2019 NBCA 6, 2019 NBCA 6

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 84-16-CA D.B. APPELLANT D.B. APPELANT - and - - et - I.S. RESPONDENT I.S. INTIMÉE D.B. v. I.S., 2019 NBCA 6 D.B. c.

I.S., 2019 NBCA 6 CORAM: The Honourable Justice Quigg The Honourable Justice Green The Honourable Justice French CORAM : l’honorable juge Quigg l’honorable juge Green l’honorable juge French Appeal from a decision of the Court of Queen’sBench: October 7, 2016 Appel d’une décision de la Cour du Banc de la Reine: le 7 octobre 2016 History of Case: Historique de la cause : Decision under appeal: 2016 NBQB 167 Décision frappée d’appel : 2016 NBQB 167 , 2016 NBBR 167 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 22, 2018 Appel entendu : le 22 février 2018 Judgment rendered: January 18, 2019 Jugement rendu : le 18 janvier 2019

Reasons for judgment by: The Honourable Justice French Motifs de jugement : l’honorable juge French Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the Appellant: Marie-Claude Bélanger-Richard, Q.C. For the Respondent: Sheila J. Cameron, Q.C. Avocats à l’audience : Pour l’appelant : Marie-Claude Bélanger-Richard, c.r. Pour l’intimée : Sheila J. Cameron, c.r. THE COURT The appeal is allowed in part. There will be no order to pay costs. LA COUR L’appel est accueilli en partie.

La Cour n’accorde aucuns dépens. The judgement of the Court was delivered by FRENCH, J.A. I. Overview [ 1 ] The father appeals the decision by a judge of the Court of Queen’s Bench to reduce the mother’s obligation to pay spousal support retroactive to January 1, 2011, and to terminate her obligation entirely as of October 2018.

He also appeals the judge’s determination that the Interim Consent Order made in 2013 did not vary the Consent Variation Order made in 2010, which provided for child support to be calculated based on split custody; the reality at the time of both orders was that the father had primary care of the parties’ two children. The judge’s decision followed an 11-day hearing in 2016 and it varied the spousal support order initially made by a judge of the Nova Scotia Supreme Court in 2008, following a five-day divorce trial.

[ 2 ] The initial spousal support order, made in 2008, reflected the unique circumstances of the parties at that time. The careers of both the mother and father were in transition and their incomes were expected to be variable. In 2003, they and their two young children moved from Vancouver to Halifax so the mother could begin a six-year residency in radiology at Dalhousie University. The father gave up his career in the IT industry and, following the move to Halifax, remained at home with the children, as the parties had agreed. They separated two years later, in September 2005.

While a resident, the mother’s income fluctuated; the trial judge determined she was capable of earning $65,000 annually. He also determined that when she was finished her residency, she would earn approximately $400,000 as a full-time radiologist. [ 3 ] The order did not specify the quantum of the mother’s monthly spousal support obligation. It ordered her to pay the amount determined by the application of the Spousal Support Advisory Guidelines ( Guidelines ) to her actual income, to be recalculated after every change in income.

The order also required her to pay lump sum support of $300,000, payable in monthly installments that were not to begin until she completed her residency. [ 4 ] As it turned out, the mother earned approximately $650,000 during 2011, her first full year as a radiologist. She moved to Moncton to take the position and the father and the children followed in July 2011. She paid spousal support based on the application of the Guidelines . However, in 2012, she concluded she had overpaid and in June she stopped paying.

In August 2012, she filed a motion to vary both child and spousal support and she was put on medical leave from work, due to depression. The mother requested that spousal support be terminated and, in the alternative, that her income be capped at $400,000 for support purposes retroactive to January 1, 2011, and made time-limited. She also requested child support be varied as of January 1, 2011, and be determined pursuant to ss. 4 and 10 of the Federal Child Support Guidelines.

Section 4 applies where a payor’s annual income exceeds $150,000 and s. 10 permits the payment of a different amount where the payor establishes the amount otherwise payable under s. 4 would cause an undue hardship. [ 5 ] The mother’s motion was not heard until 2016. It is the judge’s disposition of that motion which is the object of this appeal. The judge accepted the mother’s claim that her income constituted a change in circumstances, being well in excess of the $400,000 she had been expected to earn at the time of the 2008 divorce trial.

The judge noted that by requiring support to be paid based on the application of the Guidelines , regardless of the quantum of income, the initial support order applied the Guideline formula to income above the $350,000 ceiling without any judicial consideration of the appropriateness of doing so. The judge varied the mother’s spousal support obligation retroactively to January 1, 2011, coincident with the beginning of her first full year as a radiologist.

He did not reduce support by fixing the quantum to be paid; instead, as the mother requested, he capped her income for the purpose of applying the Guidelines ; however, he did so at $450,000, more than the $400,000 she suggested. He also terminated support entirely as of October 1, 2018, and reduced it by 50% during the final 12 months. [ 6 ] In relation to child support, the motion judge accepted the mother’s position that the Consent Variation Order of September 2010 should continue to apply until 2015 and support should be calculated based on the split custody method.

He rejected the father’s position that their agreement and the Interim Consent Order made as of December 17, 2013, varied the Consent Variation Order, ended the determination of child support based on split custody and required support to be based on the reality of his having primary care of both children.

The father’s request to vary the Consent Variation Order, made in response to the mother’s motion, was not otherwise addressed by the motion judge. [ 7 ] On appeal, the father submits the motion judge erred in determining there had been a material change in circumstances, capping the mother’s income at $450,000 for spousal support purposes and terminating support entirely in 2018. He submits, among other things, the judge failed to undertake an analysis to determine whether the father ceased to suffer the economic consequences arising from the breakdown of the marriage.

The father also submits the judge erred when he found the Interim Consent Order of December 2013 did not vary the Consent Variation Order. For the reasons that follow, I would dismiss the father’s appeal respecting spousal support but allow it in connection with child support. II. Background [ 8 ] The mother and father began cohabiting in Vancouver in 1995. They married in December 1996 and have two children, one born in 1999, the other born in 2001. Both parents worked until they moved to Halifax. [ 9 ] The mother graduated from medical school at the University of Montréal in 1989.

She obtained a Master of Health Administration from the University of British Columbia in 1993 and began working at UBC as a researcher. Her income was about $70,000 per year. In 2002, the mother learned that her position at UBC was to be eliminated and she applied for admission to medical specialty programs at universities in Vancouver, Toronto, Ottawa and Halifax. She was accepted into the radiology program at Dalhousie University. It was expected to take six years, beginning in 2003 and ending in 2009.

[ 10 ] The father graduated with a degree in mathematics from Waterloo University and had been working for some time in Vancouver when he met the mother in 1994. He held various positions in the technology industry, at times earning $100,000 per year. His income with a start-up IT company immediately before moving to Halifax in 2003 was $86,000 a year, plus stock “benefits.” [ 11 ] Needless to say, the decision to pursue a six-year residency in Halifax gave rise to a considerable change for the entire family. At the time, the father was 41 years of age and the mother was 38.

Today they are 56 and 53, respectively. They sold their home in Vancouver, the father gave up his position and, as agreed, he remained at home to care for the children, then 4 and 2 (now 19 and 17). While the evidence at the divorce trial diverged on how long it had been agreed the father would remain at home, the trial judge found it was to be for at least two years.

