AM Applicant And: SW Respondent, 2020 NLSC 42

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation: AM v. SW, 2019 NLSC 42 Date: March 6, 2020 Docket: 201702F0127 Between: AM Applicant And: SW Respondent Before: Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 9, 10, 11, 12 and 19, 2019 Appearances: Sandra M. Burke, QC Appearing on behalf of the Applicant Natasha J. de Beer Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Collins v. Collins, 2010 NLTD(F) 15; Duffus v. Frempong-Manso, 2017 ONCA 360; Ryder v.

Kent, 2016NLTD(F) 1; McKenzie v. Perestrelo, 2014 BCCA 161; Fraser v. Fraser, 2013 ONCA 715; Leland v. Klette, 2014 SKCA 122; S. (D.B.)v. G. (S.R.), 2006 SCC 37; Gosse v. Sorensen-Gosse, 2011 NLCA 58; Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, 99D.L.R. (4th) 456 STATUTE’S CONSIDERED: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.); Income Tax Act, R.S.C. 1985, c.1 (5th Supp.); PensionBenefits Act, 1997, S.N.L.1996,

Chapter P-4.01

RULES CONSIDERED: Federal Child Support Guidelines, S.O.R./97-175 ; Administrative Recalculation of Child Support Regulations under the Family Law Act , O.C. 2018-037 OTHER: Spousal Support Advisory Guidelines; REASONS FOR JUDGMENT MacDonald, J.: INTRODUCTION [ 1 ] AM and SW married in September 1996. They have four children, two daughters, BW (DOB February 1997) and EW (DOB June 1998), and two sons, TW (DOB March 2000) and RW (DOB June 2002). [ 2 ] They cannot agree when they separated. SW says it was on May 31, 2016 while AM says it was on June 14, 2016.

Since they separated, the children lived various times with each of them. They cannot agree where the children lived and therefore what child support each owes the other. [ 3 ] The couple has unresolved matrimonial property issues. AM claims spousal support. She says she is entitled to it on a compensatory and non-compensatory basis. [ 4 ] I will round all amounts in this judgment to the nearest dollar and all percentages to the nearest whole number. issues [ 5 ] I am to decide: Issue 1: When did the couple separate? Issue 2: What child support should each parent pay the other under Section 3(1) (

a) of the Federal Child Support Guidelines (“ Guidelines ”) ? Issue 3: What

Section 7 expenses and child support should each parent pay under Sections 3(1) (

b) and 3(2) (

b) of the Guidelines ? Issue 4: How should the parties share certain matrimonial assets and liabilities? Issue 5: Is AM entitled to spousal support and, if so, for how long and in what duration? [ 6 ] I find that: (

a) The couple separated on June 14, 2016; (

b) SW owes AM $23,240.00 in retroactive basic child support. Starting on April 1, 2020, SW shall pay AM child support for RW of $814.00 a month based on his deemed 2018 income of $92,081.00; (

c) SW owes AM $5,568.00 in child support calculated under Section 3(2)(

b) of the Guidelines and incurred until August 31, 2019 and $7,353.00 in

Section 7 expenses incurred to December 31, 2019. After August 31, 2019 the parents shall share child support on the terms set out in paragraphs [134] to [142] and after December 31, 2019 share

Section 7 expenses on the terms set out in paragraph[109]; (

d) AM owes SW $18,682.00 as a balancing payment to equalize matrimonial assets and debts. AM shall pay SW one-half the current balance of the home-equity line of credit referred to in paragraphs [119], [178] and [179]; and (

e) I dismiss AM’s claim for spousal support. [ 7 ] I will now explain why I made these decisions. I will first deal with the date of separation. DISCUSSION Issue 1: When did the Couple Separate? [ 8 ] SW says they separated on May 31, 2016, while AM says they did so on June 14, 2016. I find that they separated on June 14, 2016.

[ 9 ] The couple agrees they had marital troubles. SW says these escalated when he returned from a Muskrat Falls work rotation on May 27, 2016 and they separated on May 31, 2016 before AM left for a volunteer assignment out of the country in June 2016. [ 10 ] AM disagrees and says they separated after her return from her volunteer assignment and after SW came back from another work rotation on June 14, 2016. She says that her experience volunteering caused her to believe that her marriage was over. [ 11 ] SW has little objective evidence to support his claim that they separated on May 31, 2016.

AM submitted text messages that show the couple discussed routine family matters after May 31, 2016. [ 12 ] On May 25, 2016 SW texted his wife “can’t wait to see you tomorrow. Love you”. AM responded “love you too”. On May 27, 2016, they exchanged texts about family friends coming for dinner that day. SW says they argued after dinner and separated shortly afterward. [ 13 ] SW texted his wife on May 30, 2016 on routine family matters. On June 3, 2016, the couple exchanged texts disagreeing about AM’s spending on their children. [ 14 ] On June 4, 2016, he texted his wife, “enjoy your trip”.

On June 11, 2016, he texted, “when do you get home” and “hope you had a great trip and flight home”. On June 13, 2016, he texted her ask her to arrange logistics about servicing his truck. The next day the couple exchanged angry emails beginning when SW complained that AM had no time or appreciation for him. [ 15 ] Based on these contemporaneous texts I find that it is unlikely they separated on May 31, 2016. I find it more likely that the couple separated on June 14, 2016. [ 16 ] I will now turn to the issue of child support due under Section 3(1) (

a) of the Guidelines . Issue 2: What Child Support should each Parent pay the other under Section 3(1) (

a) of the Guidelines ? [ 17 ] I find that SW owes AM $23,240.00 in retroactive child support under Section 3(1) (

a) of the Guidelines . Approach for Child Support [ 18 ]

Section 15 of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), permits me to make an order for the support of children of the marriage. A “child of the marriage” is a child who is under 19 and has not withdrawn from their charge. A person over 19 who pursues education can still be a child of the marriage. [ 19 ] The couple agrees that the three youngest children are still children of the marriage. They agree that their oldest daughter was a child of the marriage until she finished her nursing program in the spring of 2019.

Her mother says she finished after she was licensed while her father says she finished when she graduated. There is about a month between the two events. Given my decision set out in paragraphs [24] to [29], I need not resolve this disagreement. [ 20 ] According to Section 3(2) of the Guidelines , if a child is over 19, I may calculate child support in one of two ways. [ 21 ] The first is to award an amount under Section 3(1) as I would if the children were under 19. If I find this approach inappropriate, I am to decide the appropriate amount of child support under Section 3(2) (

b) considering the means and needs of the child and the financial ability of each spouse to contribute to the support of the child. [ 22 ] Section 3(2) (

b) of the Guidelines provides that I must consider the “approach” to support inappropriate before I depart from the Section 3(1) Guidelines approach. The burden falls on a parent not wanting to pay support under Section 3(1) to establish that approach is inappropriate. [ 23 ] I will first deal with the approach I should take with each child. BW [ 24 ] I find that it is inappropriate to award child support for BW under Section 3(1) but will do so under Section 3(2) (

b) of the Guidelines . [ 25 ] Neither parent seeks child support for BW under Section 3(1) (

a) with the exception of a three-month period in early 2019 when AM says BW lived with her in St. John's. However, her mother seeks recovery of

Section 7 expenses for both university and extracurricular activities. [ 26 ] In Collins v. Collins , 2010 NLTD(F) 15, Butler, J. found that the application of Section 3(1) of the Guidelines includes factors that normally apply to children under the age of majority, namely that they reside with one of the parents, they are not earning income and they are financially dependent on the parents. However, children over the age majority, who reside away from home and earn income, have expenses that will be quite different from those of a typical child under the age majority. [ 27 ] BW turned 19 before separation.

