C.S.W. PETITIONER - v. -, 2023 SKKB 182

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 182 Date: 20 23 09 07 Docket: FLD-MJ-00017-2022 Judicial Centre: Moose Jaw, Family Law Division BETWEEN: C.S.W. PETITIONER - and - T.D.S. RESPONDENT Counsel: Timothy Hansen for the petitioner T.D.S. self-represented respondent JUDGMENT RICHMOND J. September 7, 202 3 [ 1 ] The petitioner, C.W. and the respondent, T.D.W., (now T.D.S.) were married in September 2008. T. had a child from a previous relationship, J.W., born [REDACTED]. J. was an infant when C. and T. met. During the relationship, they had a child together, O. W., born [REDACTED].

Arrears and ongoing child support are in issue. Procedural history [ 2 ] The parties separated February 1, 2016. A dispute over parenting resulted in Megaw J. ordering an interim shared parenting arrangement in October 2016. In January 2018, C. sought an order severing the divorce from the other matters in issue. T. opposed the application. C. was paying $135 per month in set-off child support but no written agreement or court order existed. There was also a paucity of financial information on file from both parties.

Justice Leurer (as he then was) refused to grant the divorce as he was not satisfied that, “reasonable arrangements have been made for the support of the children of the marriage, having regard to the applicable guidelines.” in accordance with ss. 11(1) (

b) of the Divorce Act , RSC 1985, c 3 (2d Supp). [ 3 ] On February 8, 2018, the parties proceeded to a pre-trial and settled all matters in issue between them. A consent order respecting child support was issued after pre-trial which set the amount of the parties’ incomes, the amount of child support to be paid for s. 3 support and provided the following for s. 7 expenses: 4.

The parties shall share s.7 special and extraordinary expenses and agreed extra-curricular activity costs proportionately, with the Petitioner to be responsible for 73% and the Respondent to be responsible for 27% of the after-tax cost of such expenses. The party bearing the s.7 expense costs in the first instance shall provide the receipts to the other party and payments to reconcile such expenses shall be made within 30 days of being provided the receipt. [ 4 ] In addition, the parties agreed to exchange income information by May 30 of each year and adjust s. 3 and s. 7 support accordingly.

They also agreed to an amount for the arrears at $2,200 and agreed that upon payment of the sum of $2,200, the arrears would be expunged. [ 5 ] In July 2021, C. brought an application to vary parenting to allow O. to live primarily with him and to require T. to disclose her 2020 tax information. An order was granted by Brown J. in August 2021 temporarily varying the order such that O. lived primarily with C. The matter was to be returned to chambers for a review. In January 2022, Justice McCreary (as she then was) ordered

the parenting arrangement set by Brown J. and which was to be reviewed, would remain in place but further gave C. sole decision- making authority with respect to O.’s psychological health and treatment. In addition, she addressed C.’s claim for s. 7 expenses and ordered they be addressed at pre-trial. [ 6 ] In June 2022, Currie J., by consent of the parties, ordered that O. was to live primarily with C. and C. was to have sole decision-making authority for her as well. The order further provided J. was to live primarily with T., who was to have sole decision-making authority respecting J. until trial.

In April 2023 the parties arrived at a consent order respecting parenting which continued the terms of the order of Justice Currie with each parent having sole decision-making authority and primary care of a child. J. remains with his mother and O. remains with her father. The parties were not able to resolve child support, both s. 3 and s. 7 ongoing and retroactive, and the matter proceeded to trial. [ 7 ] It should be noted from the outset that any issues respecting support prior to the 2018 Labach J. consent order were addressed by that order.

Though T. wanted to revisit issues which arose prior to the settlement reached at pre-trial, her concerns would have or should have been addressed at pre-trial. The parties reached a full and final settlement which they incorporated into a consent order. As such, any support obligations which may have arisen prior to the Labach J. order have not been considered. Child support [ 8 ] The parties were given the option of providing oral submissions or written submissions. Both opted for the latter.

Unfortunately, in producing the written submissions, T. raised new causes of action alleging a tort and perjury on the part of C. It is not appropriate to raise a new cause of action in closing argument. Furthermore, there is nothing in the evidence to substantiate her claims. T. refers to comments made by Justice Leurer (as he then was) respecting the income disclosure, or lack there of, in the application brought by C. to sever the divorce.

Whatever concerns may have existed respecting income disclosure were presumably resolved when the parties completed their pre-trial and settled all matters before Justice Labach. T. led no evidence to impugn the tax information filed by C. in support of his income claim. Speculation on her part that he may be lying about his income is not helpful, particularly when she led no evidence to substantiate her allegations. [ 9 ] C. suggests that child support should only be considered after he brought his application to vary parenting of O. as that is the application before the court.

