Kolodziejski v Maximiuk, 2023 SKCA 103

Court of Appeal for Saskatchewan Docket: CACV3979 Citation: Kolodziejski v Maximiuk , 2023 SKCA 103 Date: 2023-09-01 Between: Brent Kolodziejski Appellant/Respondent by Cross-Appeal (Respondent) And Tania Maximiuk Respondent/Appellant by Cross-Appeal (Petitioner) Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed in part; cross-appeal allowed in part Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Kalmakoff On appeal from: DIV 618 of 2012 (Sask QB), Saskatoon Appeal heard: April 20, 2023 Counsel: Brent D. Barilla, K.C., and Lauren E. Scharfstein for the Appellant James A. Morrison, K.C., and Ellen Fitzgerald for the Respondent Caldwell J.A. I. Overview [ 1 ] Brent Kolodziejski appeals and Tania Maximiuk cross-appeals against a trial decision that addressed spousal support payable pursuant to the Divorce Act , RSC 1985, c 3 (2d Supp) (see: Maximiuk v Kolodziejski (17 January 2022) Saskatoon, DIV 618 of 2012 (Sask QB) [ Decision ]).

The parties each take issue with the trial judge’s quantification of their respective incomes. Ms. Maximiuk also challenges the duration of the spousal support awarded, and Mr. Kolodziejski disputes the costs order made in favour of Ms. Maximiuk. While I find there is some merit to each position, the overall result, in my judgment, would be not all that much different than it was under the Decision . [ 2 ] In his appeal, Mr. Kolodziejski chiefly asserts that the trial judge erred by relying on an increase in his income after the parties separated in September of 2012 when quantifying the support payable to Ms.

Maximiuk after February 1, 2017. I find that the trial judge, when making this determination, failed to consider the differences between Mr. Kolodziejski’s pre-separation employment and his post-separation employment. The evidence is that Mr. Kolodziejski unexpectedly embarked on a venture after separation with new risks and different responsibilities, which were not sufficiently tied to his marriage to affect his spousal-support obligation. However, I further find that his average income for support purposes was higher pre-separation than it was post-separation. I conclude that using Mr.

Kolodziejski’s post-separation income to calculate spousal support, as the trial judge did, is the most equitable solution to this irony. [ 3 ] For her part, Ms. Maximiuk alleges that the trial judge erred when she imputed income to her on the grounds that she could have been earning more as an insurance broker and because she could have been charging rent to her daughter and son-in-law. The evidence does not support the trial judge’s conclusion that Ms. Maximiuk could have earned $54,000 as an insurance broker, but I would not interfere with the imputation of $9,000 in forgone rent. This slightly lowers Ms.

Maximiuk’s income for support purposes, but only for 2021. Ms. Maximiuk also contends that spousal support should have been indefinite. However, I would not interfere with the trial judge’s assessment of the circumstances of this marriage and its breakdown as those factors relate to the duration of compensatory support awarded under the Decision . [ 4 ] As to the costs award, Ms. Maximiuk received a costs award in part because Mr. Kolodziejski had conceded the issue of entitlement to spousal support on the eve of the trial.

The trial judge assessed the concession as causing the parties to incur unnecessary expense. I agree with Mr. Kolodziejski’s submission that the concession, while coming late in the day, saved the parties and the court time and effort in the trial process. The costs awarded after trial were also related to the detrimental effect of Mr. Kolodziejski’s pretrial conduct. In this sense, the award overlooks the fact that he had been ordered to pay costs in the result of those pre-trial proceedings.

Given that neither party was fully successful at trial, I would set aside the costs award, leaving the parties to bear their own costs of trial. [ 5 ] In short, I would allow the appeal and the cross-appeal, both in part, and vary the orders of spousal support only such that for the period of October 1, 2021, to October 31, 2022, Mr. Kolodziejski shall pay spousal support to Ms. Maximiuk in the amount of $1,565 per month (instead of $1,311 per month), and I would set aside the costs award. I would dismiss the remaining grounds of appeal and of cross-appeal. To be clear, I would not disturb the order requiring Mr.

Kolodziejski to pay spousal support, for the period of February 1, 2017, to September 20, 2021, in the amount of $2,180 per month, nor would I interfere with the order terminating Mr. Kolodziejski’s legal obligation to pay spousal support to Ms. Maximiuk on October 31, 2022. [ 6 ] Given the mixed success of both parties in both the appeal and the cross-appeal, I would make no order as to costs in this Court. II. Background

[ 7 ] The parties were married on August 31, 1991. During the first few years of marriage, Ms. Maximiuk worked as a retail clerk and Mr. Kolodziejski sold automotive products. Both have a high school education. When their daughter was born, Ms. Maximiuk took a six-month maternity leave after which she worked weekends and evenings (10–15 hours a week). Mr. Kolodziejski was sometimes away from home for work and curling tournaments during their marriage. At one point, two children from his previous marriage lived with the couple, and Ms. Maximiuk was the caregiver for all three children. [ 8 ] In 1998, Ms. Maximiuk modified her

schedule to work mornings and the occasional evening and weekend so that she could remain available for the parties’ daughter, who had started school. Between 2001 and 2005, Ms. Maximiuk worked fulltime in an administrative job, earning $25,000 annually. In 2006, she moved to a fulltime administrative position with an insurance agency, earning slightly more. Also in 2006, Mr. Kolodziejski changed employment, allowing him to earn a base salary plus commission. Between 2006 and 2012, he earned $50,000 to $174,000 annually but was required to travel more. The parties separated in September of 2012 when Ms.

Maximiuk was 44 years old and Mr. Kolodziejski was 53 years old. Mr. Kolodziejski changed jobs again in May of 2013. Their daughter was attending a post-secondary school when they separated, but she ceased to be a child of the marriage in 2014. [ 9 ] In April of 2015, the parties reached an agreement on all outstanding issues in their separation and divorce. That agreement formed the basis for a consent order granted by Gabrielson J. ( Maximiuk v Kolodziejski (30 April 2015) Saskatoon, DIV 618 of 2012 (Sask QB) [ 2015 Order ]). In terms of spousal support, the 2015 Order required Mr. Kolodziejski to pay Ms.

Maximiuk a lump sum of $28,800 for the period up to January 31, 2017, and allowed either party to apply for a review of spousal support beginning February 1, 2017. [ 10 ] On December 4, 2017, Ms. Maximiuk applied for a review of spousal support and issued Mr. Kolodziejski a notice to disclose his and his corporation’s financial information. As Mr. Kolodziejski did not provide disclosure to her satisfaction, Ms. Maximiuk made several attempts to obtain it. The parties also attempted to settle their dispute.

Then, under a fiat (which was apparently made effective July 20, 2018, but is dated August 24, 2018), Elson J. adjourned the review application to August 17, 2018, on the condition that Mr. Kolodziejski pay $25,000 against arrears of spousal support accruing since January 31, 2017 ( Maximiuk v Kolodziejski (24 August 2018) Saskatoon, DIV 618 of 2012 (Sask QB) [ 2018 Order ]). The review application was subsequently rescheduled for a hearing before Goebel J. on November 30, 2018, along with an application by Ms. Maximiuk for a restraining order to prevent Mr. Kolodziejski from contacting her or their daughter.

These matters were both adjourned to January 11, 2019, and the parties were ordered to attend a pre-trial conference to be held on April 5, 2019 ( Maximiuk v Kolodziejski (28 November 2019) Saskatoon, DIV 618 of 2012 (Sask QB)). [ 11 ] On December 19, 2018, Ms. Maximiuk applied for an order finding Mr. Kolodziejski in contempt for failure to comply with the 2018 Order and for an order holding Mr. Kolodziejski’s corporation jointly and severally liable to make future spousal support payments. This application was resolved by way of a consent order in which the parties acknowledged that Mr.

Kolodziejski had purged his contempt, i.e., had paid $25,000 against the arrears ( Maximiuk v Kolodziejski (6 February 2019) Saskatoon, DIV 618 of 2012 (Sask QB)). The parties also consented to a no-contact order pertaining only to Ms. Maximiuk. [ 12 ] On October 2, 2020, Turcotte J. ordered Mr. Kolodziejski to pay $2,200 per month in interim spousal support effective February 1, 2017, and until further order or written agreement ( Maximiuk v Kolodziejski (2 October 2020) Saskatoon, DIV 618 of 2012 (Sask QB) [ 2020 Order ]).

