R é millard v. R é millard., 2014 MBCA 101

Citation: R é millard v. R é millard., 2014 MBCA 101 Date: 20141106 Docket: AF 13-30-08019 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) G. J. Orle, Q.C. PAUL VICTOR JOSEPH RÉMILLARD ) for the Appellant ) (Petitioner) Respondent ) A. L. Bennet ) for the Respondent - and - ) ) CANDACE ADELE RÉMILLARD ) Appeals heard: ) June 2, 2014 (Respondent) Appellant ) ) Judgment delivered: ) November 6, 2014 HAMILTON J.A. [ 1 ] These are appeals from orders of child support and spousal support.

They raise difficult issues, particularly related to the support of a disabled child, government subsidies for that child and a payor income over $150,000. [ 2 ] The parties agreed, prior to trial, to share joint care and control of their 12-year-old daughter (E.), who is severely disabled. Ms Rémillard (the mother), who has stayed home and cared for E. since her birth, has primary care and control. She appeals the order of the trial judge made pursuant to s. 4 of the Child Support Guidelines Regulation , Man.

Reg. 58/98 (the Guidelines), which caps child support for E. at the table amount for the income level of $150,000. She also appeals the order of time-limited step-down spousal support and the costs award against her. Mr. Rémillard (the father) cross appeals with respect to the retroactive component of the spousal support award. [ 3 ] These appeals must be considered in the context of two complicating factors. First, there are the delicate considerations arising from E.’s disability and her related care and needs, particularly in light of the availability of government assistance and subsidies.

Second, the mother lives with her new partner (D.R.), with whom she has had another child (Z.). [ 4 ] Pursuant to s. 4 of the Guidelines , the trial judge set child support at $1,217 monthly, being the table amount for the income level of $150,000. At the time of the trial, the father’s income exceeded that amount by approximately $30,000. The trial judge ordered time-limited spousal support for five years commencing April 1, 2013. The monthly amounts for each of the five years declines annually from $1,500 in the first year to $300 in the final year.

The trial judge imputed annual income to the mother in the amount of $25,000 starting April 1, 2012, and awarded retroactive spousal support to the date of separation of $20,800. Applying s. 49.10(1) of the Queen’s Bench Rules, she awarded double costs against the mother in the amount of approximately $86,000. [ 5 ] For the reasons that follow, I would allow the mother’s appeal and dismiss the father’s cross appeal. With respect to the costs award against the mother, I would ask for further submissions in the event the parties cannot agree on the effect of this decision on that award.

Background [ 6 ] E. was born in 2002. She is developmentally delayed and suffers from a seizure disorder and chronic respiratory problems that make her susceptible to lung infections. When she is alone in her bedroom she must be monitored in case of a seizure. E. cannot walk and sits with the assistance of a special seat that prevents her from falling over. She has been hospitalized numerous times; most recently at the time of the trial in December 2011. She is under the care of a pediatrician, neurologist and respirologist.

[ 7 ] Both parents are committed to E. and her daily needs. The trial judge explained that, “[E. requires] … unique care … on a full time basis” (at para. 33). She noted that, “[The mother] gave extensive evidence about the daily needs of [E.] and the undeniable demands that [E.]’s care places on [the mother] and similarly [the father] when [E.] is in his care” (at para. 32). [ 8 ] E.’s daily care is very scheduled. Three times a day (sometimes four) she requires medication delivered through a puffer and physiotherapy on her chest (pummeling) for her respiratory problems.

Sometimes the back of E.’s throat needs to be suctioned. She is tube fed four times a day. She naps several times a day. [ 9 ] E. enjoys sitting and playing with her toys, being read stories, and going out with her parents, such as for a drive with her father or to the mall with her mother. As the father explained, “Her communication is through her smiles …. she cannot verbalize her needs” and she rarely cries. [ 10 ] The Winnipeg Regional Health Authority (WRHA) has provided support for E. since her birth.

That support takes various forms for E.’s special needs: homecare aides and sometimes nurses, the liquid food that nourishes E., her undergarments, her bed, bath seat, stroller, a wheelchair, a “tumbler chair,” car seat, medical supplies and equipment needed to administer her food and medication. She will soon need equipment to lift her. Funding is available for modifications that are needed for the home (the primary care residence) and one vehicle that is used to transport her. [ 11 ] The mother is 40 years old and the father is 41. They began living together in September 1994 and married in June 1999.

They separated on June 3, 2010. Their second child, a son (K.), was born in early 2008. Tragically, he also experienced numerous health problems. He died two months after the parties separated. As the trial judge observed, “the losses and ongoing challenges experienced by this family have been exceptional” (at para. 1). [ 12 ] At the beginning of their relationship, the father was a university student and the mother was a clerk at a credit union. The father is now a professional engineer and the vice-president of operations in Winnipeg for an international engineering firm.

His annual income has risen steadily through the years. It reflects primarily a base salary with a bonus or profit-sharing component. According to the agreed statement of facts filed at the trial, his income in 1997, the year after his graduation from university, was just over $20,088; in 2012 it was $182,712; and in 2010, the year of separation, it was $183,663.

At the trial, the father testified his base salary was approximately $164,000 and that there had been discussions at the firm about a voluntary rollback of the base salaries for senior management personnel, although the details of the rollback had not been confirmed. The final order states that, “[t]he annual income of [the father] in accordance with his T4 and T5’s for the year 2012, less carrying charges, is $180,285.42.” [ 13 ] The mother has not been employed outside of the home since E.’s birth nor has she pursued any training or further education.

The agreed statement of facts shows that in the last year that she worked outside the home (2001), she earned $23,025 and that from 2008 through 2011, the universal child care benefit (now $100 monthly) was essentially her only source of income. [ 14 ] In April 2011, D.R. began cohabiting in the family home with the mother. Their child Z. was born in August 2011. He is employed steadily as a trucker. D.R. also has a daughter (H.) from a previous relationship who stays with them on alternating weekends. [ 15 ] Following the separation, the father paid child support pursuant to the Guidelines .

He also paid to third parties a number of expenses related to the family home, such as the mortgage (interest only since the separation), insurance costs and property taxes. These expense payments were not tax deductible. He did not pay the mother any spousal support directly. [ 16 ] The father has been living with his parents. He plans to buy a house when these proceedings are finalized, using his share of the proceeds from the sale of the family home and savings ($70,000) that he has accumulated since the separation.

Based on the expenses incurred for the family home, he estimates that the monthly living expenses for himself and E. when he moves into his new home will be approximately $5,675. [ 17 ] Just prior to the trial, the parties resolved their family property issues and the care and control arrangements for E. The father cares for E. every second weekend for one overnight and sees her one evening per week. As well, E. is in his care during certain holiday times and other special occasions.

He hopes to expand his time with E. when he has purchased a house. [ 18 ] At the trial, the father acknowledged the mother’s entitlement to both compensatory and non-compensatory spousal support. He maintained that a time-limited step-down spousal support award was warranted because the support WRHA provides the mother will enable her to become self-sufficient by allowing her to return to work or further her training.

With respect to his application under s. 4 of the Guidelines (regarding payor annual income over $150,000), he argued that the child support payable under the Guidelines far exceeded what is required for E.’s limited needs, particularly given the assistance that she receives through the WRHA. The Trial Judge’s Decision [ 19 ] The trial judge preferred the evidence of the father over that of the mother where “the parties’ evidence directly contradicts each other” (at para. 15). She did not accept the mother’s evidence concerning her financial circumstances and the date when D.R. came to live in the family home.

She found that D.R. started living with the mother in the spring of 2011, rather than later in the year as the mother had testified, and that he had an obligation to pay “more than half of the living expenses for the [R] home” (at para. 20) because he and Z. live there and, from time to time, so does his daughter H. Child Support [ 20 ] The trial judge found that, “[b]etween the contributions by the WRHA and [the father]’s child support, [E.]’s financial needs are entirely met” (at para. 23).

