W. v. W. Date:, 2012 BCPC 194

Citation: W. v. W. Date: 20120417 2012 BCPC 0194 File No: 11869 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: J.M.W. APPLICANT AND: C.D.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. K. Church

Counsel for the Respondent: Ms. J. Keim Place of Hearing: Kamloops , B.C. Dates of Hearing: March 10, May 5, May 17, 2011, January 10 and January 13, 2012 Date of Judgment: April 17, 2012 [ 1 ] This Decision is respecting the final order for custody, access and primary residence of M.C.W. born [DOB], the only child of the marriage between J.M.W. and C.D.W. [ 2 ] M.C.W. was born early at 32.5 weeks. He was only just over 4 pounds and had to remain in the hospital for a month. Once he was home, he required oxygen for the first month. Ms.

W. still harbours feelings of frustration and resentment around the birth of M.C.W. She developed gestational diabetes and was under intense stress. She had to have regular insulin injections throughout the pregnancy. She said her mother, D.S., usually did them for her. Mr. W. said that was because she preferred her mother to do them. She said when she went into labour she tried to call Mr. W. throughout the evening and eventually had to call 911. [ 3 ] Ms. W. said that once M.C.W. was born and still in the hospital, Mr. W. would stop by sometimes in the evenings between midnight and 2:00 a.m. Consequently, Ms.

W. did not have much interaction with him after M.C.W. was born. [ 4 ] Despite Ms. W.’s recollection of Mr. W.’s conduct during their relationship, she agreed that he attended the majority of her appointments in her pregnancy. She also agreed he was informed about its progress. She conceded that he did make it home before the ambulance left with her to take her to the hospital and agreed he was there when M.C.W. was born. It turned out that the car had broken down. It is troubling that she did not recognize and offer this explanation in direct examination.

In fact, her testimony was marked by reticence leaving her version of matters lacking in fair disclosure. She was not as generous with her acknowledgment about Mr. W.’s care of M.C.W. as her mother was. She only grudgingly admitted Mr. W. had any involvement at all. This was despite the fact that Mr. W. was working, building a water business and assisting in M.C.W.’s care. [ 5 ] Ms. S. said that during the time M.C.W. was in the hospital, Mr. W. would come after work and stay with him until the final feeding, not getting home until 3 or 4 in the morning.

Once M.C.W. was home, he could not sleep in the prone position so he had to be held in shifts. Ms. S. said Mr. W. would come home around midnight to 2:00 a.m. and take his turn sleeping with M.C.W. on his chest. [ 6 ] Ms. W. also said that Mr. W. had another child, A. This child was born while they were living in Calgary. Although Andrew’s mother had encouraged phone calls, communication and visits, Ms. W. said that she was the impetus behind the visits, activities and phone calls. Mr. W. recalled it as more of a combined effort.

BACKGROUND: [ 7 ] The parties met in or around 1995 and moved in together at the end of 1996. Ms. W. had graduated from Pharmacy School and Mr. W. was working as a cook at [omitted for posting]. They had moved to Calgary to seek employment. They originally stayed with Ms. W.’s aunt then moved into an apartment together. They had a roommate in that apartment. [ 8 ] The parties separated for a time in 1998 but reconciled that spring. Part of the reconciliation was that Mr. W. agreed to go back to school and to change his lifestyle. It was Ms.

W.’s evidence that he was partying and not coming home. [ 9 ] Eventually the W. married. When Ms. W.’s mother moved to Calgary in 2002, the parties moved in with her. According to Ms. W., Mr. W. started staying out late and not answering his cell phone again. [ 10 ] Ms. S. also described Mr. W. as an absentee parent at the time that he and Ms. W. were living with her when they were married. She said that he would leave Ms. W. at home night after night while he took the car leaving her homebound. She described him as very competitive. [ 11 ] Ms.

