RYAN LOUIS DANIEL PETITIONER - v. -, 2022 SKKB 279

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 279 Date: 2022 12 21 Docket: DIV-RG-00354-2019 Judicial Centre : Regina, Family Law Division BETWEEN: RYAN LOUIS DANIEL PETITIONER - and - TAMMIE MARIE DANIEL RESPONDENT Counsel: Zina L.B. Scott for the petitioner David J. Flett for the respondent FIAT BROWN J. DECEMBER 21, 2022 Introduction [ 1 ] There are two applications before the court in this matter.

The first is Tammie to have child support set to coordinate with s. 3 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ] and to have s. 7 costs awarded to her. [ 2 ] The second is Ryan’s for a change to the parenting arrangements with respect to the child of the parties, Ayva, born December 14, 2011. A noteworthy variation on this application’s theme is that it has been brought by way of

summary judgment application as opposed to notice of application. [ 3 ] The parenting situation was that of primary residence being with Tammie for some time including following an interim order of June 15, 2020. The arrangement was as follows: 1. The parties will continue to have joint custody of Ayva Arlene Daniel, born December 14, 2011; 2. The parties will have parenting time with Ayva as follows: (

a) Ryan will parent Ayva during his first week off from work each month from Tuesday at 3:30 p.m. or after school if that is earlier to Thursday at 3:30 p.m. or until Ayva is picked up from school by Tammie on Thursday as soon as it is over if that is earlier; (

b) Ryan will parent Ayva during his second week off from work each month from Wednesday at 3:30 p.m. to Tuesday at 3:30 p.m. or until Ayva is picked up from school by Tammie on Tuesday as soon as it is over if that is earlier;

(

c) During the two weeks of the month when Ryan is working he will parent Ayva from 5:00 p.m. on Monday until 3:30 on Wednesday or until Ayva is picked up from school by Tammie on Wednesday as soon as it is over if that is earlier on days when Ryan has back to back night shifts on Monday and Tuesday. 3.

Nothing precludes the parties from agreeing in writing to make changes to the parenting arrangement, upon at least one weeks’ notice, however, in the absence of agreement or Order of this Court, the parenting arrangement will be in accordance with paragraph 2. [ 4 ] This continued until an interspousal contract and separation agreement was executed by the parties in January 2021 [ISA]. Each party was fully represented and received independent legal advice. The ISA had the following provisions: 14.

Subject to further written agreement of the Parties, the custody and parenting arrangement for Ayva shall continue to be as ordered by the Court in the Order of Mr. Justice Brown issued on July 10, 2020. a. The Parties will continue to have joint custody of Ayva; b. The Parties will have parenting time with Ayva as follows: i. Ryan will parent Ayva during his first week off from work each month from Tuesday at 3:30 p.m. or after school if that is earlier, to Thursday at 3:30 p.m., or until Ayva is picked up from school by Tammie on Thursday as soon as it is over, if that is earlier; ii.

Ryan will parent Ayva during his second week off from work each month from Wednesday at 3:30 p.m. to Tuesday at 3:30 p.m., or until Avya is picked up from school by Tammie on Tuesday as soon as it is over, if that is earlier; and iii. During the two weeks of the month when Ryan is working, he shall parent Ayva from 5:00 p.m. on Monday until 3:30 on Wednesday, or until Ayva is picked up from school by Tammie on Wednesday as soon as it is over, if that is earlier. This parenting time shall occur on days when Tammie has back-to-back night shifts on Monday and Tuesday. c.

Nothing precludes the Parties from agreeing in writing to make changes to the parenting arrangement, upon at least one week’s notice, however, in the absence of agreement or Order, the parenting arrangement will be in accordance with this

section of this Agreement. 15. Parenting time over Christmas, school holidays and birthdays shall be shared equally by the Parties and will be arranged and agreed to by the Parties with regard to the Parties’ work schedules and Avya’s schedule. 16. Neither Party shall remove Ayva from the country of Canada without the express prior written consent of the other Party. 17. Ryan shall pay child support to Tammie pursuant to

