rudachyk (1999), 180 Sask.R. 73; 205 W.A.C. 73; 47 R.F.L.(4th) 363 (C.A.), refd to. [para. 58].

Huber v. Yaroshko (2000), 194 Sask.R. 48; 2000 SKQB 114 (Fam. Div.), refd to. [para. 58].

Tamke v. Tamke, [2001] Sask.R. Uned. 247; 2001 SKQB 528 (Fam. Div.), refd to. [para. 58].

Shmyr v. Shmyr (2003), 233 Sask.R. 87; 2003 SKQB 209, refd to. [para. 58].

Ostrowski v. Haas (2005), 268 Sask.R. 200; 2005 SKQB 347, refd to. [para. 58].

Krzak v. Erixon (2008), 326 Sask.R. 265; 2008 SKQB 468 (Fam. Div.), refd to. [para. 58].

Weisbrod v. Weisbrod (2010), 361 Sask.R. 231; 2010 SKQB 355 (Fam. Div.), refd to. [para. 58].

Maunder v. McNichol (2013), 413 Sask.R. 269; 2013 SKQB 73 (Fam. Div.), refd to. [para. 58].

S.A.F. v. R.L.G., [2005] Sask.R. Uned. 199; 22 R.F.L.(6th) 371; 2005 SKQB 519 (Fam. Div.), refd to. [para. 79].

Olszewski v. Willick (2009), 343 Sask.R. 247; 472 W.A.C. 247; 2009 SKCA 133, refd to. [para. 83].

Boyachek v. Fleming (2011), 366 Sask.R. 163; 506 W.A.C. 163; 2011 SKCA 11, refd to. [para. 85].

Chyz v. Prystupa (2008), 321 Sask.R. 34; 2008 SKQB 347 (Fam. Div.), refd to. [para. 87].

Counsel:

Marcel A. Simonot, Q.C., for the petitioner;

No one appearing for the respondent.

This application was heard by Turcotte, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Prince Albert, who delivered the following decision on May 3, 2013.