Pellegrini v Tkach, 2023 SKCA 85

Court of Appeal for Saskatchewan Docket: CACV3919 Citation: Pellegrini v Tkach , 2023 SKCA 85 Date: 2023-08-09 Between: Tyler Pellegrini Appellant (Petitioner) And Crystal Tkach Respondent (Respondent) Before: Schwann, McCreary and Drennan JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice McCreary On appeal from: DIV 425 of 2019 (Sask QB), Saskatoon Appeal heard: May 30, 2023 Counsel: Patrick Thomson for the Appellant Jane Basinski for the Respondent Drennan J.A. I.

INTRODUCTION [ 1 ] After a five-day trial in what was then the Court of Queen’s Bench, a trial judge awarded Crystal Tkach sole decision-making authority and primary residence of the parties’ now nine-year-old child and ordered Tyler Pellegrini to pay both retroactive and ongoing s.s. 3 and 7 support pursuant to the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ] based on an imputed income of $55,000 per annum. Mr. Pellegrini appeals from the trial judge’s decision. [ 2 ] For the reasons that follow, Mr. Pellegrini’s appeal must be allowed.

By way of remedy, I would remit the issues of decision- making and Mr. Pellegrini’s parenting time to the Court of King’s Bench for trial, and impose an interim parenting order pending a final resolution. I further find that the trial judge erred by imputing income to Mr. Pellegrini pursuant to s. 19(1) (

a) of the Guidelines , and would adjust Mr. Pellegrini’s retroactive and ongoing s. 3 and s. 7 child support payable based on his actual earnings in the relevant tax years. II. BACKGROUND A. The separation and interim litigation [ 3 ] The parties met in 2012 and cohabited shortly thereafter. They were married in December of 2014. The child was born in April of 2014. [ 4 ] The parties separated on July 22, 2016. Thereafter, the child remained in the de facto primary care of Ms. Tkach. Mr. Pellegrini initially had parenting time with the child, which Ms. Tkach had facilitated. However, in the fall of 2016, Ms.

Tkach terminated Mr. Pellegrini’s contact with the child, citing concerns with his mental health. [ 5 ] In March of 2017, Mr. Pellegrini issued a petition seeking joint custody, access to the child, and property division, in addition to child support payable to Ms. Tkach pursuant to the Guidelines . A series of interim applications and resulting orders ensued, the most significant of which, and the circumstances surrounding them, are as follows: (

a) On May 19, 2017, Goebel J. granted the parties joint custody with Mr. Pellegrini to have parenting time with the child, supervised by his grandmother, on conditions including that he seek treatment for his mental health issues. (

b) In the fall of 2017, Ms. Tkach applied to suspend Mr. Pellegrini’s access. On November 30, 2017, Dufour J. dismissed the application, and ordered that Mr. Pellegrini have unsupervised parenting time, graduating to every second weekend, as well as compensatory access. (

c) Conflict continued for the parties primarily when they exchanged the child, resulting at some point in criminal charges being laid against Mr. Pellegrini, and his subsequent entry into a peace bond. This caused Ms. Tkach to again apply to suspend Mr. Pellegrini’s access. Before that application was heard, Mr. Pellegrini failed to return the child to Ms. Tkach’s care on or about May 14, 2018, citing concerns about the child’s safety in her care. On May 15, 2018, Wilson J. ordered the child’s return to Ms. Tkach. (

d) On May 23, 2018, Dufour J. directed that the Ministry of Social Services investigate to determine whether the child was in need of protection from either parent. This followed Mr. Pellegrini raising possible abuse of the child in Ms. Tkach’s care. The Ministry

ultimately investigated and found no protection concerns. (

e) On September 26, 2018, Wilson J. ordered that Mr. Pellegrini have a short transitional period of supervised parenting leading to the resumption of unsupervised parenting time every second weekend as previously ordered by Dufour J. (

f) In October of 2019, Ms. Tkach brought another application to suspend the parenting order of Dufour J. On October 18, 2019, Gabrielson J. dismissed that application and directed the matter to trial. (

g) In response to an application for child support brought by Ms. Tkach, Turcotte J. ordered on March 18, 2019, that Mr. Pellegrini to pay child support in the sum of $420 per month from December 1, 2016, to December 31, 2017, and $253 per month thereafter, based on an income of $31,957. The order also directed him to pay his proportionate share of s. 7 expenses of $67 per month, and to pay $250 towards child support arrears. B. The parties’ positions at trial [ 6 ] Ms. Tkach sought sole decision-making authority and primary residence of the child at trial.

