Scobie v Thiessen, 2021 SKCA 47

Court of Appeal for Saskatchewan Docket: CACV3677 Citation: Scobie v Thiessen , 2021 SKCA 47 Date: 2021-03-26 Between: Tyler Scobie Appellant (Petitioner) And Lynelle Thiessen Respondent (Respondent) Before: Richards C.J.S., Ryan-Froslie and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Barrington-Foote On appeal from: FLD 13 of 2020, Regina Appeal heard: December 10, 2020 Counsel: Robert Feist for the Appellant Tamala Melnechenko for the Respondent Ryan-Froslie J.A.

INTRODUCTION [ 1 ] This appeal relates to a family proceeding in the Court of Queen’s Bench in which Acton J. [Chambers judge] granted an interim order pertaining to custody, access, child support and retroactive child support. The order was made in response to two applications – one by the appellant, Tyler Scobie and the other by the respondent, Lynelle Thiessen.

The applications were contested, and the evidence provided, especially with respect to custody and retroactive child support, was controverted. [ 2 ] Following the hearing of the applications, the Chambers judge wrote the following fiat: The draft order filed by the Respondent [Lynelle] may issue as filed except for the following amendment: paragraph #2@[ sic ] shall be amended to read “every second week” in all other respects it shall read as filed.

The phrase “every second week” replaced “every second weekend” in a draft order filed by Lynelle. [ 3 ] The Chambers judge provided no reasons for granting the order. [ 4 ] Tyler now appeals against the Chambers judge’s decision on the ground, among others, that the Chambers judge’s reasons were inadequate. [ 5 ] In my view, the Chambers judge’s failure to provide reasons on the controverted matters before him has placed the parties in an untenable position and makes appellate review by this Court impossible. Further, the order on its face is ambiguous with respect to the parenting arrangement.

The Chambers judge failed to clarify that ambiguity, despite a request that he do so. In the circumstances, the appeal must be allowed. As the decision emanated from a Chambers application based on affidavit evidence, this Court is in a position to make the appropriate orders. THE EVIDENCE [ 6 ] Tyler and Lynelle cohabited from 2011 to December of 2017. They were never married. Following their separation, they both continued to reside in the family home until June of 2018, when Lynelle purchased a residence in the same small town where they had lived throughout the relationship.

Tyler remained in the family home. [ 7 ] Tyler and Lynelle have a 7-year-old daughter [A] who attends school in the town where they reside. Lynelle also has two children from a prior relationship, aged 16 and 14 respectively, who live with her. Those children have a relationship with their biological father who provides child support for them. No claims were made by either Lynelle or Tyler with respect to those children. [ 8 ] Both Tyler’s mother and Lynelle’s mother lived in the same community where the parties reside and have, over the years, assisted Tyler and Lynelle with childcare.

Lynelle’s mother passed away in March of 2018. [ 9 ] Tyler is self-employed by a trucking corporation owned by him and Lynelle. It is uncontroverted that during their relationship, Tyler had an “irregular work schedule”. That changed in July of 2019 when, as a result of a new corporate contract, Tyler was able to move to a week on–week off work schedule. [ 10 ] Lynelle also worked outside the family home during the relationship as an EMT and at a care home. Her hours were also described as “irregular”.

[ 11 ] Lynelle attests that Tyler never played a “significant” childcare role during their relationship or following the separation. Tyler on the other hand indicated he was an involved parent: [15] During our relationship, the Respondent and I had a relatively equal role in [A]'s parenting. My mother provided significant assistance to us, even during the relationship, when the Respondent went back to work as an EMT after maternity leave, and when I was working with my trucking company.

I cared for [A] in all normal ways as a parent, waking her up in the morning, helping her get dressed and with grooming, playing with her, taking her to community events and appointments, cooking for her and feeding her, and putting her to bed at night. I have continued to care for [A] in that way since separation, and have enjoyed watching her mature as she has gone off to Kindergarten and Grade 1 over the past two years. [ 12 ] It is uncontroverted that A has a close and loving relationship with both her parents.

Other significant persons in her life include her half-siblings, her maternal grandfather and her paternal grandparents. [ 13 ] Following the parties’ separation, Tyler entered into a romantic relationship and was married in July of 2019. It is uncontroverted that his spouse is a positive presence in A’s life.

It is unknown whether she works outside the family home. [ 14 ] Both Tyler and Lynelle are able to provide a suitable home environment for A. [ 15 ] In his January 2, 2020, sworn financial statement, Tyler claims an income for child support purposes of $92,800, which consists solely of taxable Canadian dividends received from his closely held trucking corporation. [ 16 ] The corporate year end is January 31. Tyler filed the corporate financial statement for January 31, 2019. The corporation’s 2018 and 2020 financial statements were not provided. The pre-tax income of the corporation in 2019 was $123,604.

In the comparative

summary portion of that financial statement, the corporation’s 2018 pre-tax income was identified as $204,909. The financial statement also indicated the actual dividends paid to Tyler in 2018 and 2019 were $120,000. In short, Tyler has been withdrawing all of the pre-tax income from the corporation by way of dividends. [ 17 ] In September of 2017, shortly before the separation, Lynelle commenced a Primary Caregiver Paramedic program offered through Sask Polytech. The course included classes and practicums. Lynelle completed her classes in March of 2019.

