Docket: CACV2451 Pamela Susan Klette Appellant - v. -, 2014 SKCA 122

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 122 Date: 2014-11-20 Between: Docket: CACV2451 Pamela Susan Klette Appellant - and - David Alexander Leland Respondent Coram: Lane, Klebuc, and Caldwell JJ.A. Counsel: Richard Gabruch for the Appellant Jay Watson for the Respondent Appeal: From: 2013 SKQB 277 Heard: January 30, 2014 Disposition: Appeal dismissed Written Reasons: November 20, 2014 By: The Honourable Mr. Justice Klebuc In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Caldwell Klebuc J.A. I. Introduction

[ 1 ] Ms. Klette, the appellant, appeals from the decision of the Queen’s Bench judge in Chambers ( Leland v Klette , 2013 SKQB 277 , 426 Sask R 104 (FD) [ Leland ] ) on the grounds that the learned Chamber judge erred in ordering Mr. Leland, the respondent, to pay child support for his daughter Emma, in an amount significantly less than what is specified in the table forming the Federal Child Support Guidelines , SOR/97-175 [the Guidelines ] for a parent having an income comparable to Mr. Leland’s income [the Table Amount]. [ 2 ] Ms. Klette maintains the Chamber judge also erred by not ordering Mr.

Leland to pay a distinct amount for Emma’s s. 7 extraordinary expenses. Mr. Leland submits the Chamber judge correctly interpreted and applied the provisions of s. 3(2) of the Guidelines and the child support order she made covers his daughter’s needs. [ 3 ] Based on the reasons herein provided, I would dismiss Ms. Klette’s appeal without costs for either party. II. Background [ 4 ] The parties were married in 1986, separated in 2007, and divorced in 2009. Two children were born to the parties, Adam and Emma. This appeal only concerns Emma.

Emma was born with Down’s syndrome and currently exhibits autistic behaviours. She is socially withdrawn and resides with Ms. Klette. Emma requires 24-hour supervision, which involves caregivers when Ms. Klette is away from her home for business or personal reasons. [ 5 ] The relevant events are described in the Chamber judge’s reasons for judgment dated July 19, 2013, and need not be reviewed. I would note that an earlier child support order dated December 14, 2009 [the 2009 Support Order], required Mr. Leland to pay child support for Emma in the amount of $2,500 per month (based on his and Ms.

Klette’s respective incomes at the time) and established a shared custody and parenting arrangement pursuant to which Emma resided with one parent for one week and the other parent the next week. [ 6 ] Mr. Leland remarried in April of 2010 and thereafter was not prepared to continue with the 2009 Support Order custody arrangement. This led to an order dated August 29, 2012, that required Ms. Klette to assume sole custody of Emma, with Mr.

Leland having specified access to Emma every second week. [ 7 ] The changes in custody arrangements and the respective incomes of the parties resulted in a variation application, which is the subject of this appeal. III. The Decision Under Appeal [ 8 ] By an application dated October 13, 2011, Ms. Klette sought, inter alia , an order varying the 2009 Support Order on the grounds that Mr. Leland had unilaterally changed the shared custody arrangement for Emma and that his income had substantially increased, as had the cost of Emma’s needs.

In her application, she sought an increase in child support to $7,526 per month, being the Table Amount payable by a parent having an income equivalent to Mr. Leland’s income, as of the date of her application. She also sought an additional order requiring Mr. Leland to pay for Emma’s caregiver costs of $2,946 per month as a distinct extraordinary s. 7 expense. [ 9 ] In support of her application, Ms. Klette filed two affidavits. In the first, she deposed the following: 38. THAT although Emma is 18 years old and is considered an adult, she requires constant supervision and will never be able to support herself.

She is capable of doing many things like making herself a sandwich, getting dressed, bathrooming with some help, and assisting with minor household chores. Emma is unable to take a bus by herself, has difficulty communicating with people due to very limited verbal skills, and she cannot answer the door or the telephone. Emma cannot use household appliances independently. More recently her behaviour has changed and I have been challenged trying to attend to her needs every day as compared to the alternating weeks that had been the norm previously.

I have a caregiver who assists when needed and we manage well; Emma, however, does not generally do well with changes to her routine and I am left to manage the changes without the Petitioner’s help. He has not contacted Emma for approximately three months save for one brief telephone call recently. I fear that his small efforts at reintegration in her life cause her distress; without a concrete plan and routine

schedule it is difficult for her to cope – this then puts additional strain on her, her caregivers, teachers, and me. 39. THAT the Petitioner’s actions have caused me to have to scramble to find new caregivers for Emma; this requires her to get used to dealing with new people again – which can be difficult for her. Even with caregivers for Emma I am having difficulty meeting all of my obligations at work and returning home in time to relieve the caregiver; I used to be able to work more during the weeks when Emma was with the Petitioner.