After adjusting for the $25,000 of arrears paid under the 2018 Order , the 2020 Order required Mr. Kolodziejski to pay $1,000 per month, commencing November 1, 2020, toward the arrears of interim spousal support owing until it had been paid in full. Justice Schwann of this Court denied Mr. Kolodziejski’s application for leave to appeal against the 2020 Order ( Kolodziejski v Maximiuk (11 December 2020) Regina, CACV3715 (Sask CA)). [ 13 ] On January 18, 2021, Scherman J. ordered Mr.

Kolodziejski to comply with a supplemental notice to disclose that had been served on him on November 17, 2020 ( Kolodziejski v Maximiuk (17 November 2020) Saskatoon, DIV 618 of 2012 (Sask QB)). On March 23, 2021, Ms. Maximiuk applied for orders finding Mr. Kolodziejski in contempt of Scherman J.’s order and holding Mr. Kolodziejski’s corporation liable to her as an account debtor. Mr. Kolodziejski contemporaneously applied for an order varying the 2020 Order .

These applications came on for hearing before Zerr J., who dismissed them, leaving costs to the trial judge ( Kolodziejski v Kolodziejski (29 July 2021) Saskatoon, DIV 618 of 2012 (Sask QB)). [ 14 ] The review application finally went to trial in September of 2021. III. Trial Decision [ 15 ] At trial, Ms. Maximiuk argued that she was entitled to compensatory, non-compensatory and contractual support on an indefinite basis calculated on Mr. Kolodziejski’s post-separation income. Mr. Kolodziejski, who had resisted Ms.

Maximiuk’s claim of entitlement to spousal support throughout the lead up to trial, conceded that she was entitled to support but only to the date of trial. He took the position that the quantum of support should be based on his average income during the last seven years of the marriage, less bonuses and employment expenses. For the purposes of the trial, the parties had established, under an agreed statement of facts, that their average annual incomes for the four years from 2017 to 2020 were $117,581 for Mr. Kolodziejski and $46,402 for Ms.

Maximiuk. [ 16 ] In the January 17, 2022, Decision , the trial judge concluded that Ms. Maximiuk was entitled to compensatory spousal support only and that it should terminate on October 31, 2022. To summarise her reasons, the trial judge found that Ms. Maximiuk had marginally sacrificed her career to support her family during the marriage and that she could reasonably be expected to become self-sufficient within ten years after separation. In rejecting Ms.

Maximiuk’s claim to spousal support on a non-compensatory basis, the trial judge relied on the facts including that she made over $46,000 annually, had made “costly discretionary spending choices” and had provided rent-free accommodation to her daughter and son-in-law (at para 54). [ 17 ] When quantifying Mr. Kolodziejski’s income for the purposes of calculating compensatory support, the trial judge relied on the amount he had earned in his post-separation position because she found that Ms. Maximiuk had contributed to his career success. However, the trial judge discounted Mr.

Kolodziejski’s post-separation income by 10% after October 1, 2021, to account for a future loss of sales that he anticipated would occur.

[18] In quantifying Ms. Maximiuk’s income, the trial judge imputed an amount to her on the basis that she had turned down anopportunity to be trained as an insurance broker, which would have allowed her to earn $54,000 in the 13 months between October 1,2021, and October 31, 2022. As well, the trial judge imputed income to Ms. Maximiuk for foregone rent because she had chosen to allowher daughter and son-in-law to live with her rent-free. Her specific reasoning on these points and on Mr. Kolodziejski’s income is set outlater in this judgment. On the bottom line, the trial judge ordered Mr. Kolodziejski to pay compensatory spousal support to Ms. Maximiukuntil October 31, 2022: (

a) for the period of February 1, 2017, to September 30, 2021, in the amount of $2,180 per month; and (

b) for the period of October 1, 2021, to October 31, 2022, in the amount of $1,311 per month. [19] Lastly, the trial judge awarded costs against Mr. Kolodziejski largely based on her assessment of how he had behaved in thelead up to trial: [62] Although the petitioner has not been fully successful in advancing her claim to indefinite spousal support, several factors weigh infavour of an award of costs in this case, most notably the respondent’s conduct during the course of the litigation.

Neither party can befaulted for advancing their claims as fully as the litigation process will allow, however, the respondent’s failure to abide by the interimorders of the court until forced to do so in order to adjourn a matter and his last minute admission of entitlement to spousal support to thedate of trial during the trial in September of 2021 caused unnecessary costs to both parties. For this reason the petitioner shall be awardedher Column 2,

Schedule 1, costs as provided by The Queen's Bench Rules. IV. Issues [20] To paraphrase his grounds for appealing against the Decision, Mr. Kolodziejski raises the following questions: (

a) Did the trial judge err by imputing income to Ms. Maximiuk as of October 1, 2021, as opposed to February 1, 2017? (

b) Did the trial judge err by using Mr. Kolodziejski’s post-separation income to determine the spousal support payable afterFebruary 1, 2017? (

c) Did the trial judge err by awarding costs in favour of Ms. Maximiuk? [21] In her cross-appeal, Ms. Maximiuk puts forward grounds for appealing against the Trial Decision that may be described as: (

a) Did the trial judge err by failing to award indefinite spousal support? (

b) Did the trial judge err by failing to apply ss. 7 and 7.5 of the Spousal Support Advisory Guidelines (2008) [SSAG]? (

c) Did the trial judge err by imputing income to Ms. Maximiuk? (

d) Did the trial judge err by discounting Mr. Kolodziejski’s income by 10% for the purpose of calculating 2021 spousal support? (

e) Did the trial judge err by failing to determine the appropriate quantum of spousal support based on the incomes of the partiesfrom 2017 and ongoing? V.

Appellate Standards of Review [22] Appeals from spousal support orders and costs awards, like those found in the Decision, have been described consistently interms of being the appellate review of a discretionary decision (e.g., for support orders, see: Linn v Frank, 2014 SKCA 87 at paras 82–89,[2014] 10 WWR 215 [Linn]; Hickey v Hickey, (SCC), [1999] 2 SCR 518 at paras 11 and 12 [Hickey]; Willick v Willick, (SCC), [1994] 3 SCR 670; Moge v Moge, (SCC), [1992] 3 SCR 813 [Moge]; Pelech v Pelech, (SCC), [1987] 1 SCR 801; and Harrington v Harrington (1981), (ON CA), 33 OR (2d) 150 (CA); e.g., forcosts awards, see: Peterson v Peterson, 2019 SKCA 76 at paras 88–90, 30 RFL (8th) 341; McNabb v Cyr, 2018 SKCA 51 at para 31;Wongstedt v Wongstedt, 2017 SKCA 100 at para 41, [2018] 4 WWR 82 [Wongstedt]; Benson v Benson (1994), (SKCA), 120 Sask R 17 (CA) at paras 89–90 [Benson]; and British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 atpara 19, [2003] 3 SCR 371 [Okanagan]). [23] In describing the standard of review for discretionary support orders in Hickey, L’Heureux-Dubé J. wrote that an appellate courtshould not overturn a support order in the absence of “an error in principle, a significant misapprehension of the evidence, or unless theaward is clearly wrong” (at para 11).

She later acknowledged that an “appeal court must intervene when there is a material error, a seriousmisapprehension of the evidence, or an error in law” while at the same time cautioning that an appellate court “is not entitled to overturn asupport order simply because it would have made a different decision or balanced the factors differently” (at para 12). Very similarlanguage has been used to describe the standard of review for discretionary costs awards in family law matters (e.g., see: Wongstedt atpara 41, and Benson at para 90).

However, as the majority recently noted in Stromberg v Olafson, 2023 SKCA 67 at para 118[Stromberg], discretionary decisions involve the application of the law to the facts and call for the application of the usual appellatestandards that apply to any judicial decision. [24] In an appeal from a judicial decision it is well understood that the standard of correctness applies to questions of law, and thepalpable and overriding error standard applies to questions of fact and questions of mixed fact and law (see: Housen v Nikolaisen, 2002SCC 33, [2002] 2 SCR 235 [Housen]; H.L. v Canada (Attorney General), 2005 SCC 25 at paras 55–56 and 69–70, [2005] 1 SCR 401; Kotv Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161; see also: Décor Grates Incorporated v Imperial Manufacturing Group Inc., 2015 FCA100 at paras 14–29, and Stromberg at para 118–122).

It is intrinsic to appellate practice that the standard of review to be applied by anappeal court depends on the nature of the error alleged to have been made and not on the type of judicial decision that was made(MacInnis v Bayer Inc., 2023 SKCA 37 at para 38).

[25] Therefore, in as much as a discretionary decision about spousal support or costs may be said to warrant deference from anappellate court, the errors alleged on appeal must be in the findings of fact or in the application of correct legal principles to the facts asfound.

