Docket: CACV2282 Chad Morris Rathwell Appellant (Respondent by Cross-Appeal) (Respondent) - v. -, 2013 SKCA 133

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 133 Date: 2013-12-12 Between: Docket: CACV2282 Chad Morris Rathwell Appellant (Respondent by Cross-Appeal) (Respondent) - and - Mary Ann Cherneski Respondent (Appellant by Cross-Appeal) (Petitioner) Coram: Richards C.J.S., Jackson and Ottenbreit JJ.A. Counsel: E.F. Anthony Merchant, Q.C., for the appellant Sean M. Sinclair for the respondent Appeal: From: 2012 SKQB 231 Heard: May 17, 2013

Disposition: Appeal and cross-appeal dismissed Written Reasons: December 12, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Jackson OTTENBREIT J.A. [ 1 ] Chad Morris Rathwell appeals a Queen’s Bench decision dated June 8, 2012, found at 2012 SKQB 231 , varying a consent order for child support granted in favour of Mary Ann Cherneski. In support of his appeal Mr. Rathwell also applies for an order allowing fresh evidence to be adduced. For the reasons hereinafter set forth, the application for fresh evidence of Mr.

Rathwell is dismissed. His appeal is also dismissed. [ 2 ] Ms. Cherneski cross-appeals on the basis that the Chambers judge erred by failing to order Mr. Rathwell to pay $12,000.00 in child support arrears. Ms. Cherneski’s cross-appeal is also dismissed. I. Background and Facts [ 3 ] Mr. Rathwell and Ms. Cherneski were married in 1994 and separated in 2003. They have one child, Gillian Audrey Rathwell, born April 17, 2003. Gillian has resided primarily with Ms. Cherneski since the separation and currently lives with Ms. Cherneski and her current spouse in Kindersley, Saskatchewan. [ 4 ] Mr. Rathwell and Ms.

Cherneski initially resolved most of their matrimonial issues by way of an interspousal agreement dated February 22, 2005, wherein they agreed that, among other things, Mr. Rathwell would pay child support. At that time, his yearly income was $63,400.00. As well, the agreement contained a parenting plan confirming that the child would primarily reside with Ms. Cherneski. The parenting plan was later set out in a consent judgment dated September 12, 2005. [ 5 ] Mr. Rathwell lives in Calgary, Alberta, and at all relevant times was living in Alberta. [ 6 ] In April of 2008, Ms.

Cherneski brought an application to increase child support and that application was resolved at a pre-trial conference in August of 2008. At the time, and in reliance upon Mr. Rathwell’s sworn financial statement stating that his income for 2007 was $168,783.00 per annum, Ms. Cherneski entered into minutes of settlement which provided that if in the future Mr. Rathwell’s child support obligations exceeded $2,000.00 per month, any amount in excess of $2,000.00 would go into an investment fund controlled by Mr. Rathwell for Gillian’s education or such other use as agreed to by the parties.

This agreement with respect to child support was consolidated into a consent order dated August 6, 2008 (the “consent order”). Paragraph 12 of that consent order reads as follows: 12. If Chad is paying over $2,000.00 per month of child support, any amount exceeding $2,000.00 paid by Chad to Mary Ann shall be paid into an investment fund for Gillian’s education or her use by agreement of the parties. Management of the fund, if any, will be by agreement of both parties and failing such agreement by Court Order.

If any money is not used for Gillian’s education, the money remaining shall go to Gillian at age 25 or otherwise agreed by the parties. [ 7 ] For the three years prior to the consent order, Mr. Rathwell’s income was $77,261.00 (2005), $96,621.00 (2006) and $168,783.00 (2007). Mr. Rathwell earned $902,686.00 in 2008. The next three years Mr. Rathwell earned $361,401.00 (2009), $433,939.00 (2010) and $311,576.00 (2011). At the date of the application for variation of the consent order, it was known that Mr. Rathwell would earn over $700,000.00 in 2012. [ 8 ] As Mr.

Rathwell’s income increased from 2008 to 2012, he paid the $2,000.00 per month to Ms. Cherneski in accordance with the consent order and paid the balance of the child support payable in accordance with the Federal Child Support Guidelines for Saskatchewan into the investment fund stated in the consent order. This fund was controlled by Mr. Rathwell. As of March 30, 2012, there was $87,663.67 in the fund. [ 9 ] In March of 2012, Ms.