However, he does concede that it is within the jurisdiction of the court to consider past child support amounts for the children if it is in their best interests and reasonable in light of the evidence. T., it would appear, feels that she was not properly compensated for support and wants a review of support since they separated. For the reasons already stated, however, I cannot consider support prior to the date of Labach J.’s order.

What support should have been paid based on the Labach J. order, making an annual adjustment for the parties’ incomes? [ 10 ] The consent judgment arising from pre-trial applied a set-off respecting the parties’ incomes in calculating the child support to be paid. The consent order further specified the 2018 income to be $31,250 for C. and $11,332 for T. The shared parenting arrangement continued in effect until February 2021 at which time O. began to reside primarily with her father according to C.

T. disagrees with the date and argues she did not receive notice of the change to O.’s residence and suggests June 2022 (the parties’ pre- trial date) should be used. C. argues there should be an adjustment retroactive to the date of his application (July 2021). O. began experiencing problems in February 2021 and began spending more time at her father’s. This information is confirmed by the fiat of Brown J. dated August 6, 2021.

The parties continued to share parenting of J. until May 2022 at which time J. began living primarily with his mother. [ 11 ] The Labach J. order provided for a set-off amount to be utilized in the calculation of support. Presumably the Contino factors as set out in Contino v Leonelli-Contino 2005 SCC 63 , [2005] 3 SCR 217 [ Contino ] were canvassed at the pre-trial.

Although s. 9 of the Federal Child Support Guidelines, SOR/97-175 [ Guidelines ] affords the court some discretion in making an award of support, the Labach J. order applied a set-off and no evidence was filed at trial that would suggest the set-off approach was no longer appropriate. The parties clearly favored a set-off as evidenced by their consent order. The order remained in effect with only adjustments being made for the parties’ incomes annually, or at least, that appears to have been what was intended.

July 2019-July 2020 [ 12 ] The parties’ income information disclosed that commencing July 1, 2019, C. should have been paying support based on an income of $54,367 and T. should have been paying support based on an income of $13,759 (their 2018 line 150 incomes). Ignoring for the moment, any s. 7 obligations, it follows that C.’s obligation based on the set-off calculation as established by the Labach J. order was $750 and T.’s obligations was $123 for a net payment from C. to T. of $627.

July 2020-March 2021 [ 13 ] Commencing July 1, 2020, based on C.’s income of $53,170 and T.’s income of $13,579, C. should have been paying $733 and T. should have been paying $123 for a net payment of $610 from C. to T. March 2021-June 2021 [ 14 ] The circumstances changed in March 2021 as J. continued in a shared parenting arrangement and O. began residing with her father. [ 15 ] The Guidelines provide as follows: Split parenting time

8 If there are two or more children, and each spouse has the majority of parenting time with one or more of those children, the amount ofa child support order is the difference between the amount that each spouse would otherwise pay if a child support order were soughtagainst each of the spouses. Shared parenting time 9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child supportorder must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [16] Despite being over 20 years old, Wright J.’s decision in Wouters v Wouters, 2001 SKQB 142, 205 Sask R 215[Wouters] remains the law in Saskatchewan.

Her two-step approach is set out in paras. 16 and 17 of her decision: [16] With respect, I must disagree with the analysis and conclusions reached in both Blair, supra [Blair v Callow (1998), (BC SC), 41 RFL (4th) 44 (BC SC)] and Burns, supra [Burns v Burns, 40 RFL (4th) 32 (Ont Gen Div)], and to a lesser extentTweel, supra [Tweel v Tweel (2000), 2000 PESCTD 7 , 186 Nfld & PEI R 99], particularly concerning the assessment of aparent's support obligation for children whose custody is not shared. In my view, in situations where there is a hybrid of custodyarrangements, a two-stage analysis should occur.

The starting point is with respect to those children whose custody is not shared. Theymust be viewed independently as a separate and distinct entity from those children whose custody is shared since the discretion affordedby s. 9 of the Guidelines does not extend to them. They are not part of the shared custody arrangement contemplated by s. 9. It is s. 3,which sets forth the presumptive rule, that is the operative

section with respect to these children. [17] It is only after the child support obligation arising pursuant to s. 3 has been assessed that attention may be turned to theapplication of s. 9 with respect to the support of the remaining children whose custody is shared.

Here there is broad discretion, but onlywith respect to the support of those children who are the subject of the shared custody arrangement. [17] In Sadkowski v Harrison-Sadkowski, 2008 ONCJ 115, the court recognized the different approaches taken bycourts in Canada in hybrid custody arrangements and commented as follows: [26] The problem with the “two stage” analysis, is simply that it does not reflect the reality of the custodial situation as it is a fictionto treat the child(ren) living full time with a parent in total isolation from the other child(ren) who live in a shared custodial situation.

