r v. Drover, 2020 NLCA 9

Leah Drover (appellant) v. Craig Drover (respondent) (18/10) Indexed As: Drover v. Drover 2020 NLCA 9 5 C.A.N.L.R. 365 Court of Appeal of Newfoundland and Labrador Welsh, Goodridge and Butler JJ.A. February 28, 2020

Summary: This matter arose as a result of the breakdown of the marriage. The trial judge determined it was appropriate to impute income againstMr. Drover for support purposes. The trial judge did not impute income to Ms. Drover. Based on the income of the parties, including Mr.Drover’s imputed income, the trial judge ordered Mr. Drover to pay $20,119 in retroactive child support and $618 per month in childsupport on an ongoing basis, to be recalculated on an annual basis. The parties were ordered to share any future

section 7 specialexpenses proportionally based on their incomes. The trial judge held that Ms. Drover was entitled to spousal support for a period of 7.5years. Ms. Drover appealed the trial judge’s decision, arguing that the trial judge erred in the manner in which he imputed income to Mr.Drover, as well as the calculation of the imputed income. Ms. Drover also appealed the duration and calculation of the spousal supportaward. Held: Appeal dismissed.

Butler J.A. (Welsh and Goodridge JJ.A. concurring): There was no material error, no serious misapprehension of the evidence, nor anerror of law identified in the trial judge’s determination to impute income to Mr. Drover (paragraphs 11-28). There was no reviewable error disclosed in the trial judge’s calculation of the parties’ respective incomes for support purposes, includingthe calculation of the income imputed to Mr. Drover. The trial judge’s reasons as a whole reflected the degree of rigor warranted(paragraphs 29-37). No error was identified in the trial judge’s conclusion that Ms.

Drover was entitled to spousal support for a duration of 7.5 years from thedate of separation. The trial judge’s reasons reflected that he had exercised his discretion judicially and considered the support objectives(paragraphs 38-62). There was no error identified in the trial judge’s order for retroactive spousal support, nor was there an error identified in the trial judge’squantification of the monthly future spousal support payments (paragraphs 63-79). ______________________________ Leave to appeal to SCC refused, 39146 (November 19, 2020). Cases cited: Hickey. v.

Hickey, (SCC), [1999] 2 S.C.R. 518 (S.C.C.) Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132 Crosbie v. Crosbie, 2012 ONCA 516 Meadus v. Meadus, 2012 NLCA 59, 326 Nfld. & P.E.I.R. 91

D.G. v. M.G., 2019 NBCA 69 Smith v. Smith, 2011 NBCA 66 Cabana v. Newfoundland and Labrador, 2016 NLCA 75, 1 C.A.N.L.R. 360 Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), sections 15.2(4), 15.2(6) Regulations considered: Federal Child Support Guidelines, SOR/97-175, sections 16-20 Administrative Recalculation of Child Support Regulations under the Family Law Act, NLR 16/18,

section 5 Rules considered: Court of Appeal Rules, NLR 38/16, rule 58 Other: Spousal Support Advisory Guidelines (July 2008),

section 8.5 Counsel: Daniel Glover, for the appellant; Appearing on his own behalf, the respondent. The appeal was heard on December 12, 2019 before Welsh, Goodridge and Butler JJ.A. The following judgment was filed on February 28, 2020 by Butler J.A. for the Court. ______________________________________________________________ Butler J.A.: INTRODUCTION [1] On this appeal, the Court is required to address whether the trial judge erred either in the income he imputed to therespondent/husband or in calculation of the husband’s child and spousal support obligations.

STANDARD OF REVIEW [2] “Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts whensuch decisions are reviewed” Hickey. v.

Hickey, (SCC), [1999] 2 S.C.R. 518 at para. 10. [3] The standard of review to be applied to the questions on this appeal was established in Hickey at para. 11: [11] Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an errorin principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. … [4] The appellant/wife submits that the trial judge properly imputed income to the husband but erred in its quantification because hemisapprehended the evidence in a significant manner.

She asserts further that in fixing the quantum and duration of the spousal supportorder, the trial judge failed to apply the mandatory factors and objectives established in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)thus committing an error in principle. [5] As such, the wife alleges that the trial judge erred in both his child and spousal support awards. FACTS

[ 6 ] The parties started cohabiting in 2002, married in 2004 and separated in 2013. Their son was born in the first year of their marriage, has since been diagnosed with ADHD and has had significant difficulties attending public school. His behavior has resulted in regular reports to the parents often accompanied by the need to remove him from school. At the time of trial, the child was attending a junior high school but subsequently had a trial period of home schooling.

