T.D.L. v. H.K.T. Date:, 2013 BCPC 423

Citation: T.D.L. v. H.K.T. Date: 20130812 2013 BCPC 0423 File No: 01-0743 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: TDL APPLICANT AND: HKT RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing in person: TDL Appearing in person: HKT Place of Hearing: 100 Mile House , B.C.

Dates of Hearing: March 26, May 29 and July 9, 2013 Date of Judgment: August 12, 2013 [ 1 ] This is my Ruling concerning retroactive child support (and arrears of child support), ongoing child support and extraordinary expenses in the case of TDL, HKT and their three children: MAL, born [removed for publishing] , JML and JLL, born [removed for publishing] . [ 2 ] Evidence was heard on March 26 th , May 29 th and July 9 th , 2013. HKT and TDL testified. TDL also called witnesses DW and SH.

The parties are self-represented. [ 3 ] The following exhibits were filed: Exhibit 1 Bankbook Reconstruction Report (HKT) Exhibit 2 Binder of documents prepared by HKT and his partner, A. Exhibit 3 Notice of Assessment for 2012 (HKT) Exhibit 4 Family Maintenance Enforcement Program (FMEP) Account Statement Exhibit 5 Income Tax Summaries (2006-2012) (TDL) [ 4 ] I will also mark as Exhibit 6 “Package of Income Information” (HKT). [ 5 ] I will begin by outlining the Order I have decided I must make in this matter. After that I will explain my reasons for arriving at this conclusion.

Order UPON the Application to Change or Cancel an Order filed by HKT on August 15 th , 2012 (#16) and the Reply filed by TDL on November 13 th , 2012 (#17) coming on for Hearing on March 26 th , May 29 th and July 9 th , 2013, AND UPON hearing the evidence of HKT and TDL and other witnesses and reviewing the materials filed, AND UPON judgment being reserved, THIS COURT ORDERS: 1. This Order replaces paragraphs 5 to 9 of the Order of August 18 th , 2009 and the Order of March 17 th , 2010; 2.

HKT and TDL are the parents of MAL, born [omitted for publishing] , JML and JLL, both born [omitted for publishing] (“the children”); 3. Retroactive Child Support : HKT owes retroactive child support (“the arrears of child support”) for the children for the years 2005 to May 31 st , 2013 inclusive, totaling $33,142.13; 4.

Payment of Arrears of Child Support : HKT shall pay TDL the arrears of child support as soon as possible and, in any event, at a rate of not less than $50 bi-weekly (every 2 nd Friday) commencing on Friday, August 30 th , 2013 and continuing every second Friday thereafter until the arrears of child support are paid in full;

5. Ongoing Child Support : HKT is found to have an average annual income for Federal Child Support Guideline purposes of $46,077 and shall pay TDL the sum of $912/month in ongoing support for the children, by way of bi-weekly (every 2 nd Friday) payments of $420.92 each, commencing on Friday, August 30 th , 2013 and continuing every second Friday thereafter for so long as the children meet the definition of child in the B.C. Family Law Act and the Federal Child Support Guidelines; 6.

Summary re: Bi-weekly Payments : For greater clarity, HKT shall pay TDL the sum of $470.92 ($50 arrears + $420.92 ongoing child support) bi-weekly (every 2 nd Friday) commencing August 30 th , 2013 and continuing every second Friday thereafter; 7. Extraordinary Expenses : (

a) The court finds that orthodontic expenses and summer camp expenses incurred for the children are extraordinary expenses within the meaning of s. 9 of the Federal Child Support Guidelines (“the children’s extraordinary expenses”) ; (

b) The court finds that the average annual income of HKT is $46,077 and the average annual income of TDL is $24,000 and that HKT’s proportionate share of the parents’ total income is 66% and TDL’s proportionate share is 34%; (

c) The court orders that HKT shall pay 66% and TDL shall pay 34% of the children’s extraordinary expenses; (

d) Payment shall be made within 1 month of receiving a receipt or invoice for the children’s extraordinary expenses; 8. Financial Disclosure : HKT and TDL shall exchange their Notices of Assessment or Re-Assessment for the proceeding taxation year commencing on or before April 30 th , 2014 and continuing each year thereafter on or before April 30 th . Background [ 6 ] TDL and HKT were in a relationship from about 1998 to February, 2005. I gather that it was a somewhat “on again, off again” relationship – perhaps this was partly to do with their young ages at the time.

