C.A.R. PETITIONER - v. -, 2022 SKKB 218

REDACTED VERSION KINGS’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 218 Date: 2022 09 29 Docket: DIV-RG-00329-2005 Judicial Centre : Regina, Family Law Division BETWEEN: C.A.R. PETITIONER - and - D.R.R. RESPONDENT Counsel: James J. Vogel, Q.C. for the petitioner Lindsay A. Hart and Robert J. Taylor for the respondent JUDGMENT BROWN J. SEPTEMBER 29, 2022 BACKGROUND [ 1 ] The R.s began cohabiting in 1981 and were married in May 1985. They separated in December 2004, therefore having a 23-year relationship.

C.A.R. petitioned for divorce, division of family property, child support and spousal support on July 13, 2005. It took a further 16 ½ years to bring the matter to trial. C.A.R. was 63 years of age at the time of trial. D.R.R. was also 63 at the time of trial. [ 2 ] The couple have three children: E.R. born […], 1986; L.R. born […], 1989 and C.R. born […], 1990. They were all independent adults at the time of trial. The marriage was relatively traditional with C.A.R. staying home to care for the children while D.R.R. worked and pursued his career as a physician, which was demanding and time consuming.

Added to this were addictions issues which began early on in his career and which D.R.R. readily acknowledged. This meant between D.R.R.’s heavy workload and his addictions, C.A.R. carried a very significant portion of the home-life load. When D.R.R. was available for family responsibilities, he participated in family life as time allowed. This was somewhat infrequent for most of their time together.

Previous Proceedings [ 3 ] On July 27, 2005 Justice Dawson ordered D.R.R. to pay C.A.R. $10,000 pending the return of the matter to chambers, such payment to be characterized at the direction of the chamber judge hearing the matter. [ 4 ] On September 13, 2005 Justice McIntyre rendered an order after pretrial which included the following:

1) D.R.R.’s income was $300,000 per annum; 2) D.R.R. was to pay C.A.R. $12,500 in monthly spousal support; 3) D.R.R. was to pay one-half of the family debt payments as they came due on the combined debt load of $135,446; 4) The parties to each pay one-half of the s. 7 expenses for the children pursuant to the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]; [ 5 ] On December 15, 2005 Justice McIntyre ordered the following after a pretrial conference: 1) D.R.R.’s income was $300,000 per annum; 2) D.R.R. was to pay C.A.R. $6,500 in monthly spousal support until November 2007 at which time, absent agreement by the parties, spousal support was to be reviewed pursuant to s. 15 of the Divorce Act , RSC 1985, c 3 (2d Supp).

Neither party was required to show a change of circumstances at the time of the review.

Failing agreement, either party was allowed to apply to the court for the determination of ongoing spousal support; 3) The spousal support provisions contemplated C.A.R. undertaking retraining; 4) $6,700 of the previous $10,000 ordered payment was characterized as spousal support and the remaining $3,300 was characterized as child support; 5) D.R.R. was to pay one-half of after-tax costs of C.A.R.’s books and tuition to a maximum of $6,000; 6) D.R.R. was to have C.A.R. as named beneficiary on one of two life insurance policies and C.A.R. was to pay the premiums; 7) Child support was to be paid at $3,271 per month by D.R.R. given C.R. would live primarily with C.A.R.; 8) Each party was to pay their share of the s. 7 expenses for the children which meant 75% for D.R.R. and 25% for C.A.R.; [ 6 ] On May 9, 2006 the parties were divorced. [ 7 ] In October 2007, D.R.R. applied for an order directing the trial of the issue regarding entitlement and quantum of spousal support as well as any income that ought to be imputed to himself.

C.A.R. applied shortly thereafter for an order that D.R.R.’s support payments be based on his actual income and in accordance with the Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) [ SSAG ]. [ 8 ] In response, on January 15, 2008, Justice Gunn in 2008 SKQB 13 , directed the issue of spousal support to trial and ordered $6,500 payable monthly in that respect.

Given the status of the order she made in this issue, the language she used is of some import: [22] … the issue of entitlement to spousal support and if entitled the duration and amount of that spousal support is a matter which I am satisfied should be determined at trial. [23] However, based on facts which are not in dispute on this application, I am satisfied that C.A.R. has met the onus on her to show that an order for interim spousal support pending trial of the issue should be made. [24] Accordingly I direct that there be a trial on the issue of C.A.R.’s entitlement to spousal support, and if entitled, the quantum of support and duration.

Neither party shall be required to prove a change in circumstances. The parties are granted leave to conduct examinations for discovery. The local registrar is directed to set a date for a per-trial conference at the request of the parties and the Rules of Court in relation to pre-trial conferences must e complies with. [25] I direct that D.R.R. pay interim spousal support to C.A.R. commencing November, 2007 in the sum of $6,500 per month payable on the first of each and every month until trial or further court order. [ 9 ] D.R.R. refused to make payments pursuant to the order of Justice Gunn.

C.A.R. therefore served the Regina Qu’Appelle Health Region in relation to D.R.R.’s professional corporation “D.R.R. Medical Prof. Corp.” [professional corp.] with a notice of continuing garnishee and notice of garnishment in early February 2008. The professional corp. and D.R.R. disputed the garnishments. C.A.R. then applied to court to have the funds paid into court to be dealt with. [ 10 ] In response, D.R.R. applied for an order setting aside the garnishments.

On February 15, 2008 Justice Kraus ordered that the garnishee was directed to not make payment into court and adjourned all motions sine die with the return being on 14 days’ notice. On March 20, 2008 Justice Kraus ordered C.A.R. to produce psychological and counseling records. [ 11 ] On June 20, 2008 Justice Dawson ordered the psychological and counseling records to be provided to the court for review regarding relevance and that discoveries were to proceed on June 24, 2008. [ 12 ] Discoveries began in June 2008.

They went uncompleted and languished for many years, not being completed for over 10 years. [ 13 ] C.A.R. brought an application in 2009 for a further order regarding child support as C.R. was attending post- secondary education and D.R.R. was not in favour of it nor in favour of paying anything for support for C.R. In Justice Dawson’s April

26, 2010 decision [2010 SKQB 157 , 361 Sask R 9], she made several key findings in that decision including: [44] The father did not file a T4 for his personal income for 2009, even though this application was argued on February 24, 2010. The father suggests that his 2009 income will decrease from previous years and that his combined personal and corporate income will be around $250,000.00 for 2009. The father attests this is because he is unable to sustain the same number of working hours as he did in 2008. The father is 50 years of age.

He indicates in his affidavit that in 2008 he was working on average 183 hours per month, which included night shifts (183 hours per month converts to about 42 hours per week). As stated, the father works as an emergency room physician and indicates that he feels he is unable to keep up this level of working hours.

The father also asserts that he ceased his SGI medical advisor position in the spring of 2008, ceased his Moose Jaw Union Hospital emergency room locum position in May, 2009, and that his EMS position expired on December 31, 2009. [45] The father attests that commencing July 1, 2009, he estimates that his taxable income will be $11,666.00 less per month than it was in the period January, 2009 to June, 2009.

