Granquist v Lemond, 2022 SKCA 90

Court of Appeal for Saskatchewan Docket: CACV3837 Citation: Granquist v Lemond , 2022 SKCA 90 Date: 2022-08-10 Between: Sharon Dawn Granquist Appellant (Petitioner) And Dolan Matthew Lemond Respondent (Respondent) Before: Richards C.J.S., Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Kalmakoff On appeal from: DIV 98 of 2016, Yorkton Appeal heard: January 21, 2022 Counsel: Beau Atkins for the Appellant Mark Persick for the Respondent Richards C.J.S.

I. INTRODUCTION [ 1 ] When their marriage broke down, Sharon Granquist and Dolan Lemond entered an agreement [Agreement] with respect to a variety of matters including child support obligations. They were subsequently divorced. [ 2 ] The Agreement provided, broadly speaking, that Ms. Granquist would have sole custody of their child and that Mr. Lemond would not pay child support in view of the fact that he had waived his right to a property division equalization payment. Four years later, Ms. Granquist applied for child support as per the Federal Child Support Guidelines , SOR/97-175 .

A Queen’s Bench Chambers judge dismissed her application on the basis that there had been no material change in circumstances. Ms. Granquist now appeals from that decision. [ 3 ] As explained below, I conclude that this appeal must be dismissed. The Chambers judge should not have used a “material change in circumstances” analysis in dealing with Ms. Granquist’s application but he nonetheless reached the correct bottom-line conclusion. II. BACKGROUND [ 4 ] Ms. Granquist and Mr. Lemond were married in August of 2000. They separated in October of 2015. They have one child, born in 2011. [ 5 ] Ms. Granquist and Mr.

Lemond entered the Agreement in April of 2016. Its main terms, as relevant here, are as follows: 3.1 Child Custody The Wife shall have sole custody of the child of the marriage … 3.2 The parties acknowledge that the Husband’s employment requirements involve lengthy absences from his home, which has resulted in irregular parenting time with the Child, both before and after the breakdown of the marital relationship.

It is with the best interests of the Child in mind that sole custody has been agreed to by the parties, so that the Wife may continue to make important decisions regarding the Child’s day-to-day activities. However, the custody arrangement is agreed to specifically because the Husband’s extended absences render him unavailable to make important decisions and at this time, sole custody is in the best interest of the Child. … 3.5 Residence The residence of the Child shall remain primarily with the Wife. … 4.

CHILD SUPPORT 4.1 The parties agree that in 2014 the Husband and the Wife earned incomes of $117,560.00 and $142,260.00 respectively, as indicated

in Line 150 of their respective Income Tax returns. Under the Federal Child Support Guidelines ,

Section 3 base child support in the amount of $990.00 would normally be payable from the Husband to the Wife, and

Section 7 extraordinary expenses related to the Child would be divided between the parties resulting in the Wife remaining responsible for 55% and the Husband remaining responsible for 45% of said expenses.

However, for the reasons that follow, no child support of any kind shall be payable from the Husband to the Wife at this time. 4.2 After careful consideration of the concessions agreed to in this Agreement by both the Husband and the Wife, including the Husband’s consent in granting full custody of the Child to the Wife and the Husband’s waiver of any equalization payment, as specifically referenced in paragraph 10, or spousal support, as specifically referenced in paragraph 5, and after reviewing their rights with independent counsel of their choosing, including but not limited to an overview of The Divorce Act , The Family Property Act , The Family Maintenance Act 1997 , and The Dependant’s Relief Act , the parties agree that child support payments from the Husband to the Wife shall be set off by the value of the Equalization Payment referenced in paragraph 10.

The Wife further acknowledges, at this time, that her income is sufficient to support herself and the Child to an acceptable standard of living. 4.3 In the event that at any time the Parties cannot agree between themselves regarding the issue of child support, either of them may refer the matter to a Court of competent jurisdiction for determination. … 10. EQUALIZATION PAYMENT 10.1 The parties acknowledge that after taking into account only the family property as identified in Schedules “A”, “B”, “C” and “D”, an equalization payment of $56,772 is owing from the Wife to the Husband.

