T.G. v. L.R. Date:, 2011 BCPC 246

Citation: T.G. v. L.R. Date: 20110913 2011 BCPC 0246 File No: 09-23372 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: T.G. APPLICANT AND: L.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MEYERS Appearing on their own behalf: T.G. Appearing on their own behalf: L.R. Place of Hearing: Vancouver , B.C. Date of Hearing: June 28 & 29, 2011 Date of Judgment: September 13, 2011 [ 1 ] This case involves the issues of custody, guardianship, primary residence and child maintenance. [ 2 ] Ms.

G. (“G.” or “the Mother”) and Mr. R. (“R.” or “the Father”) were dating for a short time. G. became pregnant. When G. was about 3 months pregnant, they decided to live together. They hoped that things would work out well in their relationship. [ 3 ] G. gave birth to their daughter, C., on [DOB]. She is now 2 ½ years old. The couple remained together for 6 months after C.’s birth. Things had not worked out well between them. There was no love, nor a desire to co-habit any longer, so the couple separated. [ 4 ] G. remained living in their former home with C.

R. moved into an apartment, elsewhere. [ 5 ] R. was an attentive, involved and loving father from the beginning. After their separation, he regularly took C. out for visits every Wednesday and had C. sleep over at his apartment every 2 nd weekend. This has continued since their separation. [ 6 ] With respect to child maintenance, they agreed to (a Consent) Order for Child Maintenance of $399.00 monthly. That Order was made by Her Honour Judge Phillips on May 20, 2010.

The Consent Order required that adjustments, if any, to the amount of the child support payments, were to be made on July 1, 2011. [ 7 ] R. regularly and voluntarily made all his $399.00 monthly payments until January 1, 2011, when he suddenly and unilaterally reduced his child maintenance payments to $240.00 monthly.

[ 8 ] R. explained that his employer, the Royal Bank of Canada, decided in April, 2010 to cease selling “over the counter stock” and that was his major source of commission. He explained how his income dropped dramatically after April, 2010 but he struggled to keep up his payments. He ended up selling his stock portfolio to maintain his $399.00 monthly payments but ran out of stock and savings by December, 2010.

He then felt that his income was just too low to allow him to continue to pay $399.00 monthly for child maintenance. [ 9 ] He filed an Application on December 13, 2010, asking the Court to reduce his child maintenance payments and to cancel his arrears (which then were only $1,000.00). This is part of the Application before me which relates to Judge Phillips Consent Order of May 20, 2010. [ 10 ] However, on his own, as of January 1, 2011 (before a Hearing of his Application), he unilaterally reduced his monthly child support payments to $240.00.

In December 2010, he had provided G. with a letter from the Royal Bank explaining why his income had substantially dropped as of April 2010. The reduction in payments was made without prior consultation with G. and without Court approval. [ 11 ] Insofar as R.’s current work and personal lifestyle is concerned, he explained that he has been and is still working on a commission basis with the Royal Bank Investment Department.

He started as a “rookie broker”; he had been increasing his income since he started with them but suffered that severe setback in April, 2010; he expects to earn about $32,000 in 2011; he said that his employer allows him the flexibility to work from home most of the time and he has the freedom to be available most of the time, to pick up, drop off or just be with C. whenever he wants to. [ 12 ] R. said that he has been in a serious personal relationship with the same woman for over one year; they moved in together several months ago. They are now engaged to be married in two months from now.

His fiancé also works for the Royal Bank, she is on a regular salary but unlike R. (according to his testimony), has set and regular office hours. [ 13 ] R. told the Court that his fiancé and C. get along well and enjoy one another’s company. Although she had been closely involved with R. for over a year and she has been living with R. for a number of months, R. refused to tell G. anything about her, telling G., “It is none of your business!” [ 14 ] R. told the Court that he and C. read, swim, play and do all kinds of other activities together.

They do a lot of talking and although they have a lot of fun times together, he does not have a problem setting rules and boundaries for C. and in directing “time outs”, as and when required. [ 15 ] R. wants joint custody, joint guardianship and to have C. live at his home 50% of the time. R. wants the Court to reduce or eliminate the Child Maintenance arrears that he accumulated since January 1, 2011 when he unilaterally reduced his child support payments.

