nan REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 380 Date: 2017 12 19 Docket: DIV 207 of 2014 Judicial Centre: Regina Counsel: Christine Hansen-Chad for the petitioner Drew Filyk for the respondent (at the time of trial) S.K. now self-represented respondent JUDGMENT CHOW J. December 19, 2017 INTRODUCTION [1] The petitioner and the respondent were married in Pakistan on December 2, 2001. They have one son, D.K. (also known as D****), [2] Following D.K.’s birth, the family immigrated to Canada in 2005. They initially took up residence in Vancouver, before subsequently relocating to Saskatoon in 2008. In August 2012, the family moved again, this time to Ottawa, but by October of that year the petitioner had relocated to Regina. Instead of joining him, the respondent returned with D.K. to reside in Saskatoon. [3] After series of temporary separations, the petitioner and respondent parted for the final time in April 2014. [4] On April 24, 2012, the petitioner petitioned the court for divorce, joint custody and shared parenting of D.K., and an equal division of the family home and property. The same day, he obtained without notice order granting him interim parenting time, and prohibiting the respondent from removing D.K. from the jurisdiction. [5] After hearing the parties in chambers, the court granted the respondent interim primary residence of D.K., the petitioner specified access, and directed the matter to pre-trial conference. [6] The respondent subsequently applied for interim child and spousal support. On July 4, 2014, the court found the petitioner’s Federal Child Support Guidelines, SOR/97-175 [Guidelines] income to be slightly in excess of $245,000.00, and directed that he pay interim child support for D.K. in the amount of $1,949.00 and interim spousal support for the respondent in the amount of $5,250.00 per month. [7] On January 5, 2015, the respondent filed an answer and counter petition, opposing the petitioner’s claim for shared parenting and an equal division of the family home and property, and claiming divorce and joint custody of D.K., spousal and child support, and an unequal division of their family home and property. [8] The following day, she filed an amended answer and counter petition, abandoning her claim for an unequal division in favour of an equal division of the family home. [9] The action was subsequently pre-tried later that month, without success. [10] The parties seek resolution of the following issues arising from their marriage and its subsequent breakdown, namely: 1) custody and parenting of D.K.; 2) child support; 3) spousal support; 4) division of family property; and 5) divorce. EVIDENCE The Petitioner’s Evidence [11] The petitioner was born May 7, 1974 in Pakistan. He remained there until 2005, when he, along with the respondent and their son, immigrated to Canada. The petitioner testified he has not returned to Pakistan since, but speaks regularly with family members there, perhaps one or two times per month. Aside from one sister, who now lives in Toronto, his entire family continues to reside in the country of his birth. [12] The petitioner recalled that he and the respondent first met in 1998, while the two were working at the same hospital in Pakistan. At the time, the respondent was working as an intern. In 2000, the petitioner commenced four-year medical fellowship. The respondent, he maintained, had no plans to do fellowship at that time and had intended instead to become general practitioner at the conclusion of her internship. [13] The two were married on December 2, 2001, on very short notice the petitioner added, explaining the respondent thought marriage would be good idea. He described the parties’ early relationship as busy. He was resident, and also worked some evenings in children’s hospital, while the respondent worked as general practitioner. [14] On the parties were blessed with the birth of son, D.K. In Pakistan, the petitioner explained, their son’s surname, K***, is synonymous with his own surname, L****. [15] The petitioner was present for the birth, which was by way of caesarean. Because the respondent was working as general practitioner, she was able to commence maternity leave approximately month prior to D.K.’s birth and to remain on leave for some time thereafter, while the petitioner was obliged to return to work after only few days. [16] According to the petitioner, after their son’s birth, he worked early mornings until approximately 4:00 p.m., and then some evenings again from 5:00 p.m. to 10:00 p.m. He testified that in the morning before going to work, he would help with diapers, bottles and the like, and if he had time, he would bathe D.K. [17] He described the respondent’s relationship with members of his own family as poor, and explained that, while they respect her, she has had little to do with them. Despite never having met her father, the petitioner claimed to have good relationship with the respondent’s family. [18] According to the petitioner, while in Pakistan, he and the respondent managed largely with the assistance of friends, as the respondent made it clear she did not care for his family, or her own for that matter. Initially, the couple did not even notify their relatives of D.K.’s birth, and his family has only met their son once, in 2005. [19] The two agreed to apply to come to Canada, and after being interviewed in 2005, they were selected to immigrate. According to the petitioner, the respondent had previously applied, before their marriage, but had been unsuccessful. [20] He recalled they remained in Pakistan for approximately nine months following D.K.’s birth. During this time, the respondent stayed home to care for their son and to plan for their move to Canada. They were accepted to immigrate in March 2005, and arrived in September of that year. Once here, according to the petitioner, he worked and studied for exams while the respondent remained at home with D.K. [21] From September 2005 until approximately June 2008, the parties resided in Vancouver, where the petitioner worked long hours, five or six days per week as security guard, while studying for his medical exams. Eventually, the respondent also obtained temporary employment working five to six weeks on an election campaign. [22] After completing his exams in 2007, the petitioner was successful in obtaining medical residency. The respondent, he maintained, wanted him to work but did not wish to do so herself, or to continue with her studies, preferring instead to stay home. The petitioner agreed he had better chance of obtaining employment in his chosen field and, after applying for approximately 60 programs, he was granted two interviews. Eventually, he was offered residency in Saskatoon and, according to the petitioner, both he and the respondent were very happy with this opportunity. [23] The family relocated to Saskatoon in June 2008, where the petitioner commenced his new position the following month. According to his evidence, whenever he was not at work, the petitioner helped the respondent care for D.K. by feeding and bathing him, and changing diapers. [24] Initially, D.K. attended Montessori school, but eventually transferred to the public system. According to the petitioner’s testimony, he regularly attended school functions, as well as D.K.’s extracurricular pursuits, such as soccer and swimming, and both he and the respondent were responsible for getting their son to his activities. [25] The petitioner testified that he and the respondent had agreed that once he obtained his residency, she would study for her exams and eventually apply for residency of her own. According to his evidence, over the course of approximately two years the petitioner paid for cleaner and babysitter to assist the respondent on an ad hoc basis, whenever she needed time to study. While in Saskatoon, the respondent applied for residency but was unsuccessful in obtaining an interview because, according to the petitioner, she had become frustrated and failed to complete research project. [26] The family remained in Saskatoon until June 2012, when they relocated to Ottawa so the petitioner could pursue pediatric critical care fellowship. By this time, according to his evidence, the parties’ relationship had begun to deteriorate, and the respondent returned to Pakistan twice. [27] The Ottawa fellowship, he explained, allowed him to pursue his chosen career as children’s intensivist. According to the petitioner, he and the respondent discussed the opportunity in advance and they agreed he should apply. The respondent, he recalled, was initially happy in Ottawa, but within couple of months she was insisting that he quit and start working as general practitioner, so he could work more hours. According to his evidence, he eventually relented and, in October 2012 he resigned from the fellowship after only month. [28] According to the petitioner, it would have only taken him two years to complete the Ottawa fellowship, and he could have stayed, but the respondent wanted him to earn more money, as the couple were broke and their lines of credit exhausted. Saskatchewan Health, he explained, was eager to have him return, so he resigned the fellowship in Ottawa and within week began working in Regina, where he could earn more money. [29] The petitioner relocated to Regina first, and the respondent was to join him thereafter. According to his testimony, she did so briefly but soon advised she did not want to live with him any longer, and left with D.K. for Saskatoon. This, he explained was the third time she had separated from him. [30] He recalled that in December 2011, the respondent had returned to Pakistan in the wake of her mother’s passing. She remained there, according to the petitioner, for three to four weeks, during which, he assumed full responsibility for D.K.’s care. He explained that, when the respondent failed to return from Pakistan as scheduled, he managed, with the assistance of friends, to get their son to school and to care for him while he was also working. [31] The respondent, he recalled, complained she was no longer happy living with him, and, according to his evidence, she did not contact him or D.K. during this time except to advise she was not coming back for another 10 to 12 days. The petitioner testified that he and D.K. both missed the respondent, so she eventually returned, but their difficulties continued. The respondent, he added, resented him and blamed him for many of their difficulties, and the two slept in different rooms. [32] He testified that from April until June 2012, the respondent took D.K. with her to Pakistan in spite of the petitioner’s reservations. According to his evidence, he did not have the respondent’s contact information and she only called him once. When she did eventually return, the petitioner explained, the respondent resided in their condominium in Saskatoon until they moved as family to Ottawa. Then, after he accepted the position in Regina and returned to Saskatchewan, the respondent chose to live in Saskatoon with their son, from October 2012 until March 2013. According to the petitioner, he was afforded very little access with D.K. during this [33] He recalled that the respondent eventually returned with D.K., and they again resided together briefly as family in Regina, from March 2013 until July of that year. Initially, they resided in rented condominium, and eventually he and the respondent purchased home together in June 2013. They lived there for approximately 10 days, according to the petitioner, before the respondent once again left, surreptitiously, with their son while he was at work, on July 7. The petitioner testified he did not see D.K. again until September 2013. [34] When he attempted to contact her through text message, the respondent simply advised that she and their son were safe, and she did not wish to live with him anymore. According to the petitioner, he did not know where the respondent and D.K. were living, but he did not wish to go to the police or to child protection. After approximately three months, the respondent permitted him to see D.K., for approximately four hours, at the end of September 2013. [35] According the petitioner, while he and the respondent resided together from March until July 2013, he saw D.K. every day, and he was only on call in the evenings. [36] From September 2013 until February 2014, the respondent allowed him access to their son couple of days per month. He attended parenting after separation classes, and the respondent admitted to him, according to his evidence, that she realized it would be difficult for D.K. to be separated from his father, and advised she wished to return to live with him. He and the respondent again briefly reconciled until April 2, 2014, when they separated for good. [37] According to the petitioner, when D.K. was with the respondent he had lots of screen time, and as result, had poor performance in school. It was his evidence that the teacher had warned them D.K. needed to spend more time reading. As result, he and respondent had agreed their son would only have screen time after he had completed his studies each day. He explained that on April 1, 2014, D.K. had complained he was too tired to study, and was upset that he could not play. The petitioner maintained the respondent did not support him and insisted that D.K. could do whatever he wanted. The next day, according to the petitioner, the respondent left, once again, with their son. [38] On April 9, 2014 he recalled, the respondent wanted money for furniture, so he gave her $2,000.00 on the condition that she allow him to see D.K. The next day, according to his evidence, the respondent falsely alleged that he had threatened her. [39] The petitioner explained the respondent now resides in Harbour Landing, while he lives approximately one km away. [40] As for assets, he testified they had purchased condominium in Saskatoon, which they subsequently sold in 2013 for $244,500.00. The net profit from the sale was $13,774.00 and according to the petitioner, the respondent made it condition of the sale that she receive all of the net proceeds, which she did. [41] While residing in Saskatoon, the parties also purchased SUV for the respondent, for approximately $32,000.00 which was secured by loan. According to the petitioner, the balance owing was ultimately transferred to his line of credit, although the respondent still has possession of this vehicle. [42] He referred the court to number of documents exhibited in the proceedings and explained they had purchased home in the Harbour Landing area of Regina, on James Hill Road and as of April 30, 2014, the mortgage registered against the same had balance of $360,299.00. He also noted Royal Bank of Canada [RBC] account for personal expenses which, as of April 22, 2014 had balance on deposit of $2,755.00. [43] According to the petitioner, the parties also had joint account containing $153.00 as of April 2, 2014. [44] He also referred to the business valuation prepared by Virtus Group, as of December 31, 2014, and explained that the nature of his practice is unpredictable. [45] As for the parties’ debts, the petitioner testified he had obtained an interest-free loan from the Regina Qu’Appelle Health Region [RQHR] in the amount of $30,000.00, with three-year term, and recalled these funds were received by way of cheque and subsequently deposited into their joint Toronto-Dominion [TD] account. [46] He also testified to National Bank Loan in the amount of $190,000.00, which was, according to his evidence, used to pay child care, education and travel expenses and the like. When he started working, he explained, National Bank converted one half of the balance then outstanding to loan and the other half to line of credit. [47] He had also secured student line of credit from RBC. Although this line of credit was originally obtained in both his name and the respondent’s, she wanted to be released from any obligation for this debt, and it was subsequently transferred into his name alone. According to the petitioner, like the National Bank debt, the proceeds from this RBC line of credit were used to purchase their home, and to satisfy the parties’ education, living and other expenses. The RQHR loan, he explained, was used principally to establish his practice and to maintain cash flow for living expenses until he began receiving an income. The petitioner also testified as to RBC credit card in his name, which he used for company expenses, and TD credit card, which he used for personal expenses. [48] He explained that there is also “return of service” loan owing to the health region in Ontario, because he did not complete his service to them after leaving Ottawa. According to the petitioner, the health region there expects he will work five months for them, or alternatively, repay the balance outstanding on this loan in the amount of approximately $23,222.00. [49] The respondent, he added, had also obtained personal loan from her brother, in the amount of $35,000.00, which she received on March 30, 2014, on the understanding these funds would be applied in satisfaction of this loan. [50] Filed by consent was the petitioner’s financial statement and personal tax returns for the years 2012, 2013 and 2014, along with the professional medical corporation’s tax returns for 2013 and 2014. [51] The petitioner estimated his income for 2014 to be approximately $309,700.00, inclusive of salary and dividends and explained he receives fixed salary of $13,625.00 per month, from which he pays child support and spousal support, leaving him approximately $6,435.00 to cover his personal expenses, such as the mortgage, groceries and utilities each month. In the event his salary is inadequate, he draws dividends from his corporation as required to make up the shortfall. [52] He is presently making payments on account of the National Bank loan in the amount of $1,100.00 per month, and is paying an additional $500.00 per month toward the National Bank line of credit. He also pays $300.00 on account of the RBC line of credit, and is repaying the RQHR loan by way of monthly instalments of $1,500.00, as he was unable to repay the balance in full when it became due in October 2015. He estimated it will take him another year and half to two years to fully retire this particular debt at the present rate, and did not believe he would be permitted to extend the payment schedule beyond that. [53] The petitioner confirmed that since August 2014, he has paid the respondent spousal support in the amount of $5,250.00 per month, pursuant to an order of the court. Prior to this, he explained, he had been providing her with $6,000.00 per month, since March 2013, by way of dividends from the corporation, excepting for the month of July 2013, when he only provided the respondent with $3,000.00 because, according to his evidence, he was unable to find her. He added that, in October 2013, he paid $6,000.00 and in March 2014, he paid an additional $4,000.00 because the respondent asked for it. [54] The petitioner explained that he was now paying total $7,199.00 per month, inclusive of both child and spousal support, which sum is transferred directly from his RBC account to the respondent’s. [55] The petitioner described D.K. as an intelligent and pleasant boy, and good student, who has done reasonably well in the circumstances. He likes swimming and soccer and has many friends with whom he bikes and plays in the park. D.K. also likes video games and is generally happy child, according to the petitioner. He maintained that D.K. has told him he would like to spend more time with the petitioner, and recalled that, following the respondent’s return from Pakistan, she again moved in with him and attempted to reconcile because D.K. insisted he wanted to live with the petitioner. [56] He testified that when D.K. is in his care, they enjoy eating out, going to the movies and looking at the new housing construction in his neighbourhood. [57] D.K. has been attending Grade classes at Dr. Perry School in Regina since September 2013. Prior to this, the petitioner noted, he was enrolled at Argyle School. According to his evidence, the respondent unilaterally transferred their son, ostensibly because he was not receiving enough attention at Argyle, and the petitioner was not made aware of the transfer until it came to his attention at the end of September 2013. [58] He testified he has attempted to speak directly with D.K.’s new teacher, but has yet to hear back from her. He has also asked to be informed of educational information when it is released, but has been instructed to obtain it himself online. [59] According to the petitioner, their son had experienced some issues at school in the past, but is now doing well. He noted in this regard that while D.K.’s Grade report card contained only C’s and B’s, but no A’s. In Grade he earned all A’s and B’s, and not single grade. He maintained their son’s academic improvement is due in large part to the fact he is now able to assist D.K. with his schoolwork. He noted that in the preceding year, while D.K. was attending Grade 5, his access was limited to the first three weekends of each month, and each Wednesday. In April however, the respondent left for job offer in Dubai, and was gone for two months, during which, D.K. lived exclusively with the petitioner. According to his evidence, he and D.K. had good time during this period, and they worked together on his studies. The petitioner also enrolled their son in soccer, and they spent great deal of time building Lego and working on school projects. [60] The petitioner explained that this arrangement presented something of challenge, as the respondent had only given him week’s notice prior to leaving, but he successfully managed to arrange for child care, and to drop their son off for school every day, and pick him up most days as well. He testified that, as he is self-employed, he can manage his hours without substantially impacting upon his income and explained that he had hired student who lives nearby to assist in the event he had to be on call, or to work nights, and during the one week per month that he has to stay at the hospital from 8:00 a.m. until 5:00 or 6:00 p.m. [61] He recalled that, when the respondent finally returned from Dubai, he invited her to come and watch D.K. play, although it was his access period. He explained that, although he has tried to participate in extracurricular, educational and medical decisions, the respondent refuses to include him, and the petitioner could not say if D.K. is still involved in soccer. He claimed the little information he has about D.K. is derived from the times he enjoys access. [62] According to the petitioner, D.K. regularly tells him he wants to live with each parent on weekly rotation. To that end, the petitioner advised that in his opinion, it would be in D.K.’s best interest to be with his mother, and his father, as they are both significant influence in his life, and proposed that he and the respondent share parenting of D.K. on alternate weeks, with exchanges occurring on Mondays at school. Medical appointments, illnesses or other important information could be exchanged via text message and, in the event either parent is unable to care for D.K. for an extended period of time, the other should be their son’s alternate caregiver of first instance. [63] The petitioner reiterated his concerns about D.K. visiting Pakistan. He explained that, while he has no objection to their son traveling within Canada, he is opposed to any proposal for international travel, as he believes the respondent might refuse to return D.K., particularly if travelling to Pakistan. [64] D.K., he confirmed, prefers to be called D****, and that is how he and the respondent refer to their son. He testified that he and D.K. love one another, and that as parents, he and the respondent each possess different strengths which they can offer their son. [65] He reiterated that from July until the end of September 2013, he was denied any contact whatsoever with D.K. In September, according to the petitioner, he saw their son for four hours and, from October until February 2014, his access with D.K. was limited to approximately one day every two weeks, and then one weekend every two weeks but, he added, only after lawyers became involved. [66] In November or December 2013, he proposed four way meeting, in the hopes the parties could agree to parent on alternating weeks, but the respondent refused to participate, and the most she would offer was one weekend every two weeks. [67] He testified that in February 2014, he and the respondent reconciled briefly, but unsuccessfully and from April 2014 until the matter went to court, he was again denied access. He then saw D.K. couple of days every second weekend and thereafter, pursuant to court order, he was afforded access on the first three weekends of each month, as well as every Wednesday. [68] According to the petitioner, he has not been provided with any additional access beyond the court-ordered weekends and Wednesdays, save for four additional hours the preceding Christmas. [69] The petitioner confirmed he has had occasion to discipline their son in the past, and explained that he begins by talking to D.K., or taking away privileges, or by implementing timeouts. He expressly denied ever having used physical or corporal punishment. [70] He reiterated that he still fears for D.K.’s safety should he be permitted to travel to Pakistan, and those concerns are what has prevented him from returning himself. He recalled that in 2012, the respondent took D.K. to Pakistan when she moved out in April of that year, and they did not return until June. Although he was aware D.K. would be traveling there, he insisted he had concerns for his health and safety, and made those concerns known to the respondent. The respondent, according to the petitioner, had also wanted to take their son to Pakistan in July 2011, but they had discussed it, and she agreed to leave D.K. in Canada with the petitioner. [71] As for his work schedule, the petitioner explained he has one hospital week every one to two months, usually in the last week of the month, and during this time, he is generally obliged to remain at the hospital from 8:00 a.m. until p.m. He also shares night call responsibilities three to four times per month and stays home, but on occasion he may be obliged to go into the hospital. On these occasions, however, he is able to schedule his hospital attendances. [72] According to the petitioner, he has not taken single vacation in the preceding two years, explaining that, as he was alone, and as his professional corporation has no money and he no savings, he elected to work instead. He testified he aspires to eventually take four to six weeks off, but noted that if he is not working, he is not earning