Alansari v Kreke, 2020 SKCA 122

Court of Appeal for Saskatchewan Docket: CACV3448 and CACV3466 Citation: Alansari v Kreke, 2020 SKCA 122Date: 2020-10-28 Between:Amro Abdullah M AlansariAppellant(Respondent)AndTiffany Jo KrekeRespondent (Petitioner)Before: Caldwell, Whitmore and Barrington-Foote JJ.A. Disposition: Appeal allowedWritten reasons by: The CourtOn appeal from: DIV 423 of 2018, SaskatoonAppeal heard: September 14, 2020Counsel: Brent D. Barilla, Q.C. for the Appellant Karina Jackson for the Respondent The Court I.

INTRODUCTION [1] Amro Abdullah M Alansari appeals from a decision after trial in a divorce proceeding that issued under two unreportedjudgments [together, the Trial Decision]. The first judgment addressed issues of mobility, custody, parenting arrangements and childmaintenance (written reasons delivered orally on July 4, 2019). The second addressed issues of spousal support, property division andcosts (written reasons issued July 17, 2019). Mr. Alansari alleges the trial judge erred in multiple ways under both tranches of the TrialDecision. Mr.

Alansari chiefly asserts the trial judge failed to take into consideration all of the factors relevant to matters put before her oroverlooked and misapprehended the evidence. [2] Notwithstanding the deference owed to trial judges in these kinds of appeals, we find there is sufficient merit to Mr.Alansari’s allegations of factual and legal error to allow the appeal. We reverse the orders of support and provide substantive relief inthose respects under these reasons.

However, given the effluxion of time and the lack of fresh evidence, we are not prepared to simplyreverse the relocation of the parties’ youngest child [AB] by ordering his mother, Tiffany Jo Kreke, to return him to Lloydminster,Saskatchewan, from Saskatoon, Saskatchewan. The trial judge authorised AB’s relocation to Saskatoon over 15 months ago. A new trialis necessary to determine what is now in his best interests. II. STANDARDS OF REVIEW [3] We start by confirming the standards of appellate review in this appeal.

In general terms, this Court owes deference to trialjudges who make decisions in family law matters.

In respect of appellate review of spousal or child support orders, L’Heureux-Dubé J.,who wrote for the Court in Hickey v Hickey, (SCC), [1999] 2 SCR 518, said: [11] Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an errorin principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. … [12] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders.

This standardof appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. [4] Justice Bastarche articulated the same standard in respect of the appellate review of custody and access orders when speakingfor the Court in Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014: [15] As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error.

If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirectedhimself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that theappellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.

Ashmore (1999),1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused [2000] 1 S.C.R. vi, an omission is only a material errorif it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affectedhis conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.

[5] Trial judges enjoy similar latitude in their decision-making in matters involving the division of family property, as was madeclear in Ackerman v Ackerman, 2014 SKCA 137, 451 Sask R 132, where Ryan-Froslie J.A. described the applicable standard in theseterms: [22]

Section 55 of The Family Property Act provides for appeals from decisions involving the division of family property. That Actgives trial judges significant discretion both in determining the value of assets for distribution purposes and in deciding what constitutes afair and equitable division of the family property in accordance with the tenor of the Act (see: Muranetz-Dubelt v Dubelt, 2010 SKCA 5 atpara 12, 343 Sask R 215). [23] Deference is to be accorded such decisions.

An appeal court should only interfere if the trial judge has abused his or her discretionby erring in principle, disregarding a material matter of fact, or failing to act judicially, or if the result is so plainly wrong as to amount toan injustice (see: Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119). [24] The standard of review with respect to findings of fact is a palpable and overriding error (see: Housen v Nikolaisen, 2002 SCC 33,[2002] 2 SCR 235, and H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401). III.

BACKGROUND [6] Some knowledge of the evidence is necessary to understand the analysis that follows but, because we have ordered a new trialin this matter, we will be circumspect when summarising it. [7] The parties began dating in 2006 and were married in 2010. Their son, AB, was born a year later. Ms. Kreke has two childrenfrom previous relationships, CD and EF. CD remains a “child of the marriage”. Mr. Alansari stood in loco parentis to CD. Between 2010and 2014, the parties resided in Saskatoon while Mr. Alansari worked in Saudi Arabia.