R. wants his future child maintenance payments to be based upon his estimated 2011 income of $32,000.00 and to have the guideline payment amount to be retroactive to January 1, 2011. [ 16 ] Let me now turn to G.’s past and current situation. [ 17 ] Since they separated, G. and C. have lived alone in a 3 bedroom apartment. Mother and daughter each have their own bedroom and the third bedroom has been designated as a “play and education room”.

G. is a real estate agent who has specifically arranged to do a type of real estate work, with a special employer which allows her to structure her work so as to maximize her time with C. She is able to be available for C., pretty well as much as she wants. Her job is selling units in new condominium developments. The arrangement with her employer only requires her to show the units on the weekends. She works on commission and estimates that this year, she will earn between $45,000 to $60,000. [ 18 ] G., just like R., is a loving, patient, and caring parent.

She has spent a great deal of time with C., teaching her to talk, count, recognize colours, proper manners and about the world, generally. [ 19 ] Just like R., she is an affectionate parent and has C.’s best interests, front and center. [ 20 ] Before moving on to discuss C. herself, I want to first comment on the “communication problems” between the parents. [ 21 ] R. and G. did not get along well nor did they communicate well before they were separated and certainly their communication got even worse after they separated.

R. thinks that G. asks too many questions, gives him too many instructions, and generally tries to make his life difficult. G. thinks that R. doesn’t provide her with enough important information (that is, information which relates to C.), doesn’t accept or give any serious consideration to most of the input she gives him regarding C.’s upbringing and she believes that he frequently displays immature and poor parental judgment. [ 22 ] Let me turn now to young C. She is approximately 2 ½ years old and from all accounts, is a happy, bright and sociable child. She has no “special needs”.

Generally, she is a respectful and obedient child. Mother and Father both agree that C. has a loving and close relationship with each of them. Each parent said that C. is completely comfortable living at either of their respective residences. Each parent uses the “time out” technique for correcting C’s occasional misbehaviour. C. has been at the same daycare, close to G.’s home, since birth. She goes to daycare usually once or twice a week.

Dad incidentally, is content to leave C. at that daycare whenever outside daycare is required. [ 23 ] The law does not start with a presumption that when parents separate, it is generally best for a young child to live solely with their mother or solely with their father nor that the child live half of the time with each parent. The law also, does not presume that a mother makes a better parent than a father, nor vice versa. See: Gordon v. Goertz [1966] 2 SCR 27 ; and Robinson v. Filyk (1996) 28 BCCR (3 rd ) 21.

There are no presumptions to prefer a mother’s or father’s home, regardless of the child’s age, gender, health, learning issues, developmental issues or behavioural problems. [ 24 ] Each case is different, but the starting point, the middle point and the end point for deciding issues of custody, guardianship and primary residence for a child, are always the same and that is: “What is in the best interests of the child?”

[ 25 ] The Family Relations Act Section 24 (1) sets out the guidelines to assist the Court in answering that question. Section 24 (1) says: When making, varying of rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs 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 and duties adequately. [ 26 ] Each court case has to be decided uniquely, based on the special set of facts which are peculiar to the particular parents and child involved in the particular case before the Court. It is not difficult for a Court to decide issues of custody, guardianship and primary residence, when the abilities, personalities, experiences and willingness of the two parents, are starkly opposite to one another.

It is not difficult for a Court to decide issues of custody, guardianship and primary residence, when a child has serious “special needs” which will require a considerable amount of time to be spent with the child, including taking them to therapists, counsellors and doctors and only one of the parents, conceivably could do all of this and the other parent simply could not. In that type of situation, making a decision as to where it is in the best interests of the child to reside, is not a difficult one for the Court to make. [ 27 ] However, the case at Bar, is not similar to the cases I have just mentioned.

C., fortunately, does not have any “special needs”. Both parents love their child, have fine home environments and are each capable of raising C. Each parent has both the interest and time to help C. achieve everything that she is capable of. Education, social skills, sports, cultural activities and worldliness, are both parents’ priorities for C. [ 28 ] The parents have not, by themselves, been able to resolve the issue of C.’s primary residence.

