TAYLOR HOFFMAN PETITIONER - v. -, 2023 SKKB 146

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 146 Date: 20 23 07 07 Docket: DIV-ES-00049-2021 Judicial Centre: Estevan BETWEEN: TAYLOR HOFFMAN PETITIONER - and - LEE TYTLANDSVIK RESPONDENT Counsel: Lindsay Hart for the petitioner Jeffery Deagle for the respondent JUDGMENT MEGAW J. July 7, 2023 Introduction [ 1 ] The trial of this matter proceeded on the issues of parenting, child support, and spousal support. The granting of a judgment of divorce was not disputed.

The family property issues had been virtually resolved by agreement with the exception of one relatively small issue regarding an outstanding SaskPower account.

The parties have requested the court include a determination of that single property issue. [ 2 ] The respondent, father’s, behaviour towards the petitioner, mother, both verbally and financially has raised issues of whether he has engaged in conduct considered to be family violence towards her and, if so, whether that should have an effect on the parenting regime to be implemented. [ 3 ] I determine that the father’s behaviour does constitute family violence, and this conduct has and will have an impact on the parenting arrangement that is in the children’s best interests.

I determine to leave parenting as it has been for the past year and decline to put in place a shared parenting regime. With respect to the issue of support, I determine the father’s income by imputing certain amounts, and including those in his actual earned income. I then determine child support and entitlement to retroactive child support. I determine that the mother has not established an entitlement to spousal support.

Finally, I determine the SaskPower account is to form part of the family property division. [ 4 ] The parties requested that the court refrain from determining the issue of costs until they have been provided with an opportunity to speak to that matter following delivery of this judgment. [ 5 ] My reasons follow. Background [ 6 ] The parties began living together in April 2014 and were married on September 24, 2016. They separated on April 22, 2021. They have three young children ages 5, 3 and 2.

Most recently, the parties have been parenting the children pursuant to a parenting order granted by Mitchell J. on March 31, 2022. Pursuant to that judgment, the children are to primarily reside with the mother and the father is to receive specified parenting time. Commencing May 3, 2022, his parenting time has been from 5:00 p.m. every Tuesday to 9:00 a.m. every Thursday, and every second weekend commencing on Friday and concluding on Monday morning. [ 7 ] Before the birth of their children, the mother worked outside the home for a pharmacy company and for an oil company.

At the time of the birth of their first child, the mother was determined to remain at home, and she proceeded to develop a

bookkeeping business which she continues to operate from her home. Her intention at the time was to grow her clientele such that she was able to earn at least what she had been earning in her other positions. That home accounting business has grown, and the mother is now earning more from that work than she was earning when she was in the regular workforce employed outside her home. It is every reason to expect this business will continue to grow and be successful. [ 8 ] The father works principally as a centrifuge technician and is on call for required work on a 24/7 basis.

In addition to that employment, he has historically worked for a local farmer as a farm labourer. During the marriage he also engaged in a side venture making and selling wooden yard game toys. He testified that he no longer engages in that latter venture but rather, his girlfriend is now the one who builds and sells the toys using his equipment. [ 9 ] It is in evidence that the father had deliberately misled the court in earlier proceedings regarding the referenced farm work. At that time, he swore an affidavit deposing that he did not do farm work in 2022.

This was a mistruth as he had worked for this farmer during spring seeding last year. That mistruth will affect the final assessment of his income. [ 10 ] The father asserts that the mother has also failed to testify accurately on certain specific issues. These issues concern her removal of the children from the day-care provider and her testimony regarding a new client she had obtained through her home-based business. I am unable to determine that the mother did not testify accurately on these issues. However, in any event, these issues played no

part in the substantive determinations in this judgment. [ 11 ] Direct communications between the parties have been difficult. While it appears they have been able to ultimately communicate by electronic means regarding the children’s activities, it appears that the father’s behaviour and words towards the mother have, at various times, been inappropriate causing a fracture in their ability to talk and communicate freely.

The evidence indicates that the father has, at times, been exceedingly demanding of the mother and has used derogatory and degrading language about her, all of these within the presence of the children. The father’s girlfriend has also made comments to her former husband regarding the mother, the mother’s appearance, and even about the ability of the mother’s lawyer.

The father has also sent electronic text messages to the mother suggestive of an intention to expose her true intentions to the judge hearing the trial of this matter. [ 12 ] The mother testified that the children must have been emotionally impacted personally by these negative words and actions. She also submits the children have been generally negatively impacted by having to attend to the father’s residence for any extended periods of time. She says the children, and particularly the eldest daughter, are often reluctant to go with the father on his parenting times. The father denies this is the case.

There is evidence of this reluctance from both the mother and the support individual that accompanies her to the exchanges. It is in evidence that the eldest daughter has experienced some emotional difficulties both in completing the exchange and while staying with the father at his residence. [ 13 ] As a result of the father’s behaviour towards her, the mother has sought to have the exchanges of the children done at a neutral public location in Weyburn, Saskatchewan.

While that location has facilitated the children going between the parents, the ongoing words and behaviour of the father have caused the mother difficulty and appear to have raised the mother’s anxiousness and concerns in these situations. [ 14 ] Following separation, the father did not maintain the bank loan payments on the vehicle the mother was operating. As a result, her vehicle was repossessed, and she was required ultimately to replace that vehicle. The father’s actions in this regard are characterized by the mother as being financial abuse.

In addition, the father has failed or refused to provide to the mother the dental insurance reimbursements for payments she made for the children’s dental treatments. She submits that he deliberately withheld these funds to affect her behaviour in this litigation. [ 15 ] Finally, there is a small matter of a SaskPower account that was outstanding following the parties’ separation. The mother argues the account was outstanding because of the father’s failure to forward the meter reading to allow the account to be assessed.

It appears the father argues that the outstanding amount accrued following separation and is therefore the responsibility of the mother. Issues [ 16 ] The evidence tendered at trial raises the following issues for determination: (

a) The granting of a judgment for divorce ; (

b) What should the ongoing parenting regime be for the parties’ three children ; (

c) What should be done with respect to decision making authority for the children; (

d) Should the parents be entitled to the first option to parent the children if the other is unavailable; (

e) Has the mother established an entitlement to spousal support; (

f) What is the father’s level of income for child support purposes; (

g) What is the mother’s level of income for child support purposes; (

h) What is the appropriate level of child support applying a Contino [ Contino v Leonelli-Contino, 2005 SCC 63 , [2005] 3 SCR 217 [ Contino ]]analysis; (

i) What should happen with retroactive child support; and

(

j) Costs. Decision

a) The granting of a judgment for divorce [17] The parties seek a judgment for divorce. I am satisfied from the evidence tendered that it is appropriate that ajudgment for divorce should issue on the usual terms. A form of judgment should be prepared and submitted to me for my review.

b) What should the ongoing parenting regime be for the parties’ three children [18] As with all parenting analyses, I start by recognizing and confirming that the sole focus of the court in thisregard is to arrive at a parenting plan which acts in the best interests of these children. The fact that one, or the other, parent seeks aparticular outcome because it is appropriate for them does not factor into my deliberations in this regard in the absence of a considerationof the best interests of the children.

