Prescesky v. Prescesky, 2015 SKCA 111

• Judge: Lane, Jackson and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 27, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 111;(2015), 467 Sask.R. 180 (CA)

Prescesky v. Prescesky (2015), 467 Sask.R. 180 (CA);

    651 W.A.C. 180

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. NO.015

Daniel Steven Prescesky (appellant/petitioner) v. Mandy Lee Prescesky (respondent/respondent)

(CACV2634; 2015 SKCA 111)

Indexed As: Prescesky v. Prescesky

Saskatchewan Court of Appeal

Lane, Jackson and Whitmore, JJ.A.

October 26, 2015.

Summary:

A 2006 consent child support order required a father to pay child support of $1,220/month for the parties' two children based on an annual income of $85,000. A variation order was granted in December 2008 which determined the father's income to be $55,000 and directed him to pay child support of $769/month. A further variation order was granted in May 2011 which set the father's income at $67,000 and required him to pay child support of $950/month. In September 2012, ongoing child support was set at $1,822/month based on the father's income of $129,495. The mother applied to retroactively vary child support for the January 2009 to August 2012 period.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at (2014), 456 Sask.R. 306, allowed the application. The father was ordered to pay the mother retroactive child support of $21,624. The father appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 4018 ].

Family Law - Topic 2228

Maintenance of spouses and children - Interim relief - Variation of interim relief - [See Family Law - Topic 4018 ].

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 4018 ].

Family Law - Topic 2360.1

Maintenance of spouses and children - Maintenance of children - Variation of award or agreement - [See Family Law - Topic 4018 ].

Family Law - Topic 2383

Maintenance of spouses and children - Variation of - Jurisdiction - [See Family Law - Topic 4018 ].

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - [See Family Law - Topic 4045.8 ].

Family Law - Topic 2392

Maintenance of spouses and children - Variation of - Interim orders - [See Family Law - Topic 4018 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4018 ].

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation - Jurisdiction - A 2006 consent order required a father to pay child support of $1,220/month for the parties' two children based on an annual income of $85,000 - In 2008, child support was varied to $769/month based on imputed income of $55,000 - In 2011, child support was set at $950/month based on income of $67,000 consented to by the parties - It was subsequently revealed that the father's income had grown from $78,305 in 2009 to $134,808 in 2012 - Turcotte, J., allowed the mother's application to retroactively vary child support for the 2009 to 2012 period - The father appealed, arguing that Turcotte, J., erred by treating the 2008 order as an interim order, and the 2011 order as something other than a final order and then proceeding to vary it - The father argued that the 2011 order was an un-appealed final order covering past arrears - The Saskatchewan Court of Appeal dismissed the appeal - Courts had the authority to vary a final order on an interim basis pursuant to ss. 15.1 and 17 of the Divorce Act - It was clear that the 2008 order was an interim order - Nothing turned on whether the 2011 order was interim or final because of its terms - Every order, whether interim or final, still had to be construed - The 2011 order amended a previous interim order, which permitted the mother to proceed to trial - It used the term "estimated" regarding the father's income, and continued to require the father to provide his financial information annually - Turcotte, J., did not err by concluding that he had the authority to vary the 2011 order - See paragraphs 31 to 72.

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Child support guidelines - Changed circumstances - A 2006 consent order required a father to pay child support of $1,220/month for the parties' two children based on an annual income of $85,000 - In 2008, child support was varied to $769/month based on imputed income of $55,000 - In 2011, child support was set at $950/month based on income of $67,000 consented to by the parties - It was subsequently revealed that the father's income had grown from $78,305 in 2009 to $134,808 in 2012 - Turcotte, J., allowed the mother's application to retroactively vary child support for the 2009 to 2012 period - The father appealed, arguing that Turcotte, J., erred by failing to find a material change in circumstances before varying the 2011 order - The Saskatchewan Court of Appeal dismissed the appeal - The 2011 order amended the 2008 interim order and was made subject to further order of the court - By its terms, the 2011 order left to a future court the finalization of the amount of child support based on the father's income - The Court of Queen's Bench retained the power to vary or rescind the order without searching for a change in circumstances - See paragraphs 73 and 74.

Family Law - Topic 4077

Divorce - Corollary relief - Interim maintenance - Jurisdiction - [See Family Law - Topic 4018 ].

Family Law - Topic 4080

Divorce - Corollary relief - Interim maintenance - Variation of - [See Family Law - Topic 4018 ].

Cases Noticed:

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 21].

Procknow v. Procknow (1985), 42 Sask.R. 19 (Q.B.), refd to. [para. 34].

L.R. v. D.T. (1998), 178 Sask.R. 115 (Q.B. Fam. Div.), refd to. [para. 35].

Gaspers v. Gaspers, [2007] Sask.R. Uned. 92; 2007 SKQB 353 (Fam. Div.), affd. (2008), 311 Sask.R. 151; 428 W.A.C. 151; 2008 SKCA 94, refd to. [para. 35].

Malinowski v. Malinowski (2010), 349 Sask.R. 210; 2010 SKQB 27 (Fam. Div.), refd to. [para. 35].

Frey v. Frey (1987), 59 Sask.R. 153; 8 R.F.L.(3d) 154 (C.A.), refd to. [para. 39].

McRann v. McRann (2005), 263 Sask.R. 139; 2005 SKQB 207 (Fam. Div.), refd to. [para. 39].

Yeo v. Yeo (1998), 170 Nfld. & P.E.I.R. 44; 522 A.P.R. 44; 42 R.F.L.(4th) 418 (P.E.I.C.A.), refd to. [para. 40].

Keogan v. Weekes (2005), 263 Sask.R. 309; 2005 SKQB 114 (Fam. Div.), refd to. [para. 40].

Lepage v. Lepage (2006), 283 Sask.R. 1; 2006 SKQB 18 (Fam. Div.), refd to. [para. 40].

Ford v. Ford, [2011] Sask.R. Uned. 217; 2011 SKQB 18 (Fam. Div.), refd to. [para. 40].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 41].

Spytkowsky v. Spytkowsky (2009), 338 Sask.R. 262; 2009 SKQB 292 (Fam. Div.), refd to. [para. 44].

Jacobson v. Jacobson, [2011] Sask.R. Uned. 159; 2011 SKQB 402 (Fam. Div.), refd to. [para. 45].

Graham v. Tomlinson (2010), 359 Sask.R. 251; 494 W.A.C. 251; 324 D.L.R.(4th) 156; 2010 SKCA 101, refd to. [para. 46].

Jane Doe et al. v. Alberta (2007), 404 A.R. 153; 394 W.A.C. 153; 278 D.L.R.(4th) 1; 2007 ABCA 50, leave to appeal denied (2007), 375 N.R. 393; 2007 CanLII 27569 (S.C.C.), refd to. [para. 70].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [para. 70].

Miller v. Miller (1992), 42 R.F.L.(3d) 426 (Sask. C.A.), dist. [para. 74].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 76].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.1, sect. 17 [para. 37].

Counsel:

Karina Jackson, for the appellant;

Donnon F. Revering, for the respondent.

This appeal was heard on May 27, 2015, before Lane, Jackson and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following judgment for the court on October 26, 2015.