H.G. v. M.K., 2019 BCPC 216

Citation: H.G. v. M.K. 2019 BCPC 216 Date: 20190910 File No: 13-27133 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.G. APPLICANT AND: M.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE

Counsel for the Applicant: R. Chambers Counsel for the Respondent: M. Weremchuk Place of Hearing: Vancouver , B.C. Date of Hearing: August 29 and 30, 2019 Date of Judgment: September 10, 2019 INTRODUCTION [ 1 ] The parties are the parents of a child born in 2012. [ 2 ] By way of a document titled Child Support Agreement filed with this Court on December 12, 2013, the income of the father, M.K., was agreed to be $64,279 and child support was set at $597 a month commencing September 1, 2013.

M.K. was also required to provide the mother, H.G., with financial disclosure from the previous year, including a copy of his yearly income tax return and notice of assessment, no later than May 30 th of each year, commencing in 2014. [ 3 ] On December 21, 2017, M.K. filed an Application Respecting Existing Orders and Agreements. M.K. asked that the Child Support Agreement, incorrectly referred to as a court order in the application, be changed. M.K. alleges that H.G. is required to pay him rent of $850 a month and asks that the monthly child support be reduced by the amount of the rent.

Alternatively, M.K. asks that the child support obligation be suspended until further court order. [ 4 ] M.K. also applied for further orders regarding parenting time but that request was not pursued at this hearing. [ 5 ] H.G. filed a Reply and Counterclaim on January 19, 2018.

She opposed the application and counterclaimed for spousal support, a protection order, a retroactive increase in child support and a retroactive order for payment of special expenses, which she has listed as dentist, medical and clothing. [ 6 ] There is an existing BC Supreme Court proceeding whereby H.G. seeks a share of family property.

One of the issues for the Supreme Court is the determination of the date of separation, as M.K. says that the claim for a division of property was brought after the limitation period for a property division claim expired, as provided for in s. 198 of the Family Law Act . [ 7 ] The date of separation is also critical in determining any spousal support claim. [ 8 ] By order dated December 21, 2018 made by Judge Oulton, the parties agreed that the BC Supreme Court would determine the date of separation.

Given this, H.G.’s claim regarding spousal support was adjourned generally. [ 9 ] There have also been numerous applications before this Court on the issue of a protection order. Judge MacLean has reserved his decision on a completed trial that included an application for a protection order by H.G. As such, the claim of H.G. for a protection order was also adjourned generally. [ 10 ] The issues at trial then are as follows:

(1) Pursuant to Family Law Act s. 148(3), whether to set aside or replace the Child Support Agreement with a court order.

(2) If a court order is made, then to determine the terms of the order with respect to child support and whether there should also be an order for payment of expenses pursuant to s. 7 of the Child Support Guidelines .

(3) Should any order for child support or expenses be made retroactive? If so, then what should be the start date for any payments? HISTORY OF PROCEEDINGS [ 11 ] I will describe briefly the Provincial Court proceedings to date. • December 12, 2013 - Child Support Agreement filed setting child support at $597 a month payable by M.K. to H.G. • January 30, 2017 – order of Judge Raven setting parenting time for M.K. on a without prejudice basis. • May 31, 2017 – order of Judge Low setting a parenting time

schedule for M.K. • July 10, 2017 – order of Judge Bayliff requiring that M.K.’s parenting time be supervised by his mother until a Criminal Court matter has been resolved or undertaking terms have been changed or removed. • July 24, 2017 – order of Judge Bakan stating that M.K. has been wrongfully denied parenting time and ordering police enforcement of the existing parenting time orders. • January 30, 2018 – order of Judge W. Lee granting a without notice protection order against M.K. in favour of H.G., which order would expire February 5, 2018 unless renewed by the court. • February 5, 2018 – order of Judge W.

Lee extending the protection order to February 26, 2018. • February 26, 2018 – order of Judge Ferriss extending the protection order to March 12, 2018, and providing that M.K. only has supervised parenting time. • March 12, 2018 – order of Judge MacLean further extending the protection order to March 13, 2018.