They are at complete loggerheads and have asked the Court to make that decision for them. [ 29 ] It should be obvious from what I have already written, that Joint Custody and Joint Guardianship (on the Joyce Model) are unquestionably in the best interests of their child and that Order will be formally made later in this Judgment. [ 30 ] The primary residence decision, is not an easy one, because the overall background of each parent and the overall environment at each parent’s home, seem on the surface, to be pretty well equal to one another. [ 31 ] Even when both parents’ respective homes, lifestyles and abilities seem almost equal with one another, that does not automatically mean that a 50/50 alternating primary residence for the child is in the child’s best interests.

There are always other considerations to be weighed, as well. [ 32 ] In order for an ongoing 50/50 split between the two parents’ residences to work (and that is what the father seeks), there has to be considerable good will and open communication between the parents. If a child’s time is split 50/50 between the two parents, it is essential that the parents be able to talk and to resolve the constant and myriad of daily problems that arise when raising children. [ 33 ] “Consistency” is one of the most significant important factors in raising well adjusted children.

Both parents must be willing to communicate and compromise, so that as much as is humanly possible, they show a consistent face to their child. This applies to teaching their child how to behave, how to study, respect for others, time management, temper control, how to resolve disputes with peers and adults, “morality” (in the sense of what is right and wrong), empathy, charity and the list goes on and on. [ 34 ] R. and G. seem to have very similar attitudes and opinions about all of these important child rearing matters.

However, their past communication skills when trying to resolve specific problems as they arise, has not been good and hopes for vastly improved communication between them in the near or medium future, does not, in my view, appear to be realistic. [ 35 ] I have listened carefully to the stories each parent has chosen to tell as examples of the other’s alleged unreasonableness and intransigence. [ 36 ] When I listened to G., my impression was that when she took “hard line” positions, they were taken out of pure concern for C.’s best interests and did not reflect a sense of, “just because you are asking, the answer is ‘no’”. [ 37 ] When I listened to R. complaining about G.’s stubbornness, he attributed her intransigent position to her negative attitude towards him and her desire to do everything she could, to make his life difficult.

R. did not accept for a moment, that G.’s hard line” positions, were because she honestly believed saying “no” or adding conditions to his visits, were taken by her because she honestly believed that these positions would be in C.’s best interests. Instead, he saw G. as just trying to control him and make life difficult for him. I did not see G. that way at all. [ 38 ] When G. described situations where R. put his own interests ahead of C.’s, she clarified and explained that she was not saying that he was deliberately being selfish.

She said that she believed that R. sometimes just didn’t see the point, he was oblivious why certain things just would not be good for C. or why certain choices that he made, would be harmful to C. or simply, just not in her best

interests. She didn’t attribute any of this to malice or selfishness on his part, but rather, to immaturity and his desire to keep her out of his life as much as possible. [ 39 ] I share G.’s observations. [ 40 ] Following, are a number of examples which illustrate G.’s point and which I believe, are crucial for the Court to take into serious consideration, when determining where, in the best interests of C., should her primary residence, be: (

i) R. had his throat slashed in an altercation at a night club during the Stanley Cup playoffs. He was the innocent victim of a gruesome knife attack. His assailant was criminally charged with wounding. R. decided that it would be “cool” to put a picture of himself on his Facebook page. The photo showed him with fresh stitches from ear to ear. In the photo, his daughter was sitting on his lap. When G. heard about the photo on Facebook (about a month later), she was immediately alarmed and concerned about their daughter’s safety.

She called R. and forcefully expressed her concerns to him, arguing that the person who slashed his neck was a dangerous and violent person and might want to seek revenge against R. for having called the police, he would know that R. had a vulnerable young daughter and she would therefore, may be at risk. Although R. took the photo down, it wasn’t until two days later after G. had called him. He explained that the police had told him that his assailant had no criminal record and most probably would not pose a risk to R. or his daughter. The police told him that his assailant was “just a low level drug enforcer”.

In my view, R. took a calculated and totally unnecessary risk in posting the photos on his Facebook page. He demonstrated very immature judgment as a father, who always bears the awesome duty of protecting his child twenty four hours a day. (ii) On another occasion, G. learned that R. had a live-in girlfriend and she wanted to know some basic information about her. R. told her that it was none of her business and refused to even tell her the name of his girlfriend, let alone any background information about her.

