T.L.C. v. K.J.H., 2021 BCPC 250

Citation: T.L.C. v. K.J.H. 2021 BCPC 250 Date: 20211014 File No: 12752 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.L.C. APPLICANT AND: K.J.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Appearing on their own behalf: K.J.H. Appearing on their own behalf: T. L.C. Place of Hearing: Duncan , B.C. Date of Hearing: October 13, December 8, 10, 11, 2020; Feb 8, 12 & March 25, 2021 Date of Submissions: March 25, 2021 Date of Judgment: October 14, 2021

Introduction [ 1 ] The parties are each seeking a plethora of conflicting and opposing relief under the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”) in connection with the now three year old child of their failed common law relationship. [ 2 ] The parties (collectively the “Parents”) were in a domestic relationship characterized by them as an “off and on relationship” commencing in December 1, 2016. It continued until approximately April 1, 2019 at which time they separated (the “Date of Separation”) and have since then remained separated.

At the Date of Separation, their child B.J.H., date of birth [omitted for publication], (“Child B”) was just approaching one year of age. [ 3 ] The Parents entered a “Co-Parenting & Child Support Agreement” in or around March 2, 2020, (the “Co-Parenting & Child Support Agreement”) which was filed with this court on March 3, 2020. It established a parenting time

schedule and made provision for K.J.H. (“the Father”) to pay child support commencing March 1, 2020 to T.L.C. (“the Mother”) for the benefit of Child B. [ 4 ] Thereafter, the Mother implemented a plan, effective June 1, 2020 to relocate Child B along with her two older children from another relationship, namely K.L.C., date of birth [omitted for publication] (now approximately 12 years old) (“Child K”) and L.E.C., date of birth [omitted for publication] ( now approximately 7 years old) (“Child L”), from Duncan, British Columbia to new rental accommodation in Nanaimo, British Columbia, and specifically located in the Hammond Bay neighbourhood in the north of the City of Nanaimo. [ 5 ] The Father opposes that relocation of Child B.

The father of Child K and Child L, who is D.L.C. (hereinafter “D.L.C.”) also opposes the relocation. The matter of the relocation of Child K and Child L is being dealt with by the Mother and D.L.C. in the Supreme Court of British Columbia (the “Supreme Court Relocation Matter”). [ 6 ] Pursuant to an Application for an Urgent Hearing filed by the Father on May 8, 2020 in the Provincial Court, in the midst of the first wave of the Covid-19 pandemic shutdown, a hearing was conducted before the Honourable Judge Sacca and an order was made on May 14, 2020 (the “May 14, 2020 Order”).

The May 14, 2020 Order contains the following provisions:

a) the Parents are to continue to “share their parenting time” as set out in the Co-Parenting & Child Support Agreement;

b) the pick up and drop off times were set to be 5:30 PM unless otherwise agreed to by the Parents or subject to further court order;

c) the Mother was to be responsible for the transportation of Child B to and from the Father’s parenting time ( that being between Nanaimo and Duncan); and

d) the Parents were ordered to “make all attempts to

schedule and attend mediation prior to the hearing date scheduled in this matter” and were ordered to “attend a Pre-Trial Conference at the earliest opportunity to discuss the relocation issue and to consider what a hearing may look like for scheduling purposes”. [ 7 ] I reviewed the transcript of the May 14, 2020 proceedings before the Honourable Judge Sacca to determine whether Judge Sacca had made a final order or an interim order with respect to the proposed relocation of Child B. The entered order is headed “Final Order”.

That transcript review clarifies that that Judge Sacca made an interim order only to deal with parenting time on a go forward basis. The relocation issue was to be subject to a further and more fulsome hearing.

That more fulsome hearing has been the subject matter of these proceedings before me. [ 8 ] To their credit, for a period of time following the Date of Separation, the Parents were able to achieve consensus on many parenting matters by means of direct discussions with each other, thereby permitting them to co-parent Child B. [ 9 ] However, the Parents’ relationship experienced a steady decline and has continued to deteriorate. The intended relocation from Duncan to Nanaimo became a significant flashpoint.

Their present relationship can be characterized as high conflict. [ 10 ] In fact, during some of the intervals awaiting continuation of these proceedings, there were some challenging events between the Mother and the Father over parenting time, cross-complaints about lack of adherence to the May 14, 2020 Order and mutual allegations that the other party was demonstrating a lack of flexibility in connection with the exercise of the complainant party’s parenting time. [ 11 ] During the course of the hearing of this matter, the Mother has made a serious criminal allegation against the Father to the police saying that he sexually assaulted her.

As a result, the Father has retained legal counsel to deal with these criminal allegations.

The allegations resulted in court ordered or police undertaking restrictions upon the Father and limited contact between the Mother and the Father. [ 12 ] In the course of these proceedings, the Mother also sought to attack the character of the Father by seeking to introduce into evidence media reports about alleged 2017 criminal convictions in the United States of individuals known to the Father and then going onto to suggest that the Father was also subject to a Canadian police investigation arising out of those U.S.A. matters, even though no criminal charges ever arose.

I excluded that evidence, in part because of the reasons for which it was sought to be tendered and because of its lack of relevance to the issues before me.

I find this approach of attempting to besmirch the Father’s character, and by inference his suitability as a parent, to be of no particular value or relevance in this case. [ 13 ] Similarly, the Father has disclosed documentation in these proceedings about intimate matters relating to the Mother and has threatened her with more public disclosure of intimate information and photographs, which again appears to be in aid of undermining the Mother’s character and suitability as a parent. Once more, this information about the Mother is of no relevance to this case and no weight has been accorded to it.

[ 14 ] Both Parents also tendered into evidence and relied upon a number of vitriolic, unnecessarily rude, insulting and accusatory email and text exchanges between them.

Once more, I find most of them to be of little relevance other than to highlight the low level to which their relationship has sunk and to confirm that indeed it is at present mutually very spiteful. [ 15 ] The deterioration of the Parents’ relationship has also been fuelled by their dispute over financial matters, and, in particular the Father’s payment of child support for Child B to the Mother, and specifically disagreements about the amount of that child support payable, both on a retroactive and prospective basis. [ 16 ] The Father has been employed for several years in the Alberta oil sands with the same major producer company.

The child support matters are significantly complicated by the Father’s on again and off again work experience over the past several years, apparently arising from his ongoing health and medical issues.

Thus, there have been significant resulting swings in his annual income when he is in receipt of disability benefits rather than his regular high wages. [ 17 ] There are also complications arising from the Father’s child support obligations payable to J.L. (hereinafter “J.L.”) for the support of his other child, being A.J.L., date of birth [omitted for publication] (now approximately 11 years old) (hereinafter “Child A”). These have been the subject matter of separate and apparently contentious proceedings before the Provincial Court, out of the Duncan Registry, dating back to 2010 (the “Child A Proceedings”).