During that time, he spent three or four weeks inSaskatoon every four or five months. [8] Things changed in July of 2014, when AB was diagnosed with leukemia. Both parents left their employment to attend to theirson, who was receiving treatment in Saskatoon. The treatment was a success and AB went into recovery in the fall of 2017 and hadrecovered fully by the date of trial in May 2019. During this time, in February of 2015, Mr. Alansari obtained employment inLloydminster. With the exception of the oldest child, EF, the family moved from Saskatoon to Lloydminster in August of 2015. In 2017,Ms.

Kreke returned to work, selling products from her home and later working part-time in her vocation as a dental therapist. Ms. Krekeleft her employment as a dental therapist on May 30, 2018. [9] On June 1, 2018, CD, EF and Ms. Kreke attended at the RCMP detachment in Lloydminster. They provided statementsalleging Mr. Alansari had twice physically assaulted CD. Mr. Alansari was arrested and released on conditions that restricted him fromcontacting CD or being near the family home. The parties separated on June 2, 2018. [10] On June 27, 2018, Ms.

Kreke petitioned for divorce, seeking custody of, and child support for, AB and CD, spousal support,division of family property, and the court’s permission to relocate with AB to Saskatoon. Mr. Alansari does not seek custody of CD andacknowledges his legal obligation to pay child support for him. [11] Ostensibly due to the assault charges, Ms. Kreke restricted AB’s access to Mr. Alansari. This led Mr. Alansari to make aninterim application seeking time to parent AB. Ms. Kreke responded by seeking interim relocation to Saskatoon and interim child andspousal support. In her interim mobility application, Ms.

Kreke cited the “criminal charges” and Mr. Alansari’s “anger and control issues”as her reasons for seeking to relocate to Saskatoon. The Chambers judge who heard the interim applications dismissed Ms. Kreke’smobility application but granted her primary residence of AB and CD and awarded interim spousal support and child maintenance. He alsoordered specified parenting time with AB for Mr. Alansari. [12] The assault charges against Mr. Alansari were stayed after he entered into a peace bond. A condition of the peace bond requiredMr.

Alansari to undergo an assessment to determine whether he had anger management issues that needed treatment. The assessor foundhe did not. IV. ISSUES AND ANALYSIS [13] As the custody decision is a keystone upon which the mobility, access and child maintenance orders rest, we have groupedmany of the grounds of appeal under that heading. The spousal maintenance and division of family property orders stand apart from theother orders and are addressed separately in the reasons below. A. Custody [14] Mr. Alansari appeals chiefly because the trial judge granted Ms.

Kreke’s application to relocate AB from Lloydminster toSaskatoon. At trial, the issues of custody, primary residency, mobility and access were necessarily intertwined. Mr. Alansari alleges thetrial judge committed material errors in her assessment of the evidence and the factors relevant to custody and access and to mobility,including a failure to consider relevant factors. [15] We have reviewed the Trial Decision and the evidence proffered at trial with a view to determining whether the trial judgeignored or misdirected herself with respect to relevant evidence.

In the result, we conclude that the trial judge misapprehended theevidence in a way that affected her conclusion that it was in the best interests of AB to relocate to Saskatoon. We also conclude that thetrial judge failed to consider or overlooked factors relevant to that determination under Gordon v Goertz, (SCC), [1996]2 SCR 27.

[ 16 ] In Gordon v Goertz , McLachlin J. (as she then was) gave four directions to judges to guide their way through a mobility application (at para 49), which may be paraphrased as follows: (

a) the judge must embark on an inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them; (

b) the inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect; (

c) the only issue in the inquiry is the best interest of the child in the particular circumstances of the case; and (

d) the focus in the inquiry is on the best interests of the child, not the interests and rights of the parents. [ 17 ] Justice McLachlin then set out a number of factors designed to help judges determine what is in the best interest of the child (at para 49): (

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; and (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [ 18 ] Relying on the direction in Gordon v Goertz , a judge will assess the evidence to determine which of four scenarios is in the best interests of the child or children in question, although all four scenarios may not be viable in each case ( Olfert v Olfert , 2013 SKCA 89 at paras 20-22 , 417 Sask R 283): (

a) the child and the applicant relocate, and the respondent does not; (

b) the child does not relocate and neither do the parents; (

c) the child and the respondent do not relocate, and the applicant does; and (

d) the child relocates and so do the parents. [ 19 ] When assessing the viable mobility scenarios under the factors set out in Gordon v Goertz , judges have considered matters from the following non-exclusive list: (

a) how long each parent has cohabited with the child; (

b) the quality and the quantity of each parent’s parenting time with the child; (

c) the age, maturity, and needs of the child; (

d) whether and how relocation would better enable the applicant parent to meet the child’s needs; (

