Hanson v Hanson, 2019 SKCA 102

Court of Appeal for Saskatchewan Docket: CACV3247 Citation: Hanson v Hanson , 2019 SKCA 102 Date: 2019-10-15 Between: Richelle Lynn Hanson Appellant (Petitioner) And Todd Jarred Hanson Respondent (Respondent) Before: Richards C.J.S., Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Tholl On Appeal From: DIV No 95 of 2011, Saskatoon Appeal Heard: May 1, 2019 Counsel: Brent Barilla, Q.C., for the Appellant Todd Hanson appearing on his own behalf Barrington-Foote J.A. I. Introduction [ 1 ] On April 16, 2018, a Chambers judge ordered [Chambers decision] that the respondent, Todd Hanson, pay the appellant, Richelle Hanson (now Ms. Stein-Philipenko), $1,158 for medical expenses and RESP contributions for a child of their marriage. That order was based on an interspousal agreement dated November 3, 2010 [Agreement]. The Chambers judge dismissed Ms.

Stein- Philipenko’s application for child support pursuant to s. 3 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], reversing his decision of April 13, 2018, that Mr. Hanson should pay $400 per month in s. 3 child support. [ 2 ] Ms. Stein-Philipenko has appealed the Chambers decision, alleging that the Chambers judge erred as follows: (

a) Failing to award s. 3 child support in accordance with the Guidelines ; (

b) Failing to award retroactive expenses within the meaning of s. 7 of the Guidelines in accordance with the Agreement; (

c) Limiting the award for medical, dental and RESP contributions to those incurred within the two years prior to April 13, 2018, based on The Limitations Act , SS 2004, c L-16.1 ; and (

d) Failing to award costs to Ms. Stein-Philipenko. [ 3 ] For the reasons that follow, I would allow Ms. Stein-Philipenko’s appeal. II. BACKGROUND [ 4 ] The parties began living together in February 1999 and were married on August 23, 2003. They separated in August 2010 and divorced on January 18, 2013. Mr. Hanson had one child from a previous relationship, who was no longer a child of the marriage at the time the application was made which has resulted in this appeal. The child that is the subject of this appeal [their daughter] is the only child born of the parties’ relationship.

She is still a child of the marriage within the meaning of the Divorce Act , RSC 1985, c 3 (2d Supp) . [ 5 ] The Agreement, which was executed shortly after the parties’ separation, resolved parenting issues, division of family property, spousal support and child support. There was an unequal division of family property. Ms. Stein-Philipenko received title to the family home and its contents, a rental property, a cabin, and certain other personal property, and assumed responsibility for mortgages and a line of credit secured against the family home and rental property. The net value of her share was $363,000. Mr.

Hanson retained his electrical business and certain personal property. The value of his share was $123,000. Ms. Stein-Philipenko accordingly received $120,000 more than she would have received on an equal division. [ 6 ] Child support, and the relationship between child support and the unequal property division, was addressed in the agreement: 12. The Husband has agreed to an unequal division of the family property that favours the Wife. The property provisions of the within agreement provide an approximate analysis of the parties’ property division claim and the unequal division in favour of the Wife. 13.

In consideration, the Husband shall not be obligated to make any base child support payments to the Wife. 14. The Husband agrees to pay the Wife 100% of the children’s

section 7 expenses within the meaning of The Federal Child Support Guidelines , including sporting activity fees (including, but not limited to, registration fees, team fees, tournament costs, and equipment), camp registration costs, medical and dental expenses not covered by insurance, and school fees and supplies. The Wife shall pay these

expenses in the first instance and, each month, she shall provide the Husband with details of the expense claim. The Husband shall thereafter pay the expense claim to the Wife forthwith upon being presented with the expense receipts. 15. The Husband also agrees to match any RESP payment the Wife chooses to make on behalf of the children on a monthly basis, to a maximum of $75.00, being the Husband’s half-share. If the Husband wishes to pay any further amounts on a voluntary basis, that will be entirely up to him. 16. In agreeing to the above child support arrangement, the parties have considered the following: a.

The amount of child support for the children differs from the amount provided for under The Federal Child Support Guidelines (hereinafter called the “ FCSG ”). b. The child support agreed to herein was reached after taking into careful consideration

section 15.1(5) of the Divorce Act . c. The Husband’s agreement to provide for an unequal division of the family property in the Wife’s favour, in lieu of periodic child support payments, is a direct benefit to both children and is therefore a special provision and is not inequitable under the circumstances. d. The deviation from the FCSG is contemplated and does not result in any inequity. e.