Her last practicum was completed at the end of September of 2019. The classroom portion of the program occurred in a centre located some distance from the parties’ home. It is unknown whether Lynelle commuted to attend classes, stayed in the centre, or did her classes online. It is also unknown where she did her practicums or how long they lasted. What is clear, is that her mother and Tyler’s mother assisted with childcare during the period of the program, with Tyler’s mother eventually taking up the slack caused by the death of Lynelle’s mother.

The calendars attached to Tyler’s January 2, 2020, affidavit show that Lynelle spent significant time away from home between June of 2018 and September of 2019. [ 18 ] In Lynelle’s financial statement sworn June 30, 2020, she declared her employment income as a paramedic to be $33,876. She filed her tax returns and notices of assessment for 2017, 2018 and 2019.

Based on those documents, Lynelle’s income was as follows: 2017: $64,807 2018: $63,862 (reassessed from $17,295.65) 2019: $33,876 [ 19 ] It is uncontroverted that Lynelle is currently employed as a paramedic and works 48 hours per week (two 24-hour shifts). No evidence was provided as to which days she works. [ 20 ] While Tyler’s mother was significantly involved in caring for A while Lynelle was pursuing her paramedic program, that has now changed. Lynelle attested that since July of 2019, she has no longer required Tyler’s mother to assist with A’s care.

While Lynelle attested that her 14-year-old daughter “sometimes babysits” A when she is at work, Lynelle provided no evidence as to who was responsible for the majority of A’s care. Tyler attested that it is paid babysitters and friends who care for A when Lynelle is at work. [ 21 ] It is Tyler’s evidence that following their separation, he and Lynelle shared custody of A.

From December of 2017 to June of 2018, nothing changed with respect to A’s parenting arrangement, as the parties both resided in the family home with Tyler’s mother providing childcare, as needed, to enable Tyler to work and Lynelle to attend her paramedic program. Tyler indicated that from July of 2018 to July of 2019, he and Lynelle continued to parent A much as they had during their relationship, with childcare being provided by his mother. Tyler attested this changed in July of 2019, when he sought to formalize their shared parenting arrangement.

At that point, according to Tyler, Lynelle ceased to use his mother for childcare and unilaterally reduced his time with A to alternating weekends. Tyler tried to resolve the parenting issue and when he failed, he initiated court proceedings and applied for interim relief. [ 22 ] Lynelle attested that she had to “prompt” Tyler to spend time with A and that following their physical separation he only had A on alternating weekends.

She alleged that during those weekends, A would often be with her paternal grandparents. [ 23 ] Lynelle attested that Tyler has a “history of throwing temper tantrums and pouting when things don’t go his way”. She indicated that their home had holes in the walls and broken furniture. Lynelle did not describe any specific events leading to that damage, and Tyler denied her general assertions with respect to his alleged anger issues. There are no allegations that either parent has ever physically abused A. Lynelle indicated that Tyler has prevented A from contacting her while A is in his care.

Tyler denied that allegation. [ 24 ] Since the separation, Tyler has not paid child support in accordance with the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. He did, however, pay the loan outstanding with respect to Lynelle’s vehicle in the amount of $1,274.25 per month [1] . Tyler attested those payments were made in lieu of child support. Lynelle attested it was the corporation that made the loan payments as part of her “overall settlement to resign as a corporate shareholder”. Tyler produced his personal bank statements which showed the payments came from his personal account.

Those payments continued until October of 2019 when Lynelle returned the vehicle to Tyler. The total amount paid by Tyler from July 1, 2018, to October of 2019 was $20,388.

[ 25 ] It is also uncontroverted that Tyler has paid one-half of A’s medical and dental expenses, her baseball registration and school fees. While Lynelle refers to the latter two payments as s. 7 expenses, they do not qualify as such pursuant to s. 7 of the Guidelines . [ 26 ] Tyler’s application for interim relief was brought pursuant to The Children’s Law Act, 1997, SS 1997, c C-8.2 [ CLA ], and The Family Maintenance Act , 1997 , SS 1997, c F-6.2 [ FMA ]. It included a request for joint custody with shared parenting and interim child support based on s. 9 of the Guidelines .

Lynelle countered Tyler’s application with one of her own. She claimed primary residence of A and that Tyler should have access to A alternating weekends and half of all school holidays. In addition, Lynelle requested child support in accordance with s. 3 of the Guidelines , an equal sharing of s. 7 expenses and retroactive child support from July 1, 2018, to and including June of 2020 in the amount of $19,200. [ 27 ] The Chambers judge granted the relief set out in Lynelle’s draft order with one exception.

He directed paragraph 2a of the order be amended to read “every second week” instead of “every second weekend”. The issued order is as follows: 1 The Parties shall have shared decision-making for the child, [A]. 2 The child, [A] shall reside primarily with the Respondent, Lynelle Thiessen, and the Petitioner, Tyler Scobie shall have reasonable and generous access as follows: a. Every second week; and b.