Issues Before this Court [ 18 ] In general terms the Father and the Mother are asking this Court to resolve the following questions as they relate to Child B:

a) the relocation of Child B from Duncan to Nanaimo;

b) parenting time for each of the Mother and the Father;

c) parenting responsibilities;

d) the quantum of on-going Child support payable by the Father;

e) a determination of whether there should be a retroactive variation of the Father’s child support;

f) a determination of the Father’s alleged arrears of child support;

g) in the alternative, a determination of the amount of any overpayment of child support by Father;

h) a determination of the ongoing responsibility for special and extraordinary expenses;

i) a determination of the alleged arrears of special and extraordinary expenses payable by the Father;

j) the requirements for ongoing financial disclosure for determination of any required future variation of child support and the determination of the allocation of special and extraordinary expenses. [ 19 ] Determination of the issues of parenting time and parenting responsibilities will require this Court to make its decisions based upon a consideration of the best interests of Child B as contemplated in s. 37 of the FLA . [ 20 ] The issues raised in connection with child support and Special and Extraordinary expenses engage a consideration of

Part 7 of the FLA and the Federal Child Support Guidelines , SOR/2017-224 as amended (the “ Guidelines ”). [ 21 ] The present relocation application is governed by Division 6 of the FLA . This Court will be required to determine whether the move from Duncan to Nanaimo is a “relocation” as defined in

section 65 of the FLA and then consider the provisions of

section 69 that govern relocation orders. An interesting issue also arises about the means, form and sufficiency of the

section 60 notice of relocation purportedly provided by the Mother. Overview of the Co-Parenting & Child Support Agreement, the Opposing Applications and the Existing Applications The Co-Parenting & Child Support Agreement: [ 22 ] The relevant provisions of the Co-Parenting & Child Support Agreement, which apparently was prepared without any legal advice or assistance, may be summarized as follows:

a) The Parents relationship was acknowledged to be an “off and on relationship” from December 1, 2016 to April 1, 2019, which as noted above was the Date of Separation. Child B was the acknowledged to be the sole child of their relationship;

b) The Parents were both acknowledged to be and would continue to be guardians of Child B;

c) The Parents would both exercise parental responsibilities. During their respective parenting times, each would be responsible for day to day decisions for Child B. They acknowledged their respective obligations to discuss with one another “any significant changes that have to be made” concerning Child B which included “significant decisions about health (except emergency decisions), education, religious, and general welfare.” Disagreements on significant decisions, “despite best efforts” were to be resolved through mediation;

d) The Father, who was then on long term disability, was to pay the Mother $600 per month for child support for Child B, commencing March 1, 2020 and “ongoing as basic child support, as per the Child Support Guidelines”, with such amount to be paid until further order of the court or written agreement of the parties;

e) The Father was to provide the Mother with thirty day’s written notice of “any change in income” and each year, each party was to provide the other with their current tax assessment;

f) The Father was to be responsible for 75% of special and extraordinary expenses and the Mother was to be responsible for 25%; payments of their respective shares would be made within “14 days of the receipt date.” Such expenses included without limitation “childcare, preschool, day-care, art classes, dance classes, sport fees, passports and tutoring”;

g) The Father was to maintain medical and dental coverage for the Mother and Child B “while he is employed or eligible through employment until he is unable to”;

h) The Mother was acknowledged to be self-employed and the owner of an on-line clothing consignment business;

i) Child B was to reside primarily with the Mother. Her residential address was shown to be in Duncan, BC as was the Father’s own separate Duncan residential address;

j) The Father’s parenting time was agreed to be “every sixth night for four nights”, with pick up and drop off at 11 AM, “unless otherwise discussed”;

k) Each Parent was to have “fair and reasonable access to phone calls” with Child B when he was with the other Parent;

l) Each Parent was to have “two weeks of parenting time each year” with these dated to be confirmed “30 days prior”;

m) Both Parents “must agree to child minding and babysitting” for Child B. [ 23 ] The parties have not proceeded to mediation, notwithstanding the existing contractual language that references mediation to resolve issues relating to the exercise of parental responsibilities, and, notwithstanding the provisions of the May 14, 2020 Order directing the Parents to “make all attempts to

schedule and attend mediation prior to the hearing date scheduled in this matter”. Each accuses the other of a failure to participate in mediation. At the end the day, it appears that the Mother has been and continues to be the most reluctant to participate in mediation or in co-parenting counselling, which is apparently available free through the Father’s employment benefits. The Mother cites a lack of affordability of the related expenses for not participating in private mediation.

The Application for an Urgent Hearing: [ 24 ] The Father’s Application for an Urgent Hearing filed May 8, 2020, while using somewhat informal language, seeks to restrain and prevent the relocation of Child B from Duncan to Nanaimo. In support of that relief, the Father’s pleadings indicated as follows: 1. The Mother only provided improper notice of the relocation on May 1, 2020 regarding the June 1, 2020 relocation to an undisclosed location in Nanaimo and the Mother refuses to provide information with respect to that that location; 2.

The proposed relocation is disruptive to all three of the Mother’s children, including disruptive to their schooling, their friendships, and to the respective father’s of each of the three children, who were resident in Duncan and who each had significant shared parenting time with their own respective children or child; 3. The suggested motive for the relocation is to permit the Mother to be closer to her new boyfriend. [ 25 ] By way of her Reply and Counter Claim, prepared with the assistance of legal counsel and filed on May 13, 2020, the Mother pleads and asserts that: 1.

The Father is not the father of Child K or Child L, nor did he stand in the place of a parent to them and hence he has no standing to oppose the relocation of those two children and further that Child B is the only child of their relationship; 2. She had spoken to both the Father and D.L.C. about the proposed move in September/October of 2019. On March 22, 2020 she again confirmed to the Father her intention to relocate. The Father said “it was okay”. Due to the Covid-19 pandemic the relocation was delayed until June 1, 2020 and hence she again “gave notice of the move on May 1, 2020”; 3.

There was an existing agreement for the Father to have parenting time with Child B, on the basis of “4 days out of 10” and an agreement regarding child support, which appears to be a reference to the Co-Parenting & Child Support Agreement. She had no intention of “disturbing the existing parenting arrangements”, and further pleads that “it will not be affected”. She noted a pending change to the Father’s existing at-home

schedule while on disability, such that the Father was about to resume work on “a 6 days on and 6 days off

schedule (2 of the off days (being) travel days)”; 4. The Father and D.L.C. were “playing games with their child support” which made its receipt by her as being “unreliable”; this necessitated her to look for work. Work was unavailable for her in Duncan; she was unable to find day-care in Duncan and was only waitlisted for it. However, she has been offered a job in in Nanaimo earning $2,100 per month and that “better” day-care in Nanaimo is available; 5. She has given up her rental accommodation in Duncan and has found rental accommodation in Nanaimo, effective June 1, 2020.

If she cannot move she and the three children will be “homeless”; 6. The parenting time of the Father “will not be affected”; 7. She was prepared to “travel half way to share the travel”, which I take to be a reference to travel for the parenting time transition arrangements for Child B between the Mother and the Father. [ 26 ] The Father filed a document entitled a “Response” on May 13, 2020 in which he asserts in part that:

1. He did not agree to the relocation on March 22, 2020 as alleged; neither he nor D.L.C. agreed to the relocation of the three children and both he and D.L.C. oppose the re-location; 2. The agreed parenting time with Child B is not “4/10” as alleged (which I take to be four days with the Father out of a total of ten days) but rather five nights with the Mother and four nights with the Father. Furthermore, it appears to be the Father’s suggestion that upon his return to work out of town from his present disability schedule, the agreed parenting time

schedule will be eight nights with the Mother and five nights with the Father; 3. His existing parenting time

schedule with his daughter, Child A, is such that he has parenting time with her in Duncan, where Child A goes to school and resides, on the basis of 4 nights with him and 6 nights with Child A’s mother, J.L.; hence the relocation to Nanaimo will interfere with the Father’s parenting time

schedule with Child A and prevent him from driving her to school and her extra- curricular activities; 4. Child B has “started roots” in Duncan with swimming lessons and participation in the “Strong Start” program and other development programs; Child B’s former day-care facilities are both willing to have Child B any time there is a need to look after him; 5.

