R.L.B. v. T.A.J.G., 2021 BCPC 175

Citation: R.L.B. v. T.A.J.G. 2021 BCPC 175 Date: 20210621 File No: [Omitted for publication] 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: R.L.B. APPLICANT AND: T.A.J.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.J. BRECKNELL Appearing on their own behalf: R.L.B. Counsel for the Respondent: J. Murphy Place of Hearing: Prince George , B.C. Dates of Hearing: December 8, 2020, January 12, 2021, May 31, 2021 Written Submissions on behalf of R.L.B.: March 19, 2021 and April 30, 2021 Written Submissions on behalf of T.A.J.G: April 16, 2021 Date of Judgment: June 21, 2021 INTRODUCTION

[ 1 ] R.L.B. and T.A.J.G. (jointly the “Parties”) are the parents of N.J.G., born [omitted for publication] and D.A.G., born [omitted for publication], (collectively the “Children”). [ 2 ] The Parties have been engaged in litigation at various times and on a variety of issues since 2011. The matters before the Court are the latest

chapter in those legal disputes. [ 3 ] The most recent pleadings describe the relief sought by the Parties which require the Court’s determination and include:

a) Retroactive and prospective child support;

b) Special and extraordinary expenses;

c) The Parties’ income for the years at issue; and

d) The Children’s residences for the years at issue. FAMILY HISTORY [ 4 ] R.L.B. was born on [omitted for publication], and is 40. She is employed as a [omitted for publication] for a [omitted for publication] company. [ 5 ] T.A.J.G. was born on [omitted for publication], and is 40. He worked for a number of employers, but has been unemployed since the fall of 2019. He was studying to be a [omitted for publication] and was recently certified in that area. [ 6 ] The Parties commenced a common-law relationship in 2000. They were married on July 10, 2005.

They separated and reconciled several times before finally separating on January 1, 2011.

RECENT PLEADINGS AND ORDERS [ 7 ] Although there was relief sought and orders made since the litigation commenced, this decision will only refer to the portions of past pleadings or orders that bear on the matters arising from the most recent Applications and Replies before the Court. [ 8 ] The Parties entered into a Separation Agreement filed on March 4, 2011, which dealt with issues of custody and visitation, child support, Registered Education Saving Plan (“RESP”) payments, property, debt and expense payments, personal property and insurance. [ 9 ] The Parties entered into a Revised Separation Agreement filed on January 9, 2012, which dealt with the issues of custody and visitation, child support, RESP payments, personal property, former family home, other issues, spousal support and insurance. [ 10 ] On June 17, 2013, the Court made a Final Order, by consent, on the many issues outstanding at the time, including many of the issues previously dealt with in the Separation Agreement and Revised Separation Agreement.

The portions of that Order related to the present litigation include:

a) The Parties share joint guardianship and joint parental responsibilities;

b) The Parties will have equal parenting time with the Children;

c) Neither Party will pay Child Support to the other, but will pay the Children’s Special Expenses as set out in the Order;

d) Each Party shall each pay one-half (½) of the Children’s Medical, Dental, Orthodontic and Extended Health Care Costs not paid for by a health insurance plan (“Uninsurable Health Care Costs”);

e) R.L.B. shall initially pay the Uninsurable Health Care Costs and shall notify T.A.J.G. of the amount of his one half share of those costs and provide to T.A.J.G. written verification from the health care provider or merchant supplier of the amount of the cost;

f) If T.A.J.G. does not pay his one-half (½) share of such Uninsurable Health Care Costs upon R.L.B.’s written request, he shall reimburse her for his one-half (½) share within 15 days of the date of payment;

g) Each Party shall pay one half of the Children’s School Expenses as defined in the order;

h) R.L.B. shall initially pay the School Expenses and shall notify T.A.J.G. of the amount of his one-half (½) share of those costs, and provide to T.A.J.G. written verification from the school or service provider of the amount of the cost;

i) If T.A.J.G. does not pay his one-half (½) share of such School Expenses upon R.L.B.’s written request, he shall reimburse her for his one-half (½) share within 15 days of the date of payment;

j) Each Party shall pay one half of the Children’s Extra-Curricular Activity Expenses, including lacrosse as defined in the order;

k) Neither Party shall possess, use, or be under the influence of any illegal drugs while in the presence of, or while caring for, the Children;

l) Neither party shall have in their residence any illegal drugs or substances contrary to the Controlled Drugs and Substances Act ( CDSA ) while the Children are in their care;

m) Any payments a party makes to the Children’s Registered Education Savings Plan (“RESPs”) will be credited towards that Party’s share of the Children’s post-secondary education expenses; and

n) Each Party is at liberty to apply to Court to vary the terms of the Order upon a change in circumstance. (the “2013 Order”). [ 11 ] On November 22, 2018, T.A.J.G. filed an Application to Obtain an Order seeking guardianship, contact with a child, parenting time, allocation of parental responsibilities, child support and primary residence. He stated that the Children were residing with him full- time. He said that R.L.B. told him that her income was $112,000 per year.

He claimed guideline child support, special or extraordinary expenses for sports and retroactive support to March 16, 2018. [ 12 ] On December 11, 2018, R.L.B. filed a Reply disagreeing with the Application of T.A.J.G. and that it would not be in the best interests of the Children to change the custody, guardianship or parenting time of the 2013 Order, but that there should be an amendment of that order under

section 147 of the Family Law Act (“ FLA” ) . She said T.A.J.G. told her his income was $55,000 per year. [ 13 ] On April 3, 2019, at a Family Case Conference (“FCC”), the Court ordered, by consent:

a) The Parties equally share parenting time of D.A.G., and N.J.G. primarily resided with T.A.J.G.;

b) R.L.B. was found to have an income of $95,000 and T.A.J.G. was found to have an income of $45,000;

c) Effective May 1, 2019, and on the first of each month thereafter until further Court order, R.L.B. to pay T.A.J.G. child support of $1,454.00 and T.A.J.G. to pay R.L.B. child support of $423.00, for a set off amount of $1,031.00 from R.L.B. to T.A.J.G.; and

d) The Parties would continue to share the costs of Extra-Curricular Activity Expenses under the terms of the 2013 Order. (the “2019 Order”). [ 14 ] On August 7, 2019, R.L.B. filed an Application to Obtain an Order seeking full custody of the Children, without notice. The Application stated that N.J.G. resided full-time with T.A.J.G. and D.A.G. resided 50/50 with both Parties. The same day, she filed a Notice of Motion seeking full custody, without notice. [ 15 ] On August 16, 2019, T.A.J.G. filed a Reply to R.L.B.

Application disagreeing with her request to change 2019 Order to full custody, without notice. [ 16 ] On September 24. 2019, R.L.B. filed a Notice of Motion seeking disclosure of RCMP records pertaining to T.A.J.G.’s arrest on or about August 1, 2019. [ 17 ] On October 17, 2019, the Court ordered that certain documents in the possession of the Royal Canadian Mounted Police (“RCMP”), concerning T.A.J.G. and the Ministry of Children and Family Development (“MCFD”), concerning the Children be disclosed to R.L.B. and, through her, provided to T.A.J.G. [ 18 ] On October 21, 2019, R.L.B. filed a Notice of Motion seeking disclosure of documents from the Director of Public Prosecutions for Canada (“DPP”) regarding T.A.J.G.’s criminal charges. [ 19 ] On November 7, 2019, the Court ordered that certain documents in the possession of the DPP concerning T.A.J.G. be disclosed to R.L.B. and, through her, provided to T.A.J.G. [ 20 ] On January 14, 2020, the Court ordered, by consent, that a full report be prepared pursuant to

section 211 of the FLA . That request was cancelled, by consent, on January 12, 2021. [ 21 ] On July 17, 2020, R.L.B. filed an Application Respecting Existing Orders or Agreements asking that the 2019 Order be suspended. [ 22 ] On September 18, 2020, T.A.J.G. filed a Reply disputing the July 17, 2020, Application.

