Wongstedt v Wongstedt, 2017 SKCA 100

Court of Appeal for Saskatchewan Docket: CACV2985 Citation: Wongstedt v Wongstedt , 2017 SKCA 100 Date: 2017-11-16 Between: Mark Wongstedt Appellant (Petitioner) And Joanna Wongstedt Respondent (Respondent) Before: Caldwell, Herauf and Whitmore JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Herauf The Honourable Mr. Justice Whitmore On Appeal From: DIV 666 of 2015, Saskatoon Appeal Heard: March 20, 2017 Counsel: Mark R. Vanstone for the Appellant Bonnie L. Reddekopp for the Respondent Caldwell J.A. I.

Introduction [ 1 ] Mark Wongstedt appeals against an interim order addressing two family law applications brought in the Court of Queen’s Bench. In his judgment dated October 17, 2016 (corrigendum dated November 4, 2016), the Chambers judge granted a divorce and addressed various claims of the parties, ultimately awarding interim spousal support, interim child support, arrears of child support and costs. He adjourned ancillary relief to be addressed at trial. [ 2 ] Having reviewed the Chambers judge’s decision, the evidence and the allegations of error made by Mr.

Wongstedt, I find the award of interim spousal support must be overturned. Further, I would award fixed costs of $500 to Mr. Wongstedt in respect of his successful objections to affidavit evidence tendered by Joanna Wongstedt. I would dismiss all other aspects of this appeal. I would award $1,500 in costs to Mr. Wongstedt. II. Procedural background [ 3 ] The parties married on March 20, 1999, and separated on May 11, 2005, following which Mr. Wongstedt filed for divorce and Ms. Wongstedt filed a counter-petition for divorce, child support, spousal support and an equal division of family property.

An application was heard on June 10, 2005, and resulted in an interim order for shared parenting that also directed the proceedings to pre- trial [June 2005 Order]. [ 4 ] A number of interim orders followed and, by consent, the parties divided their family property in April 2006 [April 2006 Order]. The April 2006 Order also continued the shared parenting arrangement, ordering that it be reviewed on or after December 1, 2006, but relieved Mr. Wongstedt of his obligation to pay child support until November 30, 2006. Then, under a June 23, 2006, order [June 2006 Order], the court found Mr.

Wongstedt had not had the children in his care for a period sufficient to qualify for set-off under s. 9 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. The court found his income was $78,064 and, under s. 3 of the Guidelines , fixed his child support obligation at $964 per month, commencing January 1, 2006. The proceedings fell into abeyance after September 2006, leaving a nine-year gap in the court record. [ 5 ] The parties agree that, between 2012 and 2013, they had reconciled for about a year. However, in October 2015, Mr.

Wongstedt re-filed for divorce and for primary residence of the children. Ms. Wongstedt counter-petitioned for divorce, shared parenting, as well as retroactive and ongoing child and spousal support. The two proceedings (2005 and 2015) were consolidated on October 27, 2015, by consent order. [ 6 ] Then, under a fiat dated November 23, 2015 (order dated December 24, 2015) [November 2015 Fiat], the court ordered a shared-parenting arrangement and ordered Mr. Wongstedt to pay child support, but remitted the issues of child support arrears and arrears of s. 7 expenses to trial.

The question of interim spousal support had not been before the court. As to child support, although his 2014 tax return disclosed $184,474 in income, by reason of “uncertainty of certain portions [of income] on an ongoing basis and expenses the petitioner finds necessary for his employment”, the court opted to use $160,000 as Mr. Wongstedt’s income for that year. The court determined Ms. Wongstedt had earned $34,100 in 2014. On this basis, employing a straight set-off under s. 9 of the Guidelines , the court found Mr. Wongstedt’s child support obligation would be $2,105 per month. [ 7 ] The court accepted Ms.

Wongstedt’s representations, made at that hearing, to the effect that Mr. Wongstedt’s monthly child

support payments could be reduced by $429, as she was receiving that amount monthly in the form of the child tax benefit. Given this concession, the court reduced Mr. Wongstedt’s monthly obligation to $1,676. This proved to be unfortunate because the Income Tax Act , RSC 1985, c 1 (5th Supp), does not permit parents in a shared-parenting arrangement to allocate the child tax benefit in this manner. [ 8 ] Indeed, just prior to the November 2015 Fiat, CRA had advised Ms.

