Wilk v Martin-Wilk, 2023 SKCA 64

Court of Appeal for Saskatchewan Docket: CACV4114 Citation: Wilk v Martin-Wilk , 2023 SKCA 64 Date: 2023-05-25 Between: Daniel Joshua Wilk Appellant (Petitioner) And Dennarah-Lee Morgan Martin-Wilk Respondent (Respondent) Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Leurer On appeal from: DIV-MJ-00012-2022 (Sask KB), Moose Jaw Appeal heard: April 18, 2023 Counsel: Casey Churko for the Appellant Danish Shah for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Daniel Wilk and Dennarah-Lee Martin-Wilk are married and have one child together. They separated in 2021 when Ms. Martin-Wilk and the child left the family home. An interim order was granted in November of 2022, providing primary residency of the child to Ms. Martin-Wilk and ordering Mr. Wilk to pay child support and spousal support. Mr. Wilk appeals on several grounds and asks that shared parenting be ordered and for the matter to be remitted to the Court of King’s Bench for a new hearing regarding both forms of support. [ 2 ] For the reasons that follow, the appeal is allowed in part.

I would order that the interim parenting arrangements remain in place, but the child and spousal support provisions must be changed. II. BACKGROUND [ 3 ] Mr. Wilk and Ms. Martin-Wilk began residing together in 2013. They subsequently married. Their child was born in July of 2016. [ 4 ] Ms. Martin-Wilk has two sons from previous relationships who reside with her. In late June or early July of 2021, Ms. Martin- Wilk left the family home, taking the three children. After she departed, Mr. Wilk refused to pay any child support or spousal support. [ 5 ] Mr.

Wilk has two daughters from a previous relationship with Jolene Wright. At the time of the hearing, these children were 12 and 16 years old. It appears that they also lived with Mr. Wilk and Ms. Martin-Wilk until some time in 2021. They went back to live with Ms. Wright, with the oldest child ultimately going to live with a third party. In a fiat rendered by Baldwin J. on September 29, 2022, regarding child support payable to Ms. Wright, Mr. Wilk’s annual income was found to be $81,804, and his basic child support obligation to Ms.

Wright was varied from $1,113 per month for both children to $697 per month for the younger daughter: Wright v Wilk (29 September 2022) Estevan, FLD-ES-00062-2014 (Sask KB). As the elder daughter was residing with a third party, no support was ordered for her. In rendering her decision, Baldwin J. refused to accede to Mr. Wilk’s undue hardship claim, noting that he had not met the heavy burden imposed on him but did so without prejudice to his ability to raise that issue at trial. [ 6 ] Mr. Wilk currently resides with his new spouse, Nicole St. Pierre, and her young daughter.

They also have a child together, who was born in June of 2022. [ 7 ] The petition in this matter was issued on February 11, 2022. In it, Mr. Wilk, as petitioner, sought a final judgment for equal, shared parenting on an alternating weekly basis. Ms. Martin-Wilk filed her response and counter-petition on March 29, 2022, in which she opposed shared parenting and requested primary residence of the child. Mr. Wilk filed an application for an interim order for shared parenting on September 19, 2022. Shortly thereafter, Ms.

Martin-Wilk filed her own application, seeking the payment of child support for the child and spousal support, both on an ongoing and retroactive basis. Mr. Wilk averred that he had wanted to apply for “full parenting time” with his child since July of 2021 but could not afford to do so as he was dealing with several other related legal proceedings. [ 8 ] The applications and appeal at hand only directly relate to the one child for which Mr. Wilk and Ms. Martin-Wilk are the joint, biological parents.

III. COURT OF KING’S BENCH DECISION [ 9 ] Both applications were heard in Chambers on November 1, 2022, with a written decision rendered on November 10, 2022: Wilk v Martin-Wilk (10 November 2022) Moose Jaw, DIV-MJ-00012-2022 (Sask KB) [ Chambers Decision ]. Prior to argument on November 1, 2022, the Chambers judge rendered an extensive fiat, ruling on the many notices of objection to affidavit evidence that had been filed by the parties. [ 10 ] The Chambers judge began his analysis by first assessing Mr. Wilk’s application for equal parenting time.

He observed that he was solely guided by the child’s best interests and referenced the factors from s. 16 of the Divorce Act , RSC 1985, c 3 (2d Supp), which governed his consideration in that regard. In setting out the background of the matter, which he repeated later in his analysis, the Chambers judge explicitly noted the highly controverted nature of the affidavit evidence regarding parenting issues. He then made the following findings: [14] This is an interim application.

The parties have been separated for almost 1.5 years and, during that time, the child has been living primarily with the mother while the father has received certain specified parenting times. The regime appears to have been put in place and not objected to by the father over that entire course of time. He provides little explanation in his materials for why he has waited so long to attempt to change the parenting regime.

And, while he indicates he has sought additional parenting times, he does not indicate that he has been consistently seeking, from the mother, equal parenting time. [15] There is no indication in the materials that anything has changed with respect to the child over this course of time.

Accordingly, there is nothing to establish the child’s circumstances have changed such that she is facing some type of risk or there is some other compelling reason to make a change. [ 11 ] After referencing Gebert v Wilson , 2015 SKCA 139 , 467 Sask R 315 [ Gebert ], the Chambers judge continued his analysis and considered whether the status quo was one that was of short duration or had recently been put in place.

He concluded that it was neither. [ 12 ] Following this determination on the status quo, the Chambers judge considered the best interests factors from the Divorce Act , commented on how the current arrangements promoted stability for the child, and referenced the evidence that suggested Mr. Wilk was frequently away from home for work prior to the separation and the absence of information about his current work commitments. Given the child’s young age, he put no weight on the evidence tendered by Mr. Wilk regarding her wishes. Lastly, he observed that there was a non-contact order prohibiting Mr.

Wilk from contacting Ms. Martin-Wilk and noted that there were allegations of family violence with Mr. Wilk as the alleged perpetrator, citing this as a further reason to not change the existing arrangements. Taking all of this into account, the Chambers judge ordered the child to reside primarily with Ms. Martin-Wilk, with Mr. Wilk having parenting time every second weekend from Friday after school until Monday morning. He also ordered the sharing of all major holidays. [ 13 ] Moving on to child support, the Chambers judge found that Mr. Wilk had not paid any amount since the separation.