This is because an appeal on those grounds attracts the deferential standard of palpable and overriding error (Housen at para 22).Whereas if the appeal of a spousal support order or costs award is based on an alleged error of law (whether that be in the identification orapplication of the legal criteria that govern the exercise of the discretion or another matter of law on which the legality of the orderdepends), the decision about that law attracts no deference because it is reviewable for its correctness. VI.

Analysis [26] The issues in the trial were, chiefly, the quantum and duration of the spousal support payable to Ms. Maximiuk after February1, 2017. The issues in the appeal and the cross-appeal are equally narrow, and, since they overlap to some extent, I have approached theanalysis below under topical headings as opposed to the grounds of appeal and cross-appeal. A. Issue: Entitlement to Non-Compensatory Spousal Support [27] As part of her cross-appeal from the trial judge’s decision to terminate spousal support on October 31, 2022, Ms.

Maximiukasserts that the trial judge’s denial of entitlement to non-compensatory support was based on a misapprehension of the evidence and amisunderstanding of the relevant law. I am not persuaded that the trial judge erred in these ways. [28] In the Decision, the trial judge reviewed the relevant legislation and the jurisprudence on the three models of spousal support,correctly noting that Ms. Maximiuk bore the onus of establishing entitlement under each.

As she understood, the non-compensatory modelof spousal support acknowledges spousal economic interdependency, which develops as a result of a shared life, by addressing need. Inrudimentary terms, need can mean a spouse’s inability to meet basic necessities post-separation or a significant post-separation declinefrom the marital standard of living.

Given the policy objectives, non-compensatory claims are often grounded by the length of the maritalrelationship, a drop in standard of living after separation, or economic hardship experienced after separation. [29] Applying the principles under each model of spousal support to the facts, the trial judge determined that Ms. Maximiuk wasentitled to compensatory support but not to non-compensatory or contractual support. To briefly summarise the facts relevant to thecompensatory claim, the parties did not have a traditional marriage; Ms.

Maximiuk, who had spent time at home with the parties’ childearly in the marriage, had returned to fulltime work long before separation; and both parties worked outside their home and cared for andsupported their child. In terms of her non-compensatory claim, the trial judge found that Ms. Maximiuk’s needs were being met by hermeans post-separation. She concluded, however, that Ms. Maximiuk’s most recent financial statement contained inflated or avoidableexpenses (as opposed to needs) that resulted from personal choices she had made post-separation.

The trial judge disregarded thoseexpenses for the purposes of assessing the non-compensatory claim. In this regard, she wrote: [54] The petitioner claims support in this case on a compensatory, non-compensatory and contractual basis. The petitioner’s financialstatement dated 2021 states that her current need is $92,757.00. Her financial statement sworn October 25, 2012 indicated her need at thattime to be $38,710.00. Clearly since the date of separation the petitioner has made financial choices.

Shortly after the settlementagreement in 2015 the petitioner purchased a new home, increasing her mortgage payment by $4,300.00 per year. Her telephone expensesalso increased by $1,900.00 and her fuel by $3,000.00. In her evidence she stated that she chose to make her daughter’s vehicle paymentsof $5,700.00 a year, and pay boarding for her daughter’s horse costing $7,200.00 a year. Her daughter and her daughter’s husband livewith the petitioner, rent-free. She has also incurred additional debt servicing costs of $16,800.00 per annum, in addition to legal fees of$15,000.00.

If these costs, which primarily reflect personal choices, apart from the legal fees, are deducted from her stated need of$92,757.00, the resulting need is $38,857.00, which is similar to the need reported in her initial 2012 financial statement. The petitionercurrently makes over $46,000.00 per annum. If these costly discretionary spending choices were not part of her financial decision-making,her means would be sufficient to meet her needs.

That would be the case even if there is no adjustment made for the fact that her adultdaughter and her daughter’s husband live with her rent-free. [55] The petitioner claims that when she was married to the respondent they travelled, had dinners out and invested in RRSPs andjewelry. Four trips between 2009 [and] 2012 to Las Vegas, San Diego, the Mayan Riviera and the Dominican Republic are notextravagant. Neither are the purchases of a ring and earrings and investments.

If the petitioner were to charge as little as $750.00 permonth for rent for her daughter and husband, and choose to scale back subsidization of her adult daughter’s expenditures this would leaveher with additional income to travel periodically and invest in RRSPs and dine out on occasion. [56] Given the above I find that the petitioner has not established an entitlement to non-compensatory support. [30] As she correctly addressed the law, if there is fault with the foregoing conclusion, it must lie in the trial judge’s fact finding orin her application of the law to the facts.

As noted, an allegation of either of those types of error attracts the palpable and overriding errorstandard of appellate review.

In simple terms, an error is palpable if it is plainly seen or easily articulated and a palpable error is overridingif it affected the result (see, Hydro-Québec v Matta, 2020 SCC 37 at para 33, 450 DLR (4th) 547; H.L. v Canada (Attorney General), atparas 55–56 and 69–70; Benhaim v St-Germain, 2016 SCC 48 at paras 38–39, [2016] 2 SCR 352; Salomon v Matte-Thompson, 2019 SCC14 at para 33, [2019] 1 SCR 729; and J.G. v Nadeau, 2016 QCCA 167 at para 77, leave to appeal to SCC refused, ). [31] I will address the role these findings played in the trial judge’s determination of Ms.

Maximiuk’s ability to attain self-sufficiency later in these reasons. For present purposes, the relevant findings of fact are not plainly seen to be in error in light of theevidence. Put another way, the evidence supports the conclusions that Ms. Maximiuk had tripled her post-separation expenses, includingby taking on discretionary costs related to her adult daughter. In addition, the trial judge found that Ms. Maximiuk had foregoneopportunities to increase her post-separation income. [32] In short, because the facts and the law support the trial judge’s conclusion that Ms.

Maximiuk is not entitled to non-compensatory support, I would not interfere with that conclusion. B. Issue: Ms. Maximiuk’s Income

[33] As noted, the trial judge imputed $54,000 in income to Ms. Maximiuk for the 13-month period between October 1, 2021, andOctober 31, 2022, by finding that she could have earned that amount if she had become an insurance broker. The trial judge also imputed$9,000 in income to Ms. Maximiuk for that same period because she could have rented her basement suite to the parties’ daughter andson-in-law at $750 per month instead of allowing them to live with her rent-free. Subtracting her agreed-upon average annual income of$46,402, the trial judge therefore imputed a total of $16,598 to Ms.

Maximiuk for the 13-month period in question of which $7,598 isattributable to intentional under-employment.[1] [34] Neither party questions the trial judge’s authority to impute this income to Ms. Maximiuk. Sections 15 to 20 and

Schedule III ofthe Federal Child Support Guidelines, SOR/97-175 [Guidelines], and its definition of “income”, create the framework for determiningincome for spousal support purposes under the SSAG. Under ss. 19(1)(

a) and (

e) of the Guidelines, courts have the authority to imputeincome to a spouse in circumstances that include intentional under-employment (i.e., $7,598 of insurance broker income) and a failure toreasonably utilise property to generate income (i.e., $9,000 in rental income). [35] In his appeal, Mr. Kolodziejski argues that the trial judge erred because she should have imputed $54,000 annually to Ms.Maximiuk commencing February 1, 2017, as opposed to October 1, 2021. As mentioned, the earlier date is when the parties could firstseek a review of spousal support under the 2015 Order. Ms.

Maximiuk argues in her cross-appeal that the trial judge erred by imputingany income to her at any point because there was no evidentiary basis to do so. In this way, the parties both challenge the factual findingsthe trial judge made about Ms. Maximiuk’s income. [36] The first-order question therefore asks whether the trial judge’s decision to impute income to Ms. Maximiuk was unreasonableor unsupported by the evidence adduced at trial (see: Linn at para 96; and H.L. v Canada (Attorney General) at paras 55–56).

Sometimes,however, questions as to whether the imputation of income is supported by the evidence can be questions of law (see, e.g., J.D.M. vK.D.M., 2015 PECA 16 at para 39, 69 RFL (7th) 277). As a matter of law, evidence in a civil trial must be “sufficiently clear, convincingand cogent to satisfy the balance of probabilities test”, which requires judges to “scrutinize the relevant evidence with care to determinewhether it is more likely than not that an alleged event occurred” (F.H. v McDougall, 2008 SCC 53 at paras 46–49, [2008] 3 SCR 41[McDougall]).

