KATHERINE COTE PETITIONER - v. -, 2023 SKKB 139

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 139 Date: 2023 05 11 Docket: DIV-MJ-00052-2021 Judicial Centre : Moose Jaw, Family Law Division BETWEEN: KATHERINE COTE PETITIONER - and - WACEY COTE RESPONDENT Counsel: Lindsay A. Hart for the petitioner Kyla K. Dilling for the respondent JUDGMENT MEGAW J. MAY 11, 2023 INTRODUCTION [ 1 ] This matter proceeded to trial with all of the parties’ family law matters in issue. The issue of parenting time for the respondent, father, requires some structure to be provided to the parties to allow for a parenting

schedule for the petitioner, mother, but still retaining some flexibility for the father given his line of work. The issue of the appropriate division of family property requires a few valuation issues to be determined, some evidentiary issues resolved, and some equitable matters considered. The issue of child support largely resolved by the conclusion of the trial. The most significant dispute between the parties involved the determination of both entitlement to, and quantum of, spousal support. [ 2 ] But for the matter of costs, these reasons resolve all of the matters in issue.

The issue of costs has not been determined as counsel requested that matter remain on reserve until this substantive judgment is delivered. The parties have leave to have the issue of costs returned before me upon making the appropriate arrangements with the local registrar’s office. [ 3 ] My reasons follow. BACKGROUND [ 4 ] The parties have been involved with one another since May 2015. They had periods of physical separation between the time of the start of their relationship through to, possibly, mid-2018.

They became engaged in October 2017 and were married on August 25, 2018. [ 5 ] They have one child, Hadley Cote, who was born on August 8, 2020. Their daughter has lived primarily with

the mother throughout the child’s life. The father has worked away from home throughout his career and accordingly, he has had parenting time with the child only on certain days when he is back in Moose Jaw, Saskatchewan. The ongoing primary residence of the child with the mother is not opposed by the father. [ 6 ] The parties separated on April 10, 2021, and have been living separate and apart since that time. The mother remained living in the family home on an acreage just outside of Moose Jaw. Initially, following the separation it appears the father would return to Moose Jaw and stay with his parents.

More recently, he has purchased a home in Moose Jaw where he lives when he is back in the area. [ 7 ] The mother is employed by the Saskatchewan Crop Insurance Corporation as an auditor. She has been promoted from the position she was originally hired for with the corporation. She describes herself as doing well in her job and is interested in continuing the progress. She appears to be eager to take on the challenges of her position and is driven to succeed in her work. [ 8 ] The father is qualified as a journeyman welder.

He has worked his adult life in the pipeline industry in Alberta and, most recently, in British Columbia. It appears he actually works on a number of different projects, going from job site to job site as each project is completed. Historically, he has earned a significant income from this type of employment. He now says that most recently he has been unable to secure the same type of employment and has had to accept what may be a lower paying position. [ 9 ] The parenting arrangements for the child appear to have gone relatively smoothly.

It appears from the evidence that the parties have generally been able to agree on matters involving the child and also on parenting times for the father. The paternal grandmother has been a significant presence in the child’s life. The mother testified that she looks to continue that involvement and that the child is very connected to her grandmother. [ 10 ] By judgment dated February 8, 2022, Chow J. granted relief regarding parenting, child support, and spousal support. On the issue of parenting he continued the existing parenting arrangement and provided the mother final decision making authority.

He also directed that the exchanges of the child occur at the Starbucks location in Moose Jaw. [ 11 ] For support purposes, Chow J. assessed the petitioner’s income at $29,550 per annum. The respondent’s total income, including the grossed-up living allowance, was determined to be $306,891. As a result, the respondent’s child support obligation was determined to be $2,495 per month and his pro rata share of s. 7 expenses was set at 68%. [ 12 ] The interim order directs the respondent to pay spousal support to the petitioner in the amount of $6,088 per month commencing June 1, 2021.

There is no discussion in the decision regarding the petitioner’s entitlement to receive spousal support. Counsel indicated at the trial of the action that for interim purposes, at the time of the decision of Chow J., the respondent was not disputing the petitioner’s entitlement to receive spousal support. [ 13 ] With respect to the decision making involving the child, the evidence appears to indicate there has been discussion between the parties on all decisions affecting this child and they have been able to come to an agreement on whatever issues have arisen so far. DECISION 1.

Divorce [ 14 ] The petitioner seeks a divorce, which is not opposed by the respondent. I am satisfied from the evidence tendered at the trial of this matter that a judgment for divorce shall issue on the usual terms. 2. Decision making [ 15 ] The mother seeks to continue sharing decision making for the child but seeks to have the ability to make the final decision in the event the parties are unable to agree on any particular matter.

The father seeks to have joint decision making capacity to equally participate in the child’s life. [ 16 ] The evidence at trial disclosed that the mother has endeavored to provide complete information regarding the child to the father through current texts. The father testified to his sense of having, in fact, little input regarding decisions and having all such decisions dictated to him by the mother. I do not accept that impression is borne out on the evidence.

It appears the parties have been able to discuss all matters involving the child and have been able to come to an agreement each time an issue has arisen. I am satisfied on the whole of the evidence that there has been no dictating of decisions as perceived by the father. [ 17 ] The Divorce Act , RSC 1985, c 3 (2d Supp) [ Act ] defines decision-making responsibility as follows: decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of (

a) health; (

b) education; (

c) culture, language, religion and spirituality; and (

d) significant extra-curricular activities; [ 18 ] The Act does not provide for a presumption as to which party is entitled to decision making authority. Rather, like all orders made respecting parenting pursuant to this Act , the court must only consider that which is in the best interests of the child:

Parenting order 16.1

(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by (

a) either or both spouses; or (

b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent. … Contents of parenting order

(4) The court may, in the order, (

a) allocate parenting time in accordance with

section 16.2; (

b) allocate decision-making responsibility in accordance with

section 16.3; (

c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and (

d) provide for any other matter that the court considers appropriate. … Allocation of decision-making responsibility 16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons. [ 19 ] In deciding how decision making authority for a child should be divided between the parents, the court is required to take an individualized approach looking to the particular child’s circumstances before it.

In this regard, see generally the comments of Nicholas Bala & Yakin Ebsim, “The 2021 Canadian Parenting Reforms: Is Shared Parenting the New Normal?” 2022 Can LIIDocs 557 [Bala]. [ 20 ] In the absence of evidence showing a particular level of difficulty between parents, the court should consider shared decision making to ensure the child is aware that both parents are involved in their life (Bala at 14): The issue of whether to order shared parenting time is related to shared decision-making, but the issues are clearly distinct.

It is possible to have either one without the other, though full shared parenting will entail both. In cases where parents can co-operate and reasonably communicate, shared decision-making can help children feel as though both parents are fully part of their lives. [ 21 ] In an admittedly different context, and dealing with different legislation, the Court of Appeal in Schick v Woodrow , 2012 SKCA 1 , 385 Sask R 153 endorsed the concept that generally speaking it was not in a child’s best interests to have one parent not be actively involved in that child’s life.