W. applied for a transfer to Kamloops and they moved here when M.C.W. was five months old. They had both agreed they did not want to raise M.C.W. in a bigger city. Ms. W. was still on maternity leave when they moved to Kamloops. Mr. W. transferred as the assistant manager to [omitted for posting] here. Mr. W. stayed with [omitted for posting] until 2007. [ 12 ] Ms. W. went back to work in March, 2005 at [omitted for posting]. After a few months, she moved on to [omitted for posting] where she is presently employed. [ 13 ] When Mr. W. injured his knee in 2005, he was on medical employment insurance.

During that time, he cared for M.C.W. with some assistance from his sister. POST-SEPARATION ISSUES: [ 14 ] The parties separated in March, 2007. Ms. W. sited the lack of communication, irresponsibility on the part of Mr. W., inadequate and inappropriate child care for M.C.W., and Mr. W. not coming home to care for his child or be part of the family. In that time, Ms. W. worked two jobs. She worked at the [omitted for posting] from 4:00 a.m. to 10:30 a.m. and then taught a course in the afternoon. This helped reduce daycare costs. Mr. W. would look after M.C.W. in the morning and Ms.

W. would look after M.C.W. for the remainder of the day, except while she was teaching. [ 15 ] Ms. S. returned to Kamloops in March or April, 2007. Ms. W. and M.C.W. live with her. Mr. W. had been living with relatives at the beginning of this hearing but moved into a suite in a house owned by friends. Ms. W. does not approve of these friends because of displays of violence between the couple and suspected substance abuse. There is no evidence before me that this living

arrangement would be detrimental to M.C.W. I am confident from Mr. W.’s evidence that he will insulate his son from inappropriate behaviour, intervene in inappropriate circumstances arise, and make the appropriate accommodation changes if the living arrangements become unsuitable. It is inappropriate, however, for Mr. W. to change his living arrangements without telling Ms. W. he had done so. Both parents are entitled to know where their son is living when not with them. [ 16 ] In any event, after the separation, M.C.W. remained with this mother. Ms. W. said that access has been a continuing problem with Mr.

W. not complying with pick-up times. Their communications were poor with Mr. W. yelling and making demands and threats. Mr. W. did not pay child support. There was even a police incident when Mr. W. shoved Ms. W. [ 17 ] In January, 2010, M.C.W. had a sledding accident and broke his leg. The break was a significant one, requiring surgical intervention. Unfortunately, the surgical intervention led to further problems. Both parents were very much involved in the lengthy treatment and recovery process. However, there was a good deal of conflict between the parents even during this time. Ms. W. claimed that Mr.

W. had a complete disregard for court orders. He would also drop M.C.W. off late, posing problems with getting ready for school. [ 18 ] There were a number of communications between the parties that were put into evidence. Ms. W. was hostile and confrontational in most of these communications. Her frustrations with Mr. W. has posed a problem for these parties reaching accommodations for M.C.W.’s care and access to each of his parents. His communications tend toward patronizing and condescending. Neither is appropriate. Mr. Church is correct when he says both parties are to blame. Ms.

W. may be more overt in her hostility, but both are equally culpable. [ 19 ] Telephone access has also been a problem. Ms. W. claimed that Mr. W. uses the telephone access to speak to her about issues rather than talking to M.C.W. She said that the calls were often after bedtime. Other problems have included changing appointments without consulting with each other so that one parent misses the information. Ms. W. has also said that Mr. W. does not consistently respond to messages either. [ 20 ] Ms. W. also claims that Mr. W. has a substance abuse problem, primarily with marijuana.

She said it was one of the main reasons for their separation. She claimed the paraphernalia would be left out within reach of their then three year old child. These concerns continue today. It is her view that he cannot adequately parent and look after M.C.W.’s best interests. She has asked for a drug test but he refused. She said that M.C.W. has also mentioned incidents involving alcohol. On one occasion, M.C.W. was encouraged to taste some alcohol before he could open his presents. This would be highly inappropriate and Mr.

W. needs to be vigilant when his friends or relatives conduct themselves in this manner. [ 21 ] When challenged on the substance abuse issue, Ms. W. agreed that she had not seen him in an intoxicated state. She said she based her allegations on his past actions but had to acknowledge that she also smoked marijuana in the past. When presented with his hair sample test which was conducted in 2011, she was still not satisfied. She said he needed to provide regular testing every three to six months. However, she is not prepared to pay the costs of those tests. Her concern is unsupported on the evidence.