In cases where I am called upon to consider an appropriate parenting plan, central in my deliberations is the following discussion and direction from the Court of Appeal in A.O. v T.E., 2016 SKCA 148 at paras 75-80, 88 RFL (7th) 34: [75] The “best interests” principle involves a child-centred analysis, representing the child’s right to “the best possible arrangements inthe circumstances of the parties” (Young v Young, (SCC), [1993] 4 SCR 3 at 84 [Young]). [76] A frequently cited passage in Young is Justice L’Heureux Dubé’s comment at pages 65 and 66: A determination of the best interests of the child encompasses a myriad of considerations, as child custody and access decisions havebeen described as “ones of human relations in their most intense and complex form”.

In contrast to most issues that come before thecourts, such decisions are “person oriented” rather than “act-oriented” and require an evaluation of “the whole person viewed as a socialbeing” [citations omitted]. Courts are required to predict the happening of future events rather than to assess the legal import of past actsand judge the effect of various relationships on the best interests of the child, all the while weighing innumerable variables without thebenefit of a simple formula. [77] It is indisputable that the focus in the law is not upon parental rights to custody.

Rather, it is upon the child and the child’s bestinterests. The “best interests” analysis is approached from the perspective of significance to the child, not from the perspective ofparental rights. The principle was enshrined in King v Low, (SCC), [1985] 1 SCR 87 [King], which held that parentalclaims were entitled to serious consideration but must be set aside where the welfare of the child demands it. [78] The King decision involved competing claims to custody between a biological mother and adoptive parents.

The Supreme Courtupheld the trial judge’s finding that the child had a primary attachment to the adoptive parents and that it could be too disruptive to thechild’s future development to return him to his biological mother. In King, there was considerable evidence at trial about bonding andattachment. As a result of the finding that it would be traumatic for the child to be moved, the child’s best interests demanded that theties of blood and kinship be set aside. [79] The trial judge reviewed the Supreme Court of Canada decisions, relevant Saskatchewan authorities, and

Article 9 of the UnitedNations Convention on the Rights of the Child [Convention] to which Canada is a signatory. The Convention calls on members torecognize the integrity of the parent–child relationship, but subject always to the best interests of the child. [80] The trial judge concluded that the respondent’s blood tie to C was an important, but not a controlling consideration. The bestinterests of the child remained paramount.

He expressly stated that should the evidence establish that the child’s best interests lay withthe appellants, the fact the respondent was the biological parent would have to be set aside. [19] I also find the following practical observation from Prime v Prime, 2020 SKQB 326 at para 59 [Prime], to be ofassistance in ensuring that I fully consider the actions of the parties and not just react to the immediacy of whatever has taken placebetween the parties, in sometimes difficult emotional moments: [59] And, I am mindful the determination of the best interests of the children is not based on a picture of perfect parenting by eitherparty.

The course of family life is such that specific incidents, which do not actually endanger or adversely affect children, do not impactthe final decision. The court must consider the entirety of the situation involving the children. Parents are not expected to be free ofmistake or misstep. They are expected to have the best interests of their children in mind.

And, they are expected to parent in accordancewith these best interests. [20] This observation ensures that when the entirety of the situation is examined, and all of the behaviours by aparent are fully considered in a best interest analysis. [21] In considering the children’s best interests, I am specifically, but not exclusively, guided by the factors set forth in the Divorce Act, RSC 1985, c 3 (2d Supp) [Act]. While not all of those factors will necessarily be considerations in any particularsituation, they do, overall, provide both guidance and focus to the court. [22]

Section 16 of the Act provides as follows: Best interests of the child 16

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contactorder. Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor. Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order. [ 23 ] In view of the evidence called at this trial, I begin my analysis by reviewing the issue of family violence (s. 16(3)(

j) and s. 16(4) of the Act ). This review requires firstly a consideration of whether the totality of the father’s behaviours should be considered to be family violence. If so, I must then consider the effect of those behaviours on the best interests of the children. I must

also consider the effects of those behaviours on the mother and the ability of the parents to communicate as well as the appropriateness of causing such communication in the circumstances disclosed by the evidence. Finally, I must consider what if any steps the father has taken both to recognize these behaviours and then to correct them. This allows for a determination of whether the children and the mother will continue to be exposed to these ongoing words and actions.

While all of these considerations are part of the Act , it is important to consider them specific to this family and what has been occurring between these parents. [ 24 ] In approaching this task, I determine the court must look to the entirety of the behaviours. By this I mean that I should refrain from keying in on isolated actions or words that do not appear to fit within the sense of the parties created by the entirety of the evidence.

It is only after a complete review of the evidence that a determination in this regard can be applied to the best interests of the children. [ 25 ] In this action, the mother submits that the father’s actions and words at certain of the exchanges of the children, his inappropriate electronic communications, the suggested presence of derogatory discussions about the mother in the father’s home, with the financial concerns regarding non-payment of the vehicle loan and non-reimbursement of the dental insurance repayments, raises, in its totality, the spectre of the father having engaged in family violence against the mother. [ 26 ] The father disputes whether his behaviours constitute family violence as that term is defined in the Act .

It is not clear exactly how he does seek to characterize his actions. The argument presented following trial appears to attempt to explain the father’s actions at the exchanges as being the result of being involved in emotional litigation and the parties’ general inability to communicate. The father seems to dispute the mother’s indication that his actions could have been perceived by her to have had a negative emotional impact on her.

Finally, he seeks to explain his various actions by asserting that while he may have acted inappropriately it does not rise to the level of violence and therefore has no effect on his parenting. It may be that he is asserting such bad behaviour is understandable in this family law litigation and therefore is to be excused. [ 27 ] With respect to the financial issues, the father seeks to justify his actions on the basis of the parties’ financial situation (with respect to the vehicle), or his lack of understanding on how the dental insurance reimbursements actually worked, and the fact they were not his funds.

He appears to deny any ill-motive or abusive behaviour on both of these fronts to the mother. He spent little time in his testimony explaining why he had done the things he had done in this regard. There was no explanation regarding the suggestion of any lack of understanding on his part. [ 28 ] The evidence with respect to the father’s various actions and words, as relayed by the mother, is essentially not disputed by the father. The mother testified to those behaviours and words and the specific incidents were put to the father during his cross-examination. He admitted having done them.