He noted the unclear evidence Mr. Wilk had provided regarding his employment, income, and a recent lump-sum payment he had received from his employer: [28] Unfortunately the father’s 2022 income is not adequately explained by him and very little detail is provided from him. He is working now. He has received a lump-sum payment but there is no indication on what basis that was paid. Was it backpay due to his termination? Was it payment of damages now due to his termination? Was it an award made which covers the present and the past? This is all information which presumably is within the knowledge of the father.

For reasons not explained, that information has not been provided to the court. The onus rests on the father to provide sufficient information to the court to allow for a determination in this regard. [ 14 ] The Chambers judge recognized that Baldwin J. had recently found Mr. Wilk’s annual income to be $81,804, but he observed that Baldwin J. had not had the benefit of the evidence regarding the quantum of the lump-sum payment Mr. Wilk had received upon reinstatement to his employment at CP Rail.

The remainder of his analysis of income and the quantum of child support consisted of the following: [30] At this interim stage, it is apparent the father has received in excess of $107,000 in payments for his employment in 2022. The pay statement indicates that he is paid $5,629.34 on a two-week basis. This would appear to indicate he will be receiving an additional $28,146.70 by the end of the year.

Adding this to his pay to date makes his total income for 2022 expected to be at $135,940.53. [31] It may be that the father will provide more fulsome evidence to show that the lump sum amount should be considered as income in earlier years. He has not done that now, and he has these funds available to him. As a result, I determine to include those amounts as income for support purposes. I am mindful that the issue of support can be recalculated and adjusted once all of the evidence is available at the trial of the matter. The fact of this payment was not before Baldwin J. on the previous file.

Accordingly, her determination of income does not present an accurate picture at this stage in this file. [32] The father’s 2022 income is therefore set at $135,940.53. The mother’s most recent financial statement sets her income at $24,288.88. Pursuant to the Federal Child Support Guidelines , SOR/97-175 the father shall pay child support to the mother in the amount of $1,159.52. The father shall be responsible for 85% and the mother 15% of the s. 7 expenses. [ 15 ] The Chambers judge declined to order retroactive child support because of the uncertainty in the evidence regarding Mr.

Wilk’s past income. [ 16 ] Turning to spousal support, the Chambers judge began by stating that Ms. Martin-Wilk must first establish her entitlement to spousal support and referenced D.B.B. v D.M.B. , 2017 SKCA 59 at paras 78–85 [ D.B.B. ], in this regard. He found that Ms. Martin-Wilk was attending university and working a minimal amount in the same manner as was planned and occurring prior to separation. He described Ms. Martin-Wilk as being responsible for the home and the children, with Mr. Wilk being the breadwinner.

The Chambers judge dismissed the argument that spousal support could not be ordered because of Ms. Martin-Wilk’s incomplete disclosure and the absence of a clear educational plan. He had little difficulty concluding that she was in need of spousal support. Referencing the roles the

parties had taken over the past seven years, he found that Ms. Martin-Wilk had established her entitlement to interim spousal support. [17] The Chambers judge set out the range of spousal support for the level of incomes that he had earlier found, as generatedpursuant to Carol Rogerson and Rollie Thompson’s Spousal Support Advisory Guidelines (2008) [SSAG], as being $1,744 – $2,217 –$2,708. He then ordered payment of spousal support of $1,744, which was at the low end of the range, commencing October 1, 2022. [18] Lastly, the Chambers judge addressed costs. He awarded costs of $1,000 to Ms.

Martin-Wilk for the two applications. Hefurther concluded that the bulk of the notices of objection filed by Mr. Wilk were both unnecessary and contrary to the purpose of TheQueen’s Bench Rules, awarding Ms. Martin-Wilk an additional amount of $500 in costs for this as a result. [19] Mr. Wilk was successful in applying to this Court to have the payment of spousal support stayed, pending the outcome of thisappeal: Wilk v Martin-Wilk (14 March 2023) Regina, CACV4114 (Sask CA). The parenting arrangements and payment of child support, asset out in the Chambers Decision, remain in place. IV.

ISSUES [20] The following issues arise in this matter: (

a) Did the Chambers judge err in dealing with the notices of objection to affidavit evidence? (

b) Did the Chambers judge err in his approach to the status quo; if so, should shared parenting be ordered? (

c) Did the Chambers judge err in his determination of Mr. Wilk’s income, particularly, but not limited to, the manner in which heallocated the lump-sum payment from the employer? (

d) Did the Chambers judge err in setting the quantum of child support? (

e) Did the Chambers judge err in finding that Ms. Martin-Wilk was entitled to spousal support or in the quantum ordered? (

f) Did the Chambers judge err in awarding costs? V. ANALYSIS A. Standard of review [21] The standard of review for appeals from a discretionary decision that determines interim parenting arrangements, as for anydiscretionary decision, is that set out in Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161.

It is well-described by McCreary J.A. inMryglod v Tarling, 2023 SKCA 26, 84 RFL (8th) 277: [7] … This Court will only intervene if it is established that the Chambers judge failed to correctly identify or misapplied the legal criteriathat governed the exercise of their discretion, including by failing to give any or sufficient weight to a relevant consideration, or if theChambers judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failingto consider material evidence.

This Court cannot intervene simply because it would have made a different decision or would have balancedthe relevant factors in a different way than the Chambers judge. [22] This same standard of review applies to decisions regarding interim support orders, including determinations of income:MacLennan v MacLennan, 2021 SKCA 132 at paras 11–13 [MacLennan], and Hickey v Hickey, (SCC), [1999] 2 SCR518 at para 11. [23] Findings of fact by a Chambers judge based on affidavit evidence are reviewed on the standard of palpable and overridingerror: Yorkton (City) v Mi-Sask Industries Ltd., 2021 SKCA 43 at paras 19–28, [2021] 6 WWR 18, and S.G. v K.B., 2021 SKCA 133 atpara 26.

B. Notices of objection to affidavit evidence [24] In the Court of King’s Bench, Mr. Wilk filed three notices of objection to the affidavit evidence provided by Ms. Martin-Wilk,and Ms. Martin-Wilk filed one notice of her own. The Chambers judge ruled on all those objections prior to the parties arguing the matter.The transcribed endorsement consists of seven pages of single-spaced reasons in which the Chambers judge addressed all the issues raisedby the parties regarding the other party’s affidavits. He refused to strike the bulk of the portions objected to by Mr.

Wilk, but did strikeseveral averments for being irrelevant, hearsay without providing a basis or source for the knowledge, argument, or opinion. TheChambers judge also gave effect to a portion of Ms. Martin-Wilk’s objections by striking some averments in two of Mr. Wilk’s affidavitsas improper hearsay, irrelevant, or argument and by striking two affidavits of third parties in their entirety as being an improper replyunder Rule 15-41(8) of The Queen’s Bench Rules and C.D.J. v W.A.M., 2001 SKQB 112, 206 Sask R 85. [25] In his notice of appeal, Mr.