More specifically, she found that the mother’s expenses for E. “would appear to be no more than $500 per month” for “some clothes, toys, haircuts and toiletries, some entertainment and a contribution towards shelter and transportation expenses” (at para. 23). Applying s. 4 of the Guidelines , she capped child support at the table amount for $150,000, finding that the table amount for that income was “appropriate” (at para. 25):

.... Given the unusual factor that the majority of [E.]’s expenses are covered by the government, it is clear that this is exactly the fact scenario where the capping of child support at table amount for $150,000 is appropriate. [ 21 ] She concluded that the child support paid in excess of E.’s actual needs resulted in “significant non-taxable income for [the mother]” (at para. 26), which was “taken into account ... as a factor in the calculation of retroactive spousal support” ( ibid. ). She noted that the mother also receives the entire child tax benefit.

Spousal Support [ 22 ] As for spousal support, the trial judge stated that she considered s. 15 of the Divorce Act , as well as the Spousal Support Advisory Guidelines (the SSAG), which she described “as a helpful starting point” (at para. 8).

She later held that the SSAG “are not designed to be used in the circumstances when the payee spouse has remarried or is living common law with someone new” (at para. 28), and that they do not reflect that the child support payments “result in a significant monthly income for [the mother].” [ 23 ] The trial judge held that the mother was entitled to support from the date of separation and that the father’s third-party payments from the date of separation should be taken into account in assessing the spousal support award.

She imputed income of $25,000 per year to the mother beginning April 1, 2012, being “approximately 20 months after the death of [K]. and 8 months after the birth of her child with [D.R.]” (at para. 42). [ 24 ] With respect to self-sufficiency and the imputation of income to the mother, the trial judge wrote (at paras. 31-33): The Divorce Act places the legal obligation on [the mother] to work towards self-sufficiency. At some point in accordance with this obligation, it was incumbent on [the mother] to begin the process of becoming self supporting.

The court does not expect that [the mother] should have begun seeking work immediately after the separation. .... …. She has made no effort to work towards achieving self sufficiency .... [The mother] gave extensive evidence about the daily needs of [E.] and the undeniable demands that [E.]’s care places on [the mother] and similarly [the father] when [E.] is in his care. [The mother] made clear that she was not prepared to leave [E.]’s care to “just anyone”. Right now [the mother] is [E.]’s primary caregiver and clearly wishes to remain so.

Still, the court finds that [the mother] should have income imputed to her. The court finds this even while acknowledging the unique care that [E.] requires on a full time basis.

To understand this finding, in light of [E.]’s needs it is necessary to look first at the abundance of resources available to [the mother] and to [E.]. [ 25 ] The trial judge then addressed the availability of resources for the mother and for E. and its impact on the mother’s “required goal of achieving self-sufficiency” (at paras. 34-38): The WRHA has been willing to place caregivers in the home to look after [E.] since her birth. [The mother] has the ability to use these caregivers to look after [E.] and to do housekeeping for her.

For whatever reason, it has been a parenting choice by [the mother] to not avail herself of the full resources of the WRHA and to stay at home and manage all of [E.]’s care herself. She is free to make this choice. However, she cannot then assert that her responsibilities towards [E.] make her unable to work. This is simply not accurate. Carol Rampaul and Trinity Millar [WRHA employees] gave extensive evidence of the resources that are available to [E.] and to the family through various programs of the provincial government but it is the Self Managed Care Program resources that are the most extensive.

The Self Managed Care Program is mandated to provide whatever resources [E.] requires to live safely in her home. Because [E.] is completely dependent she is entitled to their full range of resources, as she could not live safely at home without them. In short, [E.] is likely entitled to a minimum of 50 hours of paid caregiver hours a week if [the mother] was working at a full time job and not at home to look after her. Given the severe nature of [E.]’s disability, she may be entitled to far more hours than that. In some cases the Self Managed Care Program will pay for round the clock care.

One of the most interesting points about this program is the fact that the person managing the program, with the permission of the program, can actually hire themselves as a caregiver at $21 an hour. While immediate family is usually disallowed from being employed in this capacity, Ms. Rampaul said that exceptions were sometimes granted to this policy. So had [the mother] made the request for this

discretion to be exercised, she may have been able to have been employed in her own home providing care for [E.] at the rate of $21 per hour for the past few years!

If this was not possible for any reason, she had the advantage and still has the advantage of having full time caregivers for [E.] in her own home paid for by the government while she does anything she wants, including employment, retraining, respite or anything else that she chooses. … [The mother] has never explored the range of resources that are available to her for full time care for E., exhibiting no interest in how these resources could assist with the required goal of achieving self sufficiency . ….

There is also the possibility that [the father] could consider becoming [E.]’s manager under the Self Managed Care Program. [emphasis added] [ 26 ] As for possible areas of employment for the mother, the trial judge wrote (at para. 39): If employment of [the mother] through the Self Managed Care Program was not viewed as appropriate, there are other obvious areas of employment that [the mother] could have pursued by now.

For example, [the mother] is an experienced bank teller, she is “computer savvy” as the evidence shows and she could explore a career in the computer field, or she in her own words “has a thing for clothes” and she could work in a retail fashion store. She also has first-hand knowledge of the care of the disabled and could be employable in that field. [ 27 ] She concluded that, “[o]n these facts, it is impossible to find that [the mother] does not and has not had the ability to work. …. [S]he cannot assert that her responsibilities towards [E.] make her unable to work.

This is simply not accurate” (at paras. 40- 41). [ 28 ] The trial judge chose the step-down approach for spousal support, rather than the review approach argued by the mother, to avoid litigation for the parties in the future and because the mother “is obligated under the Divorce Act to become self- supporting and given her relatively young age she should be doing so within a reasonable timeframe” (at para. 45). [ 29 ] The trial judge also found that the parties had never agreed that the mothe r should stay at home indefinitely to care for the children (at para. 45) : ….

But, it must be noted that by the time [K.] was born, [the father] was encouraging [the mother] to take some training or courses with an eye to an eventual return to work. It was therefore not the case that the parties had a mutual agreement that [the mother] would remain at home forever.

In fact, [the father] felt that it would be best for [the mother] and provide her with a healthy balance if she were doing something outside the home. [ 30 ] After noting “the unique challenges surrounding [the mother]’s return to self-sufficiency” arising from K.’s death and “the almost daily demands of [E.]’s needs” (at para. 46), she concluded that, “[t]hese challenges must be balanced … with all the government resources at [the mother] ’s disposal at no cost to her that she has ignored” ( ibid ). [ 31 ] With respect to the quantum of spousal support, she wrote (at paras. 47-48): In assessing quantum the court must recognize that the disparity between the incomes of the two parties is great.

Clearly [the mother] required more spousal support at the commencement of the separation than she did when she began living with [D.R.]. Moreover, she was entitled to a greater amount of spousal support prior to April 1, 2012 as the court has found that income should be imputed to her from that point forward. Further, in assessing all amounts of appropriate spousal support, credit must be given to [the father] for the support payments that he has made towards [the mother]’s housing expenses since separation.

In assessing the sufficiency of retroactive support, the lack of the tax deductibility to [the father] must be calculated and the fact that [the mother] received the funds tax free. Of significance is the finding that [the mother] has been residing with [D.R.] since the spring of 2011, and that [D.R.] is employed and making relatively good money.

Moreover, [the mother]’s child support for [E.] from [the father] has far exceeded [E.]’s financial needs for the past three years. [The mother] will continue to receive child support that results in significant tax free income on an ongoing basis. [ 32 ] The trial judge calculated the retroactive spousal support as follows (at para. 49): ….

