Salisbury v. Soodaeva-Salisbury, 2011 SKQB 258

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 30, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 258;(2011), 376 Sask.R. 276 (FD)

Salisbury v. Soodaeva-Salisbury (2011), 376 Sask.R. 276 (FD)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JL.038

Darryl Salisbury (petitioner) v. Aijan Soodaeva-Salisbury (respondent)

(2010 F.L.D. No. 250; 2011 SKQB 258)

Indexed As: Salisbury v. Soodaeva-Salisbury

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

Dawson, J.

June 30, 2011.

Summary:

The parties were divorced in the Kyrgyz Republic in 2009. There were no corollary orders made. In 2010, the parties executed an interspousal contract and separation agreement in Saskatchewan. The contract dealt with custody of their two children, access, support and property division. The father applied for custody, access and child support under the Divorce Act, custody and access under The Children's Law Act, and maintenance for the children under The Family Maintenance Act. He applied ex parte for an order granting him interim primary parenting and residence of the children and an order prohibiting the mother from removing the children from Saskatchewan.

The Saskatchewan Court of Queen's Bench, Family Law Division, made an ex parte order prohibiting the mother from removing the children from Saskatchewan, pending the hearing of a motion. The mother filed an answer and counter-petition opposing the father's claims. She counter-petitioned for custody under The Children's Law Act, and for child support and spousal support under The Family Maintenance Act. She then applied for interim sole custody, child support and spousal support. The father's earlier application and the mother's application were to be heard at the same time. The father then applied to strike the mother's claim for spousal support, pursuant to rules 173(a) and 173(e) of the Queen's Bench Rules, and to amend his petition to delete any claims he made under the Divorce Act, pursuant to rule 165.

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

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - The Saskatchewan Court of Queen's Bench, Family Law Division, reviewed the leading case law concerning interim custody applications - "It is clear that if, on an interim basis, the court is faced with conflicting affidavit material as to what is in the best interests of the children, and no credible evidence is presented that the child is in danger if left in the existing situation, then the status quo should be maintained" - See paragraphs 41 to 44.

Family Law - Topic 2051

Custody and access - Interim custody - Considerations - The parties' separation agreement stated that they were to be joint custodians of their two children, but the children's primary residency was to be with the mother - The father was to have reasonable access which, at a minimum, was to be access every second weekend - The parties lived by that parenting arrangement for close to two years - The petitioner father applied for an order granting him interim primary parenting and residence of the children - The respondent mother applied for interim sole custody - She sought an order that would grant the father access every second weekend, but would not provide for overnight access - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the parenting arrangement was to continue - "[T]he parties have lived by this interim arrangement for close to two years and formally agreed to this arrangement in writing. While the mother raises some concerns about the children staying overnight with the father, the children do not appear to be in danger" - See paragraph 45.

Family Law - Topic 2224

Maintenance of wives and children - Interim relief - Interim maintenance - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "[t]he law is clear in Saskatchewan that on an interim application for spousal support, the court must consider need and ability to pay. The point is to determine the amount necessary to enable the recipient to live and meet expenses, having regard to the payor's means, until the issue can be determined on a complete factual basis" - See paragraph 59.

Family Law - Topic 2224

Maintenance of wives and children - Interim relief - Interim maintenance - The parties married in 2004 in the Kyrgyz Republic - They had two children - The wife was a citizen of the Kyrgyz Republic - She obtained her permanent residency card for Canada - The parties were divorced in the Kyrgyz Republic in 2009, and the mother moved with the children to Regina - The husband agreed to provide her with $2,000 every second month until April, 2011 to facilitate relocation - The wife applied for interim spousal support - Very well educated, spoke seven languages, and had been employed in the past - Not employed outside the home while the parties lived in the Kyrgyz Republic - Had applied for more than 200 jobs in Regina - Earned $20,000 per annum - The husband's income was $108,000 - The Saskatchewan Court of Queen's Bench, Family Law Division, made an order for interim spousal support ($550 per month), having regard to s. 5 of The Family Maintenance Act and the parties' circumstances - The court noted that, under the parties' separation agreement, the husband was paying the wife's mortgage as one of the terms of the division of their property - See paragraphs 56 to 61.

Family Law - Topic 2250

Maintenance of wives and children - Jurisdiction - To make order under provincial legislation after divorce - [See second Family Law - Topic 2325 ].

Family Law - Topic 2325

Maintenance of wives and children - Maintenance of wives - Spouse - What constitutes - [See Statutes - Topic 2603 ].