Both parents recognized that when the father did return to the job market, he would be faced with less opportunity in Halifax, particularly in his field of IT, than would be the case in Vancouver or any of the other cities where the mother applied to pursue her specialty. Financially, their plan in Halifax was to rely on the proceeds from the sale of their home ($192,000), their RRSPs (approximately $150,000) and the income earned by the mother while completing her speciality. They acknowledged it would be necessary to incur debt to live comfortably and achieve their plan.

They bought a home in Halifax. [ 12 ] In September 2005, two years after moving to Halifax, the mother and father separated. The mother moved from the family home in December 2005 and the father continued to be the children’s primary caregiver. [ 13 ] Not surprisingly, over the years that followed, the financial fallout was near catastrophic for both parents. This is not to overlook the obvious emotional strain resulting from the situation. As the sole income earner, the mother initially paid child and spousal support.

However, after August 2006, she stopped paying any spousal support and she applied to continue her residency on a part-time basis beginning in September 2006. This extended the time necessary for her to complete her residency to 2010, at least, and it reduced her income. Also in September 2006, the father commenced a two-year education program at Mount St. Vincent University as part of an effort to retrain and re-enter the workforce. No further support was paid to the father until after the trial judge’s decision in October 2008. [ 14 ] The father applied for a divorce.

Following a five-day trial in the spring of 2008, the trial judge ordered, in October 2008, that primary care of the children was to remain with the father and the mother was to pay child support. The mother was ordered to pay child support arrears of $11,088, in 48 instalments of $231 and prospective monthly child support of $918, based on an imputed income of $65,000. This was the income the judge found the mother could have earned had she participated in her program full- time. The judge made other orders, including a division of assets and debts.

He rejected the father’s request for an unequal division of marital property, including his request for an unequal share of the home and RRSP’s. [ 15 ] The trial judge did not order spousal support for the period between the date of separation and the date of his order. He ordered the mother to pay lump sum spousal support of $300,000 and periodic support in accordance with the Guidelines . The lump sum support was to be paid out of the mother’s share of the sale of the family home, after first accounting for the division of assets and debts.

The remaining balance was ordered to be paid by the mother in installments following the completion of her speciality. After the sale of the home, and other adjustments, there remained approximately $250,000 of the lump sum support to be paid after the mother began working full-time. As of the hearing of the motion in 2016, the mother owed approximately $250,000 in lump sum support. [ 16 ] As noted, the periodic spousal support was ordered to be determined in accordance with the Guidelines and was to be recalculated following every change in income.

At first, the mother was required to pay the nominal minimum amount of $100 per month.

The key provisions relating to spousal support and its recalculation are as follows, from the Corollary Relief Judgment of April 20, 2010: The Respondent shall pay to the Petitioner spousal support for an indeterminate period of an amount, at the intermediate level, that reflects the application of the Spousal Support Advisory Guidelines to the Petitioner’s and the Respondent’s annual income rates, until the Petitioner’s or the Respondent’s annual income rate is determined to have changed, as provided for in paragraph 11 herein, at which time the Respondent shall pay to the Petitioner spousal support of an amount that reflects the application of the Spousal Support Advisory Guidelines to the changed annual income rate of the Petitioner or the Respondent.

The minimum monthly spousal support payment to be made by the Respondent to the Petitioner shall be $100 . [para. 6(a)] […] If either the Petitioner or the Respondent experience a change in his or her current annual income rate, as disclosed pursuant to paragraph

8, 9 or 10 herein, such a change shall constitute a change of circumstances requiring the Respondent, pursuant to the Spousal Support Advisory Guidelines and subparagraph 6(

a) of the Corollary Relief Judgment, to change the amount of spousal support payable to the Petitioner. If the Respondent fails to change the amount of spousal support payable to the Petitioner despite this change of circumstances, either the Petitioner or the Respondent may seek a review by a court of competent jurisdiction of the amount of spousal support payable to the Petitioner . [para. 11(a)] [Emphasis added.] [ 17 ] Although the trial judge’s decision was rendered on October 22, 2008, the Corollary Relief Judgment was not entered until almost 18 months later, on April 20, 2010.

All was not quiet during the intervening period. The mother maintained the trial judge did not order both lump sum and periodic spousal support and, after receiving further submissions from the parties, the trial judge issued supplemental reasons on June 29, 2009, rejecting this claim. He clarified his decision and his view of the interplay between the two forms of support ordered, stating: The court ruled that spousal support on these facts should have both a lump sum and periodic component. The court did not rule that these components were mutually exclusive.

In fact, the court ruled that they were separate components of spousal support that complemented each other. The decision does not contemplate periodic spousal support ending when lump sum support begins. In fact, the court anticipated that during the initial period following the court’s decision, lump sum support would be paid to the Petitioner following the sale/disposition of the home. It was anticipated that concurrently periodic support would in all likelihood, also be paid. This could also be true when the Respondent becomes fully employed as a certified radiologist.

For example, after September 1, 2010, it may be that the Respondent will be paying lump sum spousal support installments and also be subject to an obligation to pay periodic spousal support. Finally, the periodic spousal support is of indefinite duration. No termination date was ordered or contemplated. Such a conclusion will now require a separate application . The calculation of periodic spousal support is to be frequent, given that both parties incomes are expected to be fluid .

The Spousal Support Advisory Guidelines should be used as a reference when determining the appropriate quantum of spousal support to be paid by the Respondent. [paras. 28-30] [Emphasis added.] [ 18 ] Despite this clarification decision, it was a further nine months before the Corollary Relief Judgment was entered on April 20, 2010. However, before then, in February 2010, the mother filed an application to vary the trial judge’s order respecting the children; she sought custody and approval for her to move with the children to Moncton.

The mother had been offered a position there as a radiologist, which would begin after she completed her residency later in 2010.

The offer letter, submitted in support of her motion, indicated an income of $394,000 a year – very close to the $400,000 the trial judge determined she would earn. [ 19 ] On May 20, 2010, after the Corollary Relief Judgment was entered, the mother appealed the trial judge’s decision respecting spousal support. [ 20 ] The mother’s application to vary custody in contemplation of her move to Moncton was the object of a settlement conference held over two days in July 2010 with a judge of the Supreme Court of Nova Scotia.

The resulting Consent Variation Order, made in September 2010, is important on appeal. [ 21 ] The motion judge characterized this order as the father’s shrewd bargain to obtain the mother’s withdrawal of her appeal of the trial judge’s decision on spousal support in exchange for his agreeing to move to Moncton with the children. Addressing the move, the order sets out, with uncommon precision, what was expected and agreed to respecting the employment and residence of the parties.

It provides for the mother to continue to live in Halifax until December 31, 2010, during which time she would earn an income from radiology locums in the area. Beginning January 1, 2011, she would be employed with the health authority in Moncton but she would reside in both Moncton and Halifax until July 2011. After July 2011, the mother would reside only in Moncton. The order provides that in July 2011 the father and the children would move to Moncton. [ 22 ] While the Consent Variation Order provided for the family’s second move, it addressed more than custody.

Significantly, in relation to the father’s appeal, it changed the basis upon which child support would be payable by the mother. Under the

Corollary Relief Judgment, the mother was ordered to pay child support for two children, both of whom were in the primary care of the father. Although the Consent Variation Order did not change the primary care of the children, it provides that the mother and father would each pay child support for one child, based on the “split custody” formula set out in s. 8 of the Child Support Guidelines .

