Ghremida v Elgahwas, 2023 SKCA 23

Court of Appeal for Saskatchewan Docket: CACV3754 Citation: Ghremida v Elgahwas , 2023 SKCA 23 Date: 2023-02-09 Between: Shukri Ghremida Appellant (Respondent) And Iman Elgahwas Respondent (Petitioner) Before: Leurer, Tholl and Drennan JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Tholl The Honourable Madam Justice Drennan On appeal from: 2020 SKQB 311 , Regina Appeal heard: January 9, 2023 Counsel: Christopher Butz for the Appellant Jim Vogel, K.C. and David Flett for the Respondent Leurer J.A. I.

INTRODUCTION [ 1 ] This appeal concerns the payment of child support by a high-income parent. [ 2 ] The appellant, Dr. Shukri Ghremida, and the respondent, Iman Elgahwas, separated after a long marriage. There was disagreement about many matters, including the division of family property, spousal support, parenting and child support. All these issues were addressed in a judgment of a Court of Queen’s Bench judge, delivered after a trial: Elgahwas v Ghremida , 2020 SKQB 311 [ Trial Decision ]. [ 3 ] Dr.

Ghremida appeals from one part only of the Trial Decision , being the amount of child support the trial judge ordered him to pay to Ms. Elgahwas. This was fixed by the trial judge with reference to tables found in the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. The issue in this appeal is whether child support should have been calculated on some other basis, given the age of the children and Dr. Ghremida’s high income. [ 4 ] I would dismiss Dr. Ghremida’s appeal. My reasons follow. II. BACKGROUND [ 5 ] The parties married in 1997. They have three children.

At the time of the trial, the children were 15, 19 and 21 years of age and attended school full time – the youngest in high school and the older two at the University of Regina. [ 6 ] The parties began living separate and apart in or around 2014. Dr. Ghremida moved out of the family home in 2017. Although this point was in dispute, the trial judge determined that all three children still primarily reside with Ms. Elgahwas. [ 7 ] Dr. Ghremida is a plastic surgeon. One of the issues at the trial was his income for the purposes of the calculation of child and spousal support.

The matter was complicated because he conducts his medical practice through a professional services corporation and because of the COVID-19 pandemic. At the end of the day, the trial judge found Dr. Ghremida’s income for support purposes to be $1,097,877 per annum. [ 8 ] At trial, Dr. Ghremida conceded responsibility for paying support in connection with the youngest child but disputed that it was payable in connection with the two adult children. Ultimately, the trial judge determined that support should be paid in relation to all three children. [ 9 ] Dr. Ghremida also disagreed with Ms.

Elgahwas as to the quantum of support for those children for whom support was payable. On this issue, the trial judge found, based on the evidence, that he was “unable to conclude the table amount for support [under the Guidelines ] is not appropriate in this case” ( Trial Decision at para 138). The amount of support for the three children, as determined from the tables found in the Guidelines , is $17,816 per month. III. ISSUES [ 10 ] As I will explain, the outcome of Dr. Ghremida’s appeal is dictated by the answer to two questions: (

a) Did the trial judge err by failing to reduce the amount of child support payable to Ms. Elgahwas to reflect that Dr. Ghremida

had been directly paying, and was prepared to continue to directly pay, many of the children’s expenses? (

b) What order, if any, should be made because Dr. Ghremida has failed to pay the full amount of child support ordered in the Trial Decision pending the outcome of his appeal ? IV. ANALYSIS A. Did the trial judge err by failing to reduce the amount of child support payable to Ms. Elgahwas to reflect that Dr. Ghremida had been directly paying, and was prepared to continue to directly pay, many of the children’s expenses? [ 11 ] Dr. Ghremida initially appealed several parts of the Trial Decision . However, all issues have now been resolved except the amount of child support he was ordered to pay to Ms.

Elgahwas. [ 12 ] Although other arguments were identified in his factum, at the hearing of his appeal Dr. Ghremida limited his appeal on the child support issue to a single ground, being the proposition that the trial judge erred by failing to reduce the amount of support payable to Ms. Elgahwas to reflect the fact that he had been directly paying, and was prepared to continue to directly pay, many of the children’s expenses himself.

He also advances several arguments that he presents as being subsidiary to this main point. [ 13 ] As I will explain, in the circumstances of this case, I can find no error in the trial judge’s approach to this issue. I will begin my explanation of this conclusion by identifying the key provisions in the Guidelines that touch on this issue. I will then review the Trial Decision so far as it relates to issues of child support. Finally, I will discuss Dr. Ghremida’s specific arguments as to why he says the trial judge was in error. 1.

The Guidelines [ 14 ] Section 3(1) of the Guidelines establishes the presumptive rule that support for children under the age of majority is to be calculated with reference to the tables contained therein: Presumptive rule 3

(1) Unless otherwise provided under these Guidelines , the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. [ 15 ] As is well-known, s. 7 of the Guidelines addresses special and extraordinary expenses that are not otherwise accounted for in the Guidelines ’ tables. In the context of this appeal, the most relevant of these are “expenses for post-secondary education”, as referred to in s. 7(1)(e). In this regard, Dr.