She testified to ongoing conflict between the parties, their inability to communicate, and concerns with Mr. Pellegrini’s mental health. She suggested that Mr. Pellegrini have limited parenting time, and that it be exercised in the company of his family members in Prince Albert. [ 7 ] Mr. Pellegrini was self-represented at trial. He pursued ongoing joint custody of the child and parenting time, but did not strongly oppose Ms. Tkach being the primary residence parent. He testified that his mental health had stabilized, which was supported by the evidence of his psychiatrist. Mr.

Pellegrini and his family members also testified to having difficulties obtaining information regarding the child from Ms. Tkach, and in their communications with her in general. [ 8 ] Regarding child support, Ms. Tkach cited s.19 of the Guidelines and argued that an income of $55,000 should be imputed to Mr. Pellegrini, primarily on the basis that he had earned that amount in prior years, taking into account his range of income from all sources. Mr.

Pellegrini’s income information for 2015, 2017, 2018, 2019, and 2020 was entered into evidence, which showed dividend amounts attributed to him in 2015 and 2017, and sporadic employment income from various positions he had held over the years. At the time of trial, Mr. Pellegrini testified that he was taking a realtor course while working for his mother part-time at her restaurant. He further testified that his employment had been impacted by Covid-19, and that he received EI and/or CERB in 2020. C. The trial decision [ 9 ] The trial judge found that Mr.

Pellegrini’s evidence established an unwillingness on his part to communicate and co-parent with Ms. Tkach. He ordered that Ms. Tkach have sole decision-making authority and primary residence of the child. The trial judge then granted Mr. Pellegrini specified parenting time that was to occur every second weekend, in addition to holiday parenting time. Mr. Pellegrini’s parenting time was to take place “in the company of” his mother, sister, or grandmother. [ 10 ] On the issue of child support, the trial judge found that Mr.

Pellegrini’s financial statement sworn May 31, 2021, indicating an annual income of $30,000 was “not reliable evidence of [Mr. Pellegrini’s] past earnings or earning potential” (at para 73). He acknowledged that Mr. Pellegrini was studying to become a real estate agent, and that he had worked part-time at his mother’s restaurant, where all of the staff had been laid off due to the Covid-19 pandemic (at para 73). In spite of this evidence, he went on to impute an income of $55,000 to Mr. Pellegrini, retroactive to 2017. The trial judge stated that both the tax records and Mr.

Pellegrini’s evidence supported the position that he was “well capable of earning an annual income of $55,000.00”, even without including dividends that Mr. Pellegrini indicated were “ascribed to him in error” (at para 74). III. ISSUES ON APPEAL [ 11 ] While Mr. Pellegrini initially appealed from all aspects of the trial decision, including property division, he abandoned the ground concerning property division in oral argument. His remaining arguments relating to parenting and child support are addressed in turn below. A. Parenting Issues 1.

The order for supervised parenting [ 12 ] The trial judge dealt with the issue of whether there was a need for Mr. Pellegrini’s parenting time to be supervised in this way: [60] [Ms. Tkach] believes it is important that [the child] continue to have a relationship with [Mr. Pellegrini]. The court agrees provided [Mr. Pellegrini] remains compliant with his mental health treatments and obtains professional help to manage his anger. [Ms. Tkach] believes that [the child] does better in [Mr. Pellegrini’s] care when his mother and/or sister is also involved. [Mr. Pellegrini] offered no evidence on the matter.

While I do not believe supervised parenting is necessary at this point it is in [the child’s] best interests that [Mr. Pellegrini] parent her while in the company of his grandmother, mother or sister … [62] [Mr. Pellegrini] must recognize that the current restrictions on his opportunity to jointly parent [the child] and share parenting time

with [Ms. Tkach] on an equal basis are a function only of his own actions. The constant bickering and name calling at exchanges and thedisparagement to [the child] of persons important to her is not the conduct of a loving and caring parent. This activity must cease at once. (Emphasis added) [13] An initial question arose at the time of the appeal hearing as to how the parties interpreted this part of the order. Both took theposition that, while somewhat unclear, the trial judge had made an order for supervised parenting. That said, Ms. Tkach’s counsel took theposition that the order did not require Mr.