Cherneski applied, inter alia , for an order to vary the consent order to increase child support and have it payable in accordance with the Guidelines as well as an order retroactively adjusting child support to June of 2009. [ 10 ] Mr. Rathwell mistakenly paid child support based on the Saskatchewan Guidelines when he should have been paying based on the Alberta Guidelines . If Mr. Rathwell had been paying child support in accordance with the Guidelines for Alberta, he would have paid approximately $12,000.00 more in child support. Ms. Cherneski first raised this issue during argument on her application. II.

Decision of the CHAMBERS JUDGE [ 11 ] The Chambers judge found that “the respondent’s dramatic change of income” is a material change in circumstances that would

permit the Court to consider a variation application (see para. 15).

The judge also found that “although the parties may havecontemplated the respondent would earn in excess of $150,000.00, the levels of income that he has been enjoying the last number ofyears can not be said to have been in the reasonable contemplation of the petitioner” (para. 16). [12] With respect to the issue of whether the investment fund constituted “special provisions having been made for the benefit of the child” as set forth in s. 17(6.2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Chambers judge stated: 26 As stated, the respondent is willing to pay Guideline table support, however, he wishes the support to go to the petitioner to theextent of $2,000.00 per month and that the balance be paid to the trust.

The question then is, does the trust constitute a special provisionthat would make the Guideline amount inequitable? 27 Numerous cases have held that the existence of a trust is not a special provision but in those cases referred to me, the trust was notset up with the consent of both spouses so I did not find those cases particularly helpful. However, the petitioner makes the point thatchild support is to be made to meet the current needs of Gillian.

Therefore to allow the trust to continue to grow reduces the respondent’sobligation to pay current child support by allocating the amounts paid to the trust to Gillian’s future needs, and in addition, reduces therespondent’s obligation to ultimately pay for Gillian’s educational needs in the future. This position has merit. 28 The respondent has not satisfied me that the trust constitutes a special provision for the benefit of Gillian that would make itinequitable to depart from the Guidelines. Accordingly, in my view the Consent Order should be varied.

To maintain it would enable therespondent to avoid his responsibility for paying for Gillian’s future educational needs by financing that obligation with current childsupport payments. [13] After reviewing G. (D.J.) v. M. (N.), 2007 SKQB 137, 296 Sask. R. 108, setting forth the governing law respecting child supportorders where income is over $150,000.00 per year, the Chambers judge went on to determine the quantum of support. With respect towhat level of support should be payable by Mr.

Rathwell, the Chambers judge held as follows: 31 The respondent argues that the petitioner does not need the full amount to raise the child and that the petitioner intends to use thechild support to build up her own assets. It appears that this may be the case. The petitioner has stated she wishes to use some of thefunds to contribute to an RRSP. However, these concerns are irrelevant.

The respondent has not satisfied me that anything other thanGuideline support is appropriate. 32 Accordingly, effective June 1, 2012, the respondent shall pay the full Guideline support pursuant to the Alberta Guideline table,to the petitioner. As the respondent’s income for 2011 was $311,576.00, the respondent’s share is the sum of $2,757.18 per month forthe support of Gillian commencing June 1, 2012. The respondent shall disclose all his relevant income information for the previous yearby May 31 of each year and adjust child support as of June 1 in each year.

In addition, the respondent shall provide an annual accountingof the trust to the petitioner by May 31 of each year. [14] With respect to Ms. Cherneski’s claim for arrears in child support, the Chambers judge determined that Mr. Rathwell’s payment ofchild support pursuant to the Saskatchewan tables was inadvertent and a misunderstanding and that it would be inequitable to require Mr.Rathwell to make an adjustment now. He therefore dismissed the application for payment of arrears. [15] With that, Mr. Rathwell launched this appeal and Ms. Cherneski cross-appealed. III.

Jurisdiction and Standard of Review [16] The standard of appellate review is set forth in Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518: 10 When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors,and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise ofconsiderable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial supportstatutes with an appreciation of the particular facts of the case.

It is a difficult but important determination, which is critical to the lives ofthe parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference byappellate courts when such decisions are reviewed. 11 Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an errorin principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. These principles were stated by MordenJ.A. of the Ontario Court of Appeal in Harrington v.

Harrington (1981), (ON CA), 33 O.R. (2d) 150, at p. 154, andapproved by the majority of this Court in Pelech v. Pelech, (SCC), [1987] 1 S.C.R. 801, per Wilson J.; in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, per L'Heureux-Dubé J.; and in Willick v. Willick, (SCC), [1994] 3 S.C.R.670, at p. 691, per Sopinka J., and at pp. 743-44, per L'Heureux-Dubé J. 12 There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard

of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [ 17 ] Because this is a matter determined on the basis of affidavit evidence, Ethier v.