Wongstedt by letter dated November 19, 2015, that she had been randomly selected for a review of her eligibility to receive the child tax benefit, which she seems to have been receiving since the June 2005 Order. In her affidavit of August 5, 2016, Ms. Wongstedt averred she had advised Mr. Wongstedt on December 8, 2015, of this review, asserting he was, by reason of it, no longer eligible for the $429 monthly reduction of his child support obligations set out in the November 2015 Fiat. Notably, Ms. Wongstedt states she did this before the order had been taken out on that Fiat . On March 18, 2016, CRA notified Ms.

Wongstedt that she had been reassessed as receiving a child tax benefit overpayment dating back to 2013 of $13,359 by reason that “you share custody of one or more children with another person.” The notice further advised that her future Canada child tax benefit would be reduced by 50% (from $381.06 to $190.53 monthly) until she had fully repaid the overpayment. Notwithstanding the content of these notices and this sequence of events, Ms. Wongstedt said in her affidavit of August 5, 2016, that Mr.

Wongstedt had been angry about being ordered to pay child support and had contacted CRA seeking the child tax credit for himself, thereby prompting the CRA review. [ 9 ] Mr. Wongstedt did not make any child support payments from January 2016 to and including April 2016. The Maintenance Enforcement Office of the Ministry of Justice [MEO] began attaching Mr. Wongstedt’s wages in May 2016, by which time arrears of $10,525 had accumulated. Also in May 2016, Ms. Wongstedt served Mr. Wongstedt with a notice to file income information, with which he failed to comply. Ms.

Wongstedt then submitted three more requests for income information to Mr. Wongstedt, all of which went unanswered. [ 10 ] In August 2016, Ms. Wongstedt filed an application seeking $26,459 in arrears of child support (or that same amount as spousal support awarded on a lump-sum basis), disclosure of Mr.

Wongstedt’s 2015 and 2016 income information, imputation of $184,777 in income to him, $2,487 monthly for child support, $185 in one-time s. 7 expense reimbursement, $2,437 monthly in spousal support, several orders under s. 6 of The Children’s Law Act, 1997 , SS 1997, c C-8.2, an order directing the parties to attend high- conflict mediation, and $5,040 in costs. [ 11 ] In his concurrent application, Mr. Wongstedt sought a divorce and to vary his monthly child support obligations under the November 2015 Fiat to $1,024, based on a change in his income.

He sought to reduce the arrears of child support recorded at the MEO to $3,779 and that same amount in costs. Mr. Wongstedt also sought the dismissal of the interim relief sought by Ms. Wongstedt. [ 12 ] Both parties filed affidavits and reply affidavits. Mr. Wongstedt filed two notices of objection to Ms. Wongstedt’s affidavits. III. Chambers decision [ 13 ] In his judgment (dated October 17, 2016), the Chambers judge ordered Mr.

Wongstedt to pay: (a) $3,619 per month interim child support; (b) 88% of s. 7 expenses; (c) $28,620 interim child support arrears (before credit for amounts paid through MEO); (d) $14,000 in lump-sum spousal support; and (e) $4,000 in costs. The Chambers judge granted the divorce application, but adjourned ancillary matters sine die to be resolved at a pre-trial or trial. Last, he directed the parties to attend high-conflict mediation. [ 14 ] Although Mr.

Wongstedt had previously filed his 2012, 2013 and 2014 income tax returns with the court, he advised in his Financial Statement that he had not filed his 2015 income tax return “but will file it with the Court promptly upon completion.” In its place, he filed a T4 Statement of remuneration paid for tax year 2015, which disclosed employment income of $169,912 (box 14), taxable allowances and benefits of $22,933 (box 40), and employment commissions of $67,042 (box 42). The T4 also stated: “Amounts in boxes 30, 32, 34, 36, 38, 40, and 86 are already included in box 14.” In respect of tax year 2016, Mr.

Wongstedt anticipated his 2016 adjusted annual income, based on a letter provided by his employer, would be $112,716, with annual expenses of $263,801, leaving a deficit of $151,085. [ 15 ] Upon assessing this evidence, the Chambers judge rejected the finding under the November 2015 Fiat that Mr. Wongstedt had earned $184,474 in 2014. The Chambers judge instead concluded Mr.

Wongstedt had earned $303,345 in that year by adding $23,811 in taxable benefits and $90,059 in employment commissions to $184,474 of employment income, and accounting for a wage reassessment of approximately $5,000. [ 16 ] The Chambers judge labelled Mr. Wongstedt’s estimate of his 2016 income “not only inappropriate, it is pure speculation if it has no closer relationship to the truth than his evidence on 2014 and 2015 income.” Noting the 2015 T4 was the only income information from 2015 before the court and that Mr.

