D.O. v. L.C. Date:, 2011 BCPC 87

Citation: D.O. v. L.C. Date: 20110411 2011 BCPC 0087 File No: 07-21571 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: D.O. APPLICANT AND: L.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.K. DAVIS Appearing on their own behalf: D.O. Counsel for the Respondent: Carla Lewis Place of Hearing: Vancouver , B.C.

Date of Hearing: November 9, 10, 12, 2010, February 28, March 2, 4, 11, 2011 Date of Judgment: April 11, 2011 [ 1 ] This matter is before me as a result of the father commencing this lawsuit seeking sole custody and guardianship of his daughter A.C., born (d.o.b.). [ 2 ] He commenced this lawsuit in December of 2007.

The mother filed her Reply in January of 2008 and then filed an amended reply in November of 2009. [ 3 ] The parties have been in court at least 30 times and it appears that the bulk of the appearances have been at the request of the father. [ 4 ] This decision comes at the end of seven days of trial during which witnesses were called both by the father and by the mother. The last day was reserved for argument.

The trial was originally set for three days. [ 5 ] The father was unrepresented, however he was well-prepared both as to providing his book of documents which contained the exhibits he wished filed and his proper list of authorities. [ 6 ] The father sets out the history of the relationship with the mother as beginning in February of 2001, their daughter being born on April 10, 2005 and their separating on January 20, 2007. [ 7 ] The mother does not disagree to any great degree with the dates of the beginning and ending of the relationship.

[ 8 ] There were a number of applications, court appearances, notices of motion, and affidavits filed in this matter. The mother’s position appears to have been throughout these proceedings from December of 2007 up to and including the first day of trial, as one of simply replying or responding to the father. That is, of the number of applications to court, the mother initiated but a few. As to the former I need only refer to the court file which indicates that of the 30 or more court appearances perhaps three were initiated by the mother.

On each one of the occasions that the mother initiated a court proceeding it appears that this was due to the unacceptable behavior of the father [ 9 ] At the end of the seven days of trial, the father said, as to the relief he wanted: “ I am seeking: 1. joint guardianship, joint custody, 2. parenting coordination, 3. a shared parenting schedule, 4. a shared custody support arrangement under s. 9 and s. 10 of the Federal Child Support Guidelines, and 5. shared costs of the s. 15 report.” [ 10 ] The mother does not dispute that the issues are as the father sets them out, but she says the issues, from her perspective are: 1.

Custody and guardianship (and she seeks to be the sole guardian and custodial parent) 2. Access, including a holiday

schedule 3. Child support 4. Retroactive support 5. Payment for the s. 15 report THE EVIDENCE: [ 11 ] There is no real dispute as to the evidence, what is in dispute is the

interpretation or the spin on the evidence by the parities as to what actually happened. [ 12 ] For example, the father's evidence consists of him asserting that it is his sole desire to have a collaborative relationship with the mother regarding the upbringing of their child. That is what he has striven for in the past and that is what he says will be the future for the child.

What becomes readily apparent from the evidence is that when the mother suggests a behavior that diverges from that suggested by the father, the father will either come to court seeking a court order or will do what he feels like doing without consultation. [ 13 ] The parties have filed a number of exhibits in their own exhibit book and what appears as a common theme in the e-mails that were sent between the parties is the father consistently suggesting he wants to resolve the matters for the best interest of their child. [ 14 ] It is clear that even when there were court orders the father would only comply with such court orders if they were beneficial to him and if he agreed with them.

I do not propose dealing with each order and his unwillingness to comply with the orders as that would, in my opinion, simply exacerbate an already difficult situation. I will simply point out that notwithstanding a court order that the father was to return the child at a particular time, he did not. His constant position was that the child decided what time she would return. In fact, the father attempted to show that the longer the time the child was with him, the better that was for the mother-child relationship.

