Molnar v. Bruton, 2013 SKQB 301

• Judge: Barrington-Foote, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 22, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 301;(2013), 428 Sask.R. 136 (FD)

Molnar v. Bruton (2013), 428 Sask.R. 136 (FD)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. SE.034

Tyson Molnar (petitioner) v. Tabatha Bruton (respondent)

(2013 F.L.D. No. 26; 2013 SKQB 301)

Indexed As: Molnar v. Bruton

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Yorkton

Barrington-Foote, J.

August 22, 2013.

Summary:

The parties began cohabiting in February or March 2011, together with the mother's two children from a previous relationship, Dominic and Lillian. They separated in June 2012, when the mother, who was six months pregnant, went to Ontario, where the parties' twins were born in August 2012. In November 2012, the parties resumed cohabiting. In December 2012, they separated. At issue on the mother's interim application for child and spousal support was whether the father was a parent to Dominic and Lillian within the meaning of s. 2(e) of the Family Maintenance Act and a spouse within the meaning of s. 2(d), the parties' incomes for support purposes and payment of certain expenses.

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

Family Law - Topic 1002

Common law relationships - Spouse - Meaning of - [See Family Law - Topic 2325 ].

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - At issue on the mother's interim application for child and spousal support was the parties' incomes - The father was a truck driver - In 2010, he had become self-employed - Prior to that, he had earned $47,413 in 2008, $49,399 in 2009 and $29,562 in employment income and $16,129 net business income in 2010 - He estimated his current income at $12,000 - The mother was not employed - The Saskatchewan Court of Queen's Bench, Family Law Division, held that this was an appropriate case to impute an income of $60,000 to the father - If he was unable to earn more than $12,000 from self-employment, he was intentionally underemployed - The court was not prepared to impute income to the mother, who was a single mother of four children, two of whom were infants - Further, she was hampered in her employment prospects due to an injury from an accident - See paragraphs 31 to 36.

Family Law - Topic 2221

Maintenance of wives and children - Interim relief - General - The parties began cohabiting in February or March 2011, together with the mother's two children from a previous relationship, Dominic and Lillian - They separated in June 2012, when the mother, who was six months pregnant, went to Ontario, where the parties' twins were born in August 2012 - In November 2012, the parties resumed cohabiting - In December 2012, they separated - At issue on the mother's interim application was whether the father was a parent to Dominic and Lillian within the meaning of s. 2(e) of the Family Maintenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the matter was to be determined at trial - As this was an interim application, the mother only had to make out a prima facie case - Much of the mother's evidence, if uncontradicted, did so - However, there was significant conflict in the evidence - The father's denials raised questions that went to the matter's crux - See paragraphs 16 to 23.

Family Law - Topic 2325

Maintenance of wives and children - Maintenance of wives - Spouse - What constitutes - The parties began cohabiting in February or March 2011, together with the mother's two children from a previous relationship - They separated in June 2012, when the mother, who was six months pregnant, went to Ontario, where the parties' twins were born in August 2012 - In November 2012, the parties resumed cohabiting - In December 2012, they separated - At issue on the mother's interim application was whether the father was a spouse within the meaning of s. 2(d) of the Family Maintenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the father was not a spouse within the meaning of the Act - The mother was not entitled to spousal support - Although the parties had cohabited in a relationship of some permanence, they had not cohabited in a relationship of some permanence after the twins were born as required by s. 2(d)(ii) - If the legislature had intended the test to be whether the parties had a child at the time proceedings were taken, or at any time, it could have chosen far clearer language to do so - The court read "are the parents of a child" in s. 2(d)(ii) to mean "while they are parents of a child" - This interpretation struck the appropriate balance between the competing legislative purposes engaged in this context - See paragraphs 24 to 30.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non divorce cases) - Special or extraordinary expenses - At issue on the mother's interim application for child and spousal support was whether the father's proportionate share of extraordinary expenses under s. 7 of the Federal Child Support Guidelines was to include pageant expenses for the parties' one year old twins - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the father was not required to pay pageant expenses - The evidence on the application did not establish that the expenses were "necessary and reasonable", given the children's ages, the activity's nature and the parties' incomes - See paragraphs 42 to 44.

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 2210 ].