TDL was 18 and HKT was 23 when their first child, MAL, was born. Their twins, JLL and JML, followed 2 ½ years later when TDL was 21 and HKT was 26. [ 7 ] From February, 2005 to present they have remained separate and both have since formed new relationships which appear to be stable – TDL is with her partner K. HKT is with his partner A. [ 8 ] At the time of their separation the children stayed in the primary care of TDL with HKT seeing the children regularly depending on his work schedule.

The parties reached an informal agreement at that time that HKT would pay $250 every 2 weeks which they quickly agreed to increase to $300 every 2 weeks when, in March, 2005, HKT got a good paying and secure job with [omitted for publishing] in 100 Mile House. [ 9 ] The parties agree that this informal agreement concerning child support continued from February, 2005 until September, 2006. The only dispute regarding that time period is whether HKT did or did not stick with the informal agreement and make payments of $300 every second week.

With the assistance of his partner, A, who used to work at a bank, HKT has done a good job of pulling together information about what payments were made during that time period. [ 10 ] The 12 months between September, 2006 and September, 2007 is a second source of dispute between HKT and TDL. HKT paid no child support during this time and it is his recollection that the reason for that was because he had taken over primary care of the

girls during that period. TDL, on the other hand, says that it was only for about 3 months out of that time that he had the primary care of the girls – between mid-November, 2006 and mid-February, 2007. Both claim the support of other witnesses for their position although, in the end, it was only TDL who called additional witnesses (Ms. B and SH) on the point. [ 11 ] The two years between September, 2007 and September, 2009 are clear cut. The parties agree that the children were in the primary care of TDL throughout this time and they also agree that HKT paid no child support throughout this period.

The reason is because he objected to TDL having primary care of the children. He wanted to share in their care on a 50/50 basis as he had over the winter of 2006/2007. But, TDL would not agree to this and not paying child support was his way of protesting her decision. [ 12 ] HKT said that he did know that he should be paying something for the support of his children and that he asked TDL a few times to tell him what sum of money she needed but she would never commit to a number or she would say she needed to ask her partner, K. Two years went by and no support was paid.

Then, on January 27 th , 2009 TDL made an application in court for child support. HKT was served but did not file a Reply. [ 13 ] After various appearances – initially without HKT being present as he had not filed a Reply – the matter eventually came on for hearing on August 18 th , 2009 and at that time both parents were present and both testified. I made an Order concerning retroactive child support. The information provided to me at that time by HKT was much less detailed than he has provided this time around.

I ended up concluding that he owed a very large sum of retroactive child support (“back pay”): $46,588.00. [ 14 ] HKT essentially asks me to re-visit that decision. Although his current application (filed August 15 th , 2012 #16) might be seen as little more than an appeal of my August 18 th , 2009 decision, I have decided to hear the matter. In my view there is “evidence of a substantive nature” available now that was not presented to the court in 2009 and therefore, pursuant to s. 152(2)(

b) I can hear his application to change my earlier Order. [ 15 ] Continuing with my review of the background circumstances – HKT started paying child support again in September, 2009 in accordance with my Order of August 18 th , 2009 and he has paid quite faithfully ever since then.

Unfortunately, however, following the court Order has not resulted in a proper amount of child support being paid because HKT’s income has increased substantially over the 4 years since. [ 16 ] Also, HKT and TDL did start sharing the residency of their 3 children in various configurations beginning in September, 2009 and continuing to the present. So, that is an additional factor to consider when calculating child support, as is TDL’s income, which has also fluctuated over the years. [ 17 ] Between September, 2009 and June, 2010 the parents shared in the care of all 3 children on a 50/50 basis.

Then, starting in approximately July, 2010, MAL went to live full time with TDL while the twins continued to go back and forth between their parents on an equal basis. [ 18 ] This situation continued for 2 years, July, 2010 to June 30 th , 2012. [ 19 ] At that point, there was a further change when JML also decided she wanted to live full time with TDL, leaving only JLL still going back and forth between her parents on an equal basis. That has continued to be the situation from July, 2012 to present.

Two children live primarily with TDL and the parents share in the care of their 3 rd child. [ 20 ] I will now go through each of these 6 time periods and determine whether it would be appropriate to order retroactive child support for that period and if so, how much. Retroactive Child Support I: February 2005 to September, 2006

[ 21 ] The only issue during this time period is whether HKT did or did not make child support payments to TDL in accordance with their informal agreement of $300/bi-weekly.

