Swan v Swan, 2024 SKCA 2

Court of Appeal for Saskatchewan Docket: CACV3975 Citation: Swan v Swan , 2024 SKCA 2 Date: 2024-01-04 Between: Jason Kirk Swan Appellant (Petitioner) And Rachel Dawn Swan Respondent (Respondent) Before: Schwann, Tholl and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice Drennan On appeal from: DIV 576 of 2017 (QB), Saskatoon Appeal heard: November 29, 2023 Counsel: Deb Giles for the Appellant Kate Crisp for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Jason Swan and Rachel Swan separated after eight years of marriage, and a trial was required to address parenting, support, and property division. The trial judge established parenting on a two-week rotating basis where Ms. Swan would have the children in her care for nine days followed by Mr. Swan having the children in his care for five days. The trial judge also determined the parties’ incomes, set child support and spousal support, and divided their property. [ 2 ] Mr.

Swan appeals and asserts that the trial judge erred by not ordering shared parenting, in arriving at the parties’ incomes, and regarding the quantity and duration of spousal support. He also takes issue with the length of time that the matter was under reserve and has applied to adduce fresh evidence. The division of property has not been challenged by either party. II. BACKGROUND [ 3 ] The parties met in 2002, dated sporadically for several years, and married in June of 2009.

After their marriage, they lived near Saskatoon for several months, relocating to a small town in south-western Saskatchewan in 2010, near Mr. Swan’s parents’ farm. At that time, Ms. Swan discontinued university where she had been pursuing a kinesiology degree. In 2011, they moved to a farmhouse, located a few hundred metres from Mr. Swan’s parents’ home. The house was owned by Mr. Swan’s parents. No rent was expected or paid by the parties. At that point, Mr. Swan and Ms. Swan both worked full time or close to full time: Mr. Swan for emergency medical services and on his parents’ farm and Ms.

Swan as a personal care aide and a customer service representative. Shortly thereafter, Mr. Swan began working exclusively on the family farm. [ 4 ] The parties’ first child was born in February of 2013. It is uncontroverted that they agreed Ms. Swan would cease working outside the home after the child was born. Their second child was born in December of 2015. The parties separated in September of 2017, but remained residing together until October of 2017. Ms. Swan moved to a small home nearby and began working as a part-time personal care aide. Mr.

Swan remained in the family home and continued to work on the farm. [ 5 ] The parties arrived at a temporary agreement for the children’s care for the first month after the separation, with Ms. Swan having approximately two-thirds of the parenting time. Ms. Swan brought an application in November of 2017, for specified parenting time. Justice Zuk made an interim order in that regard on March 8, 2018, pursuant to which parenting rotated on a 28-day basis, which gave Ms. Swan 62% of the time with the children and Mr. Swan 38% of the time: (

a) Mr. Swan – Thursday at 5:00 p.m. to Monday at 9:00 a.m. (

b) Ms. Swan – Monday at 9:00 a.m. to the following Monday at 5:00 p.m. (

c) Mr. Swan – Monday at 5:00 p.m. to Wednesday at 5:00 p.m. (

d) Ms. Swan – Wednesday at 5:00 p.m. to Friday at 5:00 p.m. (

e) Mr. Swan – Friday at 5:00 p.m. to Wednesday at 5:00 p.m. (

f) Ms. Swan – Wednesday at 5:00 p.m. to the following Thursday at 5:00 p.m.

(

g) Each party to have a ten-day block in each of July and August. [ 6 ] Mr. Swan was ordered to pay interim child support of $1,003 per month and interim spousal support of $1,000 per month. III. TRIAL DECISION [ 7 ] The trial commenced on January 13, 2020, and concluded on January 21, 2020. A written decision was released two years later on January 20, 2022: Swan v Swan (20 January 2022) Saskatoon, DIV 576 of 2017 (Sask QB) [ Trial Decision ].

Neither party sought to have the trial reopened to tender further evidence despite the lengthy delay, and the trial judge did not seek to do so on his own motion. [ 8 ] The trial judge began the Trial Decision by summarizing the background of the matter and the uncontested facts. He then set out the issues, turning first to his analysis of parenting. In the course of his analysis, he described the parenting arrangements and went through each of the best interests factors, in detail, from s. 16 of the Divorce Act , RSC 1985, c 3 (2d Supp).

As a precursor to doing so, he referenced many of the leading cases regarding best interests and status quo. After doing so, the trial judge determined that the children’s best interests were served by the parents having joint decision-making responsibilities coupled with a parenting

schedule consisting of a two-week rotation whereby Ms. Swan has the children in her care for nine days followed by Mr. Swan having them in his care for five days. He also ordered an equal sharing of school holidays and two ten-day blocks of holiday time for each parent throughout the year. [ 9 ] The trial judge next addressed the support issues and found Mr. Swan’s annual income to be $97,373. He arrived at this figure by taking Mr.

Swan’s annual employment income of $72,000 from working on his parents’ farm and then adding amounts for the housing benefit he received from his parents ($1,000 per month, grossed up to $17,910 annually) and a bonus paid to him from his parents ($5,000, grossed up to $7,463). In the course of determining his income, the trial judge disallowed all of the farming losses and expenses of any kind claimed by Mr. Swan on his income tax returns. [ 10 ] Turning to Ms. Swan’s income, the trial judge determined her income should be set at $20,654, which was the amount of her most recent annual income.