The Father challenges the lack of availability of higher paying jobs for the Mother in Duncan, citing her most recent job in Duncan which he contends paid her more than $2,100 per month, and he also challenges other purported financial benefits to residing in Nanaimo as cited and relied upon by the Mother; 6.

The Father asserts that he was paying his agreed child support to the Mother for Child B and D.L.C. was paying his agreed child support for his children. [ 27 ] On July 2, 2020, the Mother, without the assistance of legal counsel, filed a further “Reply” raising her disagreement apparently with the existing arrangements for guardianship, parenting time, child support and allocation of parental responsibilities all purportedly on the basis of the Father’s failure to pay child support. By way of a further counter claim contained in the Reply she sought what I understand to be changes to:

a) The existing parenting time arrangements for Child B;

b) The existing child support arrangements of $600 per month because of the tax free basis of the Father’s disability payments;

c) Retroactive child support for Child B calculated from June 1, 2020;

d) The calculation and payment of special or extraordinary expenses including childcare, sports, passport fees and art classes (being items mentioned under the Co-Parenting & Child Support Agreement);

e) Ongoing spousal support calculated retroactively to April 1, 2019 on the basis that she “had given up [her] career and put it on hold” to have Child B and “loosing [her] position”.

f) Allocation of parental responsibilities. [ 28 ] The Father did not file a further Reply to this counter claim but between July 2, 2020 and July 13, 2020 both he and the Mother filed an extensive number of responding affidavits, including sworn Financial Statements. These documents dealt with the various contested issues, including the relocation issue being the subject matter of the May 14, 2020 Application for Urgent Hearing and the resulting May 14, 2020 Order. In the course of this hearing the Mother indicated to the court that she was not pursuing the claim for spousal support at this time.

Pre-Trial Matters: The July 15, 2020 Order: [ 29 ] This matter came before the Honourable Judge Cutler for a Pre-Trial Conference on July 15, 2020, at which time the following orders were made (the “July 15, 2020 Order”):

a) The parties were directed to exchange affidavits and information regarding witnesses other than themselves 30 days in advance of the scheduled hearing of this matter;

b) The Father’s name was to be added to Child B’s birth certificate;

c) On a “without prejudice” basis, the Father’s income was imputed at $90,000 per year and the Mother’s at $24,000 with the Father being directed to pay the Mother monthly child support of $660 for Child B retroactive to May 1, 2019, payable on the first day of the month. Sources of Evidence at the Hearing: [ 30 ] Seven full days or part days of viva voce evidence were heard in this matter, over a span of five months, with an expansive amount of affidavit and other documentation being entered as exhibit evidence. The Mother and the Father were solely their own witnesses and each provided viva voce evidence.

Both parties were cross-examined upon their viva voce evidence and upon their affidavits. [ 31 ] Both the Mother and the Father filed further documentation after the last day of the hearing and the making of submissions on March 25, 2021. That included the following:

a) Affidavit of the Mother filed April 8, 2021, to which was exhibited an update of payment records from Family Maintenance Enforcement Program (“FMEP”) for child support paid by the Father from January 7, 2021 to April 8, 2021.

b) Affidavit of the Father filed May 7, 2021 to which was exhibited: i. confirmation that Crown was not proceeding with charges for the allegations of sexual assault made by theMother against him; ii. FMEP payment records of child support paid by the Father from May 7, 2020 to May 1, 2021; iii. cheques from FMEP payable to the Father returning a total of $9,797.57 being amount garnisheed in error fromthe Father for child support; iv. a copy of the Father’s 2020 T1 Income tax return and attached schedules along with the CRA Notice ofAssessment issued following the date of assessment of March 15, 2021.

c) Affidavit of Mother filed May 31, 2021 to which was exhibited a copy of the Mother 2020 T1 Income tax return and attachedschedules. [32] Some of this information, and specifically the 2020 income tax returns and the FMEP records were provided in accordance withan order I made on March 25, 2021. [33] I accept that all of this affidavit material forms part of the evidentiary record but I am also mindful that none of this affidavitinformation has been the subject matter of cross-examination or rebuttal evidence.

The Court’s Approach to Summarizing the Evidence: [34] For the benefit of these self-represented parties, it is important to understand the approach that I have followed in summarizingthe evidence in these Reasons for Judgment. It is the same approach usefully and concisely set out by the Honourable Judge T.S. Woodsin the decision of R. v.

Connell, 2017 BCPC 123, at paragraphs 5 and 6 as follows: [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidlyacknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who werecalled, or to all of the documentary evidence that was received and marked. I have, rather, referred to evidence that I consider it necessaryto mention in connection with my factual findings and the legal conclusions that flow from them.

In places I have made mention ofevidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is not mentioned in thisdecision, both Crown and defence may take comfort that the omission is not the result of my not having taken note of it. I have read allof the transcripts from end to end. I have done the same with all of the documentary exhibits. If witness testimony or documentaryevidence do not come up for specific mention in these reasons, that is because: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to thefacts that I have found and the arguments that are supported by those facts. [6] That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed andsomewhat selective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there issubstantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make areversible error by failing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 atpara. 56; R. v. Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8 ); and R. v. Dinardo, 2008 SCC 24 at para.30. [35] I have used this approach and found it helpful in other similar lengthy and complicated Family Law Matters, such as V.W. v. J.H., [2020] B.C.J. No. 180; 2020 BCPC 13.

Background Circumstances- Undisputed Facts and Resolved Facts The Parents’ Relationship: [36] The Mother is presently approximately 38 years old and the Father is presently approximately 34 years of age. They met, starteddating and then lived together in a common law relationship commencing December of 2016, in Duncan, BC. They never married. [37] At the time of the commencement of their relationship, the Mother had her two children from her previous relationship withD.L.C., being Child K and Child L, living with her.

That arrangement was subject to a shared parenting arrangement between her andD.L.C., also being an out of town worker. As further referenced in these reasons, that parenting arrangement has been the subject matterof various applications, hearings and court orders including the Supreme Court Relocation Matter. [38] At the time of the commencement of the Parents’ relationship, the Father also had his daughter, Child A, who was also thesubject of a shared parenting relationship between Father and Child A’s mother J.L.

Their parenting arrangement has also been thesubject matter of numerous court applications, hearings and court orders in the Child A Proceedings. During the Parents’ relationship, theFather was paying J.L. child support of $1,500 per month for the support of Child A pursuant to a July 2015 consent order. Howeverlaterally he was seeking to reduce that financial obligation in the Child A Proceedings. [39] At various times, the Father, the Mother, Child B and the two other children, Child K and Child L, as well as Child A shared thesame rental residence in Duncan, BC (the “Duncan Family Residence”).

I am given to understand that it was a very large house withsome seven bedrooms and a separate garage suite. Prior to the Date of Separation, there were apparently short periods of time when the

Mother and the Father had separated and accordingly they were not residing together in the Duncan Family Residence, even though the Father had returned from his

schedule work in northern Alberta back to the Cowichan Valley. After the Date of Separation and the Father’s final departure from the Duncan Family Residence, the Mother continued to reside in the Duncan Family Residence with all three of her children, and subject to the two separate, existing parenting arrangements with D.L.C. and the Father. [ 40 ] After the Date of Separation, the Mother assumed responsibility for the rent and related expenses for the Duncan Family Residence. Those expenses were significant. The monthly rent was $2,300 plus utility charges over $700 per month.