The within agreement as to child support is acknowledged as being in the best interests of both children, given that it allows the Wife to maintain the family home and family cabin without taking on further debt and therefore is a fair and reasonable manner in which to apportion child related costs and expenses until the children reach the age of majority. f. The possibility that the children’s primary residence, or time spent with each parent, may change from that otherwise provided for in this agreement. [ 7 ] The provisions of the Agreement were never incorporated in an order.

However, the Agreement was filed when Ms. Stein- Philipenko applied for the divorce and accordingly would have been reviewed by Wilkinson J., who granted the divorce, to confirm that reasonable arrangements had been made for the support of the children, both of whom resided primarily with Ms. Stein-Philipenko. [ 8 ] On January 2, 2018, Ms. Stein-Philipenko applied for an order that Mr. Hanson pay s. 3 child support for their daughter in accordance with the Guidelines . Her December 18, 2017, affidavit confirms that she was seeking s. 3 child support going forward, but not retroactively.

She also applied for an order that Mr. Hanson pay retroactive s. 7 and RESP expenses pursuant to the Agreement from 2014 to 2017. She deposed that she had provided monthly statements relating to RESP payments and s. 7 expenses in accordance with the Agreement but that Mr. Hanson had not reimbursed her. She said she had engaged counsel on two previous occasions to assist her in receiving reimbursement, and that Mr. Hanson had not made payments for over three years. Her affidavit appended emails and handwritten notes which confirmed her request for payment during that period.

She attached a spreadsheet which she described as relating to outstanding expenses incurred for “the children” from June 1, 2014, to the date of the affidavit in the amount of $15,620.64. [ 9 ] Mr. Hanson’s March 26, 2018, affidavit in response is very brief. He deposed that he thought the agreement was unfair as there was no communication and that he could not keep up with Ms. Stein-Philipenko’s lifestyle with regard to their daughter. He said there had been too much spent on equipment and activities he could not afford and that their daughter was in more activities than she could handle.

He deposed that he was bankrupt and had a new job that paid substantially less. There was no evidence that he objected to the number or cost of their daughter’s activities prior to March 2018. [ 10 ] Documents relating to Mr. Hanson’s bankruptcy are also appended to Ms. Stein-Philipenko’s affidavit. In his September 7, 2017, Statement of Affairs, Mr. Hanson stated that he was liable to Ms. Stein-Philipenko for $12,000 pursuant to “Child Support order for activities – 2 years”. In his monthly expense statement, he listed child support payments of $500 per month. III.

CHAMBERS DECISION [ 11 ] The Chambers judge heard Ms. Stein-Philipenko’s application on April 13, 2018. He ordered [April 13 order] that Mr. Hanson pay $400 per month in s. 3 child support for their daughter, based on an estimated annual income of $54,000. He also ordered that Mr. Hanson produce income information for 2016, 2017 and 2018 and that “[t]he matter can be revisited should either party determine the order … made today based on guesstimates is not proper”.

He reserved his decision relating to the claim for retroactive s. 7 expenses pursuant to the Agreement. [ 12 ] The Chambers decision issued three days later. It incorrectly says that Ms. Stein-Philipenko sought s. 3 child support retroactive to June 2014. The Chambers judge commented that he had “more than a little difficulty” with that position, as the Agreement provided that Mr. Hanson did not have to pay s. 3 support in exchange for the unequal division of family property.

He stated that it is “trite law that she cannot reject one part of the Agreement while embracing the rest”, benefiting from her larger share of the property while depriving Mr. Hanson of what “he exchanged for it – freedom from the obligation to pay child support”. In the result, and notwithstanding his April 13 order, he found that Mr. Hanson was not required to pay s. 3 child support. [ 13 ] As to the claim for s. 7 expenses, the Chambers judge dealt first with extraordinary extracurricular expenses within the meaning of s. 7(1) (

f) of the Guidelines . He emphasized that the Agreement required Mr. Hanson to pay 100% of s. 7 expenses “within the meaning of The Federal Child Support Guidelines ”. He noted that extraordinary expenses are defined by s. 7(1.1) (

a) of the Guidelines , which provides that extraordinary expenses means expenses which exceed those the requesting spouse might reasonably cover, “taking into account that spouse’s income and [the child support] that the spouse would receive under the applicable table”. He then commented as follows: Thus, that which is an extraordinary expense is inextricably intertwined with s. 3 Guideline support. I cannot determine whether the cost of the extracurricular activities exceed that which Richelle should reasonably cover with the s. 3 support she receives because she receives

no s. 3 support – she received a disproportionate share of the family property. Should the $363,000 of family property she received …reasonably cover the cost of the extracurricular activities? I do not know. Neither do I know how much Richelle would have received hadshe gotten only that to which she was entitled at law. [14] The Chambers judge acknowledged that the Agreement provided that specific s. 7 expenses, including specified sportingactivity expenses, were to be paid by Mr. Hanson.