At the time of the appeal, he had returned to regular school. [ 7 ] The wife’s evidence was that she ceased work in 2013 primarily as a result of her son’s needs. The trial judge accepted that the wife’s role as primary parent was a “good part of the reason why she was unable to continue in the travel industry” (decision of the trial judge, 2018 NLSC 15 , at paragraph 2 (8)). [ 8 ] The husband is a journeyman electrician and was throughout the relevant period employed as a project manager by an electrical company that he maintained was owned by his parents (the “Company”).

The husband received unreported benefits from the Company and used his own credit cards to pay corporate expenses. [ 9 ] In addition to his primary source of income and benefits from the Company, the husband had business income from a dog grooming salon, and rental income; neither of these two sources of income was reported on his income tax returns.

ISSUES [ 10 ] On appeal this Court must address whether the trial judge erred in the: 1. manner in which he imputed income to the husband; 2. calculation of the imputed income; 3. assessment of the duration of the spousal support award; 4. calculation of retroactive and future spousal support. ISSUE 1 – THE MANNER IN WHICH THE TRIAL JUDGE IMPUTED INCOME TO THE HUSBAND [ 11 ] The trial judge referred to paragraph 35 of this Court’s decision in Duffy v.

Duffy , 2009 NLCA 48 for the general principles applicable to the financial support of children: From these decisions, I would summarize several general principles regarding financial support of children under the Child Support Guidelines : 1. The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices. 2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children. 3.

A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent. 4. Imputing income to a parent on the basis that the parent is “intentionally under-employed or unemployed” does not incorporate a requirement for proof of bad faith. “Intentionally” in this context clarifies that the provision does not apply to situations beyond the parent’s control. 5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances. 6.

Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision. 7. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action. 8.

A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income. [ 12 ] The trial judge summarized the shifting onus of proof on an application for imputation of income as follows: [35] The person seeking imputation of income has the initial onus to establish an evidentiary basis to support that claim. From the caselaw, such an onus does not relieve the prospective payor from providing full and complete disclosure so as to ensure that a court has full information.

As there are many circumstances in which a party seeking that income be imputed will not have full financial knowledge or information, courts generally do not set the threshold too high as regards the existence of appropriate circumstances where imputation of income can be considered. Once the party seeking that income be imputed provides satisfactory evidence suggesting a prima facie case for the imputation of income, the onus shifts to the other party to satisfy the court as to that person’s income level. ( See McKenna v.

McKenna , 2015 ONSC 3309 ). [ 13 ] Where, as here, the parties were married, a spouse’s income for child support purposes is determined by the court in accordance

with sections 16 to 20 of the Federal Child Support Guidelines , SOR/97-175 , (the “ Child Support Guidelines ”). Generally this is determined under

section 16 using the “total income” (line 150) of a payor’s tax return. However, relevant to this case: • if the court is of the opinion that the line 150 income would not be the fairest determination of that income, the court may consider a pattern of income under

section 17; • where a spouse is a shareholder, director or officer of a corporation, and the court is of the opinion that the line 150 income does not reflect all the money available to the spouse for the payment of child support, the court may determine the spouse’s income to include pre-tax income of the corporation or an amount commensurate with services provided to the corporation under

section 18; and • the court may also impute income to a spouse under a non-exhaustive list of circumstances referenced in

section 19. [ 14 ] The trial judge was not satisfied to rely upon the husband’s line 150 income and considered the relevance of sections 17-19. [ 15 ] As to

section 18, the evidence established that the husband would use his own personal credit cards to cover expenses of the Company. The Company accountant testified that as of September 29, 2017 the husband was owed $34,695.70, $7,444.10, $5,490.64, $3,220.10 and $50,062.20 for such expenses on five different cards and that the “due to” account reflected a total of $113,740.11 due to him. She also testified (without further explanation) that the husband had “signed off” on the Company financial statements for corporate tax purposes. [ 16 ] The trial judge addressed whether the evidence supported use of

section 18 at paragraph 51 of his reasons as follows: Saying this, what is clear from my consideration of the evidence is that the husband is not an owner, officer, director or shareholder of the father’s business. While the father relies on him to assist in managing the business, I find that the husband’s father is and acts as the owner. I find that he has not left the business to be run solely by the husband but rather maintains hands-on involvement with regard to the business activities even though he is not in the office daily.