Citing McIntyre J. in O.(B.A.) v G.(R.) , 2003 SKQB 112 , 38 RFL (5 th ) 367, the following comment was made: [24] These considerations, on the other hand, cannot in themselves be determinative where the non-resident parent seeks standing as a joint legal custodian, with joint decision making power and authority, and regular access to the child, as distinct from de facto custody, or primary residence of the child. This, I think, is the issue addressed by McIntyre J. in B.O.A. v.

R.G. , 2003 SKQB 112 , 38 R.F.L. (5th) 367 , where he held that it was not in the best interests of the child that one parent should be “a passive bystander,” where that parent has bonded with the child, and demonstrated love and care for the child. [ 22 ] There is no evidence in this case of either significant conflict or disagreement between the parties when it comes to the child. While there have been some difficulties along the way dealing with the father’s parenting, these appear to be the exception and the parties have managed to ensure conflict is kept to a minimum.

Clearly the mother is the parent most significantly involved. However, I am unable to conclude the father is not interested in continuing to be an involved parent with decisions affecting the child. [ 23 ] The mother seeks final decision making authority due to the fact that the father is working away from home for extended periods of time. Her argument in support of final decision making appears to be based on little more than convenience, both for her and for the child, rather than on any consideration of that which is necessarily in the child’s best interests.

With the ability to contact and carry on discussion through phone, text message, or email, the distance apart does not appear to be a sufficient basis, in and of itself, for denying the father equal participation in decisions affecting their child’s life. [ 24 ] Furthermore, there is nothing in the evidence to suggest the father has not been responsive to all communications from the mother regarding the child.

That involvement indicates a desire by him to be more than “a passive bystander” in the life of the child. [ 25 ] In the result, there appears no reason from the evidence tendered to determine this child’s best interests will be served by having the mother receive ultimate decision making authority. In fact, I determine these parents should be equally involved in the decisions regarding their daughter. Therefore, I determine that the parties here should have shared decision making responsibility. This will permit the child to see that both of her parents are equally involved in her life.

It will permit the father to be an equal participant in making those decisions which fundamentally affect the child. In this case, that equal participation appears to be in this child’s ongoing

best interests. 3. Parenting arrangements [ 26 ] The parties are agreed that the child shall continue to reside primarily with the mother and the father will continue to have specific parenting times as dictated by his days off from his employment. This arrangement is, of course, dictated by the reality that the father works away from home for extended periods of time.

The parties’ dispute concerning parenting time involves three things: whether there should be a public location drop-off; is it possible to put in place a parenting schedule; and what notice should the father give if seeking additional parenting time or if unable to exercise existing scheduled parenting time. [ 27 ] Presently, the parties exchange the child at a Starbucks location in Moose Jaw, and it may be there has been an insistence by the mother that only the father may attend for such exchanges.

This latter issue is referenced in the brief of the respondent but was not fully canvassed at the trial. [ 28 ] It is further unclear from the evidence why the practice of a public location exchange of the child has developed. The order was made by Chow J. however, its purpose was not developed in any material way through the trial evidence. While there was some peripheral comment on the father’s past use of steroids, there is no evidence before the court that there has been any violence in the relationship, or since separation.

As well, there is no evidence either party has any basis for fearing the actions of the other. Finally there is nothing in the evidence to indicate there are tensions between the parties warranting this public exchange. [ 29 ] On the basis of the evidence tendered, I am unable to determine why the parties should not be entitled to complete the exchanges for their parenting time at the home of either of them.

Indeed, an exchange at the home will facilitate the father’s parenting time further as he is not always in control of being able to be at the exchange at a precise time, given his travels to Moose Jaw. [ 30 ] In the result, on this issue, I determine that the exchanges of the child shall take place at the home of the mother. The father, or as will be explained below, his designate, shall attend to the property of the mother both to pick up and deliver the child at the start and end of his parenting times. If the parties determine to make alternative exchange arrangements, they are certainly entitled to do so.

However, having the exchanges at the mother’s property, on the basis of the evidence heard at trial, will inconvenience her the least should the father be late for, or unable to attend, his scheduled parenting times. It will also allow for the father’s parenting to be completed should the set time not be available for him. [ 31 ] The father also now seeks the ability to have a designate attend to complete the exchange in the event he is unable to attend at the scheduled time.

While the evidence at trial did not indicate that this was a significant issue, I am prepared to direct that the father’s mother can appear to complete the exchange of the child, in the event the father is not able to so attend. The evidence satisfies me that the mother and the paternal grandmother have a good relationship and the grandmother has an established good relationship with the child. It is therefore appropriate for the grandmother to be able to complete the exchange on those occasions when the father cannot be present at the set times.

Again this will facilitate the father’s parenting times and will inconvenience the mother the least in this regard. [ 32 ] The paternal grandmother testified at the trial. During her evidence she raised some concerns, or issues, that she has with the petitioner. It is unclear why this type of evidence was being proffered. It appears from the totality of the evidence that the petitioner and the grandmother have a good relationship with good communication.

It further appears the petitioner has made efforts to develop the child’s relationship with the grandmother. [ 33 ] This then leaves the issue of determining the father’s actual parenting time. His present employment appears to provide him days off work for each statutory holiday. He seeks to have parenting therefore on each statutory holiday with Christmas, Easter and Thanksgiving to be treated in a special fashion. There is no request for any other set time, other than for summer holidays. I point out that the following parenting arrangement is dictated entirely by the father’s current work schedule.

Should that change, different arrangements will need to be made. [ 34 ] I have determined that it is reasonable to provide to the father parenting time for the statutory holiday, excluding Christmas, but allow the mother some specific time during certain of those holidays to be with the child.

Specifically, the father shall have parenting time to the child as follows: the statutory holiday weekend in February; Easter weekend, subject to some specific time for the mother; Victoria Day weekend; July 1 weekend; August statutory long weekend; Labour Day weekend; and Thanksgiving weekend, subject to some specific time for the mother. [ 35 ] On each of the Easter and Thanksgiving weekends, I direct that the mother shall have a block of a four hour period during the weekend to be with the child.

She shall provide notice to the father of the times she seeks to have the child 14 days in advance of the weekend commencing. This block of time is provided because the mother is not receiving any of the usual holidays with the child. [ 36 ] For the Christmas period, the parties agree that the father had the child for an extended period of time in Christmas 2022 from December 22 to 27. The mother seeks to have this time in return for 2023. This is reasonable and I order that to occur. I direct that this division of the Christmas period continue.

It is reasonable that each parent have an extended period of time with the child every second year at this particular holiday time. [ 37 ] The father seeks to have extended summer time parenting for a full two week period. There is nothing in the evidence to suggest this would not be in the child’s best interests. Accordingly, in each odd numbered year, the father shall have the first selection of parenting times for a two week period during the months of July or August. He shall provide his selection to the mother prior to May 31 of the year he is eligible for such summer parenting time.

The mother shall be entitled to the same parenting time during the summer in even numbered years. [ 38 ] For the father’s parenting times, I direct that he provide confirmation to the mother 72 hours in advance of the

commencement of those times, confirming his ability to parent as scheduled. In the event he does not provide such confirmation, the mother shall be at liberty to forego such parenting time. [ 39 ] I impose this requirement for notice because the mother is entitled to some measure of certainty in the parenting arrangements for the father. A 72 hour notice provision is not onerous for the father and he should know with some certainty whether he will be able to attend as set forth for his parenting times. 4. The mother’s income [ 40 ] The parties’ determination of their incomes are quite close.