Ghremida agreed that proper post-secondary expenses for the children are to be paid by him as an amount that is over and above the $17,816 per month child support fixed by the trial judge, or as may be altered in this appeal. [ 16 ] Because two of the children are above the age of majority, the trial judge was required to consider s. 3(2) of the Guidelines when determining the amount of child support. That provision states as follows: Child the age of majority or over

(2) Unless otherwise provided under these Guidelines , where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 17 ] Given Dr. Ghremida’s income, the trial judge was also required to apply s. 4 of the Guidelines , which provides as follows: Incomes over $150,000 4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (

a) the amount determined under

section 3; or (

b) if the court considers that amount to be inappropriate, (

i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under

section 7. [18] As can be seen from these provisions, a judge tasked with fixing the amount of child support must do so with reference to thetables referred to in s. 3(1)(a), unless the table amount is “inappropriate”, “having regard to the condition, means, needs and othercircumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of thechildren”, to quote from both ss. 3(2)(

b) and 4(b)(ii) of the Guidelines. 2. The Trial Decision [19] The trial judge began his consideration of child support issues by noting that the two adult children were attending universityon a full-time basis. He observed that there was “no evidence tendered regarding either of them working, or being expected to work” and“no evidence tendered regarding their ability to contribute to their own educational expenses” (at para 125).

He found that the evidenceallowed him “to conclude both parents accept, perhaps presume, they should be providing financially, completely, for these children” (atpara 126). [20] The trial judge then noted that he was required to “consider whether child support pursuant to the Guidelines remainsappropriate” (at para 127). He referred to Julien D. Payne & Marilyn A. Payne, Canadian Family Law, 7th ed (Toronto: Irwin Law, 2017)at 409, as establishing several applicable principles: The governing principle in determining whether child support should be ordered is reasonableness.

There is no arbitrary cut-off pointbased on age or academic achievement, although the onus of proving a child’s continued financial dependence on his or her parents growsheavier as these increase. There must be some degree of congruency between the financial circumstances of the parents and the child’seducational plans. Parents of modest means may not be able to afford to underwrite their children’s post-secondary education.

Middle-class parents may be called on to make some sacrifice to put their children through college, but they are not required to assume more debtthan they can repay or sell capital assets if their estates are modest.

They may, nevertheless, be expected to make reasonable adjustmentsto their lifestyle by reducing their consumption of luxuries. (Footnotes omitted) [21] The trial judge identified Geran v Geran, 2011 SKCA 55, 97 RFL (6th) 68 [Geran], as the “leading authority in Saskatchewanwith respect to the determination of the appropriateness of Guidelines support involving adult children” (at para 129), quoting extensivelyfrom that decision.

Following all of this, he explained why he was satisfied that support should be paid in relation to the two adultchildren: [130] In this case, it is apparent these parents have no expectation the adult children should provide for their living expenses or theirpost-secondary education costs. The means of the parents are considerable and they continue to completely share these means with all ofthe children. [131] Accordingly, I am unable to determine the application of the Guidelines under this heading is inappropriate. The respondent isspending significant funds on the adult children.

However, that is a choice he is making. There is a RESP to assist with the payment ofeducational expenses. Why that has not been accessed was not explained in the evidence. The children’s ongoing access to whatever fundsthey desire was not contested by either parent. [22] The trial judge concluded this part of his analysis by stating that, “as the two older children pursue their post-secondaryeducation … ongoing Guidelines support remains appropriate for this family” (at para 132).

I understand this to be a determination by thetrial judge that support for each adult child should be calculated “as if the child were under the age of majority”, to quote from s. 3(2)(

a) ofthe Guidelines. [23] Having reached this conclusion, the trial judge turned his attention to the amount of child support that he should order to bepaid in light of s. 4 of the Guidelines, given the level of Dr. Ghremida’s income. In this context, the trial judge referred to Gould v Gould,2013 SKCA 34, 29 RFL (7th) 47 [Gould], as providing guidance “regarding the application of s. 4 of the Guidelines” (at para 133), andPotzus v Potzus, 2017 SKCA 15, 91 RFL (7th) 290 [Potzus], as discussing “the considerations when determining support from highincomes” (at para 134).

After quoting extensively from these cases, the trial judge reiterated that the family before him “appears to havelived, and continues to live, an extremely affluent lifestyle” and are “spenders of the considerable wealth generated by [Dr. Ghremida’s]income” (at para 135). He gave specific examples of the indicia which led him to this conclusion. He then identified the arguments madeto him by Dr. Ghremida, as follows: [136] The respondent argues table support is excessive and has done little more than allow the petitioner to acquire savings andinvestments.

However, again the respondent’s obligation to pay support, and pay additional considerable sums to his adult children, is achoice he makes. It is not thrust upon him as a result of being required to pay table support for his children. The fact he does pay thisnecessarily means the petitioner is not required to make those payments. That, and her own frugality, has allowed her to build herinvestments. This does not, therefore, determine whether Guidelines support is appropriate. [24] The trial judge quoted from Francis v Baker, (SCC), [1999] 3 SCR 250 at para 52 [Francis], and severalcases that have followed it.