As such, notwithstanding that the husband has loaned money to the business in the past to assist it and has been repaid for this, the husband is only an employee of that business. As such, as stated earlier, this is not a situation where income can be imputed under

section 18 of the Guidelines . [ 17 ] The trial judge concluded that evidence concerning the Company’s operations (particularly as it related to the husband’s use of personal credit cards for Company and personal expenses, reimbursed by the Company) did not represent a situation where income could be imputed to the husband. Instead, the trial judge determined that these facts were properly addressed under

section 19. [ 18 ] The trial judge cited what he considered to be the relevant paragraphs of subsection 19(1) as follows: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; … (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; … (

f) the spouse has failed to provide income information when under a legal obligation to do so; (

g) the spouse unreasonably deducts expenses from income; … (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. [ 19 ] The trial judge then reviewed the evidence relevant to each of the applicable paragraphs of section 19(1) and concluded at paragraph 48 as follows: I have listened to and considered all of the evidence presented in assessing whether it is appropriate to exercise any discretion here to impute income to the husband. I have no intention, nor is there a need, to refer in depth to the evidence presented at this time. It was lengthy, complicated and not well or clearly presented and understood.

While I am satisfied that the wife has provided an evidential foundation for me to consider to impute income to the husband, I am not prepared to accept that the husband’s responding evidence means that income should be imputed to him on each of the basis ( sic ) alleged or to the extent set out in her counsel’s closing brief.

To suggest here that with a reported income in the mid $50,000 range (less RRSP withdrawals) that the husband’s income should be imputed to be in the $200,000 range annually is not something that I can do based on my full consideration of the evidence in this case. [ 20 ] It is clear that the trial judge found that the wife had met the threshold onus on some alleged grounds for imputation under section 19(1). [ 21 ] On other grounds however, he was not satisfied.

For example while there was evidence that a trust existed, he found that no activity had taken place within it and no basis to impute for trust income under section 19(1)(

d) or (i). He also concluded that the wife’s lifestyle arguments did not provide a foundation to impute under section 19(1)(d). [ 22 ] Nevertheless, the trial judge concluded that no reasonable basis had been given by the husband to deny imputation under section 19(1)(

d) in three categories. First, the benefits that the husband had received from the Company, secondly, rental income and thirdly,

funds from the marginally profitable dog grooming business, none of which had been reported on his income tax returns. [ 23 ] Finally, as to

section 17, it was open to the trial judge to consider the husband’s income over the last three years and determine an amount that was fair and reasonable in light of any pattern of income, fluctuation in income, receipt of a non-recurring amount in those years, or report of a non-recurring loss in those years. [ 24 ] The husband’s line 150 incomes were established at $66,711 in 2013, $55,509 in 2014 and $52,629 in 2015 and thus no significant fluctuation in income was identified.

The trial judge exercised his discretion not to average the husband’s income for these three years. [ 25 ] For 2016, however, $60,629 in RRSP income formed part of the $112,968 reported at line 150. Here, the trial judge exercised his discretion and reduced the husband’s income (for support purposes) by $60,629. [ 26 ] Ultimately the trial judge concluded as follows: [75] All of this having been considered, I do have some question about how the husband has been able to meet all of the expenses claimed on the reported income in his income tax return.

While the extent of concern about this is nowhere as serious or extensive as argued by counsel for the wife, there are some account entries that do raise questions for me. While finding as I have generally in response to the questions related to the deposits and expenses set forth, I do find that the wife has met the threshold in providing an evidential basis for some imputation of income.

The trickiest part now is to try to determine how much income to impute. … [78] Based upon all of this, I do find upon my full assessment of the evidence (considering each basis claimed by the wife to found an imputation basis to impute income both individually and cumulatively) that there is a sufficient basis upon which to exercise my discretion to impute income to the husband.