That is the case for 2023. What the parties’ incomes should be after this year is an unknown as a result of both of them assuming new positions relatively recently. [ 41 ] The mother has submitted that her income should be assessed at the amount of $44,885.85 less her union dues paid of $711.07 based on her 2022 income.

Counsel for the father submits the mother’s income should include both her anticipated 2023 employment income and the income earned from her haying operation. [ 42 ] I decline to use the 2022 employment income figure because the mother’s current, expected, 2023 income is known from the evidence submitted at trial. Exhibit P1, Tab 15 sets forth the mother’s payslips from her employment. Those indicate that her salary is determined by working 1,872 hours per year at $32.43 per hour. This equates to an annual employment salary of $60,708.

There is no evidence before me regarding the ability to earn overtime income. [ 43 ] In addition to her employment, the mother also operates a haying operation whereby hay is cut, baled and sold to a consistent purchaser. Over the years the haying operation has generated relatively consistent income but has operated, for tax purposes, at a loss or essentially a break-even position.

While there is incomplete evidence regarding the expenses claimed, there is sufficient information to conclude that certain deductions quite clearly have nothing to do with the haying operation. [ 44 ] In 2022, the income generated was $15,287.65. The expenses, including capital cost allowance claims, were $15,020.91. The petitioner agreed during her cross-examination that certain expenses claimed included those not connected to the haying operation.

However, beyond the obvious animal connected expenses, there was no accurate or complete breakdown of the remaining expenses claimed and whether they are completely, or even partially, connected to the haying operation. [ 45 ] Counsel for the father, in the brief provided, has attempted to calculate that farm income by analyzing the various expenses incurred. With expenses such as those for fuel, capital cost allowance, small tools, and fuel, the evidence does not permit me to make such a detailed calculation. [ 46 ] The mother bears the burden of proof with respect to the expenses deducted from the farm income.

She has not presented cogent evidence with respect to all of the disputed expenses. [ 47 ] I am left to determine there is some income to the petitioner from this operation. I am unable to arrive at an exact figure in this regard. Looking at the various expenses claimed, it is reasonable to estimate the petitioner should be credited with the amount of $5,000 as income in this regard. While this cannot be accurately calculated on the evidence, it is reasonable to conclude the operation generates some positive cashflow. [ 48 ] As a result, I determine the petitioner’s income shall be $65,708 per annum for 2023.

It is on this income that the support obligations shall be determined. 5. The father’s income [ 49 ] The father has historically earned a rather significant income working as a foreman, or equivalent position, on oil rigs in the Jasper, Alberta area. In January 2023, the job which the father had been working on came to an end. He was unemployed for a short period of time and then began working on a job near Chilliwack, British Columbia. According to his testimony at trial, that new job is expected to pay him considerably less than what he was earning in his previous positions.

He testified that this was the only job which was available to him at this time. [ 50 ] The petitioner presented a series of advertised foreman positions which the father agreed he had not applied for. No explanation was provided by the father as to why any of these foreman positions would not have been available to him or why he could not have applied for these positions. The mother is suspicious that the father has deliberately lowered his income to avoid paying a significant support obligation. [ 51 ] I do not have to resolve those suspicions in this judgment.

By the time of final argument, the father’s counsel submitted that the court should use the father’s 2022 income, as determined, for current support purposes. That means that even though his current, actual, income may be considerably lower than his historical income, I am to use this last year’s income at this stage. This also means that I do not need to consider the issue of imputation of income at this time. That issue will be left for calculation in 2024 when the respondent’s income is then known. [ 52 ] In his employment in 2022, the father earned a salary and also received a living-out allowance.

The evidence regarding this living allowance was apparently canvassed in some detail at the interim stage according to the argument advanced at trial. How it is calculated and what expenses it covers was scantly covered in the evidence tendered at this trial. [ 53 ] In the absence of trial evidence, I am not able to simply apply the evidence tendered on the interim application.

Regardless, the parties are rather remarkably close on their calculations of the father’s income for 2022. As indicated, the father concedes that his child support obligation for 2023 should be based upon the calculated 2022 income. He further concedes that any reduction in his income should then be considered at the time child support is recalculated in June 2024. [ 54 ] The father receives an allowance for living away from his home. It is argued by him a portion of this allowance is in fact used for living expenses.

But, a significant portion of it may not be required for any actual expenses and is, in fact, another source of untaxed income for the respondent. In light of the evidence tendered, or lack thereof, I am unable to make a detailed and accurate calculation in this regard. The respondent’s brief indicates that the lack of evidence concerning actual expenses incurred resulted from the respondent’s inability, at the last minute during trial, to call a particular witness. It is not known who this witness was, nor how he or she could have assisted in explaining the situation.

This was not the subject of any evidence at the trial. Regardless, there is no complete evidence tendered to permit a fulsome analysis to be completed. [ 55 ] The respondent proposes that his 2022 income be set at $412,343. The petitioner proposes that the respondent’s income for last year be set at $419,815. The difference lies in the amount of the living allowance to be included in the level of income. [ 56 ] It appears from the limited evidence available that the respondent may have some living away expenses. It may be he has to contribute to rent when living away from his home.

But, as indicated, it is unknown accurately what expenses there might be that he would not have incurred in any event at his home in Moose Jaw. The evidence indicates that he receives additional amounts to allow him to travel home on his days off and those amounts may, in fact, more than cover the actual costs in that regard. With respect to the payment of rent, there was no evidence submitted containing a rent obligation or the actual payment of rent as submitted by the respondent. [ 57 ] In all of the circumstances here, I determine to set the respondent’s 2022 annual income at $419,815.

This recognizes that there is no evidentiary basis provided to give him a reduction in the amount which the respondent now seeks. The burden rested on him to provide evidence in this regard and he has not done that. 6. Child support and spousal support calculated retroactively [ 58 ] Neither of the parties sought a review of the support calculated by Chow J. on the interim order at the trial of this matter. Specifically, the petitioner sought to have support as she calculated it determined from April 2023, or the time of the trial.

The respondent did not introduce during argument that he sought to have the support previously determined reviewed in order to make the final order in this regard. [ 59 ] Similarly, the respondent did not advance any argument that an interim order with respect to spousal support, as was done by Chow J., was not appropriate in these circumstances.

It was indicated that entitlement, at the interim stage, was not disputed and accordingly, Chow J. made his order accepting that the petitioner was entitled to receive spousal support and then proceeded to determine the appropriate quantum. [ 60 ] This means that the previous order will then be assumed to be correct through to March 31, 2023. The support obligations from April 1, 2023, forward will be determined according to this decision. There was evidence tendered regarding certain arrears which had accumulated pursuant to the Chow J. order.

I leave the issue of those arrears to be determined through the maintenance enforcement procedure as the petitioner has registered that order with the Maintenance Enforcement Office. As a result, the parties will be able to deal with that office in finalizing any arrears issues. 7. Child Support [ 61 ] Based on the incomes as found, in accordance with the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], I determine the father’s obligation to pay child support shall be $3,376 per month.