Family Law - Topic 2325

Maintenance of wives and children - Maintenance of wives - Spouse - What constitutes - The petitioner father applied to have the respondent mother's claim for spousal support struck as disclosing no reasonable cause of action (Queen's Bench Rule 173(a)) - The petitioner asserted that the court had no jurisdiction to grant the respondent spousal support under The Family Maintenance Act (Sask.) given the fact that the parties were divorced and did not qualify as "spouses" under s. 2(d) of the Act - The Saskatchewan Court of Queen's Bench, Family Law Division, denied the application - The petitioner failed to satisfy the court that the counter-petition for spousal support disclosed no reasonable cause of action - "The legislation, as it stands at present, does not exclude persons who are married to each other, nor did it exclude persons who were married to each other" - Also, the parties agreed in their interspousal contract that in the event they were unable to reach an agreement with respect to spousal support, either might apply to a court of competent jurisdiction to determine the issue - That contract was drafted by the petitioner's lawyers - An obvious interpretation was that the parties were acknowledging the jurisdiction of the court under Saskatchewan legislation pertaining to spousal support - See paragraphs 32 to 36.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The parties had incurred numerous s. 7 expenses for extra-curricular activities since the execution of their interspousal contract - In 2010, the father paid all of those expenses, as the mother was not working - The father was prepared to pay proportionately for ongoing s. 7 expenses, provided the mother consulted him before incurring such expenses - The expenses to date included french immersion pre-school, swimming lessons, ballet and tae-kwon-do, summer camps, skating and Sportkid, and an art class - The Saskatchewan Court of Queen's Bench, Family Law Division, found that all of those expenses, in the circumstances of the parties, were s. 7 expenses, on an interim basis, and ordered the father to pay to the mother his proportionate share of those expenses, if and when they were incurred for the children - If the parties undertook to enrol the children in any new activity, the parties were to attempt to come to an agreement about such enrolment - In the event that the parties agreed as to the enrolment, the father was to pay his proportionate share of the expense - In the event the parties were unable to agree on any new extra-curricular activity, the party that enrolled the child was to pay the cost of the activity on an interim basis - See paragraphs 49 to 55.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The petitioner father applied to have the respondent mother's claim for spousal support struck as disclosing no reasonable cause of action (Queen's Bench Rule 173(a)) - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "[t]he case law is clear that a court can only strike pleadings as disclosing no reasonable cause of action, under Rule 173(a), if it is plain and obvious from the pleadings themselves that there is no reasonable cause of action ... [T]he Saskatchewan Court of Appeal has interpreted this test as: whether assuming that the respondent proves everything alleged in her claim for spousal support, there is nevertheless no reasonable chance of success or, to put it in another way, no arguable case" - See paragraph 20.

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - The Miscellaneous Statutes (Domestic Relations) Amendment Act (No. 2), S.S. 2001, amended the definition of "spouse" in The Family Maintenance Act (former) to its present definition - The amendments removed the words "either of a man and woman" and replaced them with the words "a person" - The amendments also removed the phrase "who are not married to each other" - The petitioner submitted that the amendments demonstrated that the Legislature's intention was to make the definition of "spouse" inclusive of same sex marriages - He argued that the definition of "spouse" as amended did not contemplate parties who were legally married to each other - The Saskatchewan Court of Queen's Bench, Family Law Division, disagreed - "The legislation, as it stands at present, does not exclude persons who are married to each other, nor did it exclude persons who were married to each other" - Not only was the petitioner's interpretation contrary to the entire context of the Act, and the grammatical and ordinary sense of the words in the Act, but it was also contrary to the object of the Act - As well, the petitioner's interpretation would put the respondent in a position where no court in Saskatchewan had jurisdiction to order spousal support for her, or to provide a remedy for the economic disadvantages or hardship that she might suffer from the spousal relationship or its breakdown - See paragraphs 32 and 33.

Cases Noticed:

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 20].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 20].

Paradis v. Paradis (1996), 143 Sask.R. 278 (Q.B.), refd to. [para. 26].

Wlodarczyk v. Spriggs (2000), 200 Sask.R. 129; 2000 SKQB 468 (Fam. Div.), refd to. [para. 26].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 29].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 31].

Guenther v. Guenther (1999), 181 Sask.R. 83 (Q.B. Fam. Div.), refd to. [para. 41].

Harden v. Harden (1987), 54 Sask.R. 155 (C.A.), refd to. [para. 42].

Roebuck v. Roebuck (1983), 45 A.R. 180; 148 D.L.R.(3d) 131 (C.A.), refd to. [para. 42].

McGillis v. McGillis (1996), 113 Man.R.(2d) 73; 131 W.A.C. 73; 24 R.F.L.(4th) 286 (C.A.), refd to. [para. 43].

S.R.M. v. J.K.M. - see McGillis v. McGillis.

Statutes Noticed:

Family Maintenance Act, S.S. 1997, c. F-6.2, sect. 5 [para. 24].

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 173(a), rule 173(e) [para. 19].

Counsel:

F.C. Zinkhan, for the petitioner;

Leslie Tallis, for the respondent.

These applications were heard before Dawson, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on June 30, 2011.