C.E.A.L. v. D.C.T.A. Date:, 2014 BCPC 348

Citation: C.E.A.L. v. D.C.T.A. Date: 20141218 2014 BCPC 0348 File No: 1444135 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C. E. A. L. APPLICANT AND: D. C. T. A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Appearing on their own behalf: C.E.A. L. Appearing on their own behalf: D. C. T. A. Place of Hearing: Prince George , B.C.

Date of Hearing: May 6, 2014 Date of Judgment: December 18, 2014 [ 1 ] This is my decision regarding the counterclaim filed by Ms. L., (referred to herein as Ms. C.) on August 16, 2013, seeking child support including contribution towards special and extraordinary expenses. BACKGROUND [ 2 ] The Applicant, Ms. L. (now known as Ms. C.), is the mother of N. A., (D.O.B.), now aged nine. Mr. A. is N.’s father. The parties separated when N. was ten months old. N. has always lived with his mother and Mr. A. exercised access to him. Ms. C. and N. formerly lived in Kelowna, where Ms. C. married Mr.

C. and gave birth to her other two children, S. age five and A. age three. Approximately two years ago, Mr. C. lost his employment in Kelowna and the family was obliged to move to Prince George so that Mr. C. could obtain employment here. Mr. A. moved to Calgary, Alberta, and has resided there since the parties separated. [ 3 ] Since moving to Prince George, N. has attended (omitted for publication), a Christian private school. N. is involved in extracurricular sports, including swimming, skating, soccer and football, which he loves. He has also attended summer camp in the past and Ms.

C. planned to have him to attend two - one week summer camps in the summer of 2014. [ 4 ] Ms. C. was primarily a homemaker after her marriage to Mr. C., caring for N. and her two younger children. After the birth of her youngest child, Ms. C. was diagnosed with Multiple Sclerosis. There are times that she has severe symptoms and times that she does not. From time to time she has been hospitalized. She spent approximately six months in a wheelchair, unable to move from the waist down. When she was able to walk again, she required rehabilitation and the use of a cane for several months.

At that time, and at various times thereafter, the children went to day care even though Ms. C. was not working outside the home because she was unable to care for them full time due to her illness. She returned to work full time earlier this year as a data entry clerk, but could not continue full time due to her illness. She stated that working part time did not work financially as the cost of childcare was greater than her earnings. In any event, her doctor instructed her to give up that employment.

Her income for 2014 is estimated to be $8,330.00, which is her income earned this year until the end of March 2014. Her employment ended in April 2014. This is one of several changes in circumstance between the parties. [ 5 ] Mr. C., her husband, was previously and is again, therefore, the sole income earner in their household. He recently received a raise, so that his annual income is now $85,000.00. This is a significant change in the C. family circumstances because previously his income was less than $56,000.00 annually. Family expenses of $114,889.00 were claimed on Ms. C.’s Financial Statement. [ 6 ] Mr.

A. is a dispatcher and presently earns $78,000.00 annually. Mr. A. testified that the new job represents a significant drop in income, as he testified he was previously paid overtime and his income was $85,000.00 - $90,000.00 annually. However, according to his Financial Statement, Mr. A.’s 2013 income was $80,127.00. His employment with that employer ceased on March 31, 2014. It appears from the notice of termination dated March 31, 2014, appended to Mr.

A.’s Financial Statement filed April 9, 2014, that in addition to the statutory two weeks’ severance pay, his former employer made an offer of additional compensation but that page of the termination letter has been omitted from Mr. A.’s Affidavit and no mention of what that compensation was is made in his Financial Statement. He was able to obtain his new employment by April 14, 2014, so it appears he suffered no loss of employment income. He claims annual expenses of $115,526.00. [ 7 ] Mr. A. is married, or in a marriage like relationship, with A. T. Ms. T. is a registered nurse.

In her Financial Statement she states that her income is $81,014.00, although her 2010 Tax Return

Summary shows employment income of $83,367.00 and her 2011 Tax Return

Summary shows employment income of $85,910.00. Each of these summaries shows a reduction in her line 150 “total income” due to losses from self-employment of $10,646.00 and $6,549.00 in those years respectively. She has also not appended her 2012 or 2013 Tax Returns. She claims annual expenses of $59,280.00. [ 8 ] No evidence was presented in Court or in the filed material as to the nature of Ms. T.’s self-employment. Ms.

T. has not appended any full Tax Returns to her Financial Statement so it is not possible for me to assess the appropriateness of the expenses claimed against self-employment income for the purposes of the Federal Child Support Guidelines (which are not necessarily the same as those permitted by Revenue Canada). I note, however, that by reference to the 2010 and 2011 Tax Summaries, the net losses from her self-employment appear to be reducing as time passes. [ 9 ] Mr. A. and Ms. T. have no children. Mr. A. takes no issue with the information contained in the Financial Statements provide by Ms. C. and Mr. C. Ms.

C. does take issue with some of the items contained in the financial disclosure provided by Mr. A. COURT HISTORY [ 10 ] There have been many Applications made to the Court by the parties over the years since N. was born. The litigation has apparently been acrimonious. [ 11 ] The Applications that brought the parties to this hearing began on June 28, 2013 when Mr. A. filed an Application seeking a remedy with respect to parenting time and summer visits, and Ms. C. filed a Reply and Counterclaim on August 16, 2013 seeking child support and special and extraordinary expenses retroactive to May 1, 2013.

An Interim Order was made by Judge Burdett on August 8 2013 dealing with the summer visits and another Interim Order was made Sept 30, 2013 by Judge Smith dealing with guardianship, parenting visits and other matters, and requiring financial disclosure to be exchanged with respect to the relief sought in Ms. C.’s

Counterclaim. Since then various Notices of Motion have been filed seeking enforcement of the Order to provide financial disclosure. An Application to adjourn the trial date for the hearing of the Counterclaim, filed by Ms. C., was withdrawn by her on the hearing date as she had, by then, received Mr. A.’s financial disclosure. [ 12 ] Thus, the Counterclaim seeking child support and special and extraordinary expenses retroactive to May 1, 2013 was the Application to be decided at the hearing before me on May 5, 2014.

The parties confirmed at the hearing that these were the only outstanding issues. [ 13 ] The first Court Order dealing with child support was a Consent Order made by Judge Cartwright on December 14, 2006. The relevant provisions are as follows: 4. D. will pay to C. $201.00 per month in child support commencing December 25, 2006, based on a Guideline income of $23,000.00 per year, and continuing on the 25 th day of each and every month thereafter, for so long as the child remains a child of the relationship; 5.

C. and D. shall each pay for fifty (50%) percent of any reasonable sports activities related costs for the child, including, but not limited to, registration costs and equipment. C. and D. agree that they will consult with each other before registering the child in any sport activity and the party requesting payment will obtain the consent of the other party, such consent not to be unreasonably withheld; 6. D. shall be responsible for all costs associated with travelling and access visits with the child. [ 14 ] On December 29, 2010, Judge R. R.

Smith made an Order, by consent, varying the child support provisions as follows: 1. The Order pronounced on December 14, 2006, be varied to provide that the Respondent, D. T. A., will pay to the Applicant, C. E. A. C., for the months December 2010 and January to April, inclusive2011, child support for the child, N. N. M. A., born (D.O.B.), the amount of $379.00 per month based on a Guideline Income of $45,216.00 per year. 2. That the parties shall re-evaluate child support annually commencing May 1, 2011,applying the Federal Child Support Guidelines for the Province of Alberta…. 4.