He declined to impute further income to Ms. Swan. [ 11 ] With these incomes in mind, child support was set at $1,359 per month payable from Mr. Swan to Ms. Swan, with s. 7 expenses to be shared proportionately based on their respective incomes. [ 12 ] Regarding spousal support, the trial judge found Ms. Swan to be entitled to support on both compensatory and non- compensatory bases.

Utilizing his own calculation under the Spousal Support Advisory Guidelines (2008) [ Guidelines ] – which neither party has challenged – he found the range of spousal support to be $216 to $759 per month, with a duration of 4 to 12 years. He ordered Mr. Swan to pay spousal support of $700 per month, commencing on January 1, 2020, and continuing until December 1, 2026. [ 13 ] Property division is not in issue in this appeal, but, for context regarding spousal support, I note that the parties’ total family property (net of debts) was $52,795.44, with an equalization payment of $24,942.72 payable from Mr.

Swan to Ms. Swan. [ 14 ] Mr. Swan appealed the parenting schedule, income determination, and support aspects of the Trial Decision , which, under the operation of former Rule 15 of The Court of Appeal Rules , automatically stayed the parenting

schedule set out in the judgment. Ms. Swan was successful in having the stay lifted on March 8, 2022. IV. ISSUES [ 15 ] The issues in this matter are encompassed by the following questions: (

a) Should new evidence be admitted on the appeal? (

b) Did the trial judge err in making the parenting order? (

c) Did the trial judge err in how he calculated Mr. Swan’s income? (

d) Did the trial judge err in not imputing additional income to Ms. Swan? (

e) Did the trial judge err in his determination of the quantum and duration of spousal support? (

f) Does the delay in rendering the Trial Decision have any effect on this appeal? V. ANALYSIS A. New evidence application [ 16 ] Mr. Swan applied, pursuant to Rule 59 of The Court of Appeal Rules , to adduce new evidence on appeal in the form of an affidavit. Ms. Swan does not seek to tender evidence, but filed her own affidavit in the event that Mr. Swan’s application is granted. Mr. Swan filed a further affidavit in reply. [ 17 ] As of the date of the hearing of the appeal, almost four years had passed since the last evidence was heard in this matter. Despite that passage of time, Mr.

Swan’s initial affidavit discloses a remarkable lack of any events of consequence having occurred since the last of the evidence was heard at trial. The pertinent parts of his evidence can be summarized as follows:

(

a) While the matter was under reserve by the trial judge, the parties followed Zuk J.’s interim order, except that Ms. Swan often asked Mr. Swan to take the children for additional time due to her work commitments and changes to her

schedule – to the point that the children were in his care in excess of 40% of the time in 2021 and 2022. (

b) Since the stay was lifted on March 8, 2022, the parenting

schedule set out in the Trial Decision has been followed, and Mr. Swan has not received any additional parenting time over and above that schedule. He did not receive his ten-day block of parenting time in July of 2022, and he provides details of his attempts to

schedule that time. (

c) There have been communication issues between the parties arising out of Ms. Swan unilaterally registering the children in activities, changing their activity dates, withholding birthday party information, refusing to allow the children to speak to Mr. Swan on his birthday or Father’s Day, and refusing to permit the children to call him on some occasions when they have requested to do so. Overall, communication has deteriorated, and there is little to no flexibility in the parenting arrangements. (

d) The change in parenting arrangements has been stressful for the children, who do not understand why they cannot spend more time with Mr. Swan. The children do not want to leave him at the end of his parenting time. (

e) Attached, without comment or explanation for any of the numbers contained therein, are Mr. Swan’s 2019, 2020, and 2021 income tax returns and an updated financial statement. [ 18 ] In response, Ms. Swan’s averments are encapsulated in the following: (

a) She did make additional requests for Mr. Swan to take the children after the trial during her parenting time in 2020 and 2021, many of which were necessitated by the COVID-19 pandemic. Mr. Swan also asked her to care for the children during his parenting time. They co-parented effectively during the pandemic. (

b) Ms. Swan denies restricting Mr. Swan’s parenting time after the stay was lifted, but she confirms they have followed the

schedule set out in the Trial Decision . Ms. Swan also confirms that Mr. Swan did not receive his 10-day block of time in July of 2022, but explains in detail how this arose because of Mr. Swan’s failure to advise her of the 10 days he wanted before she had made her own plans, despite her attempt to elicit that information earlier in the spring. She also provides details of the attempts to reschedule it. (

c) Ms. Swan denies withholding any information about the children’s activities and provides contrary details of the incidents alleged by Mr. Swan. She does not prevent the children from speaking with Mr. Swan during her parenting time unless it is too late at night. (

d) Mr. Swan’s new spouse and her four children have now moved out of Mr. Swan’s home and now reside in a different town. The children have told her that Mr. Swan and his new spouse had big fights and yelled at each other. The children have also told her that Mr. Swan spends time in Saskatoon with a former girlfriend. (

e) It has been strained between her and Mr. Swan since the Trial Decision was issued, and Mr. Swan filed his appeal, because of the emotional and financial stress that has resulted from her requirement to respond to the appeal. (

