J.J.T. v. J.P.T. Date:, 2014 BCPC 357

Citation: J.J.T. v. J.P.T. Date: 20140529 2014 BCPC 0357 File No: 1037559 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J. J. T. APPLICANT AND: J . P . T . RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Applicant: Mr. D. Smith Counsel for the Respondent: Ms. A. Oliver-Dunbar Place of Hearing: Prince George , B.C. Date of Hearing: July 25, Dec 6, 2013, Jan 28 and Mar 17, 2014

Date of Judgment: May 29, 2014 Background [ 1 ] Mr. T. and Ms. T. have been engaged in litigation concerning the primary residence of their children since August 2012. The aim of this decision is to resolve the issues between the parties concerning residence, parenting time and child support. [ 2 ] This matter first came to Court in August 2012. At that time an Application was made by Mr. T. to determine on an interim basis the primary residence of the children, D. T. born (d.o.b.) and R. T. born (d.o.b.), during the coming school year. [ 3 ] On August 30, 2012 this Court gave the following interim Order: 1.

The children would remain resident in Prince George with their father, J. T.; 2. A Custody and Access Report [as it was then called] would be prepared under S15 of the FRA (later designated an

Section 211 Report under the new Family Law Act ); 3. There would be a review of the matter after the report was completed and distributed; 4. J. J. T. and J. P. T. would have joint guardianship. While Mr. T. would have primary residence of the children, he was to discuss with Ms. T. any significant decisions that would have to be made with respect to the children including decisions about health, education, religious instruction and general welfare. [ 4 ] A

Section 211 Report was prepared and submitted on May 8, 2013 and filed on June 17, 2013. On July 25, 2013 this matter came before this Court for review and it was apparent that the issues between Mr. T. and Ms. T. had to be dealt with at a trial. [ 5 ] Evidence was heard by this Court on July 25 and December 6, 2013 and January 28 and March 17, 2014. Questions for the Court: 1. Whether the children should be primarily resident in Prince George or Pemberton, British Columbia? 2. Whether additional direction concerning the scheduling of parenting time and transportation to affect parenting time is required? 3.

Whether there are retroactive obligations of the parties for child support? 4. Whether there are future child support obligations of one or both parties? 1. The Primary Residence of the Children Facts [ 6 ] The T.’s separated in or about February 2010. For the next two years Ms. T. resided in Prince George. The children resided with her and Mr. T.’s parenting time depended on his work schedule. Mr. T. is a Millwright and as he was at that time, the junior Millwright at his place of employment. He had to take the less desirable graveyard shifts.

This made any regular or consistent access difficult. [ 7 ] It is agreed the parties separated in February 2010. Under the terms of the Separation Agreement that the parties drafted and signed, dated June 29, 2010 and entered in evidence as Exhibit 18, Mr. T.’s access with the children was every other weekend, alternating long weekends, holidays and Father’s Day. [ 8 ] Ms. T. testified that she had family connections with Prince George other than Mr. T. and the children. She eventually met Mr. E.

B. (her new partner) through the Internet and in January 2012, relocated to Pemberton, British Columbia to continue that relationship. The parenting situation reversed and the children resided with Mr. T. and have lived in the matrimonial home to date. Ms. T.’s intention was and is that D. and R. would relocate with her to Pemberton and live with her and Mr. B. once she became settled. The Family Law Act [ 9 ] The Family Law Act (the Act) division 6,

section 65 provides the conditions and analysis that the Court should consider when a guardian applies to the Court to relocate a child: Orders respecting relocatio n 69

(1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating

guardian.