an income. The petitioner explained that, although his colleagues are able, when necessary, to cover his hospital time, as he is employed on fee-for-service arrangement, he is not paid for that time. [73] In the past, he recalled, there was shortage of staff at the hospital, so he worked long hours, but now, the hospital staff is larger, so there is not as much work. In the future, he anticipated his workday will generally begin at 9:00 a.m. and conclude by 3:30 p.m. on weekdays, and from 9:00 a.m. until 5:00 p.m. on Sundays. [74] The petitioner testified that his accountant convinced him to incorporate professional corporation, which in turn pays him salary, and dividends when available. Although he hopes to retire in approximately 20 years, and to put money away for D.K.’s education along the way, the petitioner acknowledged he presently has no pension or retirement savings, save for his Canada Pension Plan. [75] As for the living arrangements at his home, the petitioner confirmed that D.K. has his own bedroom, as well as various personal effects at the petitioner’s residence. He explained that he does not drive and, in the past, has arranged to get D.K. to soccer practice in taxi, or to enlist the assistance of friends or the babysitter. In addition, there is bus stop in front of his house and, if necessary, he can arrange to get D.K. to his school, approximately kilometre away. According to the petitioner, this is how he and D.K. managed while the respondent was in Dubai. When D.K. is with him, he is off to bed at approximately 8:30 p.m. or 9:30 p.m., and is up at approximately 6:30 a.m., usually without assistance. [76] His work schedule, according to the petitioner, coordinates well with their son’s school schedule, and the only times it presents any difficulty are during some of his Wednesday access periods, when he is unable to leave the hospital, once or twice per month. [77] The petitioner testified that he loves their son, and talks to him about school, his feelings and the like. He maintained that D.K. has expressed desire to have his mother and father live together, but less often now than in the past, as he has met other children at school who are in the same situation. The petitioner stated he has told D.K. not to worry about his parents’ relationship, that they are working on it, and things will be fine. Except to remind D.K. that when he is at the respondent’s home he has to follow her rules and respect her, the petitioner maintained he has not spoken with their son about the separation since 2014, when D.K. asked to come and live with him, and he and respondent briefly attempted reconciliation. [78] Under cross-examination, the petitioner allowed that he and the respondent disagreed about many things, including their finances and the parenting of their son, but noted they also agreed on number of other issues, including their decision to become married, and to relocate together to Canada. He also confirmed that he did not wish to return to Pakistan, out of concerns for his personal safety, and has not done so. [79] He acknowledged that, while in Pakistan, he tended to work 80 to 90 hours per week, and since arriving in Canada and qualifying to practice medicine, he continues to work long hours, but observed that this is the life of doctor. In Pakistan, he explained, the standard of living is lower for doctor and there, he noted, he was resident and not specialist, as he is here. [80] According to the petitioner, the respondent and their son would spend weeks at time with him when he was training in Vancouver, and they came to join him when he was studying in the United States for period of time as well. Although this increased their expenses, he explained, he was happy to have them both there with him. [81] The petitioner maintained that he considers the respondent to be true Muslim, but from different sect, and adamantly denied that he would become angry with her if she touched his holy book, explaining it is her holy book as well. [82] His father, the petitioner testified, had insisted he marry his cousin, but he did not like her, and did not want to marry his cousin in any event. When he married the respondent, she had already applied to immigrate to Canada. It would have been more expedient, he added, for him to immigrate to the United States instead. [83] He insisted he was in favour of the respondent maintaining relationship with and speaking to members of her own family but, he added, she refused to have any relationship with his. According to the petitioner, when her mother died in 2011, the respondent had not spoken to her for approximately three years, despite his attempts to persuade her to do so. He also maintained that the respondent does not enjoy good relationship with her siblings, save for one brother, Khalid, from whom she borrowed money. He denied he had been the one to persuade the respondent to ask her brother for money, and insisted it was her idea. According to the petitioner, while he and the respondent both used this money, he assumed sole responsibility for repaying it. [84] In order for the respondent to be licensed to practice medicine, the petitioner explained, she needs to complete residency, just as he did. He noted she has applied twice already without success. On the first occasion, he recalled, the respondent applied for residency outside of Saskatchewan, but on the second occasion, she applied primarily in the province because, according to the petitioner, they had agreed it would be difficult for D.K. to be removed from his school and friends. [85] The petitioner reiterated that he and the respondent originally agreed that he would complete his residency, and she would care for D.K., before embarking upon her own residency. However, the respondent did in fact write exams, undertake some training, and subsequently apply for positions while the petitioner was still resident. [86] The petitioner explained that in Saskatchewan, general practitioner can be practising medicine within few months, and it would be an advantage for the respondent to apply here. He insisted he had no desire to limit where she might apply for residency, but explained she would be required to work 70 to 80 hours per week as resident, just as he did, and maintained his only concern was who would care for D.K. while they were both working. [87] He conceded that the family had immigrated first to Vancouver, then to Saskatoon, and Ottawa to further his career, but maintained they left Ottawa to return to Regina because the respondent wanted them to. He insisted that it is in D.K.’s best interest to remain living in close proximity to his friends, schools and supports, and explained that their son was not in school when the family relocated to Saskatoon. He also noted that the respondent has changed their son’s school twice while in Regina, three times in Saskatoon, and on two more occasions while the family resided in Ottawa. [88] The petitioner denied the family was forced to leave Ottawa and relocate to Regina because he had failed to fulfil his service to Saskatchewan Health. In fact, he asserted, he had originally obtained letter from Saskatchewan Health, confirming their approval for him to work in Ottawa, which approval, according to his evidence, they subsequently withdrew. The petitioner also denied the suggestion by opposing counsel that, while working in Saskatoon, he had been investigated by the hospital over his temper, and denied further that another doctor had complained about him. [89] The petitioner agreed that the respondent had left the relationship on four separate occasions, and acknowledged she claimed to have left Ottawa because of abuse, perpetrated by the petitioner upon herself and their son. He denied this allegation and also denied having abused the respondent while they were residing in Vancouver. [90] The petitioner allowed that he and the respondent had separated in 2012, but denied he was emotionally or verbally abusive in any way. On the contrary, he suggested, it is the respondent who is emotionally and verbally abusive to him. [91] He also denied ever having threatened the respondent, explaining that when they last separated, on April 2, 2014, he had provided her with $2,000.00 for furniture on the condition that she permits him to see D.K. When she refused, he added, he told her he would take the matter to court. Two days later, he recalled, the police attended at his door. [92] The petitioner denied once again ever having physically or verbally abused the respondent, or hitting their son with his hand or with anything else. According to the petitioner, in the past the respondent has also accused him of sexually assaulting D.K., and social services has fully investigated those accusations. [93] He acknowledged that between April and June 2012, the respondent had taken their son to Pakistan and, although he had concerns the respondent might not bring D.K. back, they did return on June 19th. He also allowed that the respondent has travelled to Norway, New York, Toronto and Vancouver, often with D.K., and on each occasion she has returned. [94] He maintained that he is only concerned with D.K. traveling to Pakistan because of the instability there and the risks to his safety. He explained that when he previously deposed in an affidavit that the respondent had removed their son to Pakistan without his knowledge and consent, he was referring to the trip in 2012, and not an earlier one in 2011. Upon further cross-examination however, he acknowledged having provided her with written consent for travel for the period April to June, 2012. When confronted with this document by counsel, he maintained he had previously deposed to not having provided his consent, because it was not his will. [95] The petitioner proposed that the respondent had attended upon Saskatoon physician in March 2012 to report abuse, because she was aware he intended to pursue court ordered access to their son. According to his evidence, he only discovered the respondent had attended the domestic violence unit in 2013 from reviewing her affidavit, sworn in 2014. Similarly, it was only in the context of this affidavit that he had been made aware that the respondent had also arranged for D.K. to attend counselling through Child and Family Services, and he was never advised of when the counselling sessions were to take place, nor invited to attend. [96] He denied opposing counsel’s claim that D.K. once told the petitioner to get out of the house or he would call the police, asserting instead that their son had observed the respondent abusing him. [97] The petitioner was confronted with his property statements, sworn November 2, 2015, and August 18, 2014, and confirmed that both documents were true and correct to the best of his knowledge. The home, he testified, was purchased for $422,000.00, and although there were some items of furniture included in the price, he had also purchased dining room suite, coffee table, bedroom furniture, office furniture, washer and dryer, new television and treadmill. He agreed he has retained the majority of these household items since the parties separated. [98] The petitioner was then confronted with an appraisal of the home, suggesting that as of July 9, 2014, the home was worth $445,000.00 and conceded that this appraisal was provided to him prior to swearing his property statement in which he valued the home at $400,000.00. According to the petitioner, he valued the home at the reduced amount because he believed the housing market had softened. He noted there is mortgage registered against the property, and submitted the net equity in the same is approximately $74,000.00. According to the petitioner, the respondent had refused to sign the necessary paperwork to refinance the mortgage on the home at lower rate. [99] He conceded the respondent had requested copy of an earlier appraisal performed on the home, and suggested the respondent had also arranged to have an appraisal performed, and that someone actually attended at the home for that reason. [100] He explained that the $35,000.00 payment to the respondent was intended to repay the loan to her brother, and was drawn from dividends from his company. According to the petitioner, the balance actually owing to her brother at that time was approximately $20,000.00, but the respondent insisted on $35,000.00, so he gave it to her. [101] The petitioner asserted that, in his opinion, the respondent should be obliged to share in the repayment of his student loans, but agreed that it is reasonable to anticipate the respondent will also have expenses associated with setting up clinic of her own. [102] He testified that he has had learner’s driving permit for couple of years and explained that initially, he did not have enough money to purchase car. When he and the respondent were together, they had family car, but he did not drive because he had not obtained license. The petitioner confirmed he intends to obtain one within the next few months, as he needs only to complete road test. [103] He reiterated that their plan had been for him to complete his residency, and when he had begun to practice medicine, the respondent would then work to complete her own residency. [104] The petitioner agreed that he is currently licensed to practice medicine, and earns in excess of $300,000.00 per year doing so. He acknowledged his 2014 tax return shows income in excess of $309,500.00 of which $203,500.00 is salary and $106,200.00 is dividends, but explained his income that year was artificially high, as he had drawn down more than usual to pay income taxes. In the present year, he suggested, he is performing about the same amount of work, but has taken few extra days off and he anticipated that his salary would be the same, but that his dividends would be lower, as these dividends are declared and distributed in accordance with advice he receives from his account. [105] He maintained the respondent would have received approximately $66,000.00 in dividends in 2014, but acknowledged he ceased paying these dividends to her in July of that year, because she was receiving spousal support. [106] The petitioner was also confronted with the practice valuation report prepared by Virtus Group. He acknowledged he had not provided Virtus with his patient list when the report was prepared, but estimated he had approximately the same number of patients now as he did then, explaining that, as most of his patients come by way of referrals from family doctors, there is very little in the way of long-term recurring patients that remain in his care. [107] He recalled that, prior to attending Dr. Perry School, in Regina, D.K. had attended Argyle School. The petitioner explained that he and the respondent were living together at the time, on McIntyre Street in Regina, and that Argyle School was in the district. He maintained however, that he was never informed or consulted about the subsequent change to Dr. Perry School. He did not know the name of D.K.’s teacher at Argyle School. [108] He acknowledged that while the respondent was abroad, and their son was residing with him, D.K. was often sick with colds, fever and the like, which he attributed to changes in the weather. According to the petitioner, to his knowledge their son did all of his homework during this time, but he allowed that on couple of occasions, D.K. did not bring home his agenda. The petitioner believed D.K. had simply forgotten, and he emailed the teacher to have her remind him to bring the agenda home. He conceded having only sent D.K.’s current teacher one email, the week preceding trial, and explained he had not attended parent-teacher interviews because they had not emailed him to advise when they would take place, even though he had asked to be included. [109] He also denied that their son had only one sleepover while in his care, asserting that in fact there were two occasions during the two month period that D.K. resided with him. [110] During these two months, he agreed, he had paid the respondent no child support, explaining that although there was court order, it was his understanding that the support was to finance the care of their son, who was at that time living with him. He testified he presently pays the respondent combined spousal and child support of $7,199.00 per month. He agreed that initially, he experienced some difficulty deducting the spousal support for income tax purposes, but acknowledged the respondent had provided him with the necessary confirmation to remedy the situation within week of being asked. [111] According to the petitioner, the respondent also emailed him to advise she had enrolled D.K. in basketball, despite the fact their son wanted to play soccer instead. In response, the petitioner enrolled D.K. in soccer. He denied he had refused to provide the respondent with D.K.’s health card when she had previously asked for it, insisting he had simply forgotten to do so until two days later. [112] The petitioner recalled that D.K. was with him the preceding year for his birthday, and he had made plans for party, but was advised the respondent had already booked the same venue for D.K.’s birthday party with his friends. In an effort to avoid problem, the petitioner testified he and D.K. spent the day together and went out for dinner and movie instead. [113] He confirmed he no longer has home phone, explaining he had cancelled the service to save money at the end of June 2015. He added that as of October 2015, D.K. has his own cell phone, but explained he only has access to it when in the care of the petitioner because, according to his evidence, D.K. is fearful he will get in trouble if he takes it to the respondent’s home. [114] He agreed his home has security system, and conceded their son does not know the access code, but denied this presented problem, as he is always there with D.K. in any event. [115] Under redirect examination, the petitioner clarified, with respect to the home appraisal performed in July 2014, that the same was prepared at the request of the financial institution, as condition of the proposed mortgage refinancing, and was forwarded directly to the lender. As result, the petitioner maintained, he had not seen this appraisal. Kenneth Goodmanson [116] The petitioner tendered an appraiser, Kenneth Goodmanson, as an expert witness. Mr. Goodmanson testified he prepared two appraisals on the family home; the first was completed in July 2014, and the second in September 2015. [117] Counsel for the respondent conceded Mr. Goodmanson’s qualifications, and the validity of his opinions as to the value. [118] Mr. Goodmanson recalled that the first of his two appraisals was performed in 2014 at the request of the petitioner, and subsequently provided to him personally, and to his mortgage lender, while the second appraisal was prepared by the witness, upon the request of the petitioner’s lawyer, ostensibly for use in the within proceedings. [119] With respect to his first report, the witness noted it explicitly states it is prepared for the benefit of CMLS financial and sets out the lender’s email address. To the best of his recollection, Mr. Goodmanson also provided copy of this report to the petitioner. [120] As for the subsequent appraisal report prepared in September 2015, the witness confirmed it was prepared at the request of petitioner’s counsel, and that he was aware at the time that it would be used in these proceedings. [121] The witness testified that in his opinion, as of September 2, 2015, the family home had fair value, of $434,000. He explained the home is located in the Harbour Landing area of Regina, and there is lot of inventory available in this particular development at this time, so demand has not been strong. In his further opinion, the value of the home at the time of trial would be the same, or slightly less than the figure provided in his September 2015 report, as winter was approaching. [122] Mr. Goodmanson recalled that, after completing his initial report in July 2014, the respondent attended at his office in August, and asked to speak with him. She was not, in his opinion argumentative, but inquisitive. When she returned second time and requested copy of the report, he explained to the respondent that he could not oblige her request, as she was not his client. According to the witness, the respondent then attended upon his office third time, in September 2014, and he once again confirmed he was not at liberty to provide her with copy but suggested she speak directly with the petitioner or his lawyer. [123] The witness was, in the course of cross-examination, referred to his report of July 2014, and confirmed that he had, at that time, estimated value of the family home to be $445,000.00. Rupinder Multani [124] The court heard as well the evidence of Rupinder Multani, an ultrasound technician employed with Radiology Associates. Ms. Multani explained that she lives on Gordon Road, in Regina, and is familiar with both the petitioner and the respondent, as their son, D.K., attends school with her son, Prabnoor. She described her son and D.K. as good friends who play together regularly. They are in small class of only nine children, and recalled that D.K. had alerted her to the fact that Prabnoor had been bullied at school. While she tries whenever possible to attend school functions, Ms. Multani explained she is quite busy, and usually only attends parent-teacher interviews. [125] The respondent, she recalled, used to bring D.K. to her home, as would the petitioner on occasion, and she has seen D.K. in the company of both parents. In the month prior to trial she had seen D.K. and the respondent at local store and had also observed the petitioner and D.K. playing in the park. [126] She described D.K. as good boy, charming and happy, and confirmed she had personally observed D.K. while he was living with the petitioner, during the respondent’s two month absence, and watched them playing in the park. In her opinion, D.K. appeared happy in the company of the petitioner and, according to the witness, she has never observed him to be uneasy or reluctant when in the care of his father. She noted she has never personally observed either the petitioner or the respondent discipline D.K., or become angry with him. [127] Ms. Multani went on to recall that she moved to the area in September 2014 and that D.K. has been friends with her son, Prabnoor, ever since and that he has been to the petitioner’s and the respondent’s homes. According to the witness, Prabnoor has advised her he does not want to go to the respondent’s home any longer, but she does not know why, and he has not been to visit with D.K. at the petitioner’s home in while, because he’s been busy on the weekends. [128] Under cross-examination Ms. Multani advised that D.K. and the petitioner had been to her home together approximately three or four times, but allowed that on most occasions, the petitioner would simply drop D.K. off, and she could only recall one occasion on which the petitioner remained at her home for any length of time. Todd Stephen Underwood [129] The last witness to testify for the petitioner was Todd Stephen Underwood, partner with Baker Watson, chartered accountants. Mr. Underwood testified that, in addition to degree in Business Administration, he has earned his Chartered Accountant designation, and is Chartered Professional Accountant. He started his accounting career with Price Waterhouse Coopers, and was subsequently employed with KPMG until June, 2007, when he joined the firm of Baker Watson. [130] Mr. Underwood confirmed he is acquainted with both the petitioner and the respondent. He first met the petitioner in January 2013 when the latter was referred to him to provide accounting and tax advice by the lawyer who had incorporated the petitioner’s professional corporation. [131] He testified to having dealt with approximately 100 separate medical professional corporations and explained that, in his experience, the province’s College of Physicians and Surgeons restrict who can hold an interest in these entities. To that end, the witness testified that the petitioner holds voting shares in his medical corporation, while the respondent has an equal number of non-voting shares. [132] The witness was referred to the financial statements prepared for the petitioner’s corporation and confirmed he would have overseen and signed off on the same. He noted these statements confirm the petitioner has two employees himself, and one receptionist as reflected in the wages and benefits accounted for, and that he rents the premises from which he operates. He also explained that the transportation expenses set forth therein are attributable primarily to the petitioner’s taxi receipts. [133] With respect to tax liability, Mr. Underwood noted that in 2014, the corporation owed approximately $12,000.00 in corporate taxes, and although those arrears have now been paid, the corporation has failed to pay its regular tax instalments for the current year, which will result in additional penalties. [134] Mr. Underwood also noted that the petitioner owes approximately $11,000.00 in personal tax, but he anticipated this issue would be resolved on no payment basis, as this was product of Canada Revenue Agency’s previous refusal to acknowledge the spousal support being paid by the petitioner. [135] The witness was referred to the petitioner’s personal tax return for 2014, which suggested he had received dividends of $106,000.00 and explained the petitioner actually only received $90,000.00, but these dividends had to be grossed up for taxes. He also noted that in 2014, the respondent received $83,000.00 in dividends from the medical corporation, and that her taxable dividend as reported on her personal return that year was $97,940.00. According to the witness, the respondent last received dividend from the professional medical corporation in June 27, 2014. [136] He went on to explain that in 2013, the petitioner received wage, which was then augmented with dividends issued to both the petitioner and the respondent, in an amount necessary to maximize their respective after-tax situation. After the parties separated however, the witness arranged to have the petitioner receive more in salary, so he could afford to pay spousal support out of personal after-tax income. [137] He went on to explain that the goal ultimately is to grow these retained earnings in the corporation in tax-deferred basis, to provide for the petitioner’s retirement, as he does not have pension. As at the end of 2014 however, according to Mr. Underwood, the professional corporation’s retained earnings amounted to only $11,000.00. He could not recall whether the petitioner has any RRSPs, or tax-free savings accounts. [138] The witness confirmed that the wages paid to the petitioner in 2014 had increased from 2013, and explained again that