M.M.L. v. J.K.S., 2021 BCPC 18

Citation: M.M.L. v. J.K.S. 2021 BCPC 18 Date: 20210202 File No: 1342304 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.M.L. APPLICANT AND: J.K.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: K.W. Parker Appearing on their own behalf: J.K.S. Place of Hearing: Prince George , B.C. Date of Hearing: January 6, 2021 Date of Judgment: February 2, 2021

Introduction [ 1 ] M.M.L. and J.K.S. are the biological parents of two children, A.E.G.S., who is 15 years old and A.J.O.S., who is 13. M.M.L. and J.K.S. began cohabitating as intimate partners in April 2000, and separated on December 9, 2009. Since their separation they have shared equal parenting time with A.E.G.S. and A.J.O.S. They also shared equally various extra expenses relating to A.E.G.S. and A.J.O.S.’s education, recreation, and grooming. Neither paid the other child support and there are no court orders or written agreements to that effect.

On July 29, 2019, M.M.L. filed an Application to Obtain an Order seeking, among other things, ongoing and retroactive child support, and reimbursement for special or extraordinary expenses. On September 23, 2019, J.K.S. filed a Reply disputing M.M.L.’s application. Since their separation, both parents have re-partnered and now have second families. Issues: a. What are the parents’ respective ongoing child support obligations? b. Is J.K.S. obligated to pay M.M.L. retroactive child support? c.

If J.K.S. obligated to pay M.M.L. retroactive child support, in what amount and to which date? [ 2 ] This matter came before me for trial on January 6, 2021, in the Prince George Provincial Court. M.M.L. was represented by legal counsel, Mr. K.W. Parker; J.K.S. was self-represented. At that time I heard oral evidence from M.M.L. and J.K.S. and submissions from J.K.S. and from Mr. Parker on M.M.L.’s behalf.

M.M.L. tendered into evidence one binder of documents which was marked Exhibit 1, which included: Tab 1: M.M.L. and J.K.S.’ written agreement dated January 31, 2013, made pursuant to ss. 28 and 121 of the Family Relations Act , and filed in the Prince George Provincial Court Registry on February 12, 2013; Tab 2: M.M.L.’s July 29, 2019 Application to Obtain an Order; Tab 3: J.K.S.’ September 23, 2019 Reply; Tab 4: M.M.L.’s November 7, 2019 Form 4 Financial Statement with attachments; Tab 5: M.M.L.’s 2019 Canada Revenue Agency Notice of Assessment; Tab 6: J.K.S.’ October 11, 2019 Form 4 Financial Statement with attachments; Tab 7: J.K.S.’ 2019 Canada Revenue Agency Notice of Assessment; and Tab 8: A Facebook posting of unknown date depicting J.K.S. on his Honda Shadow motorcycle. [ 3 ] I also have the Court file which includes two s. 211 Views of the Child reports authored by Leanne Toews, with respect to A.E.G.S. and A.J.O.S.

These reports were filed with the Prince George Provincial Court Registry on February 27, 2020, and entered into the Court Electronic Information System (“CEIS”) documents 14 and 15 respectively. [ 4 ] At the conclusion of the hearing, I reserved my decision. These are my written reasons for judgment. Background facts: [ 5 ] M.M.L. is 41 years old, having been born on [omitted for publication]. [ 6 ] J.K.S. is 37 years old, having been born on [omitted for publication]. [ 7 ] M.M.L. and J.K.S. entered into an intimate relationship and began cohabitating in April 2000.

They never married. [ 8 ] M.M.L. and J.K.S. are the biological parents of two children, A.E.G.S., born [omitted for publication] (age15) (“A.E.G.S.”) and A.J.O.S., born [omitted for publication] (age 13) (“A.J.O.S.” and collectively with A.E.G.S., the “L. & S. Children”). [ 9 ] I understand A.J.O.S. attends Grade 7 at [omitted for publication] and A.E.G.S., Grade 10 at [omitted for publication] in Prince George, BC. [ 10 ] Both A.E.G.S. and A.J.O.S. have been assessed with Attention Deficit Hyperactivity Disorder (“ADHD”), and take medication to manage their symptoms. Both L. & S.

Children have the benefit of a psychoeducational assessment. A.E.G.S. suffers from Written Output Disorder and A.J.O.S. from Developmental Reading Disorder and Oppositional Defiant Disorder. A.J.O.S. is on an Individual Education Program at school. Dr.

Elizabeth Rocha’s Psychoeducational Assessment of A.J.O.S. dated April 30, 2018, is attached to Leanne Toews’ February 27, 2020 s. 211: CEIS Document #15. [ 11 ] M.M.L. and J.K.S. separated permanently on December 9, 2009. [ 12 ] M.M.L. and J.K.S. have always enjoyed shared equal parenting time with and parental responsibilities for A.E.G.S. and A.J.O.S. [ 13 ] For some time after their separation J.K.S. resided with his mother who provided child care for A.E.G.S. and A.J.O.S. during J.K.S.’ parenting time while J.K.S. worked.

[ 14 ] Ten years ago, J.K.S. re-partnered with his current spouse, C.S. C.S. has three children from prior relationships, K.J., who is 16 years old, M.S., who is 13 and S.S. who is 12. [ 15 ] C.S. had worked part-time for two years at the [omitted for publication] Casino in Prince George, BC. Last spring, she lost her job as a result of the COVID-19 pandemic and is currently unemployed. C.S. receives some child support from her children’s biological fathers.

J.K.S. has voluntarily assumed primary responsibility for supporting C.S. and her three children. [ 16 ] M.M.L. is the biological mother of a third child, F.W.J., born [omitted for publication], as a result of her relationship with F.W.J.’s biological father, F.W.S. I understand M.M.L. and F.W.S. began cohabitating in 2010 and separated in February 2016. M.M.L. and F.W.S. have a shared parenting arrangement with F.W.J. [ 17 ] Four years ago M.M.L. formed an intimate relationship with B.S.W. Since 2018 M.M.L. and her three children have lived with B.S.W. in his residence in rural Prince George.

B.S.W. is gainfully employed and has no children of his own, however, he does have significant financial obligations to his former spouse. Procedural History [ 18 ] On January 17, 2013, J.K.S. filed an Application to Obtain an Order seeking custody and guardianship of A.E.G.S. and A.J.O.S. In this document he indicated the parents shared equal custody of the L. & S.

Children: CEIS Document #1. [ 19 ] On January 30, 2013, M.M.L. filed a Reply to J.K.S.’ January 17, 2013 Application agreeing to the parents sharing joint custody and joint guardianship of A.E.G.S. and A.J.O.S.: CEIS Document #3. [ 20 ] On January 30, 2013, M.M.L. and J.K.S. entered into a Written Agreement pursuant to ss. 28 and 121 of the Family Relations Ac t, then in force. The agreement was one which M.M.L. and J.K.S.’ negotiated between themselves and formalized in a written agreement with the assistance of Mary Halpert, a Family Justice Counsellor in Prince George, BC. They only met with Ms.

