T.N.C. v. T.J.C. Date:, 2014 BCPC 257

Citation: T.N.C. v. T.J.C. Date: 20141114 2014 BCPC 0257 File No: 12861 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T. N. C. APPLICANT AND: T. J. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: K. A. Hedman

Counsel for the Respondent: K. E. McNeilly Place of Hearing: Abbotsford , B.C. Dates of Hearing: June 17, July 29, 2014 Date of Judgment: November 14, 2014 Introduction [ 1 ] The Applicant T. N. C. and the Respondent T. J. C. were married in July of 2004 in Maple Ridge, BC. Together they are the parents of two children: their daughter A.B.C., who was born on (d.o.b.) 2005, and their son A.G.C., who was born on (d.o.b.), 2006. [ 2 ] The parties separated on August 6, 2008 and signed a written Separation Agreement on April12, 2009. That agreement was filed with this court on April 16, 2009.

In that agreement, the parties agreed to share joint custody (as it was then called) and joint guardianship of the children, who were to reside primarily with the Applicant. The agreement spelled out the times that the children would be in the Respondent’s care, as well as the Respondent’s obligation to pay child support and a proportionate share of expenses under

section 7 of the Federal Child Support Guidelines. [ 3 ] The parties were divorced in 2010. I am informed by counsel that there are no orders of the BC Supreme Court affecting the matters now before this court. On May 17, 2011, an order of this court was made which varied the Respondent’s parenting time. [ 4 ] There are two cross-applications now before this court. The mother, who is styled as the Applicant in these reasons, brought an application on December 19, 2013, asking for further changes to the Respondent’s parenting time, a review of the amount of child support owing by the Respondent retroactive to May 1, 2010, and a review of the

section 7 expenses owing by the Respondent. The Respondent filed a reply on February 3, 2014, in which he disagreed with what the Applicant was asking for, and brought his own application for increased parenting time and an adjustment in the child support. The Applicant filed a reply to the Respondent’s application on May 21, 2014 with her proposed changes to the parenting time

schedule and the amount of child support that she believes should be paid. [ 5 ] At the trial of this matter each of the parties testified. No other witnesses were called by either party. On the second day of trial, there was insufficient time for counsel to make submissions, so it was agreed that counsel would have until September 26, 2014 for counsel to file written submissions and replies to one another’s submissions. Following is a

summary of the evidence heard at trial, the applicable law, and the reasons for making the order that is now being made.

Summary of Evidence [ 6 ] The parties were married on July 3, 2004 and in during the four years and one month that they lived together, the two children who are the subject of these applications were born. The parties separated on or about August 6, 2008. The family lived in Mission, BC and when the children were born, the Applicant stayed home with the children for a year after each child’s birth. At the time the couple were working for the same company. The Respondent went to school to become a plumber and he is now a journeyman plumber.

When the Applicant went back to work after the birth of their daughter, her mother would provide child care. After her son was born, the Applicant changed her job so that both parents were able to share in the care of the children. [ 7 ] When the parties separated, the mother and the children left the family home but remained in Mission with the children. The children were very young at the time of separation. In March of 2009 the couple sold the townhouse they were living in and the Respondent moved to Langley. The Applicant remained in Mission with the children.

When the couple first separated, the Respondent had the care of the children each weekend. [ 8 ] After the townhouse sold and the parties worked out an amicable division of their matrimonial property, a separation agreement was signed on April 12, 2009. Under the terms of that agreement, the parties agreed to share custody and guardianship of the children, and agreed that the children would reside primarily with the Applicant. The Respondent had what was then called “access” to the children each weekend from Friday at 5:00 p.m. until Sunday at 6:00 p.m. and each Tuesday evening from 4:00 p.m. to 9:00 p.m.

He also had the children on alternate Christmases and for a two week period during his vacation.

The agreement was hopeful that the parties could work out where the children would be on statutory holidays and other special occasions, and also contemplated that, notwithstanding that the children were with the Respondent each weekend, they would spend some of those weekends with the Applicant. [ 9 ] The separation agreement provided that the Respondent was to pay the Applicant the sum of $913 per month “or the equivalent to the guideline set under the BC Family Maintenance Program” on the first day of each month commencing on April 1, 2009.

The agreement also provided that the parties were to share, proportionate to their incomes, “any extraordinary or special expenses incurred on behalf of the children, so long as expenses are discussed before incurring them.” [ 10 ] Things changed when the children started school. With the children’s time being occupied with school during the week, the Applicant pursued wanting to have the care of the children for some of their weekends. On May 17, 2011, an order was made by the Honourable Judge C. J. Rounthwaite of this court, which changed the Respondent’s parenting time with the children.

