QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 403 Date: 2009 10 09 Docket: F.L.D. No. 325 of 2008 Judicial Centre: Saskatoon, Family Law Division BETWEEN: WENDY ROSE MCPHAIL and JEFFREY FRANK HUNT Counsel: Iffat B. Ritter for the petitioner, Wendy Rose McPhail Gregory G. Walen, Q.C. for the respondent, Dr. Jeffrey Frank Hunt Valerie G. Watson for Darcy Rex McPhail JUDGMENT POPESCUL J. October 9, 2009 INTRODUCTION [1] The applicant, Wendy Rose McPhail (“Ms. McPhail”), is 39-year-old licensed practical nurse who is employed with the Mamawetan Health Region in La Ronge, Saskatchewan. She is legally married to Darcy McPhail (“Mr. McPhail”), self-employed carpenter who also lives in La Ronge. [2] They are the biological parents of Jordan Darcy Rex McPhail, date of birth January 9, 1993 (16), Mitchell Kenneth Lloyd McPhail, date of birth May 6, 1995 (14), and Chase Aaron Joshua McPhail, date of birth October 3, 1999 (9). [3] Mr. McPhail and Ms. McPhail separated on October 1, 2001 after Ms. McPhail and the respondent, Dr. Jeffrey Frank Hunt (“Dr. Hunt”), became romantically involved. [4] Ms. McPhail and Dr. Hunt began cohabiting sometime between November 2002 (according to her) and September 2003 (according to him). They separated on July 1, 2008. [5] Ms. McPhail commenced a petition on October 14, 2008, in which she claims relief under The Family Property Act, S.S. 1997, c. F-6.3, The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, and The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. She has now brought an application requesting the following interim relief: 1. An order granting her interim sole custody of the three children, with Dr. Hunt being granted reasonable access to the children upon reasonable notice; 2. An interim order preventing Dr. Hunt from removing the children from Saskatchewan without court order or written permission; 3. An interim order requiring Dr. Hunt to pay base child support of $4,617 per month; 4. An interim order requiring Dr. Hunt to pay his proportionate share of the s. expenses pertaining to the children; 5. An order requiring Dr. Hunt to pay interim spousal support of $2,574 per month; 6. An interim restraining order, preventing Dr. Hunt from communicating with Ms. McPhail; 7. An interim order preventing Dr. Hunt from disposing of family property; 8. An interim order requiring Dr. Hunt to make an interim lump sum interim distribution of family property of $20,000. 9. An interim order granting to Ms. McPhail exclusive possession of the matrimonial home; 10. An interim declaration that Dr. Hunt stood in loco parentis to the three children; [6] Dr. Hunt brought an application requesting that Mr. McPhail be added as respondent to the within action respecting the issue of child support. Dr. Hunt also sought an order requiring Mr. McPhail to file income information as required by the Federal Child Support Guidelines, [Divorce Act Regulations, SOR/97-175]. [7] During the chambers hearing, counsel for Mr. McPhail and Ms. McPhail conceded that it was appropriate for Mr. McPhail to be added as respondent and be required to file financial information. An order to that effect was granted. Also during the chambers hearing, counsel for Ms. McPhail conceded that there was no longer any need for an order of exclusive possession of the matrimonial home because it has been vacated by both parties and is currently listed for sale. As result, an order dismissing that aspect of the application was made. [8] Counsel for Dr. Hunt represented that his client has no intention of selling or further disposing of any further family assets other than the family home, which is listed for sale with the consent of both parties. Accordingly, the application respecting dissipation of assets was adjourned sine die to be brought back to my attention, on three days notice, should Ms. McPhail see the need to revive that aspect of her application. [9] There was no opposition stated with respect to Ms. McPhail’s request for sole custody of the children vis-à-vis Dr. Hunt. Although Dr. Hunt did not specifically consent to Ms. McPhail’s application for sole custody, in light of the position that Dr. Hunt takes on the other issues, there is no opposition to Ms. McPhail’s request, and it is appropriate to grant Ms. McPhail the relief that she seeks respecting sole custody. [10] Accordingly, there will be an order that Ms. McPhail shall have sole custody of her three children, namely: Jordan Darcy Rex McPhail, date of birth January 9, 1993 (16), Mitchell Kenneth Lloyd McPhail, date of birth May 6, 1995 (14), Chase Aaron Joshua McPhail, date of