He provided no explanation for having done what he did. He gave no apology for those behaviours or words. And more importantly for this action, he gave no indication of either having taken or intending to take any steps to cause him to recognize and improve his behaviour. At most, his testimony at trial might have indicated a regret with respect to the actions. It was left without explanation whether any such regret was solely the result of these actions having become the subject of evidence at trial or true remorse on his part.

There was no indication in the evidence of any genuine remorse by him for his actions and their impact on the family. [ 29 ] More directly pertaining to this parenting analysis, there was no indication from the father of any recognition of the effect his behaviours have had on either the children or the mother. He disagreed that the children, and specifically the eldest child, was showing any reluctance to go with him on the exchanges. He did not comment on how his words and actions might have been perceived and received by the children.

He gave no indication of any level of understanding on how his behaviours, coupled with the apparent talk of his partner, could have impacted upon the mother and her ability to interact with him on decisions affecting the children. I now identify the specific incidents of concern. [ 30 ] At exchanges of the children, the father has engaged in rude and demeaning comments directed at the mother. Those comments have been with respect to her weight and her physical appearance. He did the same thing when the mother was at an exchange with a friend of hers.

These demeaning remarks were made in the presence of the children because they occurred at the time of the exchanges. Obviously, there was no purpose in saying what was said other than to reduce the mother’s self-worth. While the comments could be said to be childish, they went beyond that in how they were received by the mother. [ 31 ] Further of these demeaning behaviours by the father occurred when he insisted at the exchanges that the mother climb into the bed of his truck to retrieve the child’s stroller for her parenting times. He owns a large truck so climbing into the bed was no simple feat.

The father could have easily retrieved this stroller, but he refused to do that causing the mother to crawl into the back of the large truck. [ 32 ] The mother testified as to the father and his new partner watching her do this act. She holds the impression they were laughing at her when she had to do this and thereby making fun of her efforts in this regard. They deny that is the case. Regardless, they did nothing to assist her. Moreover, their denial does not much matter because the mother testified as to feeling humiliated by what happened.

She testified to having cried and being emotional at the exchanges as she did and was when giving her testimony. And, again, this all occurred in the presence of the children at the time of exchanges. The children would have seen the mother struggling to get into the bed of the truck and they would have witnessed her emotional reaction and humiliation. At the time of the trial this behaviour continued. [ 33 ] The father sought to justify making the mother do this because he had to retrieve the stroller, on at least one occasion, from the back of the mother’s SUV.

The father did not dispute the mother’s emotional reaction. He expressed no appreciation or understanding for what effect his behaviour had on the mother or the children. It seemed that his proposed justification of having had to retrieve the stroller from the mother’s SUV was sufficient explanation for him. [ 34 ] At one exchange, the mother had neglected to bring the runners one child used for a soccer game on the coming weekend. The father engaged in an aggressive argument with the mother insisting that she return to her home to get the shoes immediately.

She declined to do that but did indicate she would deliver the shoes in time for the event. That was not the response the

father sought. Inexplicably, he then attended to the mother’s home, while she was not there, and shouted and gestured aggressively directly into the home security camera at the home. It is apparent that he shouted into the camera for the mother’s attention. The words used were aggressive and carried with them an implicit, if not explicit, threat of physical violence towards her.

On top of all that, the children were in the father’s vehicle at the time he was doing this and must therefore have been in a position to see, and even hear, what he was doing, at their home, with words directed to their mother. [ 35 ] When questioned about this specific incident, again he admitted it had occurred but offered no explanation and no apology. There was no indication given that he now understood how egregious this behaviour was nor what effect it would have on the children or the mother.

There was a general impression left that the father did not view this incident, or any of the other incidents as being of any significance to a consideration of the best interests of the children. He provided no indication that he understands the fear his words and actions generated. [ 36 ] On at least two occasions, the father used the threat of these court proceedings to attempt to cause the mother to adjust her actions.

While his remarks might be seen as being sarcastic and in poor taste, in the context of the ongoing litigation and his other behaviours, they fit within the context of ongoing threatening behaviour against the mother. [ 37 ] Then on several occasions, the father apparently deliberately refused to provide the mother with important information regarding certain of the children and he failed to deal appropriately with parenting arrangements.

Those incidents include refusing to provide information when one of the children was taken to the emergency ward of the hospital; refusing to show up for the exchange at Christmas; refusing to agree to obvious parenting adjustments like the mother’s brother’s wedding event. One particularly disconcerting example was the father taking frozen breast milk from the mother’s freezer without advising her and without her knowledge. He then told her he had breast milk for the baby but refused her entreaties to tell her where he got the milk from and whose milk it was.

It might fairly be observed that he considered this singular event to be a bit of a power game and disregarded its effect on the mother. [ 38 ] All of these actions caused the father to give little or no explanation justifying his actions. The Christmas parenting incident was chalked up to a misunderstanding of the parenting order. This despite very clear indications of what both parties expected. And this, despite the mother’s repeated attempts to contact him, at Christmas time, without success. He simply chose to ignore her entreaties to further his own interests.

He sought to justify his actions solely by pleading a misunderstanding. [ 39 ] Before leaving this aspect, it is necessary to comment on the father’s assertion the mother denied him parenting time over the last February break. The father seeks to assert the mother’s actions were deliberate in this denial. [ 40 ] The evidence appears to be, that in light of what happened at Christmas, the mother sought assurances that the father would return the children at the appropriate time over the break period. Counsel were engaged to ensure there was agreement. No such agreement was ultimately given by the father.

While this may have been due, in part, to his counsel’s unavailability, the fact is no agreement was reached. In light of the Christmas event, I find the mother’s reluctance in February to be understandable. [ 41 ] In the totality of the evidence, there is no indication that the father recognizes the effect his behaviour has on the mother, nor its effects on the children. As a result of that lack of recognition, he has taken no steps to improve his behaviour or the situation.

He gave no testimony demonstrating any understanding or even empathy that the mother was left emotionally raw by his various actions nor that she was intimidated having to attend the exchanges by herself. He did not speak to the potential for the children to both see and hear what was transpiring between their parents or witnessing the emotional state of their mother following the exchanges.

There is no indication in the evidence that the father cares that the children were witness to all of this. [ 42 ] As the various comments and behaviours were put to the father during his testimony, he appeared generally non- plussed by the facts. He did testify that he had determined to attend counselling to assist him with his behaviours. Whether he has been and what he might have learned was not the subject of evidence. Certain of the behaviours continued after he said he had started the counselling. [ 43 ] This then leads to the financial concerns. The father stopped making payments on the mother’s vehicle.