The Mother’s evidence is that she found that it was an expensive and difficult premises to maintain. The Mother was able to obtain some cost sharing revenue from a friend of the Father who occupied the garage suite in the Duncan Family Residence for a period of time and who was paying $800 per month all-inclusive of utilities and the like for that accommodation. The Father’s Circumstances: [ 41 ] At the time of the commencement of their relationship the Father had been steadily employed by one of the large oil producers in the Alberta oil sands.

At the time of the hearing his employment in the Fort McMurray area had continued for approximately 14 years. His employment was as a heavy equipment operator and he was responsible for driving very large haul trucks. He has commuted regularly between Fort McMurray and his residences on Vancouver Island during this lengthy period of employment. Initially he received accommodation or a living out allowance and “retention payments” which could amount to over $39,600.00 per annum, on a taxable basis. Those payments apparently ceased in or around 2018.

Therefore he no longer receives those amounts and he is now responsible for his own travel expenses between Fort McMurray and Vancouver Island. He maintains rental accommodation, at his own expense when he is working in Fort McMurray. He asserts that commuting to work with the attendant cost of airfares and maintaining two residences causes him financial hardship.

When the Father is working full time and obtaining regular overtime, as I understand to be the case in 2017, his line 150 income was in excess of $200,688.00 [ 42 ] In November of 2012, and prior to the commencement of his relationship with the Mother, the Father was involved in a motor vehicle accident in which the vehicle he was riding was struck by a semi-trailer truck in or around Duncan, BC. He received a sizeable insurance settlement from ICBC. Ironically, the Mother was able to bring more precision to the details of the ICBC settlement.

Apparently unbeknownst to the Father, the Mother had either photocopied or photographed correspondence sent by the Father’s personal injury lawyer to him that confirmed that the all-inclusive settlement was $208,445.12. It further confirmed that Father received a net amount after legal fees and disbursements of $141,647.12 in March of 2016.

This and other financial information obtained by the Mother, apparently without the knowledge of the Father, was disclosed in the documentary evidence submitted by the Mother. [ 43 ] The Father was cross examined on those matters including certain financial holdings that he apparently possessed in 2016 and 2017. Based upon the Father’s evidence and his financial disclosure it appears that there is little remaining, if any, of the ICBC settlement or other assets he possessed in 2016 and 2017.

The Father suggests in his evidence was used pay off debts and to support his own (and presumably) the lifestyle of his family dependents, which I take to include the Mother and her two children. There is evidence that he bought and then sold at least two residential real estate properties with the ICBC settlement amount but apparently with a resulting loss on some of those investments. It also appears he made other unsuccessful investments.

He therefore contends that he either lost or spent that ICBC settlement money prior to the Date of Separation. [ 44 ] The Father was left with nerve damage from that motor vehicle accident. In recent years, this residual nerve damage has caused continuing pain and discomfort in his back and neck, which has apparently been aggravated by the physical rigours of his employment.

The result has been that there have been about four lengthy periods since the settlement of his motor vehicle accident claim that the Father has been off work from his heavy equipment operating duties in the oil sands, thereby resulting in him being on short term medical leave and in some cases extending to long term disability. [ 45 ] The Father was off work due to these historical medical issues, which were then further exacerbated by a fall at home. He was off work from February 18, 2019 to September 26, 2020, at which time the Father returned to full time employment.

This return to work occurred by start of the hearing of these proceedings in October of 2020. However, due to his historical medical issues, by February 6, 2021 the Father had once again returned to receiving payments from his Long Term Disability Plan. [ 46 ] The Father’s short term and long term benefit programs have two components. The first component is a short term medical leave program with a maximum duration of six months. On short term medical leave the Father’s income is apparently calculated on his base, pre-tax salary which is approximately some $124,000 to $126,000 per annum.

These short term medical leave amounts are taxable income. That base figure does not include any amounts for overtime nor other premiums such as employee bonuses, which may be available in the course of his full time employment. Based upon the documentary and viva voce evidence the short term medical leave amount received by the Father was approximately $10,313 per month, using this base salary amount. [ 47 ] The second component is a Long Term Disability Plan which necessitates an application by the employee, along with a medical examination and an assessment.

Thereafter the applicant is subject to a required approval process by which the insurance carrier determines whether or not the applicant meets the requirements of the plan’s coverage. Payments under the Long Term Disability plan become available after the completion of the first component of six months of short term medical leave. The Long Term Disability Plan provides the Father with a tax free payment which is 50% of gross (pre-tax) monthly salary to a maximum or a “cap” of $5,000 per month.

That equates to $60,000 per annum on a tax free basis. [ 48 ] As I understand the evidence, the Father can claim coverage under the Long Term Disability Plan up to and including age 65 but subject to continuing to qualify medically and otherwise. [ 49 ] Except for a letter from the Father’s family physician dated February 27, 2020 (the “Family Physician Letter”) there are no other formal medical reports before this Court about the extent of the Father’s past or continuing medical issues nor any medical reports that provide a prognosis about his long term recovery, his ability to return to work or even about the likelihood of that ability to return to work.

The Family Physician Letter confirms the existence of “significant musculoskeletal injuries” that impaired his ability to return to work. It further confirms the Father’s “recurrent challenges with pain and muscle dysfunction primarily in his back.” The best the Family

Physician’s Letter can predict is that as at February 27, 2020, the family physician “did not see a return to work and usual productivity at any time in the near future”. [ 50 ] The Father testified towards the end of these proceedings that he is concerned about his physical ability to return to work as a heavy equipment operator because of this historical nerve damage.

He further testified that under the terms of his union contract it is not possible for him to be re-trained for another, physically less demanding position with the same employer, such as being an operator of an “autonomous truck” which apparently drives itself. However, there may be a retraining program requirement under the Long Term Disability Plan made available to him through the insurance carrier. Monies earned from employment by an insured following retraining are offset from the continuing payments under the Long Term Disability Plan.

The Father indicates that he is desirous of undergoing retraining, possibly in the field of accounting. [ 51 ] As confirmed in the Family Physician Letter and the Father’s testimony, the Father is presently under the care of his family physician; he has been referred to or is in the process of being referred to a publically funded medical pain clinic. He has seen a number of specialist and has had a number of medical investigations. He continues to undergo physiotherapy, other treatments and recovery programs as part of his attempts to resolve his continuing medical issues.

The Father’s family physician says that he is “compliant with any and all treatments suggested”. [ 52 ] Since March 21, 2019, the Father has been undergoing professional counselling with a registered clinical counsellor.

According to a September 14, 2020 letter introduced into evidence by the Father from that counsellor, the counselling sessions are intended “to address anxiety and stress symptoms related to separation, work injury and child custody conflicts” and to help him “improve both interpersonal communication and stress reduction/coping skills”. [ 53 ] None of this is evidence is sufficiently contradicted by the Mother even though the suggestion made by the Mother in her evidence is to the effect that the Father is not really required to be on medical leave nor Long Term Disability and he is physically capable of working full time at his historical job in the oil sands.

In that regard she cites certain activities in which he has participated and long distance trips and vacations that she says he has taken, all while off work allegedly due to medical issue.