He says he pointed out to the mother that the child was actually much more excited than usual to see the mother after a two week time with the father. [ 15 ] The father, in an attempt to bolster this position said in his evidence that when he had the child for two weeks on an access visit he pointed out to the child, “this is what two weeks looks like, and the child loved it and wanted it to continue - and was excited to see her mother”.

The child at this time was approximately 3 years old. [ 16 ] An example of the father undercutting the mother's authority is his refusal to support the mother and the child once the child had been registered and was attending school. The father was opposed to the child attending public school and notwithstanding that the child was registered and attending, the father would not take the child to school on his access days.

The father was heard to say that the child should not be attending that particular school because there was substantial construction going on and it was unhealthy for his daughter; he also said to his daughter when children were observed making their way to school, that those poor children have to go to school. I suspect I need not determine why the child would say she did not wish to attend school because there was construction going on and it was unhealthy.

Subsequently the child gave the mother a card on which the child had printed that she would do anything for the mother, so long as she did not have to go to school. [ 17 ] The father was quick to tell me that he consulted the L. I. school and was advised that his daughter could go to the class; so he asked his daughter if she wanted to go and he was pleased to hear that his daughter wanted to go to that school. [ 18 ] He was also quick to point out that he asked the mother two times “when would you be satisfied that our child did not want to attend the school you had her registered in”.

[ 19 ] To further illustrate that the father provides the choice to the child, improperly in my opinion, is best expressed in an e-mail dated June 4, 2007 which he sent to the mother. The purpose was to tell the mother how he determined where the child would stay. At this time the child would be 2 years old: “The way I have and will continue to approach A. sleeping at her home in the Co-op [where the father resides], is the same that I've approached her sleeping in her home at Mama’s house: she chooses. When she wants to go to Mama’s house, we go.

When she wants to stay here and it's late, I reminder that it is late and we either need to go back to Mama’s house or we need to get ready for sleep . . .” To be fair I should set out in part the mother’s reply to this e-mail: “With regards to you giving A. choice about whether or not she comes home at night...I believe that it is our responsibility as parents to create some boundaries for her....But, as we've both experienced, her job right now (at age of 2) is to push our boundaries to figure out where they are.” “I believe that we, as her parents, need to decide where she sleeps and when and make that decision based on what we think is best for her right now.

I don't believe it's fair to A. or me to allow her to make that decision on the spot. It's not fair to A. because it's putting her in the middle and forcing her to make a choice that she doesn't have the experience to make fully....” “I think it's not fair to me because this e-mail is the first time I've heard that you give her a choice about whether or not she comes home at night.

That is a decision you have made that completely undermines every agreement we've made together.” [ 20 ] As well I will only refer to one incident to indicate that in my opinion the father's consistent position that he wants a collaborative approach was a mere scheme or scam simply concocted to have the mother either agree with him or capitulate to his position.

When it was pointed out to him that his behavior was simply that, namely if the mother disagreed, he would do what he wanted, he would say, “That certainly was not my intention”. [ 21 ] The father sent an e-mail on October 23, 2007 which he acknowledges went to all the residents of his co-operative housing unit. It became apparent when he gave his evidence in cross-examination that there was absolutely no basis for sending out this particular e- mail.

It appears that when the mother appeared to pick up the child, the father’s preference was to keep the mother waiting outside his complex until the child and he were ready to facilitate the exchange. When, on occasion of it raining outside, the mother gained access inside the father sent out an e-mail. I will set out the e-mail in its entirety as it reflects the regard the father has for the mother and his method of dealing with the mother.

To: undisclosed-recipients: Subject: security warning about my daughter's mother trying to get into the co-op I'm very sorry and embarrassed to be writing this, but an experience this week confirmed an earlier one and I don't think I should wait any longer. I need to inform everyone in the co-op that my daughter's mother is not fully well and may try to buzz and talk her way into the co-op in the late evening in the future. Her name is L. and my daughter's name is A.; mine is D. and I will always allow her mother in when it is appropriate for my daughter. On Tuesday, my daughter decided to sleep here.