Pellegrini to have family members present during the transport of the child to Prince Albert(where his family resides), and that it did not mean that family members had to be in the room at all times with Mr. Pellegrini and thechild. Nonetheless, I will approach Mr. Pellegrini’s argument as if an order for indefinite, supervised parenting had been made. [14] Regardless of Ms. Tkach’s view of the implementational aspects of this order, I agree with Mr. Pellegrini’s submission that theorder is fraught with legal error that warrants appellate intervention.

I see three such errors in particular. [15] First, the trial judge erred by making an indefinite and final determination that Mr. Pellegrini’s parenting time must besupervised, without a proper evidentiary foundation for the order.

Further, he did so without conducting any legal analysis around the needto impose an order of this nature, which appeared to be contrary to his explicit finding that he did “not believe supervised parenting isnecessary at this point” (at para 60). [16] Second, the order is inconsistent with the caution in the jurisprudence that an order for supervised parenting is to be confined toclear and exceptional circumstances, typically where risk to the child exists, as it creates a significant restriction on parenting time (seeHeck (Meszaros) v Meszaros, 2020 SKQB 230 at para 63).

It is not intended to be a long-term measure but is meant to deal with “short-term transitional issues” (B.L.S. v B.W.S., 2019 SKQB 53 at para 156). In contrast to those principles, the nature of the order imposed herecreates an artificial restriction on Mr. Pellegrini’s parenting time that the authorities speak of as only being required in exceptionalcircumstances, and only for a short duration. [17] Third and finally, there was no evidence led that the child was at risk while in the care of Mr. Pellegrini.

The trial judge can betaken to have acknowledged as much by finding that a supervised parenting order was “not necessary at this point”. Further, Mr. Pellegriniled evidence from his treating psychiatrist that, from 2018 onward, his mental health had in fact stabilized. [18] While this decision should not be taken for the proposition that an indefinite order for supervised parenting could never, in anycircumstance, be made following a trial - the evidence in this case falls far short of justifying such an outcome. Respectfully, the trialjudge erred in the imposition of the supervised parenting order.

That aspect of his order must be set aside. 2. Limits imposed on Mr. Pellegrini’s parenting time [19] The second issue raised by Mr. Pellegrini on appeal is his assertion that the trial judge erred in failing to consider the child’sbest interests and the maximum contact principle in granting what he describes as extremely limited parenting time. Mr. Pellegrini pointsout, for example, that he will only have two days of Christmas holiday parenting time every second year, and that his parenting time is lessthan what he had enjoyed under the interim orders. [20] I agree with Mr.

Pellegrini that the trial judge committed errors in law that impacted this aspect of his parenting order. I say thisfor three reasons. [21] First, as revealed by the trial judge’s reasons, I am of the view that the order for supervised parenting coloured his subsequentconsideration of the scope of Mr. Pellegrini’s parenting time. The entirety of that parenting time was premised on the restriction that itoccur in the presence of Mr. Pellegrini’s extended family members who reside in Prince Albert. This made mid-week parenting time forMr. Pellegrini (who lives in Saskatoon) impractical, if not impossible.

It necessarily follows that all parenting time was contingent on theavailability and proximity of Mr. Pellegrini’s mother, sister or grandmother. [22] Second, as I see it, the trial judge’s parenting order was a punitive measure of sorts, designed to address Mr. Pellegrini’sconduct in relation to Ms. Tkach (primarily at exchanges). This is clear from the trial judge’s comment that the “restrictions” on Mr.Pellegrini’s parenting time “are a function only of his own actions” (at para 62). Not only did the trial judge appear to sparingly parcel outthe amount of Mr.

Pellegrini’s parenting time to chasten him for his behavior during the exchanges, but he also failed to consider thecentral issue at play, being that parenting time is the right of a child. Thus, the analysis of best interests is a child-centered one, focused onthe child’s rights, not the parent’s (see A.O. v T.E., 2016 SKCA 148 at paras 75–77, 88 RFL (7th) 34). A best interests analysis focused onthe child’s needs was lacking here, as the trial judge formulated the parenting order as some sort of corrective measure in relation to Mr.Pellegrini’s confrontations with Ms. Tkach.