Both parents must stay away from drug use when M.C.W. is in their care. He should not be exposed to such a lifestyle. I am not going to order either party to provide a drug test as a condition of custody or access. [ 22 ] Ms. W. also claimed that Mr. W. has a general lack of care and concern for M.C.W.’s schedules or routines. He has no concern for his bedtime or when he has to be at school. Child support, as well as the payment of extraordinary costs continues to be a point of contention with the parties. She also claimed that Mr.

W. deducts money from child support when he has to pay for clothing or items such as school pictures. That is not permissible. [ 23 ] Ms. W. feels that she is the parent who attends to M.C.W. doing his homework in a structured manner. Ms. W. goes to the school and works with him when she is off. Mr. W. is much more relaxed with the routines, but homework still gets done when it comes with M.C.W. [ 24 ] Ms. S. testified about the structure and routines in M.C.W.’s life, such as play time; morning, afternoon and evening routines; chores; and bathing. They have well balanced meals and Ms.

W. rarely goes out socializing when M.C.W. is home. [ 25 ] M.C.W. has a very structured life in Ms. W.’s home but seems to thrive in it. He thrives equally well in the more relaxed environment of Mr. W.’s home. Both parents should strive to achieve a basic, common routine with respect to diet, meals, hygiene and bed times. Beyond that, they both must accept that the environment in both homes are different. One cannot dictate routines or environments in the other home so long as both environments continue to allow M.C.W. to thrive.

However, good parenting involves learning from each other what works best for the child and implementing those schedules and routines that prove to be best. If two different routines work, then both parents need to respect that. [ 26 ] Ms. S. described her relationship with M.C.W. as a comfortable, close relationship. She creates an environment where he knows that he is safe with her. She feels he can come to her for anything as a neutral source. Ms. S. cares for M.C.W. when Ms. W. is working. This has been a valued connection for M.C.W. [ 27 ] Ms.

S. described the difficulties arising from late returns whether it’s evening or too close to bedtime, or whether it’s morning and too close to school time. She has an otherwise cordial relationship with Mr. W. but describes some miscommunications regarding treatment for M.C.W. She very insightfully commented that she did not think Mr. W. realizes when he punishes Ms. W., he is also punishing his son by making things harder, causing stress in Ms. W.’s home and inflaming the situation with threats not to return M.C.W.

She described behaviour changes in M.C.W. on returning from access visits because of the different standards in each home with respect to video games and other routines. [ 28 ] Mr. W. reasonably suggested that if mornings were so difficult, he should take M.C.W. to school. Ms. W. refused because she values the time with M.C.W. at the end of the visit. This issue can be resolved with a properly crafted order. [ 29 ] Ms. S. said that Mr. W. frequently accuses them of not doing things correctly when it came to M.C.W.’s wound care. She

said she and Ms. W. took M.C.W.’s treatment very seriously and were both involved in health care. I accept that as true. [ 30 ] The communications in evidence show that Mr. W. has been critical and unhelpful on some of these issues. The exchanges are marked with the parents trying to shut each other out – not to achieve the best care for M.C.W. but to punish and manipulate each other. This has to end. [ 31 ] Ms. S. said that Ms. W. rarely makes disparaging remarks about Mr. W. Ms. W. has taken the parenting courses and they talk a lot about how careful they have to be in referring to Mr. W. [ 32 ] Ms.

W. presented as intractable. Even when she was clearly wrong with respect to the Christmas access, she persisted in her position, which ultimately resulted in very hostile communications and access issues. She would also respond in the negative in cross examination even though she would not actually recall the circumstances around the question. An example of this was surrounding a letter from Mr. W. to her in August, 2007. She denied that it was sent in response to her letter, but then could not recall. [ 33 ] Ms.