(3) Despite section 37 (1) [best interests of child] , the court, in making an (order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that (i). the proposed relocation is made in good faith, and (ii). the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, an d (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (

a) of the factors described in subsection (4) (a), and (

b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [notice of relocation] ; (

d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. [ 10 ] In approaching the analysis I consider the following: 1. The objection to Ms. T.’s intention to relocate the children to Pemberton is made by Mr. T. who is a guardian as defined at

section 39 of the Act ; 2. The parties entered into a Separation Agreement (Exhibit 18) on June 29, 2010. The Agreement, which addresses issues of the separation, Mr. T.’s access to the children and payment of child support by Mr. T. to Ms. T., is silent on any issue of relocation; 3. The analysis in the interim decision noted the children had been resident with Mr. T. since January 27, 2012, the date of Ms. T.’s departure to Pemberton. Mr. T. had taken steps to obtain counselling for the children as they were having emotional difficulties dealing with their parents’ separation.

At the time of the Application in August 2012, this counselling was ongoing. That Application took place six days before the school year was to begin in September. Another factor considered was the support for the children from Mr. T.’s extended family in Prince George; 4. In October 2012 Mr. and Ms. T. filed in Court a document titled Access Agreement for J. J. T. and J. P. T. This document set out the scheduling, transportation and other details to implement Ms.

T.’s liberal and generous access to the children. [ 11 ] The criteria under section 69 (4) and 69 (5) focus the Court’s attention on the factors of the good faith of the relocating guardian, the procedures put in place by the relocating guardian to facilitate the relationship of the child with the other guardian, and the best interests of the child.

It is noted each parent has had primary residence of the children for approximately two years each. [ 12 ] In assessing the good faith of the relocating guardian section 69 (6) provides as follows: For the purpose of determining if the proposed relocation is made in good faith the court must consider all relevant factors including the following: 1. the reasons for the proposed relocation;

2. whether the proposed relocation is likely to enhance the general quality of life of the child and if applicable of the relocating guardian including increasing emotional well-being or financial or educational opportunities; 3. whether notice was given under

section 66 (notice of relocation); 4. any restrictions on relocation contained in the written agreement or an order. [ 13 ] The question as to whether the children should relocate from Prince George to Pemberton also depends on the best interests of the child, as set out in

section 37 of the Family Law Act . 2. The Best Interests of the Children [ 14 ] The parties were married in 2004 and resided in Prince George. The date of separation is February 22, 2010. [ 15 ] During 2011 Ms. T. met her current partner, Mr. B., on the Internet. [ 16 ] The relationship flourished and after an in person meeting with Mr. B. she moved to Pemberton on January 27, 2012. They subsequently moved in together in late 2012. [ 17 ] Ms. T. assumed that the children would come and live with her in Pemberton on a full-time basis in September 2012. She described for the Court how she and Mr.

B. had rented a seven bedroom house and that on several occasions the children had visited her in Pemberton. In fact, at the time the hearing on August 28 and 29, 2012, the children had spent a portion of the summer with Ms. T. and Mr. B. in Pemberton. [ 18 ] Ms. T. admitted under cross-examination that life for the children in Pemberton would not necessarily be better than life in Prince George, but “it would be different”. [ 19 ] I am satisfied that Ms. T.’s relocation to Pemberton was to establish a new life with Mr. B. and to see what professional opportunities might be available in that location.

Her intent was not to deny or defeat Mr. T.’s relationship with the children. [ 20 ] It is also apparent the efforts made by Mr. T. and Ms. T. have afforded opportunities for parenting time to maintain Ms. T.’s relationship with the children. Both parties have driven a lot of miles between Prince George and Pemberton and expended a lot of money to ensure that once per month the children spend a weekend with Ms. T. in Pemberton. Usually these exchanges involve driving by both parties between six to seven hours to the pickup/drop-off point. [ 21 ] The thrust of Ms.

T.’s case is that her children are in need of her constant emotional support and guidance. Her daughter, D., is becoming a teenager and Ms. T. testified that she and her daughter often discuss her daughter entering puberty and going through certain physical changes. Being separated from her daughter in another location is clearly upsetting to Ms. T. I also note from testimony that D. speaks of these same issues with Ms. K. M., her father’s partner. [ 22 ] Ms. T. argues her children should reside with her as they are struggling academically.