Skrudland , 2011 SKCA 17 , [2011] 4 W.W.R. 608, also governs respecting findings of fact: 10 However, where the findings of fact were rendered on the basis of affidavit evidence alone without the benefit of cross- examination, it is open to an appellate court to evaluate the reasonableness of those findings. See Valley Beef Producers Co-operative Ltd., et al. v.

Farm Credit Corporation , 2002 SKCA 100 , 218 D.L.R. (4th) 86 (“ Valley Beef Producers ”), where Cameron J.A. said: 116 It should seldom be necessary on appeal to object to findings of primary fact based on affidavit evidence alone, for ordinarily material conflict in the affidavits calls for cross-examination or the other taking of viva voce evidence to the end of resolving the conflict on that basis.

Still, there are exceptions, and then there are findings of secondary fact, which may be based on non-conflicting affidavit evidence. 117 Issues of fact determined on the basis of affidavit evidence alone, unlike those determined on the basis of viva voce evidence and assessments of credibility, are not such as to be beyond the effective capacity of the Court to address. A chambers judge is in no better position than are the judges of this Court to make findings or fact, both primary and secondary, on the basis of affidavit evidence alone.

That being so, no greater measure of deference is called for than that pertaining to the office of the judge, who being a superior court judge may be presupposed to have made reasonable findings of fact, a presupposition that places the burden of persuasion on the appellant. 118 Mindful of that, whenever an appellant objects to a finding of material fact made by a chambers judge on affidavit evidence alone, the Court will determine the issue of fact on a standard of “reasonableness.” If the Court, having considered the content of the affidavits with a view to determining what the affidavit evidence establishes in light of the burden of proof, should conclude the chamber judge’s finding of fact is reasonable, as presupposed, it will not interfere.

Should it conclude otherwise, or come to entertain serious doubt, it will make its own finding in place of that of the chambers judge if able to do so. IV. Issues [ 18 ] Mr. Rathwell’s application, appeal and the cross-appeal of Ms. Cherneski raise a number of issues which may be stated as follows: (

a) Should the further evidence proffered by Mr. Rathwell be admitted? (

b) Did the Chambers judge err in determining there was a change in circumstance sufficient to justify variation? (

c) Did the Chambers judge err by failing to determine that the investment fund in the consent order was a “special provision” and/or by failing to give effect to the consent order that had been negotiated by the parties? (

d) Did the Chambers judge err by varying a “trust” within the meaning of The Trustee Act ? (

e) Did the Chambers judge err by ordering an unreasonable amount of support? (

f) Did the Chambers judge err by failing to order payment of arrears of child support? V. Analysis (

a) Should the further evidence proffered by Mr. Rathwell be admitted? [ 19 ] Rule 59(1) of The Court of Appeal Rules reads as follows:

59(1) A party desiring to adduce fresh evidence on appeal shall, in accordance with existing law, apply to the court for leave to do so bynotice of motion returnable on the date fixed for hearing the appeal. [20] The test respecting the admission of fresh evidence has recently been restated in Wal-Mart Canada Corp. v. Saskatchewan (LabourRelations Board), 2006 SKCA 142, 289 Sask. R. 20, at para 4: The test for the admission of fresh evidence is well known and was articulated by this Court in Maitland v. Drozda, (SK CA), [1983] 3 W.W.R. 193 (Sask. C.A.). The Court identified four factors which must be satisfied before fresh evidence would beaccepted. Those factors are: (

a) The evidence will not be admitted, if by due diligence it could have been used at trial; (

b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the action; (

c) The evidence must be credible in the sense that it is reasonably capable of belief; and, (

d) It must be such that if believed could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [21] The evidence Mr. Rathwell proposes to file, i.e., his total 2012 taxable income plus the fact that he is now unemployed and has haddifficulty getting new employment, arose after the Chambers decision was rendered. [22] The matter the Chambers judge was dealing with and the substance of the decision being appealed was the determination of childsupport commencing June 1, 2012, based on Mr. Rathwell’s 2011 income.

The proposed fresh evidence neither bears on a decisive orpotentially decisive issue in this appeal nor can it be expected to affect the result of this appeal taken with the other evidence before theChambers judge. Accordingly, it does not meet the test as set forth in Wal-Mart Canada Corp. Such evidence may be relevant to avariation application but not to this appeal. It is noteworthy that Mr.

