M.M.L. v. P.M.F., (2005) 268 Sask.R. 159 (FD)

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 17, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 268 Sask.R. 159 (FD);2005 SKQB 348

M.M.L. v. P.M.F. (2005), 268 Sask.R. 159 (FD)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. AU.034

M.M.L. ("Jane") (petitioner) v. P.M.F. ("John") (respondent)

(2004 DIV. No. 135; 2005 SKQB 348)

Indexed As: M.M.L. v. P.M.F.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Ryan-Froslie, J.

August 17, 2005.

Summary:

In a divorce petition, a wife sought sole custody of the parties' child, spousal support, child support for the child and two other children of the marriage and an unequal division of matrimonial property.

The Saskatchewan Court of Queen's Bench, Family Law Division, determined the issues accordingly.

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.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - Application - Nongovernmental or private interference - A father sought a declaration that parents had a "constitutional right" guaranteed by the Charter to equal custody, parenting and decision-making respecting their children - He did not challenging any statutory provision - Rather he claimed that the mother had breached his and their child's Charter rights - He also argued that the court had to order shared parenting because it was his Charter right and that right superseded all others, including the child's best interests - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application - The Charter did not apply to disputes between private citizens - In matters of custody the primary consideration was the best interests of the child - This principle had not been altered by the Charter - See paragraphs 7 to 10.

Civil Rights - Topic 8350

Canadian Charter of Rights and Freedoms - Application - Exceptions - Matters of a purely private nature - [See Civil Rights - Topic 8311 ].

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare of child paramount - [See Civil Rights - Topic 8311 ].

Family Law - Topic 1889

Custody and access - Considerations in awarding custody - Capacity or conditions of parents - A mother sought sole custody of the parties' child with limited supervised access by the father - She alleged that the father was mentally unstable due to, inter alia, his bouts of depression - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that two thirds of Canadians, at some time in their lives, suffered depression - Depression, in and of itself, was not a ground to deny an individual a relationship with their child - There was no evidence that the father's depression affected his ability to parent - See paragraphs 14 to 16.

Family Law - Topic 1889

Custody and access - Considerations in awarding custody - Capacity or conditions of parents - A mother sought sole custody of the parties' child with limited supervised access by the father - She alleged that the father was mentally unstable due to, inter alia, his "bizarre behaviour" including two hunger strikes and his involvement with an organization known as Fathers For Justice - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that, while the father's hunger strikes were unconventional, they did not establish any mental instability nor reflect on his ability to parent - Many well-respected individuals had used hunger strikes as a way to draw attention to their causes - His association with a group which advocated shared parenting as a "right" did not reflect badly upon him - There was no evidence that the group had engaged in anything other than peaceful means to advance their cause - See paragraphs 14, 16 and 17.

Family Law - Topic 1889

Custody and access - Considerations in awarding custody - Capacity or conditions of parents - A mother sought sole custody of the parties' child (age four) with limited supervised access by the father - The mother had denied the father any contact with the daughter for more than one year because she no longer wanted the father in the child's life - The daughter had a strong bond to her father - The biggest impediment to the father's parenting was his anger, but he had taken steps to deal with it - The greatest impediment to the mother's parenting was her inability to recognize the importance of the father in the child's life - The mother had some health issues which could affect her ability to parent the child in the long term - She had also had a series of relationships resulting in her children having a number of different "father-figures" - The parties had co-parented for over 13 months after their first separation - The Saskatchewan Court of Queen's Bench, Family Law Division, granted the parties joint custody of the child - Parallel parenting would ensure the child's relationship with her father and would provide the child with a viable alternate residence should her mother's health deteriorate to the point where she was unable to care for the child - See paragraphs 18 to 34.

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents - [See second and third Family Law - Topic 1889 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - [See third Family Law - Topic 1889 ].

Family Law - Topic 2073

Custody and access - Joint custody - Considerations - [See third Family Law - Topic 1889 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A mother petitioned for divorce - She sought, inter alia, child support and spousal support - In May 2004, an interim order required the father to pay child support for his daughter and two step-daughters - In November 2004, the interim order was varied - Child support was reduced respecting two children and terminated respecting another - The Saskatchewan Court of Queen's Bench, Family Law Division, determined child support respecting the father's birth child and determined that the step-children were not entitled to child support - The court refused to make the order retroactive to May 2004 - To do so would reward the father for his failure to respond to the interim application and provide his financial information - The November order dealt with any inequity caused by the initial interim order - See paragraphs 61 to 65.