Such other parenting time as the parties may agree between them. 3 The Petitioner and the Respondent shall parent the child equally, during all school holidays and summer holidays in the months of July and August, as agreed between them. 4 The Petitioner and Respondent shall both have reasonable telephone and video chat access to the child while the other parent is exercising parenting time. 5 The Petitioner’s annual income for child support purposes is $108,971. 6 The Respondent’s annual income for child support purposes is $33,876. 7 Based on s.3 of the Federal Child Support Guidelines , and the parenting arrangement ordered herein, the Petitioner shall pay to the [Respondent] $917 per month for s.3 child support commencing July 1, 2020 and continuing on the 1st of each month thereafter, until further order of the Court. 8 The petitioner shall pay the Respondent the sum of $19,200 in retroactive child support for the period up to and including June 30, 2020. 9 The amount of child support in this order may be recalculated by the Saskatchewan Child Support Recalculation Service if eligible for recalculation and if the recalculation service determines that recalculation is permissible and appropriate pursuant to The Family Maintenance Act , 1997 and the regulations thereto.

Either party may apply to the recalculation service at: Saskatchewan Child Support Recalculation Service Room 100, 3085 Albert Street Regina, SK . 10 Should either party fail to comply with the income disclosure requirements of the recalculation service, that party’s income may be deemed to have increased as set out in

section 21.33 of The Family Maintenance Regulations , 1998 . 11 The parties shall pay to one another, on presentation of bona fide receipts, 50% of any reasonable

section 7 expenses incurred. The parties shall discuss and agree to

section 7 expenses prior to incurring same. Neither party shall unreasonably withhold their consent to a proposed

section 7 expense. (Emphasis in original) [ 28 ] Tyler interprets paragraph 2a of the interim order to mean that he is to have A every second week. Lynelle interprets the order to mean Tyler has reasonable and generous parenting time every second week. [ 29 ] Counsel for Lynelle sought clarification of the order from the Chambers judge pursuant to Rule 10-11 of The Queen Bench Rules , and in particular, what was intended by the change to paragraph 2a. No clarification was provided. On June 23, 2020, Tyler appealed the whole of the Chambers judge’s decision except the provision, “that he shall have A every second week”. ISSUES [ 30 ] Tyler’s appeal raises the following issues: (

i) did the Chambers judge err in law by failing to provide adequate reasons; (ii) if so, what is the appropriate parenting plan and child support order; (iii) if not, did the Chambers judge err in making the parenting order and child support orders that he did; and (iv) did the Chambers judge err in ordering retroactive child support. ANALYSIS A. Did the Chambers judge err in law by failing to provide adequate reasons? [ 31 ] The adequacy of reasons must be considered in the context of the record before the Court. This is so because the record may support the Court’s decision even though no reasons are provided, or the reasons are inadequate. Such was the situation before this Court

in Gebert v Wilson, 2015 SKCA 139, 467 Sask R 315 [Gebert]. In Gebert, the Chambers judge had also failed to give reasons, but hisdecision was clearly supported by the uncontroverted evidence before him. [32] In Gebert, this Court had an opportunity to address a Chamber judge’s failure to give reasons in a family law proceeding: [16] The Supreme Court of Canada has been very clear with respect to a judge’s obligation to provide reasons for his or her decisionsand an appellate court’s role in reviewing a decision where one of the grounds of appeal is the adequacy of reasons.

The leading authorityon the adequacy of reasons is the Supreme Court of Canada’s decision in R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869 at para 55(8)[Sheppard], which held that the question to be answered by an appellate court dealing with this issue, is whether the decision “isreasonably intelligible to the parties and provides the basis for meaningful appellate review….” [17] In R v Walker, 2008 SCC 34, [2008] 2 SCR 245 [Walker], Binnie J. summarized the policies underpinning a judge’s need to givereasons for his or her decision, namely: to justify and explain the result; to tell the losing party why he or she lost; so that informedconsideration can be given to grounds of appeal; and, to satisfy the public that justice has been done. [18] While Sheppard and Walker are criminal cases, the law with respect to the adequacy of reasons has been applied in the civil lawcontext, including custody and access matters: e.g.

Hill v Hamilton-Wentworth (Regional Municipality) Regional Police Services Board,2007 SCC 41 at paras 100–102, [2007] 3 SCR 129; F.H. v McDougall, 2008 SCC 53 at paras 98–99, [2008] 3 SCR 41; Young v Young(2003), (ON CA), 223 DLR (4th) 113 (Ont CA) at para 27; B.C. v M.S., 2015 NBCA 46 at para 19, 438 NBR (2d) 155;Petrowski v Waskul, 2003 MBCA 65 at para 12, [2003] 10 WWR 65; and Rockall v Rockall, 2010 ABCA 278 at paras 26–27, 490 AR135. [19] McLachlin C.J. speaking for the Supreme Court of Canada in Hill, indicated the test to be applied when determining theadequacy of reasons is a functional one.

At para. 101 she stated: 101 In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where therecord discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that lessdetailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal.