Forexample, there may be savings to the parent who has more than one child in his or her care or the cost to the parent who only cares forone child full time-time, but exercises access may be greater. There may be a large disparity in incomes between the parents that wouldresult in some of the children living in a household with a significantly lower standard of living. The “two stage” analysis only allowssome flexibility to the child’s living in the shared custody situation. It may be very difficult to isolate the factors under clauses 9(

b) and(

c) with respect to the child(ren) living in the shared custody regime. [27] The advantage of the “economies of scale” approach is that it recognizes the economies of having more than one child in aresidence and yet retains the flexibility to examine the actual financial circumstances of both parties and all of the children. However, Iwould not follow the mathematical gymnastics used in the cases such as Burns v. Burns, supra, [ (ON SC), 40 RFL(4th) 32 (Ont Gen Div)] where child support was calculated for 2.5 and .5 children or in Blair v.

Callow, supra, [(1998), (BC SC), 41 RFL (4th) 44 (BC SC)] where there was a pro-rated set-off. In fairness, both of these decisions were rendered prior tothe Supreme Court of Canada decision in Contino v. Leonelli-Contino.

Consistent with the reasoning in that decision, the full guidelineamount for the children should be used in determining the appropriate set-off amount. [18] Turcotte J. applied Wouters in DeMong v DeMong, 2014 SKQB 170, 447 Sask R 294 stating: [34] Based on my determination of the parties’ respective incomes and having regard for the interim joint custody parentingarrangement ordered above where Paige primarily resides with Claude and they have shared custody of Kendra, child support isdetermined applying the analysis adopted by this court in Wouters v.

Wouters, 2001 SKQB 142, 16 R.F.L. (5th) 438, and Wilkie v.Wilkie, 2009 SKQB 119, [2009] 8 W.W.R. 515. … [19] More recently, Goebel J. reviewed the relevant authorities throughout the country in Keast v Keast, 2016 SKQB124, [2016] 8 WWR 619 and concluded beginning at para. 21: [21] Having reviewed these cases, and without further guidance from the legislators or our Court of Appeal, I find the two-stageapproach developed and applied by Wright J. in Wouters to be the most persuasive.

Not only has it been historically favoured inSaskatchewan, it is the most consistent with the principles and language employed by the Guidelines. For example, under s. 3 theprimary caregiver’s income is irrelevant to the determination of support payable for the child, a fundamental characteristic which goesunheeded under the economies of scale approach. [22] Further, it is not accurate to suggest that the economies of scale approach provides added discretion to the court to ensure that thechildren are fairly supported by both parents in a predictable and consistent manner.

In all hybrid cases the care of one or more of thechildren is shared and, therefore, recognizing the Supreme Court of Canada’s mandate to apply s. 9 in all cases involving shared care,both approaches require the court to consider adjustments to the quantum of support as may be required under s. 9(

b) and (c). Arguably,under either approach the discretion afforded under s. 9(

c) to consider the standard of living in both households allows the court to takeinto account the economies of scale factor inherent in the tables. [23] Likewise, neither approach has the advantage of being simpler to apply, nor more streamlined from an evidentiary perspective.

Again, both methods mandate the discretionary and evidence based analysis described in Contino . This often entails a review of child- centred budgets, evidence of increased costs of the shared parenting arrangement, evidence relating to the standard of living in each household or evidence respecting one parent’s assumption of a disproportionate share of child-related expenses. [24] Applying the two-stage analysis in this instance, the first step is to determine the amount payable by the mother for the child primarily in the father’s care under s. 3(1). That amount is $1,051 per month.

The second step is to determine support for the child whose care is shared. Pursuant to s. 9 (a), the set-off amount payable is $263. The total amount payable without adjustment under s. 9 (

b) or (

c) is $1,314 per month. [25] In exercising my discretion under s. 9 (

b) and (c), I note that neither parent filed detailed child-centred budgets, nor evidence of any increased costs of the shared parenting arrangement. There is some evidence relating to the standard of living in the father’s household, specifically that as a result of the mother’s refusal to pay support since June 2015 it became necessary to liquidate some items of personal use, reflecting an inability to absorb the full financial impact of supporting the children without assistance.

I am also mindful of the economies of scale built into the table amounts and their impact upon the bottom-line standard of living in each home. [Emphasis in original] [ 20 ] Goebel J. also applied this approach in Hinz v Hinz , 2017 SKQB 248 , 100 RFL (7th) 463. Megaw J. in Prime v Prime, 2021 SKQB 130 at para 31 , 56 RFL (8th) 411, applied the “authoritative direction provided by Wright J. in Wouters …” though he noted the approach was applied by agreement of counsel. I see no basis on the material before me to veer from the course set by Wright J. in Wouters and confirmed by Turcotte J., Goebel J. and Megaw J.