birth October 3, 1999 (9). [11] No specific access was requested by Dr. Hunt and therefore there will be no order with respect to specific access. [12] There was no basis advanced for an order preventing Dr. Hunt from taking the children outside the province and clearly, that was not live issue at the hearing. An order to this effect is not necessary and decline to grant this aspect of Ms. McPhail’s application. ISSUES [13] The three issues remaining to be determined are as follows: 1. Has Ms. McPhail established a prima facie case that Dr. Hunt stood in loco parentis to the children such as to justify an interim child support order? If so, what is the appropriate amount of child support, base and s. 7, that ought to be paid? 2. Has Ms. McPhail established that she is entitled to interim spousal support? If so, what is the appropriate amount that ought to be paid to her? 3. Should this court order an interim distribution of matrimonial property in favor of Ms. McPhail in the amount of $20,000, or if not, in some other amount? 1) Has Ms. McPhail established prima facie case that Dr. Hunt stood in loco parentis to the children such as to justify an interim child support order? If so, what is the appropriate amount of child support, base and s. 7, that ought to be paid? [14] The fact that one is not the biological parent of child does not necessarily mean that one may not be legally required to provide financial support for that child. [15] Section of The Family Maintenance Act, 1997, supra, imposes legal obligation on “every parent” to provide maintenance for his or her child. “Parent” is defined by s. of the Act and includes the following provision: “parent” means: (c) person who has demonstrated settled intention to treat child as child of his or her family.... [16] In V.J.D. v. V.J.S.W., 2008 SKQB 373 (CanLII), 322 Sask. R. 238, concluded that the court can, and should, make interim child support orders in disputed in loco parentis cases where the applicant has made prima facie case for entitlement: [10] It is now well established in this jurisdiction the court can, and should, make an interim order for child support in disputed in loco parentis cases where the applicant has made out prima facie case for entitlement. See D.S. v. M.K. (2007), 2007 SKQB 102 (CanLII), 297 Sask. R. 145; 2007 SKQB 102 (Fam. Div.); A.S. v. A.A., [2004] Sask.R. Uned. 205; 2004 SKQB 441 (CanLII), 12 R.F.L. (6th) 460; 2004 SKQB 441 (Fam. Div.); Prowse-Myers v. Myers, [2004] Sask. R. Uned. 44; 2004 SKQB 139 (CanLII), R.F.L. (6th) 408; 2004 SKQB 139 (Fam. Div.). Section of the Family Maintenance Act, 1997 clearly provides that the court can make “interim or final orders”. [11] Whether or not an applicant has made out prima facie case will depend on an analysis of the relevant factors. Recently, Barclay J. in Hysuick v. Rutledge, [2007] Sask. R. Uned. 62; 2007 SKQB 244 (CanLII), 2007SKQB 244; [2007] S.J. No. 368 (Fam. Div.), summarized succinctly the criteria to be taken into account when determining whether person stands in loco parentis to child. He commented as follows: “[2] The leading cases on the issues of loco parentis are Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] S.C.R. 242 and Major v. Major (1998), 1998 CanLII 13699 (SK QB), 175 Sask. R. 34 (Sask. Q.B.). “[3] The factors enunciated in the foregoing cases for determining parental status are: a) changing the child’s name to that of the respondent; b) discussing the possibility of adopting the child; c) the child’s reference to the respondent as ‘Dad’ or ‘Mom’; d) the child’s perception of the respondent as father or mother figure; e) the age of the child; f) the duration of the child’s relationship with the respondent; g) whether the respondent participates in disciplining the child; h) whether the respondent provided financial support for the child; i) whether the application is for interim or final support; j) whether there has been any intention to terminate the relationship; k) whether the child has relationship with the noncustodial biological parent; l) whether any other person is obligated to support the child; m) whether the respondent spends time personally with the child; n) whether the respondent is “psychological parent”; o) whether the respondent has ever sought custody of or access to the child; p) the nature of the post separation conduct of the applicant or the respondent, such as denial by the applicant of access to the child by the respondent.” [17] In this case, Ms. McPhail asserts that Dr. Hunt treated the children as his own and acted as their parent. This characterization is refuted by