Thus, the mother would pay the father the table amount of support for one child minus the table amount of support he would “pay” for the other child. [ 23 ] It is worth noting the Consent Variation Order reflects the expectations for the mother’s income at that time. In connection with the changes to child support, it indicates that, although it was known the mother’s income from the position in Moncton would be $394,000, it was expected that her actual income would be less for the first half of 2011 since she would continue to reside part-time in Halifax.

The order provides that until July 2011 the mother’s annual income will be at a “rate” of $57,000. [ 24 ] The Consent Variation Order also provides the mother will “immediately withdraw her appeal of the Corollary Relief Judgment and the decision on which it [is] based.” The father submits that by doing so, the mother confirmed her acceptance of the obligation to pay spousal support on a variable basis – including based on her full income as a radiologist.

The Consent Variation Order did not vary the mother’s obligation to pay periodic spousal support and it provides that all provisions of the Corollary Relief Judgment that are not varied “shall continue in full force and effect hereafter.” The Consent Variation Order also set out a revised payment

schedule for the lump sum support instalments. [ 25 ] After the mother began working in Moncton, the recalculation of spousal support, based on the parties’ incomes, continued for a period of time with the assistance of their Nova Scotia lawyers. However, sometime in the spring of 2011 the mother and father assumed responsibility for the calculation of both child and spousal support. The father acquired Divorcemate software, the mother provided her income information to him, he performed the calculation and she paid.

This practice continued through 2011 and into 2012. [ 26 ] The father’s employment expectations, after he and the children moved to Moncton in July 2011, were not realized. The Consent Variation Order acknowledged he could not anticipate what his income would be, but it was expected he would find employment after moving to Moncton. Unfortunately, he did not find full-time employment until 2013. At the time of the July 2010 settlement conference, he had been working for less than two years.

He had initially worked as a teacher in Halifax, but he later worked at a community college in Truro and did so until moving to Moncton. In 2013, he began working full-time at the community college, where he has since earned approximately $70,000 a year. [ 27 ] In June 2012 the mother stopped paying support. Her new counsel in New Brunswick advised in writing that the mother had overpaid both child and spousal support. One of the issues raised was that the father had made mistakes using the Divorcemate software.

Additionally, there is no doubt that despite earning approximately $650,000 in 2011, the mother’s residual cash flow was less than expected. She was paying the table amount of child support and the Guideline amount of spousal support based on her actual income. She also had the obligation to make the instalment payments against the outstanding lump sum spousal support. On top of this, she was paying $10,000 per month for a London Life insurance product which she had to discontinue, ultimately losing all that had been contributed.

Also, the mother sent approximately $120,000 to her sister in Hong Kong, to be held for her in her sister’s name.

Apparently, she feared that if she did not put the funds out of reach, they would be used/attached for support and she would not have access to them to pay her accumulating tax liability. [ 28 ] In July 2012, the father filed a motion in Nova Scotia seeking a quantification of the support due under the existing support order. [ 29 ] On August 23, 2012, the mother filed her motion to vary child and spousal support in New Brunswick, requesting the court take jurisdiction on the basis the parties were habitually resident here. In October, the father’s motion was heard in Nova Scotia.

The mother opposed it being heard there. Despite the Consent Variation Order providing that the Supreme Court of Nova Scotia would continue to have “jurisdiction over the legal issues arising from the breakdown of the marriage,” the court declined jurisdiction on the basis that the parties’ residence was New Brunswick. [ 30 ] Also in August, the mother stopped working due to depression, and in September she was put off work indefinitely. She would not return to work until August 2013.

The mother has managed difficulties relating to her mental health since she was in medical school in the late 1980s and it has intermittently prevented her from working. The diagnosis made in 2015 is that her severe depression has left her with a permanent cognitive impairment that “manifests itself in memory and concentration problems of a permanent nature.” It is expected she will not be able to work more than three days a week in her field. This is not disputed by the father. When she increased her work week to three-and-a-half days in late 2015 and early 2016, her depression returned.

[ 31 ] The parties’ first appearance on the mother’s motion occurred on December 17, 2013. Following this, there were a number of further court appearances and interim orders. Only the Interim Consent Order made on December 17, 2013 (filed May 6, 2014), is significant on appeal. The father maintains the motion judge misinterpreted this order.

He submits it reflects the parties’ agreement to abandon the split custody approach to determining the mother’s child support obligation, as provided in the Consent Variation Order, and return to her paying support for two children, as had been initially provided under the Corollary Relief Judgment based on the father having the primary care of both. [ 32 ] The undisputed income of the parties from employment (adjusted to account for expenses), as found by the motion judge for support purposes, is as follows: YEAR MOTHER FATHER 2010 $111,411 $54,790 2011 $644,380 $27,827 2012 $714,945 $10,280 2013 $73,697 $51,592 2014 $677,540 $68,456 2015 $677,257 $68,456 [ 33 ] As noted, before the motion judge the mother claimed her income as a full-time radiologist constituted a material change in circumstances which warranted a variation of the existing support order.

The father’s position was that there was no change in circumstances since it had been expected the mother would earn much more than $400,000. He maintained the existing order was intentionally designed to allow for fluctuations in income and it continued to be appropriate based on an income of $650,000.

The motion judge rendered a decision exceeding 145 pages in length, which addressed in detail a number of contentious issues; those that are in issue on appeal are identified in the paragraphs that follow. [ 34 ] At the commencement of the hearing of this appeal, we heard the father’s motion for an order: (1) to permit him to file an affidavit containing up-to-date information respecting his current financial circumstances; and (2) to prevent the mother from being heard in connection with his appeal unless she pays all sums due under the motion judge’s decision. The motion was dismissed.

The evidence the father sought to introduce was subsequent in time to the motion judge’s decision and was not relevant to the analysis of the errors alleged to have been made by the judge. While the mother’s failure to pay support as ordered by the motion judge was of concern, especially since the record indicates it is certainly not the first time she has done so, there had been time in advance of the hearing of the appeal to pursue other, more effective proceedings and enforcement remedies.

Additionally, the father provided no authority to support proceeding with his appeal on the merits but not permitting the mother to respond and, in any event, it was decided to be in the interests of justice that his appeal be heard without further delay. III. Grounds of Appeal [ 35 ] In his submission, the father asserts the motion judge erred:

i) by failing to interpret the Consent Variation Order as precluding an application for the variation of spousal support until a parenting assessment “has been completed and filed with both” the father and the mother; ii) by finding that a change in circumstances has occurred permitting a variation of the spousal support, under s. 17 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) ; iii) having found there has been a change in circumstances, by thereafter: • failing to follow the appropriate approach to vary spousal support under s. 17, and • finding the termination of spousal support justified without having undertaken the required analysis; and

iv) by failing to interpret the Interim Consent Order made as of December 17, 2013, as varying the Consent Variation Order andending split custody basis for determining child support. IV. Standard of Review [36] The standard of review in relation to support orders was succinctly described by Larlee J.A. in B.P. v. A.T.,2014 NBCA 51, 423 N.B.R. (2d) 99: […] We will only interfere with a support order when there has been an error in principle, a significant misapprehension of the evidence,or the award is clearly wrong: […].