That the Respondent must provide the Applicant with a copy of his income Tax Return or Notice of Assessment on or before May 1, 2011, and each year thereafter so long as the child remains a child of the relationship. [ 15 ] The Order of Judge Smith reiterated the provisions of the previous Order with respect to sports activities, and provided that the parties would share equally any medical/dental costs not covered by the parties’ insurance plans. [ 16 ] On September 30, 2013 Judge Smith pronounced an Interim Order making various provisions with respect to parenting time and ordering the disclosure of financial information by each party and each party’s current partner “given that extraordinary expenses are at issue.” POSITION OF THE PARTIES [ 17 ] Ms.

C. seeks, primarily, an order declaring that private school fees, childcare expenses, sports and summer camp expenses for the child, N., are special or extraordinary expenses and that they be shared between the parties proportionate to their family incomes. She also complains that there are arrears outstanding with respect to expenses to which Mr. A. has refused to contribute and that Mr. A. does not make his child support payments on time, which causes difficulties for her family.

She seeks an order declaring a particular monthly amount to be paid with respect to special or extraordinary expenses for the sake of financial security. She also anticipates orthodontic expenses in the future and seeks to have N. covered on whatever dental plans are available to Mr. A., and for contribution from him proportionate to the family incomes for any excess not covered by the plans available to the parties. [ 18 ] Mr.

A. takes the view that he should only contribute to childcare, sports and summer camp activities that he has approved in advance, should not have to contribute to private school fees at all, and that his contribution to such expenses as approved by him should be no more than 50%, as provided in previous Court Orders. He agrees that if given sufficient notice, he can arrange to have coverage for orthodontics for N. added to his wife’s dental plan. [ 19 ] Although Mr.

A. did not plead undue hardship under s.10 of the Guidelines , in his Financial Statement he claimed he has annual expenses of $115,526.00 and an income of only $80,000.00, and in his testimony he said that he and his spouse are living “paycheque to paycheque.” I conclude from that evidence that Mr. A. seeks to support his position that he should contribute a maximum of 50% to any special or extraordinary expenses due to a claim of undue hardship, rather than an amount proportionate to the income of the parties as provided in s. 7 of the Federal Child Support Guidelines .

THE LAW Legislation [ 20 ] The applicable provisions of the Family Law Act of British Columbia are as follows:

Determining child support 150

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if (

a) the parties consent under

section 219 [persons may consent to order being made] or have an agreement respecting child support, and (

b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied that (

a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and (

b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so. Changing, suspending or terminating orders respecting child support 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. Changing, suspending or terminating orders generally 215

(1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made.

(2) A court may not change, suspend or terminate an order made under

Part 5 [Property Division] or 6 [Pension Division] except as provided under those Parts. Persons may consent to order being made 219

(1) A person may consent to the making of an order under this Act.

(2) Consent under subsection (1) must not be considered an admission of a fact alleged in a proceeding unless the fact is specifically admitted. [ 21 ] The Federal Child Support Guidelines provide the following: Presumptive rule 3.

(1) Unless otherwise provided under these Guidelines, the amount of a 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 . Medical and dental insurance 6. In making a child support order, where medical or dental insurance coverage for the child is available to either spouse through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued.

Special or extraordinary expenses 7.

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of thefollowing expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s bestinterests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spendingpattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training foremployment; (

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, professionalcounselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speechtherapy 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’sparticular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses”

(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 intoaccount that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determinedthat 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 wouldreceive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court hasotherwise 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. Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by thespouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Case Law [22] In Goddard v. Stewart, 2013 BCSC 2289, Master Bouck addressed the question of how to approach Extraordinary and Specialexpenses: [97] Section 7(2) of the Guidelines stipulates that expenses allowed under s. 7(1) are generally to be shared by the parents inproportion to their incomes, after first deducting the child’s contribution, if any.

However, the court retains the discretion to divide theparents’ obligation other than in proportion to their incomes: Zarins v. Cochrane, [1998] B.C.J. No. 2116 (S.C.), varied [1999] B.C.J.No. 2876 (S.C.), supplementary judgment [1999] B.C.J. No. 2450 (S.C.). For example, in Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039(S.C.) [Ebrahim], the Court considered the following factors pertaining to the spouse claiming the expense when deciding whether or notto follow the guiding principle in s. 7(2) of the Guidelines: (

a) adequacy of their financial disclosure; (

b) the nature of their employment;and (

c) the availability of financial contribution from their family. [98] Where an expense is found to be special or extraordinary, but the reasonableness of the expense is in issue, “the court can lookbeyond the respective incomes of the parties and consider their overall means, including income from other sources, such as familyincome”: Pearse v. Pearse, 2010 BCSC 117 , 2010 BCSC 117, at para. 44 (also see Baum v. Baum, 2000 BCSC 1835 ,2000 BCSC 1835, at para. 9).

The corollary is that where the reasonableness of the expense is not in issue, the broader means of theparties outside of their income levels should not be considered: J.P.S. v. C.G.W., 2003 BCSC 968 , 2003 BCSC 968, at para. 15.Ultimately, where the expense is not within the “means” of the parties, depending on how broadly that term is treated for the givenexpense, the court may limit or deny the amount: see Ebrahim; and Miller v. Miller, [1997] B.C.J. No. 1322 (S.C.).

[99] The expense must also be necessary or advisable, and this element is not demonstrated “by the simple fact of the expense beingincurred”: Thomas v. Thomas, 2000 BCSC 585 , 2000 BCSC 585, at para. 24 [Thomas].) [23] On the question of what amount, in relation to income, exceeds what a claiming parent can “reasonably cover”, under s. 7(1.1)(a), a review of the case law reveals that the answer is dependent upon the specific facts of each case. For example, in Abelson v.

Mitra2008 BCSC 1197, the court found that where the claimant spouse had an income including child and spousal support of approximately$174,000.00 and annual expenses of $150,000.00, the claimant was able to “reasonably cover” expenses claimed in the amount of$24,012.00, such that such expenses were found not to be “extraordinary”. In that case, my calculation of that expense relative to incomeis 14%. [24] However, in Webster v. Webster 2014 BCSC 730, the claimant had an income of between $24,000.00 to $44,000.00 in the threeyears under consideration.

She received child support during those years in the amount of $1,300.00 to $1,900.00 per month for twochildren. The lacrosse expenses under consideration were between $3,500.00 to $4,100.00 per year.

Those expenses were found to bemore than she could reasonably cover and therefore “extraordinary.” Those expenses, taking the highest years into account, wouldrepresent 6% of the claimant’s income. [25] The case law does not appear to provide much guidance as to whether there is any particular proportion or percentage ofexpense to income that will dictate whether an expense is “more than can be reasonably covered.” The basic principle appears to be thatthe greater the claimant’s income (and the greater the amount of child support paid), the more the claimant can “reasonably cover.” Undue hardship 10.

