P.R. v. M.R., 2018 BCPC 314

Citation: P.R. v. M.R. 2018 BCPC 314 Date: 20181203 File No: F-8923 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: P.R. APPLICANT AND: M.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing in person: P.R. Appearing in person: M.R. Place of Hearing: Duncan , B.C. Date of Hearing: August 31, 2018

Date of Judgment: December 3, 2018 Introduction [ 1 ] These parties have been before the family court on numerous occasions since 2006. They are back before the court again on the specific issue as to whether M.R. has failed to fully disclose all of his income to P.R. and to the court (the “Specific Issue”) and has thereby underpaid child support to her for several years.

It is her contention that he has intentionally not disclosed all of his income but that contention is denied by him. [ 2 ] That Specific Issue was determined for the parties by the Honourable Judge Cutler at a Pre-Trial Conference on August 31, 2018 (the “Pre-Trial Conference”). [ 3 ] To put that Specific Issue in context it is necessary to examine the background circumstances of this high conflict case. Background Circumstances [ 4 ] The historical focus of the parties’ disagreements has been their two biological children, namely:

a) Child T who at the time of this hearing was 19 years of age (“Child T”); and

b) Child C who at the time of this hearing was 15 years of age (“Child C”). [ 5 ] There is another child Child J (“Child J”) who is the biological daughter of P.R. (the “Mother”). M.R. (the “Father”) is the step-father of Child J. At the time of the hearing she was age 25 years. She too has been the subject of previous court orders. [ 6 ] There have been various orders made resulting in shared parenting and split custody arrangements for all three children. [ 7 ] On July 9, 2009 a consent order was made by the Honourable Judge Neal (the “2009 Consent Order”) which can be summarized as follows:

a) the Mother’s child support guideline was set at $25,000 per year;

b) the Father’s child support guideline was set at $32,000;

c) in paragraph 1, the Father was ordered to pay the Mother the sum of $268 per month for the support of Child T, Child C and Child J on the first day of each month commencing June 1, 2009 “pursuant to the shared custody and step parent provisions of

section 9 and

section 5 respectively of the British Columbia Child Support Guidelines ”;

d) it was specifically ordered in paragraph 2 that: commencing in 2010, [the Mother] and [the Father] shall each provide the other by May 1 of each year in which the obligation to pay child support for the Children, or either of them, continues with: a. a photo copy of their most recent income tax return, inclusive schedules and attachments; b. their Notices of Assessment, if received; and c. any other relevant information to facilitate the determination of each parties’ child support guideline income; (such provision are hereinafter called the “Annual Financial Disclosure Order”)

e) it was specifically ordered in paragraph 3 that: “there will be no change or variation of the quantum of child support payable by [the Father] to [the Mother] under this Order in the event [Child J] “ceases to be a child as defined by the Family Relations Act , R.S.B.C. or ceases to reside with the Recipient [the Mother]”;

f) it was also specifically ordered in paragraph 4 that: “there will be no change or variation of the quantum of child support payable by [the Father] to [the Mother] under this Order unless there is a change in the financial circumstances of either party to these proceedings which for the purposes of this Order means, a change in the parties’ child support guideline income by at least $5,000 per year or a significant change in the parties’ shared day to day care of the Children, whichever first occurs.”;

g) in paragraph 5 it was ordered that the provisions of the interim consent order made August 29, 2006 (the “2006 Consent Order”) were to survive the making of the 2009 Consent Order and it was directed that “the respective claims respecting custody and guardianship and access to the Children” were adjourned generally. [ 8 ] The 2006 Consent Order is a comprehensive order relating specifically to the shared custody of Child T and Child C. It contains no provision relating to Child J. [ 9 ] Matters appeared to have remained dormant for a considerable period of time.

No further court appearances or court orders were made, notwithstanding that it appears that there was an agreed change in the living arrangements, resulting in what initially appeared to be something more in the nature of a split custody arrangement. Starting in 2011 Child T moved from the Mother’s residence to the Father’s residence and started to live full time with him. It appears that the shared custody arrangement with respect to Child T terminated according to Canada Revenue Agency (“CRA”) records for the Child and Family Benefit (“CFB”) Program [Exhibit 4] in or around June 2012.

In or around April of 2013, Child C began to reside with the Mother full time thereby ending the shared

custody arrangement with respect to Child C. Child J continued to reside with the Mother. There appears to be no disagreement between the parties about which child was living with which parent at any given time or about the custody arrangements with respect to each child; they both accept the details in Exhibit 4 as being accurate. [ 10 ] In the earlier part of 2017 the Father initiated plans which would result in significant changes to his personal life and family circumstances.

Those included becoming engaged to S.W. (“S.W.”) with whom he had an interrupted romantic relationship for some years, starting in 2007, during which time they had lived together commencing in 2008, and then separating and then subsequently reconciling on several occasions.

S.W. has had a number of government jobs during the course of their relationship; these have taken her to a number of different communities in British Columbia including off of Vancouver Island, hence at numerous times she and the Father had a long distance relationship. [ 11 ] These significant changes also included the Father arranging to sell his personal residence in Duncan, in which he and Child C had resided for several years and resigning from his unionized position with the parks department of a local municipality, being full time but a seasonal position and then seeking new employment and accommodation in and around Kelowna and the Okanagan Valley.

As a result of the changes in the Father’s circumstances and his relocation to Kelowna, Child C started to reside full time with the Mother on October 16, 2017. [ 12 ] On November 20, 2017 the Mother filed an Application Respecting Existing Orders or Agreements. In it she sought to vary the 2006 Consent Order with an order that would provide her with “full custody of both boys”.

No mention was made of variation of child support. [ 13 ] Contemporaneously with the filing of the Mother’s application she filed a Notice of Motion returnable on December 6, 2017, in which she sought an order to enforce the Annual Financial Disclosure Order and specifically for the Father to provide “CRA reassessments of 2009, 2010 and 2011 income tax returns based upon a common law partnership and all income tax returns from 2012 forward.” The Mother’s Affidavit in Support filed November 20, 2017 asserted that the Father had incorrectly filed his income tax returns for each of 2009, 2010, and 2011 by claiming for an “eligible dependent” when in fact he and SW were in a common law relationship and were residing together in the Duncan residence which she alleged they owned together. [ 14 ] That set of circumstances, according to the Mother’s Affidavit, would not permit the Father to claim the amount for an eligible dependent on his income tax returns.

Accordingly, in her Affidavit the Mother says that the income tax returns for the periods 2009 to 2011 and the notices of assessment for those periods which were provided to the Mother by the Father in January of 2013 were “incorrect” and hence the court was being requested by the Mother to require the Father to also provide “accurate income tax returns from 2012 forward”. Her Affidavit further alluded to the sale of the Duncan residence and his pending relocation to an undisclosed destination on the British Columbia mainland to reside with S.W.

