QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 59 Date: 2014 02 28 Docket: DIV 1595 of 2010 Judicial Centre: Weyburn, Family Law Division BETWEEN: BRENDA MARIE KYLE and GEORGE ALLAN BENNETT KYLE Counsel: Mary Lou Senko for the petitioner Drew Filyk for the respondent FIAT SANDOMIRSKY J. February 28, 2014 [1] On November 18, 2010, the petitioner commenced this family law proceeding by issuing petition in which she sought divorce and equal division of the family property estate. The petitioner did not seek any form of corollary relief pursuant to the provisions of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). Specifically, she did not claim for spousal support. Nor did the petitioner seek spousal support under the provisions of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. [2] On August 13, 2013, the petitioner sought to amend her petition by including claim for spousal support in an amount to be determined in accordance with the Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) (“SSAG”). An application to amend the petition, amongst other relief sought, was consented to by the parties on October 17, 2013 and granted October 22, 2013. [3] On January 20, 2014, the petitioner filed the within application for interim spousal support, “retroactive to the date of the parties’ separation”. [4] In the decision Malinowski v. Malinowski, 2010 SKQB 27 (CanLII), 349 Sask. R. 210, McIntyre J. makes the following statement at para. 12 As rule retroactive child support preceding commencement of the proceedings ought not to be granted in an application for interim support. L.R. v. D.T. 1998 CanLII 13814 (SK QB), [1998] S.J. No. 733; (1999), 178 Sask R. 115 (Sask. Q.B.). Also see Dram v. Foster 2009 MBCA 125 (CanLII). [5] This rule is generally applicable to an interim application for spousal support as it is to an interim application for child support. [6] The petitioner applied for judgment for divorce which was granted August 14, 2013. She did not seek spousal support at that time. At para. 28 of the petitioner’s affidavit, sworn January 10, 2014, the petitioner avers: 28. request for support based on the Respondent’s income was made in October, 2013 and denied. Given the Respondent’s income, am claiming spousal support from the date of separation. [8] In the same decision, Malinowski, supra, McIntyre J. adopts and summarizes the Supreme Court of Canada’s decision in D.B.S., v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII); [2006] S.C.R. 231 at para. 10, which reads: 10 The Supreme Court of Canada in D.B.S., v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra 2006 SCC 37 (CanLII); [2006] S.C.R. 231 has observed that when it comes to the question of retroactive support award the court is to strive for holistic view of the matter and decide each case on the basis of the particular facts. Factors to be considered by the court include the reason for the recipient's delay in seeking child support, the conduct of the payor, the past and present circumstances of the child including the child's needs at the time the support should have been paid, and whether retroactive award might entail hardship. If retroactive child support is to be awarded it will as general rule be retroactive to the date of effective notice by the recipient, but to more than three years in the past. Effective notice does not require the recipient to take legal action. All that is required is that the topic be broached. Where payor has engaged in blameworthy conduct the presumptive start date is not that of effective notice but when the circumstances materially changed. [9] The petitioner’s evidence herein is that she first gave effective notice or broached the subject of spousal support with the respondent during the month of October, 2013. She took similar legal action in the same month leading to the order allowing an amended petition to include claim for spousal support. [10] There is ample authority for the proposition that retroactive spousal support should be left to final adjudication and not be granted upon an interim application: see Lapp v. Lapp, 2008 ABCA 15 (CanLII), 425 A.R. 232; K.B.A.S. v. G.E.S., 2006 SKQB 439 (CanLII), 286 Sask.R. 16. [11] For the foregoing reasons, and in accordance with the quoted case law, this Court will not grant retroactive spousal support prior to the respondent being put on effective notice that the petitioner was now seeking spousal support. [12] The evidence establishes that the respondent’s gross income in the year 2013, to his pay period ending December 14, 2013, was $95,275.73. This latter sum included $28,553.68 of overtime income. [13] The respondent is 61 years old. His regular hourly rate of pay is $28.50. The respondent argues that he cannot keep up the pace of working overtime hours as he did in previous years. In assessing support, whether child support or spousal support, court does not compel payor to work overtime. At the respondent’s age and given his state of health, this Court will not compel the respondent to work more than a 40 hour work week by attributing to him an income which is based upon significant overtime. [14] The respondent indicates that he intends to work standard 40 hour work week at the rate of $28.50 per hour. This represents an annual income of $59,280.00. The respondent also earns rental income from leasing farm land. The net rental income, after payment of property taxes, yields $8,000.00 to the respondent. The petitioner and respondent are now splitting oil lease revenue, each party receiving $5,500.00 per year. The respondent is in receipt of CPP benefits of $6,540.00 per annum. The sum of the respondent’s annual income is adjudged to be presently $79,320.00. [15] The total income earned by the petitioner is adjudged to be $56,103.00, consisting of wages of $50,603.00 and $5,500.00 derived from oil lease revenue. [16] Following the provisions of the Divorce Act for awards of spousal support, as interpreted by the Supreme Court of Canada in the decision Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, this Court considers the economic disparity between the respondent and petitioner’s incomes, that is $79,320.00 versus $56,103.00, is sufficiently disparate and upon which an interim award of non-compensatory spousal support is appropriate. Referencing the SSAG, as a guide only, the court orders the respondent to pay to the petitioner interim spousal support in the sum of $700.00 per month commencing effective November 1, 2013, and on the first day of each and every month thereafter until further order of the court. [17] The petitioner, having been the successful applicant, shall have her costs fixed at $1,200.00, payable by the respondent, forthwith. J. N. S. SANDOMIRSKY
Family Law – Spousal Support – RetroactiveThe petitioner commenced a family law proceeding requesting divorce and equal division of family property in 2010. She did not seek spousal support as part of her original application to the Court. In August of 2013, the petitioner sought to amend her petition to include a claim for spousal support based on the Spousal Support Advisory Guidelines. In January of 2014, the petitioner filed an application for interim spousal support retroactive to the date of separation. HELD: The petitioner was awarded spousal support, but the award was not retroactive to the date of separation. The petitioner was entitled to spousal support from the date that she put the respondent on notice of her application for spousal support. The respondent, at age 61, should not be forced to work overtime in order to meet his spousal support obligations. The Court found there was economic disparity between the income of the petitioner and the income of the respondent and awarded an interim award of non-compensatory spousal support in the amount of $400 per month, retroactive to November 1, 2013, until further order of the Court.