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined underany of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made,would otherwise suffer undue hardship. Circumstances that may cause undue hardship

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

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

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

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

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

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

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

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support underany of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

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

Schedule II. Reasonable time

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

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [26] In Byrne v. Byrne (BC SC), [1999] B.C.J.1087 (B.C.S.C.), the Court was faced with a set of circumstancesremarkably similar to those before me. In that case, the parties had one child together. When they separated, the father moved fromPrince George to Merritt, B.C. and the mother remained in Prince George, remarried and had a second child and planned to have more. The mother placed the child in Catholic school for religious reasons. The court found that registering the child in private school was to

satisfy the interests of the mother and her husband in raising the child in the Catholic religion, not because private school was in his bestinterests. Therefore the court did not find the tuition fees to be reasonable and necessary. The father’s cost to exercise access to the childwas approximately $3,500.00 annually. The father’s income was $50,000.00. He claimed hardship in relation to the costs of access andsought a reduction in support payable for the child. The Court found that although the costs of access were high, they were notunreasonably so, given the father’s income. Retroactivity [27] In P.V. v. D.B.

(2007) BCSC 237 , Madam Justice Russell canvassed the law with respect to whether the obligation topay extraordinary and special expenses can be made retroactive, and if so, what the commencement date should be. The following istaken from paragraph 139 of her decision: [139] The question of when retroactive child support should be awarded was recently considered by the Supreme Court of Canadain D.B.S.,supra. Bastarache J. did not distinguish in that decision between

section 7 expenses and basic child support. The sameprinciples were applied to the determination of whether retroactive child support should be awarded for

section 7 expenses where nosection 7 expenses had been awarded in an interim child support order in Kim v. Kim, 2006 BCSC 1330 . [140] As explained by Bastarache J. in D.B.S., supra, at ¶ 95: It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposesbehind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards mayalso cause hardship to a payor parent in ways that a prospective award would not.

In short, while a free-standing obligation to supportone's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period haspassed. [141] However, he also emphasized that retroactive child support awards would not be exceptional. The relevant principles setout by Bastarache J. in determining whether an award of retroactive child support should be made are as follows: (

a) Whether there is a reasonable excuse for why support was not sought earlier. A recipient parent will generally lack a reasonableexcuse where he or she knew higher child support payments were warranted, but decided arbitrarily not to apply. Also, where the delayis attributable to unreasonableness on the part of the recipient parent and not blameworthy conduct on the part of the payor parent, thepayor parent’s interest in certainty will be compelling. Absent a reasonable excuse, uncorrected deficiencies on the part of the payorparent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children. See D.B.S., supra, at 100-104. (

b) Whether there has been blameworthy conduct on the part of the payor parent. Blameworthy conduct includes anything thatprivileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A court should consider aprevious court order or agreement that the payor parent was following. The previous order is presumed valid, and a payor parent shouldbe presumed to be acting reasonably by conforming to the order. See D.B.S., supra, at 105-109. (

c) Whether the present circumstances of the child will be improved by a retroactive award. A child who enjoys a relatively highstandard of living may benefit less from a retroactive award than a child who is in need. While child support is not calculated from aneeds-based perspective under the Guidelines, need remains a relevant consideration where the court’s discretion is being exercised, andremains a useful factor to consider with respect to retroactive awards. An argument for retroactive support will be less convincing wherethe child already enjoyed all the advantages she would have received had both parents been supporting her. See D.B.S., supra, at 110-113. (

d) Whether hardship would be occasioned by a retroactive award. Hardship considered in broad terms is a relevant considerationbecause the quantum of awards is usually based on past income, and payor parents may have new families and new familyobligations. Retroactive awards should be crafted in a way that minimizes hardship. Hardship for the payor parent is less of a concernwhere it is the product of his or her own blameworthy conduct. See D.B.S., supra, at 114-116. [142] See also Kim v. Kim, supra, at 62; M.H.G. v. D.J.G., 2007 BCSC 25 at 17; G.R.C. v. L.M.E.C., 2006 BCSC 1479 at 29-35.

As Bastarache J. made clear in D.B.S., supra, at 105, the first two factors listed above “establish that each parent’sbehaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case” [emphasisadded].

Given his comments, and in the circumstances in this case, I would recast the first factor more broadly to encompassblameworthy conduct on the part of the recipient parent, since it is relevant in the case at bar. [143] Once a court has determined that a retroactive award of child support is appropriate, the court does not have discretion todetermine the quantum of that award: D.B.S., supra, at 127. The existence of discretion to determine the amount of retroactive supportwill depend on the particular statutory regime. Here, sub-paragraph 93(1)(

a) of the FRA directs the court to award child support in theamount ascertained by using the child support guidelines, subject only to narrow exceptions in sub-section 93(2). Thus, the statutoryregime is effectively the same as that under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the Guidelines must be followed indetermining the quantum of retroactive child support owed.

However, Bastarache J. went on to outline two mechanisms permitted underthe federal regime that allow courts to adjust the quantum of retroactive awards: first, exercising discretion that the Guidelines do allow,for example as permitted by sections 3(2), 4, 9 and 10 of the Guidelines; and second, by altering the time period covered by theretroactive award: D.B.S., supra, at 128-130. Application of the Law to the Facts of this Case

[ 28 ]

Section 7 requires the court to consider the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the parties. The expenses for which Ms. C. seeks contribution fall into one or another of the categories noted in s. 7. Childcare and Medical/Dental Expenses [ 29 ] Childcare expenses clearly fall into s. 7(1)(a). Section 7(1)(

a) specifically includes childcare expenses incurred as a result of the illness of the parent. I note that Mr. A. admittedly refused to contribute to the childcare expenses for N. when Ms. C. was in hospital, confined to a wheelchair and during her rehabilitation. Ms. C. seeks his retroactive contribution for that period. In particular, Ms. C. told the Court that, in July and August of 2012, she placed N. in Science Alliance and Exploration Place day camps, which cost $1,512.50.

Thus it would appear that N.’s participation in the Science Alliance and Exploration Place day camps was more in the nature of childcare than summer camp, at least during that period. In his testimony, although Mr. A. acknowledged his obligation to contribute to N.’s childcare when Ms. C. was actually in hospital, he continued to dispute the necessity of childcare for N. during those periods when Ms. C. was confined to a wheelchair and during her rehabilitation.

He expressed the opinion that if he were so incapacitated he would be able to care for N., who would have been seven or eight during the period in question. [ 30 ] I am satisfied that N.’s attendance at Science Alliance and Exploration Place day camps were childcare expenses incurred for N. during those periods when his mother was unable to care for him due to the symptoms of her Multiple Sclerosis were, and are, obviously necessary. N. has now just turned nine years old and during Ms. C.’s last period of illness he was younger than that.

Such a young child cannot be left to his own devices and cannot be relied on to be always within the reach of a parent with mobility issues, or to be compliant with the directions of a parent who is physically incapacitated due to illness. Accordingly, I find that the expenses incurred to place N. in Exploration Place and Science Alliance day camps in 2012, when his mother was incapacitated, were necessary, and would be necessary should such a situation recur in the future while N. is still too young to look after himself. [ 31 ] It is apparent from Ms.

C.’s documents under Exhibit 1 and her testimony, as well as her email to Mr. A. dated Feb 20, 2012, appended to Mr. A.’s Affidavit filed April 24, 2014, that she is seeking an Order that Mr. A. be obligated to contribute his proportionate share to all special and extraordinary expenses from May 2012 onwards, but her Application filed in August 2013 sought retroactive application only to May 1, 2013. Accordingly, although the parties gave evidence about expenses incurred prior to that time (in particular, childcare expenses incurred during Ms.