He attached to his affidavit a document that was partially typed and partially handwritten, which he indicates shows the amount billed by his professional corporation to the Health District for the period of August 13, 2009 to November 19, 2009, which was $95,577.88. He suggests that if this amount is extrapolated for a 52 week period, it equals $310,628.11 in gross billings. However, he does not include the actual income he earned for the period January, 2009 to June, 2009 in this projection.

His corporation's 2009 gross revenue was almost identical to 2008. [46] Here, the father failed to file complete 2009 income information as required. In 2002 he had income of $268,706.00; in 2003 he had income of $286,500.00; in 2004 he had income of $327,010.00; in 2005 he had income of $328,468.00; in 2006 he had income of $327,324.00; in 2007 he had income available to him of $311,917.49 and in 2008 his income increased and he had income available to him of $410,368.00.

In 2009 his medical corporation had gross billings similar to 2008 and net income before tax that was the same as in 2008. [47] In the circumstances, I am of the view it is appropriate to determine the father's 2009 income, under s. 17(1) of the Guidelines , by averaging his 2006, 2007 and 2008 income. I find the father's income, for the purposes of child support, to be $349,870.01. . . . [62] …The father shall pay the mother the sum of $5,000.00 as costs of the application. [ 14 ] The trial focused exclusively on spousal support.

It included a claim to extensive retroactive support as well as ongoing support. [ 15 ] On April 26, 2010 Justice Dawson ordered D.R.R. to pay C.A.R. child support for C.R. in the amount of $2,815 per month retroactive to September 2009 and forward from there. [ 16 ] For the reasons that follow, I conclude that spousal support is to continue for 18 months, then cease. It will be at the rate of $4,500 per month. In relation to arrears, there is owed $144,000 for the three years leading up to this trial decision. ISSUES 1. Is C.A.R. entitled to retroactive spousal support?

If so, from what date and in what amount? 2. Is C.A.R. entitled to ongoing spousal support? If so, in what amount and for what duration? EVIDENCE Early Years [ 17 ] The couple moved around western Canada somewhat regularly in the first decade of their marriage. C.A.R. moved to Saskatoon, Saskatchewan to be with D.R.R. when he was in medical school. They came back to Regina, Saskatchewan together in 1984 as D.R.R. wanted to be here. They returned to Saskatoon in 1985 for an internship D.R.R. wanted to pursue. They moved to Hudson Bay, Saskatchewan in 1986 for two years.

In 1988 they relocated to Edmonton, Alberta for a specialty D.R.R. wanted to pursue. This was not to his liking so they moved back to Hudson Bay in 1989. In 1990 D.R.R. took a partnership in a medical practice in Swift Current, Saskatchewan. [ 18 ] The couple settled in there, to some extent, and spent eight years in Swift Current. In 1998 the family came to Regina once more and have stayed here since. C.A.R. testified that the moves were always based on career choices pursued by D.R.R. and which he said would improve his situation.

D.R.R. said there was one exception to that; he had a practice lined up in North Dakota he desired to pursue, but that possibility fell apart. D.R.R. says it was due to C.A.R., which she denies. [ 19 ] In 1999 D.R.R. become an emergency room [ER] doctor in Regina, which made the odd, long hours and time away from family less substantial even though his hours of work were still significant.

The shift work associated with the ER meant less hours were worked in total, but a considerable amount of time was spent away from the family including when family activities were occurring. [ 20 ] I find that C.A.R. did essentially all the family-related duties with the children, not that D.R.R. was shirking but rather his demanding job consumed the time he had available. He assisted when he could do so. He also had addictions issues in the early 1990’s and this resulted in him attending treatment for a month at Mandan, North Dakota.

He had relapses and attended Alcoholics Anonymous [AA] weekly for the remainder of their relationship. [ 21 ] C.A.R. said she was not very involved in the finances of the family as D.R.R. primarily took responsibility for that. When the relationship was understood by both parties to clearly be in trouble, they did attempt counseling. They separated in late

2005 and found separate dwellings in early 2006. Post Separation [ 22 ] C.A.R. testified that she was essentially fully occupied with the court proceedings and taking care of the children from the time of the separation in 2005. The result was that obtaining full-time employment after separation was not feasible for her. She points to the multiple court applications, the vast majority of which she had to bring, as a significant issue regarding her striving for self- sufficiency.

She also points to the needs of the children and her role as primary caregiver to them as a portion of the reason she did not find higher paying full-time work. [ 23 ] As noted earlier there were a number of applications related to child support and spousal support. It is clear the parties were engaged in ongoing litigation for some time. It was litigation of not inconsiderable substance, occupying much time and energy for many years. [ 24 ] C.A.R. testified to the difficulty of getting D.R.R. to pay support and also the challenges getting financial information from him on which to make decisions.

She testified to him simply ceasing to pay her the $6,500 in spousal support that he had been ordered to pay for four months in late 2007 and early 2008. This cessation of support payments required her to take steps which included garnishment. This was resisted by D.R.R. at each turn. The court’s tolerance with non-payment appears to have been surpassed by February 2008 when Justice Kraus told D.R.R. in no uncertain terms that he was in breach of a court order and he must pay.

D.R.R. thereafter began paying once more. [ 25 ] Even after that point however, C.A.R. testified that his payments were not regularly on time and were frequently not provided at the beginning of the month as anticipated. C.A.R. thought that she had registered with the Maintenance Enforcement office in order to obtain more timely payments, although D.R.R. maintained he had done so himself. [ 26 ] C.A.R. testified that she had a variety of employment positions prior to having children.

She said it was a part of the agreement between her and D.R.R. and the foundation to the relationship that she would cover the home front and take care of the children’s needs while D.R.R. would work as a medical doctor and earn the income required for the family to live a reasonable life.

She said there never was a time when they specifically spoke about her returning to work until after their separation. [ 27 ] In relation to why C.A.R. did not retrain or find steady, reasonable paying employment, the stress of the ongoing conflict with D.R.R. and getting him to pay was what C.A.R. pointed to as the basis for her limited employment and meager income situation from separation through to trial. [ 28 ] C.A.R. testified that as of the time of trial she had not re-partnered. She did acknowledge having a close male friend, ----- -----, who had been in her life from the latter part of 2005 onward.

She said they had never lived together nor resided in the same home, that they kept separate residences throughout the time since they began seeing each other, and that they had no joint business ventures, accounts or other shared incidents of being more than friends. She described their present relationship as being one more of companionship and friendship.

They traveled together on occasion, made the occasional meals for each other and took turns paying for meals if they dined out. [ 29 ] Mr. ----- retired from the Provincial Lab in 2009 at age 57 and was supported by his pension, the amount of which was not in evidence. C.A.R. testified that the interactions between herself and Mr. ----- which occurred after spring of 2020 were significantly limited due to Covid. [ 30 ] Regarding her education, C.A.R. said she was an average student in high school. As for post-secondary, she attended a secretarial course in 1984 through SIAST.