Her mother refuses to talk about this inevitability and necessity. My daughter is always welcome in my home, any time. Her mother flipped out and despite my direct instructions to stay away, managed to get into the co-op and then started to knock on my door. This time, my daughter changed her mind (I think she got scared) and wanted to go back to her mother's house, so we simply dressed and left; I have no idea what would have happened if we had fallen asleep as we almost were.

The first time this happened, I answered the door after my daughter fell asleep and let her mother in; she refused to leave and ended up sleeping on the living room floor and scaring my daughter in the middle of the night. I know this is not interesting or something most will want to know about. I send it out so that you can understand the difficulty of the situation (if it occurs again) and so you can be prepared. My daughter is beyond safe here in our co-op but her mother refuses to deal with their own issues.

My fear is that her troubles will escalate at some point in the future and I will everything that I can to ensure that my daughter is not caught in the middle of them!

Thanks for your understanding and feel free to question me if needed. [ 22 ] There are certain other incidences which were related by the mother and by the father where the timing was agreed but the version is different. I am satisfied that the father is simply not credible and although when he uses the correct phrase of “the best interest of the child” what he is really meaning is “in his best interest”.

He has failed to comply with court orders and then when asked to explain why, he will try to demonstrate why he need not comply with such orders as they were not in the child’s best interest or, he believed he was complying with the orders as he understood them. As but one example was an order requiring him to take the child to school but he found reasons not to do so.

The next order was that should he fail to take the child to school his access would be terminated and as that order was unambiguous to the father, he complied. [ 23 ] The father attempted to bring in to this lawsuit his naïveté with legal matters which he says directly affected and impacted his behavior. I do not find his protestations convincing. [ 24 ] I need only refer to the examples where the mother attempted to serve the father on two different occasions and it was clear to the father that the father was being served with court documents.

He chose not to accept the documents and they were left in front of him. He did not look at them, he ignored them. He of course maintains that the mother proceeded to obtain court orders that were unfair to him because he did not have notice and was not able to present his side of the matter.

When asked about the documents that were left for him, in his presence, he says “to this day I do not know what happened to the documents nor what they were”. [ 25 ] On one of the occasions where there was this form of service, namely, the father refusing to accept the documents and the documents being left at his feet, the mother travelled to L.I. with a friend. These particular documents provided that there would be a court appearance on September 28, 2009. The mother appeared in court and the father did not. [ 26 ] This led to an order being made by the Honourable Judge Bowden.

The father continually referred to the “Judge Bowden order”. The father of course did not like the order made by Judge Bowden because it provided, among other things, that the mother was to have sole interim custody of the child and that the primary residence of the child was to be with the mother. Furthermore, the father was not to have the child on L.

I. without the written permission of the mother, and if the father did not return child at a particular time a peace officer may become involved. [ 27 ] I fail to see why the father now complains about the ‘Bowden Order’ when he chose to ignore documents he understood to be court documents and then says that he had not been properly served This of course from the father who is, in my humble opinion very familiar with the court process – as one can see he initiated proceedings, he completed proceedings, he served documents and he filed affidavits of service, he brought applications for short leave and other chambers matters, all with appropriate documents and service. [ 28 ] The parties also had the benefit of a report prepared pursuant to

section 15 of the Family Relations Act . The report was prepared by Dr. Rebecca St. Clair England. [ 29 ] Dr. England gave evidence and in her report she acknowledged that both parents have some difficulties in dealing with this custodial matter. She does say the following in that portion of the report entitled OPINIONS AND RECOMMENDATIONS at page 17 of her report: “While both parents have clear strengths that they offer, at the same time they each also have certain challenges which have played a role in their ongoing conflict. For Mr. O., he has had to overcome a particularly difficult childhood. . . . .

Strengths and challenges come from this type of parenting history and Mr. O. shows both in that he is very socially conscious, principled, and committed to good parenting, and at the same time, he shows indications of having some poor boundaries in his relationship with A., and presents with some narcissistic character traits in his defensiveness, attitude of superiority, tendency to be critical of others, and the extent to which he focuses on personal rights and entitlement. He is clearly much more critical of Mrs.