Initially, TDL said that as far as she recalled HKT had made very few of these payments and, since the file was not registered with the FMEP until November of 2009 there was no clear proof. [ 22 ] HKT, with his partner’s assistance has produced bank documentation in the form of a “Bankbook Reconstruction Report” and photocopies of cheques (see Binder, Tab “2005”) which satisfies me that most of the payments HKT says were made were, in fact, made. [ 23 ] Unfortunately some of the payments were in cash and certain of the cheques could not be located so it is difficult with those particular items to know whether or not they were paid to TDL as child support. [ 24 ] I have decided to disallow a total of $1,503.87 ($703.87 in 2005 + $800.00 in 2006 = $1,503.87) of the sum HKT has claimed as having been paid during the time period, February, 2005 to September, 2006, inclusive. [ 25 ] Starting with the year 2005 (see Tab “2005” in the Binder), I will disallow the following sums for the following reasons: [ 26 ] April 25, 2005 – $100 – will not allow credit for this cash payment because the amount is different than the $300 agreed upon and it does not coincide with a bi-weekly

schedule that can be observed for most of the other payments (see calendar at Tab “2005”). [ 27 ] May 20, 2005 - $200 – the payment claimed is $500 which shows as a “cash withdrawal” on that day. I will only credit HKT with $300 towards child support as that was the agreed on amount; the remaining $200 will not be credited towards child support. [ 28 ] July 29, 2005 – $53.87 - according to the Bankbook Reconstruction Report a cheque cleared HKT’s account in the amount of $353.87 but no copy of it could be located so there is no proof who it was paid to. As it coincides more or less with the bi-weekly

schedule I have decided to allow the $300 amount that HKT routinely paid in child support at that time and dis-allow the sum over that. [ 29 ] August 2, 2005 – $325 - this is another cheque that cannot be located. I will not allow it because it does not coincide with the bi-weekly schedule. Also the amount is slightly different than the $300 apparently agreed to. [ 30 ] September 23, 2005 – $25 – I will credit HKT with $300, the agreed upon amount because it coincides with the bi-weekly

schedule but I will not allow the amount over that which is $25. [ 31 ]

Summary of payments claimed for 2005 but not allowed (deductions from HKT’s total): $100.00 $200.00 $ 53.87 $325.00 $ 25.00 $703.87 [ 32 ] HKT claims that he paid $7,423.87 in child support in 2005 (Tab “2005”). I will allow him credit for having paid $6,720.00 ($7,423.87 - $703.87 = $6,720.00). [ 33 ] Moving to 2006, specifically, January to September, 2006 inclusive, see Tab “2006” in the Binder. I will disallow the following

payments HKT claims credit for during this time period: [ 34 ] August 15, 2006 - $200 – I will not credit this “cash withdrawal” as child support because it is in a different amount than the $300 sum agreed to at that time and also the date does not match with the bi-weekly

schedule that had been agreed to (see calendar at Tab “2006”). [ 35 ] September 6, 2006 - $600 – I will not credit this “withdrawal” as child support because the amount is different than the $300 sum agreed to at that time ($600 is a multiple of $300, of course, but the actual amount of the “withdrawal” according to the Bankbook Reconstruction Report was $785 rather than $600 which is neither the agreed upon amount of $300 nor a multiple of same). Also, the date does not coincide with the bi-weekly

schedule that had been agreed to and largely followed during 2005 and 2006. [ 36 ]

Summary of payments claimed for 2006 but not allowed (deductions from HKT’s total): $200 $600 $800 [ 37 ] HKT claims that he paid $5,100.00 in child support in 2006 (Tab “2006”).

I will allow him credit for having paid $4,300.00 ($5,100 - $800 = $4,300.00). [ 38 ] The total amount of child support paid by HKT between February 1 st , 2005 and September 30 th , 2006 is $11,020.00 ($6,720 in 2005 + $4,300 in 2006 = $11,020.00). [ 39 ] As for the amount that HKT ought to have paid, I have decided for this early time period from February, 2005 to September, 2006 to calculate the amount of child support due based on the informal agreement which existed at that time between the parties ($300/bi-weekly), rather than re-calculating the amount based on HKT’s actual income at the time. [ 40 ] This is a different approach than I took in my 2009 decision.

However, after reviewing the leading case on retroactive child support, D.B.S. v. S.R.G. et. al., 2006 SCC 37 , I think it is the correct approach. The court says in that case that, as a general rule, retroactive child support should not go back longer than 3 years prior to formal notice being given to the payor parent. TDL gave that formal notice when she filed in court in 2009 so 3 years prior takes us back to 2006.