Instead of having care of the children for the entire weekend each weekend, his parenting time was reduced so that on alternating weekends the children would be returned to the Applicant on Saturday at 2:30 p.m. It was also ordered that each parent would have the children in their care for one week of the school Christmas holiday, that they would alternate having the children on Christmas Day and New Year’s Day, that they would share the children’s school spring break, and that they would be in the Respondent’s care for extra time during the week

during the children’s summer vacation. [ 11 ] As the children got older, the parenting arrangements became unsatisfactory to each parent for different reasons. The Applicant felt that she was seeing the children less at times when she could spend quality time with the children. The children are involved in sports and between that and their school, she feels that she does not get to see them very much at times when they can participate in meaningful activity.

She would like to be with the children every second weekend in order to address this. [ 12 ] A second area of contention concerns the children’s sporting activities. The Respondent would like them to play sports in Langley, where he would be able to become more involved with them. The children are both very active in playing hockey and baseball. A.B.C. has played hockey for five years and A.G.C. has played for four years. The Applicant would like the children to play their sports in Mission, and she has registered the children to play hockey in Mission for the 2014-15 minor hockey season.

Each has argued in favour of the benefits of their respective sporting associations and communities. The Applicant believes that ice time for hockey is more available and at more reasonable times in Mission than in Langley. She says that if the children play hockey in Langley, they would have ice times for hockey practice very early in the morning.

Given that the children live in Mission and have the extra driving time to their practices, it is even more inconvenient for the children and requires them to get up very early on school days to be driven to their hockey practice, attend the practice, and return home to get ready for school in Mission. The Applicant testified that when the children have sporting activities in Mission that take place during the Respondent’s parenting time he refuses to drive them back and forth. She testified that the Respondent would sometimes refuse to drive the children from Langley to a game in Mission.

He would make her drive to pick up the children, only to later show up at the game himself. She testified that he also will not let them participate in baseball activities if these activities fall during his scheduled parenting time. For example, the children were not permitted to attend their year-end baseball event in Mission because it fell during the Respondent’s parenting time. [ 13 ] The Respondent testified that if the children play hockey in Langley, he could coach their teams and would have some input into their practice times.

They would be able to play on the same team every second year (when they would be of age to be in the same divisions). It would also be more convenient for him because his stepson also plays hockey in Langley. It would be very inconvenient for him to coach the children in Mission while living in Langley and having another child in the Langley minor hockey system. He also testified that he believes that the Langley minor hockey system is superior to Mission’s.

He testified that he believes that the children’s hockey skills “took a step backwards” because of their playing in Mission this past year. [ 14 ] The Applicant testified about an occasion when A.B.C.’s team was selected to play during the intermission between periods at a Vancouver Canucks hockey game. She testified that the Respondent refused to let A.B.C. attend the event with her teammates because the event fell during his parenting time and he had scheduled an activity for the child with his wife. The team was given one ticket for the child and one for the parent.

The Applicant took the ticket for the parent because she had paid all of the child’s hockey expenses that year. In order to convince the Respondent to let the child attend the game, the Applicant was forced to agree to pay for a ticket to the game for the Respondent’s wife. She testified that the Respondent would still not allow the child to travel on the bus to the game with her team. [ 15 ] The Respondent testified that it was not that he was opposed to the child going to the Canucks game.

The problem was that he was given very little notice about the game, and it took place on a weekend when he had made other plans for the children. He had planned to take his son to Seattle to see a Seahawks game, and his wife had planned to take his daughter to a spa day. He testified that it was not his intention to frustrate the child’s opportunity, and despite the late notice, he and his wife made sure that the child was able to participate.

He testified that the late notice and scheduled activities with his wife did not make it practical to get the child on the bus with her team. [ 16 ] Hockey is a subject of some importance to the Respondent. He played junior hockey and tried out for the Western Hockey League. He has also refereed and coached hockey. He has played since he was four years of age (he is now 33). He testified that the Applicant originally consented for A.B.C. to play hockey in Langley, and he paid all of the child’s registration fees when they played hockey in Langley.

He testified that he and the Applicant agreed that whichever parent put the children in an activity would be responsible for paying those costs. [ 17 ] The Applicant testified that, despite the Respondent’s keen interest in hockey, he would not cooperate with a plan to allow A.G.C. to play hockey in an Abbotsford Heat spring hockey league because some of this activity fell during his parenting time and he refused to use his parenting time by taking the child to this activity.

The Respondent agreed in cross-examination that this was a tremendous accomplishment for A.G.C., but it was also a significant time commitment. He testified that the reason he would not agree to A.G.C. participating in the event was because it would have eaten considerably into his allotted parenting time. [ 18 ] The Respondent complained that sometimes he does not get enough advance notice of children’s activities and learns about events only after he has made other plans for the children during his parenting time.