f) Ms. Swan tries to be reasonable and flexible with Mr. Swan, including accommodating a last-minute request to take the children to Disneyland, caring for the children during two periods of time when he was injured on the farm, and making alternate arrangements for the children’s activities at his request. (

g) There have been no fundamental changes in the way the parents communicate since the trial. (

h) The children have told her that Mr. Swan tells them that he does not receive enough time with them and that it is hard on him. The older child told her that Mr. Swan says to them that it is not fair and that parenting time should be equal. (

i) Mr. Swan continues to work for his parents, earns the same income, has significant farming losses, and lives in the same house. [ 19 ] Mr. Swan sought to adduce another affidavit, in which he replied to Ms. Swan’s affidavit and raised additional new allegations: (

a) He and his new spouse did not have fights in front of the children, and he has been careful about not involving them in any conflict. He has not been spending time in Saskatoon with a former girlfriend. Mr. Swan does not deny that his new spouse and her children have left. (

b) Ms. Swan refused to allow the older child to have a cell phone in her home, which Mr. Swan had purchased for him. (

c) Mr. Swan provides further explanation and details regarding Ms. Swan’s averments about Father’s Day in 2022, denial of parenting requests, and the scheduling of activities. (

d) Ms. Swan is not struggling financially as evidenced by her recent purchase of a new SUV and her move to an acreage. The move has required the children to spend additional time on the school bus. (

e) Ms. Swan has not completed her nursing training. (

f) Ms. Swan and her new partner called his new spouse a “dog” and, without providing detail, he alleges that Ms. Swan and her new partner continually put the children in the middle of their dispute. (

g) Mr. Swan denies involving the children in the parenting time dispute and asserts that it is the children who say it is not fair and want equal time between their two parents. (

h) He has defaulted on loans by FCC and has entered into a consent judgment for the repayment of $1,288,169.24.

[20] The Supreme Court, in Barendregt v Grebliunas, 2022 SCC 22, 469 DLR (4th) 1 [Barendregt], has recently reiterated the testfor the acceptance of evidence in a family law appeal, whether that be fresh evidence (evidence that pertains to facts that occurred beforetrial, but which, for one reason or another, could not be put before the court) or new evidence (evidence that pertains to facts that occurredafter trial): [29] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal: Catholic Children’s Aid Societyof Metropolitan Toronto v.

M.(C.), (SCC), [1994] 2 S.C.R. 165, at p. 188; United States of America v. Shulman, 2001SCC 21, [2001] 1 S.C.R. 616, at para. 43. Whether in criminal or non-criminal matters (May v. Ferndale Institution, 2005 SCC 82, [2005]3 S.C.R. 809, at para. 107), courts have typically applied the four criteria set out by this Court in Palmer [ (SCC), [1980] 1S.C.R. 759] when parties seek to adduce evidence on appeal: (

i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle will not beapplied as strictly in a criminal case as in civil cases); (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and (iv) the evidence is such that, if believed, it could have affected the result at trial. … [31] The Palmer test is purposive, fact-specific, and driven by an overarching concern for the interests of justice.

It ensures that theadmission of additional evidence on appeal will be rare, such that the matters in issue between the parties should “narrow rather thanexpand as [a] case proceeds up the appellate ladder”: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2,[2000] 1 S.C.R. 44, at para. 10. [32] The test strikes a balance between two foundational principles: (

i) finality and order in the justice system, and (ii) reaching a justresult in the context of the proceedings. The first criterion seeks to preserve finality and order by excluding evidence that could have beenconsidered by the court at first instance, had the party exercised due diligence. This protects certainty in the judicial process and fairnessto the other party.

The remaining criteria — that the evidence be relevant, credible and could have affected the outcome — are concernedwith reaching a just result. [21] The first criteria for admission, due diligence, is easily met in this case because all the evidence sought to be tendered refers toevents that occurred after the trial concluded. It could not have been adduced through the exercise of due diligence.

Turning to theremaining criteria, while the evidence contains many controverted parts that raise credibility concerns, it is unnecessary to address thatrequirement because none of the evidence is relevant in the sense that it does not bear upon a decisive or potentially decisive issue, and, ifbelieved, it could not have affected the result at trial. There is simply nothing alleged by Mr. Swan that is of a nature that could havechanged any of the bottom-line results.

The communication and parenting flexibility problems are a continuation of the issues that existedprior to the trial, and his affidavit simply contains further examples of the same type of situation. Other than the passing mention ofMr. Swan’s relationship with his new spouse ending, and Ms. Swan moving to an acreage, neither of which either party seems to attachmuch significance to, there is nothing that affects the circumstances of the children in any substantial way that would relate to adetermination of their best interests.

Lastly, the financial documents are provided without any explanation, and there is no informationcontained therein that could have altered the trial judge’s classification of the free rent and bonuses as income or changed his disallowanceof the farm losses. [22] The application to adduce fresh evidence is dismissed, with costs to Ms. Swan, calculated in the usual way. B.

Standards of review [23] A judicial decision that calls for a determination of a child’s best interests is fact-specific and highly discretionary in nature: seeBarendregt at para 100, Van de Perre v Edwards, 2001 SCC 60at para 11, [2001] 2 SCR 1014, and Chapman v Somerville, 2022 SKCA88 at para 11, [2022] 11 WWR 242. As stated in Barendregt, “The trial judge is the fact finder and has the benefit of the intangible impactof conducting the trial: R. v. G.F., 2021 SCC 20, at para. 81.