C. then she is of him, and appears to have communicated with A. in such a manner that could foster A. developing an unnecessarily negative attitude towards her mother. He is likely to have more difficulty with A. should she develop attitudes that are in contrast to his own, and already shows a tendency to blame Mrs. C. for negative things he sees in rather than reflecting on what aspects he might contribute to this.” “For Mrs. C. while she had the benefit of a relatively happier childhood and maintains a positive relationship with her family of origin, . . The positive results from this are that Mrs.

C. presents as a very emotionally engaging individual who readily adopts the style of being accommodating pleasing, and at the same time, she presented as somewhat too emotionally focused and sensitive, and has not been clearly differentiated with respect to A. . . . ” [ 30 ] The recommendation of Dr.

England is a two – two – five – five rotation, and by that she means that one parent is assigned Mondays and Tuesdays, the second parent has Wednesdays and Thursdays, and they alternate the remaining three days between them – and as most transitions would occur around a school day each parent can make independent decisions on what, if any extracurricular activities will take place on their day. Dr. England suggests that this access would provide opportunities to reduce conflict. What of course is the linchpin of this recommendation is that the parties reside in the same community.

This is not the case in this matter as the father appears to have his community of choice on L. I. However Dr. England had proposed a second “parenting plan” which took into account that the child primarily reside with her mother while the father had extended access permitting him to spend time with the child on L. I. [ 31 ] In summarizing her report Dr. England said: It is hoped that this family will be able to move forward and not have long-term conflict.

The writers mindful however, that in some small proportion of cases, protracted conflict will occur, and ultimately one parent's rights and access will need to be curtailed in order to dampen the negative impact of this. Given the results of the current evaluation, the writer's view is that should there be ongoing conflict,

it is more likely to be fueled by Mr. O. then Mrs. C. [32] The father tends to continue to undercut what the mother has done. I do not propose setting out a number of the examples butsuffice it to refer to one typical example; the mother had set up a reward system for the child and the child chose the reward. Thatreward was an ice cream cone from a fast food establishment.

The mother and father have certain beliefs about eating that type of foodhowever the mother determined that having an ice cream cone, it being chosen by the child and it being as part of the reward for doingcertain behaviors, would not be harmful to the child. The father undercut the mother by telling the child that the food was not good forher and she should not have it. The child returned home from an access visit declaring she no longer wanted the ice cream cone becauseit was not good. [33] Furthermore the father has property on L. I. and it is his desire to spend time with the child at his home on the island.

The fathersuggested at the beginning of the trial that the child's education would not be a problem if there was a version of, or a modified version of“one week on one week off” with child. To advance his position as to having the child with him he says “I am hearing from ourdaughter that she wants to live on L. I.” One must bear in mind of course the child was three at the time she made this statement to thefather – and of course he continues to remind everyone of his daughter’s views – even his daughter. DISCUSSION [34] In arriving at any decision involving the child one must take into account

section 24 of the Family Relations Act. 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests ofthe child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child'sneeds and circumstances: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights andduties adequately.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider thatconduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to theextent that the conduct affects a factor set out in subsection (1) or (2). [35] There are a number of cases that have set out in that the best interest test applies to determining custody, guardianship and accessand how that is to be applied. The B.C. Court of Appeal in Robinson v. Filyk (BC CA), [1996] BCJ No. 2519 sets itout in an easily understand way starting at paragraph 23: 23 The concept of the best interests of a child has been called ephemeral.

Certainly it is difficult to apply. However transitory it mayappear, this concept is nonetheless the only test for guardianship and custody of a child available to a court in British Columbia. 25

Section 24 of the Family Relations Act sets down the factors the court is to consider in assessing the best interests of the child. Theyinclude the health and emotional well being of the child, the views of the child where appropriate, the ties that exist between the childand other persons, education and training for the child, and the capacity of the available adult resources. Consideration of material well-being is relevant to guardianship of the estate of the child.