R. failed to appreciate that G.’s inquiries were not out of jealousy or curiosity, but were out of a genuine need to know something about a person who would be living in the same house with their child and who was having close and frequent contact with C. R. did not really see how the sharing of such information was an integral part of each parent’s obligation to keep a vigilant look out for their child’s security. As a parent, this demonstrated a significant lack of understanding and judgment on R.’s part. (iii) On another occasion, when R. wanted to drive to the Okanagan with C., G. withheld her consent.

G. explained to him that she was concerned about the two of them driving on the highway on a busy long weekend. In the witness stand, R. wouldn’t even acknowledge that she may have had a point. Instead, he saw her as just wanting to make his life difficult and said that he remained angry at her for days. At the time, R. refused to even discuss his concern and instead was adamant that they were going to a family get together in the Okanagan and they had to be there for the start of it.

His lack of acknowledging or considering the possibility that G. might have a legitimate concern, again, showed a certain immaturity of judgment on his part. [ 41 ] In addition to the concerns which I have outlined in paragraph 40, there were also other concerns arising from the trial testimony which have influenced my decision as to whether residing at the Father’s residence half of the time, would be in C.’s best interests: (

a) R. had been living with his girlfriend for the past 6 months and they are to be married within a couple months. C. has been with both of them during visits with her father. After they are married, if R.’s Application were to be successful, C., R. and his new wife would all be living together half of the time. As I said, R. kept her existence and persona secret from C.’s mother, even though she was and is a very significant person in both C.’s and R.’s life. (

b) R.’s fiancé was not called as a witness at the trial; G. has never met her nor has G. ever been given any information about her. R. did not see why his fiancé should be of any concern to G. nor to the Court, for that matter. Let me explain it in this way: if G. had a live- in boyfriend, R. definitely would want to assure himself that her live-in partner, wasn’t a “Jack the Ripper”, a person who could pose a danger to C. or a person who would be a very bad influence on C.

R. would want to know more about her partner, his social background, his drinking patterns, if he had a past criminal record or if he had any serious mental health issues and so on. The Mother likewise, is entitled to that information concerning R.’s live-in partner. As far as the Court was concerned, I had to know in detail, about any person who would be living with and interacting with C. daily while at the Father’s home. It is the duty of the Court to consider the child’s well being.

The Court’s primary and only consideration when deciding where it would be best for the child to reside, is to decide what is in the child’s best interests. In the absence of R.’s fiancé/wife, coming to Court and testifying, the Court cannot possibly speculate or presume that she is a wonderful person and one who would offer safety, security and positive influences for C. Not having this information before the Court, is a crucial omission and must very strongly influence the Court’s ultimate decision as to where C.’s primary residence should be. (

c) Another part of R.’s testimony which raised some concerns about his judgment was this: He said that he had been raised in a household where his dad was strict and regularly used “corporal punishment” (spanking) to enforce proper behaviour. R. said that he is firmly of the belief, having experienced it himself, that spanking is not the way to discipline a child but rather, that “talk” or “time out”, is the much preferred method. However, he did add, that he believed that “sometimes”, spanking could be a necessary option. When asked, “When?” he answered, “Well, if the child lied or stole something”.

Once again, I don’t attribute any malice or lack of love for his child to be involved here but I do once again, question his parental judgment. (

d) Another illustration of the Father’s poor parental judgment was this: as I previously outlined in the brief

summary at the beginning of this Decision, R. unilaterally decided in January, 2011 that his income could no longer allow him to make the $399.00 monthly child support payments which the Court had ordered. A parent does not have the right to simply reduce the child support payments. The right to child maintenance and child maintenance in a certain amount, is the right of the child and the amount can only be varied by the Court that ordered that amount in the first place. (

e) R. testified that the Court Registry had told him when he filed his Application to Vary the Child Maintenance Payments, that he could simply continue to pay a lesser amount until the Court could hear his Application. I don’t challenge R.’s honesty, so I do believe that is what he honestly believed he was told. I do not believe however, that anyone at the Registry would have told him that. It was not

his decision to make unilaterally. Reducing the payments certainly was in his, but not in C.’s, best interests. To suddenly cut the child maintenance payments, would obviously immediately be detrimental to the child. It demonstrated very poor parental judgment when R. figured that C. could get by with less support money until he was able to “get back on his feet” sometime in the future. (

f) There is another aspect of R.’s testimony that concerned me. R. told the Court that his commission income dramatically dropped as of April, 2010 when the Royal Bank decided to stop selling “over the counter stock”. Much to R.’s credit, he sold all his investments in order to be able to continue making his regular $399.00 child maintenance payments. After his investments and savings were exhausted and his income had fallen substantially, he said that he simply no longer had the money at his disposal, to be able to make such large child maintenance payments.

