Docket: CACV234 3 David Koback Appellant Respondent by Cross-Appeal (Respondent) - v. -, 2013 SKCA 91

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 91 Date: 2013-08-29 Between: Docket: CACV234 3 David Koback Appellant Respondent by Cross-Appeal (Respondent) - and - Lori Koback Respondent Appellant by Cross-Appeal (Petitioner) Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: Rani L. Grewall for the appellant Roger J.F. Lepage and André Poulin-Denis for the respondent Appeal: From: 2012 SKQB 365 Heard: June 12, 2013

Disposition: Appeal: Allowed in

part Cross-Appeal: Allowed in part Written Reasons: August 29, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell HERAUF J.A. I. Introduction [ 1 ] This is an appeal by David Koback (“David”) and a cross-appeal by Lori Koback (“Lori”) from orders of the Chambers judge relating to retroactive child support, retroactive s. 7 expenses, ongoing child support and ongoing s. 7 expenses for their two daughters.

For the reasons provided, the appeal is dismissed except for the grounds relating to the tuition tax credits, retroactive 2011-2012 university expenses for Amanda and the award of retroactive soccer expenses. The cross-appeal relating to the refusal of the Chambers judge to award retroactive child support for 2011 and 2012 is allowed. Otherwise, the cross-appeal is also dismissed. II. Background [ 2 ] David and Lori were married in 1984. Their daughter Amanda was born on September 16, 1991, and their daughter Megan was born on February 24, 1994.

David and Lori separated in 2000 and divorced in 2004. [ 3 ] On November 19, 2002, David and Lori entered into a comprehensive separation agreement. One of the terms of the agreement was that by December 31, 2003, and on December 31 of each subsequent year, they would disclose their incomes to each other for the purpose of updating their child support obligations. Such disclosure did not occur until 2011.

There was conflicting evidence on the point of whether Lori had first requested disclosure in 2003 or 2009, but the Chambers judge found that the first request occurred in 2003. [ 4 ] Upon the disclosure of David’s income since 2004, it became clear that the child support payments he had been making since the separation agreement had lagged behind increases in his income resulting in a substantial shortfall of the table amounts of child support required by s. 3 of the Federal Child Support Guidelines , SOR/97-175, as amended (the “ Guidelines ”) between 2004 and 2009. [ 5 ] There were also several disputes between David and Lori regarding obligations for extraordinary expenses under s. 7 of the Guidelines .

David claimed that there were very few or no deficiencies, while Lori and the children claimed that any payments toward s. 7 expenses were rare and sporadic. The Chambers judge generally preferred the evidence of Lori and the children.

Expenses associated with the university education of Amanda, who began university in 2009, and Megan, who would begin in 2012, were particularly contentious, as were expenses associated with the children’s participation in soccer from 2004 to 2008. [ 6 ] On July 26, 2012, Lori applied to the Court of Queen’s Bench seeking orders of retroactive and ongoing child support under ss. 3 and 7 of the Guidelines . The matter was determined on the basis of affidavit evidence. On September 7, 2012, the Chambers judge issued a judgment awarding part of the retroactive and ongoing support that Lori sought.

On October 2, 2012, counsel for Lori filed a letter with the Local Registrar of the Court of Queen’s Bench requesting that the Chambers judge make numerous corrections to the judgment of September 7. On October 9, 2012, the Chambers judge issued a corrigendum which corrected several aspects of his original judgment, including a clarification that David was responsible for his share of pre-2009 soccer expenses and an additional semester of university for Amanda. The formal order was entered by consent on November 7, 2012. III.

The decision of the Chambers judge [ 7 ] The Chambers judge determined, among other things, that David should pay: • his proportionate share of Amanda’s tuition for 2011-2012 and his daughters’ future tuition; • portions of expenses, in 2011-2012 and the future, incurred by his daughters for transportation to and from university; • the cost of his daughters’ soccer between 2004-2009; and • retroactive child support amounting to half of the deficiency accrued between 2004-2009. [ 8 ] According to the Chambers judge, both parents bore blame for the delays in disclosing their financial information to each other.

Based on the decision of the Supreme Court of Canada in D.B.S. v. S.R.G. , 2006 SCC 37 , [2006] 2 S.C.R. 231, and the Guidelines , he

awarded child support dating back to 2004, largely on the basis that David was to be blamed for not disclosing his finances on time asrequired by the separation agreement. The Chambers judge also appears to have accepted Lori’s statement that she did not press the issue of disclosure sooner because David hadthreatened to drag their daughters into the litigation. IV. Grounds of Appeal [9] David has raised eight grounds of appeal which can be summarized as follows: (

a) determination upon affidavit evidence; (

b) tuition tax credits; (

c) retroactive child support for 2004-2009; (

d) retroactive 2011-2012 university expenses for Amanda; (

e) retroactive order regarding soccer expenses; (

f) the corrigendum; (

g) child support for Amanda beyond the 2012-2013 academic year; and (

h) the costs award. [10] Lori has raised two grounds of appeal in the cross-appeal which can be summarized as follows: (

a) failure of the Chambers judge to award retroactive child support for 2010-2011; and (

b) reduction of retroactive child support from 2004-2009 by one-half. [11] Each ground of appeal and cross-appeal will be dealt with in turn. V. Appeal by david (

a) Determination upon Affidavit Evidence [12] David claims that there are several key issues that turned upon controverted affidavit evidence. He gave two examples: thefinding that he had failed to disclose his income and the finding that he paid for soccer expenses if requested to do so. According toDavid, the Chambers judge was therefore in no position to make a support order without obtaining further evidence. [13] Lori points out that both parties consented to the matter being decided solely on the basis of affidavit evidence.