Halpert together on one occasion, at which time they discussed issues of child custody, guardianship and residency. The Family Justice Counsellor filed the Written Agreement with the Prince George Provincial Court Registry on February 12, 2013. The Written Agreement provided that M.M.L. and J.K.S. were joint guardians and custodians of A.E.G.S. and A.J.O.S. It did not address any other issues.

Specifically the Written Agreement was silent on the issue of child support. [ 21 ] On February 12, 2013, J.K.S. and M.M.L. withdrew their respective application and counterclaim filed on January 17, 2013, and January 30, 2013: CEIS Document #5. [ 22 ] J.K.S. and M.M.L. have a shared parenting arrangement with respect to A.E.G.S. and A.J.O.S. The boys reside at each parent’s residence on an alternating weekly

schedule with Friday as the transition day. [ 23 ] Neither parent paid child support to the other. However, M.M.L. and J.K.S. share equally expenses the L. & S. Children incur for various items, events and activities, including expenses relating to their medical, dental, educational needs, such as tutoring and the psychoeducational assessments. They also shared the cost of some recreational expenses, such as skiing, and some grooming expenses, such as haircuts. M.M.L.’s father also contributed to the cost of the L. & S.

Children’s recreational activities. [ 24 ] M.M.L. and J.K.S. each claim 50% of the Child Care Benefit for Aston and A.J.O.S. based on the parents’ respective incomes. Their benefit entitlement is determined and administrated by the Canada Revenue Agency. [ 25 ] M.M.L. says that two or three years ago, she was engaged in family law litigation with F.W.S. regarding their son, F.W.J. It was in the context of those proceedings that M.M.L. learned child support is payable under the Child Support Guidelines (the “ Guidelines ”) even where the parents share equal parenting time.

Initially, F.W.S. did not pay M.M.L. child support although he out-earned her. M.M.L. believed child support was not payable where the parents share equal parenting time with the child. I gather M.M.L. eventually discovered this was not in fact the case. F.W.S. now pays to M.M.L. $193 per month for child support for F.W.J. after calculating and setting off each of the parent’s applicable Guideline child support obligation. [ 26 ] In the spring of 2019, M.M.L. asked J.K.S. to meet with her and a Family Justice Worker to address the issue of child support for A.E.G.S. and A.J.O.S.

M.M.L. and J.K.S. did meet with a Family Justice Counsellor, however, J.K.S. refused to pay to M.M.L. any child support for the L. & S. Children. [ 27 ] On July 29, 2019, M.M.L. filed an Application to Obtain an Order seeking, parenting time, allocation of parenting responsibilities and child support. Specifically she s ought an order that A.E.G.S. and A.J.O.S.’s primary residence will be with her. She also sought ongoing child support for two children in accordance with the Guidelines and reimbursement for special or extraordinary expenses.

M.M.L. stated she sought retroactive child support to February 1, 2013, “because the respondent has never provided to me his financial information to properly determine child support”: CEIS Document #6. [ 28 ] M.M.L.’s July 29, 2019 Application was personally served upon J.K.S. on August 30, 2019: CEIS Document #7. [ 29 ] On September 23, 2019, J.K.S. filed a Reply disagreeing with M.M.L.’s July 29, 2019 Application for parenting time, allocation of parenting responsibilities, child support: CEIS Document #8. [ 30 ] On October 11, 2019, J.K.S. filed a Form 4 Financial Statement with the attachments referred below: CEIS Document #10 . [ 31 ] On October 17, 2019, M.M.L. and J.K.S. attended at the Prince George Provincial Court for a first appearance.

At that time, the matter was adjourned to November 25, 2019, for a Family Case Conference. M.M.L. appeared in person and represented by Mr. K. Parker; J.K.S. appeared in person and was self-represented. [ 32 ] On November 7, 2019, M.M.L. filed her Form 4 Financial Statement, together with the attachments referenced below: CEIS

Document #12. [ 33 ] On November 25, 2019, M.M.L. and J.K.S. attended a Family Case Conference before Judge Young in Prince George Provincial Court. M.M.L. appeared in person and represented by Mr. K. Parker. J.K.S. appeared in person and was self-represented. At that time, Judge Young ordered a privately funded Views of the Child report pursuant to s. 211 of the Family Law Act with the costs to be shared equally between the parties.

The parents sought A.E.G.S.’s and A.J.O.S.’s views concerning the existing shared parenting time arrangement and whether they wished to remain at their father’s residence with their step-mother when J.K.S. was absent for work. [ 34 ] On February 27, 2020, Leanne Toews filed her Views of the Child reports with respect to A.E.G.S. and A.J.O.S. Both boys expressed the view that they would like to continue the existing shared parenting arrangement with M.M.L. and J.K.S.

Also, they both confirmed they wanted to remain at J.K.S.’ residence with their step-mother and step-siblings during J.K.S.’ parenting time even when J.K.S. was working out-of-town. [ 35 ] On October 28, 2020, this matter came before me for a Family Case Conference at which I made the following final order, by consent: Guardianship 1. Upon the Court being advised that the name and birth date of each child is as follows: A.E.G.S. born [omitted for publication] and A.J.O.S., born [omitted for publication] (“A.J.O.S.” and together with A.E.G.S., the “Children”): a.

The Court is satisfied that J.K.S. and M.M.L. are the guardians of the children under s.39(1) of the Family Law Act (the “ Family Law Act ”); Parenting responsibilities 2. Under s. 40(2) of the Family Law Act M.M.L. will have the following parental responsibilities for the children: a. making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage; and b. (subject to

section 17 of the Infants Act ), giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; applying for a passport, licence, permit, benefit, privilege or other thing for the child; c. subject to any applicable provincial legislation, d. starting, defending, compromising or settling any proceeding relating to the child, and e. identifying, advancing and protecting the child's legal and financial interests; 3.

The guardians will share equally the following parental responsibilities for the children, pursuant to s. 40(2) of the Family Law Act : a. making day to day decisions affecting the children and having day to day care, control and supervision of the children; b. making decisions about where the children will reside; c. making decisions respecting with whom the children will live and associate; d. giving, refusing or withdrawing consent for the children, if consent is required; e. receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; and f. exercising any other responsibilities reasonably necessary to nurture the child's development; Parenting Time 4.