However, after taking into account the Wife’s waiver of child support, and in the interest of maintaining an acceptable quality of life for the Child, the Husband hereby waives his right to any equalization payment from the Wife at this time. 10.2 It is understood and agreed to by the parties that in the event the Wife should seek child support at any point in the future, the full amount of this equalization payment, $56,772, shall be credited to the Husband for child support paid, regardless of when such application is brought by the Wife. (Emphasis added) [ 6 ] The parties were divorced in January of 2017. [ 7 ] In December of 2020, Ms.

Granquist served Mr. Lemond with an application pursuant to s. 15 of the Divorce Act , RSC 1985, c 3 (2d Supp), for child support in an amount prescribed by the Federal Child Support Guidelines , and s. 7 expenses, retroactive to September of 2020 and ongoing. In January of 2021, Mr. Lemond brought a counter-application asking that any child support amount be reduced due to undue hardship, and seeking an order fixing a regular parenting and holiday schedule, and an order directing a custody and access assessment. III. THE CHAMBERS DECISION [ 8 ] Ms.

Granquist’s application for child support was dismissed by a Queen’s Bench judge in Chambers. He held that the Agreement could be opened up only if there was a material change in circumstances and that there had been no such change. The key passages of his fiat are reproduced below: [4] While courts are loath to re-write settlement agreements where the parties have negotiated and received independent legal advice, issues regarding support for minor children may be revisited because the issue of support is the right of the child, not the competing rights of the parents.

However, for the court to open up this agreement and make an order for support there must be a change in circumstance to justify the changing of that agreement. In this case, the petitioner agreed that the respondent would not pay child support. The agreement expressly records that the petitioner was satisfied that she could support [the child] from her own income. Her income at the time supported this assurance.

That would have been considered by Justice Schwann (as she then was), in granting the divorce, since the Court must be satisfied that an adequate provision has been made for any dependent children. [5] The agreement also records that, in exchange for the child support, the respondent agreed to give up any claim to an equalization payment of around $57,000.00 and agreed that the petitioner should have sole custody. [6] The petitioner now asks the Court to re-write that agreement.

Paragraph 10.2 of the interspousal agreement states that if the petitioner at some point seeks an order for child support that the amount of the equalization payment contemplated in the agreement would have to be considered. This paragraph does not create an entitlement to child support and must be read in the context of the entire agreement including paragraph 4.2. Paragraph 4.3 does not contemplate potential for future child support application, but that is determined under the governing legislation.

The Divorce Act , RSC 1985, c 3 (2d Supp), s. 17(4) requires that a change in condition has occurred before the court may order a variation of child support. A change of mind is not a change of condition. [7] The petitioner’s affidavit sworn December 7, 2020, at paragraph 9 states incomes for 2016 through 2019. This shows the relative level and difference in incomes between the petitioner and the respondent remain the same. The situation which prevailed when the agreement was signed remains the same, namely, that the petitioner’s income remains sufficient to provide for the child for whom she has sole custody.

In addition, the gap between the petitioner’s and respondent's income has not materially changed. [8] I find that the only change that can be evidenced in this matter is the desire of the petitioner to receive child support from the respondent. That is not a change in condition or circumstance sufficient to allow the court to re-open this matter. The petitioner has ample resources to provide for the child as she had when she signed the interspousal agreement.

IV. ANALYSIS [9] Ms. Granquist submits that the Chambers judge erred by (

a) dismissing her application for child support, and (

b) interpretingthe Agreement as involving a permanent waiver of child support. I will deal with these two arguments in turn. First, however, it isnecessary to consider the applicable standards of review and, as well, the proper

interpretation of the Agreement. A. What are the governing standards of review? [10] The decision of the Chambers judge was discretionary in nature. As a result, Ms. Granquist must demonstrate an error inprinciple or a significant misapprehension of the evidence in the Chambers decision, or she must establish that the Chambers decision isclearly wrong. See: Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11.