However, he concluded that this provision did not affect his reasoning, as “thosespecifics are modified by the proviso that they be s. 7 expenses within the meaning of the Guidelines”. The Chambers judge reached thesame conclusion in relation to extraordinary educational expenses within the meaning of s. 7(1)(d). [15] He found that this reasoning did not apply to the medical and dental costs incurred by Ms. Stein-Philipenko, as the Guidelinesdo not require that those expenses be extraordinary to qualify for recovery. He also found that Ms.

Stein-Philipenko was entitled to recoverthe matching RESP contributions provided for in the Agreement. He accordingly ordered that Mr. Hanson pay $1,158 for expenses of thatkind incurred by Ms. Stein-Philipenko within two years of the date of the hearing. [16] Finally, the Chambers judge held, relying on Katsiris v Katsiris, 2017 SKQB 292, 2 RFL (8th) 222 [Katsiris], that TheLimitations Act applies to interspousal agreements just as it does to any other agreement. In the Chambers decision, he said that as thematter was heard April 13, 2018, Ms.

Stein-Philipenko was barred from seeking reimbursement for any amounts prior to that date.However, he then ordered that Mr. Hanson pay $218 for their daughter’s contact lenses and $940 for RESP contributions, for a total of$1,158. Those expenses were incurred after April 2016, or within two years of the hearing date. He then made the following order in thealternative: At the hearing on April 13, I ordered that Todd pay s. 3 Guideline support of $400 per month. That, I have determined, was in error. IfTodd has paid that $400, he shall pay an additional $758. If he has not, he shall pay Richelle $1,158.

In the event Richelle takes the position that I am functus in respect of my order on April 13, then I order that he shall pay support of $400for April and May and $338 for June, after which his child support obligations shall cease. IV. ANALYSIS [17] In order to succeed on this appeal, Ms. Stein-Philipenko must demonstrate an error in principle, a significant misapprehensionof the evidence, or that the award under appeal is clearly wrong: Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11.This appeal raises questions as to the

interpretation of the Agreement by the Chambers judge.

Interpretation of a contract involves mixedquestions of fact and law which, absent extricable questions of law, are – like questions of fact – reviewable on a standard of palpable andoverriding error: Sattva Capital Corporation v Creston Moly Corporation, 2014 SCC 53 at paras 50–53, [2014] 2 SCR 633; Berger vBerger, 2016 ONCA 884 at para 46, 85 RFL (7th) 259. A.

Did the Chambers judge commit a reviewable error by failing to award s. 3child support in accordance with the Guidelines? [18] Dealing first with the claim for s. 3 child support, it is not clear what the Chambers judge would have concluded if he had notmisapprehended the evidence, and as a result, misconstrued Ms. Stein-Philipenko’s application as one for retroactive support. Ms. Stein-Philipenko was not, as the Chambers judge thought, trying to retain all of the benefits she received relating to property division and childsupport, while retroactively retrieving the benefit Mr. Hanson got in return. Ms.

Stein-Philipenko sought s. 3 child support onlyprospectively and sought no order in relation to future s. 7 expenses. The reason she sought a s. 3 order was clear. She did so becauseMr. Hanson’s agreement to pay s. 7 expenses was an integral part of their agreement as to child support and unequal property division, andMr. Hanson had not paid her for any s. 7 expenses in three years. [19] On these facts, the Chambers judge should have considered the effect of the Agreement on the application for prospective s. 3child support pursuant to s. 15.1(5) of the Divorce Act.

Having misapprehended the evidence, he failed to conduct that analysis. Thatsubsection provides as follows:

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined inaccordance with the applicable guidelines if the court is satisfied (

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

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those specialprovisions. [20] An unequal division of family assets or liabilities does not necessarily engage the exception created by s. 15.1(5) of the DivorceAct: de Rooy v Bergstrom, 2010 BCCA 5 at paras 56–61, 282 BCAC 26; Epp v Robertson (1998), (SK KB), 171 SaskR 315 (QB) at para 13 [Epp]. A party seeking the benefit of s. 15.1(5) must meet a two-part test.

