Boone v. Luedee, 2018 NSCA 55

Nova Scotia Court of Appeal Citation: Boone v. Luedee , 2018 NSCA 55 Date: 20180622 Docket: CA 469764 Registry: Halifax Between: Blair Albert Boone Appellant v. Helen Marie Luedee Respondent Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: May 16, 2018, in Halifax, Nova Scotia Subject: Parenting Arrangements. Determination of Income. Child Support. Spousal Support. Costs.

Summary: After a 10-day hearing, a trial judge resolved various corollary issues including custody and access, child support, both prospective and retroactive, and spousal support. He determined that it was in the best interests of the parties’ two children that the status quo continue, ordering joint custody with primary care to the mother. For the purposes of child support, the trial judge determined the father’s income, including investment income. The trial judge also made a retroactive order for child support, payable on a periodic basis.

Further, the trial judge rejected the father’s claim of undue hardship and his request for spousal support. In a later order, the trial judge assessed costs against the father. On appeal the father alleged the trial judge made numerous errors of fact and law in reaching the above conclusions. Issues: Did the trial judge err in fact or in law in his determinations relating to custody, child support, spousal support or costs? Result: Appeal dismissed. The trial judge applied the correct legal principles. Further the factual findings made by the trial judge were available to him on the record.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages. Nova Scotia Court of Appeal Citation: Boone v. Luedee , 2018 NSCA 55 Date: 20180622 Docket: CA 469764 Registry: Halifax Between: Blair Albert Boone Appellant v. Helen Marie Luedee Respondent

Judges: Fichaud, Farrar and Bourgeois, JJ.A. Appeal Heard: May 16, 2018, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Bourgeois, J.A.; Fichaud and Farrar, JJ.A. concurring Counsel: Darlene MacRury, for the appellant Theresa M. O’Leary, for the respondent Reasons for judgment: [ 1 ] After a 10 day hearing, Justice Robert M. Gregan issued a Corollary Relief Order resolving various issues including child custody and access; child support both prospective and retroactive, and spousal support.

The trial judge’s oral decision was delivered and later transcribed for the purposes of this appeal. It does not appear to have been reported. In a subsequent order, he set costs. [ 2 ] The appellant, Blair Albert Boone, challenges the trial judge’s conclusions on the above issues, alleging numerous errors of fact and law. The respondent, Helen Marie Luedee, says the trial judge made no error justifying intervention by this Court. For the reasons that follow, I would dismiss the appeal.

Background [ 3 ] To put the arguments on appeal in context, a review of the factual and procedural background will be of assistance. [ 4 ] The parties were married on October 14, 2004. Both had been involved in prior relationships and had children. They entered into a marriage contract prior to the marriage. [ 5 ] The parties have two children, Danielle born in September, 2004, and Michael born in March, 2006. Other than two 12 month maternity leaves, Ms. Luedee worked during the marriage. She is a social worker by training. Although also employed prior to the marriage, Mr.

Boone became disabled, and ceased work in 2006. Eventually he was approved for disability benefits by the Canadian Pension Disability plan and his private insurer. He was still in receipt of these benefits at trial. [ 6 ] The parties separated in August, 2012. Ms. Luedee left the matrimonial home in River Ryan, and moved to New Waterford. Following the separation, the children resided with their mother, spending considerable time with their father. [ 7 ] In November, 2012, Mr. Boone filed an application under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 seeking custody of the children.

That application was not pursued. In May 2014, Ms. Luedee filed a motion seeking permission to move the children’s primary residence from New Waterford to Sydney River. That contested motion was heard and granted by Justice Elizabeth Jollimore. [ 8 ] In her written reasons ( 2014 NSSC 227 ) Justice Jollimore noted that although Mr. Boone had provided daily care to the children during the marriage, that had changed following the separation. Describing the status quo at the time of the motion hearing, she concluded: [36] . . .I find the children’s status quo is not the circumstance that existed at separation.