Consequently, there is no indication in the trial judge’s reasons as to how this restrictiveparenting time accords with the child’s best interests. [23] Third, while there is no presumption of equal sharing of holiday time in any given parenting matter, and a best interest’sanalysis will always be contextual, Mr. Pellegrini rightly notes that instances of domestic violence do not necessarily preclude an order forequal sharing of school holidays (see for example Sands v Frohlick, 2009 SKQB 406; Anderson v Anderson, 2014 SKQB 244, 452 Sask R226).

Given the evidence before the trial judge, it was not apparent that an order for the equal sharing of holiday time was not in thechild’s best interests. [24] To sum it up, absent a child centered analysis demonstrating why Mr. Pellegrini’s limited parenting time was in the child’s bestinterests, the holiday parenting order that was made appears, on its face, to be fraught with the same legal errors that the trial judge madein connection with his order for supervised parenting. Notably, this involves the extension of a punitive approach to the award of parentingtime for Mr.

Pellegrini. [25] In conclusion, I find the foregoing missteps by the trial judge to be errors within the meaning of Hickey v Hickey, 1999

691 (SCC), [1999] 2 SCR 518 at para 11 (see also Van de Perre v Edwards, 2001 SCC 60 at paras 11–12, [2001] 2 SCR 1014 [Van dePerre]), requiring the trial judge’s order for Mr. Pellegrini’s specified weekend and holiday parenting time to be set aside. 3. Other conditions of Mr. Pellegrini’s parenting time [26] The trial judge made Mr. Pellegrini’s parenting time conditional upon his compliance with treatment for his mental healthconditions, as well as contingent on him “immediately [engaging] in anger management counselling with an accredited professional” (atpara 63).

He also made the following order: The respondent [Ms. Tkach] may, once every six months, request in writing that the petitioner [Mr. Pellegrini] provide, at his expense,proof in writing from his therapists that he is engaged in or has successfully completed treatment, as the case may be, and remainscompliant with the recommendations of the therapists involved in his care. If the petitioner fails to comply with any such request within 30days of receipt of the same the respondent may apply for a review of the parenting arrangements set out in this judgment. [27] Mr.

Pellegrini argues that there was no evidentiary foundation for an order compelling him to attend anger managementcounselling, and that it was improper to require him to report to Ms. Tkach and to empower her with the ability to apply for a parentingreview. [28] While I appreciate Mr. Pellegrini’s argument, there was some evidence before the trial judge to support the order directing himto attend anger management counselling. The parties experienced high conflict during their exchanges, and the trial judge made specificfindings of fact on Mr. Pellegrini’s role in relation to it.

I note that, from the wording of the order, it appears that Mr. Pellegrini needed toonly seek out and complete anger management, rather than attend such programming into perpetuity. In short, it was open to the trialjudge to make this order. Given the standard of review, I see no basis to interfere with this part of the order. [29] However, I agree with Mr. Pellegrini’s second submission on this ground that the trial judge erred by ordering that Ms.

Tkachmonitor his treatment path, given her testimony that prior interim orders allowing her to request proof of his programming by way of letterdid not appear to be “serving the purpose”. I also agree that the trial judge erred by further imposing a provision that Ms. Tkach couldapply for a review of the parenting judgment if Mr. Pellegrini did not comply. A condition like this, while conceivably appropriate in aninterim order, is contrary to the closure and certainty a final order is intended to achieve for the parties and the child (see Van de Perre atpara 13).

The order itself is a novel one, which the trial judge may have based on the prior interim order that incorporated similarconditions. However, that order appeared from the evidence at trial to have not been effective for the parties in any event. [30] Further, I note that if a material change in circumstances arises that impacts parenting – including one that involves adeterioration of Mr. Pellegrini’s mental health – either party may apply to the court to vary the parenting arrangement (see Gordon vGoertz, (SCC), [1996] 2 SCR 27). To be clear, there must be a nexus between Mr.

Pellegrini’s mental health issues andhow they impact the child’s best interests to trigger an application to vary. [31] Thus, the trial judge’s order allowing for Ms. Tkach to request proof of Mr. Pellegrini’s treatment, and to further apply for areview of parenting if he does not comply, must be set aside. 4. Order for sole decision-making [32] The trial judge ordered that Ms. Tkach have sole decision-making authority for the child. After noting that Mr. Pellegrini hadoverheld the child and disparaged Ms. Tkach and her extended family, he found that Mr.