C.’s illness and recovery as well as tuition fees) I have jurisdiction to make orders only about those expenses incurred after May 1, 2013. Should Ms. C. seek recovery of childcare or other expenses incurred prior to that time, she is of course at liberty to make further Application to the court. Given my view that the childcare expenses for N. in 2012 were both necessary and reasonable, I hope the parties will be able to come to some agreement on that issue to avoid further litigation. [ 32 ] Later in his testimony Mr.

A. modified his position on the childcare issue to the effect that he will be satisfied that such childcare expenses are “necessary” if he is provided with a doctor’s note or the same proof of illness that Revenue Canada would require from Ms. C. in order to make any claim for the deduction of childcare expenses in that situation. [ 33 ] Mr. A. does not dispute the reasonableness of the childcare expenses claimed for N. I am of the view that the childcare expenses claimed by Ms. C. are reasonable, in relation to the means of the parties. [ 34 ] Medical/orthodontic expenses clearly fall into s. 7(

b) and (c). Mr. A. does not contest his obligation to contribute to medical/orthodontic expenses for N. I take it from his position that he does not contest the necessity and reasonableness of those expenses under s. 7; the only question to be decided is what his contribution should be. I am of the view that these expenses clearly meet the requirements of s. 7. Whether Private School and Sports and Activities are “Extraordinary” [ 35 ] The other expenses for which Ms. C. seeks contribution from Mr. A. are the private school tuition fees and N.’s sports and camp activities.

Section 7((1)(

d) and(

f) of the Guidelines would appear to apply to expenses of this type. Before assessing whether those expenses are necessary and reasonable, I must first decide whether they are “extraordinary” under s. 7(1.1). [ 36 ] I am instructed by s. 7.(1.1)(

a) that the way to make that decision is to look at Ms. C.’s income and the amount she receives in child support for N. and decide whether the expenses are more than she can reasonably cover. If they are more than she can reasonably cover, they are “extraordinary.” The alternative analysis is found under s. 7(1.1)(b), which instructs me, if s.7(1.1)(

a) is inapplicable, to consider Ms. C.’s income plus child support she receives, the nature and number of the educational programs and extracurricular activities, N.’s special needs and talents, the overall cost, and anything else I consider relevant. [ 37 ] Ms.

C.’s income in 2010 was $3,302.00, in 2011 was $3,100.00 and 2012 was $12,722.00, including the universal Child Care Benefit, employment and other income; her 2013 Tax Return was not included in her Financial Statement as it was not yet prepared, but her employment income in 2014 was $8,330.00 up to the end of March (due to loss of employment in April 2014). She receives $4,848.00 annually ($404.00 monthly) from Mr. A. in child support. Mr.

A. does not question any of the financial disclosure she has provided, and in his Financial Statement he also claims that he pays $4,848.00 in child support annually. [ 38 ] I note that pursuant to the Order of Judge Smith on December 29, 2010, the child support paid by Mr. A. was to be re-evaluated annually commencing May 1, 2011. Based on Mr. A.’s declared 2013 income, the child support payable from May 1, 2014 will be $690.17 monthly. Taking that increase into account, Ms.

C.’s income including child support for 2014 will be $15,466.00. [ 39 ] The cost of private school for N. ($2,475.00) and N.’s sports and activities ($953.00) is expected to be $3,428.00. This cost represents 22% of Ms. C.’s entire income. On the basis of the case law cited above, I find that these expenses are not a cost that Ms. C. can be expected to “reasonably cover” from her income alone. On that basis, I find it to be “extraordinary” under s. 7(1.1)(

a) of the

Guidelines . [ 40 ] The next question to be answered is whether the expenses are necessary and reasonable in relation to the means of the spouses, those of the child and the spending pattern prior to separation. [ 41 ] A consideration of the spending pattern prior to separation is not relevant in these circumstances, because N. was only a few months old at the time of separation and therefore no spending for education or sports or extracurricular activities were made prior to separation. Similarly, since N. is a small boy with no income, he has no means to consider.

Whether Extracurricular Sports and Summer Camp Activities are “necessary and reasonable” [ 42 ] Therefore, considering the means of the parties, are the sports and summer camp activities necessary and reasonable? Expenditure for attendance at extracurricular sports activities and summer camp are typical in all but the most abjectly poor families.

Unless children have participated in organized team sports outside of school, it is virtually impossible to have attained a sufficient skill level to even gain entry to any such team in high school which, in my view, is an entirely reasonable aim for a typical high school student. Certainly, it would be impossible to develop sufficient skills to excel at team sports without participation in extracurricular team sports. Similarly, most children attend summer camp of some description, which may be one of the few ways children can enjoy outdoor summer activities, with similarly aged children.

Children develop different skills and friendships in such environments than those learned in school. In that sense, such participation is “necessary” and, I find, in the best interest of the child. [ 43 ] It would appear that Mr. A. agrees that with that position. In submissions, Mr. A. agreed to contribute to the cost of N.’s sports and camp activities provided that they are “reasonable.” He agreed that two weeks of summer camp is reasonable and was of the view that sports programs that do not overlap are reasonable.

In my view the small amount of overlap at the beginning and end of the respective seasons for the sports N. enjoys does not by itself render these activities unreasonable. Accordingly, I find that the sports and summer camp activities are both necessary and reasonable and Mr. A. is therefore obliged contribute towards these activities. Whether Private School is “necessary and reasonable” [ 44 ] Ms. C. says that N. struggled emotionally and academically during his time in Kelowna. She says his Grade One teacher recommended that he be held back a year. N. was assessed on October 2012 by Dr.

Simon Earl, a pediatrician working as part of the Northern Health Autism Spectrum Diagnostic team, at the referral of Dr. Graham, N.’s pediatrician in Kelowna. In the opinion of Dr. Earl (included in Exhibit 1) N. does not have Autism or Asperger’s Syndrome but he does have several disabilities. In a letter dated September 27, 2013, Dr.

Earl stated: “N. has the following diagnoses: Mixed receptive-expressive language disability; Verbal learning disability; Reading disorder; Writing disorder; Math disorder “He therefore has significant learning disabilities and it is very important he continue to have a T.A. at school. A T.A. is extremely beneficial for N.’s academic needs.” [ 45 ] When the family moved to Prince George in the spring of 2012, Ms. C. placed N. in (omitted for publication), a Christian private school. Ms.

C. admitted that the Christian based environment was important to her, but emphasized that at that school N. has the benefit of very small class sizes (his current class has eight students) and more particularly the benefit of a teaching assistant who shares her time between N. and an autistic child in his class. Thus N. has the benefit, essentially, of a full time Teaching Assistant (T.A.). Contrary to his experience in Kelowna, N. has settled in well and is meeting or, in some subjects, exceeding expectations with the support of his T.A. [ 46 ] Ms.

C. has made inquiries with the Prince George School District as to the availability of teaching assistance for students with N.’s disabilities in the public school system. She was informed that if N. qualified, he would receive only a few hours of assistance on a few days per week. She believes that N. would not be able to succeed academically in the public system. Ms.

