J.E.T. PETITIONER - v. -, 2023 SKKB 83

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 83 Date: 2023 04 24 Docket: DIV-SA-00273-2021 Judicial Centre : Saskatoon, Family Law Division BETWEEN: J.E.T. PETITIONER - and - Y.M.H. RESPONDENT Appearing: J.E.T. self-represented Benjamin A. Omoruyl for the respondent JUDGMENT RICHMOND J. APRIL 24, 2023 [ 1 ] J.E.T. and Y.M.H. were married on July 30, 2011. J.E.T. and Y.M.H. now wish to be divorced and, of most importance to both, ask for an order setting out appropriate parenting time for their two children, J.T. and A.T. born [...], 2016.

Despite having separated in November 2016, the parties have been unable to agree on parenting time for their twins. In addition, Y.M.H. asks the court to set an appropriate amount of child and spousal support. BACKGROUND [ 2 ] J.E.T. and Y.M.H. met in Estevan, Saskatchewan in July 2006. Y.M.H. had a child from a previous relationship, D.H., who was five years of age when they began their relationship. D.H.’s natural father was not involved and there appears to be no dispute that J.E.T. stepped into that role.

D.H. is now an adult and is not a subject of these proceedings. [ 3 ] The parties moved in together into a home in Bienfait, Saskatchewan shortly after they met. J.E.T. had employment as a welder and Y.M.H. worked as a server. They decided to relocate to Saskatoon, Saskatchewan as Y.M.H. wanted to return to school. They enrolled D.H. in elementary school in Saskatoon. Y.M.H. completed early childhood development classes and graduated with honours from the program in 2010.

[ 4 ] J.E.T. initially found employment in Saskatoon as a welder but suffered an injury which left him unable to do physical labour to the degree required for the job. Y.M.H. was employed in the public school division as an educational assistant and also earned additional money by working as a server on weekends. The parties bought a home in Saskatoon with two bedrooms up and two down and a backyard with a hot tub. Y.M.H. started a daycare out of their home and J.E.T. assisted in the daycare until he found employment with Saskatchewan Employment Initiatives.

Although J.E.T. historically made more money than Y.M.H., that changed with his new employment and Y.M.H.’s daycare. Nonetheless, financially, they were doing well, and bills were paid on a timely basis. [ 5 ] The parties wanted children and Y.M.H. saved up for invitro fertilization. Y.M.H. describes a troubled pregnancy. She felt unsupported by J.E.T. Ultimately, Y.M.H. went into labour and gave birth to J.T. A.T. followed by emergency c- section. The babies were both jaundiced and required additional care though A.T. was able to return home before J.T.

J.E.T. remained at the hospital for a week and was involved in the care of the twins. A.T. slept with him initially following her birth. A.T. had difficulty breast feeding and J.E.T. cared for her. A.T. transitioned to breast feeding at three months and J.E.T. advised Y.M.H. reduced his ability to care for A.T. once she began breast feeding. [ 6 ] Both parents appear to have been overjoyed by the birth of their twins. Their relationship, however, was ill equipped to withstand the pressures of two demanding infants and a single income. J.E.T. continued to work but his

schedule was inconsistent. Sometimes he had longer shifts followed by several days off. Y.M.H. wanted to know when she could count on him for help but describes J.E.T. being resistant to sharing this information. She was frustrated by what she perceived as his lack of support and claimed she received more help from her son D.H. than from J.E.T. [ 7 ] Their relationship continued to deteriorate, and J.E.T. moved into the basement suite with D.H. When he did care for the babies, his preference was to take them downstairs rather than spend time upstairs with Y.M.H.

Y.M.H. referenced a conversation with J.E.T. where he commented that they had not spoken for two months, and she had not noticed. Their relationship ended five months after the twins were born. [ 8 ] The parties continued to live separate and apart in the same home until the babies were approximately nine months, but the already strained relationship deteriorated further. Ultimately, Y.M.H. moved out. J.E.T. had kicked the door in to the upstairs suite while looking for his jacket. She moved out ten days later.