She also indicated that there was urgency because the Father had not provided her with a forwarding address. All documents were personally served on the Father on November 24, 2017 as set out in an Affidavit of Personal Service filed on November 30, 2017. [ 15 ] The matter was placed on the December 6, 2017 Family Remand list. The Mother appeared with the assistance of duty counsel. The Father was not in attendance nor represented by counsel. An order was made (the “December 6, 2017 Order) which dealt with the following matters all returnable on December 20, 2017:

a) a summons was ordered to be issued to the Father to attend in person to “show cause” why he had not abided by the Annual Financial Disclosure Order contained in the 2006 Consent Order by providing the ordered financial and tax information for the years inclusive from 2009 to 2016 and to further “show cause” why he should not be subject to a financial penalty for that non-compliance;

b) the Mother was ordered to comply with the Annual Financial Disclosure Order by providing her financial and tax information for those same years to the Father no later than December 17, 2017; and

c) the Mother was permitted pursuant to a further order to serve the form of the December 6, 2017 Order and the Summons on the Father by text and email, all of which was done on December 8, 2017 as set out in an affidavit of service filed on December 11, 2017. [ 16 ] The Father filed a Reply to the Mother’s Application on December 19, 2017 in which he took no issue with respect to the Mother having the allocation of parental responsibilities for Child C but disagreed with the any allocation of parental responsibilities for Child T for the Mother, based upon the Child T turning 19 years of age within a couple of months and based further upon the fact that until recently Child T had resided with the Father since 2011.

No mention was made of variation of child support. [ 17 ] The parties both appeared in person with duty counsel along with S.W. in family remand court on December 20, 2017 before the Honourable Judge Barrett. Based on the court

summary sheet the matter took approximately 30 minutes. As I understand it the Father and S.W. disclosed to the court that they had or were still subject to a CRA review of their income tax return filings for the taxation years 2009, 2010 and 2011 and were still awaiting certain confirmation from CRA.

An order was made (the “December 20, 2017 Order”) which in part ordered as follows: 1. [The Father] is to be provided with confirmation from the Canada Revenue Agency that they have completed a review of his 2009, 2010, 2011 taxation years, in specific, regarding his matrimonial status during those years and the eligibility for child tax benefit, and that there is no change in his income, and must provide this confirmation to [ the Mother] by March 28, 2018, and [the Mother] is to provide confirmation of receiving it. 2.

If there has been a review done or a recalculation of the child tax benefit as it relates to the [Child T], within the last 12 months [the Father] must provide documentation of that to [the Mother]. [ 18 ] The December 20, 2017 Order further provided the Mother with the ability to serve the Father with future documents via his email address. The following additional provision was made in order to clarify the actual issues as between the parties: 4. The Application Respecting Existing Orders or Agreements filed by [the Mother] on November 20, 2017 is amended

to include a claim for child support for [Child T], [date of birth omitted] and [Child C], [date of birth omitted]. The Reply filed by [the Father] on December 19, 2017 is amended to oppose that application. [ 19 ] On January 31, 2018, the Mother was back in the court and before the Honourable Judge Barrett, again with the assistance of duty counsel. The Father appeared through the agency of counsel and was represented by his then legal counsel, who was in attendance.

A further order was made during that appearance (the “January 31, 2018 Order”) which after some dispute between the parties was settled to provide in part as follows: 1. [The Father] to provide a copy of his full income tax return for 2016 including all attachments as well as confirmation of income from all sources for the year of 2017 as well as his record of employment within seven days of receipt. [ 20 ] In addition, provision was made in the January 31, 2018 Order requiring the Mother to provide the Father with any documentation including psychoeducational reports that the Mother was relying on in support of her application to say that Child T was still eligible for child support, three days in advance of a hearing date.

A provision was also made for the exchange of a witness list and will say statements. [ 21 ] On March 28, 2018, the Mother was back before me as the presiding judge in the family remand court. The Father was not present either personally or through counsel agency. Orders were made (the “March 28, 2018 Order”) directing the Father’s now former legal counsel to access the transcript of proceedings for January 31, 2018 in order to correctly settle the form of the January 31, 2018 Order.

The court registry was directed to produce a summons for the Father to appear on May 9, 2018 at the Duncan courthouse for the purposes of reviewing the amended form of the January 31, 2018 Order and to receive further directions from the court with respect to compliance with that order. Provision for substitutional service by email and texts was made. The Father was granted liberty to apply to attend by telephone. [ 22 ] On May 9, 2018 the parties were back in family remand court in front of the Honourable Judge Cutler, with the Mother in person and the Father attending by telephone.

Pursuant to an order made on that date (the “May 9, 2018 Order”) the Father was required to provide his T-1 General tax returns for 2016 and 2017 by June 15, 2018. He was also required to file an affidavit setting out all sources of income for 2016 and 2017. The parties were ordered to exchange banking records with each other for 2016 and 2017 by June 15, 2018.

In addition, on a “without prejudice” basis, the Father was imputed to have a gross annual income of $47,600 and accordingly on the same “without prejudice” basis he was ordered to pay $440 per month for the support of Child C to the Mother commencing May 1, 2018.

The matter was adjourned to June 27, 2018 to confirm compliance with the May 9, 2018 Order. [ 23 ] The hearing of the Mother’s Application Respecting Existing Orders or Agreements filed November 20, 2018 and the Father’s Reply filed December 19, 2017 and as both were amended and clarified by the December 20, 2017 Order, as each related to child support, were set for a full day hearing on August 31, 2018. The Pre-Trial conference was scheduled for August 1, 2018.

As it turned out and as noted above, the Pre-Trial Conference was held before the Honourable Judge Cutler. [ 24 ] On June 27, 2018 the Father filed an Application, which was served on the Mother in which he sought retroactive child support from the Mother for Child T who had resided with the Father, with such retroactive adjustment to be effective from July of 2011.

The Mother filed a Reply with a counter claim on July 19, 2018 disputing the Father’s claim and counterclaiming for retroactive child support from June 1, 2009 on the basis of a failure of the Father to properly and fully disclose his income and specifically his undisclosed income from June 1, 2009.

This counter claim amplified the child support issue acknowledged by the December 20, 2017 Order of Judge Barrett to be included as part of the Mother’s November 20, 2017 Application Respecting Existing Orders or Agreements and the Father’s Reply. [ 25 ] Preceding the filing of the Father’s June 27, 2018 Application, the Mother filed a Notice of Motion on June 18, 2018 returnable on June 27, 2018 in which she sought a number of orders and findings which may be summarized as follows: 1.

Pursuant to s 213 (1)(a) (ii) of the Family Law Act a finding that the Father had failed to comply with the financial disclosure timelines set out in the December 20, 2017 Order, the January 31, 2018 Order, and the May 9, 2018 Order. 2. A finding that the Financial Statement filed with the Court by the Father and in particular those filed on December 20, 2017 and an “unfiled Affidavit” of the Father made pursuant to the May 9, 2018 Order requiring a listing of all sources of income for the Father for 2016 and 2017 were incomplete, false or misleading as contemplated by s 213(

b) of the Family Law Act. 3. An order pursuant to

section 213 (d) (ii) requiring the Father to pay an amount not exceeding $5,000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure. 4. An order for further disclosure of the Father’s three most recent pay stubs. 5. An order that failure to make all of the previously ordered financial disclosure by June 27, 2018 then the Father’s income be imputed at an amount greater than in the May 9, 2018 Order. [ 26 ] The parties were once again before the court on a family remand day on June 27, 2018.