On the other hand, reasons areparticularly important when “a trial judge is called upon to address troublesome issues of unsettled law, or to resolve confused andcontradictory evidence on a key issue”, as was the case in the decision below: Sheppard, at para. 55.

In assessing the adequacy ofreasons, it must be remembered that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did apoor job of expressing itself”: Sheppard, at para. 26. (Emphasis added) [33] In determining whether reasons are adequate, an appellate court must apply a functional test – one that takes into considerationthe context giving rise to the decision, the record and the purpose of providing reasons, which includes giving an explanation to theunsuccessful party, allowing for meaningful appellate review and enabling the public to satisfy itself that justice has been done: R vSheppard, 2002 SCC 26 at para 24, [2002] 1 SCR 869 [Sheppard]. [34] In my view, the Chambers judge, in the context of this case, failed to provide adequate reasons.

His decision was not“reasonably intelligible” nor does it provide the basis for meaningful appellate review. The decision itself was ambiguous with respect tothe parenting arrangement, and it failed to resolve the contradictory evidence relating to key issues including the best interests of the child,and retroactive child support. Further, it is obvious from the evidentiary record that the Chambers judge could not have made the order hedid without erring in principle and overlooking evidence with respect to both the best interests of A and the issue of retroactive childsupport.

Let me elaborate. [35] The interim parenting order can legitimately be interpreted as Tyler suggests, namely, that he parent A every second week. If ashared parenting arrangement was intended by the Chambers judge, then some explanation was required with respect to the application ofs. 9 of the Guidelines. That

section deals with the assessment of child support where the payor has “care of a child for not less than 40 percent of the time”. [36] On the other hand, the wording of the interim order is also consistent with Lynelle’s

interpretation that she would have primaryresidence of A, with Tyler having generous and reasonable parenting time every second week. [37] If Lynelle’s

interpretation is correct, some explanation by the Chambers judge was required as the evidence is uncontrovertedthat Tyler and Lynelle are both capable parents who can provide an appropriate home environment for A and who live in very closeproximity to one another in the same small rural community. Further, the evidence was controverted with respect to Tyler’s parenting roleboth during the relationship and after its breakdown.

Finally, s. 6(5) of the CLA requires judges to maximize a child’s contact with bothparents subject to the child’s best interests. [38] While judges are taken to know the law, this Court cannot, given the evidentiary record, conclude the Chamber’s judgeconsidered the factors relevant to the question of A’s best interests or those related to issues of child support and retroactive child supportas set out in D.B.S. v S.R.G., 2006 SCC 37, [2006] 2 SCR 231 [D.B.S.]. In short, this Court is unable to find that the Chambers judgebrought his mind to bear on the issues before him.

His change to the draft order is unexplained and confusing. As Binnie J. stated inSheppard at paragraph 28: [28] It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exerciseappellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and afunctional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position tomake that determination.

The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether thedecision is vitiated by error. Relevant factors in this case are that; (

i) there is significant inconsistencies or conflicts in the evidence whichare not addressed in reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue in the appeal, and (iii) therecord does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will present different factors.The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful

appellate review of the correctness of the decision, then an error of law has been committed. (Emphasis added) [ 39 ] In my view, the Chambers judge’s failure to provide reasons constituted an error in law. This is so because as indicated, there were significant inconsistencies or conflicts in the evidence with respect to the role Tyler has played in A’s care, the status quo parenting arrangement and whether Tyler has anger issues. Those matters all relate to the key question of what parenting arrangement is in A’s best interest.

There was also controverted evidence with respect to retroactive child support, and in particular, whether Tyler’s payment of Lynelle’s vehicle loan was made in lieu of child support. The Chambers judge’s failure to address the controverted evidence as identified and the ambiguity in the parenting order make appellate review of the decision untenable. Finally, the record does not otherwise explain the Chambers judge’s decision in a satisfactory manner.

Accordingly, the decision must be set aside. [ 40 ] Given that conclusion, it is unnecessary to consider Tyler’s other grounds of appeal. [ 41 ] As the decision under appeal is an interim one granted on the basis of affidavit evidence, this Court need not remit the whole of that decision to the Court of Queen’s Bench for determination. Rather, it can render the appropriate decision, to the extent possible, based on the evidentiary record. I begin by considering the appropriate parenting arrangement. B. The parenting arrangement 1.

The law [ 42 ] The custody applications before the Chambers judge were made pursuant to the CLA . Section 3(1) of that Act provides that, absent an agreement or court order to the contrary, the parents of a child are “the joint legal custodians of the child with equal rights, powers and duties”. [2] [ 43 ]

Section 8 of the CLA identifies the best interests of a child as being determinative of the appropriate parenting arrangement. It sets out a non-exhaustive list of matters to be considered by a court: 8 In making, varying or rescinding an order for custody of a child, the court shall: (

a) have regard only for the best interests of the child and for that purpose shall take into account: (

i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have a close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (

v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (

b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child; and (

c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as a father or mother. [ 44 ] Further, s. 6(5) of the CLA provides that when making an order for custody, a court shall: 6(5) … (

a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (

b) include in the order a condition requiring any person who has custody of a child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (

i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. [ 45 ] It is important to note that the principle of maximum contact as set out in s. 6(5) (

a) of the CLA is mandatory and must be considered when determining custody whether interim or final. That said, s. 6(5) (

a) does not create a presumption of equal shared parenting. Rather, a child’s contact with each parent is to be maximized in accordance with the child’s best interests. In practical terms, what that means depends on the facts of each case.