At any rate, Lorisubmits that the contradictions amongst the affidavits were not sufficient to undermine the conclusions of the Chambers judge. [14] Rule 605(1) of The Queen’s Bench Rules reads as follows: 605(1) The court may try an issue on oral or affidavit evidence or otherwise as the judge conducting the trial may direct. It is obvious that the Rule explicitly empowers judges to “try” issues on the basis of affidavit evidence. David, though, is not arguingthat the Chambers judge was not empowered to rely on affidavit evidence in general; rather, the alleged error was relying on it when itwas contradictory.

At any rate, it would be odd if Rule 605(1) were interpreted to implicitly exclude determination of child supportmotions that are made solely on the basis of affidavit evidence. [15] David cites no authority for the proposition that basing a decision solely on controverted evidence constitutes, by itself, areversible error. David cites Twist v. Twist, (SK CA), [1997] S.J. No. 487 (Sask. C.A.), where a custody order wasset aside because of a lack of an evidentiary foundation.

In that case, however, Cameron J.A. found the affidavit evidence in question tobe “partially inadmissible, largely contradictory, and materially deficient”. As Lori notes, in Bromm v. Bromm, 2010 SKCA 149, 362Sask. R. 190, at paras. 21 and 22, this Court determined that a Chambers judge is entitled to deference in his or her assessment of thesufficiency of controverted affidavit evidence. In other words, contradictions in affidavit evidence alone are not enough to invalidate asupport order, even where the order is based solely on affidavit evidence.

Reference can also be made to this Court’s decision in Valley Beef Co-Operative Ltd. v. Farm Credit Corp., 2002 SKCA 100, 218 D.L.R. (4th) 86, at paras. 116-118. For this reason I would not giveeffect to this ground of appeal. (

b) Tuition Tax Credits [16] David contends that the Chambers judge erred by neglecting to credit him with his proportionate share of the tuition tax creditsreceived by Lori for their daughter’s post-secondary education expenses. [17] Lori submits that David only mentioned this issue in the argument

section of his brief of law rather than in the request for relief.

In her submission, then, the issue was not properly before the Chambers judge. In the alternative, Lori submits that the Chambers judgeconsidered and rejected David’s claim. [18] Section 7(3) of the Federal Child Support Guidelines reads as follows:

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into accountany subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit orincome tax deduction or credit relating to the expense. [emphasis added] [19] The British Columbia Court of Appeal, in the context of child care tax benefits, considered this to be “mandatory language”(McLaughlin v. McLaughlin (1998), (BC CA), 167 D.L.R. (4th) 39 (B.C. C.A.), at para. 94).

There does not appear tobe a case that performed an in-depth analysis of whether the requirement that courts take tax benefits into “account” is equivalent to arequirement that they include the tax benefit in the final calculation of support. There are, however, three decisions of the SaskatchewanCourt of Queen’s Bench that seem to assume that the payor parent is automatically entitled to his or her share of tuition tax credits forany portion of tuition that they have paid. (Brook v. Hertz, 2008 SKQB 461, 327 Sask. R. 162, at paras. 55 and 57; Crowdis v. Crowdis,2003 SKQB 236, 235 Sask.

R. 201, at para. 23; Chrones v. Scott, (SK KB), [1998] 1 W.W.R. 477 (Sask. Q.B.) at p.479) [20] It may be notable that s. 7(2) refers to the proportional dividing of s. 7 expenses as a “guiding principle”.

If the equal division ofthe expenses is only a “guiding principle” rather than a strict rule, it would seem odd that Parliament would mandate that the division ofcredits be proportional, without leaving any discretion to vary the division of credits, especially in a case where the division of expensesis not made proportional to the parents’ income. [21] In other contexts, a direction to “take into account” a factor has not always been taken to mean that actual effect must be given tothe factor.

The Federal Court of Appeal has stated that “[a] person may certainly take something into account without entirely adoptingit” (Finlay v. Canada (Minister of Finance) (1990), (FCA), 71 D.L.R. (4th) 422 at p. 439 (F.C.A.)). There alsoappears to be some dispute among Canadian courts regarding the meaning of the phrase “shall take into account” in the context of theYouth Criminal Justice Act, S.C. 2002, c.1, s. 38(3) (R. v. R.R.J., 2009 BCCA 580, 279 B.C.A.C. 1, at paras. 38-49). The more commonview is that the phrase does not completely remove judicial discretion. There were other principles of statutory

interpretation in play inthat context though. For instance, a list of factors follows the phrase “must take into account” in that Act. For a recent decision from thisCourt on the use of the phrase “shall take into account” as found in s. 38(3)(

d) of the Youth Criminal Justice Act, see R. v. J.E.O., 2013SKCA 82. [22] In light of the case law that considers the language of s. 7(3) to be mandatory, I am hesitant to claim that it is not, even though s.7(2) and other considerations of the meaning of the phrase “must take into account” appear to provide for some discretion. [23] Nevertheless, the failure of the Chambers judge to consider the claim appears to be contrary to s. 7(3).