C. stated that she too suffered from learning disabilities as a child and that she did not receive the assistance she needed in the public school system. [ 47 ] An additional benefit to N.’s attendance at (omitted for publication) is that he wears a uniform to school. Ms. C. testified that N. needs consistency because of his anxiety problems. When he had to choose which clothes to wear to school (in the public system) it would take him an hour to dress in the morning and he would be very distressed over having to make choices.

Wearing a uniform the same as the other children at school removes a constant source of anxiety for him. [ 48 ] Mr. A.’s position is that Ms. C.’s motivation for placing N. in private school is her personal religious choice, to which he did not agree, and that as a result Ms. C. should bear the cost of that choice. While Mr. A. does not dispute Dr. Earl’s expertise, Mr. A. is of the view that any lack of performance on N.’s

part is attributable to his not having had stability in his schooling while in Kelowna. Ms. A.

disputes Dr. Earl’s diagnosis that N. has multiple learning disabilities, and suggests that he wanted N. to be independently assessed in Alberta, but has made no efforts to arrange the same, no inquiries as to whether N. is eligible for public funding of such an assessment in Alberta and has no intention of paying for an assessment to be done privately. Mr. A. says that his father is an experienced educator and that on the basis of his observations of N. during annual summer visits, Mr. A.’s father is of the view that N. has no disabilities. In any event, Mr.

A. takes the position that N.’s disabilities, if he has them, can be fully addressed in the public system, and although Mr. A. has made no inquiries himself as to the assistance offered in the public system to students such as N., he is of the view that Ms. C.’s evidence on the point is “subjective” and that the Court should therefore not rely on it. [ 49 ] Mr. A. acknowledges that N. is currently doing well at (omitted for publication), and that he has no information or reason to believe that (omitted for publication) offers the assistance of a T.A. full time to children who do not require it.

However, he takes the position that he is willing to experiment with N. by removing him from the school he has attended for two years, putting him in the public school system and taking away his T.A., to see if his grades plummet. Mr. A. suggests that if N.’s grades do plummet, he will have to accept the reality that N. actually needs a T.A. [ 50 ] The evidence from Ms. C. was that N. suffered from extreme emotional disturbance while in school in Kelowna which resulted in his removal from school and referral to a pediatrician. He was then referred to Dr. Earl for assessment.

Although he was found not to be autistic he was found to have several learning disabilities and to have an anxious/rigid temperament. Dr. Earl provided a letter stating that he has “significant learning disabilities and it is very important that he continue to have a T.A. at school.” In my view it is clear that N. is doing well at the (omitted for publication) due to its very small class size and the fact that he has a full time T.A.

Unlike his experience in Kelowna, N. appears to be comfortable and well-adjusted in this school where he has now attended for two years. [ 51 ] I see no reason not to accept the evidence of Ms. C. that the information she has received from the School District 57 in Prince George that N. would not be eligible in the public system for anything remotely approaching the support he receives at (omitted for publication). In my view the educational support N. receives at (omitted for publication). is necessary for his successful academic development.

Further, remaining in a school environment that is stable and to which he has grown accustomed is particularly important and necessary for N., given his history of emotional disturbance and anxiety. While it is clear that Ms. C. initially enrolled N. at (omitted for publication). for religious reasons, it is also clear that N. has benefited enormously from the non-religious aspects of his enrollment there. [ 52 ] With the greatest of respect to Mr.

A., his suggestion to remove N. from his familiar environment, remove him from his friends, to place him in a new school where he will have to make all new social connections, in a learning environment where he will have a class size triple to quadruple his existing class size, and to remove his teaching assistant, in an experiment to find out whether he really has a learning disability and really needs a T.A., is utter folly. In my view it is not in the best interest of any child to play dice with his wellbeing in that fashion. [ 53 ] These circumstances are clearly distinguishable from those in Byrne v.

Byrne , where the court found that attending a Catholic school was not in the best interest of the child, but was rather for the religious convenience of the parents. For N., I find that his attendance at (omitted for publication) is in his best interest, and therefore necessary, for the reasons noted above, and the fact that (omitted for publication) is a Christian school is irrelevant. [ 54 ] The question then remains as to whether the costs of the tuition fees for (omitted for publication) are reasonable given the means of Ms. C. and Mr. A. As mentioned earlier, Mr.

A.’s income for 2014 is estimated to be $78,000.00. Ms. C.’s employment income was $8,330.00. Ordinarily one would look at the combined income of these parties in order to determine whether the expense is a reasonable one. If I consider only the means of Ms. C. and Mr. A., then their combined income is $86,330.00. The tuition fees represent 3% of their combined income. [ 55 ] However, where the reasonableness of the proposed expense is disputed, the court can also take the combined incomes of the parties and their families into account. If that is the case, then Mr. and Ms.

C. have a combined family income of $93.330.00 and Mr. A. and Ms. T. have a combined income in 2014 of $159,000.00. Adding those family incomes together, the combined income is: $252,330.00. At $2,475.00 annually, the tuition fees represent less than 1% of the combined family incomes. Looked at it in this fashion, the $2,475.00 annual fee for tuition appears reasonable. [ 56 ] However, given that Mr. A. disputes the reasonableness of the tuition fee expenditure for his son, it might be helpful to look at some more concrete examples of what expenditures he and Ms. T. consider appropriate by comparison.

Looking at the Financial Statements for Mr. A. and Ms. T., it is apparent that Mr. A. is prepared to pay $4,236.00 in payments on his student loans, and he also claims he pays $3,516.00 annually for a debt of $28,050.00 he owes for his own tuition expenses. Given that the payment amounts claimed are different, it is not clear to me which of these amounts are the actual debt payments due to education expenses. (I note parenthetically that Mr. A. has now completed his Bachelor of Commerce, which left an outstanding debt of totalling $28,050.00.

If N. continues at this same school through Grade 12, assuming tuition fees stay the same, the total cost will be less than Mr. A.’s current debt for his Bachelor’s Degree.) [ 57 ] Ms. T. claims she pays $3,000.00 annually for pet care for the family dogs. Collectively Mr. A. and Ms. T. estimate $2,500.00 annually for restaurant meals. Thus, it seems to me that the expenditure of $2,475.00 annually in tuition fees for N. must be “reasonable”, given that Mr. A. is willing to pay almost twice that annually for his own education, and as a couple he and Ms.

T. spend more than that amount on their pets, and more than that on restaurant meals. [ 58 ] The question can be considered in an even more practical way - does Mr. A. have the means to add a contribution to the cost of N.’s tuition fees to his expenses, according to the Financial Statements viewed as they are? The answer to that question may be found in an examination of his evidence with respect to his expenses, in particular, the expenses he claimed with respect to N.’s visits. Mr.

A. claimed he spends $300.00 in clothing, $1,500.00 in childcare, $1,500.00 for entertainment and recreation and a further $1,000.00 for activities and lessons on N., in addition to his table child support amount. Mr. A. later explained that the $1,500.00 for childcare was really intended to refer to his share of the child care spent by Mr. and Ms. C. However, it appears from Ms. C.’s records for the May 2013/April 2014 year (not disputed by Mr. A.) that Mr. A. did not pay $1,500.00 towards childcare; he paid only $945.00 towards both

childcare and sports and activities for N. Similarly, upon questioning, the $2,500.00 for entertainment, recreation, activities and lessons actually worked out to $450.00 for all the skiing, ball games, movies and other activities and entertainment N. attended while on visits with his father. Thus it appears that Mr. A. grossly over stated the amounts he spends on N. annually. The over estimation amounts to $2,635.00 annually - which is more than the entire cost of the tuition fees at issue. [ 59 ] An examination of the Financial Statements raises similar questions in other areas. For instance, Mr.