For this first period of separation therefore, from February, 2005 to September, 2006, I will not engage in any re-calculation of the amount of support due based on HKT’s income at the time but simply go with the agreement the parties themselves made during those early years which, as I have said, was for $300/bi- weekly. [ 41 ] Thus, the amount of support payable by HKT for the period February, 2005 to September 1, 2006 amounts to $12,300 calculated as follows: February 1, 2005 to January 31, 2006 = 26 bi-weekly periods February 1, 2006 to September 30, 2006 = 15 bi-weekly periods 41 bi-weekly periods [ 42 ] 41 bi-weekly periods x $300/bi-weekly = $12,300 total child support due between February 1, 2005 and September 30, 2006 according to the informal agreement between HKT and TDL. [ 43 ] The difference between the amount of child support due and the amount paid is $1,280 ($12,300 - $$11,020 = $1,280).

I therefore find that the amount of child support arrears for the time period February 1, 2005 to September 30 th , 2006 comes to $1,280.00 . II: September 1, 2006 to August 31, 2007

[ 44 ] The parties have different recollections about where the children were living during various times in this nearly 12 month period. [ 45 ] HKT’s belief is that the children came to live with him in late September, 2006 and remained primarily with him until about July, 2007 at which point he and TDL shared more or less equally in their care for the two summer months (July and August, 2007) and then they went back into TDL’s primary care in September, 2007.

He has a number of recollections which support this – such as getting a larger place in the 103 Mile to accommodate having the children, the fact that, after paying child support for a year and a half he suddenly stopped paying, calling on TDL’s father and step mother as well as his current partner, A, to provide child care over that winter, and so on. [ 46 ] TDL’s recollection is rather different. She believes that the children were primarily resident with HKT only between about November 18 th , 2006 and mid-February, 2007.

During this time she was without good accommodation and also had to have some surgery so she asked HKT to take the children. However, her recollection is that she took the children back into her primary care once she was able to get a place at the [omitted for publishing] Apartments in 100 Mile House and she called Ms. B and SH in support of her position.

Both ladies had provided child care for TDL during this time period and their impression was that the children were primarily resident with TDL at least from February or March, 2007 on. [ 47 ] The way I have decided to resolve this factual dispute is to find that the parents shared in the care of their three children on an equal basis for the months of September and October, 2006 and for the months of March through August, 2007.

The remainder of the time, November and December, 2006 and January and February, 2007, I find that the children were primarily resident with HKT. [ 48 ] For the 8 months out of 12 where the parents shared in the care of the children I will use the simple “set-off” approach to calculating the amount of child support due. This involves taking the difference between what the higher income parent (HKT in this case) would pay for 3 children per month and subtracting what the lower income parent (TDL) would pay for 3 children.

The difference or “set off” is a rough guide to the amount of child support payable by the higher income parent to the lower income parent when care of the children is shared equally. [ 49 ]

Section 9 of the Federal Child Support Guidelines and a decision from the Supreme Court of Canada, Contino v. Leonelli- Contino, 2005 SCC 63 actually require a more complex and nuanced analysis in shared custody situations than the simple “set-off”. However, neither of these self-represented parents put the kind of evidence necessary to make such an analysis before the court. [ 50 ] HKT’s income has generally been a good deal higher than TDL’s.

So, even though I have found that for 8 months out of this 12 month period the parents shared equally in the care of the children, and for the other 4 months HKT was the primary resident parent, HKT still ends up owing TDL some amount of child support at the end of the 12 months. September and October, 2006 – shared care: [ 51 ] HKT’s income in 2006 was $42,873 which equates to a child support payment for 3 children of $863/month.

TDL’s income in 2006 was $15,368 which equates to a child support payment for 3 children of $251. $863 - $251 = $612/month is the “set off” payable by HKT to TDL for the months of September and October, 2006 during which, I have found, the parents were sharing more or less equally in the care of their three children: 2 months x $612/month = $1,224 payable by HKT to TDL. November and December, 2006 in the care of HKT: [ 52 ] I have found that the children were primarily resident with HKT during these months. That means child support was payable by TDL to HKT at the level appropriate to her income.