It stated that D.A.G. resided with the Parties on a 50/50 basis except for eight months when D.A.G. resided with him and N.J.G. resided 50% with him and 50% at friends while receiving support from him. [ 23 ] On October 23, 2020, T.A.J.G. filed a Reply disputing the suspension of the 2019 Order and that any arrears be reduced or cancelled stating that child support stopped in July 2020 and R.L.B. should be responsible for supporting the Children. [ 24 ] On November 19, 2020, the Court ordered, by consent, that the Parties comply with conduct orders as provided for in the FLA . [ 25 ] On November 26, 2020, the Court ordered, by consent, that:

a) R.L.B.’s Application to Obtain an Order and her Notice of Motion both dated August 7, 2019, be dismissed; and

b) The Parties share all FLA

section 41 parental responsibilities and in the case of disagreement, R.L.B. would make the final decision with T.A.J.G. being at liberty to apply to the Court if he disagreed. [ 26 ] On December 4, 2020, R.L.B. filed an Amended Application Respecting Existing Orders or Agreements asking that the 2019 Order be terminated as of May 2019. [ 27 ] On January 12, 2021, the Court ordered, by consent, that additional affidavit evidence be filed and set out a time line for submissions. EVIDENCE

Affidavits [ 28 ] On August 7, 2019, R.L.B. filed an affidavit stating:

a) She had dealings with the RCMP after reading about T.A.J.G.’s arrest on drug and weapons charges in the local media; and

b) She was told by an RCMP watch commander to apply for an emergency custody order for the Children. [ 29 ] On September 24, 2019, R.L.B. filed an affidavit stating:

a) Her dealings with MCFD social workers subsequent to T.A.J.G.’s arrest, and that they told her an earlier safety plan for D.A.G. would not be renewed; and

b) Her concerns that T.A.J.G. has gang affiliations that may result in retaliation against him because of the RCMP confiscation of drugs and firearms that would put the Children in danger if they were with him. [ 30 ] On July 28, 2020, N.J.G. filed an affidavit in which he said the following

a) He has been living with his girlfriend, A.M., 90% of the month since October 2017;

b) R.L.B. has been supporting him with money for food and clothing since January 2020. She gives him $250 every two weeks;

c) T.A.J.G. should not be seeking retroactive support because R.L.B. has been giving him money and he has not been living full- time with T.A.J.G.; and

d) He has been living with R.L.B. since April 2020. [ 31 ] On October 23, 2020, T.A.J.G. filed an affidavit regarding the Children’s living arrangements and child support as follows:

a) In October 2016, N.J.G. was living with him 100% of the time because he no longer wished to live with R.L.B. and her then- partner, R.O.;

b) In February 2017 he and N.J.G. had a dispute. From then until May 2017, N.J.G. lived with R.L.B.;

c) In May 2017, after N.J.G. and R.L.B. had a dispute in a moving motor vehicle N.J.G. returned to live with him and remained until May 2020. The RCMP were involved after that event;

d) During that time, he provided for all of N.J.G.’s needs and expenses to the exclusion of R.L.B.;

e) Although N.J.G. lived with him, N.J.G. often stayed at his girlfriend’s. During that time, he maintained a room for N.J.G., paid for N.J.G.’s cell phone, clothing, food, school, medical and dental needs and provided spending money;

f) D.A.G. lived equally between his and R.L.B.’s home until Spring Break 2018, when D.A.G. moved to live with him to focus on his schooling and lacrosse;

g) In December 2018, D.A.G. moved to live with R.L.B., but he soon got into trouble at school and his grades dropped;

h) In July and August 2019, D.A.G. temporarily lived with relatives in Vancouver;

i) D.A.G. lived equally between his and R.L.B.’s home until March 2020;

j) When COVID-19 struck, D.A.G. lived full-time with R.L.B. because of her lax rules about D.A.G.’s socializing and attending to his studies, but D.A.G. always had a room in his home;

k) Since September 2020, D.A.G. lived equally between his and R.L.B.’s home;

l) He is seeking retroactive child support because R.L.B. has not assisted him with a variety of the Children’s financial needs, claiming she could not afford such things as clothing and sporting gear; and

m) Despite the 2019 Order, R.L.B. has not been paying him the support ordered. [ 32 ] On October 23, 2020, D.A.G. filed an affidavit stating that he wanted a 50/50 parenting arrangement. [ 33 ] On October 26, 2020, T.A.J.G. filed an affidavit:

a) Stating he and R.L.B. shared custody of the Children on a 50/50 basis since their separation in 2010;

b) Attaching a letter to the Supreme Court of BC from N.J.G. dated October 17, 2019, stating he has lived with T.A.J.G. since October 2016; and

c) Attaching the affidavit filed by N.J.G. in this proceeding on July 28, 2020, which he believes N.J.G. was paid to file by R.L.B. [ 34 ] On November 18, 2020, R.L.B. filed an affidavit which stated:

a) She is requesting full guardianship, sole parenting responsibilities and primary residence of the Children;

b) She concedes that there should be 50/50 parenting time of the Children due to their ages;

c) N.J.G. was present in T.A.J.G.’s home when the RCMP executed a search warrant;

d) D.A.G. lived full-time with her from March 23 through September 21, 2020;

e) In mid-April 2020, N.J.G. came to live with her full-time, telling her he needed a break from living at his girlfriend’s;

f) She was unable to bring an application before July 2020, despite the change of circumstances because the Court Registry was closed due to the COVID-19 pandemic;

g) On September 21, 2020, D.A.G. returned to 50/50 living between her and T.A.J.G.’s homes;

h) She has long believed T.A.J.G. was involved in illegal drug activity and raised the issue in court proceedings in 2012/2013;

i) T.A.J.G. was questioned by the RCMP in 2015 about a murder that occurred that year. She was questioned by the RCMP about T.A.J.G. and the murder in 2019;

j) She believes T.A.J.G.; I. is an extremely dangerous person with dangerous associates; II. the Children are being negatively impacted by the allegations against him; III. the Children do not want to believe what they have heard about T.A.J.G.’s arrest because they love their father, but they have both told her they were not surprised by T.A.J.G.’s arrest; IV. the Children are being manipulated, threatened and emotionally abused by T.A.J.G.; and V. the Children are put in danger when they are with T.A.J.G.;

k) Both Children are using her home address for their government identification. [ 35 ] On November 18, 2020, R.L.B. filed a second affidavit which stated:

a) She concedes a 50/50 parenting time

schedule for N.J.G. between her and T.A.J.G.’s homes;

b) She has discussed T.A.J.G.’s criminal charges with D.A.G. and he understands his choices, and, as such, she agrees to maintain the 50/50 arrangement;

c) She is seeking full parenting responsibilities and primary residence for D.A.G. in light of T.A.J.G.’s illegal income. If he goes to prison, she doesn’t want to have to consult him on parenting decisions; and

d) D.A.G. does not want to be involved in the Court proceedings including parenting time or child support matters; and

e) She seeks Court orders that she, T.A.J.G. and R.T. not speak to D.A.G. and N.J.G. about Court matters as it upsets them. [ 36 ] On November 25, 2020, R.L.B. filed an affidavit which responded to a number of T.A.J.G.’s affidavits as follows:

a) N.J.G.’s letter of October 17, 2019, attached to T.A.J.G.’s October 26, 2020, affidavit was not in relation to this proceeding. She believes N.J.G. did not consent to it being used here. N.J.G.’s affidavit filed July 28, 2020, is more recent and a direct response to these proceedings;

b) She separated from R.O. on March 30, 2016, when N.J.G. was living 50/50 with her and T.A.J.G. Near the end of 2016, N.J.G. came to live with her after a dispute he had with T.A.J.G. N.J.G. lived with her full-time until May 31, 2017;

c) On May 31, 2017, she became aware that N.J.G. was using cocaine and confronted him. N.J.G. jumped out of her car and went to T.A.J.G.’s home. When she went to T.A.J.G.’s home to talk to him about N.J.G.’s situation, T.A.J.G. fabricated a story and called the RCMP;

d) T.A.J.G. told her many times that if N.J.G. chose to live elsewhere, he would not support N.J.G.;

e) In April 2018, D.A.G. asked to live with T.A.J.G. full-time because she was travelling a lot. Between April and late October 2018, D.A.G. lived mostly with T.A.J.G. due to her travel commitments and her house sale, but during part of the summer months the 50/50