She says that these activities are inconsistent with impairment from his alleged medical issues. [ 54 ] In my view, given the fact the Father is and in the past has received Long Term Disability Plan benefits, which from the documentary evidence apparently requires on going medical assessments in order to qualify, it is a reasonable inference that there are existing, verifiable medical grounds for the Father to be off of his full time work duties. [ 55 ] The Father has entered into a new romantic relationship but does not reside with that individual.

The Father has, since February of 2020, and at present resides in a three bedroom rental accommodation near the City of Duncan (the “Father’s Duncan Residence”). [ 56 ] He seeks to be and is actively involved in the lives of both Child B and Child A. [ 57 ] Child A attends school in the Cowichan School District. Child A resides at J.L.’s residence when she is with her pursuant to their existing parenting arrangement; J.L.’s residence is a short driving distance from the Father’s Duncan Residence.

Also, Child A’s present school and her next school placement are either short drives or short walks from the Father’s Duncan Residence. As I understand it, the Father has parenting time with Child A on an overnight basis, which was originally pursuant to a 2014 consent order made in the Child A Proceedings. The Father’s evidence is that maintaining the Father’s Duncan Residence and his availability in Duncan is very important to him in order that he can continue to exercise his parenting time with Child A. [ 58 ] Prior to having to go onto Long Term Disability, the Father was working on a

schedule of six days away at work and six days off, (which included the two days of travel to get to and from work in Alberta). That work

schedule for the Father has apparently been in place since 2012 and continued until around February 18, 2019. It was then that the Father was injured in his fall while at home which exacerbated the historic medical problems. He went onto short term medical leave or disability and eventually on to Long Term Disability. He was off work for a total of 18 months before returning to work on September 26, 2020. [ 59 ] According to the Father’s testimony, that “6 and 6”

schedule provided an opportunity for the Father to have significant parenting time with Child A. During his parenting with Child B he remained responsible for picking up and dropping Child A at school and taking her to extra-curricular activities during his parenting time with her. [ 60 ] The COVID-19 pandemic, and the resulting cancellation of available and reasonably affordable commercial airline flights to and from Fort Mc Murray resulted in a change to his parenting time

schedule such he was only back in Duncan every 18 days in order to exercise parenting time with Child A. This extended time away permitted the Father to pick up some extra overtime work shifts. His regular shifts were 15 hours each day, for each of the six working days. Various regulations limit the number of his shifts in a 24 day scheduling cycle to around 18 or 19, in order allow for a mandatory period of four days off.

The Father’s overtime hourly rate is some $125 per hour so that on a 12 hour over-time shift he can earn a gross amount of $1,500. [ 61 ] As noted above, the Father was at the time he started his relationship with the Mother and before the birth of Child B, paying J.L. child support of $1,500 per month for the support of Child A, based upon a July 15, 2015 Provincial Court consent court order. That consent order also provided for the equal sharing of Child A’s extra-curricular expenses.

The Father brought on a separate court proceedings in November of 2019 to retroactively vary those child support payments based upon a reduction in his income due to his medical issues. [ 62 ] Apparently after a Family Case Conference and by way of a further consent, interim without prejudice court order made on November 30, 2020, the parties, being the Father and J.L. agreed to have a “section 211-Hear the Child Report” prepared by a private mediator, regarding the existing parenting arrangement for Child A and to address, what I am given to understand, is the wish of the Father to have increased parenting time with Child A.

The results and the present status of that

section 211 Report are uncertain and unknown to this Court. At this point, it is also uncertain as to whether there will be any change to the Father’s parenting time with Child A either by way of an increase or reduction.

[ 63 ] On March 4, 2021 a further consent order was made in the Child A Proceedings which set the Father’s child support payable to J.L. for Child A at $718 per month, effective April 1, 2021, based upon his Long Term Disability payments of $5,000 per month (being a tax free amount).

A further term of that order provides that the Father will pay J.L. $1,186 per month for child support for Child A based upon his employment income with his oil sands employer determined to be $128,859 per annum, if and when he returns to work off of Long Term Disability. [ 64 ] A further provision of that consent order states that such employment income, for child support purposes for Child A is to be reduced “by the amounts he pays for travel to and from work and for rent while he is away at work”; however he is required to provide J.L. with proof of payment of those expenses and to provide notice that he is returning to work.

Based upon the numbers used to calculate the Father’s child support obligations for Child A, it does not appear that the Father has a shared parenting arrangement for Child A which may entitle him some adjustment of his child support obligations under

section 9 of the Guidelines . [ 65 ] The Father’s evidence is that when he has been off work on disability, in addition to his regularly scheduled parenting time under the Co-Parenting & Child Support Agreement, but prior to the Mother’s move to Nanaimo, he often had the care of Child B for some two hours a day during the Mother’s parenting time. During his time with Child B he took Child B to a number of programs such as swimming and the “Strong Start Program.” The Mother’s Circumstances: [ 66 ] The Mother separated from D.L.C. in March of 2015 and they are not yet divorced.

The Mother and D.L.C. owned and occupied a family home in the Cowichan Valley where they resided along with their two children, Child K and Child L. Although not yet divorced, the Mother and D.L.C. have been before the Supreme Court of British Columbia on numerous occasions (the “Supreme Court Proceedings”) relating to the issues of child custody, child support and division of matrimonial property. [ 67 ] D.L.C. and the Mother have an order from the Supreme Court made under the Divorce Act that they have joint custody and they are the guardians of Child K and Child L.

Throughout the duration of this hearing these two children were enrolled at the same school within in the Cowichan School District where they have attended since the start of their elementary schooling. As I understand the evidence, it is approximately a 15 to 20 minute drive from the Duncan Residence to that school.

I also understand that those two children have remained enrolled at that school or within the Cowichan School District but the Mother has been home schooling them for significant periods of time during the pandemic and specifically after her move to the north City of Nanaimo neighbourhood from the Duncan Family Residence. However, these children actually do attend that school in person when they are residing with D.L.C. in the Cowichan Valley. [ 68 ] D.L.C. opposed the Mother’s relocation with the Children to Nanaimo from Duncan and sought an order that the children not be relocated.

That matter and the issue of variation to the child support obligations of D.L.C. came on for an interim application hearing in the Supreme Court Relocation Matter before the Honourable Mr. Justice Thompson on August 13, 2020 (the “Supreme Court Relocation Hearing”). The Supreme Court Relocation Hearing preceded the commencement of this hearing in the Provincial Court but subsequent to the May 14, 2020 Order. Many of the same arguments relied upon in this hearing and in the hearing before Judge Sacca about relocation were also raised by the Mother in the Supreme Court Relocation Hearing.

Based upon my review of the transcript of reasons for judgement in the Supreme Court Relocation Hearing, Justice Thompson did not find them to be particularly persuasive on the evidence he had before him. [ 69 ] Justice Thompson concluded on an interim basis that a change of the residence of the two children from Duncan to the City of Nanaimo northern neighbourhood of Hammond Bay could be expected to have a significant impact on the children’s relationship with their father.

He further concluded that D.L.C.’s parenting time beyond being an “access parent” was bound to be compromised if the children attended a north Nanaimo school. On an interim basis, Mr. Justice Thompson did not require that Child K and Child L return to live in Duncan but did order that those two children were to remain attending their school in the Cowichan School District. Furthermore on an interim basis he also ordered that the parents were to share parenting time in accordance with the D.L.C.’s work

schedule “ordinarily 14 days at work, 7 days off”. [ 70 ] In making this order Mr. Justice Thompson was mindful of D.L.C.’s work

schedule which saw him away two out of every three weeks, making it impractical to order the children of D.L.C. and the Mother to live in Duncan. Justice Thompson was also mindful of what he described as “the long driving commute” between the children’s school in the Cowichan School District and the Mother’s residence in the Hammond Bay neighbourhood.