Wongstedt might have earned additional income in 2015 under T5 slips, the Chambers judge ordered him to provide his 2015 income tax return within 14 days “to substantiate that all of his income is in fact shown on the one T4 slip submitted to the court on August 29, 2016.” [ 17 ] Nonetheless, the Chambers judge proceeded to assess Mr. Wongstedt’s 2015 income by adding $67,042 in commission income and $22,933 of taxable allowances and benefits to the employment income of $169,912, as stated in his 2015 T4, to arrive at an imputed income of $259,886. He found Ms. Wongstedt had earned $34,399 in 2015.

The Chambers judge used these amounts to

calculate the measure of Mr. Wongstedt’s legal obligations to provide child support, adjusting his payments to $3,619 per month after set-off under s. 9 of the Guidelines , effective June 1, 2016. The Chambers judge then stated that, if Mr. Wongstedt’s 2015 income tax return shows additional income, the amount of child support payable would be adjusted accordingly, either by the parties or by him. [ 18 ] However, very shortly after the Chambers judge issued his decision, Mr. Wongstedt wrote to the Court pointing out an error in the Chambers judge’s reasons: ...

We provide this letter pursuant to Rule 10-10 (QBR) on behalf of our client, the Petitioner, Mr. Mark Wongstedt, requesting very sincerely and with the greatest of respect, that the recent Fiat , issued October 17, 2016, be revisited with view to amendment, for the reasons that follow. We suggest that adding two sub-categories of our client’s income back into his income resulted in a miscalculation of arrears and ongoing maintenance in excess of Table mandated amounts.

Our client has raised concerns that both his 2015 employment income (as set out in Box 14 of his 2015 T4, attached to his Financial Statement filed with the Court on September 19, 2016), as well as his 2014 employment income (as set out at Line 101 of his 2014 income tax return, filed with the Court on November 6, 2015), already include both the commissions he earned, and the taxable allowances and benefits he received, in those years. This amounts to a double-counting of those two sources of income, attributing additional income to Mr.

Wongstedt that he never received, which we would submit would not be the intended result. The attached documents, provided by the Canada Revenue Agency, and available to the public on their website, explain that both employment commissions and taxable benefits are amounts already included in employment income in Box 14 of the T4, and on Line 101 of the T1 General. Therefore, with respect, we would further submit that the incomes for 2014 and 2015 which ought to have been used are $184,474.63 and $169,912.42, respectively.

In light of this information, as well as documentation provided by the Petitioner’s employer, as filed in his September 19, 2016 Financial Statement, we would also respectfully submit that the level of income anticipated for the Petitioner for 2016 of $112,716.00 is not an inappropriate amount. As such, we ask for review and amendment of the Fiat if appropriate with respect to the assessment of the Petitioner’s income, as set out in paragraphs 12 through 23 of the recent decision dated October 17, 2016. [ 19 ] In consequence of this, the Chambers judge issued a flysheet fiat the next day, observing Mr.

Wongstedt “still has not filed his 2015 Income Tax Return and notice of assessment. The Court requires this to be filed before considering any of the issues raised.” A week later, Mr. Wongstedt filed a copy of his 2015 income tax return with the court. [ 20 ] On November 4, 2016, the Chambers judge issued a corrigendum to correct his initial judgment. In the corrigendum, the judge adjusted Mr.

Wongstedt’s 2014 income to $189,474 and imputed $196,015 to him as his 2015 income (this sum was imputed income because it included $25,303 of RRSP withdrawals that the Chambers judge declined to find were non-recurring income). These adjustments led to corresponding reductions in the amount of ongoing child support and outstanding arrears, as follows: (a) $2,647 per month in child support; (b) 85% of s. 7 expenses; and (c) $23,760 of child support arrears (before credit for amounts paid through MEO). The Chambers judge did not alter the spousal support award or the costs order.

IV. notice of appeal [ 21 ] In his notice of appeal, Mr. Wongstedt appealed against three specific paragraphs of the judgment, as corrected: (

a) paragraph 15, where the Chambers judge had dismissed Mr. Wongstedt’s 2016 income information as “inappropriate and speculative”; (

b) paragraph 30, where the Chambers judge had awarded $14,000 in lump-sum spousal support; and (

c) paragraph 35, where the Chambers judge had awarded $4,000 in costs against Mr. Wongstedt. V. issues and analysis [ 22 ] Mr. Wongstedt raised seven grounds for appealing against the impugned paragraphs of the corrected judgment, which may be paraphrased as alleging the Chambers judge erred by: (

a) failing to correct fully the calculations of Mr. Wongstedt’s 2014 and 2015 income or to give effect to the recalculations in the award of spousal support; (

b) allowing his erroneous calculations of Mr. Wongstedt’s 2014 and 2015 income to prejudice his findings of credibility and reliability in respect of Mr. Wongstedt’s anticipated income for 2016; (

c) using erroneously calculated 2014 and 2015 incomes to determine family income and thereby to unfairly and inequitably award interim spousal support;

