K.M. v. C.Z. Date:, 2012 BCPC 105

Citation: K.M. v. C.Z. Date: 20120413 2012 BCPC 0105 File No: 0519242 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: K. M. APPLICANT AND: C. Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N.N. PHILLIPS Appearing on their own behalf: C. Z. Appearing on their own behalf: K.M. Place of Hearing: Vancouver , B.C.

Date of Hearing: March 22, 2012 Date of Judgment: April 13, 2012 Background [ 1 ] K.M. filed an application on March 3, 2011 to change an order of the Court made October 21, 2008 relating to the payment of child support. Mr. M. asks that the amount he was required to pay be reduced to reflect a change in his income. He also asks the Court to find that the basis upon which his income was imputed for the October 2008 order was incorrect and that arrears should be reduced accordingly. [ 2 ] Ms.

Z. opposes a reduction and asks that the father’s income be set at a higher rate than what the father purports his foster parenting income to be. The mother also seeks an order for extraordinary expenses relating to daycare, medical and dental expenses for the child of the relationship. The Evidence at this Hearing [ 3 ] The parties in this case have been to court many times as they have attempted to address matters of access and child support. The

parties, who never cohabited, had a son together, I.T.Z., born October 29, 2003. On January 9, 2012, I issued reasons for judgment following a hearing where the father sought to vary access. Regrettably, matters relating to child support could not be dealt with then due to lack of court time. [ 4 ] Mr. M. told the Court he began working as a foster parent months before the last order relating to child support was made by Judge Meyers on October 21, 2008. Mr.

M. told the Court that since 2008 he has typically had three teenage boys in his foster care but there have been times when the number of children has been down to two. Following a move to a smaller, more affordable rental home, the father recently started to care for only one teenage boy. The father told the Court he expects to have the same boy in his home until the teen reaches the age of majority (in about two more years).

At the recent access hearing, I found that the change in the type and number of youths placed with the father was significant and ordered a variation of access. [ 5 ] At a hearing in 2008, Judge Meyers was called upon to carefully examine the father’s income from his new work as a foster parent. The father was represented by counsel at that hearing and had also obtained professional accounting advice relating to his new business. As set out at paragraph 9 of Judge Meyers October 2008 Reasons for Judgment, the father’s gross annual income from his foster parenting work was said to be $120,216.

The gross income level was apparently based on the father having three high-needs teenage boys in his care at all times and monthly revenue of $10,018. Mr. M. filed a projected annual budget at the 2008 hearing in which he forecast a net monthly income of $3,328 (annualized to $27,836). In other words, Mr. M. put forward that he would be operating his foster care business with a 77% overhead. [ 6 ] At paragraph 27 of his decision, Judge Meyers stated: …It is not possible for me to go through all his expenses and try to assess which ones are reasonable and which ones are not.

Furthermore, common sense and experience tells me that businesses which are run successfully, do not operate at a 77% overhead. … This net income is just above the poverty line and surely, the Ministry would have a difficult time recruiting anyone to work that hard and that intensely, in order to earn a tad over the poverty line income levels. Mr. M. and his accountant’s projections, seem, in my view, to have over-estimated the anticipated expenses. If I am wrong in that, Mr. M. will just have to “sharpen his pencil” and cut down on his expenses. [ 7 ] Judge Meyers concluded as follows (at paragraphs 29-30): Mr.

M.’s responsibility to his own child must come first and before those children whom he takes on, as part of a business enterprise. He will have to find a way to fulfill his responsibilities to the children in his care, but not at the expense of his own child’s financial welfare. In an attempt to be fair and not just arbitrary, what I propose to do is to impute Mr. M.’s income to be $40,000 for the year starting August 1, 2008 and ending August 1, 2009.

This figure represents a blending of an anticipated reduced overhead of 67% instead of 77% (for the first year of operation) and the free rent component of his income. I would expect that Mr. M.’s first year of operation will be a learning year and that he should be able to further reduce his overhead in the years that follow as he gains more and more experience. [ 8 ] Based on an income of $40,000, Judge Meyers ordered the father to pay monthly child support of $446.

The Court ordered a review of child support and extraordinary expenses be set after August 2009. [ 9 ] At the hearing before me, the father included with his financial materials one page summaries titled “Business Revenue and Expenses” for each calendar year from 2008 to 2011. The father also attached copies of payment documents (“invoices”) for his foster work for the same years, although it was apparent that a small number of the underlying payment documents were missing.