Dr. Hunt. He admits that Ms. McPhail and he lived together and that she became the primary caregiver of the children. However, Dr. Hunt contends that the children’s biological father continued to be significant presence in their life and that he, although involved with the children, never assumed the parental role. [18] After Mr. McPhail and Ms. McPhail separated, they entered into verbal agreement where the children resided one week with Mr. McPhail and one week with Ms. McPhail. That verbal agreement was subsequently modified to accommodate the parents’ respective schedules. The arrangement changed so that the children resided 60% of the time with Ms. McPhail and 40% of the time with Mr. McPhail. In 2006, that parenting arrangement changed, again, so that the children resided with Ms. McPhail approximately 80% of the time, and 20% of the time with Mr. McPhail. Until the spring of 2007, Ms. McPhail and Dr. Hunt resided in residence at 956 Sinotte Crescent, La Ronge, Saskatchewan. This happened to be directly across the street from where Mr. McPhail resided. The children had the opportunity to come and go from both biological parents’ homes. [19] In April of 2007, Ms. McPhail and Dr. Hunt moved to new residence that had just been constructed on Eagle Point Road. They resided at that residence until the separation in July of 2008. After the separation, Dr. Hunt eventually moved to Saskatoon and Ms. McPhail moved back to the residence on Sinotte Crescent, which is owned by company in which she is shareholder. Dr. Hunt has not exercised any access to the children since separation. [20] There is no question that Dr. Hunt did provide financially for the children during the period of time that he did live with Ms. McPhail. They went on holidays together and he did fulfill duties often associated with that of parent, including attending the children’s Christmas concerts, award ceremonies, meet the teacher nights, and the like. Ms. McPhail attached copies of some of the children’s report cards indicating that Dr. Hunt signed these report cards. It is also noted that the report cards were also signed by Mr. McPhail and Ms. McPhail. [21] However, it was never contemplated that the children’s name would be changed or that they would ever be adopted by Dr. Hunt. He did not routinely discipline the children, and when Ms. McPhail went out of town, the children would normally be placed with Mr. McPhail, unless he was also not available. Although Dr. Hunt was involved in the children’s activities, it was almost always in situations where he was accompanying Ms. McPhail to these activities. [22] Although it is clear that Dr. Hunt and Ms. McPhail lived together along with the children and that Dr. Hunt assisted Ms. McPhail in some aspects of caring for the children, the precise nature and quality of the relationship between Dr. Hunt and the children is very much in dispute. Merely because the parties lived together as spouses under the same roof, does not necessarily mean that it automatically follows that the mother’s partner has assumed the role of parent. In the words of Smith J. in Miller v. Pchajek, unreported, affirmed 2005 SKCA (CanLII), 13 R.F.L. (6th) 234: Although these activities are consistent with being parent, they are also consistent with being good-natured partner to the petitioner by extending himself to her child. [23] In this case, based on the affidavit material before me, I conclude that Ms. McPhail has fallen short of establishing a prima facie case that Dr. Hunt stood in loco parentis to the children. Dr. Hunt may have stood in loco parentis to the children, however I cannot determine that on the conflicting affidavit materials currently before me. The ultimate determination will have to be made after trial where the trier of fact will have more complete evidence and will also have the benefit of viva voce testimony tested by cross-examination. Accordingly, find that prima facie case for entitlement has not been established and Ms. McPhail’s request for interim child support for the children is dismissed, without prejudice to her right to claim child support, both retroactive and prospective, for the children should it be subsequently determined that Dr. Hunt was parent within the meaning of The Family Maintenance Act, 1997. 