section 3 of the Federal Child Support Guidelines (“ Guidelines ”) in the amount of $700.00 per month, commencing on the first day of the month following execution of this Agreement and continuing on the first day of each month thereafter until Ayva is no longer a child of the marriage within the meaning of the Divorce Act , or until further agreement by the Parties or order of the Court. Although the Parties acknowledge that an arrangement with respect to child support can be reviewed by the Court, it is the Parties’ intention to be bound by this Agreement. The Parties agree that reasonable arrangements have been made for the support of Ayva pursuant to

section 15.1(5) and 15.1(8) of the Divorce Act . 18. With respect to expenses incurred for Ayva as described in

section 7 of the Guidelines , Ryan shall be responsible to pay 75% of such expenses and Tammie shall be responsible to pay 25% of such expenses up to a maximum amount of $1,000.00 annually for the combined total cost of

section 7 expenses. Any

section 7 expenses over and above $1,000.00 shall be equally paid by each Party. There shall be no presumption that a

section 7 expense shall be shared if one Party incurs an expense without the prior written agreement of the other. The Party making payment for a

section 7 expense to a third party shall promptly provide a receipt or other documentation proving the expense to the other Party, and that Party shall then reimburse the appropriate amount within 30 days. If a receipt or other documentation proving the expense is not provided, the Party incurring the expense shall be solely responsible for payment and indemnify the other Party. Failing an agreement on whether a particular expense is reasonable and shareable pursuant to

section 7 of the Guidelines , either may seek a ruling from the Court. 19. The Parties agree that Tammie’s RBC RESP contained $6,000.00 at the start of their spousal relationship and $17,050 at the date of the Petition. As such, the Parties agree that $5,525.00, that being 50% of the growth of the RBC RESP during the spousal relationship, shall continue to be held for the benefit of Ayva. The Parties agree that although the RBC RESP is in Tammie’s sole name, Tammie will seek Ryan’s written consent to the use of funds from the RESP for Ayva prior to any withdrawals.

Ryan agrees that his consent will not be unreasonably withheld. [ 5 ] After executing the ISA, Tammie submitted a consent application for divorce in April 2022. Her affidavit in support said at para. 11: 11. I am claiming no remedy with respect to the children because; the petitioner and I entered into a interspousal contract and separation agreement, copy of which is attached as exhibit “A” to this affidavit, that provides for the parenting, decision making and financial needs to Ayva. 12.

The present and proposed arrangements with respect to parenting of any or all children are as follows: the petitioner and I are in a shared parenting arrangement with Ayva. [ 6 ] The divorce judgment was not granted as income information of the parties was not provided with the application. Upon the divorce judgment application being rejected for such omission, Tammie then determined that if there needed to be full financial information provided to obtain the divorce, she would seek to have the s. 3 payments reflect the actual income that Ryan was making.

In essence Tammie saw the $700 per month agreed to in the ISA as being lower than what he ought to be paying based on s. 3 and what she believed was his actual income. Her present contention is that there is not in fact a shared parenting situation in effect, despite her swearing to that being the case in March 2022.

[7] Thus, rather than resubmit the application for divorce with current income information, Tammie brought anapplication for

summary judgment imposing the s. 3 amounts on Ryan according to what she believed was his actual income, not theamount identified in paras. 14-17 of the ISA. One additional aspect of this worth noting is her contention that Ryan makes $13,000 inoff-the-books income from the delivery of newspapers in Weyburn. She submits that such amount ought to be added to the amount onwhich Ryan’s child support obligation is calculated. [8] In response, Ryan brought his own

summary judgment application which he submitted during argument wasessentially to make the point to the court that he prefers to leave the ISA as is, but, if some aspect of it is going to be changed, then hewant some changes in relation to parenting too, namely he desired for 50/50 shared parenting to be ordered.

It is clear that such a changewould also affect his child support obligations. [9] The initial question, therefore, is what at law justifies court alteration of a valid interspousal agreement as thatcontains: 1) child support payments which are not reflective of s. 3 table amounts; and 2) parenting and access provisions. ISSUES 1. Should the terms of the ISA control the situation going forward respecting: 1) child support; and 2) parenting? 2. If not, what is the appropriate order regarding these two features of the current arrangement as between the parties?

The Law [10] As a starting point, there is authority that ordering less than the Guidelines amount may be appropriate inspecific circumstances.