He testified that he does not intentionally frustrate any of the children’s activities, but rather it is frustrating for him when, after plans have been made for activities with the children, he learns at the last minute of conflicting plans made by the Applicant. [ 19 ] Tuesdays after school, the children go to a program called “Club Kids”. They spend between two and three hours there each Tuesday. Otherwise, the Applicant has enough flexibility in her work

schedule that no outside care is required for the children. [ 20 ] Another area of disagreement between the parties concerns the children’s schooling. The children attend [School 2] in Mission, a school with an arts based curriculum. They began attending that school in September of 2013, after attending [School 1] previously. The Applicant testified that at the end of the 2011-12 school year, both of these schools changed from traditional schools to arts based curriculum schools. Parents were required to make a choice on which school they wanted their children to attend.

The Applicant testified that she sought the Respondent’s input when the decision was being made, but that he did not respond to her email on the subject. It was only after she made the decision to change the children’s school that he expressed criticism of her decision. She subsequently learned that, without any prior discussion and without her consent, the Respondent went and registered the children in a school in Langley. This caused problems for her because the children’s place at [School 2] had been given to other students.

It was only after considerable effort that she was able to arrange for the children to attend [School 2]. The Respondent agreed that he was opposed to the change of schools.

He testified that he expressed that opinion to the Applicant, but that he did not feel heard. [ 21 ] The Applicant testified that the children are doing very well at their new school, both academically and socially. The Applicant helps out at the school with the children’s sports days and on “hot lunch days” at the school. She attends their parent-teacher meetings and Christmas concert. She testified that the Respondent has not attended at any of the children’s parent-teacher meetings for the past two years, despite the fact that she keeps him informed of all of their activities.

The Applicant drives the children to school each morning. [ 22 ] The Applicant testified that communication has been a problem between the parties. Email is the preferred method of communication between them. The Applicant finds the Respondent’s tone in email correspondence to be sarcastic and disrespectful. Counsel provided a “joint book of emails” passing between the parties, and some of the communication is terse and rude. For example, in an email dated February 25, 2013, the Applicant asked the Respondent for a list of the children’s hockey games and practices over a brief period.

Rather than simply sending the information, the Respondent responded by telling the Applicant that he had already sent it, and to “go through your email.” In an email sent in late January, the Respondent sent an email outlining the reasons why the children should live with him.

He referred to the Applicant as living “in front of the ghetto of Mission, while he lived in “an upper class neighbourhood.” He said that he was able to “broaden their horizons and give them a sense of culture and worldliness” and later stated “I have a more stable and affluent life that better suites (sic) the kids.” The Applicant replied “everything will be staying as per our separation agreement as it is in the best interest of our kids.” [ 23 ] As time passes on, the email becomes angrier.

An email from the Respondent sent on March 6, 2013 is entitled “Everything!!!!!!” and it begins with the Respondent saying “Myself, along with my wife are DONE with having you think that you are the deciding factor in everything. You seem to think you have the final say in what happens in our children’s lives, and I’m telling you right now, YOU DON’T!” The ongoing pattern is one of lengthy email about the merits of one another’s position.

For the most part, the Applicant sticks to the issues, while the Respondent is more prone to stray into condescension and commanding tones, with the use of capitalization to emphasize his anger. In an email of May 2, 2013, he tells the Applicant “Here you go again, making all of the decisions about the kids, signing them up for things without a JOINT decision.” After criticising the Applicant for consulting with others about the merits of the respective choices of schools, the Respondent continues by writing “I don’t care what MANY people think and I don’t care what all your FRIENDS think.

You need to discuss with ME, as it says in our agreement, decisions about our children’s education.” This is in response to an email in which the Applicant tells the Respondent about what inquiries she has made about options for schooling. [ 24 ] In another email series at the end of May, 2013, the Applicant asks for the Respondent to disclose his financial information, as he is obliged to do at law and under the terms of the separation agreement. He responds by opening his email by writing “I don’t know what fantasy world you live in, but you need to come back down to earth and do your

part in contributing to your children.” He does not provide the information. In a number of other emails, the Respondent makes it clear that he is not of a mind to make minor concessions or compromises.

His tone is generally terse and in one email of December 3, 2013 he responds to a plea that the two of them work together so that A.G.C. can attend the Abbotsford Heat try-outs by simply writing “You are wrong.” From reading these emails, I am left with the impression that the Applicant must approach the Respondent hat in hand with some timidity and that she can most often expect to be met with rudeness and a lack of cooperation.

It is difficult to expect cooperative parenting under these circumstances when the Respondent views all of the Applicant’s requests with suspicion and contempt. [ 25 ] The exchanges between the parties are less contentious in person. The Applicant testified that, early on in their separation, they had a couple of heated arguments in the presence of the children, but that today they each make an effort not to argue in front of the children. The Respondent agreed that he and the Applicant argue, but he says that he is the one who tries not to be confrontational.

He testified that she is the one who is quite insistent about the things they argue over, while he is not one to push things. [ 26 ] Both of the parties have entered into new relationships. The Applicant has a partner that she lives with. The Applicant’s partner has two daughters from his previous relationship that live primarily with their mother, but he has parenting time with his children every second weekend, which corresponds with the weekends when she has the children beginning on Saturday. He and the Applicant do not have any children together.