After hearing from the parties directly, weighing the evidence, and makingfactual determinations, the trial court is best positioned to determine the best parenting arrangement” (at para 101). [24] It is not the role of an appellate court to retry the case.

Rather, appellate intervention is confined to situations where the judge“made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to considermaterial evidence” as well as where the judge is alleged to have “failed to correctly identify the legal criteria which governed the exerciseof their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give any orsufficient weight to a relevant consideration” (Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161). [25] In a decision released two weeks after Barendregt the Supreme Court in B.J.T. v J.D., 2022 SCC 24, 469 DLR (4th) 183,reiterated these points, albeit in the context of a child protection matter.

Speaking for the Supreme Court, Martin J. described the role thatan appellate court plays in such matters, stating that an “appellate court must act with restraint” when reviewing such determinations andnoting that “[a]n appellate court is … not permitted to redo a lower court’s analysis to achieve a result that it believes is preferable” (atparas 56 and 57). [26] The standard applicable to findings regarding incomes and the fixing of quantum and duration of spousal support is describedthusly in Dungey v Dungey, 2020 SKCA 138, 454 DLR (4th) 560: [64] The standard of review for a judgment for spousal support is set out in Hickey v Hickey, (SCC), [1999] 2 SCR 518:

[10] 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. … [12] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence.

This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. [65] This deferential standard of review applies to both income determination and the fixing of the quantum of spousal support: D.B.B . [2017 SKCA 59], Walker v Walker , 2019 SKCA 96 , 31 RFL (8th) 310 [ Walker ], and P.M. v S.M ., 2019 SKCA 111 , 34 RFL (8th) 34. [ 27 ] In Kolodziejski v Maximiuk , 2023 SKCA 103 , this Court picked up on the dicta in Stromberg v Olafson , 2023 SKCA 67 at para 120 , to make the point that the applicable standard of review depends on the nature of the error alleged error and not on the type of judicial decision that was made: see also MacInnis v Bayer Inc. , 2023 SKCA 37 at para 38 .

Thus, in Kolodziejski v Maximiuk (in the context of a discretionary decision concerning spousal support and costs), the Court concluded with the following: [25] Therefore, in as much as a discretionary decision about spousal support or costs may be said to warrant deference from an appellate court, the errors alleged on appeal must be in the findings of fact or in the application of correct legal principles to the facts as found. This is because an appeal on those grounds attracts the deferential standard of palpable and overriding error ( Housen at para 22).

Whereas if the appeal of a spousal support order or costs award is based on an alleged error of law (whether that be in the identification or application of the legal criteria that govern the exercise of the discretion or another matter of law on which the legality of the order depends), the decision about that law attracts no deference because it is reviewable for its correctness. C. Parenting [ 28 ] Mr. Swan alleges several errors in the trial judge’s assessment of the appropriate parenting arrangements.

He asserts that the trial judge erred by determining that the parties did not share parenting duties during the marriage and, further, by failing to find that a shared parenting arrangement continued after separation. Mr. Swan submits that the status quo consisted of shared parenting prior to trial, and the trial judge erred by not giving that arrangement more weight. He further argues that all the factors set out in s. 16(3) of the Divorce Act were found to be equal (or in his favour regarding religious upbringing), with the exception of the status quo.

As a result, he contends that the trial judge must have put improper emphasis on his unsubstantiated findings regarding the status quo. Folded into this last argument is an assertion that the trial judge ignored the maximum contact principle. [ 29 ] Ms. Swan responds by asserting that the evidence regarding the nature of the parties’ parenting roles prior to separation did not support Mr. Swan’s contention that they had assumed an equal role and shared responsibilities in parenting their children.

As for post-separation, she further notes that, after the interim order was granted, they parented on a 61.9% to 38.1% basis. In any event, Ms. Swan disputes the notion that the children’s best interests were decided on the basis of the status quo or that the trial judge disregarded the issue of the children having as much contact with each parent as was in their best interests. She submits that Mr. Swan is simply attempting to have a “second kick at the can”. [ 30 ] It is important to set out the findings of fact made by the trial judge with regard to the parties’ parenting roles.

While this issue was discussed in detail throughout the Trial Decision , the following excerpts summarize his determinations in this regard: [50] As I have already mentioned, [the children] love both their parents unequivocally and without reservation. I am also satisfied that both Jason and Rachel love their children. They were both involved parents during their marriage albeit to varying degrees. Since separation, they have both been parenting the children, firstly as they could agree, and later pursuant to the order of Zuk J.

If something comes up and one of them cannot take the children for their time, they speak to each other and work out compensatory time. Irrespective of who has the children, they both attend their activities. Both Jason and Rachel have a strong relationship with their children. … [69] I am satisfied that during the parties’ relationship, Rachel was the children’s main caregiver. She looked after most of their physical, emotional and social needs. Jason was busy running the farm and was less involved with them.