Pellegrini was “unwilling to engage in jointdecision-making with [Ms. Tkach]” and was unwilling to communicate with Ms. Tkach (at paras 50–52). Later in his reasons, the trialjudge stated that the restrictions on Mr. Pellegrini’s “opportunity to jointly parent” are “a function of his own actions”. [33] I am of the view that the trial judge erred in his best interest analysis underlying the decision-making order in severalinterconnected ways. To begin, the decision-making disposition was tainted by the trial judges’ overall punitive and parent-centeredapproach to Mr.

Pellegrini’s request for parenting time and decision-making authority. This is evident in his explanation for the restrictionon Mr. Pellegrini’s ability to jointly parent as being a result of Mr. Pellegrini’s behaviour. As previously noted, this reasoning runs afoulof a child-centered best interests’ analysis, as the trial judge was focused on impacting Mr. Pellegrini’s rights, rather than on what wasbest for the child. [34] Next, the trial judge misapprehended the evidence by finding that Mr. Pellegrini did not provide evidence as to his care of, andrelationship with, the child. The record reveals that Mr.

Pellegrini did in fact testify to details of his parenting time, his routine with thechild, and his plans for parenting time in the future. The trial judge also found that Ms. Tkach supported the child’s relationship with Mr.Pellegrini and his extended family, but failed to reconcile this with Mr. Pellegrini’s evidence that Ms. Tkach had disparaged both him andhis extended family to the child and had withheld parenting time. These errors skewed the evidentiary foundation upon which the trialjudge rested his decision-making disposition. [35] Finally, the trial judge appears to have placed undue weight on Mr.

Pellegrini’s declaration that he could not communicate orcoparent with Ms. Tkach. The trial judge was entitled to consider whether that inability to communicate should, amongst other factors,give rise to a sole decision-making disposition (see Schick v Woodrow, 2012 SKCA 1 at para 25, 385 Sask R 153). However, one party’sassertion that communication is untenable does not rule out joint decision-making (Kaplanis v Kaplanis, (ON CA), 249DLR (4th) 620 (Ont CA) at para 11).

There may be some evidence even in high conflict circumstances that parties can joint decision-make (see for example Akerman v Akerman, 2014 SKCA 86, [2014] 10 WWR 429; Berman v Berman, 2017 ONCA 905 at para 5). Here,the trial judge had to consider the issues around communication and cooperation in the context of a proper child-focused best interestanalysis to determine who should make decisions about the child. [36] None of this is to say that it would be impossible for a trier of fact, with a proper best interests’ analysis, to arrive at the sameoutcome with respect to decision making on the evidence here.

However, given the interrelated nature of his errors undermining the bestinterests’ analysis in this case, this aspect of the trial judge’s order must be set aside.

5. What is the appropriate remedy? [ 37 ] Mr. Pellegrini asks this Court to substitute an order granting him extended parenting time every second weekend and one half of the school holidays. Pursuant to s. 21(5) of the Divorce Act , RSC 1985, c 3 (2d Supp), an appellate court may allow an appeal, and (

a) render the judgment or make the order that ought to have been rendered or made, including such order or such further or other order as it deems just, or (

b) order a new hearing where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice. [ 38 ] Given that the trial in this matter occurred over two years ago, the information relating to the child’s best interests is dated and does not lend itself to this Court making a final disposition on matters of parenting. Thus, the matter must be remitted to the Court of King’s Bench for a determination of (

a) decision making authority for the child, and (

b) Mr. Pellegrini’s parenting time. Mr. Pellegrini has not taken issue with the primary residence order in favour of Ms. Tkach. [ 39 ] So as not to leave the child and the parties in limbo pending trial, based on the record and submissions before this Court, and having regard to the factors enumerated in s. 16(3) of the Divorce Act , and s. 10 of The Children’s Law Act, 2020 , SS 2020, c 2 , I would impose the following interim order: (

a) The parties shall have joint decision-authority over the child, with the child residing in the primary care of Ms. Tkach, subject to the following provisos: i. Pursuant to s. 16.2(2) of the Divorce Act , each parent will have day-to-day decision-making authority while the child is in his or her care. ii. Pursuant to s. 16.3 of the Divorce Act , Ms. Tkach will have decision making authority over all medical/dental decisions for the child, pending further order in the Court of King’s Bench. iii.