The couple began living together in 2010 and went through what the Applicant called “a rough patch” and they separated for about two and a half months, but had been back together for about five months as of the time when the Applicant testified (June of 2014). [ 27 ] The Respondent has remarried. His wife has a son from her previous relationship who is now 12. He and the Respondent have a good relationship. The Respondent works from 7:00 a.m. to 3:00 p.m. from Monday to Friday and his wife works full time at an accounting firm from 9:00 a.m. to 5:00 p.m.

Besides hockey, he takes the children on a number of activities, including camping. They also have a good relationship with his parents. [ 28 ] The Applicant testified that the children originally had problems adjusting to their parents’ break-up, and both were taken to counsellors at first. With the passage of time they have adjusted well to the current situation. [ 29 ] The Applicant works in Mission at a doctor’s office. She has worked there for six years. She works from Monday to Friday and is finished her shift by 2:00 p.m. every day except Tuesdays, when she works until 4:30 p.m.

She earns $17 per hour and has no other sources of income. She testified that she relies on the child support payments from the Respondent. She testified that the Respondent missed three payments in early 2014, but was able to catch up. He was late with the June payment and has not made most of the recent payments on their due date. [ 30 ] The Respondent testified that he earns $34 per hour. He also has no other source of income other than from his employment as a plumber.

It was suggested by the Applicant that perhaps he had some rental income from his brother who resided in his home, but the Respondent testified that his brother does not pay rent. His brother earns his keep by doing yard work and other odd jobs. [ 31 ] The Applicant has paid for the children’s hockey registration in Mission. She also paid for the children’s hockey equipment and for their tournament fees. She has also paid for the children’s baseball registration. Both of the children take music lessons and the Applicant also pays for those.

The children have orthodontic expenses and the Applicant is willing to pay her proportionate share of

those costs. She has not done so to date because the Respondent was unwilling to disclose his income to her. He simply told her what her share was, without affording her the opportunity to check his math. She also testified that the Respondent has a dental plan that would cover some of the children’s dental expenses, but he is unwilling to pass those costs on to his plan.

The Applicant’s new partner has an extended health plan with his employer, but there is an additional cost to cover her children. [ 32 ] The Respondent testified that these children are covered under his extended health benefits plan and that he has used the plan to pay for as much of the children’s orthodontic and dental expenses as are allowed for under the plan. The plan covers 50% of the orthodontic costs and 80% of the dental costs. He has paid for any of those costs not covered by his plan. The children are also covered under his wife’s plan, but her plan does not cover orthodontic expenses.

Position of the Parties [ 33 ] I am grateful to counsel for their thoughtful and well prepared written submissions, which have helped to narrow down the issues before the court and clearly set out the position of the parties. [ 34 ] The Applicant is asking that the children continue to reside primarily with her, but asks that there should be a change to the Respondent’s parenting time. At present the children are in the Respondent’s care for part of every weekend, and this prevents the Applicant from spending time with the children on days when she is not working.

She is asking that the Respondent’s parenting time be changed such that the children are with him on alternating weekends or alternatively only on three weekends per month so that the Applicant can have a weekend with the children. She is also asking that the children continue to go to school and play their sports in Mission where she lives. In essence, she is asking that she be given the parental responsibility for deciding where the children will reside and what extracurricular activities they will be involved in and where.

The Applicant suggests that during the summer, when the children are not in school, they can spend full alternating weeks with each parent. [ 35 ] The Respondent is not asking for any increase in his parenting time, he simply asks that the status quo remain, or alternatively, if his parenting time is reduced by one weekend, then the time should be made up elsewhere. Counsel for the Respondent argues that the Applicant has not shown any change of circumstances as required under

section 215 of the Family Law Act and therefore there are no grounds for disturbing the consent order made on May 17, 2011. [ 36 ] The Applicant also seeks an increase in child support, corresponding with the Federal Child Support Guidelines, to match the Respondent’s actual income. She asks that this change take effect retroactively to January 1, 2013. Finally, she asks that

section 7 expenses (under the Guidelines) include the children’s expenses for sports and orthodontic expenses (after deduction of any subsidies, benefits or tax credits), and that these be shared proportionate to each of the parties’ respective incomes, commencing on September 1, 2014. [ 37 ] Counsel for the Respondent points out that sporting expenses are not

section 7 of the Guidelines and relies on the BC Supreme Court decision of N.A.D. v. S.A.D. 2010 BCSC 269 as authority for that proposition. The Respondent is willing to pay the proper amount of child support that he is obliged to pay under the Guidelines and he is also willing to pay the proportionate share of proper

section 7 expenses, including any net amount owing for the children’s orthodontic expenses. Applicable Law 1. Best Interests of a Child or Children [ 38 ]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 39 ]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's

conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Change in Circumstances [40] Where there is an existing court order for guardianship, parenting time or what was formerly known as custody and access,section 215 (1) of the Family Law Act requires that there must first be a change in circumstances before the previous order can bechanged. The

section reads as follows: 215

(1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change incircumstances since the order was made. [41] The Family Law Act replaced the Family Relations Act, which also required that there be a change in circumstances before afamily court order of this nature could be varied. In Jellis v. Jellis, 2014 BCSC 375, the BC Supreme Court confirmed that the test forwhat is a change in circumstances is the same under the new legislation as it was under the old. In that case, Mr.