First, they have the onus to satisfy thecourt that the provisions at issue directly or indirectly benefit the child, or that special provisions have otherwise been made for the benefitof the child. Second, if they do, they must also satisfy the court it would be inequitable to apply the Guidelines: Epp at paras 11–13; Lutz vSequeira, 2000 SKQB 319, 195 Sask R 87.

Justice Wilkinson addressed the second element of this test in Epp: [20] Once a finding has been made that special provisions exist, it must be determined whether, given those provisions, the amount ofchild support determined under the Guidelines would be inequitable. As stated in Wang v. Wang (1997), (BC SC),B.C.J. No. 1678 (QL) (B.C. S.C. [In Chambers]) and Eilers v. Eilers, [1998] B.C.J. No. 1021 (QL) (B.C.S.C.), the term “inequitable”relates to the parties and requires a consideration of both the circumstances of the parties giving rise to the order or agreement and their

circumstances at the time of the application . Such an

interpretation recognizes the give and take of settlement discussions and the interrelationship of terms which will be reflected in a settlement agreement or order. [ 21 ] Here, the Agreement confirms the parties were well aware of and sought to engage the exception created by s. 15.1(5) .

The Agreement not only refers to that provision, but explicitly says the parties conceived of the unequal property division in lieu of child support payments as a special provision for the benefit of the children that was not inequitable in the circumstances. [ 22 ] As noted in Bromm v Bromm , 2010 SKQB 85 , 353 Sask R 198, there have been some differences in the approach taken to the meaning of “special provision” between provinces.

The leading case in Saskatchewan is Peterson v Horan , 2006 SKCA 61 , 270 DLR (4th) 450 [ Peterson ], which interpreted provincial legislation identical to s. 15.1(5) of the Divorce Act .

Justice Cameron, having noted as an example an agreement that a mother and child continue to reside in the family residence while the father paid the mortgage, had this to say: [36] This is but a simple example of what the Legislature seems to have had in mind in enacting the statutory exception contained in subsection 3(4), but it serves to identify the import of the subsection and the attributes of “special provisions” that “benefit a child” or that “have ...been made for the benefit of a child.” As the example suggests, such provisions will usually possess the following attributes: • they are unusual or out of the ordinary in the sense they do not feature in determining the amount of maintenance in accordance with the Guidelines ; • they serve to contribute to the maintenance of the child; and • they serve in effect to partially discharge the parent’s obligation to provide for the maintenance of the child and tend, therefore, to reduce the need, at least in part, for the amount of maintenance called for by the Guidelines . [ 23 ] The unequal property division, which left Ms.

Stein-Philipenko in possession of the family home and cottage, met all three of these criteria. In the result, there was sufficient evidence for the Chambers judge to conclude that the unequal division of property was a special provision that directly or indirectly benefitted the children. [ 24 ] The question, then, is whether it was open to the Chambers judge to conclude it would not be inequitable to order that Mr. Hanson pay s. 3 child support in the Guideline amount going forward.

As Wilkinson J. said in Epp , that analysis calls for “a consideration of both the circumstances of the parties giving rise to the order or agreement and their circumstances at the time of the application”. The Agreement and, in particular, the unequal division of property in favour of Ms. Stein-Philipenko, are key factors in this analysis. Those factors would often tip the balance in favour of refusing to order s. 3 support on an interim application. Parties are encouraged to reach agreements relating to property and child support.

As Cameron J.A. noted in Peterson , such agreements are often the product of give and take which is reflected in interrelated terms. The Agreement is such an agreement. [ 25 ] However, Mr. Hanson had the onus to demonstrate that an order in the Guideline amount would result in an inequity. There was very little evidence as to the needs and circumstances of the parties’ daughter, and no evidence as to their current income and financial circumstances. Further, Ms. Stein-Philipenko did not seek an order that Mr. Hanson also pay s. 7 expenses going forward.

In these circumstances, it was open to the Chambers judge to find that the application of the Guidelines would not be inequitable. [ 26 ] For that reason, the Chambers judge did not err when he ordered on April 13 that Mr. Hanson pay s. 3 child support in accordance with the Guidelines . He erred when he purported to reverse that order. It is apparent he knew he had no jurisdiction to do so but proceeded regardless.