As a result of the Petitioner’s unilateral changes in the custody/parenting arrangement I have had to cancel plans and will rarely have any free time or a break from my responsibilities – and even then only when I pay a caregiver. At times it is a daunting task to balance ownership of a retail store, Emma’s immense needs, Adam’s needs, interaction with the Petitioner, and providing care for my ailing mother. I have found support in friends and caregivers but am financially strapped and tired. I need the financial assistance to engage additional caregivers. 40.

THAT for me to have Emma full time puts huge demands on me emotionally, physically, and financially. I require a nanny to allow me to attend to my business during the day and have some respite time. Since the change in Emma’s living arrangements I have been required to pay caregiver costs at a minimum in the amount of $3,171.00 and the ongoing cost will be approximately $4,000.00 per month. I cannot afford to pay these costs with my current income but also cannot function without this assistance. (Appeal Book pp. 26–27) [ 10 ] In the financial statements Ms.

Klette filed with the court, she stated the cost of caregiver services for Emma totalled $42,000 per year. She also provided the following budget detailing Emma’s monthly expenses, excluding the amount paid to caregivers:

Need Current expense Food(including restaurants) $900 Clothing 250Housing(portion of the mortgage, taxes and utilities) 1,500 Transportation 300Care providers(respite only: three hours three times per week) 800 Medication —Health Care 170Entertainment (bowling, mini golf, movies, etc.) 900 Activities(unidentified) 75 Other(money for activities while with caregivers) 400 Total: $5,295 (Leland para. 50) [11] In his affidavit dated November 24, 2011, Mr. Leland acknowledged that Ms. Klette had correctly stated his current income buttook issue with her budget.

He deposed that the cost of food for Emma should not exceed $500 per month, her clothing allowance shouldonly be $50 per month, her entertainment allowance not more than $100 per month and no amount was required to cover transportationcosts. [12] After a comprehensive review of the evidence related to the expenses forming part of Ms.

Klette’s budget for Emma, theChamber judge concluded the following: [67] While I am cognizant of the frailty and inadequacy of child budgets, based on all of the evidence, I am satisfied the total amountbudgeted by Pamela for Emma is so high as to exceed the generous ambit within which reasonable disagreement is possible.

I find, basedon the evidence, that Emma’s needs are $7,120 per month, calculated as follows: Food(including restaurants) $650.00 Clothing $250.00Housing(including mortgage, taxes, insurance and utilities) $1,000.00 Transportation $150.00Respite care $800.00Child care for employment purposes $3,100.00Medication —Health Care $170.00Entertainment (including activities, camp, supplies, and upgrading TV, etc.) $500.00 Miscellaneous (school fees, vacation, etc.) $500.00 Total: $7,120.00 [13] At that time, Emma also received financial assistance of $1,249 per month through the Saskatchewan Assured Income forDisability program (SAID).

The Chamber judge applied the SAID payment on the $7,120 per month budget and thereby reducedEmma’s child support requirements to $5,871 per month. [14] The Chamber judge then calculated the Table Amount based on Mr. Leland’s income and found the stipulated amount to be$8,189 per month, excluding caregiver costs.

Thereafter, she considered whether the Table Amount was inappropriate, having regard tothe provisions of the Guidelines and the decisions in Francis v Baker, (SCC), [1999] 3 SCR 250 [Francis], Hagen vRankin, 2002 SKCA 13, 213 Sask R 257 [Hagen] and Geran v Geran, 2011 SKCA 55, 371 Sask R 233. [15] At paras. 85 and 86 of her reasons, the Chamber judge articulated the basis on which she concluded the Table Amount wasinappropriate and the amount of child support she considered to be appropriate having regard to Emma’s needs: Appropriate support [85] Having regard to Emma’s condition, means, needs and other circumstances and the financial ability of both David and Pamela tocontribute to Emma’s support, I find child support of $5,450 per month is appropriate.

That level of support is commensurate … withDavid’s proportionate share of Emma’s total needs (including child care), based on the parties’ joint incomes. [86] Having found an appropriate level of child support pursuant to s. 3(2)(b), it is unnecessary to embark on a s. 4(

b) analysis.Likewise, no s. 7 add-ons are appropriate as those expenses are included in the global order. Ms. Klette now appeals from this order. IV. Relevant Statutory Provisions

[16] The provisions of s. 3 of the Guidelines are of particular significance to the issues in this appeal. It reads as follows: Presumptive rule 3.