After doing all of this, the trial judge expressed his conclusion on the issue of the quantum of child supportthat should be paid by Dr. Ghremida, as follows: [138] On the basis of the evidence at this trial, I am unable to conclude the table amount for support is not appropriate in this case. Thisfamily lived a standard of living commensurate with the wealth generated from the respondent’s income. The mother has provided for thechildren, and according to her evidence, has regularly provided them with cash according to their wants and needs. Again, this was, and is,an affluent family.

The child support at the Guidelines amount reflects that. The evidence to suggest a deviation from the Guidelines isneither clear nor compelling. Merely suggesting the amount is high, or too much, does not provide that evidentiary base. [139] Accordingly, the respondent is ordered to pay Guidelines support based on the income determined commencing December 1, 2020

and on the first of each month thereafter until varied by agreement or further court order. In the event the parties are unable to agree on this amount, they have leave to have this aspect returned to me for determination. [ 25 ] One other part of the Trial Decision is relevant in this appeal. During the parties’ time together, Ms. Elgahwas was a full-time mother and homemaker, having set aside a career as a nurse. The trial judge found that she “has a claim to both compensatory and non- compensatory [spousal] support” that was “not disputed” by Dr. Ghremida (at para 143).

Carol Rogerson and Rollie Thompson’s Spousal Support Advisory Guidelines ([Ottawa]: Ministry of Justice, 2008) [ SSAG ], provided a range of support at Dr. Ghremida’s income in these amounts: $35,267 low; $38,208 mid; and $41,150 high (see Trial Decision at para 154). Notwithstanding this, the trial judge determined that spousal support in the amount of $20,000 per month was appropriate. In fixing this amount, the trial judge took into account that Ms. Elgahwas would be receiving a large payment from Dr.

Ghremida as part of the division of family property and, for a time, would be in receipt of child support payments that would increase her standard of living from what it would be based simply on the payment of spousal support: [155] [Ms. Elgahwas] will be receiving child support in a reasonably considerable sum now. This, together with a spousal support order, will assist in relieving the economic disadvantages to the petitioner as a result of the breakdown of the marriage.

However, as indicated, the amounts must not have the effect of transferring wealth from one party to another. [156] In these circumstances, I determine an award of spousal support below the range provided by the SSAG is appropriate. I determine a monthly support award in the amount of $20,000 is appropriate to address those issues set forth in the Divorce Act [RSC 1985, c 3 (2d Supp)].

But they must take into account the lifestyle the petitioner enjoyed throughout the marriage. [ 26 ] The trial judge determined that spousal support “shall continue for an indefinite period until varied by further court order” (at para 157). 3. Dr. Ghremida’s arguments [ 27 ] Dr. Ghremida agrees that the trial judge properly oriented himself in the law.

More specifically, he agrees that the trial judge was required to order child support determined from the Guidelines tables unless that amount was “inappropriate”, “having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children” ( ss. 3(2) (

b) and 4 (b)(ii) respectively). He also agrees that the trial judge quoted from the applicable case authority that establishes the principles that govern the determination of this issue. [ 28 ] It is also important to understand that Dr. Ghremida now agrees that the adult children are “children of the marriage”, within the meaning of the Divorce Act , RSC 1985, c 3 (2d Supp), for whom support must be paid.

In connection with this, he also does not dispute that, outside of what the parents may provide to them, the adult children have no income or resources of their own, and none should be attributed to them, for the purposes of calculating an appropriate amount of support. He also appears to have shifted the focus of some of his arguments from what he had made at trial. [ 29 ] Dr.

Ghremida’s overarching argument is grounded in the undisputed fact that, after the parties’ separation, he continued to pay many of the children’s expenses directly and did so with what may be colloquially referred to as an “open cheque book”. In this regard, although pending trial Dr.

Ghremida was subject to an order to pay interim child support in the amount of $10,000 per month and interim spousal support of $12,000 per month, in addition to paying for all of the university expenses for the two adult children, he continued to provide the children with vehicles and credit cards which they were able to use to pay for almost any item or charge that they saw fit. The trial judge described this open cheque book approach as follows: [126] … [The adult children] drive luxury vehicles completely funded by the respondent, with the petitioner contributing to the operational expenses.

They have their extra-curricular activities, food, etc., funded completely by the respondent and the petitioner. They receive cash from the respondent and the petitioner. They each have ready access to a credit card or a debit card for their personal expenses, which cards are supplied by the respondent. There is apparently no tracking of those expenses by either of the parents. These two adult children are allowed to spend what they want, when they want, and expect to be fully supported by their parents. And, that expectation is fully accepted by each of the parents. [ 30 ] In this factual context, Dr.

Ghremida’s overarching submission is that the trial judge erred by not reducing the table amount of support by an unidentified sum to reflect that he had directly paid, and was prepared to continue to directly pay, many of the children’s expenses himself and to do so without limit or restriction. He says that the fact that he provided the children with vehicles, and credit and debit cards used to purchase clothes, meals and other things, meant that Ms. Elgahwas was, and in the future will be, relieved from paying these expenses, which would otherwise justify the high child support order made against him.