Consideration of conduct is limited as in the Divorce Act. 26 In a country where there is no common parenting philosophy it may not be surprising that the legislatures have chosen to mandateindividual enquiries into the individual child's best interests, rather than to impose a community view of parenting by laying downstricter guidelines for the exercise of a court's authority to decide what is in a child's best interests when parents cannot.

The analysis ofthe child's needs and resources will be contained by the particular child's extended family and community. 27 Any thought that an enquiry into a child's best interests is to be “undertaken with a mindset that defaults in favour of a preordainedoutcome absent persuasion to the contrary” was dispelled in Gordon, supra at 58.

Writing for the majority, McLachlin J. emphasized theindividual nature of every enquiry at 58: But Parliament did not entrust the court with the best interests of most children; it entrusted the court with the best interests of theparticular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship with parents, siblings,friends and community. Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is

inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and othercircumstances of “the child” whose best interests the court is charged with determining. “[G]eneral rules that do not admit of frequentexceptions can[not] evenly and fairly accommodate all of the varying circumstances that can present themselves”: per Morden A.J.C.O.in Carter v. Brooks, supra, at p.51. The inquiry is an individual one.

Every child is entitled to the judge's decision on what is in its bestinterests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected. “Nomatter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis,fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met”: Appleby v.Appleby, (ON SC), 21 R.F.L. (3d) 307, supra, at p.315. 28 This clearly articulated approach to the enquiry about a child's best interests must extend to the choice between sole and joint custodyunder the Divorce Act.

Madam Justice McLachlin was discussing a presumption in favour of the custodial parent on an application forvariation of a custody order upon proof of a material change in circumstances, which in the case before the Court, was the proposedmove of the custodial mother to Australia. The view expressed, however, is equally applicable to a presumption in favour of joint or solecustody. There simply can be none, whether the presumption comes from the judiciary as an institution or from the experience of anindividual judge.

Nor can there be concern about parental rights unless those rights are necessary to advance the child's best interest. 29 The only issue is the child's best interest. “The child's best interest must be found within the practical context of the reality of theparents' lives and circumstances, one aspect of which may involve relocation” (Gordon, supra at 59). [36] All of the items set out in S.24 of the Family Relations Act have been addressed above and of course in the report of Dr. England. I should perhaps address my concerns regarding s. 24(1) (e).

The father’s behaviour is such, that notwithstanding his protestations inargument that he now knows the importance of complying with court orders, in not undercutting the mother and not having the childparrot his ideas, I have concerns that he will not change his behavior for the reasonable foreseeable future. His position prior to andduring the trial leads me to conclude that he ought not have the involvement in the decision making process that joint guardianshipwould permit. His behaviour in the past may have been best intentioned, but it certainly was not in the best interest of his child.

DECISION CUSTODY AND GUARDIANSHIP [37] The mother is to have sole custody and guardianship. I am of the opinion that this mother will not use this as a method ofrestricting the father’s access but rather to insure that there is stability and continuity in the life of the child and therefore this is theappropriate decision for this child at this time.

As an example of this I need only refer to the exchange of e-mails in February of thisyear, and filed as Exhibit 7, wherein the mother says: “I have no intention to undermine your freedom to parent as you wish during your time with her, as long as her rights to consistency andsafety are maintained.” [38] The mother said in giving her evidence explaining Exhibit 7, “this sets out my concerns but I don't want to micromanage the father's time with the child.... I thought it was not good for her as it washis time.” [39] Both the mother and the father acknowledge collaboration and mediation can work.

I gather that the father now understands thatsimply saying he wishes to mediate and when that does not work proceed as he would like, is not an acceptable way of dealing withmatters involving the mother and his child. I am mindful of course of the various e-mails that the father has sent to the mother whereinhe reinforces his opinion that he involves the child in all decisions that affect her life, schedule, and then tries to make the mother feelguilty about access.