1) A lump sum retroactive payment of $20,800 based on a “top up” of a) $1,000 per month from June 2010 to April 1, 2011, (when [D.R.]’s obligation commenced); b) $600 per month until April 1, 2012 (when income becomes imputed); and c) $300 per month until April 1, 2013; for a total lump sum payment of $20,800. …. Costs [ 33 ] In her oral reasons concerning costs, the trial judge noted that the father had made “extremely generous” settlement offers pursuant to Queen’s Bench Rule 49 dating back to October 2011 and found that these offers exceeded the child support and spousal support awards.

As such, she concluded that the father was entitled to double party and party costs for the 12-day trial.

She characterized the proceeding as a Class 4 matter under Tariff A of the Queen’s Bench Rules, explaining that the combined orders of child and spousal support exceed $2,000 per month. [ 34 ] The trial judge alternatively found that the father was “entitled to an increase in costs having regard to the factors cited in the Queen’s Bench Rules for the discretionary application of costs under Rule [5]7.” She found that the mother’s conduct “unnecessarily lengthened the proceedings.” She also held that the mother failed to respond to steps in the proceedings in a timely manner.

With respect to her lack of disclosure, she found the mother to have been intentionally deceitful and that her actions “prolonged the trial ... by days.” She characterized the mother as “the author of her own misfortune” and found her conduct to be “egregious.” [ 35 ] She accepted the father’s bill of costs and ordered double costs in the amount of $86,023.36. Positions of the Parties The Mother [ 36 ] The mother asserts that the trial judge erred in principle in not setting child support based on the father’s actual income.

S he argues that the trial judge wrongly based child support on E.’s needs rather than the father’s income.

In addition, she says that the trial judge’s assessment of E.’s needs was flawed. [ 37 ] W ith respect to spousal support, she asserts that: 1. the trial judge erred when she set the father’s income at $171,000 based on a possibility of reduction of salary rather than the agreed-upon fact that his salary was $182,712 for 2012; 2. the trial judge made a palpable and overriding error with respect to the care available for E. and what the mother could earn under the care programs; 3. the trial judge erred in imputing income to the mother as it was unfair and there was no evidence to support the imputed income of $25,000; 4. the trial judge erred in principle by focussing on the mother’s “obligation” to be self-sufficient and failing to give any consideration to the compensatory component of spousal support and the fact that the mother had cared for E. during the marriage; and 5. the trial judge erred by factoring in “excess” child support as support for the benefit of the mother. [ 38 ] The mother relies on the SSAG, acknowledging that they are advisory only.

Using $182,712 for the father’s income and $0 for the mother’s income, she says that the SSAG range is between $4,322 and $5,256 per month and for a duration between seven and one-half to fifteen years. She asserts that this is compelling evidence that the spousal support award is unjust. Given the presence of D.R. in her life, she says that an order reflective of the lower end of the range is appropriate. She argues that the award should not be time-limited and suggests that a review in five years would be reasonable.

She seeks spousal support retroactive to the date of separation based on this increased amount less credit for payments made by the father to third parties with respect to the house and the van that has been modified for E. [ 39 ] The mother asserts that the trial judge erred in awarding costs that are unjust in that they exceed the total amount of spousal support ordered and are punitive in nature.

The Father [40] With respect to his cross appeal, the father argues that the trial judge erred when she ordered retroactive spousalsupport. He says that the mother is not entitled to retroactive support because of her stalling tactics, delay, misleading evidence and thefact that she did not pay occupation rent to live in the family home.

Further, he says that the payment creates a hardship for him, giventhat he will have to pay for renovations to accommodate E.’s needs when he buys a house. [41] In response to the mother’s appeal of the child support award, he says that the trial judge was entitled to apply s. 4 ofthe Guidelines, given that E.’s needs are dramatically less than other children and that many of them are met by government assistance.

He argues that these are exceptional circumstances and that the trial judge’s decision is entitled to deference. [42] With respect to spousal support, he says that the trial judge was aware that the mother was entitled to compensatoryspousal support, that she was entitled to make the findings of fact that she did and that she did not err in principle. He argues that themother’s imputed annual income of $25,000 covers her expenses with E. (which he says are $19,428 on her own evidence) and that shealso receives the child tax benefit as well as the benefit of tax deductions and credits related to E.’s disability.

He says that E.’s childsupport exceeds her current and contemplated expenses by $600 monthly. As for the SSAG, he says that they are not relevant given thatthe mother has a new partner. [43] He asserts that the trial judge’s costs award is entitled to deference, particularly given her finding that the mother’sconduct was egregious.

Standard of Review and the Issues [44] Orders with respect to child support and spousal support are discretionary decisions and are entitled to deference unless“the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.” SeeHickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 at para. 11. Also see Kynoch v.

Kynoch, 2013 MBCA 73 at para. 21,294 Man.R. (2d) 250. [45] The issue with respect to child support is whether the trial judge erred in principle when she capped the father’s incomeat $150,000 pursuant to s. 4 of the Guidelines. [46] With respect to spousal support, there are two overarching issues. First, what, if any, role do the SSAG play in thiscase? Second, did the trial judge err in failing to award compensatory spousal support? [47] To resolve these issues, I must address the following questions: 1. Did the trial judge misapprehend the evidence with respect to the availability of homecare for E.? 2.

Did the trial judge err in principle with respect to how the availability of homecare for E. should impact on the analysis forspousal support? 3. Did the trial judge err in fact or in principle when she found that there was no mutual agreement that the mother stay at homeforever? 4. Did the trial judge err in principle by focussing on the mother’s “obligation to become self-sufficient”? 5. Did the trial judge err in principle by imputing income to the mother? 6. Did the trial judge err in principle in considering the “excess” of child support for the purposes of determining the quantum ofspousal support? 7.

Did the trial judge err in awarding retroactive spousal support? Child Support The Law [48]

Section 1 of the Guidelines states that: Objectives 1 The objectives of these guidelines are (

a) to establish a fair standard of support for children that ensures that they benefit from the financial means of both parents; (

b) to reduce conflict and tension between parents by making the calculation of child support orders more objective;

(

c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of child support orders andencouraging settlement; and (

d) to ensure consistent treatment of parents and children who are in similar circumstances. [49] Sections 3(1) and 4 of the Guidelines provide as follows: Presumptive rule 3(1) Unless otherwise provided under these guidelines, the amount of a child support order for children under the age of majorityis (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relatesand the income of the parent against whom the order is sought; and (

b) the amount, if any, determined under

section 7. Incomes over $150,000 4 Where the income of the parent against whom a child support order is sought is over $150,000, the amount of a child supportorder is (

a) the amount determined under

section 3; or (

b) if the court considers that amount to be inappropriate, (

i) in respect of the first $150,000 of the parent’s income, the amount set out in the applicable table for the number of children underthe age of majority to whom the order relates, (ii) in respect of the balance of the parent’s income, the amount that the court considers appropriate, having regard to the condition,means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent to contribute tothe support of the children, and (iii) the amount, if any, determined under

section 7. [50] In Francis v. Baker, (SCC), [1999] 3 S.C.R. 250, the Supreme Court of Canada explained that thepurpose of the Guidelines is “to establish fair levels of support for children from both parents upon marriage breakdown, in a predictableand consistent manner” (at para. 39). The presumptive rule for ordering child support for a child under the age of majority is theapplicable table amount that reflects the number of children and the income of the payor parent (see s. 3(1) of the Guidelines). However,the court has some discretion under s. 4(

b) of the Guidelines in circumstances when a payor parent’s income exceeds $150,000 (oftenreferred to in the case law as “high income earners”). In that case, the amount of child support will be the table amount for the payor’sincome or, “if the court considers that amount to be “inappropriate,” a lesser amount determined pursuant to s. 4(

b) of the Guidelines. [51] In Francis, Bastarache J. explained that (at para. 41): …. The plain wording of s. 4(b)(

i) dictates that … children [of high income earners] can predictably and consistently expect to receive,at a minimum, the Table amount for the first $150,000 of their parents’ income. They can further expect that a fair additional amountwill be awarded for that portion of income which exceeds $150,000. Indeed, even this latter figure lends itself to a degree ofpredictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that theTable amount will be awarded. ….

