Vanstone v. Vanstone, (2007) 301 Sask.R. 212 (FD)

• Judge: Koch, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 09, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 301 Sask.R. 212 (FD);2007 SKQB 282

Vanstone v. Vanstone (2007), 301 Sask.R. 212 (FD)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. OC.037

Mark Russell Vanstone (petitioner) v. Gwendolyn Velinda Goebel Vanstone (respondent)

(2003 DIV. No. 299; 2007 SKQB 282)

Indexed As: Vanstone v. Vanstone

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Koch, J.

August 9, 2007.

Summary:

The parties executed a separation agreement in January 2003. A divorce judgment and child support order were granted in November 2003. Provisions in the order regarding custody, access and child support differed from those in the separation agreement. In May 2007, the mother sought to vary the child support order. The father applied to strike portions of the mother's affidavit because, inter alia, they related primarily to matters alleged to have occurred prior to the November 2003 order and were, thus, irrelevant.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 298 Sask.R. 228, allowed the father's application. The court declined to make an order awarding costs to the father.

The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the mother's application to vary the child support order.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties entered into a separation agreement in 2003 under which they shared joint custody of their two children - The children spent substantial amounts of time with the father - In recognition of that and of an unequal division of marital property, the father paid less than the Guidelines amount of child support - A consent order was granted in 2003 - The mother applied to vary the child support order retroactively to June 2006, asserting a material change in circumstances in, inter alia, the father's significant increase in income and amendments to the Guidelines table amounts - The Saskatchewan Court of Queen's Bench, Family Law Division, allowed the mother's application - There was a material change in circumstances requiring variation - As the father had not established that paying less than the Guidelines amount would benefit the children, he was ordered to pay the prescribed amount based on his 2006 income - The adjustment was to commence with the October 2007 payment - Retroactivity was not appropriate where the advantages of the unequal property distribution had only now or in the near future fully abated - See paragraphs 25 to 31.

Family Law - Topic 4006.1

Divorce - Corollary relief - Maintenance and awards - Awards - To children - Effect of agreements - [See Family Law - Topic 4001.1 and Family Law - Topic 4045.8 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4045.8

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Changed circumstances - The parties entered into a separation agreement in 2003 under which they shared joint custody of their two children - The children spent substantial amounts of time with the father - In recognition of that and of an unequal division of marital property, the father paid less than the Guidelines amount of child support - A consent order was granted in 2003 - The mother applied to vary the child support order, asserting a material change in circumstances in, inter alia, the father's significant increase in income and amendments to the Guidelines table amounts - The Saskatchewan Court of Queen's Bench, Family Law Division, held that there was a material change in circumstances - The father's income had increased by approximately half from his 2002 and 2003 income - Although it was realistic in 2003 to expect his income to rise, it would not have been appropriate then to make predictions that might inhibit the children's rights in the long term - The changes to the Guidelines in 2006 had comparatively less impact but were still significant in the overall circumstances - The increase in value of the family home equity transferred by the father to the mother in 2003 had not conveyed a benefit to the children - Further, the fact that the mother's income had also increased did not assist the father - See paragraphs 12 to 24.

Family Law - Topic 4045.17

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Evidence and proof - The parties entered into a separation agreement in 2003 under which they shared joint custody of their two children - The children spent substantial amounts of time with the father - In recognition of that and of an unequal division of marital property, the father paid less than the Guidelines amount of child support - A consent order was granted in 2003 - The mother applied to vary the child support order, asserting a material change in circumstances in, inter alia, the father's significant increase in income and amendments to the Guidelines table amounts - The father asserted that because the application was equivalent to an interlocutory proceeding, a viva voce hearing and pretrial conference were required - The Saskatchewan Court of Queen's Bench, Family Law Division, rejected the father's argument - The application was final in every sense - Where the issues could be decided on affidavit evidence, it was in the parties' interests to make the determination without giving rise to delay and increased costs - The court proceeded on the factual information before it - See paragraphs 9 to 11.

Family Law - Topic 4151

Divorce - Practice - Trial - General - [See Family Law - Topic 4045.17 ].

Family Law - Topic 4248

Divorce - Evidence and proof - Affidavit evidence - [See Family Law - Topic 4045.17 ].

Cases Noticed:

K.B.A.S. v. G.E.S. (2006), 286 Sask.R. 16; 2006 SKQB 439 (Fam. Div.), refd to. [para. 9].

Dorosh v. Dorosh (1997), 159 Sask.R. 30 (Fam. Div.), refd to. [para. 9].

Keogan v. Weekes, [2005] 8 W.W.R. 574; 263 Sask.R. 309; 2005 SKQB 114 (Fam. Div.), refd to. [para. 9].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [para. 15].

C.P. v. L.H. (2006), 279 Sask.R. 94; 372 W.A.C. 94; 270 D.L.R.(4th) 450; 2006 SKCA 61, refd to. [para. 18].

King v. King, [1999] Nfld. & P.E.I.R. Uned. 43; 1999 CarswellNfld 198 (T.D.), refd to. [para. 22].

MacKay v. Bucher (2001), 196 N.S.R.(2d) 293; 613 A.P.R. 293; 208 D.L.R.(4th) 472; 2001 NSCA 120, refd to. [para. 22].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 10 W.W.R. 379; 2006 SCC 37, refd to. [para. 29].

Deane v. Pawluk, [2007] 2 W.W.R. 138; 290 Sask.R. 71; 2006 SKQB 499 (Fam. Div.), refd to. [para. 30].

Counsel:

Gregory G. Walen, Q.C., for the petitioner;

Tiffany M. Paulsen, for the respondent.

This application was heard by Koch, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following judgment on August 9, 2007.