In Prescesky v Prescesky, 2015 SKCA 111, 467 Sask R 180, the Court of Appeal stated it thus: [68] The authority of a judge to accept an amount less than the Guidelines amount must be considered in light of the judicialobligations imposed by s. 17(6.4) and (6.5) of the Divorce Act [RSC 1985, c 3 (2d Supp)], which read as follows: Consent orders 17(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined inaccordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been madefor the support of the child to whom the order relates.

Reasonable arrangements 17(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child,the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solelybecause the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance withthe applicable guidelines. [69] Having regard for these provisions and the Guidelines, Turcotte J. concluded the following: [39] ...

Where a child support order has been granted by the Court with the consent of the spouses, but in the absence of financialinformation to have allowed the Court the opportunity to assess the amount of a spouse's income and the appropriateness of the childsupport proposed under the consent order, such an order will be presumptively valid but nevertheless subject to future review andprospective or retroactive variation in appropriate circumstances. (Prescesky) [70] In support of this proposition, he relied on Jane Doe v.

Alberta 2007 ABCA 50 at paras 25-26, 278 DLR (4th) 1 [Jane Doe],leave denied, [2007 CarswellAlta 941 (SCC)] , which in turn relies on such authorities as Richardson v Richardson, (SCC), [1987] 1 SCR 857: "A spouse cannot barter away his or her child's right to support in a settlement agreement.The court is always free to intervene and determine the appropriate level of support for the child" (p. 869). [71] Mr. Prescesky distinguishes Jane Doe and the authorities on the basis that — in this case — the parties embodiedtheir agreement in the 2006 Consent Child Support Order.

Given the nature of the interests at stake, being the interests of the children ina proper level of support, it is a distinction without a difference. [72] In short, I conclude that Turcotte J. did not err by concluding he had the authority to vary the 2011 Variation Order and to orderMr.

Prescesky to pay arrears arising before it and compelling him to pay the Guidelines amount for the period following it. [11] In relation to the court’s authority to alter agreements, the recent decision of Caufield v Wong, 2017 ABCA 288, 1 RFL (8th) 82 is of interest: 6 While child support is the right of the child and not of the parents, the Family Law Act, SA 2003, c F-4.5 does not preclude parentsfrom entering into agreements, including those embraced in consent orders, quantifying, limiting or forfeiting child support in exchangefor other consideration; see Jane Doe v.

Alberta, 2005 ABQB 885 para 28, aff'd 2007 ABCA 50, leave to appeal to SCC refused, [2007]SCCA No 211. That is what the chambers judge concluded happened here. He expressly found that the father had given the motherbenefits in order to establish an environment that would end conflict through the mechanism of this consent order. While he alsocommented somewhat extensively on her misconduct, that misconduct was not the sole reason for dismissing her application.

Themother took the benefit of not having to pay child support at all after the consent order was signed and during a period when the fatherhad full residential care of the children, a situation that could have continued for more than six years.

[ 12 ] In Howard v Howard , 2020 ABQB 292 , 15 Alta LR (7 th ) 368, it was stated this way: 62 While it was held in Goulding [2014 ABCA 138] that child support agreements are "evidence of the mutual intentions and expectations of each party", they must still be "adequate in accordance with the law" (at para 27) to withstand judicial interference: "such agreements always remain subject to the jurisdiction of the court to uphold the best interests of the child and ensure adequate payment of support." ( Goulding at para 26) 63 As stated in Jane Doe v. Alberta , 2007 ABCA 50 (Alta.

C.A.), at para 26 : "no agreement between the parents can oust the jurisdiction of the court to pronounce upon parental rights and obligations and to depart from written agreements about child support." 64 Any agreements, formal or informal, must be viewed in light of the Court's "over-arching duty to ensure adequate support is provided to the children" ( Brear [2019 ABCA 419] at para 20). Support agreements "always remain subject to the jurisdiction of the court to uphold the best interests of the child and to ensure adequate payment of support.

Parents cannot contract out of the child's right to adequate support" ( Brear at para 20) 65 At para 78, S. (D.B.) [2006 SCC 37 , [2006] 2 SCR 231 ] says: . . . [i]n most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that a smaller amount of child support may be explained by a larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents.

However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order a retroactive award so long as the applicable statutory regime permits it . . . 66 See also the Guidelines themselves: 15(1) Subject to subsection (2), a parent's or spouse's annual income is determined by the court in accordance with sections 16 to 20.