[ 46 ] It is Lynelle’s position that because she was A’s primary caregiver, A should reside with her and Tyler should have parenting time alternating weekends and 50 percent of holidays. [ 47 ] Neither the CLA , nor the Divorce Act , RSC 1985, c 3 (2d Supp) [3] , use the terms “primary caregiver” or “primary parent” when addressing the factors to be considered in determining an application for custody. The Divorce Act , prior to recent amendments, spoke in terms of “the condition, means, needs and other circumstances of the child”. The old CLA is more specific.

It refers to “the quality of the relationship the child has with the person who is seeking custody” ( s. 8 (a)(i)) and “the physical, psychological, social and economic needs of the child” ( s. 8 (a)(iii)). Courts, however, often refer to the “primary caregiver of a child”. Most commonly it is viewed as the person who spends the most time tending to a child’s day-to-day needs. In many relationships there will be one parent who fulfills the “primary caretaker” role. [ 48 ] Parents structure their affairs to meet their needs and the needs of their children.

They take on duties in their relationship depending upon their work schedules, life skills, extended family demands, community involvement and other obligations. In a two-parent home, despite the fact that one person may spend more time with the children than the other, children are still being nurtured in a shared parenting arrangement. Who spends more time with them and has the obligation of meeting their day-to-day needs on a regular basis, is not generally determined by who is the best parent but, rather, by convenience.

Further, as Wilkinson J.A. (as she then was) stated in Gilles v Gilles , 2008 SKCA 97 at para 24 , 54 RFL (6th) 55, the characterization of a parent as a child’s primary caregiver “is not, ipso facto a judicial endorsement” that they are in fact the “best caregiver. A parent can be the dominant physical and emotional presence in a child’s life in a less positive sense”. The corollary is also true. A parent who plays a less dominant role in a child’s life may, nonetheless, be the best caregiver.

In other words, parents who have lived together with a child, and who are both actively involved in that child’s life, though perhaps, in different ways and for different periods of time, are still engaged in shared parenting. Further, in the give and take of ordinary life, most parents assume care of their child when the other parent is away.

When parents separate, who has spent the most time with the child may be a factor to consider, but it is not a determinative factor: Ackerman v Ackerman , 2014 SKCA 86 at para 52 , 442 Sask R 113. [ 49 ] In my view, for all the above reasons, the important question is not about who the primary caregiver is but, rather, about the quality of the parent-child relationships – their nature and strength.

If a child is securely attached, there are no safety concerns, and both parents are able to meet their child’s day-to-day needs in an appropriate environment, then who the primary parent was while the parties were together, may be of less significance. In short, when it comes to determining the best interests of a child, all relevant factors must be considered. Which factors will be given more weight will depend on the context of each individual case.

When it is in a child’s best interest, wherever possible, a child’s time with both parents should be encouraged and maximized. [ 50 ] At the time this application was heard, Parliament and the Legislature of this province statutorily recognized that maximizing a child’s contact with both parents is important. The only limiting condition is that the contact must be in the best interests of the child. The recent amendments to the Divorce Act retain that provision. The Children’s Law Act, 2020 does not.

Rather, it indicates in s. 11 that the court shall “make no presumption and draw no inference as between parents that one parent should be preferred over the other parent”. Further, one of the factors to be considered in determining the best interests of a child is, “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent” (s. 10(3)(c)). [ 51 ] In

summary, what is in the best interests of a child, in any given situation, generally depends on a myriad of factors. None of the factors is determinative. Arriving at a parenting arrangement in the best interests of a child requires judges to balance all of the relevant factors. Which parent was the primary caregiver should not curtail or impair that inquiry; it merely forms part of the analysis. [ 52 ] The evidence on interim applications for custody is, by the nature of such applications, limited. Further, assessing credibility where there is controverted evidence on such applications is extremely difficult.

Despite these challenges, interim parenting orders must still reflect the best interests of the child. 2. Analysis [ 53 ] With the provisions of the CLA and the principles as set out clearly in mind, I turn to consider what parenting arrangement is in A’s best interest on an interim basis. I will begin by addressing the controverted evidence. [ 54 ] It would appear that Lynelle was A’s primary parent in terms of actual time spent with A and completion of the daily parenting tasks. Despite this, I am satisfied that Tyler and Lynelle shared parenting of A during their relationship, though not on an equal basis.

I am also satisfied that Tyler and Lynelle’s parenting arrangement continued following their separation until July of 2019, when Lynelle unilaterally changed it by terminating the paternal grandmother’s care of A and decreasing Tyler’s time with A to every other weekend. [ 55 ] The evidence raises three matters of concern. The first is Lynelle’s assertion that Tyler has anger issues. Tyler denies that assertion and there is insufficient evidence to make a determination of the truth of Lynelle’s allegation or, if it is true, how it affects A’s best interests.