In short, with respect to both issues, absent error, we cannot retry the case. [para. 12] See also Black v. Black, 2015 NBCA 63, [2015] N.B.J. No. 235 (QL), per Baird J.A., at para. 12. [37] Addressing the rationale for the standard, which is of particular relevance in view of the allegations of error inthis case, the Supreme Court said, in Hickey v. Hickey, (CSC), [1999] 2 S.C.R. 518, [1999] S.C.J.

No. 9 (QL), perL’Heureux-Dube J.: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, andcriteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerablediscretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with anappreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties andto their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courtswhen such decisions are reviewed. Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error inprinciple, a significant misapprehension of the evidence, or unless the award is clearly wrong. […] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders.

This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. [paras. 10-12] V. Analysis A.

The first issue: Clause 3 – no application to vary support until parental assessment? [38] The father maintains the motion judge erred by failing to interpret Clause 3 of the Consent Variation Order ofApril 2010 as precluding an application to vary spousal support until a parenting assessment “has been completed and filed with both”the father and the mother. The father makes essentially the same arguments he made before the motion judge. Clause 3 provides: 3 The following shall be added as paragraph 1C of the Corollary Relief Judgment:

Only after the completion of the 2011-2012 school year of the Children of the Marriage may either the Petitioner or the Respondent request a parenting assessment of the children of the marriage [ sic ]. If the Petitioner and the Respondent cannot agree on the identity of the person to carry out this assessment, then a judge of the Supreme Court of Nova Scotia (Family Division) at Halifax, on the application of either the Petitioner or the Respondent, shall identify the assessor.

Neither the Petitioner nor the Respondent may apply to vary any terms of the Corollary Relief Judgment, as amended herein, until such an assessment has been completed and filed with both the Petitioner and the Respondent . [Emphasis added.] [ 39 ] The father maintains Clause 3 “is specific and without ambiguity and there cannot be any variation application (and therefore no material change of circumstances) until a parental assessment has been completed and filed.” He sums up his submission by claiming the parental assessment was completed and filed in June 2015, and, as a consequence, the mother’s motion, filed in August 2012, should have been dismissed by the trial judge. [ 40 ] The motion judge rejected the

interpretation advanced by the father, concluding the requirement to obtain a parenting assessment applied only to custody. He said: When Clause 3 is viewed holistically, that is, against the backdrop of the pleadings and in the circumstances in which the order was drafted, it becomes clear what the parties and the Settlement Conference judge were attempting to prohibit was either side applying to change anything to do with the existing custody and access regime for the children .

Recall the father’s testimony that he agreed to the split custody model for child support calculation because he believed the mother was attempting to achieve 40% of time available to her in order to avoid application of the Federal Child Support Guidelines. It is clear from the evidence that custody and access was the dominant issue in their world at that time in 2010. Thus, I interpret “as amended herein” to have been intended to apply to Clauses 1 to 4 in the “Custody”

section of the Consent Order only and not to all of the other clauses contained in the Settlement Conference Consent Orders. [Decision, para. 188] [Emphasis added.] [ 41 ] The motion judge goes on to address, in the paragraph that follows, the principles applicable to the

interpretation of a court order, citing the reasons of the Saskatchewan Court of Appeal in Campbell v. Campbell , 2016 SKCA 39 , [2016] S.J. No. 149 (QL) . The father’s submission on appeal reproduces substantially the same passages. The father does not suggest the motion judge failed to consider the correct principles applicable to the

interpretation of a court order; he asserts the judge erred in their application and came to the wrong conclusion. [ 42 ] As Clause 3 provides, the substance of the provision is to be “added as paragraph 1C of the Corollary Relief Judgment.” Paragraph 1 of the Corollary Relief Judgment provides, under the heading “ Custody ,” that the mother and father will have joint custody of the children and the father will “continue to be the primary caregiver.” The Consent Variation Order amends paragraph 1 by adding paragraphs 1A, 1B and 1C.

Paragraphs 1A and 1B address the move from Halifax to Moncton and the mother’s obligation to reimburse certain moving costs of the father and children. Paragraph 1C is reproduced above. These additional paragraphs follow the original paragraph 1 under the heading “ Custody .” [ 43 ] I accept the father’s submission that the mother’s withdrawal of her appeal of the spousal support order was an important benefit of the Consent Variation Order and he hoped or expected there would be no application to vary spousal support until after the completion of a parenting assessment.

However, I do not agree that the judge erred by rejecting the father’s submission that Clause 3 is unambiguous. A plain reading of the clause leads to the conclusion that no part of the Corollary Relief Judgment can be varied until a parenting assessment is filed. It is beyond question that one party’s subjective understanding of an order does not drive the analysis of its

interpretation. The judge interpreted the provision in the context of the live issues at the time of the Consent Variation Order. In light of the mother’s application to vary custody in contemplation of her move to Moncton, the motion judge concluded the dominant issue sought to be addressed was that of custody. The motion judge did not miss or misapprehend the significance of the mother abandoning her appeal of the order for spousal support.

Indeed, its significance is reflected by the judge characterizing that aspect of the Consent Variation Order as the father shrewdly bargaining a withdrawal of the mother’s appeal in exchange for a move to Moncton. [ 44 ] A connection between a parenting assessment and spousal support, or any other noncustodial order for that matter, is not plain or obvious. This is not to say that the parties could not have required a parenting assessment as a condition precedent to an application to vary any provision of the Corollary Relief Judgment. However, the language of Clause 3 does not lend itself to such an

interpretation and the motion judge’s

interpretation does not reflect error; in my opinion, it is correct. I would dismiss this ground of appeal.

B. The second issue – material change of circumstances [ 45 ] The father maintains the motion judge erred in finding the mother established a material change of circumstances based on her earning more than had been contemplated when the support order was made. He submits the motion judge failed to identify the September 2010 Consent Variation Order as the last order made and from which he was required to assess whether a material change in circumstances had occurred, as contemplated by s. 17(4.1) of the Divorce Act .

The father says the motion judge erroneously focussed on the October 2008 decision of the trial judge and his subsequent clarification decision issued in June 2009. He maintains that had the motion judge focused on the Consent Variation Order and the circumstances giving rise to its issue, including the withdrawal of the mother’s appeal of the trial judge’s spousal support order, he would have concluded the mother accepted the variable support regime previously imposed by the trial judge and she acknowledged it would continue to apply, regardless of the quantum of her income.

On this basis, he maintains the mother’s income, at $670,000 or any other such amount, does not constitute a change in circumstances. [ 46 ] The father makes two additional submissions which he says should have prevented the judge from finding there had been a change in circumstances in 2011. First, he maintains that by paying support based on her actual income throughout 2011 and into 2012 the mother made it clear she did not consider that quantum of income to be a change in circumstances.

Second, the father submits that since the mother would not willingly disclose her expected income as a radiologist, leaving the trial judge in 2008 to determine it would be $400,000, the motion judge should not have permitted the mother to now establish her actual income as a change in circumstances.

I will address each of these submissions at the end of this part of my reasons. [ 47 ] While the Corollary Relief Judgment permits a review of the quantum of support following any change in income, the motion judge concluded this provision could not be relied upon to terminate spousal support or, as the mother claimed in the alternative, to time-limit spousal support. He concluded it was therefore necessary to determine whether the mother established that there had been a change in circumstances under s. 17 .

