J. 1999 SKQB 230 F.L.D. A.D. 1998 No. 70 J.C. S.C. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: BRENT PETER GUCKERT RESPONDENT(PETITIONER) and MELODY RENAE GUCKERT APPLICANT(RESPONDENT) and KONKRETE CONSTRUCTION LTD. RESPONDENT R.B. Hunter for Brent Guckert P.G. Alberts for Melody Guckert D.G. Kovatch for Konkrete Construction Ltd. JUDGMENT KRAUS J. December 7, 1999 [1] There are several issues to be determined on this application. Payment of $55,000 to BPG [2] The applicant asserts that the respondent's father's company (the third party) paid $55,000 to BPG, the respondent's company, in contravention of the order of the court made June 7, 1999 directing any funds accruing to BPG to be paid into court, and freezing any money to be paid out. [3] This is an extremely serious allegation. The uncontradicted facts are that the third party made cheque to BPG in the amount of $55,000. That cheque was deposited to the bank account of BPG on June 8, 1999, and applied by the bank against the overdraft. The applicant asserts that the third party was served (on May 28, 1999) with notice of the application giving rise to the judgment of June 7, 1999. The applicant seeks an order against the third party, requiring it to pay $55,000 into court. The third party argues that the application, in essence, seeks contempt citation and should be directed to trial. [4] The issue should be resolved at trial where evidence can be weighed and findings of credibility can be made. Since pre-trial conference has been scheduled for January 26, 2000 (by virtue of another order), and because do not wish to prejudice the third party's position by making any finding in this forum (chambers), direct this issue to trial and to the pre-trial conference to be held on January 26, 2000. Move to Medicine Hat and Related Issues: [5] The applicant has interim possession and exclusive use of the matrimonial home and contents pursuant to the order of the court made November 23, 1998. By that order, the court designed the primary residence of the two children (aged six and three and one-half years) to be with the applicant and the respondent was granted access every second weekend. By subsequent order made December 7, 1998, the respondent was granted additional access to include Thursday or Monday, when the weekend falls on statutory holiday, and the applicant was prohibited from removing the children from Saskatchewan without court order, absent consent. The applicant has recently secured an excellent job in Medicine Hat (60 miles from the matrimonial home) and the eldest child could attend kindergarten there in the new year. The applicant's parents live in Medicine Hat and assist in looking after the children. The respondent opposes the applicant's request for leave to move to Medicine hat; he argues that the move will be tantamount to a denial of access. [6] I do wish to encourage the applicant to attain self-sufficiency and I grant her leave to remove the children to Medicine Hat; their primary residence with the applicant will thereby continue. However, the status quo as to access should also be maintained: I order that the applicant return the children to Saskatchewan for purposes of exercise of access by the respondent in accordance with existing orders. [7] The respondent requests additional access: from December 17 to December 23, to enable the children to attend family ski vacation. I order access to the respondent for that purpose, provided, on such occasion, the respondent will pick up and return the children to the applicant's residence in Medicine Hat. [8] The interim order for exclusive possession of the matrimonial home to the applicant shall not be changed. She is at liberty to rent the home and receive the income therefrom provided that she maintains the home and ensures payment of all costs. The respondent has other suitable accommodation. [9] The applicant is directed to take all reasonable steps to sell the fifth-wheel recreational trailer in her possession and to pay the sales proceeds to the bank to discharge the lien indebtedness (approximately $25,000) and to pay the balance into court. The applicant is directed to thereafter deliver and file an affidavit of bona fides as to the sale which should relieve her of the obligation for payment of the loan (approximately $800 monthly). [10] Costs are reserved to trial.
The applicant asserted the third party (the respondent's father's company) paid $55,000 to the respondent's company in contravention of the June 7, 1999 order which directed any funds accruing to the company be paid into court and froze any money to be paid out. The third party argued the application essentially sought a contempt citation and should be directed to trial. The second issue concerned the respondent's opposition to the applicant's request for leave to move to Alberta, arguing that the move will be tantamount to a denial of access. The applicant had been prohibited in a 1998 order from removing the children from Saskatchewan without a court order, absent consent.HELD: 1)The issue of the payments was directed to trial and pre-trial conference to be held in January. 2)The mother was granted leave to move the children to Alberta. Their primary residence was to continue to be with her. She was encouraged to attain self-sufficiency. Access was to be maintained and the mother was ordered to return the children to Saskatchewan for purposes of allowing the respondent to exercise access in accordance with existing orders. Additional access was granted provided he picked up and returned the children to the applicant's residence. 3)The 1998 interim order for exclusive possession of the matrimonial home was not changed. The applicant was at liberty to rent the home. 4)The applicant was directed to take all reasonable steps to sell the recreational trailer in her possession and to pay the sale proceeds to the bank to discharge the lien and the balance into court. She was to file an affidavit of bona fides as to the sale which should relieve her of the obligation for payment of the loan.  5)Costs were reserved to the trial.