e) the distance and cost of travel if relocation were allowed; (

f) whether the respondent parent could or would relocate; (

g) whether either parent’s new partner (if any) would also relocate; (

h) the willingness and ability of the applicant parent to ensure the child’s access to the respondent parent and to foster that parental relationship; (

i) whether the parents have entered into an agreement as to relocation; (

j) the financial resources of each of parent; (

k) the child’s wishes; and (

l) the permanence of the proposed relocation. [ 20 ] To be clear, not all of the foregoing concerns will be relevant in every mobility application and there may well be other concerns that are relevant to a specific application. For example, in this trial, scenario (

d) was not a viable option given that Mr. Alansari’s employer had no employment opportunities for him in Saskatoon. Neither party had argued that scenario (

c) was viable either. As such, only scenarios (

a) and (

b) were under consideration. Further, neither parent had a new partner or potential new partner. [ 21 ] Because primary residence and access were also at issue in this trial, the trial judge had to address those issues to determine

whether relocation was in AB’s best interest. In broad terms, the trial judge found that both parents had been involved in parenting AB, albeit Mr. Alansari had been unable to spend much time with AB in the early years due to his work commitments abroad and, in later years, his work ethic and commitments had curtailed his availability to parent AB. In these circumstances, the trial judge found Ms. Kreke had “played the more significant role in the parenting of [AB]” (at para 12). However, following AB’s lymphatic leukemia diagnosis, both parents had become “very involved” with AB’s treatment. On the evidence, Ms.

Kreke had undoubtedly spent more time in the hospital in Saskatoon with AB due to Mr. Alansari’s work commitments in Lloydminster. Nonetheless, the trial judge rejected Ms. Kreke’s characterization of this circumstance: [15] I cannot conclude as [Ms. Kreke] infers that [Mr. Alansari] had limited involvement with [AB’s] treatment. When he commenced his employment with ATCO Electric in Lloydminster he made sure he could work four 10-hour shifts so he could return to Saskatoon to be with [Ms. Kreke] and be there for [AB]. [ 22 ] As to the home environment prior to separation, Mr. Alansari conceded that Ms.

Kreke had done the majority of the work of caring for the family, including cooking, cleaning and transportation. The trial judge concluded that Ms. Kreke “was a stay-at-home mother and homemaker” who provided “the majority of the care for the children including [AB]” (at para 19). Nonetheless, the trial judge stated that Mr. Alansari was not “an absentee father” and he had “spent as much time with [AB] as he could given his intense work schedule” (at para 19). Although the trial judge found Ms.

Kreke had “provided the primary parenting for [AB]”, she tempered the effect of this on her analysis by saying “this in no way means that [Ms. Kreke] should automatically be granted the primary care of [AB] into the future” (at para 19). [ 23 ] Turning to the considerations under The Children’s Law Act, 1997 , SS 1997, c C-8.2 , the trial judge reviewed the evidence and found that Mr. Alansari had tried to act as a role model for AB (at para 21). She found Ms. Kreke was AB’s “psychological parent” (at para 22).

The trial judge observed that AB had progressed past his diagnosis of leukemia and that his “needs now that he is well are much like any other child’s” (at para 22). The trial judge found each parent could and would provide AB with the things he needs if he were in that parent’s primary care (at para 22). She found each parent has the capacity to act as AB’s legal custodian, but they have very different parenting styles (at para 23). The trial judge summarised her findings on the parties’ parenting styles, which she expressed in terms of her expectations of the parties, by saying: [ 24 ] While [Mr.

Alansari] may be too strict, [Ms. Kreke] may be too soft. She must make a rule and stick to it. Children of any age will push a parent around if they can. Therefore as [AB] grows I am assured that [Mr. Alansari] will stick to his rules. He will have a structured environment for [AB]. I would need [Ms. Kreke] to also stick to the rules so that [AB] understands both parents will do the same thing when necessary. [24] The trial judge next turned to the mobility aspects of the matter. Here, the Trial Decision contains very little in the way of analysis of the Gordon v Goertz factors or of AB’s best interest.

There is, with one exception, no reference to how relocation to Saskatoon might benefit AB or help Ms. Kreke meet his needs. There is almost no analysis of the role AB’s brother, CD, might play in that respect. Tellingly, when addressing the environment in Saskatoon, the trial judge wrote only in terms of Ms. Kreke’s conclusory view that relocation was in AB’s best interest. At the same time, the trial judge observed there was a paucity of evidence to support Ms.