I agree. [ 48 ] Before varying a spousal support order, a court is required to satisfy itself that a change in “the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order” ( s. 17(4.1) ). As explained by Abella and Rothstein JJ. in L.M.P. v. L.S. , 2011 SCC 64 , [2011] 3 S.C.R. 775 : The focus of the analysis is on the prior order and the circumstances in which it was made.

Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change “would likely have resulted in different terms” to the order . It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6).

In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement. [para. 33] [Emphasis added] [ 49 ] At the risk of being repetitious, the mother claims her income as a radiologist turned out to be significantly more than had been contemplated.

Essentially, she maintains that had the change been known, the judge would not have ordered her to pay, in addition to $300,000 in lump sum support, periodic spousal support based on the application of the Guidelines to her full income for an indefinite period of time – and not make an assessment of (or provision for) the support payable on income in excess of the $350,000 ceiling identified in the Guidelines . [ 50 ] After canvassing the evidence, the motion judge identified the issue to be addressed and summarized the evidence. He also identified the father’s position.

He said: Has the mother established that there has been “a material change in the circumstances ?” The answer begins with a return to the facts as found at trial and what appears to have been in the contemplation of the trial judge and the parties at that time in 2008 when viewed together with the orders arising from the trial.

The trial judge rejected the mother's evidence that she could not estimate what her rate of remuneration would be once her studies were successfully concluded and she found employment. He accepted the father's assertion that both he and the mother believed her salary would be in the $400,000.00 range. As said, that turned out to be very close to correct when she received an offer in late 2010 of $394,000.00 to work in a health care facility in Moncton .

What was not foreseen by the mother, and apparently the trial judge and father as well, was that she would earn significantly more than that, indeed, much more than that while she remained healthy […]. [Decision, paras. 133-135] […] […] If the father could establish that it was within the contemplation of both himself and the mother that she would earn in the range of $500,000.00 - $600,000.00 once she finished her studies he could reasonably argue that there is no “material change in the [financial] circumstances” between the time the trial judge's order were put in place and the time the mother filed her motion in August 2012 or, for that matter, at the time of this motion hearing . [Decision, para. 141] [Emphasis added] [ 51 ] The motion judge’s assessment naturally began with the findings of the trial judge, including the trial judge’s acceptance of the father’s assertion the mother’s income as a radiologist would be in the range of $400,000.

The motion judge noted the inconsistency between that finding and the father’s position, at the hearing of the motion, that it was expected the mother would earn between $500,000 and $600,000. The motion judge rejected this claim and he did not accept the father’s explanation for the inconsistency. The father indicated that, at the divorce trial, he did not want to advance an income expectation which seemed excessively high. [ 52 ] The motion judge’s finding the mother’s expected income would be in the range of $400,000 was grounded in more than the findings of the trial judge.

He accepted the mother’s evidence that she expected to earn in this range, even as late as 2010. He noted she accepted an income of $394,000 to work at the hospital in Moncton. He also accepted the mother’s evidence that she was surprised to learn she was being paid more than $394,000. Shortly after she began working, she noticed her pay was so much higher than she expected that she inquired to see whether there had been a mistake. The motion judge also noted the father’s similar surprise at the quantum of her actual earnings.

While the father disagrees with the motion judge’s findings in this regard, he does not assert an error, let alone a palpable error, in connection with these findings. [ 53 ] In the end, the motion judge concluded the mother established that a change of circumstances had occurred.

He explained his conclusion: With appropriate deference to the trial judge for the uncertain circumstances prevailing at the time of the trial in 2008 vis-à-vis what the anticipated income of the parties would be once the mother's studies were completed, I cannot conclude that the magnitude of the income change experienced by the mother when she began work fulltime was either subjectively seen, within the contemplation of the parties or ought to have been reasonably foreseeable by the parties or the trial judge at the time the orders were made in 2008 and clarified in 2009 ; and, the income change was not of a temporary nature.

On this latter fact see, for example, Black . The mother has met the burden of proof cast upon her to establish that had her true income picture post-graduation been known at the time of the trial it would have led: “...to a different result had it been known at the time of the original order” no matter which of the three models of support are considered, or for that matter, if all three are considered in tandem. [paras. 148-149] [Emphasis added.] [ 54 ] The father points to this passage of the judge’s reasons to support his submission the judge focused on the wrong order and the circumstances at the wrong time.

However, quite appropriately, the father does not suggest the motion judge was precluded from considering the initial support order or circumstances. He would be wrong had he done so. It is beyond question that when the trial judge crafted the spousal support order, he contemplated the mother earning an income in the range of $400,000. This is relevant to the motion judge’s analysis.

The essence of the father’s position is that, by failing to identify the Consent Variation Order as the last order, the motion judge did not comply with s. 17(4.1) and he failed to appreciate the true significance of that order and the circumstances at the time it was made, including the mother’s withdrawal of her appeal of the trial judge’s order for support.

The father maintains the judge should have recognized the Consent Variation Order as then contemplating the mother would thereafter pay support based on the Guidelines , regardless of her income, and as a consequence, any subsequent change in income could not, in itself, give rise

to a change in circumstances. [ 55 ] I do not agree the motion judge erred in this regard. The motion judge considered the Consent Variation Order along with the circumstances at the time, including the mother’s withdrawal of her appeal. His exhaustive reasons make this clear, specifically addressing the mother’s withdrawal of her appeal.

It was not necessary, as the father submits, for the motion judge’s reasons to indicate that he had analyzed the mother’s appeal, including the “pleadings.” Moreover, there is no factual basis to support any suggestion it was expected the mother would earn more than $400,000 – not only at the time of the trial judge’s decision, but also at the time of the Consent Variation Order. In my opinion, the father reads too much into the Consent Variation Order and places an emphasis on the withdrawal of the appeal that overstates its significance in relation to the change in circumstances asserted by the mother.

While the Consent Variation Order is the last order, it must be remembered that it amends the Corollary Relief Judgment without making any change to the provisions respecting periodic spousal support. It declares that all provisions of the Corollary Relief Judgment that were not varied would continue in full force and effect.

Even if the Consent Variation Order were to be interpreted as the mother accepting the obligation to pay spousal support based on the Guidelines , this alone would not preclude a finding that there has been a material change in circumstances based on the mother’s increase in income, and a variation pursuant to s. 17 . In my opinion, there is no merit to this part of the father’s appeal. [ 56 ] As noted, the father makes two further claims regarding the judge’s determination that the mother met the threshold of a material change in circumstances.

He submits the mother’s conduct, by paying support throughout 2011 and into 2012, may be interpreted a tacit acknowledgement the change in her income was not a material change (for subsequent conduct evidencing whether the parties consider any particular change to be material, see: L.M.P. v. L.S. at para. 35 ). I do not agree the record supports such a characterization of the mother’s payment of support during that period.

While it did become clear, once the mother began working full- time, she would earn more than $400,000, the magnitude and significance of the increase under the Guidelines was neither initially nor readily apparent, as the calculations were undertaken by the father on a monthly basis.

This is not a situation where it may be said the mother’s conduct, of continuing to make support payments based on her higher income, is persuasive evidence of her accepting that the increase in her income was not a “material” change in circumstances. [ 57 ] Lastly, I do not agree the motion judge erred by failing to deny the mother’s request for a variation because she withheld information respecting her income when she was before the trial judge. The father submits she should not now be permitted to establish a change based on income information which he says she hid or refused to provide (see: Gray v.