Saying this however, as referred to above, I am satisfied that it should not be to the extent that is being claimed by the wife in the circumstances. [ 27 ] In concluding as he did, the trial judge’s decision confirms that he: • was guided by the relevant

section of the Child Support Guidelines ; • made factual conclusions on which

section of the Child Support Guidelines provided the most reliable basis to impute income to the husband; • accepted the wife’s evidence on the relevance of several paragraphs of section 19(1) and was satisfied that the threshold onus upon the wife was met; • was aware of the shifting onus to the husband and accepted that the husband had met this onus on several of the asserted grounds; and • exercised his discretion not to average the husband’s incomes over a three year period under

section 17 but to reduce his 2016 income to adjust for the cashed RRSP. [ 28 ] No material error, serious misapprehension of the evidence or error of law is identified in the trial judge’s determination that

section 18 did not provide a basis to impute income to the husband, that averaging his 2013-2015 incomes was unnecessary, that the husband’s 2016 income required an adjustment for the cashed RRSP, and that the husband’s income for support purposes should be imputed under

section 19 with adjustments for benefits from the Company, rental income and funds from the dog grooming business.

ISSUE 2 – CALCULATION OF THE IMPUTED INCOME [ 29 ] The trial judge then turned his mind to the calculation of the husband’s income on an annual basis since 2013. [ 30 ] The trial judge acknowledged the need to have some rational basis for the amount to be imputed to the husband for personal expenses that were paid by other sources, and for rental income and funds from the dog grooming business. [ 31 ] The trial judge found this rational basis in an August 2011 loan application completed by the husband in which he stated his income to be $85,000. [ 32 ] Admitting “imprecision”, the trial judge imputed an additional $30,000 to the husband’s line 150 income for each of the years 2013-2015 and $25,000 for 2016 (because the dog grooming business closed).

Since there was no income tax return available for 2017, the trial judge imputed a total income of $70,000. This represented wages of $55,000 plus an additional $15,000 which the trial judge explained was less than prior years because the rental income no longer existed. [ 33 ] While “the important task of imputing income is extremely difficult, the reasons should demonstrate that, notwithstanding the paucity of evidence, some degree of rigor has been applied in arriving at the amount” ( Crosbie v. Crosbie , 2012 ONCA 516 at para. 19 ). [ 34 ] In Meadus v.

Meadus , 2012 NLCA 59 , the payor had failed to provide his income tax return for the requested year. The trial judge decided to impute income for the year based on the payor’s prior year’s income tax return. This Court found that this was reasonable in the circumstances. [ 35 ] In this case, the trial judge’s reasons explain the bases for adding additional sums to the husband’s income for each year between 2013 and 2017. They also explain the trial judge’s difficulty in calculating the benefits the husband received from various sources because the financial information was both incomplete and confusing.

The trial judge balanced the appropriate factors and exercised his discretion to add $30,000 for 3 years, $25,000 for the fourth and $15,000 for the remaining years of the spousal support order. The trial judge justified each reduction in the imputed income over the course of the seven year period.

[ 36 ] The trial judge’s reasons as a whole reflect the degree of rigor warranted.

No reviewable error is disclosed in the trial judge’s calculation of the parties’ respective incomes for support purposes. [ 37 ] The trial judge summarized the parties’ 2013-2017 incomes at paragraph 91 of his decision as follows: The incomes of the parties since their separation in March 2013 is as follows: Husband* Wife** 2013 $96,711 $14,520 (plus RRSP income $35,117) 2014 $85,509 $10,651 (RRSP income only) 2015 $82,629 $720 (UCCB) 2016 $77,339 $10,701 (includes $5,940 for spousal support) Plus $872.84 Social assistant pmts.) 2017 $70,000 $0 _____________________________________________________ * Includes line 150 plus imputed income less RESP contributions or payments ** Not all Notices of Assessment provided.

ISSUE 3 – DURATION OF THE SPOUSAL SUPPORT AWARD [ 38 ] In making the spousal support order, the wife asserts that the trial judge was obliged to apply the factors identified in

section 15.2(4), and the objectives stated in

section 15.2(6) , of the Divorce Act . I agree. [ 39 ] It is also incumbent upon a trial judge exercising discretion under

section 15.2 to provide reasons to avoid the appearance of arbitrary decision making ( D.G. v. M.G. , 2019 NBCA 69 at para. 37 citing Smith v. Smith , 2011 NBCA 66 at para. 41 ). [ 40 ] The factors and objectives are: 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. . . . 15.2( 6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 41 ] The trial judge confirmed that the wife’s entitlement to spousal support was established on both a compensatory and non- compensatory (income disparity) basis.