She believes they do not receive the required attention and support in Mr. T.’s home when it comes to completion of homework and assignments. She was particularly concerned about R. having difficulty with a math question that took an hour and a half to solve. This occurred when neither Mr. T. nor Ms. M. were at the home to assist. [ 23 ] Ms. T. told the Court that there are plenty of family activities available in the Pemberton and that her children’s interest in sports, particularly R.’s participation in hockey, can be pursued equally as well in Pemberton.

The reason for that explanation is that D. and R. are very active in sports in Prince George. R. is an avid hockey player, plays in a minor league and participates in a number of tournaments. He also plays basketball at school. D. is a keen athlete who plays volleyball and basketball. The Court heard testimony that Ms. M. coached D.’s volleyball team at school. [ 24 ] The Court was provided with the first term progress report of this academic year for D. and R. [Exhibits 14 and 15].

It is noted that R. made the Honour Roll and that D. made the Principal’s List. [ 25 ] On the last day of testimony the second term progress reports for R. and D. were entered into evidence [Exhibits 28 and 29]. R. maintained his place on the Honour Roll and D. maintained her place on the Principal’s list. The

Section 211 Report [ 26 ] Section 37 (2)(

b) of the Family Law Act specifically points out that one of the considerations in determining the best interests of the child is “the child’s views unless it would be inappropriate to consider them”. Given the ages of the children in this case, a

Section 211 Report (Exhibit 3) is of assistance. Interviews were conducted by Nancy Callan, a Family Justice Counsellor, of the parties and their new partners, D. and R., as well as their school support worker, their counsellor and the daycare administrator. [ 27 ] Ms. Callan wrote in the report at page ten: “Parental capacity: Both parents offer a child focused healthy upbringing for the children. They have both chosen stable partners who are themselves

experienced parents and care for R. and D. as their own. Both parents continue to connect individually with the school and have both attended parent-teacher interviews. J. appears less aware of the emotional impact of her move upon the children and has contributed to the children’s burden by involving them in at the adult conflict. J. is aware of the pressure on the children and has taken steps to support them through consulting with daycare, arranging counselling and limiting their exposure to the details of the adult conflict.

Both parents have a heightened sense of defensiveness with each other due to the pending court process. J. feels J. is looking for material to use against him in court and so is limiting his communication with her; J. feels that J.’s excluding her from being informed about the children because he has primary residence.” [ 28 ] In the

summary and recommendations Ms. Callan writes: “D. expressed some preference to live with her mother while in Pemberton, but seemed anxious about possibly having to express the preferences while in Prince George. She spoke about her desire to graduate with her class in Prince George. R. expressed no preference. Both children appear anxious about the court case and sad that their mother moved away, while also enjoying time spent in Pemberton. It is my recommendation that both parents remain guardians and that the children remain living in Prince George. [ 29 ] The remainder of Ms.

Callan’s recommendations will be discussed further under the heading of parenting time. [ 30 ] I accept Ms. Callan’s recommendations for the following reasons: 1. Ms. Callan was not required to testify by either party or cross-examined regarding her conclusions; 2. Ms. Callan’s findings of fact are supported by the evidence that I heard from the parties and their partners; 3. I am satisfied that the children’s health and emotional well-being is certainly supported in Prince George; 4. I also take into consideration the views of the children. D. will be 13 years old in the summer and R. will be 12 years old.

I cannot ignore their views. Ms. Callan found that the preferences for both D. and R. are to remain with their father and Ms. M. in Prince George. 5. Since the period of the relocation of Ms. T. to Pemberton, Mr. T. has worked very hard maintaining her relationship with the children. [ 31 ] In determining the weight to provide the recommendations and conclusions to give to the

Section 211 Report, the case of B. (P.A.) v B.(T.K.) 2004 BCSC 72 is of assistance. Mr. Justice Parrett noted at paras 34, 35 and 36: [34] The author of a s. 15 report is writing for two difficult audiences; she or he is reporting to the court which appointed him or her; and, to the parties whom she or he has assessed on the court’s behalf.