He says in one of his e-mails: “You have been made well aware of the fact that she does not want to transfer into the other parent's care when she does not get enoughtime with the parent she is with, but yet, you persist in imposing a

schedule that induces much sadness in our child.” [40] I am of the opinion, and perhaps hopeful, that as a result of this decision the father's behaviour in this regard will no longercontinue. ACCESS: [41] The parties clearly agree that access to the child is not only appropriate but necessary and in the best interest of the child. Thefather's position is that the access proposed by Dr.

England is the appropriate access. [42] He proposes that the child should spend as much time as possible with each parent and that would work out to approximatelyeach parent having the child on half-time basis. [43] What is clear from the evidence in Dr. England’s report is that there will be great difficulty should the child be required to movefrom one community to another.

One can see the difficulties that would be encountered by a young child going from community tocommunity, particularly where the parents do not agree on matters that are important for the child such as education, and who is to makethe decision on important matters – the parent or the child. [44] The access for the father will be as follows: 1. Tuesdays from after school until Thursday at the commencement of school.

2. Alternate weekends from Saturday at 10:00 a.m. to Monday when the father is to drop off the child at school in time for her commencing class. Should the Monday of the father’s access weekend be a school holiday, the father is to drop off the child at school in time for her commencing class on the Tuesday. 3.

Should the child be late for school or miss a day or portion thereof without the prior written approval of the mother, the father will no longer return the child to school during or at the end of his access visit, but rather to the home of the mother at 5:00 p.m., the evening before any school day. [ 45 ] As to the access to be enjoyed by the parents and the child for holidays they will be as follows: 1. Each parent will have two weeks of uninterrupted access in the summer, and such further access as the parties may agree. 2.

Christmas break will be divided such that the child will be with the mother until December 26 at 4:30 p.m. and the balance with the father. The child is to be returned to the mother at noon, the day before school recommences. 3. Spring break will be divided equally. The first week the child shall be with the Father and the balance with the Mother. 4. The father will have access to the child on Father’s Day and the mother will have access on Mother’s Day so long as such access, including the time, is pre-arranged. 5.

Both parties will have access to the child on her birthday and for special occasions, to be arranged in advance. 6. The father and mother will have reasonable telephone access to the child when she is in the care of the other for any period greater than 5 days. MAINTENANCE [ 46 ] Mr.

O. has filed his financial statement and has provided his income tax return for the year 2010. [ 47 ] He shows as his income for last year as $-5,059.46, that is, his income is in a minus or negative position. [ 48 ] He is self-employed and indicates that he earned from a business income and a professional income a total income before deductions of $13,540.45. [ 49 ] The financial statement discloses his income from previous years has been either a loss or a very very small positive sum for income.

For example at line 150 of his income tax return for the year 2007 it indicates a gross income of $3,867.00 (with an income tax refund of $1,318.44); for 2008, the father's income at line 150 is $1,112.00; for 2009, the father's income at line 150 is $1,812.00. [ 50 ] The father says that he is self-employed and the amount of time he puts into earning income varies and of course is determined by him. He does say in his sworn financial statement in

part 1,

section 2, “I am paid when I invoice a client”. [ 51 ] He says that in his jobs as educator he can earn between $25 per hour and $60 per hour. [ 52 ] He also does workshops involving building Cobb houses. The father signs his e-mails with the following: “ethical environmental consulting Better Transportation, Waste Reduction, Facilitation, and Computer Systems Support and Training...since 1994” [ 53 ] The law involving the maintenance for children is fairly straightforward. Madam Justice Martinson set out the test in Hanson v.

Hanson BCJ No.2532 wherein she points out that the Child Support Guidelines has a provision which permits the court to impute income. Section 19 (1) of the guidelines provides: 19.

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

a) the parent 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 parent; [ 54 ] Counsel for the mother points to the father's position where he says that he is unable to take on clients because he does not know what his involvement with the child will be. [ 55 ] Madam Justice Martinson says at paragraph 8: [8]. Parents have a joint an ongoing legal obligation to support their children.