She completed it in May 1985, receiving her medical secretarial designation. She did take additional courses following this but received no additional credentials as a result.

It was apparent from her transcripts that she had done very well in those post-secondary courses as her average was a fraction below 90 percent. [ 31 ] As with other issues, the explanation C.A.R. offered for not achieving either additional standing in her field or full-time work along the lines of what she had been employed in prior to having children was due to the chaos of dealing with one crisis after another caused by D.R.R. and which also impacted the children.

She said that with all that D.R.R. was doing to stymie her and avoid helping pay for her or the children to carry on, it was not possible for her to gain employment or further professional credentials. [ 32 ] Prior to working as a secretary, C.A.R. had some experience as a cashier, working in a bank for a short time, working at the provincial lab and at the Royal University Hospital as a pharmacy clerk.

At the time of trial she was still doing the part- time work with Weight Watchers Canada [WWC] and with a tasting business providing samples of alcohol to interested customers primarily at various liquor stores. [ 33 ] C.A.R. had spent some time as the office manager for D.R.R., paying bills, ordering supplies and completing paperwork for his medical practice.

She said that she declared income in the range of $30,000 to $33,000 per annum for tax purposes but that this amount was effectively just an income splitting practice to reduce tax paid by D.R.R. and would not fairly represent the amount of time she actually spent working for D.R.R. [ 34 ] At the time of trial C.A.R.’s work with WWC consumed six hours a week in two – three hour sessions, with C.A.R. receiving $41.39 for each three hour session. Prior to Covid C.A.R. was working up to 12 hours a week and paid $15.00 per hour for the sample-tasting job.

There was also additional preparation time for the WWC commitment. [ 35 ] Upon separation the family worked out a shared parenting arrangement in 2005. The family home was sold in the summer of 2005 with each party moving into condominiums, at least at first. In March 2007 L.R. moved in full-time with D.R.R. and his new partner C.T. D.R.R. reduced his child support payment in February 2007, moving it down to $2,817 per month.

[ 36 ] By May 2010, D.R.R. was no longer making payments for child support. In May 2010 C.R. moved to Vancouver, British Columbia. During this time D.R.R. attempted to have C.R. attest to her preferring to live with him and to set out lengthy reasons why she was negative towards and regarding C.A.R. He told C.R. he was going broke due to C.A.R.’s failure to return to work. This was an exercise in extremely poor judgment by D.R.R. His involvement of C.R. failed entirely in assisting the process regarding support quantification.

It also caused much distress for both C.R. and C.A.R. [ 37 ] C.A.R. testified to her ongoing legal requirements including garnishing D.R.R.’s income sources to get the support that had been court ordered. While D.R.R. agreed to give C.A.R. enough money to purchase her condo, she testified that he reneged on that promise. An application was made accordingly to bring about compliance. [ 38 ] C.A.R. testified that D.R.R. had told her he was going to refuse her access to any money so she would have to live on the street. As D.R.R. had always controlled all the finances, this bothered C.A.R. greatly.

She testified that D.R.R. told her that he always made good money, that she never did, that he always would continue to do so and she never would, and as a result, she could perhaps work at Walmart but that she could never support their children. Given the other attempts I have found D.R.R. made to prevent C.A.R. from receiving support, I find this credible and accept that D.R.R. said these things. [ 39 ] Even with the substantial income D.R.R. had, there was not a great deal of family property to divide, with each getting something less than or in the range of $90,000 net after various debts were accounted for.

The family lived comfortably but did not live extravagantly notwithstanding the income from D.R.R.’s medical practice. Precisely where the money went was never unearthed during the trial. [ 40 ] C.A.R. struggled to obtain disclosure from D.R.R. She received no income information from 2008 through to 2019. Even at the discovery/questioning which was convened, many answers were not given regarding D.R.R.’s financial situation.

I find that D.R.R. actively tried not to provide full disclosure of his income situation to C.A.R. [ 41 ] C.A.R. testified that in 2007 when D.R.R. stopped paying spousal support as ordered, she struggled considerably. His failure to pay continued until C.A.R. brought an application, after which time it resumed. In the meantime four months went by in which bill payments could not be made by C.A.R.

As this hiatus in support was over the Christmas season, that meant it spilled over quite directly to the children and her relationship with them and her ability to be the mother to them she had been and desired to continue to be.

C.A.R. also testified the lack of payments meant she could not take a class she was planning to as a means towards achieving self-sufficiency. [ 42 ] C.A.R. relayed how D.R.R. had applied to set aside the notice of garnishment she had instituted and also how D.R.R. brought an application for access to personal counseling records of hers, both of which were ultimately unsuccessful in the long run, but came at substantial cost to C.A.R. nonetheless. [ 43 ] C.A.R. testified to the tight financial situation she lived in after the separation right up to the time of trial.

She could not buy new furniture, replace her car, take vacations, or participate in other normal activities as she was in receipt of little income. She remained in her modest condo throughout. She pointed out that D.R.R. had moved a number of times and even lived on an acreage by Craven, Saskatchewan for a time. I accept that D.R.R.’s standard of living was much higher than C.A.R.’s after separation. His continued to improve while hers never reached what they had together. [ 44 ] C.A.R. said she had no plans to retire as she had no security for her life after 65 which would allow for her to retire.

While she was 63 at the time, she testified that she could not work retail or other such jobs and had little by way of savings. [ 45 ] Regarding C.A.R.’s resources, she had built up a net worth of $683,000 by the time of trial, including her real estate, savings and RRSP resources at that time. It included bank accounts worth $16,500 and an RRSP worth $280,000.

She had a TFSA worth $52,000 but explained that this asset came from her father’s estate, not from her own savings. [ 46 ] The mortgage on C.A.R.’s condo was, at the time of trial, two years from being paid off at the time of trial, at which time her payments of slightly more than $1,000 per month ($12,945 per year) would be retired and her insurance to cover her mortgage of $600 per year would also cease. [ 47 ] C.A.R.’s annual expenses she claimed appear to be inflated at $134,910 per annum including $8,000 a year in food at home.

She was, nonetheless, insistent in her evidence that she had not exaggerated these expenses. I find that they are exaggerated and that is not an accurate perception of her needs annually. [ 48 ] While C.A.R. did take various computer courses after the parties separated, at trial she denied it was with a view to re-entering the work force in her earlier trained area. She said the courses were instead for her own personal interest in order to become more familiar with such operations. I find this not to be accurate and that there was a more substantial component to her taking such courses with a view to employment.

As gainful full-time employment, let alone a career, was not pursued with any diligence, C.A.R.’s recollection is at the very least shaded by this reality. [ 49 ] C.A.R. acknowledged that she only applied for two jobs/positions after separation in 2005, those being her WWC role and the sample-tasting position she had at the time of trial. D.R.R. [ 50 ] D.R.R. testified that he believed he had addictions issues since he was a teenager. He said that he has had times of successfully avoiding using alcohol and drugs, but there have been many relapses in between.

