Kemp v Kemp, 2021 SKCA 31

Court of Appeal for Saskatchewan Docket: CACV3603 Citation: Kemp v Kemp , 2021 SKCA 31 Date: 2021-03-02 Between: Shanna Carline Kemp Appellant (Co-petitioner) And Jason Kemp Respondent (Co-petitioner) Before: Caldwell, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Leurer On appeal from: DIV 104 of 2019, Regina Appeal heard: February 11, 2021 Counsel: Madlin M. Lucyk for the Appellant Karolee A.

Zawislak for the Respondent Caldwell J.A. [ 1 ] Shanna Carline Kemp appeals from an interim child support order made under a Court of Queen’s Bench judge’s fiat dated February 19, 2020 [ February 2020 Fiat ]. For the reasons that follow, I would dismiss the appeal with costs payable to the respondent, Jason Kemp. [ 2 ] As background, Ms.

Kemp applied under the Divorce Act , RSC 1985, c 3 (2d Supp), and The Family Maintenance Act, 1997 , SS 1997, c F-6.2 , seeking child support pursuant to s. 3 of the Federal Child Support Guidelines , SOR 97-175 [ Guidelines ], in respect of the parties’ two children, the imputation of income to Mr. Kemp, and the costs of her application. However, Mr. Kemp had earlier applied for judgment under the parties’ joint petition, seeking an order of divorce, child support and the costs of his application. In addressing these applications, the Chambers judge granted a divorce, ordered Ms.

Kemp to pay $133 per month in child support to Mr. Kemp [ Support Order ], set out the timeframe for the annual adjustment of child support, and ordered costs in favour of Mr. Kemp; but, she declined to address retroactive child support because she lacked the evidence to do so. [ 3 ] Ms. Kemp appeals only against the interim Support Order on two grounds. First, she said the Chambers judge had misapprehended an earlier fiat, dated October 10, 2019 [ October 2019 Fiat ], under which Ms. Kemp submitted that a Queen’s Bench judge had established the parenting arrangements for the two children.

Second, she asserted the Chambers judge had failed to apply s. 3 of the Guidelines when determining child support. However, Ms. Kemp orally advanced a new ground of appeal by alleging that the Chambers judge had materially misapprehended the evidence of the parenting arrangements and had thereby reached an erroneous finding of fact, namely that the arrangement between the parties was one of shared parenting. [ 4 ] Underpinning all of this are two facts that are not in dispute.

First, upon their separation, the parties entered into an Interspousal Contract and Separation Agreement [agreement], with the benefit of legal advice, that addressed, inter alia , the issues of custody, parenting arrangements, and child support. Second, under a joint petition (which has not been amended), the parties claimed “no remedy with respect to any of the children, because … Custody, access and child support issues have been resolved” (at para 24A; see also paras 24C and 24D). [ 5 ] It is important to understand some of the detail of the parties’ agreement.

In terms of parenting arrangements, it states that they agreed that “joint legal custody is in the best interests of the children” and that the children “will primarily reside with [Ms. Kemp]”. As to the

schedule of parenting set out in the agreement, it provides: [The children] will reside with [Ms. Kemp] Sunday morning through to Thursday morning when they are dropped off at daycare. [Mr. Kemp] will pick them up from daycare Thursday evening and they will reside with [him] until Sunday morning at 9:00 am. This weekly

schedule also applies to holidays, with the minor exception that Ms. Kemp has the children on Christmas Eve and Christmas Day in even numbered years and Mr. Kemp has them in odd numbered years. [ 6 ] On the issue of child support, the agreement obliges Mr. Kemp to pay Ms. Kemp $200 per month, calculated pursuant to the Guidelines , commencing March 1, 2018. What are often called

section 7 expenses are shared equally. The cost of daycare is “split in half, with both parties paying half of [the] amount due each month, in proportion to their respective incomes”. In addition, information about the parties’ respective previous year’s income is exchanged on June 30 of each calendar year and the matter of child support is reviewed. [ 7 ] The validity and enforceability of the agreement has never been put in issue at any point.