[emphasis added] [52] The word “inappropriate” in s. 4(

b) means “unsuitable,” not “inadequate” (see Francis at paras. 36 and 40). [53] The table amount can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted thepresumption that the applicable table amount is appropriate. The test is whether the evidence in its entirety is sufficient to raise aconcern that the applicable table amount is inappropriate. There must be clear and compelling evidence for departing from theapplicable table amount in the Guidelines (see Francis at paras. 42-43).

A judge may find the table amount to be inappropriate only afterexamining all of the circumstances of a case, including the factors expressly listed in s. 4(b)(ii), i.e., “the condition, means, needs andother circumstances of the children who are entitled to support and the financial ability of each parent to contribute to the support of thechildren.” See also Francis at para. 44.

Analysis and Conclusion [54] The mother asserts that the trial judge erred in capping the father’s income at $150,000 for the purpose of determiningchild support for E. because child support is based on the payor’s income, not a needs analysis of the child. She also argues that the trialjudge failed to consider that the government assistance does not provide any funds towards living accommodation (other thanmodifications to the home for equipment) nor does it cover utility costs, any of her clothing, ordinary bedroom furnishings, gifts, toysand other costs to improve E.’s life such as television and music.

She also points to the commentary in the James G. McLeod & AlfredA. Mamo, Annual Review of Family Law 2013 (Toronto: Carswell, 4) at p. 298 that, “[o]verall, most courts have declined to reduce theTable amount of support on incomes less than $1,000,000 annually unless the custodial parent cannot rationalize the amount.” See forexample R. v. R. (2002), (ON CA), 58 O.R. (3d) 656, leave to appeal to S.C.C. denied, [2002] S.C.C.A. No. 231(QL) (income $4.1 million) and Ewing v.

Ewing, 2009 ABCA 227, 457 A.R. 238 (income in excess of $1 million). [55] A preliminary question is: “What is the father’s income?” The mother submits that the trial judge erred by setting thefather’s income at $171,000 (the amount argued by the father at the trial) based on the possibility of a reduction of his base salary, ratherthan on his salary of $182,712 for 2012. The trial judge did not make a specific finding of the father’s income in her decision. Giventhat the final order states that his 2012 income is $180,285.42, I think it fair to assume that the trial judge used this income amount in heranalysis.

Therefore, in my view, this is the income that should be used for the purpose of the appeals. [56] The corresponding table amount for the income of $180,285 is $1,441.11 a month. For $150,000, it is $1,217.00, adifference of $224.11. [57] The trial judge defined one of the issues for trial as “[t]he appropriate amount of child support for [E.] on a retroactiveand ongoing basis” (at para. 7). Her formulation of the issue in this manner resulted in her asking and answering the wrong question.

She began her analysis by looking at whether the table amount of child support for $150,000 was appropriate, particularly given thesupport provided by the WRHA. As I explained earlier, there is a presumption that the table amount of child support based on thepayor’s income is appropriate.

Thus, the first question is not whether the estimated expenses for the child are already covered or indeed,what level of child support would be “appropriate.” Rather, the question is whether the evidence, in its entirety, is sufficient to raise aconcern that the applicable table amount based on the payor’s entire income is “inappropriate.” There must be clear and compellingevidence for departing from the applicable table amount under the Guidelines and the party wishing to depart from the Guidelines hasthe burden of rebutting the presumption that the table amount is appropriate. [58] At trial, there was no issue about the father’s ability to pay the table amount under the Guidelines.

The fundamentalissue was whether the father had discharged his burden of rebutting the presumption by clear and compelling evidence that the tableamount of child support was “inappropriate.” The trial judge did not answer that question.

Rather, she found that the table amount for$150,000 was “appropriate.” While I accept that finding, the difficulty is that it does not mean that another table amount is“inappropriate,” or, in other words, unsuitable. [59] I take from Francis that there is a range within which various amounts of child support are appropriate, given that it isnot until an amount “exceed[s] the generous ambit within which reasonable disagreement is possible” that it becomes “inappropriate.” Thus, there is not one “appropriate” amount, but a range of appropriate amounts. [60] Because the trial judge misdirected herself in this way, this court is entitled to intervene.

My analysis that followsexplains why I have concluded that it is appropriate to do so. Applying the Guidelines [61] The trial judge was aware that the discretion under s. 4 is rarely used by the courts if the payor’s income does notgreatly exceed $150,000. The reasons for this are self-evident, given the purpose and the objectives of the Guidelines, one of which is“to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of child support orders andencouraging settlement” (s. 1(

c) of the Guidelines). As demonstrated in this case, applications under s. 4, by their very nature, demandmore court time and more resources of the parties. Detailed budget information about the child’s needs and expenses, or the lack of suchinformation, often becomes a focal point of the trial. [62] The Guidelines “provide a simplified way for parents - and courts - to quantify child support obligations” (D.B.S. v.S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 at para. 44, [2006] 2 S.C.R. 231).

They are Parliament’s“response to the need-based system, whereby costly - and unpredictable - litigation was often necessary to define what amount of supportwas due” (ibid). In D.B.S., Bastarache J. described the implications of the approach under the Guidelines as “profound” (at para. 45) andthat “when a payor parent does not increase the amount of his/her support when his/her income increases, it is the child who loses: thechild is the one who is entitled to a greater quantum of support in absolute terms” (ibid.).

He noted that there are three specific instanceswhere “the Guidelines do not impose a regime where the needs of the child are regarded as completely irrelevant” (at para. 46). These

exceptions are s. 4(

b) at issue here, s. 3(2)(b) (adult disabled child) and s. 9(c) (shared custody). In these limited circumstances, the court is allowed to consider “the condition, means, needs and other circumstances of the child.” [ 63 ] Thus, E.’s needs are “completely irrelevant” to the child support that she is entitled to in respect of the first $150,000 of the father’s income. With respect to that portion of the father’s income over $150,000, as explained by Bastarache J., her needs are not “completely irrelevant” (at para. 46).

Support for Disabled Children [ 64 ] In her analysis, the trial judge focussed on how E.’s disability affected her needs and the support provided by the WRHA. There are few reported cases involving child support for disabled children under the age of majority. Those that exist usually award increased s. 7 expenses due to the increased costs associated with the child’s disability. Nothing in the Guidelines permits a reduction from the table amount due to disability payments from third parties.

Therefore, such payments may only be considered in the context of s. 4 of the Guidelines for children under the age of majority and s. 3(2) (

b) for adult disabled children. Although the parties did not refer to s. 3(2) (

b) of the Guidelines in their submissions, I think it important to comment briefly on the distinction between the considerations for disabled children under the age of majority and adult disabled children. [ 65 ] Most of the cases that take into account government assistance relate to adult children who remain “a child of the marriage” by reason of their illness or disability. In general, “[s]tate-subsidized financial assistance for special needs adult children does not necessarily absolve parents of their child support obligation but disability payments may be taken into account under section 3(2)(

b) of the Federal Child Support Guidelines .” See Julien D. Payne & Marilyn A. Payne, Child Support Guidelines in Canada, 2012 (Toronto: Irwin Law Inc., 2012). [ 66 ] The wording of s. 3(2) of the Federal Child Support Guidelines has some similarity to s. 4 of the Guidelines . However, it does not have the equivalent to s. 4 (

b) which ensures child support in the table amount for the first $150,000 of income and a “fair additional amount” with respect to the balance, as stated in Francis at para. 41 . Section 3(2) reads as follows: Child the age of majority or over 3(2) Unless otherwise provided under these Guidelines , where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each [parent] to contribute to the support of the child. [ 67 ] The other fundamental difference between s. 4 and s. 3(2) is that society shares the responsibility of caring for disabled adults with their parents, which is not the case for disabled children under the age of majority (see Krangle (Guardian ad litem of) v. Brisco , 2002 SCC 9 , [2002] 1 S.C.R. 205 ). In Senos v.