The children will have parenting time with each parent during alternate weeks. Unless otherwise agreed between the parents, exchanges will occur each Friday at: a. 3:00 pm when school is in session; and b. 5:00 pm when school is not in session; 5. The alternating weekly parenting time

schedule will continue during the children's school Spring and Summer breaks; 6. Parenting time on the children's birthdays will: a. alternate annually between the parents; and b. be confirmed in writing not less than 2 weeks prior to each year; 7. Neither parent will unreasonably deny periodic adjustments to the alternating weekly parenting time

schedule to accommodate the children's participation in extended or destination holidays, significant family birthdays or special occasions, or other reasonable requests so long as any such request is made sufficiently in advance and in writing; 8. If either parent is not available to care for the children during the parenting time with that parent, the children may decide whether or

not to discontinue their parenting time at that parent's house; 9. Each guardian will cooperate with the other guardian in the provision of passports, consents to travel, and other necessary documents as may be required to allow the children to travel; Conduct Orders 10.

The parties will: a. put the best interests of the children before their own interests; b. encourage the children to have a good relationship with the other parent and speak to the children about the other parent and that parent's partner in a positive and respectful manner; and c. make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children; 11.

The parties will not a. question the children about the other parent or time spent with the other parent beyond simple conversational questions; b. discuss with the children any inappropriate adult, court or legal matters; or c. blame, criticize or disparage the other parent to the children; 12. The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the children concerning family issues or litigation; 13. J.K.S.' signature approving the order as to form is dispensed with; 14. Mr.

Parker will draft the Order; and 15. On or before November 15, 2020, the parties are to exchange their respective: a. Income Tax Returns for 2019 and 2020; b. Notice of Assessments for 2019 and 2020; c. Any Notices of Reassessment for 2019 and 2020; and d. their statement of earnings with a year to date pay

summary of earnings. M.M.L.’s Financial Circumstances [ 36 ] M.M.L. has worked for [omitted for publication] in Prince George, BC for the past 16 years.

She now works the night shift in the [omitted for publication] department (10 pm to 6 am) four days per week earning $25.25 per hour for regular time work and $37.88 for overtime. [ 37 ] M.M.L. says she has no health concerns and does not anticipate any change in her employment in the near future. [ 38 ] On November 7, 2019, M.M.L. filed her Form 4 Financial Statement in which she declared an annual Guideline income of $45,574.95 and annual expenses of $59,290.35.

M.M.L. attached to her Financial Statement, the following documents: a. two pay statements from [omitted for publication] for the pay periods from September 29, 2019 to October 5, 2019, and October 6, 2019 to October 12, 2019. The second of these pay statements show M.M.L.’s year-to-date income as of October 12, 2019, totalled $45,427.63; b. T1 Individual Income Tax Return and for 2018, indicating a Line 150 income of $43,336.59; c. Canada Revenue Agency Notice of Reassessment for 2018, showing a Line 150 income of $48,565; d.

T1 Individual Income Tax return and Canada Revenue Agency Notice of Assessment for 2017, indicating a Line 150 income of $47,002.91; e. T1 Individual Income Tax Return and Canada Revenue Agency Notice of Assessment for 2016, showing a Line 150 income of $50,454.44; and f.

CRA Notice of Assessment for 2015, showing a Line 150 income of $51,730. [ 39 ] On April 15, 2020, Canada Revenue Agency issued M.M.L. a Notice of Assessment for the 2019 taxation year showing a Line 150 income of $56,776. [ 40 ] M.M.L. provided a pay statement from [omitted for publication] showing that as December 26, 2020, her year to date earnings totalled $58,524.84. Extrapolating this sum to December 31, 2020, I gather M.M.L.’s 2020 income would total approximately $59,338. [ 41 ] If M.M.L. worked 40 hours per week for 52 weeks, inclusive of vacation, she would earn $53,040 per year ($25.50 x 40 hours

per week x 52 weeks = $53,040). I understand M.M.L. does earn a premium for working night shift and extra for working overtime or on statutory holidays. [ 42 ] M.M.L. has a shared parenting arrangement with all three of her children and receives $218 per month from Canada Revenue Agency as the Child Care Benefit for those children. [ 43 ] M.M.L. contributes to a Registered Educational Savings Plan (“RESP”) for A.E.G.S. and A.J.O.S. Each child now has approximately $20,000 in savings.

J.K.S. does not contribute to these plans and does not have his own independent RESPs for A.E.G.S. and A.J.O.S. [ 44 ] B.S.W. is the assistant store manager at [omitted for publication]. In 2020, B.S.W. earned $84,000 from his position as assistant store manager. B.S.W. also has a small business selling [omitted for publication] at $225 per [omitted for publication]. He has owned and operated this business for approximately seven years.

He sells approximately 80 to 100 [omitted for publication] per year and earns approximately $8,000 - $10,000 per year from this business. [ 45 ] B.S.W. does not have any children of his own, but is obligated to pay spousal support to his former spouse in the amount of $1,300 per month for four years. He has paid this sum now for the past three years has one more year left to pay. [ 46 ] B.S.W. owns his own home at [omitted for publication], which is in the [omitted for publication] area of rural Prince George. It is a 2000 square foot ranger with a two car garage situated on five acres of land.

He says it has an assessed value of $535,000 to $645,000 with a $480,000 mortgage. He had to “repurchase” it after his divorce from his ex-spouse. He says he pays the mortgage, insurance and property taxes and electrical power. In her November 7, 2019 Financial Statement, M.M.L. claims to pay B.S.W. $9,600 per year as “rent”, $2,500 in property taxes, $700 in insurance and $3,900 for utilities (heat, electricity, telephone, cable TV and internet). B.S.W. says M.M.L. gives him $800 per month ($9,600 per year) as her contribution towards the television, internet, gas expenses, which he distributes.

I prefer B.S.W.’s evidence in this regard over M.M.L.’s. [ 47 ] B.S.W. owns a 2011 F-350 pickup, two snow machines, an all-terrain vehicle and 22 feet 1978 travel trailer. He provides M.M.L.’s children with transport and gifts on special occasions. I glean from the s. 211 report the L. & S. Children enjoy participating in various outdoor activities with B.S.W. at his residence, including: snowmobiling, “quadding” and harvesting wood.

J.K.S.’ present circumstances [ 48 ] Until recently J.K.S. and C.S. lived at [omitted for publication].in Prince George, BC, which is near the [omitted for publication].elementary school, which A.J.O.S. attends. J.K.S. and C.S. moved to a larger more expensive home at [omitted for publication], in Prince George, which allows each of their five children to have their own bedroom. As a result of this move J.K.S. and C.S.’s rent increased from $13,000 per year to $24,000. [ 49 ] Although he works hard and consistently, J.K.S. has little in the way of assets.

He would like to purchase his own home, but cannot afford to do so at present. He drives a 2003 Dodge Grand Caravan and owns a 1978 travel trailer in which he takes his family on holidays. He recently purchased a 2003 [omitted for publication] motorcycle with $2,500 he borrowed from a friend, who he has slowly paid back. J.K.S. has amassed $24,000 in credit card debt. [ 50 ] For the past six years, J.K.S. has worked full-time as a foreman for [omitted for publication] which is in the business of [omitted for publication] construction and maintenance.