• March 13, 2018 – order of Judge MacLean regarding parenting time for M.K., with M.K.’s mother to be present during such times. • March 16, 2018 – order of Judge Solomon setting out a conduct order for M.K. and extending the protection order to the completion of a trial before Judge MacLean. • April 12, 2018 – order of Judge Wingham regarding parenting time. • May 9, 2018 – order of Judge Doherty regarding H.G.’s application for a protection order.

Judge Doherty ordered that the prior orders of March 13 and March 16, 2018 remain in place and that H.G. may file another application if she obtains further information, such as a police report. The application for a protection order was otherwise dismissed. • May 25 and June 6, 2018 – a trial was held before Judge MacLean. The decision was reserved pending the completion of a police investigation regarding allegations regarding M.K.’s conduct. That investigation has now completed with no findings against M.K. A related Ministry of Children and Family Development investigation was also closed in June 2019.

This information was provided to Judge MacLean on August 19, 2019 and Judge MacLean’s reserved decision is now pending. • June 11, 2018 – application before Judge W. Lee by H.G. for a further protection order. The application was adjourned to June 18, 2018 and H.G. was required to serve M.K. • December 21, 2018 – a consent order was made before Judge Oulton. The same applications that I dealt with at trial came before Judge Oulton and were adjourned generally. Those applications were later re-set in this court. The parties also agreed that M.K. would withdraw from the Family Maintenance Enforcement Program.

The parties would participate in a Judicial Case Conference at the BC Supreme Court set for February 28, 2019. The parties further agreed to set a trial in the BC Supreme Court on the issue of the date of separation. • March 7, 2019 – Judge Doherty denied H.G.’s application for an ex parte protection order. • April 9, 2019 – Judge Gove dismissed H.G.’s new application for a protection order. H.G. was ordered not to file any further applications without leave of the court and that any such applications had to be served on M.K. and his counsel.

THE EVIDENCE [ 12 ] M.K. testified that pursuant to the Child Support Agreement dated December 12, 2013, he was required to pay child support of $597 a month. An Account Statement from the Family Maintenance Enforcement Program shows that support payments were made save for some missed payments in 2018 and during the first half of 2019. Since June 2019, FMEP has been collecting from M.K. $408.99 twice a month, to be applied toward the monthly support and the arrears.

As of August 21, 2019, the arrears stood at $2,794.69. [ 13 ] M.K. said that when the parties separated, H.G., their child, and two other children of H.G. went to live elsewhere. M.K. said that sometime in 2015, H.G. had to leave her accommodations. The Ministry of Social Development was involved on behalf of H.G. According to M.K., the Ministry asked M.K. to allow H.G. and the children to reside in a suite in the basement of the home owned by M.K. and his mother C.L.

In January 2015, H.G. and the children moved into a basement suite of the house. [ 14 ] M.K. testified that the market rate for the suite at the time was $1,200 a month but he agreed to charge H.G. a reduced rent of $850 a month given that their daughter was residing in the suite. M.K. also said that the current market value rent for H.G.’s suite is now $1,500 a month. No evidence was provided to prove the market rental rate of the suite. [ 15 ] The parties agree that H.G. did pay rent of $850 for the period January 2015 to December 2016. [ 16 ] M.K. says that H.G. stopped paying rent in January 2017.

He says that he has made demands for the payment of rent. M.K. alleges that H.G. told him that she was no longer in receipt of income assistance because she needed to support relatives coming from India, which she apparently could not do while in receipt of income assistance. M.K. said he asked H.G. to leave the suite but she refused. This culminated in M.K. and C.L. issuing to H.G. an eviction notice for failure to pay rent. In a document titled “10 Day Notice to End Tenancy for Unpaid Rent or Utilities” dated October 10, 2018, M.K. and C.L. alleged that there was $21,000 in unpaid rent since January 1, 2017.

I note that there are 22 months between January 1, 2017 to October 2018, and with rent at $850 a month, the amount owed would be $18,700 and not $21,000. [ 17 ] H.G. disputed the eviction notice to the Residential Tenancy Branch. On November 6, 2018, the Dispute Resolution Services of the Residential Tenancy Branch issued a decision that this dispute was linked to BC Supreme Court proceedings relating to H.G.’s property claim. The decision went on to state: I find that one of the central issues is whether the parties have interests in the same property, an issue that is raised by the tenant’s SCBC pleadings.