An error of law can occur in the fact-finding process when a judge (

a) finds that something is a fact without any evidenceto support the finding, (

b) makes a finding of fact in disregard of or by mischaracterising relevant evidence, or (

c) makes a finding of factbased on irrelevant evidence or on an unfounded or irrational inference (see R v Schuldt, (SCC), [1985] 2 SCR 592 at 604;and P.S.S. Professional Salon Services Inc. v Saskatchewan (Human Rights Commission), 2007 SKCA 149 at para 68, [2008] 5 WWR440, leave to appeal refused, [2008] 2 SCR xi). 1. Section 19(1)(a) – Imputed insurance broker income [37] Ms. Maximiuk argues that the evidence at trial did not support the trial judge’s finding that she could have earned $54,000between October 1, 2021, and October 31, 2022, as an insurance broker.

The parties agree on what evidence is relevant to the issue ofunder-employment, and it is scant. It came in the form of the cross-examination testimony of Ms. Maximiuk and internet search resultsabout the average income for an insurance broker in Saskatchewan, a screenshot of which was adduced into evidence by Mr. Kolodziejskias exhibit R-22. [38] As this suggests, the trial judge’s decision to impute income to Ms. Maximiuk involved two findings of fact: (

a) that she wasintentionally under-employed; and (

b) that she could have earned $54,000 if she had not been under-employed. a. Intentional under-employment [39] Because the evidence relevant to this finding is quite limited, I will set it out in full. In response to questions put to her in cross-examination, Ms. Maximiuk acknowledged that she had “been given the opportunity” to try and become an insurance broker: Q Would it be fair to say that there are people at McCabe Insurance [i.e., Ms. Maximiuk’s employer] who sellinsurance products?A Yes.Q Yeah.

So like home auto insurance?A Yes.Q Home vehicle insurance, commercial insurance, things like that?A Yes.Q And is it fair to say -- and I just want to make sure -- they’re called insurance brokers?A Yes.Q Okay. Do you know what kind of salary an insurance broker earns compared to you?A A substantial amount more.Q Substantial amount more.A M-hm.Q So you know some of these people you work with that are insurance brokers.

What are we talking about asbeing substantial? $60,000 a year?A I would -- I -- I don’t -- I don’t have their salaries.Q Do you have an idea?A Well, I -- I would --Q Because you said “substantial” --A Well, it -- I --Q -- so you must have a number?A Well, I just -- I -- I think they do. I have -- I have no idea. Like, I make 40, so I would …Q Okay. But you’d agree with me since you started with McCabe in ’06 --A M-hm.Q -- to today, you’ve made no effort to try and become an insurance broker, have you?A I have been given the opportunity.

Q M-hm.A But with everything that has gone on in my life since ’06 to today --Q M-hm.A -- it is a very intense course to take. There is about four levels of it --Q M-hm.A -- of CAIBs.Q M-hm.A And I don’t -- I -- I -- no, I haven’t pursued it.Q No. So how many years have transpired between today and 2006?

I -- I can’t go back that far. 2021, 2006, soall that time you couldn’t -- and you admit you didn’t bother to take the courses necessary to consider becomingan insurance broker?A I did not --Q That was just too overwhelming for you?A At the time, no, I did not. (Emphasis added) [40] As noted, the trial judge determined Ms. Maximiuk’s income “to be $63,000.00 for the period October 1, 2021 to October 31,2022, as I am imputing her income to be an additional $9,000.00 over and above the income she might have earned had she chosen tobecome an insurance broker” (Decision at para 61).

She later added that “the evidence provided at trial supported a finding that thepetitioner was not supporting herself to the extent she was able given she had been offered to be trained as an insurance adjuster and hadrefused this position” (at para 61). [41] Since it was the only evidence on this point, Mr. Kolodziejski (as the party requesting the imputation of income) bore theburden of persuading the trial judge that Ms.

Maximiuk’s testimony was a sufficient evidentiary basis on which to find that she wasintentionally under-employed (see MacGillivary v Ross, 2008 NSSC 339 at para 23, 271 NSR (2d) 37; Homsi v Zaya, 2009 ONCA 322 atpara 28, 65 RFL (6th) 17; Drygala v Pauli (2002), (ON CA), 219 DLR (4th) 319 (Ont CA) at para 38 [Drygala]; andZilic v Zilic, 2021 BCCA 107 at para 20). Although the evidence on record is scant, it was sufficient to raise the issue of whetherMs. Maximiuk was intentionally under-employed. This does not mean that the trial judge had to decide in favour of Mr. Kolodziejski onthat issue.

It simply means that, the trial judge could decide the issue in accordance with the civil standard of proof on a balance ofprobabilities (see: Yorkton (City) v Mi-Sask Industries Ltd., 2021 SKCA 43 at para 31, [2021] 6 WWR 18). Furthermore, since the trialjudge imputed income to Ms. Maximiuk, she determined that the evidence established, on a balance of probabilities, that Ms. Maximiukhad intentionally become under-employed as of October 1, 2021. If that finding is palpably in error, it affected the result. [42] In the cross-appeal, Ms.

Maximiuk asserts that the misapprehension of her evidence occurred when the trial judge wrote, insummarising all the evidence at trial, that Ms. Maximiuk had “received repeated offers to move into an insurance broker position”between 2006 and 2021 (Decision at para 26). As Ms. Maximiuk correctly points out, nowhere in her testimony did she say that she hadreceived “repeated offers” or that she had been offered employment as an insurance broker.

I am not persuaded, however, that the findingsof fact on which the trial judge relied when making the decision in question are palpably in error. [43] I reach that conclusion because, when setting out the facts in her reasoning on the issue of under-employment, the trial judgesaid that the evidence “supported a finding that [Ms. Maximiuk] was not supporting herself to the extent she was able given she had beenoffered to be trained as an insurance adjuster and had refused this position” (emphasis added, at para 61).

The foregoing statement of factis noticeably different than the trial judge’s earlier recitation of the evidence, and it parallels Ms. Maximiuk’s testimony. Furthermore, it isconsistent with what, in her factum, Ms. Maximiuk acknowledges she had admitted at trial, i.e., that “she had been given the opportunityto take the insurance broker course, and chose not to”. [44] The trial judge also later wrote that the evidence “would suggest that [the offer and rejection] occurred by October of 2021”(emphasis added, at para 61). Notably, the trial took place in September of 2021.

As I see it, this means that the trial judge found it wasmore probable than not that Ms. Maximiuk had received and refused an opportunity to train to become an insurance broker by the timewhen she testified to that fact at trial. Given the evidence, that inference is reasonable and the misapprehension that Ms. Maximiuk allegesoccurred is not “plainly seen” in the Decision. On the same basis, I conclude that Mr. Kolodziejski’s related allegation in the appeal—thatthe trial judge erred in fact by failing to find that Ms.

Maximiuk had received an offer of insurance-broker training “as early as 2006”—isalso not plainly seen. However, if the rejection of the opportunity to train to become an insurance broker had crystalized “by October of2021”, then Ms. Maximiuk would not have become under-employed until she had completed that training some time later, but I willaddress that issue that under the next heading. [45] Lastly, there is a question of law hidden in the cross-appeal related to this finding of fact. In her factum, Ms.

Maximiuk submitsthat her current employment is consistent or commensurate with her current level of education and, in effect, that the trial judge should nothave taken the rejected opportunity to train as an insurance broker into account. However, s. 19(1)(

a) of the Guidelines reflectsParliament’s expectation that spouses will take reasonable steps toward employment commensurate with age, health, education, skills andwork history, which includes the capacity for further training or education toward such employment (e.g., see: Donovan v Donovan, 2000MBCA 80 at para 21, [2000] 10 WWR 214; and McCaffrey v Paleolog, 2011 BCCA 378 at para 46, 24 BCLR (5th) 62). [46] Taking the evidence at its narrowest, Ms. Maximiuk admitted that she had chosen to forego an opportunity to train for aposition with greater income.

With Parliament’s expectation in mind, that evidence supports the existence of circumstances that authorisea court to impute income to a spouse under s. 19(1)(

a) of the Guidelines. In sum, the trial judge’s finding that Ms. Maximiuk wasintentionally under-employed as of October 1, 2021, is not in error. b. $54,000 in insurance-broker income [47] Notwithstanding the lack of error in the trial judge’s conclusion that Ms. Maximiuk was intentionally under-employed, I find

there was insufficient evidence to support her finding that Ms. Maximiuk could have earned $54,000 if she had become an insurance broker. [ 48 ] As Jackson J.A. noted in Linn , the amount of income imputed to a spouse must be supported by the evidence.