BW is in most ways independent. The couple agrees that she did not live with either of them and, except for the three month disputed period, she lived on her own, with her sister or with her girlfriend. [ 28 ] During the three month disputed period, AM says that her daughter lived with her because of difficulties with her relationship with her girlfriend and her commute to University. I find for the purposes of my award for child support under Section 3(2) (

b) of the Guidelines , BW did not live with either of her parents during this period. [ 29 ] I will calculate child support under Section 3(2) (

b) of the Guidelines considering BW’s means and needs and each parent’s financial ability to contribute to her support. I will discuss this order in paragraphs [110] to [132].

EW [ 30 ] From the time of the parents’ separation until August 31, 2016, I find it appropriate to award child support for EW under Section 3(1) of the Guidelines . The couple disagrees on who parented her and when. After August 31, 2016, I find it inappropriate to order child support under Section 3(1) but will do so under Section 3(2) (

b) of the Guidelines . [ 31 ] I am required to award basic child support for EW after August 31, 2016 under Section 3(1) of the Guidelines as she is still under 19. However, neither parent seeks the table amount under Section 3(1) (a), but her mother does seek recovery of

Section 7 expenses for both University and extracurricular activities. [ 32 ] In most respects after August 31, 2016, EW’s situation is similar to that of BW. The couple agrees that EW, who turned 19 years old in June 2017, has not lived with either of them since September 2016. I will therefore calculate child support from September 1, 2016 to June 30, 2017 using the methodology set out in paragraphs [110] to [132]. I will compare this amount to the amount I would have ordered under Section 3(1) of the Guidelines . I will also award certain

Section 7 expenses from September 1, 2016 to June 30, 2017. TW [ 33 ] I find it is appropriate to award basic child support for TW under Section 3(1) of the Guidelines until he finished his program at the College of the North Atlantic in May 2019. After May 31, 2019, I find it inappropriate to order child support under Section 3(1) but will do so under Section 3(2) (

b) of the Guidelines [ 34 ] AM seeks child support for TW after September 1, 2018 under Section 3(1) of the Guidelines because he lived in her partner’s house where she also resided. SW disagrees. AM seeks recovery of

Section 7 expenses and extracurricular activities. [ 35 ] After May 31, 2019, TW was over 19 and he was on break from his post-secondary education. From June 1, 2019, I will consider TW’s means and needs, and each parent’s financial ability to contribute to his support. RW [ 36 ] I find it is appropriate to award child support for RW under Section 3(1) of the Guidelines . He is 17 and since separation has lived at various times with one of his parents or his maternal grandparents. [ 37 ] AM seeks the basic child table amount of support. SW agrees that table amount of support is due, but disagrees on who parented him and when. His mother seeks recovery of

Section 7 expenses for extracurricular activities. [ 38 ] I will now calculate basic child support owed for each of the couple’s three eligible children, EW, TW and RW. Calculation of the Table Amount of Basic Child Support under Section 3(1) (

a) of the Guidelines . [ 39 ] I calculate child support under Section 3(1) (

a) of the Guidelines using two variables, the parent’s income and the time the child spends with each parent. If each parents a child at least 40 percent of the time, each owes the other basic child support based on their income. If one parent does not meet that threshold, that parent is not entitled to payment from the other. I will calculate parenting time on an annual basis. (See Duffus v. Frempong-Manso , 2017 ONCA 360 ) Parenting Time [ 40 ] The couple cannot agree on where the children lived from the date of separation to the date of trial.

Each presented conflicting evidence and allocated parenting time on a weekly basis. Neither kept a contemporaneous record of their parenting time. [ 41 ] After separation, SW frequently worked out of his community on rotation. The rotation was either two-week on, one-week off or three-week on, one-week off. When he was off, he returned to the matrimonial home, at least until the end of June 2019 when the couple intended to sell their matrimonial home.

It follows that when he was out of the community on work rotation he could not have parented his children. [ 42 ] After separation, AM lived in the matrimonial home, or nested, when her husband was away working. When he returned she would move to her parents’ house nearby. Except for a short period early in 2017, this nesting arrangement continued until September 2017 when she moved into an apartment in the same community. In September 2018, she moved into the home of her new partner in St.

John’s until September 2019 when she rented an apartment back in her former community for the reasons I will describe in paragraphs [60] and [61]. [ 43 ] I will now decide where each of the children lived and with whom. EW [ 44 ] I find that AM is entitled to child support for EW under Section 3(1) (

a) of the Guidelines from June 15, 2016 to August 31, 2016 without offset. [ 45 ] From June 14, 2016 until August 31, 2016, I find that she lived primarily with her mother, as her father worked on a two-week on, one-week off rotation. From September 1, 2016 to September 1, 2018, EW lived in St. John’s with her sister before she moved to Montreal. [ 46 ] Thus in 2016, SW parented EW about 33 percent of the time while AM parented about 67 percent of the time. TW and RW 2016

[ 47 ] I find that from June 15, 2016 to December 31, 2016, AM is entitled to child support for TW and RW under Section 3(1) (

a) of the Guidelines without offset. [ 48 ] Until December 1, 2016, SW was on a two-week on, one-week off rotation. I accept that SW’s employer laid him off in December 2016 until March 1, 2017 and during this time, I find that he parented his two sons 50 percent of the time. [ 49 ] Thus in 2016, even allowing for this shared parenting, SW parented TW and RW about 35 percent of the time while AM parented about 65 percent of the time. TW and RW 2017 [ 50 ] I find that for 2017, AM is entitled to child support TW and RW under Section 3(1) (

a) of the Guidelines without offset. [ 51 ] From January 1, 2017 until February 28, 2017, I find SW continued to parent the boys on a 50 percent basis until he returned to a two-week on, one-week off rotation. From March 1, 2017 until October 31, 2017, he could not have parented the boys more than one- third of the time. After his lay off on November 1, 2017, I find he parented his two sons 50 percent of the time. [ 52 ] Thus in 2017, even allowing for this shared parenting, I find SW parented TW and RW about 37 percent of the time while AM parented about 63 percent of the time.

TW and RW 2018 [ 53 ] I find that for the entirety of 2018, AM is entitled to basic child support for TW under Section 3(1) (

a) of the Guidelines without offset. The parents shall each pay the other child support for RW. [ 54 ] On April 1, 2018, SW returned to work, on a three-week on, one-week off rotation, until his next layoff in June 7, 2018. I find that from January 1, 2018 to April 1, 2018 he parented his two sons 50 percent of the time, but, after that could not have parented his boys more than 25 percent of the time. [ 55 ] AM parented the boys in her rental home until September 1, 2018 when she and TW moved to the home of AM’s partner in St. John's. The couple’s oldest son has not lived with his father since then.

RW remained in the community and lived with his father and his grandparents until May 31, 2019. Therefore, from September 1, 2018 to December 31, 2018, TW spent 100 percent of his time with his mother, while the youngest, RW, spent 25 percent of his time with SW and 75 percent with his grandparents. [ 56 ] AM says that, when RW lived with her parents, she returned to her parent’s home to be with him and she says I should allocate this parenting time to her. I disagree. I do not accept that she spent 75 percent of her time away from her partner and her oldest son during this period.