A. claims debt payments of $9,636.00 annually on page 6 of his Financial Statement. However, in his debt payment

section of page 7, he claims to pay $6,516.00 annually, a difference of $3,120.00. Nothing in Mr. A.’s evidence explains this discrepancy. [ 60 ] As far as Ms. T.’s Financial Statement is concerned, the paystubs appended to the Financial Statement provided by Ms. T. indicates an employment income of $22,188.00 as at March 23, 2014, which adds up to an annual income of approximately $89,000.00. That income is considerably higher by $80,000.00 than the income noted on page 3 of her Financial Statement.

As mentioned earlier in these reasons, her Financial Statements do not include Tax Returns and therefore there is no explanation of the sorts of expenses claimed which resulted in the income losses from self-employment. Thus there is no way to assess whether those expenses relate to items which have also been claimed as expenses with respect on either of Mr. A.’s or Ms. T.’s Financial Statements; that is, there is no way to assess whether there has been “double dipping.” (For example, if Ms. T. wrote off a portion of the family home mortgage, taxes etc. as part of the losses claimed, but Mr.

A. claimed the entirety of the mortgage , taxes etc. as an expense in his Financial Statement, that would be an example of “double dipping” relevant to my assessment of his “means”.) Similarly, Mr. A. did not include the page of his termination letter that clearly referred to some additional compensation his employer was prepared to provide. Whatever it was, it was not declared by Mr. A. [ 61 ] In my consideration of Mr. A.’s financial situation, I find that Mr.

A. has clearly grossly exaggerated some of his expenses, provided contradictory claims in his Financial Statement and failed to include information which might give a clearer picture of his actual financial means. It follows that I can place little reliance upon Mr. A.’s evidence with respect to his financial situation. [ 62 ] On the information I do have from Mr. A., it appears to me that the amount of the tuition fees is reasonable, by comparison to his overall means, and by comparison to the discretionary expenditures he has declared.

It follows from the foregoing that I find that the tuition fees for N. are both necessary, because of N.’s learning disabilities and needs, and reasonable, given Mr. A.’s means and spending pattern. Undue Hardship [ 63 ] I now turn to the question of hardship. Mr. A. indicated in his evidence that he and Ms. T. are just “breaking even” and that it is difficult to maintain their lifestyle despite their increased income (by comparison to earlier years). Section 10(2) of the Guidelines stipulates those circumstances which the court may find constitute hardship:

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

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

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

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

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

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

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. [ 64 ] It is clear from the evidence adduced at the hearing that s. 10(2)(c)-(

e) have no application here. Mr. A. claimed in his Financial Statement that he has a “debt from previous relationship” of $5,750.00, which might have some relevance to a hardship claim, if in fact that was a debt leftover from his relationship with Ms. C. However, when questioned, Mr. A. admitted that the current debt was incurred in its entirety after his relationship with Ms. C. was over. Thus s. 10(2)(

a) does not apply. [ 65 ] With respect to s. 10(2)(b), there is evidence that Mr. A. has shouldered the expenses associated with transporting N. to Calgary for access visits with his father. He estimates those expenses to be $3,700.00 annually. Ms. C. estimates them to be $3,360.00, but notes that there are now direct flights from Prince George to Calgary and that N. will qualify in September of this year for the “unaccompanied minor” flight arrangements so that it will not be necessary to pay for another ticket for an adult to accompany him, at least for direct flights. Ms.

C. testified that she and her husband simply do not have the financial means to share the cost of transporting N. for access visits. Mr. A. acknowledged in his testimony that Mr. and Ms. C. did not have the financial ability to cover travel and that he will pay for it. [ 66 ] A review of the history of this matter from Affidavit materials and Orders in the court file reveal that the parties both resided in Kelowna before N. was born and after his birth. When the relationship broke down, Mr. A. chose to move to Calgary. There were some efforts made to have Ms.

C. also move to Calgary, but ultimately she remained in Kelowna. It is clear that it was Mr. A.’s choice to move from Kelowna to Calgary when the relationship between himself and Ms. C. broke down. That fact was clearly recognized in the

Order of Judge Cartwright in December 2006, which provided that Mr. A. should be responsible for all costs associated with travelling and access visits with the child. Thus, it seems reasonable that the additional costs associated with exercising access to N. from there are his to bear. [ 67 ] While it is true that Ms. C. has since moved to Prince George, there is no evidence before me that satisfies me that the cost of transporting N. to Calgary from Prince George is greater than the cost of transporting N. to Calgary from Kelowna.

There is some evidence that the cost of airfare will decline now that N. has grown older and is able to travel as an “unaccompanied minor” at least for some of the trips. [ 68 ] Although I accept that the cost of exercising access to N. is high, given Mr. A.’s personal income of approximately $80,000.00 annually, the cost of exercising access is not so high as to constitute undue hardship for Mr. A. Even if I were to find that the cost of exercising access did constitute undue hardship, I am then obliged to consider the relative standards of living under s. 10(3) of the Guidelines .

With a family income of $159,000.00 Mr. A. has a higher standard of living than Ms. C. (with a family income of $93,330.00) and his claim of hardship must fail. Proportionate Share of Expenses [ 69 ] Mr.

A. seeks to have his contribution to special and extraordinary expenses limited to 50%. [ 70 ] Section 7(2) of the Guidelines provides that “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.” [ 71 ] I do have the discretion to apportion the expenses in a different fashion, but as mentioned earlier in these reasons, in considering whether to do so, I should consider the adequacy of the financial disclosure made by the parties, among other considerations.

As I have mentioned earlier, I found the financial disclosure pertaining to Mr. A.’s means to be inaccurate and exaggerated. I was offered no other evidence or argument in support of departing from the “proportionate to income” method provided in s. 7(2). In my view, therefore, I have no evidence providing an adequate basis upon which to depart from the guiding principle set out in s. 7. Accordingly, for all special and extraordinary expenses in the future, Mr. A.’s share will be based upon his income proportionate to Ms. C.’s income, as provided in s. 7.

Retroactivity/Arrears [ 72 ] Two questions remain: should Mr. A. be obliged to contribute to special and extraordinary expenses retroactively, and if so, to what date and in what proportion? 1. Should Mr. A. contribute to expenses already incurred at the time the application was made, and if so, how far back should his obligation to contribute commence? [ 73 ] The history of the proceedings is relevant to this issue. On June 28, 2013, Mr. A. filed an Application seeking a remedy with respect to parenting time and summer visits, and Ms. C. filed a Reply and Counterclaim on August 16, 2013.

It is the Counterclaim seeking child support and special and extraordinary expenses retroactive to May 1, 2013 that is at issue today. Ms. C. also sought an order enforcing Judge Smith’s Order that Mr. A. provide his 2012 Tax Returns to her by May 1, 2013, which Mr. A. had failed to do. (Mr.

A. did not, in fact, file his Financial Statement nor disclose his Tax Returns until April 9, 2014, shortly before the hearing of this matter). [ 74 ] Accordingly, the claim for child support, special and extraordinary expenses has been outstanding since August 2013 and the Application with respect to child support and retroactive child support was brought in response to Mr.