He asserts this was done due to their ongoing financial difficulties. But the evidence is that he gave no consideration to other alternatives to simply allowing the mother’s vehicle to be seized. His truck remained debt free and unrequired as he had a company vehicle. He further appears to have maintained the loan on the camper trailer as that was an item he either continued to use or wanted to maintain. The absence of the vehicle due to the repossession can be presumed to have had a direct impact on the children.

It does not appear from the evidence the father gave any thought or concern to the impact this would have had. [ 44 ] There is evidence that the father contacted the mother and threatened to have the vehicle towed if she did not make the payments. When it was ultimately repossessed, he took no steps to attempt to reinstate the loan. Rather, he contacted the financial institution to inquire about the effect of the repossession on his own personal credit rating. [ 45 ] Finally in this regard, in the course of attending to the children’s dental needs, certain dental attendances were paid for by the mother.

She gave the receipt to the father to have him claim reimbursement through his employment insurance. When the reimbursement was made, he did not give that to the mother. Rather, he simply kept it. He originally attempted to justify this failure to pay on his lack of understanding of the process. It was unclear what needed to be clarified and ultimately, he appeared to recognize there was no explanation for his actions in this regard. The mother’s financial situation was not such as would allow her to go without those reimbursements.

It is reasonable to conclude these actions would have had a direct financial impact on the children. [ 46 ] It is undisputed that the mother brings a third party to the exchanges of the children. She indicated she does that because she is afraid of the father and what might happen at those exchanges. She testified she has that fear due to the various actions of the father as outlined above. There was nothing in her subsequent cross-examination which would cause her testimony in this regard to be questioned. [ 47 ] Furthermore, the mother testified as to her emotional state when having to deal with the father.

An overall

review of her evidence indicates that, in effect, the totality of his actions has caused her to be concerned about having to deal with him in general. [ 48 ] The Act defines family violence as follows: family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person; (

b) sexual abuse; (

c) threats to kill or cause bodily harm to any person; (

d) harassment, including stalking; (

e) the failure to provide the necessaries of life; (

f) psychological abuse; (

g) financial abuse; (

h) threats to kill or harm an animal or damage property; and (

i) the killing or harming of an animal or the damaging of property… [ 49 ] In Barendregt v Grebliunas, 2022 SCC 22 at paras 141 and 143-146 , 469 DLR (4 th ) 1 [ Barendregt ], the court stated with respect to the effects of interpersonal violence: (

v) Family Violence as a Relevant Factor [141] In this case, the acrimonious relationship between the parties — featuring abusive conduct during the marriage, at separation, and at trial — was a significant factor in the trial judge’s relocation analysis. On appeal, the father argues that such “friction” is “not unusual for separating couples”: R.F., at para. 35 … [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable.

Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice , Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S.

Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [144] Domestic violence allegations are notoriously difficult to prove: P. G. Jaffe, C. V. Crooks and N. Bala, “A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes” (2009), 6 J. Child Custody 169, at p. 175; A. M. Bailey, “Prioritizing Child Safety as the Prime Best-Interest Factor” (2013), 47 Fam. L.Q. 35, at pp. 44-45.

As the interveners West Coast LEAF Association and Rise Women’s Legal Centre point out, family violence often takes place behind closed doors and may lack corroborating evidence: see S. B. Boyd and R. Lindy, “Violence Against Women and the B.C . Family Law Act : Early Jurisprudence” (2016), 35 C.F.L.Q. 101, at p. 115.

Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support. [145] The prospect that such findings could be unnecessarily relitigated on appeal will only deter abuse survivors from coming forward. And as it stands, the evidence shows that most family violence goes unreported: L. C.

Neilson, Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (2nd ed. 2020), 2017 CanLIIDocs 2 (online), at ch. 4.5.2. [146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(

j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. [ 50 ] In my view the behaviours of the father, taken in their entirety, constitute coercive and controlling behaviour in the form of both psychological and financial abuse.

Those behaviours constituted a pattern in the form of being recurring and occurring at those times when the mother was vulnerable. They caused her to fear for her own safety at times. They cause her to feel anxiety. [ 51 ] The father argues that while his behaviour may have been indeed inappropriate or even bad, they were isolated incidents and do not constitute a pattern. I decline to accept that submission. The father’s actions appear to have been deliberate and not just happenstance. They continued to occur.

The fact that the children were present at the exchanges and at the mother’s home for the security camera incident had no effect on the father’s engaging in those activities. Finally, there appears to be little question but that he was well aware of the financial impact of his decisions regarding the loan and the dental payments. I do not accept his actions were just inappropriate.

[ 52 ] I acknowledge that depending on the situation, certain of the father’s actions, taken in isolation could be seen as bad behaviour at an emotional time. I refer to the quote from Prime earlier. I also refer to the recognition of missteps in behaviour from Friesen v Friesen, 2022 SKQB 83 (affirmed at 2023 SKCA 60 ) at para 32 [ Friesen ]: [32] Regardless, I determine this piece of evidence to be of no assistance to me in considering the issue of parenting and the best interests of this child.

It was an unfortunate instant of an extremely raw moment culminating in the complete termination of the parties’ relationship. People, much less parents, are not measured by their singular worst moments. Rather, they are measured by the totality of the evidence of their parenting lives. It is that evidence which I am to consider in determining parenting. Worst moments are those, of course, we wish the world did not know and which do not define us. Moreover, worst moments do not replace, or supersede, all of the other moments in a parenting life.

And, this moment is in no way either a reflection of her parenting skills, nor is it impactful on what parenting arrangements should be made. [ 53 ] However, in the instant case, the father’s behaviours were continuing, they could not be considered to be isolated.

Given their effects on the mother, it appears the father was engaging in coercive and controlling behaviour whether that behaviour was to intimidate the mother or to gain the upper hand in this litigation is of no matter. [ 54 ] The recent comments in Malaviya v Dhir, 2023 ONSC 1993 at para 127 by Shaw J. capture my thinking in this regard: [127] Relationships are nuanced, complicated, and evolve over time. Our understanding of domestic violence has also evolved and is reflected in changes to legislation, including the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .) and Children’s Law Reform Act , R.S.O. 1990, c.

C.12 . We now understand that control is no longer just exerted with physical violence but also through the more insidious actions of coercive control. We no longer look to see if a party sustained physical injuries as corroboration of controlling behaviour or power imbalance in a relationship. Coercive control may include acts of emotional and psychological harm for which there may not be any objective evidence. [ 55 ] The purpose of examining family violence incidents is, of course, not to mete out punishment on the offending parent.