Karcz , 2014 ONCA 459 , 120 O.R. (3d) 321 , Strathy J.A. (as he then was) held that the receipt of income support by an adult disabled child can make “the presumptive ‘Table’ approach … inappropriate” (at para. 2). In concluding that it did in that case, he noted that, “[t]he Table amount is predicated on the parents alone sharing responsibility for the financial support of their child” (at para. 67), which is to be distinguished from the parents’ shared responsibility with society for adult disabled children. See also Ross v. Ross , 2004 BCCA 131 , 195 B.C.A.C. 202 ; Lougheed v.

Lougheed , 2007 BCCA 396 , 245 B.C.A.C. 116 ; and Steidinger v. Morrell , 2013 MBQB 143 , 292 Man.R. (2d) 278 , which comment on this shared responsibility between society and the parents for adult disabled children. [ 68 ] Therefore, these important distinctions result in different analyses under s. 4 and s. 3(2) (

b) of the Guidelines , although both call for a consideration of the “condition, means, needs and other circumstances of the child.” Evidence of E.’s Needs and Expenses [ 69 ] The trial judge found that the circumstances here were unique, given E.’s needs and the government assistance available to her. Specifically she found that, “[a]t most [E.]’s expenses would appear to be no more than $500 per month” (at para. 23). [ 70 ] The evidence concerning E.’s expenses came primarily from the mother. Her evidence about expenses for herself, E. and the household generally, was unsatisfactory.

It is evident that no attention to detail was given to the preparation of her financial statement (which was filed with her pleadings). During cross-examination she was challenged about each expense and consistently agreed to reduced amounts. The evidence specifically about the expenses she incurred for E. was, to the say the least, minimal. It concerned a general reference to E.’s clothing, her haircuts and her entertainment and recreation. The mother agreed that $200 a month for clothes for E. was “probably not” a typical monthly cost.

She agreed that the father and members of both of their families buy E. gifts of clothing and that E. would not be wanting for clothes based on “three or $400 per year … as well as what she’s getting as gifts.” She was comfortable with a budget of $15 every month for E.’s hair care. When asked about entertainment and recreation for E., she testified, “I don’t know. I take her out a lot more now. Twenty-five, I could agree on, would be reasonable for her per month.”

[71] While the trial judge had reason to be critical of the mother’s evidence, it is important to remember the SupremeCourt’s caution in Francis that, “there are admittedly inherent problems with child expense budgets” (at para. 47). Bastarache J. wrote atsome length about this (at paras. 48-49): It is clear that “preparation of a budget is not an exact science”: Lucia v. Martin, [1998] B.C.J.

No. 1798 (QL) (S.C.), at para. 16, andthat the custodial parent is prone to overestimating or underestimating the amounts, because “[t]ypically, the custodial parent has littleexperience in the pricing of child-rearing in a separated household, or at all”: Levesque v. Levesque (1994); (AB CA),116 D.L.R. (4th) 314 (Alta. C.A.), at p. 322. Nevertheless, there is nothing objectionable per se about recognizing that trial judges havethe discretion to require custodial parents to produce child expense budgets in cases in which s. 4 of the Guidelines is invoked.

Alongwith other factors, these budgets speak to the reasonable needs of the children, a factor expressly included in s. 4(b)(ii). What isobjectionable, however, is that in the pre-Guidelines jurisprudence, custodial parents often had the burden of proving the reasonablenessof each budgeted expense on a balance of probabilities. As explained above, under the Guidelines, custodial parents are entitled to theTable amount unless that amount is shown to be inappropriate.

It follows that, while child expense budgets may be required under s. 4 inorder to allow for a proper assessment of the children’s needs, custodial parents need not justify each and every budgeted expense. Courts should be wary of discarding the figures included in their budgets too quickly. They should, however, make allowances for anyobvious duplication of expenses or other readily apparent anomalies. While child expense budgets constitute evidence on which custodial parents can be cross-examined, their inherent imprecision must bekept in mind.

Where one figure is overestimated, it is possible that another is underestimated. Furthermore, as the trial judge recognizedand counsel for the appellant conceded in oral argument, the unique economic situation of high income earners must be acknowledged. Child expenses which may well be reasonable for the wealthy may too quickly be deemed unreasonable by the courts. Of course, atsome point, estimated child expenses can become unreasonable.

In my opinion, a proper balance is struck by requiring paying parents todemonstrate that budgeted child expenses are so high as to “excee[d] the generous ambit within which reasonable disagreement ispossible”: Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 (C.A.), at p. 345. [emphasis added] [72] Further, the government assistance that the trial judge found to be a compelling consideration is, for the most part,assistance to address E.’s special medical needs and not her clothing, shelter, personal care and other living expenses.

As such, theyrepresent costs that are normally not contemplated in the table amount under the Guidelines. Rather, they would usually be considered inthe context of extraordinary expenses under s. 7 of the Guidelines. [73] While it is true that the mother does not incur food or school expenses for E., she has expenses for clothing (indoor andoutdoor for the various seasons), books and toys, outings, as well as other discretionary expenditures such as making E.’s surroundingspleasant and stimulating. As well, there is the reasonable contribution to the costs of E.’s shelter and transportation.

Furthermore, thetrial judge, wrongly in my view, concluded that the gifts of clothes and toys E. receives from family members from time to time had theeffect of reducing her needs. [74] The trial judge held that the excess of child support over E.’s needs of $500 was tantamount to income in the hands ofthe mother. More will be said about this in regard to spousal support. Suffice it to say here that, “child support undeniably involvessome form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent” (Francis at para. 41).

Quantum of Child Support [75] As I stated earlier, the initial question is not what amount of child support is appropriate, but whether the table amountbased on the payor’s total income is inappropriate. Bastarache J. stated in Francis that, “the closer the paying parent’s income is to the$150,000 threshold, the more likely it is that the Table amount will be awarded” (at para. 41). [76] In this case, the father’s income is not significantly above the threshold and the difference between the table amount ofsupport based on an income of $150,000 and the father’s actual income of $180,285 is only $194 per month.

It is hard to see how thatadditional amount is unsuitable to address E.’s “condition, means, needs and other circumstances.” The $194 difference easily fallswithin appropriate discretionary spending on behalf of E. [77] Therefore, I conclude that the father did not meet his burden to establish, by clear and compelling evidence, that adeviation from the table amount of the Guidelines is warranted because the table amount is inappropriate. E. is entitled to benefit fromchild support at the table amount. [78] I would allow the mother’s appeal with respect to child support.

I would set child support for E. based on the tableamount for an income of $180,285. Therefore, I would order child support in the monthly amount of $1,441.11 commencing May 1,2013. The resulting arrears of child support are to be addressed through the Maintenance Enforcement Program, as contemplated in thefinal order. Spousal Support [79] The mother is entitled to both compensatory and non-compensatory spousal support. The parties’ 16-year spousalrelationship is close to what the case law describes as a long-term relationship.

It is also a traditional one in that, since E.’s birth, themother stayed home to care for the children. By agreement, the mother has primary care and control of E.