No challenge is made to these conclusions on this appeal. [ 42 ] The trial judge accepted the wife’s testimony relative to her financial and living situation since separation; he referenced the length of cohabitation, the functions performed during this period and he summarized the support arrangements in place since June 2016. [ 43 ] I am satisfied that the trial judge took into consideration the condition, means, needs and other relevant circumstances of the spouses as required under

section 15.2(4). [ 44 ] As to

section 15.2(6) , when considering duration and quantum of the spousal support order, the trial judge repeated his earlier findings and acknowledged what he was required to consider in meeting the objectives of a spousal support order. He referenced the length of the relationship, the wife’s age at separation, her experience in the travel industry, the age of the child and his special needs. He stated his conclusion that the wife had not yet had a sufficient opportunity to re-establish herself in the employment market, due

primarily to her parental responsibilities. He referenced the financial positions of the parties and his expectation that the wife would be able to obtain some employment within six months of the date of his decision. [ 45 ] The trial judge’s reasons confirm that he was aware of and considered both the factors identified in

section 15.2(4) and the objectives stated in

section 15.2(6) of the Divorce Act . The wife’s submission that the trial judge erred in failing to apply the mandatory factors and objectives established in the Divorce Act is without merit. [ 46 ] The trial judge found that while the son’s needs could support an extension of the duration of spousal support, without direct medical or expert evidence on the extent of the child’s needs (and with conflicting evidence on their significance), considered with other factors, he concluded that spousal support should be ordered for a fixed term instead of an indefinite term.

He therefore awarded spousal support payable to the end of August 2020. [ 47 ] The wife submits that this was an error and that the facts supported a spousal support order of indefinite duration. [ 48 ] Unlike the Child Support Guidelines , the Spousal Support Advisory Guidelines (Professor Carol Rogerson & Professor Rollie Thompson (Ottawa: Minister of Justice and Attorney General of Canada, 2008)) (the “ SSAG” ) have not been legislated and are advisory only.

They do not address entitlement, but assist with the discretion to be exercised by a trial judge in the quantum and duration of spousal support orders once entitlement is established, as it was in this case. [ 49 ] The related DivorceMate software also assists trial judges in this exercise of their discretion. [ 50 ] The trial judge’s reasons on duration are summarized in his decision. Ultimately, the trial judge exercised his discretion and determined that the wife was entitled to spousal support from the date of separation (March 1st, 2013) to August 30th, 2020, being a total of 7.5 years duration.

It is apparent that the trial judge considered the wife’s age, length of relationship, experience in work outside the home, the son’s age and status, how it impacted her career and her lack of opportunity to re-establish herself in the work place. He also referenced the SSAG and the DivorceMate software. [ 51 ] The wife provided DivorceMate calculations at Appendix C of her factum.

Using $70,000 for the husband’s income and imputing no income to herself, counsel suggested that the “with child support formula” results in a range of spousal support “for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 5.5 years and a maximum duration of 11 years from the date of separation.” [ 52 ] Relying on this, the wife suggests that it was an error for the trial judge not to award “indefinite” support. [ 53 ] First, I note that the term “indefinite”, utilized in the SSAG and the DivorceMate program does not imply lifetime or permanent spousal support but rather spousal support that is subject to variation and possibly review. [ 54 ] Secondly,

section 8.5 of the SSAG addresses duration of spousal support under the “with child support formula” and provides some explanation for the duration range generated on the sheet produced at Appendix C of the wife’s factum as follows: 8.5 Duration under the Basic Formula In most cases where there are dependent children, the courts order “indefinite” spousal support, usually subject to review or sometimes just left to variation. Even when the recipient spouse is expected to become self-sufficient in the foreseeable future, courts typically have not often imposed time limits in initial support orders.

Where the recipient spouse is not employed outside the home, or is employed part- time, the timing of any review is tied to the age of the children, or to some period of adjustment after separation, or to the completion of a program of education or training. As the recipient spouse becomes employed or more fully employed, spousal support will eventually be reduced, to top up the recipient’s employment earnings, or support may even be terminated. In other cases, support is reduced or terminated if the recipient spouse remarries or re-partners.