Then, bringing this into the applicable standard of review, Dr. Ghremida argues that this was a “failure to consider a required element of [the applicable] legal test, or similar error in principle” (quoting Housen v Nikolaisen, 2002 SCC 33 at para 36 , [2002] 2 SCR 235). He joins this with a submission that the trial judge “made an error in principle by determining that [his] continued and direct support of the children following separation … was simply his own choice and not a relevant factor in displacing the presumption towards the Guidelines amount of child support”. The origin of this

interpretation of the Trial Decision is the trial judge’s statement that Dr. Ghremida’s expenditure of significant funds on the children “is a choice [Dr. Ghremida] is making” (at para 131) and that the payment of “additional considerable sums to his adult children, is a choice he makes”, and one “not thrust upon him as a result of being required to pay table support for his children” (at para 136). [ 31 ] I begin my consideration of Dr.

Ghremida’s principal submission with the observation that, apart from saying he should obtain credit for his payment of many of the children’s expenses, nowhere in his argument to this Court did he seek to show that the monthly amount of child support ordered by the trial judge, i.e., $17,816 per month, was “inappropriate”, “having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children”, to quote (again) from both ss. 3(2) (

b) and 4 (b)(ii) of the Guidelines . More specifically, he did not quantify the reduction he was seeking from the support that was to be paid directly to Ms. Elgahwas. Understood in this light, Dr. Ghremida’s submission that the support amount should be adjusted to reflect the direct payments he makes towards some of the children’s expenses is not a challenge to the amount of child support. Rather, it is an attack on the failure by the trial judge to order that some part of the child support be paid directly to the children. Said yet another way, Dr. Ghremida’s principal argument does not raise a question about the

quantum of child support but, rather, a question of to whom child support should be paid. [ 32 ] I reject the idea that the trial judge erred by not ordering direct payment of some expenses to the children. Of course, child support is usually paid to the parent with whom the child principally resides. I accept that this is not always the case. Indeed, on “the application of either or both of the spouses, a court may order support to be paid directly to the child” ( Burzminski v Burzminski , 2010 SKCA 16 at para 19 , [2010] 3 WWR 429, emphasis removed, quoting Julien D. Payne & Marilyn A.

Payne, Canadian Family Law , 3d ed (Toronto: Irwin Law, 2008) at 373. See also: Miller v White , 2018 PECA 11 at paras 47–49 , 10 RFL (8th) 251). However, in this case, the trial judge was not asked to make an order of this kind and Ms. Elgahwas is opposed to this Court making such an order. [ 33 ] I can also accept that, in some contexts, a court should make an order that has not been requested by a litigant. For example, this may be required where the best interests of a child demand an arrangement not proposed by either side to a dispute.

However, where what is at stake is simply the mechanics of how the appropriate amount of child support should be paid, I see no basis to find that the trial judge erred, in principle or otherwise, by not inquiring if it was appropriate to order that some part of the child support be paid in any other way than what occurs in the usual course; that is to say, to the parent with whom the child principally resides. [ 34 ] Of course, the other way to look at this is simply as a new argument being made for the first time on appeal and, therefore, one that should not be entertained for that reason.

In this regard, by saying for the first time in this appeal that some part of the support should be paid directly to the children, Dr. Ghremida is advancing a new argument not made at trial. As stated by Richards C.J.S., with reference to many authorities, the “settled rule, of course, is that this Court is generally loath to entertain a wholly new argument on appeal” ( Meier v Saskatchewan Institute of Agrologists , 2016 SKCA 116 at para 28 , 405 DLR (4th) 506). While the principle admits exceptions, I see no basis to apply one here.

Not only does this Court not have the benefit of the trial judge’s ruling on this issue, but had this request been made at trial, the evidence may well have been different. In these circumstances, even leaving aside the question as to when it is appropriate to order payment of child support directly to a child, a request that this be ordered cannot be considered in this appeal. [ 35 ] On the other hand, if Dr.

Ghremida’s argument is understood as an indirect attack on the quantum of support, rather than an argument about to whom support is payable, it is advanced without any attempt to explain, in a meaningful way, why the total support ordered by the trial judge was inappropriate. This understanding of Dr. Ghremida’s argument is certainly more consistent with the stance he took at trial. However, at the trial, he took what might be generously described as a piecemeal approach to identifying expenses of the three children.

Nowhere in the evidence did he quantify what overall expenses the Court should look at to determine an appropriate child support order. He did not present the trial judge with a budget, monthly or otherwise, of what he says would be reasonable expenses for the children. Instead, he simply referred to the monthly car lease payments and several months of credit card and bank statements that he had paid. Based on this, it would have been possible for the trial judge, at most, to have come to some general understanding of the types of items on which the children were spending money.

However, I can also easily see why the trial judge concluded that he was “unable to determine the application of the Guidelines under this heading is inappropriate” (at para 131). [ 36 ] As stated in Francis , “the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate” (at para 42, emphasis added). Justice Bastarache pointed out that “courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support” (at para 41).

He also later explained that the sheer size of a child support award is not alone a reason for determining it to be inappropriate since, were it otherwise, this would “ put the onus on custodial parents to justify the appropriateness of the Guideline figures in certain high-income child support cases” (at para 52). He gave many reasons for coming to this conclusion. It is for these same reasons that “evidence for departure from the Guidelines must be clear and compelling” ( Gould at para 14 , quoting Ewing v Ewing , 2009 ABCA 227 at para 46 (iv), [2009] 11 WWR 627.

