MICHELLE ANN PHAIR PETITIONER - v. -, 2023 SKKB 216

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 216 Date: 20 23 10 13 Docket: DIV-RG-00102-2022 Judicial Centre: Regina, Family Law Division BETWEEN: MICHELLE ANN PHAIR PETITIONER - and - VANCE MERVIN PHAIR RESPONDENT Counsel: James J. Vogel, K.C. for the petitioner Marilyn L. Elliott for the respondent JUDGMENT BROWN J. October 13, 2023 INTRODUCTION [ 1 ] The parties were married for over 30 years. In June of 2021 they separated. The parties have not been to court previously in relation to support or property.

They attended family mediation but unfortunately could not resolve their differences. [ 2 ] Both Michelle and Vance are employed. Michelle, who is 54, earns less income than Vance. Michelle’s line 15000 income was $93,424 in 2022 with employment income making up all of it. She teaches and is at the top of her salary scale. In 2020 she had line 15000 total income of $87,794 and in 2019 it was $96,915. For some reason her 2021 tax return did not appear on the court file however her 2021 T-4 showed $89,629.30. [ 3 ] Vance is 53 and according to his 2020 income tax return had line 15000 income of $163,717.

His 2019 income tax return shows line 150000 employment income of $141,668. His 2021 and 2022 income tax information was also not on file however he averred to $150,104 in 2022 which was not objected to. He provided the pay stub showing his 2023 income to September 1 of 2023. It was in the amount of $123,217 which, if it continues, will mean $164,289 for 2023. [ 4 ] In terms of assets, Michelle has possession of the family home, which Vance has been paying the debt for in the form of a Line of Credit [LOC] which began in the amount of $450 but, with interest rate increases, has risen to $800 per month.

In addition to paying this, Vance voluntarily paid down a further $80,000 in family debt over the past year. Various vehicles and other sundry items are possessed by each party. Vance is in possession of the cabin at the lake and other assets. The value of one persons’ assets do not greatly exceed the value as compared with the other’s. [ 5 ] Vance avers to Michelle buying a new car and trailer since separation and investing $15,600 in RRSPs while simultaneously claiming she is in a deficit position annually.

Vance also points out that Michelle swore a financial statement in 2022 which showed her expenses at a level equal to her income, $94,000, but more recently upped the expenditures by almost $30,000 in her recent financial statement.

[6] Michelle seeks spousal support alone as the children of the relationship are now adults and independent. Sheseeks an order of ongoing compensatory and non-compensatory spousal support.

While Michelle avers to being unable to maintain thelifestyle she had prior to the separation, Vance argues she falls well short of establishing entitlement to any spousal support. [7] The matter therefore requires a consideration of the parties’ circumstances, means and needs within thecontext of an interim request for non-compensatory spousal support and their history within the context of a request for compensatoryspousal support. Issue [8] Is Michelle entitled to interim spousal support? If so, in what amount?

DISCUSSION [9] This application relies on the Divorce Act, RSC 1985, c 3 (2d Supp) and The Family Maintenance Act, 1997,SS 1997, c F-6.2. I will not repeat the provisions at play here as they are well known. The principles at play with respect to the federaland provincial legislation are the same. The authorities based on either statute are applicable here as a result. [10] When making an interim spousal support order the court considers the factors set out in the legislation withinthe context of the specific circumstances of the application.

The initial question advanced vigorously by Vance is whether Michelle hasestablished an entitlement to interim spousal support. [11] The Supreme Court of Canada decisions of Moge v Moge, (SCC), [1992] 3 SCR 813 andBracklow v Bracklow, (SCC), [1999] 1 SCR 420 [Bracklow] are the starting point for an analysis of Michelle’s claimfor spousal support. In Bracklow, McLachlin J. (as she then was), said at paras. 35 and 36: 35 Moge, supra, sets out the method to be followed in determining a support dispute.