The Boones separated twenty-two months ago. Since August 2012, the status quo for the children has been living with their mother and spending time with their father on alternate weekends and every Wednesday overnight until Thursday. [37] If twenty-two months had not passed since separation, I would not make this finding. However, the children have lived with this arrangement for a considerable period. This is their status quo, not their life almost two years ago. Remaining with their mother and continuing the current visiting

schedule is least disruptive to the children. [ 9 ] In her decision, Justice Jollimore noted that Ms. Luedee’s motion had also sought an order for interim child support, which had been severed in order for the mobility application to be heard quickly. She further wrote that since separation, Mr. Boone had not made regular child support payments. [ 10 ] Following Justice Jollimore’s decision, Ms. Luedee and the children relocated to Sydney River. [ 11 ] On July 8, 2015, Ms. Luedee filed a Petition for Divorce.

In addition to an order addressing custody, she sought child support, alleging: The Respondent does NOT pay child support despite repeated requests from the Petitioner since separation. [ 12 ] Ms. Luedee further asserted that she had had primary care of the children since separation. [ 13 ] Mr. Boone filed an Answer on October 8, 2015, wherein he alleged he “has had ‘shared parenting’ of the children of the marriage until February, 2015”. In addition to other claims, Mr. Boone sought custody, child support and spousal support.

[ 14 ] As noted earlier, the matter was heard over ten days, split between September, 2016 and May, 2017. The trial judge delivered his oral reasons on July 17, 2017, with a Corollary Relief Order following thereafter. In a separate order issued October 11, 2017, the trial judge directed Mr. Boone pay costs of $5000.00 to Ms. Luedee.

Decision under Appeal [ 15 ] In his decision the trial judge identified the issues for determination as: 1) divorce; 2) custody/parenting time; 3) child support, both prospective and retroactive; 4) the validity of the marriage contract; 5) division of matrimonial property; and 6) Mr. Boone’s entitlement to spousal support. [ 16 ] The granting of the divorce is not challenged on appeal, nor are the trial judge’s conclusions regarding the marriage contract and matrimonial property. I will review only those aspects of the decision with which Mr.

Boone takes issue. [ 17 ] With respect to custody, the trial judge found that both parents had “much to offer” the children. Determining it was in the best interest of the children that the status quo remain unchanged, he wrote: [37] What is the status quo? I find after carefully reviewing the

schedule as compiled by Mr. Boone in Exhibit 6 and 7, as well as the evidence of Ms. Luedee and Mr. Boone, that the arrangement to-date has been one of joint custody and does not meet the criteria of a shared custody arrangement. While the children have spent considerable time with Mr. Boone, and continue to do so, when calculating the number of days the children were with Mr. Boone and subtracting blocks of holidays and summer parenting time, which was not included in Mr. Boone’s calculations, the total amount of time the children spent with Mr.

Boone was less than 40%. [ 18 ] The trial judge then directed on a “go-forward” basis: • The parties would have joint custody of the children with primary care to Ms. Luedee; • Mr. Boone would have parenting time every second weekend from Friday afterschool until Monday morning; • Mr.

Boone would also have an additional overnight with the children during the week, from afterschool until the following morning; • Each parent was entitled to three weeks of uninterrupted parenting time in the summer; and • Further specific parenting time for holidays and special occasions. [ 19 ] Regarding prospective child support, the trial judge first determined Mr. Boone’s income to be $51,193.54. This included his disability payments, dividend income and investment income.

Applying the Federal Child Support Guidelines , this resulted in a monthly payment of $717.00. [ 20 ] With respect to retroactive child support, the trial judge found that Mr. Boone had been “on notice from 2012 that child support was a live issue” and he had chosen not to pay support until 2015. At that time Mr. Boone started paying $200.00 per month. [ 21 ] The trial judge, based on Mr. Boone’s past income and deducting the support paid, found that he ought to have paid child support in the amount of $30,974.00. The trial judge rejected Mr.