This shorthand description in Hickey of thestandard of review that applies on an appeal of an order for child support is the same in substance as that described in S.A.R. v A.K.L.,2021 SKCA 124, in relation to parenting orders: [14] … A deferential standard of review applies to appeals from such orders. Absent an error in law, a palpable and overriding error offact, or a misapprehension of evidence, an appeal court should not intervene. An error of law includes a failure to correctly identify thelegal criteria which governed the exercise of discretion or a misapplication of those criteria.

However, an appellate court cannot overturnthe trial decision simply because it would have made a different decision or balanced the factors in a different way than the trial judge did(Van de Perre v Edwards, 2001 SCC 60 at paras 13–15, [2001] 2 SCR 1014 [Van de Perre]; Olfert v Olfert, 2013 SKCA 89 at para 17,417 Sask R 283 [Olfert]; Ackerman v Ackerman, 2014 SKCA 86 at para 14, 442 Sask R 113 [Ackerman]; Peterson v Peterson, 2019SKCA 76 at para 20, 30 RFL (8th) 341 [Peterson]; S.T. v J.T., 2019 SKCA 116 at para 44, 33 RFL (8th) 253; Kot v Kot, 2021 SKCA 4 atpara 20, 63 ETR (4th) 161). [15] Not all errors are material.

Where an error or misapprehension cannot reasonably be seen as having affected the conclusion, it doesnot provide a basis for appellate intervention (Van de Perre at para 15; Kane v Proffitt, 2018 BCCA 106 at para 42, 6 RFL (8th) 282). [11] To the extent this appeal involves the meaning of the Agreement, I note that the

interpretation of a contract concerns mixedquestions of fact and law which, in the absence of an extricable question of law, are reviewable on a standard of palpable and overridingerror. See: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 at paras 50–53, [2014] 2 SCR 633; Hanson v Hanson, 2019 SKCA102 at para 17, 32 RFL (8th) 257 [Hanson]. B. How should the Agreement be interpreted? [12] To set the stage for an assessment of the arguments advanced by Ms. Granquist and Mr.

Lemond in this Court, it is necessary tolook somewhat more closely at the Agreement. [13] The Chambers judge did not attempt to explain how the Agreement should be interpreted. The only thing that is clear, asrevealed by the nature of his reasoning, is that he did not understand it to somehow fully or permanently foreclose the possibility of Mr.Lemond having to make child support payments. Other than that, we do not know how the Chambers judge construed the Agreement. [14] For her part, Ms. Granquist contends the Agreement should be read as meaning that the $56,772 equalization payment waivedby Mr.

Lemond was, in effect, a prepayment of child support amounts, both s. 3 and s. 7. Accordingly, says Ms. Granquist, when theamount of child support that Mr. Lemond would otherwise have been paying amounted to $56,772 in total, he had an obligation to beginmaking support payments if she applied for them. As per the calculations included at exhibit E of Ms. Granquist’s affidavit of December7, 2020, the $56,772 would have been fully “drawn down”, so to speak, by late September of 2020. [15] In my view, this is not a tenable

interpretation of the Agreement for the obvious reason that Ms. Granquist and Mr. Lemondentered it on the express understanding that no child support was payable at that time because Ms. Granquist had sufficient income tosupport herself and the child.

Article 4.2 of the Agreement says that “[Ms. Granquist] further acknowledges, at this time, that her incomeis sufficient to support herself and the Child to an acceptable standard of living”.

Article 4.1 is to a similar effect saying that “for thereasons that follow, no child support of any kind shall be payable from [Mr. Lemond] to [Ms. Granquist] at this time”. In the face of thoseprovisions, it is not possible to accept that, even though no support was payable, Mr. Lemond nonetheless agreed that the $56,772 wouldimmediately start being drawn down by the amount of the support payments that he was not required to make. In other words,Ms.