If the requirement to takethe tuition tax credits into account means anything, it must mean that even if courts retain discretion not to give the payor parent thebenefit of their share of the tax credits, they must explicitly provide a reason for doing so. The Chambers judge makes no mention of thetuition tax credits.

This may be related to the fact that David’s request to be credited with this amount was not found in the relief sectionof his brief of law, but the text of s. 7(3) does not relieve courts from considering the tax credits in such circumstances. [24] It is apparent from a review of Lori’s tax returns for 2009 (the first year Amanda had attended university) and onward that she hasbeen claiming the tuition tax credits.

Since David made the request for his proportionate share of the tax credits and since the Chambersjudge does not appear to have considered the request, the only appropriate remedy would be to make a declaration similar to that of BallJ. in Smith v. Smith, 2010 SKQB 2, 349 Sask. R. 247, at para. 39. There will be an order that from 2009 onward “The parties shall shareany tax benefit from post-secondary tuition credits and education credits available to them under the Income Tax Act in proportion to therespective incomes”.

Lori will be required to repay David his share of the credit for the taxation years already claimed, i.e., 2009-2012,and for the subsequent years that the credit is being claimed. I will leave the calculations and the method of repayment to the parties. Ifthey are unable to agree, leave is granted to apply to Queen’s Bench for a determination. The appeal relating to this ground of appeal isallowed to the extent mentioned. (

c) Retroactive Child Support for 2004-2009 [25] David contends that the Chambers judge erred in his weighing of the factors relevant to decisions to award retroactive childsupport as laid out by the Supreme Court of Canada in D.B.S. David also argues that the Chambers judge erred in determining the datefrom which retroactive support should be calculated by believing Lori’s claim that she began requesting that David disclose his incomein 2003.

The only documentary evidence of such requests begins in 2009. [26] Lori points out that the Chambers judge based his finding of requests dating back to 2003 on her affidavit evidence. According toLori, there is no error in the Chambers judge’s approach to the factors from D.B.S. [27] In D.B.S., Bastarache J., for the majority of the Supreme Court of Canada, described the factors that determine whether an awardof retroactive child support is appropriate.

The four factors, which are to be applied holistically to each set of facts, are as follows: (1) reasonable excuse for why support was not sought earlier; (2) conduct of the payor parent; (3) circumstances of the child; and (4) hardship occasioned by a retroactive award.

If an order of retroactive support is justified based on an analysis of these factors, the amount to be paid must then be determined. This analysis has two parts: selection of the date of retroactivity and determination of the appropriate quantum.

(1) Reasonable excuse for why support was not sought earlier [ 28 ] In 2002, David and Lori entered into a separation agreement that required each of them to supply the other with their tax returns each year for the purpose of calculating child support obligations. Neither party provided this information to the other. Lori claims that she repeatedly requested this information after 2003, but did not seek legal recourse because David threatened to act vindictively if she did so.

While the Chambers judge did not explicitly accept this evidence, it seems implicit that he accepted it since he simply quoted it and proceeded to draw conclusions from it. David’s contention is that this is not reasonable because there is a lack of documentary evidence to support Lori’s claim. The fact that the first documented request dates to 2009 does not logically require that there were no earlier requests, and the text of the email from 2009 does not indicate one way or the other whether Lori had made prior requests or not.

At any rate, it is intuitively unlikely that Lori would have allowed such a crucial provision of the separation agreement to lapse for seven years without comment. This finding of fact based on affidavit evidence is therefore reasonable, and this factor weighs in favour of a retroactive support award.

(2) Conduct of the payor parent [ 29 ] According to D.B.S. , blameworthy conduct consists of “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. [ 30 ] The Chambers judge stated that “[w]hen adults consensually agree in the form of a separation agreement, having had the benefit beforehand of independent legal counsel, it is the court’s duty to hold the parties to their bargain. Such breach by the respondent constitutes ‘blameworthy conduct’ as defined by the Supreme Court of Canada in D.B.S. v. S.R.G . ”.

Since this conduct masked increases in David’s income, the interests of the children were prejudiced in favour of David. This factor therefore militates in favour of a retroactive support award.

(3) Circumstances of the Child [ 31 ] There appears to be no serious allegation that the children were prejudiced by David’s blameworthy conduct in failing to disclose his income. This factor, then, militates against a retroactive support award.

(4) Hardship Occasioned by a Retroactive Award [ 32 ] It is unclear whether the Chambers judge thought that an award of retroactive child support would be a hardship to David. At one point he states that Lori’s claims, if awarded in full , would constitute a hardship, but recognizes that substantial portions of her claims had been rejected earlier in the judgment. David alleges that the award constitutes a hardship, but provides no specific analysis in support of this allegation.