Wilk set out his challenge to the portions of the affidavits that were not struck pursuant to hisobjections and the portions that were struck pursuant to Ms. Martin-Wilk’s notice, as follows: 10. The manner in which the Chambers Judge handled the hearing violated multiple rules, practice directives, and principles of naturaljustice that amount to a miscarriage of justice or a substantial wrong. They include the following. …

(

h) He ruled on the Appellant’s Notices of Objection to Affidavit Evidence when the Respondent had not filed any Responses nor taken any position on them.

He handled the objections to affidavit evidence in a cursory manner at the beginning of the hearing by generally repeating “part of the narrative” and “facts as perceived by the deponent” (which are not based in the Rules ), without considering the Appellant’s actual objections and responses (each of which were based in the Rules or common law), without making any ruling on many of the objections, and without recording which evidence was struck and which was not. [ 26 ] In his factum, Mr. Wilk did not refer to any issue with the ruling on the notices of objection in his Points in Issue

section or in its main body. The only reference to this issue was buried in footnote 35 and in his Relief section. He devoted significant time during his oral submissions arguing this issue. [ 27 ] The Chambers judge did not err in any of the ways alleged by Mr. Wilk. The failure of an opposing party to file a response to a notice of objection does not mean that the objections will automatically be upheld. Instead, it remains open to a Chambers judge to determine how to address the validity of the objections.

Regarding the “cursory manner” in which the Chambers judge handled the notices of objection, I note that the process of ruling on objections at the beginning of the hearing without argument is the standard practice followed in the Court of King’s Bench Family Chambers, as set out in Family Practice Directive #3: Objections to Affidavit Evidence in Family Matters (FAM-PD #3). Mr. Wilk’s assertions that the Chambers judge did not consider his objections or responses, rule on them, or record his reasons and the results are completely inaccurate.

The detailed transcribed fiat found at pages A214 to A220 of the appeal book shows that he considered the impugned averments and the reasons for objection and made a ruling on each and gave a brief reason: Wilk v Martin-Wilk (1 November 2022) Moose Jaw, DIV-MJ-00012-2022 (Sask KB) [ Affidavit Fiat ]. This fully accords with the process that this Court described in Wongstedt v Wongstedt , 2017 SKCA 100 at para 38 , [2018] 4 WWR 82. Moreover, I also see no reviewable error in the substance of what the Chambers judge decided in relation to these objections. [ 28 ] Further, many of the objections made by Mr.

Wilk represent a fundamental misunderstanding of the purpose of Rule 15-46 (affidavit evidence). The process is not to be used to object to portions of an affidavit that a party believes are not credible or do not reflect the facts as seen by the objecting party. Objections are also not to be aimed at identifying averments that are unnecessary from an efficiency, drafting, or repetition standpoint in the opinion of the objecting party (but not irrelevant or unnecessary in general) or that have a prejudicial effect that outweighs their probative value (unless scandalous or an abuse of the court process).

As noted by the Chambers judge, the objecting party is not “to parse affidavits or give opinions on what might be better” ( Affidavit Fiat at 1). The objections are to be made on one or more of the bases set out in The Queen’s Bench Rules : Affidavit evidence 15-46

(1) An affidavit must be confined to the statement of facts within the personal knowledge of the person signing the affidavit, except where this rule provides otherwise.

(2) An affidavit must not contain: (

a) argument; (

b) speculation; (

c) opinion; (

d) any matter that is scandalous; (

e) any matter that is irrelevant, that may delay the trial or make it difficult to have a fair trial, or that is unnecessary or an abuse of the Court process.

(3) An affidavit may, in special circumstances, contain information that the person learned from someone else if: (

a) the application on which the affidavit will be used is for an interim order, or for a matter that will not determine the final outcome of the family law proceeding except as permitted by subrule 15-89(4); and (

b) the source of the information is identified by name, the affidavit states that the person signing it believes the information is true and the circumstances that justify the use of information learned from someone else are stated. [ 29 ] In short, I see no error in how the Chambers judge applied Rule 15-46. [ 30 ] Lastly, Mr. Wilk argues that, pursuant to Rule 15-41(7), he was entitled to file the affidavit of Craig Lindsay, affirmed on October 11, 2022, and the affidavit of Ms. St. Pierre, affirmed on that same date, as a response to Ms. Martin-Wilk’s application.

As a result, in his view, they were erroneously struck as an improper reply under Rule 15-41(8). Those subsections of Rule 15-41 are as follows: Application for substantive interim relief 15-41

(7) A party who wishes to oppose a claim made in the application shall: (

a) serve a copy of each affidavit on which that party intends to rely at the hearing on every other party to the application; and (

b) file the affidavits, with proof of service, at least 7 days before the date set for hearing the application.

(8) The party bringing the application may then serve an affidavit replying only to any new matters raised by the opposite party, and shall file the affidavit, with proof of service, at least 2 clear days before the date set for hearing the application. [ 31 ] Mr. Wilk’s assertion cannot be given effect. Ms. Martin-Wilk’s application sought only support, and these two affidavits that

Mr. Wilk tried to file offered nothing of relevance on that topic. For example, only 2 out of 21 paragraphs of Mr. Lindsay’s affidavit even mention anything remotely related to financial matters, and those averments contain no information that was relevant to the issue of support. The bulk of the other averments in that affidavit described occurrences and allegations that, if relevant at all, could only be seen as relating to the parenting issues raised in Mr. Wilk’s application. Accordingly, the affidavit cannot be understood as being a reply to Ms. Martin-Wilk’s application.

Much of this affidavit appears to be aimed at simply denigrating Ms. Martin-Wilk’s character. Paragraphs 3, 15, 16, and 17 of this affidavit are particularly egregious examples of highly irrelevant and improper material. Ms. St. Pierre’s affidavit contains no averments that address financial issues or relate to support in any way. These two affidavits were clearly filed in an attempt to adduce an improper reply on Mr. Wilk’s own application and were properly struck. [ 32 ] There is no merit to the challenges to the Chambers judge’s rulings regarding the notices of objection to affidavit evidence.