Granquist’s view of the Agreement would, on the one hand, have her agreeing that no child support was payable and have Mr.Lemond, on the other hand, making what amounts to a prepayment of those very same support amounts. [16] In my view, the best and proper

interpretation of the Agreement is the one that tracks its terms: (

a) Ms. Granquist has solecustody of the child but no child support of any kind is payable “at this time” (article 4.1); (

b) Mr. Lemond waives his right to anyequalization payment from Ms. Granquist “at this time” (article 10.1); and (

c) if Ms. Granquist seeks child support, regardless of whenthat might be, the $56,772 amount of the equalization payment will be set off against such amounts as Mr. Lemond is required to pay on ago forward basis (articles 4.2 and 10.2). Put in simple terms, the $56,772 is not a prepayment of child support. It is something that can beset off against child support should such support ever become payable. C. Did the Chambers judge err in not ordering child support? [17] Ms. Granquist’s argument about child support is very straightforward.

She submits the Chambers judge erred in proceeding onthe basis that, in the situation here, a material change in circumstances was a precondition to the making of an order for child support. Shesays Mr. Lemond now earns in excess of $140,000 per year and that there is no reason why he should not pay child support. [18] I agree that the Chambers judge examined Ms. Granquist’s application through the wrong lens. There was no child supportorder in place and hence no requirement to inquire whether there had been a change of circumstances as per s. 17(4) of the Divorce Act.

The Chambers judge should have approached the application by way of s. 15.1.

Section 15.1(1) provides that a court can make an orderrequiring a spouse to pay child support and s. 15.1(3) provides that, if such an order is made, it is to be in accordance with the applicableguidelines. That would have taken the Chambers judge to s. 15.1(5) which speaks to the possibility of child support being awarded insomething different than the guideline amount. It reads as follows: 15.1(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined inaccordance with the applicable guidelines if the court is satisfied (

a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or thedivision or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for thebenefit of a child; and (

b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those specialprovisions. [19] To secure the benefit of s. 15.1(5), Mr. Lemond has to meet two requirements. First, he must establish there is a specialprovision in the Agreement that directly or indirectly benefits the child. (Mr. Lemond does not suggest that special provisions haveotherwise been made for the benefit of the child.) Second, Mr. Lemond must also satisfy the Court that it would be inequitable to applythe Federal Child Support Guidelines.

See: Hanson at para 20. [20] As for the first of these requirements, the leading Saskatchewan case of Peterson v Horan, 2006 SKCA 61, 270 DLR (4th) 450[Peterson], is helpful. It interpreted provincial legislation identical to s. 15.1(5) of the Divorce Act. In his decision on behalf of the Court,Cameron J.A. referred to the hypothetical situation where a mother and child continue to reside in the family home while the father paysthe mortgage.

He then said this about the nature of a “special provision” that benefits a child: [36] This is but a simple example of what the Legislature seems to have had in mind in enacting the statutory exception contained insubsection 3(4), but it serves to identify the import of the subsection and the attributes of “special provisions” that “benefit a child” or that“have …been made for the benefit of a child.” As the example suggests, such provisions will usually possess the following attributes: • they are unusual or out of the ordinary in the sense they do not feature in determining the amount of maintenance in accordance with theGuidelines; • they serve to contribute to the maintenance of the child; and • they serve in effect to partially discharge the parent’s obligation to provide for the maintenance of the child and tend, therefore, to reducethe need, at least in part, for the amount of maintenance called for by the Guidelines. [21] It is apparent that

article 10 of the Agreement has the characteristics referred to by Cameron J.A. It features an unusualcommitment by Mr. Lemond to waive his entitlement to a property division equalization payment and an express agreement between Ms.Granquist and Mr. Lemond that the waiver was “in the interest of maintaining an acceptable quality of life for the Child”. And, of course,article 10 no doubt had the actual effect of benefiting the child in that it gave Ms. Granquist additional financial resources with which tosee to the child’s needs and to maintain the household where the child lives. [22] I note as well that Ms. Granquist and Mr. Lemond also expressly agreed in

