Gaunce v Gaunce, 2023 SKCA 18

Court of Appeal for Saskatchewan Docket: CACV3825 Citation: Gaunce v Gaunce, 2023 SKCA 18Date: 2023-02-01 Between:Jesson GaunceAppellant (Respondent)AndAndrea GaunceRespondent (Petitioner)Before: Caldwell, Schwann and McCreary JJ.A. Disposition: Appeal allowedWritten reasons by: The CourtOn appeal from: 2021 SKQB 101, ReginaAppeal heard: October 6, 2022Counsel: Timothy Stodalka, K.C., for the Appellant Andrea Gaunce appearing on her own behalf The Court I.

OVERVIEW [1] Jesson Gaunce appeals from a trial decision that addressed divorce as well as ongoing and retroactive child and spousalsupport pursuant to the Divorce Act, RSC 1985, c 3 (2d Supp), and the division of family property under The Family Property Act, SS1997, c F-6.3 (see Gaunce v Gaunce, 2021 SKQB 101 [Trial Decision]). Mr. Gaunce appeals from the whole of the Trial Decision exceptthe judgment of divorce.

He also appeals against a procedural ruling made during the trial. [2] Under these reasons, we allow the appeal and set aside the orders: (1) for $3,000 in retroactive child support; (2) for $12,000in retroactive spousal support; (3) for division of Mr. Gaunce’s pension; and (4) for costs of the trial.

We find the trial judge was led intoerror because he did not follow the approach to property division set out in Benson v Benson (1994), (SK CA), 120Sask R 17 (CA) [Benson], or the practice for determining whether awards of retroactive child and spousal support are appropriate (D.B.S.v S.R.G., 2006 SCC 37 at para 54, [2006] 2 SCR 231 [D.B.S.], and Kerr v Baranow, 2011 SCC 10 at para 211, [2011] 1 SCR 269 [Kerr]). [3] In the Trial Decision, the judge equally divided Mr.

Gaunce’s pension, which is the parties’ principal asset, but also increasedthe duration of spousal support purportedly in lieu of making an order equalising the net value of family property. In the result, AndreaGaunce likely would have received more than the full net value of the family property in equalisation and enhanced spousal support. Inthis judgment, we explain why we set aside the trial judge’s decision on the division of family property.

We then value and divide thatproperty afresh and reassess the award of spousal support. [4] We also find error in the trial judge’s awards of retroactive child and spousal support for the period from the date ofseparation to the date of the first interim support order (Gaunce v Gaunce (23 January 2018) Regina, DIV 505/2017 (Sask QB) [Pre-trialInterim Order]). The errors affect the trial judge’s decision to award retroactive support but there were also errors in his assessment ofamounts owing by Mr. Gaunce. In the result, we set aside the orders that Mr.

Gaunce pay $3,000 in retroactive child support and $12,000in retroactive spousal support to Ms. Gaunce. [5] This judgment does not disturb the awards for ongoing child support and amounts owing for extraordinary expenses under s. 7of the Federal Child Support Guidelines, SOR/97-175 [Guidelines], or the judgment for divorce. In addition, we leave undisturbed thetrial judge’s decision to permit each of the parties to retain the family property in their possession and the orders requiring Ms. Gaunce tovacate the family home and granting possession of it to Mr.

Gaunce. [6] We award costs in the appeal proper of $2,000 to Mr. Gaunce, make no award of costs at trial, and we award Ms. Gaunce hercosts in Mr. Gaunce’s fresh evidence application, which we fix at $500. II. BACKGROUND [7] The parties met in the spring of 2006 and married in November of the following year. There is one child of the marriage.When they separated on October 12, 2016, the parties were living in Assiniboia, Saskatchewan. Ms. Gaunce filed her petition onSeptember 27, 2017. The trial occurred in early December of 2020. The Trial Decision was issued on April 7, 2021. [8] Mr.

Gaunce (now 41) is an RCMP officer. In September of 2015, the parties moved from Lethbridge, Alberta, to Assiniboiafor his career. He was transferred to Regina, Saskatchewan, on August 15, 2018, where he resides with his new partner. The trial judgefound Mr. Gaunce’s income was $116,460.55 in 2016, $129,723.99 in 2017, $114,320.62 in 2018, $100,751.84 in 2019, and $100,751 in2020. Neither party disputes these amounts.

[9] Ms. Gaunce (now 45) holds a certificate in business administration and is an accredited journeyman hairstylist. She operatedher own hairstyle business in Lethbridge from 2002 until 2007 and then stayed at home with the parties’ child. From 2010 to 2015, Ms.Gaunce worked from home as a hairstylist. From March of 2016 to May of 2017, she worked for a division of the federal government. In2017, Ms. Gaunce was diagnosed with cancer and took time off work for surgery. In May of 2019, she began working at a local office inAssiniboia and then for a local radio station and is still employed there.

In June of 2021, Ms. Gaunce had a child with her new partner. Thetrial judge found that Ms. Gaunce’s income was $9,764.82 in 2016, $15,451.35 in 2017, $33,136.16 in 2018, $50,494 in 2019 and $42,000in 2020. Neither party disputes these amounts. [10] Accepting the incomes as found by the trial judge, Mr. Gaunce acknowledges that there is no reason to interfere with the trialjudge’s order for ongoing child support under the Guidelines.

He also does not dispute the percentage he is required to contribute towardfuture extraordinary expenses under s. 7 of the Guidelines, and we otherwise find no error in the trial judge’s orders regarding thoseexpenses. In as much as the grounds of appeal challenge child support, they are dismissed. Mr. Gaunce acknowledges that his obligationswith respect to child support and s. 7 expenses are subject to variation in accordance with material changes in his and Ms. Gaunce’sincomes. [11] Justice McIntyre issued the Pre-trial Interim Order on January 23, 2018, and, under it, he granted Ms.

Gaunce primary care ofthe parties’ child and exclusive possession of the family home. Based on incomes of $107,190 and $24,695 respectively (note: havingbetter evidence, the trial judge found different incomes), McIntyre J. ordered Mr. Gaunce to pay Ms. Gaunce $919 per month in childsupport and $1,400 per month in spousal support, commencing on February 1, 2018. The Pre-trial Interim Order also stated that Ms.Gaunce would be “responsible for the mortgage, taxes, insurance and other operating expenses associated with the family home” (at para8).

Notably in this regard and for the purposes of property division, the family home and associated utilities and services were in Mr.Gaunce’s sole name at all relevant times. No appeal was taken from the Pre-trial Interim Order. [12] After the trial had started but prior to its conclusion, the trial judge varied the Pre-trial Interim Order by increasing spousalsupport to $1,858 per month, beginning on January 1, 2021 (Gaunce v Gaunce (24 December 2021) Regina, DIV 505/2017 (Sask QB)[Mid-trial Interim Order]).

In his fiat, the trial judge reasoned (incorrectly) that the change was required because the mortgage paymentson the family home had increased following Mr. Gaunce’s decision to convert the closed mortgage to an open mortgage in anticipation ofa sale of the family home. No appeal was taken from the Mid-trial Interim Order. III. DIVISION OF FAMILY PROPERTY [13] We must address first the appeal against the division of family property under the Trial Decision.

This is because thecorrectness of that decision affects the determination of several other grounds of appeal. [14] We start by observing that this Court has often reinforced that the basic procedure to be followed for effecting a distribution offamily property is set out in Benson: [19] In the light of these and other provisions of [The Matrimonial Property Act, SS 1979, c M-6.1, repealed], the practice is to resolvethese cases along the lines suggested by Carter, J., in Rathie v. Rathie (1980), (SK KB), 2 Sask.

R. 361, 17 R.F.L.(2d)265 (Q.B.), determining, first, the property and its value subject to distribution. This ordinarily entails compiling an inventory of theproperty owned by the spouses as of the time of application and establishing the net value of that property as of that time or the time ofadjudication. Exceptions aside, this is the property and its value which is subject to distribution.

It is the practice to go on from there tonext determine whether any of that property or its value is exempt from distribution; then to determine whether any of it ought not to bedistributed equally having regard for the equitable considerations mentioned in the statute; and finally to decide how the distributionshould be effected.

