Savoy v Savoy, 2019 SKCA 1

Court of Appeal for Saskatchewan Docket: CACV3148 Citation: Savoy v Savoy , 2019 SKCA 1 Date: 2019-01-04 Between: Manifred Joseph Savoy Appellant (Petitioner) And Effie Gray Savoy Respondent (Respondent) Before: Richards C.J.S., Whitmore and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Leurer On Appeal From: 2017 SKQB 290 , Regina Appeal Heard: December 14, 2018 Counsel: Mervin Phillips and Leanne Phillips for the Appellant Reginald Sauer for the Respondent Richards C.J.S. I.

Introduction [ 1 ] Manifred Savoy applied to a Court of Queen’s Bench Chambers judge to vary the parenting and spousal support aspects of a divorce judgment. His application was dismissed. Mr. Savoy appeals from the Chambers decision. For the reasons set out below, I conclude Mr. Savoy’s appeal must be dismissed. II. background [ 2 ] Mr. Savoy and his former wife, Effie Savoy, began cohabiting in 1994 and were married in 2000. Mr. Savoy was at home while Effie [Dr. Savoy] pursued her training and began working as a medical doctor. [ 3 ] Mr. Savoy and Dr.

Savoy have three children: Scott (born in 1997); Sean (born in 1999) and Sara (born in 2011). Mr. Savoy is currently 79 years old. Dr. Savoy is 48 years old. [ 4 ] Mr. Savoy commenced divorce proceedings in 2012. [ 5 ] In May of 2015, after a five-day trial, Sandomirsky J. issued a judgment that included these relevant features: (

a) Dr. Savoy was to have primary care of all three children; (

b) Mr. Savoy was to co-parent Sara (age 4 at the time of the order) every Monday, Wednesday and Friday from 9:00 a.m. to 5:00 p.m. with, on every other Friday, his co-parenting to continue overnight until 10:00 a.m. on Saturday; (

c) Dr. Savoy was to pay Mr. Savoy non-compensatory spousal support in the amount of $7,000 monthly; and (

d) Mr. Savoy was to receive retroactive spousal support in the amount of $25,263. [ 6 ] Mr. Savoy filed an application to vary Sandomirsky J.’s judgment in May of 2017. Insofar as it is germane here, he sought to expand his parenting time for Sara and to increase the amount of his spousal support. [ 7 ] The Chambers judge declined to vary the parenting arrangements for Sara because he was unable to conclude there had been a material change of circumstances with respect to that issue. The Chambers judge also declined to vary Mr.

Savoy’s support payments, again finding himself unable to conclude there had been a material change of circumstances. III. analysis [ 8 ] As noted, Mr. Savoy takes issue with the Chambers judge’s decision both as it concerns his parenting of Sara and his spousal support entitlement. I will deal with these two issues in turn but, to begin, it is necessary to say a word about the legal principles governing applications to vary and about the applicable standard of review. A. Applications to vary

[9]

Section 17 of the Divorce Act, RSC 1985, c 3 (2d Supp), provides that a court of competent jurisdiction may make an ordervarying a custody or support order. Before making such an order, the court must be satisfied that there has been a change ofcircumstances. [10] The test for ascertaining whether the requisite change of circumstances has occurred was explained in Willick v Willick, (SCC), [1994] 3 SCR 670 at 688: This subsection authorizes the court to vary a previous support order if a change of circumstances occurs.

The approach which a courtshould take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order oughtto be made in light of the change in circumstances. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. … (Emphasis added) B. Standard of review [11] Orders made by the Court of Queen’s Bench in relation to support and custody matters are accorded a substantial measure ofdeference. Such orders should not be overturned unless there has been an error in principle, a significant misapprehension of the evidenceor unless the award is clearly wrong.

See: Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11; Van de Perre vEdwards, 2001 SCC 60 at para 12, [2001] 2 SCR 1014. C. Parenting arrangements [12] The Chambers judge concluded there had been no material change in the circumstances bearing on the parentingarrangements for Sara. Mr. Savoy submits this was an error. He raises several points on this front. [13] First, Mr. Savoy notes that, at the time of the variation application, Sean no longer lived with Dr. Savoy because of adisagreement between her and Sean and, as a consequence, Sara did not interact with Sean when she was with Dr. Savoy.

