Marquis v. Marquis, 2013 SKQB 76

• Judge: Turcotte, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 01, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 76;(2013), 413 Sask.R. 274 (FD)

Marquis v. Marquis (2013), 413 Sask.R. 274 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MR.056

Deon Philip Marquis (petitioner) v. Nicole Melissa Marquis (respondent)

(2011 Div. No. 688; 2013 SKQB 76)

Indexed As: Marquis v. Marquis

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Turcotte, J.

March 1, 2013.

Summary:

A couple separated. The wife applied for the determination of interim spousal and child support. The husband resisted the payment of spousal support, relying on a cohabitation agreement. The parties' incomes were also in issue.

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

Family Law - Topic 2210

Maintenance of wives and children - General principles - Calculation or attribution of income - A couple married in 2005 and separated in 2011 - The wife applied for the determination of interim spousal and child support - At issue, inter alia, was the parties' incomes - The husband remained employed with the RCMP in the same position in Wakaw as at the date of separation - The wife's counsel argued that the husband's income should be based on his line 150 income taken from his 2011 income tax return - She pointed to his prior years' tax returns which disclosed line 150 income for 2009 and 2010 respectively of $141,280 and $106,859 - She noted that his average total income for 2009, 2010 and 2011 amounted to $121,836.66 - The husband's counsel argued that his income should be determined based on his more recent pay information and calculated at $113,179 - She noted that his 2009 income included amounts for living in a northern remote location, while his 2011 income included a relocation bonus - She asserted that having regard for his 2010 income while the parties resided in Regina, $113,179 was a reasonable estimate - The Saskatchewan Court of Queen's Bench, Family Law Division, determined the husband's income to be $113,179 for interim support purposes - See paragraphs 10, 12, 13 and 15.

Family Law - Topic 2486

Maintenance of wives and children - Awards - Effect of income or potential income of claimant - A couple married in 2005 and separated in 2011 - The wife applied for the determination of interim spousal and child support - At issue, inter alia, was the parties' incomes - The wife indicated that during the marriage she had limited, if not non-existent, employment opportunities available to her - The parties moved frequently, initially to remote locations to accommodate advancement for the husband in his RCMP career path - The wife did, while the parties were living in Regina, start a home-based business as an amateur photographer - Although the business was interrupted when the parties moved to Wakaw, she did continue to develop her photography business there - Also in Wakaw, she started working from their home in a multi-level marketing company selling a health product - Her 2009, 2010 and 2011 income tax information showed earnings of $896, $736 and $2,602 respectively, excluding the universal child care benefit she received - The wife intended to return to university full-time - The Saskatchewan Court of Queen's Bench, Family Law Division, held that, having regard for the wife's age, work history and other circumstances, it was reasonable that she be expected to contribute towards some of her expenses - Having regard for her history of earnings from her home-based photography and multi-level marketing ventures, her experience as a waitress, the minimum wage rate in Saskatchewan, together with her other circumstances, the court imputed annual employment income to her of $6,000 - To that, the court added the Canada grant funds of $5,168 of her student loan in the determination of her income for child and spousal support purposes, for a total of $11,168 - See paragraphs 8, 9, 11, 12 and 14 to 19.

Family Law - Topic 3353

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In divorce actions - Corollary relief - A wife applied for the determination of interim spousal and child support - The husband resisted the payment of spousal support, relying on a cohabitation agreement - The Saskatchewan Court of Queen's Bench, Family Law Division, reviewed the cohabitation agreement and held that it was satisfied that the wife had met the threshold of demonstrating a reasonable prospect of success that the agreement would be impeached at trial - The court was not satisfied, on the parties' affidavit evidence filed in respect of this interim application, that the wife had met the burden of demonstrating that there was a reasonable prospect of success that she would demonstrate at trial that the circumstances surrounding the bargaining process vitiated the execution of the agreement - However, there was no provision in the agreement that substantively addressed the objectives of the Divorce Act and particularly the factors and objectives set out at ss. 15.2(4) and 15.2(6) - Accordingly, the agreement should not be given deference pending trial - See paragraphs 20 to 24 and 29 to 48.