2) Has Ms. McPhail established that she is entitled to interim spousal support? If so, what is the appropriate amount that ought to be paid to her? [24] The issue of Ms. McPhail’s status as spouse, within the meaning of The Family Maintenance Act, 1997, is clear-cut. The definition of “spouse” as contained in s. of the Act, includes the following: “spouse” means: ... (d) person who has cohabited with another person as spouses: (i) continuously for period of not less than two years; or ... [25] There is no dispute that Ms. McPhail and Dr. Hunt cohabited as spouses for in excess of two years, and that she is a “spouse” by virtue of the definition in the Act. This then brings into play s. 5(1) of The Family Maintenance Act, 1997, which defines the spousal maintenance obligation of partners as follows: 5(1) On application, the court may order person to provide maintenance for his or her spouse, in accordance with need, to the extent that the person is capable of doing so. (2) An order for the maintenance of spouse should: (a) recognize any economic advantages or disadvantages to the spouses arising from the spousal relationship or its breakdown; (b) relieve any economic hardship of the spouses arising from the breakdown of the spousal relationship; and (c) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time. [26] The Family Maintenance Act, 1997, prescribes that the court take into account certain factors when determining the amount of maintenance to be paid. The relevant portion of s. reads as follows: 7(1) In determining the amount, if any, of maintenance to be paid for dependent spouse, the court shall take into account the needs, means and economic circumstances of the parties, including: (a) the age and the physical and mental health of the spouses; (b) the length of time the spouses cohabited; (c) the measures available for the dependent spouse to become financially independent and the length of time and cost involved to enable the dependent spouse to take those measures; and (d) the legal obligation of the respondent to provide maintenance for any other person. [27] Both parties referred me to the case of Marcotte v. Marcotte, 2008 SKQB 223 (CanLII), 315 Sask. R. 280. Although that case dealt with an application for interim spousal support under the Divorce Act, R.S.C. 1985, c. (2nd Supp.), the same principles apply to this interim application brought pursuant to The Family Maintenance Act, 1997. At para. 28, the factors and considerations that are germane to interim applications were discussed: [28] On an interim application such as this, it is often noted that the most appropriate consideration at this early stage of breakdown is “need and ability to pay”. The Divorce Act does not prescribe separate considerations, factors, or objectives for interim spousal support as opposed to final determination of spousal support. The fact that need and ability are considered to be paramount in interim applications is no doubt reflection that an interim order is made before family property division is completed, and also anticipates that attainment of economic self‑sufficiency in overcoming the economic hardship of the marriage breakdown has yet to be achieved. The primary purpose of interim spousal support is to allocate family income in fair and equitable manner during the transition period. Basic principles guiding courts in connection with spousal support are well articulated by the Supreme Court of Canada in decisions such as Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813; 145 N.R. 1; 81 Man. R. (2d) 161; 30 W.A.C. 161, and later in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211. [28] In this case, Dr. Hunt’s income for 2008 was $267,961.91. His financial statement shows deficit of $3,264.67. However, the deficit is arrived at after factoring in some expenses which perhaps are no longer being incurred, which may have been double counted or for which full consideration ought not be given. For example, he claims $44,400 as rent or mortgage together with property taxes and insurance of $5,436.69 on the family home which is about to be sold. Also, he claims furnishings and equipment of $6,000, R.R.S.P. deductions of $4,800, and $48,000 for line of credit and credit cards. These are likely one time expenses, optional expenses and/or expenses already accounted for in other expense columns. He also claims $12,400 for entertainment, recreation, vacation, and alcohol and tobacco. These expenses can easily be modified by Dr. Hunt in order to make it comfortably possible for Dr. Hunt to pay spousal support, should it be necessary. conclude, therefore, that Dr. Hunt does have the ability to pay. [29] According to Ms. McPhail’s most recent financial statement, her annual income is $71,871.59, including $5,000 in child support that she receives from Mr. McPhail. She claims expenses of $121,810.79, which results in an annual deficit of $50,836.75. Some of the expenses