[ 80 ] The trial judge’s analysis focussed primarily on the mother’s needs and her obligation to become self-sufficient. As I will explain, this resulted in an award that failed to adequately reflect the compensatory support to which the mother is entitled. As a result, the spousal support award cannot be sustained. The Role of the SSAG [ 81 ] I turn first to the role of the SSAG. T he trial judge concluded that the SSAG did not have any role to play in the circumstances here. I disagree. [ 82 ] The SSAG have been mentioned in five reported cases from this court. See Dyck v.

Dyck , 2008 MBCA 135 , 231 Man.R. (2d) 246 ; Scott v. Scott , 2011 MBCA 21 , 262 Man.R. (2d) 237 ; Thomson v. Thomson , 2011 MBCA 28 ; Graham v. Graham , 2013 MBCA 66 ; and Kynoch . [ 83 ] In Scott , Michel Monnin J.A. wrote (at para. 11): I deal lastly with the motions judge’s failure to refer to the SSAG .

Although it might be useful, in certain cases, to refer to the SSAG , one must not forget that they are not legislated guidelines, they are not binding on courts and, as of yet, they have not replaced the inherent discretion of a judge to determine what he or she considers an appropriate quantum to be awarded. [ 84 ] More recently, in Kynoch , Steel J.A. acknowledged the foregoing dicta in Scott and confirmed that, “[f]ailure to refer to the SSAG or failure to follow them is not an error in principle” (at para. 46).

In addition, she suggested that acceptance of the SSAG has been growing with both lawyers and judges. Importantly, she observed that, “the SSAG can act as a ‘litmus test’ to determine whether the quantum of spousal support is so low as to be unjust or clearly wrong” (at para. 48). [ 85 ] The SSAG are premised on the principle of income sharing. As described in s. 3.1 : 3.1 Income Sharing The core concept on which the Spousal Support Advisory Guidelines are built is income sharing . Under the Advisory Guidelines, budgets play a diminished role in determining spousal support outcomes.

Instead the Advisory Guidelines look primarily to the incomes of the parties and rely on a mathematical formula to determine the portion of spousal incomes to be shared. …. [ 86 ] They apply to both compensatory and need-based support orders. As further stated in s. 3.1 : …. The method of income sharing can be used, however, as a practical and efficient way of implementing many support objectives such as compensation for the economic advantages and disadvantages of the marriage or the recognition of need and economic dependency. .... The Guidelines do not commit to any particular theory of spousal support.

As will become clear in the discussion of the different formulas under these Advisory Guidelines, they aim to accommodate the multiple theories that now inform our law and, to generate results that are in broad conformity with existing patterns in the law. [emphasis added] [ 87 ] Their application to situations in which the recipient is in a new relationship is more nuanced because there is no specific formula for such situations.

Section 14.7 reads, in part, as follows: The Recipient’s Remarriage or Re-partnering The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much and when and why are less certain. There is little consensus in the decided cases. Remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Compensatory support is often treated differently from non-compensatory support. Much depends upon the standard of living in the recipient’s new household.

The length of the first marriage seems to make a difference, consistent with concepts of merger over time. The age of the recipient spouse also influences outcomes. . . . . . We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient’s remarriage

or re-partnering to individual case-by-case negotiation and decision making . [emphasis added] [ 88 ] Nonetheless, some cases indicate that re-partnering issues may be able to be addressed by some movement within the ranges calculated in accordance with the SSAG. See Fisher v. Fisher , 2008 ONCA 11 , 232 O.A.C. 213 , where the payor had re- partnered and the Court of Appeal used the SSAG as a “litmus test of reasonableness” (at para. 112). In that case, the Court of Appeal ordered spousal support at the low end of the applicable SSAG range for a marriage of 19 years without children. Also see Flieger v.

Adams , 2012 NBCA 39 , 387 N.B.R. (2d) 322 , in which Larlee J.A. acknowledged that, “the economic advantage the husband derives from sharing expenses with his current partner … can be addressed by movement within the ranges of the [SSAG]” (at para. 19). [ 89 ] I am of the view that even where there is a re-partnering, the SSAG can still be a useful tool as a litmus test for the reasonableness of a support award. [ 90 ] According to the SSAG calculations provided by the father at the trial, based on an income for him of $171,000 and $25,000 for the mother, the SSAG range of monthly support for the, “With Child Support Formula” began at $3,017, with a mid-point of $3,506 and a high end of $4,019 per month.

These calculations also suggested a duration of support for at least seven years “until the youngest child finishes high school.” [ 91 ] The time-limited step-down spousal support awarded by the trial judge is drastically less than the suggested SSAG range with respect to quantum and duration, even at the low end of the payment range. For the purpose of appellate review and the use of the SSAG as a litmus test of reasonableness, this disparity signals that the trial judge may have erred. My review of her rationale for the quantum and duration of spousal support leads me to conclude that she did err.

Availability of Homecare [ 92 ] The trial judge wrote that the mother “has the advantage of having full time caregivers for [E.] in her own home paid for by the government while she does anything she wants, including employment, retraining, respite or anything else that she chooses” (at para. 37).

In my view, this conclusion is not supported by the evidence. [ 93 ] The key evidence with respect to the availability of homecare came from two witnesses: Trinity Millar and Carol Rampaul. [ 94 ] Ms Millar is a case coordinator with the WRHA Children’s Homecare and Integrated Children’s Services Program and has been assisting the family for several years. She explained the difference between the WRHA and family-managed homecare programs. At the time of the trial, the family was receiving homecare support from the WRHA and was not using the family-managed program.

The focus of her testimony was on respite, which she defined as a break from caregiving responsibilities. [ 95 ] Ms Millar reviewed the family’s history with the program. She noted that, when E. was first released from hospital, the family received 40 hours of respite per week. This was double the typical amount and quite unusual. Over time, the amount of respite they received decreased. They then switched to the family-managed program, but their funding was placed on hold in January 2012 because they failed to provide documentation regarding how the funds that they had received since 2010 had been spent.

Under the family-managed program, they received 20 hours of respite per week. [ 96 ] The father testified that, at that time, he was not a proponent of the family switching to the family-managed program because he did not want the responsibility for the payroll and arranging for the staff. However, he supported the mother’s decision to make the change if she managed the program. The family-managed program did not go well under her management. [ 97 ] After the family-managed program was terminated, they switched back to the WRHA program. In July 2012, Ms Millar assessed E. as requiring non-nursing respite.

She authorized eight hours of respite per week. However, it turned out that E. did require a nurse to perform respite, as she required a form of deep suctioning that could not be performed by a non-nurse. Until a nurse could be placed in the home, the mother was required to stay in the home with the respite worker, so she could perform any necessary suctioning. At the time of trial, at the mother’s suggestion, they were exploring the option of a combination of nursing and non-nursing respite.

Further, until the appropriate equipment could be put into place in the home, none of the staff provided by the WRHA were authorized to lift E. [ 98 ] Ms Millar testified that many disabled children in Manitoba attend daycare or school, as E. did five or six years ago until her doctor concluded that it was medically unsafe for her to do so. She explained that respite is not intended to provide employment support (to enable the caregiving parent to go out to work).

She did confirm that she had been authorized by her supervisor to provide up to four, seven and three-quarter-hour shifts per week of respite in these circumstances. However, that was the maximum that would be permitted, and it was subject to her assessment of what was appropriate for the family. She explained that nursing respite care was not very flexible in terms of scheduling and was always in a state of flux. [ 99 ] Ms Rampaul is the team manager of the self and family-managed care program. She testified regarding the family- managed care system.

She stated that up to 50 hours of homecare is normally available per week, inclusive of respite. On occasion, however, additional hours may be approved. [ 100 ] Both witnesses testified that it might be possible for a family member to be hired as a caregiver under the family- managed program, but that it would be quite rare and would require special approval.