J.E.T. remained in the home for a time, but Y.M.H. entered the home and removed baby bottles which she claims she had told J.E.T. he could not use as they were disruptive to A.T.’s development and ability to breast feed. J.E.T. was angry that she had removed the bottles from his home and decided to move in with a friend. The home was ultimately lost to foreclosure. [ 9 ] Post separation J.E.T. and Y.M.H. describe J.E.T.’s parenting differently. J.E.T. describes how he took whatever time he could get with the children. Y.M.H. describes working around J.E.T.’s schedule.

Despite years of separation and two interim orders, parenting time remains an item of contention for J.E.T. and Y.M.H. Divorce [ 10 ] J.E.T. and Y.M.H. have lived separate and apart for more than one year and neither has any intention of reconciling. The children will be adequately provided for pursuant to this judgment and the divorce should issue. Parenting [ 11 ] J.E.T. and Y.M.H. are governed by the Divorce Act , RSC 1985, c 3 (2d Supp) [ Act ]. The Act specifies the children’s best interests are the only consideration in determining a parenting order or contact order.

Ultimately J.T.’s and A.T.’s physical, emotional and psychological safety, security and well-being must be considered. The Act provides that certain factors are to be considered. Specifically, the Act provides as follows respecting parenting: Best interests of 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 contact order. 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. [ 12 ] In determining what is in the best interests of the children, regard must be had to their day to day lives and their needs. J.E.T. believes it is in the children’s best interests to spend half the time with him, but Y.M.H. argues they are better off remaining primarily with her. [ 13 ] A.T. and J.T. will soon be turning six years of age.

As twins they are well bonded and enjoy a close relationship to one another and to family. They do well at school and by all accounts they are bright and precocious children. They have enjoyed stability throughout their lives as they have lived primarily with their mother and enjoyed time with their father. [ 14 ] The children have developed relationships with both Y.M.H. and J.E.T., their extended family and Y.M.H.’s and J.E.T.’s friends.

The relationships all appear to be healthy and happy and a benefit to the children. [ 15 ] Both Y.M.H. and J.E.T. pay lip service to the idea of developing and maintaining the children’s relationship to the other parent, but the reality is quite different. Both Y.M.H. and J.E.T. called witnesses who spoke of their parenting skills, their observations of their interactions with the children and the bond they witnessed the children had with that parent. Y.M.H. and J.E.T. have been separated since the children were babies and have not parented together.

Their perception of the other is incomplete as they have never had the opportunity to view the other parenting for any length of time. J.E.T. sees Y.M.H. as overly controlling. She breastfed the children until recently and “allowed” him parenting time which did not interfere with her ability to feed. She reduced J.E.T.’s time to nothing when Covid-19 was first announced, and he went several weeks without any contact other than what she permitted virtually.

Family Services had been called to investigate because of an injury at a shooting range and because J.E.T. had allegedly left the children alone in his apartment while he ran out for a coffee. J.E.T. has become increasingly distrustful that Y.M.H. will willingly encourage him to have time with the children. Y.M.H., on the other hand has seen J.E.T. react badly to her in front of the children and has spoken disparagingly of her in front of the children. Neither Y.M.H. nor J.E.T. sees the other as capable of developing and maintaining the children’s relationship with the other spouse.

[ 16 ] The history of the care of the children has largely fallen to Y.M.H. Y.M.H. would argue that she is the most qualified to care for the children and is most attentive to the children’s needs. J.E.T., on the other hand, argues that he too is a loving and caring parent but has been deprived of the ability to care for the children as a result of Y.M.H.’s restrictions. [ 17 ] The children are too young to express a preference as to a parenting plan though Y.M.H.’s friend, Mr. Buglass, indicates that they are sometimes hesitant to go with their father.

The children did not show reluctance during every exchange and sometimes exchanges were uneventful. Even when the children showed hesitancy, J.E.T. could convince them to go with him without too much of an argument. A hesitancy to go with their father may mean nothing more than the children are tired or have an interest in doing other things. It may mean that, at that moment, they feel more bonded to their mother, or they may sense their mother does not want them to go.