article 3.2 of the Agreement that, because of Mr.Lemond’s extended absences due to work, it was in the best interests of the child that Ms. Granquist have sole custody. In addition, theyspecifically addressed the issue of child support in

article 4 of the Agreement and there agreed that such support would not be payable byMr. Lemond to Ms. Granquist, at that time, with Ms. Granquist acknowledging that her income was sufficient to support herself and thechild and to maintain an acceptable standard of living. All of this is also tied at least indirectly into

article 10 as part of the Agreement as awhole. [23] The next question, therefore, is whether it would be inequitable to order Mr. Lemond to pay s. 3 child support and s. 7 expensesas per Ms. Granquist’s application. Justice Wilkinson, in Epp v Robertson (1998), (SK KB), 171 Sask R 315 (QB)[Epp], as endorsed by this Court in Hanson, said this question should be approached as follows: [20] Once a finding has been made that special provisions exist, it must be determined whether, given those provisions, the amount ofchild support determined under the Guidelines would be inequitable. As stated in Wang v.

Wang (BC SC), [1997]B.C.J. No. 1678 (QL) (B.C.S.C.) and Eilers v. Eilers, [1998] B.C.J. No. 1021 (QL) (B.C.S.C.), the term “inequitable” relates to the partiesand requires a consideration of both the circumstances of the parties giving rise to the order or agreement and their circumstances at thetime of the application. Such an

interpretation recognizes the give and take of settlement discussions and the interrelationship of termswhich will be reflected in a settlement agreement or order. As Cameron J.A. observed in Peterson at paragraph 46, inequitable “basically means an amount which the court considers unfair havingregard for the objectives of the law and the circumstances of the situation”. [24] Let me deal first with the circumstances giving rise to the Agreement. Ms. Granquist worked for SaskPower, where she is stillemployed. As per

article 4.1 of the Agreement, she earned $142,260 per year. Mr. Lemond worked for Canadian Pacific Railway andearned $117,560 annually. He and Ms. Granquist lived in a newly constructed home in Regina. Mr. Lemond’s work

schedule was verychallenging, with unpredictable hours and days spent away from home. After Ms. Granquist and Mr. Lemond received advice from legalcounsel, it became clear that Ms. Granquist would owe Mr. Lemond over $50,000 to equalize the family property division. As Mr.Lemond recounts in his affidavit of January 22, 2021, Ms. Granquist then advised him that she could not afford to make the equalizationpayment and indicated that, if he were to give her sole custody of the child and waive the equalization payment, “she would never ask[him] for child support”. According to Mr.

Lemond, this led to the Agreement being put in place. Ms. Granquist takes no issue with thisaccount of the situation except for the idea that she undertook to “never” seek child support. [25] I turn, then, to the circumstances that existed at the time of Ms. Granquist’s application. She explained in her affidavit of March

8, 2021, that her husband, Jason, has joint custody of two children from his previous marriage and that he has financial obligations inrelation to child support and s. 7 expenses. He also has spousal support payment obligations. Jason later filed an affidavit of his ownindicating that he had earned $142,000 per year prior to losing his job at the end of March of 2021 and that, when he swore his affidavit onApril 6, 2021, he had no employment prospects. Jason averred that, because of the loss of his job, he was no longer contributing tohousehold expenses. [26] Ms. Granquist did not contest Mr.

Lemond’s assertion that her paystubs indicated that she earned $198,000 in 2020.Significantly, in her affidavits, Ms. Granquist did not provide any particulars of living and household expenses, debt obligations and soforth. Nor did she suggest that her financial situation was difficult or that she was having problems making ends meet or in providing forthe needs of the child. She did itemize s. 7 expenses incurred with respect to the child but did not say those expenses were burdensome. [27] As for Mr.