In order to meet this legal obligation, a parent must earn what the parent is capable of earning. [ 56 ] I do not propose setting out the entire decision of Madam Justice Martinson but it is indeed a template for determining whether or not income ought to be imputed to a parent for the purposes of determining child support. [ 57 ] I am satisfied that Mr. O. is capable of earning a greater income and his professed desire to stay on L. I. is something he certainly

can do but he ought not be able to work less than he is able to do, as the person who will suffer most is his child. [58] It would also seem to me that the father is able and capable of earning a greater income than to provide him with a net loss, oronly very little income every year. It would seem to me that a person with his education and skills should be able to earn a reasonableincome. [59] The father's underemployment has a consequence for his child, namely, she does not benefit as she should and could, from hisearning potential.

It appears to me that the father is transferring part of the cost of his decision not to work to his potential and capacityto his daughter.

That, in my humble opinion, is not fair to the child. [60] I will impute an income to the father of $40,000 per annum. [61] I arrive at that figure by using the information given by the father that he can earn between $25 per hour and $60 per hour andtaking the average of that hourly rate and assuming that the father could work at least 25 hours per week leading to approximately$40,000 per annum. [62] The father had this to say in his submissions: “My financial statements show that from 2008 to 2009, my income doubled and I believe would have tripled had not the Bowden orderbeen issued.

This is due to the fact that between December 2008 and October 2009, our parenting

schedule allowed me to solicit, accept,and complete all of the work that was available to me.” [63] I agree with the mother when she says that imputing income for intentional underemployment does not require a finding of badfaith, rather only that the party is not earning to capacity. Here the father has two university degrees, one a Masters degree, he is healthyand does not indicate any limitations in his area of expertise. [64] The father in his opening said that one of the areas that he would be canvassing and pleading is undue hardship.

No evidencewas led that would satisfy me that I should make a finding of undue hardship. [65] Similarly in his well-written submissions he says that the hardship he experiences is in exercising access to his daughter “and thecost of travel from my home on L. I. to Vancouver and maintain a second residence.” [66] He relies on

section 10 (

b) of the Child Support Guidelines which says “that spouse has unusually high expenses in relation to exercising access to child”. [67] He says: “therefore the total cost of maintaining a Vancouver residence in order to exercise my access to A. since September 2009 has been morethan $18,000 ($17,989.17 + $34.76).” [68]

Section 10 of the Child Support Guidelines requires that when there is a plea of undue hardship to take into account thecircumstances that may cause undue hardship and I must be aware of the standards of living of the two households and apply thestandards of living test. None of that has been put before me and in any event no circumstances have been shown that would, in myopinion cause the parent or child to suffer undue hardship. [69] Accordingly then I dismiss the father's claim for undue hardship. Both parties had some concerns regarding the payment of thereport prepared by Dr. England.

I dealt with that at the close of trial as I was satisfied both parties benefit from the report and herevidence and that the cost of that report would be shared equally. [70] The mother has requested retroactive maintenance and of course the father has been continuously aware that the mother wasseeking support for the child.

The father's position clearly was that he anticipated there being a decision favouring shared custody andguardianship on an equal basis and since his stated income was in a minus position, he would not be required to pay any child support RETROACTIVE MAINTENANCE [71] When the mother filed her reply to the father's application in 2008, the father knew the mother had assessed his income at$30,000 per year. He did nothing to dissuade her. [72] The law in British Columbia is fairly well settled when dealing with retroactive maintenance. Madam Justice Martinson inC.A.R. v. G.F.R. 2006 BCSC 1407 , [2006] B.C.J.

No. 2102 summarizes the Supreme Court of Canada decisions dealing withretroactive child support. She dealt with the matters this way: 1. When an order for retroactive support should be made a. Reasonable excuse for the delay b. Conduct of the payer parent c. Circumstances of the child d. Hardship 2. Determining the amount of the retroactive award

a. Date of retroactivity i. Date of effective notice ii. Limit on retroactivity iii. Effective blameworthy conduct b. Quantum of the retroactive award [ 73 ] Taking into account the subheadings under when an order for retroactive support should be made, and bearing in mind that none of the factors are determinative, I am satisfied that the retroactive support order should be made. [ 74 ] The father did attempt to provide an excuse for the delay by providing a brief outline as to the cost he had in exercising access and looking after the child from the time of separation.