W. cannot recognize her role in the hostile communications between them particularly regarding the circumstances where she came to Mr. W.’s home uninvited and would not leave when he asked her to. This led to the altercation where he either pushed her or took her by the arm. She would not agree that part of the access problems on pick up were because Mr. W. would want her to agree when he would get M.C.W. next, but she refused. She fails to see the impact these hostile communications have on her son, claiming his upset is caused by him not getting to see his mother.

She unreasonably failed to acknowledge that when she is fighting with Mr. W., this is harming M.C.W.’s emotional wellbeing. [ 34 ] While she criticized Mr. W. for constantly threatening to keep M.C.W. if she did not agree to his demands, she also withheld access to suit her schedule. Neither parent is entitled to act as they have done. Access is not a weapon for manipulation. It is M.C.W.’s right to be with both parents. Similarly, access should never devolve to petty disputes about a half hour or hour imbalance here or there. [ 35 ] Ms. W. was also unable to consider the access issues from Mr. W.’s perspective.

While she insisted on having M.C.W. in time to have quality time with him after his access visits, she cannot appreciate the value of Mr. W.’s access with M.C.W. as well. She cannot appreciate that the time he has between visits with his son is also difficult for Mr. W. Although it is clear from the e-mail communications and the evidence before me that the key communication issue between these parties is access, and how often it will happen, Ms.

W. is unable to agree that they have any form of constructive communications. [ 36 ] Their mutual contempt is interfering with their ability to communicate respectfully but it has not interfered with the ability of each parent to provide proper care for M.C.W. Mr. Church argued that their vitriolic relationship is not conducive to joint custody and guardianship. Ms. Keim argued that joint custody and guardianship would work within the parameters of an order. [ 37 ] I was provided with prior decisions on this issue including G.(K.K.) V. G.(D.P.S.) 2010 Carswell 2315 (B.C.S.C.; Robinson v.

Filyk 1996 Carswell B.C. 2664 (B.C.C.A.) ; and L.R.C. v. J.M.C. [2008] B.C.J. 589 (B.C.S.C.) . The decisions are helpful guides to when communication is a bar to joint custody and/or joint guardianship, and when communication issues can be overcome in order to award joint custody and joint guardianship if that is in the best interests of the child. BESTS INTERESTS OF THE CHILD: [ 38 ] The best interests of the child are governed by s. 24 of the Family Relations Act : 24

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

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

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

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

d) education and training for the child; (

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

(1.1) The references to "other persons" in subsection (1) (

c) and to "each person" in subsection (1) (

e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

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

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2). [ 39 ] The health and emotional wellbeing of M.C.W. is well guarded and protected by both parents. Ms. W. is unhappy that Mr. W. does not follow her routines and structure that she has put in place for M.C.W. Mr. W. feels that Ms. W.’s structure and routines are too strict and has a more relaxed approach to child care of M.C.W. Neither environment is harmful to M.C.W. and, indeed, they encourage his wellbeing.

He is described as a happy and well-adjusted child. This is the product of the efforts by both parents.

[ 40 ] Both parents have been very solicitous and proactive in the treatment of M.C.W.’s very serious leg injury. However, Mr. W. has been patronizing and condescending with respect to that care and treatment which is evident not only in the viva voce evidence given at trial but in the tenure and tone of the exchanges between the parties in writing. [ 41 ] It is incumbent on both parents to share all of the medical information they acquire whether they are together at the appointments or not.

While their petty bickering over treatment changes has been detrimental to their communications, it has not yet harmed M.C.W. It has the potential to do so in the future, and not just on the issues of medical treatment. [ 42 ] Ms. W. inferred in her evidence that, despite saying the contrary, she feels Mr. W. is responsible for the sledding accident which led to the leg injury. There is no foundation for the assignment of that blame.

M.C.W. was a five year old boy sledding down a school sledding hill in perfectly reasonable circumstances, but resulting in a terrible accident. [ 43 ] M.C.W. is only just now turning eight years old. It is difficult in the context of two loving and caring households for him to express views which would be appropriate for the purposes of my decision. [ 44 ] To a certain extent, the love, affection and similar ties that exist between the child and other persons is not a prominent factor in this case. The cases provided, while accurately stating the law, are not helpful guides in this case.