Lemond’s situation when the application was made, he averred that his income fluctuates from year to year and thathe had earned $141,584 in 2019 and $128,776 in 2020. Mr. Lemond’s wife, Tanya, filed an affidavit indicating that she earns $62,000 peryear but is on a one-year temporary assignment making $73,000 per year. She has two children from a previous marriage who live withher and Mr. Lemond. Their father contributes to certain expenses when he is able but does not pay regular child support. Tanya indicatedthat she is responsible for the “vast majority” of the expenses relating to the children. [28] Mr.

Lemond also averred in some detail as to the particulars of his ongoing household expenses and debt obligations. I will notrecount those details. Mr. Lemond indicated that he would be happy to pay child support but that he could not afford to provide for his andTanya’s family, meet his other financial responsibilities, and make child support payments to Ms. Granquist. Mr. Lemond stressed thatMs. Granquist herself makes more than he and Tanya combined. [29] Considering all of the above, I conclude that Mr. Lemond has established that it would be inequitable to require him to paychild support at this time.

First, he and Ms. Granquist proceeded on the basis that, as per the Agreement, his obligation to pay childsupport would be set off against the $56,772 equalization payment if Ms. Granquist sought such support. This, obviously, is not a fullanswer to Ms. Granquist’s application because parents cannot contract out of their child support obligations. See, for example: Black vBlack (1995), (BC CA), 19 RFL (4th) 442 (BCCA) at para 7. However, it is nonetheless a consideration of someconsequence when dealing with the issue of inequity. Second, and weighing the more general significance of the Agreement, Mr.

Lemondgave up custody of the child and accepted that the child would reside with Ms. Granquist as part of a carefully balanced overallarrangement. Changing only one element of that arrangement, while leaving the rest of it intact, raises some fairness concerns. Third, asrevealed by the affidavits filed, both Mr. Lemond’s personal and household financial situations are under stress.

On the other hand, Ms.Granquist has made no reference to such concerns, other than perhaps indirectly through Jason’s affidavit, and has made no assertion thatshe needs support in order to be able to provide for the child. [30] That said, there is a remaining question here about whether Mr. Lemond should be ordered to pay child support in an amountless than the full Guideline amount which, according to Ms. Granquist, is $1,189 per month for s. 3 support. In this regard, Mr. Lemonddid indicate in his affidavit of January 22, 2021, that he had offered to Ms.

Granquist that he would “do [his] best” to pay $300 per monthin support. However, he also indicated that, on a further review of his finances, he was not sure this would be sustainable given that theclosing amount of his bank account balance on January 14, 2021, was $218 and that this was typical. In light of this, and given that (

a) Ms.Granquist did not submit an argument in the alternative, i.e., that Mr. Lemond should pay something in child support even if not the fullGuideline amount, and (

b) Ms. Granquist did not argue that she was having difficulties providing for the child, I decline to consider thepossibility of ordering some lower level of support than what Ms. Granquist is seeking. [31] In the end, therefore, I conclude that Mr. Lemond has established that, as per s. 15.1(5) of the Divorce Act, the Agreementcontains special provisions that directly or indirectly benefit the child and, as well, that an order requiring him to pay child support as perthe Federal Child Support Guidelines at this time would be inequitable in light of those provisions. As a result, this aspect ofMs.

Granquist’s appeal must be dismissed. D. Did the Chambers judge err in interpreting the Agreement as waiving allfuture child support? [32] Ms. Granquist argued in her factum that the Chambers judge erred by holding that the Agreement had the effect of permanentlyprecluding her from receiving child support. [33] However, as counsel for Ms. Granquist quite properly acknowledged during oral argument, the Chambers judge did not say thatMr. Lemond could “never” be required to pay child support. He said only that the gap between Ms. Granquist’s income and Mr.

Lemond’sincome had not changed materially and that the situation at the time the Agreement had been signed was continuing. The Chambers judgedid not close the door to Mr. Lemond paying child support at some point in the future. V. CONCLUSION [34] I conclude that this appeal must be dismissed. Mr. Lemond is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S.I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.