In Arlt v Arlt , 2003 SKQB 466 at para 11 , 243 Sask R 110, Dickson J. put the requirement more colloquially, writing that “[a] figure cannot simply be plucked from the air” (see also: Chiasson v Doucet , 2014 NBCA 49 at para 9 , 422 NBR (2d) 304, and Drygala at para 44 ). [ 49 ] Respectfully, the relevant evidence about the average annual earnings of insurance brokers in Saskatchewan was inadmissible hearsay evidence, and, even though admitted, it was not “sufficiently clear, convincing and cogent” to satisfy the balance of probabilities test, i.e., to support a finding that it was more likely than not that Ms.

Maximiuk could have earned $54,000 from October 1, 2021, to October 31, 2022. [ 50 ] Recall that the trial judge concluded that Ms. Maximiuk had received an offer for training to become an insurance broker in October of 2021. Ms. Maximiuk’s testimony in cross-examination, which was the only evidence on this point, was that insurance-broker training involved “a very intense course” with “about four levels”.

Although that evidence leaves many details to speculation, it is safe to presume that she would not have completed the training in the month or so after she had received the offer to take it, let alone have earned an insurance broker’s salary during that time. The point being that, on the evidence the trial judge accepted, it is palpably in error to find that Ms. Maximiuk could have started earning an insurance broker’s salary in October of 2021. [ 51 ] As to the evidence of what her salary could have been, when Mr.

Kolodziejski was being examined in chief, he testified that he had searched online for the average income of an insurance broker: Q So at my request, Brent, did you have a chance to do a little bit of computer research to find out what insurance brokers might earn for Saskatoon and area? A Actually I did. Q Okay. So can you turn to tab 8 of the book of documents and tell me if this is the result of your computer search? A Well, actually a first-year it’s showing around $54,000. Q Okay.

So -- so according to this document, the average median insurance broker salary is about 54, and then it could be higher, and it could be lower? A That’s right . Q That’s the average? A Yeah. [ 52 ] The website Mr. Kolodziejski relied upon is called PayScale.

Exhibit R-22, a screenshot of the PayScale search results, indicates that insurance brokers in Saskatoon, Saskatchewan, earned between $35,000 to $65,000 per year in 2021, based on 39 salary profiles as of August 15, 2021. [ 53 ] There are several issues with the trial judge’s reliance only on exhibit R-22 to establish that it was more probable than not that Ms. Maximiuk would have earned $54,000 between October 21, 2021, and October 31, 2022. This is so chiefly because the exhibit is a written statement made out of court by someone other than Mr.

Kolodziejski to prove the truth of what was written—i.e., hearsay evidence —and the circumstances do not give rise to an exception that would permit its admission into evidence. In my assessment therefore, the $54,000 figure was all but plucked from the air. [ 54 ] Exhibit R-22 does not satisfy the burden of establishing an evidentiary basis for imputing $54,000 in income to Ms. Maximiuk for the 13-month period between October 1, 2021, and October 31, 2022. I would, therefore, deduct $7,598 from the income imputed to Ms. Maximiuk for that period. 2.

Section 19(1)(e) – Imputed rental income [ 55 ] The trial judge found as fact that by October of 2021, the parties’ daughter would have been able to contribute financially to Ms. Maximiuk’s household expenses ( Decision at para 61). Both parties gave evidence related to this conclusion. In cross-examination, Ms. Maximiuk testified: Okay. And you’ve never asked for a regular monthly rent payment from them at all; have you? A No. No. Have you even looked into what a couple would pay to rent a bedroom in your -- in your house? You have no idea what the fair market rent might be today?

A No. [ 56 ] In examination-in-chief, Mr. Kolodziejski said: Q MR. BARILLA: So, Brent, at my request, did you look into what might be a reasonable rental rate today for a couple of people to have access to a home to stay in? A Yes. I inquired at a few people that I know that have legal rental suites. Q M-hm. A A one-bedroom is usually between $950 to $1,000. Two-bedroom is anywhere from 1,200 to $1,300 plus utilities, and you’ve got to pay your insurance and everything on above that. Q Does -- THE COURT: Thank you.

Q MR. BARILLA: -- Heather [Mr. Kolodziejski’s partner] have a rental suite? A Yes. Q Okay. In your -- in -- in her house? A Yes. Q And what does she charge for rent? Do you know? A For one student is -- is $600. Q Pardon me? A For one student is $600. [ 57 ] These statements appear to be the principal basis for the trial judge’s finding that an additional $9,000 of rental income should be imputed to Ms.

Maximiuk for the 13 months between October 1, 2021, and October 31, 2022 (i.e., approximately $700 per month). [2] [ 58 ] While part of the relevant evidence is, again, hearsay evidence—i.e., an internet search conducted by Mr. Kolodziejski and what others told him—the inference drawn by the trial judge in this case is supported by admissible evidence. As to whether Ms.

Maximiuk had failed to reasonably utilise property to generate income, the trial judge was told that as of October 1, 2021, the parties’ daughter was 28 years old, out of post-secondary school, and had been married for about a year to a husband who was unemployed for a time after the wedding. She also knew the parties’ daughter had been injured at work in 2016, had a service-dog and had not returned to employment. It seems undisputed that Ms. Maximiuk had allowed her daughter and son-in-law to live with her without paying rent since the summer of 2020. As to rental income, the evidence that Mr.

Kolodziejski’s new partner earns $600 per month by renting a suite to one person is not hearsay, because it is within Mr. Kolodziejski’s knowledge, but it is thin support for a finding that Ms. Maximiuk could have earned approximately $700 per month by charging her daughter and son-in-law rent for living with her in her house. As to a timetable for this, the trial judge remarked that there was no evidence about the daughter’s ability to contribute to Ms. Maximiuk’s household expenses prior to October of 2021, but found that she was certainly capable of doing so at that point in time.

Once again, the trial of this matter occurred in September of 2021. In other words, the trial judge could be said to have found that Ms. Maximiuk should have been collecting $700 per month in rent from her daughter at least once the issue had been raised at trial . Given how shallow the evidence is on this point, I do not fault the trial judge for reaching that conclusion or fault her for not extending it back to February 1, 2017, as Mr. Kolodziejski requests. [ 59 ] In sum, I find no palpable error in the trial judge’s reasoning and inference drawing when deciding to impute $9,000 in rental income to Ms.

Maximiuk over 13 calendar months. 3. Ms. Maximiuk’s income from February 1, 2017, to October 31, 2022 [ 60 ] In terms of a bottom line, Ms. Maximiuk’s income for support calculation purposes was: (a) $46,402 annually from February 1, 2017, to September 30, 2021; and (b) $54,710 annually from October 1, 2021, to October 31, 2022 (or $59,267 in total). [ 61 ] The first period is Ms. Maximiuk’s agreed-upon average income. The arithmetic is as follows for the period of October 1, 2021, to October 31, 2022: (

a) average annual income ($46,402) plus imputed annual rental income ($8,307.69) equals imputed annual income ($54,710); (

b) imputed annual income ($54,710) divided by 12 months equals imputed monthly income ($4,559); and (

c) imputed monthly income ($4,559) multiplied by 13 months equals imputed income for the period October 1, 2021, to October 31, 2022 ($59,267). C. Issue: Mr. Kolodziejski’s Income [ 62 ] The trial judge decided to use Mr. Kolodziejski’s agreed-upon, post-separation average annual income between 2017 and 2020 of $117,581 when calculating his spousal support obligations to Ms. Maximiuk from and after February 1, 2017. However, she determined that his income for the period from October 1, 2021, onwards would be $105,823 per year.

This sum was intended to reflect his agreed- upon average income less 10% to account for an anticipated change in his sales territory. As noted, the trial judge’s determination of Mr. Kolodziejski’s income is put at issue in the appeal and in the cross-appeal. 1. Post-separation increase [ 63 ] In the appeal, Mr. Kolodziejski argues that the trial judge erred in fact and law by relying on the post-separation increase in his income when calculating spousal support after February 1, 2017.

A finding that the recipient spouse is entitled to share in the payor’s post-separation income, as a finding of mixed fact and law, is generally subject to the deferential standard of palpable and overriding error on appeal. [ 64 ] The decision in Thompson v Thompson , 2013 ONSC 5500 at para 103 , sets out a useful list of 13 factual circumstances drawn from the jurisprudence that have guided judges who were called upon to determine whether to utilise a post-separation increase in a payor spouse’s income for the purposes of calculating spousal support (see also: Kilpatrick v Kilpatrick (10 May 2016) Regina, FLD 375 of 2015 (Sask QB); Bodnarek v Bodnarek , 2017 SKQB 180 at para 71 ; Dungey v Dungey , 2020 SKCA 138 at para 79 , 454 DLR (4th) 560; and Kohan v Kohan , 2016 ABCA 125 at para 38 , 77 RFL (7th) 44).

