Duguid v Duguid, 2020 SKCA 118

Court of Appeal for Saskatchewan Docket: CACV3619 Citation: Duguid v Duguid , 2020 SKCA 118 Date: 2020-10-22 Between: Lance Duguid Appellant (Respondent) And Jocelyn Duguid Respondent (Petitioner) Before: Richards C.J.S., Caldwell and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Caldwell On appeal from: DIV 466 of 2012, Saskatoon Appeal heard: October 6, 2020 Counsel: Beau Atkins for the Appellant Peter Beug and Cara Haaf for the Respondent Kalmakoff J.A. I.

INTRODUCTION [ 1 ] Lance Duguid appeals from a decision made by a Court of Queen’s Bench judge, in Chambers, dismissing his application for an order setting a pre-trial date in a family law proceeding and ordering costs against him in the amount of $500 ( Duguid v Duguid (6 March 2020), Saskatoon, DIV 466 of 2012 (Sask QB) [ Chambers Decision ]). [ 2 ] The Chambers judge dismissed Mr.

Duguid’s application because he concluded that the matters in issue – i.e., retroactive child support, ongoing child support and sharing of s. 7 expenses ​ had already been determined in a final way by another Court of Queen’s Bench judge ( Duguid v Duguid (16 January 2020), Saskatoon, DIV 466 of 2012 (Sask QB) [ Child Support Decision ]). [ 3 ] Mr. Duguid alleges that the Chambers judge (

i) erred in determining that the Child Support Decision gave rise to a final order, (ii) erred in failing to set the matter down for a pre-trial, and (iii) erred in ordering costs against him. [ 4 ] Mr. Duguid’s appeal from the Chambers Decision must be dismissed, because the Chambers judge correctly determined that the Child Support Decision gave rise to a final order. My reasons for that conclusion follow. II. BACKGROUND [ 5 ] The parties were married in 1997. They have two children together; a son, born in 2000 and a daughter, born in 2003. Their relationship broke down in 2012, and Ms.

Duguid filed a petition to begin the family law proceeding in August of that year. In the petition, she sought divorce, custody of the children, child support, spousal support and division of property. The parties resolved these matters by way of an interspousal agreement in September of 2013 and a judgment for divorce was issued on November 21, 2013. III. THE CHILD SUPPORT DECISION [ 6 ] In November of 2019, Ms. Duguid served Mr. Duguid with a Notice of Application. In it, she sought an order that Mr. Duguid: (

i) pay retroactive child support for the period from January 1, 2019 to November 30, 2019; (ii) pay ongoing child support in accordance with the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], beginning December 1, 2019, “until the children are no longer children of the marriage”; and (iii) pay his proportionate share of s. 7 expenses in accordance with the Guidelines . [ 7 ] Mr. Duguid opposed the application. He took issue with Ms. Duguid’s evidence regarding his current income.

He also argued that during the relevant time frame their son, who was by then a post-secondary student, had lived with each of them in a shared-parenting arrangement. He said his child support obligations – both retroactive and ongoing – should be calculated on that basis. [ 8 ] The judge who heard the application, Elson J., dealt with the issues before him. He began by considering the question of whether there was a shared parenting arrangement in existence with respect to the Duguids’ son. He determined that there was not a shared parenting arrangement and that the son’s primary residence had been with Ms.

Duguid. He then made determinations regarding the parties’ incomes and Mr. Duguid’s obligation to pay retroactive child support. Justice Elson expressed his conclusion, the relevant parts of which were as follows: [26] In the result, the following orders shall issue:

a. For child support purposes, [Ms. Duguid]’s gross annual income is determined to be $89,264; b. For child support purposes, [Mr. Duguid]’s gross annual income is determined to be $213,465; c. Pursuant to s. 3 of the Federal Child Support Guidelines [ Guidelines ] the [Mr. Duguid] shall pay to [Ms. Duguid] for the benefit of [the son] and [the daughter] the sum of $2,811 per month, commencing December 1, 2019, and continuing on the first day of each and every month thereafter until the said children are no longer children of the marriage, as defined under the Divorce Act ; d.