Her income in 2006 was $15,368 which equates to a payment for 3 children of $251/month x 2 months = $502 payable by TDL to HKT. January and February, 2007 in the care of HKT: [ 53 ] TDL’s income in 2007 was $21,534 which equates to a payment for 3 children of $470/month x 2 months = $940 payable by

TDL to HKT. March to August, 2007 inclusive – shared care: [ 54 ] The “set-off” is once again appropriate. HKT’s income in 2007 was $53,015 which equates to a payment for 3 children of $1,056/month. TDL’s income in 2007 was $21,534 which equates to a payment for 3 children of $470/month. The difference is $586/month x 6 months = $3,516 payable by HKT to TDL. [ 55 ]

Summary: September, 2006 to August, 2007 Payable by HKT to TDL: $1,224 $3,516 $4,740 $4,740 - Payable by TDL to HKT: $ 502 $ 940 $1,442 $ 1,442 Balance of $3,298 payable by HKT to TDL III: September, 2007 to August 31, 2009 [ 56 ] During this two year period the children were principally resident with TDL. HKT wanted to share in their residence but she did not agree. He refused to pay child support in protest.

Retro-active child support is clearly payable at a rate appropriate to HKT’s income at the time. [ 57 ] HKT’s income in 2007 and 2008 was very similar and, for ease of calculation I will use the figure $53,000 for both years. By 2009 his income had dropped considerably due to the downturn in the forest industry. I will use the figure of $33,141 from his 2009 Notice of Assessment (see Tab “2009” in the Binder). September 1 to December 31, 2007: [ 58 ] An income of $53,000 equates with a child support payment of $1,056/month for 3 children. 4 months x $1,056/month = $4,224 payable by HKT to TDL.

January 1 to December 31, 2008: [ 59 ] 12 months x $1,056/month = $12,672 payable by HKT to TDL. January 1 to August 31, 2009: [ 60 ] An income of $33,100 equates to a child support payment of $681/month for 3 children. 8 months x $681/month = $5,448 payable by HKT to TDL.

[ 61 ]

Summary: September, 2007 to August 31, 2009 $4,224 + $12,672 + $5,448 = $22,344.00 payable by HKT to TDL. IV: September, 2009 to June, 2010 [ 62 ] There are several factors that affect the amount of child support payable during this time period. First, the parents shared in the care of their three children on a 50/50 basis during these 10 months.

Second, HKT started paying child support as of September, 2009 at the rate set out in my Order of August 18 th , 2009 which was $434/month on an estimated income of $20,488. (At the time of the hearing in August of 2009 HKT was laid off and receiving Employment Insurance.) [ 63 ] This estimate of HKT’s income proved to be inaccurate.

As noted, his tax return for 2009 later revealed an income of $31,141 for that year which equates with a payment of $681/month for the support of 3 children. [ 64 ] As the parents were sharing the care of their children equally during this period, child support will be calculated using a “set off”. [ 65 ] TDL’s total income in 2009 as revealed in her Notice of Assessment for that year was $25,979 which equates with a payment of $551/month. [ 66 ] The “set off” is $130/month ($681 - $551 = $130/month). 4 months x $130/month = $520 was payable by HKT to TDL for the time period September 1 st , 2009 to December 31 st , 2010. [ 67 ] In 2010 the “set off” figure changes because the parties’ incomes changed.

HKT’s income in 2010 is shown as $47,765 in his Notice of Reassessment (Tab “2010”) which equates with a child support payment of $953 for 3 children. TDL’s income in 2010 was $25,704 which equates with a child support payment of $547/month. The “set off” is $406/month ($953 - $547 = $406). 6 months (January 1 st to June 30 th , 2010) x $406/month = $2,436 payable by HKT to TDL.

Summary: September, 2009 to June, 2010 [ 68 ] In

summary, the amount of child support payable by HKT to TDL for the time period September 1 st , 2009 (when they began sharing in the care of the children) to June 30 th , 2010 (when MAL chose to stay full time with her mother) is $520 + $2,436 = $2,956 payable by HKT to TDL. [ 69 ] As noted, HKT was paying child support during this time. Between the date of my Order on August 18 th , 2009 and the end of that year HKT has recorded that he paid $2,000 (see Tab “2009”). I will accept that figure as it somewhat accords with the FMEP statement which starts as of November 16 th of that year.

In 2010, up to the 30 th of June, HKT paid 12 more payments of $250 each (see FMEP statement) or $3,000 (12 x $250). Thus, the total paid by HKT during this 10 month time period was $5,000 ($2,000 + $3,000). [ 70 ] It is clear that HKT overpaid during this 10 month period (September 1 st , 2009 to June 30 th , 2010) by $2,044 ($5,000 - $2,956 = $2,044). This amount must be subtracted from the final calculation of arrears of child support: ($2,044.00) V: July, 2010 to June 30 th , 2012 [ 71 ] During this 2 year period the care of the children was divided between the parents. Their oldest child, MAL, was living

primarily with TDL. Their twins, JLL and JML, were still moving back and forth between their parents on an approximately 50/50 basis. Both ss. 8 and 9 of the Guidelines apply.