The starting point is the objectives which theDivorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriageor its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown ofthe marriage, and (4) promotion of the economic self-sufficiency of the spouses; s. 15.2(6). No single objective is paramount; all must beborne in mind.

The objectives reflect the diverse dynamics of the many unique marital relationships. 36 Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, thecourt must look at the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to,the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Dependingon the circumstances, some factors may loom larger than others.

In cases where the extent of the economic loss can be determined,compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economicloss of a disadvantaged spouse . . . the court will consider need and standard of living as the primary criteria together with the ability topay of the other party”: Ross v. Ross (1995), (NB CA), 168 N.B.R. (2d) 147 (C.A.), at p. 156 per Bastarache, J.A. (ashe then was). There is no hard and fast rule.

The judge must look at all the factors in the light of the stipulated objectives of support, andexercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown. [12] In Wongstedt v Wongstedt, 2017 SKCA 100, [2018] 4 WWR 82, our Court of Appeal considered the issue ofentitlement for applications such as this one: [25] Mr. Wongstedt does not dispute that the Chambers judge correctly identified the applicable law when it comes to assessingentitlement and quantum of spousal support.

As the Chambers judge understood, s. 15.2(4) of the Divorce Act, RSC 1985, c 3 (2d Supp),identifies the “condition, means and needs and other circumstances of each spouse” as the factors for a court to consider when making anorder for spousal support.

In Moge v Moge, (SCC), [1992] 3 SCR 813 at 866, the Supreme Court explained the overallobjective of spousal support is to “achieve an equitable sharing of the economic consequences of marriage or marriage breakdown.”Given this was an interim application for spousal support, the Chambers judge also identified Wendt v Wendt, 2016 SKQB 227 at para 6[Wendt], as being applicable, where Turcotte J. had said: As pointed out by Jackson J.A. in Russell v Russell (1999), (SK CA), 179 DLR (4th) 723 (Sask CA) [Russell], theprinciples established by the Supreme Court of Canada in its decisions of Moge v Moge, (SCC), [1992] 3 SCR 813, andBracklow v Bracklow, (SCC), [1999] 1 SCR 420, aid in determining whether maintenance for a spouse should beordered under the Act, notwithstanding that those decisions addressed spousal support in the context of the Divorce Act, RSC 1985, c 3(2d Supp).

However, as this is an interim application, the focus of the analysis is on the “needs and ability to pay” of the parties. Thisfocus follows from the principles established by the decisions of this Court in Hein v Hein, 2004 SKQB 277; Cey v Cey, 2004 SKQB493; Frass v Frass, 2006 SKQB 189; Marcotte v Marcotte, 2008 SKQB 223, 315 Sask R 280; and Antonishyn v Boucher, 2011 SKQB147, 373 Sask R 154.

Those cases confirm that at an interim stage, pending a division of family property and more complete evidencetouching on the factors and objectives used in addressing a final order of spousal support, the primary purpose of interim spousal supportis to allocate family income in a fair and equitable manner.

Any decision I make as to interim spousal support may be reviewed by aneventual trial judge and could be re-assessed based on more complete evidence (see: Frank v Linn, 2014 SKCA 87, 442 Sask R 126; andFord v Ford, 2015 SKCA 23, 457 Sask R 19). [13] Herauf J.A. subsequently addressed the purpose of a spousal support order in D.B.B. v D.M.B., 2017 SKCA 59at para 75 [D.B.B.]: [75] The purposes and objectives of a spousal support order, as conveyed in the Divorce Act, were discussed in James MacDonald &Ann Wilton, The 2017 Annotated Divorce Act (Toronto: Thomson Reuters, 2016) at 299: Spousal support is a remedy which serves two purposes in Canadian law.