Further, pursuant to s. 3 of the Guidelines , [Mr. Duguid] shall pay to [Ms. Duguid] retroactive child support, for the benefit of the said children, in the sum of $20,795 … e. Based on the incomes of the parties as above described, responsibility for the expenses, pursuant to s. 7 of the Guidelines , is determined to be 29.5% for [Ms. Duguid] and 70.5% for [Mr. Duguid]; f.

Further pursuant to s. 7 of the Guidelines , the parties will be responsible for such expenses incurred during the period from January 1, 2019 to December 1, 2019, based on the proportion described above and based on receipts and/or invoices incurred for such expenses … [ 9 ] Justice Elson also set a deadline of six months for the parties to satisfy their respective retroactive support obligations, provided for exchange of income tax returns by June 1 of each subsequent year, made provision for annual adjustment based on changes in income and ordered costs against Mr. Duguid. IV.

THE CHAMBERS DECISION [ 10 ] Approximately six weeks after the Child Support Decision was rendered, Mr. Duguid brought an application for an order, pursuant to Rule 4-11(3) of The Queen’s Bench Rules, to set a date for a pre-trial conference. He alleged that, despite attempts at negotiation, he and Ms.

Duguid had been unable to reach an agreement with respect to a “final settlement” of matters relating to child support. [ 11 ] The Chambers judge determined that the order made by Elson J. in the Child Support Decision was a “final determination of the issues of retroactive child support, ongoing child support and the percentages on which s. 7 expenses should be shared” and, as such, there was “no issue to go on to pre-trial”. Accordingly, he dismissed Mr. Duguid’s application and awarded costs of $500 in Ms. Duguid’s favour. V. ANALYSIS [ 12 ] Mr.

Duguid argues that the Chambers judge erred because the Child Support Decision should properly have been seen as giving rise to an interim order. He says that where, as here, a decision in a family law proceeding results from an application brought by way of a regular notice of application, as opposed to an application seeking

summary judgment, the resulting order is presumptively interim in nature absent any explicit wording designating it as a final order. [ 13 ] Mr. Duguid also contends that the Child Support Decision cannot have been a final order because there were still evidentiary matters that had not been resolved. Among these, he says, were Ms. Duguid’s non-response to a Notice to Disclose and the differences in the evidence regarding their son’s residence. [ 14 ] With respect, I would not give effect to these arguments. [ 15 ] Mr.

Duguid has cited no authority for the proposition that decisions made in Chambers applications in family law proceedings are presumptively interim in nature. In that vein, I would note that s. 15.1 of the Divorce Act , RSC 1985, c 3 (2d Supp) [ Divorce Act ] provides that child support orders may be made on either a final or an interim basis. Nothing in the Divorce Act suggests that one type of order or the other is presumptive. [ 16 ] Moreover, the form of application used to request an order does not dictate whether the resulting order is interim or final.

In that regard, The Queen’s Bench Rules provide that a party who wishes to apply for corollary relief under the Divorce Act “shall do so by notice of application (family law proceedings) in Form 15-19 ( Rule 15 -48)” and that the same notice of application shall be used for any application “claiming a substantive remedy or an interim remedy” in a family law proceeding ( Rule 15 - 19(1) (a)). [ 17 ] It is clear that orders can be made in Chambers on either a final or an interim basis ( Prescesky v Prescesky, 2015 SKCA 111 , 392 DLR (4th) 253 [ Prescesky ]; Koback v Koback, 2013 SKCA 91 , at paras 14 ​15, 423 Sask R 35; Bromm v Bromm, 2010 SKCA 149 at paras 16 ​–​​​22, 91 RFL (6th) 268; M.D.L. v C.R., 2020 SKCA 44 at paras 41–43 ).

The determination of whether such an order is interim or final requires consideration of a number of factors, as Jackson J.A. observed in Precesky : [52] Sometimes the answer to the question as to whether an order is an interim or final order will be patently clear because the order uses the word “interim” or the order refers to a pending pre-trial conference or to the trial—or indicates its essential character as a final order. The absence of appropriate descriptors, however, does not mean that the order is automatically interim or final.