schedule was reinstituted;

f) Her income in 2018 was higher due to the overtime she worked after the pipeline explosion near Shelley, BC;

g) In October 2018, when T.A.J.G. requested child support, she attempted discussions with him and requested mediation, but T.A.J.G. was uncooperative;

h) During the FCC on April 3, 2019, T.A.J.G. waived any claim to retroactive support and agreed to her paying child support starting May 1, 2019; and

i) She stopped paying child support in September 2019, after T.A.J.G.’s arrest on his criminal charges because she believes his illegal income far exceeds her legal income; and

j) D.A.G. lived with her starting on March 23, 2020, until September 21, 2020. He made the honour roll in June. [ 37 ] On November 25, 2020, R.L.B. filed another affidavit in which stated, in part:

a) She paid Child Support to T.A.J.G. under the 2019 Order in the amount of $1,031 for the months of May through August 2019;

b) After T.A.J.G.’s arrest in August 2019, she ceased child support payments from September 2019, through March 2020, because she believed T.A.J.G. misrepresented his financial circumstances due to his illegal drug trafficking activities;

c) She made direct payments to N.J.G. from January through April 2020, for food, clothing and other expenses to a total of $1,580.00;

d) She resumed child support payments from April through August 2020;

e) D.A.G. resided full-time with her from March 23, 2020, to September 21, 2020, when he resumed a 50/50 regime;

f) In April 2020, N.J.G. lived with her full-time until the end of September 2020;

g) T.A.J.G.’s and R.T.’s standard of living is far beyond their stated incomes in 2018 through 2020;

h) T.A.J.G.’s and R.T.’s own two properties with a combined value of $715,000.00 which are encumbered by mortgages;

i) T.A.J.G. is the 99% owner of [omitted for publication], Prince George, (“[omitted for publication]”) purchased in May 2018, for $272,000.00 when he had an income of $21,000.00. She questions how he could qualify for a mortgage on that income and believes the property was purchased with the proceeds of crime;

j) T.A.J.G. and R.T.; I. own or have owned numerous automobiles and recreational vehicles including a travel trailer, ski boat, snowmobiles, ATVs and motorcycles of considerable value; II. travelled three times to Mexico for vacations; III. spent extensively for accommodations and meals on sport trips with D.A.G.; IV. have retained lawyers for numerous court cases both family and criminal; all of which far exceeds what could be purchased from their declared incomes. She believes they come from the proceeds of crime;

k) Taking into account T.A.J.G.’s illegal income and his falsification of when N.J.G. resided with him, he actually owes her child support in an amount of about $6,000.00; and

l) Before she and T.A.J.G. separated, there were consultations regarding orthodontic treatment for N.J.G., but they agreed to wait until N.J.G. was older. In July 2020, N.J.G. began orthodontic treatment and she seeks T.A.J.G.’s contribution under the 2013 Order in the amount of $3,950.00. [ 38 ] On December 4, 2020, Laura Miller (Mr. Murphy’s legal assistant) filed an affidavit attaching T.A.J.G.’s response to R.L.B.’s November 25, 2020, as follows:

a) Retroactive support was not waived in the April 2019, FCC;

b) Child support was based on R.L.B.’s income at $95,000.00 because she did not provide proper financial disclosure;

c) He supported N.J.G. financially until the end of May 2020, when he became aware that N.J.G. was getting money from R.L.B. and refused to follow his house rules;

d) He received two child support payments from R.L.B. in May and June 2019, in the amounts of $1,031.00 and an interest payment of $185.00;

e) When N.J.G. was living with his girlfriend, he still provided N.J.G. with accommodations, food, cell phone costs and money;

f) His 2018 income was lower due to a lay off. He subsidized his living expenses through withdrawals from his TFSA;

g) His 2019 income was from rental income, using savings and having his parents move in to help with expenses. In 2019, he continued his education and upgrading;

h) R.T. paid the down payment on [omitted for publication] from the sale proceeds from a previous house. [Omitted for publication] was put 99% into his name to use the first time homeowner’s property transfer grant. Basement renovations were done due to a flood;

i) The hotel costs for lacrosse tournaments were from a hotel loyalty program credits from friends and by staying in a travel trailer;

j) His only asset on the list R.L.B. prepared is a 2013 Nissan Armada;

k) His 2020 Financial Statement income information has to be adjusted because he included all the rental income when it should have been shared with R.T.;

l) He did not list assets in his Financial Statement because he is claiming only Guideline child support;

m) He is not working due to COVID-19 and is furthering his education. He hopes to complete his courses and practicum by spring 2021. He expects an income of between $30,000.00 and $80,000.00 over the next few years as his business grows; and

n) He believes R.L.B.’s income is closer to $150,000 with bonuses and contracts because his co-worker told him that. [ 39 ] On January 7, 2021, R.L.B. filed an affidavit attaching:

a) A letter dated January 9, 2019, from MCFD concerning N.J.G.’s status in June 2017, which confirmed he left T.A.J.G.’s home for refusing to follow the house rules;

b) A letter dated March 4, 2020, from MCFD counsel confirming the Director had no involvement with the Children in the proceeding concerning R.T.’s children arising from T.A.J.G.’s criminal charges;

c) A copy of Information No. 74036 detailing the charges against T.A.J.G.; and

d) A copy of a Civil Forfeiture Action in Rem against T.A.J.G. and R.T. [ 40 ] On January 7, 2021, the Court Registry date stamped a collection documents including income information and a parenting time history prepared by R.L.B. On January 8, 2021, Laura Miller filed an affidavit attaching a parenting time history prepared by T.A.J.G. [ 41 ] The information from those histories is set out in the table below: Year R.L.B. T.A.J.G. N.J.G. D.A.G. N.J.G.

D.A.G. 2016 Sept. – Dec. 50% Sept. – Dec. 50% Sept. – Dec 100% Sept. – Dec. 50% 2017 January 50% Feb. to June 100% July to Dec. 10-20% January to December 50% Jan. to Feb. 100% Feb. to May 0% May to Dec. 100% January to December 50% 2018 Jan. to Dec. 8% Jan. to Mar. 50% Apr. to Oct. 10% Nov. – Dec. 50% Jan. to Dec. 100% Jan. to Mar. 50% Mar. to Dec. 100% 2019 Jan. to Dec. 8% Jan. to Dec. 50% Jan. to Dec. 100% Jan. to Dec. 50% 2020 Jan. to Apr. 10% May to Sept. 100% Oct. to Dec. 15% Jan. to Mar. 50% Apr. to Sept. 100% Oct. to Dec. 50% Jan. to May 100% June to Dec. 0% Jan. to Mar. 50% Mar. to Sept. 0% Sept. to Dec. 50% [ 42 ] On January 19, 2021, R.T. filed an affidavit in which she deposed:

a) She and her former husband C.T. entered into a Separation Agreement on March 30, 2014. That agreement provided for a payment to her by C.T. of $257,000.00;

b) She received those funds on April 3, 2014, and expended them in the following years;

c) She approximates she spent the funds as follows: I. Down payment for purchase of a home; II. Purchase of a boat; III. A deposit to her TFSA. [ 43 ] On February 10, 2021, C.T. filed an affidavit which stated:

a) He and his former spouse, R.T., entered into a Separation Agreement in March 2014, under which he paid her a property equalization settlement of $257,000.00;

b) As far as he is aware, she used $112,000.00 as a down payment for a home located [omitted for publication], Prince George, (“[omitted for publication]”) in May 2014;

c) During 2104 and 2015, R.T. spent some of the equalization payment on new home furnishings, a hot tub, breast augmentation surgery, a 1989 Toyota 4x4, a 2013 Ninja motorcycle, a boat and start-up costs for a fishing charter company, and numerous out of town trips;

d) In a conversation with R.T. in the fall of 2015, she told him the remainder of the equalization payment had been spent.

e) He and R.T. have paid no child support to each other for their children since their separation in 2014; and

f) In March 2020, he and R.T. entered into a Divorce Order under which he paid her a further $35,000.00 settlement. Financial Disclosure