it was advantageous to the petitioner to pay the respondent spousal support from his personal after-tax income. [139] According to the witness, it is anticipated that in 2015, the petitioner will receive $210,000.00 in gross wages and will be obliged to draw dividends in an amount sufficient to service his expenses, although his goal is to avoid doing so, if possible. [140] The witness agreed, under cross-examination that, ideally, the petitioner’s salary would be sufficient to pay his ongoing expenses, and it would not be necessary for him to declare dividends, so that he could build retained earnings in the corporation. [141] He confirmed again that the petitioner is presently at liberty to draw as much as he wants in dividends, so long as there are sufficient funds in the corporation. Mr. Underwood agreed it is the petitioner who determines his annual salary and how much of dividend he declares each year, but reiterated that the retained earnings in the corporation are presently approximately $11,000.00, which significantly curtails the petitioner’s ability to do so. [142] Mr. Underwood maintained that the petitioner cannot legally declare dividends in excess of the corporation’s retained earnings and suggested that, in his experience, the College of Physicians and Surgeons would object to any attempt to pay the respondent dividends from the professional corporation in lieu of spousal support, if she were no longer the petitioner’s spouse. [143] The witness advised he has yet to prepare the 2015 corporate statement. The Respondent’s Evidence [144] The respondent testified she is 42 years of age and was born in Pakistan. [145] She confirmed that her property statement sworn July 7, 2014, and financial statement sworn June 11, 2014, exhibited as R-3 and R-4 respectively, were true and accurate to the best of her belief, as was her updated financial statement, sworn October 28, 2015, and exhibited as R-5 in these proceedings. Also exhibited as R-6 and R-7 were the respondent’s 2013 and 2014 tax returns. [146] The respondent conceded that she received $35,000.00 from the petitioner’s medical corporation, but claimed it was all to repay the loan to her brother, and added that she had been obliged to pay income tax on the proceeds because she had received them by way of dividend. [147] She went on to recall that her father died in July 2005, prior to the parties immigrating to Canada, while her mother subsequently passed away in December 2011. According to the respondent, the petitioner had forbade her from speaking with her mother, and had objected to her returning to Pakistan for the funeral, ostensibly because of the cost, so her brother provided her $5,000.00, so that both she and D.K. could travel there, explaining she had wanted to take D.K. along because she was his primary caregiver. According to the respondent however, the petitioner refused to permit their son to travel, so she returned to Pakistan by herself, but did not arrive in time for the funeral. [148] The respondent testified she has one sister and four brothers. One of her brothers resides in Saskatoon, and has daughter of his own, with whom they visit from time to time. One of her brothers is in Italy, while another resided briefly in Fort McMurray. She described her relationship with her own family as good, and noted they had contributed to the cost of her honeymoon and other expenses, and had continued to support her when she and the petitioner immigrated to Canada. She denied the petitioner’s assertion that she did not have contact with her own family, and testified that one of her brothers had lived with them for month after they came to Canada. [149] She acknowledged that she had applied to immigrate to Canada prior to marrying the petitioner, but denied their marriage had assisted her application, adding that her parents had paid approximately $25,000.00 for her to immigrate to this country. [150] She described the petitioner as nice and good person, and maintained that she admires his truthfulness, and respects him, and the fact that he did not try to manipulate her. She confirmed they met while working in the hospital, and added they did not live together prior to their marriage. She recalled they had small wedding, and conceded that her father did not attend, but maintained the rest of her family was present. [151] The respondent explained that she and the petitioner are from different Muslim sects, and while she considers herself to be Muslim, in Pakistan her sect is not recognized as such. She suggested that religion has been significant issue in their relationship, not initially, but as the marriage progressed. She maintained the petitioner had pressured her to convert, and while together, they had paid religious tutor to meet with D.K. each month. She also claimed that the petitioner would become upset when she would touch his holy book. Following their separation, the respondent put an end to all of the religious instruction, and suggested that it should be up to D.K. to decide. [152] Like the petitioner, the respondent refers to their son, D.K., as D****. She recalled that following his birth, she remained at home, in Pakistan, and saw her parents regularly. Upon immigrating to Canada, she initially worked on an election campaign for few weeks, and only left D.K. when he was sleeping, as it was temporary, part-time work. She did concede however that the petitioner made bottles for D.K. during this time. [153] She confirmed she is not currently licensed to practice medicine in Canada, explaining that, although she successfully completed two of the necessary exams in 2011, by 2014 English proficiency had also become requirement. The respondent advised she has applied for residency on numerous occasions, but not outside of the province because, according to her evidence, the petitioner is opposed to this. According to the respondent, there are multiple applicants for every vacancy in Saskatchewan, but she could find employment as general practitioner in another province within few months if she were permitted to relocate. She added she would also be interested in enrolling in the study to practice program, but maintained that in Saskatchewan, it would take her up to three years because of the demand, as opposed approximately nine months in another province. [154] If she were to obtain residency, she noted, the schedule would be demanding perhaps as much as 50 to 60 hours per week. As such, it is her intention to become licensed without residency, so she might avoid night shifts and the like. [155] In Pakistan, she confirmed, both she and the petitioner had practised medicine. The petitioner, she claimed, told her that if he could not obtain residency in Canada, he would return to Pakistan to practice medicine. As such, they agreed he would do his residency first, and while the petitioner was writing exams and undertaking the rigours of that residency program, the respondent would care for D.K. [156] She acknowledged that the petitioner does indeed love and care for D.K., but maintained he was often busy with work or studying. As result, according to her evidence, the petitioner only cared for their son couple of hours per week while they were together. She claimed the petitioner would not allow her to work because he wanted her to care for D.K. while he slept or worked and further, that the petitioner would not permit her to have friends. According to the respondent, she had proposed at one point that D.K. attend daycare few hours per day, so she might also work, but the petitioner refused. [157] While the family resided in Vancouver, she recalled, they changed residences four times to accommodate the petitioner’s employment. Thereafter, she maintained, the family had moved from Vancouver to Saskatoon, then to Ottawa and back to Regina, all in furtherance of the petitioner’s employment. [158] The respondent testified she did not stay in Ottawa because her relationship with the petitioner was deteriorating, and explained she had been ready to leave in any event when an issue arose over the petitioner’s outstanding contract with Saskatchewan Health, and he returned to the province. [159] According to the respondent, she and the petitioner separated four times. The first was in 2012, when she left to return to Pakistan, ostensibly because of stress and to refresh her practice. She stayed there with D.K. for approximately two months with, according to her evidence, the consent of the petitioner. [160] She claimed that, in 2012, the petitioner slapped her in front of D.K. According to the respondent, D.K. instructed her to call 911 or he would, but she refused to do so because it would negatively affect the petitioner’s career. She explained she flew to Norway with their son to study for her exams, and to be away from what she described as the “drama”. When she had completed her exams in March 2012, she explained, she went to see physician. According to the respondent, this was the only occasion on which D.K. personally observed any physical abuse but, she asserted, their son had been personally present for what she described as almost daily verbal abuse and loud voices. [161] The respondent alleged that in 2007 the petitioner had twisted her finger. She testified she has also consulted with relationship counsellor and that in 2013, she was referred to the domestic violence unit. At one point, she explained, she did not permit the petitioner to see D.K. at all for months because she had been instructed not to by the domestic violence counsellor. [162] She also alleged the petitioner had assaulted D.K. on two separate occasions. Once, she recalled, in October in Regina, she was getting out of the shower and observed the petitioner to be staring at D.K., whom she claimed, was shivering and calling for her. She also claimed that, in 2013, the petitioner struck D.K. with his hand and added that D.K. told her that the petitioner had also struck him with shoe in Ottawa, when he spilled the petitioner’s tea. [163] The respondent confirmed that she had left D.K. in the petitioner’s care in April and May 2015. When she returned, she claimed, it was “terrible”, D.K. presented as quiet, scared and fearful, and that he cried terribly. The next day, she took D.K. to see school counsellor, but that individual was not available. She testified that D.K. told her he wanted to die. According to the respondent, she intended to take their son to see doctor, but the petitioner had not returned his health card for eight days. [164] She has since taken D.K. to see counsellor five times. [165] The respondent was referred to copies of D.K.’s report cards, confirmed that these report cards were available to both parents, and added that the preceding year the petitioner obtained copy. According to the respondent she communicates regularly with D.K.’s teachers, both in person and by email, and occasionally by phone. [166] D.K., she recalled, was nine months old when the parties came to Canada. In Pakistan, she had cleaners and nannies, but when they immigrated, initially she had no help. When they moved to Saskatoon, they had some assistance for few months, for three to four hours off and on while she was studying for her exams. This lasted until 2012 when the family moved to Ottawa. [167] The respondent testified that she and the petitioner had discussed the prospect of placing D.K. into child care, in part to help him socialize with other children, as there were few children around their home. According to the respondent the petitioner refused to consider retaining outside help and insisted that the respondent could best care for their son. [168] She recalled that D.K. first attended Montessori preschool, which was expensive but it was the petitioner’s preference. According to the respondent, she noticed bruises on D.K. during this time, so she spoke with the teachers at the preschool, and it stopped. [169] Their son, she recalled, was not well socialized at the time, and was timid with other children, so she tried to arrange play dates. She also enrolled him in multiple activities, so he would be exposed to other children. [170] The respondent maintained that her communications with D.K.’s teachers were always in response to an educational or socialization issue, and estimated they spoke as often as 50 to 60 times per year, or three to four times per month. [171] When she returned from Pakistan in June 2015, the respondent was in contact with D.K.’s teachers regarding his homework and well-being. She recalled that two of the teachers had initiated this contact with her by email, complaining of missed assignments and homework. According to the respondent, this had never been an issue before. [172] The respondent insisted she always ensures D.K.’s homework is done, even on those weekends when he is with the petitioner whom, she claimed, fails to do the same. She described their son as very competitive and explained that, when he does not have his homework completed, it affects his confidence and self-esteem, that he begins forgetting things like his gloves, loses any interest in eating or talking, and becomes, in her words, very introverted, depressed and suicidal. [173] The respondent described their son as being of above average intelligence, and explained that he used to enjoy swimming and soccer as well as basketball, and now enjoys riding his bike and playing with friends. [174] She claimed that D.K. gets along with all of the kids at school all the time, and described him as very happy kid, but also suggested he was bullied in every class, explaining that although no one speaks of it, she observes it in his behaviour, and then approaches his teachers. The respondent offered that, as nothing has changed for D.K. at home, and she does not permit him to interact with other children until she has had an opportunity to meet with their parents and assess them. [175] She described her parenting style as the antithesis to that of the petitioner, and insisted D.K. does not need to be disciplined, as he is already very disciplined child. [176] The respondent explained that she prefers to communicate with the petitioner via text or email and not by phone. She has purchased cell phone for D.K., which she leaves at his school because he is not allowed to take the one the petitioner provided to him. While he does not have home phone, the petitioner, she noted, does have home security system, but D.K. does not know the code. [177] The respondent filed series of photographs of D.K. and others, including friends and distant family members, participating in variety of activities such as wedding, and science camp in the summer of 2014. She lamented the fact that the petitioner has maintained custody of all of their photographs and videos of D.K.’s young childhood. [178] The respondent expressly denied ever having threatened to return to Pakistan, but insisted the petitioner had made it clear to her that if she wanted to leave she would do so without D.K. [179] She described typical routine with their son, and advised he ordinarily wakes around 6:00 a.m., and asks to cuddle with her. They usually lie in bed until approximately 7:00 a.m., when D.K. gets up, brushes his teeth, eats breakfast and does his homework before going off to school. The respondent prepares lunch for him to take. D.K. ordinarily finishes school at 3:30 p.m., and when he returns home, he lies down and watches some television. According to respondent, D.K. used to go out and play after school, but over the past few months, he is too tired and simply watches television before they sit down to supper. [180] According to the respondent, D.K. does not like having shower, and she claimed she can tell he does not have one, or brush his teeth while in the care of the petitioner. She also claimed that D.K. loves sledding, but when he is at the petitioner’s home, he does not get to. [181] She testified that D.K. told her he was only allowed to be with his friends five or six times in total while he was living with the petitioner, and she suggested that in her opinion, the child the petitioner did allow D.K. to play with was disruptive. [182] According to the respondent, D.K. changed schools so often because the petitioner changed jobs, and they were required to move. [183] She alleged the petitioner does not always exercise his scheduled access, as he sometimes works. She also recalled that she had asked the petitioner to forgo one regularly scheduled Wednesday afternoon access the preceding summer, so she could travel with D.K. to Ontario, but he [184] The respondent explained that she is opposed to shared parenting, 50/50 schedule, because in her opinion, it would hold D.K. back in his education and keep him from his friends, isolating him in the absence of phone. She insisted that such an arrangement would be “disaster” for D.K., and he would end up doing drugs or committing suicide. [185] She claimed that D.K. is reluctant to spend time with the petitioner, and that he cries because he prefers to be with his friends. For these reasons, the respondent proposed that the petitioner’s access with their son be restricted to alternating weekends only. [186] As for their property and debts, the respondent advised that she is only aware of two loans and suggested that the debt which the petitioner had incurred to practice medicine should be his alone, maintaining that she should not bear responsibility for this expense, as she too will incur costs associated with practising medicine. [187] She explained that her two-month trip to Pakistan was financed with loan of approximately $8,000.00, which she secured from family and friends, because the petitioner refused to give her any money. She went on to note that she did not receive child support for those two months, notwithstanding that while in Pakistan she still had expenses associated with her car and rent in Canada. [188] The respondent denied that she will be obliged to return to Pakistan, but advised she may have to return there temporarily to refresh her license. She noted she still has family in Pakistan, including two siblings and insisted that if she were to take D.K. anywhere, she would return him because, according to her evidence, he is happy in this country. [189] With respect to the divorce, the respondent confirmed that she is in fact the respondent in the action, that she was served with the petition and has filed an answer and amended answer. She also testified to having lived in Saskatchewan for approximately eight years, and that she and the petitioner had separated on or about April 2, 2014 for the last time. She confirmed she has no intention to reconcile as this is not possible. [190] In the course of cross-examination, the respondent was confronted with her financial statements, and agreed that in 2014 and 2015, she received the child tax credit. With respect the educational expenses claimed by her in the amount of $5,000.00, the respondent explained this expense was on account of her having to repeatedly take the necessary English proficiency test, and the cost of tutor. As for the additional educational expenses in the amount of $15,000.00, claimed in her subsequent financial statement sworn October 28, 2015, she explained this included the cost of travelling to Pakistan to refresh her practice certificate, taking exams and the like. [191] She conceded, although reluctantly, that while in Pakistan she earned approximately $400.00-$500.00 per month working while refreshing her practice certificate, and allowed that this income was not accounted for in her financial statement because, according to the respondent, she was unsure if it needed to be. She also allowed she did in fact receive spousal support while away in Pakistan for two months. [192] With respect to her property statement dated July 8, 2014, she acknowledged having identified only one bank account, but agreed that in fact, the parties have another account with RBC, which is jointly held and which she enjoyed access to. She also agreed that the petitioner had paid approximately $32,000.00 to purchase vehicle for her. [193] The respondent confirmed that she did not obtain residency in Pakistan when she and the petitioner met, but instead continued to work as general practitioner, advising she had already applied to come to Canada, and subsequently joined him in applying after they were married. [194] When asked what she had done to advance her medical career, the respondent recalled that she had begun studying in 2009, after the petitioner obtained his residency. She had also participated in research project just prior to the passing of her mother, but left this project to travel to Pakistan in 2011. When she returned, she returned to the project but, according to her evidence, she ultimately quit because the petitioner alleged her co-worker was her boyfriend. [195] The respondent testified she had applied for number of positions, but had not been successful because, again according to her evidence, they did not believe she would stay. She advised she is on the waitlist to work in Saskatchewan, but admitted that if the court were to permit her to relocate, she would do so and seek opportunities in other provinces, where the waitlist would be shorter, perhaps as little as nine months to year. She also suggested that if she were to accept an opportunity elsewhere, it would likely be three year term and that, if necessary, she would return thereafter to the province. [196] The respondent maintained that she is confident she will be permitted to practice as general practitioner, and prefers to pursue the ready to practice option, so she is not required to work long hours in residency practice. She testified that, when she studies, she does so around D.K.’s [197] She claimed she is not opposed to the petitioner caring for D.K. when she cannot do so herself, and allowed that when the petitioner was home, he did in fact spend some time with their son. She acknowledged that the petitioner’s hours of work are now much different than they had been, and that he now has more time to spend with D.K. [198] She confirmed she had been out of the country from the first week of April until the first week of June 2015, and that during this time, D.K. resided exclusively with the petitioner. The respondent also acknowledged that she had left D.K. in the petitioner’s care for some weeks when she previously returned to Pakistan. [199] She also agreed that they had moved back in with the petitioner in February 2014 because D.K. had expressed desire to live with him. The respondent maintained that D.K. was suicidal while at the same time conceding that when she left, he remained with the petitioner because he advised her that he wanted to. [200] As for D.K.’s report cards, she agreed that the Grade report card made no mention of him missing assignments, but insisted this was because she made sure that they were submitted when she returned. She did allow that, had she been permitted to take D.K. with her to Pakistan, she would have taken him out of school for that time, but she insisted this would have been preferable to leaving him with the petitioner and, again in her words, making him suicidal. [201] The respondent admitted having previously refused to allow the petitioner to take D.K. with him to see his family in Toronto, explaining she had concerns for D.K.’s safety, as the petitioner’s family are of different religion. She allowed that the petitioner had in fact provided his consent for D.K. to travel to all of the places depicted in the pictures the respondent previously filed in her evidence-in-chief. [202] She confirmed that the previously described assault, wherein she testified that D.K. personally saw the petitioner slap her, was the only such incident. The respondent also conceded that she had not actually witnessed the petitioner strike D.K. with shoe, despite having previously sworn an affidavit to this effect. [203] As for D.K.’s counselling, the respondent allowed she had not informed the petitioner of the same, claiming they do not communicate while at the same time acknowledging that they have communicated by text message. [204] She denied having ever complained that D.K. was being bullied by teacher, and explained it was in fact student. While insisting their son had many friends, she acknowledged that there were concerns from time to time. She insisted that it is D.K. who determines who he will play with, and recalled that he asked that one of the children be removed because he was bullying him. [205] The respondent testified that when D.K. is with her, he typically does his homework for one hour each evening and one hour in the morning, and complained the petitioner does not do what he says he will when it comes to helping their son complete assignments. [206] She also maintained she is concerned about their son’s personal safety when he is with the petitioner, insisting that he is punishing D.K., and torturing him. She claimed she had informed the petitioner that D.K. was depressed and suicidal when they were living together, but then retracted, and suggested he was not in fact suicidal, just sensitive. She also claimed D.K. does not change his mind but rather, the petitioner changes it for him. [207] With respect to D.K.’s childhood photos, she agreed she has the computer, which is password-protected, and does not know what photographs are on it. She also agreed she has never made written request for these items. [208] The respondent explained that she would like more weekend access time with D.K., and reiterated that the petitioner’s access should be reduced to alternating weekends. She allowed that it is beneficial for D.K. to have relationship with the petitioner, but suggested he is not good parent, and that decreased parenting is warranted because of her concerns for D.K.’s personal safety and his social development. She agreed that, if the court were to permit her to relocate, it was her intention to do so. [209] The respondent also agreed that she has, in the past, made allegations that the petitioner has threatened her and has sexually touched D.K., but admitted she has never laid formal charge. Julia Rooks [210] The respondent also called Julia Rooks to give evidence on her behalf. Ms. Rooks, who gave her evidence by telephone, testified that she is familiar with both the petitioner and the respondent, explaining that the couple had hired her in the summer of 2009 to assist with D.K.’s care, so that the respondent could spend more time studying for her medical exams. According to the witness, she initially worked approximately three to four hours per day, Monday to Friday, for approximately three months during that summer, and thereafter on an ad hoc basis, typically one or two times per week for few hours at time. She recalled that when she was there, the petitioner was usually working, and was rarely