Additionally, the father provided copies of bank statements showing deposits and withdrawals from his account and copies of some of his cheques. [ 10 ] The father also provided the Court with copies of Payment Schedules with the Vancouver Aboriginal Child and Family Services Society (VACFASS) for the same years setting out payment information. The payment schedules were apparently subject to regular changes depending on the number of children in the father’s care and other factors. The schedules detail payment for the performance of services under the agreement and state: …the Caregiver(

s) will receive the payments described below from VACFSS [sic] during the term of the Agreement. Fixed monthly rates are payable in the current month. Partial months are prorated on the basis of a 30-day month. Per diem rates are payable in arrears for each day a client is in the home. [ 11 ] Unfortunately, a

summary from VACFASS of all the monies paid to Mr. M. since October 2008 was not produced. A

summary document would have been conclusive evidence of the foster care income. No reason was given for this lack of documentation even though the father had been reminded repeatedly by the Court of the need to produce financial materials. [ 12 ] In 2011, the father began to work as a caretaker for a property management company. According to his T4 slip, he received $18,150 for that work in 2011. It is expected the father will continue to work full-time as a caretaker in 2012 and will receive $36,000 for this work in 2012. The father also told the Court he has returned to school to study counseling and that he hopes to develop new job skills.

[ 13 ] The mother took considerable issue with the father’s financial documentation. Of particular concern was the lack of a complete package of materials relating to payments received for the foster care work and the failure to produce copies of the underlying cheques, bills, and expense information relating to the operating expenses for the foster home.

The mother urged the Court to rely on the VACFASS payment schedules to calculate the father’s annual income. [ 14 ] I have reviewed all of the financial materials provided to the Court relating to the father’s income from foster care in order to try to determine what income he has made since October 2008. I have set out below four different ways the father’s annual income might be assessed based on the evidence at this hearing.

Revenue as per VACFASS Invoices for Payment 2008 = $77,954.80 (partial year) 2009 = $94,359.22 2010 = $84,502.13 2011 = $61,781.22 2012 = $45,815.40 (projected) VACFASS Revenue as Claimed by Dad in his testimony and documents 2008 = $81,704.80 (includes VACFASS and other income) 2009 = $93,859.62 2010 = $85,337.13 (including $752 labour) 2011 = $61,781.22 2012 = $45,815.40 Gross Revenue Based on VACFASS Payment Schedules To determine income based on the payment schedules, I examined each of the payment schedules and determined gross monthly pay in accordance with every amended contract and totaled the monthly revenue for the period of time during which the variation was in effect.

Some of the schedules were in place for only a month or two and others were in place for about a year. The father did not provide a complete package of the payment schedules with VACFASS, but a good picture of his foster care revenue can be seen by tallying up the known payments. 2008 = $74,780 (partial year) 2009 = $120,205 2010 = $105,604 2011 = $69,162 2012 = $45,816 (projected income) Ms. Z.’s Calculation of the Father’s VACFASS Income Ms. Z. submitted that there are a number of ways to calculate the father’s foster parent income.

The annual incomes set out below are from one of the calculations the mother made to determine the father’s income. These amounts are based primarily on the invoices for payments made, although additional credits and advances are included. 2008 = $80,954.80 2009 = $93,859.22 2010 = $80,757.13 2011 = $54,445.32 2012 = $45,815.40 [ 15 ] The Court also heard evidence from the mother regarding her own income. The mother works as a school counsellor and has worked from time-to-time as a mentor. In 2008 the mother’s employment income was $76,316 and in 2009 it was $70,127.

Over the last two years the mother’s income has been lower due to the fact she felt it necessary to spend more time attending to her son’s unique needs (as set out in my reasons for judgment on the matter of access dated January 9, 2012). The mother also just completed her master degree in education and had reduced her work hours to attend to her academic studies. [ 16 ] The mother told the Court she is currently working as a .8 FTE and earning 80% of the maximum salary of $79,891 on the school board’s pay grid, namely $63,912.00. A paystub from the end of December 2011 shows she also received about $2,500

gross income from her work as a mentor in 2011. The mother told the Court she had yet to receive her 2011 T4s by the time of the hearing of this matter on March 22, 2012. [ 17 ] The mother gave evidence about her personal expenses and those of the child. She asked the Court to cross-reference what she described as her relatively modest expenses with those of Mr. M. for his foster children. The mother noted there are activities the father provides for the foster children which she cannot afford to provide for I.