[ 44 ] On December 11, 2018, R.L.B. filed a Financial Statement. On Page 1 she stated that she was transitioning from a contractor to an employee with her company resulting in a decrease in her income. She indicated an income of $101,100.00. She attached a 2015 Canada Revenue Agency (“CRA”) Notice of Reassessment with an income of $56,838.00, a 2016 Notice of Assessment with an income of $75,708.00 and a 2017 Notice of Assessment with an income of $100,100.00. [ 45 ] On January 10, 2019, T.A.J.G. filed a Financial Statement. He indicated an income of $51,240. He attached a tax return

summary for 2015 indicating an income of $720.00, and a tax return

summary for 2016 indicating an income of $30,960.00. [ 46 ] On March 18, 2019, T.A.J.G. filed a Financial Statement. He attached a 2016 Notice of Assessment with an income of $30,960.00, a 2017 Notice of Assessment with an income of $51,240.00, and a tax return

summary for 2018 indicating an income of $21.000.00. He also attached a mortgage statement for [omitted for publication] indicating a balance as at December 31, 2018, of $134,774.00. [ 47 ] On April 1, 2019, R.L.B. filed a Financial Statement. On Page 1 she stated her new position with her employer resulted in an income of $95,000.00 with extended medical and dental coverage. She indicated an income of $115,377.00. She attached a 2018 Notice of Assessment with an income of $115,377.00. [ 48 ] On October 23, 2020, T.A.J.G. filed a Financial Statement.

He indicated he is self-employed with rental income of $24,350.00. He attached a 2014 Notice of assessment with an income of $5,735.00, a 2015 Notice of Assessment with an income of $720.00, and Notices of Assessment for 2016 through 2018 previously disclosed. [ 49 ] On November 25, 2020, R.L.B. filed a Financial Statement. She indicated an income $101,572.00 and attached a 2019 Notice of Assessment with the same income. [ 50 ] On January 7, 2021, the Court Registry date stamped a collection of CRA documents in R.L.B.’s name for 2016 through 2019, many of which were already disclosed.

It included a 2018 Notice of Reassessment with an income of $125,377.00. [ 51 ] On January 8, 2021, Laura Miller filed an affidavit attaching the following financial disclosure concerning T.A.J.G.: a) 2016 T-1 tax return and Notice of Assessment with an income of $30,960.00; b) 2017 T-1 tax return and Notice of Assessment with an income of $51,240.00; c) 2018 T-1 tax return and Notice of Assessment with an income of $21,000.00; and d) 2019 Notice of Assessment with an income of $2,782.00.

Trial [ 52 ] Only the trial evidence not already detailed in the earlier filed affidavits will be detailed below. [ 53 ] R.L.B.’s direct evidence, in

summary, is:

a) R.T.’s income should be considered by the Court because she is a step-parent to the Children;

b) T.A.J.G. has misrepresented his income since 2018;

c) There have been many changes in circumstances since the 2019 Order including T.A.J.G.’s arrest arising from the search warrant where a lot of drugs, firearms and $129,000.00 in cash were discovered. That resulted in MCFD involvement;

d) The Children started living with her in March 2020, due to COVID-19. Despite that, she continued to pay the child support of $1,031.00 to T.A.J.G. from March through August 2020;

e) T.A.J.G.’s past Financial Statements are suspect and the attached paystubs are for a non-existent company. The company was dissolved in 2009 for failure to file annual reports;

f) T.A.J.G. and R.T. were able to buy two real properties worth $715,000.00 in a 15-month period;

g) The 2013 Order provided for no child support payments because their incomes were similar at the time. The 2013 Order provided that they share special expenses;

h) She wants T.A.J.G. to pay for half of N.J.G.’s braces. His share is about $3,900.00; and

i) Her timelines of when the Children lived in one home or another is correct. N.J.G.’s letter about where he lived was written under duress. [ 54 ] R.L.B.’s cross-examination evidence, in

summary, is:

a) She does not agree that the Children moved about a fair amount;

b) D.A.G. had a 50/50

schedule and N.J.G. was with his girlfriend in September 2020, but that was temporary;

c) She stopped child support payments to T.A.J.G. in response to his August 2019, arrest on drug charges. She applied for immediate full parenting of the Children, but that was denied. She did so because the Children were in danger with T.A.J.G.;

d) She resumed child support once FMEP became involved, but made some direct contributions to N.J.G. when he was living with his girlfriend and she wasn’t paying child support;

e) Her view of T.A.J.G. vehicles comes from his possession and use of them including when he dropped off the Children. She cannot say who the registered owner of the vehicles is because she is not privy to that information;

f) She cannot say how T.A.J.G. and R.T. purchased the real properties given their declared incomes;

g) She did not consult T.A.J.G. about N.J.G.’s braces because he was well aware it was necessary from when N.J.G. was young, and the 2013 Order does not require advance notice. She was not aware if R.T.’s health plan could cover the expense;

h) T.A.J.G. may have first been informed about the braces from her November 25, 2020, Financial Statement. She has not filed a Notice of Motion to recoup orthodontic expenses from T.A.J.G.;

i) N.J.G. was not couch-surfing in 2016. For a time after June 2017, N.J.G. did spend more time with T.A.J.G.; and

j) The Civil Forfeiture Claim is unproven at this time. [ 55 ] T.A.J.G.’s direct evidence, in

summary, is:

a) D.A.G.’s living arrangements were; I. 2016 – early 2018 - 50/50; II. 2018 - mostly with him especially after Spring Break until December 2018; III. 2019 - 50/50 until COVID-19 in 2020; IV. 2020 during COVID-19 with R.L.B. until September 2020 then 50/50;

b) N.J.G.’s living arrangements were; I. Came to live with him in October 2016 until January 2017, and then couch-surfing; II. Lived with girlfriend off/on in 2017; III. Often was couch-surfing, but returned to his home from time to time; IV. Turned 19 on [omitted for publication];

c) He didn’t ask R.L.B. for more money because she seemed short of money. He found out from a friend in 2018, that R.L.B. had a substantial income, so he requested more because he had N.J.G. with him 100% of the time and D.A.G. was 50% with him. She refused so he brought his Application in 2018;

d) He agreed to no child support in the 2013 Order because their incomes were relatively equal;

e) His income declined because he was on stress leave for a long time. During that time, he took work programs. He then found work, but the employer was shady and there were tax issues. He quit that job and lived on his savings for a time. In 2019, he had small jobs until the RCMP incident in August;

f) He has nerve damage to his spine and it is difficult to find work. He worked at Canadian National Railway (CN), Canfor and a lumberyard. He is now studying to be a home inspector;

g) At the April 2019 FCC, there were discussions on many topics including child support and sports expenses. Retroactivity was not raised until the very end, but his lawyer did not want to deal with it then because there was not enough time;

h) After the FCC, he was not sure about R.L.B.’s income. He found out later that it was more than what was imputed to her at the FCC;

i) R.L.B. has been inconsistent with the child support payments. He is not sure when the payments were made and it is now in the hands of FMEP. R.L.B. stopped the child support when he was detained and didn’t resume until FMEP became involved;

j) His answers to R.L.B.’s allegations about his assets include: I. [Omitted for publication] was purchased in part from R.T.’s sale of a previous home; II. [Omitted for publication], Prince George, (“omitted”) was purchased, in part, from the insurance settlement from the [omitted for publication], Prince George, property (“omitted”) and the mortgage is paid from the rental income from [omitted for publication]; III. 2019 Hyundai is in R.T.’s name and, in part, came from the sale of the Armada he owned, which provided $6,000.00; IV. 2019 GMC is a base model, and R.T. sold two vehicles and put money down; V.