Rizzi , 2016 ONCA 152 , [2016] O.J. No. 958 (QL) ). Frankly, that is not the situation. While in 2008 the trial judge found the mother to be evasive concerning her expected income, the motion judge found that as late as the settlement conference in July 2010 the mother expected her income would be in the range of $400,000. There was no material non-disclosure before the motion judge and I conclude the motion judge did not err as the father submits. C.

The third issue: (1) the $450,000 cap; and (2) termination of support as of 2018 [ 58 ] The father maintains that, even if a change in circumstance occurred, the judge erred in varying the support order by: (1) capping the mother’s income for support purposes at $450,000; and (2) terminating support altogether in October 2018. [ 59 ] Starting with the cap, the father submits the judge did not take into consideration the objectives set out in s. 17(7) of the Divorce Act , nor did he limit the variation to one which is appropriate in light of the change in circumstances (see L.M.P. at para. 50 ).

He submits the judge erroneously varied the order by considering what the trial judge would have done had he known of the change in circumstances. [ 60 ] With respect to the termination of spousal support as of October 2018, the father submits the judge did so without assessing whether the mother had fulfilled her support obligations to the father, as contemplated in R.L. v. N.L. , 2012 NBQB 123 , [2012] N.B.J. No. 160 (QL) .

He says the judge failed to undertake any analysis to determine whether the “fundamental marital obligation had been fulfilled.” [ 61 ] In my opinion, neither of these claims accurately reflects the decision of the motion judge. Moreover, a review of his decision reveals no error in principle and no misapprehension of the evidence and, in my opinion, his decision is not clearly wrong. The judge’s determination of the appropriate variation in light of the change in circumstances required an assessment of the evidence and a balancing of a number of competing objectives.

There is a necessary overlap in the analysis giving rise to his decision to cap the mother’s income and to time limit support. I will address them together. [ 62 ] Early in his analysis, the motion judge noted that the legitimacy and quantum of the lump sum support of

$300,000 was not in issue. This said, there is no doubt its existence could not be ignored in assessing the appropriateness of a variation of periodic support. [ 63 ] Also early in his analysis, the motion judge identified the basis upon which spousal support had been ordered, including both lump sum and periodic support. He noted the father’s entitlement to support was compensatory, non-compensatory and contractual.

He explained this fully (at paras. 125-131). [ 64 ] Summarizing the available options in light of the change in circumstances and the mother’s request for support to be terminated or, alternatively, capped and time limited, the judge said: […] There are five possible options proposed . First , the regime could be left as is with periodic/monthly support being calculated based upon current monthly income … Second , the periodic/monthly spousal support could be capped at income of $400,000.00, as the income anticipated by the trial judge, or some other justifiable figure, for calculation purposes.

Third , a “sunset clause” could be inserted in the first or second option to automatically terminate periodic/monthly spousal support at a future date. Fourth , the periodic/monthly spousal support could be terminated now. Fifth , support could be terminated at a date in the past when it should have been either at the time of the filing of the Motion or back as far as January 1st, 2011 when the regimes took practical effect and the unanticipated increase in the mother's income took place. [para. 157] [Emphasis added.] [ 65 ] Significant to the father’s allegations on appeal, the trial judge outlined a

summary of the more “prominent factors that guide the analysis of the variation application as to periodic/monthly spousal support.” These are at the centre of the balancing of competing factors and circumstances undertaken by the motion judge.

He stated: Favoring the father: 1) He gave up a successful career in Vancouver to follow his wife to Halifax for her to pursue her studies; 2) He accepted that reemployment in his field in Halifax would be a challenge in a smaller I.T. job market; 3) He followed his wife to the smaller city of Moncton to likely an even more challenging I.T. job market, albeit in return for her having extinguished her appeal of the trial judge’s judgment; 4) He is fairly anchored in Moncton until his children finish high school because of the custody and access regime in place in Moncton; 5) There have been times when he has been financially challenged due to unemployment; 6) His part of the agreement to move east was hinged to the expectation that he would share in a large increase in family income once the mother finished her studies and went to work; 7) He agreed, according to the trial judge’s findings, to become a stay at home father for at least two years as part of his contribution to a better financial future for the family; 8) He exhausted his R.R.S.P. in Halifax to cover his costs of living; 9) He incurred significant debt to finance his costs of living;

10) There have been significant periods of time when the father received little or no financial support from the mother. Favoring the mother: 1) She has largely financed most of her seven years of education in Halifax leaving her seriously in debt to this day (see Spousal Support Advisory Guidelines: The Revised User’s Guide Professor Carol Rogerson and Professor Rollie Thompson February 2016 at ch. 1[5](

e) pp. 85-89); 2) By continuing to pay off the lump sum spousal support award in the future should the reconciliation of amounts paid and due support that to be the case she is compensating him for all of the elements identified by the trial judge as the reasons for such a large award including: spousal support otherwise payable from 2006-2008, the costs of the father’s retraining, lost income of the father occasioned by the move to Halifax, long term reduction in income caused by his retraining as a teacher, his loss of sharing of her higher income in the future, his inability to have her share his repayment of his indebtness once the marriage dissolved, her inability to pay significant spousal support until her studies ended and his general contribution to her career; 3) This was a short to medium term cohabitation-marriage for no more than eleven years according to the evidence led at the motion hearing.

However, the trial judge found as a fact the couple cohabited for one year and were married for nine years (See: reasons for judgment at paragraph 74); 4) The mother’s mental health suffered greatly and permanently in part due to calculation errors of support obligations made by the father and due to the structure of the periodic/monthly spousal support order that amounted to a monthly de facto variation hearing without any criteria and a presumed entitlement to the father sharing in any increase in the mother’s salary; 5) The quantum of support obligations in monetary terms as paid by the mother in the seventeen months between January 1st, 2011, just after she began work full time in Moncton until May 31st, 2012, at approximately $582,000.00, left her without adequate financial resources to meet her obligations (sometimes referred to informally as “the reason to get out of bed in the morning and go to work” reality check); 6) The NDI of the parties for a significant portion of time since separation has been weighted in favour of the father at approximately 2/3 to 1/3 if all of the payments due were paid as ordered; 7) The financial lifestyle the father enjoyed in Vancouver was not significantly different than his independent income today in Moncton, not taking into account inflation, and that standard of living having been greatly enhanced as supplemented by support payments from the mother; 8) That with the new custody and access regime put in place May 1st, 2016 by consent that has the daughter living full time with the mother and the son in a fully shared custody arrangement with both parents still sees the mother is paying child support to the father in the amount of $4,625.00 per month tax free paid for in after tax dollars by the mother for an extended period of time into the future. [para. 178] [ 66 ] After canvassing the law and considering the principles applicable to post-separation income, the motion judge decided not to terminate periodic spousal support straight away; rather, he chose to vary support effective January 1, 2011, the beginning of the mother’s first full year as a radiologist.

He did not determine the quantum of spousal support to be paid from 2011, he capped the mother’s income for the purpose of the application of the Guidelines . He did not do so at $400,000, as she requested: rather, he capped it at $450,000. He concluded this amount represented a fair balancing of the competing principles, including those relevant to the issue of entitlement with respect to increases in post-separation income.