home. [211] Ms. Rooks described D.K. as smart, sensitive and observant, and very obedient but also very timid child, who did not like to make eye contact. She added that when she would bring D.K. to her own home to play, he appeared to be fine in the company of her mother, but timid around her father. [212] She described the petitioner as polite, but conceded that she and he were never familiar. According to her evidence, the petitioner seldom inquired about D.K. to the same extent as the respondent, who would regularly query her about D.K.’s bowel movements and what they had done that day. [213] She described the relationship between D.K. and the petitioner as unusual. She maintained that D.K. appeared nervous when the petitioner was home, and she did not observe any physical affection between the two of them. She recalled that on one occasion while at the park, D.K. did not want to go home because he had wet his pants, and he pleaded with her not to tell the petitioner about it. She testified she had also heard him ask the respondent not to tell the petitioner about things that happened in his absence. [214] By contrast, according to Ms. Rooks, D.K. had very close relationship with the respondent, and he would be excited when she was home. [215] The witness testified she knows the respondent fairly well, from the time she worked with her, and described the respondent as very sensitive, emotional and caring person. [216] Ms. Rooks last saw D.K. and the respondent in July 2015, when they had visit in Regina. Prior to that, she saw them twice in 2014, including once in Calgary. She indicated they also speak regularly by phone. [217] Overtime, according to the witness, D.K. has become better at socializing with other children and in her opinion, he appears less shy and timid. She recalled that when she saw him the preceding summer, D.K. was off playing in the street with his friends something he would not have done when he was younger. [218] Under cross-examination, the witness confirmed she worked for the petitioner and respondent, caring for D.K., over period of approximately three years in total and that, in addition to the three to four hours per day, Monday to Friday, she also sometimes worked weekends for them, perhaps every two to three weeks while the petitioner was working as resident. She acknowledged that her sister was also resident doctor, and agreed that the work load can vary from time to time. She also conceded she had not observed every interaction between D.K. and the petitioner while she was in their employ, nor has she had an opportunity to observe their interactions recently. [219] She agreed that, in her experience, children’s eating habits change over time, and further, that D.K. still does not make eye contact readily. She described her own family as friendly and agreed there would be no reason for D.K. to appear timid around her father. [220] The witness also acknowledged she is close friend of the respondent, that she likes her, and wants to help her. She agreed she has served as the respondent’s passport reference, and has done other things for her as well. She also acknowledged she has had no meaningful contact with the petitioner and does not really know him the way she knows the respondent. Delmer Harrison [221] The court also heard from Delmer Harrison, marriage and family counsellor practicing at The Caring Place in Regina. Mr. Harrison testified he earned Master of Arts degree in Christian Ministry with major in Marriage and Family Counselling in 2008 from the Briercrest seminary, and completed an internship between June 2006 and March 2008. He has been providing counselling services for nine years. [222] According to the witness, the respondent first consulted him upon her return to the country after trip overseas. She claimed the parties’ son had been crying uncontrollably, and she wanted the witness to “explore why D.K. cried like that”. In total, he met with D.K. on five or six separate occasions and confirmed that the focus of these sessions was primarily “D.K.’s experience at his dad’s and how he had been affected by that”. He recalled the respondent advised him that she had primary custody of D.K., and the petitioner’s access was limited to three weekends per month. [223] The initial counselling session took place on June 8, 2015. According to the witness, D.K. presented as anxious and fearful, but was cooperative. Mr. Harrison testified that, when asked what he thought of the two months he spent with the petitioner, D.K. initially told him it was okay, and that he liked the fact that he was able to play outside. According to Mr. Harrison, D.K. later complained that he was not allowed to go outside much while staying with the petitioner, and was upset about that. When the witness asked if it was because he had homework to do, D.K. complained the petitioner would become impatient and yell at him if he did not understand or complete his schoolwork. D.K. also said he missed school while staying with the petitioner, either because he did not have his homework completed or because he was not feeling well. [224] Referring regularly to his notes, the witness testified D.K. also told him the petitioner and respondent yelled at one another lot, and complained the petitioner “acts like he is good person, but he is not”. During the session, the witness testified, D.K. confided that the petitioner would yell at him and at the respondent. When asked specifically how he felt about the way the petitioner treated the respondent, Mr. Harrison recalled D.K. to say “in my mind I’m really mad about it” and to describe his father as ”lying conniving psychopath and fraud”. [225] Mr. Harrison noted that the respondent was also present throughout this first counselling session. [226] He recalled that second session took place on June 18, 2015 and that the first two sessions were summarized by him in letter prepared some time later, on July 17. According to the witness, during the June 18 session D.K. expressed great deal of anger toward the respondent, allegedly because she did not leave the petitioner earlier and told her “you’re liar like dad”. [227] In giving his testimony, Mr. Harrison found it necessary to rely heavily upon the letter prepared by him on July 17, 2015, almost month after the two initial interviews, and suggested D.K. was upset that no one had intervened to prevent him from staying at the petitioner’s home. [228] Again, Mr. Harrison confirmed the respondent was present for most if not all of this session as well. [229] The next session, he explained, occurred on September 28, 2015, and was again focused primarily on the two month period that D.K. resided with the petitioner. Notably, Mr. Harrison testified that on this occasion, the respondent provided him with written list of nine questions which she instructed him to ask D.K. [230] According to Mr. Harrison, D.K. presented as less angry on this occasion, and much of what he disclosed was duplication of things said in the first two sessions. He did recall that D.K. claimed the petitioner yelled at him twice or maybe three times per week about homework when he did not understand, and that the petitioner would begin to help him, but would eventually give up and walk away in frustration. When the witness specifically asked why he had lost interest in school, D.K. explained that he still enjoyed school but his marks had suffered because of the petitioner. He also continued to complain that he had not been able to play with his friends, and he felt ignored while living at the petitioner’s home. Mr. Harrison recalled the respondent had provided him with two emails purportedly from D.K.’s teachers, suggesting he had not completed his homework assignments on time. [231] Mr. Harrison characterized this third counselling session with D.K. as being all about “asking the nine questions and recording his responses”. He recalled in particular that the respondent had instructed him to specifically ask D.K. if the petitioner followed him around; an assertion D.K. denied. When asked if he had ever been abused by the petitioner, D.K. claimed his father had hit him “in 2013, think in June”, but not since. According to the witness, D.K. then went on to contradict himself and to claim the petitioner would hit him “randomly at times”. [232] The witness testified he had also asked D.K. if he was scared to go to the petitioner’s, to which he replied “maybe little bit”. Mr. Harrison went on however to add that D.K. subsequently clarified he may be little scared about what may happen in the future, but he was not scared at that time. [233] The witness testified he met with D.K. on three subsequent occasions, on October 5, October 9, and October 20, 2015 respectively. He suggested D.K. appeared to be doing better in the last few sessions, but could not say if he would benefit from further counselling. [234] Under cross-examination, Mr. Harrison advised he was unaware that the parties enjoyed joint custody of D.K., and reiterated that he was led to believe otherwise by the respondent. He explained that, if he had known this, he would have sought the consent of the petitioner as well, and maintained that when he provided the consent form to the respondent, he had suggested it should be signed by D.K.’s father as well, but it was not. According to the witness, the respondent assured him the petitioner had previously signed consent for the school board, so she did not need to obtain his consent for D.K. to participate in these counselling sessions. Despite never having obtained the consent of the petitioner, the witness agreed that the principal focus of these counselling sessions was D.K.’s relationship with his father. [235] Mr. Harrison also confirmed that, in addition to the six counselling sessions with D.K., he also undertook some individual sessions with the respondent. He agreed that although the respondent advised him D.K. had previously been to see other counsellors, he did not consult with any of them. [236] The witness acknowledged further that the letters he had written after the sessions, which he referred to when providing his testimony, had been prepared at the request of the respondent, and addressed “to whom it may concern” because he suspected they might be intended for use in legal proceeding. Mr. Harrison allowed he never provided copy of these letters to the petitioner. [237] He agreed the respondent advised him at their first meeting that she and the petitioner were scheduled to go to trial in September. It was his recollection that the respondent had returned to the country on Saturday, and had subsequently brought D.K. in to see him on the following Monday. He confirmed that he first met with D.K. in June 2015, and did not see him again until September 28. He confirmed further that, as of October 9, he was made aware by the respondent that the trial was schedule to take place later that month. [238] With regards to D.K.’s statement that his father was “lying, conniving psychopath” Mr. Harrison readily agreed it was unusual language for child of that age. He also reiterated that D.K. claimed both parents yelled at one another other lot and acknowledged that child’s perception of yelling might be something as simple as raised voices. [239] As regards the September 28, 2015 session, Mr. Harrison confirmed the respondent had provided him with list of nine questions to ask D.K. and confirmed further that these questions were put to D.K. by him exactly as framed by the respondent. He also agreed that the respondent was personally present for the entirety of the first two sessions. [240] While allowing that he considered D.K. to be the client, and maintaining that he takes “client centric approach” to counselling, Mr. Harrison conceded he took his instructions from the respondent. He confirmed that it was the respondent who brought D.K. to his counselling sessions, and agreed that D.K. may well have provided different answers to those questions had it been the petitioner who transported him there instead of the respondent. [241] He also agreed that the questions put to D.K. during the September 28, 2015 session were in relation to period of time several months earlier, while D.K. was staying with the petitioner, and he acknowledged it was his understanding that D.K. had subsequently been living primarily with the respondent during the summer. [242] Under further cross-examination, Mr. Harrison clarified that, previously testifying in-chief that D.K. was scared, these were not D.K.’s actual words but rather, what the witness took to be apprehension about the future. [243] The witness agreed with opposing counsel, that it is often inappropriate to ask questions of children in the same fashion as adults, and that one must take care in that respect, as children are often impressionable and eager to please, and their answers can be effected by their mood. [244] Mr. Harrison conceded he is under legal obligation to report any suspected abuse, and agreed he did not make any such report in this case. He also confirmed that in general, his professional association requires that he obtain the consent of both parents. [245] Finally, Mr. Harrison agreed that D.K. would have known he would be sharing information obtained during the sessions with the respondent, and further, that it was unlikely in the circumstances that he would have anticipated the information would be conveyed to the petitioner. He allowed that it was possible that D.K.’s comments and responses would have been much different had the petitioner been included in the process. Nonetheless, at no time did he request that the petitioner be present to participate in any of the sessions. [246] have no hesitation in concluding that the counsellor was generally credible witness, find his evidence overall to be unreliable. The counsellor permitted the respondent to be present during some of his sessions. Moreover, at least some of the questions he put to D.K. were provided to him by the respondent. Aria Ramdeo [247] The court also heard from Aria Ramdeo, self-described stay-at-home mother of an 11 year old son and year old daughter. Ms Ramdeo testified to having known the respondent and D.K. for approximately years and to having met the petitioner in passing at school, and only once formally. [248] Ms. Ramdeo explained she volunteers at most school events and recalled the respondent is typically there as well. She described the respondent as dedicated mother, outgoing, friendly and kind, and D.K. as little gentleman, sweet kind and good friend to both of her children. In her opinion the respondent and D.K. have good and affectionate relationship with lots of hugs. [249] She testified that D.K. and her son are good friends at school and often have play-dates together, typically at the park or at her home, some three blocks from the respondent’s. Both boys enjoy video and board games and hide and seek, and they play together on average once per week. [250] The witness also explained that her husband is of the Hindu faith, that they regularly participate in annual religious celebrations, and that the respondent and D.K. often attend. [251] Under cross-examination, Ms. Ramdeo conceded that D.K. has other friends as well, and that she has not had the opportunity to observe him in the company of the petitioner to the same extent that she has observed his inter-action with the respondent. Leslie Pominville [252] The respondent’s final witness was Leslie Pominville, teacher with the Regina Public School Division. Ms. Pominville testified that she has been teacher with the school division for 29 years, and knows both the respondent and the parties’ son, having taught D.K. for period of approximately six months while he was part of grades two and three split class at Argyle School, in 2012/2013. [253] Ms. Pominville described D.K. as sweet and eager to please. She also recalled him as noticeably timid, nervous and anxious, especially if she had to raise her voice with him or with the class. [254] She described the respondent as concerned and involved parent who regularly inquired about D.K.’s academic performance, socialization and the like, and recalled the respondent would email her or speak to her about her concerns when she attended to pick D.K. up at school. [255] The witness testified that on one occasion, the respondent contacted her upon learning that D.K. had been bullied in the boys washroom. According to Ms. Pominville, the respondent’s concerns were appropriate and justified in the circumstances. [256] She also recalled another incident wherein D.K., who remained at school for lunch, was chastised by the supervisor about his food choices and whether they were culturally appropriate. Again, the respondent contacted the witness, who addressed the matter with the lunch worker. [257] Ms. Pominville also interacted with the respondent at parent-teacher interviews. She could not recall the petitioner attending, but did recall he was present once to pick D.K. up after classes while he was her student. [258] She testified that D.K. left Argyle School when the family moved out of the school division, and he could no longer attend. She also explained that it is common for teachers to deal with parents who are separated or divorced, adding that, while these parents sometimes attend together, it is not uncommon for teachers to make arrangements to meet with them separately if necessary. She also noted that it is common place for teachers to prepare two sets of report cards, if asked. [259] Under cross-examination, Ms. Pominville confirmed she is no longer D.K.’s teacher, and he does not attend her school. Although she saw him on bike path the preceding summer, she has not seen him regularly since he attended at Argyle School. [260] She agreed it is not uncommon, even with parents who reside together, for only one of them to attend the parent-teacher interview. She also agreed that as teacher, there are times when she needs to raise her voice with her students. ANALYSIS Custody and Parenting [261] The statutory provisions which govern matters of custody and parenting reside in the Divorce Act, RSC 1985, (2d Supp) and The Children’s Law Act, 1997, SS 1997, C-8.2. The former directs, beginning at s.16(8): 16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [262] The Children’s Law Act provides further: 6(5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b) include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. nan In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. 9(1) In making, varying or rescinding an order for access to child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. (2) Unless otherwise ordered by the court, parent who is granted access to child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child. (3) The right of parent who is granted access described in subsection (2) is not, unless the court orders otherwise, right to be consulted about or to participate in the making of decisions by the custodial parent. [263] Both Parliament and the Legislature of Saskatchewan have explicitly mandated that, while the court is to have regard for the maximum contact principle, and except to the extent that it is relevant, disregard any past conduct, the ultimate consideration remains the best interests of the child. [264] The petitioner has petitioned the court for joint custody of D.K. In her initial answer and counter petition, and subsequent amended answer and counter petition, filed January 5, and 6, 2015 respectively, the respondent confirms that she does not oppose the granting of such relief. [265] Custody is defined in s. of The Children’s Law Act as the “personal guardianship of child” and includes the “care, upbringing and any other incident of custody having regard to the child’s age and maturity”. Section of The Children’s Law Act goes on to confirm that: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child, with equal rights, powers and duties. [266] In the absence of an agreement or court order to the contrary, the petitioner and the respondent are presumed to be joint custodians of their son, D.K. No such agreement exists in this case, and my interim order of August 7, 2014, while providing for interim parenting, did nothing to displace that presumption. [267] In the circumstances, there is nothing to suggest that maintaining joint custody would be contrary to D.K.’s best interest. [268] As for parenting, the court’s interim order of August 7, 2014 provided that D.K. would continue to reside primarily with the respondent, while the petitioner would enjoy specified access the first three weekends of each month, from Friday after school until Sunday evening. In the event his scheduled parenting time fell on long weekend, the access period would be extended accordingly to include the Friday or Monday, as the case may be. [269] Both parties advocate for variation of this interim arrangement. The petitioner submits the current parenting plan is not in D.K.’s best interest, as it fails to maximize his contact with both parents. He proposes shared parenting arrangement which would see each of the parties care for their son on weekly rotation. [270] The respondent, by contrast, argues D.K. requires routine and predictability, that she has always been his primary and psychological parent, and that the petitioner’s access should be reduced to parenting on alternating weekends. According to the respondent, shared parenting regime would be disastrous for D.K. She insists it would hold him back at school, isolate him from his friends and ultimately, cause him to do drugs or commit suicide. [271] To begin, the evidence establishes that the petitioner and respondent are both loving, capable parents, each of whom has demonstrated the capacity to care for D.K. while he is in their respective care. [272] accept that the respondent has been D.K.’s primary caregiver throughout, and that she has been the one charged with meeting the majority of their son’s needs. As of trial, she had yet to return to the practice of medicine, and her evidence, which accept, was that she hoped to do so in the future, but that she planned to avoid the long hours associated with residency. [273] also accept that during their relationship, the petitioner assisted in caring for D.K., albeit to lesser degree, and that since their separation he has, on occasion, cared exclusively for D.K., most recently while the respondent was overseas for two months in 2015. His uncontroverted evidence is that his work schedule is now more flexible and accommodating of his parenting obligations than had previously been the case. According to the petitioner, he is now able to schedule his hours of work so that he can be home with D.K. before and after school, save only for the last week of each month, when he is obliged to remain at the hospital from early in the morning until approximately 6:00 p.m. each evening. [274] While the petitioner did not have driver’s license at the time of trial, accept that he is working toward obtaining one, and note that in spite of this, he managed quite capably to get D.K. to and from school and elsewhere from early April until early June 2015, while the respondent was out of the country. [275] Moreover, while she asserted under cross-examination that the petitioner is not good parent, during her examination-in-chief, the respondent described him as good person, who genuinely loves and cares for their son, and whose capacity for truthfulness she admired. [276] The respondent also lamented that the petitioner could not be relied upon to ensure that D.K. completed his homework assignments, and testified she had been contacted by his teachers about the issue upon her return from Pakistan. She allowed that D.K.’s Grade report card made no mention of any missed or late assignments but insisted this was because she had ensured they were completed upon her return. [277] The petitioner testified the missed assignments were due to the fact that D.K. had forgotten to bring his agenda home from school. In any event, am not persuaded on the evidence before me, that the issue is as significant as the respondent would suggest, or that it bears in any real sense upon the capacity of either party to care for D.K.’s day to day needs. [278] The petitioner and respondent have each established adequate residences within reasonable proximity of one another, and of D.K.’s school, local park and other amenities. [279] Both parents have enrolled him, and ensured his participation in various extracurricular activities. [280] While the parties belong to different sects, they are both practitioners of the Muslim faith. To the extent that the petitioner and respondent each subscribe to nominally different teachings and practices, they should strive to celebrate and to share those differences with D.K., rather than attempting to suppress and delegitimize the other’s belief system. [281] The court heard little of the parties’ respective plans for D.K.’s future. The petitioner testified he plans to obtain his driver’s licence, and now has more flexible work schedule. The respondent testified that she too would like to advance her own career, that her prospects for doing so would be better elsewhere and, if permitted by the court, that she would consider relocating out of the province with D.K. for that purpose. [282] Although D.K. was only 10 years old at the time, and did not testify at trial, the court was provided with some evidence, albeit conflicting in material respects, as to his purported wishes, as well as his personality, character, and perceived psychological, social and emotional needs. [283] The petitioner described D.K. as an intelligent, pleasant and generally happy boy who enjoys the park, going to movies, swimming and biking, playing Legos, soccer and spending time with his friends. [284] He testified that in the past, D.K. has expressed desire to have his parents reconcile, but that he speaks of this less now. He also claimed that D.K. has told him he would like to spend more time with his father, and that he would prefer to live with each of his parents on weekly rotation. [285] The petitioner noted that on two previous occasions, when the respondent left with their son, D.K. asked to return to live with him and that D.K. did in fact reside with him exclusively for two months while the respondent was overseas, from April until June 2015. [286] Ms. Multani, like the petitioner, described D.K. as good boy charming and generally happy, who appeared to enjoy his time with the petitioner. Despite having personally observed his interaction with the petitioner on number of occasions, both in the park and at her home, she never detected any reluctance or uneasiness on D.K.’s part. [287] The respondent also described D.K. as very happy boy of above average intelligence, who enjoys swimming, basketball, soccer and riding his bike. While