Similarly, in Wetsch v Kuski , 2017 SKCA 77 at para 56 , 1 RFL (8th) 290, Caldwell J.A. observed that, to “rebut the presumption, and to deviate from the [ Guidelines ] Table amount, the evidence adduced must clearly and compellingly raise a concern that the Table amount is inappropriate”. See also: Potzus at paras 114–118 ; and Merrifield v Merrifield , 2021 SKCA 85 at paras 64 , 58 RFL (8th) 31). The trial judge’s conclusion was that the evidence did not rise to this level. I see no error in his determination on this point. [ 37 ] All of this also answers Dr.

Ghremida’s concern that the trial judge did not give a detailed explanation as to what needs and wants of the children would be met by his payment of $17,816 per month. I accept that the “recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence” ( Francis at para 43 ). However, there “must be an ‘articulable reason’ for displacing the Guideline figure” (at para 44, citing Plester v Plester (1998), 56 BCLR 56 (3d) 352 at para 153).

Later in Francis , Bastarache J. stated that he would “ leave it to the discretion and experience of trial judges to determine on a case-by-case basis whether such budgets will be required” (at para 45). In this case, recognizing that the starting point is that the table amounts are appropriate, and reflecting on the fact that the parents’ approach towards their children has been one of an open cheque book, I would agree with Ms. Elgahwas that, in these circumstances at least, it was incumbent on Dr. Ghremida to present a budget to displace the presumption that table support was appropriate.

I certainly cannot find error, either in principle or otherwise, in the trial judge’s conclusion that the presumption that support in the amount fixed by the Guidelines ’ tables had not been displaced. [ 38 ] As a further alternative, Dr. Ghremida suggests that it would have been more appropriate for the trial judge to have ordered him to provide unlimited spending opportunities to the children than to pay table amount support to Ms. Elgahwas.

Apart from the absence of any authority for an order of this kind, and the fact that the trial judge was not asked to make an order of this type, there are several other problems with this submission. [ 39 ] The first problem is that it reinforces the conclusion that Dr. Ghremida’s appeal is not genuinely grounded in an objection to the amount of support. Instead, it suggests that it is rooted in a desire to control, or to be seen by his children to control, the payments of their expenses. This view is consistent with the actions taken by Dr.

Ghremida after the Trial Decision was rendered, as discussed in the next

section of this judgment. On the facts of this case at least, this is not a proper reason to interfere with the support order made by the trial judge. [ 40 ] The second problem arises because of its inherently uncertain and discretionary character. I cannot accept that the trial judge erred by not ordering that some part of the appropriate support amount be left to Dr. Ghremida’s discretion, either as to its amount or as to whom any part of it should be paid. To allow for this would leave both Ms. Elgahwas and the children without the benefit of the various protections the law affords to ensure that appropriate child support is paid going forward.

[41] More consistent with the position he took at trial, Dr. Ghremida also submits that the child support order in this case resulted ina wealth transfer to Ms. Elgahwas. He supported this argument by asserting that she has been able to save money in the period after therendering of the Trial Decision. For her part, Ms. Elgahwas acknowledged that she has saved money from the total support that she hasreceived. However, she maintained that this was done at the cost of a diminished standard of living out of a concern that Dr. Ghremidamight, in the future, not fulfil his support obligations.

In offering these submissions, both parties made assertions of fact that were only inpart in evidence in this Court, and which were not completely admitted by the other side to be true. I will return to discuss some parts ofthis in the context of the second issue in this appeal. For the moment, I will deal with Dr. Ghremida’s submission on this point based onthe trial record. [42] Dr. Ghremida’s argument that the Trial Decision required him to pay an amount greater than what was needed for the supportof the children and thereby resulted in an inappropriate transfer of wealth to Ms.

Elgahwas might have had some currency if he had gone totrial with a specific suggestion as to what amount of child support is appropriate.

Given that he did not, it is easy to understand how thetrial judge was driven to conclude that it was appropriate (and not inappropriate) to fix support with exclusive reference to the tables.Certainly, the trial judge was alert that, in some circumstances, it is necessary to “conclude that the applicable Guideline figure is so inexcess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousalsupport” (Trial Decision at para 134, quoting Potzus at para 114, that, in turn, quoted Francis at para 41). [43] I am also mindful that, although the purpose for any award of child support is for the maintenance of the children, it is notimproper that some incidental benefit also accrue to a custodial parent (see Francis at para 41).

Indeed, in appropriate cases this is to beaccounted for in an award of spousal support. In this regard, Julien D. Payne & Marilyn A. Payne, Child Support Guidelines in Canada,2022 (Toronto: Irwin Law, 2022) at 397 [Payne 2022], states that in “assessing the amount of spousal support to be paid by a high incomespouse, the court may take into consideration the indirect benefits conferred on the applicant by a concurrent periodic child support orderin an exceptionally high amount”.

See also, Rollie Thomson, “The Chemistry of Support: The Interaction of Child and Spousal Support”(2006) 26 CFLQ 251 (WL). [44] In this case, as I have explained, the trial judge accounted for this fact when he fixed the amount of spousal support. The ideathat an alteration in the amount of child support might require a reopening of spousal support has particular resonance when it isrecognized that the trial judge fixed spousal support at an amount that would, under the SSAG, be considered to be very low.