However, what is uncontroverted, is that neither Lynelle nor Tyler has abused A and no safety issues have been raised with respect to A spending time with either of her parents. [ 56 ] Second, Lynelle terminated the paternal grandmother’s role as a caregiver for A. This is of concern because the evidence describes the paternal grandmother as playing a consistent and important role in caring for A. Lynelle acknowledged she still requires childcare as a result of her employment, but offers no explanation why the paternal grandmother could not continue to fulfill that role.

In effect, Lynelle has curtailed A’s relationship with a very significant person in A’s life. [ 57 ] Third, Lynelle has shown an unwillingness to give Tyler parenting time with A beyond the alternating weekends proposed by her. This is so even though it was obvious from the Chambers judge’s order that more parenting time was warranted. Otherwise, the Chambers judge would not have changed paragraph 2a of Lynelle’s draft order from every other weekend to every other week.

Lynelle’s reluctance to provide Tyler with more parenting time, despite repeated requests by him, raises the question of her willingness to facilitate and promote A’s relationship with her father. [ 58 ] The evidence supports the conclusion that A has a close and loving relationship with both of her parents, as well her paternal

grandmother and her half-siblings. Other significant relationships in her life include her maternal and paternal grandfathers and Tyler’s spouse. Tyler and Lynelle both reside in the same small community in close proximity to one another. Tyler’s parents reside in the same community, as does Lynelle’s father. A attends school there. A is only 7 years old and, accordingly, consistent weekly contact with each of her parents is important. It is also realistic given that her parents reside in the same small community.

Both Lynelle and Tyler appear to be good parents and can provide A with an appropriate home environment. Lynelle works two 24-hour shifts each week. Tyler has adjusted his work schedule, so he is available to parent every other week. He also indicated, before this Court, that he could structure his work around Lynelle’s work schedule. [ 59 ] Tyler and Lynelle agree that an interim order for joint custody is appropriate. The issue is the parenting time each should enjoy with A. Although parenting time is contested, it appears Tyler and Lynelle have been able to communicate effectively.

This is evident from the fact that Lynelle requested a parenting order that provided for joint decision-making and the fact that Lynelle and Tyler were able to continue to live in the family home for approximately six months following their separation. [ 60 ] The purpose of an interim order is not to make a final determination with respect to parenting but, rather, to put in place a temporary arrangement pending a final resolution of the matter.

In circumstances such as these, where there are two good and capable parents to whom A is closely bonded, both of whom offer appropriate home environments and live in close proximity to one another, an order that maximizes A’s time with each parent and reduces the need for non-family caregivers is in her best interests. Such an order would need to take into account the parties’ roles in A’s life and their work schedules. In the circumstances, an interim shared parenting arrangement is appropriate.

Such an arrangement will enable A to spend time with all of the significant people in her life, including her paternal grandmother. [ 61 ] Accordingly, pending agreement of the parties or further court order, there shall be an interim order that: (

a) Tyler and Lynelle have joint custody of A; (

b) Effective April 1, 2021, Tyler shall have parenting time with A for four days during his week off and one day including overnight during his work week. So far as possible Tyler’s parenting time shall include the days Lynelle must work; (

c) Effective September 1, 2021, Tyler shall have A in his care 50 percent of the time. Lynelle and Tyler’s parenting time shall be structured to accommodate their work schedules so that A’s time with both parents is maximized. Tyler and Lynelle are directed to work out a parenting

schedule on that basis. If they are unable to do so, either may apply to the Court of Queen’s Bench to fix the

schedule in accordance with this judgment. Lynelle and Tyler may agree in writing to a different summer

schedule or that the regular parenting

schedule continue during the summer months; (

d) In addition to the parenting time set out herein, Tyler shall have A in his care: (

i) for Christmas Day and Boxing Day in odd years and New Years Eve and New Years Day in even years; (ii) Thanksgiving weekend (Friday after school to Monday at 7 p.m.). in odd years; (iii) Easter weekend (Thursday after school to Monday at 8 a.m.) in even years; (iv) The holiday periods may be adjusted by written agreement of Tyler and Lynelle; and (

v) Tyler and Lynelle are encouraged to accommodate A’s attendance on family vacations and at special family events; (

e) Tyler and Lynelle shall be entitled to attend A’s extra-curricular activities, even if those activities occur outside their respective parenting time; (

f) Tyler and Lynelle shall both have reasonable telephone and video chat access to A when A is in the care of the other parent; (

g) In accordance with Lynelle’s draft order filed with the Court of Queen’s Bench, Lynelle and Tyler shall share decision- making power with respect to A; and (

h) Neither Tyler nor Lynelle shall change A’s residence pending a final resolution of the parenting issue without the written consent of the other or a court order. C. Child support 1. Retroactive child support [ 62 ] For the purposes of this judgment, retroactive child support covers the period from July 1, 2018, when Tyler and Lynelle physically separated, to February 1, 2020, being the first day of the month in which Tyler commenced his court proceedings. [ 63 ] The leading case with respect to retroactive child support is the Supreme Court of Canada’s decision in D.B.S.