I find it more likely that the grandparents parented the boys when SW was at work. Furthermore, I have no evidence that either parent made any financial contribution to the care of the children while they lived with the grandparents. [ 57 ] Therefore, from September 1, 2018 to May 31, 2019, I will not allocate the grandparents’ time to either parent. Thus in 2018, SW parented RW 42 percent of the time while AM parented him 58 percent. SW parented TW 23 percent of the time while AM parented him 77 percent. TW and RW 2019 [ 58 ] I find that AM is entitled to child support for TW under Section 3(1) (

a) of the Guidelines without offset until May 31, 2019. Each parent shall pay the other child support for RW for all of 2019. [ 59 ] From January 1, 2019 to June 1, 2019, SW continued on a three-week on, one-week off rotation and could not have parented his youngest son more than 25 percent of the time. Again, during this period I find that AM did not parent RW for the reason set out in paragraph [56].

After SW’s layoff in June 2019, he lived 100 percent of the time with his father until August 31, 2019. [ 60 ] In September 2019, AM rented an apartment in the local community in which she says she lived with her youngest son . [ 61 ] She did this because her son did not want to move to St. John’s as he has a local girlfriend and he wanted to finish high school in his community.

She rented an apartment rather than insist that her son continue to live with his father because she thought it was important she spend time with her son during his last year of high school. [ 62 ] It would seem that common sense would dictate this boy should live with either his mother in St. John’s or his father in the local community.

However, I cannot order that common sense prevail and therefore, RW lives 100 percent of his time with his mother from September 1 , 2019 until the end of the year. [ 63 ] Thus, in 2019 AM parented TW 100 percent of the time, AM parented RW about 57 percent of the time while SW parented him about 43 percent the time. RW 2020 [ 64 ] I find that AM is entitled to child support under Section 3(1) (

a) of the Guidelines for RW from January 1, 2020 as she will parent RW 100 percent of the time in 2020, at least until the end of the school year in June. Allocation of Parenting Time 2016-2020 [ 65 ] Based on these findings, the allocation of the children’s parenting time is set out in Table 1. Table 1: Parenting Time

DATE MOM DAD EW TW RW July 1/16 Sept 1/16 2 week MH [1] 1 week with her parents 1 week MH 2 week work AM 67% SW 33% AM 67% SW 33% AM 67% SW 33% Sept 1/16 Dec 1/16 2 week MH 1 week parents 1 week MH 2 week work St. John's AM 67% SW 33% AM 66% SW 33% Dec 1/16 Dec 31/16 Parents MH St. John's SW 50% AM 50% SW 50% AM 50% 2016 PARENTING TIME AM 65% SW 35% AM 65% SW 35% Jan 1/17 Mar 1/17 Her parents MH St. John's AM 50% SW 50% AM 50% SW 50% Mar 1/17 Aug 31/17 2 week MH 1 week with her parents 1 week MH 2 week work elsewhere St.

John's AM 67% SW 33% AM 67% SW 33% Sept 1/17 Dec 1/17 Rental 1 week MH 2 week work elsewhere St. John's AM 67% SW 33% AM 67% SW 33% Dec 1/17 Dec 31/17 Rental MH St. John's AM 50% SW 50% AM 50% SW 50% TOTAL 2017 PARENTING Nil AM 63% SW 37% AM 63% SW 37% Jan 1/18 April 1/18 Rental MH St. John's AM 50% SW 50% AM 50% SW 50% Apr 1/18 Aug 31/18 Rental 1 week MH 3 week work elsewhere St. John's AM 75% SW 25% AM 75% SW 25% Sept 1/18 Dec 31/18 St.

John's AM house [2] 1 week MH 3 week work elsewhere Montreal AM 100% Grandparents 75% SW 25% TOTAL 2018 PARENTING NIL AM 77% SW 23% AM 58% [3] SW 42% Jan 1/19 Jun 1/19 1 week St. John's 3 week parents 1 week MH 3 week work elsewhere Montreal St. John's AM House SW 25% Grandparents’ 75% Jun 1/19 Aug 31/19 St. John's MH Montreal N/A SW 100% Sep 19 Dec 31/19 Rental MH Montreal N/A% AM 100% TOTAL 2019 PARENTING NIL AM 100% AM 43% [4] SW 57% TOTAL 2020 PARENTING TO FEBRUARY 28, 2020 NIL N/A AM 100% Parents’ Incomes [ 66 ] Now that I have determined parenting time, I must calculate the amounts of child support due.

I will use the parents’ 2016, 2017 and 2018 CRA Notices of Assessment to calculate child support due under Section 3(1) (

a) of the Guidelines . [ 67 ] I will now turn to the parties 2019 incomes. Neither party provided me with a 2019 CRA Notice of Assessment. [ 68 ] Section 2(3) of the Guidelines provides that I must use the most current information on income. I agree with Sheahan, J. that it is implicit in that requirement that it be the most reliable and accurate "current information". [ 69 ] I find that the most reliable, accurate and current information available representing AM’s income is that reflected on her 2018 Notice of Assessment. (See Ryder v. Kent , 2016 NLTD(F) 1).

Her employment income (after allowing for her 2017 RRSP income) is not significantly different in the two years before 2018. SW’s income however is not as straightforward. [ 70 ] SW’s counsel suggests that I should use an estimate of his 2019 income. He left his employment around July 1, 2019 when he

returned home to close the sale of the matrimonial home. He then received employment insurance. She speculates he would earn $72,501.00, which is the $58,278.77 he earned to the end of June and his projected employment insurance income of $14,222.00. AM’s counsel suggests I use an estimate of $90,000.00. I will not use either estimate. [ 71 ] This trial was in September 2019. I have no evidence whether SW had a job in October, November or December. He voluntarily left his job in July 2019 to sell the matrimonial home. He has a history of seasonal layoffs.

In these circumstances, I will average his 2018 income and his counsel suggestion for his 2019 income. Therefore, his income for child support purposes in 2019 is $92,081.00. [ 72 ] SW’s counsel suggests that I impute additional income to AM in 2017 because she was out of the province for 53 days on holidays or volunteer assignments. I will not do so. Both of these parents have flexible work schedules. At various times, each of them worked less than full-time hours. [ 73 ] The resulting table amount of basic child support is in Table 2.

Table 2: Resulting Table Amount of Child Support ($) Year AM Income SW Income Child Child Support Total Jun 15/16 to Aug 31/16 82,252 120,967 BW no table amount EW, TW & RW >60% by AM 2,165 x 2.5 months 5,413 Sept 1/16 to Dec 31/16 82,252 120,967 BW & EW no table amount TW & RW >60% by AM 1,667 x 4 months 6,668 2017 78,754 113,853 BW & EW no table amount TW & RW >60% by AM 1,599 x 12 months 19,188 2018 95,124 [5] 111,661 BW & EW no table amount TW >60% AM RW shared 732.00 x 12 months 8,784 Jan 1/19 to May 31/19 83,751 [6] 92,081 BW & EW no table amount TW >60% AM RW shared [7] 581.00 x 5 months 2,905 Jun 1/19 to Dec 31/19 83,751 92,081 BW, EW & TW no table amount RW shared [8] 75.00.00 x 7 months 525 Jan 1/20 to March 31/20 83,751 92,081 BW, EW & TW no table amount RW >60% AM 814.00 x 3 months 2,442 Sub-total Due AM 45,925 Less amount paid by SW 22,685 Total Due AM $23,240 [ 74 ] I have included AM’s RRSP withdrawal in 2018 as part of her income in that year. (See McKenzie v.

