Peterson v Peterson, 2019 SKCA 76

Court of Appeal for Saskatchewan Docket: CACV3366 Citation: Peterson v Peterson , 2019 SKCA 76 Date: 2019-08-07 Between: Lucas Morgan Peterson Appellant (Petitioner) And Renee Marie Peterson Respondent (Respondent) Before: Ottenbreit, Schwann and Kalmakoff JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Madam Justice Schwann On Appeal From: 2019 SKQB 24 , Regina Appeal Heard: June 14, 2019 Counsel: R. Bradley Hunter, Q.C. for the Appellant Christine Hansen-Chad for the Respondent Kalmakoff J.A.

I. Introduction [ 1 ] Lucas Peterson appeals from a decision rendered by a Court of Queen’s Bench judge following a trial dealing with issues of mobility, custody and parenting, child support, spousal support and costs ( Peterson v Peterson , 2019 SKQB 24 [ Trial Decision ]). [ 2 ] For the reasons that follow, I would allow the appeal only to the extent of varying the amount of retroactive child support ordered. II. BACKGROUND [ 3 ] The appellant, Lucas Peterson [Lucas], and the respondent, Renee Peterson [Renee], were married on February 22, 2010. They separated on December 29, 2015.

They are the parents of two children. [ 4 ] Lucas and Renee are both originally from North Dakota. While they were married, they lived on a farm near Parkman, Saskatchewan. Lucas has dual citizenship, while Renee is an American citizen, with permanent resident status in Canada. Lucas and his brother run a large farming operation, with land holdings on both the Saskatchewan and North Dakota sides of the international border.

Renee was not employed outside the home while they resided in Saskatchewan but, after separation, she became employed as a pharmacy technician in North Dakota. [ 5 ] Lucas now lives in Redvers, Saskatchewan, which is near Parkman. Renee lives and works in Kenmare, North Dakota, where she took up residence for reasons both personal and professional after she and Lucas separated. Kenmare is about 140 kilometers from Redvers.

Despite that distance and the presence of the international border between the two locations, Lucas and Renee exercised joint custody and shared parenting of the children after separation, with the children rotating between the care of the two parents on a weekly basis. During the weeks that Renee had the children, they stayed with her at an apartment she rented in Redvers. On the weeks that she did not have the children, Renee stayed at her home in Kenmare. [ 6 ] This arrangement placed a strain on Renee’s employment, as it limited her to part-time hours at her job in Kenmare.

Permanent relocation to Redvers was not an attractive option for Renee. Professionally, this was because she did not have the necessary professional designation in Saskatchewan to continue in her chosen line of work and, on a personal basis, because her current partner was not willing to move. As a result, Renee brought an application to be permitted to relocate the children to North Dakota. Lucas sought an order that the children continue to reside in Saskatchewan. [ 7 ] The parties’ disagreement on this point could not be resolved, so they went to trial.

The key point of contention was whether the children would be permitted to relocate from Saskatchewan to North Dakota. The trial also dealt with issues of child support and spousal support. [ 8 ] The trial judge determined the custody and parenting issue in Renee’s favour, ordering that the children be permitted to relocate to North Dakota. He ruled that Lucas and Renee would continue to have joint custody and would be entitled to continue in a shared-parenting arrangement. [ 9 ] The trial judge also made ongoing and retroactive child support orders based on shared parenting.

He determined the parties’ incomes for child support purposes, using the figures established by their 2017 tax information. In that regard, he found Lucas’s income to be $135,300.00 per year, and Renee’s to be $29,991.00. Ongoing child support calculations were based on those figures, applying the

Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], and a set-off for shared parenting to determine the amounts payable. The trial judge also ordered Lucas to pay retroactive child support to Renee in the amount of $17,921.94. [ 10 ] The trial judge found that Renee was entitled to retroactive spousal support. He ordered Lucas to make a lump sum payment of $15,000.00 in that regard.

Finally, the trial judge determined that, in light of his decision on the custody and parenting issues, Renee would not be entitled to ongoing spousal support if the children relocated to Kenmare, because she would be able to secure full-time employment in her chosen profession. However, the trial judge also found that in the event the children did not relocate, and Renee returned to live in Saskatchewan, she would be entitled to spousal support of $1,465.00 per month for a period of five years. [ 11 ] The trial judge awarded costs against Lucas, to be calculated on Column I of the Tariff.

III. the arguments on appeal [ 12 ] Lucas argues that the trial judge made several errors. While he attacks the custody and parenting order from several different angles, the central theme of Lucas’s argument is this: the trial judge erred by deciding the mobility issue on the basis of whether it was better for the parents to live in North Dakota or Saskatchewan. Lucas argues that, in doing so, the trial judge ignored the fact that there was no evidence to support a conclusion that either parent would agree to leave their preferred residence.

He also asserts that the trial judge placed too much emphasis on how relocation would affect the parents – either positively or negatively – and failed to adequately consider the adverse impacts of relocation on the children.

Lucas says that, in analyzing the question in this fashion, the trial judge erred by failing to focus on the best interests of the children. [ 13 ] Lucas also argues that the trial judge seriously misapprehended the evidence by concluding that he could relocate to North Dakota. [ 14 ] With respect to the issue of child support, Lucas argues that the trial judge improperly assessed the evidence relating to the calculation of Renee’s income for determining both ongoing and retroactive support. [ 15 ] Lucas also asserts that the trial judge erred in ordering “provisional” spousal support in the event that Renee moves back to Saskatchewan, when there was no evidence upon which to conclude that she would do so. [ 16 ] Finally, with respect to costs, Lucas argues that parties’ success at trial was mixed and, as such, the trial judge erred in ordering costs in favour of Renee. [ 17 ] Renee argues that the Trial Decision should be upheld.

She says the trial judge carefully considered all the evidence as it related to the issue of relocation of the children and correctly concluded that it was in the best interests of the children for them to be relocated to North Dakota. Renee says that the trial judge did not order where the parties should reside and that he applied the law correctly in making his determination. [ 18 ] Renee also argues that the trial judge correctly assessed the parties’ respective incomes and correctly applied the law in determining amounts payable for child support, both retroactive and ongoing.