There are undoubtedly countless other cases where it has been applied as well. [ 21 ] It follows that from March 1, 2021 until May 1, 2022, T. is to pay support for O. and then each pays support pursuant to their shared parenting arrangement for J. From March 1, 2021 until and including June 1, 2021, T. had an obligation to pay support for O. based on her income of $13,579 in the amount of $57. C. and T. had a set-off obligation for J. in the amount of ($433 - $57) $376 payable from C. to T. based on their incomes of $53,170 (C.) and $13,759 (T.). For this three month period, C. should have paid $319 per month.

July 1, 2021-May 2022 [ 22 ] An adjustment would be required on July 1, 2021 based on the 2020 income such that T. paid support for O. based on her income of $46,835 in the amount of $379 and C. and T. paid support for J. in a set-off amount based on C.’s income of $67,134 and T.’s income of $46,835 ($561 -$379.) in the amount of $182 until May 2022 when parenting arrangements changed. Based on the incomes as set out above, T. should have paid support for O. in the amount of $379 and C. should have paid T. $182 as the set-off amount owing for J. who remained in a shared parenting arrangement.

This amount would remain in place until J. began living full time with his mother in May 2022. T. would then pay $197 per month. June 2022 [ 23 ] For the month of June 2022, C. should have paid $561 for J. and T. should have paid $379 for O. resulting in a net payment from C. of $182. [ 24 ] Commencing July 1, 2022 and continuing each month thereafter, C. should have paid T. $654 for J. based on an income of $77,226 and T. should have paid C. $250 for O. based on an income of $31,320 resulting in a payment from C. to T. of $404 per month. [ 25 ] Based on the above, a

summary of the payments that should have been made had proper adjustments been made with the exchange of income information as required by the Labach J. order and making further adjustments for the change in parenting arrangements is as follows: Dates Payments From the date of the Labach J. order to July 1, 2018 C. to pay: $462 T. to pay: 0 July 1, 2018 to July 1, 2019 C. to pay: $462 T. to pay: 0 July 1, 2019 to July 1, 2020 C. to pay: $750 T. to pay: $123 July 1, 2020 to March 1, 2021 C. to pay: $733 T. to pay: $123 March 1, 2021 to July 1, 2021 C. to pay: $433 T. to pay: $57 for O. and $57 for J.

July 1, 2021 to May 1, 2022 C. to pay: $561 T. to pay: $379 and $379 June 2022 C. to pay $561 T. to pay $379

July 1, 2022 to July 1, 2023 C. to pay: $654 T. to pay: $250 What payments were actually made? July 2018 - June 2019 [ 26 ] The evidence established that C. is current until July 2018. From July 1, 2018 to July 1, 2019, C. paid the $462 as required as evidenced by the e-transfer records filed in the course of trial. July 2019 - June 2020 [ 27 ] C. paid $462 per month until December 1, 2019 at which time he started paying $750 per month. In total, C. paid $7,560 for this period but should have paid $9,000. T. should have paid $1,476 ($123 per month). C. overpaid $36.

July 1, 2020 - March 1, 2021 [ 28 ] From July 1, 2020 until March 1, 2021, C. continued to pay $750 per month. Based on his income, C.’s obligation had dropped to $733 per month and T. also had an obligation of $123 per month which resulted in C. overpaying by $17 per month and T. under paying by $123 per month which results in a shortfall for the 9 month period from T. to C. of $1,260. April 2021 - June 2021 [ 29 ] In March 2021, O. moved in full time with her father at which time the support obligation changed. C. continued to pay $750 per month for April and May 2021. He then paid $411 for June.

C., based on his income, should have paid $433 and T. should have been paying $57 for O. and $57 for J. For the three month period of April, May and June, 2021, C. should have paid $1,299 but T. owed him $342 for those same three months which means he owed $957 but he paid $1,911 which results in an overpayment by C. for that three month period in the amount of $954. July 1, 2021 - May 2022 [ 30 ] From July 1 through September 2021, C. continued to pay $411. However, both C. and T.’s incomes had increased and an adjustment should have been made for their income. C.’s monthly obligation increased to $561.

T.’s income also increased and based on Wouters she had an obligation to pay full monthly support for O. of $379 per month. In addition, the parties set- off arrangement for J. ($561-$379) of $182 was owing from C. to T. It follows that from July 1 through September, T. underpaid $591 and C. overpaid by $1,233 resulting in an amount owing from T. to C. of $1,824. [ 31 ] On October 1, 2021, C. began paying $283. However, T.’s obligation remained at $379 for O. and $379 for J.

C. owed $561 for J. for that period of time resulting in an underpayment from her for the seven month period to May, 2022 of $1,379 from T. to C. In addition, C. was paying $283 per month which resulted in an overpayment from him of $1,981 resulting in T. owing C. $3,360. June 2022 [ 32 ] In the month of May 2022, circumstances changed again, and J. began living with his mother full time and O. continued to live full time with her father.