Pursuant to s. 16.4 of the Divorce Act , either party is entitled to request and obtain information regarding the child’s health and education from the other, or from any person who is likely to have such information, subject to any applicable laws. (

b) Mr. Pellegrini shall have parenting time with the child every second weekend from Thursday at 3:30 p.m., or immediately after school, until Sunday at 5:30 p.m. Mr. Pellegrini will pick up the child directly from school on the Thursday, when such falls within the school schedule. (

c) Mr. Pellegrini will parent the child during the Easter school break in even years, and the spring school break in odd years. (

d) Mr. Pellegrini and Ms. Tkach will share the school summer holidays with the child equally, on either a one-week on, one- week off rotation, or two-weeks on, two-weeks off rotation, as agreed upon. Giving the timing of this judgment, for the purpose of the summer of 2023 only, the parties will share the month of August, with Mr. Pellegrini’s parenting weeks commencing on August 11 at 5:30 p.m. until August 18 at 5:30 p.m., and August 25 at 5:30 p.m. to September 1 at 5:30 p.m. (

e) Mr. Pellegrini and Ms. Tkach will share the Christmas holiday school break equally, with Mr. Pellegrini having the portion of the holiday including Christmas Day in even numbered years, and Ms. Tkach having the portion of the holiday including Christmas Day in odd numbered years. (

f) All other aspects of the trial judgment with respect to Mr. Pellegrini’s parenting time on long weekends, Mother’s Day, Father’s Day, and Thanksgiving, will remain intact. (

g) None of Mr. Pellegrini’s parenting time with the child is required to be supervised. (

h) When exchanges of the child occur outside of school hours, on weekends or during holiday periods, they will occur either through the Supervised Exchange Program when that program is available, or at the Saskatoon Police Station. (

i) In the event the parties are unable to agree upon particulars or the implementation of this parenting order, they may apply to the Court of King’s Bench for direction. [ 40 ] Finally, I note that while Mr. Pellegrini did not take issue on appeal with the exchanges of the child occurring at the Saskatoon Police Station when the Supervised Exchange Program is not available, I would encourage the parties to consider other neutral locations as alternatives, as attending at a police station seems less than ideal for the child. B. Child Support Issues 1. Imputation of income [ 41 ] Mr. Pellegrini argues the trial judge erred by (

a) imputing an income of $55,000 to him without making a finding that he was intentionally underemployed, (

b) failing to consider whether his underemployment (if it existed) was due to his health or education needs, and (

c) exercising his discretion to impute income absent a proper evidentiary foundation. [ 42 ] I agree with Mr. Pellegrini’s submission. Respectfully, the trial judge erred by not conducting a proper imputation analysis pursuant to s. 19(1) (

a) of the Guidelines , and accordingly, his child support order must be set aside. [ 43 ] At trial, Ms. Tkach had argued that Mr. Pellegrini should be imputed income pursuant to s. 19(1) (

a) of the Guidelines , specifically asserting that he was capable, based on prior tax years, of earning an income of $55,000. That

section of the Guidelines reads as follows: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances

include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse[.] [44] Section 19(1)(

a) required the trial judge to engage in a three-part analysis. First, he had to determine whether Mr. Pellegriniwas intentionally underemployed, from the standpoint that intentional underemployment “concerns situations where a parent, for whateverreason, chooses to earn less than they are capable of earning”, and does not require “a subjective intent to evade or reduce a child supportobligation” (Pontuis v Murray, 2011 SKCA 121 at para 9, 377 Sask R 16; see also D.B.B. v D.M.B. 2017 SKCA 59 at para 71). Second, ifthe trial judge found that Mr. Pellegrini was intentionally underemployed, he had to consider whether any of the exceptions contained in19(1)(

a) applied, namely whether he was underemployed due to the needs of the child or due to reasonable educational or health needs.Finally, if the trial judge found that none of the exceptions in s. 19(1)(

a) applied, he had to then determine whether to exercise hisdiscretion to impute income to Mr. Pellegrini (see Algner v Algner, 2008 SKQB 132 at para 18, [2008] 10 WWR 509; Prokopie v Kuzniar,2007 SKQB 358 at para 25, 305 Sask R 172); Hinz v Hinz, 2017 SKQB 248 at para 21). The principles governing the imputation ofincome pursuant to s. 19(1)(