This will impact a determination about the tenancy. [ 18 ] The adjudicator went on to conclude that the Supreme Court was the appropriate venue to hear the application in order to avoid duplication of proceedings and to increase efficiency in the process. [ 19 ] A trial date had been set in BCSC for September 2019 but for some reason was lost. A new trial date must now be scheduled. [ 20 ] M.K. says that due to the unpaid rent he is unable to afford to pay his housing expenses. [ 21 ] H.G. tendered into evidence a copy of a document dated February 6, 2015 and purported to be signed by M.K., C.L. and H.G.

Both M.K. and C.L. deny signing this document. M.K. says he only first saw this document in December 2018. The document states: It was our understanding that H.G. will pay to me 850 dollars per month starting from 30 Dec, 2014 until 30 Dec 2016 only. H.G. will be

helping by this money to pay the mortgage of this house. After 30 Dec 2016, she doesn’t have to pay me anything. She was taking that money from the assistance office because she was not working with my advice. [ 22 ] H.G. relies on this document in support of her claim that she was no longer required to pay rent after December 2016. [ 23 ] As stated, H.G. is advancing a claim in the BC Supreme Court for an interest in property that is in M.K.’s name. H.G. referred to a Cohabitation Agreement entered into in 2011 where she agrees not to make any claim to M.K.’s property.

H.G. says she signed the agreement but was not aware of its contents. [ 24 ] H.G. also alleged that M.K. paid her the child support payments by way of cheque and then promptly required her to give the money back to him in cash. M.K. denied this. [ 25 ] Although the Child Support Agreement required M.K. to provide to H.G. his financial information each year, this never occurred. [ 26 ] H.G. says that she never asked M.K. for increased child support.

M.K. did not voluntarily offer to pay increased support. [ 27 ] H.G. also said that although M.K. was aware of some of their daughter’s activities, she never asked M.K. to pay for an activity. At the same time though, she said that they were not speaking. [ 28 ] H.G. produced receipts for the child’s activities, which included fitness classes, rhythmic gymnastics classes, piano lessons and Bollywood jazz lessons. [ 29 ] M.K. has an employer medical benefit plan. The child is listed on the plan and so some of her medical costs are covered.

H.G. put into evidence a Patient Medical Expense Report from Naz’s Prescription Plus Pharmacy referring to medication provided for the child in 2018. The report shows total prescription costs of $137.64, of which the medial plan paid for $75.54 and H.G. paid $62.10. M.K. was never asked to share in this cost. INCOME DETERMINATION [ 30 ] In order to deal with an application to set aside a child support agreement, I need to consider the amount of support that would be payable pursuant to the Child Support Guidelines and so I must determine M.K.’s income.

Since H.G. also has an application regarding the sharing of expenses, I must determine her income. INCOME DETERMINATION FOR M.K. [ 31 ] M.K. filed a Financial Statement with the Court on August 19, 2019 in support of his application. He set out employment income of $83,978.77. [ 32 ] M.K. said he has a second rental suite in the home and receives rent from that. I was not told of the amount of rental income received.

No rental income was disclosed in the Financial Statement. [ 33 ] M.K. lists union and professional dues of $1,156.17, which is a proper deduction from income for Child Support Guideline purposes pursuant to s. 1(

g) of

Schedule III of the Federal Child Support Guidelines . [ 34 ] M.K.’s mortgage payments are $1,800 a month ($21,600 per annum). [ 35 ] His Financial Statement lists a total of $36,400 for housing and utility costs. [ 36 ] M.K. also says that he has had to work extended overtime hours to make up for H.G.’s refusal to pay rent. [ 37 ] M.K. said that H.G. denied him parenting time in the years 2014 to 2016, which allowed him to work more overtime hours and earn more income.

He says that in recent years, he has had more parenting time with the child and so his income has reduced. [ 38 ] M.K.’s line 150 income amounts from his tax returns have been as follows: 2014 $88,910 2015 $91,304 2016 $93,266 2017 $76,632 2018 $84,692 [ 39 ] M.K. said he is guaranteed 7.5 hours in a work day and that he works five days a week. He is paid at the rate of $32.61 an hour for regular work hours.