Much like Rachel performed a support role on the farm, Jason performed in more of a support role with the children. [70] Since separation, the children continue to be with Rachel a majority of the time. By virtue of the fact that they are no longer together, Jason now has to do things with, or for, the children that Rachel had otherwise looked after. He tries to arrange his farm

schedule so he can spend time with the children but this is not always possible. When needed, his parents will look after [the children]. … [91] The status quo since the parties separated in October 2017 has been that the children have lived with Rachel 62 to 66 percent of the time and with Jason, the remaining 34 to 38 percent of the time. For the most part, the children have done well with this arrangement. Both parties have been able to put their differences aside and communicate and cooperate for the betterment of their children. [ 31 ] Mr.

Swan takes issue with the trial judge’s findings of fact regarding parenting both prior to and subsequent to separation. He is adamant that their parenting arrangement post-separation was shared on an equal or almost equal basis. However, there is ample evidence

for the factual findings made by the trial judge in the paragraphs quoted from the Trial Decision immediately above. It was uncontroverted that, prior to separation, the parties chose to have Ms. Swan be a full time, stay-at-home mother while Mr. Swan worked full time on the farm. There was conflicting evidence, however, regarding how much time Mr. Swan spent with the children during his non-working hours. As well, there was evidence indicating that he spent significant time in other pursuits in his off-hours and that Ms. Swan was the primary parent.

Having reviewed the transcript, I see no palpable and overriding error in the trial judge’s findings regarding the parents’ roles pre-separation. [ 32 ] Similarly, post-separation, there was evidence that the parties closely followed the interim order after it was granted in March of 2018, but that, occasionally, Mr. Swan was not available to parent during his allotted time. However, all things considered, the trial judge’s determination that the parenting time post-separation fell into the range of 62% to 66% for Ms. Swan and 34% to 38% for Mr. Swan fits well with the evidence.

Again, no palpable and overriding error emerges here. [ 33 ] This brings me to an examination of whether the trial judge erred by putting inappropriate weight on the status quo or by ignoring the principle that the children should have as much contact with each parent as in their best interests. In my view, the trial judge did not err in this regard. He went through each of the factors from s. 16(3) of the Divorce Act in detail and described his findings in relation to them.

After doing so, he determined that the children’s best interests in these particular circumstances were best served by a parenting arrangement that consisted of a two-week rotation of nine days with Ms. Swan and five days with Mr. Swan, plus equal shared holidays and other blocks of time. I do not agree with Mr. Swan that the trial judge found that each factor, with the exception of the status quo, was equal or favoured Mr. Swan. In any event, that is not how a best interests analysis works. It is the judge’s overall view, having considered all the relevant factors, that matters.

The following discussion in T.B.S. v S.J.B ., 2020 SKCA 93 , 45 RFL (8th) 148, in the context of the corresponding factors in the provincial legislation, is apropos of this point: [22]

Section 8(

a) of the [ The Children’s Law Act, 1997 ] contains a non-exhaustive list of factors that guide a trial judge in determining the best interests of a child when parenting arrangements are in dispute: B.B. v E.B ., 2020 SKQB 56 at para 18 . T.B.S. is correct that the

section is not simply a list that is to be graded on a pass–fail basis. On the other hand, it is also not the formulation of a math problem or a score-keeping system. It is not a recipe to be assessed only by examining its ingredients and not the final product: A.O. at para 136.

The assessment of all of the factors that influence a child’s best interests is a difficult task that is undertaken by a trial judge through considering every factor related to a child’s best interests, assigning the weight that is appropriate in the circumstances and determining the appropriate parenting arrangements on the basis of the cumulative effect of all of the factors. It is a highly discretionary process and decision. If, as asserted by T.B.S., the trial judge simply treated each factor as an on–off switch, transforming the best interests test into a fitness test, that would constitute an error of law.

However, I do not agree that he did so. [ 34 ] In this matter, the trial judge conducted a thorough examination of the evidence in relation to the factors listed in the Divorce Act , appropriately weighing and balancing them and by taking a child-centered approach. There is no indication that Ms. Swan’s role as primary caregiver was treated as pre-eminent. [ 35 ] Additionally, contrary to Mr. Swan’s assertions, the overall analysis conducted by the trial judge addressed the amount of contact that the children’s best interests required them to have with each parent, as mandated under s. 16(6) of the Divorce Act .

His examination of the factors fully canvassed this issue as described in Barendregt : [135] … It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child ”: s. 16(6) . This shift in language is more neutral and affirms the child- centric nature of the inquiry.

Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”. (Emphasis in original) [ 36 ] To allow Mr. Swan’s appeal in relation to parenting, this Court would have to re-examine the factors and substitute its own view of what is in the children’s best interests for that of the trial judge. The standard of review does not permit this Court to do so. There is no merit in the appeal related to the parenting arrangements. D. Mr. Swan’s income [ 37 ] Mr. Swan takes issues with three aspects of the Trial Decision where the trial judge fixed his income at $97,373.

He does not dispute that his $72,000 employment income should be taken into account but argues that the following errors occurred: (

a) the trial judge erred by adding an amount to his income arising out of the rent-free home provided by his parents or, in the alternative, by adding too large of an amount; (

b) the trial judge erred by adding the yearly bonus he received from his parents to his income; and (

c) the trial judge erred by not subtracting a portion of his farm losses from his income. [ 38 ] Turning first to the income attributed for the housing benefit, Mr. Swan asserts that the trial judge made an error of fact in determining that he received this benefit as part of his employment package as opposed to the generosity of his parents. I cannot accede to this argument. During his questioning, Mr. Swan asserted that he received a lower wage from his parents because rent-free housing formed part of his compensation package for working on the farm.

