Wilkie v. Wilkie, (2009) 333 Sask.R. 48 (FD)

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 31, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 333 Sask.R. 48 (FD);2009 SKQB 119

Wilkie v. Wilkie (2009), 333 Sask.R. 48 (FD)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AP.017

Geoffrey Allan Wilkie (petitioner) v. Annique Harriet Wilkie (respondent)

(2004 DIV. No. 568; 2009 SKQB 119)

Indexed As: Wilkie v. Wilkie

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

R.S. Smith, J.

March 31, 2009.

Summary:

The parties were married in 1991 and separated in 2002. They had two children. The husband had been paying spousal and child support since 2002. An August 2004 separation agreement (which had been reduced to a consent judgment) provided that the husband would pay spousal support of $1,000 per month to be reduced by 50% of each dollar which the wife earned over $36,000. Under the terms of the agreement, the husband could have had the issue of spousal support reviewed in August 2006. However, he chose not to raise the issue until January 2009, which was the original return date of his Application for Variation which sought an order terminating spousal support. The wife joined issue with the husband's application to terminate spousal support and brought a motion seeking child support for both children in accordance with the Federal Child Support Guidelines, which she asserted was considerably higher than what the husband had been paying ($688 per month).

The Saskatchewan Court of Queen's Bench, Family Law Division, directed the husband to continue paying spousal support in an amount as determined by the formula in the separation agreement until December 31, 2011, when his obligation to pay support in accordance with that formula would end. The court ordered that the husband pay child support in the amount of $1,300 per month.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - The parties were married in 1991 and separated in 2002 - They had two children - The husband had been paying spousal support since 2002 - An August 2004 separation agreement (reduced to a consent judgment) provided that the husband would pay spousal support of $1,000 monthly to be reduced by 50% of each dollar which the wife earned over $36,000 - Under the terms of the agreement, the husband could have had the issue of spousal support reviewed in August 2006 - However, he chose not to raise the issue until January 2009, which was the original return date of his Application for Variation in which he sought to terminate spousal support - The husband's position was that the wife had had ample opportunity to become self-sufficient and that she had, in fact, become self-sufficient - The Saskatchewan Court of Queen's Bench, Family Law Division, considered that although the wife was trained as a teacher, she had had difficulty finding full-time work - She had also tried other jobs - However, at a salary of $42,800, with one or both of the parties' children under her roof (depending on the week), she struggled to make ends meet - On the other hand, the husband had a new spouse who made roughly $58,000, and his career path had moved steadily upward - For the purposes of the Child Support Guidelines, his income had been to determined to be $123,100 - The court concluded that the interests of justice mandated further spousal support, however, for a fixed duration - The husband was directed to continue paying spousal support as determined by the formula in the separation agreement until December 31, 2011, when his obligation to pay support in accordance with that formula would end - See paragraphs 7 to 23.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance and awards - Spousal support - Suspension or termination of - [See Family Law - Topic 3997 ].

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The parties had two children - One child was week-on/week-off with the parents and the other child resided primarily with the mother with periodic access to the father - With respect to the week-on/week-off situation, the father had care and charge of the child for more than 40% of the time - At issue was the amount of child support payable by the father - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the first place to start was child support based on the child who resided primarily with the mother - Therefore, the minimum obligation of the husband, with a Guideline income $123,100, was $1,046 for one child - The court stated that "The problematic aspect is how to top that level up by reason of the shared parenting plan respecting the second child. In that process, I must take into account the expenses for the children and a household comparison which should include, in that analysis, the fact that I have just ordered continuing spousal support from the [father] to the [mother]. With all respect to the [mother's] counsel, any analysis which requires the payor to pay as much in this hybrid situation as he would if both children resided with the mother, does not bear the scrutiny of common sense" - The court concluded, after reflecting on the considerations of s. 9 of the Guidelines, and the guidance of Contino v. Leonelli-Contino (S.C.C.), that child support in the amount of $1,300 per month was appropriate - See paragraphs 24 to 45.

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 9].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, appld. [para. 25].

Wouters v. Wouters (2001), 205 Sask.R. 215; 2001 SKQB 142 (Fam. Div.), consd. [para. 37].

Statutes Noticed:

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 9 [para. 24].

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

Authors and Works Noticed:

Chan, Evan K., and Gardiner, Barry R., ChildView, Version 2008.2.0, generally [para. 41].

McLeod, James Gary, and Mamo, Alfred A., Annual Review of Family Law (2008), p. 344 [paras. 13, 20].

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2nd Ed. 2006), pp. 313, 314 [para. 35].

Counsel:

D. Fisher, for the petitioner;

G. Goebel, for the respondent.

This matter was heard before R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following fiat on March 31, 2009.