This factor, then, probably weighs slightly in favour of a retroactive award. [ 33 ] The hardship issue is raised again in the cross-appeal. [ 34 ] Three of the D.B.S. factors weigh in favour of a retroactive award, while one weighs against a retroactive award. The Chambers judge focused on what he considered to be the blameworthy conduct of David and ordered that support be paid retroactively to 2004. The Chambers judge clearly considered at least three of the factors, while the fourth, hardship, is not particularly helpful to David.

It cannot be said, then, that this exercise of discretion was unreasonable. [ 35 ] According to D.B.S. , the general rule is that retroactive support orders will date back to the date on which the owing parent was given “effective notice” of the need to take further action in meeting or recalculating child support obligations. When blameworthy conduct is present, though, the proper date is the date from which the increased support should have been paid.

Bastarache J., for the majority of the Court, states an additional rule: “it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent”. The three year cap does not apply where the conduct of the payor has been blameworthy. [ 36 ] Both of David’s objections stem from the factual finding of the Chambers judge that the date of effective notice was in 2003.

If Lori did not request updated financial information and did not fulfill her obligations to provide the information, it cannot be said that David’s conduct is blameworthy, since a failure of disclosure is not automatically blameworthy. In such a case, the date of effective notice would be in 2009 and retroactive support beyond that date would not be available since there would have been no blameworthy conduct prior to 2009. [ 37 ] The Chambers judge did find both parties’ disclosure to be deficient but found that effective notice was given in 2003. This finding is not unreasonable.

(5) Quantum of the retroactive award [ 38 ] David has not directly challenged the quantum of the retroactive award on the basis of hardship or as otherwise provided for by the Guidelines . This issue is more directly raised by Lori in the cross-appeal and will be dealt with later on in these reasons. The Chambers judge did not err in awarding retroactive child support for 2004-2009 and this ground of appeal is dismissed. (

d) Retroactive 2011-2012 University Expenses for Amanda [ 39 ] David claims he has paid for fifty per cent of Amanda’s tuition and books since 2009. Lori does not contest this. However, the Chambers judge ordered David to pay an additional sixty-nine per cent of Amanda’s university expenses for the 2011-2012 year, totalling $4,498.80, on top of the fifty per cent he had already paid. Since, according to the Chambers judge, it was “ impossible upon the materials filed to do an accurate forensic audit of the petitioner’s and the respondent’s contributions in supporting their children for the

past nine years”, he ordered that this amount be paid despite the fact that Lori alleged “that the respondent has underpaid s. 7 special expenses, not that he has not paid or contributed to those costs”. David understood the Chambers judge’s statement that he would “balance the latter [three] years against the former [nine]” to be a recognition that this was an overpayment that would be balanced by an underpayment of other s. 7 expenses prior to 2009, which consist of soccer expenses.

According to David, no such underpayment occurred, leaving the overpayment uncorrected. [ 40 ] Lori concedes that the shortfall for Amanda’s university expenses in 2011-2012 was, in fact, $1,640.00 rather than the $4,498.80 awarded by the Chambers judge.

She submits, however, that the Chambers judge’s statement that he would “balance the latter years against the former” meant that this award was meant to compensate for shortfalls in relation to university expenses other than tuition and books dating back to September 2009. [ 41 ] It is clear that the Chambers judge ordered an overpayment in relation to Amanda’s university expenses from 2011-2012. It is much less clear what this overpayment was intended to compensate for.

The relevant passages of the judgment are as follows: 13 The affidavit evidence as to the amounts contributed by the petitioner and respondent to Amanda’s academic year costs 2011/2012 is conflicting. At para. 3 of the respondent’s affidavit he states that he paid for some of the girls’ activities but kept no records. He alleges that since 2009, he paid 50% of Amanda’s tuition and books as well as purchased some clothes and toiletries.

The petitioner argues that the respondent has underpaid s. 7 special expenses, not that he has not paid or contributed to those costs . 14 It is impossible upon the materials filed to do an accurate forensic audit of the petitioner’s and the respondent’s contributions in supporting their children for the past nine years . Absent blameworthy behaviour, the Supreme Court has said in its decision D.B.S. v. S.R.G. , 2006 SCC 37 , [2006] 2 S.C.R. 231, that retroactivity should not exceed the three years from effective date of notice.

The court will balance the latter years against the former years in an attempt to bring a fair resolution to this application. Accordingly, the respondent’s share of Amanda’s previous years university expenses calculated at 69% on an adjusted sum of $6,520.00 is a sum of $4,498.80. That sum shall be paid to the petitioner within 90 days of this judgment. [emphasis added] [ 42 ] David’s

interpretation of this passage is somewhat more compelling. The Chambers judge’s references to “latter” and “former” years appear to refer to the time periods after and before 2009, which is the year that Amanda started university. Lori’s contention that the overpayment was to compensate for shortfalls incurred after 2009 does not explain the Chambers judge’s reference to the three year and nine year periods. This ground of appeal is allowed. The overpayment of $2,858.80 made by David is to be credited to, and set off against, future university expenses that David is obligated to pay for his daughters.