contained in her financial statement ought not, in my view, be given full consideration when determining the amount of interim spousal support. Claims for furnishings and equipment ($5,482), credit cards ($7,800), banking, legal and accounting ($7,900), entertainment and recreation ($3,000), and alcohol and tobacco ($600.00), total $24,782. The furnishing and equipment, and banking, legal and accounting, appear to likely be one time expenditures as opposed to traditional day-to-day expenses. The credit card entry of $7,800 appears to be double entry in that the credit card expense, in and of itself, is not an expense not already covered by the other expenses. [30] In addition, she claims $23,000 for child-related items such as clothing, allowances, and the like. have already determined that Dr. Hunt, at least at this interim stage, ought not be responsible for paying child support and to include these costs in Ms. McPhail’s financial statement 1in order to create deficit appears to be an indirect way to claim child support from Dr. Hunt. Deducting those items off the expenses claimed by Ms. McPhail would leave deficit of only $3,054.75 ($50,836.75 $24,782.00 $23,000.00 $3,054.75). [31] The circumstances of the “rent” that Ms. McPhail claims she pays are somewhat cloudy. After the separation, she moved back to the residence on Sinotte Crescent. She says that she pays rent in the amount of $150.68 weekly (which amounts to $7,835.36 yearly). She is paying rent to company of which she is shareholder. Her sworn property statement places the value of that company as “unknown”. Whether Ms. McPhail is the sole shareholder, (as alleged by Dr. Hunt), the value of the home, whether there is mortgage on the home, whether the $150.68 is actually being paid and whether that amount approximates fair market value cannot be determined at this stage. [32] Also, although the parties had combined incomes approaching $350,000 per annum, it appears that their assets, after deducting their liabilities, result in a minimal net worth. The matrimonial home, which Ms. McPhail initially valued at $720,000 and has mortgage of approximately $660,000, is apparently worth only $600,000. The property is listed for sale and likely will sell for loss. Accordingly, there likely will not be significant transfer of assets from Dr. Hunt to Ms. McPhail. In fact, counsel for Dr. Hunt argues that when all is said and done, there will likely be an equalization payment flowing from Ms. McPhail to Dr. Hunt. [33] Given all of these somewhat unusual factors, I conclude that Ms. McPhail is in need of some financial assistance, albeit not to the degree that she has suggested. am also of the view that the evidence establishes that Dr. Hunt is in position to pay some monies at this time. A modest transfer of funds from Dr. Hunt to Ms. McPhail, in the interim, should alleviate the majority of her negative cash flow problem. Also, modest payment amount, at this time, would go some way to relieve the economic hardship that she is experiencing arising from the breakdown of the spousal relationship. Ms. McPhail has significant income and her cohabitation with Dr. Hunt, regardless of whose position is accepted respecting its duration, can only be described as short term. Taking into account all of these factors, the relevant legislative enactments and the legal principles that have been consistently applied in this province, I conclude that a spousal support payment of $1,500 per month is the appropriate interim amount that ought to be paid and should be sufficient to relieve her from some of the economic hardship that she has encountered as a result of the matrimonial breakdown. [34] Accordingly, I order that Dr. Hunt pay to Ms. McPhail the sum of $1,500 per month commencing September 1, 2009. However, given the short-term relationship and to add impetus to having the issues resolved sooner rather than later, I order that these payments be paid for a total period of eight months. If, by that time, the matter is still not resolved and should Ms. McPhail still be in need of interim financial assistance, she may reapply to the court, without establishing material change in circumstances, for spousal support to continue. The chambers judge at that time can assess the situation and determine whether additional interim spousal support should be payable and, if so, how much and for how long. 3) Should this court order an interim distribution of matrimonial property in favor of Ms. McPhail in the amount of $20,000, or if not, in some other amount? [35] The notice of motion seeking interim relief requests an