Kreke’s view of things: [ 25 ] The factors relating to the home environment each parent proposes must, as this is a mobility case, be considered along with the plans each parent has for the future of [AB]. If granted primary care, it is [Ms. Kreke’s] view that it would be in [AB’s] best interests to move with her and [CD] back to Saskatoon. She would move into the previous family home located near her parents. She would move the children into a school in Saskatoon. I must admit, however, that I was provided very little evidence from [Ms.

Kreke] about the children’s schooling including not even being provided with the name of the school the children would go to. [25] There was, on the other hand, no inquiry in the Trial Decision into how relocation to Saskatoon with his mother might disrupt AB by removing him from his father, his school, his activities, his friends and the community he had come to know. Although there was evidence on these points, it and the Gordon v Goertz factors to which it relates are not mentioned in the Trial Decision . [ 26 ] Turning to scenario (b), where AB would remain in Lloydminster with Ms. Kreke and Mr.

Alansari, the trial judge wrote only in terms of Mr. Alansari’s view of things, but again made no mention of AB’s schooling, friendships and other community ties to Lloydminster: [26] If [Ms. Kreke] stays in Lloydminster, [Mr. Alansari] assumes she will remain with [CD] and [AB] in the family home. During his weeks with [AB], [Mr. Alansari] would take [AB] and have him live with [Mr. Alansari] in the two bedroom condo where [Mr. Alansari] currently lives and [AB] has his own bedroom.

There is not in my view a difference between the homes the parents can offer. [ 27 ] Thereafter, the trial judge completed her reasons on the issue of who should be the primary parent to AB and on the mobility application by saying: [27] After consideration of all of these factors, I have determined that it would be in [AB’s] best interests to be in the primary care of [Ms. Kreke] and that she be allowed to move to Saskatoon with [AB]. Upon moving, [Ms.

Kreke] will have the support of her parents while she enters the work place. [AB] is very close to his Baba and no doubt will benefit from more time with her and his grandpa. The reference to AB of spending more time with his maternal grandparents is the only benefit to AB associated with a move to Saskatoon that the trial judge identified. [ 28 ] As to the parenting arrangements that would follow on the heels of her decision to allow AB to relocate to Saskatoon with Ms. Kreke, the trial judge wrote: [28] The parties will of course have joint custody and all major decisions regarding [AB] must be made jointly.

If the parties are unable to reach agreement on a major decision regarding [AB], either party would have leave to bring that issue back to court. When I indicate major issues, I am suggesting those would be religion, health and general welfare. Whoever has [AB] in their home would set the

rules of the home. [ 29 ] Although I acknowledge that maximizing contact with [Mr. Alansari] for [AB] is a very important factor, I see this being possible from Lloydminster to Saskatoon. I also believe that [Ms. Kreke] will, now that this decision is made, stop behaving badly regarding the issue of access. I certainly do not condone her past actions in terms of the limited time she provided the father after separation and further the calls to the RCMP which in my view were not necessary even though she did not trust [Mr. Alansari]. I believe [Mr.

Alansari] gave her no reason to believe he was going to take [AB] and abscond with him. [ 30 ] [Mr. Alansari] will have [AB] in his care for at least a long weekend every month and can opt to have another weekend from Friday after school to Sunday evening. The parties shall share all holidays equally. If the parties cannot sort out a

schedule for the period of time from now to August 31, 2020, this matter can be brought back before me and I will set the schedule. I hope that will not be necessary. [ 31 ] There is one further ruling on parenting I wish to make. [Ms. Kreke] shall have the sole responsibility of working with and planning [AB’s] wish through The Children’s Wish Foundation. She shall advise [Mr. Alansari] as to what has been organized for [AB]. [ 32 ] This is an unfortunate matter where separation has occurred and the best interests of a child need to be determined based on two different proposals.

I want to assure the father that he is extremely important in [AB’s] life and I know he will continue to care for [AB] and love [AB] as he has done in the past. [29] On the law and the whole of the evidence, we see no reversible error in the analysis leading to the trial judge’s conclusions that Ms. Kreke is AB’s “psychological parent” and should be his primary parent. However, that is not so in relation to the issue of whether the proposed relocation to Saskatoon would be in AB’s best interests.

As noted, there was virtually no consideration of how relocation to Saskatoon might benefit AB or how it might be detrimental. Those questions are at the heart of the child-centric enquiry mandated by Gordon v Goertz factors and the evidence that bears upon them was not identified or considered in the Trial Decision. [30] Further, where the trial judge does discuss evidence that was relevant to the issue of mobility, many of her comments are neutral as to the effect of relocation on AB’s interests. For example, she found “There is not in my view a difference between the homes the parents can offer” (at para 26).