She also takes the position that the trial judge made no error in assessing spousal support and properly exercised his discretion regarding costs. IV. the issues [ 19 ] In light of the arguments advanced by the parties, I would frame the issues for determination on this appeal as follows: (

a) Did the trial judge err in his custody and parenting decision by misapprehending the evidence regarding the parties’ ability or willingness to relocate? (

b) Did the trial judge err in his custody and parenting decision by failing to properly apply the “best interests of the child” test, by basing the decision regarding relocation on inappropriate or irrelevant considerations, or by failing to properly consider the impact of relocation on the children? (

c) Did the trial judge misapprehend the evidence or otherwise err in principle in assessing Renee’s income for child support purposes? (

d) Did the trial judge err in awarding “provisional” spousal support? (

e) Did the trial judge err in awarding costs to Renee? V. THE STANDARD OF REVIEW [ 20 ] The scope of appellate review in custody and access cases is narrow. An appellate court may only intervene where there is a material error, a serious misapprehension of the evidence or an error in law.

It is not entitled to intervene simply because it would have made a different decision or balanced the relevant factors differently than the trial judge: Van de Perre v Edwards , 2001 SCC 60 , [2001] 2 SCR 1014 [ Van de Perre ]; D.G. v C.R.H. , 2010 SKCA 127 , 362 Sask R 261; Olfert v Olfert , 2013 SKCA 89 , 417 Sask R 283 [ Olfert ]; Ackerman v Ackerman , 2014 SKCA 86 , 442 Sask R 113 [ Ackerman ]; Dukart v Quantrill (Jones) , 2015 SKCA 138 , 472 Sask R 97. [ 21 ] A similarly deferential standard of review applies to support orders.

Appellate courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong: Hickey v

Hickey, (SCC), [1999] 2 SCR 518; Schimelfenig v Schimelfenig, 2014 SKCA 77, 442 Sask R 30; D.B.B. v D.M.B., 2017SKCA 59; Bergquist v Bergquist, 2014 SKCA 20, 433 Sask R 173. VI. analysis A. Did the trial judge err in his custody and parenting decision bymisapprehending the evidence regarding the parties’ ability or willingness to relocate? [22] Lucas argues that the trial judge misapprehended the evidence regarding the parties’ ability and willingness to move.

He saysthe trial judge appears to have concluded that Lucas could relocate to North Dakota to make a shared parenting arrangement work, eventhough Lucas was clear in his testimony that such a move on his part was not realistic and even if it could be accomplished, he had nointention of moving.

This misapprehension of the evidence, Lucas argues, led the trial judge into another error, namely, focusing on theimpact of the children’s relocation on the parents rather than focusing on its impact on the children. [23] In that regard, Lucas argues that the error is first revealed in the opening paragraphs of the Trial Decision, where the trial judgesays: [1] The parties are the parents of two children. The evidence at trial makes it clear they are loving, caring, and nurturing, parents.

Butfor the parties attempting to accommodate their own individual life choices, it is expected they would not need judicial intervention indecisions regarding their children. [2] This case requires the court to choose, essentially, between two equals. The parents are equally capable of parenting their children.The homes each of the parents reside in are equally appropriate for the children. The towns where each of the parents live are equally goodplaces to raise children. The social network for the children is equally available in either location. The parents’ commitment to theirchildren is equally apparent.

The parents’ extended families, while not equal in number, appear equally committed to the children. [3] But, the parents live in different communities, in different countries. And therein lies the problem. Each wants the children to livewhere the parent has established a residence.

Each is prepared to have the other remain fully involved in the children’s lives, but that isconditional and requires the other to relocate. [24] Lucas says the trial judge’s reasons demonstrate that a significant emphasis was placed on the parties’ respective ability andwillingness to relocate, and that the trial judge concluded Lucas could do so. In particular, Lucas points to paragraphs 71 and 72 of theTrial Decision: [71] During argument, counsel for the petitioner submitted his client would not be relocating to the Kenmare area if it were ordered thechildren be permitted to locate there.

While counsel’s submissions were quite certain, that was not the tenor of the petitioner’s evidence.He testified as to the difficulty of commuting from North Dakota to Saskatchewan. His brother testified as to the difficulties his brother’sabsence would create and the need to reconsider their farming arrangement if he relocated. However, the petitioner did not stateunequivocally he would not relocate. The petitioner testified if he was to stay in the U.S. it would not be at Kenmare, but, rather, would beeither in Mohall, or east of Mohall.

As indicated, the communities are a short distance from one another, 30 minutes or less. [72] I note further during argument, counsel for the respondent submitted her client would consider relocating to the Redvers area ifthere was to be an order the children be directed to be located there. While counsel’s submissions sought to accommodate this possibility,that was not the tenor of the respondent’s evidence. Her testimony was quite certain she deemed herself unable to relocate due to thedirection her life had taken and the financial limitations she was experiencing.

Accordingly, she was going to live in Kenmare for theforeseeable future. [25] Lucas submits these paragraphs reveal a misapprehension of the evidence, because he never stated that he was prepared torelocate to North Dakota, and his counsel argued at trial that he would not move to North Dakota, regardless of the court’s decisionregarding the relocation of the children. [26] With respect, I cannot give effect to this argument. [27] When the trial judge’s reasons are read as a whole, it is clear that Lucas’s ability and willingness to move were not thedetermining factors in the decision regarding relocation of the children.

I do not accept Lucas’s argument that the trial judge’s decision topermit the children to relocate was really a decision about where each parent should live in order to permit the shared-parentingarrangement to continue. [28] Furthermore, even if Lucas’s willingness or ability to move was a factor, I must recognize the deference afforded to a trialjudge’s assessment of credibility and findings of fact.

An appeal court will only overturn a trial judge’s findings of fact if they are clearlywrong, unreasonable, or unsupported by the evidence, and the error would have affected the result: Housen v Nikolaisen, 2002 SCC 33 atpara 107, [2002] 2 SCR 235; Semchyshen v Semchyshen, 2016 SKCA 108 at paras 29–30, 402 DLR (4th) 623. [29] In my view, the trial judge’s comments about Lucas’s evidence at paragraph 71 of the Trial Decision are supported by theevidence.