Boone’s argument that other financial contributions he had made to the children in terms of gifts and other purchases should off-set any retroactive award. The trial judge also rejected Mr. Boone’s claim of undue hardship and ordered the arrears be paid over a period of 8 years by way of monthly payments of $283.00. [ 22 ] Finally, the trial judge considered Mr. Boone’s claim for spousal support. It was rejected, the trial judge finding Mr. Boone had not established an entitlement to support on either a contractual, compensatory or non-compensatory basis. Issues [ 23 ] On October 27, 2017, Mr.

Boone filed a Notice of Appeal setting out the following grounds: 1. The Trial Justice erred in fact and law in failing to order “shared parenting”; 2. The Trial Justice erred in fact and law in ordering child support arrears; 3. The Trial Justice erred in fact and law in calculating the “income” of Blair Albert Boone for purposes of establishing ongoing child support payments pursuant to the Federal Child Support Guidelines ; 4. The Trial Justice erred in fact and law in dismissing Blair Albert Boone’s application for “undue hardship”; 5.

The Trial Justice erred in fact and law in dismissing Blair Albert Boone’s application for spousal support, and 6. The Trial Justice erred in fact and law in awarding costs against Blair Albert Boone. [ 24 ] The above grounds were repeated in the submissions before this Court. Standard of Review [ 25 ] The standard of review is not in issue. Recently in D.A.M. v. C.J.B. , 2017 NSCA 91 , this Court said: [28] This is an appeal.

As C.J.B. argues, we do not overturn a custody or support order unless the judge has made an error in principle, has significantly misapprehended the evidence or unless the decision is clearly wrong, ( Murray v. MacKay , 2006 NSCA 84 , ¶ 22 , citing

Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, ¶ 10, 11 and 12; Van de Perre v. Edwards, 2001 SCC 60 ,[2001] 2 S.C.R. 1014, ¶ 12; and Willick v. Willick, (SCC), [1994] 3 S.C.R. 670, ¶ 27). [29] In Van de Perre, Justice Bastarache noted the narrow grounds of appellant intervention: [15] . . .

If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did notproperly weigh all of the factors. . . . an omission is only a material error if it gives rise to the reasoned belief that the trial judge musthave forgotten, ignored or misconceived the evidence in a way that affected his conclusion. . . . [26] Similar deference is shown to costs decisions. As a discretionary determination, this Court will not intervene unless wrongprinciples of law have been applied, or a decision is so clearly wrong that it would amount to a manifest injustice.

Analysis Did the trial judge err in failing to order “shared parenting”? [27] Mr. Boone says the trial judge erred in both fact and law in declining to order shared parenting. The alleged errors include: • Concluding that the status quo had been primary care with Ms. Luedee, as opposed to a shared parenting arrangement; • Operating under the mistaken belief that Mr.

Boone was seeking to have the children with him on a week on/week offbasis; • Inappropriately considering the potential for parental alienation should shared parenting be ordered, and • Failing to consider and weigh relevant evidence supportive of a shared custody arrangement. [28] With respect, I see no reason to interfere with the trial judge’s determination. His conclusion that the children had been in theirfather’s care less than 40% of the time was a factual determination available on the record. As such, his rejection of Mr.

Boone’sassertion that the children’s status quo had been a shared parenting arrangement was reasonable. [29] Mr. Boone says that the trial judge was fundamentally mistaken about the parenting arrangement he was seeking. Theevidence shows that Mr. Boone had the children every second weekend and overnight one night each week. He was seeking to add anadditional night every week, specifically that he would have the children Tuesday and Thursday evenings overnight. Mr. Boone saysthat the trial judge’s reasons disclose a serious misapprehension when he said: [29] Mr.

Boone says the current arrangements for custody were not agreed upon by him but rather dictated by Ms. Luedee. Mr. Boonesays despite the terms having been dictated, he has spent with the children, to-date, time that has exceed 40% of parenting time. Accordingly, he says that he should not be obliged to pay retroactive child support. Mr. Boone also says that there should be a sharedcustody arrangement with the children spending a week about with each parent. Mr.