Once again, if this matter cannot be resolved between the parties, leave is granted to return the matter to Queen’s Bench. (

e) Retroactive Order Regarding Soccer Expenses [ 43 ] The Chambers judge ordered in the corrigendum that David pay $8,004.00 in retroactive soccer expenses. The propriety of making the order in the corrigendum will be discussed as the next issue. [ 44 ] This leg of the appeal deals with David’s submission that it was an error of law for the Chambers judge to have found that an order for retroactive soccer expenses should have been made in the first place. David makes three points in support of his position: (

i) the order applies to a period in excess of three years; (ii) the retroactive award was not appropriately “balanced” against other overpayments; and (iii) no documentation for the expenses was provided. [ 45 ] Lori simply contends that her affidavit evidence, which the Chambers judge accepted, provided the necessary information for the findings made by the Chambers judge. Since there was a sufficient evidentiary basis provided to prove the expenses, this finding should not be overturned on appeal. [ 46 ] I have already addressed the issue of retroactive child support from 2004-2009.

The same rationale applies to the retroactive soccer expenses for those years. I cannot take issue with the finding of the Chambers judge that “the cost of soccer … falls within the definition of extraordinary cost”. [ 47 ] I have already found that the reference by the Chambers judge to “balance the latter years against the former” was in reference to retroactive 2011-2012 university expenses for Amanda with the overpayment already credited to David.

As a result, it would be inappropriate and not logical to adopt the suggestion by David that the reference to “balancing” meant the Chambers judge made a determination not to award an amount for retroactive soccer expenses. Admittedly, the Chambers judge could have been clearer when he made the “balancing” comment. I cannot fault either party for pursuing an

interpretation that is most favourable to their respective position. [ 48 ] With respect to the requirement for documentation, or lack of it, I note that s. 7 of the Guidelines specifically provides that “expenses may be estimated”. In my view, this wording provided the Chambers judge with the authority to make the finding that he did on the basis of the affidavit evidence. It was already mentioned that the Chambers judge implicitly preferred Lori’s evidence.

The soccer expenses had been identified in her affidavit and it was not unreasonable for the Chambers judge to make the finding he did. [ 49 ] David references decisions where courts have required receipts for s. 7 expenses. In Hughes v. Payson , 2011 SKQB 116 , 372 Sask. R. 97, the Court ordered that receipts be provided for special expenses for the previous year. This case deals with receipts for the period 2004-2009. It is not always easy to obtain and/or produce receipts for a period as far back as 2004. In Aboo v.

Mota , 2010 SKQB 368 , the Court found that there was insufficient evidence to award s. 7 expenses on the basis that the respondent in that matter had not divulged sufficient income. At para. 63, the trial judge noted that “

Section 7 expenses are to be prorated based on income. I am not satisfied that there is an adequate evidentiary base at this time to deal with the claim for s. 7 expenses.” It is obvious that the reference to s. 7 expenses in that case relates to the respondent’s failure to disclose her income in order to properly prorate the s. 7 expenses.

[50] In situations where the s. 7 expenses total several thousands of dollars it may be prudent to require receipts. However, in view ofthe use of the word “estimated” in s. 7 and the time period involved—2004-2009—I cannot find that the choice of the Chambers judge tomake a determination in the absence of receipts to be unreasonable. Accordingly, I would dismiss this ground of appeal. (

f) The Corrigendum [51] As previously noted, after written reasons were filed by the Chambers judge, Lori’s counsel wrote a four page letter to theQueen’s Bench Local Registrar requesting that she bring the letter to the attention of the Chambers judge. The salient portion of theletter reads as follows: “to reconvene a hearing to hear arguments from counsel with respect to the correct

interpretation of his judgment. It is also to hearargument with respect to my assertion that he made a clerical mistake or error arising from an accidental slip or omission. Alternatively,I make the assertion that the judgment requires amendment in a particular on which the Court should have but did not adjudicate or didnot clearly calculate the amount of retroactive

Section 7 expenses that must be paid.” [52] A copy of the letter was sent to David’s counsel. Instead of reconvening a hearing or at least requesting written submissions fromDavid’s counsel, the Chambers judge issued a corrigendum. The corrigendum fixed the amount of retroactive s. 7 soccer expenses at$11,600.00 with David’s proportionate share fixed at $8,004.00. The corrigendum also amended the original judgment to provide that s.3 and s. 7 support for Amanda will continue up to and including December 31, 2013, instead of the spring of 2013. [53] David objects to the issuance of the corrigendum on two grounds.