Justice Melnick wrote: [25] The threshold question on this trial is whether there has been such a material change in circumstances since the consent order ofSeptember 20, 2010, that the order should now be reviewed and changed as no longer representing what is in the best interests of thechildren. Everyone experiences changes in his or her life. Court orders cannot be lightly set aside or varied for every little change that lifemay bring.

Parties are assumed to know that when they consent to a permanent court order intended to govern their future affairs, thatthere will inevitably be some changes in their lives as time goes on. The Supreme Court of Canada, whose judgment I must follow, laiddown a basic rule for courts to apply when considering when circumstances have changed to such an extent that there must be a newinquiry into what is in the best interests of children in such situations as these. [26] In the case of Gordon v.

Goertz (SCC), [1996] 2 S.C.R. 27, the Court stated the law to be that: … The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

For that threshold to be met, the judge must be satisfied of (1) a change in the condition,means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects thechild, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order… [42] In L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, the Supreme Court of Canada discussed what constitutes a change ofcircumstances sufficient to vary an existing court order.

In that case, in paragraphs [30] to [35], the court discussed what is meant by achange in circumstances and when such a change can be found. I will summarize that portion of the decision as follows: 1. A court must first decide if the conditions for variation exist before varying an existing court order. 2. In deciding if the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since themaking of the prior order or variation. 3. The onus is on the party seeking a variation to establish such a change. 4. A change of circumstances must be a material one.

This means that the change must be such that, if known at the time of the makingof the previous order, it would likely have resulted in different terms. 5. The analysis of this question requires a consideration of the prior order and the circumstances in which it was made. The court shouldpresume the correctness of the previous order and not depart from it lightly. 6. The test is whether the given change would have probably resulted in different terms to the order. 7. A material change must have some degree of continuity, and should not simply be a temporary set of circumstances. 8.

The subsequent conduct of the parties can be considered in deciding if a particular change is material or not. 9. If a material change in circumstances is found to exist, the court must then consider what variation of the existing order should bemade in light of the change in circumstances. That question should be decided based on a consideration of the best interests of the childor children, as defined in

section 37 of the Family Law Act.

Section 7 Expenses [43]

Section 150 of the Family Law Act requires that orders for the support of children must be determined in accordance with theFederal Child Support Guidelines.

Section 7 of the guidelines addresses what are referred to as “special or extraordinary expenses.”Section 7 reads 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 thefollowing expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s bestinterests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spendingpattern 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 child care benefit or any eligibility to claim that benefit. [ 44 ] If I may make a personal observation, there was a time earlier in my career when a significant portion of my practice as a lawyer involved representing clients in Youth Court facing criminal charges under what was then the Young Offenders Act. At the same time, I was active as a coach for the local minor hockey association at the midget level (ages 16 and 17). This concurrent experience led me to conclude two things:

(1) Adolescents who are involved in extracurricular activities such as hockey, team sports, martial arts, music, school clubs and similar pursuits almost never find themselves appearing as defendants in Youth Court.

(2) Those youth who appear as defendants in Youth Court are generally not involved in these types of extracurricular activities. The consistency of this experience led me to conclude that one of the best investments that parents can make in their children’s future is to involve them in a reasonable amount of these types of activities. In this case, I believe that both parents have recognized the benefit of involving their children in hockey and both are aware of the dividends that this will pay in positively shaping their children’s character and in helping them to forge friendships

and develop a strong work ethic. [ 45 ] In this case the debate is not whether the children’s continued participation in hockey is worthwhile, but whether or not the costs associated with the children’s hockey is an expense under

section 7 of the guidelines. In the BC Supreme Court decision of N.A.D. v. S.A.D. 2010 BCSC 269 , Mr. Justice Rogers said, at paragraph [17] of that decision, that the onus is on the party asserting such (in this case on the Applicant) to prove on a balance of probabilities that the children’s hockey expenses fall within the definition of

section 7. Analysis 1. Has there been a change of circumstances since the making of the last order? [ 46 ] Counsel for the Applicant takes the position that circumstances have changed since the order of May 17, 2011 was made. Specifically, the children are three years older and they have advanced three grades in school since the order was made. They have gone from children who were then 7 and almost 5, when one child had just started elementary school and the other not yet in elementary school, to children who have spent several years in school long enough to develop school routines.