Perestrelo , 2014 BCCA 161 ), in which the Court of Appeal concluded that there is a presumption that RRSP withdrawal should be included in income for purposes of child support.) A litigant can displace this presumption depending on specific circumstances of each case. (See also Fraser v. Fraser , 2013 ONCA 715 ). In this case, there is no reason not to include AM’s RRSPs for 2018 child support purposes. [ 75 ] SW argued that I should not award child support to either parent while the parents nested in the matrimonial home. I disagree.

The evidence before me is that both, before and after separation, the parties maintained separate bank accounts. I have no basis to conclude that either contributed to the living expenses of the children disproportionate to the amount of time they parented them. [ 76 ] I find that SW owes AM $45,925.00 but has already paid her $22,685.00. Therefore, SW owes AM an additional $23,240.00 in basic child support. I have relied on the Director of Support Enforcement Creditors Statement of Account dated October 6, 2019.

I order that the parents and the Director make any necessary adjustments to the amount SW owes because of this judgment.

[ 77 ] I will now deal with what child support, calculated under Section 3(1) (

a) of the Guidelines , each should pay the other from April 1, 2020. Future Child Support Due Under Section 3(1)(

a) of the Guidelines [ 78 ] I find that, from April 1, 2020 SW shall pay AM child support of $814.00 a month based on his 2019 deemed income of $92,081.00. The parties shall recalculate basic child support for RW annually starting on April 1, 2021. [ 79 ] AM’s counsel suggested I use her $90,000.00 estimate of SW’s 2019 income for the basis of 2020 child support if SW is unemployed in 2020. I will not do so. [ 80 ] SW is obligated to pay 2020 child support and

Section 7 expenses based on his 2019 income. I will not speculate that he may not find work in 2020. Based on the evidence before me I will not make an order that would affect SM’s obligation to pay child support in 2021. I have no reliable evidence on which to do so. [ 81 ] I now turn to the issue of what Section 3(2)(

b) and

Section 7 expenses of the Guidelines for child support each parent owes the other. Issue 3: What

Section 7 Expenses and Child Support Should Each Parent pay under Sections 3(1) (

b) and 3(2) (

b) of the Guidelines ? [ 82 ] I find that SW owes AM $7,353.00 in

Section 7 expenses under Section 3(1)(

b) of the Guidelines and $5,568.00 in child support calculated under Section 3(2) (b) . [ 83 ] I must apportion

Section 7 expenses for the children of the marriage for whom I consider the approach in Section 3(1) appropriate. I will also consider these expenses in determining an appropriate child support order for children of the marriage for whom I consider the approach in Section 3(2)(

b) appropriate. [ 84 ] I may consider a child support under Section 3(2) (

b) of the Guidelines without separately determining

Section 7 expenses as a specific and additional support obligation. (See Leland v. Klette , 2014 SKCA 122 , at paragraph 37 ) However, the analysis of Section 3(2) of the Guidelines for child support is similar to that for

Section 7 expenses. Amount of Child Support Due Under Section 3(1)(b) [ 85 ]

Section 7 of the Guidelines provides that I may make an order for

Section 7 expenses taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents and the child, and the family spending pattern prior to separation. [ 86 ] A characteristic of this parenting arrangement is the large amount of

Section 7 expenses incurred for the children. The parents were generous to the children. They purchased vehicles for them. They bought their son expensive guitars. They paid for yoga, hockey, Cheer, gym memberships and for voice and guitar lessons. They bought dirt bikes. They paid for cell phones. They paid for laser eyes surgery and massages.

In fact, there is no evidence they ever said no to any of their expenditures. [ 87 ] That being said, I now consider whether the parents incurred these expenditures in the child’s best interest and were reasonable in relation to the means of the parents and the family’s spending pattern prior to separation. [ 88 ] I will first deal with the couple’s extracurricular and other expenses. Extracurricular Activities Generally [ 89 ] I will not consider reimbursement for extracurricular expenses when I determine the amount of child support under Section 3(2) (

b) of the Guidelines for BW, for EW after June 30, 2017 or for TW after May 31, 2019. [ 90 ] I find it unreasonable to expect the parents to fund these activities when their children are over 19 years old, especially as the parents must help fund their education. The children can pay for their own extracurricular sporting, fitness and entertainment expenses. [ 91 ] I now turn to the

Section 7 expenses I will allow. Cell Phones [ 92 ] I will not allow reimbursement of cell phone expenses for children over 19. I will allow reimbursement of cell phone expenses for children under 19 but cap that expense at $70.00 a month. I therefore do not allow recovery of cell phone expenses for BW as she was over 19 years old before her parents’ separation. [ 93 ] I will allow EW’s cell phone expenses of $910.00 [9] until June 30, 2017, and TW’s cell phone expenses of $2,520.00 [10] until May 31, 2019. I will allow RW’s cell phone expenses of $3,010.00 [11] to the end of December 2019. After December 31, 2019, RW’s cell phone capped at $70.00 a month shall be a recoverable

Section 7 expense. Hockey, Road Tests and other Extracurricular Activities BW and EW [ 94 ] I will not allow any extracurricular expenses for BW. I will not allow any activity expenses for EW after June 30, 2017. AM incurred Cheer expenses of $150.00 in 2016 and $3,356.00 before June 30, 2017. I will allow these expenses. TW and RW

[ 95 ] I will allow TW’s expenses for 2016 and 2017 referred to in Table 2 of AW’s trial brief at page 20. His 2019 expenses are “estimates” and he will likely incur them, if at all, after May 31, 2019. Thus, I will allow his 2016 expenses of $1,017.00 (SW incurred $967.00 - AM $50.00) and his 2017 expenses of $1,560.00 (SW $342.00 - AM $1,218.00). There will be no further recovery for TW’s extracurricular expenses after May 31, 2019. [ 96 ] I will allow RW’s expenses referred to in Table 2 of AW’s trial brief at page 20.

Thus, I will allow his 2016 expenses of $628.00 (AM $434.00 – SW $194.00), his 2017 of $1,667.00 (AM $1,667.00), 2018 of $1,152.00 (AM $230.00 – SW $722.00) and his 2019 of $133.00 (AW $133.00).

Table 3: Excerpt from Table 2 of AM’s Argument CHILD PARENT 2016 2017 2018 2019 TW AM SW $50 Hockey $592 Hockey $375 Driving $52 School Trip $590 Hockey $576 Guitar $270 Hockey $72 Guitar NIL NIL $600 Guitar $600 Voice NIL RW AM SW $434 Hockey $194 Hockey $1,345 Hockey $322 Gym NIL $274 Hockey $156 Road Test $360 Hockey $342 Gym $20 Driving NIL $133 License [ 97 ] To assist this couple in avoiding future disputes, I will cap after tax extracurricular activity expenses for RW until he turns 19 at the four-year average of the expenses or $900.00 per year.

Reimbursement shall be limited to each parents actual after tax, and any insurance reimbursements. The expenses can include memberships, instruction and training fees, uniforms and camps, instruments and rentals. There shall be no reimbursement for over-the-counter medications, ice packs, clothing (other than uniforms), sneakers and repairs to any of these items. Medical Expenses - Laser Eye Surgery and Massage [ 98 ] AM claims recovery of the balance of the expense of EW’s laser refraction surgery not already covered by SW or his insurance.