Over a year, this totals $63,589.50. [ 40 ] M.K. provided a copy of his pay stub dated November 4, 2018, showing total overtime hours worked to date of 472.66 hours, a total of three categories of overtime hours or 77.22, 120.21 and 275.23. [ 41 ] The pay stub shows total regular hours worked so far was 1,411.24, based on two categories showing regular hours worked of 1.85 and 1409.39.

[ 42 ] Thus, the total hours worked was 1,883.90 to date. [ 43 ] November 4, 2018 is the 45 th week of the year and based on this, M.K. was working an average of 41.86 hours a week in 2018 (1883.90/45). [ 44 ] M.K. says his guaranteed work hours are 7.5 hours a day or 37.5 hours a week. Therefore, the average overtime hours he works is 4.36 hours a week. [ 45 ] M.K. does have a history of working overtime hours. This is shown by his past income information.

M.K. says though that if he had not been denied parenting time, he would have worked less overtime hours because he would have been able to see his daughter more often. [ 46 ] The parenting time has changed since the original order of Judge Low made May 31, 2017.

H.G. has made numerous applications for protection orders until Judge Gove made an order on April 9, 2019 preventing further applications by H.G. without prior leave of the court. [ 47 ] Under Judge Low’s order, as of September 3, 2017 M.K. was entitled to parenting time from Saturday to Tuesday and from Thursday to Friday, along with listed special dates. [ 48 ] I accept that if not for any denial of parenting time, which H.G. did not refute, M.K. would have had more time to be with the child and less opportunity to work overtime.

I am prepared to recognize some effect on M.K.’s income by way of reduced overtime hours worked. However, I am not prepared to assume that all overtime would have ceased given the history of working overtime hours. Furthermore, M.K. said he has seen increased parenting time over the last couple of years, resulting in a drop in his income since 2016. Therefore, a reduction in his income has already occurred. [ 49 ] I must also take into account the fact that M.K. has not disclosed the additional rental income received from the second rental suite.

Lastly, M.K. is required to pay union dues of roughly $1,150 a year, which is a proper deduction from his income for the purposes of the Child Support Guidelines . [ 50 ] Taking the above into account, I will fix M.K.’s income at $83,000. INCOME DETERMINATION FOR H.G. [ 51 ] H.G. referred to a Financial Statement dated August 22, 2019. She lists as income social assistance payments totalling $11,809. [ 52 ] H.G.’s income tax

summary for the year 2018 shows no income but a copy of her 2018 T1 tax return discloses social assistance benefits of $11,809. [ 53 ] H.G.’s 2017 tax

summary shows no income. In 2016, H.G.’s tax

summary shows she received Universal Childcare benefits of $1,680 and social assistance payments of $12,466, a total of $14,126 that year. [ 54 ] H.G. said she stopped receiving income assistance benefits in December 2016 because she told the Ministry that she was living with M.K. Ministry records were not put into evidence to confirm this. [ 55 ] H.G. said she is receiving a child tax benefit of $460 for the two youngest of her three children, including the child of H.G. and M.K. [ 56 ] She also testified that her son is disabled and that he pays her $375 a month.

I was not provided with the precise details of this payment but it seems likely that the payment is to compensate H.G. as a caregiver for the son and not merely as rent. [ 57 ] I find that H.G.’s Financial Statement does not provide an accurate statement of her income since it only refers to income assistance income. [ 58 ] The Financial Statement attaches tax information showing that H.G. should receive the GST tax credit and BC Climate Action tax credit totalling $1,223.25. [ 59 ] H.G. has also provided a statement from the Ministry of Social Development showing recent income assistance benefits paid to her as follows: May 2019 $219.95 June 2019 $219.95 July 2019 $406.00 Aug 2019 $510.20 Sep 2019 $410.20 [ 60 ] The monthly amounts vary.

I will utilize an average of the benefits received over the last three months, which is $442.10 a month. Over a year, this totals $5,305.20. [ 61 ] Attached to the Financial Statement is a Canada Revenue Agency statement showing an annual entitlement to the Canada Child Benefit and BC Early Childhood tax benefit totalling $9,097.