A.’s failure to provide his 2012 Tax Returns on or before May 1, 2013 as required by the Order of Judge Smith. [ 75 ] I now turn to the question of whether to impose the obligation to contribute to N.’s tuition fees and other expenses retroactively. With respect to N.’s summer camp activities, Mr. A. acknowledged in this hearing that he does not dispute N.’s summer camp activities and thus I find he had no reason to fail to contribute towards them in the summer of 2013. Accordingly, Mr.

A. will contribute towards those activities, and the sports activities he was already obligated to contribute to under Judge Smith’s Order, retroactive to May 1, 2013. [ 76 ] On the subject of N.’s tuition fees, I will analyse the issue by reference to the factors enumerated in DBS (supra, para. 27) : (

a) Whether there is a reasonable excuse for why support was not sought earlier . [ 77 ] As mentioned, Ms. C. did not file her Application for retroactive child support until August 2013, in which she sought retroactive contribution back to May 1 2013. I note that Mr. A. was not consulted prior to the decision by Mr. and Ms. C. to enrol N. in private school in 2012, although he was informed of it. It is clear that Ms. C. asked Mr. A. to contribute as early as February 2012. Mr. A. refused on the ground that it was a religiously motivated choice with which he disagreed. There is evidence before me that Ms.

C. was very ill from MS in 2012 and I infer from that fact that she may have been too unwell to engage in litigation at that time. However, the report of Dr. Earl diagnosing N.’s learning disabilities was available in mid-October 2012 and although there is no direct evidence on when Mr. A. became aware of that report, he was certainly aware of it in August 2013, since it was appended to Affidavit material. Dr.

Earl’s letter supporting the use of a teaching assistant for N. was dated September 27, 2013. Thus Mr. A. certainly had notice of the claim, and the evidentiary basis for it, well in advance of the Application. I am therefore of the view that Ms. C. made her Application in a timely fashion, especially considering that the retroactive effect sought in that application is to a date only three months earlier. (

b) Whether there has been blameworthy conduct on the part of the payor parent . [ 78 ] Mr. A. was under an obligation, pursuant to the Order of Judge Smith made December 20, 2010, to provide Ms. C. with copies of his Tax Returns or Notices of Assessment by May 1st each year. Mr. A.’s failure to comply with that Order resulted in Ms. C.’s Application for retroactive child support filed in August 2013. Mr. A. had previously complied with the Order of Judge Smith with respect to his contribution towards N.’s sports activities, but failed to do so in July and August 2013.

D.B.S. provides that “blameworthy conduct includes anything that privileges the payor parent’s own interests over his children’s right to an appropriate amount of support.” ( supra ). In this case, I note that Mr. A. chose to buy himself a truck worth $23,000.00 in May 2013, that he had refused to contribute to N.’s childcare when Ms. C. was confined to hospital and a wheelchair in 2012, and that he incurred $28,000.00 of debt to finance his own education (which was not required for his employment) throughout the period in which he had been requested to contribute to N.’s educational needs.

I find this conduct to have privileged Mr. A.’s interests over those of his son. That conduct is therefore blameworthy. (

c) Whether the present circumstances of the child will be improved by a retroactive award . [ 79 ] Mr. and Ms. C. have already incurred the expense of paying for N.’s tuition fees, and in that sense he has already benefitted from that expenditure. I am satisfied that given the C. family income at the relevant times, the tuition expense would have put the C. family to considerable difficulty and it is likely that a portion of the family debt obligations exists due to the payment of N.’s tuition fees.

The family does not enjoy a high standard of living and N. would no doubt benefit, as a member of that family, by a reduction of the family debt due to a retroactive contribution to his educational expenses. (

d) Whether hardship would be occasioned by a retroactive award . [ 80 ] As I have already found, Mr. A.’s financial situation is not one that can support a hardship claim under s. 10 of the Guidelines . I recognize that Mr. A. has incurred a large debt, approximately $28,000.00 to enhance his own education by obtaining a Bachelor of Commerce. While education for its own sake is, of course, laudable, there is certainly no suggestion that this large expenditure was required for Mr. A.’s employment as a dispatcher. Similarly, while Mr.

A. presumably requires transportation to his employment across town, here is no evidence before me as to why his employment required the acquisition of a pickup truck at a cost of $23,000.00 in May of 2013, when his declared income would not have been any larger than it is today. Accordingly, I find that these expenses were entirely discretionary. His child should not have to bear the adverse consequences of Mr. A.’s educational and automotive choices. [ 81 ] For the reasons noted above, I do order that Mr. A. must contribute towards N.’s tuition fees retroactive to May 1, 2013. 2. Should Mr.

A.’s contribution to expenses incurred in the past be based on his income proportionate to Ms. C.’s or some other share? [ 82 ] It seems to me that since the Order of Judge Smith pronounced Dec 29, 2010 provided that Mr. A. pay a 50% share of reasonable sports activities for N., Mr. A.’s contribution towards those activities should be based upon that Court Order, up to May 1, 2013. Judge Smith’s Order did not refer to childcare expenses, private school or summer camp (presumably because N. was not attending any at the time).

For those expenses, and for sports activities after May 1, 2013, I see no reason to depart from the usual rule under s. 7(2) of the Guidelines . [ 83 ] Ms. C.’s 2012 income was $12,722.00 and Mr. A.’s 2012 income was $49,785.00. For the special and extraordinary expenses incurred between May 1, 2013 and April 30, 2014, Mr. A.’s share of the expenses is 75% and Ms. C.’s share is 25%. The amounts spent on these expenses, according to the records provided by Ms. C., is $5,191.80. Mr. A.’s share of that amount is $3,893.85. Mr. A. paid $945.00 during that period. The remainder owing is from Mr. A. to Ms.

C. is therefore $2,948.85. Ongoing Special and Extraordinary Expenses [ 84 ] The tuition fees incurred since April 2014, along with any sports and summer camp activities, will be shared proportionate to the Guideline incomes of Ms. C. and Mr. A., based upon their previous year’s Income Tax Returns. Ms. C.’s 2013 income was $17,470.00 and Mr. A.’s income was $80,127.00, based upon the Financial Statements they filed in April 2014 (which did not append their 2013 Tax Returns, although those should be available now). For the expenses incurred between May 1, 2014 and April 30, 2015, Mr. A.’s share will be 78% and Ms.

C.’s share will be 22%. [ 85 ] Ms. C. provided several estimates in her materials with respect to the sports and other activities for N. she anticipates for the 2014/2015 school year. It appears that these expenses are expected to increase by approximately $150.00 annually. For the purpose of assessing an appropriate monthly contribution towards these expenses for the 2014/15 school year I have added $150.00 to 2013/14 amount of $5191.80, for a total of $5,341.80. Mr. A.’s 78% share will be $4,166.60. The monthly payment based on that amount will be $347.22. Any overpayment or underpayment by Mr.