See, for examples: Suderman v Yakubowski-Suderman, 2022 SKCA 87; Lonsdale v Evans, 2020 SKCA 30 at para 113, 37 RFL (8th) 251;Swystun v Janzen, 2016 SKCA 117, 405 DLR (4th) 559; Schimelfenig v Schimelfenig, 2014 SKCA 77, 442 Sask R 30; Ruskin v Dewar,2005 SKCA 89, 256 DLR (4th) 70; and Russell v Russell (1999), (SK CA), 180 Sask R 196. A. Failure to value the family property [15] By failing to follow Benson, the trial judge committed fundamental errors of law in his handling of the division of familyproperty. When setting out his orders on property division, the trial judge ordered the equal division of Mr.

Gaunce’s pension pursuant toThe Pension Benefits Division Act, SC 1992, c 46, Sch II, and then wrote: [197] [Ms. Gaunce] will vacate the family home in Assiniboia, Saskatchewan within 90 days of the date of this decision, taking anyhousehold contents she wishes to retain and leaving the house in a neat and tidy condition, after which [Mr. Gaunce] shall have possessionand sole ownership of the house and contents. [16] As a general comment on what led him to divide only Mr.

Gaunce’s pension and to leave each party with the family property intheir possession and the debts to their name, the trial judge explained that: [185] Normally, the division of family property is achieved by tabulating and valuing assets and then dividing the total value todetermine an equalization payment paid by the party with more of the assets to provide an equal distribution to both parties. I concluded astrict application of this approach would not work in these particular circumstances which I find to be extraordinary. I have relied upon ss.21(2) and 22(1) of The Family Property Act.

These provisions allow the court to take a different approach where “the court is satisfiedthat it would be unfair and inequitable” to make an equal distribution. In doing so, I have tried to be fair to both parties. [186] The amount of debt each has makes it unlikely that any order for an equalization payment can be satisfied, except over time. In thecircumstances, I believe it would be better to order payment of spousal support for a longer duration, at the upper limit of therecommended range, than order a lump sum payment in property division which cannot realistically be made. While I could order that it

be paid over time, the spousal support strikes me as fairer to both. [ 17 ] In addition to failing to follow the approach set forth in Benson in his analysis, the trial judge misinterpreted what constituted dissipation under The Family Property Act , misapplied The Limitations Act , SS 2004, c L-16.1 , and erred in his assessment of whether certain loans were family debts.

However, it is not necessary that we explain these additional errors because, as we conclude below for other reasons, the Court must divide the family property afresh in the circumstances of this appeal. [ 18 ] Nonetheless, we agree with the trial judge that it would be burdensome to order Mr. Gaunce to make a cash equalisation payment to Ms. Gaunce.

Although we do not condone it, we understand why this led the trial judge to increase the duration of spousal support to the upper end of the range set out under the Spousal Support Advisory Guidelines (2008) [ SSAG ], and to marginally discount the amounts of retroactive support Mr. Gaunce owed. However, we point out that the trial judge also equally divided the parties’ only asset of real value, namely, Mr. Gaunce’s RCMP pension. This resulted in Ms.

Gaunce receiving what little family property she had in her possession, an equalisation payment valued at approximately $145,915 (i.e., one-half of the RCMP pension), as well as an unquantified increase in the duration of spousal support, whereas Mr. Gaunce benefited only from a minor reduction in the amount of retroactive support said to be owed. [ 19 ] For these reasons, we are unable to agree that the division of family property was equitable, in accordance with the law, or “fairer to both” parties. Even in circumstances such as these, judges must do the work of valuing family property and associated debts.

By doing that work and showing the work done, the reason that a judge has granted specific relief becomes self-evident, calculation error is avoided, and the objectives of public accountability and effective appellate review are more readily achieved. [ 20 ] Here, largely because the trial judge did not follow the approach set out in Benson , he did not appreciate that there was no logical or equitable connection between the unknown increase in the duration of spousal support he had granted (and the unknown decrease in the amount of retroactive support owed) and the foregone, unquantified equalisation payment on the division of family property.

Moreover, he overlooked that, in the overall result, he had ordered Mr. Gaunce to make an equalisation payment that exceeded one-half of the net value of the family property but had also ordered him to pay Ms. Gaunce spousal support of a presumably analogous value in lieu of an equalisation payment. [ 21 ] Accordingly, the appeal against the division of family property under the Trial Decision is allowed and the related order dividing Mr. Gaunce’s pension is set aside. B.

Whether this Court should value and divide the family property [ 22 ] Given that there is little in the way of family property and its division affects the spousal support orders under the Trial Decision , we were reluctant to return the division of family property to the Court of King’s Bench for a new trial. We also recognise that some family property and associated debt was not valued or was erroneously excluded under the Trial Decision and that Ms. Gaunce has not cross-appealed on this or any other issue.

Therefore, we endeavoured to determine if we were practically obstructed from identifying, valuing and dividing the family property on appeal, with regard for the parties’ arguments at trial. Having worked through the matter under the approach in Benson , we find that we are able to deal with the division of family property, thereby avoiding any additional cost to the parties or undue delay in finally resolving their issues. C. Valuation of family property on appeal from the Trial Decision [ 23 ] Identifying the family property is straightforward in this case. The house located in Assiniboia is the family home.

The contents of that home, the parties’ vehicles, their bank accounts, their pension plans, and the household goods, constitute all the property that is subject to division under The Family Property Act . As the trial judge remarked, the difficulty in this case lies in determining its value. [ 24 ] Under s. 2 of The Family Property Act , “value” means either: (

a) the fair market value at the time an application is made pursuant to the Act or at the time of adjudication, whichever the court thinks fit; or (

b) if a fair market value cannot be determined, “any value… that the court considers reasonable”. The trial judge chose the date of application as the date that should be used for purposes of valuation (i.e., September 27, 2017), and we are not persuaded that he erred in that regard. Drawing from the Trial Decision and the appeal book, we find that the family property and the parties’ liabilities, as of the valuation date, were as follows: Mr.

Gaunce Property Value (Liability) Family Home $234,000 RCMP Pension $291,831 2017 Ford Fusion $40,980 Household goods, namely, mattress, recliner, toaster, and dishes, PS4, golfclubs, hockey equipment, TV $3,000 Sale proceeds of 2007 Mazda 9 $1,500 CIBC Account $3,308 CIBC Mortgage ($238,730) Property Tax Arrears ($6,129) Ford Motor Credit Loan ($40,980) CIBC Joint Account (one half) ($700) CIBC Line of Credit ($3,898) The Brick Credit Card ($4,006) CIBC Visa ($5,071) Loans from Parents ($37,155)

Net Value of Family Property (Mr. Gaunce) $237,950 Ms. Gaunce Property Value (Liability) Household goods, namely, art, TV, DVDs, golfclubs, curling equipment, tools, snowblower, lawnmower, couches, bedroom suite, tables, chairs, microwave dishes $5,325 Government of Canada Pension $1,648 Innovation Credit Union accounts $23 Innovation Credit Union loan ($5,621) CIBC Account ($613) CIBC Joint Account (one half) ($700) Loan ($1,392) Visa Credit Cards ($22,935) Net Value of Family Property (Ms. Gaunce) ($24,265) TOTAL VALUE OF FAMILY PROPERTY NET OF DEBT $213,685 [ 25 ] A few explanatory notes are necessary.

First, like the trial judge, we are unable to determine the fair market value of the 2017 Ford Fusion from the dubious evidence as to its value. Mr. Gaunce claimed the vehicle was worth $15,000 but he acquired it four months before the valuation date when its cash price was listed at $42,362. We agree with the trial judge when he remarked that there was no explanation for “why the market value of the Ford Fusion would fall to around one-third of its sale price within a year of purchase” (at para 49).

We infer that what the trial judge did was attribute $40,980 to it, which is the amount owing under the Ford Motor Credit loan at the time of valuation, thereby giving it no net value. In our assessment, that was reasonable in the circumstances. [ 26 ] Second, we conclude that the trial judge incorrectly decided not to account for the $37,155 that Mr. Gaunce owes to his parents under various loans.

While it is not necessary to delve deeply into the legal errors that led to the exclusion of these debts, we find there is no evidence at all to suggest that the loans had not been used for family purposes or that a limitation period precluded the parents from recovering on the debts. Therefore, we included their aggregate amount in our calculations. [ 27 ] The third and fourth comments involve two items not included in the foregoing calculations. The first of these is the $14,000 in insurance funds that Mr. Gaunce received for hail damage to the family home. That sum is not family property.