Other comments by the trial judge weigh against a finding that relocation to Saskatoon would be in AB’s best interest. For example, the trial judge’s finding that Ms. Kreke had “provided very little evidence…about the children’s schooling including not even being provided with the name of the school the children would go to” (at para 25) in Saskatoon meant the trial judge was unable to assess whether and how relocation to that city would better enable Ms. Kreke to meet AB’s educational needs. Ms.

Kreke did not tender evidence of any extra-curricular activities or sports in which she hoped to enrol AB in Saskatoon. There was no evidence that AB had family members or close friends in Saskatoon, other than the maternal grandparents. Whereas, there was some evidence of AB’s then current activities, schooling, friendships and other ties to Lloydminster, but it is not mentioned or assessed in the Trial Decision . [31] Also weighing against relocation is the fact that Ms. Kreke had repeatedly interfered with AB’s access to Mr. Alansari prior to trial and with Mr. Alansari’s parenting of AB.

We infer this finding of fact from the trial judge’s belief that Ms. Kreke would, following the grant of her mobility request, “stop behaving badly regarding the issue of access”. The trial judge also stated she did not condone Ms. Kreke’s “past actions in terms of the limited time she provided the father after separation” (at para 29). However, the trial judge’s finding that Ms. Kreke had been unwilling or unable to ensure AB’s access to Mr.

Alansari and to foster his relationship with his father is not weighed in the assessment of whether a move to Saskatoon would be in AB’s best interests, as required by Gordon v Goertz . [32] Further, the evidence before the trial judge suggests that Ms. Kreke had, in addition to failing to comply with AB’s court- ordered access to Mr. Alansari on several occasions, attempted to sever or diminish Mr. Alansari’s relationship with AB and to undermine his efforts to raise AB in his religion.

Although relevant under Gordon v Goertz , no findings of fact are made in the Trial Decision on the basis of this evidence. [ 33 ] As we see it, the trial judge made just two findings in support of her conclusion that Ms. Kreke should be permitted to relocate to Saskatoon with AB. She stated that, “[u]pon moving, [Ms.

Kreke] will have the support of her parents while she enters the work place” and “[AB] is very close to his Baba and no doubt will benefit from more time with her and his grandpa” (at para 27). [ 34 ] It is important, here, to recall that AB had fully recovered from leukemia at the time of trial and the trial judge found that his “needs now that he is well are much like any other child’s” (at para 22). There is no suggestion his needs were not being met in Lloydminster.

As such, we can only read into the trial judge’s finding that she thought AB’s maternal grandparents would be available to provide childcare while Ms. Kreke was working. On the other hand, the trial judge makes no mention of Mr. Alansari’s availability to care for his son in Lloydminster if Ms. Kreke were to return to work in or from that city, even though Mr. Alansari’s employer testified that his work

schedule could accommodate that. Furthermore, Mr. Alansari’s testimony that Ms. Kreke had used childcare when she was working in Lloydminster during the marriage was not contradicted. [ 35 ] Moreover, the finding that Ms. Kreke had to move to Saskatoon to pursue her vocation loses all cogency when juxtaposed to the uncontradicted evidence that she had been gainfully employed in Lloydminster in her chosen vocation but had voluntarily left that employment shortly before she filed her petition for divorce and interim mobility application. Additionally, Ms.

Kreke testified that she was prepared to commute from Lloydminster to Davidson, Saskatchewan, to work part-time in her vocation until the court permitted AB to relocate to Saskatoon, after which Ms. Kreke intended to continue commuting from Saskatoon to Davidson. Whereas, Mr. Alansari had led evidence at trial, through a dentist, that part-time and full-time employment as a dental therapist was available in North Battleford, Saskatchewan. The commute to North Battleford from Lloydminster is comparable to the commute from Saskatoon to Davidson.

All told, we are unable to conclude on the basis of the evidence that this is one of the exceptional cases referred to in Gordon v Goertz where Ms. Kreke’s desire to work from Saskatoon was relevant to her ability to meet AB’s needs. [ 36 ] As to the trial judge’s second finding in support of relocation, while the trial judge acknowledged that “maximizing contact with [Mr. Alansari] for [AB] is a very important factor” (at para 29), she does not address the evidence related to that factor. Other than criticism of Mr.