a) were helpfully summarized by Ryan-Froslie J., as she then was, in Algner as follows: [18] Section 19(1)(

a) of the Guidelines has been judicially considered by a number of courts. The principles relating to its applicationmay be summarized as follows: (

i) Section 19 sets out a non-exhaustive list of circumstances where a court may consider imputing income (See: Donovan v.Donovan, supra, at para 13). (ii) The decision to impute income pursuant to s. 19 is a discretionary one (See: Donovan v Donovan, supra). (iii) In determining an application pursuant to s. 19(1)(a), a three-step analysis should be employed: Firstly, the court must determine ifthe spouse is intentionally under-employed or unemployed. If the “spouse” is intentionally under-employed or unemployed, the courtmust determine whether any of the exceptions set out in s. 19(1)(

a) apply, i.e. whether the under-employment or unemployment isrequired by reason of: (

i) the needs of a child of the marriage; (ii) the needs of any child under the age of majority; (iii) the reasonableeducational needs of the spouse; or (iv) the reasonable health needs of a spouse. Finally, if a court determines a “spouse” is intentionallyunder-employed or unemployed, and that none of the exceptions apply, the court must decide whether to exercise its discretion and imputeincome (See: Prokopie v Kuzniar, supra, at para 25). (iv) The word “intentionally” in s. 19(1)(

a) means “voluntarily”. There is no need to find a specific intent to evade child support(See: Drygala v Pauli (2002), (Ont CA), 61 OR (3d) 711 (Ont CA) at para 16). (

v) A parent has an obligation to seek employment commensurate with their ability to earn income (See: Van Gool v VanGool (1998), (BC CA), 44 RFL (4th) 314 (BC CA) at para 34 and Egan v Egan, 2003 BCSC 2, [2003] BCJ No. 7(BCSC) (QL)). (vi) As a general rule, a parent cannot avoid his or her child support obligations by a self-induced reduction of income.

Thus, once it hasbeen established that a spouse is intentionally under-employed or unemployed, the burden shifts to that spouse to establish hisemployment or lack thereof is reasonable in the circumstances (See: Drygala v Pauli, supra, at para 38; Egan v Egan, supra)). (vii) Parents are entitled to make employment or career changes that may impact their ability to pay child support so long as the decisionis reasonable in the circumstances. (viii) In determining what income should be imputed pursuant to s. 19, the Court should also have regard to what is reasonable in thecircumstances. (ix) The factors to be considered in determining whether employment is reasonable, and in setting the amount of income to be imputedinclude, but are not limited to, the payor’s age, education, training, work experience, skills, historical earning capacity, health, themotivation for the change in employment, the availability of job opportunities, the payor’s ability to relocate, the number of hours thepayor is reasonably available to work and their support obligations (See: Drygala v Pauli, supra, at para 38; Van Gool v Van Gool, supra,at para 30; Donovan v Donovan, supra; Hanson v Hanson, (BC SC), [1999] BCJ No. 2532 (BC SC) (QL) atpara 17; Martel v Martel, 2000 SKQB 227, (2000), 193 Sask R 225 (QB); Cholodniuk v Sears, 2001 SKQB 97, (2001), 204 Sask R 268(QB); Bodanarchuk v Berden (October 31, 2006), Prince Albert, FLD No. 204/2006, (Wilkinson J.), unreported)). [45] Here, the trial judge did not engage in the analysis demanded by s. 19(1)(

a) and did not make any finding that Mr. Pellegriniwas intentionally underemployed. Even if his comments that Mr. Pellegrini’s income was “shrouded in mystery”, and that he was “wellcapable of earning” an income in the range of $55,000, could be read as such a finding, the trial judge did not proceed to consider whetherthe exceptions set out in s. 19(1)(

a) applied, and specifically whether Mr. Pellegrini’s realtor studies constituted a “reasonable”educational need. There was therefore an incomplete analysis conducted, and thus no basis for the trial judge to proceed to impute incometo Mr. Pellegrini, as he did. [46] In any event, even if the trial judge had conducted the first two stages of the imputation analysis, made the requisite findings,and chosen to exercise his discretion to impute income to Mr. Pellegrini - I agree that his testimony and tax information revealed that hehad never earned income from employment sources of $55,000 in any tax year. Mr.