He says that the evidence shows that he's paid approximately $16,000 since October 1, 2009 for housing charges plus a further approximately $1,000 for communication services and other services for a total of $18,000, all of which would not be necessary if he did not have to maintain a separate residence in Vancouver to exercise access to his daughter. [ 75 ] I am mindful that at the beginning of the separation the parties attempted to share the raising of their child and that perhaps the parties impliedly each agreed to look after A. and the attendant expenses when the child was in their respective care. [ 76 ] I am aware that the mother did not complain to the father, however the father did not inquire as to what if anything the child required when in the care of the mother.

The father's position appears to have been throughout that he was entitled to share custody of the child and therefore by virtue of the child support guidelines, that he would not be obligated to pay maintenance for his child. It would seem to me that when the mother was granted sole custody by the Honourable Judge Bowden on September 28, 2009 the father should have been aware that there was an obligation on him to provide support for his child. [ 77 ] I'm satisfied that there ought to be a retroactive award commencing after the mother was awarded sole custody namely October 2009.

The father knew the mother was attributing an income of $30,000 per annum to the father and that was not disputed in the pleadings. [ 78 ] The Child Support Guidelines set out that an individual earning $30,000 is required to pay for child support the sum of $280 per month. That would work out to a total retroactive award of approximately $5,040.00. [ 79 ] I am mindful that when dealing with retroactive awards, “retroactive awards disrupt pay or parents' management of their financial affairs in ways that prospective awards do not.

Court should be attentive to this fact.” [ 80 ] It would seem to me that the total retroactive award, based on the father's imputed income is something that he could afford to pay but it should not be paid in a lump sum rather he should be able to reduce the amount at the rate of $75 per month.

However in light of what I have set out in paragraphs 83 to 85, the monthly payment is not required. [ 81 ] Since I have imputed income to the father of $40,000.00 per year, that will require the father to pay to the mother for the maintenance of the child the sum of $370 per month commencing April 1, 2011. [ 82 ] There being no claim for special expenses or extra ordinary expenses I need not deal with that. [ 83 ] Since preparing these reasons, the Court Registry has delivered to me Mr. O.’s Notice of Motion which asks for the following relief: “Immediate payment of $3,550.00 from Ms.

C. as ordered by Judge Davis on March 11, 2011” [ 84 ] It would seem to me that Mr. O. is entitled to the money and that can best be done by deducting the sum claimed from the retroactive maintenance that he owes.

Ordinarily I would not have a debt between the parties used to offset child maintenance, however in this case the mother explained in her evidence that she used her savings to provide for the child, which savings she was keeping as ‘protection’ for her and the child. [ 85 ] Therefore, taking into account the father’s request, I will order that the monies he owes for retroactive maintenance be paid in full forthwith and from that sum there shall be deducted the sum of $3,550.00. The order will be that the father pays to the mother forthwith, the sum of $1,490.00.

This latter sum, I am satisfied the father can pay in full based on his imputed income. [ 86 ] I know that the father set the date for the hearing of his Notice of Motion for May 9, 2011 but taking into account the history of litigation in this court, namely, excluding the 7 days of trial, the parties have appeared in this court in excess of 30 times and all but three or four driven by the father, I am of the opinion that hearing need not take place in light of my decision. [ 87 ] I should also add that during argument, counsel for the mother asked that I make an order precluding Mr.

O. from starting any proceedings without leave of the court. I took the position that without counsel providing me with authority that I could accede to this request, I was not prepared to do so. It appears that our Court of Appeal had the same concern as I expressed to counsel; see Dima v. Dima 2011 BCCA 86 .