As such, the costs award for this aspect of the matter remains in place. C. Parenting [ 33 ] Mr. Wilk urges the Court to find that the Chambers judge erred by determining that the status quo consisted of primary residency with Ms. Martin-Wilk and that it was in the child’s best interests to continue residing primarily with her on an interim basis pending trial. He submits that the status quo was the one that existed prior to the separation, which he asserts consisted of both parents being equally and fully involved in the care of the child. Mr. Wilk asks this Court to substitute an order for shared parenting.

On the other hand, Ms. Martin-Wilk argues that the Chambers judge considered the evidence and determined that the status quo was that of her as primary parent, both prior to separation and for the year and a half after separation. She submits that this Court cannot simply engage in a re-weighing of the evidence and the factors regarding the child’s best interests and substitute its views for that of the Chambers judge. [ 34 ] The evidence in this matter was lengthy and highly detailed. It was also controverted on almost every material issue.

What follows is only a bare-bones synopsis of some of the points from the evidence that is relevant to parenting. [ 35 ] Mr. Wilk described the parenting situation pre-separation as consisting of the child being with him almost every day before the start of July of 2021, when Ms. Martin-Wilk moved out. He averred that he was very involved with the children, was immersed in their activities, and shared household management equally with Ms. Martin-Wilk. He stated that he bathed the child, regularly bought her clothes, cared for her when she was sick, and snuggled with her when she had nightmares. Mr.

Wilk described a strong relationship between the child and her paternal grandparents and step-grandparents, the attachment the child now has with his new spouse and her daughter, his current home environment, and some of the activities that the child engages in when at his home. He provided details of several instances where he alleged Ms. Martin-Wilk thwarted his parenting time. Mr. Wilk acknowledged that a non-contact order was in place under a recognizance that prohibited him from contacting Ms.

Martin-Wilk for one year (expiring on the day the Chambers Decision was issued) but asserted that it was unjustified, and it was Ms. Martin-Wilk who should have been subject to such conditions. He denied that he abuses substances of any kind, described himself as an occasional recreational gambler, and disagreed that he has been abusive or has an anger-management problem. In denying any physical abuse on his part, he claimed that Ms. Martin-Wilk hurt her own toe in 2014 and now, years later, seeks to blame it on him. A large portion of his affidavit material was devoted to criticizing and disparaging Ms.

Martin-Wilk. [ 36 ] Ms. Martin-Wilk averred that she was responsible for cooking, cleaning, looking after the children, and doing all the home’s day-to-day tasks when she was residing with Mr. Wilk. She stated that she did most of the household management and provided the care for the five children. Ms. Martin-Wilk asserted that she was responsible for the child’s care and was the primary parent prior to separation. She deposed that Mr. Wilk was usually away at work, and, when he was home, he would sleep or lay in the bedroom. His work

schedule with CP Rail often caused him to be away from home for days at a time. Ms. Martin-Wilk stated that Mr. Wilk had never bathed the child, dressed her, bought her clothes, read to her, stayed home with her when she was sick, or got up with her when she had nightmares. According to her affidavit, he rarely attended any of the children’s events or appointments. She alleged that he had gambling, drinking, and anger-management problems. Ms. Martin-Wilk averred that he broke her toe while he was intoxicated in 2014. Ms. Martin-Wilk described her new home and the child’s post-separation routine.

She denied thwarting Mr. Wilk’s parenting time with the child. Ms. Martin-Wilk also spent a great deal of space in her affidavit disparaging Mr. Wilk. [ 37 ] Despite Ms. Martin-Wilk averring that Mr. Wilk was often gone for long periods of time for work, and him filing an affidavit in reply, Mr. Wilk did not provide any information regarding his anticipated

schedule or present availability to parent. The affidavit of Mr. Wilk’s new spouse describes in detail the time she spends with the child but also does not discuss Mr. Wilk’s

schedule or availability. Basic information such as the time of day he works or the approximate amount of time that he is away from home for work was not forthcoming. While he noted that CP Rail does not have a schedule, which I take to mean that he is called when work is available, he did not provide even broad details of the nature of his work commitments as they relate to his availability to parent. Mr. Wilk also did not describe the child’s daily routine during his parenting time or his role in it.

In my view, when a parent wishes to have an equal shared parenting regime put in place, it is incumbent on them to provide evidence of their availability to parent, particularly if this issue is credibly put into question by the other party’s evidence. [ 38 ] The fact that the child had resided primarily with Ms. Martin-Wilk from July of 2021 to November of 2022 was agreed upon in the evidence. [ 39 ] The Chambers judge was given the task of sorting through diametrically opposed affidavit material and determining what interim parenting arrangement was in the best interests of this specific child.

In his analysis, the Chambers judge listed the factors from s. 16 of the Divorce Act and determined that the child’s interim best interests were served by continuing to reside primarily with Ms. Martin-Wilk. In doing so, the Chambers judge expressed concern about the lack of evidence regarding Mr. Wilk’s work commitments and his availability to parent. [ 40 ] In reading the decision as a whole, it is my view that the Chambers judge did not err in his assessment of the status quo or in any other way that affected the parenting order he made.

In this regard, his reasons reveal that he was well aware that, as stated in Gebert , a status quo cannot be imposed on one party or be one of short duration that arises after separation. He further noted that the evidence regarding the parenting of the child, and each party’s role in it, was highly disputed. After referencing the leading case of Gebert , the

Chambers judge stated the following: [17] … The situation in the case now before the court is neither one of short duration nor one that was just immediately put in place following the separation. Rather, it is an arrangement which has been consistently in place for an extended period of time and one which has seen the child become accustomed to her present living arrangements.

In light of the highly conflicting evidence regarding the father’s parenting involvement prior to separation and the other matters at issue, that status quo should be maintained until the parties can get the matter to a pre-trial, or a trial, where more fulsome evidence can then be heard by the court. [18] With that, I turn to consider those aspects of the Divorce Act which impact on a decision regarding the child’s best interests and whether those should cause a change in the status quo arrangement. On this interim application, I do not discuss each of the factors listed in the Divorce Act .

Rather, I address those factors which appear to be directly applicable here. [19] The status quo speaks to a child’s need for stability. This arrangement has been in place for an extended period of time. To change it now, with the prospect or possibility of changing it again on a final application, is not in the child’s best interests and sacrifices her stability for the wishes of the party to have more time with the child. [20] The history of care for the child is in much dispute.

The mother speaks to the father being away for lengthy periods of time with his work and also away frequently with his after-work activities. The father does not provide a rebuttal to those concerns. He states categorically that prior to separation the child lived with him and that she was with him almost every day, but he does not respond to the specifics of being away as described by the mother.