The damage and associated insurance payment occurred, as we understand it, after the valuation date. Nor does Mr. Gaunce’s handling of it amount to dissipation. The home had a negative net value as at the valuation date, it remains in Mr. Gaunce’s sole name, he was granted possession of it, and he still intends to sell it. The second item involves the circumstances surrounding Mr. Gaunce’s alleged failure to avail himself of the RCMP Integrated Relocation Program, which (contrary to what the trial judge found) does not amount to dissipation of family property in the circumstances of this case.

That program provides that “A member who sells his/her residence for less than the original purchase price (at the time of initial posting) may be reimbursed the difference”. The family home has not sold and so it remains speculative whether it will sell at a loss and, if so, whether the loss will qualify for reimbursement under the program. The notional benefit to which Mr. Gaunce may become entitled is not quantifiable for the purposes of property division. These two factors are also in part why we decline to disturb the trial judge’s award of possession of the family home to Mr. Gaunce.

That is, he bears the consequences, positive or negative, of how he handles these matters, but they do not affect the division of family property as at the valuation date. D. Equalisation of the net value of the family property [ 28 ] On our calculations, the net value of the parties’ family property as at the valuation date is $213,685 and one-half of it is $106,843. As noted, we concur with the trial judge that it would presumably be financially ruinous to order Mr. Gaunce to make a lump- sum cash equalisation payment in the circumstances. Therefore, we order that Mr.

Gaunce’s pension be unequally divided at source such that Ms. Gaunce shall receive 36.6% of its value as at the valuation date (i.e., $291,831 x 0.366 = $106,810). [ 29 ] Given that this order equally divides the net value of the family property between the parties by unequally dividing Mr. Gaunce’s pension, we do not interfere with the trial judge’s decision not to divide Ms. Gaunce’s pension and to permit each party to retain the family property and household goods in their possession. We similarly do not disturb the orders requiring Ms. Gaunce to vacate the family home and granting Mr. Gaunce possession of it.

IV. SUPPORT [ 30 ] With the matter of property division resolved, we can consider the grounds of appeal relating to spousal support, to extraordinary expenses under s. 7 of the Guidelines , and to amounts owing for retroactive child and spousal support. A. Spousal Support [ 31 ] As noted, Mr. Gaunce accepts that the parties’ incomes are what the trial judge found them to be in the Trial Decision . Under the grounds of appeal relating to spousal support, he alleges that the trial judge erred when he determined that Ms. Gaunce is entitled to

spousal support and further erred when he fixed the monthly quantum and the duration of her entitlement. 1. Entitlement [ 32 ] In the Trial Decision , the trial judge found that the parties had cohabitated for 10 years and that compensatory and non- compensatory support for Ms. Gaunce was justified. In explaining this conclusion, he wrote: [97] [Ms. Gaunce] …is now 43. [Mr. Gaunce] …is now 39. They cohabited for ten years, from 2006 to 2016. They have now been separated for over four years. [98] [Mr. Gaunce] has been a member of the RCMP since 2004 and was promoted to the rank of Corporal in 2018.

He was the primary breadwinner during the marriage. [99] [Ms. Gaunce] was working as a hairdresser when she met [Mr. Gaunce]. While [Ms. Gaunce] worked throughout the marriage, except for a relatively short period when caring for their infant son, her income was much less. [Ms. Gaunce] was the primary caregiver of their son. [100] When they met, during an RCMP ride-along, [Ms. Gaunce] was considering applying for the RCMP herself. [Mr. Gaunce], in direct examination, said he told [Ms. Gaunce] that if she was going to Depot (meaning as an RCMP recruit), he would stop dating her.

He also testified that, when they became engaged, they both agreed [she] should not pursue a career with the RCMP. [101] [Mr. Gaunce’s] career was given priority and their move to Ottawa was intended to further his career goals and to be closer to his parents. They had agreed, before leaving Lethbridge, to return to Alberta or Saskatchewan after the birth of their son to be closer to [Ms. Gaunce’s] parents, who reside in Swift Current. [102] I find that they mutually agreed to traditional roles in the marriage which caused economic disadvantage to [Ms. Gaunce] when they separated.

Further, the disparity in incomes means that while [Ms. Gaunce] is in financial need, [Mr. Gaunce] has the ability to pay. I am satisfied, therefore, that spousal support is justified on both a compensatory and non-compensatory basis. [ 33 ] Relying on the parties’ 2020 incomes and the SSAG , as calculated by the ChildView application, the trial judge said that the range of spousal support fell between $333 and $1,232 per month, with a mid-point of $782 and a minimum duration of five years and a maximum of ten years. After acknowledging that Mr.

Gaunce had paid spousal support for the three years following the Pre-trial Interim Order , the trial judge concluded his reasons on this issue as follows: [105] I find that spousal support at the mid-range of $782 is appropriate. The duration of spousal support shall be for six years from the date of this judgment. In deciding duration, I have taken account of the interim award and my division of family property, in particular the family home, as explained below. [ 34 ] Mr.

Gaunce asserts that, because the Trial Decision left him with the responsibility for all of the family debts as well as the ongoing costs of maintaining the family home, the trial judge should have found that Ms. Gaunce did not require spousal support and that he did not have the means to pay it. He also makes an argument that is related to the Mid-trial Interim Order , which we address later in these reasons.

He lastly asserts that the parties did not live together for 10 years, but we see no error in the trial judge’s finding in that regard and, moreover, even if it were in error, it would not override the judge’s conclusion that Ms. Gaunce was entitled to spousal support. [ 35 ] Although the details of the financial need or hardship that Ms. Gaunce experienced after separation were not established at trial (discussed below), the evidence and Ms. Gaunce’s financial statement were sufficient to ground the trial judge’s conclusion that an award of non-compensatory support was appropriate in this case.

Moreover, we see no error in the trial judge’s finding that Ms. Gaunce was also entitled to a compensatory award of spousal support in the circumstances he described. [ 36 ] At bottom, we understand that Mr. Gaunce disagrees with the conclusion that Ms. Gaunce is entitled to spousal support; however, disagreement is not enough to compel appellate intervention with the trial judge’s findings. We dismiss this ground of appeal. 2. Duration [ 37 ] Mr.

Gaunce argues that, because the trial judge saddled him with the “vast majority” of the family debt, the trial judge should have awarded the minimum duration of spousal support to Ms. Gaunce. He submits that it was an error for the trial judge to have not better explained why he did not fix the duration of spousal support toward the lower end of the range suggested by the SSAG . Earlier in these reasons, we set aside the division of family property recognising that that result defeats the trial judge’s decision to award spousal support for nine years.

We must, therefore, determine the duration of spousal support afresh. Before doing so, we will address two of Mr. Gaunce’s other arguments of error in relation to the length of spousal support. [ 38 ] First, Mr. Gaunce maintains that the trial judge erred by ordering him to pay spousal support for 10.5 years, which exceeds the duration of the parties’ cohabitation and the high-end of the SSAG range. We understand the trial judge to have decided to award support for 9 years, but we agree that he in effect awarded Ms. Gaunce spousal support for a total duration of 10.5 years.

His error was a failure to recognise that, under the Trial Decision , he had awarded spousal support retroactively to the time of separation (October of 2016), not from the date of the petition (September of 2017), and not the effective date of the Pre-trial Interim Order (February 1, 2018). This oversight added 16 months to the duration of spousal support and, accordingly, the error must be corrected. [ 39 ] We further note that the Trial Decision does not contain any analysis (i.e., any application of the relevant principles to the evidence) on the issue of spousal support duration.

When addressing duration, the trial judge wrote only that he had “taken account of the interim award and [the] division of family property, in particular the family home, as explained below” (at para 105). As we have found, however, the trial judge misapprehended the economic consequences of how he had divided the family property, failed to divide it equally or equitably, and thereby improperly accounted for the consequences of its division in his decision to award spousal support for nine

years. This error must be corrected as well. [ 40 ] In general, spousal support is awarded to provide compensation when a relationship has economically benefited one spouse at the expense of the other and to relieve the financial need that a spouse has experienced after a relationship has ended. Under s. 15.2(4) of the Divorce Act , a court making a spousal support order must take into consideration the condition, means, needs and other circumstances of each spouse, including the length of cohabitation, the functions performed by each during their cohabitation, and any order, agreement or arrangement relating to support. In addition, pursuant to s. 15.2(6), a support order should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 41 ] We start our analysis by adopting the trial judge’s findings on the evidence at paragraphs 97 to 102 of the Trial Decision . On that basis, the parties cohabited for 10 years. While Ms. Gaunce has experienced cancer and its treatment, the evidence of her condition is such that it does not affect the determination of spousal support quantum or duration. The parties’ respective means are established by their yearly incomes, as determined by the trial judge.