In that decision, the Court addressed four appeals where a request for retroactive child support had been made. Each appeal arose in a different factual context: (

i) where there was an interim order under the Divorce Act ; (ii) where there was an interim order under provincial child support legislation; (iii) where there was an agreement but no court order relating to child support; and; (iv) where neither an agreement or court order existed. [ 64 ] Justice Bastarache set out a non-exhaustive list of factors to be considered when determining whether to order retroactive child support. He found that while the existence of blameworthy conduct is relevant to the analysis, it is not a prerequisite to such awards. The factors identified by him are as follows:

(

a) whether there is a reasonable excuse why support was not sought earlier; (

b) whether there is blameworthy conduct by the payor parent; (

c) the circumstances of the child; and (

d) whether hardship will be occasioned by the retroactive award. [ 65 ] In the context of this appeal, there is no evidence of blameworthy conduct by Tyler or that he would suffer hardship if a retroactive child support order were made. Nor is there any evidence as to A’s circumstances that would militate either in favour of or against such an award. There is, however, evidence of an oral agreement between Tyler and Lynelle that Tyler would pay the loan on Lynelle’s vehicle in lieu of child support.

While Lynelle acknowledged that the vehicle payments were made, she denied those payments were in lieu of child support. She contended the payments were made by the corporation as part of the “settlement for her resigning as a corporate shareholder”. [ 66 ] According to the evidence, Tyler paid $1,274.25 per month for Lynelle’s vehicle loan for a period of 16 months from July 1, 2018, to October of 2019.

That amount exceeds Tyler’s child support obligation for the same period, even if it that obligation is assessed in accordance with s. 3 of the Guidelines and based on his actual dividends or the pre-tax income of the corporation. An added complication is that Tyler attested that he had a shared custody arrangement with respect to A during a portion of the period in issue.

Even though it would appear the shared parenting arrangement may not have been equal, if it existed, it may affect the assessment of retroactive child support. [ 67 ] Because the agreement pertaining to the vehicle loan is not in writing, it is impossible on the basis of the controverted affidavit evidence to determine whether Tyler or Lynelle’s position with respect to the payments is correct.

While Lynelle attested that she made repeated requests for child support commencing with their separation, there is nothing in writing, and she took no steps to obtain a child support order until after Tyler had commenced his application. Lynelle provided no explanation for her delay in pursuing such support.

The delay lends credence to Tyler’s assertion that the vehicle payments were made in lieu of child support. [ 68 ] Given the controverted evidence with respect to whether an agreement pertaining to child support existed, the fact that Tyler paid Lynelle’s vehicle loan from July 1, 2018, to October of 2019, and the issue of whether Tyler and Lynelle “shared custody” of A until July of 2019, the matter of retroactive child support is better left to the determination of a trial judge, or an agreement of the parties, whether Tyler met his child support obligations during the relevant period.

A trial judge will have significantly more evidence than was presented on the interim application and will be in a far better position to assess credibility and determined whether Tyler met his child support obligations. 2. Prospective child support [ 69 ] It is uncontroverted that since July of 2019, Tyler has only had A in his care alternating weekends. Accordingly, as of that date, his child support obligation must be set in accordance with s. 3 of the Guidelines . This judgment changes the parenting arrangement, such that Tyler will now have A in his care more than 40 percent of the time as of April of 2021.

As such, s. 9 of the Guidelines applies to support commencing with the date of this judgment. A portion of the period prior to the commencement of legal proceedings, that is from July 1, 2019, to January 31, 2020, is covered by the request for retroactive support. The issue of prospective support commences on the first day of the month in which the court application was issued, namely February 1, 2020. [ 70 ] In light of the change in the parenting arrangement occasioned by this judgment, prospective child support must be broken into two periods: (

i) from February 1, 2020, to March 31, 2021, when s. 3 of the Guidelines applies; and (ii) from April 1, 2021, going forward when s. 9 of the Guidelines applies. [ 71 ] I begin with an assessment of Tyler’s income for child support purposes. The starting point for the analysis, in accordance with s. 16 of the Guidelines , is Tyler’s sources of income as set out under the heading “total income” in his T1 General Form issued by the Canada Revenue Agency and adjusted in accordance with

Schedule III of the Guidelines . Tyler only filed copies of his 2016, 2017, and 2018 personal income tax returns. It is uncontroverted that Tyler’s sole source of income is dividends from his trucking corporation. In 2018, he declared a total income of $92,800.

Section 5 of

Schedule III of the Guidelines provides that the taxable amount of a dividend received from a Canadian corporation “should be replaced” by the actual amount of the dividend received. The actual dividend received by Tyler in 2018 was $120,000. According to Tyler’s corporate financial statement, the pre-tax income for the corporation in 2018 was $123,604. In effect, in that year, Tyler took virtually all of the pre-tax income from his corporation.

Thus, $120,000 being the actual dividend received by Tyler fairly represents the income available to him for child support purposes. [ 72 ] The parenting arrangement provided by this judgment, which will come into effect on April 1, 2021, results in A being in Tyler’s care more than 40 percent of the time. Accordingly, s. 9 of the Guidelines will apply to the assessment of his child support obligation on a go forward basis. That

section provides: 9 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 (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means and other circumstances of each spouse and of any child for whom support is sought [ 73 ] My concern is that the periods covered by the prospective child support orders should be based on the parties’ 2019 and 2020 incomes but evidence pertaining to that income is lacking.