It was only later in the trial that he backtracked on that position and attempted to convince the trial judge that it was not related to his employment. The trial judge fully analyzed Mr. Swan’s conflicting evidence in paragraphs 112 to 115 and 124 to 133 of the Trial Decision and determined that the home was provided on a rent-free basis as part of his employment benefits. The trial judge was entitled to reconcile the conflicting versions offered by Mr. Swan and to determine what he believed to be the case. Palpable and overriding error does not arise here. [ 39 ] Alternatively, Mr.

Swan submits that the trial judge should have attributed a much smaller amount toward the housing benefit. Again, to succeed with this argument, Mr. Swan has to establish a palpable and overriding error in this determination. While the evidence

was sparse regarding the value of housing in the general vicinity of the farm, the trial judge reviewed the evidence that he did have,observed that Ms. Swan was paying subsidized rent of $621 per month for a much smaller home and rejected Mr. Swan’s testimony thathe could find similar accommodations to his home for $400 to $600 per month. The trial judge then chose a reasonable estimate of marketrent based on the available evidence, and notably in absence of any evidence that Mr. Swan could have led on that point. Mr. Swan has notdemonstrated error in this finding. [40] Regarding the bonus, Mr.

Swan stated during his questioning that he received an annual bonus of $5,000 to $7,000 from hisparents, but, again, during his testimony at trial, he tried to back away from his own admission. The trial judge fully examined this issue atparagraphs 113 to 115 and 134 to 138 of the Trial Decision and concluded that he did not believe Mr. Swan’s testimony at trial on thispoint. In doing so, he referred to Mr. Swan’s “creative accounting methods” (at para 138). It was not a palpable and overriding error forthe trial judge to have done so. [41] Lastly, Mr.

Swan argues that at least a portion of his farm losses should have been deducted from his income. His farm losses,as set out in his income tax returns, were $6,624.68 in 2014, $42,301.80 in 2015, $36,506.16 in 2016, $29,936.20 in 2017, and $51,996.00in 2018. Had Mr. Swan’s proposed new evidence been admitted on appeal, his farm losses recorded on his income tax returns in 2019,2020, and 2021 were $44,912.00, $123,468.00, and $347,008.00, respectively. [42] In Saskatchewan, the deduction of farm losses for the purpose of calculating income for support purposes is examined using aflexible approach.

It is often the case that the amount of the losses claimed by the payor spouse is adjusted and partially or whollyexcluded from the calculation of income available for the purposes of support, if its inclusion would result in an income that does notfairly reflect the payor’s ability to pay support: L.J.L. v L.R.S., 2013 SKQB 168 at para 58, 420 Sask R 89 [L.J.L.]; Nicholauson vNicholauson, 2019 SKQB 287 at paras 12–21; Woodward v Woodward, 2016 SKQB 301 at paras 19–27, 86 RFL (7th) 357 [Woodward];Johnson v Johnson, 2012 SKCA 87 at paras 57 and 101–109, 356 DLR (4th) 459 [Johnson]; Nichol v Johnson, 2003 SKQB 486 atparas 11–22, 49 RFL (5th) 385 [Nichol]; and Myketiak v Myketiak, 2001 SKCA 17 at para 20, 13 RFL (5th) 431 [Myketiak]. [43] Where farm income has been determined for tax purposes, a court should not automatically adopt this value when calculatingincome for support purposes, but, on the other hand, judges cannot engage in a practice of “simply plucking income figures out [of] theair” (Koenig v Koenig, 2012 SKQB 340 at para 7, 403 Sask R 242 [Koenig]).

Judges cannot ignore farm losses when determining incomein this context: Johnson at para 53 and 101. Instead, they must decide whether to use some, all, or none of the losses to reduce the farmer’sincome based on the evidence before them: Johnson at para 102 and Woodward at para 26.

Factors such as the purpose of the farmingoperation, its economic strength, debt load, repayment obligations, the necessity of capital acquisitions, other business-related factors,s. 19 of the Guidelines, and the principles of equity, fairness, and reasonableness should guide this analysis: MacLachlan v MacLachlan,2020 SKQB 117 at para 17, and Johnson at paras 59–60 and 109.

There is a tactical burden on the farmer to establish that applying farmlosses to reduce their income for support purposes is reasonable in the circumstances: Birnie v Birnie, 2021 SKCA 107 at para 40,Woodward at para 26, and Koenig at para 6. [44] As noted in Myketiak, persisting in operating a farm at a loss for numerous years is a course of action open to a payor spouse,but the consequences of such actions are generally not visited on the recipient of support: [19] In this case the appellant relied upon continuing farm losses starting in 1996 as a basis for deducting all of these losses from“employment income” for the purposes of computing child support.