Rathwell’s argument in this Court that the child support order wasunreasonable because of a spike in his future income does not depend on fresh evidence since there was evidence before the Chambersjudge that by May 4, 2012, his 2012 income had already reached $718,000.00. [23] Mr. Rathwell’s application to adduce fresh evidence is dismissed. (

b) Did the Chambers judge err in determining there was a change in circumstance sufficient to justify variation? [24] Section 17(4) of the Divorce Act and s. 14 of the Guidelines prescribe the conditions that must exist before an existing order can bevaried: Factors for child support order 17(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change ofcircumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variationorder made in respect of that order. and: Circumstances for variation 14.

For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise tothe making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any changein circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change inthe condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and … [25] Both parties accepted for the purposes of the appeal that the Chambers judge was correct to determine whether a change ofcircumstances had occurred pursuant to s. 14(

b) of the Guidelines. I am prepared to approach this matter on that basis.

[ 26 ] Mr. Rathwell argues that the Chambers judge erred by finding that the threshold for a change in circumstances justifying a variation had been met. He submits that the entire process of negotiations and discussion which culminated in the consent order were based on the premise that his income could exceed $252,000.00 substantially. He argues that the parties recognized this when they set the ceiling for payment to Ms. Cherneski in the agreement at $2,000.00 per month with the balance to go into the investment fund.

He contends that in 2008 it was, therefore, contemplated by the parties that his income could rise to the levels actually attained after 2008 but that the Chambers judge did not appreciate this because he made no reference to the fact that contemplating child support of $2,000.00 per month meant contemplating an income in excess of $252,000.00. [ 27 ] The Chambers judge acknowledged that the parties had contemplated that Mr. Rathwell would earn income in excess of $150,000.00. The absence of any direct acknowledgment by the Chambers judge that $2,000.00 per month child support required Mr.

Rathwell’s income to be $252,000.00 is not a material error. The fact is that Mr. Rathwell’s income was on average substantially above the $168,783.00 per year income which grounded the consent order for Guideline purposes and also substantially above $252,000.00, the threshold for payments into the trust. His means had changed dramatically after 2008 in relation to the 2007 income which formed the basis of the consent order.

It thereafter varied from a high of $902,000 in 2008 to a low of $311,000 in 2011. [ 28 ] It may be fairly said that the finding by the Chambers judge that the increase in income was so substantial that it was not in the contemplation of the parties is a reasonable finding on the evidence before him. This kind of change alone in the means of the payor constitutes a change in circumstances under s. 14(

b) of the Guidelines . The Chambers judge also stated that the fact the petitioner’s circumstances have changed may be a change in circumstances to give rise to a review. He properly concluded that there had been a change in all the circumstances. I cannot say that he erred given the standard of review. (

c) Did the Chambers judge err by failing to determine that the investment fund in the consent order was a “special provision” and/or by failing to give effect to the consent order that had been negotiated by the parties? [ 29 ] Mr. Rathwell placed some emphasis on s. 17(6.2) of the Divorce Act . It works in tandem with s. 17(6.1). Those two provisions read as follows: 17(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. [ 30 ] Mr. Rathwell suggested that the investment fund arrangements found in para. 12 of the consent order constituted “special provisions” within the meaning of s. 17(6.2) and operated as a reason not to vary the consent order. [ 31 ] As presented, this argument is misplaced and does not advance Mr. Rathwell’s case. The point is that, having full regard for para. 12 of the consent order, the Chambers judge decided there had been a material change of circumstances.

He was then required to vary the consent order. It was only at this point that s. 17(6.2) might have entered the picture. It allows a judge to order a variation of support below the prescribed level of the Guidelines if there are “special provisions”. [ 32 ] However, even assuming that the obligation to make investment fund contributions as per para. 12 of the consent order could be seen as a “special provision,” Mr. Rathwell does not contend that the Chambers judge erred by failing to carry forward para. 12 into the variation order.

Nor does he argue that the Chambers judge’s order fails to reflect the existence of the value of the fund which has accumulated to date. Rather, Mr. Rathwell says only that no variation was warranted, i.e. , there was no material change of circumstances and that, if it was warranted, the order made by the Chambers judge involves payments which are unduly high relative to his child’s actual day-to-day needs. In the result, it is not apparent how s. 17(6.2) can assist Mr.