To summarise, a support recipient is not automatically entitled to increased support when the payor’s post–separation income increases. The decision to use post-separation income is fact-based and discretionary. It is unusual to do so in the context of a claim to non-compensatory spousal support.

It is more likely to occur with compensatory claims or in the context of a long-term, financially integrated relationship, where the recipient spouse’s marital contributions had direct factual, temporal and causal links to the payor spouse’s financial success or to the obtaining of the skills or qualifications necessary to achieve that success. Use of post-separation income is less likely to happen when the payor spouse’s financial success results from matters that are unrelated to the marriage, from a major career or lifestyle change, or from happenstance.

As well, a recipient spouse’s claim to support based on post-separation income is less likely to succeed where the spouse is found to have made no career or educational sacrifices during the marriage or to have been dilatory in attaining self-sufficiency after separation.

[ 65 ] In the Decision , the trial judge found that it was appropriate to use Mr. Kolodziejski’s post-separation income for the following reason: [60] In this case spousal support has been awarded on a compensatory basis. The marriage between the parties was a long-term marriage where the petitioner’s contribution in terms of primary care of their daughter are directly linked to the respondent’s success in building the client base and sales that he did post-separation.

It is for this reason that I find it appropriate that the post-separation agreed-to income of $117,581.00 for the respondent… [ 66 ] I am unable to reconcile the trial judge’s conclusion in this regard with the evidence and her findings. With respect, I conclude that she did not consider many of the circumstances that were present in the evidence and her findings and that were relevant to the issue of whether it was appropriate to use Mr. Kolodziejski’s post-separation income to calculate support after February 1, 2017. [ 67 ] Earlier in her reasons, when assessing Ms.

Maximiuk’s claim to compensatory spousal support, the trial judge found that Mr. Kolodziejski’s career had progressed throughout the marriage in part due to the contributions Ms. Maximiuk made to their family: [48] From the date of [their daughter’s] birth … until the time the parties separated in September of 2012 the respondent’s sales positions took him away from the family home for travel and to address the needs of his client base. This travel happened on a regular basis.

He was also heavily involved in competitive curling for much of [their daughter’s] childhood and this endeavour required him as well to be away from the family home. In the early years of [their daughter’s] life the petitioner was also responsible for primary care of the respondent’s two children from a previous relationship, [redacted]. Although [his children from the previous relationship] did not reside with the parties for more than five and a half years each, the bulk of their care fell to the petitioner as the respondent was required to travel for his job and his curling pursuits.

Although the petitioner worked between 1993 and 2012, her work hours and the jobs she accepted were designed to accommodate the needs of her daughter, and the children [names redacted] while they were with the parties. Whether it was working with Zellers, HSBC or McCabe Insurance, the work the petitioner did and the hours she worked were always designed around accommodating the needs of her family. Although both parties participated in [their daughter’s] care, the petitioner was the primary caregiver.

She worked part-time evenings and weekends to accommodate her daughter’s needs and only returned to full-time employment when [their daughter] started grade school. She was responsible for creating the routine and structure that was needed to care for [their daughter] and allow the respondent to focus on his position as a sales representative. (Emphasis added) [ 68 ] The trial judge did not, however, mention how or why Mr. Kolodziejski had taken on different work after the separation nor did she consider or compare the nature of that work to that of his jobs during the marriage.

She observed, when summarising the evidence, only that Mr. Kolodziejski had “obtained a new position with Hunter Engineering in May of 2013. He became an independent salesperson through a company he incorporated called Tool Tek Holdings Ltd. He began selling product he had never sold before” (at paras 13 and 30). [ 69 ] Relevantly, the evidence was that Mr. Kolodziejski had been terminated from his position with Snap-On Tools shortly after the parties separated. That is, he had to search out and obtain new work post-separation for reasons that were presumably not contemplated during the marriage.

It also means that any income increase that resulted (more on this shortly) is related to an event that occurred during the post-separation period. In this way, Mr. Kolodziejski’s post-separation advancement would be related primarily to happenstance and connections that he made on his own rather than contributions from Ms. Maximiuk. Regardless, in assessing this circumstance, I cannot fairly say that there was evidence that could support the conclusion that Ms. Maximiuk’s contributions during the marriage, or the advantages Mr. Kolodziejski derived from the marriage, were “ directly linked to [Mr.

Kolodziejski’s] success in building the client base and sales that he did post-separation ” (emphasis added, at para 60), which was the only reason the trial judge gave for utilising post- separation income. [ 70 ] To explain, at the time of their marriage, Mr. Kolodziejski sold automotive products and body-shop products for Auto Electric Service in Yorkton, Saskatchewan. From 1992 to 2006, he worked at Canadian Automotive, where he sold automotive parts.

From 2006 to 2013, he worked at Snap-On Tools, where he sold automotive and industrial tools (such as sockets and wrenches), air tools and other high- end hand-tools primarily to large, local clientele like CNH Flexi-Coil and Cameco. While with Snap-On Tools, Mr. Kolodziejski received a base salary plus commission and bonuses. [ 71 ] Mr. Kolodziejski’s responsibilities, sales area, clientele and remuneration at Hunter Engineering differ from his past positions.

For example, he is no longer an employee and has been required to incorporate Tool Tek Holdings Ltd. to act as an independent contractor to Hunter Engineering. His post-separation work is structured such that he bears an increased risk but also a greater potential for reward in that his compensation is entirely commission-based. As well, Mr. Kolodziejski now primarily sells wheel-alignment and tire-balancing equipment products in parts of Saskatchewan that were assigned to him by Hunter Engineering.

His clientele includes franchisees of businesses like Canadian Tire, Fountain Tire and Kal Tire, as well as local tire shops and car dealerships. Respectfully, none of these attributes of Mr. Kolodziejski’s current position suggest that his “success in building the client base and sales that he did post-separation” was “directly linked” to Ms. Maximiuk’s marital contributions or to the advantages that he drew from the marital relationship. [ 72 ] While each position Mr. Kolodziejski has held during and after the marriage was or is related to sales, that is where the similarity ends.

The products, territory, clients, manner of earning and the income earned differ with each position. Of course, the sales skills that he employs with Hunter Engineering were obtained and developed during the marital relationship. However, the trial judge found that Ms. Maximiuk had only marginally subordinated her career for the sake of the family. The trial judge’s findings do not support the conclusion that the parties had chosen to divide their labour in a way that indicates they were making a joint investment in Mr. Kolodziejski’s career to the detriment of Ms.

Maximiuk’s career. [ 73 ] With all respect due to the trial judge, Ms. Maximiuk’s compensatory support claim does not provide a sufficient foundation for an entitlement to share in Mr. Kolodziejski’s post-separation income. There was evidence to support the trial judge’s conclusions that this was not a traditional marriage and that the compensatory spousal support claim was not strong. The evidence does not support her conclusion that there is a direct link between Ms. Maximiuk’s contribution and Mr. Kolodziejski’s success in his post-separation position.

As noted, the trial judge also concluded elsewhere that Ms. Maximiuk had not taken reasonable steps towards achieving self-sufficiency, a

factor which may preclude an award that takes into account post-separation income increases. [ 74 ] On the basis of these reasons, if they were the only relevant consideration in the unusual circumstances of this case, I would set aside the trial judge’s decision to base the calculation of spousal support on Mr. Kolodziejski’s post-separation income; however, other issues bear upon the matter, as I will later explain. 2. 10% reduction in 2021 post-separation income [ 75 ] In the cross-appeal, Ms. Maximiuk submits that the trial judge erred in fact and law by discounting Mr.

Kolodziejski’s post- separation income by 10% in 2021 based on the anticipated change in his sales territory. She argues there was no direct, independent evidence from his employer or anyone else to corroborate the loss of territory as a fact. Even though I have concluded that Ms. Maximiuk should not be entitled to post-separation increases in Mr. Kolodziejski’s income, I will address this ground of the cross-appeal for reasons that will later become apparent. [ 76 ] While the relevant evidence at trial was, again, thin, the trial judge’s decision is supported by it. In his testimony, Mr.

Kolodziejski stated that the sales territories for himself and other Saskatchewan and Manitoba salespersons had been reconfigured by Hunter Engineering on May 1, 2021, and that, as a result, he had lost 60% of his sales territory and 70% of his sales, including most of his best customers. When he testified about this five months later, on September 21, 2021, he did not say what effect this might have on his earnings for that year. [ 77 ] While corroborating evidence about the loss of sales territory could have assisted the trial judge, it was not required or necessary. Nothing on the record contradicts Mr.