They were represented by duty counsel. The Father’s application to attend by telephone had previously been rejected by me as the scheduled sitting remand judge and therefore he travelled from Kelowna to Duncan for that court appearance. A lengthy contested second reading hearing of approximately one hour in duration occurred in front of me as the presiding judge. [ 27 ] The continuing financial disclosure issue was that the Father had, according to the Mother, not provided full copies of his T1 General Tax returns but rather copies of his CRA notices of assessments.

The other issue was the timeliness of the Father’s disclosure in accordance with court imposed time lines. In the course of the hearing on June 27, 2018 the Father did produce in court his 2016 T1 General and an H&R Block

summary for his 2017 income tax return and notices of assessment. He contended that what he had provided was all that is available to him because he and his new spouse S.W. had electronically filed their income tax returns. The Mother

submitted that there were missing schedules, etc. from the T1 General Returns. [ 28 ] Bank statements were previously provided earlier in that week by the Father. The package had inadvertently been directed by Canada Post to and received by another office in the courthouse- government office complex but thereafter made its way to the intended recipient being the court registry. The Mother continued to contend during the second reading matter that the Father was making undisclosed income through a landscaping business.

He denied such to be the case. [ 29 ] However in the course of hearing of the second reading matter before me and with the aid of duty counsel on both sides, and from a review of the disclosed bank records an issue was raised about the withdrawal of $60,000 from the Father’s bank account with no indication of where it went. Based upon the Father’s submissions, some of that amount was deposited into tax-free savings accounts in his name and the name of his new spouse S.W.

Furthermore, those deposit amounts were much less than and represented only a small portion of the total proceeds from the sale of his Duncan residence, which was in fact the source of the $60,000 amount withdrawn from his bank account. [ 30 ] The Mother, through duty counsel, suggested that there should be an order requiring both the Father and his new spouse S.W. to disclose all information for all of their banks accounts, RRSP accounts, tax-free savings account whether held solely or in joint names.

I declined to make that order. [ 31 ] However, I did make an order (the “June 27, 2018 Order”) that at least two weeks prior to the Pre-Trial Conference the Father was to provide the Mother with a complete list of all of his bank accounts and also S.W.’s accounts, and all joint bank accounts, tax-free savings accounts and RRSP accounts. I further ordered that the Mother was required to file an affidavit with the court and serve it prior to the Pre-Trial Conference for use at the Pre-Trial conference.

In the affidavit she was to state the relevance of any of those listed accounts and the justifying reasons for the Mother seeking a further disclosure order from the presiding judge at the Pre-Trial Conference with respect to any of those relevant accounts. [ 32 ] Further orders were made as part of the June 27, 2018 Order:

a) requiring that all of the financial disclosure of parties including income earned from January 1, 2018 to the August 1, 2018 Pre- Trial Conference be updated by August 1, 2018;

b) that further updated financial information by both parties was to be exchanged two days prior to the trial date of August 31, 2018;

c) that the June 27, 2018 Application filed by the Father and any Reply from the Mother were to be adjourned to the Pre-Trial Conference judge on August 1, 2018 for directions and in particular as to how those matters may relate to the trial set for August 31, 2018;

d) that the application of the Mother contained in her Notice of Motion filed June 18, 2018 for the penalty to be paid by the Father was to be dealt with at the trial set for August 31, 2018;

e) that the Father be permitted to attend the Pre-Trial conference, scheduled for 30 minutes, on August 1, 2018 by telephone but that no viva voce evidence would be taken over the phone but the Father would be able to make submissions. [ 33 ] Parenthetically I note that the filed form of the June 27, 2018 Order prepared by the court registry and further amended by the court registry still does not contain the full terms of the June 27, 2018 Order that I have set forth in these reasons which is based upon my review of the proceedings by listening to the DARS recording.

I will be directing the registry to make further changes to the filed form of that order. [ 34 ] Before the Pre-Trial Conference occurred on August 1, 2018, it appears that the Father had complied with the requirement contained in the June 27, 2018 Order and on July 16, 2018 he filed a required list of the bank and financial accounts with the court.

So far as I can determine, the Mother did not file an affidavit with respect to S.W. and the Father’s list of bank and financial accounts and no specific order for disclosure with respect to the listed accounts and in particular any joint accounts of the Father and S.W. was sought or made at the Pre-Trial Conference. [ 35 ] The Specific Issue to be dealt with at the August 31, 2018 hearing was specified by the Honourable Judge Cutler.

It is clear from the Pre-Trial Conference Report that Judge Cutler warned the Father of the penalties he could face if he had failed to provide the ordered disclosure and if he did not make full disclosure of his income. Judge Cutler also made it clear that the Mother had the task of attempting to establish before the trial court that the Father had hidden income. [ 36 ] The Court

Summary Sheet also states that the trial judge would decide if the issues contained in the Father’s Application to Obtain an Order filed on June 27, 2018 and the Mother’s Reply with a counter claim filed on July 19, 2018 would also be heard at the time of the trial of the Specific Issue on August 31, 2018. No order was made that would vary the terms of the June 27, 2018 Order that stated that the application of the Mother contained in her Notice of Motion filed June 18, 2018 for the penalty to be paid by the Father was to be dealt with at the trial set for August 31, 2018.

Nature of Application [ 37 ] In the course of the hearing before me on August 31, 2018, I made it clear at the outset and throughout the hearing that the Specific Issue would be dealt with but depending on the time and the evidence I would then possibly deal with the further issue of whether any penalty should be imposed on the Father. Relevant Provisions of the Family Law Act Child Support Provisions of the Family Law Act

[ 38 ] For the present and future benefit of these unrepresented parties, it is important that they know about the applicable provisions of the Family Law Act , S.B.C. 201, c. 25 (the “ FLA ”) which relate to child support. [ 39 ] Section 147(1) of the FLA imposes the duty upon each parent and guardian of a child to pay child support. [ 40 ] Section 150(1) of the FLA requires that a child support order must be determined in accordance with the Federal Child Support Guidelines (SOR/97-175, effective May 1, 1997) [the " Guidelines "].

Despite subsection 1 and pursuant to the provisions of subsection 2, a court may order child support in an amount different from that required by the Guidelines if the parties consent to an order being made under

section 219 of the FLA or have an agreement respecting child support (see

section 148) and the court is satisfied that reasonable arrangements have been made for the support of the child. Under subsection 3 the court must consider the Guidelines for the purposes of subsection 2, but must not consider the arrangements made for child support to be unreasonable only because the amount required under the Guidelines differs from those arrangements. [ 41 ] Furthermore despite subsection 150(1), a court may, pursuant to subsection 4 (

a) and (b), order child support in an amount different from that required by the Guidelines if the court is satisfied that an agreement or order respecting the financial duties of the parents or guardians or the division or transfer 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 applying the Guidelines would be inequitable on consideration of the agreement, order or special provisions. [ 42 ] Section 150(5) directs that a court must give reasons for doing so if it makes an order respecting child support in an amount different from that required under the Guidelines . [ 43 ] Under section 148(2) a written agreement respecting child support that is filed in the court is enforceable under the FLA and Family Maintenance Enforcement Act , R.S.B.C. 1996,

Chapter 127, as amended, as if it were an order of the court. [ 44 ] Under section 148(3), on the application by a party, the court may set aside or replace with an order made under

Part 7, Division 2 of the FLA all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in determining child support under

section 150. [ 45 ]