It is for this reason that the authors conduct must scrupulously maintain an approach that is balanced and fair and impartial. [35] Once the report has been received either party is at liberty to compel the author’s attendance for cross examination and may lead evidence as to the factual matters contained within the report. [36] Given these various safeguards, the proper approach is, in my view to consider the factual aspects of the report to the prima face the evidence as to the truth of those facts.

Whereas, in the present case, neither party has challenged the report itself and neither has required the attendance of its author the report should be considered a part of the evidence as a whole placed before the court.” [ 32 ] These are the reasons for the decision: 1. Mr. T. and Ms. M. both gave evidence to the Court. Ms. M. resides with Mr. T. and the children. I concluded they have a stable and happy home. Ms. M. is very active in the support to the children both emotionally and with regard to homework and sports. 2. It is quite apparent to the Court that Mr. T. and Ms. T. are both in stable relationships.

Each parent with their new partner has established a good home environment for the children. All four are gainfully employed. 3. I conclude from the evidence of Ms. T., that she has always been a self-starter. She established and operated her own certified daycare when the children were young and later became a bookkeeper and sed that qualification to work in the areas of office administration and project management. 4. The alleged shortcomings of either parent disclosed in the evidence were minor in nature and did not detract from that parents’ ability to provide emotionally or materially for the children. 5.

I rely on the conclusions in the

Section 211 Report in my consideration of the best interests of the children. 6. The children needed a period of counselling to deal with their parents’ separation. The children reached a point where, as Mr. T. testified, they ran out of things to talk about with the counsellor. I conclude from that the children are sensitive to the disruption these

events have caused. Finding [ 33 ] Based on the evidence I have heard in Court and the recommendations in the

Section 211 Report, I conclude that it is in the best interests of the children to remain living in Prince George with their father. 3. Whether additional direction concerning the scheduling of parenting time and transportation to effect parenting time is required? [ 34 ] Having determined that the children should remain in Prince George living with their father, Mr. T., I now examine the second question of parenting time for Ms. T. [ 35 ] I would point out that for the last two years the parties have worked together to ensure that Ms. T. has parenting time with the children.

The difficulty is the seven hour round-trip for each party from their homes in Prince George and Pemberton to the drop-off point near 100 Mile House. The parties are able to make it work even though each harbours some resentment to the other in consideration of the amount of effort and money being expended. [ 36 ] From the testimony these are the points: Mr. T.: 1. Mr. T. sees himself as carrying the total financial responsibility for the children. The evidence is that Ms. T. has not contributed to the child support or to the extraordinary expenses during the last two years. 2. Mr.

T. is a Millwright and earns a good income. One of his witnesses testified as to Mr. T.’s situation at work. There are 40 Millwrights at the mill where Mr. T. is employed. In terms of seniority Mr. T. is number 35, i.e. fifth from the bottom of the list. This does not give him a lot of flexibility to make changes in his schedule. For example he only has two statutory holiday long weekends, namely, Family Day and Easter Monday. The remainder of the long weekends in the calendar year he is obliged to work the holiday Monday. His hours are from 7 AM to 5 PM Monday through Thursday. Ms. T.: 1. Ms.

T. feels that she has not been informed or consulted when it comes to major decisions in the children’s health, education or general advancement. 2. While on paper it would appear that both parties are driving equal distances to travel to the rendezvous point, Ms. T. argues that the road from Pemberton to the drop off point is more challenging than the highway from Prince George. She has to drive through the Duffy Pass which has been subject to mudslides and road closures. 3. Ms. T. finds the costs of travel to and from the rendezvous point to be financially demanding.

Since she left Prince George in January 2012 she has had to assign herself into bankruptcy because of mounting debts. Her evidence is the debts were incurred to take care of the children when they visited her and Mr. B. in Pemberton. She blames Mr. T., in part, claiming that his lack of financial disclosure during the early part of their separation placed her at an economic disadvantage as she was not receiving the proper amount of child support. 4. She also feels that she is the one making economic sacrifices.