Based on their parenting arrangement for the month of June 2022, C. should have paid $561 for one child and T. should have paid $379 for one child resulting in an amount owing from C. to T. of $182. C. paid $283 resulting in an overpayment of $101. July 1, 2022 - June 2023 [ 33 ] Each of the parties has had a child in his or her care ever since. C. began paying $292 per month in July 2022 and has continued to do so. His obligation, based on his income jumped to $654 and T.’s was reduced to $250 which resulted in a set-off obligation of $404 per month. C. should have paid $4,848 to and including June 2023.

He had been paying $292 and had done so up to the date of trial which resulted in payments of $3,212. It is unknown as to whether he has made any payments since.

However, based on the evidence, if he only made payments totalling $3,212, C. underpaid $1,636. [ 34 ] Based on the parties’ previous order that a set-off calculation of support be applied and their tacit agreement that it continue in light of the fact that no child centred budgets were filed by either in these proceedings, since the Labach J. order and having regard to the incomes of the parties since that time as well as the changes to parenting that have occurred, C. overpaid. From the period since the Labach J. order, the overpayments/underpayments resulted in the following: (

a) July 2018 - June 2019 C. owes $825; (

b) July 1 2019 - June 2020 T. owes $36; (

c) July 1, 2020 - March 1, 2021 T. owes $1,260; (

d) April 2021 - June 2021 T. owes $954;

(

e) July 1, 2021 - May 1, 2022 T. owes $3,360; (

f) June 2022 T. owes $101; and (

g) July 1, 2022 - June 2023 C. owes $1,636. [ 35 ] Although, T. argues she has been treated unfairly and has not received the support that was her due, it appears that the contrary is true, as her income went up, she should have been adjusting support accordingly. Furthermore, with O. moving in with her father, she was then required to pay full child support for O. and a set-off amount for J. The result is that she owes C. money.

Having regard to what each owed the other (Ch. owing $2,461 and T. owing $5,711) from the period since the Labach J. order, T. would owe $3,250 to C. based on their parenting arrangements and the previous order for a set-off amount of support. [ 36 ] However, C. is not looking for an accounting back to the date of the Labach J. order but simply wants to see the support changed as of the time he brought his application in July 2021, after O. moved in with him and he brought his variation application.

In considering the parties’ incomes and the split and shared parenting arrangement that existed until June 2022, as well as the split parenting arrangement that has been in place since May 2022, there are nonetheless still arrears of support owing. From July 1, 2021 (the application date) to June 1, 2023, T. owes $1,825. [ 37 ] T. takes issue with C.’s ChildView, Version 2023.1.0 calculations as they do not include his wife’s income. However, they also do not include her spouse’s income. Furthermore, the parties had agreed to a set-off amount of support at pre-trial.

T. voiced concern that C.’s mother-in-law resides with him but failed to establish how that would affect the support calculation particularly when neither party filed household income information or child centered budgets. [ 38 ] T. also voiced concerns that C. was wrongfully collecting the child tax credit. That, however, is a matter for Canada Revenue Agency [CRA] and is not a subject matter for these proceedings. CRA determines who receives the child tax credit and I have no jurisdiction to order otherwise. If there is an adjustment to be made on the child tax credit, CRA will make that adjustment.

Arrears of s. 7 expenses [ 39 ] Child support arrears are made more complicated by s. 7 expenses and whether any amounts are owing from one party to the other. [ 40 ] The Labach J. order provided at para. 4: The parties shall share s. 7 special and extraordinary expenses and agreed extra-curricular activity costs proportionately, with the Petitioner to be responsible for 73% and the Respondent to be responsible for 27% of the after-tax cost of such expenses.

The Party bearing the s. 7 expense costs in the first instance shall provide the receipts to the other Party and payments to reconcile such expenses shall be made within 30 days of being provided the receipt. [ 41 ] Special and extraordinary expenses are defined in the Guidelines as follows: 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [ 42 ] From the wording of the Labach J. order it provides that only agreed upon extracurricular expenses were to be shared. The remainder of extraordinary/special expenses were to be shared in proportion to the parties’ incomes. [ 43 ] Goebel J. considered s. 7 expenses in Mardanisamani v Farshad , 2022 SKQB 160 : [13]

Section 7 identifies a number of special expenses that parents may be required to contribute towards over and above the s. 3 payment. That said, these expenses are not automatically shareable. Before they are shareable, they must be both "reasonable" and "necessary". In some instances, the expense must also be "extraordinary". [14] A recent

summary of the legal principles in play can be found in M.D.L. v C.R. , 2020 SKCA 44 [ M.D.L. ] , as follows: 85