(2) Where both parents or spouses agree in writing on the annual income of a parent or spouse, the court may consider that amount to be the parent's or spouse's income for the purposes of these guidelines if the court thinks that the amount is reasonable having regard to the income information provided under

section 21. [ 13 ] In Emslie v Emslie , 2015 ABQB 581 at para 44 the court noted the balance that is required as between the underlying premise to child support and the potential for an amount different than s. 3 to be found acceptable: 44 Child support is the right of the child.

While the Court should pay attention to agreements made between the parties and encourage the parties to settle their differences between them, their agreements regarding child support are ultimately reviewable by the Court for reasonableness and compliance with the objectives of the Child Support Guidelines. [ 14 ] The Saskatchewan Court of Appeal in Hnidy v Hnidy , 2017 SKCA 44 , 414 DLR (4 th ) 87 reviewed the case law and noted that deference is to be given to agreements: [99] The decisions in Goulding [2014 ABCA 138] and Koback [2013 SKCA 91 , 423 Sask R 35 ] underscore the deference that is paid to arrangements freely negotiated by the parents and provide contour for the analysis in those cases where a court has before it a support claim based solely on contract.

However, neither Goulding nor Koback addressed a situation where an application based on an agreement has been brought after the child has lost statutory status as a dependent child. It is necessary to consider whether there is there a jurisdictional constraint that precludes a contractual claim in these circumstances. [100] The principles outlined in Goulding had considerable bearing on a later decision ( Meyer [2014 ONSC 6001 ]).

The Meyer decision squarely confronted the issue of whether the jurisdictional limit recognized in D.B.S. [ D.B.S. v S.R.G ; L.J.W. v T.A.R. ; Henry v Henry ; Hiemstra v Hiemstra , 2006 SCC 37 , [2006] 2 SCR 231 ] applied in circumstances where an agreement between the parties required that child support be reviewed and adjusted. [101] A key aspect of Goulding was the recognition that child support obligations that are rooted in contract must be viewed through a different lens; and that the courts consequently have a duty to enforce contractual obligations and give weight to the terms of child support agreements.

The Meyer decision approached the analysis from that particular perspective. [ 15 ] It is clear from the above comments that in certain circumstances even though a retroactive claim for support pursuant to the legislation may fail, it is nonetheless appropriate to make an order to enforce arrears which may have arisen pursuant to an agreement between the parties. [ 16 ] In Granquist v Lemond , 2022 SKCA 90 [ Granquist ], the Court of Appeal recently said: [18] … s. 15.1(5) . . . speaks to the possibility of child support being awarded in something different than the guideline amount.

It reads as follows: 15.1(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special

provisions. [19] To secure the benefit of s. 15.1(5), Mr. Lemond has to meet two requirements. First, he must establish there is a special provision in the Agreement that directly or indirectly benefits the child. (Mr. Lemond does not suggest that special provisions have otherwise been made for the benefit of the child.) Second, Mr. Lemond must also satisfy the Court that it would be inequitable to apply the Federal Child Support Guidelines . See: Hanson [2019 SKCA 102, 32 RFL (8 th ) 257] at para 20. [ 17 ] The first task, as set by Granquist, is to read and interpret the agreement: B.

How should the Agreement be interpreted? [12] To set the stage for an assessment of the arguments advanced by Ms. Granquist and Mr. Lemond in this Court, it is necessary to look somewhat more closely at the Agreement. ... [16] In my view, the best and proper

interpretation of the Agreement is the one that tracks its terms: (

a) Ms. Granquist has sole custody of the child but no child support of any kind is payable "at this time" (article 4.1); (

b) Mr. Lemond waives his right to any equalization payment from Ms. Granquist "at this time" (article 10.1); and (

c) if Ms. Granquist seeks child support, regardless of when that might be, the $56,772 amount of the equalization payment will be set off against such amounts as Mr. Lemond is required to pay on a go forward basis (articles 4.2 and 10.2). Put in simple terms, the $56,772 is not a prepayment of child support.

It is something that can be set off against child support should such support ever become payable. [ 18 ] Given the agreement was never turned into an order, Granquist makes clear that establishing a material change of circumstances is not required and therefore is not the proper approach: [18] I agree that the Chambers judge examined Ms. Granquist's application through the wrong lens. There was no child support order in place and hence no requirement to inquire whether there had been a change of circumstances as per s. 17(4) of the Divorce Act [RSC 1985, c 3 (2d Supp)] .

