J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 189 Date: 2006 04 20 Docket: D.I.V. No. 6/2006 Judicial Centre: Regina, Family Law Division BETWEEN: GREGORY FRASS and CLARA FRASS Counsel: Kendra L. Chorney for the petitioner Peggy M. Benko for the respondent FIAT SANDOMIRSKY J. April 20, 2006 [1] The respondent, Clara Frass, moves for an order granting to her, (1) joint custody and primary care (residence) of Keandra Frass, d.o.b. October 15, 1996, with access to her former spouse; (2) interim child support pursuant to s. 15 of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) retroactive to January 1, 2006, together with special or extraordinary expenses pursuant to s. of the Federal Child Support Guidelines (SOR/97-175, as am.) (the “Guidelines”); and (3) interim spousal support in the sum of $750.00 per month retroactive to January 1, 2006. [2] The petitioner is not opposed to an order granting (or more appropriately “confirming”) joint custody of Keandra Frass, with the respondent being designated as the primary caregiver and the respondent’s residence being the primary residence of Keandra. Accordingly, this is so ordered. [3] The petitioner and respondent agree that the established status quo of shared parenting shall also be included in this order. Therefore, it is ordered that the petitioner shall parent Keandra each school day commencing after school recesses for the day until the respondent is finished her work and therefore able to pick Keandra up. This may often require that Keandra is fed supper at her father’s home. Further, every alternate weekend, coinciding with the respondent’s schedule where possible, Keandra will be parented by the petitioner commencing Friday when school recesses until the following Sunday at approximately noon hour. The petitioner and respondent shall split all school holidays and special occasions in fair if not equal manner as they presently do by agreement. [4] The petitioner is employed as school teacher, and on occasion takes part‑time work with an aircraft service company at the Regina Airport. The petitioner and respondent agree that the petitioner’s income shall be $73,262.00 less union dues which would require child support payment of $625.00 per month effective May 1, 2006, under the new tables. The petitioner and respondent also agree that inasmuch as the respondent earns $29,289.00 as SaskTel employee, that the petitioner’s share of their combined incomes is 71% of the total. The petitioner shall therefore bear 71% of special or extraordinary costs if any are payable as consequence of this fiat. Accordingly, it is ordered that the petitioner pay to the respondent as support for Keandra Frass, born October 15, 1996, the sum of $625.00 per month and 71% of special or extraordinary expenses as hereafter described. [5] The basis of the respondent’s claim for retroactive support is that the parties attempted to mediate as well as negotiate resolution of issues, including support, since their separation in April 2005, and certainly since these proceedings were commenced on January 9, 2006. Those efforts produced what the petitioner described as an agreement or understanding as to how the costs of raising Keandra would be apportioned between the parties. The petitioner feels that he lived up to his end of the bargain and therefore he is opposed to any order for retroactive support. The respondent argues that her requests and attempts to negotiate were rebuffed by the petitioner and therefore she should be entitled to retroactive order commencing January 1, 2006. [6] The evidence upon the issue of retroactivity is minimal and the positions are conflicting. Accordingly, child support, for interim purposes, shall commence effective April 1, 2006 inasmuch as the petitioner had been served with this notice of motion on March 3, 2006. [7] The parties cannot agree if any of the following expenses fall into s. of the Guidelines as being extraordinary expenses: (a) childcare after school program 975.00 per year (b) dance 500.00 per year (c) school activities 350.00 per year (d) asthma medication $1,140.00 per year. [8] The Guidelines have been amended effective May 1, 2006. One area in which the amendments seek to bring clarity is what may constitute an extraordinary expense from one which is ordinary. The table amount encompasses those expenditures which are ordinary. Section focusses upon expenditures which are extraordinary and therefore over and above the table amount. The amendment therefore attempts to entrench in law what has been an approach developed by case law to date. When the custodial parent’s income is added to the table amount of child support ordered, is the sum sufficient to reasonably cover the item claimed to be extraordinary? If the sum is sufficient to reasonably cover the claimed item, we are not dealing with s. extraordinary expense. On the other hand, if the sum is not sufficient to reasonably cover the claimed item, the item is considered to be extraordinary and falls into s. which requires the said cost to be paid pro rata to the parents’ respective incomes bear to the sum. [9] Section of the Guidelines further assists by listing the expenses which may be special or extraordinary in six categories, s. 7(1)(a) to (f) inclusive. do not believe that the “reasonable coverage” definition contained in the May 1, 2006 amendment is new law. At best, it is single test now enunciated in legislative form which should provide for more consistency and predictability as opposed to the many attempts to articulate definition of extraordinary which is found in the case law. What items claimed are necessary to attain Keandra’s best interests and yet are reasonable given the economic circumstances of Keandra and her parents? Which items might be reasonably covered by the sum of Ms. Frass’ income plus child support? I find that the childcare costs and asthma medication costs are of sufficient amount and peculiar to Keandra as to be extraordinary or not expected to be reasonably covered from the table amount of child support and the respondent’s income. The petitioner shall therefore pay to the respondent, 71% of those costs which is monthly sum of $125.00 commencing April 1, 2006 as well. In the likely event that the petitioner’s health plan covers the residual cost of Keandra’s asthma medication not paid for by the respondent’s plan, the petitioner’s s. payment is hereby decreased by $67.45 per month. [10] The petitioner’s assumption of family debt payments and any disparity in the division of family property to date are issues which go to the property division and are not relevant to interim child support. Nor is the fact that the petitioner cares