While Lucas stated that he had no intention of relocating to Kenmare, or anywhere else in North Dakota, it was open to the trialjudge to reject that testimony, especially in light of the fact that there was ample evidence that Lucas had strong familial and business tiesto the Mohall, North Dakota area. He owned and actively farmed a significant land holding in that vicinity. His parents maintained aresidence near Mohall and lived there during the summer months.

In light of the deference owed to assessments of credibility and findingsof fact, I am unable to find that the trial judge’s conclusions relating to Lucas’s ability to move reveal a material misapprehension of theevidence.

B. Did the trial judge err in his custody and parenting decision by failing toproperly apply the “best interests of the child” test, by basing the decision regardingrelocation on inappropriate or irrelevant considerations, or by failing to properlyconsider the impact of relocation on the children? [30] Lucas argues that the trial judge erred in the application of the “best interests” test by labeling this a “mobility” case, andfocusing his attention on the ability of the parents to relocate and how their respective interests would be impacted by relocation.

In effect,says Lucas, the trial judge turned the decision into one about which parent would be more easily able to relocate so that a shared parentingarrangement could be maintained.

Lucas argues this was an error in that the trial judge turned his focus away from the best interests of thechildren and toward the best interests of the parents. [31] Lucas also asserts that the Trial Decision effectively amounts to an order that he move because it makes the continued exerciseof shared parenting conditional on him relocating to North Dakota. [32] Lucas also argues that the trial judge erred by overemphasizing the importance of Renee’s reasons for moving to Kenmare andpaying too little attention to the disruption the children would suffer if they had to relocate to North Dakota. [33] Finally, he argues that the trial judge erred in applying the long list of factors set out in Chepil v Chepil, 2014 SKQB 341, 458Sask R 289 [Chepil], as though they were a comprehensive checklist to be used in deciding the issue of custody in a mobility case. 1.

Applicable legal principles [34]

Section 16 of the Divorce Act, RSC 1985, c 3 (2d Supp), governs orders for custody and access. While the discretion given tojudges by s. 16 is relatively broad, it is shaped by two key principles relevant to this case: (

i) best interests of the child; and (ii) maximumcontact. In that respect, s. 16 reads, in part, as follows: Order for custody 16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting thecustody of or the access to, or the custody of and access to, any or all children of the marriage. … Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. … Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [35] The wording of s. 16(8) makes it clear that the principal determination to be made in any case involving custody is the bestinterests of the child: Van de Perre.

This is reinforced by the governing jurisprudence. “Best interests of the child” is truly the onlyrelevant consideration in making a custody order: Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon]; see also Russellv Russell, 2018 SKCA 80 at para 15, 16 RFL (8th) 26. [36] Determining the best interests of the child requires a child-centered analysis, representing the child’s right to the best possiblearrangement in the circumstances.

While parental interests and claims are entitled to serious consideration, they must be set aside wherethe welfare of the child demands it: A.O. v T.E., 2016 SKCA 148, 88 RFL (7th) 34. [37] As set out in s. 16(10), a court making a custody order must also give effect to the “maximum contact” principle. This is areflection that it is presumptively in the child’s best interests to have as much contact as possible with both parents, in the absence of anyreason to suggest otherwise: Young v Young, (SCC), [1993] 4 SCR 3 [Young].

The maximum contact principle is notabsolute, but consideration of it is mandatory: Berry v Berry, 2011 ONCA 705, 343 DLR (4th) 501. The maximum contact principle doesnot create a presumption of shared parenting. What maximum contact amounts to, in any individual situation, depends on the best interestsof the child or children in question and the particular circumstances of the case: Ackerman at para 40. [38] The leading authority on relocation cases is Gordon. In that case, McLachlin J. (as she then was) set out the governingprinciples at paragraph 49, saying: [49] The law can be summarized as follows: … 5.

Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. (Emphasis in original) [ 39 ] The best interests of the children must also be determined from a child-centric perspective in mobility cases: Olfert at para 18 . In some circumstances, the reasons for a parent’s move will be relevant, but this will usually not be the case: Gordon . In some cases, relocation may be in the child’s best interests, even if it limits access for one parent or the other: Young .

And, sometimes, application of the maximum contact principle will be a major factor in a mobility decision, even if facilitating maximum contact creates inconvenience for one parent or the other: R.E.Q. v G.J.K. , 2012 BCCA 146 , 348 DLR (4th) 622. [ 40 ] While the best interests of the children in mobility cases requires consideration of the available options and scenarios, not every case requires the court to conduct a highly-detailed analysis of each possible scenario, nor does a failure on the part of a trial judge to set out such a detailed analysis necessarily amount to a material error: Olfert at para 22 . [ 41 ] Gordon says that a parent’s reason for moving is only to be considered in exceptional cases, but there is support in the jurisprudence for the proposition that the impact of a move on the financial and emotional well-being of a parent who seeks to relocate is a factor that may properly be considered in the “best interests” analysis, because it is in a child’s best interests to have well-functioning and happy parents: Orring v Orring , 2006 BCCA 523 , 276 DLR (4th) 211.

As long as the analysis remains child-centred, and not parent- centred, the “happy parent-happy child” factor may properly form part of the analysis: A.L. v M.L. , 2019 SKCA 61 at para 37 . [ 42 ] Of course, in the context of an appeal, the trial judge’s application of the relevant legal principles must be assessed through the lens of deference. It is not a question of whether this Court would have balanced the relevant factors the same way the trial judge did. Intervention will only be warranted if the record reveals a material error, a serious misapprehension of the evidence, or an error in law. 2.

The legal principles applied to the decision of the trial judge [ 43 ] Lucas contends that the manner in which the trial judge dealt with the mobility question and applied the “best interests” test was premised on a fundamental error; namely, that shared parenting could only continue if Lucas were to relocate to North Dakota.

He cites decisions of this Court in Delaire v Delaire , 2002 SKCA 71 , 223 Sask R 229 [ Delaire ], and H.S. v C.S. , 2006 SKCA 45 , 279 Sask R 55 [ H.S. ], as authority for the proposition that it is an error in principle for a judge to make a custody order conditional upon a parent relocating. [ 44 ] While it may be an error for a judge, when dealing with the issue of custody, to order a parent to reside in a certain location, Delaire and H.S. do not mean that the ultimate determination on custody can never be dependent on where a parent chooses to live.