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of 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. Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority orover, the amount of the child support order is (

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

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [17] Although s. 4(b)(ii) of the Guidelines may not directly apply to a child over the age of majority, the analytical approach it callsfor applies equally to the assessment of appropriate support for children over the age of majority (regardless of whether the parent fromwhom child support is sought earns over $150,000 per year). I start with a review of the analytical approach applicable to s. 4(b)(ii). [18]

Section 4 reads as follows: Incomes over $150,000 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 … (

b) if the court considers that amount to be inappropriate, … (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition,means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute tothe support of the children; … [19] The Supreme Court’s decision in Francis is the leading authority concerning the analytical approach applicable to s. 4(b)(ii) ofthe Guidelines.

At paras. 43 and 44 of Francis, Bastarache J. articulated the analysis as follows: 43 The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from thisamount to testify or call evidence. No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a partymay not be able to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question theevidence of the opposing party.

Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that theapplicable Table amount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, (BC SC), [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departingfrom the Guideline figures. 44 While there must be an “articulable reason” for displacing the Guideline figures (see, for example, Plester v.

Plester (1998), (BC SC), 56 B.C.L.R. (3d) 352 (S.C.), at para. 153), relevant factors will, of course, differ from case to case. I note,however, my agreement with MacKenzie J. in Plester, supra, as well as Cameron J.A. in Dergousoff, supra, [ (SKCA), 177 Sask R 64] that the factors relevant to determining appropriateness which Parliament expressly listed in s. 4(b)(ii), that is, thecondition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to theinitial determination of inappropriateness.

Only after examining all of the circumstances of the case, including the factors expresslylisted in s. 4(b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards. [20] This Court applied Francis in Gould v Gould, 2013 SKCA 34, 414 Sask R 30 [Gould] and also approved the

summary of theprinciples applicable to s. 4(b), which were enumerated in Ewing v Ewing, 2009 ABCA 227, 457 AR 238. [21] In Hagen, this Court confirmed that the reasoning applicable in a s. 4(b)(ii) analysis is also substantially applicable to a s. 3(2)(

b) analysis. Cameron J.A., speaking for this Court, stated the following: [13] We went on to say that this presumption – that the amount specified by the tables constitutes the amount the paying parent mustpay to fulfil his or her statutory obligation – is partially rebuttable under

section 4 of the Guidelines, having regard for the provisions ofsubsection 4(b), especially those of clause (ii) thereof. These provisions empower the court, if it considers the table amount attributableto the income in excess of $150,000 to be “inappropriate,” to settle on an “appropriate” amount, one that is suited to the purpose forwhich it is intended, given the actual needs of the children and the respective means of the parents. [14] The same reasoning applies in relation to subsection 3(2)(

b) of the Guidelines. Hence, the presumption of subsection 3(1)(a),

which is engaged by subsection 3(2)(a), is rebuttable, having regard for the actual needs of the children and respective means of theparents. See also McConnell v McConnell, 2002 SKQB 72, 215 Sask R 195. V. Jurisdiction and Standard of Review [22] The appellant’s right to appeal arises pursuant to s. 7(2) of The Court of Appeal Act, 2000, SS 2000, c C-42.1, as amended.Cameron J.A. aptly described the scope of an appeal under s. 7(2) in Valley Beef Cooperative Ltd. v Farm Credit Corporation, 2002SKCA 100, 223 Sask R 236 [Valley Beef].

The applicable standards of review are articulated in H.L. v Canada (Attorney General), 2005SCC 25, [2005] 1 SCR 401; Hickey v Hickey, (SCC), [1999] 2 SCR 518 [Hickey]; Valley Beef; Great SandhillsTerminal Marketing Centre Ltd. v J-Sons Inc., 2008 SKCA 16, 307 Sask R 295; and Ethier v Skrudland, 2011 SKCA 17, 366 Sask R203. While Hickey calls for significant deference to be given to trial judges in relation to support orders, it provides that appellate courts“must intervene when there is a material error, serious misapprehension of the evidence, or an error in law” (para. 12). VI.

Analysis [23] The specific issues arising out of the submissions by the parties and the evidence are as follows: A. Did the Chamber judge apply the standard of proof required to rebut the presumptive rule that the Table Amountapplies to child support payable under s. 3(2)(b)? B. If the answer to the first issue is “Yes,” did the Chamber judge err in holding that the Table Amount wasinappropriate and a child support order of $5,450 per month was appropriate? C. Did the Chamber judge err by not ordering Mr.

