Stelter v. Stelter, (2012) 405 Sask.R. 63 (CA)

• Judge: Richards, Ottenbreit and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 27, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 405 Sask.R. 63 (CA);2012 SKCA 117

Stelter v. Stelter (2012), 405 Sask.R. 63 (CA);

    563 W.A.C. 63

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. DE.038

Mackenzie Malcolm Stelter (appellant/petitioner) v. Kathleen Carol Stelter (respondent/respondent)

(CACV1987)

Mackenzie Malcolm Stelter (appellant/petitioner) v. Kathleen Carol Stelter (respondent/respondent)

(CACV2061; 2012 SKCA 117)

Indexed As: Stelter v. Stelter

Saskatchewan Court of Appeal

Richards, Ottenbreit and Herauf, JJ.A.

December 6, 2012.

Summary:

Spouses divorced after an eight year marriage. The issues to be adjudicated were parenting of the couple's two children, child support and family property.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at [2010] Sask.R. Uned. 104, determined the issues. The wife sought costs of $45,015.01.

The Saskatchewan Court of Queen's Bench, in a decision reported at 370 Sask.R. 306, ordered the husband to pay costs of $35,000 to the wife. The husband appealed both decisions.

The Saskatchewan Court of Appeal, Richards, J.A., dissenting in part, dismissed the appeals.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - Spouses divorced after an eight year marriage - The husband owned and operated his own business (C.D. Mac) selling non-exclusive product lines of industrial chemicals and related equipment in Saskatchewan - At issue was division of family property - The trial judge accepted the methodology used by the wife's expert valuator and his value of $77,538 for C.D. Mac - The husband appealed, asserting that the trial judge erred in his determination of the value of C.D. Mac - The husband submitted that the trial judge erred in preferring the evidence of the wife's valuator despite that "his expert had better relative qualifications and experience, provided a more detailed and justified analysis, and that there was no basis for the valuation methodology used by the wife's expert" - He further argued that the value determined by the trial judge failed to recognize that C.D. Mac's liabilities exceeded its assets - The Saskatchewan Court of Appeal dismissed the appeal - Given the evidence, the trial judge was correct to value the company as a going concern and accept the methodology of the wife's expert and his underlying assumptions for that purpose - There was no palpable or overriding error by the trial judge - See paragraphs 29 to 38.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of children paramount - Spouses divorced after an eight year marriage - They had two children - At issue was parenting of the children - The trial judge awarded joint custody to the parents and principal residency with the mother - The father received parenting time on alternating weekends, one weekday overnight stay and half the summer vacation - The father appealed, asserting that the trial judge erred in determining that the primary residence of the boys should be with the mother and in ordering the parenting scheme he did - The father (1) disputed the mother's claim that during the relationship she was the primary caregiver for the boys; (2) argued that the trial judge should not have accepted the evidence of the witness Dunn, who testified that the father was away from the home 70 to 80 per cent of the time during the marriage; and, (3) argued that the trial judge placed too much weight on school agendas which showed that the boys were with the mother the majority of the time - The Saskatchewan Court of Appeal dismissed the appeal - Where the "best interest of the child" was the governing consideration, the inquiry was heavily fact-dependant and the decision ultimately discretionary - On the whole, the court could see no material error, serious misapprehension of the evidence or error of law in the trial judge's determination of primary residence and the parenting arrangement - See paragraphs 10 to 19.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses divorced after an eight year marriage - They had two children - At issue was child support - The trial judge awarded joint custody to the parents and principal residency with the mother - The trial judge imputed income of $90,688 to the father, who owned and operated his own business selling non-exclusive product lines of industrial chemicals and related equipment in Saskatchewan - The father asserted that the trial judge erred in his application of ss. 17 and 18 of the Federal Child Support Guidelines and in attributing income to the father - The father argued that the trial judge erred in determining the father's income as he did because his business lost money in 2006 and 2007, its net earnings in 2009 were less than the amount of income determined and the company had a retained deficit - He argued that ss. 17 and 18 of the Guidelines did not authorize the kind of order made by the trial judge and that the trial judge did not do a s. 19 analysis by which he could attribute income - The Saskatchewan Court of Appeal dismissed the appeal - It was open to the trial judge to use either s. 17.1(1) or s. 18 to determine a fair and reasonable income - The trial judge mentioned both income fluctuations and benefits received by the father from his company as a justification for his determination of income - Given the father's income fluctuations, the figure of $80,000 was appropriate and justifiable under s. 17.1(1) - Under s. 18(2) when an adjustment was made by adding back all of the father's salary, wages and benefits to the most recent pre-tax income of the company being $5,864 (not the net earnings as argued by the father), the $80,000 income attributed to the father fit comfortably within s. 18(1)(a) as well - The fact that the company had a retained deficit was not a factor included in the pre-tax income adjustment allowed under s. 18(2) - Given that the determination of maintenance was a discretionary decision, a deferential standard of review applied - There was no error in principle, a significant misapprehension of the evidence or a clearly wrong determination respecting child maintenance on the part of the trial judge - See paragraphs 20 to 28.