In this regard see Friesen , Juraville v Armstrong, 2021 SKQB 73 , and R.R. v M.K., 2022 SKQB 33 . Rather, the court is compelled to look at the effect of that family violence on the best interests of the children. As well, the court is to look at what the offending parent has done to understand the impact of those behaviours and to adjust the behaviours for the children’s best interests. [ 56 ] The behaviour engaged in directly exposed the children to what was transpiring. The Supreme Court of Canada in Barendregt has indicated the detrimental impact of such actions can be presumed for the children.

And the behaviours have caused the mother to fear for her safety and generally her ability to deal with the father. She both testified to these effects, and such may be gleaned from what was done and her reaction to those. Such may also be taken by the ongoing emotional reaction the mother has in relaying the incidents. [ 57 ] According to the evidence, despite recognizing the inappropriateness of his actions, the father has done nothing to prevent the incidents from recurring or to improve his ability to care for the children. He testified he had enrolled in counselling, perhaps in June of last year.

As indicated, there is no indication he either attended any counselling sessions nor that he received any tools to assist him in improving his behaviour and recognizing how inappropriate it was. Moreover, certain of the incidents in question occurred after he indicated he had enrolled in the counselling sessions. [ 58 ] The end result of this analysis is that the father’s behaviours are not in the best interests of these children. He has apparently put his own interests in embarrassing, punishing, threatening, or scaring, the mother ahead of the best interests of the children.

The submissions of the father in this regard did not seek to address or ameliorate these difficulties. [ 59 ] Moreover, the father’s behaviour towards the mother makes it inappropriate to cause the parents to have to cooperate to agreement on issues affecting the children. In the absence of any evidence or sense that the father is prepared to take steps to learn the inappropriateness of his behaviours and to actively change those behaviours, it is not appropriate to force the mother to engage with the father in attempting to obtain agreement on issues affecting the children. This is referred to in s. 16(3)(

i) of the Act. [ 60 ] These concerns spill over into the father’s willingness to develop and maintain the children’s relationship with the mother. There is nothing in the evidence to indicate he is prepared to do this. Rather, his actions appear to suggest he is dividing the children off from the mother while they are in his care. This is referred to in s. 16(3)(

c) of the Act. [ 61 ] In this analysis, I have not specifically commented on the actions of the father’s girlfriend in sharing her thoughts on the mother with the girlfriend’s former husband. While this all seemed rather immature, it does raise the spectre of how the girlfriend and the father speak about the mother in the confines of their home. I do not accept the girlfriend’s assertion that she does not say such things about the mother in the home. That is not in accordance with the history in this matter or the pattern of all of the behaviours.

Therefore, these behaviours are more fuel for the concerns regarding the impact all of this has on the children and the need to have the mother engage further with the father. [ 62 ] I now turn to consider other factors affecting the best interests of these children. I take these considerations again from s. 16(3) of the Act. If I do not comment on a specific subsection, it is because I did not consider that aspect to figure into my deliberations. [ 63 ] I have indicated that the history of care of these children is principally with the mother. She was the guiding parent during the relationship.

It appears she continues to occupy that role now. [ 64 ] The children, or at least the eldest child, appears to have indicated a reluctance to have any time increased with her father. While I appreciate this child is very young, her reluctance has been ongoing. The ongoing nature of this reluctance suggests that an expansion of the father’s time is not in this child’s best interests now.

[ 65 ] As indicated when discussing the aspect of family violence, it is apparent these parties are having difficulty communicating and cooperating with respect to themselves and the children. This difficulty is fuelled by the father’s actions and shows no signs of abating. [ 66 ] For all of the foregoing reasons, I decline at this time to impose a complete shared parenting regime. I determine that would not be in these children’s best interests. The mother is working to engage the children with the father.

He is intent on pursuing his actions with the mother rather than acting in the best interests of the children. [ 67 ] The mother seeks to reduce the father’s parenting time from that ultimately directed in the interim order. She seeks to limit the Tuesday and Thursday segment to every other week. [ 68 ] I decline to invoke such a limitation. The children have been going on the present parenting arrangement for over one year now. While I decline to increase the father’s time, I view stability for these children to be a significant concern with the changes that have occurred already.

The eldest child appears to be settling into the routine of the current parenting schedule. The other children have been in the

schedule for over one full year. [ 69 ] The evidence does not disclose that the father is failing to parent the children appropriately when he has his parenting time. There was issue raised by the mother regarding the children’s privacy and sleeping arrangements when at the father’s residence. I am unable to conclude these are such as to impact on the level of parenting to be given to the father. People have different housing availability.

There is nothing in the evidence to suggest this is all having a detrimental effect on the children, or any of them. [ 70 ] In the result, I decline to alter the parenting regime from that that has been in place since the time of the interim order. I order that arrangement continue. It is what the children now know and have become accustomed to. I decline to expand the father’s parenting time beyond that which he acquired through the Mitchell J. order. [ 71 ] I further direct that the parties share the school holiday periods.

These holidays will include Christmas, February break, Easter break, and summer vacation. In the event that there is difficulty arriving at agreement on this sharing, the parties have leave to have this issue returned to me for determination.

c) Decision making authority [ 72 ] The mother seeks to have final decision-making authority. She proposes that she would fully consult with the respondent on all significant issues affecting the children but, ultimately, she would be the one to make the actual decisions if there was disagreement between the parties. The respondent seeks to have shared decision-making authority and seeks to participate fully in all of the significant decisions to be made regarding these children. [ 73 ] In the recent decision of Cote v Cote, 2023 SKKB 139 [ Cote ], I addressed the issue of joint decision making.

The references here are in large measure a reflection of the discussion there. [ 74 ] Section 2(1) of the Act provides as follows: 2(1) In this Act, … decision-making responsibility means the responsibility for making significant decisions about a child’s wellbeing, including in respect of (

a) health; (

b) education; (

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

d) significant extra-curricular activities; [ 75 ] However, there is no starting point or presumption set forth for the application of decision-making responsibility as between the parties. Rather, the court is required to make this decision, like all parenting decisions, in accordance with the best interests of the children. This is not a decision to be made based on what either parent may want to see happen. In this regard, the Act provides: 16.1

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

a) either or both spouses; or (

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

(4) The court may, in the order,

(

a) allocate parenting time in accordance with

section 16.2; (

b) allocate decision-making responsibility in accordance with

section 16.3; (

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

d) provide for any other matter that the court considers appropriate. … Allocation of decision-making responsibility 16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons. [ 76 ] In Cote , this observation is made: [19] In deciding how decision making authority for a child should be divided between the parents, the court is required to take an individualized approach looking to the particular child’s circumstances before it.