[101] The homecare available to the mother, while extensive, is dependent on E.’s changing needs and the discretionaryapproval of the WRHA and the availability of staff. It does not, as the trial judge wrote, provide the mother with the means to do“anything … that she chooses” (at para. 37). The trial judge’s conclusions with respect to the homecare options available to the mothermay best be described as overly optimistic, given the evidence of Ms Millar and Ms Rampaul.

For example, they do not reflect that thenurses and homecare aides could not currently lift E., that non-nurses could not provide her with the level of suctioning that she required,that nurses are often hard to find and that the mother is the sole caregiver for many hours each day except when E. is with her father. [102] The trial judge’s misapprehension of the homecare evidence was, in my view, significant, given that it was critical to herconclusion that the mother had the ability to return to work. As such, this misapprehension was a palpable and overriding error.

Agreement to Return to Work [103] The trial judge found that there was no mutual agreement that the mother stay at home forever. More importantly, in myview, is the fact that that there was no agreement or understanding that the mother would return to work, at least after E. was born. Thisis evident from the husband’s evidence during a sensitive moment in his cross-examination when he explained that he was encouragingthe mother to go to work or further her training to make it easier for her when she no longer needed to care for the children. [104] In any event, as explained in Heimsoth v.

Heimsoth, 2009 ABCA 129, 457 A.R. 22, the emphasis is on the actual realityfaced by the recipient spouse, based on what transpired during the relationship (at para. 25): …. Whether the parties had agreed that the appellant should return to work when the youngest child reached the age of ten years is notthe only, or even the major, consideration in determining the advantages or disadvantages to the spouses arising from the marriage or itsbreakdown.

The financial consequences or benefits of the entire period of cohabitation must be considered, not just some limited periodduring which the parties agreed that one party would not enter the workforce. …. Self-Sufficiency and Imputing Income [105]

Section 15.2(6) of the Divorce Act sets out the objectives of spousal support: Objectives of spousal support order 15.2(6) An order … for the support of a spouse should (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [emphasis added] [106] All four objectives must be considered in determining spousal support. See Moge v. Moge, (SCC),[1992] 3 S.C.R. 813. As Binnie J. noted in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, “[f]ailure to achieve self-sufficiency isnot a breach of ‘a duty’ and is simply one factor amongst others to be taken into account” (at para. 27). [107] The trial judge initially observed that, “[t]he Divorce Act places the legal obligation on [the mother] to work towardsself-sufficiency.

At some point in accordance with this obligation, it was incumbent on [the mother] to begin the process of becomingself supporting” (at para. 31). Later in her reasons she referred to the “required goal of achieving self sufficiency” (at para. 38), andstated that the mother “is obligated under the Divorce Act to become self-supporting and given her relatively young age she should bedoing so within a reasonable timeframe” (at para. 45).

This strict view of the law was critical to her analysis and her decision and, in myview, resulted in an overemphasis of the goal of achieving self-sufficiency. [108] Several recent appellate cases underscore that the realistic attainability of self-sufficiency must be addressed in thecontext of the facts of the case and the standard of living enjoyed during the marriage. These cases demonstrate that appellate

intervention is appropriate when a trial judge overemphasizes the goal of achieving self-sufficiency, particularly in the context of longer-term relationships that have involved one party (usually the wife) staying home to raise the children and look after the household. SeeHeimsoth; McEachern v. McEachern, 2006 BCCA 508, 232 B.C.A.C. 185; Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133;Shen v. Tong, 2013 BCCA 519, 347 B.C.A.C. 233; Lightle v. Kotar, 2014 BCCA 69, 352 B.C.A.C. 39; and Reisman v. Reisman, 2014ONCA 109, 315 O.A.C. 333. [109] In Marquez, D. Smith J.A. wrote (at para. 45): ….

While the appellant has a responsibility to do what she can to become self-sufficient, that objective must be balanced against a levelof entitlement that takes into consideration the length of the parties’ relationship (21 years), the functions performed by each of them inthe marriage, and the marital standard of living. [110] In a similar vein, Laskin J.A., in Reisman, wrote (at para. 28): …. … [P]romoting self-sufficiency cannot be the only consideration that determines the duration of a support order.

The court also hasto take into account the recipient spouse’s age, skills, education, opportunities for retraining and, importantly, her realistic prospects ofbeing able to find a job that enables her to become self-sufficient: see Tedham v. Tedham, 2005 BCCA 502, 261 D.L.R. (4th) 332, atpara. 33. Also, as this court noted in Allaire v. Allaire (2003), (ON CA), 170 O.A.C. 72, at para. 21, “self-sufficiency is not a free-standing concept.

It must be seen in the context of the standard of living previously enjoyed by the parties.”: see, also, Fisher, at para. 73. [111] The issue of imputing income is tied to the issue of self-sufficiency as it is one of the court’s primary tools to promote theself-sufficiency of a spousal support recipient. See the SSAG, s. 13.7. [112] As explained earlier, the trial judge misapprehended the evidence about the homecare that is available to the mother. Since E.’s birth, the mother has stayed home to care for her.

The trial judge expected the mother to return to work full-time,notwithstanding that E.’s needs have not changed and will not change. These circumstances demand that the objective of promotingeconomic self-sufficiency within a reasonable period of time be considered in that context. It is not realistic to expect that the motherwill be able to go out to work and become self-sufficient in five years, given the daily demands that E.’s needs place on her, nor is it inkeeping with the child care approach during the marriage. Simply, self-sufficiency is not a realistic option at this time.

For this reason,the imputation of income in the amount of $25,000 is not reasonable and must be set aside. Impact of “Excess” Child Support [113] The trial judge determined that E.’s monthly needs did not exceed $500 and therefore $700 of the monthly child supportshould be considered as non-taxable income to the mother. In other words, she considered this “excess” to be a wealth transfer in favourof the mother, or de facto spousal support. [114] In Francis, Bastarache J. addressed the issue of wealth transfers or de facto spousal support in the context of s. 4 of theGuidelines (at para. 41): ….

In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirectbenefit to the custodial parent. However, even though the Guidelines have their own stated objectives, they have not displaced theDivorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is theobjective of child support payments. ….

In some cases, courts may conclude that the applicable Guideline figure is so in excess of thechildren’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support. I whollyagree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealthtransfers or spousal support. But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is afactor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines.

Need, therefore, is but one of the factors courts mustconsider in assessing whether Table amounts are inappropriate under s. 4. …. [115] In Tauber v. Tauber (2000), (ON CA), 133 O.A.C. 66, the Ontario Court of Appeal acknowledged (inpara. 47) that determinations of child and spousal support entitlements are linked, particularly in cases involving s. 4 of the Guidelines. In that case, the trial judge did not have the benefit of the Supreme Court’s ruling in Francis and so felt bound to order the table amountof child support even though it was excessive in the circumstances.

As a result, the trial judge refused to consider ordering any spousalsupport. In light of the Supreme Court of Canada’s ruling in Francis, the Ontario Court of Appeal sent both issues back for rehearing. After the retrial, the judge ordered the table amount of child support as well as a $500,000 lump sum spousal support payment. The trialjudge found that the table amount of child support did not rise to the level of de facto spousal support. This decision was upheld onappeal. [116] In Riad v.

Riad, 2002 ABCA 254, 317 A.R. 201, the trial judge justified a reduction in spousal support in part on thebasis that the quantum of child support for two children ($3,742) was sufficient to meet the family’s needs. After reviewing the pertinent

case law, the Court of Appeal ordered monthly spousal support in the amount of $3,000. It acknowledged that, “in circumstances where the quantum of child support so far exceeds the reasonable needs of the children that it amounts to a wealth transfer or de facto spousal support, spousal support may be reduced or denied” (at para. 28). However, based on the evidence in that case, the court concluded (at para. 31): …. There is no evidence before us to suggest that the table amount of child support awarded so far exceeds the children’s reasonable needs as to amount to a wealth transfer or de facto spousal support.