Alansari’s parenting style, there is no discussion in the Trial Decision about AB’s relationship with him or how a move to

Saskatoon might affect that relationship. Indeed, it appears that more weight was given to AB’s relationship with his maternal grandmother than with his father. In the result, the failure to address the evidence relevant to AB’s relationship with his father translated into an order that allows AB to have access to his father for just three days a month, with the option of an additional weekend, and shared holidays, which is less than what Ms. Kreke had argued at trial she was willing to concede to Mr.

Alansari. [ 37 ] For all of these reasons, we respectfully conclude that the trial judge erred in principle in her approach to the issue of mobility by overlooking factors and evidence plainly relevant to the determination of what would be in AB’s best interest. In the result, we must allow the appeal and set aside the order granting the mobility application and the orders granting joint custody and joint decision-making, and granting Ms. Kreke primary residence and parenting of AB.

It follows that the custody and access regime set out in the Trial Decision in the circumstances of AB’s relocation to Saskatoon must also be set aside. As well, the child maintenance order that is predicated on relocation must also be set aside. We address the relief granted at the end of these reasons. B. Spousal Maintenance [ 38 ] Mr. Alansari appeals against the orders of spousal and child maintenance on the basis that the trial judge erred by imputing $45,000 in income to Ms. Kreke. On the evidence at trial, Mr. Alansari submits Ms.

Kreke could have been earning up to $138,000 or $190,000 annually, if she had chosen to do so. While we agree that the trial judge misapprehended the evidence in respect of Ms. Kreke’s employment status and employment prospects, we are not prepared to impute to her annual earnings of $138,000 or more. [ 39 ] In the Trial Decision , the judge described the circumstances of Ms. Kreke’s employment status and prospects as follows: [12] Pursuant to s. 19(1)(

a) of the Guidelines , I have discretion to impute income to a spouse that I consider appropriate in the circumstances. While I am prepared to impute some income to [Ms. Kreke], I am not prepared to set [Ms. Kreke’s] income as being the same as [Mr. Alansari’s]. [Ms. Kreke] is entitled to a period of time after separation to adjust to the new circumstances and then commence employment. In light of the fact that she was the primary caregiver for the children, it was important for her to focus on their needs immediately after separation as opposed to trying to locate work outside the home.

After a person has been the primary caregiver and homemaker throughout a ten-year marriage, it is not expected that they will commence work within a very short period of time after separation. However, it is now a year past separation, and it is my expectation that she will re-enter the workforce soon. [Ms. Kreke] has advantages that many homemakers do not. She is a qualified dental therapist and dental therapists are in high demand in rural settings in Saskatchewan. Further, [Ms. Kreke] has already been offered a part-time position commencing September 2019. [13] I am imputing income to [Ms.

Kreke] in the sum of $45,000, which reflects the income she can earn for two days a week at the Davidson Dental Clinic. It is likely in the future that [Ms. Kreke’s] income will increase as she picks up more shifts. It would be unreasonable for me to establish her income in the $125,000 range that [Mr. Alansari] is currently earning.

In Linn v Frank , 2014 SKCA 87 , [2014] 10 WWR. 215, the court clearly states that if a court imputes an income not currently available to the payee, there must be an evidentiary basis to support a finding that the payee is capable of earning income at that level. [ 40 ] The circumstance described by the trial judge are not supported by the evidence. Chiefly, the trial judge’s finding that Ms.

Kreke was, at the time of separation, a “stay-at-home mother and homemaker” who was returning to the workplace after marriage dissolution is a material misapprehension of the evidence (or a palpable and overriding error) that undermines the exercise of her discretion to impute $45,000 in earnings to Ms. Kreke. [ 41 ] As already noted, Ms. Kreke worked part-time, three days a week, in Lloydminster in her chosen vocation, earning $80,000 on an annual basis, at the time of separation. She voluntarily chose to leave that employment days before separation.

She had re-entered the workforce in Lloydminster in 2017, following AB’s recovery from leukemia. As the trial judge understood, Ms. Kreke also testified that she intended to work two days a week in Davidson, commuting from Lloydminster, earning her $45,000 annually, commencing September 2019. Lastly, Mr. Alansari led evidence at trial, which was confirmed by Ms. Kreke’s own evidence at trial, to the effect that she had other, closer, opportunities to work part-time or full-time as a dental therapist in North Battleford, where she could have earned up to $130,000 annually for just three days work per week.

On this basis, it was not open to the trial judge to say that Ms. Kreke had understandably forgone “trying to locate work outside the home” at the time of separation, or that she ought not be “expected [to] commence work within a very short period of time after separation” or that, since a year had passed since separation, she could be expected to “re-enter the workforce soon”. Given the evidence, these statements are palpably in error. [ 42 ] Turning to that evidence, there is a strong basis to support a finding that Ms.