It is for that reason he ordered that if his jurisdiction was challenged, the $400 per month order would remain in place for the time necessary to result in payment of $1,158 in s. 7 expenses. [ 27 ] In my opinion, both the order to rescind the April 13 order and the alternative order to limit child support to a period of less than three months were the result of an error in principle. The April 13 order that Mr. Hanson pay $400 per month in s. 3 child support based on an imputed annual income of $54,000, effective February 1, 2018, shall be reinstated, together with the provisions of the April 13 order that Mr.

Hanson provide tax returns and that either party could apply to have the amount of child support retroactively adjusted if Mr. Hanson’s income differs from his imputed income. Further, as this order for s. 3 child support is an interim order, it remains open to Mr. Hanson to seek a different result at trial. B. Did the Chambers judge commit a reviewable error by failing to award retroactive expenses within the meaning of s. 7 of the Guidelines in accordance with the Agreement? [ 28 ] The Chambers judge interpreted paragraph 14 of the Agreement to mean that Mr.

Hanson was obliged to pay the extracurricular and educational expenses referred to in paragraph 14 only if such expenses exceeded those Ms. Stein-Philipenko should reasonably cover, taking account of her income and the amount she would receive under the applicable table. He reached that conclusion based on the definition of extraordinary expenses in s. 7(1.1) of the Guidelines :

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has

otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [29] The Chambers judge then decided he could not award any amount for extraordinary expenses, as Ms. Stein-Philipenko did notreceive s. 3 child support, and he accordingly did not know what she would have received under the applicable table. [30] With respect, this reasoning is flawed. The parties agreed Mr. Hanson would pay 100% of s. 7 expenses within the meaning ofthe Guidelines, including specified “sporting activity fees”, “camp registration costs” and “school fees and supplies”.

His agreement topay 100% of those specified extracurricular and educational expenses – which could constitute s. 7 expenses only if they wereextraordinary extracurricular or educational expenses pursuant to s. 7(1)(

d) or (f) – was an integral part of the agreement relating toproperty division and child support. The

interpretation adopted by the Chambers judge rendered this provision meaningless, as it wouldinevitably mean that Ms. Stein-Philipenko would receive nothing for these expenses. Such an

interpretation offends a basic principle ofcontractual

interpretation. That is, as Robins J.A. said in Scanlon v Castlepoint Development Corporation (1992), (ONCA), 99 DLR (4th) 153 (Ont CA) at para 88: … To the extent that it is possible to do so, it should be construed as a whole and effect should be given to all of its provisions. Theprovisions should be read, not as standing alone, but in light of the agreement as a whole and the other provisions thereof: Hillis Oil &Sales Ltd. v. Wynn’s Canada Ltd., (SCC), [1986] 1 S.C.R. 57 at p. 66. The court should strive to give meaning to theagreement and “reject an

interpretation that would render one of its terms ineffective”: National Trust Co. v. Mead, (SCC), [1990] 2 S.C.R. 410 at p. 425. [31] For this reason alone, the

interpretation adopted by the Chambers judge results from an error in principle. [32] Further, as Cromwell J. said in Tercon Contractors Ltd. v British Columbia (Transportation and Highways), 2010 SCC 4,[2010] 1 SCR 69: [64] The key principle of contractual

interpretation here is that the words of one provision must not be read in isolation but should beconsidered in harmony with the rest of the contract and in light of its purposes and commercial context. … [33] Paragraph 14 of the Agreement must be considered in the context of the bargain for an unequal division of the family property.It is an element of that bargain, as are the provisions relating to s. 3 child support and for the payment of RESP contributions. If paragraph14 is interpreted in the manner determined by the Chambers judge, Ms.

Stein-Philipenko would bear all s. 7 extraordinary expenses as partof the bargain for unequal property division. That result would be inconsistent with the fact the Agreement expressly provides that theconsideration for the unequal division is relief from the obligation to pay s. 3 child support, not from the obligation to pay s. 7 expenses. [34] In the result, and with respect, the Chambers judge erred by interpreting paragraph 14 as he did. It accordingly falls to thisCourt to interpret that provision. [35] It is my view that paragraph 14, read in the context of the entire Agreement, is ambiguous.