asserting, however, that he gets along well with all of his classmates, all of the time, she also claimed that he can be timid with other children, and that he was regularly bullied at school. She went on to assert that D.K. is very competitive, and when he does not have his homework completed, he becomes introverted, depressed and even suicidal. [288] While insisting that D.K. is reluctant to spend any time with his father, that he prefers to be with his friends, and cries uncontrollably when he is forced to be with the petitioner, the respondent allowed, under cross-examination, that she is not opposed to the petitioner caring for their son when she is unable to do so, and acknowledged further that D.K. had asked to move back in with his father in February 2014. Despite insisting that D.K. was suicidal, the respondent agreed that he remained with the petitioner when she returned for two months to Pakistan, because he wanted to. [289] D.K.’s long-time caregiver, Julia Rooks, described him as smart and observant, but also timid and sensitive. She explained that, while he appears, from her most recent observation in July 2015, to have become less shy, he seldom makes eye contact. [290] She also suggested D.K. would, at times appear nervous in the company of the petitioner, but allowed he had similar reaction to her own father, for no apparent reason. By contrast, she described D.K.’s relationship with the respondent as close, and recalled he would be noticeably excited when she was home. Ms. Rooks did concede however that, while she considers the respondent to be good friend, she has had little contact with the petitioner and does not know him well. [291] Counsel for the respondent submits that further evidence of their son’s wishes, personality, character and emotional, social and psychological needs may be found in the testimony of Delmer Harrison, the marriage and family counsellor who interviewed D.K. at the request of the respondent. [292] Counsel for the respondent did not seek to qualify Mr. Harrison as an expert, and he was not permitted to offer an opinion on any of the matters before the court. Rather, with the consent of counsel for the petitioner, Mr. Harrison was permitted to testify as to what he had personally heard and observed in the course of his meetings with D.K. [293] Mr. Harrison testified he met with D.K. numerous times. He recalled D.K. would occasionally express anger and frustration with the petitioner and the respondent, and accused them both of yelling. He also claimed that D.K. once described his father as “lying, conniving psychopath and fraud”. [294] While found Mr. Harrison to be generally forthright and credible witness, the circumstances of his interview sessions with D.K. seriously undermine the reliability of his evidence. [295] Credibility must not be confused with reliability. As Watt J.A. explained in H.C., 2009 ONCA 56 (CanLII) at para 41, 241 CCC (3d) 45: 41 Credibility and reliability are different. Credibility has to do with witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not proxy for reliability: credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [296] In giving his testimony at trial, Mr. Harrison was obliged to rely heavily upon correspondence he had authored sometime after his interviews with D.K., at the behest of the respondent and in circumstances where he acknowledged he suspected the letters would be subsequently used in court. [297] This, coupled with the suspiciously age-inappropriate nature of D.K.’s description of his father, the fact the witness had been misled by the respondent about the parties’ custodial status, his own admission that he permitted the respondent to be present in the same room for some of the sessions and, on one occasion asked D.K. series of questions prepared for him by the respondent, leave me with absolutely no confidence whatsoever in the reliability of his evidence. [298] Ms. Ramdeo described D.K. as little gentleman and good friend to her own children. She had little to offer on the matter of D.K.’s wishes, save to suggest that he and the respondent appear to have good, affectionate relationship. She admitted she has not had the same opportunity to observe D.K.’s interaction with the petitioner. [299] D.K.’s former teacher, Ms. Pominville, recalled he was sweet child, but eager to please, and at times, timid and anxious, especially on those occasions when it became necessary for her to raise her voice with him or other members of the class. She also confirmed that he had been bullied at school on at least two occasions during the time she taught him in the 2012/2013 academic year. [300] The evidence confirms that D.K. is a smart, sometimes sensitive but generally happy child. While accept that he is, at times, unhappy and anxious, given the dysfunctional way in which the parties have chosen to interact with one another, often in the presence of their son, this is hardly surprising. [301] The assertion that he is suicidal or depressed is serious one, and the court must take care not to causally disregard such claims where child’s mental health is legitimately at risk. That however, is not the case here, as there is no credible evidence to suggest that D.K. is, as the respondent repeatedly alleged, suicidal. Indeed, she was the only witness to make such claim and in the course of cross-examination, she retreated from that assertion, and maintained that he is just sensitive child. [302] Both the Divorce Act and The Children’s Law Act explicitly prohibit consideration of past conduct, save and except to the extent that it is relevant to party’s ability to parent. To the extent that such acts are perpetrated upon or committed in the presence of child, incidents of assault and domestic abuse are clearly relevant. The respondent herein testified that the petitioner was verbally and emotionally abusive, and that he physically assaulted her by twisting her finger in 2007 and, on separate occasion in 2012, by slapping her in the face. She also maintained that the respondent assaulted D.K. on two separate occasions, but allowed she had only personally observed one incident, in 2013, when the petitioner allegedly struck D.K. in the head. [303] The petitioner denied these allegations, and swore that it was the respondent who had been abusive during their marriage. [304] In assessing the veracity of her claims, I note the respondent acknowledged, under cross-examination, that she had also previously accused the petitioner of threatening her and of sexually assaulting D.K., although she never made a formal complaint. Despite these allegations and in particular, her claim that the petitioner had physically and sexually assaulted their son inthe past, she nonetheless left D.K. in the petitioner’s exclusive care for extended periods of time when she travelled to Pakistan and then to Dubai. The evidence in this case simply does not support the respondent’s allegations. [305] In furtherance of his claim for shared parenting, the petitioner places considerable emphasis on the maximum contact principle which, he argues, militates in favour of parenting arrangement which would see D.K. cared for by each of his parents on weekly rotation. [306] The respondent, by contrast, asserts she is D.K.’s primary caregiver and psychological parent, and that he should continue to reside primarily with her and spend alternating weekends with the petitioner. [307] While the Divorce Act and The Children’s Law Act both explicitly direct that child should enjoy as much contact with each parent as is consistent with his or her best interests, the maximum contact principle, as it has come to be known, though mandatory, is not absolute (Gordon Goertz, 1996 CanLII 191 (SCC), [1996] SCR 27). As the Saskatchewan Court of Appeal took pains to emphasise in Ackerman Ackerman, 2014 SKCA 86 (CanLII), 442 Sask 113 [Ackerman] the principle does not create presumption in favour of shared parenting. Nor, for that matter, is there presumption in favour of the primary parent or the status quo. Writing for unanimous court in Gilles Gilles, 2008 SKCA 97 (CanLII), [2008] 10 WWR 610, Wilkinson J.A. (as she then was), at para. [16] It must be clearly stated that no legal presumptions are available in the adjudication of these difficult issues by the court. The so-called “primary care-giver presumption” that would favour of the custodial parent’s wishes regarding residence, and was strongly advocated by the minority in Gordon, simply did not prevail…. [308] More recently, in Potzus Potzus, 2017 SKCA 15 (CanLII), [2017] WWR 296, the Court of Appeal had occasion, albeit in the context of an appeal from an interim order, to reiterate as follows, commencing at para. [35] The husband adverts to comments in Dukart Quantrill (Jones), 2015 SKCA 138 (CanLII) 74 RFL (7th) 328 [Dukart], about the importance of the maximum contact principle. There, judge had determined that shared parenting arrangement was not feasible going forward, despite the fact the parents had successfully co-parented the child for four years. In overturning the decision, this Court commented adversely on the judge’s failure to give appropriate weight in the analysis to long-standing co-parenting arrangements and the omission to make any reference to the maximum contact principle. However, unlike the situation presently before us, Dukart was an appeal from trial decision rather than an appeal of an interim order. The comments were made in the context of an unchallenged record of significant, co-extensive parental involvement over four-year period following separation. Moreover, the parenting protocol had initially been sanctioned by agreement between the parties. [36] While court is required to consider the maximum contact principle when making any parenting order, interim or otherwise, s. 16(10) of the Divorce Act does not create presumption of shared parenting. “Maximum contact” is the amount that is congruent with the best interests of the children in the given circumstances of each particular case: Ackerman at para 40. Here, the Chambers judge commented pointedly on the fact the father had never once involved himself in parent-teacher interviews, medical appointments, dental appointments and the like. Where parent is completely uninvolved in the tasks that might be considered the drudgery of parenting, it can be telling sign. The Chambers judge additionally noted that the children would be in the “before and after school program” every day when in the husband’s care and only minimally when in the wife’s care. The husband’s brusque retort is that the children would be better off in third-party care than “sitting at home with the Respondent” [appellant’s factum, AF6]. While the Chambers judge was diplomatic in his assessment of matters, it would seem that the husband’s claim to have been fully involved in “almost all aspects of parenting” was quite immodestly overstated. [37] While the status quo during the relationship is only one factor, it can nonetheless be compelling factor, particularly where one parent remains far more readily available to the children than the other and better positioned to ensure adherence to day-to-day schedules, health needs and educational requirements. Parental availability can be of particular significance during the messy, post-separation period where pressing concern exists to minimize disruption in the children’s everyday routines. In an interim application, which simply results in temporary solution pending the trial, the maximum contact principle does not compel motions judge to take “fresh slate” approach in complete disregard of the roles the parents acquiesced to during marriage. [38] It should be added that there is another important aspect to s. 16(10) of the Divorce Act and that is the willingness of parent to facilitate access. Section 16(10) states: (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [39] This is very meaningful consideration in any trial judge’s eventual determination of parenting arrangements…. [309] While I accept that the respondent has been D.K.’s primary and psychological parent throughout his life, I am equally satisfied on the evidence that she is generally contemptuous of the petitioner’s role as a parent and she has, except when it has suited her needs, restricted or in some instances, completely denied D.K.’s right to enjoy reasonable access with the petitioner. [310] In the circumstances, I am satisfied that D.K.’s interests will be best served by a parenting regime that preserves the stability the respondent has traditionally provided as his primary caregiver, while expanding the periods of uninterrupted time he enjoys with the petitioner. To the extent possible, this arrangement should also seek to minimize the need for the parties to interact with one another. [311] While this matter was under reserve Goebel J., presiding in chambers, had occasion to order that the parties and D.K. participate in family reunification and conflict counselling. Having heard the evidence in this matter, have no hesitation in concluding that it would be in D.K.’s best interest that such counselling continue. [312] The petitioner and respondent have each professed their love for their son, and both insist they only want what is in his best interest. If they are indeed genuine in their avowed desire, they would both do well to recognize and accept the deleterious effect their behaviour is having on D.K., and to begin making sincere efforts to treat one another with modicum of respect and to learn to communicate civilly and effectively, for the benefit of their son. Child Support [313] In July 2014, Brown J. of this Court found, for the purposes of interim child support, that petitioner had Guidelines income of just over $245,000.00 per annum. On that basis, he directed that the petitioner pay the respondent interim support for D.K. in the amount of $1,949.00 per month. [314] The petitioner proposes that his ongoing child support obligations be determined on the basis of his 2014 line 150 income, as adjusted to reflect the actual dividend income received by him in that year, pursuant to Schedule III, s. of the Guidelines, which section provides that the court should, when calculating income: 5. Replace the taxable amount of dividends from taxable Canadian corporations received by the spouse by the actual amount of those dividends received by the spouse. [315] On that basis, the petitioner submits that his Guidelines income is $293,500.00 while the respondent has Guidelines income of $118,000.00, comprised of dividends actually received in 2014 in the amount of $83,000.00, and imputed employment income of $35,000.00. [316] The respondent invites the court to find the petitioner’s total Guidelines income to be $317,018.00 per annum. The petitioner, she argues, has the ability and discretion to draw considerably more in dividends each year, and submits that going forward, his salary of $203,500.00 as reflected in his 2014 tax return ought to be augmented by dividend income equal to his professional corporations’ net earnings, in the amount of $113,518.00. [317] The relevant portions of the Guidelines provide as follows: 2(3) Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used. 3(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. nan Where the income of the spouse against whom child support order is sought is over $150,000, the amount of child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7. 15(1) Subject to subsection (2), spouse’s annual income is determined by the court in accordance with sections 16 to 20. nan 16 Subject to sections 17 to 20, 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. 17(1) If the court is of the opinion that the determination of 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 non-recurring amount during those years. (2) Where spouse has incurred non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections and of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate. 18(1) Where spouse is shareholder, director or officer of corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income. (2) In determining the pre-tax income of corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances. [318] In Thompson Bear, 2014 SKCA 111 (CanLII), 446 Sask 160 [Thompson], the Saskatchewan Court of Appeal explained as follows, at para. [63] The uncontested purpose of the Guidelines is to assist courts in calculating, inter alia, child support in consistent manner based on the income of the payor, who usually is parent or guardian. To that end, the Guidelines provide courts with some discretion when determining what would be fair and equitable amount of child support for the payor to pay based on the payor’s sources of income that fall within the term “Total Income,” as defined in the T1 Tax Return published by the Canada Revenue Agency. In this respect, the Guidelines focus on fairness and equity based on specified sources of income and not on the assets of the payor. It also is not intended to override provisions of other statutes or ignore the interests of third parties, except where specifically provided for regarding matter falling within the jurisdiction of the Parliament of Canada under the Divorce Act, or in the case of Saskatchewan, the provisions of The Children’s Law Act or The Family Maintenance Act, 1997. [319] Dealing specifically with the provisions of s. 18 of the Guidelines, Klebuc J.A., on behalf of unanimous court, went on to conclude: [68] Section 18(1) was implemented for the purpose of making some of the current pre-tax income of corporation available for child support, without putting corporation at risk or interfering with the legal and commercial rights of third parties who interact with the corporation. To accomplish these objectives, it provides that court may consider the payor’s income sources determined pursuant to s. 17 as part of the process of assessing whether “all or part of the pre-tax income of the corporation for the most recent taxation year …” (s. 18(1)(a) of the Guidelines) should be attributed to the payor. It does not expressly or implicitly contemplate corporation’s pre-tax income being averaged pursuant to s. 17(1). Nor does the general fairness principle override the specific provisions of s. 18(1)(a). [69] The limitation prescribed in s. 18(1)(a) has two clear objectives. It recognizes that corporation is distinct person at law with financial obligations to third parties, including its employees, creditors and customers who are dependent on it having sufficient capital and operating income to meet its obligations to them and to efficiently carry on its business activities in circumstances where the payor has no legal obligation to assume the corporation’s debts or fund its capital requirements. It also recognizes that in some circumstances payor’s income may not fairly reflect all of the sums available for child support and in those circumstances allows for the attribution to the payor of corporation’s pre-tax income for the most recent tax year, which often will be readily available. [70] The limitation facilitates both objectives. It makes current pre-tax income, surplus to the corporation’s needs, available for child support without exposing the corporation to an encroachment on its capital, which undermines its viability should the corporation encounter adverse market conditions. It also avoids courts having to forecast future market conditions and the capital requirements of corporation, usually without the benefit of adequate evidence. [71] In my view, the restricted interpretation of s. 18(1), i.e., the Limited Rule, complies with the legislative text, promotes the legislative intent, complies with acceptable legal norms and provides reasonable result. [320] Sandomirsky J. of this Court undertook thorough review of the authorities to that point in Kosior Kosior, 2013 SKQB 42 (CanLII), 413 Sask 18, and provided the following observations, commencing at para. [22] In the decision Nykiforuk v. Richmond, 2007 SKQB 433 (CanLII), 305 Sask. R. 184 at para.23 (interim child support and spousal support) Ryan-Froslie J. defined the concept of retained earnings and set out factors to consider whether to impute or not impute income: [22] In determining whether to exercise its discretion pursuant to s. 18, the Court must be satisfied additional money is actually available and that it can be paid to the shareholder without endangering the financial viability of the company. When making such determination, merely looking at the “retained earnings” of the corporation is of limited assistance. Retained earnings are shareholder’s “equity” in the corporation (its assets less its liabilities). They do not represent “cash” available for distribution, nor do they reflect the pre-tax income of the corporation. [23] In making determination pursuant to s. 18 of the Guidelines, wide range of factors must be considered, including: (i) The pre-tax income of the corporation; (ii) the nature of the business involved (Is it capital intensive or service-oriented? Is it subject to seasonal fluctuations or economic cycles?); (iii) the corporate share structure, including any obligation imposed by shareholders’ agreements; (iv) the financial position and general operations of the company (What are the company’s operating requirements, its inventory, accounts receivable and accounts payable? Are there bank covenants which may affect payment out of funds? Is there necessity to upgrade equipment, etc.?); and (v) is the company well-established one or merely in its startup phase? These are only few of the factors which may be relevant to determination of whether income exists which may be available for child support purposes. Simply because company makes profit does not mean that cash is available for child support purposes. [23] In the Kowalewich decision, supra, at para. 28 the British Columbia Court of Appeal identified number of factors to be considered in determining whether corporation needs to retain pre-tax income at paras. 58-60: (a) the nature of the company’s business; (b) evidence of legitimate calls on corporate income for the purposes of that business; (c) monies needed to maintain the value of the business as viable going concern; (d) need for reserve for depreciation; (e) business expansion plans; and (f) need for working capital. [24] In learned paper Dinyar Marzban and Jamie R. Wood, “Lifting the Corporate Veil: Income Determinations for Shareholders, Directors and Officers Under Section 18 of the Federal Child Support Guidelines” (2012) 31 Can. Fam. L.Q.1 discuss the mixed views of different provincial appellate courts in assessing claim under s. 18 of the Guidelines. The authors state at pps. 4-5: To assess claim pursuant to s. 18, one must review the payor parent’s personal tax returns, as well as the company’s financial statements to determine what portion, if any, of the company’s pre-tax corporate income is available to the payor parent. Some appellate courts have drawn distinction between pre-tax corporate income and retained earnings for the purposes of s. 18, while others have not. These differing approaches appear to have originated with Nesbitt, one of the earliest appellate decisions which considered s. 18. In Nesbitt, the Manitoba Court of Appeal referred to the retained earnings of the husband’s corporation in its analysis, but the Court’s ultimate decision to attribute corporate income to the husband for child support purposes pursuant to s. 18 appears to have been based on his corporation’s pre-tax income. [See Nesbitt, supra note at paras. 19-21 27] In subsequent decision, Dyck v. Dyck, 2008 MBCA 135 (CanLII), [2008 MBCA 135, 231 Man. R. (2d) 246 (CanLII], the Manitoba Court of Appeal relied on Nesbitt and specifically referred to retained earnings, instead of pre-tax corporate income, in deciding whether to impute additional income to payor husband for spousal support purposes. [Ibid. at paras. 36-42] In contrast, the Alberta Court of Appeal, the British Columbia Court of Appeal and the Newfoundland Court of Appeal have more recently considered and expressly rejected the use of retained earnings as means of determining pre-tax corporate income. [See Miller, supra note at paras. 28-30; Hausmann, supra note at paras. 65-66; and Gosse, supra note 14 at para. 102.] In Miller, the Alberta Court of Appeal considered this issue and determined that, based on the wording of s. 18, it was an error in principle to use corporation’s retained earnings rather than its pre-tax income as starting point for calculating available income. [Miller, supra note at para. 30.] The Alberta Court of Appeal said at paras. [28] As the Mother points out, section 18(1)(a) refers to pre-tax earnings. Likewise, Schedule of the Guidelines uses pre-tax (Total Income from Line 150 of the T1 General form) income: s. 16. This suggests that Parliament intended pre-tax earnings to provide the starting point for determining income under the Guidelines, subject to any allowable deductions pursuant to Schedule of the Guidelines. [29] While there are cases where retained earnings have been used as the starting point for determining the amount to attribute to the payor’s income (see e.g., Broumas, Rattenbury v. Rattenbury, 2000 BCSC 722 (CanLII), 2000 BCSC 722 and Cook v. McManus, 2006 NBQB 138, 301 N.B.R. (2d) 372), there has generally been no explanation given for the use of retained earnings. [30] The Father’s submission that the use of retained earnings by the judge was tantamount to ascribing only part of the pre-tax income to the Father (as permitted by section 18(1)(a) cannot be accepted. If that was the judge’s intention, he should have said so. Absent such an explanation, the judge erred in principle in using the corporation’s retained earnings rather than its pre-tax income as starting point for his calculations. In Hausmann, the British Columbia Court of Appeal agreed with the Alberta Court of Appeal’s comments in Miller on this point and observed that “‘retained earnings’ in company’s financial statement represent equity in the company, not ‘cash’.” [Hausmann, supra note at para. 66.] The Newfoundland Court of Appeal, in Gosse adopted the approach from Miller and Hausmann and characterized retained earnings as “an irrelevant factor” in s. 18 analysis. [See Gosse, supra note 14 at para. [25] prefer how my sister, Ryan-Froslie J. discussed the proper discretion to be exercised under s. 18 in the Nikiforuk decision. [26] The authors Marzban and Wood conclude their paper by providing the following summary of case law which attempts to assist the reader with the use of s. 18 of the Guidelines at pps. 11-12: Section 18 of the Guidelines is an important tool for courts in ensuring that children of shareholders, directors and officers are supported commensurate with their parents’ means, and that parents and children in similar situations receive equal treatment under the Guidelines, regardless of how parents choose to structure their incomes. Early considerations of s. 18 produced conflicting results about the purpose and application of this section. In recent years, several appellate courts have had an opportunity to consider central issues with respect to the application of s. 18. The following non-exhaustive list of principles has emerged from the s. 18 authorities: 1. Retained earnings are not equivalent to pre-tax corporate income and are not relevant to s. 18 analysis. 