However, the issue of the parties’ needs was largely undeveloped in the evidence at trial. [ 42 ] Ms. Gaunce conceded that Mr. Gaunce had had responsibility for and was paying (albeit that he did so irregularly and often late) the mortgage, utilities, insurance, and taxes in respect of the family home, as well as vehicle registrations, insurance and maintenance following separation until February of 2018. She did not adduce evidence to quantify her personal, household, or childcare expenses, other than under her financial statement. When cross-examined on her expenses, Ms.

Gaunce avoided answering the questions put to her by Mr. Gaunce’s counsel: Q And so what debts were you responsible for? What ongoing obligations did you have to – what bills did you pay? A I paid – I wasn’t making a lot with Stats Can that year, so I needed assistance. Q In 2016 and 2017, yes? A I couldn’t carry the home expenses with my income. Q But that wasn’t my question. My question was, like, how much money or what – A Everything I earned when into that – went into [the parties’ child]. It went into groceries. It went into his clothes. It went – everything I had. I’m not an extravagant person.

I don’t get my hair done or nails done. I don’t spend money that way at all. Everything I made went straight back into my family. [ 43 ] After Mr. Gaunce’s counsel had cross-examined Ms. Gaunce on aspects of her income and reimbursements, he returned to the issue, approaching it from a different angle in the following colloquy: Q Okay. Now, I think you – you said that – you said you weren’t – and I just want to make sure I – I understand, but, okay, you’re – you’re advancing a claim for retroactive support for the period of time from October of 2016 till Mr.

Justice McIntyre’s order in January of 20 – 2018, correct? A If – if it’s –yeah. Yeah, I am. Q Okay. So, I – I just – again I – I don’t understand your – like, how much are you saying the retroactive claim should be? Like, what – what is that? What numbers are you suggesting? A I am leaving – I’m not suggesting anything. I’m leaving it up to the decision of the Court. Honestly, I just want – I want it all to be looked at fairly, incomes. Like I said, everything I earned went straight back into my family. In her closing submissions on this issue, Ms.

Gaunce repeated that she “trust[ed] the Court’s decision on what is right and fair”. [ 44 ] For the purposes of determining the duration and quantum of ongoing spousal support, it is not problematic in the circumstances of this case that Ms. Gaunce never definitively explained how the marriage breakdown had affected her financial needs other than in general terms. We do not take issue with the truthfulness of her testimony that she had spent everything that she earned during the period following the separation on her household and child-related expenses. We also accept that Mr.

Gaunce remained financially responsible for the principal household expenses (i.e., mortgage, utilities, services, insurance, etc.) until the date of the Pre- Trial Interim Order . [ 45 ] Nonetheless, as the trial judge recognised, Ms. Gaunce has undoubtedly experienced an economic disadvantage and Mr. Gaunce a corresponding advantage arising from the marriage and its breakdown. As their relationship developed, Mr. Gaunce became the principal breadwinner and Ms. Gaunce the primary caregiver in the home. Even on the limited evidence, their traditional roles meant that Ms.

Gaunce experienced economic hardship arising from the breakdown of the marriage. To our knowledge, however, there are no financial consequences arising from the care of the parties’ child over and above Mr. Gaunce’s child support obligations. The trial judge also recognised that, as at the date of the Trial Decision , the parties had been separated for over four years—now six years. During that time, Ms. Gaunce has returned to the workforce and her income increased steadily from what it was at the date of separation.

In our assessment, she has not yet achieved economic self-sufficiency, but it is within reach within a reasonable period. Lastly, we note that both

parties have since re-partnered. [46] Based on our assessment of the condition, means, needs and other circumstances of the parties, we order that Mr. Gaunce payspousal support to Ms. Gaunce for seven and one-half years, commencing on the date of the Pre-trial Interim Order and ending on July31, 2025. In our judgment, Ms. Gaunce should be expected to achieve economic self-sufficiency and be relieved of the economic hardshiparising from the breakdown of the marriage within that time at the quantum ordered by the trial judge, which we examine and confirmbelow subject to one qualification. 3. Quantum a.

Alleged procedural errors [47] As a matter arising preliminary to the grounds of appeal addressed under this heading, we deny Mr. Gaunce’s application underRule 59 of The Court of Appeal Rules to adduce fresh evidence. This also means that we have not admitted into evidence Ms. Gaunce’saffidavit in response to that application. [48] Turning to the first of the procedural grounds of appeal, Mr. Gaunce alleged in his notice of appeal and argued in his factumthat the trial judge had acted injudiciously in a particular respect, insinuating that the judge had thereby breached judicial ethicalprinciples.

The allegation is completely innuendo; it is based on sheer speculation. This ground is dismissed because it is so devoid ofmerit that it approaches being scandalous. [49] The second ground under this heading relates to the conduct of the trial. Mr. Gaunce asserted at trial that Ms. Gaunce hadentered into a spousal-like relationship with the person who is now her partner. In cross-examinations, she and her partner bothequivocated on the nature of that relationship, each essentially testifying that they were just dating. However, after the close of trial andbefore the Trial Decision was issued, Mr.

Gaunce became aware that Ms. Gaunce was pregnant at the time of her cross-examination. Heapplied to have the trial reopened so that he could cross-examine her again on what she had said about her relationship. In that reopeningapplication, Ms.

Gaunce admitted, through her counsel, that she was pregnant. [50] The trial judge dismissed the reopening application because he found that the circumstances did not satisfy the test forreopening a trial (citing, 671122 Ontario Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59 at para 20, [2001] 2 SCR 983 [Sagaz]).However, he also stated: [13] Pregnancy involves the likelihood of birth of a child, which has implications for the parents in terms of time and cost of childraising. It may also be the impetus to a spousal relationship.

If that occurs, it may create a new circumstance which would justify re-consideration of the decision I will make. But the fact of the pregnancy does not change the decision I will make. [51] In this appeal, Mr. Gaunce concedes that a new relationship does not terminate an entitlement to spousal support; but, he states,awards of spousal support are based on the payee’s needs and the payor’s means and, therefore, Ms. Gaunce’s needs would be mitigatedunder her new relationship. He says the trial judge acknowledged this in paragraph 13 of the Trial Decision. On that basis, Mr.

Gaunceargues that the trial judge’s error was that, knowing that this issue was in play and that Ms. Gaunce had “concealed” evidence relevant toit, he declined to reopen the trial or to insert a review clause into the spousal support order to later address it. [52] In considering this ground of appeal, we observe that Sagaz involved an application to reopen a trial after the case had beendecided (see also Scott v Vanston, 2016 SKCA 75 at paras 67-69 and 77-78, [2016] 9 WWR 256 [Vanston]).

With that context in mind,the courts in Sagaz and Vanston understandably applied a test for reopening a trial that is similar to the test in R v Palmer, (SCC), [1980] 1 SCR 759, for the admission of fresh evidence on appeal. However, in terms of principles, the reopening of a trial to admitnew evidence relevant to a matter at issue prior to its adjudication does not seem to invoke the considerations of fraud, abuse of process,finality, and expense in the same way as does a reopening to receive evidence after a decision has been made and the result is known.

Thisis particularly true where it can be credibly alleged that the new evidence is relevant, could reasonably be expected to affect the outcome,and was not earlier adduced because it was concealed by the adverse party, who had possession of it or who exercised control over it (e.g.,see Schatz v Doust, 2002 SKCA 129, 227 Sask R 1, citing Harper v Harper, (SCC), [1980] 1 SCR 2 at 5, whereconcealed evidence was admitted even though it did not affect the outcome).

Although directly applicable in the context of this reopeningapplication, it does not appear that this jurisprudence was drawn to the trial judge’s attention. [53] Nonetheless, as the Court noted in Sagaz, citing Hamstra (Guardian ad litem of) v British Columbia Rugby Union, (SCC), [1997] 1 SCR 1092 at para 26, “It has long been established that, absent an error of law, an appellate court should notinterfere with the exercise by a trial judge of his or her discretion in the conduct of a trial”.