She testified she missed approximately 16 days of work as a result of time taken to travel to pick up/drop off the children for her weekend visits. She also feels the visits are too short and that each visit on a regular weekend only allows for Saturday for her to be with the children as the Friday and Sunday are spent driving. If Mr. T. were to take time off work and the children were to travel earlier on Friday, or even Thursday, she could have longer visits. 5. Mr. T. points out that if he takes off a ten hour day it will cost him a lot of money in lost salary.

Right now he is the sole support for the children as Ms. T. is not paying any child support. 6. I also note the testimony of Mr. G., the supervisor from the mill. Mr. T. has been refusing overtime to spend more time with the children and help effect the monthly access. Mr. G. indicated that a junior Millwright like Mr. T. is expected to work overtime and the fact he has turned down offers of overtime 78 times is probably not looked on with favour by management. 7. Long weekends do allow Ms.

T. to have an extra night with the children, but it means a longer drive on Monday as the drop off point is in south Quesnel. Mr. T. does not get off work on a holiday Monday until 5:00 PM (other than the two I have mentioned). [ 37 ] There are compelling arguments on both sides of this issue. The vast distance involved between Pemberton and Prince George, plus the lack of flexibility of Mr. T.’s work schedule, makes it difficult for the Court to order effective terms to create a satisfactory “work around”. Given these factors the Court adopts the recommendations of Ms. Callan in the

Section 211 Report found at Exhibit 3. Ms. Callan addresses parenting time as follows: 1. The children spend their spring break and summer holidays with Ms. T. with the exception of two weeks in the middle of July and the final week before school begins. This time will be spent with Mr. T. in Prince George.

2. Christmas will be spent with each parent on alternating years. By that term I would interpret Ms. Callan’s report to mean that the entire Christmas holiday is spent with each parent in alternating years. 3. Ms. T. would have the children for the Christmas break of 2014 and the parties would alternate thereafter. I do leave it open however for the parties to make agreements between themselves to split the time at Christmas. 4. The children have the opportunity to see Ms. T. in Prince George whenever she is available. 5.

The children would visit their mother every second month in Pemberton with transportation and associated cost shared by the parents. In this case, each parent pays their own costs in fuel and related expenses. 6. Unlimited texting and phone calls between the children and Ms. T. continue in addition to two or more Skype calls per week. Mr. T. had testified that sometimes as a disciplinary measure he has deprived the children of their cell phones. Mr.

T. is to determine other means of disciplining the children or removing other privileges to discipline the children as opposed to removing the means of communication between the children and Ms. T. 7. Mr. T. is to send a weekly email update on the children to Ms. T. and ensure that she is consulted on all guardianship related decisions. [ 38 ] The one change the Court can provide is that the drop-off point will be at the Tim Horton’s restaurant at 100 Mile House.

I make this change as I note the safety concerns about the parking lot at Casey’s Truck Stop, the current drop off point located ten kilometers north of 100 Mile House. I accept the evidence of Ms. T. and Mr. B. there are better facilities available in town rather than at the truck stop. [ 39 ] My analysis is that the months that present the parenting time difficulties are September, October, November, January and May. Although there are long weekends that fall in these months, Mr. T. does not get these long weekends under his contract.

For now the parenting time during these months remains a challenge for the parties. [ 40 ] I am not going to order Mr. T. to take time off work to affect the long weekend access. I have concerns from the evidence about his refusal of overtime. I do not want a court order to miss his regular shifts to be the tipping point where his employer decides to review his contract of employment. My hope is that as Mr. T. becomes more senior at his place of employment, he might be able to have more flexibility on his schedule.