2. Blameworthy conduct on the part of the payor parent is not prerequisite to triggering the application of s. 18. 3. shareholder, director or officer bears heavy onus to lead clear evidence of the corporation’s legitimate business needs. It is not open to court to speculate about corporation’s needs. 4. Evidence of the corporation’s economic volatility may be factor in determining how much pre-tax corporate income is available to shareholder, director or officer. 5. What shareholder, director or officer does with the available pre-tax income of the corporation is irrelevant to s. 18 analysis, even where it is paid to the support recipient for other reasons. 6. In the absence of clear evidence demonstrating corporation’s legitimate business needs, all pre-tax corporate income should be attributed to the shareholder, director or officer for child support purposes. 7. Incorporated professionals are less likely than others to establish legitimate business calls on pre-tax corporate income. 8. Minority shareholders are not immune to attributions of pre-tax corporate income, but the appropriateness of making these attributions must be determined on case-by-case basis. 9. Averaging pre-tax corporate income over three-year period is common practice, but attributing the three-year average to payor parent may be inconsistent with the wording of s. 18(1)(a) where corporation’s pre-tax income for the most recent taxation year is lower than the three-year average. There is no consensus on this issue. [321] In light of the Court of Appeal’s subsequent decision in Thompson, any uncertainty as to the last of these principles enumerated by Sandomirsky J. must now be taken to be settled. [322] In this case, the uncontroverted evidence of his accountant, Todd Underwood, which accept, is that the petitioner’s professional corporation had retained earnings of only $11,000.00, and that his ability to declare additional dividends was tenuous. [323] Section 18 of the Guidelines affords the court discretion to consider all, or indeed, only some of corporation’s pre-tax income when determining spouse’s total income for the purposes of child support. The position advanced by the respondent fails to recognize that, as the Court of Appeal took pains to reiterate in Thompson, it is only that current pre-tax income which is found to be truly surplus to the corporation’s needs, without exposing it to an encroachment on its capital or undermining its viability, which the court may properly consider in the context of an award of child support. [324] In the circumstances, find the petitioner’s Guidelines income to be $293,500.00. Commencing December 1, 2015 and on the first of each and every month thereafter, he shall pay child support to the respondent, pursuant to s. of the Guidelines, in the amount of $2,308.00 per month. [325] The petitioner argues the court ought to impute employment income to the respondent in the amount of $35,000.00, in addition to the $83,000.00 in dividends she received in 2014. On that basis, he invites the court to find her total income to be $118,000.00. [326] As the parties do not share parenting responsibilities as contemplated by s. of the Guidelines, the relevance of the respondent’s income for the purposes of child support is limited to the apportionment of extracurricular and other expenses enumerated in s. 7. With regard to the proper apportionment of D.K.’s extracurricular and extraordinary expenses, s. of the Guidelines provides as follows: (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. [327] The uncontroverted evidence, including the testimony of the petitioner’s accountant, Todd Underwood, confirms that the petitioner ceased to declare and pay dividends to the respondent sometime after the pronouncement of Brown J.’s interim order of July 2014, electing instead to pay her spousal support in accordance with the said order, from after-tax income. [328] As for the petitioner’s request that the court impute employment income to the respondent, s. 19 of the Guidelines provides as follows: (1) The court may impute such amount of income to 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 by the needs of child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [329] The circumstances under which the court might properly consider imputing income to spouse who is ostensibly intentionally underemployed were recently considered by this Court in D.A. S.A., 2017 SKQB 108 (CanLII) [D.A.]. Commencing at para. 88, the court observed as follows: [88] The various considerations and principles which bear upon an application to impute income were canvassed at length in Algner Algner, 2008 SKQB 132 (CanLII), [2008] 10 WWR 509 wherein, commencing at para. 18 of her decision, Ryan-Froslie J. (as she then was) provides the following summary: (i) Section 19 sets out non-exhaustive list of circumstances where court may consider imputing income (See: Donovan v. Donovan, supra, at para. 13). (ii) The decision to impute income pursuant to s. 19 is discretionary one (See: Donovan v. Donovan, supra). (iii) In determining an application pursuant to s. 19(1)(a), three-step analysis should be employed: Firstly, the court must determine if the spouse is intentionally under-employed or unemployed. If the "spouse" is intentionally under-employed or unemployed, the court must determine whether any of the exceptions set out in s. 19(1)(a) apply, i.e. whether the under-employment or unemployment is required by reason of: (i) the needs of child of the marriage; (ii) the needs of any child under the age of majority; (iii) the reasonable educational needs of the spouse; or (iv) the reasonable health needs of spouse. Finally, if court determines "spouse" is intentionally under-employed or unemployed, and that none of the exceptions apply, the court must decide whether to exercise its discretion and impute income (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 specific intent to evade child support (See: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.) at para. 16). (v) parent has an obligation to seek employment commensurate with their ability to earn income (See: Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C. C.A.) at para. 34 and Egan v. Egan, 2003 BCSC (CanLII), [2003] B.C.J. No. (B.C.S.C.) (QL)). (vi) As general rule, parent cannot avoid his or her child support obligations by self-induced reduction of income. Thus, once it has been established that spouse is intentionally under-employed or unemployed, the burden shifts to that spouse to establish his employment 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 decision is 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 the circumstances. (ix) The factors to be considered in determining whether employment is reasonable, and in setting the amount of income to be imputed include, but are not limited to, the payor's age, education, training, work experience, skills, historical earning capacity, health, the motivation for the change in employment, the availability of job opportunities, the payor's ability to relocate, the number of hours the payor 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, 1999 CanLII 6307 (BC SC), [1999] B.C.J. No. 2532 (B.C. S.C.) (QL) at para. 17; Martel v. Martel, 2000 SKQB 227 (CanLII), (2000), 193 Sask. R. 225 (Q.B.); Cholodniuk v. Sears, 2001 SKQB 97 (CanLII), (2001), 204 Sask. R. 268 (Q.B.); Bodanarchuk v. Berden (October 31, 2006), Prince Albert, F.L.D. No. 204/2006, (Wilkinson J.), unreported)). [89] The term “intentionally under-employed” was judicially considered by this Court, in V.G.B. E.H., 2004 SKQB 280 (CanLII), 250 Sask 272. Commencing at para.14, Ryan-Froslie J. (as she then was) observed [14] There are two lines of judicial authority dealing with the meaning of “intentionally under-employed or unemployed” One line of authority holds that “intentionally” means “voluntarily”. It applies where parent chooses to be under-employed or unemployed. No specific intent to evade child support is necessary. This was the approach adopted by the Manitoba Court of Appeal in Donovan v. Donovan, 2000 MBCA 80 (CanLII), (2000), R.F.L. (5th) 306 (Man. C.A.), the Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.) and by Justice Dawson of this Court in Mullen v. Mullen, 2004 SKQB 65 (CanLII), [2004] S.J. No. 85 (Q.B.) (QL). The second line of authority holds that “intentionally” in s. 19(1)(a) requires specific intent by the parent paying child support to evade that obligation. This line of reasoning was adopted by the Alberta Court of Appeal in Hunt v. Smolis-Hunt, 2001 ABCA 229 (CanLII), (2001), 20 R.F.L. (5th) 409 (Alta. C.A.). [15] Obviously, an individual who chooses to be under-employed or unemployed to avoid paying child support is “intentionally under-employed or unemployed”. cannot, however, conclude that is the only circumstance envisioned by s. 19(1)(a). adopt the reasoning of the Manitoba Court of Appeal in Donovan and the Ontario Court of Appeal in Drygala, supra and find “intentional” extends to situations where parent required to pay child support chooses, for whatever reason, to earn less than they are capable of earning. The fact the parent “chooses” to be under-employed or unemployed, brings their situation within the meaning of “intentional” and creates the circumstance envisioned by s. 19(1)(a). The reason for such choice does not change the fact it is “intentional” but it may impact the court’s decision whether to exercise its discretion and impute income. [330] Having concluded that the petitioner in that case was in fact voluntarily under-employed by virtue of her decision to forego full time employment in favour of pursuing master’s degree, the court in D.A. went on to hold, commencing at para. [91] Whatever the merits of her decision, the petitioner chose to pursue her education and not to return to the workforce full-time. Her decision was voluntary and on the evidence before me, am satisfied that she is intentionally under-employed. [92] Having concluded the same, it then falls to determine whether the petitioner’s intentional under-employment is nonetheless justified by the needs of their children or her own reasonable educational needs, as contemplated by s. 19(1)(a) of the Guidelines. [93] By the time the matter had come on for trial, the parties’ children, B.A. and F.A. were 14 and 11 years old respectively, and attending school full-time. The petitioner provided no evidence to suggest that the needs of either child were in any way responsible for her decision to not to return to work eventually. [94] As for her own reasonable educational needs, the evidence discloses that her position with Crown Life was eliminated in the spring of 2001. Their eldest son, B.A. was born in October of that year, and the petitioner remained at home thereafter, presumably with the concurrence of the respondent. [95] Respondent’s counsel submits that the petitioner should have sought full-time employment once she completed her Bachelor of Arts degree in 2013 and that she is now, by her own admission, overqualified for many of the opportunities otherwise available to her. [96] Notably, the petitioner acknowledged she had not attended any summer courses since obtaining her undergraduate degree in 2013, and conceded under cross-examination that she had only applied for at most, ten job opportunities. Moreover, as respondent’s counsel observed, the petitioner conceded she had not applied for any of the government job opportunities posted in the recent “Careers in the Saskatchewan Public Service” document exhibited in the proceedings. [97] In these circumstances, respondent’s counsel invites the court to impute income to the petitioner in the sum of $50,000.00 per annum. In support of his position, counsel referred the court to the decision of the Ontario Court of Appeal in Drygala Pauli (2002), 2002 CanLII 41868 (ON CA), 61 OR (3d) 711 (Ont CA) [Drygala]. Beginning at para. 38, Gillese J.A., for unanimous court, observes as follows: [38] There is duty to seek employment in case where parent is healthy. As general rule, parent cannot avoid child support obligations by self-induced reduction of income. Thus, once it has been established that spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs. [39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves consideration of the course of study. spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. [40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under- employment is required by the reasonable educational needs of spouse. [41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements. [98] In the present case, note that by the time the parties had separated and subsequently resolved their matters by way of Minutes in March 2007, the petitioner had been completely out of the work force for six years. The petitioner testified, and in the circumstances accept, that after their divorce, she decided she needed to make herself more marketable, and enrolled in university in 2009. In 2013, she obtained her Bachelor of Arts degree with major in English. That fall, she enrolled in the master’s program. When the matter came on for trial, the petitioner had completed all of her classwork, and expected to defend her thesis in the near future. [99] She testified further, that she was concurrently working on campus, part-time, and exploring full-time employment opportunities once she obtained her master’s degree. After returning to the workforce full-time, it was her expectation that she would be earning between $40,000.00 and $60,000.00 annually. [100] On the evidence before me, am satisfied that the petitioner is intentionally under-employed but, accept that the reason underlying her choice falls within the justifications explicitly enumerated in s. 19(1)(a) of the Guidelines. Moreover, in all of the circumstances, am persuaded that her decision to forego full-time employment, after being out of the workforce for some years, and to instead enroll in university, and thereby upgrade her skill and academic credentials was reasonable one. [101] That said, it was the petitioner’s evidence that, upon successfully defending her thesis, she will have earned her master’s degree. She testified that she had begun to apply for permanent positions, and at no time did she suggest that it would be her intention to pursue her education further. She is only 45 years of age, and there was no evidence of any physical or mental health issues which might potentially impact upon her ability to earn an income. [331] See also, more recently, D.B.B. D.M.B., 2017 SKCA 59 (CanLII) [D.B.B.]. [332] In this case, the uncontroverted evidence is that, while living in Pakistan, the respondent was fully-employed as medical professional. In September 2005 she chose, understandably, to immigrate to Canada with the petitioner and their son, in search of better life. Although the respondent is highly educated and possessed of an advanced skill-set, the uncontroverted evidence is that she has not worked in that profession, or indeed at all save for brief period of temporary, part-time employment on an election campaign in 2008 and period spent recertifying in Pakistan since the parties took up residence in Canada over decade ago. [333] note that when the parties first immigrated in the fall of 2005, D.K., who was born the preceding November, was not yet year old. The respondent testified, and on the evidence as whole accept, that the parties agreed that she would put her career on hold, and raise D.K., at least until the petitioner became qualified and began to practice medicine in this country. also accept on the evidence as whole that the parties had mutually agreed that, once the petitioner had begun to practice medicine, the respondent would then also commence the process of qualifying to do so. [334] The petitioner successfully completed his examinations in 2007 and was successful in securing medical residency at that point. D.K. however, was not yet school age by this point, and aside from some temporary and ad hoc child-care assistance, the evidence confirms that the respondent was primarily responsible for their son’s day to day needs. [335] Moreover, while the petitioner and respondent each blame the other for the decision to return to Saskatchewan in October 2012, there is no dispute that following the family’s arrival in Canada, they relocated from Vancouver, to Saskatoon and then to Ottawa in furtherance of the petitioner’s career. [336] D.K. now attends school on full-time basis during the day, and the parties both testified that the respondent has made some progress toward obtaining her qualifications to practice medicine in this country. According to the respondent’s evidence, which accept, she plans to pursue the study to practice program, and to avoid the long hours associated with residency so she can continue, for the most part, to be available to their son outside of school hours. It was her evidence that the study to practice program can take as much as three years to complete. also accept her evidence that her career options are limited to some extent by the fact that she is practically restricted to opportunities within the province. [337] In all of the circumstances, find that the respondent is indeed intentionally under-employed but accept that her decision was justified, initially, by the needs of their son and more recently, by her own reasonable educational needs and the obligation to become qualified to practice medicine in this country. Having so found, am not persuaded that it is an appropriate instance in which to exercise my discretion to impute employment income to her at this time. [338] The respondent also claims for retroactive child support. The leading authority in this respect remains the Supreme Court of Canada’s decision in D.B.S S.R.G; L.J.W. T.A.R.; Henry Henry; Hiemstra Hiemstra, 2006 SCC 37 (CanLII), [2006] SCR 231 [D.B.S.], wherein Bastarache J., for the majority identified the following four factors for consideration, namely: 1. Any reasonable excuse for why support was not sought earlier; 2. The conduct of the payor parent; 3. The circumstances of the child; and 4. Any hardship occasioned by retroactive award. [339] The uncontroverted evidence in this case is that after the parties separated in April 2014, the petitioner began voluntarily providing sporadic support to the respondent by way of dividends from his professional medical corporation in the amount of $6,000.00 per month. He testified, and accept, that when asked, he also provided the respondent with additional lump sum payments, including payment of $35,000.00 and transfer to her of almost $13,775.00. While the respondent maintains that the $35,000.00 was used to repay loan to her brother, the petitioner insists that the balance outstanding on that loan was, by that point, closer to $20,000.00. The respondent did not dispute that she had received the additional payment of almost $13,775.00, which sum represented the entirety of the net proceeds realized from the sale of the parties’ condominium in Saskatoon. [340] Indeed, it was not until after he had petitioned the court in April 2014 seeking, inter alia, specified access and shared parenting that the respondent sought an order obliging the petitioner to pay support. [341] In July 2014, the court ordered the petitioner to pay interim child support in the amount of $1,949.00 per month, as well as spousal support in the amount of $5,250.00. With one notable exception, the petitioner has continued to pay support, both child and spousal pursuant to the terms of that order. The petitioner readily acknowledged that, although he continued to pay her spousal support, he elected to make no child support payments to the respondent during the two months she was in Dubai and he was caring for D.K. [342] There was, in this case, absolutely no evidence of what effect, if any, the payment of reduced child support in accordance with the interim order may have had on D.K. [343] Finally, there is considerable evidence upon which to conclude that a retroactive award would work an undue hardship upon the petitioner. Pursuant to the terms of this judgment, he will be obliged to assume significant family debt, to provide the respondent with a considerable equalization payment in respect of her interest in the family home, and to pay increased child and spousal support. In light of all of the evidence, and in particular, his testimony and that of his accountant, coupled with his sworn financial statement exhibited in these proceedings, accept that his capacity to pay himself higher salary or to declare additional dividends from his corporation is at best, inadequate to meet his obligations. [344] Applying the D.B.S. factors holistically to the circumstances of this case, I am not satisfied that it is an appropriate instance in which to make a retroactive order, save and except for the two months period in which the petitioner admittedly refused or neglected to pay child support in accordance with the interim order of this Court. As such, the petitioner shall pay to the respondent, on account of retroactive child support, the sum of $3,898.00. Division and Distribution of Family Property [345] The petitioner submits he has been or will ultimately be obliged to assume responsibility for virtually all of the debts accumulated during their marriage and, on that basis, seeks an unequal division of the parties’ family home and property. [346] The respondent counters that the majority of the parties’ debt was incurred in furtherance of the petitioner’s medical career, and invites the court to make an unequal division and distribution of their family property in her favour, and an equal division of their family home. [347] The relevant provisions of The Family Property Act, SS 1997, F-6.3 direct as follows: 2(1) In this Act: “value” means: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. 20 The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. 21(1) On application by spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses. (2) Subject to section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (a) refuse to order any distribution; (b) order that all the family property or its value be vested in one spouse; or (c) make any other order that it considers fair and equitable (3) For the purposes of subsection (2), the court shall have regard to the following: (a) any written agreement between the spouses or between one or both spouses and third party; (b) the length of time that the spouses have cohabited; (c) the duration of the period during which the spouses have lived separate and apart; (d) the date when the family property was acquired; (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property; (f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (h) the fact that spouse has made: (i) substantial gift of property to third party; or (ii) transfer of property to third party other than bona fide purchaser for value; (i) previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2); (j) tax liability that may be incurred by spouse as result of the transfer or sale of family property or any order made by the court; (k) the fact that spouse has dissipated family property; (l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as result of the death of his or her spouse; (m) any maintenance payments payable for the support of child; (n) interests of third parties in the family property; (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship; (p) the value of family property situated outside Saskatchewan; (q) any other relevant fact or circumstance. 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. (3) Where there is more than one family home, the court may designate to which family home this section applies, and any remaining family home is to be distributed in accordance with section 21. [348] The preferred approach to the division and distribution of family property was established early on by Cameron J.A. for the Court of Appeal in Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (Sask CA). At paras. 18 and 19 he writes: 18 Section 21(1) of the Act requires that the "matrimonial property or its value", both as defined in s. 2, be distributed and distributed equally, subject only to the exceptions, exemptions, and equitable considerations mentioned elsewhere in the statute. "Matrimonial property" is defined by s. 2(h) to mean all manner of property that, "at the time an application is made under this Act", is owned by one or other of the spouses or in which either has an interest. "Value" on the other hand is defined by s. 2(1) to mean the fair market value "at the time an application is made under this Act, or at the time of adjudication, whichever the court thinks fit". 