That paragraph could be interpretedto mean that Mr. Hanson will pay only for extraordinary expenses within the meaning of s. 7(1.1) of the Guidelines, interpreting “theamount that the spouse would receive under the applicable table” as the table amount that would have been payable based on Mr.Hanson’s income from time to time. It could also be interpreted to mean, as Ms. Stein-Philipenko submits, that Mr. Hanson will pay notonly those amounts, but all sporting activity fees and other expenses specifically listed in paragraph 14 that are incurred by Ms.

Stein-Philipenko, regardless of whether they would otherwise be caught by the definition of extraordinary expenses. The fact that schoolsupplies, which generally do not constitute extraordinary expenses, are included in the list tends to support that

interpretation. The same istrue of the fact paragraph 14 lists some fees for extracurricular activities, but not others. [36] The existence of ambiguity in light of the text and the factual matrix means that evidence of subsequent conduct is admissiblein relation to the

interpretation of the Agreement: Shewchuk v Blackmont Capital Inc., 2016 ONCA 912 at paras 40–48, 404 DLR (4th)512; Wade v Duck, 2018 BCCA 176 at paras 28–32, 422 DLR (4th) 423. As Ms. Stein-Philipenko notes, there is evidence of subsequentconduct. Mr. Hanson twice paid Ms. Stein-Philipenko in accordance with her

interpretation of paragraph 14 after being pressed to do so.Further, he acknowledged a debt of $12,000 in child support in his bankruptcy statement, a ballpark amount which tends to support Ms.Stein-Philipenko’s

interpretation, and an ongoing obligation of $500 per month. That evidence of subsequent conduct tips the balance infavour of the second

interpretation just noted. That is, Mr. Hanson has agreed to pay 100% of expenses that would qualify as s. 7expenses, but has also agreed to pay the expenses specifically listed in paragraph 14 within 30 days of receiving the monthly bill from Ms.Stein-Philipenko regardless of whether they would fall within the Guidelines’ definition of extraordinary expenses. [37] It does not follow, however, that Mr. Hanson was obliged to pay the s. 7 expenses in the amount of $15,620.64 claimed by Ms.Stein-Philipenko. The spreadsheet attached to her affidavit lists many items which are not specifically listed in paragraph 14.

If the partiesare unable to agree as to the amount payable by Mr. Hanson, either party may apply to the Court of Queen’s Bench to resolve that issue. C. Did the Chambers judge commit a reviewable error by limiting the awardfor medical, dental and RESP contributions to those incurred within the two yearsprior to April 13, 2018, based on The Limitations Act? [38] In the Chambers decision, the Chambers judge relied on Katsiris as authority for the proposition that The Limitations Act

applied to an action to enforce the Agreement. Katsiris related to an action commenced by statement of claim to enforce an interspousalagreement which provided for an equalization payment arising from the division of family property. The Court did not consider whetherThe Limitations Act applied. It is accordingly of limited assistance. [39] Some courts have held that actions to enforce promises and interspousal agreements to pay child support are not subject tolimitation periods.

In Schmitke v Schmitke (1993), 87 BCLR (2d) 377 (SC) [Schmitke], the parties executed a separation agreement onMay 27, 1981, which provided that Mr. Schmitke would pay $100 per month in child support. In 1992, Mrs. Schmitke applied to claimarrears. Justice Kirkpatrick found that the Limitation Act, RSBC 1979, c 236, did not limit the claim to the six-year period prior to theapplication, on the following basis: I therefore conclude that the right to bring an action for the enforcement of child maintenance is the right of the child.

Since the child is “aperson under a disability” within the meaning of s. 7 of the Limitation Act, the running of time is postponed so long as she is a minor. [40] In Young v Rodgers, [2000] OJ No 4564 (QL) (Sup Ct J) [Rodgers], Mackinnon J. cited Schmitke with approval: 53 Further, there is authority that the right of support belongs to the child not the parent, and accordingly cannot be waived or lost by aparent’s delay or lack of diligence in enforcing the right. This was recently re-affirmed in Ontario in Wright v. Zaver (2000), (ON SC), 49 O.R. (3d) 629 (Ont. S.C.J.) at p. 640.

The result of the application of this principle would appear to include the resultthat the limitation period does not run until the child gains majority: See also Schmitke v. Schmitke (1993), 87 B.C.L.R. (2d) 377 (B.C.S.C.) at p. 11. [41] There is also authority that the running of the limitation period is not postponed until the child reaches the age of majority.