Section 7 of the Guidelines allows for the payment of special and extraordinary expenses of the sort listed in s. 7(1) , having regard to the necessity of such expense in relation to the child's best interests and its reasonableness having regard to the means of the spouses, and those of the child and to the family's spending pattern prior to separation: Special or extraordinary expenses 7(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation. (

a) childcare expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. 86 To be eligible, expenses for primary or secondary school education or any other educational program (s. 7(1)(d)) and extracurricular activities (s. 7(1)(f)) must be extraordinary in nature within the meaning of s. 7(1.1) of the Guidelines . This provision contemplates a two-part test as explained in Matlock v Matlock , 2010 SKQB 16 , 349 Sask R 294 : [12] The amended

section was interpreted by the Nova Scotia Court of Appeal in D.M.C.T. v L.K.S. , 2008 NSCA 61 , leave to appeal refused [2008] SCCA No. 457; [2008] CSCR no 457 as requiring a primary analysis under (1.1)(

a) and if (

a) does not apply, then a secondary analysis under (1.1)(b). This, of course, occurs after the court has determined that the expenses are necessary and reasonably under s. 7(1). The Court of Appeal cited with approval the new definition of "extraordinary expenses" outlined by Professor Rollie Thompson in The Chemistry of Support: The Interaction of Child and Spousal Support 2006 25 CFLQ 251, where he stated at page 256: The May 2006 amendments to the Federal Child Support Guidelines added one more wrinkle to the

section 7 analysis, in deciding the initial eligibility of

section 7 expenses. The amendments include a new definition of "extraordinary" for the purposes of expenses under s. 7(1) (

d) and (f). The primary "ability-to-pay" test in paragraph (1.1)(

a) looks at the resources available to the requesting parent, rather than the joint incomes of both parents under the McLaughlin approach: expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate. The secondary test in para. (

b) applies where ability to pay is not an issue, listing off various additional factors rather than parental resources. [13] The additional factors in the secondary test address the amount of the expense in relation to the mother's income, the nature and number of the programs and activities, the special needs or talents of the child, the overall cost of the programs and any other similar factor the court considers relevant. [14] Thus the primary analysis requires an examination of the mother's budget and what is reasonably affordable to her, while the secondary analysis is a more extensive inquiry that requires proportioning the costs to the mother's income, and addressing the listed factors and others that are similar and relevant.

87 An expense incurred for childcare, medical and dental insurance, health-related expenses and post-secondary educational (ss. 7(1)(a),(b), (

c) and (e)) need not be extraordinary to qualify as a s. 7 expense. However, regardless of the category, the expense must satisfy thetwin criteria of necessity and reasonableness. Necessity is considered in relation to the best interests of the child: Reynolds v Andrew,2008 SKQB 352 at para 11, 326 Sask R 138 [Reynolds], and Delichte v Rogers, 2013 MBCA 106 at para 34-35, 299 Man R (2d) 269[Delichte]. 88 Tutoring costs fall under s. 7(

d) of the Guidelines: Hesson v Hesson, 2000 SKQB 197, 193 Sask R 315. In general terms, the cost oftutoring has been found to qualify as an eligible extraordinary expense. It is considered necessary where an applicant demonstrates thechild is experiencing academic difficulties: Franson v Franson, 2007 SKQB 266, and Brown v Carlston, (Sask QB)[Carlston]. However, courts have also found tutoring costs to qualify as a s. 7(

d) expense where a child is not struggling academically butwants to enhance his or her academic potential. In Edmunds v Schwartz, 2009 SKQB 330, 344 Sask R 155, for example, the child was astraight-A student attending tutoring sessions twice a week. The Chambers judge found that, given the child's "psychological make-upand her personal desire to attend Sylvan twice a week, as she has in the immediate past, is a necessity to the attainment" of her bestinterests (at para 6). 89 The next question is whether the expense is reasonable.

The reasonableness of an expense is a multi-faceted, fact-based analysis thattakes into account a myriad of things including the means of the parties and whether the expense is reasonable in light of the parties'spending pattern pre-separation, the combined income of the parties, and the fact two households must be maintained.

The following wasoutlined in Delichte: [39] The courts have indicated that the following matters can be considered when assessing the reasonableness of the expense inrelation to the means of the spouses: the combined income of the parties; the fact that two households must be maintained; the extent of the expense in relation to the parties' combined level of income; the debt of the parties; any prospect for a decline or increase in the parties' means in the near future; and whether the non-custodial parent was consulted regarding the expense prior to the expense being incurred. (Footnotes omitted) 90 Even where the evidence shows the child would benefit from tutoring, courts retain the discretion to decline to make an order for costsharing if the payor has insufficient means to contribute to that expense: Carlston at para 24 and Carmichael v Douglas, 2008 SKQB 320at para 29, 56 RFL (6th) 420 [Carmichael]. [15] If the court is satisfied on the evidence presented that an expense falls within s. 7, the court must then determine how it shouldbe shared.

The guiding principle is proportionate sharing in relation to the parties' respective incomes: Sharing of expense 7 . . .