Their lives have gotten busier and extracurricular activities have become an important part of their lives. [ 47 ] Certainly all of these things are true. But in my view, the change that invites are review of the previous order is the conflict that it has brought into the children’s lives. Both of the parties present as generally reasonably people. They both love their children and both recognize the importance of the other in the lives of the children. Neither is disparaging of the other in carrying out their parental role.

But a number of stressors have led to some tensions in their ability to relate to one another as parents. The geographical distance between their two homes has necessitated a large amount of driving in lower mainland traffic with the associated driving costs. Both would like their own lives to be simpler by having the children play sports in the community that each lives in.

While each anecdotally talk about the benefits of their respective minor hockey organizations, what this is really about is that life would be more manageable for each of them if the children could play hockey or baseball in the respective community that they live in. The added driving puts a strain on the parties’ finances as they try to build new lives. The tension is apparent in the way that the parties communicate in email. Criticisms and minor conflicts emerge in areas where they shouldn’t, for example in the selection of schools.

This tension has resulted in a situation in which the parties would just as soon not cooperate in order to avoid the critical or sarcastic responses which each has come to expect from the other. [ 48 ] The parties to this action are both good people and loving parents who are concerned with the best interests of their children. Like many separated couples, they are trying to earn a living, build new lives with new partners and new children in those relationships, but all of this is made more difficult with the expense and time consumption of a commute due to an ex-spouse living in a different city.

While much of this was known when the order of 2011 was made, I don’t believe that the parties fully appreciated how difficult this would be. I don’t believe that they could accurately predict how much driving would be involved once the children got older and became involved in more activities. Both being reasonable people, I don’t believe that they expected that their separation would lead to a lack of cooperation or the deterioration in their ability to communicate civilly, the way it has.

I highly doubt that either of them expected that the order made in 2011 would put the children in the middle of their conflict like it has. [ 49 ] In considering what has transpired since the order of 2011, I am satisfied that there has been a material change of circumstance since the making of the prior order. I believe that if the judge making the order would have been able to foresee the conflict which would result as the children became older, that judge would, at a minimum, have allowed for a review of the order at this point in time.

In coming to this conclusion, I do not wish, in any way, to suggest that the previous order was not a proper one, especially given what the judge making the order knew of the parties at that time. I also believe that children’s circumstances as regards their school and activities is sufficient in itself to amount to a material change in circumstances, and I find that the Applicant has met the onus under section 215 (1). 2.

How Should the Existing Order be Changed? [ 50 ] From seeing how the parties have conducted themselves under the previous order, I am of the view that it is necessary that decision making in the areas of contention should be placed in the hands of one parent only. I come to this conclusion not because either parent deserves to be punished or to “lose rights”, but because it is not in the children’s best interests for them to be living in the middle of this kind of parental conflict. Fixing who makes the decisions eliminates the need for conflict in those areas.

If it was possible for the parties to communicate rationally and civilly, without sarcasm or criticism, it would be in the children’s best interests that the parties work collaboratively to make important decisions about their life. For example, if the email passing back and forth between the parties on the subject of what school the children should attend had been a rational discussion about the merits of the respective choices, it would be in order to continue to ask these parents to decide such issues jointly.

Unfortunately, that hasn’t been happening in this case. [ 51 ] Here it makes more sense for the Applicant to be given the parental responsibilities concerning the children’s schooling and their extracurricular activities. The children are with her more often than they are with the Respondent. They reside in her home more often than in the home of the Respondent and when they come home from hockey practice or games, she is the one who is tasked with getting them ready for school most of the time.

She is also better able to become involved with the school as a parent, and she has demonstrated a willingness to do so. It should be made clear that this does not suggest that the Respondent has done anything wrong or is at fault here. The parties’ circumstances and busy lives have made it difficult for them to work together without tension or incivility and its best for the children if this is reduced or eliminated.

Since the parents can’t work things out civilly, it is best for the children that one parent make these contentious decisions, and in this case it appears that the Applicant can do that more dispassionately, and is better able to focus on the merits of the decision. [ 52 ] This does not mean that the Respondent is unwelcome in the children’s activities in and out of school, and in fact it would be in the children’s best interests for him to maintain his interest and to attend as many activities as he can. He should attend things like parent-teacher interviews, school activities, and hockey and baseball games.

It would also be in the children’s best interests for the Applicant to invite and listen to all of his input that is communicated in a respectful manner and to respond in kind. The Applicant should also understand that increased parental responsibilities are just that, more responsibilities.

[ 53 ] It is also important that the Applicant does not

schedule activities for the children during the Respondent’s parenting time. The Respondent’s contact with the children is limited because the parties live in different communities. That time should not be cut in to, and the Respondent’s parenting time with the children should be their time. One exception to this principle would be the children’s hockey. Both of the parties have testified that they believe that this is something that is important in the children’s lives.

It is very unlikely that the children will have hockey games during the weekends and that the teams they play on might have tournaments to attend that fall on weekends. If that occurs, it is expected that the parent in whose care the children are in that weekend would get them to and from their hockey games.