In practice, where there are dependent children, few “indefinite” orders are permanent. Many intervening events will lead to changes or even termination. … By making initial orders indefinite, the current law simply postpones many of the difficult issues relating to duration and recognizes the fact-specific nature of these determinations. … The durational limits under this formula combine the factors of length of marriage and length of the remaining child-rearing period, under two different tests for duration.

For longer marriages, it makes sense that a recipient spouse should get the benefit of the time limits based upon length of marriage that might be obtained under the without child support formula, as these will typically run well beyond the end of any child-rearing period. More difficult are shorter marriages where the recipient parent has the care of young children.

To deal with these cases we have, under this formula, developed additional durational limits based on the responsibilities of child-rearing and the age of the children. . . . 8.5.4 The use of the two tests for duration: whichever is longer In most cases, only one of the two tests, either the length-of-marriage test or the age-of-children test, will apply to determine both the upper and lower ends of the range. In general, the length-of-marriage test applies for longer marriages, marriages of ten years or more, while the age-of-children test applies for shorter marriages, those under ten years.

But the two tests must be used together, as it is the longer of the two tests that applies for each end of the range. Remember that this is a range for duration, and that the actual outcome in any particular case will be worked out within that range over a series of orders or agreements, by way or ( sic ) review or variation of an initial order or agreement.

The Basic With Child Support Formula for Duration Initial orders indefinite (duration not specified) subject to cumulative durational limits implemented by review or variation: Upper End of the Range: the longer of • the length of marriage, or • the date the last or youngest child finishes high school Lower End of the Range: the longer of • one-half the length of marriage, or • the date the youngest child starts full-time school [ 55 ] In this case the only child would have been anticipated to complete high school within 4 years from the date of the order and the parties had cohabited for approximately 10 years. [ 56 ] The longer duration of the two applicable tests contemplated by

section 8.5 of the SSAG would be 10 years from the date of separation (2023) because it exceeded the date their son was anticipated to complete school (2021). The lower end (half the length of the marriage) would be 5 years from the date of separation (2018).

This is confirmed on the DivorceMate calculation appended to the wife’s factum. [ 57 ] The duration of the trial judge’s order fell within the 5 to 10 year range. [ 58 ] While it may be more common for a trial judge to order indefinite spousal support in a case where there is a child who remains dependent, the duration of a spousal support order referenced when the DivorceMate software is utilized by a trial judge is a guide only and subject to the discretion of the trial judge. [ 59 ] Ideally the trial judge should have expressed which of the factors and objectives stated in subsections 15.2 (4) and (6) of the Divorce Act supported his conclusion that a spousal support order should have a duration of 7.5 years.

For example, an incentive for the wife to make greater efforts towards self sufficiency. [ 60 ] However, reasons are not required to meet a standard of perfection. Provided that the trial judge’s reasons reflect that he has exercised his discretion judicially and considered the support objectives, the exercise of discretion is entitled to deference. [ 61 ] No error is identified in the trial judge’s conclusion that the wife was entitled to spousal support for a duration of 7.5 years from the date of separation.

ISSUE 4 – CALCULATION OF RETROACTIVE AND SPOUSAL SUPPORT Retroactive Support [ 62 ] The wife also challenges the appropriateness of the trial judge’s use of annual imputed income to calculate annual retroactive child support but not retroactive spousal support. [ 63 ] I acknowledge some confusion that arises from the trial judge’s conclusions on retroactive child and spousal support.

The trial judge relied upon the parties’ respective annual incomes in the period 2013-2017 (reproduced at paragraph 37 herein) to calculate annual retroactive child support which fluctuated annually between a low of $614 per month to a high of $842 per month. [ 64 ] In comparison when the trial judge turned his attention to retroactive spousal support, he stated the following at paragraph 111: Based upon my findings above with regards to the incomes of the parties and considering the Spousal Support Advisory Guidelines , using the DivorceMate software, I have concluded that the husband should have been paying spousal support in the amount of $1500 per month from April 1, 2013 to December 31, 2016. … [ 65 ] When establishing the retroactive spousal support award, paragraph 111 confirms that the trial judge relied upon the husband’s adjusted income as reproduced at paragraph 37 herein.