Other items belong to family members or in the case of the ATVs given to him by family;

VI. There was a flood in the basement of one home. He used the insurance settlement from that to turn the area into a bedroom, doing much of the work himself; VII. The trips to Mexico were paid for from house sale proceeds and insurance settlements;

k) R.T. buys and then resells vehicles for a profit;

l) His parents moved in with him and R.T. in 2019 to help with the finances;

m) He never paid for dinners or go-cart rentals for everyone on the lacrosse team;

n) The allegations against him concerning drugs and guns are slander. Drugs and guns were found at a home on 1 St Avenue and not in his possession;

o) The $36,000.00 found at his home and subject to the Civil Forfeiture claims included $10,000.00 from his jobs and the rest from R.T.’s tips from work and the sale of a motorhome;

p) He paid nothing for [omitted for publication] because it was on airport land and he planned to move it off for either sale or to put it on land to live in it. He moved into it in early 2018; and q) [Omitted for publication] was vandalized and burned down in July 2018. He got an insurance settlement in October 2019 of $165,000.00. The remainder of the settlement went to the demolition company. He used that money on the Children, paid off [omitted for publication] and contributed to the [omitted for publication] purchase. [ 56 ] T.A.J.G.’s cross-examination evidence, in

summary, is:

a) R.T.’s income information was requested and provided, but he doesn’t know what it was; b) [Omitted for publication] was bought for $272,000.00, but he doesn’t recall where the down payment came from but it was made by R.T. The balance on the mortgage was $134,744 in December 2018 and the balance now is $0;

c) In April 2018, D.A.G. came to live with him full-time because R.L.B. was not making sure of his schooling progress and his sport activities; not because she was travelling a lot. D.A.G. remained with him until November 2018;

d) In 2018, he was able to afford trips, pay for lacrosse, buy a home and care for the Children on an income of $21,000.00 and no child support through the sale of [omitted for publication] and using a lot of his TFSA account;

e) His spinal injury was caused by an assault on him in 2008 by six RCMP members outside a local night club;

f) In 2013, he was working for CN;

g) His 2019 income was $2,782.00 and $10,500.00 from odd jobs;

h) In May 2019, [omitted for publication] was purchased for $405,000.00 and he is a 50% owner. There is a mortgage with TD bank;

i) He does not know about a mortgage stress test, but [omitted for publication] was bought from the [omitted for publication] sale and was paid off from the [omitted for publication] settlement which allowed them to buy [omitted for publication]. The rent from [omitted for publication] pays the mortgage payments on [omitted for publication];

j) He had been working for an employer but didn’t continue after the RCMP incident because the employer was at [omitted for publication] when he was detained;

k) N.J.G. stopped living with R.L.B. because she and her then-spouse were fighting and arguing. In 2017 R.L.B. pushed N.J.G. from a vehicle and both the RCMP and MCFD were involved.

l) N.J.G. did leave his home because he refused to comply with house rules but it only lasted for a couple of weeks;

m) N.J.G.’s affidavit did not confirm living with him in 2017 through 2019;

n) R.L.B. did ask for money from him for N.J.G.’s cell phone in December 2020, but N.J.G. is now 19;

o) His estimated income for 2020 is $20,175.00 from CERB and a new job. His last employment was in 2019 until his RCMP involvement;

p) He does not own any recreational vehicles, but he was photographed riding a 2019 Arctic Cat snowmobile;

q) He first asked for child support in 2018 because R.L.B. had a high income, but also because he had the Children 100% of the time and R.L.B. refused to assist with lacrosse expenses;

r) His claim for retroactive child support to March 2016, was made after he got a lawyer;

s) At the April FCC that resulted in the 2019 Order, he had a lawyer present and R.L.B. had no lawyer;

t) At the FCC, his income was set at $45,000.00 because the Judge added in R.T.’s income;

u) The money claimed in the Civil Forfeiture claim came $10,500.00 from his income and $26,000.00 from the motorhome sale; and

v) If he had been asked to contribute to N.J.G.’s braces, the extended dental would have covered only $2,000.00.

He has not contributed to that expense because R.L.B. never spoke to him about it and he couldn’t claim the amount on the extended dental. [ 57 ] In answer to questions by the Court, T.A.J.G. stated the following about his work history: a) 2015 - on long term disability leave (LTD) from CN; b) 2016 - on LTD from CN and then, later in the year, working in safety and clean-up on construction sites; c) 2017 to early 2018 - continued with an employer until he found out remittances were not being made by employer, so he quit.

He was reassessed $8,000 by the CRA; d) 2018 - out of work; e) 2019 - odd jobs under contract until August. He had no work after he was detained and was going through three different court proceedings; and f) 2020 - CERB and re-educating to be a home inspector. He has been certified. [ 58 ] In answer to other questions by the Court, T.A.J.G. stated:

a) Since September 2020, N.J.G. has been living with his girlfriend and with R.L.B. N.J.G. has been working part-time at a local store;

b) After the 2013 Order, he didn’t ask R.L.B. about her income because he didn’t think it had changed and because she said she was short of money to pay for lacrosse; and

c) He is disputing all the claims in the Civil Forfeiture proceeding. Criminal and Civil Forfeiture Allegations [ 59 ] T.A.J.G. faces criminal charges arising from an RCMP investigation. These allegations form a major component in R.L.B.’s evidence and submissions about T.A.J.G.’s financial circumstances. [ 60 ] On August 1, 2019 the RCMP executed search warrants at [omitted for publication], and three other locations, and found the following in those searches:

a) Various drugs and precursors in varying amounts totalling 1.3 kilograms of cocaine, 0.5 kilogram of methamphetamine, 200 grams of fentanyl, 28 grams of Gamma-Hydroxybutyric Acid (GHB); b) $129,000.00 in cash;

c) Nine firearms, two of which were loaded, including a shotgun, two pistols and a silencer. [ 61 ] T.A.J.G. faces the following charges on Information No. 74036 on which the Crown has proceeded by Indictment and allege the following on August 1, 2019:

a) Five counts of possession for the purposes of trafficking, contrary to section 5(2) of the CDSA in Cocaine, MDA, Fentanyl, Heroin and Fentanyl and MDMA;

b) One count of possession, contrary to section 4(1) of the CDSA in GHB;

c) One count of possession of a loaded restricted firearm without a licence to possess it contrary to section 95(1) of the Criminal Code . [ 62 ] T.A.J.G. and R.T. are defendants in a Civil Forfeiture Action in Rem with regard to:

a) The lands and structures at [omitted for publication], Prince George, BC;

b) The lands and structures at [omitted for publication], Prince George, BC; c) $36,995.00 in Canadian currency;

d) A satellite phone;

e) A money counter;

f) A cell phone. [ 63 ] That proceeding alleges that;

a) Over a period of several months, while under surveillance by the RCMP, T.A.J.G. acted in a fashion consistent with drug trafficking by attending several residences on a regular basis while carrying various containers and bags in and out of those residences;

b) T.A.J.G. was arrested on August 1, 2019, and search warrants were executed at four residences where illegal drugs, drug paraphernalia, numerous firearms and a total of over $129,000 in cash was found;

c) Evidence linking T.A.J.G. to the searched residences including his fingerprints and DNA on items related to the illegal drugs;

d) The [omitted for publication] and [omitted for publication] properties were obtained from the proceeds of crime. [ 64 ] T.A.J.G. and R.T. have filed a defence to the Civil Forfeiture Action. THE LAW Family Law Act [ 65 ] The following sections of the Family Law Act ( FLA ) have application in this case:

a) Duty to disclose 5

(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.

(2) A person must not use information obtained under this

section except as necessary to resolve a family law dispute.

b) Definitions 146 In this Part and

section 247 [regulations respecting child support]: "child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians; […]

c) Duty to provide support for child 147

(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child (

a) is a spouse, or (

b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.

(2) If a child referred to in subsection (1) (

b) returns to his or her parents' or guardians' charge, their duty to provide support for the child resumes.

(3) If a guardian who is not the child's parent has a duty to provide support for that child, the guardian's duty is secondary to that of the child's parents.