First, he submits that it changes the substance of the judgmentbeyond what is permitted by Rule 343A. Second, he submits that when the matter was raised by counsel for Lori via letter he wasdeprived of an opportunity to respond. [54] Lori submits that the changes were within the scope of Rule 343A and that David’s counsel was given an opportunity to respondto the letter but never took the initiative to do so. [55] Rule 343A reads as follows: 343A Any judgment or order may be amended: (

a) by the local registrar on written consent of the parties or by the court where there are clerical mistakes or errors arising from anaccidental slip or omission; or (

b) by the court where the judgment or order requires amendment in any particular on which the court should have but did notadjudicate or in any calculation arising out of a decision of the court. [56] In my view the reference to Rule 343A is somewhat of a red herring. This Court in Peltier v. Taylor, 2008 SKCA 151, 314 Sask.R. 211, at para. 9, stated that “judgment or order” within the meaning of the Rule refers to the formal judgment roll or orders issued withrespect to written reasons.

In Peltier, as in this case, the formal judgment roll had not been issued and the Chambers or trial judge wasnot functus officio. No one takes issue with this proposition. [57] The real issue lies with the corrigendum being granted without hearing from David. It was Lori’s clear intent that counsel forboth parties would make submissions before the Chambers judge prior to any change or amendment. In Nagy v. Laverdiere, 2005 SKCA39, this Court set aside an order that amended an original judgment since counsel for the father did not have an opportunity to makesubmissions.

This decision is more in line with the facts of this case. [58] Counsel for David cannot be faulted for not responding to the letter from Lori’s counsel to the Local Registrar. Firstly, counselfor David felt that it was inappropriate to write to the Court and had been advised by the Registry Office that this, in fact, was the case. The Registry Office advised David’s counsel that it was sure there was a directive to this effect but no one could put their hands on it.

Secondly, David’s counsel was correct to believe that nothing would happen until a further hearing was reconvened or at the very leastDavid would have been requested to provide written submissions in response to Lori’s letter prior to the Chambers judge making adecision. Thirdly, it was not unrealistic for David’s counsel to conclude that the failure to provide a quantum for the retroactive soccerexpenses was not inadvertent but part of the effort of the Chambers judge to “balance the latter years against the former years in anattempt to bring a fair resolution to this application”.

In any event, fairness requires that the appeal be allowed with respect to thequantum of the retroactive award for soccer expenses. David had and has the right to make submissions on this issue. The portion of theorder requiring David to pay $8,004.00 in retroactive soccer expenses is set aside. The Chambers judge shall reconvene a hearingrelating to retroactive soccer expenses. (

g) Child Support for Amanda beyond the 2012-2013 Academic Year [59] David abandoned this ground of appeal at the appeal hearing. (

h) Costs [60] The Chambers judge awarded costs to Lori fixed at $3,000.00 based upon the fact that she had been largely successful in theproceedings. David simply contends that the amount is not justified. [61] I need not spend much time on this issue. The Chambers judge has discretion in the award of costs. There has been no suggestionthat he did not exercise this discretion judicially. Accordingly, the ground of appeal is dismissed (see: Benson v. Benson (1994), (SK CA), 120 Sask. R. 17 (C.A.), at paras. 86-103).

VI. Cross-Appeal by Lori (

a) Failure of the Chambers Judge to Award Retroactive Child Support for 2010-2011 [ 62 ] The Chambers judge declined to award retroactive child support for 2010 and 2011.

The reason for doing so is contained in one sentence found in para. 48 of the judgment and reads as follows: 48 … I exclude the years 2010 and 2011 as the evidence is too complex and contradictory to clearly determine the fault or blameworthy conduct. … [ 63 ] Lori submits that the decision of the Chambers judge not to order retroactive support for 2010 and 2011 was an error since these years are after the date of effective notice and are inside the three year window from the date of formal notice; therefore, no blameworthy conduct is necessary for a retroactive award. [ 64 ] David claims that the reference of the Chambers judge to blameworthy conduct took place in the context of the factor weighing exercise to determine whether to award retroactive support at all for 2010 and 2011, not determining the earliest date from which retroactive support was available. [ 65 ] This ground of appeal poses a dilemma as there are two

interpretations that can be attributed to the reason for dismissal of this aspect of the claim. The arrears for the two years were clearly identified in the evidence: $7,248.00 for 2010 and $1,998.00 for 2011. [ 66 ] The reasons of the Supreme Court of Canada in D.B.S. are clear that blameworthiness is a factor in both the decision to order retroactive support and in setting the date from which retroactive support will be ordered. The lack of clear fault is the only reason that the Chambers judge gave for excluding 2010 and 2011 from the retroactive award.

If he considered blameworthiness a prerequisite to an award for those years, he was in error, since 2010 and 2011 are after the date of effective notice (2003 or 2004) and are within three years of the date of formal notice (2012).

If, on the other hand, he mentioned blameworthiness while weighing the four factors of the decision whether to make an award, his reasoning can be valid. [ 67 ] The decision to make a retroactive award in the first place was based largely on the fault of David since the children’s standard of living was not affected by David’s blameworthy conduct and the Chambers judge attributed some of the delay to Lori. It is therefore conceivable that blameworthiness could have been the deciding factor.