This argumentis not convincing. There is nothing in Sandomirsky J.’s judgment to suggest Sara’s ability to be with Sean when she is at Dr. Savoy’shome was a significant part of his decision-making with respect to parenting arrangements. Moreover, when the variation applicationwas heard, Sean was in the final months of high school and heading for university in Saskatoon. In other words, even if he and Dr. Savoyhad been on good terms with each other, he was not going to be living with her in Swift Current. A development of this sort must havebeen in Sandomirsky J.’s contemplation.

As a result, the fact Sean does not live with Dr. Savoy is not a material change of circumstances. [14] Second, Mr. Savoy suggests there has been a material change of circumstances because, while Sandomirsky J. made hisdecision on the basis that Dr. Savoy did not work on weekends, this is no longer true. Mr. Savoy suggests Sara is now often left with ananny on weekends while Dr. Savoy works.

He puts it this way in his affidavit of May 4, 2017, at paragraph 14: “it is very common forSara to be at home with a paid nanny during the weekends”. [15] It is true that Sandomirsky J. structured parenting arrangements to accommodate the fact that “the weekends are the qualitytime available to [Dr. Savoy] to parent Sara”. However, it is by no means clear there has been a material change of circumstances in thisregard. Mr. Savoy says no more in his affidavit than that it is “very common” for Sara to be with a nanny on the weekend.

He does notprovide any meaningful particulars as to how frequently this happens or as to how much weekend time overall Sara spends in the care ofnannies. On the other hand, at paragraph 27 of her July 21, 2017, affidavit, Dr. Savoy explains as follows: 27. [14] Mr. Justice N.S. Sandomirsky was well aware of my busy

schedule as a physician. When I am on call at the Emergency or oneof my patients goes into labour I can be called into the hospital at any time of the day or night. I have a Nanny to assist with caring forSara during these occasions as they can occur without notice. This also allows me to spend the maximum time with Sara. Mycommunication with Manny regarding spending more time with Sara related to the days that Mr. Justice N.S. Sandomirsky ordered atTrial.

At no time did I suggest that Manny should have Sara every time that I was called into the hospital or overnight other than thenights that were ordered. [16] Given all of this, I am unable to conclude that the Chambers judge significantly misapprehended the evidence or was clearlywrong in giving no effect to Mr. Savoy’s argument that Dr. Savoy’s use of nannies on weekends is a material change of circumstances. [17] Mr. Savoy’s third point about a material change of circumstances respecting Sara is rooted in her evolving situation withrespect to school.

Sara was four years old and attending pre-kindergarten on Tuesday and Thursday from 1:00 p.m. until 3:30 p.m. at thetime Sandomirsky J. made his order but, at the time of the variation application, she was entering grade one. I see little merit in anargument to the effect that this was a material change of circumstances. [18] Justice Sandomirsky must be taken to have contemplated that his order would continue to apply as Sara made the inevitabletransition from pre-kindergarten, to kindergarten, to grade one.

This is reflected in paragraph 89 of his judgment, which speaks directly towhere Sara would spend “Christmas, spring and Easter school breaks” and “school summer recess”. Accordingly, the Chambers judgemade no reviewable error in concluding that Sara’s evolution as a student was not a material change of circumstances. All of this wasknown and contemplated at the time of Sandomirsky J.’s order. [19] The fourth issue that Mr. Savoy raises is Sara’s increasing maturity. Mr.

Savoy’s point is that, while Sandomirsky J. mighthave had reservations about his ability at age 76 to care for a four year old for extended periods of time, caring for a six year old is adifferent (and easier) proposition. Again, I see no merit in this submission. As this Court said in Gray v Wiegers, 2008 SKCA 7 at para

25 , 291 DLR (4th) 176, the mere passage of time does not amount to a material change of circumstances. Mr. Savoy brought his variation application only two years after Sandomirsky J. rendered his judgment. Sara’s development over the course of those two years was self-evidently something that would have been in Sandomirsky J.’s full contemplation. As a result, the Chambers judge made no error by failing to treat this as a material change of circumstances. [ 20 ] The fifth and final matter Mr. Savoy raises with respect to the material change issue is his own health and parenting ability.

The point here, at least as I understand it, is that Dr. Savoy put his health (and hence his ability to parent) in issue before Sandomirsky J. but did not do this before the Chambers judge. This argument must fail as well. Justice Sandomirsky was not concerned about Mr. Savoy’s health per se. Rather, he was concerned about, or alert to, what he saw as the general physical and energy limitations of a 76 year old. This might or might not have been the best way to approach the matter but the point for present purposes is that there was no material change of circumstances in Mr.