The children should not be punished for their parents’ incompatibility by missing out on games and tournaments that their teammates get to attend. [ 54 ] When the children were younger, the division of parenting time was less of a problem because the children were not in school and had fewer extracurricular activities. There was more opportunity for quality time to be spent with the children by both parents. Now that they are a little older and have busier lives, the Applicant’s opportunity for activities that are not centred on school or sports is more limited.

Generally speaking, where both parents work outside of the home during the week like these parents do, it is a not a healthy situation for the same parent to have contact with the children every weekend for the entire weekend. It creates an imbalance in which one parent is doing most of the regimented responsibilities (e.g. getting the children ready for school and activities, making sure that they do their homework, getting them to bed on time and up on time), while the other parent has all of the relaxed times.

It is a recipe for resentment, and it is likely what has contributed to some of the tension that has developed between these parties. [ 55 ] I believe that it is in the best interests of these children that the Applicant should have one full weekend with the children each month. She should have that time in order to spend quality time with the children when she is not at work and they are not in school.

In order for the parties to plan their lives, this can be accomplished by adopting the alternative option proposed by the Applicant’s counsel in her written submission, which would mean that the children would be in the Respondent’s care at the following times over alternating four week periods: Week 1: Friday at 5:00 p.m. until Sunday at 7:00 p.m. Week 2: Friday at 5:00 p.m. until Saturday at 2:30 p.m. Week 3: Friday at 5:00 p.m. until Sunday at 7:00 p.m. Week 4: in the Applicant’s care the entire weekend 3. What are extraordinary expenses under

section 7 in this case? [ 56 ] I am in agreement with the Respondent’s counsel that in this case the children’s hockey and baseball expenses do not fall within the definition of extraordinary expenses under

section 7 of the Federal Child Support Guidelines. In a perfect world, where money pressures do not exist, every child would have the opportunity to play sports like hockey and to buy proper equipment and travel with their teammates on tournaments. Regrettably, the cost of sports like hockey has risen to the point where this is often a pastime reserved for more affluent families. [ 57 ] Recreational and sporting activities for children are not normally extraordinary expenses under

section 7. That

section requires a consideration of the necessity of the expense in relation to the child’s best interests, the reasonableness of the expense in relation to the means of the spouses, and the family’s spending pattern prior to the separation. Having the children continue to play hockey is certainly something that is good for them for reasons previously stated. It would be too strong a word to describe this as a “necessity”, but playing hockey is certainly something that these children benefit from.

Although the Respondent has described himself in email as having “an affluent life”, the evidence does not satisfy me that there is an abundance of disposable income in either home. The post-separation practice had been for the parent in whose community the children have been playing hockey to pay those expenses. There is no history of sharing these expenses. While these children appear to enjoy playing hockey, it is too early to assess what part the game may play in their future. To their mutual credit, both of these parties are encouraging the children to play the game because it makes the children happy.

Unlike some people, neither one of these parents has suggested that one of their children is a future Sidney Crosby or Hayley Wickenheiser. But they do recognize the part that playing hockey plays in their children’s happiness and in the shaping of their character. [ 58 ] I am unable to make an order that hockey and baseball costs are extraordinary expense.

But I would encourage the parties to share in those costs, either in proportion to their incomes (which the Respondent’s counsel calculates to be 29% by the Applicant and 71% by the Respondent) or at least on a 50-50 basis, because it is the right thing to do for these children and is an excellent investment in their character development and in their happiness. Their co-operation would also send a good message to the children. [ 59 ] The parties have agreed that the children’s medical, dental and orthodontic expenses (not otherwise covered by any health plans) should be shared under

section 7 of the Guidelines and I agree with their conclusion. Counsel for the Respondent has calculated this to require the Applicant to pay 29% of those expenses and for the Respondent to pay 71% of those expenses. I do not take issue with that math. 4. Child Support [ 60 ] Currently, the Respondent is paying the Applicant the sum of $913 per month for the support of the children. This amount was set under paragraph 4(

a) of the Separation Agreement that the parties signed on April 12, 2009. That agreement has never been changed. The parties disagree on what the Respondent’s current income is for the purposes of the Federal Child Support Guidelines and when any change should take effect. Counsel for the Applicant states that the guideline income set out on the Respondent’s 2013 tax return is $70,008.72, after deducting his union dues and other employment expenses. This translates to a monthly child support payment of $1062.

Counsel for the Respondent argues that the Respondent’s guideline income based on his 2013 tax return is actually $67,761. The most current information filed in evidence was the Respondent’s Notice of Assessment dated May 12, 2014. This document shows that the Respondent’s net income for 2013 was $69,081, and it is this figure that I intend to use, pursuant to

section 16 of the Guidelines. This

income attracts a monthly support payment for two children in the amount of $1048. [ 61 ] The Applicant asks that this payment should be retroactive to January 1, 2013. This approach is a fair one because it reflects the Respondent’s actual income and it is the standard which these children are entitled to. In commencing this payment retroactively. It will mean that for the past 23 months (January of 2013 to November of 2014) the children have been shorted $135 per month for a total of $3105. I will permit the Respondent to catch up on these arrears by paying an additional $125 per month until he is caught up.