Kreke is capable of earning of at least $80,000 per year by working three days a week as a dental therapist. That is what she was earning at the time of separation. There is insufficient evidence to impute greater earnings to her. Accordingly, as we find an overriding error underpinned the trial judge’s decision, we set it aside and impute to Ms. Kreke an annual income of $80,000. [ 43 ] The trial judge found that Ms. Kreke had suffered economic disadvantages by the marriage and its breakdown and had a compensatory claim and a depth of need that grounded a non-compensatory claim.

We find no principled reason or evidentiary basis to overturn these findings. [ 44 ] The trial judge also concluded that support should continue until December 31, 2020, and then be reviewed, where the onus would be on Ms. Kreke to establish a continuing need for support (at para 28). However, a review order is only appropriate when there is a genuine and material uncertainty at the time of trial that will be resolved in the near future ( Leskun v Leskun , 2006 SCC 25 at paras 36-38 ; Kassian v Kassian , 2019 SKCA 101 at paras 120-129 ). In our assessment, the evidence firmly establishes that Ms.

Kreke could and should be self-sufficient by December 31, 2020. As noted, the trial judge erred by finding that Ms. Kreke was just re-entering the workforce after the dissolution of the marriage. In our assessment, there was no uncertainty as to Ms. Kreke’s health, ability to work or likelihood of attaining self-sufficiency. We therefore find the trial judge’s misapprehension of the evidence led her to err in principle when ordering a review of spousal support and we would set aside that order. [ 45 ] The trial judge fixed Mr. Alansari’s annual income at $124,850. We have imputed $80,000 annually to Ms. Kreke.

Based on the federal Spousal Support Advisory Guidelines , the top of the range for spousal support in the circumstances would be $94 per month.

We therefore set aside the spousal support order and order Mr. Alansari to pay Ms. Kreke spousal support in the amount of $94 per monthfrom July 2019 until December 31, 2020. C. Division of Family Property Order [46] Under this heading, Mr. Alansari contests only the trial judge’s finding that he was solely responsible for repayment of a$60,744 debt to his former employer, SABIC. On only Mr. Alansari’s testimony, the debt had arisen in 2006 because SABIC had paid forMr. Alansari’s engineering education in consideration for a certain number of years of his service as an engineer.

This occurred before theparties were in a relationship. However, when Mr. Alansari left SABIC’s employ in November of 2014 due to AB’s diagnosis with andtreatment for leukemia, he was paying down the SABIC debt through employment service. He says that, by leaving SABIC’s employ, thatdebt became a monetary debt owing to SABIC. Mr. Alansari asserts that, in these circumstances, it was an error to find that the debt wasnot a shareable family debt. [47] The trial judge’s reasons for finding that Mr.

Alansari would be solely responsible for the SABIC debt are set out in the secondtranche of the Trial Decision, where she wrote: [36] The SABIC debt is an unusual debt. SABIC, in Saudi Arabia, contracted with [Mr. Alansari] so that [Mr. Alansari] could attenduniversity in Canada. The terms of the contract were that [Mr. Alansari’] entire university studies would be paid for by SABIC. However,[Mr. Alansari] was, in return, required to pay back SABIC by working for them for the time period it took to obtain his engineeringdegree. [37] As set out in my oral judgment regarding parenting, [Mr. Alansari] and [Ms.

Kreke] both stopped working when [AB] wasdiagnosed with cancer in July 2014. By that time, [Mr. Alansari] had worked with SABIC for about three years. As a result of[Mr. Alansari] resigning his position with SABIC, [Mr. Alansari] testified that he owes SABIC that portion of the educational cost theyprovided, prorated for the time period he did not complete. [Mr. Alansari] produced evidence indicating that the outstanding amountowing to SABIC as at November 26, 2014, was CAN$60,744. [38] It is not disputed that [Mr. Alansari] has made no payments towards this outstanding loan.

In fact, he testified that SABIC hasmade no efforts to enforce this debt. [Mr. Alansari] says SABIC will do so if he goes to Saudi Arabia. There is no evidence before me toprove that is the case. The only evidence I have is what [Mr. Alansari] provided in his oral testimony. Proving a debt exists often includesproof of payments being made toward the debt. If no payments are being made, it may be the debt has been or will be forgiven by SABIC.Further, SABIC may not enforce the debt even if [Mr. Alansari] returns to Saudi Arabia. [39] In any event, I have determined that [Mr.