Kolodziejski’s evidence and his credibility or reliability on this point has not been put at issue. In my view, the trial judge was entitled to accept what Mr. Kolodziejski said were the circumstances of the sales territory reconfiguration at his employer, Hunter Engineering. Furthermore, as the trial occurred before the end of the 2021 tax-year, Mr. Kolodziejski would presumably have had to speculate about how a mid-year change in his sales territory would affect his annual, commission-based income in 2021.

So, while there was no direct mention of a 10% reduction in that income, it was entirely reasonable for the trial judge to infer that Mr. Kolodziejski would experience a 10% decrease in his 2021 commission-based income given the loss of 60% of his sales territory and 70% of his customer base that he described. 3. Mr. Kolodziejski’s income for support purposes [ 78 ] At trial, Mr.

Kolodziejski asked the trial judge to reject using his post-separation income and to use the average of his last seven years of income during the marriage (i.e., 2006 to 2012), excluding bonuses, employment expenses, and employment-related lawsuit proceeds. He calculates that average at $74,754 annually. He maintains this position in his appeal, but I reject it based on several factors at play in this matter. [ 79 ] One factor is that the review under the 2015 Order was, by the parties’ evidence, intended to address a lack of information in 2015 about Mr. Kolodziejski’s post-separation income. Ms.

Maximiuk argues that the 2017 timeframe for the review was to allow him to settle into that job, with the expectation that his income would improve. This suggests some mutual understanding (albeit not an agreement) that ongoing support could be based on Mr. Kolodziejski’s post-separation income once that information became available. [ 80 ] Second, although I have found error in the trial judge’s decision to use his post-separation income, Mr. Kolodziejski has not satisfactorily explained why it would be appropriate to use a seven-year average of his pre-separation income.

If that has happened in other cases, it was not brought to this Court’s attention. Moreover, it is not contemplated by the Guidelines , which principally operate on the basis of the spouses’ actual annual income in each year, not an averaged income. While parties may agree, under s. 15(2) of the Guidelines , on the annual income of a spouse, that did not occur here (other than with respect to Mr. Kolodziejski’s post-separation income and, even then, it was a four-year average).

Further, under s. 17(1) of the Guidelines , a court may “have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuations in income or receipt of a non-recurring amount during those years”, in circumstances where s. 16 of the Guidelines does not produce “the fairest determination of that income” (emphasis added). Although, s. 17(1) does not preclude income averaging, it also does not contemplate a court looking backward for more than three years. [ 81 ] Third, using Mr.

Kolodziejski’s last three years of earnings does not assist or support either party’s arguments about whether support should be based on post-separation income. He earned $137,410.70, $162,133.36 and $174,922.05 in 2010, 2011 and 2012 respectively. He received $43,744 in lawsuit proceeds in 2009, outside this time frame, but, had it been otherwise, I would have excluded it from his income as a non-recurring amount. The same principle does not apply, however, to the bonuses Mr. Kolodziejski received in 2010, 2011 and 2012, which show a pattern of receiving that income. I cannot accede to Mr.

Kolodziejski’s submission that the bonuses ought to be excluded because the parties had invested that money and had split those investments under the 2015 Order . Put simply, the fact the parties used his bonuses to buy an asset that they later divided is not relevant to a fair determination of his income. If it were, the division of other family property could arguably result in the deduction from annual income of the acquisition costs that were incurred in the relevant year. I accept, that Mr. Kolodziejski’s reasonable employment expenses ought to be deducted.

His employment-related expenses for the three years in question were $29,367.68, $32,813.24 and $47,003.91, which means he netted $108,043.02, $129,320.12 and $127,918.14 for 2010, 2011 and 2012, respectively. [ 82 ] On average, Mr. Kolodziejski therefore earned $121,760.43 per year during the last three years of the marriage. As noted earlier, his agreed-upon, average annual income for the four post-separation years between 2017 and 2020 was $117,581. The trial judge relied on Mr.

Kolodziejski’s agreed-upon post-separation income when calculating support payable from February 1, 2017, to September 30, 2021, and discounted it by 10% (thereby imputing $105,823 in income to him) for the purposes of calculating support payable between October 1, 2021, and October 31, 2022. [ 83 ] To summarise the third factor, if a three-year average of $121,760 in pre-separation income is used, Mr. Kolodziejski did not experience a post-separation increase in his average annual income.

It also means that the result of his appeal against the use of his post- separation income would be pyrrhic because his success would result in a higher income being attributable to him for the purposes of

calculating spousal support after February 1, 2017. [ 84 ] The fourth factor is that Ms. Maximiuk took the unwavering position at trial, as well as in the appeal and cross-appeal, that spousal support should be calculated on the basis of Mr. Kolodziejski’s agreed-upon, average post-separation income of $117,581. [ 85 ] Therefore, to achieve an equitable result regarding the amount of support in light of the parties’ agreements and positions on the issue, I have decided to use Mr. Kolodziejski’s post-separation average annual income of $117,581 when calculating his spousal support obligations to Ms.

Maximiuk from and after February 1, 2017—notwithstanding that her compensatory support claim does not provide a sufficient foundation for an entitlement to share in that income. D. Issue: Duration of Compensatory Spousal Support [ 86 ] Under the 2015 Order , Mr. Kolodziejski paid spousal support to Ms. Maximiuk from the date of their separation in September of 2012 to January 31, 2017. The trial judge ordered Mr. Kolodziejski to pay compensatory spousal support from February 1, 2017, to October 31, 2022. As such, the total duration of spousal support was just over 10 years for this 21-year marriage.

In the Decision , the trial judge wrote: [47] The petitioner claims spousal support beyond January 31, 2017 on a compensatory basis.

The respondent disputes this stating that the petitioner was never entitled to support on a compensatory basis as this was not a traditional marriage where the petitioner sacrificed her career to take care of their child so that the respondent could advance his career. [48] From the date of [their daughter’s] birth … until the time the parties separated in September of 2012 the respondent’s sales positions took him away from the family home for travel and to address the needs of his client base. This travel happened on a regular basis.

He was also heavily involved in competitive curling for much of [the daughter’s] childhood and this endeavour required him as well to be away from the family home. In the early years of [their daughter’s] life the petitioner was also responsible for primary care of the respondent's two children from a previous relationship, [redacted]. Although [those children] did not reside with the parties for more than five and a half years each, the bulk of their care fell to the petitioner as the respondent was required to travel for his job and his curling pursuits.

Although the petitioner worked between 1993 and 2012, her work hours and the jobs she accepted were designed to accommodate the needs of her daughter, and the children [redacted] while they were with the parties. Whether it was working with Zellers, HSBC or McCabe Insurance, the work the petitioner did and the hours she worked were always designed around accommodating the needs of her family. Although both parties participated in [their daughter’s] care, the petitioner was the primary caregiver.

She worked part-time evenings and weekends to accommodate her daughter's needs and only returned to full-time employment when [their daughter] started grade school.

She was responsible for creating the routine and structure that was needed to care for [their daughter] and allow the respondent to focus on his position as a sales representative. [49] Turning then to s. 15.2 of the Divorce Act , considering the length of time the parties were married, 21 years at the date of separation, and the primary care responsibilities performed by the petitioner during the marriage, I find the petitioner has established an entitlement to compensatory support beyond January 31, 2017. The income she currently earns is in

part impacted by the choices made by the parties during their marriage, and her role in caring for her daughter. As outlined ins. 15.2 an order must recognize the economic disadvantages and advantages arising from the marriage and its breakdown and apportion financial consequences arising from the care of any child and relieve against economic hardship arising from the breakdown of the marriage.

An order of the court must also promote the economic self-sufficiency of each spouse within a reasonable period of time. [50] Taking all of these factors into account, and balancing the petitioner's role as primary caregiver for [their daughter] and the economic disadvantage affecting her as a result of the marriage and its breakdown against the promotion of self-sufficiency, I am not prepared to find the petitioner's claim for compensatory support to be indefinite as argued by the petitioner. She has already received spousal support for the period 2012 to January 2017.

The question then becomes what period of time is appropriate given the economic disadvantage suffered and given her continued employment throughout. [51] Given all of these factors I find the petitioner has demonstrated an entitlement to compensatory support for a limited period of time. Given her work experience and continued employment I find a 5-year period of support from 2017 onward is reasonable to promote economic self-sufficiency.