(

d) failing to properly apply the applicable principles when awarding interim spousal support; (

e) relying on affidavit evidence that had been or ought to have been struck when awarding interim spousal support; and (

f) overlooking Mr. Wongstedt’s success in the hearing when awarding $4,000 in costs to Ms. Wongstedt. Mr. Wongstedt also alleges in his factum that the Chambers judge erred by failing to provide sufficient reasons for his decisions in anumber of respects, but this argument is not properly before the Court as it was not raised in his notice of appeal. [23] I will first address those grounds of appeal that pertain to the award of spousal support. As a bottom line, Mr. Wongstedt saysthe Chambers judge erred when he ordered $14,000 of interim lump-sum spousal support.

He agrees the Chambers judge correctlyidentified the parties’ means and needs as the focus of analysis, but says the Chambers judge failed to undertake a full analysis of thosefactors. Under related grounds, Mr. Wongstedt alleges the Chambers judge improperly and erroneously focused on the reason Ms.Wongstedt owed money to CRA. [24] There is considerable merit to Mr. Wongstedt’s allegations even though a deferential standard of review applies in an appealagainst an order made in family law proceedings. Given the court record, I find Mr.

Wongstedt has compellingly shown that theChambers judge erred in principle and significantly misapprehended the evidence, such that the award of interim spousal support isunsustainable in the circumstances: Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11; Cross v Batters, 2016SKCA 71 at para 14, 81 RFL (7th) 55. [25] Mr. Wongstedt does not dispute that the Chambers judge correctly identified the applicable law when it comes to assessingentitlement and quantum of spousal support.

As the Chambers judge understood, s. 15.2(4) of the Divorce Act, RSC 1985, c 3 (2d Supp),identifies the “condition, means and needs and other circumstances of each spouse” as the factors for a court to consider when making anorder for spousal support.

In Moge v Moge, (SCC), [1992] 3 SCR 813 at 866, the Supreme Court explained the overallobjective of spousal support is to “achieve an equitable sharing of the economic consequences of marriage or marriage breakdown.”Given this was an interim application for spousal support, the Chambers judge also identified Wendt v Wendt, 2016 SKQB 227 at para 6[Wendt], as being applicable, where Turcotte J. had said: As pointed out by Jackson J.A. in Russell v Russell (1999), (SK CA), 179 DLR (4th) 723 (Sask CA) [Russell], theprinciples established by the Supreme Court of Canada in its decisions of Moge v Moge, (SCC), [1992] 3 SCR 813, andBracklow v Bracklow, (SCC), [1999] 1 SCR 420, aid in determining whether maintenance for a spouse should beordered under the Act, notwithstanding that those decisions addressed spousal support in the context of the Divorce Act, RSC 1985, c 3(2d Supp).

However, as this is an interim application, the focus of the analysis is on the “needs and ability to pay” of the parties. Thisfocus follows from the principles established by the decisions of this Court in Hein v Hein, 2004 SKQB 277; Cey v Cey, 2004 SKQB493; Frass v Frass, 2006 SKQB 189; Marcotte v Marcotte, 2008 SKQB 223, 315 Sask R 280; and Antonishyn v Boucher, 2011 SKQB147, 373 Sask R 154.

Those cases confirm that at an interim stage, pending a division of family property and more complete evidencetouching on the factors and objectives used in addressing a final order of spousal support, the primary purpose of interim spousal supportis to allocate family income in a fair and equitable manner.

Any decision I make as to interim spousal support may be reviewed by aneventual trial judge and could be re-assessed based on more complete evidence (see: Frank v Linn, 2014 SKCA 87, 442 Sask R 126; andFord v Ford, 2015 SKCA 23, 457 Sask R 19). [26] However, I find the Chambers judge went astray from the law by overlooking the factual circumstances of the parties’marriage and its breakdown, leading him to fail to assess whether Ms.

Wongstedt was, in fact, entitled to receive spousal support.Instead, after setting out paragraph 6 from Wendt, the Chambers judge moved immediately to order “one-time interim spousal support of$14,000 payable by the petitioner to the respondent within 30 days.” I find that award unsustainable in the circumstances of this caseboth with respect to entitlement and quantum. [27] Here, the six-year marriage had broken down more than 11 years prior to the court application and family property had beendivided. Further, Mr. Wongstedt attested he had paid Ms.