J.K.S.’ statement of earnings and deductions indicate that in 2019 he received $32 per hour for regular time work and $48 per hour for overtime. [ 51 ] J.K.S. says C.S. is healthy and capable of working. She worked part-time for two years at the [omitted for publication] in Prince George until its closure due to the COVID-19 pandemic. J.K.S. estimates C.S. earned $15,000 per year when employed and receives $400 per month from her children’s biological fathers for child support. She does not contribute to the rent, but does contribute to the cost of groceries and the cell phone bills.

C.S. did not testify nor did J.K.S. provide any documentation verifying her income or expenses. I find it surprising C.S. receives only $400 per month for three children given she is receiving child support from two different fathers. [ 52 ] J.K.S. considers K.S., M.S. and S.S. as “his kids” who he is obligated to support. He says all three children require orthodontic work, which he will have to pay for because it is not insured under his employee dental plan. J.K.S. also pays for S.S. and K.J. to attend dance lessons.

J.K.S. has not provided the Court with any corroborating evidence of these expenditures or any explanation as to why their biological mother and fathers cannot contribute to this expense. Having said that, it is apparent to me from Ms. Toews’ 211 report that C.S. does care for all five children while J.K.S. is working out-of-town.

The s. 211 report also makes it clear A.E.G.S. and A.J.O.S. are attached to C.S. and she makes a significant contribution to their enjoying a stable and loving home with their father. [ 53 ] Because of J.K.S. and C.S.’s modest household income and accommodation expenses, they are limited in what they can offer A.E.G.S. and A.J.O.S. for recreation. J.K.S. has a 32 year old travel trailer which he uses to take the family on holidays from time-to- time in the Okanagan and Kootenays.

His activities with the boys includes swimming, skiing, camping, movies and dining out. [ 54 ] On October 11, 2019, J.K.S. filed a Form 4 Financial Statement declaring he earned an annual guideline income of $71,246 and incurred annual expenses totaling $98,938. J.K.S. attached to his Financial Statement the following documents: a. Statement of Earnings and Deductions for the period ending September 14, 2019, indicating a year to date income for 2019 was $79,531.08; b. Notice of Assessment for 2018 indicating his Line 150 income for that year was $71,246; c.

Notice of Assessment for 2017 indicating his Line 150 income for that year was $78,191; and d. Notice of Assessment for 2016 indicating his Line 150 income for that year was $77,756.

[55] J.K.S. provided a Notice of Assessment for the 2019 taxation year issued April 20, 2020, indicating his total income for 2019was $88,599. He did not provide M.M.L. nor the Court with a copy of his 2019 Individual Income Tax Return or final Statement ofEarnings for 2020. [56] Counsel for M.M.L. asks the Court to impute income for J.K.S.’ 2020 and 2021 to be $88,599. [57] On his Financial Statement, J.K.S. estimates his annual expenses to be $98,938.

He has a few luxuries (such as cigars andalcohol) and I accept C.S. contributes to some of the household expenses and some are embellished. [58] J.K.S. says [omitted for publication] shuts down its operations in the winter. During this dormancy, J.K.S. aggressively pursueswhatever extra shifts or work may be available. I gather this often requires him to travel out of town to follow the work. J.K.S. says extrawork is not guaranteed nor always available. His income in 2019 is not necessarily what he will earn in 2020.

Unfortunately, J.K.S. didnot provide the court with documentation from [omitted for publication] confirming his annual salary for 2020 or how much of it isderived from overtime or out-of-town work. Generally the Court does not require a person to work more than one full-time job to satisfytheir duty to support their children: Fong v. Fong, 2011 BCSC 42 , para. 85. [59] If J.K.S. received $32 per hour for regular time work for 52 weeks, inclusive of holidays, he would earn $66,560 per year ($32 x40 hour per week x 52 weeks = $66,560).

In order to earn $88,599, as he did in 2019, J.K.S. would have had to receive a significant raiseor work a significant amount of overtime or statutory holidays or both ($88,599 - $66,560 = $22,039 ÷ $48 = 460 hours at time and one-half). Therefore, evidence that J.K.S. is working substantially more than 40 hours per week is relevant to the s. 9 Guideline analysis. Forexample, ordering J.K.S. to pay prospective child support on an income he can only earn if he consistently works 60 hours per week maybe unfair and not in the best interest his sons who want and need parenting time with their father.

Having said that I cannot guess at howmuch J.K.S. earned or how much overtime he worked in 2020. Analysis Issue #1: What are the parents’ respective ongoing child support obligations? Legislative Framework [60]

Section 147 the Family Law Act imposes a duty on each parent and guardian to support a child under the age of 19 except incircumstances that are not present in this case. [61]

Section 148 of the Family Law Act governs agreements respecting child support. It states: 148

(1) An agreement respecting child support is binding only if the agreement is made (

a) after separation, or (

b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family MaintenanceEnforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreementrespecting child support if the court would make a different order on consideration of the matters set out in

section 150 [determiningchild support]. [62] Section 150(1) of the Family Law Act states the amount of child support must be determined in accordance with the ChildSupport Guidelines (s. 150(1) Family Law Act). Pursuant to the Family Law Act and

Part 4 of the Family Law Act Regulation, BC Reg347/2012, the Child Support Guidelines means the Federal Child Support Guidelines (the “Guidelines”) established under s. 26.1 of theDivorce Act (Canada). [63] When making an order respecting child support, s. 150 of the Family Law Act requires a Court to determine the amount inaccordance with Guidelines unless the parties have an agreement for some other amount and the Court is satisfied that reasonablearrangements have been made for the support of the child: see s. 150(2). [64] Since they separated in December 2009, M.M.L. and J.K.S. have shared equally parenting time and parenting responsibilities forA.E.G.S. and A.J.O.S.

They agreed to each bear their own costs of child care and to share equally certain extra expenses, such as dentaltreatment, medical reports, school fees, tutoring, haircuts, recreation equipment and ski passes. This oral agreement does not complywith the Guidelines as required under s. 150 of the Family Law Act. I accept that at the time M.M.L. and J.K.S. agreed to this childsupport arrangement, they were not aware of the law governing payment of child support in shared parenting regimes. [65] In Peck v.

Peck, 2010 BCSC 1397 , Justice Wilson found ignorance of the law in family law matters, as in criminalmatters, is not an excuse. He writes: [58] . . . While deference must be shown by the court to self-represented parties, there is a responsibility on self-represented parties toreasonably inform themselves on the law surrounding the resolution of their disputes. Particularly so, when they are representing theinterests of infant children. [66] In J.A.S. v. A.C.S., 2016 BCPC 433 , Judge Bayliff states: [29] Mr.