Various Court of Queen’s Bench chambers judges have therefore proceeded to address the parties’ claims and applications by explicitly or implicitly according weight to its terms and arrangements, including under the October 2019 Fiat , where the judge wrote: [51] For the reasons given, the court declines to alter the terms of the parenting arrangement that the parties have agreed to. The court finds that the children’s best interests are served by continuing the status quo . …

[ 8 ] Moreover, it may be inferred that the Chambers judge herself gave the agreement considerable weight when determining the issues addressed under the February 2020 Fiat because she granted the parties a divorce. Under s. 11(1)(

b) of the Divorce Act , it is the duty of every judge who is asked to grant a divorce to satisfy themselves that “reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made”.

I must therefore presume the Chambers judge satisfied herself that the child support provisions in the agreement constituted a “reasonable arrangement” and, given the unamended joint petition, she had no reason to think otherwise. [ 9 ] As to the calculation of child support, judges of the Court of Queen’s Bench have in this case interpreted the parties’ agreement as providing for child support to be determined “based on a simple set off” ( October 2019 Fiat at para 3) and by “setting off the father’s obligation from the mother’s child support obligation” ( February 2020 Fiat at para 6).

The Chambers judge noted that the agreement itself sets off the parties’ respective child support obligations as calculated under the tables to the Guidelines [ Tables ]. In her

interpretation, the Chambers judge found that the parties expected to adjust child support on July 1 of each year. For the purposes of adjustment, she interpreted the agreement as providing that Mr. Kemp’s income would be $60,000 per annum “going forward” and so she imputed that amount to Mr. Kemp in 2018, even though he had adduced evidence that his actual income was less than that. The Chambers judge found Ms. Kemp’s income had been $69,265 in 2018 on the basis of the evidence before her.

The Chambers judge then turned to the Guidelines and calculated the parties’ monthly support obligations under the Tables as being $963 for Ms. Kemp and $830 for Mr. Kemp. Setting off these obligations, the Chambers judge found $133 per month of child support was payable by Ms. Kemp to Mr. Kemp. [ 10 ] Simply put, there is no error in the Chambers judge’s approach to this child support calculation provided that the parties had agreed to a parenting

schedule that met the threshold ratio of 60:40 set out in s. 9 of the Guidelines [shared parenting].

Section 9 (

a) mandates that, “where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account … the amounts set out in the applicable tables for each of the spouses” (emphasis added).

In answer to the appeal, I find the Chambers judge correctly applied s. 3 and s. 9 of the Guidelines in her calculation of child support. [ 11 ] The question at the root of this dispute, which was not put before the Chambers judge and which we are therefore unable to address on appeal, is whether the parenting arrangement is actually one of shared parenting. To lend some further detail to this, Ms. Kemp disputes the attribution to Mr.

Kemp of the approximately eight hours of time that the children spend in daycare and at school on Thursdays, saying it is time properly attributable to her under the terms of their agreement. As noted, exchanges occur weekly on Thursdays at daycare, when Ms. Kemp drops the children off in the morning and Mr. Kemp picks them up in the evening.

On this question of the parenting regime, the Chambers judge observed in the February 2020 Fiat : [5] In her materials, the mother did not address the parenting regime followed since [the October 2019 Fiat ], so I assume the parties followed [the judge’s] direction and returned to the parenting arrangement set out in the separation agreement.

The father deposed that he has been parenting the children from Thursday morning until Sunday morning each week. [ 12 ] In my view, the Chambers judge’s assumption that the parties’ agreement set forth a shared parenting regime was reasonable given the terms of their agreement, the parties’ joint pleadings and the affidavit evidence the parties had adduced in this proceeding. To be fair, the agreement lacks specificity about who is parenting the children during the eight-hour interval on Thursdays.