[ 62 ] H.G.’s son pays her $375 a month, which totals $4,500. [ 63 ] The total of these amounts is $20,125.45. I will impute income to H.G. in the amount of $20,125.

APPLICATION TO SET ASIDE OR REPLACE AGREEMENT [ 64 ] Family Law Act s. 148(3) allows the court to set aside or replace with an order all or part of a filed agreement respecting child support if the court would have made a different order when considering the matters set out in s. 150. [ 65 ] Among other things, Family Law Act s. 150 requires a consideration of whether reasonable arrangements have been made for the support of the child if the amount of support is not pursuant to the Child Support Guidelines. [ 66 ] Unlike an application to vary a court order for payment of child support, there is no requirement for a material change of circumstances in order for s. 148(3) to apply. [ 67 ] H.G. argues that M.K.’s income has increased and the amount of child support should have increased over the years. [ 68 ] M.K. agrees that his income has increased but says that the amount of support payable should be reduced given the unpaid rent. [ 69 ] In order to determine whether a child support agreement should be set aside or replaced, I will consider the following: 1.

What amount would be payable pursuant to the Child Support Guidelines ? 2. Are there reasonable arrangements for the support of the child, such that the application of the Child Support Guidelines would be inequitable? Such reasonable arrangements may be found in an agreement respecting the financial duties of the parents or guardians, or an agreement regarding the division or transfer of property? 3. If the arrangements are not reasonable so that a child support order is necessary, then should the child support order be made both retroactively and prospectively?

WHAT AMOUNT WOULD BE PAYABLE PURSUANT TO THE CHILD SUPPORT GUIDELINES? [ 70 ] I previously fixed M.K.’s income at $83,000 per annum. Based on the Child Support Guidelines , the amount of support payable is $793 a month. [ 71 ] The current amount of support payable is $597 a month. The difference between the amount payable under the agreement and what would be payable pursuant to the Child Support Guidelines is significant and is a key factor in favour of setting aside the Child Support Agreement in favour of an order.

ARE THERE REASONABLE ARRANGEMENTS FOR THE SUPPORT OF THE CHILD, SUCH THAT THE APPLICATION OF THE CHILD SUPPORT GUIDELINES WOULD BE INEQUITABLE? [ 72 ] The relevant portions of section 150(4) of the Family Law Act states:

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

a) special provisions have otherwise been made for the benefit of the child, and (

b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions. [ 73 ] M.K. testified that H.G. should be paying rent of $850 a month but is not. He argues that the market value of the rental suite is currently $1,500 a month and at the time the Child Support Agreement was entered into, the value was $1,200 a month. No evidence was provided to me about the market value of the suite.

I am of the view that I need expert evidence about rental market conditions before I can determine what is the market value for the rent of the suite. [ 74 ] M.K. submits that if H.G. is to live rent-free in the suite, then there should be a corresponding reduction in the child support payable. Alternatively, he argues that the child support order should be suspended until further court order.

He argues that until the issue of payment of rent is resolved, child support should not be paid. [ 75 ] Section 150(4) allows the court to order payment of an amount that differs from that set by the Child Support Guidelines if special provisions have otherwise been made for the benefit of the child.

M.K. argues that the special provision is either the reduced rent or the lack of rental payments. [ 76 ] As I have stated, I lack evidence to show that the alleged reduced rent is in fact a benefit as there is no expert evidence of the market value of the rent. [ 77 ] If I reduce the child support by the amount of the rent, there is no evidence before me how the reduced child support will benefit the child. Presumably, M.K.’s position is that if H.G. is not required to pay rent, then there are additional funds available to support the child.

The reality though is that H.G. has not paid rent since January 2017 and those funds are already available to support the child. [ 78 ] Alternatively, M.K.’s position may be that the child, along with H.G., would be able to live rent-free but that is really just a similar argument to the first.

[79] The dispute about the unpaid rent is a matter between M.K. and H.G. It is a debt that M.K. says is owed to him but one thatH.G. disputes based on a claimed share in the title to the property. [80] In the decision Jamieson v. Loureiro, 2010 BCCA 52 , the BC Court of Appeal refused to set off an award of courtcosts owed by the mother to the father as against child support arrears owed by the father to the mother.