Rathwell. [ 33 ] That said, the funds accumulated within the investment account remain to be administered as in the past in accordance with para. 12 of the consent order and any other terms that are legally applicable to the funds notwithstanding the variation for the benefit of Gillian. (

d) Did the Chambers judge err by varying a “trust” within the meaning of The Trustee Act ? [ 34 ] This issue need not be addressed in view of my comments on the preceding issue.

(

e) Did the Chambers judge err by ordering an unreasonable amount of support? [35] Mr. Rathwell argues that the level of support ordered by the Chambers judge is unreasonable and that full Guideline supportshould not have been ordered on the facts of this case. [36] The following sections of the Guidelines are germane: 3(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

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

b) the amount, if any, determined under

section 7. … 4. Where the income of the spouse 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 spouse’s income, the amount set out in the applicable table for the number ofchildren under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to thecondition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse tocontribute to the support of the children; and (iii) the amount, if any, determined under

section 7. [37] The governing authority containing the exposition of principles for determination of support in cases where the payor’s incomeexceeds $150,000.00 per year is Francis v. Baker, (SCC), [1999] 3 S.C.R. 250, which the Chambers judge recognized. The onus is on the payor to demonstrate that the presumed s. 3 child support is inappropriate by clear and compelling evidence (Baker,para. 43). The term “inappropriate” for the purposes of s. 4 of the Guidelines means “unsuitable” (Baker, para. 40). [38] Baker largely adopted this Court’s approach in Dergousoff v.

Schille (Dergousoff) (1999), (SK CA), 177 Sask.R. 64 (Sask. C.A.) with respect to appropriateness of the amount. Our Court, at para. 81, stated as follows: 81 In the light of all of this, we are of the opinion that a court, when called upon to consider whether the table amount is“inappropriate” within the meaning of

section 4(b), must have regard for the condition, means, needs and other circumstances of thechildren, together with the abilities of each of the spouses to contribute to their maintenance. If the court is satisfied that the amount is“inappropriate,” having regard for these considerations, the court is then required to determine an “appropriate” amount with theseconsiderations in mind.

An appropriate amount may be less than the sum of the fixed and proportionate amounts specified by the table,but not less than the fixed amount attributable to the first $150,000 earned by the spouse against whom the order is sought. [39] While it is true that Mr. Rathwell had no obligation to lead evidence to show that the s. 3 support was inappropriate, neverthelessthe onus remained on him to show on the whole of the evidence clear and compelling reasons why there should be a deviation from thes. 3 amount. [40] Mr. Rathwell argues that Ms.

Cherneski has failed to establish need primarily on the basis that she made do with $2,000.00 permonth in the past and that her revised budget that she provided to the court respecting future need shows a deficit of $97,857.00 wasexcessive and lavish. More specifically, he argues that Ms. Cherneski will use the added child support to build up her own assets orwhere she proposes to use the money for the benefit of Gillian she will not actually do so. [41] Ms. Cherneski provided a budget reflective of a lifestyle which increased child support might bring.

Such a budget is notmandatory but is recommended to assist the Chambers judge in assessing need (Gould v. Gould, 2013 SKCA 34, [2013] 9 W.W.R. 1). To some extent such a budget is partly a “wish list”. However, it was appropriate to provide a revised budget to the Court setting out her

possible future expenditures if increased child support was awarded. It is noteworthy that many of the items set forth in Ms. Cherneski’s revised budget relate to acquisition of assets which may directly or indirectly benefit Gillian. [ 42 ] Pointedly, Ms. Cherneski’s original financial statement filed as evidence of need before her revised budget shows the shortfall at $37,872.00. The order of the Chambers judge gives her only approximately $9,000.00 more per annum, or $757.18 per month, for the care of the child. This is a reasonable increase given Mr.

Rathwell’s income which was determined to be $311,576.00 and far short of eliminating Ms. Cherneski’s financial shortfall even without reference to expenditures in the revised budget. [ 43 ] There is no evidence that Ms. Cherneski will not actually use the increased child support for the benefit of Gillian as Mr. Rathwell alleges. However, Mr. Rathwell goes further to argue that increased child support would allow Ms. Cherneski to accumulate more assets. The Chambers judge clearly considered that increased child support may allow Ms. Cherneski to build up her assets.

Although such a result may not, depending on the case, necessarily be irrelevant as stated by the Chambers judge, nevertheless, neither is it a clear and compelling reason in itself to conclude that the s. 3 support is inappropriate. Although the jurisprudence indicates that child support should not be a transfer of wealth, there is nothing wrong per se with the payee reallocating her money freed up by increased child support. It would be surprising if a greater portion of Ms. Cherneski’s own income were not a result of higher child support allocated to building up some assets, in this case her RRSP.