for Keandra after school, thereby reducing the need and cost of additional childcare, logical reason to place the entire residual cost of daycare as an expense to be borne by the respondent. The petitioner’s input reduces the cost of daycare to both the petitioner and respondent and is not an offset. [11] This brings us to the last relief sought by the respondent, interim spousal support. The petitioner does not dispute the respondent’s legal entitlement to spousal support at this interim level. The parties accept that need and the corresponding ability to pay are predominant considerations at the interim stage, yet not to the exclusion of the statutory factors and objectives recited by the Divorce Act and The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. However, the petitioner suggests that $200.00 is sufficient amount to overcome any shortfall in the respondent’s present budget or needs. On the other hand, the respondent urges that the economic disparity in household incomes and post-separation lifestyles leaves her with need of $750.00 per month. [12] At this interim stage, rely upon need and ability to pay, largely circumscribed by the difference in the party’s respective incomes, $73,000.00 versus $29,000.00, rounded. also rely upon the principles of spousal support enunciated so carefully in the Supreme Court of Canada’s decision of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813, wherein Madam Justice L’Heureux‑Dubé focussed upon the economic consequences of the marriage and marriage breakdown as they impact upon each spouse. Where there is significant disparity in the incomes of each of the former spouses in the immediate post-separation period, and such economic disparity defines corresponding disparity in the affordability of lifestyles of the former spouses, spousal support is the appropriate mechanism to diminish those disparities. The amount of spousal support should provide both of the former spouses with an interim standard of living which more closely relates to that of each other and to the standard of living experienced by both before their separation. This principle does not, however, demand equal household incomes as is so often misunderstood. [13] Neither counsel referred to the spousal support guidelines and the formula for spouses with children (Family, Children and Youth Section, Department of Justice Canada, Spousal Support Advisory Guidelines: Draft Proposal by Professor Carol Rogerson and Professor Rollie Thompson (Toronto: University of Toronto, Faculty of Law; and Halifax: Dalhousie Law School, 2005), which measures the difference between the individual net disposable incomes of each former spouse. These guidelines suggest that an award of between 40% to 46% of that difference in individual net disposable income be paid by the spouse with the higher INDI to the former spouse with the lower INDI. These guidelines create rough ballpark of $900.00 to $1,100.00 per month in this particular case. However, the petitioner is bearing the full responsibility for family debt repayment in the interim. While I have already stated that debt repayment can be adjusted as a property issue, the reality remains that in order to pay creditors in a timely fashion, the petitioner has taken this responsibility largely onto his shoulders. In the circumstances, it is ordered that the petitioner pay to the respondent interim spousal support in the sum of $700.00 per month commencing effective April 1, 2006 and on the first day of each and every month hereafter until further order. The respondent is no longer expected to contribute $80.00 per month to service family debt. The consequent reduction of family debt is therefore a factor of this particular interim spousal support order and should not cause confusion when addressing any property issues in the future. [14] As to costs, it is noteworthy that the parties agreed on custody, access, basic child support and entitlement to spousal support. Each party presented meritorious arguments as to the outstanding issues dealing with extraordinary expenses and the quantum of spousal support. This display of cooperation and fairness enforces my instinct that given the opportunity and guidance required, Mr. and Mr. Frass are able to settle their issues and thereby avoid the expense and emotional damage of further litigation. In the circumstances, am making no award as to costs. J. N. S. Sandomirsky
FIAT: The issues on this application are with respect to extraordinary expenses and the quantum of spousal support. HELD: 1) The petitioner's income is $73,000 versus $29,000 for the respondent. The parties cannot agree if any of the expenses fall into s. 7 of the Guidelines as being extraordinary: $975 for child care, $500 for dance, $350 for school activities, and $1,140 for asthma medication. 2) The court does not believe that the 'reasonable coverage' definition contained in the May 1, 2006 amendment is new law. At best, it is a single test now enunciated in legislative form which should provide for more consistency and predictability as opposed to the many attempts to articulate a definition of extraordinary which is found in the case law. What items claimed are necessary to attain the child's best interests and yet are reasonable given the economic circumstances of the child and her parents? Which items might be reasonably covered by the sum of the parent's income plus child support? 2) The child care costs and asthma medication costs are of sufficient amount and peculiar to this child as to be extraordinary or not expected to be reasonably covered from the table amount of child support and the respondent's income.  3) With respect to spousal support, neither counsel referred to the spousal support guidelines and the formula for spouses with children which measures the difference between the individual net disposable incomes of each former spouse. These guidelines suggest that an award of between 40% to 46% of that difference in individual net disposable income be paid by the spouse with the higher INDI to the former spouse with the lower INDI. These guidelines create a rough ballpark of $900 to $1,100 per month in this particular case. However, the petitioner is bearing the full responsibility for family debt repayment in the interim. In order to pay creditors in a timely fashion, the petitioner has taken this responsibility onto his shoulders. In the circumstances, it is ordered that the petitioner pay to the respondent interim spousal support of $700. The consequent reduction of family debt is therefore a factor of this particular interim spousal support order and should not cause confusion when addressing any property issue in the future.