Firstly, it provides compensation when a relationship hasincreased the earning power of one spouse at the expense of the other spouse. Secondly, it serves to relieve the financial need which 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 AdvisoryGuidelines (“SSAG”), the strength of the compensatory and needs-based claims to spousal support both (

i) influence the amount chosenwithin the range, and (ii) help define the exceptional fact patterns in which the SSAG ranges are inappropriate. ... [14] At para. 76 of D.B.B. he noted the importance of determining entitlement first: [76] Courts keep the factors and objectives listed under s. 15.2 of the Divorce Act in mind when making spousal support orders.

But,before it can determine the appropriate quantum and duration of spousal support, a court must first determine if there is a basis forentitlement, as the status of being married does not automatically entitle a spouse to support (see Moge v Moge, (SCC),[1992] 3 SCR 813 at 864 [Moge], and Bracklow v Bracklow, (SCC), [1999] 1 SCR 420 at para 44 [Bracklow]). [15] As noted by the British Columbia Court of Appeal in Lee v Lee, 2014 BCCA 383, 379 DLR (4th) 1, marriagedoes not engage an automatic tool of redistribution.

Thus, disparity in income alone is not sufficient at the consideration of entitlement tospousal support stage. While crucial, and a very significant factor at the interim stage, the income gap alone is not the beginning and endof the inquiry. The other related issues need to be examined including the known aspects of the means and needs of the parties. As notedby Justice Megaw in Sydor v Sydor, 2021 SKQB 169: [63] While all of the factors set forth in s. 15.2(4) and (6) are open for consideration, at the interim stage the court is primarilyconcerned with the needs and means of the parties.

A more in-depth consideration of the factors may await a pre-trial conference andtrial. … [16] Merrifield v Merrifield, 2021 SKCA 85, 58 RFL (8th) 31 confirms that allocating family income fairly andequitably is the goal of an interim order: [77] The primary purpose of interim spousal support is to allocate family income in a fair and equitable manner, and the focus whendetermining quantum is on the needs and ability to pay of the parties: Wongstedt v Wongstedt, 2017 SKCA 100 at paras 23 and 25, 3RFL (8th) 43. … [17] Recently in Haider v Stach, 2023 SKKB 153 [Haider] these same principles were reiterated.

Entitlement [18] Enabling Michelle to continue living at the same standard of living enjoyed prior to separation, if Vance’sability to pay warrants it, is key. Making such a determination will admittedly be introductory and a somewhat rough form of justice as itmust occur without putting too much emphasis on the need to achieve self sufficiency. These are the interim support objectives whichmust be addressed. Deep analysis and overly fine parsing of what is usually conflicting affidavit evidence is not appropriate at theinterim entitlement determination stage.

Rather, if a prima facie case for entitlement is made out, that will suffice at the interim stage. [19] The result of these factors and the reality of interim applications is that claims for compensatory spousal supportare more difficult to conclude at this early stage. Often a much more significant historical perspective is required. Reaching back somedistance in time often brings with it very different recollections and is usually considerably less supported by corroborating documentsfrom which to sift the factual wheat from the chaff. [20] Such is the situation here as well.

The history of where the couple started, where they moved and why, and whoearned what is highly controverted. The result is that any reliable conclusion in relation to compensatory spousal support here will needto await the provision of evidence which is subject to the testing of cross examination. [21] The same is not necessarily true for non-compensatory claims given their very nature. Means and needs are thekey factors and those can be more accurately sorted out at this juncture. Less historical data is usually required.

And indeed they need tobe sorted out more readily as a situation where one party is suffering economically as a result of the breakdown of the relationship shouldnot be allowed to drag on to the determinant of the person suffering. [22] This raises the argument advanced by Vance that the petition only claims compensatory support and thereforeMichelle is restricted to that aspect of this form of spousal support. He says arguing non-compensatory support is not available toMichelle until she amends her petition. [23] The argument is not entirely offside.

It is correct to note that the petition does only address compensatorysupport. Why it does so is unknown as the petition used in this matter does not comport with the form set out in The Queen’s BenchRules nor was counsel who had the petition issued the same counsel representing Michelle at the time of this application. However, inthese circumstances, particularly the change of counsel, it is too prejudicial to Michelle to dismiss the claim and require her to firstamend the petition and then reapply for non-compensatory as well as compensatory support.