This will need to be canvassed in detail by the evidence produced at the pre-trial or trial. [ 41 ] Faced with highly controverted evidence regarding the history of parenting – but knowing that the child had been in the primary care of Ms. Martin-Wilk for the past year and a half and having precious little information about Mr. Wilk’s availability to parent – the Chambers judge determined that the current situation should continue.

In doing so, he evaluated the appropriate additional factors regarding this specific child’s best interests and made a discretionary decision setting the interim parenting arrangements. There is no room for appellate interference in this decision or scope to alter the parenting arrangements set by the Chambers judge. D. The parties’ incomes [ 42 ] Mr. Wilk’s employment with CP Rail was terminated in August of 2020. He worked at other employment and had some periods of unemployment until he was reinstated at CP Rail on a part-time basis on approximately June 14, 2022.

He indicated that he needed to take additional training to return to full-time employment but did not offer any details regarding the timelines of that training or the effect that this would have on his income or schedule. [ 43 ] Although largely unexplained in the evidence, Mr. Wilk received two payments for grievance resolution pay shortly after his reinstatement with CP Rail for a total amount of $76,143.79. His most recent payslip – dated October 27, 2022, for the period of September 30, 2022, to October 13, 2022, – showed gross pay of $5,629.34.

One of the year-to-date figures on this payslip showed earnings to date of $107,793. The Chambers judge used this information to reach the following conclusion about Mr. Wilk’s income (repeated here for reference): [30] At this interim stage, it is apparent the father has received in excess of $107,000 in payments for his employment in 2022. The pay statement indicates that he is paid $5,629.34 on a two-week basis. This would appear to indicate he will be receiving an additional $28,146.70 by the end of the year. Adding this to his pay to date makes his total income for 2022 expected to be at $135,940.53.

The Chambers judge set Mr. Wilk’s income at $135,940.53 for the purposes of determining child and spousal support. [ 44 ] Mr. Wilk submits that the Chambers judge erred by including the grievance resolution pay in his income, thereby setting his income at too high of a level. He submits that his annual income should have been found to have been $84,337.38, based on an extrapolation from his payslips from CP Rail, without the backpay, for eight pay periods beginning with the payslip dated July 7, 2022, for the pay period of June 10 to 23, 2022.

He says this represents what he is currently earning, so ongoing child support should have been based on this calculation. [ 45 ] Ms. Martin-Wilk argues that this was an interim application and the method used by the Chambers judge was, therefore, appropriate. She notes that Mr. Wilk did not provide sufficient evidence of his current earnings or the grievance resolution pay, leaving the Chambers judge to estimate his income based on the information that he did have. Ms.

Martin-Wilk asserts that any necessary adjustments can be made at the pre-trial conference or trial. [ 46 ] The Federal Child Support Guidelines , SOR/97-175 , requires a judge to use the most current income information when determining income available for child support: “Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used” (s. 2(3)). [ 47 ] In many cases, the previous year’s income tax return for an individual with the same employment and relatively stable income provides a proxy for the payor’s current income.

The task of determining income becomes more difficult when the person’s earning situation has recently changed. That latter circumstance describes the scenario at hand. [ 48 ] Mr. Wilk’s 2021 income tax return records income of $90,806.73. This consisted entirely of employment income from J. Wilk Landscaping, for whom Mr. Wilk ceased employment in December of 2021. He avers that he was unemployed thereafter, receiving no employment insurance benefits or other income until he was reinstated with CP Rail in June of 2022. As recognized by the Chambers judge, this 2021 income tax information does not represent Mr.

Wilk’s current income. [ 49 ] The Federal Child Support Guidelines provides direction on how to calculate the income for a person with various types of income:

Calculation of annual income 16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. Pattern of income 17(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [ 50 ] Here, we are only concerned with employment income. There is no suggestion that Mr. Wilk currently has earnings from any source other than his employment with CP Rail. [ 51 ] Mr.

Wilk asserts that the Chambers judge erred by including a non-recurring amount, the grievance resolution pay, in his current income and by improperly extrapolating his income on that basis. I am in agreement with this submission. The back payment was a non-recurring item that does not reflect Mr. Wilk’s current income and covers an unknown period.

That said, I wish to be clear that it will have to be accounted for when retroactive child support and spousal support are determined, but it did not represent his income in the period for which interim support was ordered, i.e., commencing on October 1, 2022. [ 52 ] Additionally, I find that the Chambers judge erred by using Mr. Wilk’s most recent gross pay of $5,629.34 in his extrapolation exercise. The payslip where that number came from – dated October 27, 2022, for the period of September 30, 2022, to October 13, 2022 – showed gross pay of $5,629.34.

However, this amount included $1,787.90 for grievance resolution pay. This was the second installment of back payment, which Mr. Wilk averred he was expecting. [ 53 ] The combination of using the grievance resolution pay as representative of current earnings and finding $5,629.34 provided an estimate of Mr. Wilk’s bi-weekly earnings represents palpable and overriding error. Given this error, it falls to this Court to determine Mr. Wilk’s current income. [ 54 ] Based on the payslips filed by Mr.

Wilk, he earned the following gross income from CP Rail in the several months leading up to the Chambers application: 2022 Pay Periods Gross Pay Grievance resolution pay Gross pay without grievance resolution pay included Jun 10 to Jun 23 $958.29 – $958.29 Jun 24 to Jul 7 $2,922.89 – $2,922.89 Jul 8 to Jul 21 $3,663.00 – $3,663.00 Jul 22 to Aug 4 $3,124.17 – $3,124.17 Aug 5 to Aug 18 $2,966.03 – $2,966.03 Aug 19 to Sep 1 $6,096.73 – $6,096.73 Sep 2 to Sep 15 $80,496.07 $74,355.89 $6,140.18 Sep 16 to Sep 29 $2,708.73 – $2,708.73 Sep 30 to Oct 13 $5,629.34 $1,787.90 $3,841.44 Totals: $108,565.25 $76,143.79 $32,421.46 Totals excluding Jun 10 to June 23: $107,606.96 $76,143.79 $31,463.17 [ 55 ] As set out in the payslip for the period of September 30 to October 13, 2022, Mr.

Wilk appeared to have been paid $107,793 from CP Rail in 2022, up to October 27, 2022. This differs slightly from the amount in the chart above because the CP Rail payslips contain numerous year-to-date amounts under payments – for example, 22 such lines appear on the September 30 to October 13 payslip – with no explanation provided in the material as to how this information should be interpreted. [ 56 ] Using the above chart, an annual current gross income for Mr. Wilk can be estimated.