There is nothing in the evidence respecting exchanges which cause concern respecting J.E.T.’s ability to parent the children. [ 18 ] Cultural, linguistic or religious heritage is not an issue for these children. [ 19 ] Plans for the care of the children appear to center around the children. Y.M.H. is currently not working, and her life is centered around the children and their needs. J.E.T. has adjusted his work

schedule such that he is available for the children before and after school most days. Both parents have limited financial means and the care of the children is centered around finding things for them to do at little to no cost. Nonetheless, whether it is visiting museums, camping in back yards or at a nearby lake, both parents have made the most of their time with the children. [ 20 ] Both J.E.T. and Y.M.H. have indicated an ability and willingness to care for the children. However, both have alluded to having health issues. Neither suggests their health impacts their ability to provide care.

J.E.T. has reduced his hours of work. When asked for medical evidence to justify this decision, he filed a letter from his physician which had been provided to his employer in justification of his leave application. The letter was heavily redacted and how his medical condition may affect his ability to work with the children is an unknown. [ 21 ] Y.M.H., as well, is unemployed but has filed no medical evidence to support her contention that she is unable to work. She advised that it takes all her energy to prepare the children for school and to maintain the house in the children’s absence.

She claims she is often required to lay down in the afternoon while the children are in school. Suffice it to say that both parents have indicated a willingness to care for the children, but their ability may be curtailed by their health issues. Both appear to have managed caring for the children thus far.

Though Y.M.H. has contacted Family Services to voice concerns respecting J.E.T.’s care of the children, her complaints, although investigated, have not resulted in any action on the part of Family Services. [ 22 ] Y.M.H. argues that J.E.T.’s insistence on giving the children goat’s milk or using bottles, contrary to advice that it would impact A.T.’s speech development, shows an inability to care for the children. It is to be noted that no medical evidence respecting A.T.’s alleged condition was filed.

J.E.T., on the other hand, argues that Y.M.H.’s insistence on breast feeding was only a means of excluding him from time with the children, particularly when she continued to breast feed for several years. Breast feeding is no longer an issue and is not a current concern. [ 23 ] Y.M.H. has raised concerns with J.E.T.’s ability to care for the children as he has been dismissive of injuries which occurred while under his watch. J.T. had been burned by a bullet casing when out on the farm shooting range and had been burned when he got too close to a space heater. She accuses J.E.T. of negligent care.

She also referred to an incident respecting a black eye and one involving a dog scratch. J.E.T., in cross-examination, questioned Y.M.H. about accidents which occurred while the children were in her care which included an incident that required J.T. to get stitches while using scissors. Children will be children and avoiding injury is not always possible. I am not convinced that J.E.T. is incapable of providing care. By the same token, Y.M.H. does not want to keep the children from J.E.T. but rather wishes to limit his time.

None of the incidents referred to by Y.M.H. would justify limiting J.E.T.’s time with the children. [ 24 ] Y.M.H. also questions J.E.T.’s ability to help the children with their homework as they age but again, despite J.E.T. professing to having a learning disability, he has proven himself capable of managing his employment and undertook trial preparation with studious attention to detail.

Suffice it to say that I am satisfied that if J.E.T. requires help with the children’s homework and he is unable to provide that help, he will have the good sense to reach out to friends and family for assistance for the children. [ 25 ] The ability and willingness to communicate respecting the children is at present, barely existent. The parties have a dislike and distrust for one another that makes communication difficult. Y.M.H. has shown a disrespect for J.E.T.’s ability to parent and has called Family Services regarding his care.

J.E.T., in turn, sees Y.M.H. as controlling and is hesitant to reach out to her for fear it will be used against him and his time with the children will be further reduced. [ 26 ] Y.M.H. has raised family violence as a concern. She has referred to several incidents with J.E.T. over the years which she argues makes it unlikely that they can parent together and argues his conduct limits his ability to parent the children to the extent that he wishes. J.E.T. denies family violence and describes Y.M.H.’s refusal to let him have the children when he would like as a form of family violence.

J.E.T. cut Y.M.H. off financially, which, she argues is another form of family violence. [ 27 ] Megaw J. commented on family violence in Juraville v Armstrong , 2021 SKQB 73 : [41 ] There are allegations of family violence as between the petitioner and the respondent. As indicated, those allegations by each of the parties are extremely concerning. However, it is not simply the existence of family violence, or the allegation of family violence, which determines an entitlement to parenting time. Were that so, a mere allegation could prevent any parent from engaging with their children.

