M.D.J. v. C.W.S., (2015) 462 Sask.R. 44 (QB)

• Judge: Keene, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 20, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 462 Sask.R. 44 (QB);2015 SKQB 144

M.D.J. v. C.W.S. (2015), 462 Sask.R. 44 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.009

M.D.J. (petitioner/respondent by counter-petition) v. C.W.S. (respondent/petitioner by counter-petition)

(2012 FLD No. 423; 2015 SKQB 144)

Indexed As: M.D.J. v. C.W.S.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Keene, J.

May 20, 2015.

Summary:

The parties separated after a three year relationship. They had one child. The mother sought sole custody of the child and supervised parenting time for the father. The father sought joint custody, child support, and a division of property.

The Saskatchewan Court of Queen's Bench, Family Law Division, granted the mother sole custody with access for the father on alternating weekends. The father's property claim was dismissed.

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 314

Marriage - Common law marriage - What constitutes - [See Family Law - Topic 1001 ].

Family Law - Topic 684

Husband and wife - Property rights during and after common law marriage or relationship - Family home - The parties were in a common law relationship from November 2009 to November 2012 - They lived in a house that the wife owned before the relationship began - The husband sought a division of property under the Family Property Act - The Saskatchewan Court of Queen's Bench, Family Law Division, was not prepared to grant an unequal division of the home in favour of the wife, even though the spousal relationship was brief - The house was valued as of the date of adjudication (March 2015), while the date of application (January 2013) was used to set the amount owing against the house - While it was common for a court to recognize that the rising market resulted in the date of adjudication being used for the latter, it made no sense to have the husband, who had made no contribution to the mortgage since the date of application, receive a windfall of half of the payments made solely by the wife - See paragraphs 177 to 183.

Family Law - Topic 695

Husband and wife - Property rights during and after common law marriage or relationship - Valuation (incl. time for) - [See Family Law - Topic 684 ].

Family Law - Topic 1001

Common law, same-sex or adult interdependent relationships - What constitutes common law relationship - The parties met in August 2009 and separated in November 2012 - The Saskatchewan Court of Queen's Bench, Family Law Division, found that the parties were in a common law relationship based on the following: (1) the husband moved into the wife's home in October or November 2009; (2) they presented themselves as a couple to the community; (3) they shared the same bed, ate together, and while not sharing their finances, nonetheless drew support from each other for food and other necessities; (4) they considered themselves a family after the birth of their child in June 2010 and announced this to the community; (5) they went to family functions and hosted family functions as a couple; (6) they filed their income taxes for 2009 to 2011 as common law partners; (7) the wife attended with the husband at his medical and workers' compensation appointments; and (8) the wife tried to get the husband to sign a cohabitation agreement, seemingly acknowledging that they were in a spousal relationship - See paragraph 172.

Family Law - Topic 1004

Common law, same-sex or adult interdependent relationships - Family home - [See Family Law - Topic 684 ].

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents (incl. parental alienation) - The parties separated after a three year relationship - They had one child (Z.) who was born in 2010 - The mother was a real estate agent who worked primarily from home - The father had been off work for several years due to a workplace injury - He lived in his mother's residence - At issue was custody of Z. - The Saskatchewan Court of Queen's Bench, Family Law Division, granted the mother sole custody - The mother had been the primary parent since birth - She had demonstrated a more organized and committed approach to parenting - She arranged for medical and dental appointments, provided opportunities for Z.'s social development, and nurtured a strong and loving bond with Z. on a daily basis - By contrast, the father was in pain, frequently napped and generally did not do much - He had adversely affected Z.'s emotional health - Z. exhibited anxiety, and frequently repeated negative and disturbing things that the father had said about the mother - The evidence respecting the father's previous relationships suggested a pattern of mean-spirited conduct - The parties now only communicated through lawyers - In order to minimize the father's ability to cast the mother in a negative light, his access was limited to alternating weekends - See paragraphs 133 to 165.

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - [See Family Law - Topic 1891 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - [See Family Law - Topic 1891 ].

Cases Noticed:

Ackerman v. Ackerman (2014), 442 Sask.R. 113; 616 W.A.C. 113; 2014 SKCA 86, refd to. [para. 154].

Ruskin v. Dewar (2003), 243 Sask.R. 126; 2003 SKQB 514 (Fam. Div.), refd to. [para. 172].

Phillips v. Phillips (2010), 362 Sask.R. 124; 500 W.A.C. 124; 2010 SKCA 117, refd to. [para. 177].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 190].

Counsel:

Sherry L. Fitzsimmons, for the petitioner;

Davin R. Burlingham, for the respondent.

This matter was heard before Keene, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on May 20, 2015.