S. testified that he did not receive “effective notice” of the requirement to pay child support according to the Guidelines until hewas served with the current application in February of this year. However, as noted, “ignorance of the law is no excuse”. The lawrequired the payment of child support in accordance with the Guidelines as of the date of separation. Every parent must be deemed to

know that. Therefore, I find that the date of “effective notice” was February 1st, 2013, the date of separation, rather than the date offormal notice, when the application was served on Mr. S., sometime in February of 2016. [67] The principles on which child support is based as espoused Earle v. Earle, (BCSC), are as follows: a. the parents of a child have a joint and ongoing obligation to support their children; b. child support belongs to the child; and c. the amount of child support is based, not only on the parents’ earnings, but also on what the parent can earn. See Carriere v.

Carriere, 2013 BCSC 235, at para. 21. [68] The Guidelines objectives are: a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spousesafter separation; b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective; c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders andencouraging settlement; and d. to ensure consistent treatment of spouses and children who are in similar circumstances.

Quantifying child support in shared custody arrangements [69] M.M.L. and J.K.S. have a shared custody regime, which is governed by s. 9 of the Guidelines: Shared custody 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over thecourse of a year, the amount of the child support order must be determined by taking into account (

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

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

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [70] Contino v. Leonelli-Contino, 2005 SCC 63 is the leading case on the

interpretation and application of s. 9 of theGuidelines. In G.J.L. v. M.J.L., 2017 BCSC 688. Justice Schultes cites with approval Professor D.A. Rollie Thompson’s distillation ofthe essential principles Contino establishes: a. The court must determine child support in accordance with the three listed factors in s. 9 once the 40% threshold is met; b. The court must emphasize flexibility and fairness to ensure the economic reality and particular circumstances of each family areproperly accounted for; c. The three factors structure the exercise of the court’s discretion but no factor prevails over the others; d.

The weight given to each factor varies with the particular facts of each case; e. There is no presumption in favour of any particular award of child support, be that at, above or below the full Guidelines amount; f. The preferable starting point is to determine the straight set-off amount of child support that each party would pay to the other underthe Guidelines; g.

The court, however, has the discretion to modify the set-off amount where, considering the financial realities of the parents, it wouldlead to a significant variation in the standard of living experienced by the child as he moves from one household to the other; h. The court is to examine the budgets and actual expenditures of both parents in addressing the needs of the child, determine whethershared custody has resulted in increased costs globally and apportion these costs between the parents in accordance with their incomes; i.

Keeping in mind the objectives of the Guidelines to ensure a fair standard of support for children and fair contributions from bothparents, the court has broad discretion to analyse the resources and needs of both the parents and the child; and j.

The court will look at the standard of living of the child in each household and the ability of each parent to absorb the costs associatedwith maintaining the appropriate standard of living in the circumstances [71] Contino instructs the Court that when considering child support under s. 9 of the Guidelines, there is no need to separate outspecial or extraordinary expenses (s. 7) or resort to the undue hardships provisions of s.

Section 9(

c) confers the judge with a broaddiscretion to take into consideration a panoply of expenses and hardships when determining child support in a shared parentingarrangement.

[72] In K.A.C. v J.D.E.C, 2020 BCSC 1373 , Justice Milman discusses the extent to which the income provided by a newspouse of one of the parents is to be taken into account under s. 9 of the Guidelines. He cites B.P.E. v.

A.E., 2016 BCCA 335, in whichWillcock J. summarized the correct approach to the issue of a re-partnered spouse’s “household income”: [103] Willcock J.A. summarized the correct approach to follow in reconciling these competing considerations: [59] There are sound policy reasons for rejecting an approach to this issue that treats new partner income presumptively as “householdincome” to be generally factored into child support calculations under s. 9. [60] The first of these is the public interest in reducing the incidence and severity of the “cliff effect” – what Bastarache J. referred to(in Contino at para. 41) as the “drastic change in support” arising from variations in access arrangements.

The majority of theCourt in Contino was at pains to avoid the disproportionate drop in child support that may result from a minor change in custodyarrangements and the triggering of the application of s. 9 of the Guidelines. Where the payor enjoys a much higher individual incomethan the payee and the set-off amount is relatively high, child support will drop precipitously if the new partner’s income is routinely andfully taken into account when s. 9(

c) is thus triggered. [61] Further, ascribing limited importance to the income of second spouses gives effect to the objectives stated in s. 1 of the Guidelines,in particular, ensuring that children continue to benefit from the financial means of both spouses after separation and making thecalculation of child support orders more objective. While the Court in Contino held flexibility should take priority over certainty for thepurpose of the s. 9 analysis, the pursuit of certainty and predictability of outcomes should still play an important role in our analysisbecause of their importance in the efficient resolution of disputes. [62] The set-off amount calculable under s. 9(

a) accounts for two incomes: the earnings of the biological parents. Establishing thequantum of these incomes on the evidence may be difficult, but the framework is clear and the outcome predictable. Varying support toaccount for third and fourth incomes under s. 9(

c) as a matter of course would degrade the certainty and predictability of the legislativescheme and risk returning us to the ad hoc unpredictability of the old child support regime. It tends to increase the volatility of childsupport obligations. By contrast, giving weight to total household incomes for a more limited purpose – that is, to assess whether basicneeds can be met and whether disparate standards of living between households can be avoided – maintains the flexibility of the s.9 scheme while drawing predictable boundaries around the s. 9(

c) enquiry. Variation of existing agreements [73] As set out above, s.148(3) of the Family Law Act empowers the court to set aside or replace with an order all or part of anagreement respecting child support if the court would make a different order on consideration of the matters set out in

section 150. [74] Recently, in Sidhu v Chima, 2020 BCSC 768 , Justice Jenkins canvassed the authorities on the application of s. 148(3).He states at para. 42: [42] In T.K. v. A.K., 2014 BCSC 1241, Mr. Justice Betton considered whether or not a court should interfere in and vary agreementsreached between the parties for child support. Justice Betton referred to the leading case of D.B.S v. S.R.G., 2006 SCC 37 (“D.B.S.”),stating: [68] The Court of Appeal [in Goulding v.

Keck, 2014 ABCA 138] reviewed the law coming from D.B.S. and stated that where there is anagreement between the parties, the principles in D.B.S. must be seen through “that lens” (at para. 25). The court summarized the lawrelating retroactive child support to an agreement between the parties: [26] The law encourages parents to resolve their own affairs outside of litigation. This is often achieved by an agreement to an amount ofreasonable support for their children . . .

Of course, such agreements always remain subject to the jurisdiction of the court to uphold thebest interests of the child and ensure adequate payment of support . . . Assuming that the agreed terms meet this threshold andenforcement is not otherwise unconscionable, the court has an obligation to respect the parties' agreement . . . [27] Where parents have set out their respective child support obligations by contract, that agreement is also, by definition, evidence ofthe mutual intentions and expectations of each party.