That payment shall commence April 1, 2023 and continue on the 1 st day of each month hereafter until varied by further court order or agreement of the parties. At the time of argument, there was no issue raised regarding whether the quantum of the father’s income being in excess of the amount of $150,000.00 ought to result in a consideration of the appropriateness of the Guidelines amount. Indeed, the argument presented was that the father was prepared to pay child support based on the full income as determined. As a result, I determine it is appropriate to assess the obligation pursuant to the Guidelines .

In addition to the s. 3 child support as determined, the parties shall divide the s. 7 expenses proportionately according to their total incomes. Given the spousal support determination, infra , I invite the parties to calculate the proportions. If they are unable to agree in this regard, leave is given to return this issue before me for determination. [ 62 ] The parties shall exchange their income information on or before June 1, 2024 and the child support obligation shall be adjusted as of July 1, 2024 according to both the income information then exchanged and the evidence presented by the parties. 8.

Spousal support [ 63 ] The petitioner seeks spousal support on an indefinite basis with a review to occur in six years following the date of the judgment. The respondent opposes any ongoing spousal support but in the alternative seeks to have any such support order limited to four years commencing June 2021. [ 64 ] The Act sets forth both the factors to consider and the objectives to be achieved when determining whether to grant a spousal support order: Spousal support order 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the

support of the other spouse. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim orderrequiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as thecourt thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or untila specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

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

c) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration anymisconduct of a spouse in relation to the marriage. Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [65] There are three bases upon which spousal support may be ordered: compensatory, non-compensatory, and contractual. In Julien D. Payne & Marilyn A.

Payne, Canadian Family Law, 9th ed (Toronto: Irwin Law Inc., 2022) the issue ofentitlement to spousal support is addressed as follows at pages 278-279: Judicial implementation of the statutorily defined objectives has, to some degree, resulted in a shift from the former narrow perspectiveof a “needs” and “capacity to pay” approach, particularly in cases where one of the spouses has substantial means.

In Bracklow v Bracklow [ (SCC), [1999] 1 SCR 420], McLachlin J, as she then was, of the Supreme Court of Canada,observed that there are three bases upon which a court can make an award of spousal support, namely, compensatory; non-compensatory;and contractual. Although the compensatory and non-compensatory bases for spousal support are premised on different considerations,there is no single basis of support under the Divorce Act that supersedes the other, and many claims involve aspects of bothcompensatory and non-compensatory principles.

A court is not called upon to decide on one basis for support to the exclusion of theother but rather to apply the relevant statutory factors and objectives in order to strike the balance that best achieves justice in theparticular case in light of the overarching principle of equitable sharing. The four objectives defined in the Divorce Act are not necessarily independent of each other. They may overlap or they may operateindependently, according to the circumstances of the particular case.

All four of the objectives defined in the Divorce Act should be examined in every case wherein spousal support is claimed or an order forspousal support is sought to be varied. There is nothing in the Divorce Act to suggest that any one of the objectives has greater weight orimportance than any other objective. The fact that one of the objectives, such as economic self-sufficiency, has been attained, does notobviate the need to ascertain whether the remaining objectives have also been satisfied.

Where the basis for a compensatory award isestablished, it should continue until compensation is achieved, even if there is a degree of self-sufficiency in the recipient. [66] In Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, McLachlin J. (as she then was) stated: 41

Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatoryfactors. The first two objectives -- to recognize the economic consequences of the marriage or its breakdown and to apportion betweenthe spouses financial consequences of child care over and above child support payments -- are primarily related to compensation. But

the third and fourth objectives are difficult to confine to that goal. “[E]conomic hardship . . . arising from the breakdown of themarriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, [4th ed (Ontario: Carswell, 1996)] at pp.251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself withoutit.

Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been sufferedbut for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an

interpretation supports the independent inclusion of s. 15.2(6)(

c) as a separate consideration from s. 15.2(6)(a).

Thus, Rogerson sees s. 15.2(6)(c), “the principle of compensation for the economic disadvantages of the marriage breakdown asdistinct from the disadvantages of the marriage”, as an explicit recognition of “non-compensatory” support (“Spousal Support AfterMoge”, supra [Rogerson, Carol J. “Spousal Support After Moge” (1996-97), 14 CFLQ 281], at pp. 371-72 (emphasis in original)). 42 Similarly, the fourth objective of s. 15.2(6) of the Divorce Act -- to promote economic self-sufficiency -- may or may not be tiedto compensation for disadvantages caused by the marriage or its breakup.

A spouse’s lack of self-sufficiency may be related to foregoingcareer and educational opportunities because of the marriage.

But it may also arise from completely different sources, like thedisappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown)or, as in this case, ill-health. [67] In D.B.B. v D.M.B., 2017 SKCA 59, the Court of Appeal provides a synthesis of the concepts discussed above toassist in determining the issue of entitlement to spousal support on both a compensatory and a non-compensatory basis: [75] The purposes and objectives of a spousal support order, as conveyed in the Divorce Act, were discussed in James MacDonald &Ann Wilton, The 2017 Annotated Divorce Act (Toronto: Thomson Reuters, 2016) at 299: Spousal support is a remedy which serves two purposes in Canadian law.

Firstly, it provides compensation when a relationship hasincreased the earning power of one spouse at the expense of the other spouse. Secondly, it serves to relieve the financial need which aspouse experiences after a relationship. These two purposes animate the four objectives listed in s. 15.2(6) and s. 17(7) of the Divorce Act. In the Spousal Support AdvisoryGuidelines (“SSAG”), the strength of the compensatory and needs-based claims to spousal support both (

i) influence the amount chosenwithin the range, and (ii) help define the exceptional fact patterns in which the SSAG ranges are inappropriate. … [76] Courts keep the factors and objectives listed under s. 15.2 of the Divorce Act in mind when making spousal support orders.But, before it can determine the appropriate quantum and duration of spousal support, a court must first determine if there is a basis forentitlement, as the status of being married does not automatically entitle a spouse to support (see Moge v Moge, (SCC),[1992] 3 SCR 813 at 864 [Moge], and Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 44 [Bracklow]). a.

Is there a basis for entitlement to spousal support? [77] The Supreme Court of Canada in Bracklow established that “the law recognizes three conceptual grounds for entitlement tospousal support: (1) compensatory; (2) contractual; and (3) non-compensatory” (emphasis in original, at para 15). Here, there is nocontract, implied or otherwise, that would govern this spousal support dispute. Compensatory and non-compensatory entitlement must beassessed. i.

Compensatory support [78] The first two objectives in s. 15.2(6) of the Divorce Act primarily relate to the compensatory purpose of spousal support (seeMoge and Bracklow). When looking at compensation, the question facing a court is what is the spouse’s loss that the marriage ormarriage breakup caused that would not have been suffered but for the marriage (Bracklow at para 41). This inquiry must be made whilerecognizing that compensatory spousal support may also address any economic advantages enjoyed by the other spouse as a result of therecipient spouse’s efforts.