The court discussed the lawregarding equitable set-offs and then stated: [57] First, I am unable to conceive of a case in which set-off would be allowed against future child support, and consider that it would bea very rare case in which one would consider set-off against arrears of child support. The support is for the benefit of the child andshould not be lost because the person to whom the support is paid may owe, in another capacity, amounts to the payor.

There is simplyan insufficient connection and an absence of manifest injustice in requiring the payor to pay the full amount of support. [58] Second, it is plain that the limited financial resources of Ms. Jamieson means that, without the child support owed and owing byMr. Loureiro, the children will suffer a diminished lifestyle, contrary to the principle enunciated in D.B.S. [59] Third, the costs award was made against Ms. Jamieson because she was the unsuccessful litigant in Mr. Loureiro’s motion toreduce child and spousal support. In my opinion, Mr.

Loureiro’s cross-claim for costs is insufficiently connected to his legal and moralobligations to pay child support. Rather, his claim can be simply seen as the expected result of successful litigation. [60] In my opinion, the cross-claims in respect of costs and child support lack the necessary nexus to give rise to equitable set-off. Thechildren’s right to child support is, in my view, completely separate from the costs awarded, notwithstanding that the costs related to anapplication to vary child support. Further, the appellant’s arguments that Ms.

Jamieson stands in a position of trustee of the funds is, inmy opinion, unhelpful and inapt. The analogy merely seeks to saddle the children with the litigation strategy of Ms. Jamieson, which Iconsider irrelevant to the analysis. [81] If I were to reduce the child support payable for the benefit of the child, I am effectively setting off a possible debt owed byH.G. to M.K. against the child support.

I say “possible debt” because that issue has not been resolved yet and will be the topic of a BCSupreme Court hearing to determine if H.G. has a valid Family Law Act property claim. [82] I am satisfied that it would be premature to consider any reduction in child support until the issue of the property claim has beendetermined by the Supreme Court. Even if there are rental arrears, though, I am also satisfied that it would not be appropriate to set offthe rent against ongoing child support. Child support is the right of the child.

The child should not be penalized for a dispute about a debtbetween the mother and father. Accordingly, I will not reduce the child support payable pursuant to s. 150(4) of the Family Law Act. [83] I add that M.K. said that without the payment of rent by H.G., he could not afford to pay the monthly housing costs. However,there was no evidence of any unpaid housing expenses in M.K.’s Financial Statement filed August 19, 2019 despite the fact that no rentis being paid.

WHEN SHOULD THE CHILD SUPPORT PAYMENTS COMMENCE? [84] In an application to set aside an agreement pursuant to Family Law Act s. 148(3), an order replacing the agreement can be madeon a retroactive basis: see G.J.L. v. M.J.L., 2017 BCSC 688, which approved A.(T.L.) v R.(M.), 2015 BCPC 151. [85] The factors to consider when making a retroactive order are as follows: 1. The needs of the recipient; 2. The conduct of the payor; 3. The reason for the delay in seeking support; 4. The past and present circumstances of the child, including the child’s needs at the time that support should have been paid; and 5.

Will the retroactive award cause any hardship for the payor spouse? If so, the court can adjust the amount due and is not boundto set an amount based on the CSG. See D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 SCR 231, 2006 SCC 37 [86] The Child Support Agreement was made on December 12, 2013. H.G. alleges that the parties in fact separated in 2016.

Despitethat, H.G. agrees that she received child support prior to 2016, although she says that M.K. required her to pay the money back. [87] H.G. is only seeking a retroactive variation from January 2017 onwards. [88] The claim by H.G. for a retroactive variation of support and a retroactive claim for payment of expenses was made January 19,2018. [89] M.K. was required pursuant to the Child Support Agreement to provide his financial information each year, and he failed in thisobligation. [90] H.G. did not request M.K.’s financial information. [91] H.G. did not ask for increased child support.

Nor did M.K. voluntarily offer such. [92] H.G. did not provide any evidence of any unmet needs of the child. It was clear from her financial information though that shehad limited means to provide for the child.