When those intentions and expectations are adequate in accordance with the law,the court has no grounds to interfere or alter the parties' arrangement. [43] In Young v. Young, 2013 BCSC 1574, Justice Barrow referred to s. 148 and then stated: [13] Although the materials are not entirely clear, I take Mr. Young's application to be an application under s. 148 of the Family Law Act.I am, therefore, at liberty to set aside or replace portions of the agreement dealing with child support if, based on the presentcircumstances, I would make a different order than that set out in the agreement.

Whether the court would make a different order is to bedecided on the basis of the Child Support Guidelines, which are incorporated into the Family Law Act by reference in s. 148 to s. 150… [44] Less deference is owed to an agreement respecting child support than an agreement respecting spousal support, however theagreement is relevant as an indication of the parties’ intentions. As summarized by Justice Hyslop in Worsfold v.

Worsfold, 2018 BCSC45: [34] The court may set aside an agreement if the child support provisions are not in accordance with the Guidelines and make orderspursuant to ss. 148(3) and 150(1) of the Family Law Act … [35] In adjusting child support pursuant to a separation agreement, it does not require the applicant to provide a material change ofcircumstances as there is no previous court order determining child support: Kopp v. Kopp, 2012 BCCA 140at paras. 16, 39 and41; Fung-Sunter v. Fabian, 1999 BCCA 346at paras. 6, 27 and 28; and E.M. v. M.S., 2016 BCPC 242at para. 27.

E.M. was dealing withparenting arrangements.

[36] What I am required to do is make an order pursuant to ss. 149 and 150 of the Family Law Act . [37] In Kopp , the Appeal Court found that deference to a separation agreement for child support and spousal support is different as: [37] …courts have a separate responsibility to children to ensure their interests are upheld. Thus, the appropriate weight to be accorded an agreement for child support will be less than that accorded to an agreement for spousal support. [38] That is not to say that the separation agreement was not relevant to the chambers judge's consideration of the issues before her.

In my view, she considered those terms as the reflection of the parties' intentions at every stage of her analysis, giving the agreement appropriate weight in the context of those issues. While I do not agree with all of her conclusions, in my opinion she did not err by not giving appropriate consideration and weight to the separation agreement as a whole. [ 75 ] In Contino , at para. 82 , Bastarache J., for the majority stated: [82] The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions.

Any attempt to apply strict formulae will fail to recognize the reality of various families. A contextual approach which takes into account all three factors enunciated by Parliament in s. 9 of the Guidelines must be applied. [ 76 ] I do not see how the Court can expect self-represented parents to determine with any precision their respective child support obligations it in a share parenting arrangement without some legal assistance. [ 77 ] Mr.

Parker submits the Court ought to resolve the issue of child support with the application of a simple set-off of each parent’s table amounts using their most current Line 150 income. On an imputed annual Guideline income of $88,500, J.K.S.’ child support obligation for two children according to the Guidelines is $1,368 per month. On an annual Guideline income of $59,290.35, M.M.L.’s child support obligation for two children according to the Guidelines is $920.

Setting off these two amounts, J.K.S. would be obligated to pay child support to M.M.L. in the amount of $448 per month. [ 78 ] There is no doubt the bare application of the set-off formula is attractive for its simplicity. Generally, a simple solution to a complex question is wrong. I accept that in some cases of shared parenting arrangements, it may be appropriate. I do not believe this is one such case for number of reasons, including: a. Both parents annual Guideline income fluctuate according how much overtime they work. J.K.S. appears to work far more overtime than M.M.L.

Because [omitted for publication] shuts down or slows down its operation in the winter, J.K.L.’s annual income is somewhat unpredictable. I do not believe it is fair to J.K.S. to calculate his ongoing child support obligations based on a Guideline income he can earn sometimes but not often; b. I have very little evidence on the second s. 9 factor, namely the increased costs of shared custody; c. both J.K.S. and M.M.L. have repartnered which has had a significant impact on their respective household income and expenses; d.

A.E.G.S. and A.J.O.S.’s special and extraordinary expenses are not fixed or easily quantifiable at this point in time; and e. The evidence suggests that historically, M.M.L. arranged and paid for A.E.G.S. and A.J.O.S.’s special and extraordinary expenses as they are incurred and seeks reimbursement from J.K.S. Fluctuating income [ 79 ] J.K.S.’s income increased from $71,246 in 2018 to $88,599 in 2019. J.K.S.’ testified this increase is largely attributable to the amount of overtime he worked in 2019.

The last financial document J.K.S. disclosed to the Court was his 2019 Notice of Assessment, so I have no way of verifying his 2020 income or the amount of overtime he worked last year. I understand J.K.S. provided his most recent Statement of Earnings to M.M.L.’s counsel at the Family Case Conference on October 28, 2020, but these records were never placed before the Court. [ 80 ] M.M.L.’s income increased from $48,565 in 2018 to $56,776 in 2019 to $59,338 in 2020. I note her hourly wage in 2019 was $24.90 and in 2020 it was $25.50.

Her December 31, 2020 paycheque for the week of December 20 to 26, 2020, records M.M.L. worked one hour earning $37.87. I am left with the impression M.M.L. does not regularly work a significant amount of overtime. Increased costs of shared custody [ 81 ] The parties have enjoyed equal parenting since December 9, 2009, when they first separated. The L. & S. Children have been established in each parent’s home for more than eleven years. The parents have re-partnered and now have more than just A.E.G.S. and A.J.O.S. to support.

It is difficult to assess the increased costs of shared parenting arrangement in the circumstances and impossible with the dearth of evidence before me on this point. I understand from J.K.S. that in December 2020, his rent doubled because he moved his family into a larger home to accommodate five children. On the other hand, for the past two years, M.M.L. and her three children have resided with B.S.W. in his home which make her accommodation costs much less than those of J.K.S.’. Household income and expenses [ 82 ] Both M.M.L. and J.K.S. have second families.

M.M.L.’s second family consists of two fully employed healthy adults and three dependent children. M.M.L. is the biological mother of all three children. She has no step-children. J.K.S. has a second family consisting of one fully employed healthy adult, one unemployed or partially employed adult, and five children, two of whom are J.K.S.’ biological children. [ 83 ] Mr. Parker, counsel for M.M.L., argues that J.K.S.’ obligations towards his step-children are secondary to his obligations to his

biological children from his relationship with M.M.L. This what is often referred to as the “first-family-first principle.” Essentially thisprinciple provides a payor's obligations to the first family take priority over any subsequent obligations to the second family. [84] In Fisher v. Fisher, 2008 ONCA 11, the Ontario Court of Appeal held that a payor’s obligations to a second family can be arelevant factor in considering entitlement to and quantum of support. The Ontario Court of Appeal addressed the thorny issue ofsupporting multiple families in Fisher v.

Fisher: [39] While courts generally recognize a “first-family-first” principle (which provides that a payor’s obligations to the first family takepriority over any subsequent obligations, inevitably new obligations to a second family may decrease a payor’s ability to pay support fora first family. [40] In each case, obligations toward second families must be considered in context.