Savoy’s progression from being a healthy 76 year old at the time of Sandomirsky J.’s order to being a healthy 78 year old at the time of the variation application. [ 21 ] To summarize on this issue, the Chambers judge made no reviewable error in deciding to deny the application to vary Sara’s parenting arrangements on the basis that there had been no material change of circumstances. D. Support payments [ 22 ] The Chambers judge dealt with Mr. Savoy’s application for increased spousal support by noting, first, that the support order had been non-compensatory and that, as a consequence, Dr.

Savoy’s increased earnings did not necessarily translate into increased support payments for Mr. Savoy. The Chambers judge also concluded there was not sufficient evidence to establish a material change in Mr. Savoy’s needs, means or other circumstances. [ 23 ] Mr. Savoy submits the Chambers judge erred in failing to increase his support payments. To begin, he suggests the Chambers judge incorrectly considered his support to be non-compensatory in nature. In this regard, Mr. Savoy refers to aspects of Sandomirsky J.’s judgment that he contends are indicative of compensatory-type support.

This argument cannot succeed. At paragraph 47 of his judgment, Sandomirsky J. concluded his analysis of the spousal support issue by expressly directing that “[Dr. Savoy] shall pay to [Mr. Savoy] monthly spousal support in the sum of $7,000, being non-compensatory in nature (emphasis added)”. Moreover, the formal judgment taken out after the trial states that “[Dr. Savoy] shall provide non-compensatory spousal support to [Mr. Savoy] in the sum of $7,000 per month … (emphasis added)”. As is readily apparent, the Chambers judge made no error by characterizing Mr.

Savoy’s support entitlements as being non-compensatory. [ 24 ] Nor, in my respectful view, did the Chambers judge make any error of principle or otherwise in connection with the spousal support issue. The treatment of post-separation increases in a payor spouse’s income is ultimately a matter of judicial discretion. That discretion must be exercised in the circumstances at hand and in light of the principles and objectives that govern spousal support. The Chambers judge was alive to the applicable principles and chose to emphasize that Mr. Savoy’s support was non-compensatory, i.e. needs-based.

There was no reviewable error in any of that. [ 25 ] Mr. Savoy’s second line of attack on the spousal support front is to the effect that the Chambers judge erred by finding he, that is Mr. Savoy, had not established a material change in needs, means or other circumstances. I am not persuaded by this argument either. [ 26 ] As a first point in this regard, Mr. Savoy suggests his food and household expenses have increased because Sean, after a falling-out with Dr. Savoy, came to live with him.

However, this line of argument ignores the fact that, at the time of the variation application, Sean was bound for university and hence would not be living with Mr. Savoy. [ 27 ] Mr. Savoy also suggests the educational expenses of Scott and Sean have changed his financial situation. Two factors undercut the strength of this submission. First, and most significantly, the Chambers judge hived off the question of child support from the rest of his decision and gave the parties leave to file further and more material detailing Scott and Sean’s educational expenses. He made no ruling on the issue.

Second, the record indicates that, in any event, Dr. Savoy is shouldering the costs of Scott and Sean’s education. [ 28 ] Finally, Mr. Savoy points to a current outstanding debt to the Canada Revenue Agency of over $50,000. However, his indebtedness to the Canada Revenue Agency was fully on the table at the time Sandomirsky J. rendered his judgment. Indeed, Sandomirsky J. ordered that Dr. Savoy pay the $25,263 owing for retroactive spousal support in monthly payments of $600 stating, at paragraph 125 of his judgment, that this would allow Mr. Savoy to pay out his indebtedness to the Canada Revenue Agency.

There is no explanation in the record as to why Mr. Savoy’s indebtedness to the Canada Revenue Agency has apparently increased since the trial. In all of the circumstances, I conclude Mr. Savoy has not established that the Chambers judge somehow made an error in principle, significantly misinterpreted the evidence or was clearly wrong in failing to find that the Canada Revenue Agency indebtedness was a material change of circumstances. [ 29 ] To recap on this aspect of Mr.

Savoy’s submissions, I find that the Chambers judge made no reviewable error in his consideration of the question of whether there had been a material change in Mr. Savoy’s needs, means or other relevant circumstances. IV. Conclusion [ 30 ] I conclude that Mr. Savoy’s arguments cannot succeed. The Chambers judge referred to, and understood, the legal principles governing Mr. Savoy’s variation application. The Chambers judge did nothing in applying those principles that would warrant the intervention of this Court. [ 31 ] Mr. Savoy’s appeal is dismissed. Dr. Savoy is entitled to costs on Column II.

“Richards C.J.S.” Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Leurer J.A.” Leurer J.A.