The British Columbia Court of Appeal in Chutter v Chutter, 2008 BCCA 507, 301 DLR (4th) 297 [Chutter],leave to appeal to SCC dismissed with costs, [2009] 1 SCR vi, stated the purpose of compensatory support as follows: [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from themarriage or the conferral of an economic advantage upon the other spouse.

The compensatory support principles are rooted in the“independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receivecompensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, atparas. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare andhousehold responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863;Bracklow, at para. 39).

In Moge, the Supreme Court of Canada observed, at 867-868: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being.

In such situations, spousal support maybe a way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or itsbreakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of therecipient spouse’s efforts.

As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage andmarriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred bythe spouse who makes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added). [79] In this case, the trial judge’s findings provide a compensatory basis for spousal support.

The trial judge considered the evidencerelating to the parties’ relationship and found that the marriage was more or less a traditional one, with the appellant performing the roleof the primary income earner while the respondent was the primary caregiver to the children. A review of the evidence supports the trial

judge’s findings. The parties’ relationship was of significant length. Although the respondent did work some part-time and full-time jobsthroughout the relationship, she dedicated much of her time to the care of the children and the family home. She had to make adjustmentsto her work life to accommodate and support her family and the appellant’s career. [80] The following passage from Schimelfenig v Schimelfenig, 2014 SKCA 77, [2014] 11 WWR 513, shows that similarcircumstances can provide the basis for compensatory spousal support: [37] Ryan-Froslie J. (as she then was) said the following in James v.

Belosowsky, 2012 SKQB 316, 301 Sask. R. 37: 161 The parties were married for 18 years prior to their separation in 2008. During that 18-year period, Danny worked full time forapproximately 20 months, took maternity leave for a period totalling three years, worked part time for approximately six years and was a“stay-at-home mom” for just over seven years. Danny sacrificed her career to stay at home and care for the parties’ children. It isuncontroverted that Randy agreed with that decision. Danny’s absence from the work force put her at an economic disadvantage whenthe marriage broke down.

She was unemployed and had been out of the work force for an extended period of time. The increases inincome she could have expected if she had been employed full time throughout the marriage were gone as was any claim to seniority,insurance, pension or other benefits. While I am satisfied that Danny’s inability to put away money for her retirement during themarriage is offset by the division of the family property, she has still suffered an economic disadvantage insofar as her ability to earn anincome is concerned.

She has established an entitlement to spousal support on a compensatory basis. [38] The trial judge should have considered Ms. Schimelfenig’s absence from the workforce for many years and the sacrifices shemade to stay at home and raise the children. This resulted in an economic disadvantage to Ms. Schimelfenig arising from the marriageand its breakdown similar to that set out in James v. Belosowsky. [81] Similarly, the trial judge’s findings show that the respondent made sacrifices in earning power during the course of therelationship.

These sacrifices allowed the appellant the freedom to fully pursue his career and build up his earning capacity and statusover several years. The respondent’s role in the relationship continues to affect her after separation, as she continues to experience a lossdue to having curtailed her employment. As acknowledged by the trial judge (and recognized by the appellant at trial), the respondent isa smart and capable individual, and had she been able to work outside the home, she would have likely developed her work skills andexperience and, as a result, her income-earning potential would have been enhanced.

I would conclude that, having regard to the standardof review, the trial judge made no error in her finding that the respondent is entitled to spousal support on a compensatory basis. ii. Non-compensatory support [82] Non-compensatory support primarily relates to the objectives found in ss. 15.2(6)(

c) and (

d) of the Divorce Act and is consideredan obligation owed arising from the marriage relationship itself (Bracklow). In Chutter, the British Columbia Court of Appeal discussedthe non-compensatory basis for entitlement recognized by the Supreme Court of Canada in Bracklow: [54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow,at para. 43). Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as aninterdependent union.

It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of thedisadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims tonarrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “meansand needs” approach to spousal support. [83] When a relationship breaks down, ss. 15.2(6)(

c) and (

d) dictate that the economic effects on the parties must be evaluated.

Todetermine if spousal support is warranted under a non-compensatory basis, “a court must consider all factors including the standard ofliving of the spouses before and after divorce, their means to satisfy living expenses and their ability to become self-sufficient after thebreakup of the marriage” (Russell v Russell (1999), (SK CA), 179 DLR (4th) 723 (Sask CA) at para 126).Additionally, case law shows that the standard of living pre- and post-separation is relevant to non-compensatory support entitlement.For example, the Supreme Court’s decision in Moge indicates that “great disparities in the standard of living that would be experiencedby spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by oneparty” (at 870). [84] Changes in the parties’ lifestyle are an important factor in the “means and needs” assessment.

The promotion of self-sufficiencyis an objective that must always be kept in mind. The concept of “needs” in this context goes beyond the basic necessities of life andvaries according to the circumstances of the parties (Chutter at para 55). As stated in Fisher v Fisher, 2008 ONCA 11, 288 DLR (4th)513 [Fisher]: [53] Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because aformer spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support areasonable standard of living.

It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain duringcohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), (ON CA), 1 O.R.(3d) 1 at 27-28, 75 D.L.R. (4th) 637 (C.A.).

Thus, a determination of self-sufficiency requires consideration of the parties’ present andpotential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party’s means, the parties’likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and anyother relevant factors. [Footnote omitted] [68] The specific objective of promoting self-sufficiency as set forth in the provision of the Act cited earlier, is alsodiscussed in Canadian Family Law and summarized as follows at pages 283-284: Sections 15.2(6)(

d) and 17(7)(

d) of the Divorce Act underline the responsibility of each spouse to become economically self-sufficientwithin a reasonable time to the extent that this is practicable. In determining what is practicable, regard must be had to all of the

circumstances, including the age and gender of the spouse, skills and education, or lack thereof, the opportunities for retraining, and the realistic prospect of the spouse being able to find not just a job, but one that enables the spouse to become self-sufficient. Although the court should not focus unduly on the recipient spouse’s obligation to make reasonable efforts to strive for economic self-sufficiency, given that this is only one of the four objectives of spousal support orders under

section 15.2(6) of the Divorce Act , it remains a legitimate concern insofar as it is practicable and may justify the court granting an order for periodic spousal support that is subject to review after a specified time. The ability of a court to impute income to a spouse recognizes that spouses seeking support must make reasonable efforts to support themselves. A dependent spouse, who can reasonably be expected to acquire economic self-sufficiency, cannot assert a lifetime support entitlement, unless there is some ongoing economic consequences of the marriage and its dissolution.

A dependent spouse, who can reasonably be expected to acquire economic self-sufficiency, cannot assert a lifetime support entitlement, unless there is some ongoing economic disadvantage resulting from the marriage or its breakdown that compels financial redress in order to promote an equitable sharing of the economic consequences of the marriage and its dissolution. A dependent spouse must be diligent in pursuing full-time employment and is not entitled to pursue a less economically advantageous career and look to the other spouse to make up the shortfall.

Where a spouse enters marriage with an education, a profession, and good health, and leaves it with these attributes intact, an order for spousal support may be inappropriate. [ 69 ] In the case at bar, there was evidence given of the parties’ relationship prior to the date they ultimately got married. The complete evidence given regarding when the parties were together and when they were apart prior to marriage was at best, confusing.