interim distribution of $20,000 in family property. The affidavit filed in support of the application modifies that request to $10,000. During the course of the chambers hearing, counsel for Ms. McPhail further refined her request to an interim distribution of just $2,349. This is the amount that counsel for Ms. McPhail holds in trust after certain property was sold. Dr. Hunt deposes in his affidavit that the items sold were his belongings and that Ms. McPhail had stated that she did not want them. Dr. Hunt was planning on moving to Saskatoon and wanted to get rid of certain items and offered them for sale through local business. When Ms. McPhail caught wind of the fact that items were being sold, she was able to convince the local business person to forward the sale proceeds from these items to her lawyer, where they currently are held in trust. [36] The factors that court ought to consider when assessing whether or not an interim distribution of family property should be made have been set forth in number of decisions. See Schaffel v. Schaffel, 2008 SKQB 91 (CanLII), 313 Sask. R. 203; Conley v. Conley (1985), 1985 CanLII 2599 (SK QB), 44 Sask. R. 76 (Q.B.); and Waldherr v. Waldherr (1992), 1992 CanLII 8120 (SK QB), 106 Sask. R. 140 (Q.B.). Paying any money to any party at this interim stage does not meet the criteria set forth in the above-noted decisions. In particular, it is far from certain whether any money will be flowing from Dr. Hunt to Ms. McPhail. Rather, it is best for this money to remain in trust until final resolution of outstanding issues is achieved. Accordingly, Ms. McPhail’s application for an interim distribution of family property is dismissed. The sum of $2,349 currently held in trust by counsel for Ms. McPhail shall continue to be held in trust pending final resolution or mutually agreed otherwise in writing between the parties. [37] There has been mixed success. There will be no order as to costs. J. M.D. POPESCUL
The petitioner is a 39 year old nurse. She is legally married to Mr. McPhail and together they are the biological parents of three children. The petitioner separated from Mr. McPhail in October 2001 after the petitioner became romantically involved with the respondent, Dr. Hunt. The petitioner and the respondent began cohabitating sometime between November 2002 (according to her) and September 2003 (according to him). They separated in July 2008. The petitioner now commences a petition in which she claims relief from the respondent, Dr. Hunt, under The Family Property Act, The Children's Law Act, 1997 and The Family Maintenance Act, 1997. The three issues to be determined on this application are whether the petitioner has established a prima facie case that the respondent stood in loco parentis to the children such as to justify an interim child support order, whether the petitioner has established that she is entitled to interim spousal support and whether the Court should order an interim distribution of matrimonial property in favour of the petitioner in the amount of $20,000. HELD: 1) The petitioner has fallen short of establishing a prima facie case that the respondent stood in loco parentis to the children. The Court cannot make a determination based on conflicting affidavits. The determination will have to be made after trial. 2) There is no dispute the parties cohabitated as spouses for in excess of 2 years and that she is a spouse by virtue of the legislation. The principles in Marcotte v. Marcotte, 2008 SKQB 223 apply to the present case. In 2008 the respondent reported income of over $267,000, he has the ability to pay. The petitioner has annual income of over $71,000. Although the parties had a combined income of over $350,000 while they were together, it appears that their assets after their liabilities are deducted will result in a minimal net worth. The Court concludes that the petitioner is in need of some financial assistance, albeit not to the degree that she has suggested. A modest transfer of funds from the respondent to the petitioner should alleviate the majority of her negative cash flow problems. The petitioner's cohabitation with the respondent can only be described as short term. A spousal support payment of $1,500 per month is an appropriate interim amount. The payments will be paid for a total of 8 months.  3) Paying any money to any party at this stage does not meet the criteria set forth in the decisions of this Court. It is far from certain whether any money will be flowing from the respondent to the petitioner. The application for an interim distribution of family property is dismissed.