Given that he was reinstated on approximately June 14, 2022, the pay period of June 10 to June 23 should be excluded from any calculations because it was only a partial period. Averaging the income from the eight pay periods from June 24 to October 13, excluding grievance resolution pay, provides average two-week gross earnings of $3,932.90 ($31,463.17 / 8). Multiplying this amount by 26 pay periods per year generates an annual gross income of $102,255.

Given that the Chambers judge desired to use current income information to determine the ongoing child support payments, this sum represents the best estimate of Mr. Wilk’s current income based on an extrapolation from his payslips. However, this information is also uncertain because Mr.

Wilk provided no explanation of his schedule, the hours that he expects to work, what factors cause his pay to vary each two weeks, which quantum of pay is likely to be the most typical, whether his number of hours are ramping up after a transition period following reinstatement, whether various times of the year are more or less busy, or any other information that would have assisted in determining his income. However, despite the imperfection of the information, his income has to be set, which I determine to be $102,255.

As usual, this finding is subject to adjustment once a final resolution is reached in this matter. [ 57 ] The issue of the $76,143.79 in grievance resolution pay is also not concluded. Mr. Wilk did not pay any child support at any point to Ms. Martin-Wilk prior to her application, and she has claimed retroactive support. This sizeable payment will likely have an effect on the calculation of retroactive child support when that issue is addressed at a pre-trial conference or at a trial, as it appears to be income available for the purposes of child support. [ 58 ] Turning to Ms. Martin-Wilk’s income, Mr.

Wilk asserts that the Chambers judge erred by setting her income at $24,288.88. He says that the Chambers judge relied on Ms. Martin-Wilk’s “false financial statement”. He levels this serious accusation on the basis that Ms. Martin-Wilk’s 2021 income tax return reflected income of $43,297.71, but she had reported an income of $24,288.88 on her financial statement dated March 30, 2022. Describing her financial statement as false, based on a difference from her previous year’s income tax return is highly inappropriate.

[ 59 ] Ms. Martin-Wilk’s affidavit evidence described the circumstances of her obtaining a different job and attending school. The Chambers judge was entitled to accept her evidence regarding her change in employment, attendance at school, and a change in income. In his September 19, 2022, affidavit, Mr. Wilk acknowledged that she “has a new job again”. Given that Mr. Wilk is asserting that his current, not past income, should be used – which was the overall approach taken by the Chambers judge – it would be hard to justify using Ms.

Martin-Wilk’s past income, which is no longer reflective of her current income, either. [ 60 ] Mr. Wilk further submits to this Court that the Chambers judge was not entitled to rely on Ms.

Martin-Wilk’s financial statement because it had been sworn on March 30, 2022, and The Queen’s Bench Rules required that it be updated: Updating financial statements and property statements 15-56 Each party shall update the information in any financial statement or property statement that is more than 60 days old by serving and filing a new financial statement or property statement, or an affidavit stating that the information in the last statement has not changed and is still true: (

a) at least 7 days before a hearing of an application or before a trial; (

b) at least 10 days before a pre-trial conference; or (

c) at least 15 days before a binding pre-trial conference [ 61 ] While this obligation is imposed on the parties to a family law proceeding, non-compliance does not result in a financial statement being voided and does not prohibit a judge from relying on it. This argument has no merit. [ 62 ] Lastly, Mr. Wilk asserts that Ms. Martin-Wilk should not be going to school and should be working full-time with a commensurate income. As set out in her affidavit, Ms. Martin-Wilk began university 18 months before the parties separated and took out a student loan to do so.

This represents the continuation of a situation that arose out of the parties’ decision made prior to separation. The Chambers judge’s considerations regarding the reasonableness or advisability of Ms. Martin-Wilk continuing her studies in these circumstances does not reveal error. [ 63 ] The Chambers judge did not err in setting Ms. Martin-Wilk’s income at $24,288.88. E. Child support and undue hardship [ 64 ] As a result of determining that Mr. Wilk’s current income was other than that found by the Chambers judge, the child support must be adjusted.

Leaving aside other issues for the moment, the amount of child support payable for the child under s. 3 of the Federal Child Support Guidelines , based on Mr. Wilk’s annual income of $102,255 , is $877 per month. If payment is ordered for s. 7 expenses, Mr. Wilk and Ms. Martin-Wilk’s shares would be 81% and 19%, respectively. [ 65 ] Having found a significantly lower level of income for Mr. Wilk, it is incumbent on this Court to revisit the issue of Mr. Wilk’s claim for undue hardship.

He submits that he should not be required to pay full child support because he currently has financial obligations to children from three relationships. He argues that, based on undue hardship, his child support payment to Ms. Martin-Wilk should be set at one-third of the table amount for three children, given that he is financially responsible for one child from each of his three relationships. With his income of $102,255, this would translate into a payment of $620.46 per month ($1,861.39 / 3).

This assertion falls to be evaluated under s. 10 of the Federal Child Support Guidelines : Undue hardship 10(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising parenting time with a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under

any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of livingtest set out in

Schedule II. Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at theend of that time. Reasons

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [66] As discussed by Kalmakoff J.A. in Lonsdale v Evans, 2020 SKCA 30 at para 70, 37 RFL (8th) 251, undue hardship is difficultto establish: [70] The threshold for establishing undue hardship is not easily met: see, for example, Pelletier v Kakakaway, 2002 SKCA 94 at paras 10–11 and 26, 223 Sask R 305; and Locke v Goulding, 2012 NLCA 8 at paras 36–40, 29 RFL (7th) 115.

The basic tables set out in theGuidelines establish a presumptive rule regarding the amount of child support payable by a person with a given income.

While unduehardship is a circumstance that justifies a departure from the presumptive rule, establishing mere hardship is not enough to reduce orexcuse a payor parent’s obligation; the hardship must be “undue”, that is, “exceptional”, “excessive” or “disproportionate” in all of thecircumstances: Hanmore v Hanmore, 2000 ABCA 57 at para 14, 4 RFL (5th) 348; Van Gool v Van Gool (1998), (BCCA), 166 DLR (4th) 528 (BCCA); Reid v Faubert, 2019 NSCA 42 at paras 45–48, 434 DLR (4th) 287. [67] Mr. Wilk swore a property statement on February 11, 2022.

In it, he lists, inter alia, the family home he possesses valued at$300,000 (with a mortgage of $304,217.41), a vehicle valued at $50,000 (with a loan of $53,150), bank accounts and a TFSA in theamount of $34.40, and stocks worth $225. The value of his pension is unknown. Mr. Wilk averred that Ms. Martin-Wilk left him with theline of credit payments and the responsibility for payments of other debts for jointly incurred family expenses. In his property statement,Mr. Wilk lists two joint lines of credit in the amount of $38,497.12 and a joint credit card with a balance of $3,000.