The parties were unable to agree when they were living together or apart and whether certain residential leases had been breached to allow them to perhaps separate or move to a relative’s house together. [ 70 ] However, it turns out I do not need to decide these relationship issues because the parties have indicated to the court, through counsel, that whatever their relationship was prior to the marriage is of no relevance to what is being decided with respect to the issue of spousal support.

It is therefore agreed between the parties that the duration of their spousal relationship is to be determined from the date of marriage through to the date of separation. [ 71 ] The petitioner seeks to have her entitlement to spousal support essentially determined on the basis that the parties have a young child, and therefore regardless of the length of the marriage there will be an ongoing obligation to pay spousal support to the parent primarily responsible for the raising of that child.

The petitioner refers the court to the discussion in the Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines , ([Ottawa]: Department of Justice, 2008) [ SSAG ] at para 8.5.5: 8.5.5 The problem of short marriages with young children Applying the two tests for duration under the with child support formula, the range for duration will be determined by whichever test produces the longer duration at both the lower and upper ends of the range. Where those bounds are determined by the length-of- marriage test, there seems to be little difficulty.

The range is the same as that under the without child support formula. A durational range of half the length of the marriage to the length of the marriage is intuitively understandable. The age-of-children test is not as simple. It is tied to the presence of children in the marriage, and the economic disadvantages that come with the obligation to care for children. Length of marriage alone no longer provides a measure of the duration of the spousal support obligation, as the case law increasingly demonstrates, even if some spouses think it should. The age-of-children test will usually apply in shorter marriages.

For shorter marriages with young children, this test will generate a long potential duration at the upper end of the range, one that can run as long as the date that the last or youngest child finishes high school, an outcome that raised some concerns during the feedback process.

For very short marriages with very young children, the lower end of the range under the age-of-children test, added in the revision process, has also raised some concerns. [Emphasis in original] [ 72 ] The petitioner also refers the court to Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines: The Revised User’s Guide ([Ottawa]: Department of Justice, 2016) [ SSAG Revised Guide ] for the SSAG on this topic at

chapter 8(n): (

n) Short marriages, young children (SSAG 8.5.5) This has now emerged as one of the major problems under the with child support formula. Lawyers argue for, and courts grant, a short time limit at the initial stage where the marriage is short and there are young children. The time limit on spousal support is typically fixed at the number of years of marriage or cohabitation, e.g. 4 years of support after a 4-year marriage, even though the recipient has the primary care of children aged 1 and 3. Such short time limits will only rarely be the right outcome at the initial hearing.

The vast majority of these orders should be “indefinite (duration not specified)”. Often a review will be required in these indefinite orders. Remember that there are two tests for duration under the with child support formula. Not just the length-of-marriage test, but also the age-of-children test. The second test is more important for shorter marriages, with a range from the time the youngest child commences full-time school to the upper end of the last child finishing high school. These are usually cases with strong compensatory claims.

The compensatory claim derives less from the past disadvantage during the marriage and much more from the future disadvantage for the parent with ongoing primary care of the children, as identified in s. 15.2(6) (

b) of the Divorce Act . • Many recent cases do make indefinite orders: Gartman v. Hancheroff , 2015 BCSC 160 ; Zivic v. Zivic , 2014 ONSC 7262 ; Jirh v. Jirh , 2014 BCSC 1973 ; Walker v. Maxwell , 2014 BCSC 2357 , upheld 2015 BCCA 282 ; H.F. v. M.H. , 2014 ONCJ 450 ; and Dupuis v. Desrosiers , 2013 ONCJ 720 . • But there remain too many cases that fix short initial time limits: Fias v. Souto , 2015 ONSC 880 ; Ramsay v. Ramsay , 2015 ONSC 196 ;

D.D.P. v. C.S.W. , 2014 ABCA 162 ; Okafor v. Bowyer-Okafor , 2014 ONSC 120 ; Chase v. Chase , 2013 ONSC 5335 ; Balayo v. Meadows , 2013 ONSC 5321 ; and P.M.D. v. D.M.C. , 2013 ONSC 5220 . One consequence of this case law is that the recipient may only request a short period of support, as in McKenzie v. Perestrelo , 2014 BCCA 161 (only 19 months of support, including retroactive support, wife claimed 23 months, after a 2-year marriage and a 2-year-old child, appeal by husband) and Yang v.

Ren , 2012 BCCA 164 (2-year marriage, shared custody, low-end SSAG , 2- year time-limit, wife only requested 3 years, appeal by husband). See also Javed v. Khan , 2013 ABCA 351 (6-year marriage, child 4, wife seeks 3 years’ support, trial judge grants 18 months, on appeal increased to 28 months). The imposition of short time limits in these cases reflects a failure of compensatory analysis. A more careful approach is needed. The most obvious area for such analysis would be the basic formula cases, where the recipient continues with a disproportionate share of child care going forward.

In the more complex custody cases, like shared, split, hybrid or step-child cases, there may be circumstances that warrant shorter time limits, especially the step-child cases.

A short time limit would normally mean a quick “bounce back” by the support recipient, someone with pre-existing skills who can find good employment reasonably quickly and become truly “self-sufficient. [ 73 ] Specifically with respect to short term marriages where young children are involved, the petitioner refers the court to the following decisions: D.G.G. v M.D.G. , 2018 NBQB 214 ; A.R. v M.E.R. , 2022 BCSC 509 ; Knezevich v Curtis , 2013 BCSC 432 ; Q. v Q. , 2012 ONSC 4250 . I find those decisions to be of little assistance to the decision to be made in this case.

While they each might deal with short duration marriages and with young children, the factual matrix in this case is markedly different from that which is present in those decisions. [ 74 ] I determine that I am required to consider the factors and objectives set forth in the Act together when determining the issue of entitlement to spousal support. In assessing these factors, I must consider the petitioner’s entitlement from both a compensatory and a non-compensatory analysis.

Part of that consideration is the role parenting plays in the parties’ economic analysis. [ 75 ] Here, the parties were in a short term marriage lasting a total of 34 months. During their relationship, aside from the issue of parenting, I am unable to determine that their functions or responsibilities changed in any way. The respondent continued his employment in the oil field.

The petitioner obtained an improved employment position with the Saskatchewan Crop Insurance Corporation and she has improved on that position by obtaining the auditor position. [ 76 ] The evidence appears to show that during their relationship the parties functioned in separate lives. There may be no question but that the petitioner has been principally responsible for caring for the child.

While there was evidence of potential interference in the petitioner’s work life due to having to provide such care, there is no indication at this stage that there has been any such interference or interruption. [ 77 ] The parties here earned quite disparate incomes. However, there is a paucity of evidence to suggest that, aside from the home, the petitioner was economically advantaged during the marriage by the significant income or that she was economically disadvantaged by the loss of access to the respondent’s income as a result of the breakdown of the marriage.

Surprisingly here, there is no evidence that the parties were involved economically and the petitioner thereby benefited from participating in the respondent’s level of income. [ 78 ] The evidence does disclose that the respondent was able to continue in his occupation while the petitioner remained at home to care for the child.