The motion judge made particular note of the fact that once a ceiling of $350,000 has been reached, the calculation of spousal support becomes much more a matter of the exercise of judicial discretion than simply a rote application of the Guideline s. In my opinion, there is no merit to the father’s claim the motion judge failed to consider the objectives of the Divorce Act or arbitrarily varied the support order. In my opinion, his decision reflects the change in circumstances.

[ 67 ] The motion judge accepted the mother’s request for spousal support to be time-limited, concluding it should continue until October 1, 2018, and that support during the last 12 months should be reduced by 50%.

In assessing whether support should continue to be indefinite, or made time-limited, the judge considered all of the relevant factors, including whether the mother had satisfied her support obligations based on the compensatory, non-compensatory and contractual factors. [ 68 ] A reading of the whole of the motion judge’s reasons reveals that he thoroughly and carefully assessed all of the evidence and the entirety of the circumstances before him. He identified the appropriate principles and he considered what had to be weighed in the balance.

That his reasons do not explain in considerable detail the weight attributable to each factor is not problematic. In essence, the father asks us to reweigh the factors considered by the judge. It is because of the nature of the analysis required to be undertaken by the motion judge that the standard of review requires deference, absent discernible error.

What the Supreme Court said in Hickey bears repeating again: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges . They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case.

It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed . [para. 10] [Emphasis added.] D.

The fourth issue – the Interim Consent Order, the determination of child support [ 69 ] The father maintains the judge erred by misinterpreting the Interim Consent Order made as of December 17, 2013 (and filed May 6, 2014) and, as a consequence, directing that child support be reconciled to 2015 based on the split custody “formula” provided in the Consent Variation Order of September 2010.

The father maintains that on December 17, 2013, at the first court appearance in connection with the mother’s motion, he and the mother agreed they would discontinue the split custody method of determining child support, as was provided in the Consent Variation Order, and she would pay based on the father having primary care of both children, as had been the case under the Corollary Relief Judgment of April 20, 2010.

He says this is reflected in the Interim Consent Order. [ 70 ] One of the errors alleged by the father is that the motion judge did not consider the mother’s admission, made at the beginning of the hearing on May 25, 2016, that she had agreed to this change. The issue arose because the mother, for the first time since the December 2013 order, advanced the position that the child support “methodology followed in the September 2010 Consent Variation Order cannot be undone.” The father objected, arguing the mother’s new position ran afoul of their agreement and the Interim Consent Order.

Responding to inquiries from the motion judge, the mother candidly acknowledged she agreed on December 17, 2013, to use the primary care model, not split-custody, to determine the child support that she should have paid. Indeed, this is clear from the transcript and there is no confusion regarding what had been agreed, as between the two methods of determining child support. However, the mother explained that this was only for the purpose of undertaking a reconciliation of what she should have paid with what she actually paid. In essence, she acknowledged the father’s

interpretation of the Interim Consent Order was correct, except that it was her position the Interim Consent Order was not intended (or inadequate) to vary the Consent Variation Order of September 2010. She indicated she would never have agreed to such a significant change by consent order. The father maintains neither their agreement to abandon the split custody method, nor the order, were limited to the reconciliation of support for settlement purposes.

He submits they agreed, without limitation, to determine support based on the reality of the circumstances, he was responsible for the primary care of the children. [ 71 ] After essentially accepting the mother’s explanation, the motion judge directed the recalculation/reconsideration of child support based on the Consent Variation Order of September 2010. [ 72 ] Important to the father’s claim are the principles applicable to the

interpretation of court orders. Although the motion judge did not address them specifically in connection with his

interpretation of the Interim Consent Order, he set them out fully when he addressed the father’s claim that the mother’s motion was barred by the Consent Variation Order until a parenting assessment had been completed. The motion judge, referring to Campbell , stated: These principles have been set forth in a number of cases. In Sutherland v Reeves , 2014 BCCA 222 , 61 BCLR (5th) 308 , Bauman C.J.B.C. stated:

First, court orders are not interpreted in a vacuum. This Court has recently described the correct approach to the

interpretation of court orders ( Yu v. Jordan , 2012 BCCA 367 at para. 53 , Smith J.A.): [53] In my view, the

interpretation of a court order is not governed by the subjective views of one or more of the parties as to its meaning after the order is made. Rather an order, whether by consent or awarded in an adjudicated disposition, is a decision of the court. As such, it is the court, not the parties, that determines the meaning of its order.

In my view, the correct approach to interpreting the provisions of a court order is to examine the pleadings of the action in which it is made, the language of the order itself, and the circumstances in which the order was granted . [Emphasis added.] As a result, in addition to examining the language of the Order, it is necessary to review the pleadings and surrounding circumstances. It would be an error to have regard to those factors but to then interpret a generic Model Order instead of the specific order Mr. Justice Willcock made in response to the pleadings and the surrounding circumstances before him.

In Sans Souci Limited v VRL Services Limited , [2012] UKPC 6 , Lord Sumption reached the same conclusion: [13] ... The Board is unable to accept these propositions, because the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties .

The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the

interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve . In Re: Sharpe , [1992] FCA 616 (Aust), the Court stated: [20] ... even if a judgment is not ambiguous, it is nevertheless proper (if not essential) in construing it to have regard to the factual context in which the judgment was given and that this context includes the pleadings, the reasons for the judgment and the course of evidence at the trial. [para. 189] [Emphasis added.] [ 73 ] There is no doubt that an appreciation of the pleadings and the live issues at the time the Interim Consent Order was made is essential to its proper

interpretation. The parties’ positions going into the appearance on December 17, 2013, set the stage for what followed. It is helpful to recall the two prior orders. The Corollary Relief Judgment of April 2010, required the mother to pay support for the two children who were in the care of their father.

Following the settlement conference in July 2010, the Consent Variation Order of September 2010 changed this calculation to the split custody method (reflecting s. 8 of the Federal Child Support Guidelines ), even though the father continued to have primary care of both children. [ 74 ] The analysis begins with the mother’s Notice of Motion, filed in 2012, as amended on December 11, 2013. At that time, she requested a variation of spousal support as of January 2011.

She similarly requested a variation of child support: The Consent Variation Order dated September 16, 2010 be varied as follows: That child support and the payment of special expenses be varied and adjusted retroactively to January 1, 2011 pursuant to Section 17(1) (a)…and in accordance with sections 4 and 10 of the Federal Child Support Guidelines […]. [Emphasis added.] [ 75 ] In her motion, the mother sought to have child support determined under ss. 4 and 10 of the Federal Child Support Guidelines.

Section 4 applies to incomes over $150,000, and s. 10 permits the payment of a different amount than would be paid under s. 4 where it is established that such amount would cause an undue hardship to the payor. Recall that 2011 was the first year the mother earned in excess of $150,000 and, in 2012, she was having a difficult time financially and had been put off work. It is not

apparent from the record that the mother ever pursued this relief, and certainly that is the case after the December 2013 court appearance. As explained above, at the hearing of the motion in 2016 the mother took the position that the Consent Variation Order could not be undone.

Also different from the relief requested in her motion, the mother agreed child support should be based on her “real” income (not under s. 4) and it was based on this agreement that the motion judge ordered a reconciliation to be calculated using her actual income. [ 76 ] The father sought to have child support reflect the reality of his having primary care of both children. He requested an end to the determination of support based on split custody, as provided by the Consent Variation Order of September 2010.