Alansari] should be fully responsible for the SABIC debt. This debt was incurred in2006, prior to the parties commencing a relationship. The evidence from both [Ms. Kreke] and [Mr. Alansari] was somewhat confusingwith regard to when they commenced cohabitation and during which period it was “off and on”' prior to their marriage in March 2010. Asa result, I have concluded that [Mr. Alansari] brought this debt into the marriage in March 2010 and graduated from university inDecember 2010. The parties were married for nine months of the over four years in which [Mr.

Alansari] incurred the debt. [48] As we read this explanation, the trial judge had two reasons for attributing the SABIC debt solely to Mr. Alansari. She was notpersuaded, on the basis of the evidence, that Mr. Alansari had established that the SABIC debt was an enforceable debt or, if it wasenforceable, that SABIC would enforce it. While we might take issue with the absoluteness of the trial judge’s statement that proof of adebt includes proof of payments being made, we agree the evidence supporting the existence and nature of the SABIC debt was sparse.The trial judge also said Mr.

Alansari should be fully responsible for the debt because it pre-existed the parties’ relationship and,therefore, he had brought it into the marriage. This conclusion is inconsistent with the trial judge’s finding that the parties had beenmarried for 10 months before Mr. Alansari left school and the debt became due and owing. It is, however, consistent with the law, whichholds that family debts may be taken into account in the division of family property but are not themselves divisible under The FamilyProperty Act, SS 1997, c F-6.3 (see: Russell v Russell (1999), (SK CA), 180 Sask R 196 at paras 109-110).

In theresult, given the paucity of evidence as to the SABIC debt, including how and when it had accrued due, the terms of repayment and othercontractual considerations, we are unable to conclude the trial judge erred by declining to take the SABIC debt into account in thedivision of family property. V. CONCLUSION [49] The appeal is allowed and all orders, except the orders dividing family property and addressing AB’s wish through theChildren’s Wish Foundation, are set aside. At the parties’ request, we confirm that the order of the trial judge granting Ms.

Kreke soleresponsibility for handling AB’s wish through the Children’s Wish Foundation stands unaffected by this judgment. [50] As there must be a reconsideration of the mobility application and the attendant issues of custody, access, primary parenting,primary residence and parenting in general, we remit the matter to the Court of Queen’s Bench for a new trial. However, we would notdisturb the current status quo by ordering AB’s return to Lloydminster pending that new trial.

We express our consternation that a newtrial is the only remedy we see as being available in the circumstances, given that the relocation of AB from Lloydminster to Saskatoonoccurred 15 months ago and we have no fresh evidence as to current AB’s circumstances. To be clear, AB shall remain in his mother’sprimary care in Saskatoon pending the new trial. [51] In the result, we hereby order, in the interim pending the new trial, that: (

a) the parties shall have joint custody of AB, with Ms. Kreke having primary residency of AB in Saskatoon; (

b) the parties shall have joint decision making with respect to AB; (

c) AB shall have access to Mr. Alansari in Lloydminster on alternating weekends and two-thirds of all school holidays,

commencing on the date this judgment; (

d) the parties shall share the transportation necessary to give effect to AB’s access to Mr. Alansari; (

e) Mr. Alansari’s annual income is $124,850 and Ms. Kreke’s annual income is imputed to be $80,000, commencing July 1, 2019; (

f) Mr. Alansari shall pay child support to Ms. Kreke in respect of for AB and CD effective July 1, 2019, in the amount of $1,720.00 per month under the Federal Child Support Guidelines ; (

g) Mr. Alansari shall pay 61% and Ms. Kreke shall pay 39% of all s. 7 expenses for CD and AB, commencing July 1, 2019; (

h) Mr. Alansari shall pay spousal maintenance at the sum of $94 per month from July 1, 2019, to December 31, 2020; and (

i) there shall be no spousal support payable by either party to the other effective as at and after January 1, 2021. [ 52 ] We confirm that, if the circumstances should merit one based on the usual tests that apply to a variation application, either party may bring an application to vary the foregoing interim custody, access and parenting orders and the child support order before the Court of Queen’s Bench. The order as to spousal support is a final order. [ 53 ] In light of the circumstances, we order that each party bear their own costs of trial. Given his success in this appeal, we order Ms. Kreke to pay Mr.

Alansari’s costs on appeal in the usual way. “Caldwell J.A.” Caldwell J.A. “Whitmore J.A.” Whitmore J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.