The focus, however, always remains on the needs of the child and whether they will be met notwithstanding that the payee has, as a result, more discretionary income. The Chambers judge did this and it may be fairly said that he found Guideline maintenance not inappropriate in all the circumstances. [ 44 ] Mr. Rathwell’s last argument under this ground is that the order of the Chambers judge will be prospectively unreasonable and will result in a future windfall to the mother and the mother’s household.

This argument relies not so much on the alleged inappropriateness of s. 3 Guideline child support per se as it does on the effect of the following clause in the Chambers judge’s order: 1(

c) The Respondent shall disclose all his relevant income information for the previous year by May 31 of each year and adjust child support as of June 1 in each year. [ 45 ] Mr. Rathwell contends that the order of the Chambers judge allows automatic yearly increases of s. 3 support and because Mr. Rathwell’s income for 2012 was at May 4, 2012, already $718,393.00, the child support payable to Ms. Cherneski would jump to an unreasonable amount for the year starting June 1, 2013. Mr.

Rathwell argues that the Chambers judge was wrong to order Guideline support without a ceiling on that support knowing that the father’s 2012 income would far exceed the $700,000.00 of income disclosed at the date of the application. While the effect of an increase in income of Mr. Rathwell for 2012 is more properly the subject of a variation application, nevertheless Mr. Rathwell raises an issue about the effect of clause 1(

c) of the order. [ 46 ] The order fixes child support at $2,757.18 per month commencing June 1, 2012. The order requires that relevant income information be disclosed and that child support be adjusted as of June 1 in each year. This is a standard provision in many support orders which in most cases speaks to the parties attending to an adjustment of the child support amount. [ 47 ] In the circumstances of this case clause 1(

c) cannot be interpreted to mandate an automatic increase in child support. The Chambers judge was aware that there were extraordinary and frequent fluctuations in Mr. Rathwell’s income. He was aware that Mr. Rathwell’s income to May 4, 2012, was already over $700,000.00. His analysis focused on determining the child support as at June 1, 2012, based on the income mandated by s. 16 of the Guidelines , i.e. , his 2011 income of $311,576.00. Mr. Rathwell had urged the Court to use his 2011 income for the purpose of calculating the child support.

Although the Chambers judge recognized that the prospective income of Mr. Rathwell may rise substantially, it is clear that in fashioning the order his analysis determined the appropriate support for one year. I conclude that in the circumstances of this case in the context of income in excess of $150,000.00 and significant income fluctuations which would be material to any future order, clause 1(

c) does not create an automatic adjustment of support starting June 1, 2013. [ 48 ] There is therefore no unfairness in the order of the Chambers judge requiring automatic disclosure of income information in the context of s. 3 child support in this case. If the parties cannot agree to a new level of child support based on the 2012 income of Mr. Rathwell, either party can apply to vary and have the Court determine that issue. [ 49 ] To conclude my comments on this ground as a whole, in my view the Chambers judge considered the evidence fully and determined that Mr.

Rathwell had not satisfied him in all the circumstances that anything other than Guideline support was appropriate. He made no error in this respect. (

f) Did the Chambers judge err by failing to order payment of arrears of child support? [ 50 ] Ms. Cherneski on her cross-appeal argues that the father mistakenly paid child support under the Saskatchewan Guidelines when he should have been paying it under the Alberta Guidelines because he had been living there. Ms. Cherneski submits that the Chambers judge erred by failing to consider the factors germane to whether to enforce arrears. She argues that, based on the jurisprudence, Mr. Rathwell should pay arrears because he has the capacity to pay and that it will not cause him hardship to do so. [ 51 ] Mr.

Rathwell argues that both he and Ms. Cherneski were using the Saskatchewan Guideline tables in good faith and that the issue was not raised by Ms. Cherneski in her motion but only in argument and, as well, it was not properly addressed by calling evidence. Mr. Rathwell argues he was caught off guard by this. [ 52 ] In light of this procedural history, I am not prepared to find that the Chambers judge erred in deciding not to act on Ms. Cherneski’s arguments.

VI. conclusion [ 53 ] The application to adduce further evidence is dismissed. The appeal of Mr. Rathwell is dismissed. The cross-appeal of Ms. Cherneski is dismissed. Ms. Cherneski shall have her costs on the application to adduce further evidence and the appeal. There will be no costs on the cross-appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 12 th day of December, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Ottenbreit J.A.” for Jackson J.A.