However, if the disputed eight hours is factored out of the equation (such that it is attributed to neither parent – which is a plausible

interpretation of the agreement), the allocation of parenting time under the agreement is exactly 60:40, where Ms. Kemp parents the children 60 per cent of the time and Mr. Kemp 40 per cent. If it factors in favour of Mr. Kemp’s parenting time, then the ratio is closer to 57:43, where Ms. Kemp parents the children 57 per cent of the time and Mr. Kemp 43 per cent. If it factors in favour of Ms. Kemp, then the ratio is closer to 62:38, where Ms. Kemp parents the children 62 per cent of the time and Mr.

Kemp 38 per cent. [ 13 ] However, the agreement also states the parties’ intention to follow the Guidelines and then unambiguously establishes their expectation that their respective child support obligations would be set off. Under the Guidelines , that occurs only where there is a shared parenting arrangement ( s. 9 ). In this way, the evidence and the law amply support the Chambers judge’s interim

interpretation of the agreement as establishing shared parenting. [ 14 ] To be clear, nothing in the agreement detracts from this

interpretation. Ms. Kemp tried to make much of the fact that the agreement states that the children are to reside primarily with her, arguing this meant the agreed upon arrangement was not shared parenting. She also describes herself as the children’s primary parent or primary caregiver and then argues that her status as such – in and of itself – means that she is entitled to receive child support from Mr. Kemp without set off. There is no basis in law for these propositions.

Moreover, the question of shared parenting is a factual determination that is established by the evidence of parenting time exercised by each parent over the course of a year ( Guidelines , s. 9 ). In this case, it is something that will have to be determined at trial. [ 15 ] Ms. Kemp also referred to Mr. Kemp as an access parent or a parent with visitation rights , suggesting this means their arrangement is not shared parenting. Although the parties’ agreement refers to Mr.

Kemp having “visitation time” with the children, that description of his parenting time does not override the factual inquiry called for under s. 9 of the Guidelines . [ 16 ] The joint petition is of no aid in resolving this issue. Its detail was handwritten by the parties themselves and it states the parenting arrangement is the “same as separation agreement—Shanna—Sunday—Thursday—Jason—Thursday evening—Sunday morning” (at para 24B).

However, it also states that the agreed upon child support differs from the Guidelines amount due to “split custody” (at para 24L), which is unhelpful because that term properly refers to a circumstance where each parent would have custody of one child, which has never been the case. [ 17 ] At bottom, I am not persuaded that the Chambers judge misapprehended or misinterpreted the October 2019 Fiat . Nor am I persuaded that the October 2019 Fiat has any true bearing on the issue of child support.

As I interpret it, the October 2019 Fiat did nothing more than maintain the parenting arrangements the parties had established under their agreement. I note that no appeal was taken against the October 2019 Fiat . As to the alleged failure to apply s. 3 of the Guidelines , the Chambers judge correctly applied s. 3 and s. 9 of the Guidelines in her calculation of child support on the basis of a reasonable assumption that the parties had been following the shared

parenting regime set forth in their agreement, as has been directed under the October 2019 Fiat. [18] Whether the Chambers judge’s assumption is ultimately borne out by evidence of the parties’ actual parenting arrangement willhave to wait until trial, if not earlier resolved at a pre-trial conference. Issues of this nature are at the root of this Court’s long-standing andoft-expressed reluctance to hear appeals from interim orders of the sort the Chambers judge made in this case.

As Jackson J.A. said inHall v Hall, 2011 SKCA 86 at para 1, 337 DLR (4th) 89, “[i]n most cases, the interests of the parties, and the children, are best served byproceeding quickly to the pre-trial settlement conference stage rather than expending time and scarce resources on an appeal from aninterim order”. [19] This Court may not exercise its appellate powers to overturn the Support Order unless the Chambers judge’s reasons disclosean error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong (Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11).

As I am not persuaded the Chambers judge erred in her approach to the calculation of childsupport, in her

interpretation of the October 2019 Fiat or in her assessment of the evidence, I conclude that we should not disturb theSupport Order. [20] I would therefore, dismiss the appeal, with an order that Ms. Kemp pay Mr. Kemp’s costs in this Court. “Caldwell J.A.” Caldwell J.A.I concur. “Schwann J.A.” Schwann J.A.I concur. “Leurer J.A.” Leurer J.A.