Boone says that because he is not employedhe has the ability to care for the children at least 50% of the time. (Emphasis added) [30] Looked at in isolation, it does appear that the trial judge misstated the

schedule being proposed by Mr. Boone. However, laterhe says: [39] I put the above order in place because one, from the evidence the children are doing well and they are well adjusted and havefriends, school and activities close to their home in Sydney River. Secondly, the

schedule which the children currently have would bedisrupted if required to travel back and forth between River Ryan and Sydney River, either on a week about basis or on an alternatingdaily basis. Such travel would be disruptive to schedules as well as not being in the best interest of the children given that it wouldrequire them to spend equal times in two different communities. (Emphasis added) [31] Mr. Boone’s request to add an additional overnight during the week would amount to the children alternating from home tohome on a daily basis during the week. The trial judge was clearly mindful of this.

Having considered the evidence before him, the trialjudge concluded that was not in the best interests of the children. I am not satisfied that the trial judge’s conclusion was based on amisapprehension of what was being sought by Mr. Boone. [32] Mr. Boone also says the trial judge inappropriately considered the likelihood of parental alienation when he said: [41] The Court agrees with concerns of Ms. Luedee that, given the animosity between Jessica and Ms. Luedee, there is a potential that ifit was a shared custody arrangement it could result in some parental alienation with respect to Ms. Luedee . . . [33] Mr.

Boone says that at no point in her evidence did Ms. Luedee raise any concerns about parental alienation at the hands of hisolder daughter. He says this factor ought not to have been considered by the trial judge, nor does the evidence at trial support theexistence of concerning conduct on Jessica’s part. [34] Mr. Boone is correct that Ms. Luedee did not testify that she was concerned about parental alienation. However, after havingheard Jessica give evidence (Ms.

Luedee had testified several months earlier), concerns about the animosity she showed towards Ms.Luedee were raised by counsel in post-trial submissions. It was suggested that the level of animosity shown by Jessica, who resides withher father, was such that it gave rise to concern. [35] I do not agree with Mr. Boone’s criticism for two reasons. Firstly, it is clear from the trial judge’s reasons that the potential forparental alienation was only one of several factors he considered relevant in his parenting determination.

Even if he was wrong in hisassessment, he articulated ample other reasons to support his conclusion. Secondly, the trial judge had the opportunity to hear Jessicagive her evidence and assess her demeanour. He was well placed to identify “animosity” or the lack thereof, and consider that in thecontext of all the other evidence relevant to the custodial arrangements being sought.

[ 36 ] In my view, the trial judge considered the proper legal principles. He noted the principle of maximum contact and the overarching principle of what was in the best interests of these children as contained in the Divorce Act . He was aware of the factors to be considered in assessing which parenting arrangement would best serve their interests. The trial judge’s reasons disclose that he was keenly aware of the particular factors relevant to these parties, and more importantly, their children. Mr.

Boone has not demonstrated an error of law or fact that would justify intervention by this Court. [ 37 ] I would dismiss this ground of appeal. Did the trial judge err in ordering child support arrears? [ 38 ] The trial judge ordered Mr. Boone to pay retroactive support, calculated from September 2012 to June 2017. Mr.

Boone asks this Court to set aside the retroactive award, and find that no arrears are owing on the following basis: • The trial judge should not have found he was “on notice” since 2012 as the parties had entered an agreement which waived ongoing child support in exchange for other financial benefit given to Ms. Luedee; • The trial judge failed to recognize and deduct other financial contributions Mr.

Boone had made to the children during the relevant period; • The trial judge failed to properly apply the legal principles relating to the determination of retroactive child support. [ 39 ] The first two points can be dealt with quickly. The evidence shows there was a purported agreement reached shortly after separation contemplating that, in exchange for a $30,000 payment from Mr. Boone, Ms. Luedee would not receive periodic child support. In argument before this Court, Mr. Boone’s counsel acknowledged that this payment was never made. As such, it is not reasonable to suggest that Mr.