Leland to pay a proportionate share of Emma’s s. 7 extraordinaryexpenses as a distinct amount? [24] I turn to the first issue. A. Did the Chamber judge apply the standard of proof required to rebut the presumptive rule that the Table Amount applies to childsupport payable under s. 3(2)(b)? [25] Ms. Klette maintains the Chamber judge erred in stating the threshold for rebutting the presumption in favour of the TableAmount will be met if the “evidence, in its entirety, [is] sufficient to raise a concern that the Table amount is inappropriate” (para. 32). InMs.

Klette’s view, evidence that merely raises a concern involves a far lower threshold than the threshold of “clear and compelling”evidence required to depart from the Table Amount, as expressed in Shiels v Shiels (1997), (BC SC), 29 BCLR (3d)193 (QL) (BC SC) at para 27 [Shiels], and approved in Francis, and applied by this Court in Gould. [26] As previously noted, s. 3(2)(

a) of the Guidelines provides that the Table Amount applies to a child of or over the age of majorityin the same manner as if the child was under the age of majority. Section 3(2)(

b) modifies s. 3(2)(

a) to the extent that it provides if acourt considers the Table Amount to be inappropriate, the court may determine an amount it considers appropriate, “having regard to thecondition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of thechild” (s. 3(2)(

b) of the Guidelines). The analytical approach articulated by Bastarache J. in Francis is applicable when assessing childsupport pursuant to s. 3(2)(b), even if the payor’s income is less than $150,000 per year. [27] Thus, in order to assess the merit of Ms. Klette’s submission, the Chamber judge’s reference to the evidence being “sufficient toraise a concern” must be read in context, having regard for the evidentiary principles articulated in Francis. As to the latter, there is nodoubt the Chamber judge correctly identified and interpreted the applicable law, which she summarized, as follows: (

i) That in enacting s. 3 of the Guidelines, Parliament intended that there would be a presumption in favour of the Table amount ofchild support. (See: Francis v. Baker, supra, at para. 42); (ii) The party seeking to deviate from Table support has the onus of rebutting the presumption. (See: Francis v. Baker, supra, atpara. 42); (iii) There must be clear and compelling evidence for departing from the Table amount. (See: Francis v. Baker, supra, at para. 43); (iv) The test for deviating from the Table amount is that the evidence, in its entirety, must be sufficient to raise a concern that theTable amount is inappropriate. (See: Francis v. Baker, supra, at para. 43); (

v) The relevant factors to be considered in determining both whether the Guideline approach is “inappropriate” and the“appropriate” level of support, are the condition, means, needs and other circumstances of the child for whom support is sought and thefinancial ability of both parents to contribute to the support of that child. (See: Francis v. Baker, supra, at para. 44); (vi) To determine “appropriateness,” the Court must have before it sufficient evidence.

Trial judges have the discretion to determineon a case by case basis whether a child expense budget is required and they have the power to order it. (See: Francis v. Baker, supra, atpara. 45); (vii) The test for whether expenses are unreasonable is whether those expenses are so high as to “exceed the generous ambit withinwhich reasonable disagreement is possible.” (See: Francis v. Baker, supra, at para. 49); and (viii) Where the presumption of Table support is rebutted, child support can then be set above or below the Table amount. (See:Francis v. Baker, supra, at para. 42)

( Leland at para. 32 ) [ 28 ] As to the former point, i.e., the context in which she made her decision, it is clear the Chamber judge had full regard for the factors to be considered in determining both whether the Guidelines approach was “inappropriate” and the “appropriate” level of support for Emma. She examined the available evidence of Emma’s “condition, means, needs and other circumstances,” noting Emma would never live independently, identifying the assistance Emma received through SAID, analyzing each line item expense set forth by Ms.

Klette in her proposed budget, examining the financial statements of the parties, assessing the cost of childcare and health-related expenses, etc. In doing so, the Chamber judge reached specific and well-supported conclusions that some of the expenses Ms. Klette had budgeted for Emma were “unreasonable” or unsupported by the evidence. She noted too that some of Mr. Leland’s criticisms of the items budgeted by Ms.

Klette were “unreasonable.” The Chamber judge concluded her analysis as follows: [67] While I am cognizant of the frailty and inadequacy of child budgets, based on all of the evidence, I am satisfied the total amount budgeted by Pamela for Emma is so high as to exceed the generous ambit within which reasonable disagreement is possible. I find, based on the evidence, that Emma’s needs are $7,120 per month … . [Table omitted] Following this, the Chamber judge examined the financial ability of the parties to contribute to the support of their child.