But, he gave a very telling answer to a question G. asked him. When she asked R., how could he spend money on a trip to Mexico if he were “so tight for money?”, his answer was a very quick one. He told the Court that in fact, he had to cancel the Mexican holiday because he didn’t have the money to go but went on to say that he had to divert whatever money would have gone towards Mexico, to the savings fund for their trip to Turkey for his mother’s 60 th Birthday celebrations. R. and his fiancé went to Turkey for 9 days in June 2011. He did say that his mother had paid for his air ticket.

He told the Court that they stayed free at his mother’s home in Turkey. However, we all know that even when the flight and accommodations are both gifted, travelling and vacationing in Europe is still very costly. The reasonable but difficult decision, in the best interests of his child (as opposed to himself) would have been to forgo the trip to Turkey and give whatever money there was, to his daughter for child maintenance. This decision illustrates once more, R.’s immature and inappropriate parental judgment. [ 42 ] The Court always looks at the living environment in each of the parent’s homes.

In this case, neither Mother nor Father was represented by counsel and neither had pursued a “Section 15 Report”. A

Section 15 Report is where a social worker or child psychologist prepares a Report about each parent’s home, together with an analysis of the relationship between the parents themselves and the child’s relationship with each of their parents. [ 43 ] I am not concerned in this case that I don’t have a

Section 15 Report relating to the relationship between the parents themselves and between C. and each of her parents, individually. I have sufficient information from the testimony that I heard at the trial. The problem is that I have no information about the “X Factor” in R.’s home and life – his soon to be, wife. [ 44 ]

Section 15 Reports, although most often very helpful to the Courts, are not always necessary if the evidence presented at the trial itself, provides sufficient information to the presiding Judge. [ 45 ] In this case, the Father’s fiancé could easily have been called as a witness. She was not only an important person to hear from but an essential one, to assist the Court in deciding the issue of primary residence for C.

R. did not call her nor did he explain why he chose not to do so. [ 46 ] Her absence confirmed that R. still did not comprehend why it would be vital for the Court to know who would be living at the apartment with C. In order for the Court to make an informed decision as to where would be the best primary residence for C., the Court needed to know about everyone who would be living at each home.

R. did not understand its importance at the time when G. raised it and he still didn’t understand its importance when the trial began in June of this year. [ 47 ] Just so the Father doesn’t wonder why the Court would not have told him to call her as a witness, R. has to realize that the Judge does not “step into the arena” on behalf of one party or another. The parties are left, with or without counsel, to marshal the evidence and witnesses they want the Judge to hear and consider. That is their responsibility. The Judge hears and considers carefully all the testimony that comes before the Court.

The Judge does not, as they do in some other judicial systems, act in multiple roles of advocate, investigator and arbitrator. The Judges of Canada are to be impartial, independent and not serve as an investigator or an advocate for either side.

It is up to each side to call the witnesses who will give the Court, all the important information needed, to make their decision. [ 48 ] Although R.’s future wife, most likely is just as he sees her – caring, loving and responsible – the Court owes it to C. to confirm that as a fact, and not to simply rely on R.’s (bias) say so. [ 49 ] Since her parents separated (at age 6 months), C. has had her primary residence with her mother. The Father has had frequent, regular and generous visits with C.

The Father applied to change C.’s living arrangements to become alternating weeks or days between the parent’s residences on a 50/50 basis. [ 50 ] The Court has the obligation to C., to decide which living arrangements, both in the short and medium term, would be in her best interests. [ 51 ] As I have said, R. and G. both share the love, caring and the desire to provide the very best living environment for their daughter.

The Court is not called upon to decide a contest between mother and father, but rather to look very carefully at the whole picture of what life will be like, as far as that can be predicted, if C. were to be living primarily with one parent, to be living half-time with each parent or to be living some percentage with mother and another percentage with father. [ 52 ] The foregoing observations, which I have outlined, convince me that in C.’s best interests, both in the short and medium term, is that her primary residence should be with her mother. [ 53 ] I have concluded that changing residences during every week or every second week or every month, would not be in the best interests of C.