For example, where spouses with a childseparate, and one remarries and produces another child, the obligations to the second child will affect support for the first family becausethe payor has an equal obligation to both children. (Citations omitted) [85] In Fisher, the appellate Court refused to reduce the payor’s support obligations to his first family, on the basis he had voluntarilyassumed significant responsibility for his second family, including his new step-children, while knowing of his pre-existing obligations.In that case, the payor’s new spouse had chosen not to work, and the payor had no legal obligation to support her or her children.

LangJ.A. went on to note in Fisher the lack of evidence the payor’s obligations to his first family would impoverish his second family. Inthese circumstances the payor’s endorsement of his second wife's preference to remain at home could not be relied upon to reduce hissupport obligation to his first family. [86] In A.K. v. S.D.Y., 2011 BCSC 1567 , Justice Fitzpatrick recognized (at para. 200) the “first family first concept is notabsolute. In Kershaw v.

Kershaw, 2015 BCSC 925 , Justice Fitzpatrick, notes (at para. 21): [21] The concept in family law of "first family first" is generally applied, although I accept that it must be considered in the context ofother obligations that arise when a payor, such as Mr. Kershaw, enters into a new family relationship. However, what Mr. Kershaw hasdone is failed to recognize his obligation by court order to support Ms. Kershaw. Instead, he has reversed that situation in that heconsiders that his second family is now his first priority and his pre-existing obligations to Ms. Kershaw now take a distant secondposition. [87] In

Section 9 and Second Families, 2015 93-1 Can. Bar Rev. 39, 2015 CanLIIDocs 138, authors Elliot S. Birnboim and DaniellaMurynka, state on page 41: Contributing to a complex picture of family structures in Canada, following the breakdown of a relationship, most parties will eventuallyrepartner, and many will form new families with more children.

Ollie Thompson has dubbed child support issues arising from serialfamily formation “The Second Family Conundrum.” Courts and legislators face a challenge in balancing the objectives of simplifiedchild support determination, putting children first, and fairly allocating the burden of child support as between the parties.

Quiteobviously, the existence of children from multiple parents living in a single household (or from a single parent living in multiplehouseholds) impacts the financial circumstances of both the payor and recipient households. [Citations omitted]. [88] In this case, as in Fisher, J.K.S. voluntarily assumed responsibility for C.S. and her three children. J.K.S. knew, or ought to haveknown, of his pre-existing obligation to his first family. His second family had other sources of income, including child support from thestep-children’s biological fathers and C.S.’s own employment income.

Even in the face of this proceedings, J.K.S. has increased hisfinancial obligations to his second family for accommodation and orthodontics. [89] The financial circumstances of each household, including those of a new spouse are relevant to a proper calculation of theparties’ respective child support obligations after taking account of each party’s income for child support purposes and after a set-offcalculation: H.A.B.v. C.L.B., 2019 BCCA 349. I do not have before me any reliable information as to C.S.’s financial contribution toJ.K.S.’ second family.

The evidence suggests J.K.S. supports C.S.’s preference to remain unemployed or underemployed. I have nosatisfactory explanation as to why C.S. is not contributing more to the support of her own children. [90] Beyond setting out his estimated household expenses in his October 11, 2019 Financial Statement, J.K.S. has not providedcogent evidence to establish his financial obligations to his first family would impoverish his second family.

Without robust evidence asto J.K.S.’ household income and expenses, I cannot say his ability to pay child support is significantly diminished due to the financialobligations he voluntarily undertook for his second family. [91] I have set out below J.K.S. and M.M.L.’s respective incomes for the 2016 to 2019 taxation years, their respective Guidelinesupport obligations for two children based on that income, and the set off between these two table amounts. Taxation year J.K.S. Income J.K.S. Guidelinesupport M.M.L.Income M.M.L.

Guidelinesupport Set-off amount 2016 $77,756 $1,176 $50,454 $765 $4112017 $78,191 $1,183 $47,002 $713 $4702018 $71,246 $1,106 $48,565 $760 $3462019 $88,599 $1,368 $56,776 $881 $4872020 $88,599 (if imputed) $1,368 $59,338 $921 $447 Totals $404,391.00 $6,201.00 $262,135.00 $4,040.00 $2,161.005 year average $80,872.20 $1,240.20 $52,427.00 $808.00 $432.20

[92] The financial information indicates that: (

a) in 2016, M.M.L.’s Guideline income was 35% less than J.K.S.’; (

b) in 2017,M.M.L.’s Guideline income was 40% less than J.K.S.’; (

c) in 2018, M.M.L.’s Guideline income was 32% less than J.K.S.’; (

d) in 2019,M.M.L.’s Guideline income was 36% less than J.K.S.’ (

e) in 2020, M.M.L.’s Guideline income was 33% less than J.K.S.’ imputedGuideline income. In sum, in the past four years (2016 to 2020), M.M.L.’s annual Guideline income was on average 35% less thanJ.K.S.’ Guideline income. [93] Since 2010, J.K.S. has had a second family and is the main income earner for a household of seven. During this same 10 yearperiod, M.M.L. cohabitated with F.W.S. until they separated in February 2016. I gather M.M.L. was the sole income earner for ahousehold of four from the time she separated from F.W.S. until she began cohabitating with B.S.W. two or three years ago.

Since thenM.M.L. has had the benefit of sharing household expenses with B.S.W., who earns 30% more than she does, before factoring in hisincome from his wood harvesting business. Special and extraordinary expenses [94] As I indicted previously, the evidence suggests that over the years, it was M.M.L. has taken the initiative to procure and pay forspecial and extraordinary expenses for A.E.G.S. and A.J.O.S. Upon her request, J.K.S. reimbursed M.M.L. for half of those expenses.These included Dr. Rocha’s psychoeducational evaluation and A.E.G.S. and A.J.O.S.’s school fees and tutoring.

These expenses are notfixed or ongoing so they cannot be factored into a monthly child support payment. [95] Special or extraordinary expenses are set out in s. 7 of the Guidelines. I have reproduced that

section below for ease of reference: 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 followingexpenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests andthe reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern priorto the separation: (

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

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, professionalcounselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speechtherapy 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’sparticular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. [96] In Clarke v. Clarke, 2014 BCSC 824 , Mr. Justice Baird states (at para. 51) the list set out in s. 7 is exhaustive. If theexpense does not fit into any of the enumerated categories, it cannot be a special or extraordinary expense. Still, what is and is not anextraordinary expense is not always straightforward.

Section 7.1 provides some guidance, which states: 7(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 intoaccount that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determinedthat 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 wouldreceive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court hasotherwise 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. [97] In Clarke, (at para. 54) Justice Baird provided a

summary of activities which did not qualify as a special or extraordinaryexpense. These include expenses such as entertainment, pets, vacations, school fees, school supplies, children’s allowances, mealsoutside the home, personal grooming, and clothing, a home computer and other technologies. Recreational sports and other similarextracurricular activities, such as dance lessons, community sports leagues, ski trips, are generally considered “ordinary.” The question iswhether the participation goes beyond that of the “average child”: D.L.C. v. F.M.C., 2010 BCSC 1312 at para. 67. [98] In Bodine-Shah v.