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

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

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

This, I think, is the issue addressed by McIntyre J. in B.O.A. v R.G., 2003 SKQB 112 , 38 R.F.L. (5 th ) 367 , where he held that it was not in the best interests of the child that one parent should be “a passive bystander,” where that parent has bonded with the child, and demonstrated love and care for the child. [ 77 ] There is evidence here of conflict between the parties particularly at the times of the exchanges of the children. This conflict is done solely by the father towards the mother. There is no evidence to suggest the mother has engaged in any such inappropriate behaviour.

The evidence appears to be that the mother has attempted to withdraw from such engagement. [ 78 ] For the purposes of examining this issue, I accept that the exchanges have caused the mother some considerable difficulty, anxiousness, and personal safety concerns. I further accept that those incidents at or following the exchange, have all been done in the presence of the children.

This level of difficulty between the parties in the direct encounters does not appear to have improved over the course of time. [ 79 ] I further accept that the father’s behaviour in this regard appears to permeate through the entire post separation relationship between the mother and father and affects the mother’s ability to deal effectively with the father.

In short, the tenor of the mother’s evidence was that she is concerned with the father’s behaviour and fearful of what he has done and might continue to do with respect to her and his interactions with her. [ 80 ] The evidence before the court is that the mother (principally, if not exclusively) has been the one to contact the father to canvass matters involving the children requiring parental input and requiring decisions to be taken.

At this stage of the children’s lives, with one exception, these matters have not been significant, but the history has shown the mother initiates the discussion and the father provides his agreement. In the main, again with one exception, these decisions have been regarding activities for the children. [ 81 ] The one exception to this ability to agree occurred with respect to the relatively recent issue of which school the eldest child should be enrolled in. The mother sought to enrol the child in the local Catholic school, while the father sought to have the child attend the newly constructed public school.

While there was some preliminary discussion on the issue, ultimately the mother determined to complete the enrolment in the Catholic school. [ 82 ] The mother’s actions were not explained in any detail during the evidence. The parties engaged in some discussion, and then the mother stopped further discussions and made the schooling decision. The evidence discloses that when the parties were together the discussion had been that their children would attend the Catholic school as that is where the mother had gone to school.

It appears the father wanted to have the children attend the newly constructed public school which was closer to him. He gave no reason for his change other than the public school was new and close. He did not seek to support it with any substantive comment. [ 83 ] While there had been discussion on this issue, it appears that the parties were at an impasse. The father was seeking one school, the mother another. She made the ultimate decision. The following discussion shows that the mother has been the one to make all, or virtually all, decisions regarding these children.

This school issue might be seen as an extension of that reality given

the entirety of the discussion in this regard. [ 84 ] As indicated above, it is important for the children that the parents be seen as participating in the children’s lives to the extent that is possible given their behaviours and what has taken place between them. Here, there are ongoing concerns regarding the father’s treatment of the mother. There is also evidence of the mother’s feeling of intimidation and fear when having to deal with the father directly.

Finally, the father’s actions when in the presence of the mother import an aspect of him attempting to bully her or cause her to be reluctant about expressing her views or engaging in a fulsome discussion on any particular issues concerning the children. [ 85 ] In determining the issue of decision making, I am guided by two significant factors: the history of the care of the children and the appropriateness of causing the mother to have to engage, at this stage, with the father. [ 86 ] I have determined the father has engaged in family violence in the presence of the children.

I have further determined the mother is afraid of the father and does not want to have to communicate with him. She is uncomfortable and to some extent fearful of having to have that interaction. Finally, the father, while appearing to recognize the inappropriateness of his behaviour, has taken no steps to assist him in understanding the negative impact of his actions or to give him tools to correct those behaviours. And his behaviours continue. [ 87 ] As indicated, the mother is the one who has principally, if not exclusively, been responsible for the care of the children, throughout their lives.

She attends to their day-to-day responsibilities. And she is the parent who takes the steps to attend to their needs and to enrol them in activities. There is no evidence that the father was either actively engaged in these activities or sought out opportunities to become so engaged. [ 88 ] The evidence appears clear that the father has been having difficulty communicating appropriately with the mother. This difficulty has been direct at the time of exchanges of the children.

It has also been indirect through electronic communications he has sent to the mother. [ 89 ] As a result of all of the foregoing, I determine that at this stage, while the parties shall consult on these major issues concerning the children, ultimately the mother shall have the ability to finally make these decisions on matters identified by s. 2 of the Act . I conclude this because the parties, through the father’s actions, are experiencing difficulty communicating.

I do it further because I am unable to conclude that at this stage, the mother should be forced to have to communicate and search for agreement with the father on these types of issues, in light of his behaviours. [ 90 ] In the event circumstances change between the parties and the father is able to accept the inappropriateness of his behaviour and proceeds to take steps to obtain assistance to both understand the impact of, and overcome his behaviours, it may be this aspect can be revisited. That will be a matter for a subsequent variation application.

d) First right of refusal [ 91 ] The mother seeks to have the first opportunity to care for the children if the father is unable to provide such care. This will arise when the father is called into work. Now if he is called into work and has the children, they would simply remain in the care of the father’s new partner for the time the father is away from the home. This request was somewhat ill-defined both in the evidence and in the argument.

The written brief of the mother indicates she seeks to have this first option to care for the children if the father requires childcare during the daytime hours prior to 7:00 p.m. The mother is prepared to extend that same option to the father. [ 92 ] The evidence of the father’s work

schedule appears to be that he is on call 24/7 and appears to work relatively consistently. However, it is unclear how long he works for each call: it may be an hour, a few hours, or it may be considerably longer than that. He did not offer and was not cross-examined on this issue beyond those rather general statements. [ 93 ] The mother then offers that it is not in the best interests of the children for them to remain with the father’s partner for long periods of time.

It appears the mother both does not want the children to be with the girlfriend, and the mother is of the view that only she can provide appropriate childcare when the father is not available. [ 94 ] Based on the evidence presented, I am not prepared to invoke a first option to care for the children regime. There is no evidence to suggest that the father has been away from the children during his parenting times for long periods.

There is no evidence to suggest that the children are not being appropriately cared for when the father is called into work. [ 95 ] Moreover, to have the children go back and forth between the mother and the father, only because the father has to go to work, appears to be a considerable disruption to the parenting program and these children. It will potentially cause these children to bounce back and forth between homes throughout the parenting times. This is contrary to the earlier comments on the pursuit of stability for these children.