This is not in keeping with the search for that which is in the children’s best interests. Again, the allegations of violence are not to result in a punishment of the alleged abusive parent by denying him (in this case) parenting time with the children. Rather, it is the impact of that violence on the ability of the parent to care for the children, to provide for their needs, and to cooperate on issues affecting the children. And, the result of violence allegations is to ensure everyone’s safety is considered and carefully weighed by the court.

Thus, to the extent possible, persons who have been in abusive relationships should not then have to continue to interact with the abuser directly through the guise of a court order.

[ 28 ] The Supreme Court of Canada in Barendregt v Grebliunas, 2022 SCC 22 , 469 DLR (4 th ) 1 provided further caution respecting family violence: [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. [ 29 ] In a more recent decision, J.B. v J.M., 2023 SKCA 24 , the Saskatchewan Court of Appeal made the following observations respecting family violence: [47] As this Court observed in A.M.D. [2021 SKCA 71], “Violence in the home cannot be condoned, and judges must treat allegations of violent conduct involving intimate partners and children with care when making parenting orders” (at para. 60).

When a court considers the effect of family violence in the context of a parenting order, it is not necessary that the party alleging the occurrence of family violence specifically prove precise incidents of it, but a Chambers judge must be able to conclude, based on the totality of the evidence, that family violence has in fact occurred or, at the very least, that such allegations are sufficiently credible to give rise to a level of risk to the child’s safety that it bears upon their best interests (see, generally, C.L.B. v J.A.B. , 2016 SKCA 101 at paras 44–46 , 82 RFL (7th) 269 ; Watts v Laframboise , 2021 SKQB 279 at para 38 ).

This requires the court to “assess the totality of the evidence with care and objectivity to determine whether the allegations should be accepted as reliable, true, or probably so, or whether they are based on speculation, conjecture, suspicion or unreliable evidence such that they should be rejected” ( Shoman v Mais , 2022 SKQB 106 at para 48 ). [ 30 ] J.E.T.’s and Y.M.H.’s relationship is problematic. Their marriage does not appear to have been too troubled until the pregnancy and ultimately the birth of the twins.

Even then, they were able to live under the same roof for a time until Y.M.H. felt threatened when J.E.T. broke into her part of the home in search of his jacket. Y.M.H. told J.E.T. how to parent and J.E.T. often ignored her and did as he wished. Y.M.H. took bottles from the home which resulted in a further escalation of their already strained relationship. J.E.T. was providing limited financial assistance. Y.M.H. was providing J.E.T. with limited time with the children when she was not needed to breast feed. Y.M.H. suspended J.E.T.’s parenting time altogether during Covid-19.

In her defense, there was little direction from the province as to how she should be balancing J.E.T.’s parenting time with risk of infection from the virus. For J.E.T., however, it was but another example of Y.M.H. controlling their children and his time with the children. [ 31 ] There is no doubt Y.M.H. controlled parenting. She is a good and loving parent who believes she has her children’s best interests at heart. She is educated respecting children and their care and appears to have set ideas as to what is in the children’s best interests.

It is perhaps difficult for her to see that J.E.T. is also a good and loving parent who has much to offer the children. J.E.T.’s behaviour towards Y.M.H. when he learned she had taken the bottles and when he learned she had called Family Services respecting his alleged conduct was inappropriate. Calling Y.M.H. names is unacceptable though his behaviour appears to be limited to situations where his ability to parent was being undermined or potentially limited. [ 32 ] J.E.T.’s behaviour was perceived by Y.M.H. as threatening and the seriousness of his behaviour cannot be trivialized.

His conduct, although not condoned, can be explained by the circumstances as he feared losing his children altogether. The children were never the victims of any violence though they did hear their father speaking ill of their mother. Although the children were not at risk of physical harm, some psychological harm is inevitable. Y.M.H. continues to fear for her safety and has arranged to have Mr. Buglass accompany her to exchanges. [ 33 ] Minimizing exchanges and having exchanges in a public place will serve the parties and the children well.