In Jochems v Jochems , 2013 SKCA 81 , 417 Sask R 232, Richards C.J.S., referring to the decision in Delaire , wrote: [26] I do not read this to be a declaration that, at the level of general principle, a court can never make an order to the effect that custody is dependent on where a parent chooses to live. It seems to me that, depending as always on the facts of the individual case, it might well be in the best interests of a child to live with a particular parent if that parent resides in location X but in the child’s best interests to live with the other parent if the first parent lives in location Y.

See: James G. McLeod, Child Custody Law and Practice , looseleaf (Toronto: Carswell, 2013) at 7-17. [27] I understand the Court in Delaire to have been saying only that the trial judge in that case had erred by putting an improper emphasis on the mother’s motivation for moving to Calgary and that this had created a resulting error in the assessment of the best interests of the children. This same view of Delaire was adopted by this Court in Gilles v.

Gilles , 2008 SKCA 97 , [2008] 10 W.W.R. 610 at para. 27 . … [ 45 ] As I read it, this means that the reason for a parent’s choice of residence is a factor that can be considered in determining the best interests of the child. The best interests of the child may be served by a parent living in one location, but not another. Accordingly, it is not an error to incorporate such a consideration into the analysis. [ 46 ] Furthermore, as I read the Trial Decision , there is nothing in it that requires Lucas to relocate, or that makes the continuation of a shared-parenting regime contingent upon him relocating.

The trial judge said at paragraph 3 of the Trial Decision : “Each wants the children to live where the parent has established a residence. Each is prepared to have the other remain fully involved in the children’s lives, but that is conditional and requires the other to relocate ” (emphasis added). However, I do not view this as a direction that Lucas must relocate.

When this excerpt is read in the context of the trial judge’s reasons as a whole, it is apparent that he is simply outlining the parties’ positions at trial in these opening paragraphs. [ 47 ] At paragraph 48 of the Trial Decision , the trial judge framed the central issue as “[s]hould the children be permitted to relocate to North Dakota, or should their residence be at Redvers, Saskatchewan?” By doing so, the trial judge made it clear that he was focused on

where the children would reside, not on where the parents would reside. [ 48 ] The trial judge, in his reasons, considered the statutory framework for making parenting arrangements. He paid particular attention to the “best interests of the child” requirement and “maximum contact” principles set out in ss. 16(8) and (10), respectively, of the Divorce Act and then went on to say: [50] The court’s singular focus when determining parenting arrangements is to do that which is in the best interests of the children.

Due to the complexity of life, and living arrangements, determination of those best interests necessarily involves many considerations. Those considerations span the entirety of the children’s and parents’ lives. Some are of more import than others. But, at the end of the inquiry, the totality of the circumstances in which these children find themselves must be considered, reviewed, and applied.

This is so, always with the focal point of the lens of inquiry set to the children. [ 49 ] The trial judge then reviewed the leading authorities, including Gordon and Young , and cited the work of leading academics in relation to the principles applicable to determining issues of custody in mobility cases and the practical implementation of the “best interests” principle, following which he said: [54] What is in the children’s best interests is an elastic concept. It can expand or contract depending on the particular facts of any case.

Suggesting the reality of a parents’ situation is not a relevant, or impactful, consideration, is of little assistance. Certainly, the inquiry is “child-centric”. However, the reality is the parents’ situation is part of the children’s world.

Accordingly, it must be considered in any inquiry. [ 50 ] The trial judge then cited the decision in Chepil and recounted the list of factors that case sets out to be considered in assessing whether a relocation is in the best interests of the children, noting that no such list is exhaustive and that the “best interests” principle requires the court to consider the move from all possible perspectives and that the objective is to ensure that a child’s complete setting is considered in arriving at a final decision. [ 51 ] The trial judge embarked on a review of the evidence and the arguments advanced by the parties.

He considered a scenario which would have the children continue to reside in Redvers. He considered the proposed relocation of the children to Kenmare. He considered what each scenario had to offer in terms of schooling, extracurricular activities, the opportunity for continued contact with extended family, and the availability of family support in each location for Lucas and Renee.

He also considered the impact of each scenario – both personally and professionally – on Lucas and Renee. [ 52 ] Notably, the trial judge determined, because the children had a positive relationship with both Lucas and Renee and both were clearly committed and capable parents, that shared parenting was in the children’s best interest: [62] It bears repeating the parties are good, loving, nurturing, and devoted parents. The children are well-served living in either, or both, of their houses.

Despite the challenges in navigating between two countries, they have each achieved a good, stable relationship with their children. As a result, it is apparent a shared parenting regime has worked and can continue to work between the parties. It is also apparent the children have thrived with the interim shared parenting arrangement.

The manner in which each of them testified about the children showed their commitment in this regard. [ 53 ] The trial judge also concluded that there was little to choose between the two alternatives being proposed by Lucas and Renee, at least in terms of the benefits of the children residing in each community. In that regard, he wrote: [65] The introduction to this judgment talks about this being a choice between equals. The communities of Kenmare and Redvers are of similar, if not identical, size. They both have public schools.

They both have a daycare and a playschool, and each appears to be a stable, professionally run operation. They each have, to a lesser or greater extent, family available to the children. They each provide a circle of friends for the children.

They each have activities suitable for a child to be involved in. [ 54 ] After conducting this review, the trial judge turned his attention back to the legal analysis of the best interests of the children: [73] As part of the focus on the children’s best interests, the following statement by L’Heureux-Dubé J. in Young at 84, is of value to the situation in this case: The best interests of the child is not simply the right to be free of demonstrable harm. It is the positive right to the best possible arrangements in the circumstances of the parties.

This could not be more clearly indicated than in the report on Family Law , [J. F. Burrett, Child Access and Modern Family Law (1988)] supra , as the Law Reform Commission of Canada begins its recommendations on children and the dissolution of marriage with the following words at p. 63: 1. Children should have two fundamental rights when their parents’ marriage ends: (

a) the right to social and psychological support by having the most suitable arrangements possible in the circumstances made for their custody, care and upbringing; and (

b) the right to economic support. [74] In determining this mobility issue, I repeat, the guiding light is to do that which is in the children’s best interests. The factors cited in authorities like Chepil , or One v One , 2000 BCSC 1584 , 81 BCLR (3d) 315 or N.D.L. v M.S.L ., 2010 NSSC 68 at para 9 , 83 RFL (6th) 214, are of assistance in focussing in on the best interests of the child. Every case is unique and must be analysed according to its own peculiar facts. [75] The parties here were, by all accounts, engaged parents while they were living together.