AM claims it had a medical justification rather than the apparent cosmetic benefits. However, I did not receive independent medical evidence that this procedure was medically necessary. [ 99 ] Therefore, I will not allow this expense. However, SW will not be entitled to reimbursement of any payments he made towards this expense pursuant to this Court’s order dated December 18, 2018. [ 100 ] I will not allow any recovery for EW’s massage therapy. This arises out of EW’s Cheer extracurricular activities after she turned 19.

Medical Expenses – Dental and Medical [ 101 ] I will allow the expenses incurred by AM with respect RW’s medical and dental expenses of $519.00, less the $100.00 stipulated by Section 7(1) (

c) of the Guidelines . TW Tuition [ 102 ] I will allow the expenses incurred by AW with respect to TW’s winter 2019 College of the North Atlantic tuition of $1,008.00. Miscellaneous Expenses [ 103 ] I will allow the expenses incurred by AM for TW and RW’s passports, which totals $217.00. I do not allow the similar expenses for EW as AM incurred the expense after EW turned 19. Car Expenses [ 104 ] I will not order reimbursement of any expenses relating to motor vehicles owned by the children or the parents. I do not consider them reasonable and necessary given the needs and means of the parties.

The parents may recover child’s transportation expenses as referred to in paragraphs [135] and [136] . [ 105 ] I will not order recovery of vehicle expenses for RW, as these expenses are neither reasonable or nor necessary given the means of the parents. [ 106 ] Prior to separation, the parents provided vehicles for BW and EW. Therefore, the expense was consistent with the spending pattern of the couple prior to separation. However, much has changed. The parties separated. Two more children are old enough to drive. The parents and their two daughters maintain their own households.

The children must adapt to the new circumstances. Therefore, I do

not consider the family’s pre-separation spending pattern a compelling factor in my decision. Other Expenses on which the Parents gave Evidence [ 107 ] The parents presented evidence on numerous other

Section 7 expenses but did not ask me to order reimbursement for most of them in their post-trial briefs. I do not allow any of these expenses. [ 108 ] Therefore, the amount of allowed

Section 7 expenses calculated under Section 3(1) (

b) of the Guidelines is set out in Table 4. Table 4: Allowed

Section 7 Expenses ($) EXPENSE INCURRED INCURRED BY AM INCURRED BY SW Cell 6,440 Recreational Activities 7,305 2,258 Medical Expenses – Dental and Medical 419 TW MUN Tuition 1,008 Miscellaneous Expenses 217 Total 15,389 2,258 Amount Owed by SW to AM (56%) [12] 7,353 Future

Section 7 Expenses [ 109 ] From January 1, 2020, the parties shall share

Section 7 expenses for RW based on SW ’s deemed 2018 income of $92,081.00 and AM’s 2018 CRA line 150 income, less union dues (SW 52 percent and AM 48 percent). Starting on April 1, 2021, the parties shall annually recalculate sharing of these expenses . Amount of Child Support Due Under Section 3(2)(b) [ 110 ] I now must decide the amount of child support due under Section 3(2) (

b) of the Guidelines . From September 1, 2016 to June 30, 2017, I will compare this to the support for EW I would have ordered under Section 3(1) of the Guidelines . I find that SW owes AM $5,568.00 in child support up until August 31, 2019. Educational and Living Expenses [ 111 ] The major issue in this trial is the couple’s spending on post-secondary education. The children’s postsecondary education cost almost $100,000.00 in the three and one-half years since the couple separated. [ 112 ] BW’s nursing degree at Memorial University of Newfoundland and Labrador (“MUN”) cost over $40,000.00.

She graduated in 2019 and is now working. [ 113 ] EW’s education cost over $55,000.00 (net of EW’s student loans of $7,000.00). She enrolled at MUN in 2016 and 2017. About $6,000.00 of these expenses were in 2016 and about $16,000.00 in 2017. [ 114 ] EW started Kinesiology-Physical Education at McGill University (“McGill”) in Montreal in the fall of 2018. She incurred over $22,000.00 in expenses in 2019 up to October 2019. EW has now moved into an apartment.

I can extrapolate her annual expenses at McGill were likely closer to $25,000.00. [ 115 ] AM funded the vast majority of these expenses. [ 116 ] EW’s decision to go to McGill has significant financial consequences. She is taking Kinesiology. She subsequently transferred to Physical Education. Both of these programs are available at MUN at a lower cost. No one gave me an explanation why EW would benefit from this program. No one told me why she could not gain admission to complete her education at MUN. [ 117 ] This couple probably cannot afford to educate their child at McGill.

However, if they choose to do so, they must agree to a budget and a method by which they shall pay these expenses. [ 118 ] Each parent also provided their children with use of a number of vehicles. However, after separation the parties did not consult with each other on the acquisition of these vehicles or their use, or on who would bear the expense of operating the vehicles. [ 119 ] AM funded a portion of these expenses (including her e-transfers) with more than $51,000.00 in RESPs and withdrawing about $78,000.00 from a joint line of credit after the date of separation.

The bank secured this line of credit with a mortgage on the matrimonial home. AM acknowledges that she withdrew these funds without SW’s consent or permission. [ 120 ] The parents made e-transfers of about $27,000.00 to their daughters (AM more than $22,000.00 and SW more than $4,700.00). Neither parent gave me a budget or receipts for these transfers, but presumably, the children used the money to fund their expenses. [ 121 ] AM testified that on August 6, 2015 she received, deposited to her personal account and then spent, the $11,884.97 principal amount of BW’s RESPs.

She admits she did not use this money for BW’s education. [ 122 ] Her counsel suggests that it is normal and standard practice that RESPs fund holders retain the principal contribution for their own use. Both parties testified that RESPs owned by the children’s grandparents only consist of the non-principal amount of the fund as the grandparents would be entitled to use the principal for their own purposes. [ 123 ] I do not accept this suggestion. I find that the parents created the RESPs to fund their children’s education. I do not accept it is

normal to use the funds for the couple’s living expenses. I find it implausible that the grandparents would refuse to advance funds to their grandchildren that they earmarked for their education. I find it more likely that the parties now take this position to avoid their estranged spouse from benefiting from these funds. [ 124 ] Likewise, I do not accept that AM should have spent the $11,884.97 RESPs for normal family expenses. I order that AM shall deduct $11,885.00 from the expenses referred to in paragraph [132]. [ 125 ] The couple did not discuss or agree upon most of these expenses.

AW incurred the bulk of them unilaterally without the consent or permission of her husband. One parent should not unilaterally incur educational expenses and then seek reimbursement from the other. The parents must consult on these expenses and must hold their children accountable for the use of these funds. [ 126 ] Furthermore, there is no evidence that the parents asked the children to contribute to their educational expenses.

These children must adapt to the new reality of their parents situation and I expect they will work to contribute to their education as I have provided for in paragraph [130]. [ 127 ] Butler, J. found in Collins that the reasonable needs of the children have two aspects. The first is a need for accommodation, food, clothing and miscellaneous expenses and the second is a need for actual post-secondary expenses. She concluded children have an obligation to make reasonable contribution to their own post-secondary education and training.

It does not mean that a child should apply all their income to their educational expense. [ 128 ] The parents have been incapable of discussing, let alone agreeing on, a budget for their children’s education. Accordingly, I will cap past and future post-secondary expenses. SW testified that he thought that living expenses of about $1,090.00 a month was reasonable.