In particular, he testified that he is able to stay clean and sober until such time as he becomes overwhelmed with responsibility regarding his work, particularly regarding the need he feels he finds himself subject to with respect to paying for the expenditures everyone else in his life expects him to cover. [ 51 ] D.R.R.’s evidence was that as long as he maintained sufficient time off and did not over work, he could stay

clean and sober. It was when the financial pressures mounted that he became despondent and turned to drugs to help him cope with his mental health. He testified that at such times he felt hopeless, depressed and lost his empathy for his patients. He testified that he desired those feelings to no longer be part of his life and at such times as they overwhelmed him, he would return to prescription and other drug abuse. The last time this occurred was in 2018 when he took too many pills to help him sleep given he was so overworked.

In this instance he says that he crashed his vehicle. [ 52 ] Thus the prescription for a successful life, according to D.R.R., was to stop working. In early 2022 just prior to trial, he therefore gave notice to all his patients that he would no longer see them. He advised the pharmacists from whom prescriptions were obtained that he was winding down his practice. He retained his medical work he had contracted to provide to Evraz, Co-op Refinery and Haztech Health Centre [Haztech].

The Haztech contract was set to expire in the spring of 2022, but with Evraz and the Co- op Refinery keeping him on for workplace medical consultations, he expected to earn approximately $180,000 per annum from those two sources. [ 53 ] As for the negative and problematic behavior displayed towards C.A.R. in the past, he testified that he recognized it as being destructive but had merely followed the advice of his then counsel, Mr. Tapp, in proceeding as he had.

He said that while he had some misgivings about the aggressive legal advice he was receiving, he left the ultimate decisions regarding strategy and what steps to take to Mr. Tapp. Thus, D.R.R. maintained it was due to that advice that he stopped paying C.A.R. for four months in 2007-2008, not due to his own desire to stop paying her. He said that it was not that he did not have the money, but rather he said he was proceeding on the basis that Mr. Tapp was advising him not to pay. Similarly at the discovery in 2008, it was Mr.

Tapp who frequently interrupted the proceedings and told D.R.R. not to answer certain questions, essentially driving that process off the rails. [ 54 ] I find that D.R.R. was much more engaged in and approving of the aggressive tactics that were employed against C.A.R. after the separation. D.R.R. is no shrinking violet and is a very intelligent physician who readily understands complex matters. While he may have had willing counsel to assist in the stymying of C.A.R.’s claims, he was giving instructions and not receiving them.

If he had not wanted to take the steps that were taken, he could have easily said he was not going to do so. He did not say that as, at that time, he was in favour of that course of action. [ 55 ] D.R.R. denied knowledge of any and all things financial. This started with any knowledge regarding the books of his professional corp., Dr. R.R. Medical Prof.

Corp., established in 2007 and extended to the books of the other corporation, his investment corporation, --------- Investments Ltd. [investment corp.] and went as far as saying he had no idea how much income he earned each year or how much he paid annually in expenses. He disavowed knowledge at every turn and left virtually every question relating to his own income and expenses either unclear or to be answered by his recently retained accountant, Mr.

Knight. [ 56 ] D.R.R. testified at trial that the reason he transferred all of the assets in the professional corp. to his new partner C.T. was because of his 2018 relapse and the fact that she was going to leave him if he did not. The explanation given was that he had lied to her and everyone else he loved and she was done with him. Her reasoning, according to D.R.R., was that she needed to be in control of the security she was counting on for her life, therefore she needed to be in charge of all the assets.

He testified that he complied as he was generous, because he was indebted to her, because she did not leave him and due to the fact that she had sunk her entire Public Employees Pension Plan [PEPP] retirement fund into the company as well as selling her house and putting the proceeds into the professional corp. [ 57 ] The explanation given at trial was somewhat different than the explanation given by D.R.R. at questioning in 2020. At questioning he simply relied on the purported investment C.T. had made as the basis for the transfer.

He said nothing at that time about it being related to a 2018 relapse, car accident or C.T. planning to leave him if he did not do as demanded and give her the entire company. D.R.R. denied that the transfer to C.T. had anything to do with him bringing an application shortly thereafter to terminate spousal support. [ 58 ] It became clear that, going forward after trial, D.R.R. could still earn a significant income, even working part- time, over the next few years.

While he said he was not skilled enough anymore or confident enough in his hands or memory to be in the ER, even aside from that lucrative possibility, I find that he still could earn $225,000 per annum working part-time without being in an ER setting. [ 59 ] D.R.R. said that he simply had to stop working or he would burn out and likely relapse. I find that to be a vast oversimplification of his situation. I accept that D.R.R. has a burden of addictions to carry with him. I accept that those need to be continually monitored and kept in check in an intentional way.

I agree that D.R.R. working seven days a week is a recipe for disaster in that regard and that he needs to ensure he does not put himself in that position again as it could well prove fatal at his age. However, the only answer to his dilemma is not that he must completely retire. I do not find that D.R.R., a practicing physician for 38 years, is incapable of drawing limits around the type of practice he could carry on with. It could easily be three days a week. Even with just the three contracts he had at the time of trial, he would earn in excess of $350,000 at that pace.

Admittedly this was a full-time load for him. [ 60 ] I reject the submission that D.R.R. either has to fully retire or he will relapse. He can work part-time if he decides that is all he will do. I find that he can make that work without it becoming overwhelming. I am convinced he can still work 60% - 70% of the time and not find himself faced with a return to his addictions.

He will need to continue in AA and counseling, but that is something he certainly ought to be doing, retired or not. [ 61 ] I do not need to find that D.R.R. intentionally stripped himself of assets in order to appear impoverished in his upcoming application to end his spousal support obligation. The fact it happened is suspicious and sufficient evidence to me that he cannot be simply trusted regarding the bona fides of decisions he makes of a financial nature.

Oversight and full revelation are both required as, if D.R.R. is to be believed, he cannot make those decisions on his own in any event. [ 62 ] I find that D.R.R. does or should still have a significant interest in the building he purchased for his clinic. While his plan on staffing it with doctors and having a collegial practice therein did not meet with his aspirations, it was also not a complete loss to D.R.R. It had, and has, value. I find that D.R.R. still has a significant capacity to generate income, even while maintaining his

mental health and keeping the issues at bay that might create a spiral into a relapse. [ 63 ] Regarding D.R.R.’s tax returns and notices of assessment, he testified that he never looked at them, but he just paid the bills if there were some to pay. Regarding why they were not provided to C.A.R. for a decade, he replied “she never asked for them”.

He said he “lives one day at a time”, he is “an addict” and he “could relapse tomorrow” as further explanation in that regard. [ 64 ] In relation to D.R.R.’s notion that over $400,000 was put directly into the company by C.T., it was not established to my satisfaction that this occurred. While it was established that C.T. had received a net amount of $194,000 from the sale of her home, that occurred in 2012. The building was purchased in 2016. No explanation was offered regarding what happened to the $194,000 during that four-year period. C.T. was not called as a witness.