There is no indication that this situation was discussed but rather that the parties continued on with their lives both before and after the birth of the child. [ 79 ] The conclusion to be drawn from the entirety of the evidence is that, but for the financing of the new house, the parties operated financially independently. They essentially appear to have operated their lives as separate individuals. [ 80 ] As a result of the separation of their lives and finances, with one exception, I am unable to determine there is no economic disadvantage to the petitioner as a result of the marriage breakdown.

I am also unable to determine, again with one exception, that the petitioner received an economic advantage through the marriage. [ 81 ] There is evidence of economic hardship experienced by the petitioner as a result of the breakdown of the marriage in the financial difficulty experienced as a result of the respondent no longer participating in the payment of the mortgage on the house or the completion of construction of the house. This mortgage was an advantage secured by the petitioner during the marriage.

It was a corresponding disadvantage incurred by her due to the marriage breakdown. [ 82 ] As indicated, it appears there has also been economic hardship to the petitioner arising from the breakdown of the relationship relating to her ability to complete the work required to be done to the family home. They were able to purchase the family home on the strength of the respondent’s income in allowing for mortgage approval.

At the time of separation there were still a number of things to be done to finish the construction of the home. [ 83 ] The evidence discloses that the parties had agreed to construct the home on this parcel of land and that they had both committed to the payment of the mortgage and the construction costs. The respondent has abandoned his responsibility in this regard and the petitioner has been left to complete the project. This particular parcel of land has significant sentimental value to the petitioner and therefore cannot simply be disposed of. [ 84 ] The issue of self-sufficiency has been discussed above.

But for the issue of completion of the house construction and the mortgage, the petitioner is essentially economically self-sufficient and there is no suggestion that she will not continue to be so. [ 85 ] I now address the issue of childcare and the petitioner’s primary responsibility in this regard. The petitioner supports her claim to entitlement to spousal support principally on s. 15.2(6)(

b) of the Act . She argues that she has and will suffer financial consequences as a result of her being the primary caregiver for the child of the marriage. In her testimony, she indicated that if she is required to take time away from work to care for the child she will experience a loss of income for the time she is away. This is so,

it would appear, provided there is no program allowing her to be away from the office ill or otherwise. [ 86 ] There is no actual evidence of this being an issue, or this being expected to become an issue in the future, that will affect her employment or her ability to excel at her employment. It is, at this time, speculation attached to the reality that she is the primary caregiver for this child. There is no evidence suggesting the child has particular needs or requirements.

There is similarly no evidence that the petitioner’s career path will be affected by the childcare to be provided. [ 87 ] I accept the discussion in the SSAG and SSAG Revised Guide set forth above to the effect that a compensatory claim for spousal support may be grounded on the disadvantage either experienced, or to be experienced, by the parent who is primarily responsible for the care of the child or children. However, I do not determine that simply having such primary care, in and of itself, necessarily grounds an entitlement to such support.

It must be established on the evidence that such primary care has disadvantaged the spouse seeking the support. The evidence tendered at the trial of this matter does not allow for such a determination. [ 88 ] I do, however, determine that the petitioner is entitled to spousal support as a result of the economic hardship she has experienced due to the marriage breakdown and being, essentially, in the midst of the construction of the house.

While the evidence does not establish exactly what those ongoing costs might be, it seems relatively clear that she must bear those costs and mortgage expense on her own to render the house both up to the building code and to be complete. [ 89 ] Based on the incomes as determined, the SSAG establishes a range for monthly spousal support from low to high at $7,589.27, $8,847.90 and $10,106.22. The suggested duration for spousal support is 2 to 14 years. [ 90 ] The petitioner’s more recent financial statement (Exhibit P1, Tab 42) sets out her total expected annual expenses at the amount of $135,619.22.

While the respondent questioned certain of the expenses listed, I am unable to determine, based on the evidence at trial, that those expenses are not currently accurate. [ 91 ] At the indicated expense level, it appears a spousal support order at the low end of the available range, $7,589.27, will provide compensation to the petitioner both for her current expenses and certain of the remaining house construction expenses. [ 92 ] With respect to the duration, the petitioner has received spousal support payments pursuant to the Chow J. order for approximately two years.

Given my comments on the economic disadvantage incurred by the petitioner due to the breakdown of the marriage, I determine spousal support should be paid for a further three year period. This duration is set at the lower end of the applicable range in light of the discussion had concerning the basis for entitlement. 9. Division of family property (

i) Amendment of the pleadings [ 93 ] At the opening of the trial, the petitioner sought to amend the petition to advance an exemption claim with respect to the value of the land upon which the family home is situated. The respondent opposed the application on the basis that it was coming so late in the day and the matter was ready to proceed, in all other respects, to trial.

The respondent did not indicate that the proposed amendment came as a surprise nor that he would require an adjournment to deal adequately with the position sought to be taken by the petitioner. [ 94 ] The Queen’s Bench Rules provide as follows: Amending a pleading 3-72(1) A party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of a party, as follows: (

a) before a statement of defence is filed, any number of times without the Court’s permission; (

b) subject to subrule (2), in the case of an action proposed as a class action, before a statement of defence is filed; (

c) after a statement of defence is filed: (

i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just.

(2) A party in an action proposed as a class action may amend its pleading, including an amendment to add, remove, substitute or correct the name of a party: (

a) before an application for certification is filed, any number of times without the Court’s permission; and (

b) after an application for certification is filed: (

i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just.

(3) Parties shall make all amendments to their pleadings that are necessary to determine the real questions in issue between the parties.

(4) An amended pleading must be served on each of the other parties and filed within 8 days after:

(

a) the date of the order pursuant to subclause (1)(c)(ii); or (

b) the date of service of the last pleading of the other party on the party amending, unless the Court orders otherwise or the parties agreeotherwise.

(5) Unless the Court orders otherwise, a party may amend that party’s pleading before or after pleadings close if that amended pleadingis: (

a) a statement of defence in response to an amended statement of claim, an amended counterclaim or an amended third party claim; or (

b) a reply to an amended statement of defence, amended statement of defence to a counterclaim or amended statement of defence to anamended third party claim.

(6) A response pleading must be served on each of the other parties and filed: (

a) within 8 days after the date that the amended pleading mentioned in subrule (5) is served; or (

b) if the party has not yet pleaded, within the time the party then has to plead, if it is longer than in clause (a).

(7) If a party has pleaded in response to a pleading that is subsequently amended and served on that party and the party does not file andserve a further response to the amended pleading, the party is assumed to rely on the party’s unamended pleading in response to theamended pleading mentioned in subrule (5).

(8) Unless the Court orders otherwise, if a pleading is amended at a trial or hearing, the amended pleading does not need to be served andfiled. [95] An amendment to pleadings is to be granted to ensure the complete issues between the parties are adjudicatedprovided the party opposite is not prejudiced by the amendment sought. This includes granting amendments at the trial of an action toenable justice to be done between the parties.

See generally Krueger v Krueger (1997), (SK KB), 157 Sask R 297(QB). [96] Here, counsel for the petitioner advised the court that the prospect of an amendment had been raised at thepretrial conference and accordingly, the respondent was well aware of the claim that was going to be advanced and the nature of theevidence to be tendered in support of that claim.