Section 152 of the FLA permits the court to change, suspend or terminate an order respecting child support both prospectively and retroactively [see subsection 1]. Before making such an order, the court must be satisfied that a change in circumstances as provided for in the Guidelines has occurred, there is evidence of a substantial nature not available during the previous hearing that has become available, or there is evidence of a lack of financial disclosure by a party that was discovered after the last order was made. Child Support Guidelines [ 46 ]

Section 1 (

a) to (

d) of the Guidelines states that their objectives are to establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation, to reduce conflict and tension between spouses by making the calculation of child support more objective, to improve the efficiency of the legal process by giving the courts and parents guidance and setting the levels of child support orders and encouraging settlement and to ensure consistent treatment of spouses and children who are in similar circumstances. [ 47 ] The presumptive rule under

section 3 of the Guidelines is that the amount of child support for a child under the age majority is the amount of the payor's Guideline income set out in the applicable tables of the Guidelines and the amount, if any, determined to be the special or ordinary expenses as set out in

section 7 of the Guidelines . [ 48 ] Under

section 6 of the Guidelines the court may order medical or dental insurance coverage to be acquired or continued for a child where it is available to a spouse through their employment or otherwise at a reasonable rate. [ 49 ]

Section 8 of the Guidelines applies to split custody arrangements where each spouse has custody of one or more children and provides the basis for a set off between the parents such that the amount of a child support ordered will be the difference between the amount that each spouse would be required to pay if a child support order were sought against each of the spouses. [ 50 ]

Section 9 of the Guidelines applies to shared custody arrangement, namely where a spouse exercises a right of access to or has physical custody of a child for not less than 40 percent of the time over the course of a year. If that test is met then child support must be determined by taking into account: (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased cost of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 51 ] Section 10(1) of the Guidelines permits the court upon application of either parent to award support that is different than the amount of support determined under sections 3 to 5, and 8 or 9 of the Guidelines , if the court finds that the spouse making the request would otherwise suffer undue hardship. The circumstances that cause undue hardship may include those that are set out in section 10(2).

If the court finds that undue hardship exists under section 10(1) then the court must compare the household standards of living of the two parents under sections 10(3) and (4). [ 52 ]

Section 14 of the Guidelines sets out any one or more of the things that give rise to a change of circumstances and may give rise to the making of a variation of a child support order, including a change in a level of support in accordance with an applicable Guidelines table. [ 53 ] Pursuant to

section 15 of the Guidelines and subject to subsection 15(2) a spouse's annual income is determined by the court in accordance with sections 16 to 20. Pursuant to section 15(2) of the Guidelines , spouses can agree in writing to the annual income of a parent for the purposes of the Guidelines . The court can use this amount where the court determines that the amount is reasonable having regard to the income information provided by the payor parent under

section 21 of the Guidelines .

[ 54 ] Pursuant to

section 16 of the Guidelines , a spouse’s annual income is determined using the sources of income set out under the heading "Total Income" in the T1 General Form issued by CRA. It is adjusted in accordance with

Schedule III of the Guidelines .

Schedule III sets out adjustments to income for: employment expenses, child support, spousal support and universal child care benefits, for the purposes of calculating income for special or extraordinary expenses, for social assistance that is not attributable to that spouse, for the treatment of dividends from taxable Canadian corporations, for capital gains and losses, for business investment losses, carrying charges, net self-employment income, capital cost allowance for property, partnership or sole proprietor income, stock options received as an employee benefit, and for split-pension amounts. [ 55 ] Under

section 17, the court may have regard for a spouse's income over the last three years and determine an amount that is fair and reasonable in light of a pattern of income, fluctuation in income or receipt of a non-reoccurring amount during those years. Such discretion may be exercised if the determination of income under

section 16 would not be the fairest determination of that spouse's income. The court may impute income under sections 16 to 21 of the Guidelines . Specifically under

section 23, income can be imputed in the situation where there has been a failure to comply with the parents obligation set out under

section 21 to provide income information as detailed therein. [ 56 ]

Section 19 of the Guidelines specifically addresses the imputation of income. It provides the court with discretion to determine that income of a parent for guideline purposes should be more than the total income calculated. The

section sets out the following non- exhaustive list of circumstances where the court has discretion to impute income to a parent: Imputing income 19.

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

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

b) the spouse is exempt from paying federal or provincial income tax; (

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines ; (

e) the spouse's property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so; (

g) the spouse unreasonably deducts expenses from income; (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. Reasonableness of expenses

(2) For the purpose of paragraph (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act . [ 57 ]

Section 25 of the Guidelines creates a continuing obligation of financial information disclosure on the part of a spouse against whom a child support order is made. The disclosure requirement may be either on the written request of the payee spouse or that person's assignee. The obligation is to provide the information not more than once a year after the making of the order. Special or Extraordinary Expenses [ 58 ] The amount of the Guidelines income of the payor and payee is relevant in determining the sharing of special and extraordinary expenses, which under

section 7 of the Guidelines are to be shared by the parents in proportion to their incomes, after deducting the child's contribution, if any [see section 7(2)]. [ 59 ] The principles relating to special or extraordinary expenses are set out in

section 7 of the Guidelines as follows: 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 the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (

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

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech

therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. 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 into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar facto r 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 the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [ 60 ] It is established law that the court retains discretion to divide the parents' obligations other than in proportion to their incomes taking into account certain factors [see: for example A. v. B., 2013 BCSC 60 ]. Evidence in the Hearing Evidence Adduced by the Mother [ 61 ] At the time of the trial the Mother was approximately 56 years of age.

She testified that she and the Father married in 2000 and divorced in 2009. [ 62 ] She worked for several years for a landscaping and irrigation company and also ran a similar business as a proprietorship from 2011 until 2015 but thereafter it ceased operation because of a lack of profitability. She also ran a bookkeeping business as a sole proprietor from 2011 to 2014 but as I understand it mostly on a part time basis. She then worked for a printing company for less than a year. Most recently she worked as a bookkeeper with a firm of professional accountants for about a year and a half.

She says that she resigned from that position because of “bullying and harassment” in the workplace. She is now an administrative assistant with a safety supply company, only earning $14.50 per hour without benefits. [ 63 ] The Mother testified that when Child T moved into her residence in October 2017 at age 18, he was not financially independent. She described Child T as “a genius with a writing disability” who had completed high school courses but was unable to find employment.

He took a mentorship program to improve his work skills which ultimately led to him obtaining part time employment with a grocery store in March of 2018. This further led to full time employment by July of 2018. By then Child T moved out of her residence into his own residence. She testified that she was financially supporting Child T from November of 2017 through to and including February of 2018 when he turned 19 years of age but that the Father provided her with no child support for Child T.

She noted that the Father had not paid necessary school fees of some $300 for Child T which she paid in order to allow Child T to participate in the graduation walk up. [ 64 ] The Mother does accept that the Father made a payment to her through the Family Maintenance Enforcement Program (“FMEP”) in the amount of about $900 in around December 1, 2017. She indicated that she was not aware why the money was paid but

did concede in cross-examination that it might have been arrears amounts from the proposed increase in child support for Child C described in an email to her from the Father on February 10, 2018. [ 65 ] The Mother says that she requires continuing child support for Child C. Given Child C’s age, the fact that he lives with the Mother on a full time basis, is financially dependent upon her, and also remains in school on a full time basis. [ 66 ] The Mother has obviously spent a great deal of time sifting through the Father’s bank records and other financial disclosure especially for the years 2016 and 2017.