It is therefore not something I find as a fact. [ 65 ] D.R.R. possessed woefully inadequate knowledge of anything financial, whether it be his or C.T.’s, and there is insufficient evidence to conclude that $194,000 was used for the purposes of the investment corp. It could easily have gone to pay down debt. It could also have been used to travel. It was four years earlier than the purchase of the building and it is entirely uncertain based on D.R.R.’s evidence what was done with it.

The evidence it went into the building in one way or another is sorely lacking. [ 66 ] D.R.R. confirmed that “full-time” positions in his profession in Regina are those that equate to 1,400 hours per year with the Saskatchewan Health Authority. He noted that essentially no one works “full-time” as a doctor anymore as they have all determined that is a burnout pace. If 1,400 is divided by 12, it equates to 116 hours per month, or 27 hours per week.

If 10 weeks are removed for annual vacation, this still amounts to only 33 hours per week. [ 67 ] D.R.R. did not provide any documentation supporting his testimony that he was under certain imposed professional conditions resulting from his 2018 relapse. No reasons were given as to why no such documentation was provided. I do not find that the conditions he testified to have been proven.

Thus, while I accept that D.R.R. has to be careful with his time and with his health, I cannot accept that conditions have been placed on him by the College of Physicians and Surgeons in that regard. [ 68 ] It became apparent that D.R.R. could still obtain work as an ER doctor, a hospitalist, or in his own practice. I accept that there comes a time when the ER is not a particularly good option given the stress involved and his age and the limitations those present. I do not consider working in the ER to be viable for him presently.

I do not find that the intensive care unit is an appropriate option for D.R.R. either. The 24 hour shifts required there are not something that would work with his age and health issues. [ 69 ] However, I do find that three to four days a week is still viable for him to practice at this point in his career, given his age and the other circumstances in his life. Doing so, I find that he can earn $225,000 per year without putting so much stress on his situation that he has additional health risks. This type of work

schedule cannot last forever either. It can last for at least three and possibly five more years though. Nothing was established to my satisfaction that I find limits him to substantially less than that. [ 70 ] D.R.R. testified that his pandemic duties medical salary was $200 per hour. He says that will not carry on for much longer. There are other opportunities such as locums which could work for D.R.R. as well. He is familiar with this given his relationship with Dr. Delgado. This is but one example of various opportunities he could avail himself of.

D.R.R. did not produce any of the agreements he currently has for services, including with Co-op Refinery, Haztech, or Evraz. The reason was not apparent. [ 71 ] Noticeable by its absence are C.T.’s 2020 tax records. There was evidence of a substantial increase in her business in 2020 due to Covid and the increase in people’s interest in home-based hobbies and activities. However, one of the only indicators of her income was that on D.R.R.’s 2020 return where he declared her income as being $123,301.

With $55,000 of it apparently coming from the professional corp. for her management services, this results in a net income of some $73,000 from C.S.Q.N. [C.S.Q.N.]. [ 72 ] I find that D.R.R. has not made good faith attempts to apprise C.A.R. of his financial situation at any time since the separation. The history of this litigation demonstrates that his recurring pattern is to underestimate what he will or has earned and subsequent verification of the facts shows it is more. It involved outright denials to access relevant information when Mr. Tapp was his counsel.

It continued through a lack of any voluntary or complete disclosure from 2009 through to 2019. It includes resistance to providing C.T.’s tax and income information until it appeared to be necessary and then only the years in which she declared no significant net income from her business. [ 73 ] I do not find that the basis on which the entirety of the investment corp. was transferred to C.T. is legitimate. I find that it was part of D.R.R.’s plan to not have significant assets available which might confirm that he could pay spousal support at this time and into the future.

While D.R.R. is in the dark over many financial matters, I do not accept that he is so entirely ill-informed that he cannot conclude that the lower his income and the less assets he is seen to have, the better his chances at avoiding spousal support become. He is very intelligent and knows this is how the system of support allocation works. The result is that I will not be giving him the benefit of the doubt when contradicted evidence arises and he is on one side of the contradiction. [ 74 ] It was established that C.T. had a reasonable income when she began dating D.R.R. in 2005.

It was in the range of $75,000 and came from SaskTel, thus was quite stable and unlikely to suddenly cease. I find that she would not readily give that up if she was to then earn nothing, as her financial statements suggest from C.S.Q.N.’s. She is earning something, and it is considerably more than what she shows on her earlier tax returns which are in evidence. [ 75 ] I find that D.R.R. has consistently understated the income he is earning. Each time the matter has been to court it has subsequently been established that he makes more than what he swears to being able to earn.

His regular refrain of not having the streams of income now that he had previously, has never been accurate. I find his evidence of impoverishment highly suspect. I do not accept it. [ 76 ] It became apparent that D.R.R. did not even fill out his own financial statement. While it is not clear just who did, given the other evidence, it is most likely C.T. It also became apparent that the expenses were for the entire family including their adult daughter Meghan. It attributes no payment of expense to C.T.

[ 77 ] D.R.R. provided little concrete evidence of his 2021 income, even though the trial took place in late February 2022. When re-examined he seemed to confirm his 2021 income will likely be similar to his 2020 income. I find his 2021 income will be, or alternately could easily be if he wanted it to, similar to his 2020 income. Adam Knight [ 78 ] D.R.R.’s and C.T.’s new accountant testified that he was retained in 2019 to take over the accounting functions for them personally and for their corporations.

He said C.T. approached him with what she thought was a flaw in the previous accountants’ method of dealing with the rent paid and the Royal Bank of Canada’s characterization of same. He agreed, and then restated the relevant accounts with respect to the income tax returns and financial statements to reflect that. The essential issue was in relation to the leasehold improvements and how those were expensed and subsequently characterized.

The effect of the restatement was that the net taxable income of the professional corp. would be reduced for the years affected by the allocation of the leasehold improvement costs. [ 79 ] When explained further, Mr. Knight said that the change was from “operating” lease to “capital” lease, which corrected the situation. This added a not inconsiderable sum (plus GST) to the leasehold payments the professional corp. would be shown as making from 2017 forward. [ 80 ] Mr.

Knight testified that the methodology used to determine what income might be available for support payment purposes was complicated by the bonus declaration and payment situation used by the corporation in various years. Ultimately, he provided that the bonus was properly allocated to the year and not double counted, it would show up and become part of that income available for support purposes calculation. [ 81 ] I do not find the recalculation to be motivated on Mr. Knight’s part by untoward goals. I accept that Mr.

Knight was approached by C.T. and a different method of calculating the lease payments by the professional corp., and C.S.Q.N.’s appeared as appropriate to him. He revised the calculations accordingly. I do not find he was involved in any kind of scheme to lower D.R.R.’s income or asset value so D.R.R. could avoid support obligations to C.A.R. That is not, however, to say there was no such effort on the behalf of others. [ 82 ] Mr. Knight testified that it was his knowledge and understanding that the Investment corp. was established to be the entity to hold the building at 1230 St. John Street, Regina. [ 83 ] Mr.