I have decided to calculate child support on the basis of the amount payable by HKT for one child plus the “set off” amount as it concerns the twins. [ 72 ] HKT’s income in 2010 was $47,765 which equates with a payment of $436/month for 1 child (MAL) and $724/month for 2 children (JLL and JML). [ 73 ] TDL’s income in 2010 was $25,704 which equates with a payment of $402 for 2 children (JLL and JML). [ 74 ] The “set off” for the twins was $322/month ($724 - $402 = $322) payable by HKT to TDL. [ 75 ] Child support for MAL in 2010 was 6 months x $436/month = $2,616 payable by HKT to TDL. [ 76 ] Child support for JLL and JML in 2010 was 6 months x $322/month = $1,932 payable by HKT to TDL. [ 77 ] In 2011 HKT’s income was $50,004 which equates with a payment of $458/month for 1 child (MAL) and $758 for 2 children (JLL and JML). [ 78 ] In 2011 TDL’s income was $38,885 which equates with a payment of $596/month for 2 children (JLL and JML). [ 79 ] The “set off” for the twins was $162 ($758 - $596 = $162) payable by HKT to TDL. [ 80 ] Child support for MAL for 2011 was 12 months x $458/month = $5,496 payable by HKT to TDL. [ 81 ] Child support for JLL and JML in 2011 was 12 months x $162/month = $1,944 payable by HKT to TDL. [ 82 ] In 2012 HKT’s income was $53,200 which equates with a payment of $490/month for 1 child (MAL) and $807 for 2 children (JLL and JML). [ 83 ] In 2012 TDL’s income was $21,607 which equates with a payment of $345 for 2 children (JLL and JML). [ 84 ] The “set off” for the twins was $462 ($807 - $345 = $462) payable by HKT to TDL. [ 85 ] Child support for MAL for 6 months of 2012 was 6 months x $490/month = $2,940 payable by HKT to TDL. [ 86 ] Child support for JLL and JML for 6 months of 2012 was 6 months x $462 = $2,772 payable by HKT to TDL. [ 87 ] The total child support payable by HKT to TDL during this 2 year period between July 1 st , 2010 and June 30 th , 2012, when the care of their children was divided, amounts to $17,700, calculated as follows: 2010 for MAL $ 2,616 2010 for twins $ 1,932 2011 for MAL $ 5,496

2011 for twins $ 1,944 2012 for MAL $ 2,940 2012 for twins $ 2,772 $17,700 [ 88 ] The amount of child support paid by HKT during this 2 year period can be calculated from the FMEP statement. It reveals 12 payments of $250 each ($3,000) between July 1 st and December 31 st , 2010. In 2011 a total of $5,400 was paid. Between January 1 st and June 30 th , 2012 a total of $5,749.69 was paid. Thus the total already paid over this 2 year period is $14,149.69 ($3,000 + $5,400 + $5,749.69 = $14,149.69). [ 89 ] The difference between the amount due ($17,700) and the amount already paid ($14,149.69) is $3,550.31 .

This is the amount of arrears of child support or retroactive child support payable by HKT to TDL for the period between July 1 st , 2010 and June 30 th , 2012. VI: July 1 st , 2012 to May 31st, 2013 [ 90 ] In approximately June, 2012, JML chose to reside full time with her mother TDL. Thus, the situation since then has been that 2 of the children, MAL and JML, are primarily resident with TDL, and 1 of the children, JLL, is still moving back and forth between her parents on an approximately 50/50 basis.

Once again, both ss. 8 and 9 of the Guidelines apply. [ 91 ] I have decided to calculate child support for this most recent period on the basis of HKT paying TDL the amount for 2 children (MAL and JML) and calculating the “set off” for 1 child (JLL).