She included in this analysis the SAID amount Emma received. [ 29 ] Importantly, when it came time to actually address the threshold question of whether the Table Amount was “inappropriate,” she gave four compelling reasons, based on the evidence she had just reviewed, as to why it was inappropriate: [84] Taking into account Emma’s means, needs, condition and other circumstances and both Pamela and David’s financial ability to provide support for Emma, I find the Guideline approach is inappropriate for the following reasons: (

i) Emma’s disability benefits should be taken into account in setting a fair level of support; (ii) David’s Table support far exceeds Emma’s reasonable needs; (iii) Emma’s needs include significant child care costs for both employment and respite purposes; and (iv) The child care costs relating to Pamela’s employment are difficult to determine and separate from her respite care costs.

In order to reduce conflict between the parties, a global order is preferable. [ 30 ] From this it is clear that the Chamber judge addressed the threshold issue by determining that there was sufficient clear and compelling evidence to displace the presumption that the Table Amount was appropriate. Indeed, the first two reasons she gave are each alone sufficient to rebut the presumption. As such, her

summary of the evidentiary burden and her reasoning throughout her judgment satisfies me that the Chamber judge correctly interpreted and applied the evidentiary burden contemplated by the Guidelines . Consequently, the answer to the first issue is “Yes.” [ 31 ] That said, I turn to the next issue. B. If the answer to the first issue is “Yes,” did the Chamber judge err in holding that the Table Amount was inappropriate and a child support order of $5,450 per month was appropriate? [ 32 ] Ms.

Klette argued the Chamber judge erred in two respects in her assessment: first, she failed to apply the Table Amount in the absence of clear and compelling evidence that it was inappropriate; and second, she focused her attention on the projected budget for Emma and in so doing failed to adequately consider the condition, means, needs and circumstances of Emma, and the financial ability of Mr. Leland to provide Emma with an appropriate level of care. [ 33 ] Although Mr.

Leland provided limited evidence supporting his position that the Table Amount was in appropriate, the Chamber judge was obligated to determine whether the Table Amount was inappropriate based on the whole of the evidence before her and, if necessary, to determine an appropriate amount of child support based on that evidence. [ 34 ] Based on the affidavits of Ms. Klette, the financial statements prepared by her, her proposed child support budget, and the affidavit of Mr.

Leland, the Chamber judge concluded the Table Amount was inappropriate and assessed child support based on her assessment of Emma’s condition, means, needs and other circumstances. As previously mentioned, she applied the $1,249 per month Emma received from SAID towards Emma’s needs and thereafter made a global support order requiring Mr.

Leland to pay child support for Emma of $5,450 per month. [ 35 ] The applicable standard of review directs this Court to give significant deference to support orders made by trial courts in the absence of a material error, serious misapprehension of the evidence, or an error in law. In my review of the evidence, the submissions by the parties and the Chamber judge’s reasons for judgment, I found no material error, misapprehension of the evidence or an error in law that would entitle this Court to grant Ms.

Klette’s appeal or to vary the subject child support order. [ 36 ] With respect to the SAID payments Emma receives, I find the Chamber judge did not err in law by deducting those payments from the total amount of Emma’s expenses ( see Leland at paras. 80 and 81 ). The SAID payments are clearly intended to be used for Emma’s accommodations and personal needs: see The Saskatchewan Assured Income for Disability Regulations , RRS c S-8 Reg 9. The Chamber judge therefore properly took them into account in establishing a fair level of support for Emma. C. Did the Chamber judge err by not ordering Mr.

Leland to pay a proportionate share of Emma’s s. 7 extraordinary expenses as a distinct amount?

[ 37 ] Ms. Klette also maintained that the Chamber judge erred by including Emma’s extraordinary expenses in a global support order rather than assessing those expenses as a separate s. 7 item. In my view, the Chamber judge did not err in law by doing so. Unlike s. 4( b ) (ii) of the Guidelines , s. 3(2)(

b) does not contemplate a court determining s. 7 expenses as a separate and additional support obligation. VII. Conclusion [ 38 ] I would dismiss the appeal without costs for either party. DATED at the City of Regina, in the Province of Saskatchewan, this 20th day of November, 2014. “Klebuc J.A.” Klebuc J.A. I concur. “Lane J.A.” Lane J.A. I concur. “Caldwell J.A.” Caldwell J.A.