However, he concluded nevertheless that $1,500 per month was appropriate for the entire period April, 2013 to December, 2016 and that $1250 a month was appropriate for the calendar year 2017. [ 66 ] The wife suggests that the trial judge’s acceptance of one monthly figure ($1500) for four years of support (2013-2016) during which period the husband’s income had differed annually, establishes that the trial judge did not rely on the annual incomes of the parties for the retroactive spousal support order and that this represents a reviewable error. [ 67 ] I conclude that this argument has no merit. [ 68 ] First, as counsel’s own DivorceMate calculations reflect, the $1,500 monthly award fell within the range of $1,270 to $1,608 per month generated when $70,000 total annual income was imputed to the husband and no income was ascribed to the wife.

In earlier years, as paragraph 39 herein confirms, while the total income imputed to the husband exceeded $70,000, the wife had income of her own. There was no evidence presented to suggest that $1,500 per month fell outside of an appropriate range on these incomes. [ 69 ] Secondly, the DivorceMate software is a program that trial judges may utilize, but ultimately the appropriate quantum of spousal

support is a matter for the trial judge’s discretion based on the facts of the case. [ 70 ] Thirdly, for the 2017 year the trial judge assumed the husband would continue to earn $70,000 but he anticipated that the wife would generate some income and therefore he reduced the spousal support to $1,250 monthly. In fact, at the hearing of this appeal, counsel for the wife acknowledged that the wife’s most recent income had been in the range of $7,000 annually.

Using these figures, it can be inferred from the wife’s DivorceMate calculations at Appendix C of her factum that the order of $1,250 per month would have fallen within a range generated by DivorceMate. [ 71 ] Finally, as discussed in greater detail in the next section, unlike child support, in this jurisdiction the husband’s spousal support obligation was not subject to annual recalculation.

Thus, in calculating the retroactive spousal support it was not unreasonable for the trial judge to exercise his discretion and fix the amount of spousal support at $1,500 monthly for a four year period instead of calculating the arrears annually as he had done for child support. [ 72 ] No error is identified in the trial judge’s order of retroactive spousal support. Future Support [ 73 ] It is apparent that the trial judge relied upon the husband’s 2017 imputed income of $70,000 as the basis for spousal support due by the husband to the wife for 2018-2020.

In comparison, he required that future child support be based upon the husband’s annual line 150 income plus $15,000. [ 74 ] Counsel for the wife argues therefore that in establishing future spousal support on the basis of 2017 imputed current income, the trial judge committed an error in principle. Again, I disagree. [ 75 ] In this jurisdiction, family law litigants have the benefit of annual administrative review and recalculation of child support orders pursuant to

section 5 of the Administrative Recalculation of Child Support Regulations under the Family Law Act , N.L.R. 16/18 (the “ Regulations ”). [ 76 ] Under the Regulations , a payor is required to provide his/her income information to the recalculation office no later than 45 days prior to the review date stated in the order and a recalculation officer reviews and recalculates the amount of child support set out in the applicable table.

Failure to provide the income information entitles the recalculation office to consider the payor’s income to be 20 percent higher than that on which the last child support order was based. [ 77 ] Such service is unavailable to spousal support. [ 78 ] Finally, it is reasonable to infer that the presumptions relied upon by the trial judge were that the husband would continue to have income of approximately $70,000 and that the wife’s income would increase gradually within the period January 1, 2017 to August 30, 2020 when spousal support would cease. [ 79 ] No error is identified in the trial judge’s quantification of the monthly future spousal support.

COSTS [ 80 ] Costs are in the discretion of the Court but generally follow the cause ( Court of Appeal Rules , NLR 38/16, Rule 58 ). The relevant principles applicable to the exercise of this discretion apply equally to represented and self-represented litigants although the categories addressed in a bill of costs may differ ( Cabana v. Newfoundland and Labrador , 2016 NLCA 75 ). [ 81 ] At trial, the trial judge characterized the evidence as confusing and poorly presented.

Success was mixed and the trial judge justified the exercise of his discretion to decline to award costs to either party on these grounds. [ 82 ] On appeal, the wife has been unsuccessful because she was not able to establish a reviewable error. [ 83 ] While the husband (who was self-represented) provided helpful comments at the hearing, he did not file a factum and made no request for costs. [ 84 ] In these circumstances it is appropriate to make no order as to costs. CONCLUSION [ 85 ] I would therefore dismiss the appeal. Appeal dismissed.