Family Law - Topic 3361

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Waiver of right to maintenance - [See Family Law - Topic 3353 ].

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - General - [See Family Law - Topic 4084 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - A wife sought interim spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, reviewed the husband's financial statement - It disclosed total annual expenses of $137,326.89 and having regard for his income of $113,179.44, reflected an annual deficit of $24,147.45 - However, included within his expenses were payroll deductions for income tax estimated at $30,000, and pension and Canada Savings Bonds of $7,642 - The latter expense actually represented savings for his future, regardless of whether the same were imposed on him by his employer or not - Further, his estimated income tax payable would be less were he required to pay periodic spousal support having regard for the tax inclusion and deduction rules - The husband also showed annual expenses for meals outside of the home of $3,000, children's allowances and gifts of $2,600, RRSP and RESP expense of $12,500, banking, legal and accounting expense of $22,915.73 and recreation, vacation and alcohol and tobacco expense of $5,600 - He had room within his budgeted expenses to adjust his affairs such that he had an ability to pay spousal support - See paragraph 28.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 2210 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income or potential income of claimant - [See Family Law - Topic 2486 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non-divorce cases) - Calculation or attribution of income - [See Family Law - Topic 2486 ].

Family Law - Topic 4078

Divorce - Corollary relief - Interim maintenance - Effect of separation agreement, etc. - [See Family Law - Topic 3353 ].

Family Law - Topic 4084

Divorce - Corollary relief - Interim maintenance - Awards - A wife sought interim spousal support - The Saskatchewan Court of Queen's Bench, Family Law Division, determined that the wife's income was $11,168 for child and spousal support purposes and the husband's was $113,179; the wife had a continuing need for support and the husband had an ability to pay - See paragraphs 1 to 28 - The court ordered the husband to pay periodic spousal support to the wife of $1,200/month until further court order or written agreement of the parties - $1,200/month was at the low end of the range set out under the Spousal Support Advisory Guidelines - However, the husband had indicated that he would maintain the wife and the children as payees or beneficiaries under his employment related health, medical and dental plans and that he continued to pay the wife's life insurance premiums, student loans and cell phone charges - Having regard for the court's assessment of the parties' financial needs, including its determination of child support payable by the husband to the wife ($1,534/month, plus s. 7 expenses), each of the parties would be left with a monthly shortfall of available cash to meet their expenses and each would have to adjust their budgets accordingly - See paragraph 49.

Cases Noticed:

Vierling v. Boudreau, [1997] 160 Sask.R. 81 (Q.B.), folld. [para. 16].

Baerg v. Baerg (1997), 162 Sask.R. 194 (Fam. Div.), folld. [para. 16].

Mariner v. Iglesias (1999), 187 Sask.R. 287; 1999 SKQB 203 (Fam. Div.), folld. [para. 16].

P.L.D. v. K.W.D., [1999] Sask.R. Uned. 184; 1999 CanLII 12891, folld. [para. 16].

Miglin v. Miglin, [2003] 1 S.C.R. 303. 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, appld. [para. 21].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 23].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577, refd to. [para. 23].

Hein v. Hein, [2004] Sask.R. Uned. 134; 2004 SKQB 277 (Fam. Div.), refd to. [para. 24].

Evashenko v. Evashenko (2011), 366 Sask.R. 228; 506 W.A.C. 228; 2011 SKCA 22, refd to. [para. 32].

Kelly v. Kelly et al. (2004), 189 O.A.C. 305; 72 O.R.(3d) 108 (C.A.), refd to. [para. 37].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 15 R.F.L.(4th) 201, refd to. [para. 46].

Counsel:

Tammi D. Hackl, for the petitioner;

Kelly A. Shaw, for the respondent.

This application was heard by Turcotte, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on March 1, 2013.