If the Chambers judge found that David’s fault in the dispute was reduced in 2010-2011, that fact could have altered his weighing of the four D.B.S. factors (since the others were given relatively little weight) and called for a decision against retroactive support in 2010-2011 despite the decision in favour of such an award for 2004-2009. [ 68 ] When making the retroactive support order, the Chambers judge excluded “the years 2010 and 2011 as the evidence is too complex and contradictory to clearly determine the fault or blameworthy conduct.” As counsel for Lori pointed out in oral argument, the facts regarding the parties’ income in those years are now clear.

The Chambers judge could, however, have excluded these years on the basis that a weighing of the D.B.S. factors resulted in a different outcome than when weighed from 2004-2009. [ 69 ] The Chambers judge was concerned with the conduct of both parties since David failed to provide the requested financial information and Lori delayed seeking relief.

As counsel for Lori pointed out in oral argument, this is somewhat difficult to reconcile with the clearly implicit acceptance of Lori’s claim that the delay resulted from David’s threats to drag the children into litigation. [ 70 ] It seems clear that both parties did not fully disclose their incomes to each other until after November 23, 2011, though the Chambers judge did not explicitly take note of this.

The Chambers judge attributed blameworthiness to David, which is probably supportable even if disclosure was nearly simultaneous since it probably would have been apparent to all parties that David’s income was increasing at a greater rate than Lori’s. [ 71 ] It may have also been open to the Chambers judge to attribute equal blameworthiness to the parties on the basis of non-disclosure. His distinction between the 2004-2009 and 2010-2011 periods, though, is puzzling.

The ongoing non-disclosure by both parties continued to occur, along with the repeated requests for disclosure by Lori. [ 72 ] It is possible that David’s apparent agreement to increases in support in line with Lori’s estimates (made without the benefit of income disclosure) in September of 2009 negated his blameworthiness after that.

Since the Chambers judge seems to accept that David was still underpaying, though, it is hard to imagine that his partial payment cancelled out his continued non-disclosure. [ 73 ] I am unable to find any other relevant events that would have shifted the relative blameworthiness of the parties near the beginning of 2010. If the Chambers judge relied on such a shift in denying a retroactive order for those years, as appears to be the case, he was in error. [ 74 ] A further factual complication is the lump sum payment made by David to make up for the 2011 shortfall.

The Chambers judge accepts that this payment occurred and seems to state that counsel had agreed that this would solve the dispute over the table amounts for 2011, but later he states that the parties agree that a shortfall of $1,998.00 remains for 2011. [ 75 ] In my view, the only way to solve the uncertainty is to allow the appeal and set aside the dismissal of the request for retroactive child support for 2010 and 2011. The appropriate remedy also poses somewhat of a dilemma. The Chambers judge noted that the affidavit evidence relating to these years was “too complex and contradictory”.

The option available to the Chambers judge was to refer this issue to pre-trial. At para. 2 of the judgment, the Chambers judge noted: 2 In the alternative, the petitioner sought to have these issues, or any of them, set over to a pre-trial conference for resolution. [ 76 ] The potential arrears for these two years totalled $9,246.00—not an insignificant amount. Lori should have the option to take this issue to pre-trial. The dismissal of this portion of the claim for retroactive child support will be set aside and in its place a direction that it be set for pre-trial.

Lori must exercise her right to proceed to pre-trial on this issue within three months from the date of this judgment

by providing written notice to David of her intent to do so. If she does not provide notice within this time period it will be understood that she has elected not to proceed with this issue. (

b) Reduction of Retroactive Child Support from 2004-2009 by One-Half [ 77 ] The Chambers judge fixed the arrears for the years 2004-2009 at $21,884.00. He ordered that David is obligated to pay one-half of this amount; $10,942.00 within 30 days. The reasons for reducing payment of the total arrears by one-half are set out in paras. 48 and 49 of the judgment and warrant repeating here: 48 … The shortfall for those years, that is 2004 to 2009 inclusive, is $21,884.00. The evidence indicates that the girls were not deprived of a reasonable standard of living during the same years.

Payment of that amount would represent somewhat of a windfall to the petitioner at this late date. Had the petitioner borrowed $21,884.00 in order to provide the children with the necessary standard of living, which sum borrowed was caused solely because of the respondent’s breach of contract, I would quickly award the full sum.

Considering the D.B.S. factors, it appears the children did not suffer in a material sense and that the father was in fact contributing in indirect ways but far short of what he was required to have paid. 49 In balancing the competing factors, the delay in bringing the application and enforcing her contractual remedy, versus the respondent’s breach of contract to make annual disclosures, I conclude that the respondent should pay to the petitioner one-half of that amount, a sum of $10,942.00 within 30 days of this judgment.

That sum of course is in addition to the respondent’s obligation to contribute to the girls’ education in the current and past academic years as previously ordered. [ 78 ] Lori claims that the reduction to one-half of the outstanding arrears was based on a finding that the full payment would constitute a hardship to David and that the Chambers judge erred by not considering the possibility of alleviating the hardship by ordering payment by instalments. [ 79 ] David submits that the Chambers judge reduced the award on consideration of the other D.B.S. factors, rather than (or in addition to) consideration of hardship. [ 80 ] The portion of D.B.S. which explains the application of “undue hardship” as a factor in the decision to award retroactive support is as follows: 114 While the Guidelines already detail the role of undue hardship in determining the quantum of a child support award, a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified. 115 There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not.

