LaFreniere v. LaFreniere, 2014 SKCA 13

• Judge: Lane, Klebuc and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 29, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 13;(2014), 433 Sask.R. 121 (CA)

LaFreniere v. LaFreniere (2014), 433 Sask.R. 121 (CA);

    602 W.A.C. 121

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. FE.034

Sheila Ann LaFreniere (appellant) v. Bruce Charles LaFreniere (respondent)

(CACV2374; 2014 SKCA 13)

Indexed As: LaFreniere v. LaFreniere

Saskatchewan Court of Appeal

Lane, Klebuc and Caldwell, JJ.A.

January 29, 2014.

Summary:

A wife petitioned for a divorce and applied for interim spousal support, a restraining order against the husband, and an interim distribution of family property.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a judgment reported (2013), 416 Sask.R. 231, dismissed the application for interim support and a restraining order, but made an interim distribution of property. The wife appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Family Law - Topic 4082

Divorce - Corollary relief - Interim maintenance - Circumstances when refused - Spouses separated in 2011 after 15 years' marriage - The 63 year old husband retired in 2008, living on his $48,000 per year pension - He remained in the family home - The 55 year old wife was a nursing assistant from 1987 until a 2008 workplace injury - She had not worked since and lived with her aged mother - She received $20,000 per year in workers' compensation benefits until those terminated in 2011 - Her primary income now was $7,800 per year in CPP disability benefits - The wife sought $3,000 per month in interim spousal support - The trial judge held that the wife had not established a prima facie entitlement to spousal support - She had a need for support, having a shortfall of $1,250 per month - However, the wife failed to adduce sufficient evidence to show that she lacked the capacity to meet her needs without spousal support - The wife did not say when and why her workers' compensation benefits terminated - If she remained unable to work, she failed to testify as to why benefits were terminated and why she did not appeal - The wife's bald assertion that she could no longer work was not evidence - No medical reports or opinions were provided - There was no evidence that the 2008 injury, or other health concerns, limited her ability to work full time at the date of separation or that they currently limited her ability to work - The wife's needs could be met if she either returned to work or, if unable to do so, her workers' compensation benefits were reinstated - The Saskatchewan Court of Appeal dismissed the wife's appeal from that interlocutory decision - The parties had limited means - The trial judge attempted to craft a decision (no interim support but interim distribution of matrimonial assets) which would allow the straightforward matter to proceed as soon as possible - The court stated that "Without passing on either the issue of the extent of the Chambers judge's inquiry or his interpretation of MacDonald , we are all of the view this appeal ought to be dismissed with costs.".

Family Law - Topic 4085

Divorce - Corollary relief - Interim maintenance - Evidence and proof (incl. disclosure) - [See Family Law - Topic 4082 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Practice - Topic 8824 ].

Practice - Topic 8824

Appeals - General principles - Duty of appellate court re interim orders - The Saskatchewan Court of Appeal stated that the court "discourages appeals from interim orders in matrimonial matters ... Such appeals are to be discouraged so as to avoid a delay in having the issues resolved at a trial and, further, to try and reduce the parties' costs" - See paragraph 1.

Cases Noticed:

Foss v. Foss, [1991] S.J. No. 116 (C.A.), refd to. [para. 1].

Hall v. Hall (2011), 375 Sask.R. 126; 525 W.A.C. 126; 337 D.L.R.(4th) 89; 2011 SKCA 86, refd to. [para. 1].

Johnson v. Johnson et al. (2012), 399 Sask.R. 196; 552 W.A.C. 196; 356 D.L.R.(4th) 459; 2012 SKCA 87, refd to. [para. 1].

Tether v. Tether, [2009] 4 W.W.R. 274; 314 Sask.R. 121; 435 W.A.C. 121; 2008 SKCA 126, refd to. [para. 1].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 2].

MacDonald v. MacDonald (2010), 350 Sask.R. 245; 487 W.A.C. 245; 2010 SKCA 60, refd to. [para. 8].

Counsel:

James Morrison, for the appellant;

Deidre Aldcorn, for the respondent.

This appeal was heard on January 29, 2014, before Lane, Klebuc and Caldwell, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court was delivered orally by Lane, J.A., on January 29, 2014, with written reasons filed on February 6, 2014.