In the affidavit he filed in response to the mother’s motion, sworn November 12, 2013, he said: The change to using a split custody formula to calculate child support has not reduced the conflict between us as I had hoped that it would, and it has made support calculations much more difficult.

Therefore I request that an order for primary custody in my favor be made as it reflects the real and current situation and will allow a simplification of support calculations. [ 77 ] At the court appearance on December 17, 2013, the parties addressed, by agreement, a number of issues which are set out in the Interim Consent Order. Although custody was not an issue raised by the mother’s motion, a “custodial assessment” was ordered and there was a change to the mother’s access. The order suspended further payment of the monthly installments toward the lump sum spousal support.

In connection with periodic child and spousal support, orders were made to determine the quantum of any arrears (or overpayment) and the support to be paid prospectively, now that the mother had resumed working. The order provides that, on an interim basis, the mother would pay child support for two children from January 2013 – marking an end to the use of the split custody method under the Consent Variation Order of September 2010.

The father says this is consistent with his position that the primary care method of determining child support was not agreed for only the limited purpose of a reconciliation. [ 78 ] To determine the quantum of arrears (or overpayment), the parties were ordered to prepare a reconciliation of the support the mother had actually paid with “what support payments should have been” paid.

In connection with the quantification of what support “should have been” paid, this was ordered to be determined “in accordance with the Corollary Relief Judgment dated April 20, 2010.” As noted, there is no dispute that this captures the parties’ agreement to determine child support based on the father having primary care of the children, as was the case under the Corollary Relief Judgment, and not split custody, as provided under the Consent Variation Order; however, as the mother explained at the hearing, it is her position the agreement does not vary the Consent Variation Order. [ 79 ] Clause 5 of the Interim Consent Order provides as follows: The parties shall each prepare a reconciliation of support payments made, including parties incomes for each and every year since January 1, 2010, and what support payments should have been, in accordance with the Corollary Relief Judgment dated April 20, 2010 and issued by the Nova Scotia Supreme Court (Family Division) Court File Number 1001 – 06127 (50075) and to provide same to opposing counsel no later than February 15, 2014.

Council shall then meet by February 28, 2014 to review and discuss these positions. If no agreement is reached on the reconciliation, this issue can be addressed at the settlement conference or shall be determined at the final hearing in this matter . [ 80 ] Admittedly, Clause 5 is not crystal clear on its face; however, there is no dispute it reflects the obligation to “go back to” determining child support based on the Corollary Relief Order.

The issue is whether the clause is limited to a reconciliation, as the mother explained and was found by the motion judge. [ 81 ] The parties did not agree on a final balance due from their effort at reconciliation and, as contemplated by the clause, the motion judge was required to address a reconciliation of child and spousal support. However, the father maintains the failure to agree was not because there was no agreement on the basis for determining child support.

On the contrary, he maintains “the one thing that was clear,” following the Interim Consent Order, was the mother’s child support obligation was to be determined on the basis of the father having primary care of the children, as he sought going into the hearing on December 17, 2013. [ 82 ] The father maintains their agreement is reflected in all dealings between the parties and the court after December 2013. He points to the Interim Consent Order itself, which determined prospective child support on the basis of the father having the primary care of both children.

Though an interim order, the father says the issues that remained open to adjudication related to the mother’s income, for example, her claim to not have disability insurance when she was off work between August 2012 and July 2013. The parties were again before the court on June 16, 2015. Child support was varied and again the mother’s obligation to pay was based on the father having primary care of both children. In September 2015, they signed a consent order that provided for a new

custodial arrangement, shared physical custody of the children. The father submits there was never any indication the mother interpreted the Interim Consent Order as she now claims or that she would take the position the Consent Variation Order could not be undone. [ 83 ] Finally, in relation to the father’s submission the Interim Consent Order was intended to extend not only to the reconciliation, for settlement purposes, but also to the disposition of the motion itself, the father points to the mother’s Pre-trial Brief, filed on September 11, 2015.

He says it evidences that the mother clearly recognized the agreement extended beyond possible settlement to the ultimate disposition of the motion. [ 84 ] The hearing of the motion had been initially scheduled to begin on September 14, 2015, and the mother filed a brief dated September 11, 2015. Her brief identified the “first issue” as: “Child and spousal support be varied retroactive to January 1, 2010.” This is consistent with Clause 5 of the Interim Consent Order which, as noted, required a reconciliation going back to January 2010.

It is also in contrast to the mother’s motion which sought to vary both child and spousal support retroactively to January 2011. Setting out her position with respect to child support, she states: In their Nova Scotia consent order [the Consent Variation Order], the parties agreed to a split custody formula for child support, even though the respondent has the primary care of the children. The impact of this split custody formula is to lower the child support amount payable to the respondent.

Although the intent of this approach is appreciated, it does not reflect the reality of the custodial situation and the applicant recognizes that the court has the obligation under the Divorce act to ensure the proper child support is being paid . [para. 42] [Emphasis added] [ 85 ] This statement might arguably be viewed as reflecting merely the belief that the split custody method of calculating child support would not be acceptable to the court, since it is inconsistent with the reality of the situation; however, the father submits the mother’s agreement to abandon the split custody approach, for more than simply a consensual reconciliation, is very clear from that part of her brief which addresses spousal support.

There, the mother explains that, although she maintains that the split custody formula ought to be used in the Divorcemate calculations of spousal support, she clearly states that this is not the case with respect to child support – since “we have altered the method of calculating child support.” The brief provides: The current order on spousal support is the Consent Variation Order of the parties, signed in 2010. This order required a payment of mid- range spousal support after calculation of child support using the split custody formula .

For child support purposes we have altered the method of calculating child support , but this does not mean that it is altered for the payment of spousal support . [para. 53] [Emphasis added] [ 86 ] Not surprisingly, based on the father’s position, his Pre-Hearing Brief, filed on September 11, 2015, states: “In light of the circumstances relating to the custody of the children, it was agreed that the split custody formula was not appropriate and the formula for primary custody with the ex-husband would prevail.” Also consistent with the Interim Consent Order, he identifies the issue to be determined as: “What are the arrears of child and spousal support for the period of January 1, 2010 to September 3, 2015,” the point where custody changed by consent. [ 87 ] The hearing of the motion was adjourned to May 25, 2016.

The father did not file a new Pre-Hearing Brief; however, the mother did, on May 19 th . While she again identified the first issue as a “variation of child and spousal support retroactive to January 1, 2010 ,” she claimed, for the first time, that child support had to be based on split custody, as provided in the Consent Variation Order. On this, her brief states, in its entirety: In their Nova Scotia consent order, the parties agreed to a split custody formula for child support, which is allowable under

Section 15.7 of the Divorce Act . The Applicant states that the methodology followed in the September 2010 Consent Variation Order cannot be undone, and that the

Section 8 split custody formula applies until the Consent Order of September 2015 was signed. [Emphasis added] [ 88 ] As noted, at the beginning of the hearing on May 25, 2016, the father took great exception to the mother’s new

position and the mother candidly acknowledged the Interim Consent Order reflects an agreement to use the primary care model to determine the child support but she explained that this was for the reconciliation, it did not vary the Consent Variation Order of September 2010. [ 89 ] The motion was heard over 11 days. In rejecting the father’s position and accepting the mother’s explanation, the motion judge said: I find that not

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