He references that commute time based upon the Mother’s evidence in those proceedings as being “less than an hour”. [ 71 ] Justice Thompson also made an interim order for D.L.C. to pay the Mother child support for Child K and Child L in the amount of $1,692 per month, based on a Guideline income of $113,000.

There was also a consent order whereby D.L.C. was to pay “his 50% share of the childcare costs” and arrears for two such separate facilities. [ 72 ] Justice Thompson urged the parties to seek to resolve some of their continuing difference and ordered that they arrange a 90 minute Judicial Case Conference in December of 2020, the agenda to include a discussion of the residence/schooling issues, and the advisability of obtaining a views of the child(ren) report. [ 73 ] There is no evidence before this Court as to what happened or arose out of that Judicial Case Conference nor about any subsequent changes to the parenting arrangements or the change of Child K and Child L’s schooling in the Cowichan School District. [ 74 ] The Mother has entered into a new romantic relationship with D.

C. (“D.C.”), starting around August 2019. D.C. owns his own speciality media production business. He is a full time resident of the Hammond Bay area in the north part of the City of Nanaimo, where he maintains his own accommodation. D.C. has frequent parenting time with his own two daughters whom I understand to be approximately 10 and 8 years of age. The youngest is apparently a playmate of Child L. [ 75 ] The Mother and D.C. do not and have not resided together in the same residential unit.

[ 76 ] When the Mother first moved to Nanaimo, she and D.C. lived about a mile apart. Having made the decision to move to Nanaimo, the Mother rented a four bedroom unit, with a living room, kitchen, 3 ½ bathrooms, with a fenced yard and garage for $2,000 per month rent plus her utilities all totalling approximately $2,500 per month. [ 77 ] During the course of the hearing the Mother again moved into another four bedroom rental accommodation in the same residential strata complex which contains multiple duplex units and where D.C. has his residential unit (the Mother’s Nanaimo Residence”).

She testified that she and D.C. are “now neighbours”. The rent for this unit is $2,300 per month plus utilities. She says she is only paying $1,900 per month at present time and that D.C. is “paying the rest until I start work”. [ 78 ] The Mother has her Grade 12 equivalency. She was formally trained in hairdressing, graduating in 2003 but never worked in that vocation. She did work in the service industry in various capacities and eventually earned her Level 1 Insurance Broker’s Certification in 2011.

She worked for a Duncan insurance agency in that capacity for some eight years, up to the time she went on maternity leave with Child B. During that maternity leave her insurance broker’s license expired. [ 79 ] As noted below, at the time of the hearing, the Mother indicated that her plans are to re-qualify for her insurance broker’s license but she had not done so nor had she returned to work in the insurance brokerage industry.

She testified that her eventual goal is achieve her CAIB designation which, as I understand it is a top level of certification in the insurance brokerage industry. [ 80 ] During the course of the relationship with the Father and during her maternity leave with Child B, the Mother ran her on-line clothing consignment business starting in January of 2019. She earned a relatively modest amount from it. When hurriedly filing her income tax return, which was late for the tax years 2019, she may have in fact overstated her net income because she did not adequately claim her business expenses.

As I understand it, some of those expenses relate to an on-line sales portal which she uses and for which there is a commission charge. The net proceeds after these type of charges are then shared equally with the consignor. Thus she suggests that likely she only earned about $6,000 rather than the declared amount of some $13,000 of business income. Based upon the available evidence the Mother has not refiled her income tax return for 2019.

She still has the business but is not actively pursuing it due to the negative economic effects of the COVID-19 pandemic. [ 81 ] She further testified that in 2019 she was living off of and supporting herself from an inheritance she received from her grandmother, which she stated she received in instalments of $30,000 in 2019. The total inheritance was some $65,000. [ 82 ] The Mother’s evidence indicated that following her maternity leave with Child B, a return to her position with her former longtime employer was both impractical and less remunerative.

That former employer is a well-established Duncan insurance brokerage firm. She was with them from 2013 until December 31, 2017. This was prior to commencing her 18 months of maternity leave with Child B in April of 2018, continuing until October of 2019. She testified that her return to this former employer was problematic because of the availability only of less flexible working hours, requiring her to now work full time and be at work weekdays between 9:00 AM and 6:00 PM, or on Saturdays.

This, she says, would interfere with her childcare arrangements for Child B and would require greater day- care and child care arrangements starting at 8:00 AM and continuing until 7:00 PM, all at an additional cost, beyond those for her day- care arrangements for Child L and Child K, prior to her maternity leave with Child B. [ 83 ] Also there was a change to the Duncan brokerage’s insurance agent’s compensation plan that had been introduced by new management. It had the effect of reducing her monthly compensation from $4,500 per month to a base salary of $2,300 per month.

The alternative work offered was weekend work with a non-fixed

schedule providing mobile auto insurance services for local car dealers. She testified that other brokerage firms only had available casual employment with both unsatisfactory remuneration and hours of work. [ 84 ] In support of her application to re-locate to Nanaimo, BC with the Child B, the Mother’s evidence is that in June 2020, she obtained work from a corporate entity, the principal of which is a friend of D.C.

That principle lives in Nanaimo but works in the Alberta oilfields as a contractor, through his corporate entity, (herein “[omitted for publication]”) overseeing multiple work sites for a large energy producer. He is the sole employee of the [omitted for publication]. [ 85 ] The Mother was not very knowledgeable in her testimony about the day to day field operations of the [omitted for publication] business. The Mother described her duties as administrative and booking keeping; she provided her services as a contractor and not as an employee.

She apparently was able to work on line from home, five days per week, starting between 9:00 and 9:30 AM until around 2:00 PM. Thereafter she would pick up Child B from his licensed, in- home Nanaimo day care around 3:00 PM. She received compensation of $2,100 per month from the [omitted for publication]. [ 86 ] I gather that the Mother was not over burdened with her workload and “it began to fizzle” along with the business of the [omitted for publication], due to COVID-19. I also understand that her work with that [omitted for publication] ended in November of 2020.

She did not find replacement employment and as I understand she continued to receive and rely upon CERB, Federal child tax benefits and the child support payments from the Father and D.L.C. [ 87 ] The Mother testified that she has found another employment opportunity with a Nanaimo insurance brokerage firm in the commercial insurance field, through a former insurance industry colleague. This opportunity was first discussed in her evidence on December 11, 2020.

At that time she indicated that to permit her to commence work in March or April of 2021, she needed to complete required examinations to re-obtain and upgrade her insurance brokerage licenses, which she intended to do.

She further testified that the she expected to receive starting compensation at $30 per hour or around $60,000 per year of salary and eventually she will be able to earn on commission between $120,000 to $140,000 per annum. [ 88 ] In her February 8, 2021 oral evidence and by way of her affidavit filed February 3, 2021, the formal job offer from the Nanaimo brokerage presented an hourly rate of $23 per hour for a 40 hour week (apparently from 9:00 AM to 5:00 PM) which equals approximately $44,160 per annum plus a cell phone and vehicle allowance.