While the appellate standard that appliesgenerally to matters of judicial discretion has since been further developed (see Kot v Kot, 2021 SKCA 4, 63 ETR (4th) 161; but see Krekev Alansari, 2021 SCC 50, 464 DLR (4th) 450), we remain unconvinced that the standard of review permits appellate interference with thetrial judge’s decision not to reopen the trial. [54] Earlier in these reasons, we redetermined the duration of spousal support with knowledge of each party’s re-partnering becausewe are not persuaded that the available evidence about the relationship between Ms.

Gaunce and her new partner would meaningfullyaffect that decision. That leads us to remark on a matter directly relevant to this ground of appeal. It appears to be undisputed thatMr. Gaunce has received or is due to receive an unquantified amount of backpay resulting from contract negotiations between hisemployer and union. This obviously did not occur prior to the Trial Decision; Ms. Gaunce raised it with us in response to some of thegrounds of appeal. This Court, however, is not the proper forum for varying support orders based on material changes that occur after atrial. Furthermore, Mr.

Gaunce has not disclosed his 2021 financial records, so the amounts of backpay he may have received in 2020 (i.e.,the year the trial judge used in his calculations) is unknown to the Court. Once that information is available, an application to vary thechild and spousal support orders under s. 17 of the Divorce Act is anticipated, if the parties cannot earlier agree on a variation. As noted,Mr.

Gaunce does not dispute that his child support obligations are subject to variation in accordance with material changes in his and Ms.Gaunce’s incomes. [55] Having made those remarks, we repeat what the trial judge recognised at paragraph 13 of the Trial Decision. The evidence

about the relationship between Ms. Gaunce and her new partner might “create a new circumstance which would justify re-consideration of the decision” about the quantum or duration of spousal support. Therefore, since the Court of King’s Bench may be called upon to address the issue of Mr. Gaunce’s anticipated backpay and because there was a genuine and material uncertainty about Ms.

Gaunce’s new relationship at the time of the Trial Decision , it is appropriate to answer this ground of appeal by adding a review clause to the spousal support orders made under these reasons ( Leskun v Leskun , 2006 SCC 25 at paras 37–39 , [2006] 1 SCR 950). In this way, outstanding issues as to the effect of Ms. Gaunce’s re-partnering may be explored and addressed in their full context by the Court of King’s Bench at the same time as it addresses Mr. Gaunce’s receipt of backpay.

In the interests of certainty and finality, we direct that, if the parties do not earlier agree on a settlement of these issues, the spousal support review shall occur no later than July 1, 2024. [ 56 ] In short, we allow this aspect of the appeal but only so as to add a spousal support review clause. In all other respects, we dismiss the grounds of appeal alleging procedural errors at trial. 4. RCMP pension contributions [ 57 ] In his financial statement, Mr. Gaunce stated that $9,699.54 is deducted annually from his income for contribution to his pension.

He points out that the SSAG states that mandatory source deductions may be used to justify an amount of spousal support towards the lower end of the range. Mr. Gaunce then observes that the trial judge did not explain why the RCMP pension contributions did not cause him to arrive at an amount of spousal support lower in the SSAG range.

This absence of explanation, he argues, “represents a failure in judicial decision making, and the Appeals Court [ sic ] should adjust [the Trial Decision ] accordingly”. [ 58 ] We agree that the SSAG states that a judge may take pension contributions into account when determining spousal support. We are not, however, persuaded that the failure to expressly explain why something discretionary was not done itself amounts to a “reviewable” error that warrants appellate intervention (see Kot v Kot ; Kreke v Alansari at para 1 ). [ 59 ] We dismiss this ground of appeal. 5.

Errors related to the Mid-trial Interim Order [ 60 ] Mr. Gaunce alleges that the trial judge misunderstood the Pre-trial Interim Order when he rendered the Mid-trial Interim Order . We agree that the trial judge incorrectly interpreted the Pre-trial Interim Order as an award of support that was based on the costs of maintaining the family home, which after that time were borne by Ms. Gaunce. Under the first interim fiat, McIntyre J. ordered child support “pursuant to s. 3 of the Guidelines ” (at 2) and awarded interim spousal support relying on the mid-point of the SSAG range. In his arguments, Mr.

Gaunce says the trial judge carried his misunderstanding of the Pre-trial Interim Order through to the awards of support under the Trial Decision . [ 61 ] We conclude that the trial judge’s errors in this regard had no effect on his calculation of ongoing spousal support under the Trial Decision . As is evident, the trial judge used the SSAG “with child” formula and the parties’ incomes to produce ranges of amounts of spousal support from which he chose to award the middle-ground amount of $782 per month. The suggested duration was a minimum of five years and a maximum of ten years.

The trial judge ordered $782 per month for an additional six years from the date of judgment (as noted, this meant that, when combined with the award of retroactive spousal support under the Trial Decision , Ms. Gaunce would have received spousal support for a total of duration of 10.5 years). Given that he reached his conclusions on the quantum of spousal support in the Trial Decision without reference to the costs of maintaining the family home, the trial judge’s misapprehension of the Pre-trial Interim Order had no bearing on the spousal support awards he made . 6. Spousal support

summary [ 62 ] In

summary, the appeal on the grounds of error in the duration of spousal support is allowed and that award is varied such that Mr. Gaunce shall pay Ms. Gaunce $782 on the first day of each month from the date of the Trial Decision to and including July 1, 2025. The grounds of appeal related to the quantum of ongoing spousal support are dismissed except that a review clause is added to the support order so that outstanding issues about the effect of Ms. Gaunce’s re-partnering may be addressed by the Court of King’s Bench at the same time as that Court addresses the effect of Mr. Gaunce’s anticipated backpay on the quantum of child support, which shall occur no later than July 1, 2024. B.

Section 7 expenses [ 63 ] Effective February 1, 2018, pursuant to the terms of the Pre-trial Interim Order , Mr. Gaunce was required to contribute to the child’s extraordinary expenses under s. 7 of the Guidelines . At trial, Ms. Gaunce adduced evidence that she had incurred a total of $2,664.17 in s. 7 expenses in 2018 and 2020. Mr. Gaunce confirmed, in direct examination, that he had only made partial payments toward s. 7 expenses between 2016 and 2018 and no payments in 2019 and 2020. He conceded that he owed Ms. Gaunce for past extraordinary expenses. Mr.

Gaunce submitted, however, that what he had paid for the child’s hockey equipment ought to be deducted from the amounts he owed. [ 64 ] The trial judge noted that Mr. Gaunce had acknowledged in cross-examination that he had no receipts to support his claim. This led the trial judge to decline to make the deduction because there was insufficient evidence of it. Based on the parties’ incomes, the trial judge determined that Mr. Gaunce’s share of the claimed expenses was 78% in 2018 and 71% in 2020, which resulted in $2,411.31 of unpaid s. 7 expenses. [ 65 ] Mr.

Gaunce raised no specific allegation of error about the trial judge’s handling of this issue or about the finding that he owes Ms. Gaunce $2,411.31 under s. 7 of the Guidelines . [ 66 ] We dismiss this ground of appeal.

C. Retroactive Support [67] Mr. Gaunce takes issue with the $3,000 of retroactive child support and $12,000 of retroactive spousal support that the trialjudge found was owing to Ms. Gaunce. In short, we conclude that the trial judge erred in principle and misapprehended the evidence suchthat these awards are not sustainable in the circumstances: Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 11; Crossv Batters, 2016 SKCA 71 at para 14, 81 RFL (7th) 55. What follows are our explanations for this conclusion and the remedy we grant inthe result. 1. Ms.

Gaunce’s claims for retroactive support [68] We start by noting that Ms. Gaunce did not seek an award of spousal support commencing as at the date of separation under herpetition, did not claim support from that date under her interim application, and McIntyre J. did not award retroactive spousal supportunder the Pre-trial Interim Order. On the other hand, as a parent, Mr.

Gaunce had a “free-standing obligation” to support his child at allrelevant times in this matter, so the question of whether he was obliged to support his child from the date of separation was not at issue(see D.B.S. at para 54). [69] In her testimony and trial arguments (some of which was intermixed and some of which overlapped on the issues of retroactivechild and spousal support), Ms. Gaunce asserted a claim for $3,264 in retroactive child support as well as between $12,192 and $31,600 inretroactive spousal support. Ms.