(4) A child's stepparent does not have a duty to provide support for the child unless (

a) the stepparent contributed to the support of the child for at least one year, and (

b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

d) Determining child support 150

(1) If a 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 […] (

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

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

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

b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it

must give reasons for doing so.

e) Changing, suspending or terminating orders respecting child support 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.

f) Matters that may be provided for in support orders 170 In an order respecting child support or spousal support, the court may provide for one or more of the following: (

a) that payments be made periodically, annually or otherwise, for an indefinite or limited period or until a specified event occurs; (

b) that child support or spousal support be paid respecting any period of time before the date the application for the order is made; (

c) that payment of a lump sum be made, directly or in trust; (

d) that a charge be registered against specific property to secure payment;

g) Enforcing orders respecting disclosure 213

(1) This

section applies if a person (

a) fails to comply with (

i) an order for disclosure made under

section 212 [orders respecting disclosure] , or (ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, within the time or in the manner required by the order or Rules, or (

b) provides information that is incomplete, false or misleading.

(2) In the circumstances set out in subsection (1), the court may do one or more of the following: (

a) make an order under

section 212; (

b) draw an inference that is adverse to the person, including attributing income to that person in an amount that the court considers appropriate, and make an order based on the inference; (

c) require a party to give security in any form that the court directs; (

d) make an order requiring the person described in subsection (1) to pay (

i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non- disclosure of information or the incomplete, false or misleading disclosure, or (iii) a fine not exceeding $5 000; (

e) make any other order the court considers appropriate. Child Support Guidelines [ 66 ] The following sections of the Child Support Guidelines ( CSG ) have application in this case: Presumptive rule a) 3

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is a. (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and b. (

b) the amount, if any, determined under

section 7.

Child the age of majority or over 3

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

b) Special or extraordinary expenses 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

c) Split custody 8 Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

d) Shared custody 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

e) 19

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

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe 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 spouse; […] (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the spouse’s property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so; […] Case Law [67] The Parties provided the following cases in support of their positions:

a) L.M.P. v. L.S., 2011 SCC 64;

b) D.B.S. v. S.R.G., 2006 SCC 37;

c) B.P.E. v. A.E., 2016 BCCA 335;

d) Simpson v. Bettenson, 2014 ABCA 21;

e) Kretschmer v. Terrigno, 2012 ABCA 345;

f) Bak v. Dobell, (2007) 2007 ONCA 304 , 86 OR (3d) 196 (OCA);

g) N.D.S. v. J.A.S., 2020 BCSC 1034;

h) Nair v. Nair, 2020 BCSC 677;

i) Clarke v. Taylor, 2014 BCSC 49;

j) L.A.B. v. M.L.B., 2012 BCSC 1066;

k) Corsie v. Taylor, 2006 BCSC 528;

l) Earle v. Earle, (BCSC);

m) L.D.M. v. T.R.S., 2018 BCPC 92;

n) A.E.A. v. H.E., 2016 ABPC 84; [68] Given the complexities this case presents, the Court also referred to the following cases on various topics:

a) McClement v. McClement, 2017 BCCA 416 – The choice to use section 3(2)(

a) or (

b) in determining support for an adult childis discretionary and determined by the circumstances of the case;

b) L.M.W. v. R.L.W., 2016 BCSC 758 and Dallas v. Dallas, 2015 BCCA 147 – an adult child’s income is relevant in determiningwhether section 3(2)(

b) applies;

c) Clarke v. Clarke, 2014 BCSC 824 and Weibe v. Treissman, 2017 BCSC 1523 –

Section 7 is exhaustive in scope with regard towhat are “special and extraordinary expenses”;

d) Piper v. Piper, 2010 BCSC 1718 –

Section 7 factors to be considered. Agreement should be sought before an expense isincurred;

e) Lee v. Chung, 2011 BCSC 404, Younger v. Younger, 2017 BCSC 363 and Reggelsen v. Reggelsen, 2009 BCSC 1790 –retroactive

section 7 claims without previous consultation may be disallowed or reduced;

f) M.L. v. G.L., 2015 BCSC 1107 –

Section 7 analysis the includes Court’s discretion to examine more than the respectiveincomes of the parties including overall means such as family income and contributions;

g) Dyck v. Bell, 2015 BCCA 520 –Section 8 hybrid custody support calculation starts with a set off calculation followed by aSection 9 analysis. It may be an error to proceed if insufficient evidence is presented on the

section 9 factors;

h) Contino v. Leonelli-Contino, 2005 SCC 63 –

Section 9 analysis starts with set off calculation followed by further examinationand broad discretion regarding the total costs of raising children and the resources and needs of both parents. This may also includeconsideration of

section 7 expenses;

i) J.R.M. v. K.J.H., 2017 BCPC 25 –

Section 9 analysis permits the Court to exercise discretion based on the overall circumstances

of the parents and the means of the child;

j) Michel v. Graydon, 2020 SCC 24 – in considering the delay in making an application, the court should focus on whether the reason provided is understandable rather than looking for a “reasonable excuse”;

k) C.M. v. V.M., 2016 BCSC 2144 – the party seeking an imputation of income has the onus to establish an evidentiary foundation. Once established the onus shifts to the responding party;

l) D.M.B. v. D.W.A.L., 2018 BCSC 1254 – the party seeking to impute income has the onus, on a balance of probabilities and a rational and evidentiary basis, to show that;

m) Hinds v. Hinds, 2008 BCCA 547 , Barry v. Davis, 2021 BCSC 546 – an applicant must establish a prima facie case that the payor has failed to make full disclosure of financial circumstances before the onus shifts. The prima facie case can be established through cross-examination, evidence of the applicant or discrepancies in the payor’s evidence that supports the view of undisclosed income;

n) Vincent v. Vincent, 2012 BCCA 186 – the determination of a party’s income is a three-step process. First, start with the Line 150 income. Second, make any necessary

Schedule III adjustments. Third, consider sections 16 - 20 of the CSG to determine if any exceptions apply and, if present, what effect should be given to them;

o) Marquez v. Zapiola, 2013 BCCA 433 and Koch v. Koch, 2012 BCCA 378 - In considering imputing income in section 19(1)(

a) of the CSG, the court must consider a party’s capacity to earn income and whether, or not, the party is working to capacity;

p) B.G.M.S. v. J.E.B., 2018 BCSC 1628 – Income earned through illegal activities may be used to calculate retroactive support obligations, but it is contrary to public policy to impute an income that would require the pursuit of illegal activity into the future. In circumstances where the court determines that a party has not provided sufficient financial disclosure concerning how assets were obtained when there is an allegation of illegal drug dealing the Court may choose not to make a final order until more complete disclosure is provided;

q) L.A.E. v. C.D.E., 2018 BCPC 255 – Income may be imputed on the basis of intentional underemployment or unemployment if the commission of a criminal offence adversely affects the income or employment. It can be inferred that the payor foresaw the income loss as a natural or probable consequence of the criminal act;

r) S.J.S. v. Y.W.P., 2017 BCSC 798 – In imputing future income, the Court should only consider what the payor could earn from lawful employment and not require the payor to resort to criminal activity;

s) L.A.R. v. E.J.R., 2014 BCSC 966 – It is not feasible, from the prospective of public policy, to impute an income based on illegal drug activities;

t) G.D. v. L.E., 2013 BCSC 798 - Retroactive child support may be based on a higher income earned from illegal activities;

u) M.L.P. v. M.J.M., 2012 BCCA 395 - The court may consider undisclosed income earned through drug trade activities in determining a retroactive child support application. SUBMISSIONS [ 69 ] Each of the Parties provided both written and oral submissions. Those submissions included references to the evidence which each believes supports their requested outcomes. [ 70 ] However, many of the submissions made by the Parties were actually evidence not presented in court or subject to cross- examination. The Court asked the Parties appear to address those areas. In

summary each of the Parties:

a) Acknowledged that many of the topics in the submissions but not in evidence were excluded by error; and

b) Asked the Court to exercise its discretion to determine what missed evidence should be included and considered in arriving at a decision. R.L.B. [ 71 ] R.L.B.’s submissions on financial disclosure include:

a) T.A.J.G.’s evidence about his employment circumstances, disability payments, and rental income are not substantiated by any documentation as described in section 21 (1)(

h) of the CSG ;

b) T.A.J.G. has not provided the Court with complete and accurate Financial Statements despite the requirement to do so under the Court’s rules and as ordered by the Court. In not doing so, T.A.J.G. hid information that could have informed the Court and her on his true financial circumstances at the FCC and in preparing for the trial;

c) T.A.J.G.’s evidence on how he and his spouse accumulated considerable real property assets in a short time frame is untruthful and misleading. His evidence on the timelines and sources of funds for the acquisition of the [omitted for publication], [omitted for publication], [omitted for publication] and [omitted for publication] properties is contradicted by; I. several documents in evidence, II. his oral evidence concerning when certain transactions occurred in the repayment of mortgage debts, and