This includes $500.00 a month in rent, $100.00 for entertainment and $100.00 for gas but not cell phones, tuition or books. [ 129 ] I therefore find $12,000.00 in shareable expenses per year per child is a reasonable amount of child support calculated under Section 3(2) (

b) of the Guidelines . If a child lives with a parent, child support shall be $6,000.00 per year. [ 130 ] I find it reasonable that the children contribute expenses above these caps through loans, grants, scholarships or by working. [ 131 ] I also consider this an appropriate amount for child support for EW from September 1, 2016 to June 30, 2017. Neither party sought basic child support for EW. EW spent about $6,000.00 for university expenses in the fall of 2016. I have awarded child support of $6,000.00 and some

Section 7 expenses for that period. In 2017, she incurred about $16,000.00 and offset this amount with about $9,000.00 in RRSP’s. I awarded $6,000.00 and some

Section 7 expenses for the school year ending in June 2017. Retroactive child Support under Section 3(2) (

b) of the Guidelines [ 132 ] I award retroactive child support under Section 3(2) (

b) of the Guidelines by calculating the lessor of a child’s actual expenses or the cap. I will not make any additional adjustment between the parties relating to e-transfers to the children. Therefore, SW owes AM child support under Section 3(2)(

b) of the Guidelines and

Section 7 expenses of $5,568.00 to August 31, 2019 as is set out in Table 5. Table 5: Child Support Calculated Pursuant To Section 3(2)(

b) of the Guidelines ($) Year Child 3(2)(

b) Support SW (56% Sharing) 2016 BW 10,635 [13] EW 6,000 [14] 2017 BW 12,000 EW 12,000 2018 BW 12,000 EW 12,000 2019 BW 2,673 [15] EW 6,000 [16] Total : 73,308 41,052 Less: SW’s share of RESPs of 51,480 + 11,885 withdrawn prior to separation = 63,365 X 56% [17] ( 35,484) Net due from SW: $5,568 [ 133 ] On December 13, 2018, this Court ordered SW pay AM $303.00 a month as a contribution to EW’s expenses at McGill. I order that the Director and the parents deduct any payments by SW pursuant to this order. Future Child Support Due Under Section 3(2)(b) [ 134 ] I order that after August 31, 2019 child support under Section 3(2) (

b) of the Guidelines shall be the lesser of the actual amount after-tax expenses or the cap of $12,000.00. The cap will not increase if a child attends more than two terms or semesters in a calendar year. The cap will be one-half this amount if a child only attends a post-secondary institution for one term or semester in a calendar year.

The parents shall share this child support if a child enrolls in a full-time program described in paragraph [137]. [ 135 ] After August 31, 2019, the parents can use the $12,000.00 (or $6,000.00 as the case may be) budget for any purpose relating to full-time attendance at a post-secondary institution, including clothing, personal items, tuition, transportation, books, food and accommodation. [ 136 ] I cap return travel from out-of-province at $1,000.00 a year . I cap local transportation expenses at $150.00 a month for the months the children are attending school.

If a child lives with a parent, I cap room and board at $350.00 for each month the child is in school. The parents shall not carry over any unused amount of the cap from one year to the next or from one child to another.

[ 137 ] The parents shall require a child in post-secondary education to provide to each parent prior to the start of the program , confirmation of their enrollment in a post-secondary educational program of at least four courses per semester and a budget for their educational and living expenses. If a child is participating in an educational program that started after August 31, 2019, they shall provide the information by April 30, 2020 and shall provide a

summary of actual expenses to the extent possible. [ 138 ] Each child shall provide to each parent, as soon as they receive them, a copy of their mid-term and end of term marks. [ 139 ] Upon receipt of the budget (or receipts as the case may be) and confirmation of enrollment, SW shall, within 14 days, transfer his share of the budget or expenses into a separate account created by AM for this purpose. If SW does not do so, AM may submit the expenses to the Director of Support Enforcement for collection. [ 140 ] AM may transfer funds from the account to pay the children’s expenses.

AM shall provide SW with receipts for tuition, travel, rent or accommodation and books. SW shall be entitled to the return of any unspent funds in any fiscal year in proportion to his contribution.

There shall be no carry-over of unused funds from one year to the next or from one child to another. [ 141 ] After August 31, 2019, a parent need not offset any RESPs a parent or child receives from the children’s grandparents against educational expenses. [ 142 ] The parties shall share these expenses based on SW ’s deemed 2019 income of $92,081.00 and AM’s 2018 CRA line 150 income, less union dues (SW 52 percent and AM 48 percent). Starting on April 1, 2021, the parties shall annually recalculate sharing of these expenses. DBS and Retroactive Claims [ 143 ] AM claimed retroactive child support and

Section 7 expenses in her Originating Application filed on February 16, 2017. The parties did not ask me to apply the analysis described in S. (D.B.) v. G. (S.R.) , 2006 SCC 37 (“ DBS ”), for retroactive claims. However, I have considered the following factors is making my order: (

a) Both parties established a need for child support. Child support is a benefit of his children and not for them. The children participated in the activities described in this judgment. Both parents knew their children were engaging in these activities even though they did not agree on them in advance nor discuss the cost of most of these activities; (

b) SW has an ability to pay the child support. He will not suffer any undue hardship; (

c) While I have concluded that AM engaged in blameworthy behaviour when she withdrew money from the parties joint line of credit after separation, and when she failed to apply some of BW’s RESPs to her education expenses, I have made adjustments arising out of this conduct; and (

d) The parties brought this matter to trial promptly and without any unreasonable delays. [ 144 ] In these circumstances, I consider the date of the commencement of child orders appropriate.

Issue 4: How should the Parents share certain Matrimonial Assets and Expenses? [ 145 ] I find that AM owes SW $18,682.00 as a balancing payment to equalize matrimonial assets and debts. [ 146 ] The parties have agreed on the disposition of the matrimonial home and contents, a vacation timeshare, a GMC Sierra pickup truck, and a side-by-side. [ 147 ] The couple disagrees on the valuation of a Honda Odyssey motor vehicle and liability for the payment of the mortgage and occupation rent for the matrimonial home.

The parties ask me to make small balancing adjustments to the couple’s bank accounts, RRSP’s and other marital debts. [ 148 ] I will first deal with the motor vehicles. Honda Odyssey [ 149 ] The parties disagree on the valuation of the Honda Odyssey van. I find the value of the van to be $4,500.00. AM shall pay SW $2,250.00. [ 150 ] AM says she should not pay SW anything for the vehicle. She says that after separation she gave the vehicle to two of her children. Since then it deteriorated because she could not afford repairs and it now has no value.

She says that SW could have taken the vehicle after separation. [ 151 ] SW claims the vehicle is worth $11,520.00, being its “black book” value. He did know the vehicle condition he assumed to make this calculation. Furthermore, he valued the vehicle at $4,500.00 in his property statement filed with this Court. [ 152 ] I do not accept that AM could not afford to repair the vehicle. She gave no evidence of the required repairs. AM possessed it and SW had no obligation to take possession.