Wongstedt $10,000 in spousal support following the parties’ separation in2005. While the parties had reconciled in 2012, it had been brief—approximately one year. The respective role of each party in theirmarriage is unclear from the evidence. Further, despite a number of interim applications, the court had never made an award of interimspousal support. Rather, the issue of spousal support had been set over for pre-trial or trial. The issue of spousal support was not beforethe court in the proceedings that had resulted in the November 2015 Fiat. The Chambers judge knew all of this. In his reasons, heobserved Ms.

Wongstedt “had made previous applications which were denied.” The only things that had changed, between the last orderdirecting spousal support to pre-trial or trial and the application before the Chambers judge, was that Mr. Wongstedt’s income hadincreased significantly and Ms. Wongstedt had incurred the CRA debt. [28] These circumstances differ dramatically from those of Wendt, where Turcotte J. had assessed a first claim for interim spousalsupport made immediately on the heels of the breakdown of a 28-year marriage, where the parties had played “relatively traditionalroles”.

The wife had remained at home, caring for the children. The husband had worked outside the home, financially supporting thefamily. Although she remained in the family home, the wife had made her interim application prior to the division of family property.

Inthe Wendt circumstances, the wife’s entitlement to some form of interim spousal support was all but self-evident; in the circumstances athand, it most certainly was not. [29] While an application for interim spousal support often narrows the focus of the court’s analysis to the “means and needs” ofthe parties per Wendt, the question of entitlement cannot be overlooked or go unaddressed by the court. In this case, the history of thismatter and the evidentiary record left an inadequate foundation upon which to make an interim finding that Ms. Wongstedt was entitledto spousal support.

The whole of the issue ought to have been set over for pre-trial or trial, as it had been in the past. [30] Entitlement aside, the Chambers judge also erred in principle by basing the quantum of spousal support on the CRA debt asopposed to the “condition, means, needs and other circumstances” of each party as required by s. 15.2(4) of the Divorce Act. Further, theChambers judge significantly misapprehended the evidence he found relevant when awarding interim spousal support.

It is clear fromthe Chambers judge’s reasons that the basis for the lump-sum award of interim spousal support was to facilitate the repayment of the

child tax benefit overpayment, even though the Chambers judge recognised Ms. Wongstedt was repaying this amount “over a protractedperiod of time.” While he had the benefit of detailed lists from both parties of their respective “life expenses”, the Chambers judgedeclined to undertake a “means and needs” analysis. He focused solely on the debt owing to CRA and what had given rise to it—and thatis where the misapprehension lay. [31] The evidence before the Chambers judge was not sufficient to conclude the CRA debt was a result of the marriagebreakdown, as opposed to a wrongful benefits claim for which Ms.

Wongstedt was solely responsible. The overpayment had nothing todo with the November 2015 Fiat. Rather, it covered a significant period of time that clearly pre-dated that Fiat. There was no evidenceMr. Wongstedt had encouraged, colluded in or otherwise agreed to Ms. Wongstedt’s application for the child tax benefit in contraventionof The Income Tax Act. If Mr. Wongstedt played no

part in the events that had led to the overpayment and had received no benefit fromit, then it is questionable whether the overpayment was a proper factor for consideration with respect to spousal support, let alone wasproperly the sole basis for determining the quantum of such support. It is also notable that the Chambers judge had retroactively variedthe child support payments under the November 2015 Fiat so as to compensate Ms. Wongstedt for the reduction in child supportresulting from the fact she had to repay child tax benefits.

That is, as of January 1, 2016, the Chambers judge eliminated the reductionput in place under the November 2015 Fiat to account for the child tax benefit. At the end of the day, the only reduction Mr. Wongstedtreceived was for December 2015, and even that reduction was left open to a trial judge to vary. [32] Finally, the Chambers judge’s decision to award lump-sum spousal support was clearly influenced by his conclusion Mr.Wongstedt had initiated the CRA review, which had given rise to the demand for repayment from CRA (at paragraph 11).

Thisconclusion was irrelevant to the issue of spousal support, but it was also erroneous for two reasons. First, correspondence from CRAexhibited to Ms. Wongstedt’s affidavits established that CRA had randomly selected her for a child tax benefit review. Second, theconclusion was based on assertions in Ms. Wongstedt’s affidavit that amounted to nothing more than speculation and should have beenstruck as a result of Mr. Wongstedt’s objections to affidavit evidence. This second reason ties into Mr.