Although the mother has paid for camps and other extracurricular activities, she acknowledged that monies paid were more akin to donations to charities and that she receives a tax benefit for her donations.

The father told the Court he was willing to contribute to camp costs for I. but objected to the mother sending him to a special needs camp. [ 18 ] The mother asked the Court to consider ordering the father to make a contribution to extracurricular expenses for I. for such items as school supplies, field trips, and RESP contributions. [ 19 ] The mother told the Court I. continues to attend before and after school care and that she has paid for child care on her own for some time. In 2010, daycare costs were $3,419.70.

The mother testified daycare expenses were $3,926 in 2011 and that in 2012 daycare is estimated to cost $4,054. [ 20 ] The mother also sought an on-going contribution from the father relating to the medical and dental insurance premiums she is required to pay for I. to have medical coverage. This insurance for I. currently costs $312 per year. Additionally, the mother has had to pay for prescription and therapeutic costs for I. that are not covered by health insurance. For example, in 2010, she paid $89.46 for dental costs not covered by insurance. She also paid $80.26 for naturopathic medicines.

The mother sought a contribution from the father for these expenses and for $122.03 in prescription costs not covered by her medical plan in 2010 and 2011. The mother paid $100 for an educational consultant’s work with I. in 2010. The mother also sought an order for the father to share the uninsured massage therapy expenses for the child (two to three times per month at $20 per session). Applicable Law [ 21 ] Due to the fact Mr. M. is not a salaried employee and receives non-taxable revenue from VACFASS, consideration must be given to

section 19 of the Federal Child Support Guidelines in order to determine his 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: … (

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

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 …

(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. [ 22 ] In Cole v. Cole [2010] B.C.J. No. 1867 , Justice Butler gave considered reasons for judgment on how foster parent revenue is to be assessed for the purposes of determining income to set child support. After reviewing the few reported cases on point, Justice Butler observed (@ paragraphs 20-22): This case

summary shows that most courts have been willing to impute portions of foster allowances as income in the hands of a payor parent for child support purposes. This is not surprising. A parent's obligation to provide support for his or her children must take precedence over a contractual obligation undertaken for foster children. To the extent that an allowance provides some form of compensation to the foster parent over and above expenses, some portion of it should be treated as income for child support purposes.

If this is not done, a foster parent would effectively be able to prefer the interests of foster children to his or her own children. This conclusion is easy to arrive at in the circumstances of this case. The description of the foster parent services provided by Mr. Cole is consistent with the operation of a business. He personally entered into the agreement with the Ministry of Children and Family Development to provide the required services.... The scheme has all of the hallmarks of a small business, including the provision of a substantial stream of revenue to Mr. Cole. In

summary, even if the Foster Allowances are not taxable income, they should be included in income for child support purposes under s. 19(1)(

b) and (

h) of the Guidelines . The existing jurisprudence supports the conclusion that income can be imputed to a recipient of a foster care allowance. In the circumstances of this case, Mr. Cole appears to be running a business such that there is no reason not to impute some portion of the net revenues from the Foster Allowances as income for child support purposes. [ 23 ] Justice Butler gave additional reasons for judgment on this case (see [2011] B.C.J. No. 269 ). Justice Butler was concerned that

the payor parent had produced insufficient financial information causing the Court to have to engage in a bit of guesswork to determinethe amount of income on which to set child support. Justice Butler noted that the Court could not go through the foster care businessexpenses to assess their reasonableness or necessity. He noted (@ paragraph 63): …there are extensive amounts claimed for automotive costs, hydro, telephone, cable and miscellaneous office costs. These are thecategories that are frequently used by small businesses to cover mixed personal and business expenses.