Knight testified that the information he possessed was that C.T. had put her PEPP funds into the professional corp. in the amount of $120,000. This was not direct knowledge of his as it occurred prior to his time as the accountant for C.T., D.R.R. and their corporations. I accept that he was not their accountant at the requisite time and therefore not privy to the reasons D.R.R. transferred all of his interest in the investment corp. to C.T. in 2018. Thus Mr. Knight had no admissible evidence to assist in clarifying that transfer. [ 84 ] Mr.

Knight confirmed that only employment income can be used to build up Canada Pension Plan [CPP] credits. Thus C.A.R. could not have used some of the spousal support she earned to build those. I do not, however, find that this gap in C.A.R.’s retirement prospects ought to be visited on D.R.R. C.A.R. ought to have been working full-time for many years and building up her credits with CPP. It is due to her own lack of initiative that they are now absent. DISCUSSION [ 85 ] The objective here is to determine whether arrears of spousal support exist and, if so, in what amount.

This requires a consideration of the orders that exist and the effect of those orders on the present application, now advanced through a trial of the issue. Spousal Support Legislation Governing Spousal Support [ 86 ] Spousal support is established by s. 15.2 of the Divorce Act as opposed to s.17 of the Divorce Act : 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.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim 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, pending the determination of the application under subsection (1).

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

(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.

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

(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 any obligation 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. [ 87 ]

Section 17 relates to variation applications and states: Variation order 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, (

a) a support order or any provision of one, on application by either or both former spouses; . . . Conditions of order 17(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order. . . .

Factors for spousal support order 17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. . . .

Conduct 17(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. . . . Reasons 17(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so. . . . 17(7) Objectives of variation order varying spousal support order 17(7) A variation order varying a spousal support order should (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [ 88 ] Justice McIntyre made the inapplicability of s. 17 clear in the consent judgment of December 2005 which stated: D.R.R. shall pay spousal support to the Petitioner C.A.R., in the amount of $6,500 per month. The said payments shall be made commencing January 1, 2006 and $3,250 shall be payable the first day and $3,250 payable on the 15 th day of each and every month until November 1 of 2007.

At that time, the issue of ongoing spousal support shall be reviewed by the parties and in the absence of an agreement, by the court. The said review is to be a review pursuant to the provisions of

Section 15 of the Divorce Act . Neither the Petitioner nor the respondent shall be required to show a change of circumstances at the time of the review. Failing agreement, either party may apply to the court for the determination of ongoing spousal support.

[89] Justice Gunn stated that her direction of the issue of spousal support to trial was “an interim” order. While thiswill be discussed further later in this decision, it is a key factor and one that should not be overlooked. [90] The factors in the Divorce Act are not, individually, to be determinative of the issue of spousal support. As setout in Moge v Moge, (SCC), [1992] 3 SCR 813 [Moge] and Bracklow v Bracklow, (SCC), [1999] 1SCR 420 [Bracklow] and numerous Saskatchewan cases following these decisions, all appropriate factors should be considered inarriving at a conclusion.

The circumstances of a particular case are to be considered and weighed when evaluating these factors. Forms of Entitlement [91] In Bracklow, the Supreme Court of Canada recognized three “conceptual grounds” for entitlement to spousalsupport: 1) compensatory, meaning compensation for foregoing opportunities, making economic sacrifices or conferring economicadvantages on the other spouse; 2) contractual, which examines whether any express or implied agreements between the spouses existed;and 3) non-compensatory, which is based on need and a spouse’s ability to support themselves. a.

Contractual Ground [92] No argument or evidence was put forward regarding the contractual basis for support so it will not beconsidered. This leaves the compensatory ground and the non-compensatory ground to consider. b. Compensatory Support [93] In D.B.B. v.

D.M.B., 2017 SKCA 59 [D.B.B.] entitlement in this category was described as follows: [78] The first two objectives in s. 15.2(6) of the Divorce Act primarily relate to the compensatory purpose of spousal support ...Whenlooking at compensation, the question facing a court is what is the spouse’s loss that the marriage or marriage breakup caused that wouldnot have been suffered but for the marriage ... This inquiry must be made while recognizing that compensatory spousal support may alsoaddress any economic advantages enjoyed by the other spouse as a result of the recipient spouse’s efforts.

The British Columbia Court ofAppeal in Chutter v Chutter, 2008 BCCA 507, 301 DLR (4th) 297 [Chutter], leave to appeal to the Supreme Court of Canada dismissedwith 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). (Emphasis in original) [94] Regarding spousal support to compensate C.A.R. for missed career opportunities given up during this marriage,it is established that she had the capacity to work as a skilled secretary in a medical office relatively early in the relationship.

She workedin such capacity until the children came along, in 1986. She put her emphasis on being a mother and caring for her family after that, asagreed to by D.R.R. They moved frequently in the early years in pursuit of employment or a career with three young children to care forwhile D.R.R. put in long hours. Building her career was not viable for her. [95] It is accurate to say that, as desired by both C.A.R. and D.R.R., the family’s priority was having C.A.R. parenttheir children when they were younger. This meant she would not work full-time while they were young.

As a result, she did not work onher career independently during the relationship and instead cared for the children and did part-time secretarial and office management atD.R.R.’s clinic when the children were at school or otherwise occupied. [96] I find that no particular career path had been planned by C.A.R., nor was one therefore subsequently forsakenfor the marriage. C.A.R. desired to be the primary parent for the children and D.R.R. earned sufficiently to provide for the familywithout her having to do otherwise.

While C.A.R. had the potential for a career in secretarial and office management, that was notindicated as her goal or passion nor something she felt she had to relinquish due to D.R.R. [97] However, D.R.R.’s earning power was increased due to C.A.R. taking on the primary responsibility and role ofinvolved and caring mother to their children. This, however, as it impacted her employment alone, does not reach the level wherebycompensatory spousal support entitlement is created on that basis.

It is correct to observe that C.A.R. would not have had an opportunityto sink roots into a career given D.R.R.’s pursuit of various positions throughout western Canada and relatively frequent moves.However, C.A.R. did not persuade me she was interested in a career and was subsequently stymied by the placement of D.R.R.’s careeras the first professional priority. If C.A.R. had been keen on a career, she would have pursued and likely found something of that nature

after 2006. [98] Nonetheless, C.A.R.’s efforts to support D.R.R. are clear. She moved frequently with D.R.R., cared for andraised the children so that D.R.R. could pursue his lucrative professional career. Not only did she hold the family together by puttingherculean efforts into the children and their lives, she kept it all together through D.R.R.’s demanding hours, frequent moves and years ofaddictions. It is obvious that C.A.R. imbued substantial economic advantages on D.R.R. through these types of sacrifices.