Both parents live in Kamloops. They can accommodate M.C.W. attending his school and attending appropriate daycare.

While in the care of each parent, he is appropriately exposed to members of their families and able to continue his community ties without interruption. [ 45 ] Similarly, the education and training of M.C.W. is not a prominent feature in that he continues to go to the same school without issues, now that the problems of his attendance following his leg injury and access challenges are resolved. [ 46 ] To a good extent, the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately is a large feature in this matter. Ms.

W. has inappropriately withheld access. Mr. W. has inappropriately threatened not to return M.C.W. The nasty exchanges between the parties and the vicious e-mails sent by Ms. W. to Mr. W. are counter-productive and inappropriate to say the least. Ultimately, though, M.C.W. has had access to both of his parents and continued peaceable access to both parents can be achieved through a court order. [ 47 ] This is not an appropriate circumstance for a sole custody order granted to either parent. On the evidence before me, the most appropriate order is a joint custodial order with shared primary residency.

Despite the terrible communications between the parties, they have been able to communicate effectively when required; have been forced by circumstances to show that they can cooperate; and both have endeavoured to meet M.C.W.’s best interests. I agree with Ms. Keim that an appropriate parenting

schedule put in place will permit the parties to move forward to better communications while meeting the best interests of M.C.W. Once Ms. W. learns to control her anger and Mr. W. learns to be less patronizing, their communications will improve. I therefore make an order for joint custody of M.C.W. [ 48 ] I also make an order for joint guardianship. Ms. Keim suggested that the tiebreaker clause simply be removed from the joint guardianship order so that Mr. W. would not be left in the position of deciding whether or not an issue was significant enough to return to court when he disagreed with Ms. W.’s decision.

I agree that this would be a self-defeating model in the circumstances of these two parents. However, to leave no remedy would be just as unsatisfactory. Consequently, I have opted for the proposal Ms. Keim has advanced giving the “tiebreaker” function to Mr. W. on matters for medical and extra-curricular activities and the “tiebreaker” role to Ms. W. for matters relating to school, dental and daycare issues. I am making the order in the Master Joyce’s model with these modifications: J.M.W. and C.D.W. shall have joint guardianship of the child.

Joint guardianship shall, for the purposes of this order, be defined as follows:

(1) The parents are to be joint guardians of the estate of the child;

(2) In the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child;

(3) The parent who has the primary responsibility for the day to daycare of the child at the given time will have the obligation to advise the other parent of any matters of a significant nature affecting the child;

(4) The parents will have the obligation to discuss with each other any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the child;

(5) The parents shall have the obligation to try to reach agreement on those major decisions;

(6) In the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, Mr. W. shall have the right to make the decisions with respect to medical issues and extra-curricular activities; and Ms. W. shall have the right to make the

decisions with respect to schools, dental issues and daycare issues;

(7) Each parent shall have the right, under s. 32 of the Family Relations Act , to seek a review of any decision which the parent considers contrary to the best interests of the child;

(8) Each parent shall have the right to obtain information concerning the child directly from third parties, including teachers, counsellors, medical professionals and third party caregivers. [ 49 ] If either parent takes M.C.W. to a counsellor, medical professional or third party caregiver, that parent shall advise the same of the contact particulars of the other parent and notify the other parent of the attendance. [ 50 ] With respect to residency of M.C.W., it is in his best interests that he have equal time with his parents. It is clear that he is a happy and adaptable child.

He enjoys and is enriched by his time with both parents. They are both capable and loving parents. Ms. W.’s frustrations with the night time and early morning returns would be significantly reduced as well. Ms. W. says reasonable and generous access is achieved with Mr. W. having M.C.W. Friday after school to Monday morning with the Tuesday overnights to continue. In many cases, this would be reasonable and generous access. [ 51 ] This is not so in this case. While the simplest arrangement is to have one week on and one week off, Mr. W. has also proposed an alternating five and two schedule.