There is no prejudice to Vance as he hashad ample notice of Michelle’s intention to seek non-compensatory spousal support as this matter has been some time in the making andhas been adjourned on more than one occasion. In the end I will provide this determination and require Michelle to amend the petitionwithin 45 days of this determination so that it conforms to the petition established by The Queen’s Bench Rules and claims non-compensatory spousal support explicitly. [24] As already stated, there is a notable disparity in income here.

Ascertaining just what the income level to attributeto Vance is part of the equation. Sorting out Michelle’s real needs given the changes evidenced in her two financial statements is also atissue. [25] While Vance’s income tax returns show almost exclusively employment income there is an allegation ofadditional off book income based on some private gas fitting and/or plumbing work. I do not find the evidence sufficient to add income

to Vance’s employment or line 15000 amounts at this time. That is not to say it is proven he has none, just that it has not been satisfactorily proven at this time that he has some. [ 26 ] I find that the line 15000 of Vance’s income tax returns are a fair and appropriate measure of his income and reflects his ability to generate income sufficiently for use at this interim stage.

I also find that projecting his 2023 income is also highly reliable given the records provided and his past earning pattern with respect to the years which are in evidence. [ 27 ] In relation to Michelle’s current financial circumstances, I also find at this stage that her most recent line 15000 information is fair and appropriate to determine her income and ability to generate same. [ 28 ] In relation to support, when considering the matter for interim purposes exclusively, the authorities confirm that it is appropriate to order interim spousal support in the circumstances of this matter.

There is a significant disparity in income both at the time of the parties’ separation and still existing today. Michelle may be living a diminished life without access to the income she once had access to, that issue is put in question by her fluctuating financial statements. The question is whether there is a loss to Michelle’s standard of living by virtue of the parties no longer cohabitating. [ 29 ] The first of the objectives regarding spousal support is the recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.

Based on the loss of Vance contributing income to her life, Michelle is, at this point, economically disadvantaged as a result of the relationship breakdown. At the interim stage this is a primary, albeit not exclusive, consideration as to whether she is to receive interim spousal support. Clearly Vance has an ability to pay as well, given his level of income and the voluntary payment of a substantial sum on the family debt in the past year. [ 30 ] Without the relationship and the subsequent breakdown of the same, Michelle would have access to more resources on which to live and enjoy life.

Her situation has therefore deteriorated economically due to the fact that the relationship has not continued. Michelle is not able to share in the prosperity the marriage conferred on her, particularly Vance`s income which exceeds hers by a considerable amount. If the parties were still together Michelle would presently be benefitting from the income Vance can generate. [ 31 ] I do not find any arguments that persuade me that entitlement is properly denied here.

Support is appropriately granted at the interim stage to try to assist in the maintaining of a reasonable standard of living for Michelle as the parties proceed through to a final decision. [ 32 ] Vance advances various authorities in support of the argument to decline entitlement. I find Anderson v Anderson , 2023 SCC 13 , 481 DLR (4th) 1, Savoy v Savoy , 2015 SKQB 131 , 474 Sask R 72 and Strenger v Strenger , 2009 SKQB 423 to be based on considerably different facts and circumstances to be of very much utility here.

Each situation must be measured on its own facts which are invariably unique. [ 33 ] The conclusion that interim spousal support is warranted given the disadvantage Michelle has suffered due to the breakdown of the relationship is confirmed in Mehlsen v Mehlsen , 2009 SKQB 279 , 336 Sask R 302; Meegan v Beaubier , 2013 SKQB 85 , 415 Sask R 194; Grimsrud v Grimsrud , 2015 SKQB 324 ; D.B.B .; Wilk v Martin-Wilk, 2023 SKCA 64 [ Wilk ] and Haider . [ 34 ] The parties were together for over 30 years. Michelle’s income is substantially less than Vance’s.