This issufficient to meet the requirements of compensatory spousal support. [99] Thus, the requisite factual underpinnings to a conclusion that compensatory support is owed here do existdespite C.A.R.’s lack of a career path. [100] Spousal support is also properly considered here via the non-compensatory factors in s. 15.2(4) taking intoaccount the objectives in s. 15.2(6) as well. c. Non-Compensatory Spousal Support [101] As noted earlier, none of the objectives in s. 15.2(6) are to be given more or less importance than the other.

Thiswas noted in Moge by L’Heureux-Dubé J. at 850: The most significant change in the new Act when compared to the 1970 Divorce Act may be the shift away from the “means and needs”test as the exclusive criterion for support to a more encompassing set of factors and objectives which requires courts to accommodate amuch wider spectrum of considerations. This change, of course, does not signify that “means and needs” are to be ignored.

Section 15(5)of the Act specifically states that “the court shall take into consideration the condition, means, needs and other circumstances of eachspouse”. [102] The Saskatchewan Court of Appeal provided direction on the matter of spousal support as identified in Moge inRussell v Russell (1999), (SK CA), 180 Sask R 196 (QL) (CA), where Jackson J.A. stated at para. 126: 126 Much has been written analysing Moge. For the purposes of this case, Moge underscores the need not to over-emphasize any onefactor or focus on any one model of support.

To determine whether spousal support is to be ordered, a court must consider all factorsincluding the standard of living of the spouses before and after divorce, their means to satisfy living expenses and their ability to becomeself-sufficient after the breakup of the marriage... the economic disadvantages and hardships caused by marriage cannot be as easilyquantified. [103] The intended effect of the objectives in the Divorce Act provisions is to promote an equitable sharing of theeconomic consequences of the marriage. When it breaks down, the effects on the parties must be evaluated.

Economic disadvantage isnot merely a lost opportunity or a career disadvantage. It includes the loss of resources and benefits which were available to the partieswhile they were in the marriage or if they were still in the marriage. [104] In Bracklow, McLachlin J. (as she then was) states at para. 41: 41

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

But thethird and fourth objectives are difficult to confine to that goal. “[E]conomic hardship ... arising from the breakdown of the marriage” iscapable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject ofcompensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, at pp. 251-53 [4th ed (Scarborough: Carswell,1996)], but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.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” [(1996-97), 14 CFLQ 281] at pp. 371-72 (emphasis in original)). [105] As recognized by Justice Megaw in Chepil v Chepil, 2014 SKQB 341 at para 44, 458 Sask R 289: “[t]heemphasis is not to be simply on a “dividing up income” test but rather on the complete circumstances of the parties”. [106] The parties’ “means and needs” is to be kept in balance with the other factors. “Means and needs” has been the subject of much comment and analysis.

Justice Sandomirsky indicated in Leepart v Leepart, 2009 SKQB 47 at para 16, 66 RFL (6th)144: [16] ... each former spouse is a unique individual and each marriage is in some ways also unique. Each divorce is therefore in someways unique and life after divorce for the former spouses has its own unique nature. That is the human condition.

Thus, when examiningthe conditions, means, needs and other circumstances of former spouses, no two cases are identical.” ... [107] Justice Foley, in Frank v Linn, 2013 SKQB 28 at paras 188-189, 412 Sask R 164, set out a helpful analysis: [188] What constitutes “needs” and “means” has been judicially considered by a number of courts.

I accept that “needs” encompassessomething more than expenses associated with “subsistence”. “Needs” must be assessed in light of the lifestyle and standard of livingwhich existed during the spousal relationship and by each of the parties following the breakdown of the relationship. (See: Chutter v Chutter [2008 BCCA 507, 60 RFL (6th) 263] at paras 54 to 58) .... [189] With respect to “means”, I adopt the definition enunciated by Julien D. Payne, Payne on Divorce, 4th ed (Toronto: Carswell,

1996) at pages 252 and 253.

He defines “means” as “all pecuniary resources, capital assets, income from capital assets or from employment earning capacity and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person.” [ 108 ] The Saskatchewan Court of Appeal, in D.B.B. has addressed the purposes and objectives of spousal support: [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 has increased the earning power of one spouse at the expense of the other spouse. Secondly, it serves to relieve the financial need which a spouse 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 Advisory Guidelines (” SSAG ”), the strength of the compensatory and needs-based claims to spousal support both (

i) influence the amount chosen within 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 for entitlement, as the status of being married does not automatically entitle a spouse to support... [ 109 ] Further in D.B.B. , entitlement regarding non-compensatory support was described as follows: [78] The first two objectives in s. 15.2(6) of the Divorce Act primarily relate to the compensatory purpose of spousal support ...When looking at compensation, the question facing a court is what is the spouse’s loss that the marriage or marriage breakup caused that would not have been suffer ed but for the marriage ... . . . [82] Non-compensatory support primarily relates to the objectives found in ss. 15.2(6) (

c) and (

d) of the Divorce Act and is considered an obligation owed arising from the marriage relationship itself ( Bracklow ). In Chutter , the British Columbia Court of Appeal discussed the 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 an interdependent union.

It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state ( Bracklow , at para 23 ). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support. [ 110 ] C.A.R. did not proceed to earn a significant income of any type after separation. On the other hand, D.R.R. has continued to generate a very significant income for himself since separation.

He has had, and still has, the capacity to generate income in various ways, including his own practice, contracts such as with Evraz, Haztech and the Co-op Refinery or by providing hospital based care. [ 111 ] However, in order to ascertain what may or may not be appropriate, an examination of the relative economic positions of the parties here is in order. This is necessary so as to consider whether C.A.R. qualifies for non-compensatory spousal support. In order to determine just what income C.A.R. is to be considered as having, some additional assessment is appropriate.

Imputation of Income [ 112 ] The income of the parties for purposes of support must be determined pursuant to the Guidelines . Section 2(1) of the Guidelines provides that “income” means annual income determined under ss. 15 to 20 of the Guidelines . The following sections are of interest in the context of this application: 15

(1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20 .

(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the 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. 16 Subject to sections 17 to 20 , a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. 17

(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. . . . 18( 1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under

section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in

section 17 and determine the spouse’s annual income to include (

a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent

taxation year; ... 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

b) the spouse is exempt from paying federal or provincial income tax; (

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the spouse’s property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so; (

g) the spouse unreasonably deducts expenses from income; (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate thanemployment or business income or that are exempt from tax; and (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction ispermitted under the Income Tax Act. C.A.R.’s Income at Present and Going Forward [113] C.A.R. has training in secretarial services in the medical field. She has worked in various capacities includingsome record keeping and office management. She has been paid in the range of $25,000 to $33,000 per annum, depending on the year,prior to the separation. [114] C.A.R. indicates that she presently earns between $2,495 and $12,612 annually on a part-time basis.

