S.K. v. R.K., (2015) 479 Sask.R. 94 (FD)

• Judge: Tholl, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 06, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 479 Sask.R. 94 (FD);2015 SKQB 235

S.K. v. R.K. (2015), 479 Sask.R. 94 (FD)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AU.015

S.K (petitioner) v. R.K. (respondent)

(2014 DIV No. 289; 2015 SKQB 235)

Indexed As: S.K. v. R.K.

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Tholl, J.

August 6, 2015.

Summary:

A husband and wife, with three children, separated after approximately seven years of marriage. They had co-habited together for three years before they were married. When they separated, the couple signed an agreement permitting the wife and children to move three hours away to live on the wife's parents' farm. The wife commenced divorce and family law proceedings. The husband sought to have the children returned to their original locale and wanted a shared parenting arrangement. At issue was what parenting arrangement was in the best interests of the children, child support and the division of property. Specific issues arose with respect to the effect of the husband's farming operations on calculating his income for support purposes and on the value of his property for division purposes.

The Saskatchewan Court of Queen's Bench, Family Law Division, ruled that joint custody was appropriate with the children's primary residence being with the mother (i.e. the children did not have to move back to their original locale). The father was awarded access. The court dealt with the child support and property division 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.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - A couple began living together in 2004 and were married in 2007 - They separated seven years later, in 2014 - The wife sought a division of family property - She argued, inter alia, that the balance of her student loan ($8,040.72) should be taken into account as an equitable consideration and shared between the parties - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the student loan would have no effect on the property division - The loan was more than likely all incurred before the parties starting residing together in 2004 - Generally, pre-existing student loan debt was not to be taken into account in a property division - Here, the loan was incurred for the purposes of the wife obtaining a nursing degree which she was now using to pursue her career and earn income - See paragraphs 255 to 259.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts (incl. contingent liabilities) - A couple separated - The wife sought a division of property, including a share of the husband's farming operation (i.e., land ($1,237,000), equipment ($945,000), grain on hand ($196,777.19) and tools ($7,357.52)) - The husband argued that the court should take into account potential income tax liability if he had to sell his property - The Saskatchewan Court of Queen's Bench, Family Law Division, reviewed the applicable principles - Here, that there was a reasonable possibility that the husband would have to dispose of farm assets to pay the property division and it would be unfair or inequitable to make an equal distribution of the family property without having regard to the tax consequences - The court, therefore, applied a 50% contingency to the maximum tax liability of $127,840 resulting in a $63,920 reduction in the value of the husband's property - See paragraphs 255 to 270.

Family Law - Topic 872

Husband and wife - Marital property - Distribution orders - Deductions - [See second Family Law - Topic 868.2 ].

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations (incl. income tax) - [See second Family Law - Topic 868.2 ].

Family Law - Topic 1843

Custody and access - Custody agreements - Effect of - [See second Family Law - Topic 1881 ].

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - Best interests of child - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "The only principle to be applied by the court in determining what parenting arrangement should be ordered is the best interests of the children. (Young v. Young, [1993] 4 SCR 3). This concept is easy to state but it is difficult to apply. While the items enumerated in ss. 16(8) of the Divorce Act and s. 8 of the Children's Law Act, 1997 provide the broad framework for the factors the court must take into account, every case is unique and presents a myriad of factors for the court to consider in making its decision" - See paragraph 203.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - Best interests of child - A mother and father, with three children separated after approximately seven years of marriage - At the time of separation, the father agreed that the mother could move with the children to her parents' family farm in another rural community three hours away and be the primary caregiver - Access was agreed upon - The father sought independent legal advice before entering the agreement - The Saskatchewan Court of Queen's Bench, Family Law Division, held that this agreement was not binding because an agreement by parents regarding custody and access did not oust the jurisdiction of the court to determine what parenting arrangements were in the children's best interests - The agreement was, however, an important piece of evidence - See paragraph 204.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - Best interests of child - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "The importance of status quo and primary care giver does not attract the same degree of importance in a final decision as it does in an interim order, but both of these factors are important factors to be considered in the court's determination of the best interests of the children. It is important to a child's best interests to maintain stability in their relationships and circumstances" - See paragraph 205.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - Best interests of child - A mother and father, with three children, separated - At the time of separation, the mother, with the father's agreement, moved from Community S with the children to her parents' family farm in another rural community three hours away (Community B) - Thereafter, the father sought to have the children returned to Community S and wanted a shared parenting regime - The Saskatchewan Court of Queen's Bench, Family Law Division, awarded joint custody with the children residing primarily with the mother - Access was awarded - It was in the children's best interest to continue to reside with the mother in Community B - The children were happy and well adjusted - Each parent had the capacity to care for the children - However, the mother had been the primary parent and made the children her top priority, while the father took a more passive role - The children had stronger and closer relationship with their mother - See paragraphs 201 to 233.

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - [See third Family Law - Topic 1881 ].

Family Law - Topic 3351

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In custody actions - [See second Family Law - Topic 1881 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A mother and father separated - They had three children, approximately ages 8, 6 and 4 - The mother sought child support - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the father's income reported for income tax purposes did not adequately reflect his income for child support purposes - His farming operations provided deductions to him that made his income for tax purposes an inappropriate amount - In determining his income for support purposes, the court considered his personal expenses and farm income and his purchases and tax deductions - The court included 50% of the capital cost allowance in the father's income and considered an optional inventory adjustment and his large capital purchases - In the result, the court attributed income at $75,000, giving rise to a Guideline child support obligation of $1,344 - See paragraphs 234 to 252.

Counsel:

James J. Vogel, for the petitioner;

David G. Kreklewich, for the respondent.

This matter was heard before Tholl, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on August 6, 2015.