The resources the couple had access to when together is now not 50% available to Michelle. Michelle has been economically disadvantaged by not having access to that income and is therefore disadvantaged as a result of the marriage breakdown. Vance has the ability to pay. The final question is whether Michelle has the need she avers to. [ 35 ] This directly harkens back to the financial statements and in particular the conflicting expense statements filed by Michelle. The first was in March 2022. The total expenses then indicated came to $94,260. The second was in August 2023 with expenses totalling $126,151.

The significant changes in that 17-month period include such annual item expenses as: • $8,000 more in banking, legal and accounting; • $900 more in entertainment and recreation; • an $836 increase in insurance; • $1,884 more in electricity (not counted initially); • $720 more on food; • $960 on meals outside the home; • $480 on drycleaning and laundry; • $420 more on public transport; • $636 more, on gas and oil; • $480 more on parking; • $900 more on car repair and maintenance; and • $960 more on prescription drugs. [ 36 ] Of importance is the relative scale of the expenses.

There is a high rate of inflation presently in Canada. The

initial amounts set out in the 2022 statement seem low upon examination. A bump to more accurately reflect current costs seems to be in order and the ultimate numbers perhaps a bit high in some cases but overall, not unduly inflated. Financial statements often contain a certain element of what is hoped for combined with what might have been.

However, when measured against what seems reasonable, I do not find the current financial statement to be particularly exaggerated but instead find it to represent a relatively reasonable reality. [ 37 ] I therefore find that Michelle does have need to maintain the lifestyle she enjoyed while with Vance. It may not be completely on par with the expenses identified, but it is not far off. There is an entitlement to non-compensatory spousal support here. [ 38 ] Sufficient facts are controverted that a non-compensatory support analysis is all I will undertake at this time.

If compensatory support is sought going forward, then further fact finding will be required once more evidence is provided and when cross-examination is also available. It will therefore await pre-trial and, if not settled at that stage, a trial. Quantum [ 39 ] The remaining issue in this matter is the quantum of interim support to be paid by Vance to Michelle given ongoing payments Vance has been making. This is primarily the LOC which functions the same as a mortgage on the home. It is presently $800 monthly.

I reject the voluntary payments in excess of those mandated by the obligations to the bank as expenses to be taken into account on this analysis. One cannot avoid spousal support obligations by voluntarily eliminating debt at a herculean rate. It is the obligatory expenses that will count towards a possible credit applied in relation to spousal support payable through location of such support amount in the relevant range. [ 40 ] Wilk notes that entitlement is to be addressed separately from quantum and duration.

Consideration of the facts and ensuring there is an entitlement before moving on to amounts is critical and cannot be ignored. [ 41 ] In an interim application for spousal support such as this the primary considerations are the needs of the claimant and the ability of the other spouse to pay.

Despite this focus, the court must still consider all of the criteria from the legislation ( A.M.T. v R.D.C., 2012 SKQB 85 at para 31 , 395 Sask R 65; Bjarnason v Bjarnason , 2012 SKQB 445 at para 16 ; Scully v Scully, 2013 SKQB 58 at para 24 , 413 Sask R 215; Potzus v Potzus, (11 December 2015) Regina, DIV-RG-00288-2015 (Sask QB) and Haider ). [ 42 ] I find that it is appropriate to determine income utilizing an amount based on Vance’s current income. It has fluctuated from year to year, however it is very similar this year to 2020.

Using the 2023 amount is the fairest determination of his income as it is late in the year, he has reliable records which are based on a pattern that is not new and I find is quite reliable for those reasons. The amount will be $164,000 as Vance’s 2023 income level. With respect to Michelle’s income, I conclude she is working as full time as she can, therefore it is $93,424. [ 43 ] Vance has had surplus income to pay some $60,000 additional debt when one considers the voluntary payments he made in the last year. I have removed those from his expenses.