It appears the respondent was, perhaps, primarily responsible for caring for each of the children, when they were young, and while the petitioner was involved in the farming operation. However, it is equally apparent the petitioner was an involved and committed parent.

[76] Of the various factors to be considered, attention must be paid, in particular, to the following:

i) The court should consider the parents’ reasons for moving only where that is relevant to the parents’ ability to meet the needs of the child.

Specifically, the advantages of a move to the moving parent with respect to that parent’s ability to better meet the child’s needs may be a factor if evidence is tendered to illustrate such advantages; ii) The feasibility of a return by the moving parent to the original location should be considered; iii) The feasibility of a parallel move by the parent who is objecting to the move should be reviewed; iv) The court should consider the disruption to the child if there is a change in residence.

The court should consider specifically the disruption to the child if there is a change in family, schools and the community the child has come to know.

This includes considering the disruption of the child’s existing social and community support and routines by completing a move. [ 55 ] The trial judge then went on to consider in detail the four factors he had set out in paragraph 76 of the Trial Decision . [ 56 ] With respect to the first factor, the reasons for Renee’s move, the trial judge concluded that Renee’s relocation to Kenmare would put her in a better position to provide for the children financially, because her employment opportunities would be extremely limited if she continued to live in Redvers.

In fact, in Redvers, she would be precluded from working in the field in which she is educated and qualified. [ 57 ] As to the second factor, the trial judge concluded that it was not feasible for Renee to move to Redvers, for reasons both professional and personal.

The trial judge accepted that there were no suitable employment opportunities available to Renee in Redvers and also that it was not feasible for her new partner to relocate there from Kenmare. [ 58 ] The trial judge also analyzed the third factor, namely, a parallel move by Lucas to North Dakota, and concluded that, given the nature of Lucas’ farming operation, his family ties to the Mohall area and the flexibility that may exist in their parenting arrangement, it would be possible for Lucas to establish a base of sorts in North Dakota to make shared parenting work.

In that regard the trial judge wrote: [88] The petitioner continues to farm in North Dakota, albeit for a considerably smaller operation than what is being done in Canada. He continues to travel back and forth between the two locations. He has a connection to, and a life in, the Mohall area. His brother, and business partner, similarly has a life in, and a connection to, the Mohall area of North Dakota. [89] His parents, uncle, and brother, all have houses in that area. It appears, from the evidence, the petitioner attends regularly down to the Mohall area.

As a result, he either has accommodation available to him, or, reasonably, can be expected to arrange such accommodation. [90] If a continuation of the shared parenting arrangement was directed, and the petitioner was to then relocate to North Dakota, he would be required to live in a residence there, for at most, one half of the school year.

On those weeks he does not have parenting time with the children, he would be able to spend the bulk of his time in Redvers, if that is what he so chose, to attend to the farming operation there. [91] In fact, it appears from the totality of the evidence his time commitment to North Dakota would potentially be even less than described above. The parties have engaged in discussions regarding changes to the parenting time during the petitioner’s seeding and harvest times. It appears the respondent has been, generally, prepared to accommodate these events.

She testified she could not do this if the parenting continued to be out of Redvers as she was then giving up her non-work time to accommodate the petitioner. She could, however, engage in this accommodation if the parties were in North Dakota. [92] As well, there are other time issues to consider. A move to North Dakota, according to the evidence, means the children will be out of school a month earlier than if in Saskatchewan.

This time frame should allow further accommodation to permit the petitioner to exercise his parenting time where he seeks to exercise it. [93] Finally, there is the usual collection of school holidays which will be shared between the parties. This will allow the parties to ensure their time is spent as effectively as possible parenting the children to accommodate their individual lives. [ 59 ] Finally, the trial judge went on to consider the fourth factor: the disruption that would be caused to the children’s lives by relocation. He noted that the status quo was only one factor to consider.

He also took into account the impact that relocation would have on the children’s schooling, extracurricular activities, and their ability to remain involved with the farm life they had in Redvers.

In the end, the trial judge concluded that the disruption to the children was not such as should prevent them from being allowed to relocate to North Dakota. [ 60 ] After conducting that review and analysis, the trial judge outlined his conclusion on parenting, at paragraphs 108–117 of the Trial Decision : [108] I conclude on all of the evidence, the continued involvement of both of the parties in the lives of the children is in the best interests of these children. Maximizing that involvement is in the best interests of the children going forward.

The question then becomes how to effectively continue that involvement. [109] The reality of the situation before the court is a shared parenting regime may be continued even though the children will be relocated to North Dakota. The same cannot necessarily be determined if the children remain in Saskatchewan. While the respondent could relocate to Saskatchewan, on the evidence, that is neither practical nor appropriate. She cannot work here at her profession. Her partner will not relocate. She has support in North Dakota. [110] As indicated, the respondent has established her life in North Dakota.

While the petitioner refers to their agreement on marriage to

live in Saskatchewan, the situation changed on their separation. It should not be surprising the respondent has returned to her home area. She has no connection to Saskatchewan. The evidence does not disclose she has any social network in Saskatchewan. It appears she has no contacts when she comes here to have her parenting week with the children. [111] On the other hand, the petitioner maintains his contacts with both Saskatchewan and North Dakota. He has significant connection in both places, both economically and socially.

It is recognized the economic connection is more significant in Saskatchewan but that is a function of the size of the farming operation. [112] While arrangements, and compromises, will need to be made, these children can continue to have the benefit of both of their parents in their lives on a shared basis, if that were to occur in North Dakota. I conclude, on the totality of the evidence, that cannot occur in a real, and substantive, basis in Saskatchewan. [113] Unlike many other mobility cases, the choice here is not between one side or the other.

The choice is not also a stark complete upset of the existing lives for these children, in favour of a different, unknown to them, arrangement. A similar observation on the lack of complete change was made in the Chepil decision: [55] The children have apparently complete lives either in Regina or Wynyard. While they attend school in Regina and are involved in some extracurricular activities, they also lead a full life in Wynyard. On the evidence, they have friends who live on the same block as they do in Wynyard and they play with them regularly.