The testimony at trial indicated that such losses were likely tocontinue unless the appellant rearranged his affairs. In the circumstances it was open to the trial judge to rule as he did. Furthermore theappellant’s father testified that renting farm land is an option where farming operations are “consistently losing money”. [20] If the appellant chooses to operate his farm at a loss over such an extended period, he cannot expect his former wife and children orthe public to subsidize such operations when there are reasonable alternatives open to him. [45] As observed by the trial judge, Mr.

Swan offered no satisfactory explanation for his recurring farm losses and provided scantinformation regarding the reasonableness of any of his claimed expenses. It was only in cross-examination that evidence emergedregarding the nature of some of the expenses which supported their unreasonableness. The trial judge commented on this as follows (TrialDecision): [119] Jason did not explain his farm income, farm expenses, his capital cost allowance, the inventory adjustment or his farm losses. In theread-ins there was some evidence about his expenses in 2014 and 2015 but the evidence was less than satisfactory.

At trial, all he said wasthat his losses in 2017 and 2018 were due to extreme drought and grain prices. Yet in 2017, his losses were less than his losses in 2015 and2016 when presumably drought and grain prices were not an issue. And in 2017 and 2018, he has expenses for crop insurance premiumsbut shows no insurance proceeds received under income in those years. If there was indeed a drought, I wonder why he did not receive anycrop insurance proceeds. [120] Rachel’s counsel cross-examined Jason on some of his 2018 expenses dealing with his cutting horses.

Jason admitted that hisincome that year from the cutting horses was only $645 but his expenses were approximately $90,000. When asked about the $15,029 heclaimed for professional fees, he admitted that some of that amount was for legal fees for his family law matters.

That was really theextent of the evidence regarding Jason’s farm income, expenses and losses. … [122] In light of his admissions to Rachel’s counsel, and in the absence of evidence justifying Jason’s farm expenses, capital costdepreciation claim and the various inventory adjustments and their treatment as a function of costs and expenses actually incurred in thecrop year, it is inappropriate to speculate as to the actual impact his farm operations should have on the determination of his income forsupport purposes.

As such, I am not prepared to reduce Jason’s income by a portion of his farming losses as he urges me to do. [46] In my view, the trial judge identified the relevant principles – referencing Koenig, L.J.L., T.L.K. v D.N.K. (1999), (SK KB), 182 Sask R 318, and Englot v Englot, 2008 SKQB 195 – and thoroughly considered the appropriate factors in this case.After carefully examining the evidence that had been adduced by Mr. Swan, and considering whether a portion of the losses should be

deducted from Mr. Swan’s income, the trial judge found that Mr. Swan had not demonstrated that deducting some or all of his farm losses against his income was reasonable for the purposes of support. No error occurred in that analysis that would justify this Court’s intervention. E. Ms. Swan’s income [ 47 ] The trial judge declined to impute additional income to Ms. Swan over and above her most recent statement of employment income. Mr. Swan asserts that this was an error because the evidence established that Ms. Swan is earning less than she is capable of earning.

He argues that she earned approximately $33,000 in 2010, has considerable work experience and skills, and had not made a reasonable effort to find new employment. While not arguing that the trial judge identified incorrect legal principles, Mr. Swan asserts that he erred in the exercise of his discretion. [ 48 ] Ms.

Swan counters these arguments by pointing out that the high water mark of her income over the previous many years was $32,692 when she was working full time before the eldest child was born, she did not work outside the home after that child’s birth, she obtained employment promptly after leaving the family home, was working towards a certification as a care aide, and was taking as many shifts as she was able, taking into account her studies and parenting responsibilities. Her most recent income had increased by approximately $4,700 from the previous year. Ms.

Swan notes that the evidence demonstrated there were limited employment opportunities in the area and asserts that expecting her to now earn more than she did prior to having children is unrealistic. She says her current employment plan is reasonable and not imputing further income was well within the trial judge’s discretion. [ 49 ] The imputation of income is a discretionary decision. Mr. Swan has not identified any factors that indicate that the trial judge did not understand the relevant principles or that he applied them in a manner that would permit this Court to interfere.

I need go no further than to quote the following from the Trial Decision : [146] A three-step analysis is used to determine an application that a person is underemployed or unemployed: first, the Court must determine if the party is intentionally underemployed or unemployed.

If he/she is intentionally underemployed or unemployed, then the second step is to determine whether any of the exceptions in s. 19(l)(a) [of the Guidelines ] apply, that is, whether the underemployment or unemployment is required by reason of the needs of a child, the needs of any child under the age of majority, the reasonable educational needs of the spouse or the reasonable health needs of the spouse. If none of these exceptions apply, the third step is for the Court to decide whether to exercise its discretion and impute income.

See Aigner v Aigner , 2008 SKQB 132 at para 18 , [2008] 10 WWR 509. [147] In this case, the evidence falls far short of establishing that Rachel was intentionally underemployed. Rachel has a certificate in Christian ministry but no other degrees. She had been working towards a kinesiology degree when the parties moved to [a small town] in 2010 but she never finished that degree. She was for many years a stay-at-home mother. After separation she found employment fairly quickly. Later she was hired by the Health Authority.

She kept looking for other jobs in the [small town] area however living in rural Saskatchewan and without much in the way of post-secondary education, her options were limited. … [151] Rachel recognized that she needed to find employment to support herself and the children. She found a job right away and within months took not one, but two better paying positions with the Health Authority. She was pursuing a certification that would allow her to keep her jobs and increase her hourly rate.