The Chambers judge should have approached the application by way of s. 15.1.

Section 15.1(1) provides that a court can make an order requiring a spouse to pay child support and s. 15.1(3) provides that, if such an order is made, it is to be in accordance with the applicable guidelines. That would have taken the Chambers judge to s. 15.1(5) which speaks to the possibility of child support being awarded in something different than the guideline amount. … [19] To secure the benefit of s. 15.1(5), Mr. Lemond has to meet two requirements. First, he must establish there is a special provision in the Agreement that directly or indirectly benefits the child. (Mr.

Lemond does not suggest that special provisions have otherwise been made for the benefit of the child.) Second, Mr. Lemond must also satisfy the Court that it would be inequitable to apply the Federal Child Support Guidelines . See: Hanson at para 20. [ 19 ] In applying the benefit test, the Court of Appeal accepted the following indicia:

i) they are unusual or out of the ordinary in the sense they do not feature in determining the amount of maintenance in accordance with the Guidelines ; ii) they serve to contribute to the maintenance of the child; and iii) they serve in effect to partially discharge the parent's obligation to provide for the maintenance of the child and tend, therefore, to reduce the need, at least in part, for the amount of maintenance called for by the Guidelines . [ 20 ] I will therefore begin by applying part one of the test set out in Granquist , “The best and proper

interpretation of the Agreement” being “the one that tracks its terms” (para. 16). In this case those terms indicate: (

a) Tammie and Ryan have joint custody of Ayva. (

b) Ryan was to parent Ayva during his first week off from work each month from Tuesday at 3:30 p.m. or after school if that is earlier to Thursday at 3:30 p.m. or until Ayva is picked up from school by Tammie on Thursday as soon as it is over, if that is earlier as well as during his second week off from work each month from Wednesday at 3:30 p.m. to Tuesday at 3:30 p.m. or until Ayva is picked up from school by Tammie on Tuesday as soon as it is over, if that is earlier.

Ryan was to parent Ayva during the two weeks of the month when he was working from 5:00 p.m. on Monday until 3:30 p.m. on Wednesday or until Ayva is picked up from school by Tammie on Wednesday as soon as it is over, if that is earlier. Christmas, school holidays and birthdays were to be shared equally, with regard to the parties’ work schedules and Ayva’s schedule. (

c) Child support was payable "pursuant to

section 3 of the Federal Child Support Guidelines in the amount of $700 per month” until Ayva is no longer a child of the marriage or further agreement or order of the court. The parties acknowledge that “an arrangement with respect to child support can be reviewed by the Court” but it was “the parties’ intention to be bound by this agreement”. This was further described as being agreed by the parties “that reasonable arrangements have been made for the support of Ayva pursuant to

section 15.1(5) and 15.1(8) of the Divorce Act ." (para. 17 of the ISA). (

d) Ryan was responsible to pay 75% of the s. 7 expenses and Tammie 25% to a maximum amount of $1,000, then 50/50 after that. (

e) Family property was divided and extensively described in the ISA. No reference was made to any additional amount going to either party in order to justify a different amount of child support. No waiver of anyone’s right to any equalization payment or the acceptance of a smaller share is included. [ 21 ] I observe summarily at this point that through only consideration of the support provisions of the ISA there do

not seem to be any particular concessions gained by Tammie or conceded by Ryan which make the static number, $700, appearreasonable. However, the considerations should extend to the relevant circumstances that may also be part of the reason for the amountselected. What might be gained or bargained aside from what is exclusively in the agreement may have a place in the inquiry and shouldnot be overlooked out of hand.

That is the case here, as will become clear below. [22] The second part of the test in Granquist is further identified as follows: [23] The next question, therefore, is whether it would be inequitable to order Mr. Lemond to pay s. 3 child support and s. 7 expensesas per Ms. Granquist's application.

Justice Wilkinson, in Epp v Robertson (1998), (SK KB), 171 Sask R 315(QB) [Epp], as endorsed by this Court in Hanson, said this question should be approached as follows: [20] Once a finding has been made that special provisions exist, it must be determined whether, given those provisions, theamount of child support determined under the Guidelines would be inequitable. As stated in Wang v. Wang, (BC SC),[1997] B.C.J. No. 1678 (QL) (B.C.S.C.) and Eilers v. Eilers, [1998] B.C.J.