Wongstedt’s complaint withrespect to the Chambers judge’s approach to his objections to the affidavit evidence and requires some further explanation. [33] The Chambers judge found the CRA review “appears to have been commenced based on the petitioner making a claim for the$429 per month, which resulted in the respondent owing [CRA] the amount of $13,548.98.” However, the only “evidence” to that effectwas speculative statements Ms. Wongstedt had made in her affidavit, which were—as noted—inconsistent with the exhibits attached tothat affidavit. Moreover, Mr.

Wongstedt had objected, apparently successfully, to her statements on the basis they were speculative anddid not comply with Rules 13-30 and 15-20 of The Queen’s Bench Rules. [34] The Queen’s Bench Rules provide that a deponent is to confine his or her affidavits to facts that are within the deponent’spersonal knowledge (Rules 13-30(1) and 15-20(1)), to avoid argument and speculation (Rule 15-20(2)), and to avoid material that isirrelevant, that may delay the trial or make it difficult to have a fair trial or that is unnecessary or an abuse of the court process (Rule 15-20(5)).

Rule 13-30(4) provides that the costs of every affidavit that unnecessarily sets forth matters of hearsay or argumentative matter,or copies of or extracts from documents, must be paid by the party filing the affidavit. Where The Queen’s Bench Rules permit adeponent to state information beyond the deponent’s personal knowledge, the deponent must provide the source of that information(Rules 13-30(3) and 15-20(3)).

In Dlouhy v Dlouhy (1995), (SK KB), 130 Sask R 285 (QB) [Dlouhy], Dawson J.observed how the rules respecting affidavit evidence take on particular importance in family law matters, given the emotional nature ofthe proceedings, and then further explained that “a deponent is not entitled to express an opinion, but is confined to deposing the facts ofwhich he is aware”. Rules 13-30 and 15-20 permit the court to strike out all or part of an affidavit that does not comply with therequirements of The Queen’s Bench Rules. [35] On this basis, the Chambers judge had to determine whether the portions of Ms.

Wongstedt’s affidavits impugned by Mr.Wongstedt’s notices of objection complied with The Queen’s Bench Rules and whether they ought to be struck. However, in addressingthis issue, the Chambers judge simply wrote: [5] Firstly, the court will deal with the two notices of objection. The court reviewed the portions which counsel for the petitionerrequests be struck from the two affidavits of the respondent. The court accepts that some of the objections are appropriate in eachaffidavit. The court will ignore the portions which are in non​compliance with The Queen’s Bench Rules.

That is, he did not identify the portions of the affidavits that were not in compliance with The Queen’s Bench Rules or explain why thatwas so. [36] However, from the affidavits themselves, it is clear Ms. Wongstedt was speculating—and wrongly so—aboutMr. Wongstedt’s involvement in the CRA review. She did not provide a factual basis for the bare allegation she made or any source ofinformation to support it. In fact, correspondence from CRA exhibited to her affidavit is inconsistent with her speculative statements. Forthis reason, Ms. Wongstedt’s statements about Mr.

Wongstedt’s involvement in the CRA review ought to have been struck from thecourt record. And, I presume it was these passages to which the Chambers judge was referring when he said he would “ignore” them. [37] Notwithstanding that statement, the Chambers judge found (at paragraph 11) that Mr. Wongstedt had triggered the CRAreview by making his own claim for the child tax benefit. This finding is erroneous because it contradicts the accepted evidence and theChambers judge’s own statement that he would “ignore” the improper speculation in Ms.

Wongstedt’s affidavit. [38] It is plain that the Chambers judge’s decision (quoted above) is an insufficient answer to the notices of objection, because itdoes not address the issues raised by those notices or permit functional appellate review. Bluntly, the answer given is so ambiguous andunhelpful to the parties as to amount to a non-decision. Where objections are taken to affidavit evidence, the judge who hears themshould briefly articulate which portions of a contested affidavit are not in conformance with The Queen’s Bench Rules and what has beenstruck from the record.

There are many ways this could be done effectively (for examples, see Dlouhy; McEvoy v Sands, 2009 SKQB 2;J.I.M. v D.E.C., 2014 SKQB 401, 462 Sask R 141; Hill v Famhill Investments Ltd., 2017 SKQB 6; Gordon v The Regina Qu’AppelleRegional Health Authority, 2017 SKQB 118; see also Dembrowski v Bayer Inc., 2015 SKQB 286, 482 Sask R 211, which dealt withstriking portions of a brief of law), but the key is to plainly identify what is or is not in evidence, giving a very short reason for strikingany material that has been struck from the record (i.e., argument, speculation, opinion, irrelevant, rhetoric, hearsay, etc.).