It follows that these are not relevant factors in assessing spousal support in this case. The trial judge erred in regarding the child support payable as a means of support for the appellant, and reducing spousal support on that basis. [ 117 ] In light of the foregoing commentary and given my conclusion that E. is entitled to benefit from the table amount under the Guidelines , it follows that the trial judge erred in treating any part of the child support as de facto spousal support.

Retroactivity [ 118 ] The father appeals the award of retroactive spousal support to the mother arguing that the mother is not entitled to such support. I would dismiss his cross appeal. [ 119 ] The leading case on retroactive spousal support is Kerr v. Baranow , 2011 SCC 10 , [2011] 1 S.C.R. 269 . In that case, the Supreme Court of Canada confirmed that its previous ruling on retroactive child support orders in D.B.S. also generally applied to spousal support claims.

The court stated that the considerations with respect to retroactive spousal support orders were (at para. 207): …. … [T]he needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. …. [ 120 ] The effective date of retroactivity is a matter of judicial discretion. The date of the commencement of legal proceedings is the usual starting point, unless there is a reason not to make the order effective from that date ( Kerr at para. 211 ). In Dickson v.

Dickson , 2011 MBCA 26 , 262 Man.R. (2d) 247 , this court confirmed that spousal support could be ordered from the date of separation and was not necessarily limited to the date that the first court application was filed. [ 121 ] The father argues that the mother’s delay and her failure to provide financial disclosure disentitled the mother to retroactive spousal support. The trial judge, who was well aware of these arguments, concluded otherwise. She expressly stated that she considered Kerr and Dickson and found that the mother required support from the date of separation.

The father has not demonstrated that the trial judge erred in principle or misapprehended the evidence in concluding that the mother was entitled to spousal support from the date of separation. [ 122 ] Furthermore, the evidence does not support a finding of delay. The record demonstrates that the mother first advanced a spousal support claim around November 2010, a few months post-separation. She expressly sought retroactive spousal support in her answer filed in December 2011. She did not seek an interim order for spousal support.

The matter proceeded to trial in March 2013. [ 123 ] In the father’s factum, his counsel asserts that: During cross-examination, the Respondent admitted that her intention was to stay in the home, and to build up a claim for retroactive support, and use it as a basis to keep the family home or acquire another. A claim for retroactive support is not a savings plan. [ 124 ] In support of this assertion, the father relies on the following excerpt from the mother’s cross-examination for this assertion: Q. Okay.

And you’ll agree with me that, at that point in time, you had no intention of moving out of the family house. Your plan was to try and stay in the existing house? A. At that time of signing that [December 2011 financial statement], I had no intentions of moving until this was finalized. Q. And your hope was that someday you might be entitled to some retroactive support?

A. Correct. Q. And that you’d be entitled to buy, you’d be able to buy the house? A. Not specifically that house. A house, yes. Q. And part of your interest was to try and build up this retroactive claim, or to have [the father] pay you something on a retroactive basis? A. Sorry. Retroactive back pay you’re talking? Q. Yes. [ 125 ] This evidence does not warrant the characterization given it by the father.

The mother simply agreed that she hoped to receive retroactive support and, as a separate matter, she agreed that she would like to be in a position to buy a house at some point in the future. [ 126 ] The quantum of retroactive spousal support will be addressed in the context of my analysis that follows with respect to the appropriate quantum and duration of spousal support. Quantum and Duration of Spousal Support [ 127 ] Given the errors of the trial judge, the quantum and duration of spousal support awarded by the trial judge cannot be sustained.

Therefore, this court must determine the appropriate quantum and duration. [ 128 ] The SSAG contain helpful commentary concerning circumstances involving children with special needs. They state in part (at s. 9.3 , 12.10): ….

A child with special needs will usually demand more time and resources from the care-giving parent, thus reducing that parent’s ability to earn in the paid labour market and pushing spousal support towards the upper end. … That lower base of income will generate a higher range for amount, of course, but here we speak of location within the range as well. 12.10 Special Needs of Child A child with special needs can raise issues of both amount and duration in spousal support law, issues that may require an exception. First, duration .

A child with special needs can obviously affect the ability of the primary parent to obtain employment, whether part- time or full-time. This may require that the duration of support be extended beyond the length of the marriage or beyond the last child finishing high school, the two possible maximum time limits under the with child support formula. Second, amount .

Again, a special needs child will often mean that the primary parent cannot work as much, perhaps not even part-time, and thus the amount of spousal support will be increased because of the recipient’s lower income …. [ 129 ] The Divorce Act promotes: “The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution” ( see Moge at p. 864).

This calls for a consideration of the four objectives under s. 15.2(6) of the Divorce Act in the context of the specific circumstances of the parties. [ 130 ] During the marriage, the mother remained home to care for the children. By doing so, she enabled the father to pursue, and advance in, his profession. As stated by the trial judge, “[i]t is clear that [the mother] remaining at home helped [the father] to further his career” (at para. 45). This was a benefit to both of them during their marriage.

[131] On the other hand, the mother has been economically disadvantaged by her role as primary caregiver to the childrenduring the marriage and continues to be. That is not to say that the father has not been impacted by his responsibilities to the children. Inhis evidence, he spoke of promotions that he rejected because they required a move from Winnipeg, which was not feasible, given thechildren’s medical needs.

Nonetheless, the mother’s disadvantages are significantly more and entitle her to compensatory spousalsupport, as acknowledged by the father. [132] While all four objectives under s. 15.2(6) must be considered, I am of the view that the objective to “recognize anyeconomic advantages or disadvantages to the spouses arising from the marriage or its breakdown” is the most critical objective fordetermining the economic consequences of the parties’ marriage and its breakdown in this case. Importantly, this objective iscompensatory in nature and not needs-based.

With respect to the objective regarding self-sufficiency, I have already explained that it isnot realistic to expect the mother to become self-sufficient at this time. The remaining two objectives (s. 15(6)(

c) and (d)) involve needs-based consideration. [133] To determine the quantum of spousal support, I first must address the question of the parties’ respective incomes. [134] The father’s income was higher at the date of separation than at the time of the trial. He says that his income increasedsubstantially only near the end of the marriage, noting that he only reached an income of $100,000 in 2007.

He sought to have hisincome for spousal support purposes reflect more of an average income that was earned during the marriage and not any increase afterthe separation. [135] The treatment of increases in post-separation income for spousal support is not an easy issue. Compensatory support canallow a spouse to share in post-separation increases in income where a claimant spouse has supported the other spouse to his or herbenefit. See Bracklow v. Bracklow (1999), (BC SC), 181 D.L.R. (4th) 522. The case law demonstrates that acalculation based on the parties’ incomes as at the date of separation is common.

In Fisher, the Ontario Court of Appeal used an averageof several pre-separation years’ income to determine the payor’s income. However, that is the only appellate authority of which I amaware that suggests an average of several pre-separation years’ income would be appropriate. [136] The final order states that the father’s income for 2012 was $180,285. I used that income for determining child support.

Although less than his income for the year of separation, I am of the view that it is fair to use that same income figure for the purpose ofdetermining spousal support. [137] As for the mother, my analysis is premised on no income being attributed to her. She is not working. I have alreadyexplained why income should not be imputed to her and why no part of the child support is de facto income to her. Her income for 2011is limited to her receipt of the universal child care benefit, presumably for Z., because the benefit is for children under six years of age.

Inote that the SSAG calculations assume that the parent who has primary care and control of a child receives the universal child carebenefit and that s. 6.5 of the SSAG states that “[c]hild-related benefits received by a spouse

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