19 In the light of these and other provisions of the Act, the practice is to resolve these cases along the lines suggested by Carter, J., in Rathie v. Rathie (1980), 1980 CanLII 2016 (SK QB), 17 R.F.L. (2d) 265 (Q.B.), determining, first, the property and its value subject to distribution. This ordinarily entails compiling an inventory of the property owned by the spouses as of the time of application and establishing the net value of that property as of that time or the time of adjudication. Exceptions aside, this is the property and its value which is subject to distribution. It is the practice to go on from there to next determine whether any of that property or its value is exempt from distribution; then to determine whether any of it ought not to be distributed equally having regard for the equitable considerations mentioned in the statute; and finally to decide how the distribution should be effected. [349] More recently, in Ackerman, Jackson J.A. summarized the various principles and considerations applicable to valuing family property as follows, commencing at paragraph 37: [37] Value is defined in s. of The Family Property Act to mean: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. This definition gives trial judges considerable discretion in determining whether to use the application date or the adjudication date to value family property. The ambit of that discretion has been considered by this Court and review of that jurisprudence reveals the following principles: (i) The application date is the date traditionally used by courts for valuation purposes (see: Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) at para 34 [Benson]). (ii) Generally, property should be valued consistently at either the application date or the date of adjudication. If property is valued at different dates, the court should provide an explanation for doing so (see: Tataryn Tataryn (1984), 1984 CanLII 2663 (SK CA), DLR (4th) 77 (Sask CA) at 80 and Russell at para. 25). (iii) In determining the appropriate valuation date, judge must act rationally based on the evidence before him or her; keeping in mind the purpose of the Act and the justice of the case (see: Benson at para. 33, Russell at para. 28, and Williams Williams, 2011 SKCA 84 (CanLII) at para 29, 343 DLR (4th) 720). (iv) The choice of valuation date will be informed in part by the sufficiency of the evidence of value pertaining to each date (see: Russell at para. 28); (v) If property has increased or decreased in value between the application date and the date of adjudication, the reason for that increase or decrease is an important factor to be considered in choosing the appropriate valuation date. If the increase or decrease is due solely to market forces the property should generally be valued as of the date of adjudication (see: Benson at para. 34, Russell at para. 45, Mehling Mehling (1989), 1989 CanLII 4775 (SK CA), 75 Sask 195 (CA)). On the other hand, when the rise or fall in value is attributable solely to the actions of one spouse, it is appropriate to value the property as of the date of application (see: Gresham Gresham (1988), 1988 CanLII 5230 (SK CA), 72 Sask (CA) and Benson at para. 34). would add that any contribution by third party to the increase or decrease in value of family property, would militate in favour of valuing that property as of the application date. (vi) The type of distribution contemplated by the Court, eg. sale or transfer to one or both spouses, may also be relevant to the choice of the valuation date. Other considerations may also apply. [350] The foregoing summary was subsequently affirmed in Thomas Thomas, 2016 SKCA 53 (CanLII), 476 Sask 288. Commencing at para. 32 of that decision, the court observed: [32] As an initial point, Ackerman does not stand for the proposition that where there is change in value between the application date and the adjudication date due to factors not restricted to market forces, the application date for valuation is invariably the appropriate date. Section 2(1) of the Act, and the definition of value stated therein, makes clear that where necessary the court can determine reasonable value based on either the date of application or adjudication: 2(1) In this Act: “value” means: (a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (b) if fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. [33] Based on the jurisprudence from this Court, judge dividing the value of matrimonial property has the power to make choices with regard to value and is not restricted to the de facto value at either the application date or the adjudication date if the evidence is such that fair market value cannot be established using either of those dates. This much was made clear by Jackson J.A. in Russell Russell (1999), 1999 CanLII 12313 (SK CA), [2000] WWR 619 (Sask CA): [28] Selection of the valuation date is not decision made in isolation from other decisions made in the course of dividing matrimonial property. The choice of the valuation date is rational one based on the evidence. As the case law indicates, the valuation date is influenced by such factors as the sufficiency of the evidence of value pertaining to one date or the other, the cause of an increase or decrease in value, the fairness of one date over the other and the effect of inconsistent dates on the overall fairness of the distribution. All of this is dependent upon thorough understanding of the evidence. Thus, although judgments begin with decision as to the appropriate valuation date, the court hears all evidence pertaining to value before selecting the valuation date. See also Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 at paras 33-34, and Ackerman at para 37. [351] In this case, the appraisal filed as Exhibit P-1 establishes that, as of September 2, 2015, the family home, located at **** James Hill Road, Regina, had fair market value of $434,000.00, and this is the same value which the respondent has utilized in her written argument, dated November 13, 2015. The only evidence of the mortgage indebtedness secured against title to the family home was in the form of an email from the mortgagee, which was also filed as part of Exhibit P-1, and which suggested that as of April 30, 2014, the balance outstanding was $360,299.00. [352] While the parties filed statements to establish the value of some of the debts accumulated by them during the marriage, the dates utilized for those statements were generally inconsistent and, save for some of their account balances and the valuation of the petitioner’s medical corporation, there was little or no evidence as to the value of the remainder of the parties’ family property, beyond the estimates of value set forth in their respective property statements. [353] In the circumstances, counsel for the petitioner proposes that, in the absence of independent evidence, the value of these other assets and debts be determined by averaging the estimates provided by the parties in their property statements, as adopted at trial. To that end, she has prepared table of values, set forth at pages 63-65 inclusive of her written brief of law, which table is reproduced below. COMMENT Family Home **** James Hill Road, Regina 434,000.00 Value in the September 2, 2015 Appraisal by Crown Appraisals Exhibit P-1 Tab Household Goods 3,500.00** *Average value of parties’ respective values in Property Statements. Respondent (20,000) Exhibit R-2; Petitioner (3,000 4,000) Exhibit P-2; **Average values of parties’ respective values in Property Statements. Respondent (3,000) Exhibit R-2; Petitioner (4,000) Exhibit P-2; Computer and X-box 1,000.00 Petitioner’s Property Statement sworn August 18, 2014 Exhibit P-2 Total Real Property 4,500.00 Vehicles and Various Misc Personal Property 2009 Jeep Patriot 12,500.00* *Average value in parties’ respective Property Statements; Petitioner (15,000) Exhibit P-2; Respondent (10,000) Exhibit R-2; Total Value of Vehicles 12,500.00 Bank Accounts Accounts Receivable RBC Personal Account 2,755.74 RBC personal account *****-******* statement as of April 22, 2014 Exhibit P-1 Tab RBC Person Account 613.73 RBC statement Account ********for April 23, 2014 Exhibit P-1 Tab Personal Savings account TD Canada Trust Account #******* Account closed January 14, 2014 Exhibit P-1 Tab Joint account TD Canada Account #******* 153.71 Statement dated April 2, 2014 Exhibit P-1 Tab Net sale proceeds from Saskatoon Condo 13,774.17 Paid to Respondent in late 2013; Exhibit P-1 Tab Total Value of Bank Accounts 14,541.61 Life Insurance SMA Sunlife Life Insurance No cash value Petitioner’s Property Statement sworn August 18, 2014, Exhibit P-2 SMA Manulife Disability Insurance No cash value Petitioner’s Property Statement sworn August 18, 2014, Exhibit P-2 Total Value of Life Insurance nan Business Interest Regina Pediatric P.C. Inc. 12,100.00 Business Valuation of Virtus Group dated October 23, 2015, Exhibit P-1 Tab Total Value of Business Interests nan TOTAL VALUE OF ASSETS $460,605.74 $31,541.61 LIABILITIES Mortgage Equitable Bank (360,299.16) Email from Equitable Bank dated October 10, 2014 providing outstanding balance as of April 30, 2014 Exhibit P-1 Tab 10 RQHR Loan (30,000.00) October 20, 2014 letter from RQHR providing outstanding balance as of October 14, 2014 Exhibit P-1 Tab 11 National Bank of Canada Line of Credit (99,990.81) National Bank account 74-682-97 statement as of May 7, 2014 Exhibit P-1 Tab 12 RBC Line of Credit (89,497.05) Royal Credit Line account ********-*** statement as of May 7, 2014 Exhibit P-1 Tab 14 TD credit card (4,337.37) April 11, 2014 statement Exhibit P-1 Tab 15 RBC company credit card (1,447.39) WestJet RBC MasterCard statement as of May 12, 2014 Exhibit P-1 Tab 15 National bank of Canada Loan (86,156.30) National Bank account ******* statement as of May 2, 2014 exhibit P-1 Tab 13 46.88 Statement dated March 18, 2014 Exhibit P-1 Tab 17 Walmart MasterCard Referred to in Respondent’s Property Statement sworn July 7, 20140 No statement provided, Exhibit R-2 Canadian Tire MasterCard 0.00 Statement dated April 3, 2014 Exhibit P-1 Tab 18 Outstanding taxes for 2012 and 2013 (70,314.77) Portion of taxes payable for 2012 and 2013. $48,543.75 for 2012 taxes due and owing at time of Petition. $70,834.13 total taxes owing for 2013 (personal); $36,000.00 for 2013 (corporate). See corporate financial statement for 2013 Exhibit P-1 Tab and Petitioner’s personal Tax returns attached to Exhibit P-3 Outstanding Taxes for 2013 (4,567.96) Exhibit P-1 Tab 19 HealthForce Ontario Returns of Service Loan (23,222.80) Petitioner’s Testimony, and Petitioner’s Property Statement, Exhibit P2 Total Debts (765,265.65) (4,521.08) Total Non-Registered Assets $31,541.61 TOTAL VALUE of Liabilities (765,265.65) NET ASSETS (304,659.91) Difference No net assets to divide [354] Notwithstanding that the dates employed for establishing many of the values set forth above are inconsistent, while other values are simply estimates based upon averaging, in the circumstances, those values represent the best or, in some cases, the only evidence available to the court and, with one exception, accept the same for the purposes of establishing an appropriate division and distribution of the family home and property. That exception is in respect of the approximately $13,775.00 paid by the petitioner to the respondent in 2013, from the net proceeds realized upon the sale of their Saskatoon condominium. As there was no evidence that these proceeds, or any portion thereof continued to exist or are otherwise traceable as of the date of application, they do not meet the definition of family property. [355] The petitioner submits that the parties’ debts significantly exceed the value of their family property and the equity in the family home. He submits further that, with the exception of computer, which he argues should be returned to him, the parties should, in the circumstances, each retain the property in their respective possession and similarly assume responsibility for the debts in his or her name. [356] Specifically, the petitioner proposes that he retain the family home, without division or distribution, and that he assume sole responsibility for the mortgage, as well as the indebtedness to RQHR, the National Bank and RBC lines of credit, National Bank loan, and the TD credit card balance. The respondent, he proposes, would assume sole responsibility for the TD Visa, Canadian Tire Mastercard and her personal income tax outstanding for 2013. [357] The respondent disagrees, and submits that she should receive an equal division of the family home and an unequal division and distribution of the parties’ family property. She argues, inter alia, that the role and responsibilities which she assumed during their marriage directly or indirectly contributed to the petitioner’s career, and negatively impacted upon her own financial means and earning capacity, as contemplated by ss. 21(3)(f) and (g) of The Family Property Act. [358] She adds that much of the debt accumulated during their relationship was incurred to advance the petitioner’s career, and notes that she too will be obliged to incur similar expenditures to become licensed to practice medicine. In the circumstances, she submits, it would be inequitable and inappropriate to equally apportion the parties’ debt or to divide and distribute the equity in the family home on anything other than an equal basis. must agree. [359] In support of his client’s position, counsel for the respondent adverts to the decisions of this Court in Guderyan Meyers, 2006 SKQB 535 (CanLII), 290 Sask 280 and Reid Kurysh, 2011 SKQB 150 (CanLII) [Kurysh]. Both decisions draw heavily upon the earlier decision of the Saskatchewan Court of Appeal in Russell Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask 196 (Sask CA) [Russell]. Both Russell and Kurysh were considered recently in Swystun Janzen, 2016 SKCA 117 (CanLII), 485 Sask 140 [Swystun]. Commencing at para. 13 of that decision, Herauf J.A., writes, on behalf of unanimous panel: [13] In considering whether an equal distribution of family property would be “unfair and inequitable”, s. 21(3)(o) of The Family Property Act requires the court to consider “any debts or liabilities of spouse, including debts paid during the course of the spousal relationship”. [14] The appellant submits the trial judge erred by dividing the debts equally. Rather, he submits the trial judge should have considered “whether fairness requires an unequal distribution of property to reflect debt obligations” (see Reid Kurysh, 2011 SKQB 150 (CanLII) at para 31). [15] As stated in Russell Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask 196 (C.A.) [Russell], “strict construction” of both The Family Property Act and of Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) [Benson], would require the trial judge to calculate the value of the family property and then make determination as to whether an “equitable adjustment” is required because of the debts. Justice Jackson then went on to say: “As general rule, however, once debts are accepted as debts incurred by the parties prior to the date of application, Saskatchewan courts deduct debts from the total value of matrimonial property without maintaining that they are doing so as result of an application of equitable principles” (at para 111). [16] Whether or not to order an unequal distribution of family property having regard to the debts of the parties is within the discretion of the trial judge (Russell at para 111, Riben Riben, 2013 SKCA 114 (CanLII) 423 Sask 305). The trial judge, at para 188, stated that the debts were “occasioned by the [respondent] during the course of the relationship for their mutual benefit” and “accordingly” accepted those debts should be taken into account in the property division. This is not surprising since the appellant provided no evidence that it would be improper to consider the debt incurred between separation and petition, or to rebut the evidence provided by the respondent that the debts were incurred for the parties’ mutual benefit. Accordingly, would not give effect to this ground of appeal. [360] With regard to the division and distribution of the family home in particular, the court in Swystun goes on, commencing at para. 36, to hold as follows: [36] This brings us to the main issue in this appeal. The appellant argues that the trial judge erred in his distribution of the family home, as debts and liabilities not pertaining to the family home were used to calculate its value for division purposes. This is so because all the assets and debts including the family home and its mortgage were considered together. The respondent asserts that the trial judge did not err and was not required to divide the equity in the home separate and distinct from the balance of the family property. The respondent submits that the proper approach, as evidenced by numerous decisions at both the trial and appellate level, is to calculate the equity in the family home and then include that equity figure in the overall calculation of the distribution of family property, which is exactly what the trial judge did in this case; however, none of these “numerous decisions” were cited. [37] Section 22 of The Family Property Act reads: 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. (3) Where there is more than one family home, the court may designate to which family home this section applies, and any remaining family home is to be distributed in accordance with section 21. [38] The appellant cites Gardiner Gardiner (1987), 1987 CanLII 4757 (SK QB), 54 Sask 246 (QB) at para 24 [Gardiner], for the proposition that: When the matrimonial home is subject of an application for distribution the court shall have regard to “any tax liability, encumbrance or other debt or liability pertaining to the matrimonial home” (emphasis added) and then distribute the home or its value equally. Debts and liabilities not pertaining to the matrimonial home may not cut into the value of this one asset to be distributed, or be used to vary the amount to be received by each spouse. [39] In my view, Gardiner is correct articulation of the law regarding distribution of the family home under s. 22 of The Family Property Act. See also Russell at paras 109-110 and M.M.L. P.M.F., 2005 SKQB 348 (CanLII), 268 Sask 159 at para 90. Section 22 makes it clear that the family home is to be dealt with in different fashion from the rest of the family property and is subject to special statutory consideration. This is reinforced by the fact that the family home is specifically defined in s. 2(1) of the Act. As well, the family home is expressly excluded from the definition of exempt property in s. 23 of the Act. Section 22 directs that the entire equity in the family home is to be equally divided by the parties. Equity is determined by reduction in the value of the home only for any tax liability, encumbrance or other debt “pertaining to the family home.” [361] The petitioner testified, and indeed accept that much of the debt incurred during their relationship, including the lines of credit and RQHR loan were expended for the mutual benefit of the family. However, The Family Property Act does not mandate the apportionment of debt, equal or otherwise, save to the extent that fairness requires an unequal division or distribution of family property to reflect the parties’ respective obligations (Kurysh). While it is clear that the court enjoys the discretion to equalize the parties’ debt, where appropriate, by effecting an uneven division and distribution of their family property in general, it is equally clear from the authorities that this discretion does not extend to the family home. [362] As result, the petitioner shall retain the family home and shall be solely responsible for the mortgage indebtedness associated therewith. The respondent is entitled to an equalization payment from the petitioner in the amount of $36,850.00, representing one half of the parties’ total equity therein of $73,700.00. [363] The parties shall retain all other items of family property presently in their respective possession, and shall be solely responsible for any indebtedness in their respective names. Spousal Support [364] On July 4, 2014, Brown J. found the petitioner’s income to be slightly in excess of $245,000.00, and on that basis, ordered the petitioner to pay interim spousal support to the respondent in the amount of $5,250.00 per month. [365] The petitioner argues that the respondent is intentionally under-employed, that the court ought to impute income to her and that the amount of the interim spousal award should, accordingly, be reduced or, alternatively, terminated entirely. [366] The respondent, by contrast, seeks an increase in the interim order, and invites the court to award her support in the amount of $9,000.00 per month which, she submits, is the midrange suggested by the Carol Rogerson Rollie Thompson, Spousal Support Advisory Guidelines, ([Ottawa]: Department of Justice, 2008) [SSAG]. [367] The statutory authority to award spousal support is derived from the provisions of The Family Maintenance Act, 1997, SS 1997, F-6.2 and the Divorce Act and. The former provides that: 5(1) On application, the court may order person to provide maintenance for his or her spouse, in accordance with need, to the extent that the person is capable of doing so. (2) An order for the maintenance of spouse should: (a) recognize any economic advantages or disadvantages to the spouses arising from the spousal relationship or its breakdown; (b) relieve any economic hardship of the spouses arising from the breakdown of the spousal relationship; and (c) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time. 7(1) In determining the amount, if any, of maintenance to be paid for dependent spouse, the court shall take into account the needs, means and economic circumstances of the parties, including: (a) the age and the physical and mental health of the spouses; (b) the length of time the spouses cohabited; (c) the measures available for the dependent spouse to become financially independent and the length of time and cost involved to enable the dependent spouse to take those measures; and (d) the legal obligation of the respondent to provide maintenance for any other person. (2) In determining the amount, if any, of maintenance to be paid for dependant, the court shall not take into account any benefit that the Department of Community Resources and Employment provides to or for the maintenance of the dependant. [368] Similarly, s. 15.2 of the Divorce Act directs as follows: 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). (3) The court may make an order under subsection (1) or an interim order under subsection(2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time. [369] In Bracklow Bracklow, 1999 CanLII 715 (SCC), [1999] SCR 420, the Supreme Court of Canada identified the following three conceptual basis for entitlement to spousal support: 1) compensatory; 2) contractual; and, 3) non-compensatory. As Cameron J.A. observed in Bradley Bradley, 2005 SKCA 53 (CanLII) at para 36, 262 Sask 215, the purpose of spousal support is to relieve economic hardship that results from the marriage or its breakdown. To that end, the Divorce Act requires fair and equitable distribution of resources between spouses so as to alleviate the economic consequences of the marriage or its breakdown. Neither the parties’ respective means and needs, nor the objective of achieving economic self-sufficiency, are to dominate the inquiry. Rather, all four objectives referenced in the Divorce Act must be taken into consideration. [370] As there is not, in this case, any evidence of an express or implied contract, the first question to determine is whether the respondent is entitled to an award of ongoing support, on either compensatory or non-compensatory basis. [371] useful summary of these two models of support may be found in the recent decision of the Saskatchewan Court of Appeal in D.B.B. Commencing at para. 75, Herauf J.A., on behalf of unanimous panel observed as follows with respect to the compensatory support: [78] The first two objectives in s. 15.2(6) of the Divorce Act primarily relate to the compensatory purpose of spousal support (see Moge and Bracklow). When looking at compensation, the question facing court is what is the spouse’s loss that the marriage or marriage breakup caused that would not have been suffered but for the marriage (Bracklow at para 41). This inquiry must be made while recognizing that compensatory spousal support may also address any economic advantages enjoyed by the other spouse as result of the recipient spouse’s efforts. The British Columbia Court of Appeal in Chutter Chutter, 2008 BCCA 507 (CanLII), 301 DLR (4th) 297 [Chutter], leave to appeal to SCC dismissed with costs, [2009] SCR vi, stated the purpose of compensatory support as follows: [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by recipient spouse in assuming primary childcare and household responsibilities often result in lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support may be way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by spouse as consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added). [372] With respect to entitlement on non-compensatory basis, the court in D.B.B. goes on, commencing at para. 82 of the judgment as follows: [82] Non-compensatory support primarily relates to the objectives found in ss. 15.2(6)(c) and (d) of the Divorce Act and is considered an obligation owed arising from the marriage relationship itself (Bracklow). In Chutter, the British Columbia Court of Appeal discussed the non-compensatory basis for entitlement recognized by the Supreme Court of Canada in Bracklow: [54] Where compensatory principles do not apply, need alone may be sufficient to ground claim for spousal support (Bracklow, at para. 43). Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support. [83] When relationship breaks down, ss. 15.2(6)(c) and (d) dictate that the economic effects on the parties must be evaluated. To determine if spousal support is warranted under non-compensatory basis, “a court must consider all factors including the standard of living of the spouses before and after divorce, their means to satisfy living expenses and their ability to become self-sufficient after the breakup of the marriage” (Russell Russell (1999), 1999 CanLII 12313 (SK CA), 179 DLR (4th) 723 (Sask CA) at para 126). Additionally, case law shows that the standard of living pre- and post-separation is relevant to non-compensatory support entitlement. For example, the Supreme Court’s decision in Moge indicates that “great disparities in the standard of living that would be experienced by spouses in the absence of support are often revealing indication of the economic disadvantages inherent in the role assumed by one party” (at 870). [84] Changes in the parties’ lifestyle are an important factor in the “means and needs” assessment. The promotion of self-sufficiency is an objective that must always be kept in mind. The concept of “needs” in this context goes beyond the basic necessities of life and varies according to the circumstances of the parties (Chutter at para 55). As stated in Fisher Fisher, 2008 ONCA 11 (CanLII), 288 DLR (4th) 513 [Fisher]: [53] Self-sufficiency, with its connotation of economic independence, is relative concept. It is not achieved simply because former spouse can meet basic expenses on particular amount of income; rather, self-sufficiency relates to the ability to support reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), O.R. (3d) at 27-28, 75 D.L.R. (4th) 637 (C.A.). Thus, determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase party’s means, the parties’ likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors. [373] On the evidence before me, I have no hesitation in concluding that the respondent has established she is entitled to support on both a compensatory and non-compensatory basis. [374] Prior to immigrating to Canada, both parties practiced medicine. While accept that they had contemplated that the respondent would one day practice again, the uncontroverted evidence is that they agreed, following the birth of their son, that she would put her career on hold and tend to D.K.’s needs while the petitioner sought to become qualified to practice medicine in this country. Over the years, the family relocated numerous times in furtherance of the petitioner’s career. The current disparity in their respective financial resources, earning capacity and professional status are directly attributable to the respondent’s role in the marriage and to the parties’ mutual efforts to advance the petitioner’s prospects. [375] The circumstances of this case also merit an award of support on non-compensatory basis. While the petitioner’s income is considerable, the respondent no longer receives dividends from his professional medical corporation and her income, such that it is, consists almost entirely of spousal support provided by the petitioner. [376] As with the quantification of child support, the petitioner invites the court to impute employment income to the respondent for the purposes of calculating the appropriate award of spousal support. For the reasons set forth earlier in this judgment in the context of child support, am not persuaded that it is appropriate to do so at this time. [377] Again, writing recently for the Court of Appeal in D.B.B., Herauf J.A. notes as follows, commencing at para. [69] This issue was recently addressed by this Court in Kosolofski Kosolofski, 2016 SKCA 106 (CanLII), 402 DLR (4th) 423. Justice Ryan-Froslie discussed the principles that guide courts when they are called upon to determine whether income should be imputed to spouse: [55] This Court considered the principles at play when determining whether income should be imputed for spousal support purposes in Linn Frank, 2014 SKCA 87 (CanLII), 442 Sask 126 [Linn]. Justice Jackson, writing for the Court, stated: [96] Four principles emerge from the appellate authorities cited by Ms. Frank and from this expanded list. First, person is expected to take reasonable steps to obtain employment commensurate with such factors as age, health, education, skills and work history. Second, supportable finding that person is intentionally under-employed carries considerable weight. Third, trial judge’s decision to impute or not to impute income is still decision about support and must be accorded deference on appeal. Fourth, appellate intervention may be required if the evidentiary base does not support the trial judge’s decision to impute income. In that regard, some factors like physical and mental health, current useable skills and age play significant role. Therefore, the question in this appeal is whether the evidence supports the trial judge’s decision to impute employment income of $250,000.00 per annum to the appellant. [71] This Court examined the terms “under-employed” and “intentionally” in Pontius Murray, 2011 SKCA 121 (CanLII) at para 9, 377 Sask 16: [9] The term “under-employed” concerns situations where parent, for whatever reason, chooses to earn less than they are capable of earning. “Intentionally” does not necessarily mean that the parent in question is attempting to avoid paying child support or does not care for the child. subjective intent to evade or reduce child support obligation is therefore not necessary. See: Beisel v. Henderson, 2004 SKQB 280 (CanLII), [2006] W.W.R. 502. Although these comments are related to imputing income for the purposes of child support, it appears that they apply equally to spousal support considerations: see Ann C. Wilton Noel Semple, Spousal Support in Canada, 3d ed (Toronto: Carswell, 2015) at 299. [378] Again, while readily accept that the respondent is, by definition, intentionally unemployed or under-employed, also conclude, in all of the circumstances, that her decision to forego full-time employment was nonetheless justified, initially by the needs of the parties’ son, and subsequently by her own need to retrain and to qualify to practice medicine in this country. [379] Having said that, also accept the respondent’s own uncontroverted evidence to the effect that it is her intention to pursue re-qualification through the study to practice path, and that electing this option will require up to three years to complete. Amongst the various objectives of spousal support is the promotion, within reasonable time, of the economic self-sufficiency of each spouse. [380] As for the parties’ respective condition, means and needs, again, the evidence clearly establishes that the respondent has demonstrated need for support. However, she and the petitioner are both relatively young and, like the petitioner, she is an obviously intelligent, highly capable and highly trained individual who, by her own testimony, intends to return to the practice of medicine as soon as she can become requalified. Given his age and full-time attendance at school, it is reasonable to expect that D.K.’s needs will continue to demand less of the respondent’s time and attention than had previously been the case. [381] The petitioner’s income is considerable. However, given my findings as set forth previously in this judgment, including the priority of child support, the fact he will be obliged to assume significant family debt, and to pay the respondent in excess of $36,800.00 to equalize her interest in the family home, conclude his capacity to pay spousal support to be limited. [382] Respondent’s counsel has appended to his written brief of law and argument, four separate calculations undertaken in accordance with the SSAG. These calculations variously presume income on the part of the petitioner of $309,700.00, $317,018.00, $333,000.00 and $376,500.00. He invites the court, on that basis, to fix the petitioner’s ongoing spousal support obligations somewhere between $7,719.00, being the low range recommended by the SSAG for income of $309,700.00, and $11,357.00, being the high range recommended for income of $376,500.00. [383] In the now oft cited decision in Linn Frank, 2014 SKCA 87 (CanLII) at para 78, 442 Sask 126 [Frank] Jackson J.A., on behalf of the Court of Appeal reiterated that, while they lack legislative or regulatory status, the SSAG represent useful tool which the court may employ when calculating spousal support. [384] The decision in Frank was cited and applied in D.B.B., where, at para. 89, Herauf J.A. summarized as follows: [89] In Frank, this Court discussed the application of the SSAG when court is determining the appropriate quantum of spousal support award. The following principles were outlined by Jackson J.A. (at paras 81–88): (a) the standard of review is that described in Hickey; (b) the starting point in the analysis is the legislative obligations prescribed by the applicable legislation; (c) the parties’ needs and means must be analysed; (d) if counsel makes submission with respect to the SSAG, the trial judge should give reasons explaining why the SSAG were or were not followed; (e) the SSAG are “litmus test” for what constitutes equitable sharing of the economic consequences of the marriage or its breakdown; and (f) the SSAG assist in informing an appellate standard of review. [385] In this case, the petitioner has provided no SSAG calculation, while the value of the various calculations filed on behalf of the respondent as “litmus test” are undermined by the fact that they do not utilize the petitioner’s actual income. Of those provided, the only one which is even remotely relevant is the calculation which employs an income of $309,700.00. This projection provides suggested monthly award of between $7,919.00 and $9,510.00, with median payment of $8,715.00. [386] What the foregoing range fails to reflect, and what is in fact acknowledged in Chapter 12 of the SSAG, is that there are various recognized exceptions or categories of departure from the formula outcomes. Among them are those instances where, as is the case here, one party or the other assumes family debt in excess of assets. [387] In Goodine Goodine, 2013 NSSC 98 (CanLII) the court explicitly referenced the exception for debt payments enumerated at para. 12.2 of the SSAG, and concluded in the circumstances of that case that the payor should be relieved from paying any amount of support. [388] The petitioner herein testified, and accept, that after paying interim child and spousal support of $7,199.00 from his fixed monthly salary of $13,625.00, he is left with approximately $6,435.00 with which to service monthly debt payments of approximately $3,400.00. His sworn financial statement which was filed in these proceedings confirms that his mortgage and property taxes account for an additional $2,400.00 per month. Pursuant to the terms of this judgment, he will, in addition, be obliged to provide the respondent with lump sum payment on account of her half interest in the equity in the family home. [389] While the petitioner acknowledged he has traditionally declared dividends from his professional medical corporation to meet his monthly shortfall, accept that his capacity to do so is extremely limited. [390] The court heard little in the way of evidence of the respondent’s actual needs, and while her own financial statement, which was filed in these proceedings, suggests an annual deficit in excess of $82,000.00 per year, many of the expenses claimed, including claim for $17,400.00 on account of food and expenses, and $4,500.00 for furnishings and equipment, appear excessive. It is also notable that the respondent has claimed $10,000.00 per year on account of vacation expenses and that she has failed to account for receipt of any spousal support in accordance with the interim order. [391] In this case, the respondent requires support. However, the unusually high amount of debt assumed by the petitioner, coupled with his limited means of satisfying such an award warrant a departure from the range of outcomes suggested by the SSAG. In the circumstances, conclude that an appropriate award of spousal support is $6,000.00 per month. [392] As for the appropriate duration of the petitioner’s obligation, the SSAG proposes term of between and 14 years. In 2014 scholarly paper entitled “Spousal Support and the Advisory Guidelines” by Rollie Thompson, the author observes: After Moge, time-limited orders fell into disrepute in compensatory cases, apart from very short marriages or unusual cases where spouse would clearly acquire self-sufficiency within known time frame. In every jurisdiction, there is an appellate decision favouring indefinite orders as the norm in these cases. Indefinite orders are also common in long-marriage cases. Bracklow encouraged greater use of time-limited orders in marriages and relationships without children. In that decision, the Supreme Court recognised the interrelationship of duration and amount. “Review” became the judicial solution to the problems of duration and self-sufficiency: attached to an order of indefinite support is term requiring review at specified future date, at which time court would assess the recipient spouse’s earnings or efforts to attain self-sufficiency. The process of review is explained in decisions like Schmidt v. Schmidt (1999), 1999 BCCA 701 (CanLII), R.F.L. (5th) 197 (B.C.C.A.) or Bergeron v. Bergeron (1999), 1999 CanLII 14955 (ON SC), R.F.L. (5th) 57 (Ont.S.C.J.) per Aston J. On review hearing, unlike variation, no proof of “change of circumstances” need be shown by either party to bring the issue back before the court. The Supreme Court of Canada approved the use of review orders in its June 2006 decision in Leskun v. Leskun, 2006 SCC 25 (CanLII), [2006] S.C.R. 920. Review orders are justified where there is “genuine and material uncertainty at the time of the original trial” as to the spouses’ finances in the near future. “Common examples are the need to establish new residence, start program of education, train or upgrade skills, or obtain employment”, said the Court. If review term is included in an order, the issue(s) to be reviewed should be precisely identified in the order, to avoid mere relitigation of the whole case. [393] There is at present in this case, a genuine and material uncertainty as to the respondent’s future need and the extent to which she will achieve some degree of self-sufficiency. She has testified, and accept that by remaining in Saskatchewan and pursuing the study to practice path, it will take her as much as three years to become qualified to practice medicine in Canada. In the circumstances, I conclude that it is appropriate to make an indefinite award, which will be reviewable on the earlier of December 1, 2018, or the respondent becoming qualified to practice medicine. [394] For substantially the same reasons set forth earlier herein in the context of child support, accept that the payment of retroactive spousal support would work significant financial hardship on the petitioner. The uncontroverted evidence, moreover, is that he has consistently provided the respondent with support, both before and after the pronouncement of formal interim order to that effect, and accept that the respondent appeared satisfied with these arrangements until the petitioner applied to specify access. In all the circumstances, I decline to make any order with regard to retroactive spousal support. [395] The petitioner has petitioned the court for divorce, pursuant to s. 8(2)(a) of the Divorce Act; the respondent has joined in that request. [396] Section of the Divorce Act empowers the court to grant judgment for divorce where there has been breakdown of the marriage including, pursuant to s. (2)(a), those instances in which “the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding” [397] The uncontroverted evidence in this case is that the parties had been living separate and apart continuously since on or about April 2, 2014, and continued to do so at the time of trial. [398] With the concurrence of the parties, they shall have judgement for divorce, which judgment shall take effect upon the conclusion of the appeal period. CONCLUSION [399] The parties shall continue to enjoy joint custody of their son D.K., born --------------------. [400] D.K.’s primary residence shall remain that of the respondent. [401] Save as may be explicitly provided herein, the petitioner shall parent their son according to the following schedule: 1. Commencing on Friday, December 22, 2017, at the conclusion of the school day, to and including Monday, December 24, 2017 at the commencement of the school day, and in like fashion on alternating weekends thereafter; 2. In addition, commencing January 1, 2018, the petitioner shall parent D.K. from Monday at the conclusion of the school day until the following Friday at the commencement of the school day, and in like fashion every fourth week thereafter; 3. In the event that there is no school scheduled during the petitioner’s regular week-long or weekend parenting, exchanges shall take place at the ordinary time for commencement and conclusion of D.K.’s classes; and 4. In addition, the petitioner shall parent each Wednesday, from the conclusion of the school day until 7:00 p.m. [402] To the extent necessary, the regular parenting schedule shall be suspended as follows: 1. During winter vacation such that, commencing in December 2017 and in odd years thereafter, the respondent shall be entitled to parent D.K. from 12:00 p.m. on December 24th, until 12:00 p.m. on December 29th. The petitioner shall then parent continuously until the recommencement of school, at which point, the parties shall revert to the regular parenting schedule; and 2. Conversely, commencing in December 2018 and in even years thereafter, the petitioner shall be entitled to parent D.K. during winter vacation, from 12:00 p.m. on December 24th, until 12:00 p.m. on December 29th. The respondent shall then parent continuously until the recommencement of school, at which point, the parties shall revert to the regular parenting schedule. [403] Save only for emergencies or for the purpose of attending medical or other such appointments, the parties shall each ensure that D.K. attends school as scheduled and each shall be responsible for ensuring that any homework is completed while their son is in their care. [404] The parent who is then responsible for parenting D.K. shall be also responsible for conveying him to all appointments and extracurricular activities, and the other parent shall be entitled to attend such appointments and extracurricular activities. Each of the parties shall arrange to obtain report cards, activity schedules and the like directly from the school, league or coach, as the case may be. [405] To the extent that it is possible, all exchanges shall occur at D.K.’s school. In the event this is not possible, the party whose access is concluding will personally, or with the assistance of an appropriate third party, convey him to the residence of the party whose access period is about to commence. The conveying party, or his or her designate, will remain in his or her vehicle during the exchange. [406] The parties will, whenever possible, communicate via text or email message, and will refrain from engaging D.K., or any third party as messenger. [407] Save only for instances of genuine emergency, the parties will consult with one another, in advance respecting all matters pertaining to D.K.’s health, education and extracurricular activities. In the event the parties are unable to arrive at consensus, the respondent shall be at liberty to make such decisions in the first instance, and the petitioner shall have leave, should he wish, to contest the respondent’s decision by way of application to the court. [408] In the event of medical emergency, the parent into whose care D.K. is then entrusted shall immediately advise the other. In the event that parent elects to do so through third party, it shall be his or her responsibility, as the case may be, to ensure that the information has been communicated in timely fashion, and both parents shall have the right to attend at the hospital, notwithstanding that it may not be their access period. [409] The petitioner and respondent shall each enjoy reasonable telephone or electronic access with D.K. when he is not in their respective care, provided always that the same does not interfere with scheduled activities, homework, bedtimes and the like. [410] The parties shall continue to participate, along with D.K. in counselling with therapist registered with the Saskatchewan College of Psychologists who specializes in reunification therapy and addressing family conflict. The petitioner and respondent shall share equally the net costs of such counselling to the extent the same is not covered by an employee assistance program and or insurance. [411] The parties shall at all times refrain from making derogatory comments about the other in the presence of D.K., and neither shall discuss these court proceedings with him other than to advise him of the parenting schedule set forth herein. [412] Neither party shall remove D.K. from the country without the prior written permission of the other, or an order of the court. Neither party shall remove D.K. from the province without having first provided the other party with no less than 14 days’ notice. [413] The petitioner’s Guidelines income is found to be $293,500.00 per annum. Commencing on the 1st day of December 2015, and on the first day of each and every month thereafter until further order of the court, the petitioner shall pay to the respondent, for the support of D.K., the sum of $2,308.00 per month. The petitioner’s obligations in respect of retroactive child support are fixed at $3,898.00. [414] Commencing December 1, 2015 and on the first day of each and every month thereafter, the petitioner shall pay support for the respondent in the amount of $6,000.00, provided however that the said order shall be reviewable at the instance of either party upon the earlier of the respondent becoming qualified to practice medicine in Canada, or the 1st day of December 2018. [415] The parties shall each pay their proportionate share of any and all expenses contemplated by s. of the Guidelines. [416] Within 30 days of the date hereof, the respondent shall provide the petitioner or his counsel with registerable authorization transferring all her estate and interest in the family home to the petitioner, upon appropriate trust conditions. Within 14 days thereafter, the petitioner shall pay to the respondent the sum of $36,850.00, representing her interest in the equity therein. [417] The parties shall each assume sole responsibility for the debts presently registered in their respective names and shall continue to enjoy all items of personal property in their present possession. [418] The Queen’s Bench Rules provide as follows: 11-1(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to proceeding or step in proceeding, and may make any direction or order respecting costs that it considers appropriate. (2) In exercising its discretion as to costs, the Court may determine: (a) by whom costs are to be paid, which may include successful party; (b) to whom costs are to be paid; (c) the amount of costs; (d) the date by which costs are to be paid; and (e) the fund or estate or portion of the fund or estate out of which costs are to be paid. (3) In awarding costs the Court may: (a) fix all or part of the costs with or without reference to the Tariff; (b) award lump sum instead of or in addition to any assessed costs; (c) award or refuse costs with respect to particular issue or step in proceeding; (d) award assessed costs up to or from particular step in proceeding; (e) award all or part of the costs to be assessed as multiple or proportion of any column of the Tariff; (f) award costs to one or more parties on one scale, and to another party or other parties on the same or another scale; (g) direct whether or not any costs are to be set off; and (h) make any other order it considers appropriate. (4) In exercising its discretion as to costs, the Court may consider: (a) the result of the proceeding; (b) the amounts claimed and the amounts recovered; (c) the importance of the issues; (d) the complexity of the proceedings; (e) the apportionment of liability; (f) any written offer to settle or any written offer to contribute; (g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (h) party’s denial of or refusal to admit anything that should have been admitted; (i) whether any step in the proceeding was improper, vexatious or unnecessary; (j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (k) whether party commenced separate proceedings for claims that should have been made in one proceeding or whether party unnecessarily separated his or her defence from that of another party; and (l) any other matter it considers relevant. 11-20 If the Court awards costs as between solicitor and client, the judge awarding those costs shall assess them. 15-25(1) Costs are in the discretion of the Court and, except as modified by this rule, the provisions of Division of Part and the provisions of Part 11 apply to the costs of family law proceeding. (2) Subject to subrule (3), there is presumption that successful party is entitled to the costs of family law proceeding or step in family law proceeding. [419] While successful party is presumptively entitled to the same in family law proceeding, costs remain in the discretion of the court. Success in this case has been mixed. In the circumstances, there will be no order as to costs.
HELD: 1) The court ordered joint custody and continued primary residence with the wife and specified access to the husband. The child’s interests were best served by a parenting regime that preserved the stability the wife provided as his primary caregiver, while expanding the periods of uninterrupted time with his father. It was best that the parties interact minimally with each other. The mother was generally contemptuous of the husband’s role as parent and sometimes restricted or denied the child’s access with him. There was no credible evidence that the child was suicidal as the mother alleged, nor did any evidence support her allegations of physical or sexual abuse. Rather, evidence confirmed that the child was smart, sometimes sensitive, but generally happy. 2) The husband had professional corporation. His income was determined from his line 150 income, as adjusted to reflect the actual dividend income he received. His income should not be augmented by dividend income equal to his corporation’s net earnings. Only current pre-tax earnings are truly surplus to corporation’s needs, without exposing it to encroachment on its capital or undermining its viability. The relevance of the wife’s income was limited to the apportionment of s. expenses. It was not appropriate to impute income to her. She was intentionally underemployed, but her decision was justified initially by the needs of her son and more recently by her own reasonable educational needs and the obligation to become qualified to practice medicine in Canada. Retroactive child support was not appropriate, except in respect of the two-month period when the wife was overseas, the husband was caring for their child and he admittedly neglected to pay child support in accordance with court order. There was considerable evidence upon which to conclude that a retroactive award would place an undue hardship upon the husband as, pursuant to the terms of this judgment, he was obliged to assume significant family debt, provide a considerable equalization payment and pay increased child and spousal support. 3) The husband retained the family home and sole responsibility for the mortgage thereon. The court ordered him to pay one half of the equity in the home to the wife. Otherwise, the parties were to retain all other items of family property in their respective possession and be solely responsible for any indebtedness in their respective names. The Family Property Act does not mandate the apportionment of debt, equal or otherwise, save to the extent that fairness requires an unequal division of family property to reflect the parties’ respective obligations. The court’s discretion to equalize the parties’ debt by an uneven division did not extend to the family home. 4) The wife was entitled to compensatory and non-compensatory spousal support. The disparity in their incomes was directly attributable to her role in the marriage and their mutual efforts to advance his career. The wife’s income consisted almost entirely of spousal support. However, the high amount of debt assumed by the husband coupled with his limited means for satisfying this judgment, warranted a departure from the range of outcomes suggested by the Spousal Support Advisory Guidelines. Given the genuine and material uncertainty as to the wife’s future need and extent to which she will achieve self-sufficiency, an indefinite award reviewable on the earlier of a date approximately one year from the trial date or the wife becoming qualified to practice medicine was appropriate. The court declined to impute income to the wife or to order retroactive spousal support. 5) Judgment for divorce was granted, with judgment to take effect on the conclusion of the appeal period.