McPhail v. Hunt, (2009) 342 Sask.R. 225 (FD)

• Judge: Popescul, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 09, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 342 Sask.R. 225 (FD);2009 SKQB 403

McPhail v. Hunt (2009), 342 Sask.R. 225 (FD)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. OC.053

Wendy Rose McPhail (petitioner) v. Jeffrey Frank Hunt (respondent)

(2008 F.L.D. No. 325; 2009 SKQB 403)

Indexed As: McPhail v. Hunt

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Popescul, J.

October 9, 2009.

Summary:

McPhail and her husband had three children, born in 1993, 1995 and 1999. McPhail and her husband separated in October 2001. McPhail and Hunt began cohabiting sometime between November 2002 and September 2003. They separated in July 2008. McPhail commenced a petition against Hunt, seeking relief under the Family Property Act, the Children's Law Act and the Family Maintenance Act. She brought an application requesting interim relief, including an interim order requiring Hunt to pay child support of $4,617 per month and spousal support of $2,574 per month.

The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application for interim child support and granted an order requiring Hunt to pay spousal support of $1,500 per month for eight months.

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children (in loco parentis) - McPhail and her husband had three children, born in 1993, 1995 and 1999 - McPhail and her husband separated in October 2001 - McPhail and Hunt began cohabiting sometime between November 2002 and September 2003 - They separated in July 2008 - McPhail commenced a petition against Hunt, seeking relief under the Family Property Act, the Children's Law Act and the Family Maintenance Act - She brought an application requesting interim relief, including an interim order requiring Hunt to pay child support of $4,617 per month - The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application for interim child support - The court could make child support orders in disputed in loco parentis cases where the applicant established a prima facie case for entitlement - While Hunt and McPhail lived together along with the children and Hunt had assisted McPhail in some aspects of caring for the children, the precise nature and quality of the relationship was very much in dispute - Hunt had fulfilled duties often associated with those of a parent - However, the parties never contemplating changing the children's names or that the children would be adopted by Hunt - Hunt did not routinely discipline the children - When McPhail was away, the children normally stayed with their father - Although Hunt was involved in the children's activities, this was almost always in situations where he was accompanying McPhail - McPhail had fallen short of establishing a prima facie case that Hunt stood in loco parentis - See paragraphs 14 to 23.

Family Law - Topic 2224

Maintenance of wives and children - Interim relief - Interim maintenance - [See Family Law - Topic 2203 ].

Family Law - Topic 2224

Maintenance of wives and children - Interim relief - Interim maintenance - McPhail and Hunt began cohabiting sometime between November 2002 and September 2003 - They separated in July 2008 - McPhail commenced a petition against Hunt, seeking relief under the Family Property Act, the Children's Law Act and the Family Maintenance Act - She brought an application requesting interim relief, including an interim order requiring Hunt to pay spousal support of $2,574 per month - The Saskatchewan Court of Queen's Bench, Family Law Division, granted an order requiring Hunt to pay spousal support of $1,500 per month for eight months - The parties had combined incomes approaching $350,000 annually - However, their liabilities resulted in minimal net worth - McPhail was in need of some financial assistance, although not to the degree that she had suggested - Hunt was able to pay - A modest transfer of funds from Hunt to McPhail would alleviate the majority of McPhail's negative cash flow problem and would go some way to relieve the economic hardship that she had experienced due to the breakdown of the spousal relationship - McPhail had significant income and the cohabitation could only be described as short term - Those factors led the court to limit the term of the payments to a total period of eight months - See paragraphs 24 to 34.

Infants - Topic 2563

Parentage of children - Support and other claims - Interim support - [See Family Law - Topic 2203 ].

Cases Noticed:

V.J.D. v. V.J.S.W. (2008), 322 Sask.R. 238; 2008 SKQB 373, refd to. [para. 16].

C.M.M. v. D.G.P., [2005] Sask.R. Uned. 2; 13 R.F.L.(6th) 234; 2005 SKCA 2, refd to. [para. 22].

Marcotte v. Marcotte (2008), 315 Sask.R. 280; 2008 SKQB 223 (Fam. Div.), refd to. [para. 27].

Schaffel v. Schaffel (2008), 313 Sask.R. 203; 2008 SKQB 91 (Fam. Div.), refd to. [para. 36].

Conley v. Conley (1985), 44 Sask.R. 76 (Q.B.), refd to. [para. 36].

Waldherr v. Waldherr (1992), 106 Sask.R. 140 (Q.B.), refd to. [para. 36].

Counsel:

Iffat B. Ritter, for the petitioner, Wendy Rose McPhail;

Gregory G. Walen, Q.C., for the respondent, Dr. Jeffrey Frank Hunt;

Valerie G. Watson, for Darcy Rex McPhail.

This application was heard by Popescul, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on October 9, 2009.