He lists several otherdebts in his sole name, totalling $41,759.78. These values, and an alleged debt to his family, are not agreed upon. For example, inMs. Martin-Wilk’s property statement, she values the family home at $400,000 and Mr. Wilk’s truck at $60,000. The parties alsosignificantly disagree regarding the value of household goods in each other’s possession. Regardless of these differences, it is obvious thatMr. Wilk has significant financial obligations for debts and that, at least prior to his receipt of the grievance resolution pay, he did not haveany liquid assets to draw upon. For her part, Ms.

Martin-Wilk has negative bank balances, and a significant debt of her own. She averredthat she is in a precarious financial position, is approaching default on several credit cards, and owes large amounts for utilities, loans fromfamily, legal expenses, and the children’s swim club. Overall, the property statements present a bleak financial picture for both parties. [68] In his financial statement, Mr. Wilk claimed annual expenses of $123,421.63. These expenses do not include the payment ofchild support or spousal support in this matter.

His material does not disclose how he plans to continue this level of spending on theincome he claims to make. In addition, he is required to pay child support to Ms. Wright in the amount of $697 per month. [69] In her financial statement, Ms. Martin-Wilk reported an annual income of $24,288.88 and annual expenses of $132,532.88. Hermaterial discloses that she is also receiving $4,800 per year in child support in relation to her other children and $13,500 per year in childtax benefit and GST benefit. Like her former spouse, Ms.

Martin-Wilk does not explain how she can continue her current level ofspending, even if she receives child support and spousal support from Mr. Wilk. [70] Mr. Wilk averred that Ms. Martin-Wilk took almost all of the household goods when she left the family home. Ms. Martin-Wilk disputes this and averred that Mr. Wilk is in possession of most of the furniture and the higher-value items. In her affidavit,Mr. Wilk’s new spouse stated that she has filled the empty house with her furnishings and described the children’s well-appointed room. [71] There is no explanation in Mr.

Wilk’s material regarding the purposes to which he put the large grievance resolution paymenthe received. [72] Mr. Wilk averred that his new spouse had lived with him for the past seven months, as of September of 2022. He stated that shehad gross revenue of $6,687 from her hairstyling and make-up business, with a net income of $1,987 during that period. Mr. Wilkprovided no information regarding his new spouse’s future plans or income earning potential.

His new spouse provided her own affidavitbut also did not volunteer any additional information in this regard, other than to say that she has run the business for 12 years. It isdifficult to imagine engaging in the same business for over a decade if one did not earn something that, at least, approached minimumwage, but this level of detail is not divulged. This represents another evidentiary gap in Mr. Wilk’s material.

As found by the Chambersjudge, at paragraph 37 of the Chambers Decision, the household incomes are unclear. [73] Based on the information provided on the interim application, I, like the Chambers judge, am unable to conclude that Mr. Wilkhas met the onus of establishing undue hardship and that he should not be required to pay interim child support in the full table amount.The evidence provided by Mr.

Wilk is incomplete – particularly with regard to the financial situation of his new spouse – and falls shortof proving that his situation has progressed beyond mere hardship to the point of undue hardship, as contemplated by s. 10 of the FederalChild Support Guidelines. Furthermore, on the evidence that has been filed, his household standard of living would likely still be higherthan that of Ms. Martin-Wilk, even if he were required to pay the full amount of child support: see Pelletier v Kakakaway, 2002 SKCA 94at paras 10–11, [2003] 1 WWR 271. [74] Arising solely from the change in the determination of Mr.

Wilk’s income, I would order that the interim order be amended torequire Mr. Wilk to pay s. 3 child support to Ms. Martin-Wilk in the amount of $877 per month, commencing October 1, 2022.

[ 75 ] Regarding expenses under s. 7 of the Federal Child Support Guidelines , I note that Ms. Martin-Wilk deposed that she had spent a total of $815 for day care from July of 2021 to September 28, 2022, and that, now that the child is in school, day care fees would be minimal. As such, the only ongoing s. 7 expenses relate to extracurricular activities. Given the precarious financial positions of the parties, and based on the new significantly lower income that I have found for Mr. Wilk, I would order that the requirement in the interim order that Mr. Wilk contribute to s. 7 expenses be deleted.

Of course, like my determinations regarding income and s. 3 support, this is subject to adjustment at the pre-trial conference or at trial. Mr. Wilk’s claim of undue hardship will also fall to be determined on a final basis in those proceedings. F. Entitlement and quantum of spousal support [ 76 ] Mr. Wilk argues that the Chambers judge erred when he found that Ms. Martin-Wilk had established an entitlement to interim spousal support on either a compensatory or non-compensatory basis. He also points to his own hardship and inability to pay.

Lastly, he contends that the SSAG should be treated as “junk science” and that it was an error for the Chambers judge to “place blind faith” in this “robotic device”. Mr. Wilk argues extensively regarding alleged errors committed by the Chambers judge in using the SSAG and asserts that the SSAG should not be accepted, even on an interim application, absent expert evidence. [ 77 ] Ms. Martin-Wilk contends that the Chambers judge examined the appropriate criteria and made no error in determining that she was entitled to spousal support and in ordering the quantum that he did. [ 78 ] Turning first to Mr.

Wilk’s argument that the Chambers judge erred by relying on the SSAG , I note this Court has repeatedly stated that the SSAG is a useful tool that should be used by judges when considering the quantum and duration of spousal support: see, for example, Linn v Frank , 2014 SKCA 87 at paras 75–88 , [2014] 10 WWR 215; Kosolofski v Kosolofski , 2016 SKCA 106 at para 83 , 402 DLR (4th) 423; and MacLennan at para 90 . Quite simply, Mr.

Wilk’s assertion that the Chambers judge erred by utilizing the SSAG has no merit. [ 79 ] Of course, the SSAG does not determine entitlement; it is only a tool designed to assist in setting the quantum and duration of spousal support once entitlement is established. This is made abundantly clear in Carol Rogerson and Rollie Thompson’s Spousal Support Advisory Guidelines: The Revised User’s Guide (2016) : 2 Common Errors to Avoid After more than ten years, errors are still being made … (

b) Remember entitlement . We can’t say this too often: the SSAG only deal with amount and duration, after there has been a finding or agreement on entitlement to spousal support. It is wrong to “just run the numbers”. … 3 Entitlement ( SSAG

Chapter 4) An analysis of entitlement is the crucial first step before any application of the Guidelines . In practice this step is often ignored, the assumption being that any income disparity that produces a positive range for amount under the SSAG formulas means there must be entitlement. The Advisory Guidelines do not determine entitlement . They deal with the amount and duration of support after entitlement has been established. They do not provide an arithmetical basis for entitlement. Entitlement is a threshold issue that must be determined before the Guidelines will be applicable.