III. a straight forward accounting of the money trail;

d) T.A.J.G.’s evidence regarding how he has come to possess or regularly use a variety of motor vehicles and motorized recreational equipment is not substantiated by any other witness or documentation;

e) The nature and type of items seized by the RCMP in the search warrants executed on T.A.J.G.’s residence and other locations he frequented demonstrate, on a balance of probabilities, that he has not been forthcoming with the Court about his financial circumstances;

f) The RCMP investigation and searches revealed large sums of money, numerous firearms, large quantities of drugs, various related items such as money counters and drug paraphernalia, all of which point to an income much greater than what has been disclosed;

g) On the basis of T.A.J.G.’s unclaimed income from illegal sources and/or financial dealings that is not included on his taxable income, the Court should draw an adverse inference concerning his financial circumstances based on sections 5 and 213 of the FLA;

h) The Court should impute an income to T.A.J.G. by applying the provisions of sections 19(1)(a),(d),(f),(

h) and 24(

c) of the CSG; and

i) On the basis of such a lack of proper financial disclosure, the Court should apply

section 152 of the FLA and recalculate T.A.J.G.’s income and the child support payments back to the April 2019 Order. [ 72 ] R.L.B.’s submissions on her income include:

a) Her income is only from her employer and is accurately set out in her Notices of Assessment or Tax Returns. [ 73 ] R.L.B.’s submissions on T.A.J.G.’s income include:

a) He has been engaged in illegal activities that have garnered him a considerable tax-free income for many years;

b) That income is reflected in the lifestyle he leads, the assets he and R.T. have accumulated in a very short time, and the drugs, guns and money associated to him from the search warrants executed by the RCMP and the criminal charges arising from those searches and the subsequent civil forfeiture proceedings. [ 74 ] In addressing the issue of T.A.J.G.’s lack of accurate financial disclosure and stated income when compared to his lifestyle, R.L.B. relied on Simpson and Kretschmer on the attribution of income based on lifestyle.

She also relies on Paragraph 41 of Bak where the Court said: [41] … [I]t may be apparent from lifestyle that a payor [recipient] is receiving undeclared income because he or she has historically worked, lives comfortably with the usual trappings, and yet declares minimal income for tax or child support purposes. … [ 75 ] R.L.B. submits that the Court should impute an income to T.A.J.G. of $200,000 per year for the past three years based on the following:

a) The purchase of two homes with a combined value of $715,000 within 15 months of each other;

b) Full repayment of a mortgage of $272,000 of [omitted for publication] within one year of its purchase;

c) Assets accumulated and expenditures made totalling approximately $206,000;

d) A standard of living far beyond reported income; e) $36,995 found by the RCMP search of [omitted for publication]; and f) $129,000 in total found by the RCMP search of all of the properties related to T.A.J.G. [ 76 ] In the alternative, should the Court find that T.A.J.G.’s unemployment is for legitimate reasons, the Court should conclude that R.T.’s financial role within their household is equal to or greater than his. If she has been contributing to the support of the Children in her role as a step-parent, her income should be included in the overall household income for child support calculations as described in

section 147 of the FLA. [ 77 ] R.L.B.’s submissions on the Children’s residence in 2016 include:

a) The Children resided on a 50/50 basis between her and T.A.J.G.’s homes;

b) T.A.J.G.’s contention that N.J.G. moved to his home in October due to issues between her and her partner, Mr. O. is not correct because she and Mr. O. separated in March 2016 and she and the Children were living apart from Mr. O. in October 2016. [ 78 ] R.L.B.’s submissions on the Children’s residence in 2017 include:

a) D.A.G. maintained a 50/50 schedule;

b) In February, T.A.J.G. agreed N.J.G. would no longer live with him because N.J.G. would not follow the house rules;

c) On May 31, N.J.G. stopped living with her full-time. MCFD was involved and determined that N.J.G. was not in danger and was choosing to “couch surf” with friends or relatives. He also occasionally stayed at the homes of either Party; and

d) In October, N.J.G. started living the majority of the time at his girlfriend’s parent’s home. [ 79 ] R.L.B.’s submissions on the Children’s residence in 2018 include:

a) D.A.G. maintained a 50/50

schedule until April 8, when T.A.J.G. unilaterally advised her that D.A.G. would remain with him due to her travel commitments and lack of availability for D.A.G.’s lacrosse activities;

b) In doing so, T.A.J.G. wrongfully denied her parenting time under the 2013 Order and contravened

section 61 of the FLA;

c) She was travelling frequently and did miss some lacrosse games;

d) She and the Children moved from her owned home to a rental suite in August;

e) She did try to initiate mediation to resolve parenting issues in the fall, but T.A.J.G. refused;

f) D.A.G. returned to a 50/50

schedule at the end of November; and

g) N.J.G. continued to live primarily with his girlfriend. [ 80 ] R.L.B.’s submissions on the Children’s residence in 2019 include:

a) D.A.G. maintained a 50/50

schedule for most of the year and spent six weeks living with family friends for lacrosse activities;

b) N.J.G. continued to live primarily with his girlfriend. [ 81 ] R.L.B.’s submissions on the Children’s residence in 2020 include:

a) D.A.G. maintained a 50/50

schedule until March 23, when he began living with her full-time. That continued until the fall when a 50/50

schedule resumed;

b) N.J.G. returned to live primarily with her full-time in April, although he does spend some nights at his girlfriend’s home; and

c) N.J.G. turned 19 on September 26, but continued to reside with her. T.A.J.G. maintains that N.J.G. is no longer a child of the marriage and will not support him. [ 82 ] R.L.B.’s submissions on the Children’s residence in 2021 include:

a) D.A.G. maintains a 50/50 schedule;

b) N.J.G. continues to live primarily with her. [ 83 ] R.L.B.’s submissions on N.J.G.’s orthodontia include:

a) The 2013 Order required that the Parties equally share the costs of orthodontia;

b) She and T.A.J.G. consulted an orthodontist in 2009 when N.J.G. was younger, and agreed to delay treatment until he was older;

c) On July 18, 2020, she and N.J.G. attended another consultation. Treatment was available immediately and it commenced. She informed the orthodontists that, by agreement, she and T.A.J.G. would be equally sharing the expense and she set up a payment regime for her share; and

d) T.A.J.G. has not been making his share of the orthodontia expenses. [ 84 ] R.L.B.’s submissions on the history of child support payments include:

a) The 2013 Order included that neither Party would pay child support to the other because they had similar incomes and they were equally sharing parenting time with the Children;

b) She paid 50% of all extra-curricular activity expenses requested of her by T.A.J.G. under the terms of the 2013 Order. In addition, she paid for all or some of the expenses incurred by D.A.G. for his lacrosse activities;

c) Historically each of the Parties paid for one Child’s cell phone and plan costs;

d) After T.A.J.G. filed his 2018 Application an FCC was held resulting in the 2019 Order which determined child support based on findings concerning their incomes and requiring her to pay a set off amount of child support of $1,031 commencing in May 2019;

e) At the FCC, T.A.J.G. abandoned any claims for retroactive child support;

f) The Parties were to continue to share the Children’s extra-curricular activity expenses under the terms of the 2013 Order;

g) She paid the child support set out in the 2019 Order for the months of May, June and August, and $908 in the month of July;

h) After the RCMP search warrants of T.A.J.G.’s home and other locations in August 2019, she made no further child support payments until FMEP became involved;

i) Commencing in April 2020 until July 2020, she resumed the child support payments of $1,031 plus an interest payment of $185;

j) She stopped child support payments after filing her 2020 Application to set aside the 2019 Order and she advised FMEP;

k) In addition to the child support payments to T.A.J.G. and FMEP, she gave money directly to N.J.G. between January and April 2020, totalling $1,580;