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by thespouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [16] That said, proportional sharing is not a fixed or absolute rule. As noted by the Court of Appeal in M.D.L., "Section 7(2) of theGuidelines establishes a guiding principle, rather than a fixed rule or requirement, with respect to the sharing of special or extraordinaryexpenses that fall within the ambit of s. 7(1) of the Guidelines" (para. 94).

It is also possible for the court to place a "cap" on the amountof contribution or direct that only those expenses that are agreed upon are to be shared: Iddon v Iddon, (ON SC),[2006] OJ No 237 (QL) (Ont Sup Ct) and M.D.L. [17] Even where the court has found the expense "reasonable", there are instances where the court has capped contributions for s. 7expenses to reflect a parent's limited ability to pay. In Walker-Bodnarek v Bodnarek, 2005 SKQB 462, 271 Sask R 151, the mother, whohad virtually no income, sought contribution from the father towards expenses of over $1,900 per year.

In light of the father's income andhis child support obligations, the court capped the father's maximum s. 7 contribution at $75 per month or $900 per year. [44] In addition to the order for support, the parties specified in the consent judgment granted by Labach J. onFebruary 9, 2018 that J. will continue to participate in hockey. T. appears to take the position that as the order provided J. was tocontinue to play hockey, no agreement was needed for her to incur hockey expenses and reimbursement was required from C. forwhatever hockey expense she incurred.

C., on the other hand, argues that hockey can be played without incurring all of the costs claimedby T. Although the order provides J. was to continue to play hockey, the expenses incurred were extracurricular expenses for which theparties were to agree. C. did agree and paid many of the hockey expenses. [45] J.’s and O.’s braces are not an “extraordinary expense” but rather fall into the category of a health expense as setout in ss. 7(1)(c). The provisions of the consent order regarding the necessity of prior agreement, do not apply to the braces.

Ideally theparties would agree but there is nothing in the material to indicate getting O. braces was unreasonable. It follows that each of the partiesshall be responsible for their proportionate share of the cost of the braces that is not covered by a plan of insurance.

[46] C. had paid an additional $885 for J.’s orthodontics which was to have been covered by T.’s spouse’s plan butultimately was not. C. paid the invoice in October 2021. T.’s proportionate share in 2021 based on their 2020 incomes of $67,134 for C. and $46,835 for T. was 41% resulting in an amount owing from T. to C. of $364. [47] Sylvan Learning is also not an extracurricular activity but rather an extraordinary expense for education andshould also be shared.

C. argues the parties agreed to share equally the costs of Sylvan Learning but this is not borne out by the terms oftheir consent judgment which indicates extraordinary expenses are to be shared in proportion to their incomes. T. argues she overpaid forSylvan Learning as she was often paying Sylvan Learning directly and then encountering a further reduction in child support from C.which resulted in her often paying double what she should have. However, C. has filed evidence of the payments made towards SylvanLearning.

Although C. maintained the parties had an agreement the cost was to be shared equally, he points out that even with him beingresponsible for the greater percentage of the cost of Sylvan Learning based on their respective incomes for support purposes for the years2021 and 2022, T. underpaid $171.55 in 2021 and paid nothing in 2022 resulting in an amount owing of $1,456. T. argues she overpaidfor Sylvan Learning in previous years as she was paying more than her proportionate share.

Furthermore, although Sylvan Learningwould normally be an extraordinary expense to be shared, by 2022, O. had attended Sylvan Learning for quite some time at significantexpense.

No evidence was led as to whether this continued to be a reasonable expense in the circumstances, and, as such I decline tomake an order for Sylvan Learning. [48] Neither party provided an invoice for premiums of insurance attributable to the children and although this is alegitimate expense pursuant to s. 7, it is not possible to provide either party with reimbursement as the information was simply notprovided. [49] The parties disagreed on whether school supplies fall under s. 7 expenses. As a general rule, they do not fallunder s. 7 expenses.

Referencing Mertler v Kardynal, (1997), (SK KB), 161 Sask R 151 (QB), the authors, Julien D.Payne & Marilyn A. Payne, Child Support Guidelines in Canada, 2020 (Toronto: Irwin Law, 2020) wrote at page 265, “Expenses suchas entertainment, pets, vacations, school fees, school supplies, children’s allowances, meals outside the home, personal grooming andclothing, do not constitute expenses contemplated by

section 7…” A sharing of these expenses could be imposed under s. 9 of theGuidelines but by August 2021, when C. asked for reimbursement for school supplies, O. was in his full-time care at which time heshould have been receiving s. 3 support for O. which, in turn, could be used for school supplies. [50] There was a suggestion that C. should help pay for J.’s cell phone. Again, there was a dearth of evidence as towhether the cell phone was an extraordinary expense and, if so, was it a reasonable expense which C. should assist with. [51] Extracurricular activities were to be agreed to.

