Schnell v. Schnell, 2001 SKCA 123

• Judge: Bayda, C.J.S., Vancise and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 25, 2001
• Jurisdiction: Saskatchewan
• Citations: 2001 SKCA 123;(2001), 213 Sask.R. 174 (CA)

Schnell v. Schnell (2001), 213 Sask.R. 174 (CA);

    260 W.A.C. 174

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. NO.052

Rodney Allen Schnell (appellant/respondent) v. Jodie Lynn Schnell (respondent/petitioner)

(No. 85; 2001 SKCA 123)

Indexed As: Schnell v. Schnell

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Lane, JJ.A.

November 22, 2001.

Summary:

The parties separated after seven years of marriage. They had three children. The issues in the parties' divorce and matrimonial property action were custody, change of name of the children, access, child maintenance, the division of matrimonial property, and spousal maintenance.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported [2000] Sask.R. Uned. 87, determined the issues. The wife sought an order finding the husband in contempt of the trial judge's orders respecting, inter alia, nonpayment of child and spousal support and an order committing him to jail for such contempt. The application was brought pursuant to the court's inherent jurisdiction.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported 197 Sask.R. 314, declined to deal with the application pursuant to the court's inherent jurisdiction where jurisdiction clearly existed under the Enforcement of Maintenance Orders Act, 1997, to enforce support orders by way of committal for contempt. The court treated the application as an application pursuant to the Act and placed the matter back on the chambers list.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported [2000] Sask.R. Uned. 284, found the husband to be in contempt but adjourned the question of whether or not there should be an order made for his committal to give the husband an opportunity to purge his contempt. The husband appealed the access provisions, the division of the matrimonial property, and the awards of child and spousal support (first appeal). The husband also appealed the contempt order (second appeal).

The Saskatchewan Court of Appeal allowed the first appeal in part and dismissed the second appeal.

Family Law - Topic 880.53

Husband and wife - Marital property - Distribution orders - Tax refunds - A husband argued that the trial judge ought not to have included, as matrimonial property subject to distribution, the portion of his 1998 income tax refund respecting income that was generated between January 1, 1998 and March 13, 1998 (the petition date) - He argued that he did not file his 1998 tax return until 1999 and did not receive the tax refund until September 1999 and because there were so many contingencies which could have affected his 1998 income, the refund was at best a "potential" asset - The Saskatchewan Court of Appeal agreed with the husband that the tax refund was only a potential asset and ought not to have been included in the matrimonial property - See paragraphs 18 and 19.

Family Law - Topic 2010

Custody and access - Access - Access awards - Time and place limitations - A mother was granted sole custody of the parties' three children - The trial judge ordered that the father's access take place in Swift Current (the father lived in Calgary) and ordered the father to give two weeks notice of his intention to exercise access - The father had seen the children for only 12.5 days between 1997 and 1998 - The trial judge held that it was not in the children's best interests to be taken away from their familiar surroundings before they had an opportunity to re-establish contact with, and trust in their father - The father appealed, arguing that limiting his access to Swift Current made it difficult for him to see his children and argued that a notice requirement of 72 hours would be more equitable - The Saskatchewan Court of Appeal held that the trial judge made no error by limiting access as she did - See paragraphs 13 to 15.

Family Law - Topic 2012

Custody and access - Access - Access awards - When mother and father reside in different cities - [See Family Law - Topic 2010 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - A father argued that a trial judge erred in using s. 19 of the Federal Child Support Guidelines to impute income to him and then using the resulting imputed income to help establish a pattern of income over three years pursuant to s. 17 of the Guidelines - He further argued that the imputed income ignored the evidence of his actual income - The Saskatchewan Court of Appeal held that the trial judge made no error in imputing income and indeed had no choice but to do so given the financial information supplied by the father - Having imputed income, there was no error in the trial judge using the imputed income for the purposes of determining a pattern of income and calculating an average therefrom - See paragraphs 21 to 35.

Family Law - Topic 4087

Divorce - Corollary relief - Incidental matters - Names of children - In a divorce action, a father sought an order under ss. 6(1)(b) and (c) of the Children's Law Act, directing that the mother could not change the parties' children's surnames without first obtaining his written consent - The trial judge ordered that the mother provide the father with 30 days' notice of her intention to make an application to change the children's surnames - The Saskatchewan Court of Appeal dismissed the father's appeal - The trial judge did not err in refusing the father's order as requested - See paragraph 16.

Limitation of Actions - Topic 9603

Enlargement of time period - General - Power to grant - [See Practice - Topic 9002 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - A husband was found in contempt of a trial judge's orders respecting, inter alia, nonpayment of child and spousal support under the Enforcement of Maintenance Orders Act (Sask.) - The husband failed to appeal within the 30 day limitation period set out in s. 57 of the Act - The husband was granted leave to extend the time for filing the appeal - The Saskatchewan Court of Appeal set aside the order granting the husband leave to extend the time for filing his appeal - There was no right of appeal unless such right was granted by statute - Unless the statute conferred a power of enlargement of the time for appeal, a statutory appeal period could not be extended - See paragraphs 3 to 7.

Cases Noticed:

Jordan v. Saskatchewan Securities Commission (1968), 64 W.W.R.(N.S.) 121 (Sask. C.A.), refd to. [para. 6, footnote 2].

British Columbia Permanent Loan Co. et al. v. Canadian Northern Railway Co. (No. 2), [1922] 2 W.W.R. 579 (Sask. C.A.), refd to. [para. 6, footnote 3].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 15, footnote 4].

Henke v. Henke, [2000] Sask.R. Uned. 10; 3 R.F.L.(5th) 226 (Q.B. Fam. Div.), refd to. [para. 18, footnote 7].

Frederick v. Frederick, [1996] S.J. No. 549 (Q.B.), refd to. [para. 18, footnote 8].

Haley v. Haley (1996), 140 Sask.R. 125 (Q.B. Fam. Div.), refd to. [para. 18, footnote 9].

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. 22, footnote 10].

Hood v. Fost (2000), 182 N.S.R.(2d) 394; 563 A.P.R. 394; 2 R.F.L.(5th) 399 (C.A.), refd to. [para. 30, footnote 11].

Motyka v. Motyka (2001), 147 B.C.A.C. 233; 241 W.A.C. 233; 12 R.F.L.(5th) 421 (C.A.), refd to. [para. 31, footnote 12].

Vita Food Products Inc. v. Unus Shipping Co., [1939] 2 D.L.R. 1 (P.C.), refd to. [para. 34, footnote 13].

Hinton Electric Co. v. Bank of Montreal (1903), 9 B.C.R. 545 (S.C.), refd to. [para. 34, footnote 14].

Statutes Noticed:

Children's Law Act, S.S. 1997, c. C-8.2, sect. 6(1)(b), sect. 6(1)(c) [para. 16].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 1(a), sect. 16, sect. 17(1), sect. 19 [para. 21].

Enforcement of Maintenance Orders Act, S.S. 1997, c. E-9.2, sect. 57 [para. 4].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Authors and Works Noticed:

McLeod, James G., Case Comment re Motyka v. Motyka (2001), 12 R.F.L.(5th) 421, pp. 422 to 427 [para. 31, footnote 12].

Counsel:

W.T. Stodalka, for the appellant;

J.J. Vogel and K.S. Korven, for the respondent.

These appeals were heard on May 25, 2001, before Bayda, C.J.S., Vancise and Lane, JJ.A., of the Saskatchewan Court of Appeal. Lane, J.A., delivered the following judgment for the Court of Appeal on November 22, 2001.