For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet .

On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not . Courts should be attentive to this fact. 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. [emphasis added] [ 81 ] When a retroactive award is being considered then courts may consider, in a general sense, the financial burden that would be placed on the payor (and his or her new family, if he or she has one) if a retroactive award were made. [ 82 ] Regarding the application of “undue hardship” when determining the quantum of a retroactive award, the Supreme Court of Canada stated: 127 While the Divorce Act provides courts with discretion in deciding whether or not a child support award should be ordered, the same cannot be said for the quantum of this award.

Both s. 15.1(3) for original orders, and s. 17(6.1) for variation orders, stipulate that a court making an order “shall do so in accordance with the applicable guidelines”. Therefore, so long as the date of retroactivity is not prior to May 1, 1997 — i.e., when the Guidelines came into force — the Guidelines must be followed in determining the quantum of support owed. … 128 That said, courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances.

Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended . There are two ways that the federal regime allows courts to affect the quantum of retroactive awards. 129 The first involves exercising the discretion that the Guidelines allow. Thus, the presence of undue hardship can yield a lesser award: see s. 10. As stated above, it will generally be easier to show that a retroactive award causes undue hardship than to show that a prospective one does. Further, the categories of undue hardship listed in the Guidelines are not closed: see s. 10(2) .

And in addition to situations of undue hardship, courts may exercise their discretion with respect to quantum in a variety of other circumstances under the Guidelines : see ss. 3(2) , 4 and 9 . 130 A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures. … Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [emphasis added]

[ 83 ] It is somewhat difficult to reconcile the statement that “the Guidelines must be followed” with the statement that “blind adherence to the amounts set out in the applicable Tables is not required”, unless this latter comment is taken to be a reference to the grant of discretion within the Guidelines themselves, the discretion regarding the decision to make a retroactive award, and the discretion in setting the date from which the retroactive support is to be paid. [ 84 ] Most courts that have used hardship as a factor when deciding whether to make a retroactive award have not considered the “broad consideration of hardship” at that stage to be governed by the relatively strict approach under s. 10 of the Guidelines .

I will refer to the two different structures of undue hardship analysis as the “broad approach” and the “strict approach”. [ 85 ] There are several decisions (though only one appellate decision) that clearly state that the broad approach, rather than the strict approach, is to be used at the decision stage, and many more that simply apply the broad approach at the decision stage without any analysis of which approach is to be used. For example, in Locke v.

Goulding , 2012 NLCA 8 , 318 Nfld. & P.E.I.R. 91, at para. 68 , the Court stated that “The hardship in D.B.S. is not necessarily of the same stringent standard of hardship as the undue hardship addressed by

section 10 of the Guidelines ”. [ 86 ] In a few cases the broad approach to hardship is used as a factor in reducing the time period for which retroactive support is ordered, which the Supreme Court of Canada appears to provide for in D.B.S . [ 87 ] After careful consideration, in my view, the approach to undue hardship as a factor in deciding whether to order that retroactive child support be paid is different from the regular approach to undue hardship (in determining the quantum of child support awards) under s. 10 of the Guidelines .

The method of determining quantum follows a strict formula in cases of both prospective and retroactive support. However, the strict formula is not required when considering undue hardship as a factor in deciding whether to make an order for retroactive support. The factors to be considered in such a situation seem to be similar to those in s. 10 , with an added emphasis on fairness and the financial burden on the payor parent. [ 88 ] I would not give effect to this ground of appeal. I have no doubt that the Chambers judge formulated his reasoning with “broad consideration of hardship” in mind.

He fashioned his order in a way “that minimizes hardship” to the payor and “fits the circumstances” that were at play. Admittedly, he could have fashioned his order in a different way such as “altering the time period that the retroactive award captures”. Nonetheless, his reasons indicate that he balanced the competing factors and properly utilized his discretion in concluding that David pay one-half of the retroactive child support. VII. CONCLUSION [ 89 ] The appeal is dismissed except for three grounds. The first ground is with respect to the tuition tax credits.

Since Lori has been claiming these credits, the parties are required to share in accordance with the direction set out in para. 24 of these reasons. The second relates to the overpayment of $2,858.80 by David toward Amanda’s 2011-12 university expenses. The overpayment is to be dealt with as set out in para. 42 of these reasons. The third is with respect to the Corrigendum and the award of $8,004.00 in retroactive soccer expenses.

This matter is returned to the Chambers judge for determination upon submissions made by both Lori and David. [ 90 ] The cross-appeal is allowed to the extent that the order dismissing the claim for retroactive child support for 2010 and 2011 is set aside. In its place will be a direction that this matter proceed to pre-trial with the caveat attached as set out in para. 76 of these reasons. [ 91 ] Since success has been divided, there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 29 th day of August, A.D. 2013. “Herauf J.A.” Herauf J.A.

I concur “Ottenbreit J.A.” Ottenbreit J.A. I concur “Caldwell J.A.” Caldwell J.A.