[ 74 ]

Section 21 of the Guidelines sets out the financial information to be provided by parents seeking an assessment of child support. Neither Tyler nor Lynelle provided the financial information required by that section. [ 75 ] Even though the applications were heard in July of 2020, Tyler did not file a copy of his 2019 personal income tax return. Nor did he provide his corporate financial statements for the years ending January 31, 2018, or January 31, 2020.

Further, Tyler did not provide his corporate tax returns for 2018 or 2019 or any of his personal or corporate notices of assessment from the Canada Revenue Agency for those years. Tyler offered no explanation for the deficiencies in his financial information. [ 76 ] In a like manner, Lynelle, without explanation, did not provide the T4 slips for her 2017, 2018, and 2019 tax returns. Further, Lynelle failed to provide either the most recent statement of her earnings (including her year to date income) or a letter from her employer verifying her annual salary.

That evidence was key to the assessment of her income for child support purposes because she had completed her paramedic course in September of 2019 and thereafter was employed fulltime. Lynelle had an obligation to provide that financial information as Tyler was seeking a shared custody arrangement and that child support be assessed in accordance with s. 9 of the Guidelines .

Further, Lynelle herself, was requesting a contribution to s. 7 expenses. [ 77 ] The lack of financial information identified herein makes an assessment of the appropriate child support pursuant to both s. 3 and s. 9 of the Guidelines impossible. Contrary to Tyler’s argument, s. 9 does not mandate a set off of the parties’ respective child support obligations such as is contemplated by s. 8 of the Guidelines .

Rather, it requires the Court to assess child support based on the applicable table support for each parent, the increased costs associated with a shared parenting arrangement, if any, and the condition, means, needs and other circumstances of each parent and of any child for whom support is sought. As stated by Bastarache J. writing for the majority in Contino v Leonelli-Contino , 2005 SCC 63 , [2005] 3 SCR 217[ Contino ]: [39] The specific language of s. 9 warrants emphasis on flexibility and fairness.

The discretion bestowed on courts to determine the child support amount in shared custody arrangement [ sic ] calls for the acknowledgment of the overall situation of the parents (conditions and means) and the needs of the children.

The weight of each factor under s. 9 will vary according to the particular facts of each case… [ 78 ] At paragraph 40 of Contino , Bastarache J. went on to state that: It is important to highlight the fact that the final and fully considered version of s. 9 does not include a conclusive formula to determine how the Table amounts are to be considered or accounted for. [ 79 ] While Bastarache J. agreed that the set off approach in s. 8 could be a useful starting point in a s. 9 analysis, especially “ in cases where there is limited information and the incomes of the parties are not widely divergent ” (at para 41, emphasis added), he cautioned against deciding the issue without proper information. [ 80 ] Evidence of Tyler’s and Lynelle’s “condition, means, needs or other circumstances” is sorely lacking.

Tyler is married, but there is no evidence about whether his wife is employed and contributing to their household expenses or whether she is financially dependent on him. Lynelle has children from another relationship, but she provided no evidence of what child support she receives for those children or the amount of any child tax benefit she enjoys. In addition, Lynelle attested that her father, who is a joint owner of the home where she resides, contributes to her mortgage.

She did not set out the amount of that contribution, nor did she indicate if he contributes anything to the taxes, insurance or maintenance of the home. [ 81 ] In the circumstances, given the deficiencies in the evidence, the issue of prospective child support must be remitted to the Court of Queen’s Bench for determination. Tyler and Lynelle shall file the financial information required by s. 21 of the Guidelines and any additional information they feel is relevant to the s. 9 analysis.

CONCLUSION [ 82 ] The appeal is allowed, and the Chambers judge’s order is set aside. [ 83 ] There shall be an interim order that Tyler and Lynelle have joint custody of A. The parenting arrangements shall be structured in accordance with paragraph 61 of this decision. [ 84 ] The issue of retroactive child support shall be left for determination by the trial judge or agreement of the parties. [ 85 ] The issue of prospective child support for the periods of February 1, 2020, to March 31, 2021, and from April 1, 2021, on a go forward basis shall be remitted to the Court of Queen’s Bench for determination.

Tyler and Lynelle shall file the financial information required by s. 21 of the Guidelines and any additional information they feel is relevant to the s. 9 analysis. [ 86 ] Given the circumstances leading to this appeal there shall be no order as to costs. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Richards C.J.S” Richards C.J.S. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.

Court of Appeal for Saskatchewan Neutral Citation: 2021 SKCA 47 Erratum Date: 2021-05-21 Tyler Scobie Applicant (Petitioner) And Lynelle Theissen Respondent (Respondent) Corrigendum The text of the judgment has been corrected from its original 26 March 2021 release date to reflect the following: in paragraph 50, s. 10(1) (

c) was changed to reflect s. 10(3) (

c) of The Children’s Law Act, 2020 .