Whether an order is interim or final depends on all of the circumstances, including the terms of the order, the question to be resolved and where the parties are in the process of resolving their dispute… (Emphasis added) [ 18 ] As this Court has stated on a number of occasions, where an order effectively disposes of the rights of the parties in a final and binding way with respect to a substantive issue, it is a final order (see, for example: Poffenroth Agri Ltd. v Brown, 2020 SKCA 68 at para 18 ; PCL Construction Management Inc. v Saskatoon (City) , 2020 SKCA 12 at paras 59–65 , 444 DLR (4th) 433; Stevenson Estate v Bank

“Kalmakoff J.A.” Kalmakoff J.A. I concur. “Richards C.J.S” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. of Montreal , 2011 SKCA 51 at para 10 , 371 Sask R 198; and D.B. v M.C. , 2001 SKCA 129 at para 8 , 213 Sask R 272). This principle, in my view, applies to family law proceedings. [ 19 ] In this case, despite the fact that the Child Support Decision contained no explicit descriptive language marking it as final or interim in nature, it had all the hallmarks of a final order. [ 20 ] First, the dispute between Mr. and Ms. Duguid was not at an early stage. The petition had been filed in 2012.

The parties had settled all matters raised in the petition, including child support, through an interspousal agreement in 2013 and had obtained a judgment for divorce. There had been no other proceedings until 2019, by which time their children were 16 and 19 years of age, respectively. The only live dispute was the one related to child support. [ 21 ] Second, the Child Support Decision was made in response to Ms. Duguid’s application for ongoing child support, retroactive child support, proportionate sharing of s. 7 expenses and costs. There was nothing in the application materials or the evidence to suggest Ms.

Duguid was seeking only an interim remedy. [ 22 ] Third, in the Child Support Decision, Elson J. canvassed the evidence that was before him and, even though there was some conflict or inconsistency in it – respecting the parties’ incomes and where their son was living ​ he did not say he was unable to resolve the evidentiary issues or that he could not determine matters in a final way because of those issues.

Notably, he made no suggestion that a pre- trial conference would be required. [ 23 ] Fourth, there was nothing in the Child Support Decision that suggests Elson J. was treating the matter as only an interim decision or that he was only granting interim relief. He fully dealt with each of the issues raised by the application and made comprehensive orders respecting each of the remedies sought.

In particular, with respect to ongoing child support, he ordered that payments continue until the children “are no longer children of the marriage, as defined under the Divorce Act ”, ordered the parties to exchange income tax returns annually and addressed the issue of annual adjustments. With respect to retroactive child support, he resolved what conflict there was in the evidence, calculated the precise amount owing, and ordered Mr. Duguid to pay that amount.

In my view, there is simply no way of reading this decision as suggesting that any of those matters would require a pre-trial or trial in order to be resolved in a final way. [ 24 ] In short, the Child Support Decision disposed of each of the issues that were raised in the application in a final and binding way. Accordingly, the Chambers judge correctly determined that no pre-trial was required and properly dismissed Mr. Duguid’s application. [ 25 ] It is worth noting here that Mr. Duguid’s concerns appear to be directed at what he views as errors in the Child Support Decision.

But, as he did not appeal that decision, it is not our role to examine that decision for error. Mr. Duguid’s appeal is from the Chambers Decision that dismissed his application to set the issues related to child support down for pre-trial. The question before us is whether the Chambers judge erred in finding that the Child Support Decision gave rise to a final order. As I have stated, the Chambers judge did not err in that respect. If Mr.

Duguid is dissatisfied with the Child Support Decision, his recourse at this point is to apply for variation if circumstances change. [ 26 ] Having reached that conclusion, it follows that the Chambers judge did not err in awarding costs of $500 to Ms. Duguid. She was the successful party on the application.

The costs award represents a reasonable exercise of judicial discretion in that respect and is in accordance with The Queen’s Bench Rules . [ 27 ] Accordingly, I would dismiss the appeal. [ 28 ] As a post-script of sorts, it is worth noting that uncertainty about whether orders made in the course of family law proceedings are final or interim in nature can create a number of problems, not the least of which is making it difficult for parties who are dissatisfied with orders to understand whether their proper recourse is to bring an appeal.

Such uncertainty, in my view, can be easily be avoided if counsel, when making applications, are clear about what they are seeking and judges, when making decisions, are precise in their language so as to be clear about whether the order they are making is interim or final in nature. VI. CONCLUSION [ 29 ] The appeal is dismissed. Ms. Duguid is entitled to the Column 2 costs of the appeal, in the usual way.