Boone was operating under a belief that child support had been waived. I am satisfied the evidence adduced at trial supports the factual conclusion that Mr. Boone was aware from 2012 that child support was being sought from him. [ 40 ] At trial Mr. Boone advanced considerable effort in establishing that he had financially contributed to the children in lieu of periodic support. The trial judge found that the unilateral purchase of gifts or other items for the children did not replace the obligation for payment to Ms. Luedee. Mr.

Boone has not presented any authority which would permit a payor to unilaterally deduct such expenditures from what would otherwise be payable as child support. As such, I am not prepared to interfere with the trial judge’s conclusion that gifts and voluntary expenditures for the children were not “credit” against child support otherwise found to be owing. [ 41 ] With respect to the legal principles governing retroactive awards, the trial judge said he was required to undertake a “ DBS analysis”, referring to the Supreme Court of Canada’s decision in D.B.S. v.

S.R.G. , 2006 SCC 37 . [ 42 ] In D.B.S. the Supreme Court identified the factors a court is to consider when asked to award retroactive child support. The Court stressed however, that a holistic view ought to be taken, with each case decided on the “basis of its particular factual matrix” (para. 99).

The Court set out the following factors: • Whether there is a reasonable excuse for why support was not sought earlier; • The conduct of the payor parent; • The circumstances of the child, and • The hardship occasioned by a retroactive award. [ 43 ] With respect to hardship, Bastarache, J. wrote: 116 I agree with Paperny J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimizes hardship (paras. 104 and 106).

Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines . But I also recognize that it will not always be possible to avoid hardship.

While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case. [ 44 ] Once a court has determined that a retroactive award is warranted, the amount is to be determined by considering the past date to which the award should be calculated, and also the amount that would “adequately quantify the payor parent’s deficient obligations during that time” (para. 117). [ 45 ] In his decision, the trial judge said: [61] . . .Four factors the Court must consider is number one, the conduct of the payee in bringing the application.

Here I find that Mr. Boone was on notice from 2012 that child support was a live issue and he has chosen not to pay child support until 2015 when he began paying $200.00 a month. So as I say he was on notice and so there was no delay by Ms. Luedee in bringing the application for spousal support ( sic ). [62] The second factor I must consider under DBS is the conduct of the payor. As I’ve indicated Mr. Boone chose not to pay child support until 2015 when he unilaterally decided that he would pay $200.00 a month. [63] Third factor I must look at is the circumstances of the children.

Here Danielle and Michael are still of a young enough age that they will be beneficiaries of child support for some time to come and therefore, any child support that is paid is something that will assist them in their day-to-day needs. [64] And finally, I must look under the DBS analysis at the hardship that would be put upon Mr. Boone if retroactive child support is

ordered. Here the Court had several options available to it. The Court could order a lump sum amount or a periodic amount. Given Mr. Boone’s source of income is investment income, I decline to make it retroactive and in declining in making the order retroactive to force Mr. Boone to sell off those investments in order to pay child support as it will affect his ability to generate income . I will therefore however make the payment payable by way of a periodic basis, if given enough time in my view, Mr.

Boone would be able to pay an amount periodically . . .(Emphasis added) [ 46 ] In my view, two things are clear from the above passage. Firstly, the trial judge misspoke when he used the word “retroactive” twice. From the context of paragraph [64], it is obvious that he was referring to making a lump sum order. Secondly, and more importantly, it is clear that the trial judge considered each of the factors directed by D.B.S. [ 47 ] I am satisfied the trial judge did not ignore or misapply the legal principles relating to retroactive awards.

He balanced the factors, considering them all, and found that an award was warranted. Contrary to Mr. Boone’s assertion that the trial judge failed to consider the hardship a retroactive award would create, it is clear that he did. The choice to make the award periodic versus lump sum recognized the reality of Mr. Boone’s circumstances. Further, given the factual findings made by the trial judge, I would not interfere with the time frame over which he calculated the award. I would dismiss this ground of appeal. Did the trial judge err in calculating Mr.