She complains about a lack of financial disclosure by way of bank account statements for 2018. [ 67 ] She has compiled a number of different tables which categorize the various expenses of the Father in 2016 and 2017. [ 68 ] She noted what she considers as inordinately low household expenses in certain categories.

She has made observations of what she considers to be a lifestyle beyond what should be available for the Father based upon his disclosed income, including family trips to Disneyland, acquisition of what she believes to be a new residence in Ladysmith, B.C., significant cash amounts flowing through the Father’s chequing account by way of deposits and withdrawals and the creation of and deposits to tax-free savings accounts for both the Father and S.W.

She noted a number of different ATM deposits suggesting that some of these were cash deposits from unreported income of the Father. [ 69 ] The Mother theorizes that the Father is and has been operating a landscaping business in addition to his regular employment and that he must be earning something in the range of some $10,000 per annum which he has failed to disclose to the court in connection with the applications for child support and which he has failed to report on his income tax returns. She further bases this theory on her past experience of operating her own landscaping business.

A significant cornerstone of this theory is her one time observation of the Father unloading a huge amount of grass clippings and garden waste at a dump, saying that such amount was far beyond what could reasonably be expected to have come from the Father’s own residence. It is also the Mother’s theory that undisclosed income is being run through a joint account held by the Father and S.W. The Mother contends that the details of that joint account have not been fully disclosed to the court in contravention of a court order. [ 70 ] The Mother testified that all of her financial disclosure has been accurate.

She testified that in 2015 she earned some unreported revenue but that she was in a net loss position after business expenses. I note parenthetically that the Mother apparently did disclose her business income and expenses in her 2015 T1 General Tax Return that forms part of the documentary evidence. In the Statement of Business or Professional Activities for a “landscaping/ bookkeeping business” she disclosed gross business income of $3,087.50 and reported business expenses of $3,035.40 for a net income from those activities of $52.10 that forms part of her Line 150 income.

I further note that for each year the Mother ran her proprietorship she claimed her business expenses. Evidence Adduced on Behalf of the Father [ 71 ] Evidence was adduced on behalf of the Father from two witnesses, namely S.W. and the Father on his own behalf. Evidence of S.W. [ 72 ] S.W. confirmed the background of the relationship and that she has shared with the Father. She confirmed the on-again off- again nature of that relationship and the fact that at various times they have broken up and then reconciled.

She attributes part of that to the fact that her government jobs require her to move every year to year and a half. [ 73 ] The Father and S.W. married in April 2018. In her evidence she stated that up until that point, their financial affairs were not intertwined and that they maintained their own financial independence. They first purchased the Duncan residence together in 2009 and were both on title for about a year at which point the Father purchased her interest in the residence because of a separation in their relationship. She never went back on title during any subsequent period of reconciliation.

During the various times that they did reside together they maintained a joint bank account into which they each automatically deposited certain equal amounts of money from their own individual bank accounts. The joint account funds were then used to pay mortgage payments, utilities and groceries. Their last joint bank account was closed in December of 2017 following the sale of the Duncan residence and their pending move to the Okanagan. [ 74 ] She has a 16-year-old son who presently resides with his own father. She pays child support for that son.

Based upon the Father’s 2016 income tax return filing as being in a common law relationship, her 2016 income is disclosed as being approximately $45,668. [ 75 ] During the periods of time that she and the Father have cohabited, she has assisted him in filing his annual income tax returns on several occasions. She did so in 2017 using the electronic filing programs available through the tax preparing service of H&R Block.

She testified that the documentation that has been provided for 2016 and 2017 tax years as part of the Father’s disclosure obligations are complete because of the fact that those filings having been completed online. [ 76 ] Accordingly, the schedules that are commonly associated with earlier forms of tax return filings do not specifically appear but she says the information that is commonly contained in the schedules has been disclosed but it is in a

summary form. As I understand it portions of the summaries have been obtained from the H&R Block office and the “Proof of Income Statement (option “C”)” have been obtained online from the Father’s Canada Revenue Agency “My Account”. She testified that what she and the Father were able to view online and obtain from CRA is called a “Proof of Income Statement”. This she says replaces and provides the same information as contained in a completed T1 General Return that has been filed.

She referred to the CRA website information in the documentary Exhibit 1 that describes that CRA can provide the taxpayer with a: …proof of income statement (or an option “C” print), which is a simple generic version of your tax assessment. This document summarizes your income and deductions for a specific tax year. [ 77 ] That same document indicates that it is possible, by way of a mobile app or by calling CRA’s automated Tax Information Phone Service, a request can be made to have CRA mail a proof of income statement, but notes it could take up to ten business days to receive

the “proof of income statement (option “C” print)”.

It further notes that the mailed version is titled “Income Tax Return Information” and the online version titled “Notice of Assessment” look different but both contain the same information to validate income and are both “official CRA documents that can prove your income for a specific tax year”. [ 78 ] She testified that both she and the Father have been subject to several CRA reviews of their respective filed income tax returns over the past several years because of changes in their personal relationship residence status and claims for eligible dependents and for child tax benefits.

She said that she has had seven reviews from October 2011 to August 2016 and that the Father has had 12 reviews from May 2013 to August 2016. Based upon the Exhibit 1 documentary evidence, the Father was only reassessed once and that was for the 2013 taxation year at which time his claim was disallowed for the federal and/or British Columbia amount for an eligible dependent.

However that reassessment did not change the Father’s Line 150 income. [ 79 ] She adamantly denied the suggestion made by the Mother in cross-examination that she and the Father were “manipulating” their relationship status in their CRA income tax filings and further denied the various suggestion made by the Mother that there were intentional inaccurate filings or omissions on their CRA income returns. S.W. stated that they took and followed advice from their tax advisors prior to completing those filings. Evidence of the Father [ 80 ] The Father is approximately 46 years old.

He has completed courses such that he is an apprentice horticulturalist. He had stable unionized employment with a local golf course as a greens keeper from June of 2007 until March of 2017, which was usually year round work but he was subject to potential lay off each year for a brief period of time depending upon weather. He resigned that golf course position in March of 2017 whereupon he commenced working for a local municipality in their parks department.

That unionized position continued until December 22, 2017 at which point he was subject to a seasonal layoff and received Employment Insurance until April 12, 2018. [ 81 ] Thereafter he obtained employment in the parks department of a regional district located in the Okanagan. That job is fulltime and pays $26.07 per hour but it is seasonal and subject to an anticipated layoff late in October of 2018 following approximately seven months of work from April 2018, at which point he may be required to once again go onto Employment Insurance until he is recalled, likely in the following February or March of 2019.

I surmise that he is anticipating that in future years he will have about nine or ten months of work each year in this new job. He does not have medical and dental benefits at this time but he is covered under S.W.’s plan.

Child C is not covered by those benefits because he does not live with S.W. and the Father. [ 82 ] The Father’s evidence is that his income tax returns, which have been filed and disclosed in this litigation, are all complete and accurate as is the other financial disclosure that he has provided. [ 83 ] He strenuously denies the Mother’s suggestion that he is earning undisclosed income from a business that he has been running on the side and “off the books” and denies he is failing to report any income on his income tax return.