[ 93 ] H.G. offered no explanation for the delay in seeking a retroactive increase in child support payments or for the payment of expenses. [ 94 ] M.K.’s evidence is that he is having difficulties paying his expenses, especially since H.G. is not paying rent. M.K.’s Financial Statement shows an income of $83,978.77 and expenses of $89,304.86. If a retroactive award were made, it would likely mean that certain expenses would not be paid. [ 95 ] Given all the factors set out above, I am not persuaded that a retroactive order dating back to January 1, 2017 is appropriate.

The matter of the alleged unpaid rent must still be resolved and in the interim, M.K. must still deal with the housing expenses without contribution from H.G. [ 96 ] I will set the start date for the child support payments to be effective October 1, 2019 and continuing on the 1 st day of each month thereafter so long as support is payable pursuant to the Family Law Act or further Court order. SPECIAL AND EXTRAORDINARY EXPENSES [ 97 ]

Section 7 of the Child Support Guidelines allows the court to order that the parties share in certain expenses that are necessary, reasonable and fall into one of the enumerated categories listed at s. 7(1) of the Guidelines . [ 98 ] H.G. has testified that the child has taken

part in piano and dance activities in the past. The costs of those activities have been reasonable. However, I did not receive any evidence as to whether those activities were necessary. [ 99 ] The activities would fall into the category of educational programs that may meet the child’s particular needs, although the only real evidence I heard in this regard is that the child was interested in the activities. [ 100 ] M.K. said he was prepared to share in the costs of the child’s activities if he was first given the opportunity to agree to the activity.

H.G. said she did not consult with M.K. before enrolling the child into the activities. [ 101 ] Given the evidence before me, I am not satisfied that the past dance and piano lessons were proven to be proper s. 7 expenses. I will order though that the parties share the costs of any future activities, as well as any other special or extraordinary expenses, as agreed to. [ 102 ] Regarding past medical expenses, H.G. previously paid $62.10 for prescription costs for the child. M.K. should be sharing in these costs as they are health-related expenses pursuant to s. 7(1)(

c) of the Child Support Guidelines . [ 103 ] Based on the respective incomes of the parties, H.G. will be responsible for 20% of expenses and M.K. will be responsible for 80% of the expenses. The parties will share s. 7 expenses in accordance with this ratio. [ 104 ] M.K. will be required to reimburse H.G. for 80% of the $62.10 paid by H.G. for the child’s past prescription costs, that being $49.68. FINANCIAL DISCLOSURE [ 105 ] The Child Support Agreement required M.K. to provide financial disclosure each year.

Given that the parties will be sharing expenses in the future and that each parent’s proportion of the expenses is based on their respective incomes, I will order that both parties exchange financial information on a yearly basis. ORDER [ 106 ] I order as follows: 1. Pursuant to Family Law Act s. 148(3), the Child Support Agreement filed December 12, 2013 is set aside. 2. M.K. is found to be a resident of British Columbia and is found to have a gross annual income of $83,000. 3. H.G. is found to be a resident of British Columbia and is imputed to have a gross annual income of $20,125. 4.

The application of M.K. for an order pursuant to Family Law Act s. 150(4) for payment of child support in an amount different from that required by the Child Support Guidelines is dismissed. 5. M.K. will pay to H.G. the sum of $793 per month for the support of the child, commencing on October 1, 2019 and continuing on the 1 st day of each month thereafter, for so long as the child is eligible for support under the Family Law Act or until further court order. 6. M.K. will pay to H.G. his proportional share of the child’s special or extraordinary expenses as agreed to by the parties.

The parties’ respective proportional shares are: M.K. – 80% H.G. – 20% 7. M.K. will pay to H.G. the sum of $49.68, representing 80% of the net medical expense of $62.10 paid by H.G. for the child’s past prescription costs. 8. For so long as the child is eligible to receive child support, the parties will exchange: (

a) copies of their respective tax returns

for the previous year, including all attachments, not later than June 30 of each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency, immediately upon receipt. [ 107 ] I direct Ms. Chambers to prepare the order for approval as to form by Ms. Weremchuk. [ 108 ] I am no longer seized of this matter. _____________________________ The Honourable Judge Lee Provincial Court of British Columbia