Sheacknowledges that she could be attributed with income at minimum wage times full-time hours, or approximately $23,000 per annum. [115] I find that C.A.R. could have moved to full-time work some time ago. While the toll inflicted by D.R.R. and histhen counsel was heavy, and I would not expect C.A.R. to start full-time employment immediately upon separation, she should havetaken that on by some point in 2010 and continued after that. As set out in s. 19(1)(

a) of the Guidelines, imputation of income issometimes required to bring accuracy and fairness to the analysis. [116] In accordance with s. 19 of the Guidelines, a discretion is provided to impute income where the court considers itappropriate in the circumstances to do so. In V.G.B. v E.H., 2004 SKQB 280, 250 Sask R 272 [V.G.B.], a three step process for thisanalysis was recognized. At para. 13, the court stated: [13] Any analysis of s. 19(1)(

a) requires a three-step process. Firstly, the court must determine whether the parent is intentionallyunder-employed or unemployed. Secondly, if the parent is intentionally under-employed or unemployed, the court must determinewhether any of the exceptions set out in s.19(1)(

a) apply. Those exceptions cover situations where the under-employment orunemployment is required by reason of (1) the needs of a child of the marriage; (2) the needs of any child under the age of majority; (3)the reasonable educational needs of the payor; or (4) the reasonable health needs of the payor. Finally, if a court determines a parent isintentionally under-employed or unemployed and that none of the exceptions set out in s. 19(1)(

a) apply, then the court must decidewhether to exercise its discretion and impute income. [117] The same analysis is applicable for spousal support purposes. In V.G.B., the court addresses the meaning of“intentionally underemployed or unemployed” at para. 15: [15] ...

I adopt the reasoning of the Manitoba Court of Appeal in Donovan [2000 MBCA 80, [2000] 10 WWR 214] and the OntarioCourt of Appeal in Drygala, supra [Drygala v Pauli (2002), (ON CA), 29 RFL (5th) 293 (Ont CA)] and find“intentional” extends to situations where a parent required to pay child support chooses, for whatever reason, to earn less than they arecapable of earning. The fact the parent “chooses” to be under-employed or unemployed, brings their situation within the meaning of“intentional” and creates the circumstance envisioned by s. 19(1)(a).

The reason for such a choice does not change the fact it is“intentional” but it may impact the court’s decision whether to exercise its discretion and impute income. [118] C.A.R. was not employed for much of the relationship nor full-time since it ended. She has useful training,intelligence and skills and could, using those, have generated a reasonable income. It is now over 17 years since the separation.

I findC.A.R. has pursued generating an income to a very limited extent, however, the question is whether it has been in an appropriatelydiligent fashion as required at law to engage a particular range of support, even with the admission it should be full-time at minimumwage. I believe she can earn, and could have earned, a more significant income if she determined she was going to do so and pursued thatgoal with appropriate vigor. [119] Justice McIntyre put it this way in Martel v Martel, 2000 SKQB 227, 193 Sask R 225:

[25] While these decisions predate the Guidelines, they raise considerations which remain relevant under the Guidelines. Section19(1)(

a) speaks of intentional under-employment or unemployment. It is not a prerequisite to imputing income under this provision thatthe payor be intentionally under-employed or unemployed for the purpose of avoiding one’s child support obligation. Obviously, if sucha motive exists, it will weigh heavily in the decision to impute income. [26] The circumstances under which the court may impute income as listed in s. 19 is not exhaustive in nature.

The analysis which thecourt will engage in in determining whether to impute income under s. 19 is similar to the factors considered by the court prior to theimplementation of the Guidelines. [27] In determining whether to impute income on the basis of intentional under-employment or unemployment, the court ought tohave regard to what is reasonable under the circumstances.

The age, education, experience, skills and health of the payor are factors to beconsidered in addition to such matters as the availability of work, the freedom to relocate and other obligations: Carson v Buziak (1998), (SK KB), 166 Sask R 8 (Sask QB); Thompson v Thompson, 1998 ABQB 1015 (Alta QB); Lobo v Lobo (1999), 1999ABQB 107 , 45 RFL (4th) 366 (Alta QB). [120] Linn v Frank, 2014 SKCA 87, 442 Sask R 126 [Linn] is also of assistance: [96] Four principles emerge from the appellate authorities cited by Leigh Frank and from this expanded list.

First, a person isexpected to take reasonable steps to obtain employment commensurate with such factors as age, health, education, skills and workhistory. Second, a supportable finding that a person is intentionally under-employed carries considerable weight. Third, a trial judge’sdecision to impute or not to impute income is still a decision about support and must be accorded deference on appeal. Fourth, appellateintervention may be required if the evidentiary base does not support the trial judge’s decision to impute income.

In that regard, somefactors like physical and mental health, current useable skills and age play a significant role. [121] C.A.R. is working part-time. She is earning considerably less than she is capable of earning. She should beworking full-time at a position earning more than minimum wage given her training and abilities. [122] Considering step two of the three step analysis, which is whether any exemptions apply, I conclude that noexemptions have been established to apply.

Her health is not a reason not to be working full-time at a higher income-earning position oradding a second position to the part-time positions she currently has. She is intelligent, skilled, accomplished and has, if pursued,employment available to her. [123] The final step of the analysis requires the court to decide whether to exercise its discretion and impute income.

Indetermining whether it would be an appropriate exercise of discretion to impute income, as noted in D.M.B. v D.B.B., 2015 SKQB 65,474 Sask R 1, Professor Julien Payne’s principles, set out by the Manitoba Court of Appeal in Donovan v Donovan, 2000 MBCA 80 atpara 21, [2000] 10 WWR 214 are of assistance: [21] The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, ImputingIncome, “Determination of Income, Disclosure of Income,” Child Support in Canada, Danrab Inc., August 3, 1999.) 1.

There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor” (Van Gool v. Van Gool (1998), (BC CA), 166 DLR (4th) 528 (B.C.C.A.)). 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. 3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at the lower endof the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simplybecause the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6.

As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [124] While utilized there in relation to child support, the same approach in this instance is applicable for spousalsupport. [125] C.A.R. is working part-time with very few hours. She is capable, intelligent and organized. I do not find that it isreasonable to conclude the combination of her skills and experience results in a few hours each week or that minimum wage full-time isthe limit of her potential.

I conclude that it would be appropriate in these circumstances to impute income to C.A.R. for the determinationof the amount of spousal support she may be entitled to. The basis for this is to consider the income she might earn if she was to haveworked full-time as a medical secretary or an equivalent. [126] C.A.R. was shown as earning $30,000 plus when she was assisting D.R.R. While I accept that this was also aform of income splitting, it would need to bear a semblance of accuracy and legitimacy to be put forward and accepted by CanadaRevenue Agency.

Considering C.A.R.’s health, past income, her education, skill set, experience, the fact she has been professionallyqualified previously and has had experience in the medical secretarial/office management forum, I impute income in the amount of$45,000 to her as employment income.

D.R.R.’s Income Potential at Present and Going Forward [127] D.R.R. was full-time in his career of choice: medical doctor, until early 2022. His declared employment incomefor 2020 is $126,000. He submits the pre-tax corporate income [PTCI] not including the $23,636 Covid subsidy fo

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