The offer also described the opportunity to earn extra amount by way of commission on the sale of specific product lines. [ 89 ] In her evidence of March 25, 2021, the Mother testified that she has not yet completed nor challenged any of the three required insurance licensing exams. Specifically, she has not yet challenged the first level examine to gain back her Level 1 license. She says that

she has studied for two higher level exams required for her commercial insurance license but needed to arrange a proctor to oversee the writing of those exams. She stated that by way of a “mutual decision” between herself and her new prospective insurance brokerage employer in Nanaimo, she has not yet started work and would not do so until such time as she has received a decision of this court on the relocation issue. [ 90 ] The Mother’s evidence also indicated that she was unable to obtain satisfactory day-care in Duncan for Child B, saying there was a lack of spaces and long waitlists.

She speaks very positively about the existing Nanaimo day-care placement for Child B, which is close at hand to her residence and for which she receives a government day care subsidy. The Child B’s Circumstances and Personal Background: [ 91 ] There is a reasonable amount of evidence before the court about the Child B that has been derived from the testimony of each of the Parents as well as from a number of the documents that have been admitted into evidence. Given the young age of Child B, there is no full

Section 211 Report, nor a “Views of the Child Report” nor a “Hear the Child Report”. There are no parenting capacity reports before the court. [ 92 ] Both Parents provided conflicting evidence about the parenting time arrangements and the actual amount of the Father’s parenting time, especially when he was off of work on medical leave or long term disability. [ 93 ] The whole of the evidence supports the conclusions that the Child B is an active, happy and well-adjusted child who is not only meeting but is “above and beyond” all of his developmental and physical milestones.

In particular Child B is very verbal. [ 94 ] The Mother’s evidence suggests that Child B is a sensitive child, presents as “shy at first”, hides behind her in new situations and with new people, is at times somewhat “clingy” to the Mother, takes a photograph of the Mother with him to day-care, but on the other hand goes into his present Nanaimo day-care “with confidence”, and without any demonstrable worries that the Mother is not returning for him. [ 95 ] The Mother says in her evidence that when she is transporting Child B to Duncan for the Father’s parenting time, Child B starts “really freaking out” and arching his body.

As I understand it, this behaviour subsides when Child B is transitioned to the Father and Child B seems happy thereafter. [ 96 ] There is no evidence that Child B has any present concerning health issues and therefore should be considered to be healthy. So far as I can determine, both Parents have both been involved with and agreed upon Child B’s medical care. [ 97 ] Child B has familial bonds, including with all of his half siblings; those sibling bonds are fostered and maintained by way of the time that he spends with them during the respective periods of parenting time with both of his Parents.

The Father’s own mother lives in Ladysmith, approximately half way between the Father’s Duncan Residence and the Mother’s Hammond Bay neighbourhood in Nanaimo. I understand that this paternal grandmother is quite involved in the life of Child B. [ 98 ] There are a limited number of family supports available to the Mother in the Nanaimo area. The Mother is estranged from her own mother and has been for some time. The Mother has a good relationship with her own father and her step-mother.

However, they reside in Metchosin on Southern Vancouver Island, hence Child B’s contact with them and his relationship with them is limited; they have never provided any child care for Child B. This situation apparently prompted the Mother to say in her evidence that this was a reason why is was “so good” to have D.C. nearby “to help with the kids”. [ 99 ] The Parents both maintain routines for Child B when he is at their respective residences. Based upon the available evidence, those routines are not identical but neither are they dramatically different.

Both household routines are appropriate for Child B. [ 100 ] The evidence supports the conclusion that Child B has a very strong relationship with both of his Parents, both of whom who are loving and caring parents. Child B also plays a very important role in the life of each of the Parents. Both Parents are attentive to the Child B’s needs.

In saying this, I am mindful, of course, that during a significant portion of Child B’s life there have been periods when the Father has been away working and hence Child B was in the care of the Mother. [ 101 ] As noted above, Child B is enrolled in a day-care in Nanaimo at the initiative of the Mother and apparently without any consultation with the Father. The Mother has been reliant on the use of that day-care since the move to Nanaimo, even when she has not been working regularly at a paying job.

The Father says that he seldom uses day-care when Child B is with him, and when required to do so for attendances at his medical appointments and the like, he utilizes a drop in day care in the Cowichan Valley, which remains available to him. [ 102 ] There is a dispute as between the Parents about the Mother allegedly withholding information from the Father about the Nanaimo care and about the financial costs of that day-care and the amount, if any, which the Father should be contributing.

The Mother’s Parenting Capacity: [ 103 ] The evidence supports that the Mother is a good, attentive, loving and caring parent. [ 104 ] The Mother has taken the Parenting After Separation Course and completed it in February of 2021. The Father’s Parenting Capacity: [ 105 ] The whole of the evidence supports the conclusion that Father is also a good, loving and caring parent. [ 106 ] The Father completed the Parenting After Separation Course in September of 2020. THE LAW RELATING TO CHILD SUPPORT AND RETROACTIVE ORDERS AND SPECIAL AND EXTRAORDINARY

EXPENSES Child Support Provisions of the Family Law Act : [ 107 ] Section 147 (1) of the FLA imposes the duty upon each parent and guardian of a Child to pay child support. Thus parents have a joint and ongoing obligation to support their children. The amount of child support is based not only on the parents’ earnings, but also on what they can earn . For this reason, the Federal Child Support Guidelines (the “Guidelines”) empower the court to impute income for a payor parent who is intentionally unemployed or under-employed.

This does not require a finding of bad faith on the part of the payor, only that the payor is not earning to capacity. ( see: Barker v. Barker , 2005 BCCA 177 at para. 19 , cited with approval in Koch v. Koch , 2012 BCCA 378 at para. 3 ) [ 108 ] Section 150(1) of the FLA requires that a child support order must be determined in accordance with the Guidelines. Despite subsection (1) and pursuant to the provisions of subsection (2) a court may order child support in an amount different from that required by the Guidelines if the parties consent to an order being made under

section 219 of the FLA or have an agreement respecting child support (see

section 148 ) and the court is satisfied that reasonable arrangements have been made for the support of the child. Under subsection 3, the court must consider the Guidelines for the purposes of subsection 2, but must not consider the arrangements made for child support to be unreasonable only because the amount required under the Guidelines differs from those arrangements. [ 109 ] Furthermore, despite subsection 150(1) , a court may, pursuant to subsection 4(

a) and (b), order child support in an amount different from that required by the Guidelines if the court is satisfied that an agreement or order respecting the financial duties of the parents or guardians or the division or transfer property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and applying the Guidelines would be inequitable on consideration of the agreement, order or special provisions. [ 110 ] Section 150(5) directs that a court must give reasons for doing so if it makes an order respecting child support in an amount different from that required under the Guidelines . [ 111 ] Under section 148 (2) a written agreement respecting child support that is filed in the court is enforceable under the FLA and Family Maintenance Enforcement Act as if it were an order of the court. [ 112 ] Under section 148(3), on the application by a party, the court may set aside or replace with an order made under

Part 7, Division 2 of the FLA all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in determining child support under

section 150. [ 113 ]

Section 152 of the FLA permits the court to change, suspend or terminate an order respecting child support both prospectively or retroactively (see subsection (1)). Before making such an order, the court must be satisfied that a change in circumstances as provided for in the Guidelines has occurred, there is evidence of a substantial nature not available during the previous hearing that has become available, or there is evidence of a lack of financial disclosure by a party that was discovered after the last order was made. Child Support Guidelines [ 114 ]

Section 1 (

a) to (

d) of the Guidelines states that their objectives are to establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation, to reduce conflict and tension between spouses by making the calculation of child support more objective, to improve the efficiency of the legal process by giving the courts and parents guidance and setting the levels of child support orders and encouraging settlement and to ensure consistent treatment of spouses and children who are in similar circumstances. [ 115 ] The presumptive rule under

section 3 of the Guidelines is that the amount of child support for a child under the age majority is the amount of the payor’s Guideline income set out in the applicable tables of the Guidelines and the amount, if any determined to be the special or ordinary expenses as set out in

section 7 of the Guidelines. [ 116 ] Under

section 6 of the Guidelines the court may order medical or dental insurance coverage to be acquired or continued for a Child where it is available to a spouse through their employment or otherwise at a reasonable rate. [ 117 ] Sections 10 (1) of the Guidelines permits the court upon application of either parent to award support that is different than the amount of support determined under sections 3 to 5, and 8 or 9 of the Guidelines , if the court finds that the spouse making the request would otherwise suffer undue hardship.