Indeed, the$20,000 per month in ordered spousal support is only 56.7 per cent of what the SSAG identifies as a low amount of spousal support andonly 48.6 per cent of what SSAG identifies as a high amount of spousal support (see: Trial Decision at para 154). I am mindful that once apayor’s income exceeds the ceiling of $350,000, as it does in this case, the formula used for calculating the SSAG ranges are no longerpresumptive and spousal support is often ordered in an amount below the low end of the range:

Chapter 11 of the Spousal SupportAdvisory Guidelines: The Revised User's Guide, (2016). Still, these percentages illustrate how far the amount awarded deviated from theSSAG ranges. Also, of course, none of this is offered as a justification for upholding an inappropriately high award of child support.However, all of this illustrates the point made by Ms. Elgahwas, that if this Court were to interfere with the total amount of child support,it might require the reopening the question of the level of spousal support. [45] Dr. Ghremida expresses concern that the child support would be used or diverted by Ms.

Elgahwas for purposes other than themaintenance of the children. However, this objection does not allege or establish error on the part of the trial judge. Rather, the argumentis founded on an anticipatory criticism of Ms. Elgahwas. It also ignores that child support payments “made pursuant to an order of thecourt are usually within the exclusive control and management of the primary caregiving parent” (Payne 2022 at 30).

The same authorsrefer to a “presumption that the primary caregiving parent or the parent with day-to-day care of the child will act prudently with respect tospending child support payments in the best interests of the child” (at 30). They later state that in the “absence of any judicial direction tothe contrary, the payor cannot control how the basic table amount of child support is spent by the recipient parent” (at 470). See also: NoelSemple, “Whose Best Interests?

Custody and Access Law and Procedure” (2010) 48 Osgoode Hall LJ 287 at 300–301. [46] Indeed, this Court has held that, when ordering or considering a variation to child support, a court should start from thepresumption that the payee-parent will use the money appropriately for both the current and future care of the child. In Bachorick vVerdejo (1999), (SK CA), 180 Sask R 89 (CA), the payee-mother had applied to vary a child support order toincorporate the payor-father’s increased income.

The Chambers judge had allowed the variation, but ordered that $650 per month, perchild, be directed to an education trust account. This Court found that the Chambers judge erred in making this order. Justice Jacksonexplained this conclusion, stating in part as follows: [20] …. Creating a trust fund for educational purposes negatively comments upon the custodial parent’s responsibility to budgetappropriately for his or her children in the same way that paying support directly to a child does.

The court is implicitly saying thecustodial parent may be trusted with the physical and emotional well-being of his or her child but cannot be trusted to manage the child’sfinancial well-being. Justice Jackson added that “the authority to make an order as was made in this case, if it exists, should be rarely exercised” (at para 21). [47] All of this satisfies me that the trial judge did not err by routing all support payments to Ms. Elgahwas and leaving the day-to-day use of those amounts within her control.

That said, I would not want these reasons to be interpreted as passing judgment in any way onwhether a future decision by Ms. Elgahwas to stop paying some of the larger expenses that were offered as justification for the tableamount support – such as the car lease fees – might provide Dr. Ghremida with a basis to seek a variation of the amount or mechanics ofpayment of the ordered support. [48] I would, finally, address the two cases that Dr. Ghremida says most support his position in this appeal. As I will explain, eachis easily distinguishable. [49] First, Dr.

Ghremida refers to MacLennan v MacLennan, 2021 SKCA 132 [MacLennan]. In that case, this Court varied aninterim support order against a high-income parent involving adult children. Justice Kalmakoff stated that “where an adult child earnssubstantial income or has access to other funds, those are factors that can shift the baseline circumstances of the adult child away fromthose of a minor child and render the table amounts inappropriate” (emphasis added).

However, this comment was made in a contextwhere Kalmakoff J.A. was explaining that a child support order must be set in an amount that properly reflects the purpose for which it is

given. It is for this reason that, immediately before the statement that Dr. Ghremida relies on, Kalmakoff J.A. explained, with reference to Geran , that “ one of the basic assumptions underlying the calculation of the table amounts in the Guidelines is that children under the age of majority have no income or resources of their own” (at para 56). As I noted earlier, Dr. Ghremida has taken no issue with the trial judge’s conclusion that, outside of what he and Ms.

Elgahwas may provide, the adult children have no income or resources of their own, nor should any be attributed to them for the purposes of calculating an appropriate amount of support. [ 50 ] Dr. Ghremida also relies on the fact that, in MacLennan , Kalmakoff J.A. justified this Court’s decision to vary the order made in that case by explaining that there was “also evidence that [the support-paying parent] continued to pay all the expenses related to the family home, as well as the expenses of the adult children who were enrolled in post-secondary education” (at para 69).

However, this comment was offered in the context of shared parenting with a nesting arrangement, whereby the children continued to live in the family home while the parents “obtained separate rental accommodations for themselves, where they would reside in their off weeks” (at para 9). Justice Kalmakoff understandably explained that all of this “ adds a wrinkle to the analysis because it displaces several of the assumptions that underlie the calculation of child support and affects the nature of the analysis” (at para 71). [ 51 ] Finally in relation to MacLennan , I see no support for Dr.

