Mainville, Healy, Cournoyer

Incidental appeal from a judgment of the Superior Court granting the parties’ divorce and ruling on corollary relief. Allowed in part.

The trial judge authorized the mother to relocate to the United Kingdom with the parties’ daughter. The parties estimated the costs relating to the father’s exercise of parenting time to be approximately $17,000 a year, which the judge deducted from the child support payments. Moreover, she rejected the mother’s request for monthly spousal support of $5,000 and a lump sum of $100,000. Instead, the judge accepted the father’s offer of $2,000 a month. Finally, she awarded the mother a provision for costs of $64,540.

The mother submits that the apportionment of costs relating to the exercise of parenting time under section 16.95 of the Divorce Act (R.S.C. 1985, c.3 (2nd Supp.)) requires undue hardship, which is not the case here. She also criticizes the judge for failing to consider the Spousal Support Advisory Guidelines to determine monthly spousal support.

Under section 10 (1) of the Federal Child Support Guidelines, SOR/97-175, 1997-04-08, (1997) 131 Can. Gaz. II 1031, on either spouse’s application, a court may award an amount of child support that is different from the amount determined under other provisions of the guidelines, if the court finds that the spouse making the request would otherwise suffer undue hardship. However, section 16.95 of the Divorce Act, which takes precedence, does not refer to “undue hardship”. That section sets out another approach when a parent relocates. It grants the court that authorizes the relocation of a child wide discretion to establish the costs relating to the exercise of parenting time by the parent who is not relocating. The court must then consider the salient facts pertaining to the relocation, each parent’s respective circumstances, and the child’s best interests, so as to craft a just solution with respect to the additional costs resulting from the relocation that the parent who is not relocating will incur to exercise parenting time.

In this case, the mother’s relocation was not founded on necessity but rather on her desire to reconnect with her family and community. It would therefore be unfair for the father to have to assume the bulk of the costs relating to the exercise of his parenting time resulting from the mother’s personal choice to relocate. Nevertheless, considering the respective disparities in the parties’ annual incomes, it would also be unfair for the mother to assume the entirety of these costs. In the circumstances, the mother should assume half of these costs, up to a yearly maximum of $8,500.

As for spousal support, the Spousal Support Advisory Guidelines, are simply advisory, as the title clearly indicates. They may assist in determining the amount of periodic spousal support, but they are neither binding nor authoritative. Therefore, the trial judge committed no error of law by not following them, as her individualized assessment led her to another result. That assessment does not require appellate intervention. The mother suffered no serious economic disadvantage from the marriage or its breakdown, and no serious financial consequences arose from her care of her daughter.

Text of the decision: http://citoyens.soquij.qc.ca