Boone’s “income” pursuant to the Federal Child Support Guidelines? [ 48 ] At trial Mr. Boone argued that dividend and investment income reported on his recent tax returns ought not to be considered “income” for the purpose of calculating child support. The trial judge asked and received post-trial submissions from the parties on this issue. Mr. Boone argues before this Court that the trial judge erred when he included his investment income when calculating Guideline support. His counsel writes in her factum: 53. It is respectfully submitted that the RRSP income shown on Mr.

Boone’s income tax returns, which approximates $6000.00 per year, is not actual income to Mr. Boone such that he could use it for house hold income, this goes to serve as a debt which was incurred during the marriage in 2005, when he leveraged his RRSP’s to invest $150,000.00. [ 49 ] The calculation of income for child support purposes is addressed in the Guidelines .

Section 16 provides: Calculation of annual income 16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. Section 17(1) is also relevant. It states: Pattern of income 17

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

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. (Emphasis added) [ 50 ]

Schedule III of the Guidelines provides for various adjustments to income. Adjustment for investment income is not one of them. As such, Mr. Boone’s RRSP income would be presumptively included. Mr. Boone argues however, that the trial judge ought to have applied s. 17(1) to adjust his income downwards. [ 51 ] With respect to this issue, the trial judge concluded: [53] Finally, Mr. Boone also had reported income from a TRIF, and a TRSP of $5,540.24 and $294.44 respectively. Mr. Boone said in his testimony these amounts were not income but used to repay a loan of $150,000 that he acquired for investment purposes.

The documents provided by Mr. Boone provided no evidence to support this proposition. Furthermore,

Schedule III of the Federal Child Support Guidelines do not permit a deduction for a loan in Mr. Boone’s circumstances . . . [ 52 ] I do not accept Mr. Boone’s argument that the trial judge erred. He considered the correct legal principles and explained the rationale for his conclusion. The findings he made were available to him on the evidentiary record. Mr. Boone did not provide adequate documentary evidence to establish the investment income claimed was related to the purported loan. Further, the decision to not adjust Mr. Boone’s income downwards is entirely discretionary. Mr.

Boone has not provided a convincing argument as to how the trial judge erred in the exercise of his discretion. [ 53 ] I would dismiss this ground of appeal. Did the trial judge err in dismissing Mr. Boone’s claim of undue hardship? [ 54 ] In rejecting Mr. Boone’s claim of undue hardship the trial judge wrote: [57] Mr. Boone in his brief and evidence says that he should not pay child support because of a claim of undue hardship. I reject Mr. Boone’s argument that he’s in a position of undue hardship. I do so because from the evidence there are a number of investment loans that he continued to have which Ms.

Luedee says investments totaling in the amount of $300,000.00. Mr. Boone continued to pay from those investments, a $150,000.00 loan for investments. Mr. Boone appears to have been meeting those obligations and has never defaulted on his obligation to pay those amounts. [58] In addition, as pointed out by counsel, Mr. Boone has acquired a number of properties and made a number of improvements including improvements to his residence at Lingan Road, as well as erecting an additional residence. Significantly as well, Mr. Boone

has not met the heavy burden of establishing undue hardship through the analysis required under the Federal Child Support Guidelineswhen claiming an undue hardship. No statement of income and expenses was introduced into evidence and no household comparisontest was done as required . . . [55] Mr. Boone submits that he did in fact meet the criteria for undue hardship and did file the necessary documentation, notably a“work sheet analysis to determine household incomes”. [56]

Section 3 of the Guidelines says that for children under the age of majority, the amount of support payable is presumed to bethat calculated pursuant to the relevant table. A party seeking to vary from the table amount must establish pursuant to s. 10 that suchwould constitute an undue hardship. Section 10(2) sets out the types of circumstances that may establish undue hardship.