I can only do the calculation of arrears up to May 31 st of this year because the FMEP statement filed in evidence only goes up to that date and I have no evidence, other than this statement, about what sums HKT has been paying by way of child support during 2013. [ 92 ] Regarding the 6 months of 2012 from July 1 st to December 31 st , as noted, HKT’s income in 2012 was $53,200 which equates with a payment of $490/month for 1 child (JLL) and $807 for 2 children (MAL and JML). [ 93 ] In 2012, as noted TDL’s income was $21,607 which equates with a payment of $187 for 1 child (JLL). [ 94 ] The “set off” for JLL was $303 ($490 - $187 = $303) payable by HKT to TDL. [ 95 ] Child support for MAL and JML for the second 6 months of 2012 was 6 months x $807/month = $4,842 payable by HKT to TDL. [ 96 ] Child support for JLL for the second 6 months of 2012 was 6 months x $303 = $1,818 payable by HKT to TDL. [ 97 ] For the current year, 2013, I have only limited information about HKT’s income and no information about TDL’s income. [ 98 ] HKT testified that he left his employment with [omitted for publishing] about a year ago, in August, 2012.

My understanding from his evidence is that he left the job of his own choice because he wanted a change. He testified that he took a job with a smaller employer, a silviculture contractor. He knew that the work was seasonal but hoped to be able to get a job logging during the winter months, have spring break up off, and then do the silviculture work again in the summer months and earn a somewhat comparable income from these two jobs as he had earned from his one job at the mill. This plan did not work out during the past winter and HKT spent a long time on EI.

As a result, his income has once again dropped though I really have no clear indication of just what his income will end up being for 2013.

[ 99 ] I have decided to deal with this uncertainty by imputing to HKT an income of $46,077 for 2013 and future years, which represents the average of his varying incomes over the past 8 years: 2005 $ 35,730 2006 $ 42,873 2007 $ 53,015 2008 $ 52,889 2009 $ 33,141 2010 $ 47,765 2011 $ 50,004 2012 $ 53,200 $368,617 / 8 years = $46,077/year average income [ 100 ] I have also decided to impute to TDL an averaged income.

I have income information from her for the past 7 years, 2006 to 2012 and her average income is $24,000/year calculated as follows: 2006 $ 15,368 2007 $ 21,534 2008 $ 18,902 2009 $ 25,979 2010 $ 25,704 2011 $ 38,885 2012 $ 21,607 $167,979 / 7 years = $24,000/year average income [ 101 ] Returning then to the calculation of child support payable for 2013 - at an imputed income of $46,077 for 2013 HKT is required to pay $420/month for 1 child (JLL) and $698/month for 2 children (MAL and JML). [ 102 ] At an imputed income of $24,000 for 2013 TDL is required to pay $206/month for 1 child (JLL). [ 103 ] The “set off” for JLL is $214 ($420 - $206 = $214) payable by HKT to TDL. [ 104 ] Child support for MAL and JML for the 5 months of 2013 to May 31 st of this year is 5 months x $698/month = $3,490 payable by HKT to TDL. [ 105 ] Child support for JLL for the 5 months of 2013 to May 31 st of this year is 5 months x $214/month = $1,070 payable by HKT to TDL. [ 106 ] The total child support payable by HKT to TDL during this 11 month period between July 1 st , 2012 and May 31 st , 2013, is $11,220 calculated as follows: 2 nd half 2012 for MAL and JML $ 4,842 2 nd half 2012 for JLL $ 1,818 January to May 2013 for MAL and JML $ 3,490 January to May 2013 for JLL $ 1,070 $11,220 [ 107 ] The amount of child support paid by HKT between July 1 st , 2012 and December 31 st , 2012 was $3,500 according to the FMEP account statement.

In 2013 the amount paid as of May 28 th was $3,006.18. Thus, the total amount of child support HKT has already

paid between July 1 st , 2012 and May 31 st , 2013 is $6,506.18 ($3,500 + $3,006.18 = $6,506.18). [ 108 ] The difference between the amount due ($11,220) and the amount already paid ($6,506.18) is $4,713.82 . This is the amount of arrears of child support or retroactive child support payable by HKT to TDL for the period between July 1 st , 2012 and May 31 st , 2013. [ 109 ] Total Child Support Arrears to May 31 st , 2013: I. February 2005 to August 31 st , 2006 $ 1,280.00 II. September 1, 2006 to August 31, 2007 $ 3,298.00 III. September 1, 2007 to August 31, 2009 $22,344.00 IV.

September 1, 2009 to June 30, 2010 ($ 2,044.00) V. July 1, 2010 to June 30, 2012 $ 3,550.31 VI July 1, 2012 to May 31 st , 2013 $ 4,713.82 $33,142.13 [ 110 ] I order that HKT pay these child support arrears as soon as possible but, in any case, at a rate of not less than $50 every 2 weeks (“bi-weekly”) starting on August 30 th , 2013. I would have ordered that HKT pay a larger sum bi-weekly except for the fact that HKT will also have to pay over $400 bi-weekly in ongoing child support, plus a proportionate share of extraordinary expenses.