No. 1021 (QL) (B.C.S.C.), the term "inequitable" relates tothe parties and requires a consideration of both the circumstances of the parties giving rise to the order or agreement and theircircumstances at the time of the application. Such an

interpretation recognizes the give and take of settlement discussions and theinterrelationship of terms which will be reflected in a settlement agreement or order. As Cameron J.A. observed in Peterson [2019 SKCA 76, 30 RFL (8th) 341] at paragraph 46, inequitable "basically means an amountwhich the court considers unfair having regard for the objectives of the law and the circumstances of the situation". [23] The task at hand therefore necessitates a finding in relation to Ryan’s income.

It also necessitates a finding inrelation to shared parenting as, if that has occurred, then a finding of income for both parties is required. In an evaluation of whether it isinequitable to find that Ryan should pay only $700 per month, Tammie’s income is therefore also relevant. The Parties’ Income [24] Tammie’s income in 2021 was $44,506.78 which was less than normal as she was off work for a surgery thatyear. Ryan’s 2021 income tax return shows line 15000 income of $103,471.87.

I find that he also made a further $8,000 in newspaperdeliveries in Weyburn given the nature and timing of the deliveries in evidence. For Ryan this means there is a total income available forsupport calculation in the amount of $111,471.87. [25] Thus, if Ayva lives primarily with Tammie, Ryan would be required to pay $955 per month in s. 3 support. Ifthe arrangement is in fact shared parenting, then it changes to Ryan paying Tammie $596 as the set-off.

Discussion [26] There is little if anything showing a particular benefit to Tammie or Ayva regarding a reduction to $700 from theexpected $955 which s. 3 would require of Ryan if shared parenting is not occurring here. While there are recitations regarding theamounts and approaches and Tammie did swear to some type of benefit in her application for divorce, on its face it is in short supply.This is not a situation of a family property right being foregone by one party to address the shortfall of child support received by theother.

There is no comfort of a lump sum-certain being set aside to make collection and enforcement an unnecessary consideration, atleast for a time. [27] As noted there is no need to find a material change of circumstances in this scenario. It is nonetheless not to beoverlooked that the agreement is newly minted – executed but 22 months ago. If it were two or three months ago one might haveadditional hesitation in delving into the situation as deeply as I do here. However, here the time which has past is not, by itself at least,sufficient to negate the effect of Granquist.

The approach to what is inequitable is adopted as follows in Granquist: [23] … As Cameron J.A. observed in Peterson at paragraph 46, inequitable “basically means an amount which the court considers unfair havingregard for the objectives of the law and the circumstances of the situation”. [28] The parenting situation should also be considered both with regard to what might shine a light on its currentreality and also in relation to what was agreed to via the ISA.

Kemp v Kemp, 2021 SKCA 31 notes that considering the interspousalagreement as well as other relevant indicia in addition to the affidavits filed is appropriate. [29] I find that when all the times agreed to are considered, Ryan does parent in the range of 42-43% of the time.Taken alone, his 28 day rotation may, depending on certain methods of calculating, be slightly under that. However when the 50/50sharing of school holidays is considered, it surpasses the 40% mark.

I find that shared parenting does exist by virtue of the terms agreedto in the ISA on an annual basis. [30] The result is that Ryan has agreed to parent 42% of the time (or so) and has agreed not to use a set-off butinstead pay $700 per month. Interestingly not only did Tammie aver to there being shared parenting in her application for divorce but shealso averred to the $700 being of benefit to her and Ayva by saying the terms provide for the parenting, decision making and financialneeds for Ayva.

While Tammie now says there has not been shared parenting, it appears in fact she was correct the first time and therehas been. At the very least the ISA, when calculated over a year, provides for shared parenting albeit not 50/50. [31] The $700 per month agreed to is situated in between the amount Ryan would have to pay if it was not a shared

parenting situation ($955) and what he would have to pay as the set-off if there were ($596). [ 32 ] Thus, in all the circumstances, as I find them to be, $700 does represent a benefit to Ayva and to Tammie. These parties have had more than their share of conflict and enmity including returns to court. The $700 amount eliminates additional conflict regarding whether shared parenting amounts are in fact achieved each 28-day cycle or over a different time period such as a year, which I find the correct one to view here.