A partyclaiming undue hardship carries the burden of establishing on the evidence not only a hardship, but one that is “undue”. [57] Civil Procedure Rule 59.22(1) sets out the nature of information which a claimant must provide to the court when advancing aclaim that table child support would cause undue hardship is advanced: • Both parties must file a statement of income: • Both parties must file a statement of expenses; • Each party must obtain from the other members of their households, as defined in

Schedule II of the Guidelines, themembers’ income tax returns and notices of assessment for the most recent tax year and any other information required to comparehousehold standards of living in accordance with

Schedule II, and • The party advancing the claim must file a statement of undue hardship circumstances and the party’s calculation andcomparison of the household standards of living, as provided in

Schedule II. [58] I have carefully reviewed the evidentiary record. The only document entered into evidence by Mr. Boone was a worksheetshowing his calculations of the comparable household standards of living. The trial judge did not have the other documentation which isrequired by the Rule. Further, Mr. Boone has not shown that the trial judge erred in law in terms of his consideration of legal principles. I would dismiss this ground of appeal. Did the trial judge err in dismissing Mr. Boone’s claim for spousal support? [59] Before this Court, Mr.

Boone submits the trial judge erred in fact and law by declining to award him spousal support. Although he asks us to grant him spousal support on a lump sum or periodic basis, he gives no indication of what amount he seeks orhow it ought to be calculated. [60] In his reasons, the trial judge noted the relevant provisions of the Divorce Act, including ss. 15.2(4) and (6), which provide: 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during co-habitation; and (

c) any order, agreement or arrangement relating to support of either spouse. . . .

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

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

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above 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. [61] He also recognized the three conceptual grounds for spousal support: contractual, compensatory and non-compensatory, as setout by the Supreme Court of Canada (Moge v. Moge (SCC), [1992] 3 S.C.R. 813; Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420). The trial judge concluded that Mr. Boone had not established an entitlement to support on any basis. [62] I am satisfied the trial judge was attuned to the correct legal principles. Mr.

Boone’s complaint is how the trial judge appliedthe evidence to these principles. As noted earlier, absent an error of law, trial judges are entitled to deference in their supportdeterminations. [63] Mr. Boone also says the trial judge failed to place enough weight on some aspects of the evidence, and too much on others. Again, provided the correct factors are considered, it is not this Court’s role to question the weighing undertaken by the trial judge. [64] Further, there is even a more fundamental problem for Mr. Boone in challenging the trial judge’s rejection of his supportclaim.

Civil Procedure Rule 59.22(2) required him to provide a statement of income, a statement of expenses and a statement ofproperty. As noted earlier, the evidentiary record did not include a statement of income and expenses from Mr. Boone. A court cannot

be expected to make a decision about the means and needs of a claimant spouse in the absence of the necessary financial information. [ 65 ] In my view, the trial judge’s conclusion was supportable on the evidence before him. I would dismiss this ground of appeal. Did the trial judge err in awarding costs against Mr. Boone? [ 66 ] Following the trial judge’s decision on the merits, the parties were unable to agree to costs. Ms. Luedee sought costs of $22,000.00. Mr.

Boone submitted each party ought to bear their own costs. [ 67 ] In an Endorsement dated September 6, 2017 (followed by an order issued October 11, 2017) the trial judge set out the applicable legal principles as well as his rationale for awarding costs of $5000.00 to Ms. Luedee. Although the trial judge recognized that success was mixed (Ms. Luedee was unsuccessful in having the marriage contract set aside), he determined that several factors made an award of costs against Mr. Boone appropriate. The trial judge noted Mr.

Boone was unsuccessful on his undue hardship claim as well as his attempt to deflect a retroactive award. The trial judge also found costs appropriate due to late disclosure by Mr. Boone. [ 68 ] Before this Court, Mr. Boone does not take issue with the legal principles applied by the trial judge, but rather with his findings as to how the hearing was conducted. Cost awards are discretionary for a reason. It is the trial judge who is best placed, after witnessing first hand the conduct of a proceeding, to assess the type of costs award that would do justice between the parties. In my view, Mr.

Boone has failed to establish any reason to justify intervention by this Court. I would dismiss this ground of appeal. Disposition [ 69 ] For the reasons above, I would dismiss the appeal. Mr. Boone shall pay to Ms. Luedee costs of $2500.00, inclusive of disbursements. Bourgeois, J.A. Concurred in: Fichaud, J.A. Farrar, J.A.