Indeed, a judge

may simply strike out offending material by hand, noting the reason therefor, on the affidavit itself. [39] Regardless of how it is done, the parties, counsel and judges who hear subsequent applications (particularly, those requiringan applicant to establish a material change in circumstances) must know what evidence was properly before the court or what evidencewas struck from the record.

Lastly, the practice of clearly identifying evidence that has been struck and briefly stating why it was struckprovides an appellate court with the foundation for meaningful review of that decision, if it should be appealed. [40] Therefore, to clarify the record of the evidence in this matter, I would strike the material identified in Appendix A to thesereasons from Ms. Wongstedt’s August 5 and September 25, 2016, affidavits. [41] This leads to the costs award against which Mr. Wongstedt has appealed.

It is rare for an appellate court to interfere with acosts award due to the inherently discretionary nature of those awards: Benson v Benson (1994), (SK CA), 120 Sask R17 at paras 89–90 (CA) [Benson]. In simple terms, the appellate court looks to see whether the judge misapplied some governingprinciple or rule or disregarded some critical fact or other consideration or whether the costs award is itself “so obviously unjust as toinvite intervention.” Given this deferential standard of review, it is the appellant who bears the burden of establishing that the judge erredin one of these ways.

This is often difficult because Rule 15-25(7) of The Queen’s Bench Rules provides: After each step in the family law proceeding, the judge who dealt with that step may, in a

summary manner: (

a) decide who, if anyone, is entitled to costs; (

b) set the amount of costs; and (

c) specify a date by which payment must be made. [Emphasis added] [42] In this case, the only reason the Chambers judge provided for his costs award in favour of Ms. Wongstedt was that she hadbeen “successful on the two applications”, which I take to refer to the applications for interim child support (arrears and ongoing) andspousal support. This is consistent with Rule 15-25(2) of The Queen’s Bench Rules, which sets out a presumption that costs will beawarded to the successful party.

On the basis of Rules 15-25(2) and (7), it can be taken that the Chambers judge sufficiently explainedhis costs award in favour of Ms. Wongstedt. However, because I would set aside the Chambers judge’s award of interim spousal support,I would also set aside his award of $4,000 in costs to Ms. Wongstedt. The matter of costs at the Court of Queen’s Bench must beaddressed afresh. [43] To begin, the Chambers judge had denied Mr.

Wongstedt his costs on the two (apparently) successful notices of objection,explaining: [6] Considering the voluminous amounts of affidavits filed in this action by each party and the inappropriateness of many statementsin arriving at this juncture, no costs will be awarded in favour of the petitioner for these applications to strike. [44] Mr. Wongstedt persuasively makes the point that the affidavit evidence in this case was not, in fact, “voluminous”.

He alsoargues cogently that the reference to the “inappropriateness of many statements in arriving at this juncture” must have been to thespeculative passages of Ms. Wongstedt’s affidavits. Interpreted in this way, the Chambers judge’s reasons suggest an error in principlebecause they identify the reason for Mr. Wongstedt’s success when objecting to affidavit evidence was the reason for denying him costsin that regard.

This is particularly striking if one considers that Rule 13-30 states that “the costs of every affidavit that unnecessarily setsforth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing the affidavit”(emphasis added). Rules 15-20(5) and (6) permit the court to award double costs where an affidavit or parts thereof have been struck.Moreover, Rule 15-25(2) establishes a presumption of costs to the successful party in a family law proceeding or any step in a family lawproceeding.

On this basis, given the circumstances described earlier, I find no reason to deny Mr. Wongstedt an award of costs on hisnotices of objection. I would award him $500 in costs in that regard. [45] As to the overall costs of the proceedings before the Court of Queen’s Bench, Rule 15-25(5) recognises that, where there hasbeen divided success in a family law proceeding or a step thereof, the court has the discretion to apportion costs as the court deemsappropriate. Here, Ms. Wongstedt was successful in her claim for arrears of child support and Mr. Wongstedt has not appealed againstthat award. Ms.

Wongstedt’s other applications were dismissed or adjourned sine die. Mr. Wongstedt was successful in obtaining adivorce. Given this divided success and the adjournment of many matters, I would not award costs to either party. Each party shall beartheir own costs of the proceedings before the Chambers judge. [46] Lastly, in his prayer for relief, Mr. Wongstedt sought orders of this Court fixing his 2016 income at $112,716 for the purposesof calculating child support arrears, s. 7 expenses, and ongoing child support obligations. These claims for relief must be denied.