While it is a bit more complicated, it is a routine to which all of them should be able to adapt, thereby giving some consistency: Mr. W. will always have M.C.W. on Mondays and Tuesdays, Ms. W. will always have M.C.W. on Wednesdays and Thursdays, and they will exchange the three days of the Friday to Sunday on alternating weeks. It also takes into account that both parents would like to have longer and more consistent stretches with M.C.W. It also takes into account the vagaries of their work schedules. This

schedule shall commence on April 30, 2012 with the first Friday to Sunday block being with Ms. W. on May 4 to 6. [ 52 ] Ms. Keim recommended that pick-up and drop-off occur at the school to avoid the tensions surrounding the home exchanges. I agree and therefore each access visit shall commence at the end of the school day on the first day of access and shall end at the commencement of the school day following the last day of access.

Where the access change occurs on a holiday or weekend, the parent about to commence access shall pick up M.C.W. at the other parent’s home but in no case shall either parent go to the door of the other parent without the prior consent of that parent so long as their communications remain so acrimonious. [ 53 ] Mr. W. also seeks a holiday

schedule that provides for Christmas, Spring Break, and school and summer holidays to be shared equally. I order that Ms. W. shall have M.C.W. on Mother’s Day and Mr. W. shall have M.C.W. on Father’s Day. Ms. W. views Christmas as a very important holiday. It is less so for Mr. W. However, they both wish to have access on Christmas Day. I order that the Christmas school break shall be shared between the parents as follows: in even numbered years, Ms. W. shall have M.C.W. from the end of the last day of school until 2:00 p.m. on Christmas Day. Mr.

W. shall have M.C.W. from 2:00 p.m. on Christmas Day until the morning of the first day of school in the New Year. In the odd numbered years, Mr. W. shall have M.C.W. from the end of the last day of school until 2:00 p.m. on Christmas Day and Ms. W. shall have M.C.W. from 2:00 p.m. on Christmas Day until the morning of the first day of school in the New Year. [ 54 ] Spring break shall alternate with M.C.W. spending Spring Break with his father in odd numbered years and with his mother in even numbered years.

Easter will be the reverse with M.C.W. spending odd numbered years with his mother and even numbered years with his father. For clarity – especially in the years where Easter may tag onto Spring Break – the Easter access commences on Thursday before Good Friday at the end of the school day if the Thursday is not during Spring Break and at 7:00 p.m. if the Thursday falls during Spring Break.

Easter access ends at 7:00 p.m. on Easter Monday. [ 55 ] Similarly, for summer, the parties shall share the school summer break commencing at the end of the last day of school in ten day periods ending on the evening of the tenth day. The first ten day block shall be with Ms. W. The ten day blocks end at 7:00 p.m. on Labour Day regardless of whether that last block has ten full days. [ 56 ] At the end of the holiday or break in question, the

schedule shall resume as though there had been no interruption. This will end the arguments about whether one person is entitled to have missed days made up. CHILD SUPPORT: [ 57 ] Mr. W. has not willingly disclosed his income to Ms. W. in the course of these proceedings or increased his payments to meet his Guidelines obligations. As a result, Ms. W. has not received the child support she ought to have received. Neither party gave me fulsome evidence of their income. [ 58 ] Mr. W. gave evidence that his income in 2010 was $52,000.00 and that it was essentially the same in 2011, with a small increase in 2012.

Child support on that basis ought to have been $484.00 per month for 2010 and 2011, and $478.00 for 2012. However, Judge Cleaveley made an order setting arrears in September 24, 2010 and I make no alteration to that order. Similarly, he made an order for child support on an interim basis to take effect October 1, 2010. Therefore, my order will take effect commencing January 1, 2011 setting Mr. W.’s annual income at $52,000.00 and his child support payments for that year at $484.00 per month.

Commencing January 1, 2012, that annual income is set at $52,000.00 and the child support to and including April 1, 2012 is $478.00 per month. To the extent that there may be arrears, those are now due and owing. [ 59 ] Ms. W. is presently on maternity leave earning approximately $24,000.00 for her leave. This is a time limited income.