The parties, over the years, agreed to certain hockey expenses.No further accounting of extracurricular costs is required as the parties paid or did not pay dependant on whether or not they agreed tothe expense. [52] Going forward, with each having sole decision-making authority for the child in their respective care, it hasbeen suggested that each be responsible for any s. 7 expenses though T. suggests those specified in the order should continue. Although the Labach J. order contemplated J. wouldcontinue to play hockey, that does not result in T. having carte blanche to spend whatever she likes on hockey for J.

As with any extracurricular expense, the question is whether the expense is reasonable. [53] Whether the children’s expenses are reasonable or not, having regard to the children and the parties’ resources isthe crux of the matter. O. is under the care of an orthodontist. There was no evidence led to suggest the braces were not reasonablethough T. stated she did not agree with the braces. Absent any evidence that the braces were unnecessary or unreasonable, a medicalexpense such as orthodontics should be shared.

The parties will share any portion of the orthodontics not covered by a plan of insurance,both retroactively and ongoing. C. had calculated T.’s share but his calculation neglects to factor in what portion, if any, is covered by herinsurance plan. C. had calculated her share at $2,221.80. T. shall have 90 days in which to seek reimbursement from her plan. C. shall bereimbursed from the plan what he has paid, and any amounts not covered by the plan shall be shared proportionately by the parties. [54] Hockey and horseback riding are activities in which the children are participating.

T. will not agree to horsebackriding and has to date not contributed. The parties’ previous order provided that where there was no agreement the parties would notshare the expense. Why T. was opposed to horseback riding is unknown though she does suggest that C. attempted to bankrupt her withactivities. T. appears to have no difficulty enrolling J. in hockey or committing to expenditures for that sport at a higher level than herincome might suggest is reasonable. [55] Should either party enroll either child in an extracurricular activity, they may request a proportionatecontribution from the other.

Should a party refuse to contribute to the s. 7 expense, an application may be made in chambers to determine whether a contribution is required at which time the court will consider the reasonableness of the expense having regard to the factors asset out by Goebel J. above. [56] Currently, T. seeks reimbursement for hockey expenses but has provided no indication as to what those hockeyexpenses will be for the coming year. C. has incurred expenses for O. such as horseback riding and is not currently seekingcompensation given T.’s prior refusal to agree to the activity.

However, part of the consideration of what is a reasonable expense for J.’shockey, must also consider what is reasonably being spent on O. to determine what amount, if any, should be shared. Both children aredeserving of their parents’ support in activities.

Summary [ 57 ] T. shall pay C. arrears of support from the date of application (July 2021) to July 1, 2023 in the amount of $1,825. [ 58 ] T. shall apply to her plan of insurance for reimbursement for O.’s orthodontics.

The parties shall each be responsible for their proportionate share of the orthodontics once the reimbursement from the plan of insurance is complete. [ 59 ] T. shall reimburse C. $364 as the amount owing for J.’s orthodontics which was not covered by her spouse’s insurance plan. [ 60 ] Commencing July 1, 2023, the parties shall each pay support for one child to the other based on their 2022 income. C. had not filed his 2022 income information at the date of trial. The parties will utilize the recalculation service to calculate support commencing July 1, 2023.

Alternatively, leave is given to reconvene a telephone conference call for a determination of the support amount upon filing the 2022 income information. [ 61 ] With respect to s. 7 expenses, the parties shall each pay their proportionate share of O.’s orthodontics not covered by a plan of insurance. The parties’ proportionate share as of July 1, 2023 shall be calculated upon C. serving and filing his tax return and notice of assessment as required above.

All other s. 7 expenses shall be agreed to by the parties and if no agreement can be reached, either party may apply to chambers for a determination as to the reasonableness of the expense and whether it is to be shared by the parties. This is not limited to hockey but rather all extracurricular expenses. Costs [ 62 ] Both parties have requested costs. T. was of the view that she was owed money as C. was not adjusting support in accordance with increases in his income. She appears to have ignored that her own income increased and she also had a support obligation.

In addition, once O. moved in with her father, T.’s support obligation increased. T.’s arrears would be more than what has been ordered if the calculation was from the date of the Labach J. order rather than from the date of application (July 2021) as was requested by C. [ 63 ] T. has also accused C. of lying about his income but produced no evidence to substantiate the allegation. She accused his counsel of churning the file but failed to produce her own income information in a timely fashion.

Such accusations may, in certain circumstances, warrant costs but C. has only sought costs on the Tariff and has filed a bill of costs in support of his position. [ 64 ] Much of the relief originally requested in the commencement document was resolved by agreement in advance of the trial. The only issue at trial was support. Ultimately the amount found to be owed was substantially less than either party claimed. As a result there will be no order as to costs. J. C.M. RICHMOND