W.S. v. D.S., (2015) 481 Sask.R. 47 (QB)

• Judge: Tholl, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 03, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 481 Sask.R. 47 (QB);2015 SKQB 265

W.S. v. D.S. (2015), 481 Sask.R. 47 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. SE.041

W.S. (petitioner) v. D.S. (respondent)

(2013 DIV No. 238; 2015 SKQB 265)

Indexed As: W.S. v. D.S.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Tholl, J.

September 3, 2015.

Summary:

The parties were married for over 19 years. Their six children ranged in age from seven to 21. The issues that arose as a result of the dissolution of their marriage included: (a) what parenting arrangements were in the best interests of the three youngest children; (b) what was the husband's income; (c) whether the court should impute income to the wife; (d) what amount of child support was payable; and (e) whether the wife was entitled to spousal support, and if so, the quantum and duration.

The Saskatchewan Court of Queen's Bench determined that: (a) the parties have split custody; (b) income be imputed to the husband; (c) no income be imputed to the wife; (d) the husband pay prospective child support, on a straight application of the table amounts; and (e) the wife was entitled to spousal support on compensatory and non-compensatory grounds, in the amount of $1,500 per month, for an indefinite period, and subject to review after three years, to examine self-sufficiency.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - [See Family Law - Topic 4069 ].

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - [See Family Law - Topic 4069 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4022 ].

Family Law - Topic 4002

Divorce - Corollary relief - Maintenance awards - Conditions precedent to entitlement - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The parties were married for over 19 years - They had six children, ranging in age seven to 21 - The wife testified she and the husband decided early in their relationship that she would be the homemaker and he would be the provider - She continued to provide the primary care for the youngest two children - The wife had recently embarked on a career with a marketing company, but had not yet earned any income - She claimed her annual expenses totalled $300,319 - The husband's annual income was imputed to be $120,300 - The Saskatchewan Court of Queen's Bench held that the wife was entitled to spousal support on compensatory and non-compensatory grounds - She was economically disadvantaged by the marriage - She continued to provide the primary care for the youngest two children - She had financial needs and the husband had the means to pay - The parties had a "traditional" marriage and their economic lives were intertwined - While the wife's expenses were overstated, she did have significant needs - The Spousal Support Advisory Guidelines provided a medium range of $1,581 per month - Taking into account the child support payable by the husband, one child's residency with the husband, the wife's needs, the husband's imputed income and the range of support, an appropriate amount was $1,500 per month, for an indefinite period - Either party might bring a review application after three years - See paragraphs 210 to 216.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The father denied he had any source of income except for his salary and annual bonus - He was employed, since 1989, with a home construction company owned by his parents - His reported income from 2009 to 2014 averaged $44,587 - The mother submitted that an annual income of $200,000 should be imputed (Federal Child Support Guidelines, s. 19) - The Saskatchewan Court of Queen's Bench imputed an annual income of $120,300 - "The court is cognizant of s. 17 of the Guidelines which permits the court to average income over three years in order to set child support. That section, however, does not prevent the court from examining income over a longer period of time in order to determine whether the income a party is reporting is truly representative of that party's actual income." - The reported income could not have possibly supported the family's high standard of living - Based on the vehicle and cell phone benefits, the father's annual salary was, at a minimum, $78,400, plus some amount to quantify other unreported benefits and cash received by him - See paragraphs 85 to 181.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties were married for over 19 years - They had six children, ranging in age seven to 21 - The wife had recently embarked on a career, but was not yet earning any income as a representative for a line of skin care products - The husband submitted that income should be imputed to the wife for the purposes of child support and spousal support, in the amount of $30,000 per year - The Saskatchewan Court of Queen's Bench declined to impute any income, based on the wife's long absence from the job market and her uncertain prospects - The wife was competent and had the ability to earn some income - At this point, however, she had effectively been out of the job market for over 20 years and had no formal training or experience - The court ordered the parties to exchange copies of their complete income tax returns each year, in order to permit the husband to monitor the wife's progress from an income perspective - A review of spousal support "may take place after three years which will allow [the wife's] effort and success in earning income to be evaluated." - See paragraphs 182 to 192.

Family Law - Topic 4069

Divorce - Corollary relief - Custody of children - Residence of children - For the past two and one half years, the child (now almost 16 years old) had chosen to live with his father despite an interim order requiring him to live with his mother - The mother sought a parenting order - The Saskatchewan Court of Queen's Bench declined to make any order with regard to the child's residency and parenting time, in the child's best interest - Each parent had an appropriate home environment and was capable of providing for the child's basic needs - While status quo was never determinative in a final decision, it was important to consider that the child had done well academically and socially since being primarily in his father's care - The child was at an age where his wishes attracted significant weight - While the court did not condone the father wilfully disobeying the interim order, the court would not now make an order that was not in the child's best interest in order to sanction the father - See paragraphs 44 to 51.

Counsel:

W. Timothy Stodalka, for the petitioner;

R. Bradley Hunter, Q., for the respondent.

This trial was heard before Tholl, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina. The following judgment was delivered on September 3, 2015.