The existing legal framework recognizes three bases for entitlement: compensatory, non-compensatory, or contractual. If there is a finding of no entitlement, the Guidelines are not applicable. The SSAG formulas may offer some clues, or checks, about entitlement, but nothing more. Even if entitlement is established, the analysis of entitlement will inform many subsequent steps in a SSAG analysis . (Italics in original) [ 80 ] The Chambers judge did not rely on the SSAG to determine entitlement. It was only after the Chambers judge made a finding of entitlement, and the ability to pay on the part of Mr.

Wilk, that he progressed to the ranges suggested by the SSAG : [39] When determining the issues of spousal support, the court must first determine whether the spouse is entitled to receive such support. The Court of Appeal has provided a helpful explanation of entitlement to spousal support ( D.B.B. v D.M B ., 2017 SKCA 59 at paras 78– 85 ). [40] There is little question here that the mother is in need of support. She is attending school as was arranged between the parties prior to the separation. She worked what appears to be a minimum amount.

It appears all of this was happening and planned while the parties were together. [41] The evidence at this stage indicates the mother was responsible for the home and the children when they were being parented by her or by the petitioner. The petitioner was the breadwinner in the family. [42] The petitioner submits there can be no determination of spousal support because there has been no complete document disclosure and because she is not engaged in any clear educational plan.

At this stage of the proceedings, I am unable to determine how either of these would stand in the way of determining entitlement to spousal support. [43] The lack of disclosure does not refute the evidence indicating the respondent’s role in the family prior to separation. The existence of that role over the seven years they were together entitles the respondent to receive spousal support on a compensatory basis.

[44] The lack of an educational plan, or the ability to earn a greater income, are issues that will need to be discussed to determine the respondent’s ongoing entitlement to support. At this interim stage, the evidence appears to be that she is carrying on the life which had been accepted while the parties were together. [45] In the result, I determine the respondent has established an interim entitlement to spousal support. She has also established a need for such support.

The income as found for the petitioner indicates he has the means to pay support. [46] Based on the incomes as found, the range of spousal support pursuant to Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines ([Ottawa]: Department of Justice, 2008) is as follows: $1,744, $2,217, $2,708. [ 81 ] Moving on from the SSAG issue, a plain reading of the Chambers Decision indicates that the Chambers judge found interim entitlement on both compensatory and non-compensatory grounds. He relied on D.B.B . in doing so. On appeal, Mr. Wilk recycles his arguments from King’s Bench Chambers regarding Ms.

Martin-Wilk’s incomplete disclosure, her lack of need, the roles of the parties in the marriage, her educational and work plans, and the parties’ financial situations and asks this Court to revisit those issues and find that there is no entitlement. Although Mr. Wilk asserts many errors were committed by the Chambers judge, particularly regarding need and causal connection to that need, his arguments simply boil down to a disagreement with the findings of fact and the exercise of the Chambers judge’s discretion.

As prescribed by the standard of review, this Court cannot simply redo the analysis and substitute our findings of fact and exercise our discretion for that of the Chambers judge. The finding of interim entitlement must stand. [ 82 ] This brings the analysis to Mr. Wilk’s means. As noted above, the Chambers judge erred in determining Mr. Wilk’s level of income. As such, this Court must examine his ability to pay afresh and determine the amount, if any, of spousal support that should be paid on an interim basis. [ 83 ] Based on Mr.

Wilk’s income of $102,255, his obligation to pay s. 3 child support in the amount of $697 per month to Ms. Wright, his obligation to pay s. 3 child support in this matter in the amount of $877 per month, the absence of any s. 7 expenses, Ms. Martin-Wilk’s income of $24,288.88, and the existence of an 8.5 year period of cohabitation, the SSAG provides a range of spousal support of $307 to $590 to $898 ( SSAG – with child support formula – DivorceMate v.2023.0104). [ 84 ] Mr. Wilk asserts that he does not have the means to pay any spousal support.

I agree that his current financial situation appears dire, but so does the situation for Ms. Martin-Wilk. I observe that Mr. Wilk recently received a large inflow of cash from his grievance resolution payment and declined to provide the Chambers judge with any detailed information regarding its use. Taking all of Mr. Wilk’s financial information into account, and further noting that he has chosen not to provide some pertinent information, I find that he has the ability to pay $500 per month in interim spousal support. This remains far below Ms. Martin-Wilk’s needs but fits within Mr. Wilk’s means.

As a result, the quantum of spousal support payable pursuant to the interim order shall be amended to require Mr. Wilk to pay $500 per month of interim spousal support to Ms. Martin-Wilk, effective October 1, 2022. Like the payment of child support, this interim determination may be altered at a pre-trial conference or trial. G. Costs in the Court of King’s Bench [ 85 ] The Chambers judge ordered costs against Mr. Wilk in the amount of $1,000 for the two substantive applications. Mr.

Wilk seeks to have that award set aside. [ 86 ] An order for costs is discretionary in nature and entitled to deference on appeal: Tysseland v Tysseland , 2022 SKCA 39 at para 14 . Ms. Martin-Wilk was generally successful on both applications in the Court of King’s Bench, although her claim for retroactive support was deferred to pre-trial conference and trial. The costs order was not made arbitrarily or without regard to the applicable principles. Despite this judgment altering the quantum of child support and spousal support, the parenting arrangements and the order to pay support remain intact.

There is no basis to disturb the costs award. VI. CONCLUSION [ 87 ] I would allow the appeal to the extent set out in this judgment. While there were mixed results, Ms. Martin-Wilk was successful on the grounds of appeal regarding the affidavit material, the parenting arrangements, Mr. Wilk’s undue hardship claim, the requirement to pay Federal Child Support Guidelines child support, and her entitlement to spousal support. Mr. Wilk, on the other hand, was successful in having the quantum of support decreased. Given this combination of success, which largely favours Ms. Martin-Wilk, Mr. Wilk shall pay costs to Ms.

Martin-Wilk in the total amount of $2,000 for this appeal and on his application to impose a stay of execution. “Tholl J.A.” Tholl J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A.