He will, however, be credited for the $800 monthly payments he makes on the home debt, the home in which Michelle resides and Vance does not.

Vance also has the associated expenses with the cabin he is carrying as that is his most recent residence. [ 44 ] The spousal support as calculated by ChildView , Version 2023.2.1, provides a range of spousal support of $1,864 at the low end, $2,174 mid-range and $2,485 high end. [ 45 ] In Linn v Frank , 2014 SKCA 87 , [2014] 10 WWR 215 [ Frank ] our Court of Appeal noted: [76] … 198 Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) have been utilized by this Court on numerous occasions.

While the Guidelines are not law, they are considered a useful tool in calculating spousal support and ensuring that spousal support awarded to individuals in similar circumstances is in a similar range [emphasis added]. [Emphasis in original] [ 46 ] After referring to the requisite standard of appellate review, the court went on to state: [85 ] . . . it is critically important to understand that the Guidelines require more analysis than inserting a few numbers into a formula to obtain a number, which is then considered to be the ideal and immutable amount of spousal support.

The Guidelines recognize the considerable discretion enjoyed by trial judges. The Spousal Support Advisory Guidelines : A New and Improved User's Guide to the Final Version ([Ottawa]: Department of Justice, 2010) also make it clear that a sophisticated analysis of the parties' needs and means is required to arrive at the best possible spousal support order in the circumstances of each case. This principle is fully understood in the many decisions of the Court of Queen's Bench to date (see , for example, Billett v. Billett , 2013 SKQB 269 at para. 63 , 425 Sask. R. 217 ; Verhelst v.

Verhelst , 2013 SKQB 12 at para. 52 , 415 Sask. R. 17 ; Sangray v. Sangray , 2012 SKQB 455 at para. 6 , 407 Sask. R. 149 ; Geransky v. Geransky , 2012 SKQB 218 at para. 25 ). [ 47 ] As recognized in Frank , the Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) [ SSAG ] are an important and useful framework within which support decisions are to be considered.

Recently, in Wilk , the Court of Appeal noted their value as follows: [78] . . . the SSAG is a useful tool that should be used by judges when considering the quantum and duration of spousal support: see, for example, Linn v Frank , 2014 SKCA 87 at paras 75-88 , [2014] 10 WWR 215 ; Kosolofski v Kosolofski , 2016 SKCA 106 at para 83 , 402 DLR (4th) 423 ; and MacLennan [ MacLennan v MaLennan , 2021 SKCA 132 ] at para 90. … [ 48 ] A judge has discretion, but it is appropriate to provide supporting reasons for selecting an amount from within the SSAG range.

If one departs from the range set out therein, clearly identified reasons for the departure are to be provided. It is

appropriate to take into account Michelle’s needs, the property each has, the expenses each has, and the amount of spousal support recognized by the SSAG. [ 49 ] As noted Michelle still resides in the family home. Vance is paying the LOC associated with debt secured against the home. Michelle pays her own living expenses beyond that such as utilities and taxes. Equity is being built in the home but primarily by Vance voluntarily paying down debt.

He is providing a significant benefit to Michelle through his payment of the LOC for the home she resides in. [ 50 ] In Senchuk v Senchuk , 2016 SKCA 167 , 94 RFL (7th) 37 [ Senchuk ] the court stated the following: [17] The appellant indicated that he wanted to continue to pay the mortgage payments , taxes and insurance with respect to the family home and the loan payments relating to the vehicle used by the respondent as opposed to paying spousal support directly to the respondent. The amount in question is approximately $2,000 per month. The Chambers judge ordered him to continue to pay this amount.

In addition, the Chambers judge also ordered the appellant to pay interim spousal support of $600 per month, resulting in a total support payment of $2,600 per month. If the Spousal Support Advisory Guidelines , ([Ottawa]: Department of Justice, 2008) [ SSAG ], are used, the range for the appellant's income of $85,783 and the respondent's income of $0 (there was no application before the Chambers judge to impute income to the respondent), with child support of $1,173 per month would be $1,521 at the lower end and $1,969 at the higher end. [18] The $2,000 monthly payment exceeds the higher end.