Before her maternity leave, she earned $41,000.00 per annum. She is returning to that employment and so should earn at least that much. [ 60 ] In a shared parenting arrangement, the strict guideline application is no longer appropriate. Ms. Keim argued that Mr. W. should no longer have a child support obligation. Based on their 2009 incomes, and using the usual set-off formula, it would provide a net amount of $58.00 per month payable by Mr. W. to Ms. W.

With the income information I received at the end of the hearing, that set- off would be his obligation of $484.00 less her obligation of $379.00 for a net payable amount of $105.00. However, Ms. W. also receives $1,200.00.00 a year in child care benefits, $1,600.00.00 a year in child tax benefits, the equivalent to spouse tax deduction, and the child fitness tax credit. These must be taken into consideration. [ 61 ]

Section 9 provides for circumstances of shared custody. Where a parent has a right of access for custody of a child not less that 40% of the time over the course of a year, the child support order must be determined by taking into account the following: 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. [ 62 ] So long as Ms. W. is able to continue to receive the benefits and deductions set out above; and their relative incomes remain the same, I find that no parent shall pay child support to the other. This order commences May 1, 2012. In any event, the parties shall exchange their notices of assessment annually by June 30 in order to ensure that the relative incomes remain at the same level.

This will also ensure that if the benefits and deductions change, the parties will be in a position to adjust the child support obligations by agreement or by application to the court. SPECIAL AND EXTRAORDINARY EXPENSES: [ 63 ] The Federal Child Support Guidelines provide for the sharing of special and extraordinary expenses. The applicable legislation is as follows: 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 extra-curricular 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 extra-curricular 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. Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [ 64 ] Ms. W. would like to have Mr. W. contribute to the extra-curricular expenses she enrols M.C.W. in from time to time.

Section 7 of the Child Support Guidelines requires contribution on a proportionate basis for medical, dental, school and childcare expenses. For Mr. W. and Ms. W., that proportionate basis is 56% for him and 44% for her. [ 65 ] Extra-curricular activities should not be compensated, Mr. W. argued, because there is already a lifestyle component to the table amount of child support. Only extraordinary extra-curricular activities should be compensated over and above the child support amounts. A further consideration is that Mr. W. has been paying child support for his other child.

The amount he would pay under the Guidelines in child support to two separate mothers is more than he would pay for two children of the same mother. This has caused him financial difficulty to some extent. His schooling posed challenges for him as well. He has not been in a position to pay extraordinary expenses for extracurricular activities. His income is now quite comfortable at $52,000.00 per annum, at least. [ 66 ] Extraordinary extra-curricular activities are in part defined by the means of the parents. These parents have the means to enrol M.C.W. in activities, but not in an unlimited way.

He is an energetic and outgoing child. It is reasonable to expect that he be enrolled in some activities and that both parents share those expenses. Both parents support the activities M.C.W. engages in. Mr. W.’s primary objection is to the process for deciding what M.C.W. will enrol in. To the extent that it involves Mr. W.’s financial obligations, the guardianship terms will resolve this issue. [ 67 ] Mr. Church’s proposal in light of submissions from counsel and a review of their cases is the best in these circumstances: M.C.W. may be enrolled in one winter sport and one summer sport.

Anything beyond that, the enrolling parent pays on their own. The costs of the one sport or activity in each season shall be borne on the same pro rata basis I set out above. The selection of those activities must be done in accordance with the guardianship order.

[ 68 ] To be clear, both parents are entitled to attend any activity M.C.W. is enrolled for without it affecting the order I have made with respect to the cost of those activities; and without it resulting in a dispute about whether one parent got access during another parent’s time. If a parent enrols M.C.W. in an activity, that parent must share all scheduling information with the other parent.

Unless the activity is the one seasonal activity contemplated by this order, neither parent shall enrol M.C.W. in an activity which takes place during the access time with the other parent without that parent’s consent. [ 69 ] Ms. Keim shall draw the order. _______________________ S.D. Frame Provincial Court Judge