Family Law - Topic 4002.4

Divorce - Corollary relief - Maintenance and awards - Circumstances when refused - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - A wife petitioned for divorce - The parties had lived together for a total of just over five years - The wife had her degree and her current job before their co-habitation - Her income was similar to the husband's - She sought compensatory support because of the time taken from her employment to have the parties' child and non-compensatory support because her deterioration in health was allegedly the result of the separation - She sought $500 per month for one to two years - She had received interim spousal support of $1,000 for over one year - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the interim spousal support ordered to date compensated the wife for any economic disadvantage arising from the marriage or its breakdown - Her health issues existed prior to the parties' relationship and were not connected to the marriage or its breakdown - See paragraphs 68 to 70.

Family Law - Topic 4045.10

Divorce - Corollary relief - Maintenance - Support guidelines - Persons obliged to support children (in loco parentis) - A mother petitioned for divorce - She sought, inter alia, child support under s. 5 of the Federal Child Support Guidelines for a daughter (age 16) born of a prior relationship - The step-father took on the role of a parent until the parties' first separation in 2002 - Afterwards, they did not have a "real" relationship - The mother received child support from the child's biological father - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the child's needs were being met by her biological parents and that the step-father did not have to provide additional support - See paragraphs 49 to 60.

Cases Noticed:

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 8].

D.P. v. C.S., [1993] 4 S.C.R. 141; 159 N.R. 241; 58 Q.A.C. 1, refd to. [para. 8].

Droit de la famille - 1150 - see D.P. v. C.S.

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 8].

Gordon v. Keyes (1985), 67 N.S.R.(2d) 216; 155 A.P.R. 216; 45 R.F.L.(2d) 177 (C.A.), refd to. [para. 9].

C.G.H. v. D.M.H. (2002), 222 Sask.R. 141; 2002 SKQB 319 (Fam. Div.), refd to. [para. 33].

Beeler v. Beeler (1997), 161 Sask.R. 167 (Q.B. Fam. Div.), refd to. [para. 43].

Rudachyk v. Rudachyk (1999), 180 Sask.R. 73; 205 W.A.C. 73 (C.A.), refd to. [para. 43].

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 52].

Adler v. Jonas et al., [1998] B.C.T.C. Uned. C55; 48 R.F.L.(4th) 218 (S.C.), refd to. [para. 55].

Beatty v. Beatty (1997), 89 B.C.A.C. 283; 145 W.A.C. 283 (C.A.), refd to. [para. 55].

Adler v. Jonas et al. (1999), 4 B.C.T.C. 64; 48 R.F.L.(4th) 228 (S.C.), refd to. [para. 56].

MacArthur v. Demers (1998), 77 O.T.C. 147; 166 D.L.R.(4th) 172 (Gen. Div.), refd to. [para. 56].

Kaszas v. Guinta et al., [2001] O.T.C. 487; 20 R.F.L.(5th) 88 (Sup. Ct.), refd to. [para. 56].

Vongrad v. Vongrad, [2005] A.R. Uned. 430; 2005 ABQB 52, refd to. [para. 58].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 50 R.F.L.(4th) 302; 1999 BCCA 393, refd to. [para. 63].

Tedham v. Tedham (2003), 188 B.C.A.C. 297; 308 W.A.C. 297; 44 R.F.L.(5th) 204; 2003 BCCA 600, refd to. [para. 63].

Macdonald v. Macdonald (2005), 207 B.C.A.C. 201; 341 W.A.C. 201; 37 B.C.L.R.(4th) 131; 2005 BCCA 23, refd to. [para. 63].

Horner v. Horner (2004), 191 O.A.C. 28; 6 R.F.L.(6th) 140 (C.A.), refd to. [para. 63].

Park v. Thompson (2005), 197 O.A.C. 158 (C.A.), refd to. [para. 63].

Hubbard v. Gore-Hickman (2005) 266 Sask.R. 192; 2005 SKQB 265, refd to. [para. 63].

Gore-Hickman v. Gore-Hickman - see Hubbard v. Gore-Hickman.

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 69].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 73].

Webb v. Webb (1994), 135 N.S.R.(2d) 161; 386 A.P.R. 161 (S.C.), dist. [para. 86].

Carlson v. Carlson (1984), 34 Sask.R. 287 (C.A.), refd to. [para. 92].

Deyell v. Deyell (1991), 90 Sask.R. 81 (C.A.), refd to. [para. 93].

Counsel:

J.G. Brick, for the petitioner;

John, on his own behalf.

This petition was heard before Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on August 17, 2005.