The children should not have to bear witness to verbal abuse by one parent to another. J.E.T. has not addressed his behaviour other than to recognize that minimal contact between him and Y.M.H. would be best for all concerned. Nonetheless, given the evidence of J.E.T.’s witnesses and his own evidence respecting his care of the children, more time, rather than less, as is proposed by Y.M.H. will benefit the children. The children have loving relationships with both their parents and a set

schedule where they know with whom they will be will promote those relationships and put the parents on a more equal footing. [ 34 ] The interim order had the children with their father from Monday at 9:00 a.m. until Tuesday at 6:00 p.m. and from Saturday at 9:00 a.m. until Sunday at 6:00 p.m. one week and from Monday at noon until Tuesday at 6:00 p.m. the following week. All holidays were to be shared equally. Notwithstanding the order, J.E.T. did not have the children for half the time for the summer. Y.M.H. claims it was close and argues they worked out a parenting arrangement.

Since the order of Justice Haaf, the children have begun attending school full time. J.E.T. filed a letter from his employer which provided a

schedule whereby he worked Wednesday, Thursday and Saturday in week 1 and Wednesday, Thursday and Friday in week 2. Y.M.H. is unemployed but given the absence of medical evidence, it is not possible to assume that she will remain in that state. For now, however, she is unemployed and has flexibility. [ 35 ] J.E.T. has requested a

schedule over a two week period which has him picking the children up at 6:00 p.m. Sunday and returning them to school on Wednesday morning and picking them up on Saturday morning at 9:00 a.m. and having them remain in his care until he returns them to school Wednesday morning. Thereafter the children will remain with their mother until Sunday at 6:00 p.m. at which time the rotation will recommence. Given the ages of the children and J.E.T.’s work schedule, the parenting

schedule is not unreasonable. However, Y.M.H. should have a full weekend with the children and having J.E.T. pick them up at 6:00 p.m. on Sunday interferes with Y.M.H.’s weekend. The

schedule being proposed is otherwise reasonable and best meets the physical, emotional and psychological safety, security and well being of the children. As the children get older or as work commitments change, variations of the above

schedule may be required but a shared parenting arrangement which minimizes contact between the parties best meets their interests. The new

schedule will take effect on May 1, 2023 with the interim order to remain in effect until then. The children should be informed of the change and when the new parenting arrangement will take effect. The new parenting order shall be as follows:

a) J.E.T. shall pick the children up after school on Monday and keep them until Wednesday morning when they will be returned to school. The children shall remain with their mother until Saturday morning at 9:00 a.m. at which time J.E.T. shall pick the children up and keep them until Wednesday morning when he will return them to school. The children shall then remain with their mother until Monday morning when they return to school at which time the rotation shall recommence.

b) The parties will share equally the summer, Christmas, spring and Easter breaks. In the event either party is unavailable to care for the children during his or her time for more than a three hour period, a first option to provide care shall be given to the other parent. [ 36 ] The parties shall continue to share responsibility for decisions respecting the children including but not limited to school, medical and extra-curricular activities.

The parties will keep each other informed of any appointments and will endeavor not to make appointments for the children during the other parent’s time without obtaining the other parent’s prior approval. Both parents will obtain information directly from the school to limit communications between them. Child support: [ 37 ] Ongoing child support: J.E.T.’s 2022 income was $33,806. His income was substantially higher in both 2020 and 2021. In 2020, he had income of $59,840 and in 2021 he had income of $49,276. He was off work for a couple of months in 2022 for medical reasons.

Though the letter filed from his doctor was heavily redacted and the exact cause for being off work is unclear, his employer clearly accepted there was an inability to work and gave him leave. I am satisfied that income for 2022 was $33,806 and that amount should be utilized to calculate support going forward until he files his 2023 tax return. [ 38 ] The new parenting

schedule is shared parenting and as such child support becomes more complicated. Neither party provided an analysis of costs of raising the children as set out in Contino v Leonelli-Contino, 2005 SCC 63 , [2005] 3 SCR 217 [ Contino ]. Nonetheless, J.E.T. testified that notwithstanding that he had previously not been in a shared parenting arrangement, he maintained his home for the children and purchased clothing and what was needed.