On the whole of the evidence, I do not see there would be long term disruption to either of the children if there was to be a change in their living arrangements or in their school. While the parties lived with the children, together, until very early last year, the new reality for the children has been mom living in Wynyard and dad living in Regina. The eldest child attends school in Regina. I cannot conclude on the evidence it would be any more than temporarily disruptive for her to have to change schools.

While the children have friends and a social network in both locations it appears this is more developed when the children are in Wynyard as they would live close to the school and other children who attend school together with the friends on the block. [114] Considering all of the foregoing, I determine it is in the best interests of these children to permit their relocation to North Dakota. The parents shall be entitled to continue in a shared parenting arrangement with the children.

The details of that arrangement will need to be worked out. [115] The relocation of the children shall not occur until June 30, 2019. This will permit the oldest child to complete grade two, uninterrupted. It will also provide time for the petitioner to arrange his living arrangements to continue parenting in North Dakota.

Finally, it will allow both parents to investigate, and determine, school arrangements for Brooke going forward. [116] In the event issues arise over the period of time up to June 30, 2019 with respect to parenting matters, the parties have leave to have those matters returned to Megaw J. for determination. [117] The parties will have joint custody of the children. [ 61 ] In my view, when the trial judge’s reasons are read as a whole, it is clear that the decision regarding custody and mobility is not premised on Lucas changing his place of permanent residence, nor was he ordered to do so.

Instead, the trial judge correctly factored Lucas’s connection to the Mohall, North Dakota area into the equation. As I read the decision, the trial judge concluded that the best interests of the children would be served by a custody and parenting regime that continues to foster maximum contact with both parents.

Because Lucas had more flexibility in his living arrangements due to the nature of his employment, land holdings, and family connections, the trial judge determined relocation of the children to North Dakota was the best way to achieve that result. [ 62 ] It is important to note that shared parenting does not require the parties to have exactly equal parenting time, nor does it require that the parenting arrangement have the clockwork regularity of, for instance, a week-on/week-off schedule.

What shared parenting means is that each parent has the children in their care for no less than 40 percent of the time, over the course of a year. In this case, the trial judge concluded that shared parenting would serve the best interests of the children. He did not, however, say that shared parenting had to continue on a week-on/week-off basis, or any other particular schedule. The trial judge left that to the parties to work out and incorporated a term in the order that, if Lucas and Renee could not agree to a schedule, they could return the matter to him to set one.

This left it to Lucas to find a way to make his end of the shared-parenting situation work. It did not require him to relocate or to be in North Dakota full- time. It allowed for the parties to structure their own shared-parenting arrangement in a way that met their needs and fit with the location of their residences, their work situations and their family circumstances. [ 63 ] Keeping in mind the deferential standard of review that is to be employed, I am unable to find any error in the trial judge’s decision as it relates to custody and parenting.

When read as a whole, the Trial Decision makes it clear that the trial judge focused his analysis on the best interests of the children. He cited and applied the governing jurisprudence. He carefully considered the evidence and made factual conclusions which that evidence supports. He weighed the appropriate considerations and ultimately determined that, in the particular circumstances of this case, permitting the children to relocate to North Dakota would serve their best interests.

He clearly concluded that maximum contact with each parent was in the best interests of the children and that the best way to ensure maximum contact was to permit relocation. The obvious result is a change in the situation, which is convenient for Renee and more onerous for Lucas, but that does not mean that the trial judge erred in law or in principle. In reaching his conclusion on the custody and parenting issues, the trial judge thoroughly considered the evidence, weighed all the relevant factors and applied the correct law.

Intervention on appeal is not appropriate simply because this Court may have chosen to weigh the various factors differently. C. Did the trial judge misapprehend the evidence or otherwise err in principle in assessing Renee’s income for child support purposes? [ 64 ] The trial judge determined Renee’s income for child support purposes to be $29,991.00. This was based on her 2017 income, as set out in her most recent (at the time of trial) tax return. Lucas’s income, based on the same year’s income tax information, was determined to be $135,300.00 (see Trial Decision at paras 121–161).

The trial judge went on to calculate ongoing child support obligations based on the Guidelines , applying a straight set-off because of the shared-parenting order.

[ 65 ] The trial judge determined that Renee was entitled to retroactive child support.

He determined Renee’s annual income during the relevant time period for child support purposes to be the following (at para 168): June 1, 2016 to May 30, 2017 $0.00 June 1, 2017 to May 30, 2018 $25,292 June 1, 2018 to November 30, 2018 $29,991 [ 66 ] Using those income figures, and subtracting the amount of child support Lucas actually paid from the monthly amount Lucas would have been required to pay under the Guidelines , the trial judge determined that Lucas should be ordered to pay $17,921.94 in retroactive child support. [ 67 ] On appeal, Lucas takes no issue with the determination that he is obligated to pay retroactive child support.

Nor does he take issue with ongoing child support being calculated on a set-off basis based on shared parenting. [ 68 ] Lucas argues the trial judge erred by finding that Renee had no income between June 1, 2016, and May 30, 2017, for the purpose of calculating the amount of retroactive child support owing.

This, Lucas contends, is misapprehension of the evidence, which led to an error of law. [ 69 ] He also argues that the trial judge erred in finding Renee’s income for the purpose of calculating ongoing child support to be $29,991.00, in light of Renee’s own testimony that, if she relocated to Kenmare, she expected to earn an annual income of $55,000.00. [ 70 ] The determination of a parent’s income for the purpose of calculating child support obligations is governed by the Guidelines .

Section 16 provides that, for wage earners, income is generally determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency. Section 20(1) provides that, where the parent in question is a non-resident of Canada, their income is determined as if they were a resident of Canada. That is, their income for child support calculation purposes is determined by the total income reported in their tax return.

Section 2(3) of the Guidelines requires that the most current information available be used when determining income. [ 71 ] Linking the determination of income to information provided in a tax return means that there is often a lag in the currency of income information and ongoing support orders at any given time reflect the parties’ incomes from the previous year. This has become an accepted method of calculating ongoing support as it is assumed that, over the course of time, regular adjustments will be made when new income information becomes available.