Accordingly, I conclude that thenet revenues are likely understated.” After determining net business income from foster care, Butler, J. ruled it was appropriate to “gross up” the amount to set child support. [24]

Section 14 of the Guidelines sets out what constitutes a change of circumstances in relation to an application to vary amaintenance order: For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to themaking of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change incircumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and … [25] In Earle v. Earle (BC SC), [1999] B.C.J. No. 383, Justice Martinson considered an application by the fatherfor variation of child support and cancellation of arrears. Justice Martinson reviewed case law on point and provided a

summary of thelaw (@ paragraph 46): These basic principles can be summarized this way: 1. Maintenance Generally a. Parents have a joint and ongoing legal obligation to support their children. b. It is the child, not the other parent, who has the right to maintenance. c. The payment of maintenance is based on not just what a parent does earn but what a parent can earn. 2. Variation a. There has to be a material change of circumstances, a change that is significant and long lasting. b. A change to the Guideline amount is not automatic. 3. Arrears Basic Principles a.

There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and longlasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so. b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid rightaway. Examples a. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future. b.

A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at thetime the payments were to be made: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. d.

Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears. e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not paymaintenance and rewarded for not paying maintenance. f. Judges will not cancel arrears because the children were looked after in spite of the non payment. g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what theymissed.

h. An agreement between parents that the maintenance for the children does not have to be paid will not be considered. i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears. j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children. k. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears.

Analysis [ 26 ] Before deciding whether the order of October 2008 should be varied, the evidence must be examined to determine if there has been a significant change in the father’s financial circumstances. In order to make that determination, I must decide what is the best evidence of the father’s income from the alternative formulations put forward at this hearing. [ 27 ] I have decided the Payment

Schedule materials from VACFASS provide the best evidence upon which to determine what money has been paid to the father for his foster parenting work. The schedules make clear that the payments referenced will be paid under the contract and that the amounts are not merely targeted amounts that may be paid.

The schedules are more reliable than the invoices in that the invoices are incomplete and reference additional payments (“advances”) having been made for which invoices have not been produced. [ 28 ] When the available invoices are cross-referenced with the payment schedules, the payments appear to generally follow the contract documents. In my opinion, this fact underscores the reliability of the payment

schedule information. Had the father wanted to provide conclusive proof of the payments from VACFASS, he could have obtained a

summary of all of the monies received by him from the organization since 2008. His failure to do such a simple thing should lead the Court to prefer the use of the payment schedules. The father had been cautioned by the Court that a failure to provide full financial disclosure would likely lead to an adverse inference being drawn against him and the risk of his income being set at a higher level.

Having said that, the evidence suggests the father did in fact get paid at least as much as is set out in the payment schedules attached to the VACFASS contracts and the Court will fix his income accordingly. [ 29 ] For ease of reference, I find the father’s annual foster parent revenue to be as follows: 2008 = $74,780 2009 = $120,205 2010 = $105,604 2011 = $69,162 2012 = $45,816 (projected) [ 30 ] The Court must fix the net income level from the father’s foster parenting revenue. Judge Meyers decided it was reasonable to impute 33% of the revenue to the personal benefit of the father.

At this hearing, the father provided a short

summary of his business expenses for the last few years and asked the Court to find that his personal income should be captured at the 25% level. However, the father did not provide the Court with a detailed accounting based upon the underlying receipts and invoices relating to his operating costs. Mr. M. told the Court he had most of the receipts in boxes available for the Court and Ms. Z. to confirm his own revenue and expense calculations.

However, as noted by Judge Meyers, the Court is simply not in a position to go through boxes of loose bills and invoices and attempt to perform an accounting of the father’s revenue and expenses. This is something the father had professionally prepared for the October 2008 hearing and it is not clear to me why he did not do so for this hearing. [ 31 ] More to the point, I do not accept the father’s allocation of expenses as between the children in his care and his own contribution or share. By way of example, the father suggested his rent should be split pro rata with his foster children and himself.

The problem with that approach is that the father would have to pay rent regardless of any work as a foster parent. To calculate his personal share on a pro rata basis in my opinion understates the benefit to him of the foster parent business revenue. A similar concern exists in relation to utility costs, home insurance, vehicle expenses and the like. [ 32 ] Having considered the matter, I am of the opinion that Judge Meyers’ assessment that 33% of the foster parent revenue should be seen to be to the personal benefit (i.e. income or profit) of Mr. M. is still a reasonable approach.

I come to this conclusion despite Judge Meyers’ caution that the father’s business should become more profitable the longer he operates a foster home because it is not apparent to me that would still be the case with the father having a reduced number of children in his care. The fact the father has taken on a second job is consistent with him receiving only a modest profit from the fostering work. [ 33 ] Accordingly, for the year 2010, I impute $35,201.33 (33% of $105,604) as personal income to the father generated through his foster care business. In 2011, I impute $23,054 (33% of $69,162) on this same basis.