Gaunce said that she had calculated the range of retroactive spousal support to which she was entitledbased on the parties 2016 to 2019 incomes. It is unclear from the evidence and her oral submissions how she calculated the $3,264 sheclaimed in retroactive child support. [70] The matter of retroactive support is further complicated because, in terms of the relevant period, Ms. Gaunce testified and hertrial brief confirms that she was not limiting her retroactive claims to the time between separation and the Pre-trial Interim Order, i.e.,October 12, 2016, to February 1, 2018.

It remains unclear how far back (or forward) she thought the court could or should go;nevertheless, a retroactive award could not have imposed an obligation on Mr. Gaunce to pay spousal support that commenced prior toseparation or to pay more for any time after McIntyre J. had awarded interim support. [71] Frankly, there was nothing in the way of written or oral argument from Ms. Gaunce as to why a spousal support order would beappropriate for any period before the Pre-trial Interim Order (see: Kerr at para 211).

In her opening remarks at trial, she said only that“The Court will hear evidence pertinent to my claim for retroactive and ongoing spousal support”, but she did not follow through on thatcommitment when testifying about retroactive support. In cross-examination, Ms. Gaunce confirmed that she was “asking for ongoing andretroactive adjustment of spousal support”. To be clear about this, while their incomes are known and her trial brief contains calculationsmade in argument, Ms.

Gaunce did not adduce any evidence to establish her claims to retroactive support, nor did she refer to any law tosubstantiate her unorthodox method of quantifying those claims (discussed below). As noted earlier in these reasons, when Mr. Gaunce’slawyer pressed her on her retroactive claims, she declined to answer in specific terms and said, “I am leaving it up to the decision of theCourt. Honestly, I just want – I want it all to be looked at fairly, incomes”. [72] In his opening remarks, Mr.

Gaunce’s lawyer said, “we strenuously object to any suggestion that there’s any retroactive orunpaid child and spousal support that – that should be determined to be payable by this Honourable Court”. Mr. Gaunce later argued thatMs. Gaunce had suffered “no real hardship” and, in any event, that he should receive a credit for his pre-trial contributions to her supportand that of their child, asserting that he had overpaid by as much as $34,484.

He adduced summaries of the payments he claimed to havemade as well as his bank account records supporting those summaries. [73] The trial judge, when explaining the purpose of closing remarks in a trial to Ms. Gaunce, recognised that she had raised theissue of retroactive spousal support by stating that, while incomes were not disputed, “there’s a question about retroactive, and then theother issue with spousal is duration, whether it should continue… and if so for how long”. However, in her final submissions, Ms.

Gauncesimply said, “During trial, you were presented with evidence proving my claim for ongoing spousal support and child support, bothretroactive and current,

Section 7 expenses, division of property including pensions, divorce and costs”, and she identified “retroactivechild and spousal support” as the fourth issue she would address in her closing arguments. When she spoke to that issue, Ms. Gaunce said: I do concede, based on line 150 of both of our income from 2016 to 2019, the retroactive spousal support owing for mid-range would be$12,192 and $31,600 for the high end. I trust the Court’s decision on what is right and fair. As far as the spreadsheets put together by [Mr.Gaunce’s new partner], it has been proven both in trial and in the written submissions that numerous mistakes have been made incalculating spousal support, child support,

Section 7 expenses, and retroactive support. … I’ll go on to child support now. Evidence regarding child support has been provided to the Court as to what was to be owed according toline 150 of our income tax returns from 2016 to 2019. According to this, $3,264 would be owed retroactively. I ask the Court to considerthis amount true to fact. Moving forward, I also ask the Court to base ongoing child support on line 150 of our tax returns and until [theparties’ child] is no longer a child within the meaning of the Divorce Act. … Retroactive child and spousal support.

The Court is not bound by the Spousal Support Advisory Guidelines mid-range in retroactiveadjustments. Property is an integral component of the support determination in this case. The Court knows what it costs to carry the familyhome. [Mr. Gaunce’s] request is basically that he be repaid all of that cost and then some. That is not the purpose and intent of a supportorder. The Court can also choose an amount that is different from the support guideline amount so long as there are reasons given as to why ithas done so. The calculated ranges are not binding on the Court.

[Mr. Gaunce’s lawyer] is giving evidence of tax rates in his surrebuttal brief. That is not evidence properly before the Court. It was not put in at trial and it is hearsay and opinion. It would be an error in law to rely on it. I ask the Court to consider the Court of Appeal case law I have given on this issue in my trial brief on page 16 and 17 [i.e., Linn v Frank , , 2014 SKCA 87 , 442 Sask R 126]. … (emphasis added) [ 74 ] Lastly, Ms. Gaunce summarised all of her claims for the trial judge in this way: I’ll just summarize what I’m seeking the following -- for what I am seeking, I guess, it’s just a

summary: (1) the divorce of the parties; (2) a base child support payable by [Mr. Gaunce] to myself for [the parties’ child] based on line 150 of his tax return each year until [the child] is no longer a child within the meaning of the Divorce Act ; (3) retroactive child support based on line 150 income, calculated to be $3,264, payable to myself;

(4) Section 7 expenses to be paid to me in the amount of $2,664. These are cash expenses I incurred and would like to be paid back. I request this not to be a part of any property calculation.

(5) Ongoing

Section 7 expenses to be paid in the amount of 70 percent from [Mr. Gaunce] to myself;

(6) Retroactive spousal support payable to myself in a lump sum of $17,000 plus current owing arrears [Note: this is the first time this amount is mentioned];

(7) Spousal support payable by [Mr. Gaunce] to myself at the high end of the range and to commence when I move out of the family home until [the parties’ child] is 18 years old.

(8) A division of family property on the following terms: (a) [Mr. Gaunce] to maintain title to the family home with [Mr. Gaunce] ordered to take on the mortgage, taxes, and all costs of the home; (

b) court-ordered costs, cost arrears in the amount of $2,500 payable by [Mr. Gaunce] to myself. I request this not to be a part of any property calculation and be paid in cash, as these were costs for counsel fees I had to incur. (

c) Maintenance Enforcement arrears and outstanding support payments to be paid in full. (

d) A spousal rollover of pension from [Mr. Gaunce] to myself in the amount of $146,739.22, with the rollover amount to include interest from the date of petition until date of transfer into Alera [ sic , “a LIRA” or locked-in retirement account] in my name. The respondent and I will otherwise retain the assets in our current possession and name and be responsible for our own debts. THE COURT: I’m, I missed the last one. Could you just repeat the last one, (e)? MS. GAUNCE: You bet. (

e) The respondent and I will otherwise retain the assets in our current possession and name and be responsible for our own debts. (

f) That I will be able to vacate the home. And finally,

(9) I request that I shall be granted costs of this action based on column 2 from the tariff of cost or, if desired, the Court can consider the formal offers that have been previously made after a decision is delivered. Those are my submission, My Lord. I’m happy to answer any questions– you -- you have. [ 75 ] Notably, Ms. Gaunce did not adduce any evidence or make any oral or written submissions with a view to establishing her entitlement to retroactive spousal support or as to how she had arrived at the “lump sum of $17,000” as being owing.

As noted below, her written explanation of what she meant when she said that Mr. Gaunce owed her $3,264 in retroactive child support is not in accordance with the law or the Guidelines . 2. $3,000 award of retroactive child support [ 76 ] In D.B.S. , Bastarache J. said that, when determining whether to make a retroactive award of child support, courts should strive for a holistic view of the matter and decide each case on the basis of its particular facts so as to balance the payor parent’s interest in certainty with the need for fairness to the child and for flexibility.

He identified several factors for courts to consider when doing this, namely: (1) the reason for the recipient parent’s delay in seeking child support, (2) the conduct of the payor parent, (3) the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and (4) whether the retroactive award might entail hardship. [ 77 ] If a court determines that a retroactive child support award is appropriate, D.B.S. stands for the proposition that it should — as a general rule — be made retroactive to the date of effective notice by the recipient parent that child support should be paid or be increased, which should not be more than three years in the past.

However, where a payor parent has engaged in “blameworthy conduct”, the court may adjust the presumptive start date of the award to correspond to the time when the circumstances had materially changed ( D.B.S. at para 124 ). [ 78 ] As to quantum, courts awarding retroactive child support must ensure that the awards are consistent with the Guidelines but also that they fit the circumstances of the matters at hand. Relevant to this appeal, Bastarache J. wrote in D.B.S. : [109] Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award.

A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. I am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle: see Haisman v. Haisman (1994), 1994 ABCA 249 , 22 Alta.