Accordingly he specifically stated in his viva voce that he has not been “moonlighting” in addition to his full time employment. However, in his sworn affidavit filed June 18, 2018, he did disclose that he received an amount of some $1,100-$1,500 during the 2016 taxation year. In his affidavit he stated in addition to his work at the golf course that: On occasion I helped out family and close friends with yard work or hauling items to the dump sometimes they gave me money for gasoline or paid me back for materials or my time. I received between $1,100 - $1,500.

I do not operated a gardening or landscaping business. [ 84 ] In his viva voce evidence, he stated that these disclosed amounts also included gifts from his parents for performing certain tasks for them but not in anticipation of receiving any payment.

He described that his parents have been generous and supportive over the years, including paying for family vacations, including the trip to Disneyland and most recently paying for commercial driving lessons to enhance his employment prospects. [ 85 ] He was unable to provide an allocation of what portion of these disclosed receipts were gifts, or what portions were reimbursement for expenses and materials he had incurred on behalf of the payors or what portion was payment for his time and services. He again emphasized he was not operating a business and did not have a business license.

He further confirmed that he did not disclose any of these proceeds nor deduct any expense for these activities on his income tax return. [ 86 ] In cross-examination, the Father was taken through his bank statement for 2016 and 2017 which he indicated were true and complete. For the most part he was able to provide an adequate explanation for most deposits and withdrawals about which he was questioned. In many instances his documents contained hand written explanatory notations which he said were accurate.

He did concede that there were some relatively small deposits, the source of which he could not recall nor could he recall the reason for some of the withdrawals, likely due to the passage of time. He confirmed that S.W.’s mother had lived with them for a period of time in 2016 and she had from time to time made a relatively small contribution to household expenses which he did not declare as rental income. [ 87 ] He stated that he did not provide his 2018 bank statements because it was not part of any of the disclosure orders that were made by the court.

Similarly he did not provide copies of any joint accounts because such accounts were not part of any disclosure order. [ 88 ] The Father testified that he netted approximately $74,861 from the sale of his Duncan residence, which was his principal residence for income tax purposes. Of that amount he stated that he has retained approximately $20,000 which is put into a tax-free savings account.

He also made an ex gratia payment of $20,000 to S.W. because they were planning on reconciling and he thought that amount was due to her because of the fact they have lived on and off together for some seven years in that residence and at certain times she had been making payments towards that residence. She put that money into a tax-free savings account. However, he lost $10,000 of these sale proceeds because he forfeited a deposit on a subsequent failed real estate purchase in Ladysmith. He used the balance of the sale proceeds to pay down his debt.

[89] In 2017, the Father had withdrawn the amount of $8,604.87 from his RRSP, which was intended to bring down his debt toincome ratio in anticipation of completing the ultimately failed new house purchase in Ladysmith. He used approximately $6,000 ofthose RRSP proceeds. Initially $3,500 was used to pay for his commercial driving lessons which amount ultimately was covered by hisparent’s gift to the amount of $3,000. As I understand eventually the entire amount of approximately $6,000 was used for his debtreduction.

I further understand that the balance of the RRSP withdrawal was held back at source by the financial institution for incometax remittances. [90] He presently has drawn $12,000 down on an $18,000 line of credit attached to his banking arrangements with his charteredbank. [91] The Father and S.W. are presently renting their accommodation in the Okanagan Valley. Their hope is to eventually purchase aresidence. [92] He confirmed that neither he nor the Mother complied with the original Annual Financial Disclosure Order for many years andlikely not after 2011.

He was not receiving her tax and financial information nor did he request it. He did not provide his tax andfinancial information to her nor did she request it. [93] It is the Father’s evidence that he has since complied with all of the financial disclosure orders that have been made andspecifically with the December 6, 2017 Order, the December 20, 2017, the January 31, 2018 Order, the May 9, 2018 Order and the June27, 2018 Order.

As I understand his evidence there were some technical problems encountered when he attempted to send some of hisfinancial disclosure to the Mother online and the emails failed to be delivered. [94] Based upon the documentary evidence before the court and the viva voce evidence of the Father, in 2017 he had employmentincome from his two employers totalling $55,891.77 and RRSP income of $8,604.87 for total Line 150 income of $64,496.64 prior toany adjustments permissible under the Federal Child Support Guidelines and in particular under

Schedule III. [95] On February 10, 2018, the Father emailed the Mother and indicated that he wanted to pay her child support for the Child Cbased upon his 2016 income commencing December 31, 2017. He stated that his 2016 income amount was $47,617 and that equated tomonthly child support payments of $447.43 per month. He included a form of consent order setting out the terms of the child supportpayment which he proposed to file and then to provide it to FMEP. The Mother refused to sign the form of the consent order.

TheFather testified that he then brought this issue before the court on May 9, 2018 at which time the May 9, 2018 Order was made includinga “without prejudice” provision requiring the Father to pay the Mother monthly child support for Child C of $448 commencing May 1,2018 and based upon a gross annual income figure of $47,600. [96] When asked in cross-examination why he did not use an amount closer to his actual income in 2017 for the increased childsupport payments as contained in the May 9, 2018 Order, rather than the much lower 2016 annual income figure, he conceded that it wasan error on his part and that higher income amount should have been used which would have resulted in a higher monthly child supportpayment.

He further stated that he only offered to pay child support for Child C and not for Child T because he had been supportingChild T without any contribution from the Mother for some six and a half years, that being prior to the sale of his Duncan residence andthe Child T’s decision to move back to his Mother’s residence in October of 2017. The Father further testified that Child T was about toturn 19 and was going to be employed hence he did not think it necessary to pay child support for Child T.

Burden of Proof [97] In a civil case, the burden of proof rests with a claimant to prove its case on a balance of probabilities. The Supreme Court ofCanada stated in F.H. v. McDougall 2008 SCC 53 , [2008] 3 S.C.R. 41, at paragraph 49: There is only one standard of proof in a civil case and that is proof on a balance of probabilities.

One legal rule applies in all cases andthat is that the evidence must be scrutinized with care by the trial judge in deciding whether it is more likely than not that an allegedevent has occurred. [98] This means that it is necessary for a party asserting a particular fact to produce admissible evidence which tends to make it morelikely than not that what is asserted is true. For evidence to be admissible it must be relevant to a material issue before the court and itmust not offend any rule of evidence.

Financial Disclosure [99] In the first instance, the Father bears the evidentiary burden to show that he has complied with his legal obligation to makedisclosure both in accordance with the FLA and in connection with the various court orders that have been made in these proceedings.

Logically he bears that burden because he has the information within his control and his knowledge to make that disclosure. [100] Section 5(1) of the Family Law Act legislates a duty in a family law dispute for each party to provide full and true information inthe course of that family law dispute to the other party. [101] In these proceedings a number of financial disclosure orders have been made by the court. The initial and overarching order wasthe Annual Financial Disclosure Order contained within the 2009 Consent Order.

The Timing of the Disclosure by the Father [102] The evidence discloses that there was a significant period of time where neither party took active steps to either comply with theAnnual Financial Disclosure Order or to seek compliance from the other party. Once the Mother filed her November 20, 2017Application and her Notice of Motion on that same date then the Mother pressed for and did receive disclosure over the course of severalcourt appearances.