C. should be with her mother 2/3 of the time and her father 1/3 of the time because her father does not yet possess the same level of mature parenting judgment as G. does. [ 54 ] The Court Orders that the primary residence shall be with G., with the Father being permitted to have C. spend 1/3 of her time with him. [ 55 ] I hasten to add, that it is extremely important that the Father should be permitted to co-parent, 1/3 of the time. He should have very regular, frequent and liberal time with C. From everything written so far, it is obvious that C. will benefit immensely by having her

Father actively participating in her upbringing. I want to foster that because it clearly is in the best interests of C. [ 56 ] There are two important conditions to be attached to this part of the Order. One of these conditions is a “pre-condition”: Before any further overnights at R.’s home take place, G. must be allowed to meet R.’s fiancé and spend a few hours with her in order to gain some insight into her. After all, she will be spending a great deal of time with C. over the long term.

I leave it up to R. and the two women, to figure out the best and least intimidating environment for the two women to meet and talk to each other. The meeting between the two women should take place without R. being present. [ 57 ] The other condition, not a “pre-condition”, is that, prior to the beginning of each month, G. and R. are to mutually agree on a

Schedule for C. to spend 1/3 of her time, with her father. The 1/3 shall be composed of both the weekdays and weekend times that the parties arrange between themselves. Both parents shall be, as I trust they will be, reasonable and flexible with each other, so as to accommodate each other’s daily personal and business lives. The 1/3 time arrangement for the father, can be enlarged if the parties so agree from time to time and certainly can be increased over Christmas, Easter and summer vacations if the parties so agree.

The parties are to strive to get as close as possible to a 1/3 to 2/3 division of their time with C. [ 58 ] If the parties cannot agree on times and days for R.’s time with C., which I sincerely hope will not be the case, they are to seek the assistance of the Provincial Court Family Justice Counsellors to resolve the issues. Only if that avenue fails, can either party then apply to the Court, to resolve the disagreement between them.

Child Maintenance [ 59 ] R. asked that his child maintenance arrears be cancelled or in the alternative, that the previous Child Maintenance Order be ordered to be varied so as to retroactively reduce his payments and thereby lower his arrears. The original Child Maintenance Order was made on May 20, 2010 by Her Honour Judge Phillips. That Order required R. to pay $399.00 monthly and directed that that amount could be adjusted by the Court on July 1, 2011. [ 60 ] R. was regular and reliable in making the $399.00 monthly payments until his income dropped dramatically and his portfolio and savings were exhausted.

On January 1, 2011, he unilaterally reduced his child support payments to $240.00 and gave G. a letter from the Royal Bank confirming his substantial drop in commission income. I previously mentioned that on December 13, 2010, he filed this Application to vary or cancel his child maintenance payments. As mentioned, he unilaterally reduced his payments because he honestly believed that the Registry had told him that he could just continue with the lower payments until his Application was heard by the Court.

I said that was clearly a misunderstanding on his part because I do not believe that the experienced Registry staff would have given him that completely incorrect information. [ 61 ] His Application was finally heard by this Court in July, 2011 and by this Judgment, I shall resolve child the maintenance and arrears issues. [ 62 ] The law is clear that a parent’s reduced income is not a valid basis for a Court to cancel or reduce the parent’s past arrears. See: Semanik v. Saunders [2000] BCSC 1278 (Schultes,

J) and S. (D.B.) v. G. (S.R.) [2006] SCR 231. [ 63 ] Furthermore, if a reduction in child maintenance is ordered, its commencement date generally corresponds with the date on which the paying parent filed their Application to vary child maintenance payments. That is “generally” the case, but is not always the case. [ 64 ] In this case, R. did not file his Application to eliminate or reduce his arrears (and vary his payments), until December 13, 2010. I rule that whatever his arrears were as of that date, remain intact.