Infants - Topic 2552

Parentage of children - Support and other claims - Lying-in expenses - The parties began cohabiting in February or March 2011, together with the mother's two children from a previous relationship - They separated in June 2012, when the mother, who was six months pregnant, went to Ontario, where the parties' twins were born in August 2012 - In November 2012, the parties resumed cohabiting - In December 2012, they separated - On an interim application, the mother sought an order requiring the father to pay maintenance of $500 per month under s. 9 of the Family Maintenance Act for a period of three months before and six months after the twins' birth - The Saskatchewan Court of Queen's Bench, Family Law Division, held that such an order was not necessary for the months of June or December 2012, when the parties were cohabiting - Nor was it appropriate for the period between July and November 2012, when the mother was in Ontario - However, the father was to pay maintenance of $1,000 for the two month period between the final separation and February 2013, being six months after the date on which the twins were born - This was within the language of s. 9 - The mother had demonstrated need and the father had an ability to pay - See paragraphs 45 to 48.

Infants - Topic 2552

Parentage of children - Support and other claims - Lying-in expenses - The parties began cohabiting in February or March 2011, together with the mother's two children from a previous relationship - They separated in June 2012, when the mother, who was six months pregnant, went to Ontario, where the parties' twins were born in August 2012 - In November 2012, the parties resumed cohabiting - In December 2012, they separated - On an interim application, the mother sought reimbursement from the father for prenatal and post-natal expenses under s. 9(1)(f) of the Family Maintenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the father was to pay his proportionate share of certain of the expenses - The court stated that it "must be careful to restrict the expenses claimed under this section to those relating to pre-natal care and the birth of the child, rather than the expenses incurred to clothe, feed, house, care for and otherwise maintain the child after he or she is born. Those are properly dealt with in the context of child support." - See paragraphs 37 to 41.

Infants - Topic 2555

Parentage of children - Support and other claims - Expenses incidental to birth - [See both Infants - Topic 2552 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See Family Law - Topic 2325 ].

Cases Noticed:

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19; [1999] 4 W.W.R. 633, refd to. [para. 16].

Crevier v. Brooks - see C.L.C. v. K.B.

C.L.C. v. K.B., [2003] Sask.R. Uned. 232; 2003 SKQB 447 (Fam. Div.), refd to. [para. 17].

Bodner v. Huckerby (2013), 415 Sask.R. 226; 2013 SKQB 89 (Fam. Div.), refd to. [para. 17].

Major v. Major (1998), 175 Sask.R. 34 (Q.B. Fam. Div.), refd to. [para. 18].

Prowse-Myers v. Myers, [2004] Sask.R. Uned. 44; 2 R.F.L.(6th) 408; 2004 SKQB 139 (Fam. Div.), refd to. [para. 19].

S.A.H. v. D.G.L. (2011), 387 Sask.R. 99; 2011 SKQB 430 (Fam. Div.), refd to. [para. 20].

Widdis v. Widdis (2000), 198 Sask.R. 15; 2000 SKQB 441, refd to. [para. 20].

Miller v. Pchajek - see C.M.M. v. D.G.P.

C.M.M. v. D.G.P., [2005] Sask.R. Uned. 2; 13 R.F.L.(6th) 234; 2005 SKCA 2, refd to. [para. 20].

Deck v. Winfield - see V.J.D. v. V.J.S.W.

V.J.D. v. V.J.S.W. (2008), 322 Sask.R. 238; 2008 SKQB 373, refd to. [para. 21].

Lygouriatis v. Gohm (2006), 288 Sask.R. 54; 2006 SKQB 448 (Fam. Div.), refd to. [para. 21].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; [1999] 8 W.W.R. 740, refd to. [para. 26].

Algner v. Algner, [2008] Sask.R. Uned. 63; [2008] 10 W.W.R. 509; 2008 SKQB 132 (Fam. Div.), refd to. [para. 33].

Ross v. Clarke (2007), 296 Sask.R. 256; 2007 SKQB 161 (Fam. Div.), refd to. [para. 37].

T.B. v. V.D. (1997), 155 Sask.R. 3 (Q.B. Fam. Div.), refd to. [para. 39].

J.K. v. K.B. (1995), 133 Sask.R. 245 (Q.B. Fam. Div.), refd to. [para. 39].

Carmichael v. Douglas, [2008] Sask.R. Uned. 136; 56 R.F.L.(6th) 420; 2008 SKQB 320, refd to. [para. 43].

Statutes Noticed:

Family Maintenance Act, S.S. 1997, c. F-6.2, sect. 2(d)(ii), sect. 9(1)(f) [para 4].

Authors and Works Noticed:

Payne, Julien D. and Payne, Marilyn A., Child Support Guidelines in Canada (2012), pp. 177, 178 [para. 32].

Rogerson, Carol, The Child Support Obligation of Step-parents (2000), generally [para. 20].

Counsel:

Gordon W. Pritchard, for the petitioner;

Lorie A. Chambers, for the respondent.

This application was heard by Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Yorkton, who delivered the following judgment on August 22, 2013.