To the father’s 2011 foster care income must be added his new caretaker earnings. According to his T4 for 2011, the father earned $18,150 as a caretaker. For 2012, his projected income from foster parenting is $15,272 (33% of $45,816) and it is expected he will earn $36,000 from his caretaker work. [ 34 ] In his 2008 decision, Judge Meyers concluded the father was earning $10,815 per month gross ($120,000 per annum).

It is not clear to me what evidence was placed before the Court in 2008 to establish a monthly income of $10,815, but there was obviously some evidentiary foundation upon which the Court made this finding. The sum of $74,780 for 2008 merely reflects the fact the father began his fostering work part way through that year. Mr. M.’s 2009 income remained high at $120,205. It was not until 2010 that Mr. M.’s

revenue declined by just over $1000 per month. In 2011 his foster parent revenue was again lower but he was earning other employment income. [ 35 ] The question of whether the Court should vary the October 2008 order (and then reduce or cancel any arrears that might have accumulated under it) must be limited to consideration of the years 2010 and 2011.

This is due to the fact I have already found that the father’s 2008 and 2009 revenue was $120,000 per annum, the amount upon which the October 2008 order was made. [ 36 ] Based on an imputed income of $35,201.33 the father would have been required to pay $328 child support per month in 2010. With his income at $41,204 in 2011, the father should have been paying $381 per month.

The modest difference in the amounts payable under the Guidelines for the two years leads me to conclude the father has failed to meet the threshold of a significant change such that the Court should entertain his application to vary the 2008 order. Accordingly, his application to vary the 2008 order is dismissed. [ 37 ] Before turning to the mother’s claim for extraordinary expenses, I pause to note a problem I discovered in the course of analyzing the evidence at this hearing. The father was ordered by Judge Meyers to pay $446 per month based on an income of $40,000.

However, the Child Support Table in effect in 2008 would have required a monthly payment of $370 for an income of $40,000. It is not clear how the Court determined the father’s monthly child support payment under the Guidelines would be $446. However, having discovered this error, I think it must be addressed. [ 38 ] I find the father is entitled to a credit relating to the erroneous amount. The father was ordered to pay $446 per month whereas the amount he should have been obligated to pay was $370.

Accordingly, the father will be credited the difference of $76 for each month from October 2008 to April 2012 (43 months). Thus the father is entitled to a credit of $3,268 against any arrears owing. [ 39 ] The father’s income for on-going child support purposes will be based on his projected 2012 foster parent income (33% of $45,816 = $15,275) plus his salaried caretaker income ($36,000), totaling $51,272. Thus the father is ordered to pay child support on that amount in accordance with the 2012 Guidelines . As of April 1, 2012, the father must pay $470.67 each month for the support of I.

Special Expenses [ 40 ] In this case, Ms. Z. asks that the father share in the cost of medical and other expenses for I.

Section 7 of the Guidelines addresses extraordinary expenses:

(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.

(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 factor that the court considers relevant.

(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.

(3) In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits orincome tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or creditrelating to the expense. [41] In McLaughlin v. McLaughlin (1998), (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.), the Court set out a two-stageprocess to be engaged when deciding whether to award an amount under s. 7. The Court stated (@ paragraphs 81 & 82): In the result, I conclude that, in deciding whether an expense, or the totality of expenses claimed on behalf of children under s. 7(1)(

f) areextraordinary, the court should take into consideration the combined income of the parties, as well as the nature and amount of theindividual expense, the nature and number of the activities, any special needs or talents of the children, and the overall cost of theactivities. This list is not intended to be exhaustive, as considerations may arise in other cases which may also be relevant...