Clearly, if HKT is going to get these arrears paid off within a reasonable time he is going to have to increase his payments to something substantially higher than $50 bi-weekly I have ordered. Ongoing Child Support [ 111 ] The amount of ongoing child support paid by HKT must be addressed as it is clear that the existing Order from August 18 th , 2009, which was based on the assumption that HKT’s income is $20,488.00, is inaccurate and out of date. HKT’s income has been well above this in all years since, including in 2009. [ 112 ] As noted earlier, I have very little information about HKT’s current income.

HKT left his job at the mill a year ago and has spent a good deal of time in the last 12 months on EI. The full picture regarding his 2013 total income will not be known until he files his 2013 tax return in early 2014 and, in due course, receives his Notice of Assessment or Reassessment back from the Canada Revenue Agency. [ 113 ] As explained earlier I have decided to impute to HKT an average income of $46,077 for 2013 and for the years going forward from here.

This may prove to be a little high compared to HKT’s actual total income in 2013. (I note that the last time he was on EI for a length of time – in 2009 – HKT’s income proved to be $33,141 for the year.) However, I do not wish to make the mistake that I made in 2009 of underestimating HKT’s income. This would only result in yet a further application for retroactive support some years down the road which I know both HKT and TDL are anxious to avoid. [ 114 ] TDL’s income is also relevant as the parents continue to share in the care of one of their children, JLL.

For the reasons earlier discussed I will use an averaged figure for TDL as well, $24,000/year. [ 115 ] At an imputed income of $46,077 HKT is required to pay $420/month for 1 child (JLL) and $698/month for 2 children (MAL and JML). [ 116 ] At an imputed income of $24,000 TDL is required to pay $206/month for 1 child (JLL). [ 117 ] The “set off” for JLL is $214 ($420 - $206 = $214) and payable by HKT to TDL.

[ 118 ] Child support for MAL and JML is $698/month payable by HKT to TDL. [ 119 ] I order that HKT pay ongoing child support totaling $912/month ($214 + $698 = $912) to TDL for the support of the children by way of bi-weekly (every second Friday) payments of $420.92 commencing on August 30 th , 2013 and continuing every second Friday thereafter for so long as the children meet the definition of “child” in the Family Law Act of B.C. and the Federal Child Support Guidelines . [ 120 ] I also order that HKT and TDL exchange their Notices of Assessment or Re-Assessment annually, commencing on April 30 th , 2014 and continuing on April 30 th of each year thereafter. [ 121 ] The purpose of this term is to allow each parent to monitor the accuracy of the income figures I have used for each of them in this Order.

If the income figures continue to be approximately accurate then the parties may chose not to apply to change the Order in the future. However, if the average income figures I have used prove to be either substantially higher or lower than the actual incomes of the parties then the parties may wish to consult the Family Justice Counsellor for assistance and only if they cannot reach an agreement by that route will they need to bring the matter back to court.

Similarly, if there are further changes in the parenting time or residency of the children the parents should first seek the assistance of the Family Justice Counsellor to make changes to this Order to bring it in line, in a prompt way, with the changes in their lives. Extraordinary Expenses [ 122 ] The final issue that was raised in the course of this hearing is extraordinary expenses for the children for things like orthodontic treatment (‘braces’) and extracurricular activities such as summer camp. [ 123 ] The law says that those expenses are to be shared in proportion to the parent’s incomes.

See s. 9 of the Federal Child Support Guidelines. As I have said, I impute to HKT an income of $46,077 and to TDL an income of $24,000 for a total family income of $70,077. HKT’s proportion of that total family income is 66%. TDL’s proportion is 34%. [ 124 ] The orthodontic expense for the girls is expected to be significant. It would obviously be enormously helpful to HKT and TDL if one or other of them had access to extended health benefits through an employer.

Part of the cost of orthodontic treatment would be paid through such a plan and then the parents would only have the remainder to divide up between them proportionately. Unfortunately, at the present time neither parent has access to such a plan. [ 125 ] I order that the parents share in the payment of orthodontic and summer camp expenses in proportion to their income which in the case of HKT is 66% and in the case of TDL is 34%. Conclusion [ 126 ] My Order is set out at the beginning of this judgment. _____________________________ E. L. Bayliff Provincial Court Judge