The circumstances that cause undue hardship may include those that are set out in section 10 (2). If the court finds that undue hardship exists under section 10(1) then the court must compare the household standards of living of the two parents under sections 10 (3) and (4). [ 118 ]

Section 14 of the Guidelines sets out any one or more of the things that give rise to a change of circumstances and may give rise to the making of a variation of a child support order, including a change in a level of support in accordance with an applicable Guideline table. [ 119 ] Pursuant to

section 15 of the Guidelines and subject to subsection 15 (2) a spouse’s annual income is determined by the court in accordance with sections 16 to 20. Pursuant to section 15(2) of the Guidelines , spouses can agree in writing to the annual income of a parent for the purposes of the Guidelines . The court can use this amount where the court determines that the amount is reasonable having regard to the income information provided by the payor parent under

section 21 of the Guidelines. [ 120 ] Pursuant to

section 16 of the Guidelines, a spouse’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General Form issued by Canada Revenue Agency. It is adjusted in accordance with

Schedule III of the Guidelines.

Schedule III sets out adjustments to income for: employment expenses, child support, spousal support and universal child care benefits, for the purposes of calculating income for special or extraordinary expenses, for social assistance that is not attributable to that spouse, for the treatment of dividends from taxable Canadian corporations, for capital gains and losses, for business investment

losses, carrying charges, net self-employment income, capital cost allowance for property, partnership or sole proprietor income, stock options received as an employee benefit, and for split-pension amounts. [ 121 ] Under

section 17, the court may have regard for a spouse’s income over the last three years and determine an amount that is fair and reasonable in light of a pattern of income, fluctuation in income or receipt of a non-reoccurring amount during those years. Such discretion may be exercised if the determination of income under

section 16 would not be the fairest determination of that spouse’s income. The court may impute income under sections 16 to 21 of the Guidelines . Specifically under

section 23, income can be imputed in the situation where there has been a failure to comply with the parents obligation set out under

section 21 to provide income information as detailed there in. Special or Extraordinary Expenses [ 122 ] The amount of the Guideline Income of the payor and payee is relevant in determining the sharing of special and extraordinary expenses, which under

section 7 of the Guidelines are to be shared by the parents in proportion to their incomes, after deducting the child’s contribution, if any (see section 7(2)). [ 123 ] The principles relating to special or extraordinary expenses are set out in

section 7 of the Guidelines as follows: 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. 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 childcare benefit or any eligibility to claim that benefit. [124] As noted by Baird J. in Clarke v. Clarke, 2014 BCSC 824; [2014] B.C.J. No 926 , to qualify as a special or extraordinaryexpense it must fit within one of the categories of expenses listed in

section 7 of the Guidelines. That list is exhaustive and accordingly ifthe claimed expense does not fit into any of those categories it cannot be a special or extraordinary expense (see: paragraphs 50 and 51). [125] It is established law that the court retains discretion to divide the parents’ obligations other than in proportion to their incomestaking into account certain factors (see: for example A. v. B., 2013 BCSC 60). Retroactive Child Support Principles [126] In the Supreme Court of Canada decision of D.B.S. v.

S.R.G., 2006 SCC 37 (“D.B.S.”), the Court decided the issue ofretroactive child support and laid out the framework of principles. [127] D.B.S. recognizes certain core principles underlining child support obligations. They include as follows: 1. Child support is the right of the child not the recipient parent; 2. The right to support survives the breakdown of a child’s parent’s marriage; 3. Child support should provide a child, as much as is possible, with the same standard of living being enjoyed when the parents weretogether; and 4.

The specific amounts of child support owed will vary based on the income of the payor parent. [128] D.B.S. further recognizes that the Child Support Guidelines have an underlying principle that the support obligation of thepayor parent should fluctuate with that parent’s income.

Also, parents have an obligation to support their children in a way that iscommensurate with their income. [129] Both the parental obligation and the corresponding right of a child to support exists independently of any statute or court order.Furthermore, if a payor parent does not increase child support payments to correspond with their income, then that payor parent will nothave fulfilled the parent’s obligation to the child (see: paragraph 54). [130] In addition, D.B.S. states that notwithstanding that there may be no statutory or other legal obligation on a parent toautomatically disclose changes to income, there remains an unfulfilled obligation that could later result in court enforcement if the payorparent’s income rises and the amount of child support paid does not.

An application to the court is a necessary trigger to the court’sjurisdiction but the court retains the power to make a retroactive order once it is properly seized of a matter (see paragraph 60). [131] Three separate situations are identified (see paragraphs 61-84) in which it may be appropriate for a court to order that aretroactive award be paid: 1. Where there has already been a court order for child support to be paid 2. Where there has been a previous agreement between the parties; and 3.

Where there has not already been a court order for payment of child support. [132] The Supreme Court of Canada noted in D.B.S. that if the order for support has already been made that such an order is nottruly retroactive. Such an order does not impose an obligation on a payor parent that did not exist at the time for which support is beingclaimed. This is because the payor parent always has the obligation to pay and the dependent child always has the right to receive childsupport in an amount that is commensurate with the payor’s income.

Thus the amount ordered by the court is presumed to be the supportobligation but that amount is not necessarily “frozen” because of this continuing obligation (see paragraph 68). [133] If there is a previous agreement on child support between the parties, such an agreement will be given considerable weight.However, the court may order a retroactive award if circumstances have changed and the actual support obligations of the payor parenthave not been met and so long as the applicable statutory regime permits it (see paragraph 78). [134] In the situation where there has not already been a court order for child support to be paid it is unreasonable for the non-custodial parent to believe that he or she was living up to their obligation to support the child, absent such things as hardship or an ad hocsharing of expenses with the custodial parent.

Because the court is only enforcing an obligation that existed at the relevant time, thereforeit is available to make such an award as a retroactive original order. In such a case, it is not making a retroactive order in the true sense ofaltering a court order that stated a certain amount was due on a certain date (see: para 80). [135] In Semancik v.

Saunders, 2011 BCCA 264 (“Semancik”) the British Columbia Court of Appeal states at paragraph 40 that it isthe responsibility of both parents to ensure that the payor parent fulfils his or his actual obligation and where they fail in this obligation acourt may order an award that recognizes and corrects that failure. [136] Semancik further notes that the factors set out in D.B.S. are applicable to making retroactive orders for

section 7 expensesunder the Guidelines (see: paragraph 38). At paragraph 57 the Court of Appeal noted the important factual difference between retroactiveawards for child support and

section 7 expenses namely that the pay

[…]