L.R. (3d) 56 (C.A.), at paras. 79-80 . But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way that satisfied his/her obligation, no retroactive support award should be ordered. (Emphasis added) [ 79 ] Although he cited D.B.S. in his reasons, the trial judge did not fully undertake the analysis it calls for. Early in the Trial Decision , after the trial judge had identified the parties’ positions on retroactive child support, he wrote: [79] In this case, [Ms.

Gaunce] made application for interim relief after it became apparent that she could not rely upon [Mr. Gaunce] to voluntarily provide regular, adequate support for her and their son. While, as discussed below [in relation to retroactive spousal support], it is difficult on the evidence to now determine the amount of shortfall in support, it does appear that there was a deficiency. Given [Mr. Gaunce’s] debts, a lump sum award would likely entail hardship. [ 80 ] [Ms. Gaunce], in her brief of law at paras. 19 and 59(c), seeks retroactive child support of $3,264.

[ 81 ] [Mr. Gaunce] disputes this claim. In his brief of law at para. 188, he states “The Petitioner suffered no real hardship from October 2016 to January 2018”. And at para. 208 he states, “However, it is respectfully submitted that the Respondent’s financial contributions prior to January 2018, not only satisfied his statutory obligations for child support, he should in fact receive a credit for his excessive payments as outlined hereinafter.” At para. 224, [Mr. Gaunce] claims overpayment of $34,484.47. [ 82 ] I accept [Ms. Gaunce’s] claim and do not accept [Mr. Gaunce’s] claim.

For reasons discussed further below, I award $3,000 in retroactive child support payable to [Ms. Gaunce] for the period between the filing of the Petition and [the Pre-trial Interim Order ]. [80] We are not able to discern from these paragraphs or from the remainder of the Trial Decision how the trial judge determined that Mr. Gaunce was obliged to pay $3,000 in retroactive child support. In light of this, we reviewed the record to establish whether the award of $3,000 in retroactive child support was nonetheless warranted and would be sustainable in the circumstances, and we conclude that it is not.

There was simply no evidence to support the granting of a retroactive award or to establish that $3,000 was the appropriate amount of such an award; moreover, there was considerable evidence that countered it and the amount awarded. [81] Because it assists with the explanation of our overall conclusion that the order must be set aside, we begin by examining its quantum. As noted, Ms. Gaunce did not explain in oral argument how she had arrived at her claim that $3,264 was payable in retroactive child support.

However, looking to her trial brief, we find this statement (at 12): The table [i.e., of incomes and Guidelines support] shows the required payments based for child support on actual incomes for [Mr. Gaunce]. The 4 year average required payments are $987 monthly and $11,844 annually. The Court Ordered payments are $919 monthly and $11,028 annually. This leaves a shortfall in payments of $68 in monthly child support or $844 annually. Over the 4 year period from November 1, 2015 until October 31, 2020 there is a shortfall of $3,264 owing by [Mr.

Gaunce] . (Emphasis added) [82] That is, although a maximum of 16 months were at issue, Ms. Gaunce calculated the $3,264 sum on a four -year average of Guidelines support that began a year prior to the date of separation , and she included arrears of child support ordered under the Pre-trial Interim Order , which were being addressed outside this trial by the Maintenance Enforcement Office. The $3,264 sum is not, as the trial judge seemed to have understood, the difference between what Ms. Gaunce believed Mr.

Gaunce should have paid in Guidelines support after separation and what he had paid to the date of the Pre-trial Interim Order . Fatally, there is simply no justification at law or in logic for the way in which Ms. Gaunce calculated the amount she claimed was owing. In these circumstances, no deference is owed to the trial judge’s determination that Mr. Gaunce owed $3,000 in retroactive child support. [ 83 ] Using their incomes, if Mr.

Gaunce had been required to pay Guidelines support from the date of separation, it would have been payable at $997 per month in 2016 (or $2,991 for three months), $1,109 per month in 2017 ($13,308 for the year), and $979 for January of 2018.

As such, if it had been ordered, total Guidelines support payable for October of 2016 to February of 2018 would have been $17,278, which roughly corresponds to the $17,033.66 that the trial judge later calculated was payable in child support when he addressed retroactive spousal support (see the table at para 118 of the Trial Decision ). [ 84 ] Unfortunately, there is no finding in the Trial Decision as to how much Mr. Gaunce had actually paid in support of the parties’ child during the 16-month period in question. Based on his evidence (see paragraph 118 of the Trial Decision ), Mr.

Gaunce made approximately $6,358 in electronic transfers to Ms. Gaunce between October of 2016 and February of 2018. Ms. Gaunce acknowledged that he had contributed funds to a joint account to which she had had access during the relevant timeframe, although she took issue with capricious way in which he had made those payments and with their amounts. She also conceded that Mr. Gaunce had responsibility for and was paying the mortgage, utilities, insurance, and taxes in respect of the family home, as well as vehicle registration, maintenance and insurance during that time. All told, Mr.

Gaunce adduced evidence intended to prove his assertion that he had contributed $40,782 in support of Ms. Gaunce and his child, whether through e-transfers or direct payment of household expenses. [ 85 ] We agree with the trial judge’s finding that some of the direct payments Mr. Gaunce made “could not possibly constitute support” (at para 51; e.g., late payment charges, interest on late payments, etc.), but the evidence nonetheless amply established that Mr. Gaunce had contributed considerably more than $17,000 in support of the child (and Ms. Gaunce) during the relevant time.

As such, we conclude that the trial judge made a palpable and overriding error when he said “while… it is difficult on the evidence to now determine the amount of shortfall in support, it does appear that there was a deficiency ” (at para 79; emphasis added). This is because, on the available evidence , there was no such deficiency. [ 86 ] Moreover, this error taints what we understand was a finding by the trial judge that Mr. Gaunce was guilty of blameworthy conduct because he had failed to “voluntarily provide regular, adequate support for [Ms. Gaunce] and their son” ( Trial Decision at para 79).

In D.B.S. , Bastarache J. wrote that “a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour”, remarking that the question of whether a payor parent is engaging in such conduct is subjective (at para 108).

Acknowledging that objective factors are nonetheless relevant to the inquiry, Bastarache J. suggested that, when assessing the reasonableness of a payor parent’s belief that they have satisfied their obligations, courts “could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met” (at para 108). [ 87 ] When they are compared in this case, the Guidelines amounts and the evidence of Mr.

Gaunce’s contributions to the support of the child fail to establish that he unreasonably held the belief that he had satisfied his obligations in that regard for the period in question. As such, although the finding of “blameworthy conduct” is only implicit in the Trial Decision , we cannot sustain it. On this point, we note further that the trial judge found that the impugned conduct had been the impetus for Ms. Gaunce’s application for interim relief. That application, in which Ms. Gaunce did not seek retroactive support, resulted in the Pre-trial Interim Order .

That order came just three months after the date of the petition. Lastly, we observe that the trial judge found that “a lump sum award would likely entail hardship” to Mr. Gaunce (at para 79). On this basis, we are unable to conclude that an award of retroactive child support predating the Pre-trial Interim Order was warranted. [ 88 ] On the whole of it, we conclude that, having regard to all the circumstances, Mr. Gaunce appears to have contributed to his

child’s support in a way that satisfied his obligation and, therefore, no retroactive support award should have been ordered (D.B.S. at para109).

We allow the appeal on the grounds that the trial judge erred in principle and on the evidence when he awarded $3,000 ofretroactive child support, and we set aside that award. 3. $12,000 award of retroactive spousal support [89] Generally speaking, when a party at trial seeks to raise a new claim for relief not raised in their pleadings, the court should notgive such relief without first offering the party opposite, if taken by surprise, an opportunity for an adjournment. Here, Mr. Gaunce saidhe had overpaid support prior to the Pre-trial Interim Order, and he took no objection to the fact that Ms.

Gaunce had argued for an awardof retroactive spousal support without having claimed such relief in her petition. It is troubling, however, that the trial judge did notaddress her request for a retroactive spousal support order through any legal framework. There is no analysis of Ms. Gaunce’s entitlementto such an order in the Trial Decision and, although there is a recognition that the SSAG applied, the trial judge appears to have simplyaccepted Ms. Gaunce’s dollar-value claim as establishing that $17,000 was owing by Mr. Gaunce for retroactive spousal support.