Furthermore, AW gave no documentary evidence as to the value of the vehicle. [ 153 ] I find that the most reliable value is SW’s contemporaneous valuation of $4,500.00. VW Jetta, GMC Sierra and Side-by-Side [ 154 ] As I did not allow the VW Jetta expenses as a

Section 7 expense for the children, neither parent shall be entitled to any proceeds

from the other if anyone sells this vehicle. [ 155 ] The parties agree that SW shall retain the 2015 GMC Sierra and the debt relating to the vehicle. Finally, the parties agree that they shall sell their side-by-side and divide the net proceeds. Occupation Rent [ 156 ] I find that SW shall pay AM $11,550.00 for occupation rent. I will now explain why I made this decision. [ 157 ] The parties disagree on whether SW owes AM occupation rent for the time he occupied the house when AM moved into her own home.

AM does not seek occupation rent during the nesting period. [ 158 ] I find that SW owes AM occupation rent for 21 months from September 1, 2017, when AM moved out of the house, until the end of May 2019, when the house was ready for sale. I will not order occupation rent during the time the couple nested in the home nor during the two months in the winter in early 2017 when AM lived at her parents’ house when they were on holidays.

The nesting arrangement resumed when her parents returned home. [ 159 ] PN, a qualified real estate agent testified that she would expect to rent the house unfurnished for $1,100.00 a month. [ 160 ] Counsel for SW submits that I have “wide discretion” whether to grant AM’s claim for occupation rent. Wells, C.J. in Gosse v. Sorensen - Gosse , 2011 NLCA 58 , paragraph 61 , found that this wide discretion is not “…as to whether or not, in general terms, occupation rent is to be paid. The only way to achieve the objective of the statute is to provide for occupation rent or some other offsetting compensation.

The wide discretion is as to whether there are exceptional circumstances that would justify declining to award such rent…” [ 161 ] I do not find there are any such exceptional circumstances. [ 162 ] SW shall pay AM half this amount or $550.00 a month, being $11,550.00. I will not order rent on a furnished basis as the parents agreed they have divided the household contents to their mutual satisfaction.

Mortgage Expenses for Matrimonial Home [ 163 ] AW shall pay SM $32,063.00, being one-half of the $64,126.00 mortgage payments made by SW from June 1, 2016 to October 1, 2019 when the parties agree to share go-forward expenses. [ 164 ] SW says that AM should pay half the mortgage. AM says that she should not pay because she had to incur expenses for another home during the nesting period when AM returned from work. She says that SW did not incur this additional expense since he was living away from home at a job site while at work. [ 165 ] I do not accept AM’s position.

Until September 1, 2017, she lived with her parents and I have no evidence that she paid them rent. After September 1, she lived in an apartment. She received occupation rent from that date. Furthermore, I have no evidence that SW’s accommodation was free while he was at work.

In any event, none of this changes the fundamental principle that owners of matrimonial property must equally share the expense of maintaining the property. [ 166 ] They shall continue to comply with the Consent Order dated September 16, 2019 and filed October 1, 2019 except where it is inconsistent with my judgment. [ 167 ] I now will deal with the remaining matrimonial property issues.

Division of Other Matrimonial Assets and Debts and Home Occupation Expenses [ 168 ] I find that SW owes the following amounts to AM: (a) $2,552.00 for matrimonial home electricity and home insurance during the nesting period; (b) $641.00 for matrimonial home electricity when SW occupied the home from January to March 2017; (c) $975.00 for the matrimonial home insurance; (d) $709.00 for SW’s vehicle insurance post-separation; (e) $293.00 to equalize the couple’s bank accounts; and (f) $2,959.00 as an equalizing payment for the outstanding matrimonial debt outstanding on June 14, 2016. [ 169 ] I find that AM owes the following amounts to SW: (a) $1,432.00 for the matrimonial home insurance post-separation; and (b) $1,651.00, being one-half of the cash value of her RRSP with Investors Group. [ 170 ] The parties shall each assume the debt currently in his or her name. [ 171 ] AM shall pay SW $915.00 with respect to educational tax credits received from CRA and shall pay him half of any future educational tax credits she receives.

[ 172 ] SW shall retain the couple’s timeshare. AM shall execute all documents required to effect the interest within 60 days of the date of this judgment. SW shall pay the expense of preparation and registration of any transfer documents. If the parties fail to complete the transfer within 60 days, the parties shall sell the timeshare and divide the net proceeds without any adjustment for prior expenditures.

The parties make no claim against each other for expenses incurred with respect to the timeshare from the date of separation. [ 173 ] The parties shall equally divide the current value of the parties RRSP plans held at the date of separation between the parties pursuant to the rollover provisions of the Income Tax Act , R.S.C. 1985, c.1 (5th Supp .). [ 174 ] Furthermore, the parties shall be entitled to one-half of the other’s employment pensions acquired during the marriage pursuant to the Pension Benefits Act, 1997 , S.N.L.1996,

Chapter P-4.01 . [ 175 ] Each party shall provide the other with the documents necessary to affect the RRSP’s and employment pension divisions. They shall also divide their Canada Pension Plan benefits in accordance with applicable legislation. [ 176 ] Therefore, the balancing payments due with respect to the matrimonial property are set out in Table 6.

Table 6: Balancing Payments due for Matrimonial Assets and Debts ($) ITEM DUE FROM AM TO SW DUE FROM SW TO AM Occupational Rent 11,500 Mortgage 32,063 House Power Insurance - Nesting 2,552 House Power Jan-Mar 2017 641 House Insurance from Separation 1,432 975 Auto Insurance 709 Bank Account 293 Marital Debt 2,959 Honda Odyssey 2,250 RRSP 1,651 Tax Credits 915 Totals 38,311 19,629 Net due from AM to SW 18,682.00 [ 177 ] I will now turn to the couples’ home-equity line of credit secured by a mortgage on the matrimonial home.

Ancillary Order [ 178 ] I order than AM owes SW one-half the current balance of the home-equity line of credit referred to in paragraph [119]. I have dealt with repayment of this amount in paragraphs [206](

f) and [206](h). [ 179 ] I find that AM improperly withdrew funds on the couple’s home-equity line of credit post-separation. She did so knowingly and was aware that she would be liable to repay this amount. She claims she was “near bankruptcy” even though she presented no evidence to support this statement. The existence of this line of credit is an impediment to sale of the matrimonial home. Issue 5: Is AM entitled to Spousal Support and, if so, for how long and in what Duration? [ 180 ] I find that AM is entitled to spousal support but none is due.

Compensatory Entitlement [ 181 ] I find that AM is entitled to spousal support on a compensatory basis. I consider that the strength of her compensatory entitlement is between low and medium. I find that any amount and duration of support should be between the low and the mid-range. [ 182 ] The parties married in 1996 and were together for almost 20 years. During this time, they raised four children together. The couple lived in St. John’s until they moved to Alberta in 1999. When the couple met, SM was a bartender. He later completed a massage therapy certificate.

AM worked as a nurse on a casual basis but worked near full-time hours. [ 183 ] AM says they moved to Alberta so SW could find work. SW worked only for a brief time as a massage therapist but then worked in retail and wholesale sales jobs. He worked some evenings and at times worked away from home. He retained some flexibility in his

schedule to allow him to contribute to parenting his children. In fact, in 2005 he was off work during the winter and AM worked regular shifts. [ 184 ] AM continued working as a nurse on a casual basis and this gave her flexibility over her schedule. The couple worked around each other’s

schedule to accommodate their children. I find that the move did not require a financial sacrifice by either of them. [ 185 ] I find that neither the move to Alberta nor the allocation of parenting responsibilities between the couple during this period gives rise to a compensatory claim for spousal support by either party. [ 186 ] During the last number of years the couple lived in Alberta, SW significantly upgraded his work qualifications and became a Gold Seal carpenter around the time the couple relocated to Newfoundland and Labrador in 2009. His additional qualifications allowed him to increase his income.