Such flexibility could ease some of the dissatisfaction with the travel arrangements I heard in evidence. 3. Child Support February 2010 to March 31, 2014 [ 41 ] The parties separated in 2010 and Ms. T. had care of the children until January 2012 when she moved to Pemberton. In addressing the quantum of child support for this period, Ms. T.’s counsel argues Mr. T.’s income for the relevant three years should be calculated as follows: Year Income Amount of Monthly Child Support Amount Owing 2012 $ 97,823.00 $1,431.75 $ 758.33 2011 $174,933.00 $2,418.16 $19,917.96 2010 $ 83,409.69 $1,279.97 $ 8,249.72 [ 42 ] Ms.

T., from the date of separation February 1, 2010 up to and including January 1, 2012, received from Mr. T. child support in the amount of $758.00 per month for a total of $14,408.27. Ms. T. argues that had she received timely financial disclosure of Mr. T.’s annual income Mr. T. should have paid, in accordance with the Guidelines , higher monthly child support for a total of $43,249.37, less the $14,408.27 Mr. T. paid. Ms. T. argues the shortfall under the Child Support Guidelines amounts to $28,841.11. [ 43 ] I note the following however:

Section 150 of the Family Law Act states:

(1) If the court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if (

a) The parties consent under

section 219 [persons may consent to order being made] or having an agreement respecting child support, and (

b) The court is satisfied the root reasonable arrangements have been made for support of the child.

(3) Despite subsection 1, a court may order child support in an amount different from that required by the child support guidelines if satisfied that: (

a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property other than an agreement respecting child support, benefits the child directly or indirectly or that special provisions have otherwise been made for the benefit of the child, and (

b) applying the child support guidelines would be inequitable in consideration of the agreement, order or special provisions. 2. Section 17 (1) of the Child Support Guidelines states: If the court is of the opinion that the determination of a spouses annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a nonrecurring amount during those years. [ 44 ] I note the following commentary from Dr. Julien Payne writing in CHILD SUPPORT GUIDELINES IN CANADA – SOME LANDMARK CASES 2012 (Toronto: Irwin Law, 2012):

Section 17 of the Federal Child Support Guidelines provides various means whereby a court can address non-recurring or fluctuating annual incomes. The most widely used means of dealing with this problem under s. 17 of the Guidelines is by way of averaging the annual income over the three most recent taxation years.

Section 17 of the Guidelines confers discretionary, not mandatory, powers on the court that are exercisable in the search for the fairest determination of a spouse’s income. When averaging a parent’s income over the three preceding taxation years pursuant to s. 17 of the Federal Child Support Guidelines, s. 16 of the Guidelines does not require the court to rely on the pattern of income revealed in the parent’s income tax returns.

Additional income may be imputed to the parent pursuant to s. 19 of the Guidelines before the averaging of the last three years of income is undertaken. [ 45 ] When the T.’s separated it was agreed in writing between the parties that Mr. T. would pay $758.33 per month in child support to Ms. T. Ms. T. agreed with this lesser amount as Mr. T. advised that he could not pay child support and maintain the mortgage of the family home. I note from the Separation Agreement, Exhibit 18, that Mr. T. took responsibility for the following family debts: 1. Mortgage $157,000.00 2. Line of Credit $27,308.24 3.

Scotiabank Visa $6,398.00 [ 46 ] I find that the Separation Agreement meets the criteria of s. 150 particularly paragraph (4). The evidence is quite clear that at the time of separation Mr. T. took on a lot of the major financial liabilities facing the family. Ms. T. recognized this in 2010 and for that reason consented to the lesser amount of child support. I infer this consent applied until such time as the family finances had been stabilized by Mr. T. I note Mr. T.’s increases in his income in the subsequent years to the separation. My view then is that for 2010 Mr.

T. should have paid child support in the amount of $758.00 for ten months for a total of $7,580.00. For the years 2011 and 2012, Mr. T. should have paid support as per the Child Support Guidelines . [ 47 ] I note from Mr. T.’s Financial Statement and his testimony that his income for 2011 was increased by a return of his contributions in the amount of $74,000.00. Mr. T. received these funds because the mill where he worked closed and his pension contributions were returned. Mr. T. placed these funds in another financial vehicle for which he received a deduction on his taxes for the year.