This decision is in keeping with the case law on termination of support payments after a reasonable period of time, specifically the decisions in Roberts v Beresford , 2006 BCCA 67 , 22 RFL (6th) 243, and Kilpatrick v Kilpatrick (10 May 2016) Regina, FLD 375 of 2015 (Sask QB) [ Kilpatrick ]. [52] As the respondent has already paid support for the period commencing September 2012 to January 2017, five years of agreed to support has already been paid prior to February 2017.

I find the petitioner to be eligible for compensatory spousal support for the period February 1, 2017 to October 31, 2022. [ 87 ] In making her determinations as to the quantum of spousal support, the trial judge specifically referenced the fact that Ms. Maximiuk had been “ working continuously since she married the respondent” and was “on her way to establishing economic self- sufficiency”, but that she “was not supporting herself to the extent she was able” (at para 60).

In her reasons for awarding $2,180 per month under the SSAG for the period from February 1, 2017, to December 31, 2020, the trial judge stated the mid-range amount “is appropriate given [Ms. Maximiuk’s] current employment and the history of her work experience throughout the marriage” (at para 60). She awarded the same monthly amount for the period of January 1, 2021, to October 1, 2021, without giving additional reasons.

Turning to the period from October 1, 2021, to October 31, 2022, the trial judge awarded $1,311 per month based on imputed incomes of $105,823 and $63,000, reiterating that this mid-range SSAG amount was appropriate “[g]iven [Ms. Maximiuk’s] work experience and movement towards economic self-sufficiency” (at para 61). [ 88 ] In the cross-appeal, Ms. Maximiuk submits that the trial judge erred because she failed to order indefinite spousal support.

In her argument, she says that the trial judge did not properly consider her entitlement to compensatory spousal support, improperly considered her spending choices in relation to the parties’ daughter and failed to apply the so-called rule of 65 under the SSAG . In the appeal, and in response to the cross-appeal, Mr. Kolodziejski says that Ms. Maximiuk’s entitlement to spousal support should have

terminated at the date of trial and that his obligations in that regard have been satisfied. [ 89 ] The appellate assessment of an allegation of error in a trial judge’s determination on the issue of spousal support duration must be done in the context of the legal principles, factors and objectives relevant to whether support should be indefinite (which does not mean forever) or of a limited term.

That analysis requires consideration of how the trial judge balanced the parties’ circumstances, including, as examples only, the duration of their marriage, their ages, their incomes and prospective incomes, the effects of property equalisation, the stages of the parties’ careers, their contributions to the marital standard of living, their participation in household responsibilities, the absence (if that is the case) of child-care obligations, their reasonable expectations, etc.

Taking all that is relevant into account in this case, I do not agree that the trial judge erred in finding that indefinite support was not indicated on the facts. I would also not interfere with her determination that ten years of spousal support was warranted in the circumstances. [ 90 ] To begin, Ms. Maximiuk had a limited claim to compensatory support and had not established her claims for non-compensatory or contractual support. As the trial judge found, this 21-year marriage was not a traditional one. Both parties had worked outside the home throughout the marriage. While Ms.

Maximiuk had scaled back her employment during the early years to care for the parties’ daughter, she had returned fulltime to the workforce long before separation. Also, she had made, for personal reasons, employment and training choices that limited her advancement both before and after separation. Mr. Kolodziejski’s income increased during the last few years of their marriage and provided the parties with a better standard of living. The evidence accepted by the trial judge suggests that, but for the discretionary spending impugned by the trial judge, Ms.

Maximiuk’s standard of living at the time of trial exceeded the marital standard of living at the time of separation. The trial judge held that Ms. Maximiuk’s then current income would be enough to meet her needs if she ceased allowing her daughter and son-in-law to live with her rent-free. Further, given the conclusions I reached above with respect to Mr. Kolodziejski’s income, the marital standard of living—had they remained married—would not have appreciably increased after 2012.

In my assessment, by the time of the review hearing, there was little case for the need for transitional support to cushion a drop in standard of living occasioned by marriage breakdown. [ 91 ] The trial judge found that 10 years of spousal support would provide Ms. Maximiuk with a reasonable transition following the 21-year marriage. One reason for this may be the significant debt load that Ms. Maximiuk incurred post-separation, which Ms. Maximiuk attributes to Mr.

Kolodziejski’s harmful resistance to paying her spousal support, including after January 31, 2017, although the trial judge may have seen this differently. Regardless, taking that factor into account, the evidence supports the conclusion that a 10-year order complies with the spousal support objective of recognising Ms.

Maximiuk’s economic disadvantage arising from the marriage and its breakdown, while also encouraging her to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her current income, as the trial judge expected her to do. [ 92 ] Although Ms. Maximiuk specifically asserts the trial judge erred by failing to apply the rule of 65 (where no child support is ordered), I must reject that argument. The self-styled rule of 65 under the SSAG is as follows: Duration ranges from .5 to 1 year for each year of marriage.

However support will be indefinite (duration not specified) if the marriage is 20 years or longer in duration or , if the marriage has lasted five years or longer, when years of marriage and age of the support recipient (at separation) added together total 65 or more (the rule of 65 ). (Bold and italic emphasis in original) [ 93 ] In my view, the so-called rule is a shorthand way of saying that the narrow circumstances it describes (i.e., 20 plus years of marriage, or where the sum of the years of marriage plus the recipient spouse’s age is greater than 65) often result in indefinite spousal support, when all other factors are neutral .

Putting Ms. Maximiuk’s allegation of error differently, she asserts that the trial judge erred because she assessed the full circumstances of the parties’ marriage and its breakdown under s. 15.2 of the Divorce Act as being relevant and material when determining that a 10-year duration satisfied the objectives of compensatory spousal support, instead of resorting mechanically to the rule of 65. I cannot recognise this as an error in principle.

The law does not require the “rote application of the SSAG amounts” ( Kilpatrick at para 83). [ 94 ] In short, having regard for the objectives and factors set out in the Divorce Act , and considering the findings of fact made by the trial judge, there is no basis to interfere with her decision regarding the duration of spousal support. E. Issue: Costs at Trial [ 95 ] As noted, the trial judge awarded costs to Ms. Maximiuk, giving two reasons for doing so. First, she said that, even though Ms. Maximiuk had not been entirely successful in her petition for spousal support, she was entitled to her costs due to Mr.

Kolodziejski’s failure to comply with interim orders throughout the review application process. Second, the trial judge held that the fact that Mr. Kolodziejski had waited until the eve of the trial to concede that Ms. Maximiuk was entitled to spousal support had caused “unnecessary costs to both parties” ( Decision at para 62). [ 96 ] As background, Rules 11 - 1 and 15 - 96 of The Queen’s Bench Rules govern awards of costs in family law matters. Under Rules 11-1(1) and 15-96(1), costs are in the discretion of the court and it may make any direction or order respecting costs that it considers appropriate.

Rule 15-96(2) sets out a presumption that “a successful party is entitled to the costs of a family law proceeding”. As the trial judge remarked, Ms. Maximiuk had “not been fully successful in advancing her claim to indefinite spousal support” and, therefore, the presumption under Rule 15 -96(2) does not apply in this case.

Rule 11 -1(4) also identifies “the result of the proceeding” as a relevant factor, and it sets out other considerations in the exercise of the court’s discretion as to costs, including in relevant terms: Discretion of Court 11-1(4) In exercising its discretion as to costs, the Court may consider: … (

g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding;

(

h) a party’s denial of or refusal to admit anything that should have been admitted; (

i) whether any step in the proceeding was improper, vexatious or unnecessary; (

j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; [97] In addition to this, Rule 1-3(1) states the foundational rule that “[t]he purpose of these rules is to provide a means by whichclaims can be justly resolved in or by a court process in a timely and cost effective way”. [98] In Okanagan, the majority of the Supreme Court of Canada identified the traditional purpose of an award of costs as being “toindemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if thesuccessful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed)” (at para 21).

The majority went on to statethat “[f]or some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some casesnot even the primary purpose, of a costs award” (at para 22). As to the modern policy objectives that underpin costs awards, LeBel J.,writing for the majority of the Supreme Court, stated: [23] The indemnification principle was referred to as “outdated” in Fellowes [ (ON SC), 37 OR (3d) 464], McNeilv. Kansa General International Insurance Co. (1997), 37 O.R. (3d) 464 (Gen. Div.), at p. 475.

In this case the successful party was a lawfirm, one of whose partners had acted on its behalf. Traditionally, courts applying the principle of indemnification would allow anunrepresented litigant to tax disbursements only and not counsel fees, because the litigant could not be indemnified for counsel fees it hadnot paid. Macdonald J. held that the principle of indemnity remained a paramount consideration in costs matters generally, but was“outdated” in its application to a case of this nature. The court should also use costs awards so as to encourage settlement,

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