Ghremida’s position in the reference by Kalmakoff J.A. of the need to account for the direct payment of university expenses in that case. This is because here, the parties agree that the amount at issue is separate and apart from the children’s university expenses. As noted earlier, the parties agree that Dr. Ghremida’s responsibility for paying these expenses arises under s. 7 of the Guidelines . Neither the amount of these payments, nor the question as to whom they are to be paid, are at issue in this appeal. [ 52 ] In short, I read nothing in MacLennan that would support Dr. Ghremida’s position in this appeal.

I would similarly distinguish Devathasan v Devathasan , 2019 BCSC 661 , 27 RFL (8th) 388. In that case, the judge fixed the amount of support that was to be paid by a spouse, taking into account that the financial burden on the support-receiving spouse was reduced when the adult child began living part- time away from home to attend school. This is not the situation here. [ 53 ] Returning back to Dr. Ghremida’s overarching submission, I am satisfied that the trial judge did not ignore that Dr.

Ghremida had, in the past, directly paid many of the children’s expenses and that he was willing to do so on a go-forward basis. As I read the Trial Decision , the trial judge simply concluded that this practice was, in this case at least, irrelevant to the question that he was asked to decide; namely, what amount of child support was appropriate having regard to the conditions, means, needs and other circumstances of the children and the financial ability of each spouse to contribute to the support of the children.

The trial judge’s reference to any continued expenditure of funds on the children being a “choice” on the part of Dr. Ghremida simply reflects that, after the final support order was put into place on December 1, 2020, Ms. Elgahwas would be responsible for paying for the expenses that Dr. Ghremida had previously been funding directly and Dr. Ghremida would therefore no longer have to do so. 4. Conclusion on Issue A [ 54 ] The trial judge did not err by failing to reduce the amount of support payable to Ms. Elgahwas to account for the fact that Dr.

Ghremida had been directly paying, and was prepared to continue directly pay, many of the children’s expenses himself, or in any other way. The trial judge also did not err in any of the other ways that Dr. Ghremida alleged in this appeal. B. What order, if any, should be made because Dr. Ghremida has failed to pay the full amount of child support ordered in the Trial Decision pending the outcome of his appeal? [ 55 ] An additional issue was introduced into this appeal because, pending the hearing of his appeal, Dr.

Ghremida has refused to pay spousal support and child support in the full amounts that were ordered under the Trial Decision . [ 56 ] Under Rule 15(1) of The Court of Appeal Rules , as it existed at the time, unless ordered by the judge appealed from, or by a judge of this Court, “the service and filing of a notice of appeal does not stay the execution of a judgment or an order awarding … alimony, or maintenance for a spouse, child or dependant adult”. Dr. Ghremida filed a notice of appeal but made no application for a stay. Accordingly, because of the Trial Decision , Dr.

Ghremida was obliged to pay support to Ms. Elgahwas totalling $37,816 per month ($17,816 child support, $20,000 spousal support) beginning on December 1, 2020. [ 57 ] Dr. Ghremida did not do this. Instead, he continued to pay Ms. Elgahwas the amount he had been paying on an interim basis, i.e., child support of $10,000 and spousal support of $12,000, for a total of $22,000 per month. By doing this, Dr. Ghremida, in effect, sidestepped the available procedure to request a judicial stay of the Trial Decision and asserted a self-help remedy. [ 58 ] Ms. Elgahwas took steps to enforce her support entitlements.

This resulted in garnishments and, eventually, a payment out of court of garnisheed funds of an amount close to $200,000 in the spring of 2022. However, even after that, Dr. Ghremida continued to pay only part of his court-ordered support obligations. The parties agreed that, as of the hearing of this appeal, Dr. Ghremida was again in arrears by an amount that exceeded $150,000. [ 59 ] In her factum, Ms. Elgahwas submitted that Dr. Ghremida’s appeal should not be heard until the arrears were brought up to date.

She altered this position in oral argument, where she asked that the appeal be heard and decided and said that Dr. Ghremida’s actions should sound in costs. [ 60 ] At the hearing of his appeal, Dr. Ghremida agreed to the facts as I have narrated them. He also did not contest that he had the means to pay the ordered amount of support. His counsel asserted simply that his client continued to pay many of the children’s expenses directly and, overall, this underpayment did not cause Ms. Elgahwas any financial hardship and, indeed, she had been able to save money while the appeal was being prosecuted.

He also contended that Dr. Ghremida would be obligated to pay interest on any amounts that were underpaid. The overall point, at least as I understand it, is that there was no net adverse consequence to Ms. Elgahwas associated with Dr. Ghremida’s underpayment while this Court sorted out the child support issue.

[61] This Court faced a somewhat similar situation in Aalbers v Aalbers, 2016 SKCA 1, [2016] 4 WWR 675 [Aalbers]. In that case,the appellant father had refused to make any payments towards his court-ordered support obligations while nevertheless paying around$500,000 in legal fees in his continual legal battles with his former spouse, and while making extravagant purchases. Justice Whitmorewrote that “[t]his is an appropriate case for this Court to exercise its discretion to refuse to entertain this appeal based on the recordshowing continued disobedience of a court order.