A. will be assessed on or before June 30, 2015 (and each year thereafter) based upon the actual cost of the expenses. Any overpayment will be credited to the next month’s expenses and any underpayment will be paid

by Mr. A. to Ms. C. within 30 days. Ms. C. will provide Mr. A. with copies of all receipts supporting the expenses incurred, and a doctor’s letter or any proof satisfactory to CCRA if she claims childcare expenses for N. due to illness or disability. Guideline Child Support [ 86 ] The table amount of child support under s. 3 of the Guidelines payable for N.’s support, based in Mr. A.’s residence in Alberta and his 2013 declared income of $80,127.00 is $690.17 per month, commencing May 1 2014 and continuing until April 30 2014.

At that point the table amount (and the proportionate shares of contributions to special and extraordinary expenses) will be recalculated according to the respective incomes of Mr. A. and Ms. C. for 2014. [ 87 ] In view of Mr. A.’s failure to comply with a previous Court Order requiring him to provide Ms.

C. with his Tax Returns by May 1 2013, the inaccuracy of his financial disclosure when it was disclosed, and the failure of both parties to file Financial Statements within the time periods required by the Provincial Family Court Rules (the “ Rules ”), I have considered methods to encourage the parties to provide adequate financial disclosure to one another in a timely fashion. S. 213(2)(

e) of the Family Law Act provides that I may make any court order that I consider appropriate to deal with a person who fails to disclose information as ordered, or as required by the Rules , or who provides information that is incomplete, false or misleading. I understand that in certain other jurisdictions, notably Alberta, maintenance enforcement programs customarily impute increased income to the payor parent who fails to provide financial information as required.

Of course, this does not in any way restrict either party from applying to the court to compel the production of that information in order to have the child support recalculated based upon the parties’ actual income or to seek any penalty or other remedy under S. 213 of the FLA . The benefit of the Alberta approach is that it should provide some encouragement to all parties to provide timely disclosure by providing an automatic penalty for a failure to do so, without having to resort to a court application. Accordingly, I have imposed a similar regime in my order on this matter, with respect to both Mr.

A. and Ms. C. [ 88 ] Lastly, I note Ms. C.’s complaint that Mr. A. does not make his child support payments on time, which causes difficulties for her family. As she points out, all of her other obligations must be paid on time, and she relies on the child support payments to meet those obligations. Mr. A. testified that he did make his child support payments more or less on time, and suggested that they were in fact made on time but that the banking processes caused them to be received late.

However, when asked directly whether he would make the payments on time he said it was difficult to do so in view of his other obligations. I have examined the payment history appended by Mr. A. to his Affidavit filed April 24, 2014. It would appear that Mr. A. has been making payments twice per month, nominally on the 1 st and the 15 th . However, during the 14 month period December 31, 2012 - February 17, 2014, Mr. A. made only five payments on those dates.

The remainder of the payments were 1 to 5 days late. [ 89 ] That sort of payment history would not be acceptable to any bank for mortgage payments nor to a loan company for a car loan and I see no reason why the timely payment of child support should be any less important than other obligations. It is up to Mr. A. to arrange his financial affairs so that his child support payments are made on time.

It would be a simple matter for Mr A. to provide post- dated cheques or to arrange for automatic withdrawal from his bank and deposit to Mrs C.’s bank on the specified dates in order to avoid causing disruption and difficulty to the C. family. However, given that he has failed to make those arrangements, unless Mr A. and Ms. C. can agree to make other arrangements, I will make an order under S. 227 of the FLA that Mr A. provide security for the timely payment of child support as ordered. Mr. A. is required to pay to A.

C. a deposit of $2,074.78 (two months child support), on or before February 15, 2014, from which she will be entitled to take any payments that Mr. A. fails to make on time. Mr. A. must replenish that deposit amount as required to maintain a monthly balance of $2,074.78. I recommend to Ms.

C. that she open a bank account specifically for child support purposes so that the deposit balance and payment history is clear. [ 90 ] The parties may find it beneficial to register with the BC Family Maintenance Enforcement program so that an independent record will be maintained as to the timing of payments and so that the payment of support can be enforced by FMEP and so that the opportunity for friction between the parties will be minimized. [ 91 ] Based upon the foregoing, I make the following orders: 1. D. A. is found to be a resident of Alberta and to have a gross annual income of $80,127.00 for 2013; 2.

Childcare, tuition fees at (omitted for publication), reasonable extra-curricular sports activities and two summer camps per year for N. A. are found to be special or extraordinary expenses under s. 7 of the Guidelines and are found to be necessary and reasonable. Ms. C. will consult and seek the consent of Mr. A. prior to registering N. in sports activities, such consent not to be unreasonably withheld; 3. D. A. will pay to A. C. the sum of $690.17 per month for the support of the child N.

A., commencing May 1, 2014 and continuing on the 1 st day of each and every month thereafter for so long as the child is eligible for support under the Family Law Act or further court order, subject to annual recalculation as provided herein; 4. D. A. will pay to A. C. the sum of $347.22 per month commencing May 15, 2014 and continuing on the 15 th day of each month thereafter for the child’s special or extraordinary expenses; 5.

On May 1, 2015 and each year thereafter, unless otherwise agreed by the parties or upon further court order, the amount payable for special and extraordinary expenses enumerated above will increase by $150.00 annually, to be paid on May 1st of each year or added to the monthly payments ordered in paragraph two herein, at the choice of D. A.; 6. D. A. will pay to A. C. the sum of $2,948.85, on or before May 30, 2015, in payment of his contribution to special and extraordinary expenses incurred between May 1, 2013 and April 30, 2014; 7. D. A. and A.

C. will exchange Tax Returns by May 30, 2015 and Notices of Assessment upon receipt in 2015 and each year

thereafter and the child support for N. (both table and special and extraordinary) will be recalculated according to the parties respective incomes; 8. A. C. will provide D. A. with copies of all receipts supporting the special and extraordinary expenses incurred for N., between May 1 2014 and April 30 2015, by May 30, 2015 and for each year thereafter. A. C. will provide D. A. with a doctor’s note or such proof as satisfactory to CCRA if childcare expenses are claimed for N. resulting from her illness or disability. 9. Any difference between the monthly payments made by D.

A. and the actual expenses will be calculated by A. C. on or before June 30, 2015 (and each year thereafter). Any overpayment will be credited to the next month’s expenses otherwise payable by D. A. and any underpayment will be paid by D. A. to A. C. within 30 days; 10. Should D. A. fail to give his Tax Returns and Notices of Assessment to A.

C. as provided in this Order, his income will be presumed to have increased by 15% from the previous year and child support (both table amounts and contribution to special and extraordinary expenses) will be recalculated and increased based upon that imputed increase in income; 11. Should A. C. fail to provide supporting documentation for special and extraordinary expenses, or her Tax Returns and Notices of Assessment to D.

A. as provided in this Order, her income will be presumed to have increased by 15% from the previous year and her contribution to special and extraordinary expenses will be recalculated based upon that imputed increase in income; 12. D. A. will maintain N. on any medical, dental or extended health benefit plans available to him through his employer or his spouse’s employer, and will pay a proportionate share (based on the comparison of his annual income to that of A. C.) of any medical or dental expenses for N. in excess of $100.00 annually. 13. Unless the parties agree to make other arrangements, D.

A. is required to pay to A. C. a deposit of $2,074.78 (two months child support), on or before February 15, 2015, from which she will be entitled to take any child support payments that D. A. fails to make on time. D. A. must replenish that deposit amount as required to maintain a monthly balance of $2,074.78. ____________________ S. K. Keyes Provincial Court Judge Province of British Columbia