InEager v Graves (2002), (ON CA), 29 RFL (5th) 313 (Ont CA), the Court found that the Limitations Act, RSO 1990, cL.15, did not bar the respondent wife’s claim pursuant to a separation agreement for 12 years of arrears of child support, as the trial judgehad found that the appellant had promised to pay when he was financially able to do so. Although the Court did not analyze the issue, itappears to accept that the Limitations Act applied. [42] It is not necessary to decide whether the reasoning in Schmitke and Rodgers is sound.

The relevant provisions of TheLimitations Act are substantially different from the legislation in other provinces. The question in this case is whether the two-yearlimitation period resulting from the following provisions of The Limitations Act applies: 3(1) Subject to subsections (2) to (5), this Act applies to claims pursued in court proceedings that: (

a) are commenced by statement of claim; or (

b) are commenced by originating notice and are not proceedings in the nature of an application. … 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day on whichthe claim is discovered. … 8(1) The operation of any limitation period established by this Act or any other Act or regulation is suspended during any period in whichthe claimant: (

a) is a minor[.] [43] This claim for s. 7 expenses was not commenced by a statement of claim or originating notice. It was initiated by a notice ofapplication filed in a divorce action which was commenced by petition. As noted above, Ms. Stein-Philipenko’s counsel confirmed at thehearing that she did not seek an order for the payment of s. 7 expenses pursuant to the Divorce Act and the Guidelines. Rather, she soughta contractual remedy.

A court has the authority to grant contractual remedies such as damages and specific performance: Hnidy v Hnidy,2017 SKCA 44 at paras 113–114, 414 DLR (4th) 87 [Hnidy]. [44] In Hnidy, the Court confirmed that a contractual claim for child support may be initiated by a notice of application. In that case,the mother filed a notice of application for an order for retroactive and ongoing child support. She alleged, among other things, that thefather had breached an interspousal contract that provided for the payment of child support.

Part of that claim could only be enforcedpursuant to the contract, rather than by way of an order pursuant to the Divorce Act. Although the interspousal contract was, as here, filedto satisfy the Court that appropriate provision had been made for the children when the divorce was granted, there was no prior order forchild support. Justice Wilkinson (ad hoc) commented as follows in relation to the use of a notice of application: [120] I see no concern in having the contractual questions raised by way of motion in a

summary fashion as the mother did in thiscase. The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, s. 2, defines “family law proceeding” to include “an action or matter, whetherbased on statute law, common law or the inherent jurisdiction of the court”, with respect to “(

v) the maintenance of a spouse, child or otherperson”. By virtue of s. 98 of The Queen’s Bench Act, all family law proceedings are to be conducted as informally as the circumstances ofthe case permit. [45] She also commented as follows: [124] It should be reiterated that the Interspousal Contract before us has been on file with the Court of Queen’s Bench since March of2012, with a view to reassuring the court that reasonable provision had been made for the support of the children.

That is not an idle orperfunctory representation to the court, which granted the father’s request for divorce on the strength of that agreement. Should ittranspire that the agreement has not been observed, the court itself has an interest in ensuring the integrity of its own processes and inensuring that divorces are not obtained on the basis of representations that go unmet.

[ 46 ]

Section 3 provides that the limitation imposed by s. 5 of The Limitations Act applies to claims commenced by statement of claim and claims commenced by originating notice that are not in the nature of an application. For the reasons expressed in Hnidy , the contractual claim in issue here was properly raised by notice of application in the course of an action commenced by petition. Accordingly, The Limitations Act does not apply. [ 47 ] I recognize that this approach to the

interpretation of The Limitations Act , based as it is on the form of originating document properly used to initiate a claim, may seem unusual. However, the Act has an unusual structure, and the language of s. 3 must be given meaning. There are decisions which recognize that fact. In Fecyk v Bracken , 2017 SKQB 85 , for example, the Court held that there is no limitation period in relation to claims under The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 , that proceed before a hearing officer.

Justice Currie commented as follows: [22] In the absence of a limitation provision in The Residential Tenancies Act, 2006 it is appropriate to consider, as the hearing officer did, the possible application of The Limitations Act . The wording of s. 3 of The Limitations Act is clear. That Act applies to claims pursued in court proceedings that are commenced by statement of claim or originating notice. Mr. Fecyk’s claim is not a claim pursued in court proceedings. He pursued the claim in proceedings before a hearing officer of the Office of Residential Tenancies. Nor was Mr.