[103] On the whole of the evidence, I accept that the Father has complied with the disclosure requirements of section 5(1) of theFamily Law Act and with the various orders of disclosure made in these proceedings. [104] The Mother filed her November 20, 2017 Application and the Notice of Motion as the Father was in the process of relocating tothe Okanagan Valley. While this is not an excuse for the Father failing to appear on December 6, 2017, it does provide some context.

That failure resulted in the issuance of the “show cause” summons and the Father’s personal appearance in court on December 20, 2017,which necessitated a lengthy trip from the interior of British Columbia to Vancouver Island.

The Father’s personal appearance wasordered once again on June 27, 2018 substantially based on the Mother’s allegations about a continuing lack of disclosure by the Father. [105] Having looked at the documentary evidence and the court file, from a time deadline perspective there appears to be substantialcompliance with the court orders but not necessarily perfect compliance by the Father, once the matter was back before the courtpursuant to the Mother’s November 20, 2017 Application and Notice of Motion.

Part of this less than perfect compliance wascontributed to by the fact, as I understand it, that in December of 2017, the Father was still being reviewed by CRA for earlier tax yearfilings. The Father made satisfactory disclosure of what I accept was the available documents from his online filings with CRA throughthe tax filing services online program.

While it is arguable that what was produced may not meet the full particularized requirements ofthe Annual Disclosure Order, I must be mindful that times have changed both in the real world and also in the world of income tax filingssince the making of the Annual Disclosure Order. Did the Father make full and true disclosure? [106] I am satisfied that the Father made financial disclosure as ordered by the court. It is correct that he did not provide his completebank statements for 2018 or bank statements for his joint account with S.W. However, the disclosure of those statements was neverspecifically ordered.

Based upon the orders made at the June 27, 2018 court appearance, it was the Father’s obligation to provide a listof all of the Father’s financial accounts, including joint accounts with S.W. He complied with that order. It was then left with theMother to file an affidavit and to raise the issue and the reasons for further disclosure of the Father’s records for those accounts,including joint accounts, with the judge at the Pre-Trial Conference.

This of course did not occur. [107] In my view, as it turned out during the course of the trial it may have been useful, as much for the Father as for the Mother, forthat disclosure to have been made and thus placed before the court but again it was not sought and it was not ordered. [108] On the whole of the evidence that I accept, as to the question of whether the Father has made full and true disclosure, both inaccordance with his statutory duty and in compliance with the various court orders made in these proceedings, I have concluded that theanswer is yes. [109] Given that the Father’s filed income tax returns were all reviewed and substantially assessed by CRA as filed, the reasonableconclusion is that the Father’s returns met the scrutiny and approval of CRA. [110] Given that the Father has been subject to a multitude of CRA reviews of his T1 income tax returns for several years, I find thatthe Father had a further pressing incentive, beyond his statutory obligations under the Income Tax Act, to file his income tax returnsaccurately and completely.

A full investigation or an audit by CRA officials looking for evidence of tax evasion and with the potentialof resulting charges and sanctions are not a welcome prospect for any taxpayer and thus contribute to proper self-reporting of income bythe taxpayer. [111] There is nothing before the court to suggest that the Father has engaged in that type of untoward and illegal conduct.

Analysis of the Specific Issue: Has the Father failed to fully disclose all of his income to the Mother and to the court? [112] The findings above about the Father having made full and true disclosure help inform the decision I have reached with respect tothe Specific Issue that is described above. [113] What may flow from a failure of the Father to provide income information when he is under a legal obligation to do so is for thecourt to impute such amount of income to the Father as it considers appropriate in the circumstances. [see Federal Child SupportGuidelines

section 19 (f)]. That is what the Mother seeks from the court in this case and in a very significant amount of some $10,000per annum. [114] In C.M. v. V.M., [2016] B.C.J. No. 2425, Mr. Justice L.W. Bernard of our Supreme Court had to deal with the question ofwhether life insurance premiums on the payors life were reasonable business deductions from the payor’s income for child supportpurposes. In paragraphs 38 to 40, Bernard J. examined and followed the reasoning in Sobiegraj v.

Sobiegraj, 2014 ONSC 2030regarding the shifting onus between the payee and payor as it relates to imputing income for support purposes, and the underlyingrationale for it. At paragraph 39, reference is made to following analysis in Sobiegraj: o 64 The importance of disclosure lies largely because of onus of proof: while it is incumbent on the party seeking to impute incometo provide some sort of evidentiary basis for imputation of income, the evidence regarding income remains largely in the hands of theputative support payor. As stated in an

article authored by Harold Niman and Brittany Twiss: • In all cases the onus is on the party asking the court to impute income to establish sufficient grounds for their request. Thisis balanced against the payor's obligation to disclose all information that is relevant to their position, which includes full and frankdisclosure of all information required to properly assess their income, their income earning potential and efforts which they have made tomaximize their earnings. In the absence of full and frank disclosure the court is at liberty to draw a negative inference against the payor. o 65 This principle is codified by s. 19(1)(

f) of the Guidelines, and has been often confirmed by the courts: see L.(N.) v. P.(B.), (ON SC), [2000] O.J. No. 2574 (Ont. S.C.J.) at paragraph 25. o 66 This is especially important where an individual is self-employed and is deducting expenses from his income which may be

questionable. In those cases, the party seeking to impute income has an onus to provide an evidentiary foundation for imputation ofincome: see Bekkers v. Bekkers, 2008 CarswellOnt 173 (S.C.J.), Joy v. Mullins, [2010] O.J. No. 4202 (Ont. S.C.J.) and Szitzas v. Szitsas,2012 ONSC 1548 (Ont. S.C.J.) at paragraph 60. This was also confirmed by our Court of Appeal in Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (Ont. C.A.) where G.J.

Epstein J.A. stated at para. 28 that, "The onus is on the person requesting animputation of income to establish an evidentiary basis for such a finding." o 67 However, it appears that once the claimant establishes that evidentiary basis, the onus shifts to the responding party to provethat the expenses that are claimed are reasonable. Again, as noted above, this only makes sense as the proof of the reasonableness of theexpenses lies solely in the possession and control of the party claiming those deductions.

It would be unfair to put the entire burden onthe claimant to prove that the expenses were unreasonably claimed as the information lies in the hands of the putative support payor. Therefore, once the claimant has provided an evidentiary basis for the imputation of income, the responding party must provide someclarity as to whether the expenses can be reasonably deducted for child or spousal support purposes.

As stated by Chappell J. in Szitsas,supra at para. 60: • The party claiming the deductions as against income has an obligation to explain the reasons for the expenses and how theywere calculated, and must provide documentary proof of the expenses in an organized manner so that the court can make a properdetermination as to the reasonableness of the expense from the standpoint of the child support calculation.

This obligation flows fromthe party's general obligation to provide relevant information respecting their case, and to make full and frank disclosure of theirfinancial situation in the context of a child support case.

If the party seeking to deduct business expenses from income fails to providemeaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the courtin making the income determination. o 68 The onus on the party seeking the deduction to adequately explain the business deductions that he or she claims has beenconfirmed in several cases: see Bekkers v. Bekkers, supra, at paragraph 25, Joy v. Mullins, supra at paragraph 15 and Lo v. Lo, 2011ONSC 7663 (Ont. S.C.J.) at paragraphs 57 and 58. [115] Both C.M. v.