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum or fixed costs - Spouses divorced after an eight year marriage - The issues to be adjudicated were parenting of the couple's two children, child support and family property - The trial judge determined the issues - The wife sought costs of $45,015.01 consisting of $30,733.33 fees and $14,281.68 disbursements including two accounts of $7,040 and $3,300 from her expert witness - The trial judge considered the submissions of counsel and all of the facts and circumstances including the written offer to settle by the wife; its rejection by the husband; his failure to counter-offer; the result; the complexity of valuing the husband's business; the nature of part of the proceeding respecting primary residence of the children; the absence (until taxation) of particulars regarding the accounts of the wife's expert witness and the nature of his services; the appropriate column (four); the necessity and appropriateness of second counsel (in part); and the appropriateness of double costs (in part) - In the result, the trial judge exercised his discretion by awarding $35,000 to the wife as an appropriate lump sum of costs instead of assessed costs, pursuant to Queen's Bench Rule 545 - The award was inclusive of all fees and disbursements, costs of taxation and costs of $500 awarded to the wife by an interim order - The Saskatchewan Court of Appeal affirmed the costs award - See paragraphs 50 to 53.

Family Law - Topic 4189

Divorce - Practice - Costs - Settlement offers - [See Family Law - Topic 4182 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Family Law - Topic 4182 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Family Law - Topic 4182 ].

Cases Noticed:

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 6].

Van de Perre v. Edwards - see K.V.P. v. T.E.

C.R.H. v. D.G. (2010), 362 Sask.R. 261; 500 W.A.C. 261; 2010 SKCA 127, refd to. [para. 6].

Stavric v. King (2009), 320 Sask.R. 37; 444 W.A.C. 37; 2009 SKCA 6, refd to. [para. 6].

Riley v. Riley (2011), 366 Sask.R. 110; 506 W.A.C. 110; 2011 SKCA 5, refd to. [para. 7].

Benson v. Benson (1994), 120 Sask.R. 17; 68 W.A.C. 17 (C.A.), refd to. [para. 8].

Gilles v. Gilles, [2008] 10 W.W.R. 610; 311 Sask.R. 223; 428 W.A.C. 223; 2008 SKCA 97, refd to. [para. 19].

Kardash v. Kardash, [2008] Sask.R. Uned. 134; 2008 SKQB 328 (Fam. Div.), refd to. [para. 24].

Kowalewich v. Kowalewich, [2001] 9 W.W.R. 626; 155 B.C.A.C. 143; 254 W.A.C. 143; 2001 BCCA 450, refd to. [para. 24].

Kolibab v. Tenneco Canada Inc., [2000] 1 W.W.R. 590; 180 Sask.R. 278; 205 W.A.C. 278 (C.A.), refd to. [para. 31].

Riley v. Riley (2010), 359 Sask.R. 128; 494 W.A.C. 128; 2010 SKCA 88, refd to. [para. 53].

Joseph Brant Memorial Hospital v. Koziol - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette, [1978] 1 S.C.R. 491; 15 N.R. 302, refd to. [para. 68].

Counsel:

Timothy Stodalka, for the appellant;

Mark Hawkins, for the respondent.

These appeals were heard on June 27, 2012, by Richards, Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on December 6, 2012, and included the following opinions:

Ottenbreit, J.A. (Herauf, J.A., concurring) - see paragraphs 1 to 54;

Richards, J.A., dissenting in part - see paragraphs 55 to 73.