He didnot consider how that amount had been calculated, whether there was any evidence to support it, or whether, on the whole of it, Ms.Gaunce had made the case for a retroactive award in that amount. [90] Speaking for a unanimous Court in Kerr, Cromwell J. remarked that “there is no presumptive entitlement to spousal supportand, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests” (atpara 208).

Justice Cromwell held that courts must take into account considerations similar to those set out in D.B.S., in the context of childsupport, when determining whether a retroactive award of spousal support is appropriate.

As noted, the relevant considerations are these:“the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive awardmay occasion on the payor spouse” (at para 207; see also MacLennan v MacLennan, 2021 SKCA 132 at para 98; Jones v Jones, 2017SKCA 46 at para 91, 95 RFL (7th) 43; and M. v M. 2012 SKCA 55 at para 23, 46 RFL (7th) 24). None of these considerations wereaddressed in argument at trial or in the reasons for awarding retroactive spousal support under the Trial Decision.

Moreover, when wefollow the guidance in Kerr and look to the relevant evidence and findings of fact in the Trial Decision, we conclude that Ms. Gaunce didnot establish an entitlement to retroactive spousal support. [91] We begin with the timeframe. In D.B.S., Bastarache J. referred to the date of effective notice of a claim for support as the“general rule” and “default option” for the commencement date of a child support order (at paras 118 and 121).

In Kerr, Cromwell J.recognised the date of the initiation of proceedings for spousal support “as the ‘usual commencement date’, absent a reason not to makethe order effective as of that date” (at para 211, quoting MacKinnon v MacKinnon (2005), (ON CA), 75 OR (3d) 175at para 24 (CA); see also, M. v M. at para 22). [92] On the face of the transcript of the trial, Ms. Gaunce did not adduce evidence relevant to, and she made no submissions as to,the reason why she should receive an award of retroactive spousal support or why such an award should be backdated to the date ofseparation.

As noted earlier in these reasons, there was no delay in her application for and receipt of interim spousal support under the Pre-trial Interim Order and she conceded that Mr. Gaunce had paid the major household bills preceding that interim order. Furthermore, Ms.Gaunce did not adduce evidence or argue that her standard of living had been markedly lower than it was while she lived with Mr. Gaunce. [93] Setting aside the fact that Ms.

Gaunce had not made a formal claim for spousal support from the date of separation, based onthe evidence in the trial, it is our finding with respect to child support (see above) that the maximum timeframe that could have been atissue for retroactive support purposes was from the date of the petition (September 27, 2017) to the effective date of the Pre-trial InterimOrder (February 1, 2018), or just over three months.

Therefore, if she had established an entitlement to it, it was an error for the trial judgeto have awarded spousal support backdated to the date of separation (October 12, 2016). [94] The trial judge must be taken as having concluded that Mr. Gaunce had the means to pay spousal support from the date ofseparation to the Pre-trial Interim Order. We note that he found that Mr. Gaunce’s income was $116,460.55 in 2016, $129,723.99 in2017, and $114,320.62 in 2018. When addressing property division in the Trial Decision, he said that it would be burdensome to saddleMr.

Gaunce with a significant cash equalisation payment. We do not, however, consider that statement as a finding that it would be ahardship for Mr. Gaunce to pay spousal support for a time before the Pre-trial Interim Order. However, when addressing retroactive childsupport, the trial judge stated that it would “likely entail a hardship” to Mr. Gaunce to order a lump-sum award. As the inquiry in thisrespect under D.B.S. is the same as it is under Kerr, this assessment of hardship must carry through to the consideration of whether aretroactive award of spousal support is warranted. [95] The trial judge found that Ms.

Gaunce had earned $9,764.82 in 2016 (or $814 per month), $15,451.35 in 2017 (or $1,288 permonth) and $33,136 in 2018 (or $2,761 for January), which roughly equates to an income of $20,654 over 16 months (an average of$1,291 per month). As recognised in Kerr, the expense side of the ledger is important for purposes of an award of retroactive spousalsupport—because it speaks to the recipient spouse’s needs at the time the support should have been paid. [96] In that regard, we reiterate that Ms. Gaunce conceded that Mr.

Gaunce had had responsibility for and was paying the mortgage,utilities, insurance, and taxes in respect of the family home, as well as her vehicle registration, maintenance and insurance, from Octoberof 2016 until February of 2018. She acknowledged that he had contributed funds to a joint account. It is fair to say, however, that Ms.Gaunce’s focus at trial was to attack Mr. Gaunce’s evidence about the amounts he claimed to have paid or the timeliness of his paymentsof certain household expenses. The latter approach arguably established that Mr.

Gaunce’s conduct in the matter was either lackadaisicalor slipshod, but it does not—as we noted earlier—rise to the level of blameworthy conduct that calls out for an award of retroactivesupport. On the subject of Mr. Gaunce’s conduct, there was no suggestion that he had been deceitful, had concealed assets or had failed tomake appropriate disclosure (D.B.S. at para 106). [97] Ms. Gaunce did not, however, adduce evidence to quantify her personal, household, or childcare expenses from the date ofseparation onward, other than to state that she had reimbursed Mr.

Gaunce $40 each month for the costs of her mobile-phone service,which was apparently under a joint account. She led no evidence of an ongoing deficit during the time in question or that she hadaccumulated debt during that time. This absence of evidence of an unmet need is—in our assessment—fatal to her claim for retroactivespousal support. In Kerr, Cromwell J. adapted the judgment in D.B.S. to the question of whether a spouse is entitled to an award ofretroactive support by writing that “A [spouse] who underwent hardship in the past may be compensated for this unfortunate circumstance

through a retroactive award. On the other hand, the argument for retroactive [spousal] support will be less convincing where the [spouse] already enjoyed all the advantages (s)he would have received [from that support]” (at para 212). [ 98 ] To summarise at this point, setting to one side that the petition did not make a claim for retroactive support and that the presumptive period at issue was just three months, the evidence at the trial failed to address—let alone establish—the considerations Kerr says are necessary for an award of retroactive spousal support to be made. The evidence did not establish that Ms.

Gaunce had had a need or a hardship (other than as typically results from marital breakdown) that had gone unaddressed during the period in question. She did not directly advance any evidence or address in her arguments what her needs or standard of living had been during that time or at all. In addition, she failed to definitively set out her claim to spousal support in terms of what she understood Mr. Gaunce had paid or the amounts she felt remained owing by him.

With all that being absent from the evidence, the trial judge could not have properly exercised his discretion to award spousal support retroactive to the date of separation because he could not have weighed the considerations identified in Kerr . [ 99 ] Moreover, as we will now demonstrate, the $12,000 award was inappropriate on any view of the record. All we know from it is that Ms.

Gaunce believed that she was entitled to receive between $12,192 and $31,600 in spousal support from October of 2016 until February of 2018, and that, in her closing remarks at trial, she asked for a $17,000 lump-sum order, without indicating how she arrived at that amount. The trial judge discounted that amount to $12,000, stating: [120] I accept [Ms. Gaunce’s] claim for retroactive spousal support and award a lump sum of $12,000 payable by [Mr. Gaunce] to [Ms. Gaunce]. My reasons for this lower amount are explained below and have regard to the division of property and hardship to [Mr.

Gaunce], given his financial situation. [ 100 ] Although we have concluded that the trial judge misapprehended the need for a discount, the amount he awarded cannot be reconciled with the evidence of the parties’ incomes and the evidence of Mr. Gaunce’s payments or on the trial judge’s analysis of the issue. One reason for this is that the trial judge seems to have gauged the accuracy or validity of Ms. Gaunce’s $17,000 retroactive spousal support claim by measuring it against what he calculated Mr.

Gaunce should have paid in both retroactive child and spousal support under the SSAG- with-child formula. [ 101 ] Looking to the Trial Decision , the trial judge observed that, if Mr. Gaunce’s claims as to the amounts he had paid were accepted, he would altogether still owe $15,152.89 of child and spousal support for the period between October 12, 2016, and February 1, 2018: [119] So, even if I did accept [Mr.

Gaunce’s] summaries , the total amount he claims as provided in support (40,782.13) is much less than what would be payable under the Guidelines and ChildView calculations for child and family support (totalling 55,935.02, if the amounts for May 2017 are removed to compensate for the lack of a

summary page for [Mr. Gaunce] for the same month). The difference is $15,152.89 in favour of [Ms. Gaunce] . (emphasis added) [ 102 ] G

[…]