He was required by the Court Order of May 20, 2010, to continue paying $399.00 monthly until a Court varied the monthly payment amount. The monthly amount had not been varied as of January 1, 2011, nor at any time afterward, so he was required to continue paying $399.00 a month until this Judgment is rendered. [ 65 ] I turn next to the two issues: (

i) his arrears subsequent to January 1, 2011 and (ii) whether or not his child maintenance should be reduced to $240.00 a month, retroactive to January 1, 2011 or effective as of some other date. [ 66 ] On May 20, 2010, Her Honour Judge Phillips made an Order for the monthly child support payments to be $399.00. That Order was based on R.’s Guideline Income of $43,107.00. That Order was made with R.’s consent and with his counsel present in Court with him. [ 67 ] Mr. R. has, at this Hearing, produced evidence showing that his actual income for the calendar year 2010 unexpectedly fell to a low of $23,212.00.

It should be pointed out however, that in April, 2010, R.’s employer, the Royal Bank, advised him that they would no longer be offering “over the counter” stocks to the Royal Bank clients. R. knew right then and there that his income was going to drastically fall because that was precisely the type of securities which he relied on, to earn his commissions. [ 68 ] His Child Maintenance Hearing took place before Judge Phillips in May, 2010. I can only conclude that he did not, for whatever reason, tell Judge Phillips about his plummeting income.

After all, he knew about his problem as of April, 2010, which was one month prior to his Hearing before Judge Phillips. She made the Order by Consent and in the presence of his legal counsel. His income was set at $42,107.00 and his payments accordingly, were set at $399.00 a month. [ 69 ] Given that R. supported and agreed to the $399.00 a month Order, G. should be able to have some certainty in her financial affairs and be able to rely on $399.00 as being the amount of money to be paid steadily to her, to assist in carrying the living expenses of their child.

When R. filed his Application on December 13, 2010, he really was in no different position (knowledge-wise), than he was when he attended the May 20, 2010 Hearing before Judge Phillips. [ 70 ] In my view, his filing on December 13, 2010, requesting a reduction in his child maintenance payments, should not in the circumstances, cause this Court to look at the December 13, 2010 date as being any kind of changing point viz a viz his obligation to continue paying $399.00 monthly.

[ 71 ] However, I am of the view, based upon the evidence that R. provided at this Hearing, that his income should be imputed at $32,000.00, as of July 1, 2011 for the purpose of his future child maintenance payments. [ 72 ] Accordingly, based upon his imputed annual income of $32,000.00, his child maintenance payments shall be varied to $299.00 monthly effective July 1, 2011 and remain at that amount until and if, the Court in the future, orders that amount to be changed. [ 73 ] It is Further Ordered that R. shall provide G. with a copy of his filed 2011 Tax Return and 2011 Notice of Assessment, no later than June 1, 2012.

If the Tax Return and Notice of Assessment show a significant difference from the expected $32,000.00, annual income, then G. or R., can bring on a Court Application to review the future child maintenance payments. Any review, however, would be restricted to making any child maintenance variation, to be effective as of August 1, 2012 and onwards, only . Conclusion [ 74 ] Just so there is no misunderstanding: (

i) Primary residence of C. shall be with her mother, G.; (ii) C.’s father, R., shall have 1/3 co-parenting time with her; (iii) G. and R. are to arrange a

Schedule for R.’s 1/3 time with C., a week in advance of the upcoming month; (iv) When and if the parties cannot agree on the times that R. will be with C., they must first attempt to resolve the problem by seeing the Provincial Court Family Justice Counsellor and only if that fails, are they able to return to the Court for a resolution; (

v) Child maintenance payments remain fixed at $399.00 a month from June 1, 2010 until July 1, 2011; (vi) As of July 1, 2011, child maintenance payments are to be set at $299.00 monthly and to continue monthly at that amount, until and if, they are varied by the Court; (vii) A Review to determine whether or not chid maintenance payments may be varied as of August 1, 2012, and onwards, may only be requested in mid June or July, 2012; (viii) On the 1 st of June of each successive year, R. is to provide G. with a copy of his filed Income Tax Return and Notice of Tax Assessment for the prior year. [ 75 ] Dealing briefly with EXTRAORDINARY EXPENSES , the parties have agreed to split these costs 50/50, but they must discuss these extra expenses before either G. or R. actually incurs them.

If they cannot reach an agreement as to incurring any of these expenditures, they must first attend at the Provincial Court Family Justice Counsellor to assist them in a resolution, and only, after that, will they be at liberty to apply to the Court to resolve the particular disagreement. __________________________ P. R. Meyers Provincial Court Judge