Given that information and the lack of information to do a proper Contino analysis, a set off is reasonable in the circumstances. [ 39 ] Y.M.H., however, is unemployed and no medical evidence was filed to establish that her unemployed status was reasonable or whether she can work at all. Her counsel proposed imputing minimum wage to Y.M.H. in the amount of $26,000 for purposes of calculating s. 7 expenses.

Given the absence of any medical evidence to substantiate why she is not working or whether she can work part time, imputing income in that amount is not unreasonable, particularly when, by her own account, she was fully employed prior to her pregnancy with the twins and is trained as an educational assistant. [ 40 ] Based on the above, J.E.T.’s current obligation for child support is $492 and Y.M.H.’s current obligation is $389 resulting in a set off payment from J.E.T. to Y.M.H. commencing May 1, 2023 and continuing on the first day of each month thereafter in the amount of $103 until further order or agreement.

In addition to the base support, the parties will share s. 7 expenses, to be agreed to in advance, in proportion to the above incomes which results in J.E.T. paying 57% and Y.M.H. paying 43% of any s. 7 expenses incurred. [ 41 ] The child support payable under this order may be recalculated by the Saskatchewan Child Support Recalculation Service if eligible for recalculation and if the recalculation service determines that recalculation is permissible and appropriate pursuant to The Family Maintenance Act, 1997 , SS 1997, c F-6.2 and The Family Maintenance Regulations, 1998 , RRS c F- 6.2 Reg 1 .

Either party may apply to the recalculation service at: Saskatchewan Child Support Recalculation Service Room 100, 3085 Albert Street Regina, SK [ 42 ] Should the payor fail to comply with the income disclosure requirements of the recalculation service, the payor’s income may be deemed to have increased as set out in

section 21.33 of The Family Maintenance Regulations, 1998 . Arrears: [ 43 ] J.E.T. is in arrears of support. He had a responsibility to pay child support but did not do so in accordance with his means. Although Y.M.H. was entitled to support from December 2016, she proposed an adjustment effective January 2018.

Given that the parties lived separate and apart under the same roof for a time following separation and the dearth of evidence respecting payments made and received during the early period following separation, Y.M.H.’s proposal is more than fair and a return to review the parties’ circumstances at the time of separation may have been appropriate. However, there is little to no evidence as to the parties’ circumstances at the time of separation. [ 44 ] Y.M.H.’s counsel had calculated arrears as follows: 2018: Based on income of $41,694 for 2017, J.E.T.’s obligation was $579.30 per month and he paid $300.

Arrears of $3,351.60

accumulated. 2019: Based on income of $41,788.40 for 2018, J.E.T.’s obligation was $580.56 per month. He made payments of $300 per month forfour months and payments of $150 per month for the remainder of the year.

Arrears of $4,566.72 accumulated. 2020: Based on income of $60,198 for 2019, J.E.T.’s obligation was $832.20 per month but he only paid $150 per month which results inan accumulation of arrears of $8,186.40 2021: Based on income of $59,840 for 2020, J.E.T.’s obligation was $827.76 per month but he only paid $652 per month which results inan accumulation of arrears of $2,109.00. 2022: Based on income of $49,276 for 2021, J.E.T.’s obligation was $681.70 per month but he only paid $652 per month which results inarrears of $326.70 to the end of April 2023. [45] In total, the arrears which have accumulated are $18,540.42.

J.E.T. has limited means but he also had anobligation to pay child support which he did not do in accordance with the Federal Child Support Guidelines, SOR/97-175. As was pointed out in Michel v Graydon, 2020 SCC 24 at para 33, 45 RFL (8th) 1: Failure to disclose material information is the cancer of family law litigation (Cunha v. Cunha (1994), (BC SC), 99B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34).

And yet, payor parentsare typically well aware of their obligation as a parent to support their children, and are subject to a duty of full and honest disclosure … [46] Although J.E.T. did pay some monies for support, Y.M.H. was unaware of his income until the matterproceeded to court. Any interim orders for support are subject to revision at trial. As pointed out by the Court of Appeal in Ford v Ford,2015 SKCA 23 at para 30, 457 Sask R 19: “In short, the trial judge is not bound by any existing interim child or spousal support order.