At this rate it will take him just over two years to do so. I am reluctant to be critical of these parties, but in this case the Respondent ought to have been more diligent in honouring the commitment he made in the Separation Agreement to provide current financial information.

He may have thought that by not doing so, he was saving himself money, but in fact he was making matters worse for himself, while denying the children the level of support that they are entitled to legally and morally. [ 62 ] It was suggested by the Applicant that the Respondent had some undisclosed income in the form of rent received from his brother. The Respondent denies this and has testified that he lets his brother live in his home partly in return for chores that the brother does, and out of a sense of family.

There is nothing to corroborate the Applicant’s assertion and she admits that she has no proof of this. I accept the Respondent’s evidence that he is not receiving any rental income from his brother. Order [ 63 ] Before making an order in this matter, it needs to be said that both of these parents have much to be commended for. The Applicant has served as the principal caregiver for two young children who have fared much better than many children whose parents separate.

With the obligatory financial support from the Respondent, she has fed, clothed and sheltered these children and has been keenly involved in their education and their recreation, while also working outside the home. For all of this, she is deserving of the Respondent’s respect.

Similarly, in an era when many separated fathers become absent in their children’s lives, the Respondent has attempted to meet his financial obligations to support his children (a benefit that many women in the Applicant’s position do not enjoy), and he has maintained an interest in his children’s lives, while taking on the responsibility of a busy work life and a new family. For this, he is deserving of the Applicant’s respect.

The next time that the parties are tempted to show disrespect in their communications with each other, they should take a moment to be grateful for the fact that their children have something that many children in British Columbia and in Canada do not: two parents who care about, and are committed to the betterment of their children’s lives.

A sense of gratitude for the other parent’s good qualities ought to overtake the need to display any pettiness. [ 64 ] For the reasons I have set out, I find that the Applicant has demonstrated a change in circumstances within the meaning of section 215 (1) of the Family Law Act. It is ordered as follows: 1. T.N.C. and T.J.C. are each guardians of the children A.B.C and A.G.C., pursuant to section 39(1) of the Family Law Act. 2. T.N.C. and T.J.C. shall share the parental responsibilities for the children under

section 41 of the Family Law Act, except that T.N.C. shall have the parental responsibilities under

section 41(

b) for making decisions where the children will reside, and under

section 41(

d) for making decisions respecting the children’s education and participation in extracurricular activities, including the nature, extent and location. 3. The order of the Honourable Judge C. J. Rounthwaite of May 17, 2011 is amended to provide that T.J.C. shall have parenting time with the children at the following times: (

a) On weekends, based on the following alternating schedule: Week 1: from Friday at 5:00 p.m. until Sunday at 7:00 p.m. Week 2: from Friday at 5:00 p.m. until Saturday at 2:30 p.m. Week 3: from Friday at 5:00 p.m. until Sunday at 7:00 p.m. Week 4: the children shall be in care of T.N.C. for the entire weekend This

schedule shall begin and be applied such that Week 1 shall be the next weekend when T.J.C. would have had parenting time with the children from Friday at 5:00 p.m. until Sunday at 7:00 p.m. in paragraph 2 of the order of the Honourable Judge Rounthwaite. (

b) The children shall be in the care of each parent for alternating weeks during the months of July and August of each year. The parent in whose care the children have been on the last weekend in June shall continue to care for the children for the first week of July and the parties shall alternate the care of the children each week thereafter. (

c) At all other times as set out in the order of the Honourable Judge Rounthwaite or as agreed to by the parties in writing. 4. T.J.C. is found to have an annual income for the purpose of the Federal Child Support Guidelines in the amount of $69,081. He shall pay to T.N.C. for the support of the children A.B.C. and A.G.C. the sum of $1048 per month, retroactive to January 1, 2013, and payable on the 1 st day of each month until further order of this court. Arrears arising from this retroactive order are calculated at $3,105.

Commencing December 1, 2014, T.J.C. shall pay to T.N.C., in addition to the monthly child support payment of $1048, the further sum of $125 per month on the 1 st day of each month until these arrears have been paid in full. 5. T.J.C. and T.N.C. shall share the cost of the children’s medical, dental and orthodontic expenses (not otherwise covered by any health plans) in accordance with

section 7 of the Federal Child Support Guidelines . T.N.C. shall pay 29% of these expenses T.J.C. shall pay 71% of those expenses. This ratio may be amended by agreement of the parties in writing or by further order of this court.

Dated at the City of Abbotsford, in the Province of British Columbia, this 14 th day of November, 2014. ____________________________________________ (The Honourable Judge K. D. Skilnick)