As earlier stated, once an expense or expenses are found to be extraordinary it is necessary for the Court to proceed to determine whetherthe expenses are necessary in relation to the children's best interests and reasonable, having regard to the means of the spouses and thoseof the child, and to the family's spending pattern prior to separation. There appears to be a consensus in the authorities dealing with s.7(1)(

f) that those questions do not need to be addressed until the expense or expenses in question have been found to be extraordinary.That would also be true of "extraordinary" educational expenses under s. 7(1)(d). With respect to the other expenses included under s.7(1), which fit under the rubric of "special" expenses as that word is used in the heading of the section, the expenses need not beextraordinary, but they must meet the tests of necessity and reasonableness. [42] In January 2006 and in March 2006, Judge Meyers ordered that daycare costs relating to I. were to be split 50/50 between theparents. Arrears relating to daycare costs were also addressed and a payment

schedule ordered. The father was ordered to pay a portionof the medical and prescription expenses for his son. Despite those orders, the father has not contributed in a regular manner toward thespecial expenses of his son. Mr. M. offered no explanation for his failure to pay his share of his son’s daycare and medical expenses.

The father must correct this situation promptly and ensure he pays the daycare costs and any other outstanding arrears pursuant to earlierorders of the Court. [43] Like Judge Meyers, I am satisfied the daycare cost is a special expense, in I.’s best interest, reasonable and necessary relative tohis needs and to his parents’ means.

The same is the case with the direct costs of the medical and dental insurance premiums and theparents are to share these expenses. [44] As to other health-related claims, the mother told the Court I. has severe asthma and requires both prescription medication andmedical equipment for his condition. The mother also told the Court that I.’s benefits from regular massage therapy.

Given the benefitI. receives from the massage treatments and the modest expense involved, the parties must share in those expenses. [45] The father’s income for child support purposes has been set at $51,272 per year and the mother’s income at $66,412 (counsellingand mentoring). I order the parents to contribute on a pro rata basis to the

section 7 Guideline expenses, with the father bearing 45% ofthe expense and the mother 55%. The mother will provide copies of invoices to the father for these expenses and Mr. M. will pay Ms.Z. his share within 30 days of receipt of any invoice for the following on-going expenses:

a) Reasonable before and after school care costs;

b) Medical and dental insurance premiums;

c) Costs for prescription medications and medical equipment/devices not covered by insurance or in excess of the insured amount;

d) Massage therapy and other therapies prescribed for I. by a medical doctor;

e) Reasonable tutoring costs; [46] I have not ordered the father to make a contribution toward his son’s school supplies and field trips, as insufficient informationwas put before the Court relating to these items upon which an order could be made. More importantly, at this time in the child’s life,these extracurricular expenses appear to be relatively small and should be covered by the regular child support paid by the father. [47] The mother testified she has, in the past, made contributions toward an RESP for I.

Should she resume that practice in the future,I would hope the parties would be able to reach an agreement that would see the father make reasonable contributions toward either thesame RESP vehicle or, on his own volition, begin making plans toward some sort of educational fund for his son’s future. However, noorder is made at this time for this item.

Summary of Orders Made [48] The father’s application to vary the October 2008 order by retroactively reducing his income for child support purposes isdismissed. To correct an error, the father is credited $3,268 against any arrears owing under the 2008 order. Mr.

M.’s application tofurther reduce any child support arrears owing is dismissed as having failed to meet the threshold required for such an order to be made. [49] The father’s income for on-going child support purposes is set at $51,272 and he will be obligated to pay monthly support of$470.67 commencing on May 1, 2012 and continuing on the 1st day of each and every month thereafter, for as long as the child iseligible for support under the Family Relations Act or until further Court order. [50] The mother’s application to have the father make on-going contribution to the special expenses related to the child is granted.

Commencing January 1, 2012, the mother will bear 55% of the expense and the father will bear the remaining 45% of the specialexpenses. The mother will provide receipts for the expenses the father has been ordered to contribute to and he shall provide his share of

the payment to the mother no later than 30 days after any such receipt has been provided. [ 51 ] With respect to any special expense arrears owing by the father for the non-payment of child support, day care and other costs he has previously been ordered to pay, Mr.

M. must pay a minimum of $150 per month toward the arrears commencing May 1, 2012 and on the 1 st of each month thereafter until the arrears are paid in full. [ 52 ] This Court also orders that for as long as the child is eligible to receive child support, the parties shall exchange copies of their respective Income Tax Returns and any Notices of Assessment provided to them by the Canada Revenue Agency for the previous year, including all attachments, not later than May 31st of each year. The parties are to use that information to adjust their pro rata contribution to any special expenses based on their income.

The date for any such adjustment to take effect will be July 1 st of every year unless the parties otherwise agree to another date or pursuant to an order of the Court. ______________________ N. N. Phillips Provincial Court Judge