He or she is instead required to conduct a fresh analysis without regard for whether there has been a “material change in circumstances.” [47] J.E.T. must pay the arrears of support but must also be able to support himself and the children when they are inhis care. J.E.T. will pay the arrears at the rate of $500 per month until paid in full. Spousal support: [48] Y.M.H. has claimed spousal support. She is currently on social assistance and has not returned to work since sheclosed her daycare prior to the birth of the twins.

Y.M.H. has been in a car accident since separation, and it is unknown whether shereceived any compensation for that. She has provided no independent evidence to substantiate her claim that she cannot work. Herdecision to remain home with the twins following their births was not made in conjunction with J.E.T. as the parties separated when thetwins were five months old. [49] While the parties were together, they moved from the Estevan area to further Y.M.H.’s career and permit her toobtain an education in Saskatoon.

By the time she was pregnant with the twins, by her own testimony, she was doing well financially.Her current circumstances cannot be said to be related to the marriage or the breakdown of the parties’ relationship. Y.M.H.’s counselhas requested lump sum spousal support of $5,000. Although the twins impacted Y.M.H.’s career, the impact arose because she did notreturn to work. [50] There is nothing to suggest in the evidence that the parties did not intend for Y.M.H. to return to work followingthe usual time for a maternity leave.

There is a paucity of evidence respecting Y.M.H.’s circumstances following separation, her health,and her efforts, if any, to return to work. Neither party filed financial information from the time of separation in 2016. Given the absenceof evidence of the parties’ financial circumstances at the time of separation, Y.M.H.’s entitlement to spousal support has not beenestablished. [51] In Gaunce v Gaunce, 2023 SKCA 18, 83 RFL (8th) 319 [Gaunce], the Court of Appeal commented on theapplicant spouse’s request for a lump sum award of retroactive support and stated at para. 71, “Ms.

Gaunce did not adduceany evidence to establish her claims to retroactive support, nor did she refer to any law to substantiate her unorthodox method ofquantifying those claims” and went on to comment at para. 75, “Notably, Ms. Gaunce did not adduce any evidence or make any oral orwritten submissions with a view to establishing her entitlement to retroactive spousal support or as to how she had arrived at the “lumpsum of $17,000” as being owing.” (Emphasis in original) [52] Another problem arises insofar as Y.M.H. did not apply for retroactive spousal support but rather counter-petitioned for ongoing support.

By the time she counter petitioned for spousal support the twins were almost five years old. The Court ofAppeal in Gaunce commented as follows at para. 90: [90] Speaking for a unanimous Court in Kerr [2011 SCC 10, [2011] 1 SCR 269] Cromwell J. remarked that “there is no presumptiveentitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for theseparated spouse’s legal interests” (at para 208).

Justice Cromwell held that courts must take into account considerations similar to thoseset out in D.B.S. [2006 SCC 37, [2006] 2 SCR 231], in the context of child support, when determining whether a retroactive award ofspousal support is appropriate.

As noted, the relevant considerations are these: “the needs of the recipient, the conduct of the payor, thereason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse” (at para 207; seealso MacLennan v MacLennan, 2021 SKCA 132 at para 98; Jones v Jones, 2017 SKCA 46 at para 91, 95 RFL (7th) 43; and M. vM. 2012 SKCA 55 at para 23, 46 RFL (7th) 24). None of these considerations were addressed in argument at trial or in the reasons forawarding retroactive spousal support under the Trial Decision.

Moreover, when we follow the guidance in Kerr and look to the relevantevidence and findings of fact in the Trial Decision [2021 SKQB 101], we conclude that Ms. Gaunce did not establish an entitlement toretroactive spousal support. [53] Y.M.H. has not established an entitlement to retroactive spousal support nor has she provided evidence to satisfy

me that her current financial circumstances are in any way related to the parties’ marriage or its breakdown and the lump sum amount being requested has not been explained or justified. Given the above, the application for spousal support is dismissed. J. C.M. RICHMOND