The Chambers judge did not provide reasons for ordering the additional payment of $600 per month. Nor did the Chambers judge reference the SSAG in her reasons, even though those guidelines were argued before her at the Chambers hearing. We find this to be an error.

This Court in Frank v Linn , 2014 SKCA 87 at para 89 , 442 Sask R 126 , commented upon the failure to provide reasons if the SSAG were fully argued and held that "an appeal court may intervene if reasons are not or cannot be given to support the trial judge's disposition in relation to [the SSAG ]." In addition to this error, since the appellant carried most of the debt load and there is a shared custody arrangement, the amount of interim spousal support should have been closer to the lower end of the range.

In this case, the order for interim spousal support exceeded the lower end of the range by approximately $1,000 per month. The after tax net result of the order was to reduce the financial resources available to the appellant, who shared custody of the children and had child care expenses, to less than one-half of the respondent's resources. [19] Therefore, we allow the appeal to the extent that the payment of $600 per month is set aside. It follows that the order requiring the appellant to pay $2,400 in spousal support arrears is also set aside.

Once again, the issue of retroactive spousal support is properly left to the pre-trial settlement conference and trial if necessary. [20] Since we felt that the appellant should be held to his agreement to continue to pay $2,000 per month for the mortgage, inclusive of taxes and insurance and car payments, the order will be structured to comply with The Income Tax Act, 2000 , SS 2000, c I-2.01 . We note that the $500 per month payment towards the car debt is not tax deductible. [ 51 ] Senchuk was applied in Kurtz v Kurtz , 2019 SKQB 31 , 21 RFL (8th) 274.

These decisions point out that it is important to find the correct place at which payments assumed by a spouse and the amount set out in the SSAG best intersect so as to balance the interests of each of the parties and come to a reasonable payment amount in all the circumstances.

One cannot simply impose spousal support obligations without considering the overall payment amounts the payor spouse has undertaken and is responsible for. [ 52 ] As noted, it is appropriate to take into account Michelle’s needs, the property each party has, the expenses each has, and the amount of spousal support recognized by the SSAG. In this case the SSAG amount standing alone would be under the total of Vance’s payments for the mortgage and associated expenses for the home.

Nonetheless, his contribution there is not to be ignored or it would result in unfairness to him. [ 53 ] Vance is paying the $800 in monthly debt regarding the family home. Michelle covers the other expenses. There should not be a double payment levied against Vance and he should be given some credit for the LOC payment on the family home Michelle is residing in. [ 54 ] In consideration of the factors at play in this matter I conclude that the amount appropriately paid for spousal support is $1,400 per month.

This is in line with Michelle’s need, the previous lifestyle she enjoyed, Vance’s available income and his expenses once adjustments in his lifestyle are made. Once the various factors are considered along with his monthly LOC payment it puts the benefit to Michelle at the mid-range. The payments for spousal support are to begin on August 1, 2023. [ 55 ] In consideration of the factors at play in this matter, I conclude that the amount appropriately paid for spousal support is $1,400 per month. It should enable her to achieve a similar lifestyle she had with Vance.

This is in line with Vance’s available income and expenses and Michelle’s income and expenses once adjustments in her lifestyle are made. This amount is dependent on Vance continuing to make the LOC payment monthly, which he is also ordered to do. CONCLUSION [ 56 ] It is ordered on an interim basis that Vance pay the LOC on the family home as well as spousal support to Michelle in the amount of $1,400 per month beginning in August 2023 (inclusive). No retroactive support will be ordered at this time, that being a matter appropriately for pre-trial and, if not settled there, for trial.

COSTS [ 57 ] Michelle has been successful and is entitled to her costs in the amount of $1,500 payable forthwith. J.

D.J. BROWN