Counsel advised the court that the amendment was not formally proceeded with until thetime of trial as she had been anticipating consent being given to the amendment due to the prior discussions held. [97] Counsel for the respondent was not counsel at the time of the pretrial conference, and accordingly was not aparty to the discussions indicated by counsel for the petitioner. However, there was no issue taken with the information relayed bycounsel for the petitioner nor was there any indication that either counsel or the respondent were taken by surprise as a result of theproposed amendment.

Rather, the position taken was simply that it was just too late in the day to now advance a substantive change towhat had been advanced throughout in the formal pleadings. [98] At the time the amendment application was made, the court reserved its decision. The parties proceeded to calltheir evidence on all of the matters in issue, including this claim for an exemption of the value of an asset in existence prior to thecommencement of the relationship. The petitioner was cross examined on this issue. The respondent gave evidence on this issue.

Therewas no request advanced to adjourn the matter to permit further preparation or gathering of evidence. [99] In the circumstances, and as a result of all of the foregoing, I determine it is appropriate in this case to grant therequested amendment. While the timing was immediately prior to the commencement of the trial, the respondent was aware that thisexemption claim was being advanced. During the trial the issue was the subject of both evidence in chief and cross examination. There isno suggestion there could be other or further evidence tendered.

There is further no suggestion the respondent required furtherpreparation time to adequately respond to the amended pleading. I am accordingly unable to see any prejudice to the respondent inallowing the amendment and permitting the issue to be canvassed as part of this trial.

The amendment is required to ensure all of theissues between the parties are determined judicially by this trial. (ii) How to determine the family property [100] The Court of Appeal in Benson v Benson (1994), (SK CA), 120 Sask R 17 (WL) (CA) set outthe methodology to be used to determine the appropriate division of family property: The Issues [18] Section 21(1) of the Act [The Matrimonial Property Act, SS 1979, c M-6.1, since repealed] requires that the "matrimonialproperty or its value," both as defined in s. 2, be distributed and distributed equally, subject only to the exceptions, exemptions, andequitable considerations mentioned elsewhere in the statute.

"Matrimonial property" is defined by s. 2(

h) to mean all manner of propertythat, "at the time an application is made under this Act," is owned by one or other of the spouses or in which either has an interest."Value," on the other hand, is defined by s. 2(

l) to mean the fair market value "at the time an application is made under this Act, or at thetime of adjudication, whichever the court thinks fit." [19] In the light of these and other provisions of the Act, the practice is to resolve these cases along the lines suggested by CarterL.J.Q.B. in Rathie v. Rathie (1980), (SK KB), 17 R.F.L. (2d) 265 (Sask. Q.B.), determining, first, the property and itsvalue subject to distribution. This ordinarily entails compiling an inventory of the property owned by the spouses as of the time of

application and establishing the net value of that property as of that time or the time of adjudication. Exceptions aside, this is the propertyand its value which is subject to distribution.

It is the practice to go on from there to next determine whether any of that property or itsvalue is exempt from distribution; then to determine whether any of it ought not to be distributed equally having regard for the equitableconsiderations mentioned in the statute; and, finally, to decide how the distribution should be effected. [101] The parties have largely agreed on what constitutes the family property together with the values of the variousitems of property.

There remains a few distinct property issues to resolve to allow for a final distribution in this regard. (iii) Exemption claim for acreage [102] The petitioner purchased the quarter

section of land on which the newly constructed house sits prior to themarriage. She bought this land from her father in 2017 with funds she received from her mother’s estate. The purchase price was$100,000. The petitioner testified that, in fact, when she purchased the land it had a value of $125,000 and that her father had thereforegifted her the amount of $25,000 to complete the purchase. The petitioner seeks an exemption for 50% of the value of the land being$62,500.

The reason for only claiming this 50% value was not explained during argument. [103] The first step is to resolve the issue of the value of this claimed exemption. The petitioner seeks to affix a valueof $125,000 to this land. There is no admissible evidence to establish this value. The value ascribed to the land at the time her fatheracquired it, at the time he transferred it to the petitioner, and at the time the parties transferred it into their joint names, has consistentlybeen $100,000.

To suggest it now had a value higher than that shown on the certificates of title would require a determination that atsome point an inaccurate affidavit of value had been made. The evidence does not support such a finding being made.

As a result, Idetermine, as at the date of the marriage, this land had a value of $100,000. [104] When claiming an unequal division of the family home, which includes this land, the petitioner is required tosatisfy the requirements of The Family Property Act, SS 1997, c F-6.3 [FPA] at s 22: Distribution of family home 22(1) Where a family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any taxliability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equallybetween the spouses, except where the court is satisfied that it would be: (

a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (

b) unfair and inequitable to the spouse who has custody of the children.

(2) Where clause (1)(

a) or (

b) applies, the court may: (

a) refuse to order any distribution; (

b) order that the entire family home or its value be vested in one spouse; or (

c) order any distribution that the court considers fair and equitable.

(3) Where there is more than one family home, the court may designate to which family home this

section applies, and any remainingfamily home is to be distributed in accordance with

section 21. [105] The Court of Appeal in Phillips v Phillips, 2010 SKCA 117, 362 Sask R 124 [Phillips] sets forth theconsiderations for such extraordinary circumstances to support an unequal division in this regard: [22] Having regard to the positions advanced, I turn to the provisions of ss. 21, 22 and 25. Subsection 21(1) empowers a court todistribute family property or its value equally between the spouses, subject to exceptions, exemptions and equitable considerationsmentioned in the Act.

Subsection 21(2) empowers a court to make, amongst other things, an unequal distribution of family property ifsatisfied, having regard to the factors raised in s. 21(3), that it would be unfair and inequitable to make an equal distribution. Subsection21(3)(

k) confirms that dissipation of family property is one of the factors to be considered. All three subsections are subject to theprovisions of s. 22 when the division of a family home is under consideration; and each of them is silent on whether the limitation in s.28 applies, and if it does, then in what circumstances. [23]

Section 22 specifically deals with the distribution of a family home. Thus, the maxims of expressio unius est exclusio alterius [toexpress one thing is to exclude another] and generalia specialibus non derogant [a general statement cannot override a specificstatement] contemplate the specific provisions of s. 22 overriding the provisions of s. 21 whenever a conflict or ambiguity arises betweenthe two sections.

Of particular significance is s. 22(1) which directs the court to distribute the family home equally between the spouses,except if it would be "unfair and inequitable to do so, having regard only to any extraordinary circumstance." In so doing, theLegislature created a distinct procedure with a narrower and more onerous threshold to be met by a spouse seeking an unequaldistribution of the family home than the one applicable to an unequal distribution of other family property pursuant to s. 21(1) and (2). [24] In Rudy v. Rudy (1983), (SK KB), 22 Sask.

R. 261 (Q.B.), Vancise J., as he then was, articulated thedifference between factors mentioned in s. 21(2)(

a) to (q) (now 21(3)(

a) to (q)) and an extraordinary circumstance for the purposes of s.22(1)(

a) of The Matrimonial Property Act,

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