Given that situation it would be unfair to include the return of these pension contributions as income. [ 48 ] Applying the discretion permitted me by

section 17 of the Child Support Guidelines, I believe Mr. T.’s salary for 2011 is $101,000.00 which would mean a monthly child support payment of $1,495.00 per month or $17,940.00 for the year 2011. [ 49 ] In other words from February 2010 to January 1, 2012, Mr. T.’s child support obligations would be as follows: 2010 - $7,580.00 less payment of $4,549.98 (six months of payments) for a short fall of $3,030.02 2011 - $17,990.00 less payment of $9,099.00 for a shortfall of $8,891.00 2012 - $1,431.00 less payment of $758.00 for a shortfall of $673.42 [ 50 ] Mr.

T.’s total obligations for payment of child support would amount to $27,001.00. Once the $14,408.27 already paid is deducted his arrears amount to $12,592.73. Ms. T.’s Child Support Obligations [ 51 ] Ms. T. has not paid any child support or extraordinary and special expenses under s. 7 of the Federal Child Support Guidelines .

Both children are active in sports, during the winter and the spring, and Mr. T. has paid this himself over the last two years. [ 52 ] Ms. T. went from a job in Prince George where she earned $80,000.00 per year to a job in Pemberton that paid approximately half that sum. In cross-examination she admitted that she had done a cursory job search in Prince George after her position was made redundant on January 2, 2012 but found nothing that would provide the same income. She left for Pemberton by the end of that month. [ 53 ] A year later on January 16, 2013 Ms. T. made a voluntary assignment into bankruptcy.

She is still required to make monthly payments to the trustee in bankruptcy in the amount of $217.96 per month. Ms. T. claims she went bankrupt because of mounting credit card debt created by insufficient child support payments from Mr. T. I am not convinced on the evidence that I heard that Mr. T. is the sole cause of Ms. T.’s bankruptcy especially when I consider the amount of family debt that Mr. T. assumed on the separation. [ 54 ] Ms.

T.’s arrears in child support is calculated as follows: Income Monthly Child Support Annually 2012 $35,685.95 $549.01 $6,039.11 2013 $44,846.18 $682.18 $8,186.16 2014 $38,638.00 $594.01 $1,776.21 (3 months) [ 55 ] During the period February 1, 2012 to March 31, 2014, therefore, Ms. T.’s arrears (as indicated by counsel) are in the amount of $16,001.48. When this figure is subtracted from Mr. T.’s arrears ($12,592.73 - $16,001.48) the remainder, which is in fact Ms. T.’s net arrears, is in the amount of $3,408.75. 4. Current Child Support Obligations [ 56 ] I conclude from the evidence of Ms.

T. that she has always been a self-starter. She established and operated her own certified daycare when the children were young and later became a bookkeeper and used that qualification to work in the areas of office administration and project management. She has good earning potential in the future and I conclude her income will increase in the coming years even though her move to Pemberton from Prince George has limited her employment opportunities. [ 57 ] Based on current income as stated above, Ms. T. will, as of April 1, 2014, pay Mr.

T. the sum of $682.18 per month representing her obligation for child support for the children. [ 58 ] Ms. T. will pay for one third of the extraordinary and special expenses. I base this decision on the differences in income, and the loss of some work days that Ms. T. may experience to affect her access. Conclusion [ 59 ] The Order in this matter will go as follows: 1. Mr. T. and Ms. T. are both the guardians of the children; 2. Mr. T. will have primary parenting responsibilities for the children; 3. Mr. T. shall have primary residence of the children; 4. Commencing July 1, 2014, Ms. T. shall pay Mr.

T. the amount of $682.18 per month child support; 5. Ms. T. will pay for one third of the extraordinary and special expenses for the children; 6. Parenting time for Ms. T. shall be set out as per the recommendations from the

Section 211 Report, or as agreed by the parties. _______________________ R. W. Callan, Provincial Court Judge Province Of British Columbia