This Court will not hear this matter until all arrears of child and spousal support and anycourt-ordered costs against Mr. Aalbers have been paid in full” (at para 25). I note that similar orders to that made in Aalbers have beenmade by appeal courts in many other jurisdictions.

See, for example: Dickie v Dickie (2006), (ON CA), 262 DLR (4th)622 (Ont CA), rev’d Dickie v Dickie, 2007 SCC 8, [2007] 1 SCR 346 [Dickie]; A.A. v Z.G., 2016 ONCA 660, 85 RFL (7th) 322; Bullock vBullock, 2008 BCCA 162, [2008] 12 WWR 428; Ainslie v O’Neill, 2018 ONCA 858, 17 RFL (8th) 120; Benoît v Reid (1995), (NB CA), 168 NBR (2d) 68 (CA); Berry v Berry, 2002 BCCA 129; Cyr v Cassista (1985), (NB CA), 66NBR (2d) 68 (CA); and R.M. v M.M., 2002 NBCA 32. [62] In Brophy v Brophy (2004), (ON CA), 45 RFL (5th) 56 (Ont CA) [Brophy], Laskin J.A. identified severalways to address the situation where a payor has refused to pay a support obligation pending an appeal, notwithstanding that it has not beenstayed.

One alternative is to do what was done in Aalbers, that is, “to adjourn the appeal until the appellant either pays the arrears ordemonstrates that he cannot pay them” (at para 12; see also: Parkinson v Parkinson (1973), (ON CA), 36 DLR (3d) 521(Ont CA)).

Another option noted by Laskin J.A. is “for the court is to hear the appeal on its merits, despite the appellant’s wilful default.The court will be more likely to do this where the amount of arrears is small” (at para 13; see also: Ott v Ott (1982), (ON CA), 139 DLR (3d) 649 (Ont CA)). [63] No matter what solution the court, in its discretion, chooses to utilize when faced with an appellant who is in breach of theorder being appealed from, an adverse costs award can be made against them.

This can be the case when the appellant is “unsuccessful”because the Court refuses to hear their appeal (Dickie at para 7; Abu-Saud v Abu-Saud, 2020 ONCA 314 at para 15, 48 RFL (8th) 323; andHokhold v Gerbrandt, 2015 BCCA 268 at para 14, 64 RFL (7th) 54), or when the Court hears but ultimately dismisses their appeal(Brophy at para 35). Indeed, such circumstances may disentitle an appellant to their own costs even when they are successful on theirappeal (Kowalewich v Kowalewich, 2001 BCCA 450 at para 68, [2001] 9 WWR 626). [64] In this case, considering the position taken by Ms.

Elgahwas, the Court agreed to hear Dr. Ghremida’s appeal. Doing so hasallowed me to conclude that it must be dismissed. Even had I not come to this conclusion, Dr. Ghremida’s conduct must be sanctioned.Given his acknowledged ability to pay the ordered amount of support, and that he could have sought a stay or partial stay should therehave been some other justifiable reason why it should not be paid while his appeal was being prosecuted, it is impossible for me to viewhis actions as anything other than a reflection of his contempt for the Trial Decision.

Although the arrears were larger and the attendantconsequence to the support-receiving spouse were more serious in Aalbers than here, both that case and this one involved a blatantdisregard for an existing and enforceable court order. Indeed, Dr. Ghremida’s wilful breach of the very court order that he has appealed isthe type of “reprehensible, scandalous or outrageous conduct” that could attract an award of solicitor-client costs (Young v Young, (SCC), [1993] 4 SCR 3 at 134.

See also: Siemens v Bawolin, 2002 SKCA 84 at para 118, [2002] 11 WWR 246; Hope vGourlay, 2015 SKCA 27 at para 47, 384 DLR (4th) 235; and Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 151,[2017] 12 WWR 779). [65] In Dickie, the father was a successful plastic surgeon who, following the couple’s divorce, lived a remarkably lavish lifestylewhile demonstrating utter contempt for his obligations to his prior spouse and his children from that relationship.

After fleeing to theBahamas and taking steps to ensure his assets were beyond seizure, he was found in contempt of court, yet nevertheless appealed the childsupport order while continuing to be in default of his payments. At the Ontario Court of Appeal, Laskin J.A. would have refused to hearthe appeal entirely, and on appeal to the Supreme Court, the Court was unanimous in its support of Laskin J.A.’s dissenting opinion.

TheCourt allowed the mother’s appeal, dismissed the father’s appeal from his contempt conviction and, importantly, awarded the mother “hercosts before this Court on a solicitor and client basis and in the Court of Appeal on a substantial indemnity basis” (at para 7). [66] In the circumstances here, I consider it appropriate that Dr. Ghremida pay costs to Ms. Elgahwas in the amount of $17,500. Ihave fixed this amount with an eye to it being approximately double what Ms. Elgahwas’ taxable costs would be under column 4 of thisCourt’s tariff of costs. V.

CONCLUSION [67] For the reasons I have given, I would dismiss Dr. Ghremida’s appeal. [68] I would also order that Dr. Ghremida pay to Ms. Elgahwas the costs of this appeal, in the fixed amount of $17,500. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.I concur. “Drennan J.A.” Drennan J.A.