It is also contrary to each parent’s ability to build a good and healthy relationship with the children. This is particularly so when the eldest child is exhibiting some behaviours showing a reluctance to engage in the exchanges. Introducing yet more exchanges may have a further detrimental effect on this child, and all of the children. [ 96 ] In the result, I decline to put in place a program whereby either parent would have to provide the other with the first option to parent the child should they be away from the home.

e) What is the mother’s level of income for child support purposes? [ 97 ] The mother earns her income from her bookkeeping business operated out of her home. Her 2022 income tax return shows her income as $52,186.36. During final submissions, the father submitted certain expenses which the mother deducts from her income should be included back into income. There was little discussion or challenge to the mother through her evidence. Based on the evidence, I am not in a position to conclude any such deductions are either inappropriate or ought properly to be added back into her

income. In short, I am not allowed to simply guess on this issue because the expenses may have a personal component. There must be an evidentiary basis for me to so conclude. As a result, I decline to adjust her income from that reported on her income tax return.

f) What is the father’s level of income for child support purposes? [ 98 ] The father’s principal source of income comes from his employer and in 2022 that reported income was $105,935.11. However, that appears to be the starting point for the calculation of this total income. [ 99 ] The father has historically worked as a farm laborer for a local area farmer. He worked there in the spring of 2022. However, earlier in these proceedings he completed an affidavit swearing he had not worked there last year.

This was not the truth and, while he admitted as much on the witness stand, he did not provide any explanation for that quite deliberate attempt to mislead the court. It is an unresolved curiosity why he would determine it was appropriate to state a clear mistruth on a sworn affidavit. [ 100 ] The owner of the farm testified at the trial. He confirmed the father had worked there in the spring but had not yet submitted his hours to allow him to be paid for that work. While the owner indicated the father did not work there for the fall harvest, he provided no reason for that.

Similarly, the father provided no explanation for why he did not work there in the fall, assuming he did not so work. [ 101 ] The father submits that, at the most, the amount of $2,356.25 should be added to his income for the spring farm work. This is based on the father’s testimony of the number of hours he worked at an hourly rate of $25.00. In these circumstances, I decline to accept the father’s calculations. The evidence indicates that in 2021 the father earned farm income of $8,200.00.

There is no explanation provided as to why 2022 would have been any different. [ 102 ] Furthermore, the father provided little, if any, explanation concerning the total farm income. He said he did not work on the farm during the harvest period. The owner indicated the same thing. I have difficulty accepting what either of these individuals has said in this regard. The farm owner was a reluctant witness in these proceedings. He was generally less than forthcoming in the evidence he was prepared to provide, and it appeared he was intent on doing what he could to assist the father on this issue.

On the other hand, the father made no attempt to justify his misleading averments in his affidavit or to explain when he did work or why he did not work during the harvest season. And, there is no indication the father recorded his farm hours. No such record was introduced at trial. The father elected to provide virtually no detail in this regard. [ 103 ] I determine, based on the evidence, there is no basis for concluding that the farm work available to the father in 2022 was any different than the farm work that was available to him in 2021.

Whether he worked as little as he says, or he did not work for the harvest season, he had available to him this work and, historically he had engaged in that work. The Federal Child Support Guidelines, SOR/97-175 [ Guidelines ] provide as follows: Imputing Income 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the 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; … [ 104 ] I determine to impute the additional amount of $8,200.00 in income to the father for 2022. At a minimum, the evidence satisfies me on a balance of probabilities that he had earned this level of income in the past and he could have earned it in 2022.

Moreover, I am reluctant to accept the evidence of either the father or the farm owner regarding either what work was actually done or what work was, indeed, available. [ 105 ] The last area of income to consider is the yard game business the father had operated during the marriage but asserted he no longer operated now. Furthermore, the father asserted that, according to him, there was quite obviously little in the way of actual income from this operation. [ 106 ] The position of the father is that the yard game business was assumed by his new partner.

His tools, his plans, his business, but such was being operated by his partner and therefore had nothing to do with him. The next branch of the position was that, in any event, the yard game business earned a minimal income as shown by the e-transfers received by the father when he was operating the business. The father and his partner estimated the profit earned from the sale of each game was between $20.00-$50.00. Neither of those individuals provided any documentary evidence showing what was sold, the prices for what was sold, nor the supplies that were purchased.

There was no evidence provided by them beyond the assertion of how much they say was profit from the sale of a game. [ 107 ] The court was left with the impression on this aspect that the father, and his partner, were both minimizing the potential importance of this business and they were less than forthcoming with information solely within their possession. Why this was so was not explained by either during their evidence. They could have provided a fulsome explanation and given some level of disclosure to support that explanation.

They did not do so. [ 108 ] In these circumstances, the court must do the best that can be done given the state of the income and given the background to this matter. Again, they each could have explained but did not. The burden is not on the mother to attempt to ferret this information out. Rather, the burden is on the father to establish what his income actually was. While this amount of income from the

yard game operation will ultimately be a relatively modest amount, it has required a great deal of effort by all to arrive at some level. [109] Beyond the father’s and his partner’s general guess, and reluctant provision of information, I can conclude thatthis is a business the father has been involved in for some time and he continues to be involved in. There was some passing testimonywhereby the father and his partner had sought to hide from the mother the fact there were supplies in the truck to be used in making thesegames.

This continued involvement, and some level of subterfuge, suggests that the business was earning income thought sufficient toobscure it from the mother in these proceedings. [110] The mother suggests imputing an income to the father on this aspect in the amount of $5,000.00. This is indeed amodest suggested addition to the father’s income. I determine that it is appropriate here to include this amount. [111] As a result of the foregoing, the father’s 2022 income for support purposes will be a total of $119,135.15.

g) What is the appropriate level of child support applying a Contino analysis? [112] The father submits that the current parenting plan provides him with the children 43% of the time, and the mother57% of the time. The mother took no issue with this calculation.

As a result, I am required to consider the application of s. 9 of theGuidelines and how the payment of child support should be divided between the parties. [113] In Prime v Prime, 2021 SKQB 130 at paras 13-18, the court outlined the analysis and application of s. 9 supportas set forth in Contino: [13] The law with respect to the calculation of child support in a shared parenting relationship is well established and was determined inContino v Leonelli Contino, 2005 SCC 63, [2005] 3 SCR 217 [Contino].

The Saskatchewan Court of Appeal has applied this decision inWetsch v Kuski, 2017 SKCA 77, 1 RFL (8th) 290 [Kuski]. [14] In Contino, Bastarache J. stated: [49] Hence, the simple set-off serves as the starting point, but it cannot be the end of the inquiry. It has no presumptive value.

Its truevalue is in bringing the court to focus first on the fact that both parents must make a contribution and that fixed and variable costs of eachof them have to be measured before making adjustments to take into account increased costs attributable to joint custody and furtheradjustments needed to ensure that the final outcome isfair in light of the conditions, means, needs and other circumstances of each spouseand child for whom support is sought. Full consideration must be given to these last two factors (see Payne, at p. 263).