This does not run afoul of the directive in s. 2(3) of the Guidelines . [ 72 ] In my view, the trial judge made no error in this case in determining Renee’s annual income to be $29,991.00 for the purpose of calculating ongoing support, rather than the $55,000.00 Renee estimated her income would be if the children relocated to Kenmare and she could secure full-time employment. At the time of trial, the $55,000.00 figure was just an estimate and it was not a certainty that Renee would actually earn that amount.

Using the figure of $29,991.00 is consistent with the accepted practice of basing support calculations on the income figures reflected in the most current tax return. It led to no unfairness to Lucas because, if Renee’s income were to change as a result of the children’s relocation, it will be reflected in her next tax return and an appropriate adjustment to the support order can be made. [ 73 ] I do not reach the same conclusion, however, with respect to the trial judge’s finding regarding the amount owing by way of retroactive child support.

In this case, the trial judge determined that Renee was entitled to retroactive child support because, for a period of time, Lucas had been paying an amount that fell short of what the Guidelines required based on his income. After considering the evidence, the trial judge concluded that retroactive child support should be adjusted from the date the petition was commenced, namely, June 7, 2016. [ 74 ] The trial judge found that, throughout the relevant period, Lucas’s annual income for child support purposes was $135,300.00.

He determined Renee’s income and calculated the amounts owing for retroactive child support as follows: [168] The respondent’s income from the time of separation to the present is summarized at page 84 of the brief filed by counsel for the respondent.

That income was: June 1, 2016 to May 30, 2017 $0.00 June 1, 2018 to November 30, 2018 $29,991 June 1, 2017 to May 30, 2018 $25,292 [169] Based on these incomes, the respective child support obligations would have been: Date Petitioner’s income Respondent’s income Petitioner’s s. 3 Respondent’s s. 3 Offset June 1, 2016 to May 30, 2017 $135,300 $0 $1,811.48 $0 $1811.48 June 1, 2017 to November 1, 2017 $135,300 $25,292 $1,811.48 $366.45 $1,445.03 *December 1, 2017 to May 30, 2018 $135,300 $25,292 $1,855.90 $379.91 $1,475.99 June 1, 2018 to November 30, 2018 $135,300 $29,991 $1,855.90 $447.89 $1,408.01 *Using 2017 Guidelines amounts.

… [184] I determine the petitioner should have paid, and did pay the following amounts. The resulting difference is the retroactive payments to be made: Date

Section 3 Amount paid Retroactive amount June 1/16 to May 30/17 $21,737.76 $11,916 $9,821.76 June 1/17 to Nov 1/17 $8,670.18 $5,958 $2,712.18 Dec 1/17 to May 30/18 $8,855.94 $5,958 $2,897.94 June 1/18 to Nov 30/18 $8,448.06 $5,958 $2,490.06 Total Retroactive $17,921.94 [ 75 ] With respect, it was an error in this case for the trial judge to have concluded that Renee had no income for the period of June 1, 2016, to May 30, 2017. The evidence led at trial showed that Renee’s gross income was 19,101.00 USD in 2016, and 22,650.00 USD in 2017.

As a result, I must conclude that the trial judge’s determination of Renee’s income in paragraph 168 of the Trial Decision is not supported by the evidence. Accordingly, it falls to this Court to intervene. [ 76 ] Based on the evidence (Renee’s 2016 and 2017 tax returns), and using the same currency conversion factor relied on by the parties at trial, I determine Renee’s annual income for the purpose of calculating child support to have been $25,292.00 from June 1, 2016, to December 31, 2016.

Between January 1, 2017, and November 30, 2018, her annual income for child support calculation purposes was $29,991.00. [ 77 ] Substituting those income figures for Renee into the table of calculations made by the trial judge, the “offset” amounts owing to Renee each month were as follows: June 1/16 to Dec 31/16: $1,811.48 – $366.45 = $1,445.03 per month Jan 1/17 to Nov 30/17: $1,811.48 – $414.30 = $1,397.18 per month Dec 1/17 to Nov 30/18: $1,855.90 – $447.89 = $1,408.01 per month [ 78 ] Applying those figures, I have determined that, from June 1, 2016, to November 30, 2018, Lucas ought to have paid a total of $42,380.31 in child support.

The evidence at trial reveals that he paid a total of $29,790.00 in child support during that time (30 months at $993.00 per month). This means that Lucas underpaid child support during this time frame by a total of $12,590.31 based on the evidence that was before the trial judge. As a result, it is appropriate to vary the order with respect to retroactive child support accordingly. D. Did the trial judge err in awarding “provisional” spousal support? [ 79 ] The trial judge determined that Renee was entitled to retroactive spousal support in the amount of $15,000.00.

Lucas takes no issue with this finding. [ 80 ] The trial judge also made the following determination with respect to ongoing spousal support: [187] I have determined the children are entitled to relocate to North Dakota. It therefore follows there should be no ongoing spousal support payable to the respondent. [188] To complete this judgment, however, I am going to address the issue of spousal support.

In the event the circumstances with the children were different, the respondent’s entitlement to, and the quantum of, spousal support would be relevant. [ 81 ] After reviewing the relevant provisions of the Divorce Act , the evidence and leading authorities such as Radu v Radu , 2016 SKCA 145 , 404 DLR (4th) 1, and Miglin v Miglin , 2003 SCC 24 , [2003] 1 SCR 303, the trial judge concluded that if Renee was required to continue to live in Redvers, she would remain entitled to spousal support: [199] Here, the respondent is left without an ability to pursue her professional career.

The respondent is further left in a foreign country with no contacts to financially provide for her. While the parties’ relationship here was not lengthy, it is clear that the respondent considerably sacrificed to engage in the marriage and to move from North Dakota to Saskatchewan. Then, while in Saskatchewan, she worked as a homemaker and farm labourer.

It is clear she has suffered economic disadvantage arising from the marriage and its breakdown. [200] This economic hardship would be relieved by the payment of spousal support. [201 The appropriate range of support is at a high of $2,342 per month to a mid-range of $1,908 per month, to a low of $1,465 per month based on the incomes as previously found.

The Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) suggest a duration of support of between five and 14 years. [202] The respondent here, if residing in Redvers, has the potential to pursue her employment when her professional regulator is organized with respect to the admission of out-of-country qualified applicants.

In the circumstances, and in light of the quantum of child support directed, I would order spousal support at the low end of the range, being $1,465 for a shortened period of five years. [ 82 ] Lucas argues that it was inappropriate for the trial judge to make a provisional order for spousal support, given the determination made regarding relocation of the children and the trial judge’s comments at paragraph 187 of the Trial Decision . [ 83 ] With respect, I see no error in this aspect of the Trial Decision that requires intervention on appeal.

The trial judge carefully assessed the evidence, applied the relevant law and determined that, if the children were to relocate to North Dakota (as permitted by the

Trial Decision ), spousal support would not be payable as Renee would be able to work in her chosen profession and would not suffer economic hardship. However, if Renee were to continue to live in Redvers because the children did not relocate, then she would be entitled to spousal support based on the economic hardship she would face as a result of the unavailability of that type of employment. This was a conclusion within the scope of the trial judge’s discretion, supported by the evidence, and tailored to the specific circumstances of the case. I see no basis upon which to interfere. E.

Did the trial judge err in awarding costs to Renee? [ 84 ] Finally, with respect to costs, the trial judge ruled as follows: [211] The bulk of the evidence at this trial concerned the living arrangements for the children. While income and support were certainly the subjects of argument, they were not the focal point of the trial. [212] In the circumstances, as the respondent has been successful with respect to the issue of parenting, I determine she shall be entitled to her costs pursuant to the tariff to be taxed. Those costs shall be assessed pursuant to Column 1 of the Tariff.

I decline to order costs for second counsel to be included in the costs assessed. [ 85 ] Lucas argues that an award of costs was inappropriate in this case as both parties went to trial in good faith, over legitimately contentious and important issues, and there was no evidence that either party acted unreasonably. He also argues that if he is partially successful on this appeal, that ought to be considered mixed success and this Court should either rescind the costs order or apportion costs appropriately.

Renee argues that the trial judge correctly applied his discretion and The Queen’s Bench Rules in granting the order of costs. [ 86 ] Awards of costs in family law matters are governed by Rule 15-25 of The Queen’s Bench Rules . That Rule reads, in part, as follows: Costs 15-25

(1) Costs are in the discretion of the Court and, except as modified by this rule, the provisions of Division 4 of

Part 4 and the provisions of

Part 11 apply to the costs of a family law proceeding.

(2) Subject to subrule (3), there is a presumption that a successful party is entitled to the costs of a family law proceeding or a step in a family law proceeding.

(3) A successful party who has behaved unreasonably or has acted in bad faith during a family law proceeding: (

a) may be deprived of all or part of the party’s own costs; or (

b) may be ordered to pay all or part of the unsuccessful party’s costs. …

(5) If success in a family law proceeding or a step in a family law proceeding is divided, the Court may apportion costs as appropriate. … [ 87 ] Rule 15-25 must be read in light of Rule 11-1, the relevant portion of which reads as follows: Discretion of Court 11-1

(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate. …

(4) In exercising its discretion as to costs, the Court may consider: (

a) the result of the proceeding; (

b) the amounts claimed and the amounts recovered; (

c) the importance of the issues; (

d) the complexity of the proceedings; (

e) the apportionment of liability; (

f) any written offer to settle or any written offer to contribute; (

g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (

h) a party’s denial of or refusal to admit anything that should have been admitted; (

i) whether any step in the proceeding was improper, vexatious or unnecessary;

(

j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (

k) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a partyunnecessarily separated his or her defence from that of another party; and (

l) any other matter it considers relevant. [88] The power to order costs is discretionary, but it is a discretion that must be exercised judiciously, and the ordinary rules of costsshould be followed unless the circumstances justify a different result: British Columbia (Minister of Forests) v Okanagan Indian Band,2003 SCC 71, [2003] 3 SCR 71. [89] One of the ordinary rules of costs is that a party who has been wholly successful should, in the absence of strong reasons to thecontrary, be entitled to an award of costs: Thomas v Lafleche Union Hospital Board, (SK CA), [1991] 5 WWR 209(Sask CA).

This “rule” is embodied in the presumption contained in Rule 15-25(2). In child custody cases, this presumption must beconsidered and applied with the best interests of the children in mind. The presumption may be rebutted where there is evidence offinancial hardship or where an order of costs would otherwise be contrary to the best interests of the children: Ackerman v Ackerman, 2015SKQB 113 at paras 34–36, 473 Sask R 219; see also K.R. v J.K., 2018 SKCA 35. [90] A deferential standard of review applies to appeals from costs awards.

In McNabb v Cyr, 2018 SKCA 51, Whitmore J.A.described the standard of review in this way: [31] It is well-settled that an order of costs is a discretionary order and that an appellate court will interfere only if it is shown that theorder was made arbitrarily or without regard to the applicable principles.

In Wongstedt v Wongstedt, 2017 SKCA 100, [2018] 4 WWR 82,Caldwell J.A. said, “the appellate court looks to see whether the judge misapplied some governing principle or rule or disregarded somecritical fact or other consideration or whether the costs award is itself ‘so obviously unjust as to invite intervention’” (at para 41, quotingBenson v Benson (1994), (SK CA), 120 Sask R 17 (CA) at para 90). See also K.R. v J.K., 2018 SKCA 35. [91] In this case, considering the applicable standard of review, I see no basis upon which to interfere with the trial judge’sdetermination regarding costs.

He concluded, correctly in my view, that the parenting issue was the focal point of the trial and Renee wassuccessful on that issue. No basis for rebutting the presumption in Rule 15-25(2) was established, nor was any other reason for decliningto award costs identified. Furthermore, Lucas has not established that the trial judge disregarded any relevant fact or consideration or thatthe order is obviously unjust. I would not give effect to this ground of appeal.

VII. conclusion [92] I would allow Lucas’s appeal only to the extent of varying the amount of retroactive child support he must pay from $17,921.94to $12,590.31. [93] While much of Lucas’s appeal is dismissed, he did achieve some measure of success in this Court. Accordingly, it isappropriate that the parties bear their own costs with respect to this appeal. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Schwann J.A.” Schwann J.A.