Pellegrini speculated he could earn more moneyfollowing completion of his realtor studies. There was therefore an inadequate evidentiary foundation to impute $55,000 to Mr. Pellegrinias a fair and reasonable income pursuant to s.19(1)(

a) at the time of trial and retroactively (see S.B. v T.B., 2022 SKCA 65 at para 135,[2022] 9 WWR 50). The evidence was that Mr. Pellegrini’s most recent tax year of 2020 indicated that Mr. Pellegrini had a total incomeof $31,352 (comprised of employment income, CERB and/or EI). As will be detailed below, this should be Mr. Pellegrini’s actual incomefor Guidelines support purposes going forward from 2021. [47] I turn now to the question of disposition. Given the record and the available financial information for Mr. Pellegrini, Idetermine that a new child support order can be substituted by this Court. In my view, there is insufficient evidence to support a finding

that Mr. Pellegrini is intentionally underemployed. He was impacted by the Covid-19 pandemic during the 2020 tax year and was pursuing his realtor’s licence while working part-time at the time of trial. Even in the event I would have been prepared to find that Mr. Pellegrini was intentionally underemployed, his pursuit of a realtor licence does not appear unreasonable and would constitute an exception contemplated by s. 19(1) (a) . Ms. Tkach did not make specific submissions to the contrary. [ 48 ] The trial judge applied the imputed income of $55,000 to Mr.

Pellegrini for the period of March 2017, to May 2021, to find him to be in child support arrears in the amount of $10,146. However, I note that the trial judge did not engage in the analysis demanded by D.B.S. v S.R.G , 2006 SCC 37 , [2006] 2 SCR 231, even though it was argued before him by counsel for Ms. Tkach. That said, Mr. Pellegrini does not take issue on appeal with being required to pay retroactive child support for that time period, provided it is done based on the income he actually earned. I agree. [ 49 ] Therefore, Mr.

Pellegrini’s income will be fixed for the purposes of retroactive child support, largely as he suggested in his factum, and as supported by the record, as follows: (

a) for the period of March 1, 2017, to June 30, 2018, his income is fixed at $49,994 (being his total employment and EI income for the 2015 year), as no 2016 income information was provided). (

b) for the period of July 1, 2018, to June 30, 2019, Mr. Pellegrini’s income is fixed at $41,417 (being the sum of his employment, EI and commission income in 2017). (

c) for the period of July 1, 2019, to June 30, 2020, Mr. Pellegrini’s income is fixed at $45,667 (being his employment income, commissions and EI in 2018). (

d) for the period of July 1, 2020, to June 30, 2021, Mr. Pellegrini’s income is fixed at $45,667 (based on the 2018 tax year as suggested by Mr. Pellegrini, given his 2019 T4 reflected earnings of $44,231.67 and his testimony that he received EI in November and December of 2019). (

e) as noted above, commencing July 1, 2021, Mr. Pellegrini’s income is fixed at $31,352 (being his employment, CERB and/or EI income for the 2020 year). (

f) The remainder of the trial judge’s order remains intact that the parties are directed to exchange income information on an annual basis on or before June 1, and each year commencing June 1, 2022, and that either party may apply to the Recalculation Service pursuant to Rule 15-97(5) of The Queen’s Bench Rules. [ 50 ] I leave it to the parties to calculate the specific table amounts and arrears owing by Mr. Pellegrini, based on the new income amounts set out above. 2. Extraordinary expenses [ 51 ] Mr.

Pellegrini’s remaining ground of appeal relates to the trial judge’s determination that the child’s expenses for daycare, school supplies, her enrollment in gymnastics and martial arts in the 2020 year were all s. 7 extraordinary expenses, sharable by the parties proportionate to their respective incomes. I am not prepared to interfere with this aspect of the judgment. The determination of what expenses are extraordinary is contextual and varies from case to case ( see Bear v Thomson , 2013 SKQB 270 at paras 68–70 , 426 Sask R 1 ). Mr.

Pellegrini will pay his proportionate share of the 2020 s. 7 expenses, based on the incomes determined by this Court. IV. CONCLUSION [ 52 ] As Mr. Pellegrini has been substantially successful on the appeal, he shall have his costs of this appeal in the usual way. “Drennan J.A.” Drennan J.A. I concur. “Schwann J.A” Schwann J.A. I concur. “McCreary J.A.” McCreary J.A.