Fecyk’s claim commenced by statement of claim or originating notice, both of which are documents that commence proceedings in court.

See also Syed v 612565 Saskatchewan Ltd. , 2009 SKQB 141 at paras 15–16 , [2009] 7 WWR 682, where Dovell J. finds that The Limitations Act applies to an action to enforce a lien under The Builders Lien Act , SS 1984-85-86, c B-7.1 , “because under s. 86(1) of The Builders’ Lien Act , an action to enforce a claim of lien ‘is to be commenced by a statement of claim’”. [ 48 ] Further, the Legislature’s decision to adopt the approach reflected in s. 3(1) can be explained by recognizing that there is a relationship between the nature of a claim and the proper form of an originating document.

That relationship means that the significance of the originating document goes beyond a matter of mere form. [ 49 ] I note the result would have been the same if the claim had been commenced by an originating document in accordance with

Part 15 of The Queen’s Bench Rules . Rule 15-6(1) provides that a family law proceeding shall be commenced by petition. Rule 15-1 says that a “family law proceeding” means a family law proceeding as defined in s. 2 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 . That definition includes an action based on common law with respect to the maintenance of a child. Section 3(1) of The Limitations Act does not provide that the Act applies to claims pursued in court proceedings commenced by petition.

I note that Rule 3-49(2) provides that where an enactment or the Rules provide that an action must be commenced by petition, it may also be started by originating application. It is not necessary to decide whether The Limitations Act would have applied if Ms. Stein-Philipenko had commenced this contract claim by originating application despite Rule 15-6(1). [ 50 ] In the result, the Chambers judge erred by limiting the award for medical, dental and RESP contributions to those incurred within the two years prior to April 13, 2018, based on The Limitations Act . D.

Did the Chambers judge commit a reviewable error by failing to award costs to Ms. Stein-Philipenko? [ 51 ] Given that costs normally follow the cause, I conclude that the Chambers judge’s decision that each party would bear their own costs was based on his conclusions as to the relative success of the parties on the application before him. Ms. Stein-Philipenko has succeeded in relation to each of the three substantive issues she has raised on this appeal. For that reason, the order of the Chambers judge as to costs should be set aside, and Ms.

Stein-Philipenko should have her costs of this appeal and the application heard by the Chambers judge in the usual way. V. CONCLUSION [ 52 ] For these reasons, the appeal is allowed and it is ordered as follows: (

a) Mr. Hanson shall pay interim child support for their daughter in the amount of $400 per month, on the first day of each month commencing February 1, 2018, pursuant to s. 3 of the Guidelines , based on his imputed annual income of $54,000. (

b) Mr. Hanson will file with the Court of Queen’s Bench and provide to counsel for Ms. Stein-Philipenko copies of his 2016, 2017 and 2018 tax returns within 30 days of the date of this order. (

c) Either party shall be entitled to apply to retroactively adjust this order for the payment of s. 3 child support if Mr. Hanson’s income differs from the imputed income of $54,000. (

d) Mr. Hanson shall pay Ms. Stein-Philipenko 100% of expenses incurred by Ms. Stein-Philipenko from June 1, 2014, to December 31, 2017, which would constitute s. 7 expenses for their daughter within the meaning of the Guidelines , in accordance with paragraph 14 of the Agreement, provided that extraordinary expenses shall be calculated as follows: (

i) All sporting activity fees (including, but not limited to, registration fees, team fees, tournament costs, and equipment), camp registration costs, medical and dental expenses not covered by insurance, and school fees and supplies incurred by Ms. Stein-Philipenko, regardless of whether those expenses would constitute extraordinary expenses pursuant to s. 7(1.1) of the Guidelines ; and (ii) Extraordinary expenses not listed in (

i) above, calculated on the basis that the phrase “the amount that the spouse would receive under the applicable table” means the amount Ms. Stein-Philipenko would have been entitled to receive as s. 3 child support based on Mr. Hanson’s annual income if the Agreement did not exist. (

e) Mr. Hanson shall pay Ms. Stein-Philipenko an amount equal to any RESP payment Ms. Stein-Philipenko makes on behalf of

the child of the marriage to a maximum of $75.00 per month. (

f) If the parties are unable to agree as to the amount payable pursuant to (

d) above, either party may apply to the Court of Queen’s Bench to determine that issue. (

g) Ms. Stein-Philipenko shall have her costs of this appeal and of the application which resulted in the Chambers decision. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Tholl J.A.” Tholl J.A.