Steiner v. McKnight, (2001) 200 Sask.R. 232 (FD)

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 09, 2001
• Jurisdiction: Saskatchewan
• Citations: (2001), 200 Sask.R. 232 (FD);2001 SKQB 12

Steiner v. McKnight (2001), 200 Sask.R. 232 (FD)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. JA.032

Barry Daniel Steiner (petitioner) v. Brenda Carol McKnight (respondent)

(1998 DIV. No. 646; 2001 SKQB 12)

Indexed As: Steiner v. McKnight

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Ryan-Froslie, J.

January 9, 2001.

Summary:

A husband brought an interim application to vary the spousal support terms of a main­tenance agreement on the basis of a change in circumstances. The husband argued that the court had jurisdiction to vary the main­tenance agreement pursuant to s. 11 of the Family Maintenance Act.

The Saskatchewan Court of Queen's Bench, Family Law Division, held that while it did not have jurisdiction under s. 11 of the Family Maintenance Act to amend the agree­ment, it had jurisdiction to order spousal maintenance pursuant to either the Divorce Act or the Family Maintenance Act even though the parties had a settlement agree­ment dealing with that issue. The court dismissed the application in this case where the evidence with respect to a change in circumstances was contradictory and incom­plete. The court stated that as this was only an interim application, the terms of the agreement should be upheld until a trial of the issue could be held.

Family Law - Topic 2230

Maintenance of wives and children - Interim relief - Practice - [See Family Law - Topic 2241 ].

Family Law - Topic 2241

Maintenance of wives and children - Juris­diction - General - A husband brought an interim application to vary the spousal support terms of a maintenance agreement on the basis of a change in circumstances -The husband argued that the court had jurisdiction to vary the maintenance agree­ment pursuant to s. 11 of the Family Main­tenance Act - The Saskatchewan Court of Queen's Bench, Family Law Division, held that s. 11 of the Act merely provided a mechanism for the enforcement of main­tenance agreements and it did not confer power on the court to vary such agree­ments - However, the court held that it had jurisdiction to order spousal maintenance pursuant to either the Divorce Act or the Family Maintenance Act even though the parties had a settlement agreement dealing with that issue - The court dismissed the application where the evidence with respect to a change in circumstances was contra­dictory and incomplete - The court stated that as this was only an interim applica­tion, the terms of the agreement should be upheld until a trial of the issue could be held.

Family Law - Topic 2405

Maintenance of wives and children - Practice - Application - How made - A husband brought an interim application to vary the spousal support terms of a main­tenance agreement and framed his applica­tion as an "application for variation of corollary relief" - The Saskatchewan Court of Queen's Bench, Family Law Division, held that the procedure utilized was incor­rect - The husband should have amended his petition to include a claim to set spousal maintenance pursuant to the Divorce Act and/or the Family Mainten­ance Act and then brought the application by notice of motion for an interim order - The court considered that Queen's Bench Rule 5 allowed the court to relieve pro­cedural irregularities, that both parties indicated their desire to have the matter dealt with on its merits and that the relief requested by the husband was clear and the wife had had an opportunity to respond thereto - The court concluded that there would be no prejudice to the parties to allow an amendment to the petition to include a claim pursuant to the Divorce Act and the Family Maintenance Act to set spousal maintenance - See paragraphs 27 to 28.

Family Law - Topic 3371

Separation agreements, domestic contracts and marriage contracts - Variation - Gen­eral - [See Family Law - Topic 2241 ].

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance and awards - Jurisdiction of a court to grant maintenance - [See Family Law - Topic 2241 ].

Practice - Topic 2808

Curative provisions - For wrong com­mencement procedure or document - [See Family Law - Topic 2405 ].

Cases Noticed:

Nein v. Nein (1991), 36 R.F.L.(3d) 417 (Sask. Q.B.), refd to. [para. 19].

Smibert v. Smibert, [1996] 10 W.W.R. 326; 147 Sask.R. 149 (Q.B. Fam. Div.), refd to. [para. 19].

Patterson v. Torrance (1994), 92 Man.R.(2d) 116; 61 W.A.C. 116; 2 R.F.L.(4th) 74 (C.A.), dist. [para. 19].

Hyman v. Hyman, [1929] A.C. 601 (H.L.), refd to. [para. 26].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 26].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 104, refd to. [para. 26].

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 2 Y.R. 246; [1987] 4 W.W.R. 522; 7 R.F.L.(3d) 274; 38 D.L.R.(4th) 735; 14 B.C.L.R.(2d) 186, refd to. [para. 26].

Bennett v. Bennett, [1935] 1 W.W.R. 589 (Man. C.A.), refd to. [para. 26].

Masters v. Masters (1991), 93 Sask.R. 241; 4 W.A.C. 241 (C.A.), refd to. [para. 33].

Doncaster v. Doncaster (1989), 76 Sask.R. 81; 21 R.F.L.(3d) 357 (C.A.), refd to. [para. 34].

Orth v. Orth (1998), 168 Sask.R. 1; 173 W.A.C. 1 (C.A.), refd to. [para. 35].

Statutes Noticed:

Family Maintenance Act, S.S. 1997, c. F-6.2, sect. 11 [para. 20].

Counsel:

R.T. Klein, for the petitioner;

B.D. Barilla, for the respondent.

This application was heard before Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judi­cial Centre of Saskatoon, who delivered the following fiat on January 9, 2001.