l) Since July 2020, T.A.J.G. has refused to pay his share of the Children’s cell phone and plan costs, and bus passes which total $318 per month. He should be called upon to pay by the Court; and

m) In 2020, she purchased a car for D.A.G. and paid for the insurance, maintenance expenses and driving lessons. T.A.J.G. contributed $602 towards the driving lessons, but has refused to contribute to the other costs. [ 85 ] R.L.B.’s submission on the matter of retroactive child support claimed by T.A.J.G. include:

a) A.E.A. describes what effective notice is, that retroactive support should not be awarded if a child would not actually benefit or if the award would cause hardship to the payor;

b) T.A.J.G.’s first claim for retroactive support was only back to March 16, 2018;

c) N.J.G. would not benefit from any retroactive award as he is not living with T.A.J.G., and T.A.J.G. refuses to support N.J.G. since he turned 19. [ 86 ] R.L.B.’s submissions on N.J.G.’s status as an adult child include:

a) He remains dependant both financially and emotionally. She provides him with housing, food, transportation, a cell phone, medical and dental costs and personal money;

b) He is continuing his high school classes in an alternate program and hopes to graduate in June 2021;

c) He worked part-time in a retail store from September 2020 to February 2021. In 2020, he earned $3,065 from that employment;

d) He is currently looking for work and is enrolled with a community resource to help him in his job search. T.A.J.G. [ 87 ] T.A.J.G.’s submissions on the Children’s residence in 2016 include:

a) D.A.G. resided on a 50/50 basis between his and R.L.B.’s homes;

b) N.J.G. moved to his home in October due to issues between R.L.B. and her partner Mr. O. [ 88 ] T.A.J.G.’s submissions on the Children’s residence in 2017 include:

a) D.A.G. maintained a 50/50 schedule;

b) In February, T.A.J.G. advised N.J.G. of the house rules regarding schooling and drug abstention, and that if he did not wish to follow those rules he could move to R.L.B.’s home, which he did;

c) On May 31, N.J.G. stopped living with R.L.B. full-time. The RCMP and MCFD were involved and determined that N.J.G. was not in danger and was choosing to “couch surf” with friends or relatives. Soon after, N.J.G. returned to live primarily with his girlfriend at his home until December when N.J.G. and his girlfriend moved into a cottage home on property owned by him. [ 89 ] T.A.J.G.’s submissions on the Children’s residence in 2018 include:

a) D.A.G. maintained a 50/50

schedule until March 31 when he chose to move from R.L.B.’s home to focus on his schooling and lacrosse which was not being properly supported by R.L.B.;

b) D.A.G. returned to a 50/50

schedule at the end of December;

c) N.J.G. continued to live full-time at his home but spent some nights at R.L.B.’s or friends’ homes; [ 90 ] T.A.J.G.’s submissions on the Children’s residence in 2019 include:

a) D.A.G. returned to a 50/50

schedule for most of the year and spent 6 weeks living with family friends for lacrosse activities;

b) N.J.G. continued to live primarily with his girlfriend at his home until an altercation between N.J.G. and his girlfriend ended that relationship. [ 91 ] T.A.J.G.’s submissions on the Children’s residence in 2020 include:

a) D.A.G. maintained a 50/50

schedule until March 23 when he began living with R.L.B. full-time. That continued until September 21 when a 50/50

schedule resumed;

b) N.J.G. lived primarily with him until the end of May, but moved to R.L.B.’s when he chose not to complete high school or begin working;

c) N.J.G. turned 19 on [omitted for publication].

[ 92 ] T.A.J.G.’s submissions on the Children’s residence in 2021 include:

a) D.A.G. maintains a 50/50 schedule;

b) N.J.G. continues to live primarily with R.L.B., but does not attend post-secondary schooling. He does not consistently attend high school, but if he passes, he will obtain Grade 12 in June. [ 93 ] T.A.J.G.’s submissions on N.J.G.’s orthodontia include:

a) R.L.B. did not raise the issue of N.J.G.’s orthodontia in any of her Applications. It was first mentioned in her November 25, 2020, Financial Statement;

b) There are requirements in the 2013 Order for the Parties to consult with each other on issues surrounding the health care of the Children, and R.L.B. did not do that prior to commencing N.J.G.’s treatment;

c) R.L.B. did not explore lower cost alternatives or ask if he or R.T. had any insurance coverage that could subsidize the treatment costs. [ 94 ] T.A.J.G.’s submissions on his criminal and civil proceedings include:

a) There have been no judicial determinations made in either the criminal charges or the civil action against him and his partner;

b) There have been no steps taken by the CRA regarding any issues regarding his income over the past several years. [ 95 ] T.A.J.G.’s submissions on the applicable law and how it applies in this case include:

a) Earle and N.D.S. articulate the principle that a retroactive change to reduce or cancel a support order places a substantial onus on the applicant payor. The change must be real and in circumstances not a product of the payor’s choice and whether every effort was made by the payor to earn income;

b) L.M.P. states that any changes in circumstances must be material, be more than temporary and have some degree of continuity;

c) D.B.S. set out a number of legal principles regarding a payor’s ongoing support obligations including: I. Child support orders are not set in stone. If an order does not provide for automatic future financial disclosure, it is a snapshot of the circumstances at the time. That does not absolve the parents of the continuing duty to ensure the children receive the appropriate support; II. An increase in income for a parent that does not result in an increase in support may require the court to retroactively vary the order to ensure the correct amount of support is paid; III.

The certainty arising from an order is least compelling if the payor has engaged in blameworthy conduct. Blameworthy conduct is anything that privileges the payor’s interests over the children’s right to receive the proper support, and may include hiding from the recipient spouse information about income increases to induce the recipient to believe the proper amount of support is being paid when it is not; IV.

A reasonably held belief about the support obligations being paid could be an indication that the payor’s conduct is not blameworthy but that presumption can be rebutted in circumstances where the change in circumstances demonstrates that the payor was no longer reasonably relying on the order and did not disclose a revised ability to pay higher support; V. Even if there is no blameworthy conduct, a retroactive award may be justified if the previous order was based on incorrect financial information even if honestly made; VI.

Courts must be sensitive to practical concerns associated with child support applications including vindictive reactions by the payor, lack of financial or emotional means to bring an application or inadequate legal advice;

d) Earle and D.B.S. clearly indicate that the recipient, and not the payor, parent who decides how child support is spent and that direct payments to the child are not generally permitted;

e) L.D.M. and Clarke address the issue of “couch surfing” by noting that the term “within a parents charge” does not necessarily require the child to live at home, but rather whether the child still relies on the parent for the “necessaries of life”, if the absence is for a short period of time and there is an intention to return to live with the parent;

f) B.P.E. noted that the court’s discretion to consider a new partner’s income does not extend to attributing income to the point of discounting the biological parent’s role as the primary support provider. However, the amount of support to be paid may take into account the overall financial situation of both parents. DISCUSSION General Comments [ 96 ] In any family law case, facts in issue are determined on a balance of probabilities. In other words, what competing version of events is more likely than not.

The Court’s determination of what has been proven is based on the totality of the evidence presented by the Parties taking into account the source, consistencies and inconsistencies, reliance on recollection alone or documentary support and the interest of the person giving the evidence in the outcome of the case.

[ 97 ] In the submissions the Parties both presented what amounted to new evidence on a number of topics. Some of those topics were on trivial or uncontentious matters from the past or on what had occurred since the evidence portion of the trial concluded.

The Court will take note of those topics in the decision. [ 98 ] The Court is not prepared to accede to the Parties’ suggestions that it should consider any new contested evidence included in the Submissions because that evidence has not been subject to cross-examination. [ 99 ] Neither Party had any real opportunity to consider, and if necessary, prepare a rebuttal to the contested topics raised.

If the evidence described in the Submissions but not in in the trial prove crucial to one Party or the other after this decision, they can consider their options of a further application or an appeal. [ 100 ] There were frailties in the evidence called by both Parties that complicated the Court’s determination on a number of issues. In addition there was relief sought in the evidence that was not pleaded in any of the Applications or Replies. [ 101 ] Both gave varying descriptions of where each of the Children resided from time to time in th

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