She continues to explore how she can make herself more financially secure while continuing to reside in the [small town] district. Given her lack of post-secondary education and the limited employment opportunities in [the small town], this will take some time, but eventually I am satisfied she will succeed. She has already made more in 2019 than she made in 2018. I have no hesitation concluding on the evidence before me that Rachel is not intentionally underemployed and I do not have to consider steps two and three in the analysis. [ 50 ] Mr. Swan has failed to identify any error in this finding.

Again, it is not for this Court to re-examine the evidence and substitute our opinion. Having found no error, this ground of appeal cannot be given effect. F. Quantum and duration of spousal support [ 51 ] There is no challenge to the trial judge’s finding that Ms. Swan was entitled to spousal support on a compensatory and a non- compensatory basis. However, Mr. Swan submits that spousal support of $250 per month should have been ordered and that it should have terminated on December 1, 2022. Mr.

Swan’s arguments regarding the quantum of spousal support were anchored in his assertions that the trial judge erred in his determinations of his income and Ms. Swan’s income. Having been unsuccessful in those submissions, his remaining argument boils down to a contention that the duration is too long, given the requirement for Ms. Swan to become self-sufficient. He points to the young age of the parties at the time of separation, their relatively short, eight-year marriage, and their respective incomes. [ 52 ] Ms. Swan submits that she gave up her university pursuits to move to a small town near Mr.

Swan’s parents to facilitate his employment, worked in low-level positions prior to the birth of their first child, became a stay-at-home mother by mutual agreement for several years, has two children to care for, lived in low income housing after separation, worked as much as she could, lived modestly, and was taking training to further her reasonable employment prospects and increase her income. She argues that the duration of spousal support was appropriate. [ 53 ] In my view, the trial judge did not err in determining the duration of spousal support.

The range of support generated by the trial judge under the Guidelines was 4 to 12 years. If spousal support notionally started on November 1, 2017, when Mr. Swan started paying support, Ms. Swan will receive spousal support for a little more than 9 years. Given her strong compensatory and non-compensatory basis for entitlement, and the circumstances of this matter as captured by the

summary of Ms. Swan’s submissions in the preceding paragraph, I am satisfied this duration of support meets the objectives set out in s. 15.2(6) of the Divorce Act , fits well within the Guidelines , and accords with the jurisprudence: see, for example, A.L. v M.L ., 2019 SKCA 61 at paras 134–149 , 29 RFL (8th) 89. The trial judge discussed all the relevant factors at paragraphs 156 to 163 of the Trial Decision and exercised his discretion in a manner that leaves no scope for interference in his determination regarding the duration of spousal support.

G. Delay in rendering the Trial Decision [54] The trial judge took two years to render his decision after the trial concluded. At no point did either of the parties apply toreopen the trial to tender further evidence. The trial judge did not seek out such additional evidence. Mr. Swan asserts that the failure ofthe trial judge to seek updated information constitutes an error of law. He says that much has changed since the trial ended, including theschool attendance of the children, the parties’ work schedules, and the parenting arrangements that occurred during the reserve period.

Inote that the first two issues are not discussed in Mr. Swan’s affidavit that was filed with his new evidence application. Mr. Swan does notsuggest any particular remedy that should result from this alleged error, and he does not seek a new trial. [55] Ms. Swan asserts, without reference to any evidence, that the courts became backed up during the COVID-19 pandemic andthat reserve times in the Court of King’s Bench have increased. She further submits that it is incumbent on the parties to advise the courtof any significant changes in their lives or the lives of the children and that Mr.

Swan failed to do so. [56] Any time a family law decision is reserved after trial, events will invariably occur that affect the children and the parties.Children continue to grow, develop, and progress. Parents change jobs, schedules, and circumstances. Life goes on. Such is the fluidnature of families. However, if any of those changes constitute major, unanticipated developments, it is open to the parties to apply toreopen the trial and to bring the relevant new evidence to the attention of the judge who heard the trial.

It is the parties who are inpossession of that information and can best assess whether it warrants an application to reopen the trial. This is the procedure discussed inFraser v Ksenych, 2022 SKCA 93 at para 44; S.W.B.M. v C.S.M., 2021 SKCA 64 at para 19, 56 RFL (8th) 292, leave to appeal to SCCrefused, ; A.M. v Saskatchewan (Social Services), 2020 SKCA 114 at para 186; and S.T. v J.T., 2019 SKCA 116 atparas 89–93, [2020] 6 WWR 55. That said, there may be circumstances where a trial judge, on their own motion, might seek updatedinformation from the parties.

This, however, was not one of those cases. [57] Here, there is no need to speculate whether any major, unanticipated developments occurred because Mr. Swan has applied totender new evidence. As I have noted, nothing is revealed in the affidavits that would constitute such a development. None of thecircumstances that came to pass when the decision was under reserve would have affected the outcome. As such, there is no basis forappellate intervention under this ground of appeal. VI. CONCLUSION [58] The appeal is dismissed. In addition to the costs for the fresh evidence application, Ms.

Swan is awarded the costs for theappeal and those for the application to lift the stay of execution, calculated in the usual manner. “Tholl J.A.” Tholl J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Drennan J.A.” Drennan J.A.