V.M. and Sobiegraj deal with significantly different fact patterns relating to imputing income than in the casebefore this court. However, in my view these cases provide an analytical approach that is applicable to this case and specifically are veryhelpful when assessing where the onus lies as between the Mother and Father on the Specific Issue. [116] To discharge the onus, the party bearing the onus must provide reasonable and relevant evidence which provide adequate proofof what they are asserting to be factually correct.

That evidence must be clear but neither party should expect that they or the other partymust adduce evidence that meets the scope, standard or has the characteristics of a forensic audit. Similarly the court is not to be placedin the position of completing something in the nature of its own forensic auditor or of ferreting out information from inadequate orincomplete financial disclosure. A broader brush approach is reasonable, rational and practical. As suggested in Riemersma v.Riemersma, 2013 BCSC 474, a "common sense approach" to analysing financial information and in assessing income is appropriate.

Iam mindful that this comment is made in the context of assessing corporate income for inclusion in a shareholder’s guideline income forsupport purposes. However in my view, such an approach is also useful in this type of case. [see also Hausmann v. Klukas [2009] B.C.J.No. 121, 2009 BCCA 32; see also Jeffery v. Motherwell, 2006 BCSC 140; see also H.E.D. v. B.W.P. 2017 B.C.J. No. 1998; 2017 BCPC292 at paragraphs 380 and 385, all in support of the use of these approaches.] [117] The Mother’s prevailing submission was that historically the Father had been hiding undeclared and undisclosed income.

In thecourse of the evidence, it was clear that there were a minimal number of unidentified transactions present in the Father’s 2016 and 2017bank account statements such that were not a significant number of cash transactions which would support the Mother’s theory. [118] It was then suggested by the Mother in her submissions that through a process of elimination, the undeclared and undisclosedincome must have been going into the Father’s joint account with S.W. [119] I note that portions of the suggested historical periods during which the undisclosed funds were allegedly being deposited into ajoint account cover times when the Father and the S.W. were estranged and not living together; hence the Father could have been at riskand would have had a lack of exclusive control over those funds in the joint account. [120] Given that the Father was in the process of relocating to the Okanagan Valley in the late fall and early winter of 2017 and wasrelying upon Employment Insurance over the winter months while settling into a new community, it seems quite unlikely he would beable to re-establish a profitable landscaping business in those winter months before starting his new employment, as seems to be thesuggestion of the Mother.

Undisclosed employment earnings during that period would have put the Father in significant potentialproblems with the Canada Employment Insurance Commission. There is no evidence that any of this has occurred. On that basis I amof the view that it is unlikely that there would be much difference in the nature and type of transactions in the Father’s 2018 bankaccount than were evident in the disclosed 2016 and 2017 bank account statements. [121] The Mother seeks to have the court impute income to the Father based upon an alleged failure to fully disclose income.

Therefore the Mother must establish some evidentiary basis. She can rely upon both circumstantial and direct evidence that is before thecourt and can seek the court to draw reasonable inferences based upon the evidence that has been presented. In this case, the inferenceshe seeks the court to draw is that there has been a failure on the part of the Father to fully disclose income.

If that evidentiary basis isestablished then the onus will shift to the Father to counter that suggestion and to demonstrate that full and true disclosure has beenmade. [122] In my view and even using a generous approach in assessing the whole of the evidence, the Mother has failed to establish anevidentiary basis to support her theory about the undeclared and undisclosed income and the Father’s lack of full and true disclosure.

What she has put forward is at best speculation and in some cases speculation that is based on a false foundation, such as the suggestionthat the Father had completed the purchase of the residence in Ladysmith from non-apparent resources or that the Father had paid for thefamily vacation from his own resources without any family assistance or her mere observation of his attendance at the dump with a largeload of garden refuge as proof of his operation of a side business or her suggestion that certain categories of his personal expenses were

inordinately low, notwithstanding that at certain times he shared expenses with S.W. [ 123 ] If I am wrong and the required evidentiary basis has been established by the Mother, then I am satisfied on the whole of the evidence that the Father has discharged his onus to counter the evidentiary basis and to prove that he has no undeclared nor undisclosed income. Should a Penalty be Imposed Upon the Father Pursuant to

Section 213 of the FLA ? [ 124 ] Section 213(2)(

d) of the FLA applies where a person fails to comply with an order for disclosure made under

section 212 of the FLA or a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules or provides information that is incomplete, false or misleading. [ 125 ] Under subsection 2(

d) the court may make an order requiring such a person to pay: (

i) the party for all or part of the expenses reasonably and necessarily incurred as a result of the nondisclosure or incomplete, false or misleading disclosure, including fees and expenses related to the family dispute resolution, (ii) an amount not exceeding $5,000 to or for the benefit of a party, spouse or child whose interests were affected by such actions, or (iii) a fine not exceeding $5,000. [ 126 ] Given the conclusions I have reached with respect to the Specific Issue and my finding from a time deadline perspective that the Father appears to be in substantial compliance with the court orders and further that the Father has made true and complete disclosure, the Mother’s application for the making of an order for a penalty against the Father is dismissed.

There will be an order accordingly. Determination of the Parents’ Income for Child Support Purposes [ 127 ] Since I have heard a significant amount of evidence and reviewed a significant amount of financial information in the course of this hearing, I am prepared to make findings with respect to the amount that the parties will be required to use as their guideline income in addressing any outstanding issues and matters that have not been dealt with in this hearing.

I have based these findings on all of the evidence before me and I have applied the provisions of the Guidelines . [ 128 ] For many years the Father has worked in union operations. Accordingly, he has paid union dues usually in the range of over $1,000 per annum. These amounts are deductible from his Line 150 income for determining his Federal Child Support Guideline s amount. This deduction of “employment expenses” is specified by the Federal Child Support Guidelines ,

Schedule III ,

section 1 (

g) which reference paragraph 8(1) (i) (iv) of the Income Tax Act and these union dues fall within the definition in that

section of the Income Tax Act as “dues and other expenses of performing duties”. Therefore his Federal Child Support Guidelines amounts have been adjusted below to reflect these amounts. [ 129 ] The Father has received proceeds into income in 2017 from his RRSP withdrawal which presumptively are to be included in his Guidelines income for that year, subject however to an order under

section 17 of the Guidelines . Under

section 17, the court may consider whether the calculation of income in accordance with

section 16 of the Guidelines would not be the fairest determination of that income for support payment purposes. In doing so, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. Such an order, for example, may lead to an averaging of the payor’s income over a number of years. The court may also determine that it would not be fair to include the RRSP amount in Guideline income. [ 130 ] As noted in McKenzie v.

Perestrelo , [2014] B.C.J. No. 734 , 2014 BCCA 161 (CanLll) at paragraph 82 , there is no clear rule about the inclusion of RRSP withdrawals in a payor’s Guidelines income; this is left to the discretion of the judge hearing the case [relying upon Burzminski v. Bursminski , 2010 SKCA 16 at paragraph 11] . In McKenzie , the court goes onto examine and summarize a number of guiding principles from the case law. Our Court of Appeal concludes at paragraph 83 as follows: 83 Thus it seems clear from the jurisprudence that there is a presumption that RRSP withdrawals should be included in income for the purpose o

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