Recallthat the Chambers judge had imputed $196,015 in income to Mr. Wongstedt for 2015, based on Mr. Wongstedt’s 2015 income tax return.Mr. Wongstedt acknowledged in his notice of appeal that the Chambers judge had “corrected” errors in the calculation of his 2015income. He did not appeal against the finding that the $25,303 of RRSP withdrawals in 2015 were non-recurring income. Importantly,the Chambers judge used Mr. Wongstedt’s 2015 income to calculate ongoing child support obligations, writing: [25] These child support payments shall be effective from June 1, 2016 up to and including May 1, 2017.

The parties shall then berequired to exchange personal income tax returns for 2016 on or before May 15, 2017 with child support payments to be adjustedeffective June 1, 2017 based on the parties’ income for 2016. [Emphasis added] As the Chambers judge was not required to make and, in fact, made no ruling on Mr. Wongstedt’s 2016 income, I would dismiss this lastaspect of the appeal.

VI. conclusion [ 47 ] I would allow the appeal and set aside the awards of spousal support and costs in the Court of Queen’s Bench. I would award Mr. Wongstedt $500 in fixed costs for his successful objections to affidavit evidence. The parties shall bear their own costs in the proceedings before the Court of Queen’s Bench. In all other respects, I would dismiss the appeal. Given this result, I would award $1,500 to Mr. Wongstedt for his costs in this appeal. “Caldwell J.A.” Caldwell J.A. I concur. “Caldwell J.A.” for Herauf J.A., per authorisation I concur. “Whitmore J.A.” Whitmore J.A. Appendix A 1.

Material struck from the Affidavit of Joanna Gay Wongstedt dated August 5, 2016: Paragraph 4—“I believe that as the Petitioner was angry that he was ordered to pay support he contacted CRA to advise them he wanted the credit.” (Speculation/Opinion) Paragraph 7—“The Petitioner has always told me that he will not pay child support and he purposely attempts to embarrass me into foregoing support.” (Irrelevant) Paragraph 8—“I believe the Petitioner earned more income in 2015 than the $184,777 he earned in 2014 which is why he has refused to provide his income information.” (Speculation/Argument/Opinion) Paragraph 10—“given that he retroactively claimed the child tax benefits after consenting to allowing me to solely claim it”. (Speculation) Paragraph 15—“I am concerned that the Petitioner is once again purposely enrolling the children in activities in conflict with my parenting time.” (Argument/Opinion) Paragraph 17—“Despite having a flexible employment schedule,” and “maliciously”. (Argument/Opinion) Paragraph 21—“I require support and the Petitioner has the ability to pay.

I have suffered an economic disadvantage due to the break- down of our relationship and excessive legal fees. I continue to suffer the disadvantage as the proceedings drag on and even more so now that the Petitioner has made a retroactive claim for the child tax credit resulting in substantial arrears.” (Argument/Speculation) Paragraph 22—“These amounts were strictly spousal support or repayment of his share of the children’s expenses.” (Argument/Opinion) 2.

Material struck from the Response Affidavit of Joanna Gay Wongstedt dated September 25, 2016: Paragraph 7—“His refusal to do so has made shared parenting more difficult. London informed me numerous times that the Petitioner has said I should pay for her riding/horse expenses. For example, when London wanted to get me a birthday present, the Petitioner picked out a gift card for gas, and told her that I could use the money to drive her to the barn.

She was embarrassed when she told me, and I was again upset that the Petitioner is discussing adult financial matters with the children and putting them in the middle.” (New Matter in Reply Affidavit) Paragraph 8—“The Petitioner has been increasingly involving the children in financial discussions since he refused to pay child support and MEO was forced to begin garnishment.” “Larson told me, ‘you have to pay for it now, because Dad says you have all his money anyway’”. “He is now forced to follow the Petitioner around at work for the afternoon.

Larson is not happy about this, as it is greatly preferred for him to be at my place until the Petitioner is done work.” (New Matters in Reply Affidavit) Paragraph 9—“and used that as an opportunity to tell the children that they would never be with me half time again, which they found upsetting.” (New Matter in Reply Affidavit) Paragraph 14—“Later I found out that he told Larson that if he didn’t go look at the car, it would be gone, and he needed to purchase the car, put in Larson’s name, so that it wouldn’t be taken from his dad, as I am causing personal property of his dad’s to be taken by the courts.” (New Matter in Reply Affidavit) Paragraph 15—“So as a result, she had to miss a whole week of horse time throughout the summer.

If the Petitioner had left her horse at the barn, her access wouldn’t have been limited.” (New Matter in Reply Affidavit)