It also eliminates the accompanying and unfortunate tussle that often accompanies the 40% “shared parenting cliff” that goes with such a time-based support conclusion. The fixed amount which covers either scenario and lands in the middle is, ultimately, and in these unique circumstances, of benefit to the parties and most importantly of benefit to Ayva. [ 33 ] I therefore find that the $700 amount in the ISA recognizes the give and take of settlement discussions and the interrelationship of terms which are reflected in the settlement agreement in the form of the ISA here.

I find that the agreed upon $700 amount is a fair amount having regard for the objectives of the law and the circumstances of the situation

Section 7 [ 34 ] I find Tammie has made her claim out for payment of s. 7 expenses. Ryan is to pay her $378. Parenting [ 35 ] Ryan desires this to change the arrangement to full shared parenting. He avers that the current arrangement was crafted when his work was considerably different; he had two weeks on and then two weeks off. Now he works a regular week shift each week. In such a situation the court always retains the authority to make orders in the best interests of children, here Ayva.

While the ISA is one factor and it has its place, it will not override a situation where Ayva’s best interests are not being achieved by its terms. [ 36 ] Justice Goebel in D.A. v T.A., 2017 SKQB 285 , 100 RFL (7 th ) 32, set out the appropriate approach to interspousal agreements in circumstances similar to this. In essence, while parties are encouraged to resolve their own disputes, their agreement cannot limit the jurisdiction of the court to make an order in the best interests of children.

This reasoning has found support in numerous authorities including Sheasby v Yurchuk, 2019 SKQB 74 . [ 37 ] I have not seen in the materials provided how Ayva will benefit from changing the

schedule in terms of each parents’ duration of parenting time. I do agree that if Ryan has weekends off each week it is reasonable that he would have half of the weekend time and that Ayva would benefit from that as she could spend more quality time with Ryan than when he is at work. [ 38 ] Thus I will not alter the number of days in each four week cycle or on school holidays but will order that the parties work out a reallocation of Ryan’s time parenting Ayva such that two of the present weekday overnights become overnights on one of the four weekends in the four week/28 day schedule.

Otherwise no changes are to be made in the parenting schedule. [ 39 ] As with the interim order, the best interests of Ayva is what must govern. That is the consideration against which any custody/access and/or parenting decision must be measured. I find the Ayva’ s best interests in this situation are served by Ryan having the same amount of time but that two of the weekday overnights become a Friday and Saturday overnight instead. Divorce [ 40 ] The divorce judgment may now issue as submitted. Conclusion [ 41 ] I find that there was, at the time of the signing of the ISA, a certain amount of ambiguity.

This was both in relation to whether there was a shared parenting scenario and what Ryan’s income might be, particularly in the future. I find that the best approach to the calculation of Ryan’s parenting time puts it over 40% on an annual basis. I am in agreement with Tammie’s statement accompanying the application for divorce that it was in fact “shared parenting”. [ 42 ] In relation to Ryan’s income, when his newspaper delivery income is combined with his employment income, it totals $111,471. Tammie’s is $44,506.

There is in the circumstances when considered as a whole, a special provision in the ISA which indirectly benefits Ayva through the identification of $700 as the monthly child support amount Ryan will pay to Tammie. In the circumstances, including that shared parenting is occurring through a calculation of the time identified in the ISA; that Tammie swore that to be the case somewhat recently; that her income has fluctuated of late; and that $700 reduces what is likely to be additional conflict and expense, it is most equitable to use the $700 rather than either the s. 3 amount or the set-off amount.

For these parties, given the past, it is important that the ISA govern. It meets the legal requirements to do so including upon examination as per the s. 15 of the Divorce Act , RSC 1985, c 3 (2d Supp) as noted by the Granquist criteria. [ 43 ] That is not to say if incomes spread considerably further or circumstances change it is not appropriate to apply for calculation or

interpretation of the ISA. This determination is that it is not appropriate to deviate at this point. In the words of Granquist , it is inequitable to now, at this juncture, open up the ISA given its special provisions and achievement of equity for these parties and most importantly Ayva, as those circumstances presently exist. Costs [ 44 ] As there is no change to the ISA, which was Ryan’s desire throughout, Tammie is to pay Ryan’s costs in the amount of $850.

J. D.J. BROWN