However, he spent more time at work and this change increased AM’s parenting responsibilities. [ 187 ] The couple moved from Alberta to Newfoundland and Labrador in 2009. I accept the couple’s desire to be closer to family

support motivated their return. [188] When the couple returned to Newfoundland and Labrador, SW worked in the natural resource industry in and out ofNewfoundland and Labrador. AM returned to nursing on a casual basis. She retained flexible hours but quite often earned a near full-time income. [189] I find that the couple’s move to Newfoundland and Labrador does not give either party a claim for compensatory entitlement tospousal support. I find that the move did not benefit either one of the couple to the detriment of the other. In fact, AM did not change hercareer path.

Eastern Health paid her expenses to return to Newfoundland and Labrador. [190] However, I find that while SW worked in the natural resource industry he spent significant amounts of time away from homeduring which a disproportionate amount of parenting fell to AM. [191] I find AM has a compensatory claim for spousal support. However, as the duration of this disproportionate division ofresponsibility was not for the entire marriage and SM was home full-time for significant periods while not on shift, I find the strength ofher entitlement between low and medium.

I find that any amount and duration of support should be between the low and mid-range. [192] I will now deal with AM’s non-compensatory entitlement. Non-Compensatory Entitlement [193] I find that AM has not established need. I find that AM is not entitled to spousal support on a non-compensatory basis. [194] The parties’ income in the year of separation and the two years after is set out in Table 8: Table 8: Parents Incomes ($) YEAR AM SW2016 82,252 120,9672017 78,754 113,8532018 83,813[18] 111,6612019 83,813 92,081 [195] A difference in income alone does not automatically lead to entitlement.

Non-compensatory claims involve need. Need means asignificant decline in standard living from the marital standard. Non-compensatory support reflects the economic interdependence ofmarried couples summed up in the phrase ‘merger over time’. [196] The Supreme Court of Canada discussed this concept at paragraph 85 of Moge v. Moge, (SCC), [1992] 3 S.C.R.813, 99 D.L.R. (4th) 456. It directs me to keep in mind the doctrine of equitable sharing.

It observes that the doctrine of equitable sharingdoes not guarantee either party the standard of living enjoyed during the marriage, but this standard is far from irrelevant for supportentitlement. [197] I should regard marriages “…as a joint endeavor, the longer the relationship endures, the closer the economic union, the greaterwill be the presumptive claim to equal standards of living upon its dissolution” (Moge at paragraph 85). [198] The authors of the Spousal Support Advisory Guidelines (“SSAG”) observe that judicial principles emphasize that incomedisparity does automatically mean entitlement to support.

In practice, however, a court will find entitlement where there is significantincome disparity at the time of the application. [199] AM has re-partnered with a specialist physician. She lives in his home. She travels extensively with him. She did not provide mewith any evidence of her new partner’s income or her current expenses. She vacationed or volunteered out of the province about ninetimes in the first year of separation. She took her sons to concerts in both Ontario and Switzerland. [200] Based on the evidence before me it appears that her lifestyle may have actually improved since separation.

Therefore, I find thatAM is not entitled to spousal support on non-compensatory basis. Range of Spousal Support [201] Based on the parties’ incomes in 2016, 2017 and 2018, the length of the marriage and the amount of child support I have order,the SSAG suggest a duration of spousal support of 9.75 to 19.5 years with the range set out in Table 9. Table 9: Guideline Ranges ($) YEAR LOW MID HIGH2016 Zero Zero 2672017 Zero Zero 1612018 Zero Zero Zero2019 Zero Zero Zero-267[19] [202] These calculations do not take into account SW’s obligation to share in the

Section 7 expenses or child support calculated underSection 3(2)(

b) of the Guidelines. Both would tend to reduce the amount of spousal support. [203] The DivorceMate calculations are a guide. I am entitled to consider other factors. I may consider that AM has re-partnered. I must

be cautious in reducing a compensatory claim for spousal support on this basis. However, her strength of her compensatory entitlement is low to medium and she does not have a non-compensatory entitlement. [ 204 ] Therefore, I dismiss SW’s claim for spousal support. Costs [ 205 ] Both parents succeeded in parts of their claims. Much of the couples’ evidence was about how much child support each parent owed the other. A cost award would divert money a parent has available for the couple’s children. In these circumstances, I will not make an order for costs. Disposition [ 206 ] I hereby order that: (

a) SW pay AM $23,240.00 in retroactive basic child support due under Section 3(1) (

a) of the Guidelines ; (

b) starting on April 1, 2020 SW shall pay AM child support for RW of $814.00 a month under Section 3(1) (

a) of the Guidelines based on his deemed 2019 income of $92,081.00. the parties shall annually recalculate basic child support for RW starting on April 1, 2021 in accordance with the Administrative Recalculation of Child Support Regulations , (O.C. 2018-037); (

c) SW pay AM $5,568.00 in child support calculated under Section 3(2)(

b) of the Guidelines and incurred until August 31, 2019 and $7,353.00 in

Section 7 expenses incurred to December 31, 2019. (

d) After August 31, 2019, the parents shall share child support on the terms set out in paragraphs [134] to [142] and after December 31, 2019 share

Section 7 expenses on the terms set out in paragraph [109]. The parties shall annually recalculate sharing of child support under Section 3(2) (

b) and

Section 7 of the Guidelines starting on April 1, 2021; (

e) The parties shall, beginning on March 15, 2021, annually provide each other with evidence of their previous year’s income; (

f) AM pay SW one-half the current balance of the home-equity line of credit referred to in paragraph [119]; (

g) AM pay SW a balancing payment $18,682.00 to equalize matrimonial assets and debts; (

h) the parties shall offset amounts owed in subparagraphs (a), (b), (c), (d) (

f) and (g). For greater certainty, the parties shall offset any amounts due for the children’s post-secondary education commencing in September 2020. The party owing the other party an amount after this set-off shall pay the net balance over six months starting on September 1, 2020; (

i) AM’s claim for spousal support is dismissed; and (

j) SW shall pay all amounts due through the Support Enforcement Agency unless I have ordered otherwise. [ 207 ] Each party shall bear their own costs. ___________________________ _ Alexander MacDonald Justice [1] The couples’ matrimonial home [2] The home of AM’s partner in St.

John's. [3] SW’s percentage time = (50% x 3 months + 25% x 9 months) ÷ [SW’s time + AM’s time (50% x 3 months + 75% x 5 months + 0% x 4 months)]. [4] SW’s percentage time = (50% x 5 months +100% x 2 months + 0% x 5 months) ÷ [SW’s time + AM’s time (0% x 5 months + 0% x 2 months + 100% x 5 months]. [5] Includes RRSP income. [6] Using 2018 income without one time RRSP income. [7] Parenting calculated on a yearly basis. [8] Parenting calculated on a yearly basis. [9] 13 months @ $70/month. [10] 36 months @ $70/month.

[11] 43 months @ $70/month. [12] Weighted average since separation. [13] Actuals. I added $150 a month for local transportation for eight months. See paragraph [136] [14] Actuals. I added $150 a month for local transportation to bring expenses up to the cap. [15] Actuals. I added $150 a month for local transportation for four months. [16] One half year before EW attended university in September 2019. [17] Weighted average. [18] For spousal support purposes, I did not include RRSP income.