The cliff effect isonly resolved if the court covers and regards the other criteria set out in paras. (

b) and (

c) as equally important elements to determine thechild support. … [51] This is where discretion comes into play. The court retains the discretion to modify the set-off amount where, considering thefinancial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they movefrom one household to another, something which Parliament did not intend. As I said in Francis v. Baker [ (SCC),[1999] 3 SCR 250], one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities betweenhouseholds.

It is also necessary to compare the situation of the parents while living under one roof with the 2021 SKQB 130 − 5 −situation that avails for each of them when the order pursuant to s. 9 is sought. As far as possible, the child should not suffer a noticeabledecline in his or her standard of living. Still, it is not a discretion that is meant to set aside all rules and predictability. The court must notreturn to a time when there was no real method for determining child support (Paras v.

Paras, (ON CA), [1971] 1 O.R.130 (C.A.)). [15] Caldwell J.A. in Kuski then went on to illustrate the appropriate methodology for arriving at a s. 9 analysis. In

summary at para. 121he sets forth the following: 121 In Tonita v Fenske, 2009 SKQB 443, 78 RFL (6th) 84, Gunn J. helpfully summarised the approach to be taken under s. 9 in light ofthe analysis called for in Contino: [31] In Professor Rollie Thompson’s annotation to the Contino decision he summarizes the step-by-step analysis laid out by JusticeBastarache as follows:

(1) Determine the Simple Set-Off Amount. ...

(2) Review the Child Expense Budgets. A court must look at the parents’ actual spending patterns, based upon child expense budgets,and not just make assumptions about spending. Further, a court should look at all the expenses of both parents under s. 9(b); not just theadditional expenses resulting from an increase in access, not just the variable or fixed expenses, not just the expenses of the recipientparent. Under s. 9(b), a court has two concerns: (

i) the overall increased total costs of child-rearing for both parents, especially duplicatedcosts; and (ii) any disproportionate assumption of spending by one parent or the other (paras. 52-53). These expenses should be“apportioned between the parents in accordance with their respective incomes” (para. 53), to “verify” the set-off (para. 77) and todetermine “the need for significant adjustments to the set-off amounts” (para. 78).

(3) Consider the Ability of Each Parent to Bear the Increased Costs of Shared Custody and the Standard of Living for the Children inEach Household. The consideration of these two factors lies at the heart of the s. 9(

c) analysis, set out at paras. 54-72, especially paras.69-70. In assessing each parent’s ability to bear the increased costs of shared custody, a court should look at the income levels of eachparent, the disparity in incomes, and the assets and liabilities of each. The child’s standard of living in each household is “particularlyuseful for the exercise of discretion in a predictable manner” (para. 70). The children should not experience “a significant variation in thestandard of living ... as they move from one household to another” (para. 51). As the term “household” is used, the incomes andresources of new partners in each household would presumably be relevant.

(4) Distinguish Between Initial Orders or Agreements and Variations. “An application that represents a variation of a prior support arrangement will usually raise different considerations from a s. 9 application where no prior order or agreement exists.” (para. 55) A recipient parent “may have validly incurred expenses based on legitimate expectations about how much child support would be provided”, especially for fixed costs (para. 55). [Emphasis in original] [16] And, in determining the overall support amount, Caldwell J.A. stated the court is required to determine all of the family’s financial circumstances: 136 Indeed, the breadth of considerations under s. 9 (

c) of the Guidelines is even greater than those under s. 4 , where the condition, means, needs and other circumstances of only the children are taken into account. Under s. 9(c), the court must have regard for the “conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.” This suggests the Guidelines objectives of fairness and flexibility have a greater role to play in the quantification of child support under s. 9 of the Guidelines than the objectives of consistency and predictability. [Emphasis in original] [17] In Julien D. Payne & Marilyn A.

Payne, Child Support Guidelines in Canada, 2020 (Toronto: Irwin Law, 2020) at 323 the authors provide the following

summary of factors to consider when determining a s. 9 analysis: Citing Contino v Leonelli-Contino , Armstong J of the British Columbia Supreme Court in Flick v Flick [2011 BCSC 264], identified the following factors for consideration in determining the amount of support to be paid in a shared parenting situation under s. 9 of the Federal Child Support Guidelines : • the language of s. 9 warrants emphasis on flexibility and fairness (para 39) • it requires acknowledgement of the overall situation of the parents and the needs of the child (para 39) • the weight of each factor under s. 9 will vary with the particulars of the case (para 39) • take into account the financial situations of both parents (para 40) • calculating the set-off amount is the starting point, not the end of the enquiry (para 40) • the set-off amount does not take into account actual spending patterns as they relate to variable costs [or] the fact that fixed costs of the recipient parent are not reduced by increased spending of the payor (para 48) • the court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the child as they move from one household to the other (para 51) • one of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households (para 51) • the court must examine the budgets and actual expenses of both parents in addressing the needs of the child and to determine if shared custody has in effect resulted in increased costs globally (para 52) • increased costs would normally result from a duplication and the child effectively being given two homes (para 52) • the expenses will be apportioned between the parents in accordance with their incomes (para 53) • the analysis should be contextual and remain focused on the particular facts of each case • the court has full discretion under s. 9(

c) to consider “other circumstances” (para 72) • courts should demand information relating to s. 9(

b) and (

c) when the evidence filed is deficient (para 57) [18] In applying judicial discretion to the determination of the amounts under s. 9 (

c) the authors in Child Support Guidelines in Canada , 2020 at page 325 provide an effective roadmap in this regard:

a) Judicial Discretion to Deviate from Set-Off Under

Section 9(

c) of Guidelines

Section 9(

c) requires the court to take into account the conditions, means, needs, and other circumstances of each spouse and any child for whom an order is sought. Among the factors the court may consider under

section 9 (

c) are the actual spending patterns of the parents, the ability of each parent to bear the increased costs of shared parenting and the standard of living in each household. Of particular importance under this subsection is the standard of living for the children in each household: to the extent that it is practicable, children should not suffer a noticeable decline in their standard of living. The court will be especially concerned here with the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. The criteria defined in

section 9 (

c) of the Guidelines confer a substantial discretion on the court in its assessment of the appropriate amount of child support. The discretion should be exercised in a principled manner. There are various factors that may be considered, including the following: 1) the exercise of the discretion must respond to the needs of the particular family; there is no single formula that can be applied to all families;

2) child care budgets may be informative, but they are not determinative of the appropriate amount of child support to be ordered; 3) a distinction may be drawn between cases where both parents play an equal role in the lives of their children and those cases whereone parent assumes the primary responsibility notwithstanding that the other parent satisfies the 40 percent criterion which triggerssection 9 of the Guidelines; and 4) a substantial disparity between the parental incomes is significant where a red

[…]