Shah, 2014 BCCA 191, the Court of Appeal distinguished between special expenses, as listed in in ss. 7(1)(a)-

(

c) and (

e) from extraordinary expenses referred to in ss. 7(1)(

d) and (f). Justice D. Smith for the appellate court explains in para. 66: [66] Special expenses listed in ss. 7(1)(a)-(

c) and (

e) are distinct from extraordinary expenses referred to in ss. 7(1)(

d) and (f). Specialexpenses are defined as relating to child care, medical or dental insurance premiums, health-related costs, and post-secondary education.They must be found to be reasonable and necessary. Extraordinary expenses are not defined. Their extraordinariness is determined in thecontext of the combined income of the spouses, as well as other considerations, including the nature and amount of the individualexpense, the nature and number of the activities, any special needs or talents of the child, and the overall cost of the activities. They alsomust be found to be reasonable and necessary.

Relevant considerations for the tests of necessity and reasonableness include whether theexpenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, the child, and tothe family’s spending pattern prior to separation . . . In assessing “means”, the court may consider the parties’ capital assets, incomedistribution, debts, third-party resources, access costs, support obligations, receipt of support, and any other relevant factor . . .

Courtsmay consider whether the non-custodial parent was consulted regarding the expense, though a lack of consultation does notautomatically preclude a finding that the expense is reasonable and necessary: Delichte at paras. 39, 44. [99] In L.A.M. v S.C.M, 2020 BCSC 67 , Justice Weatherill, canvassed the law on what constitutes an “extraordinary”expense. He states, at para. 30: [30] To summarize, before a recreational or extracurricular expense will be considered as a s. 7 expense, it must meet the threshold ofbeing necessary, reasonable and affordable.

It must be “extraordinary” in the sense that it is over and above what should be considered“ordinary”. Then, the court must consider if the recipient of child support can reasonably cover the expense out of income, includingtable child support. If “yes”, it will usually not be considered an extraordinary expense.

Nevertheless, it may still be considered anextraordinary expense depending on the amount of the expense in relation to the claimant’s income, the kind and number ofprograms/activities that the children are enrolled in, any special needs or special talents the children have, the overall costs of theprograms/activities and other relevant/similar factors. [100] In the past M.M.L. and J.K.S. have split the costs of A.E.G.S. and A.J.O.S.’s ski passes and haircuts; however, I would notconsider these items as special or extraordinary expenses.

Conclusion on ongoing child support [101] As indicate previously, I am reluctant to impose child support obligations in a shared parenting arrangement predicated on thepayor parent having to work significant amounts of overtime. Considering those factors set out in s. 9 (a), (

b) and (

c) of the Guidelines, Iconcluded: a. Commencing March 1, 2021, J.K.S. will pay M.M.L. $400 per month for ongoing child support for A.E.G.S. and A.J.O.S.; and b. J.K.S. and M.M.L. will share equally special or extraordinary expenses incurred for A.E.G.S. and A.J.O.S.’s as those expensesare defined in s. 7 of the Guidelines. [102] If J.K.S. and M.M.L. cannot agree on what qualifies as an extra or extraordinary expense, either can apply to the Court for adetermination of the issue on reasonable notice to the other. Issue # 2: Is M.M.L. entitled to an award of retroactive child support?

Jurisdiction [103] M.M.L. seeks retroactive support back to August 1, 2016, which is roughly three years prior to her Application to Obtain an Orderfiled July 29, 2019, and 4.5 years before the date of this judgment. [104]

Section 152 of the Family Law Act gives the Court jurisdiction to change, suspend, or terminate a child support order, and to do iteither prospectively or retroactively as it sees fit. In this case, there was no court orders or written agreements, only a simpleunderstanding between M.M.L. and J.K.S. that, given their shared parenting arrangement, neither parent would pay the other ongoingchild support. This understanding is best characterized as an “oral agreement” that was never reduced to writing. I do not know M.M.L.and J.K.S.’ financial circumstances at the time of separation.

They had no agreement to share updated financial information or revisitchild support if either of their financial circumstances changed. [105] As set out above, s. 148(3) of the Family Law Act authorizes the court to set aside or replace all or part of an agreement respectingchild support if it deems appropriate. The threshold question is whether this Court has jurisdiction to do so retroactively. [106] The BC Supreme Court in to R.M. v. N.M., 2014 BCSC 1755 and Chutter v.

Chutter, 2016 BCSC 2407 held s.148(3) of theFamily Law Act does not authorize the court to retroactively vary a child support agreement absent a final court order. Mr. JusticeWeatherill in Isacson v. Isacson, 2014 BCSC 2351 and Mr. Justice Fitch in Megson v. Megson, 2014 BCSC 2467 found differently and make retroactive variations to child support payable under a separation agreement. In G.J.L. v. M.J.L., 2017 BCSC688 , Justice Schultes found the court does have authority under s. 148(3) of the Family Law Act to vary child support payableunder an agreement with retroactive effect.

Justice Schultes adopted Judge Keyes’ decision in T.L.A. v. M.R., 2015 BCPC 151 as did Judge J.P. MacCarthy in S.J.D. v. S.A.G., 2015 BCPC 370 . Justice Schultes and Judge Keyes determined that because heconcluded the claimant R.M. had not met the burden of justifying a variation pursuant to s. 148(3), Justice Armstrong’s additionalconclusion that s. 148(3) could not operate retroactively was obiter dicta. [107] More recently the Provincial Court in M.E.L. v. S.D.L., 2018 BCPC 156 , C.A.O. v.

P.J.O. 2017 BCPC 361, H.G. v.M.K., 2019 BCPC 216 and LEH v YMT, 2019 BCPC 146 , determined the Court does have authority to vary aseparation agreement retroactively. [108] In Galpin v. Galpin, 2018 BCSC 1572, Justice Riley considered an appeal from a Provincial Court Judge’s order for child support

on the basis it failed to take into consideration the parties’ shared parenting agreement that neither was obliged to pay child support.Justice Riley states: [31] However, while the terms of a written agreement are relevant under s. 148(3), s. 150(2)(b), and s. 150(3) of the Family Law Act , noagreement can bind the court in regards to child support. An agreement on child support is relevant in that it indicates the intention of theparties at time of the agreement: Worsfold v. Worsfold, 2018 BCSC 45at para. 37-38.

Indeed, the agreement may be given “considerableweight”, particularly where altering the child support arrangements might upset the “equilibrium” of the agreement as a whole: Chutterv. Chutter, 2016 BCSC 2407 at para. 90. However, spouses cannot contract out of their child support obligations, and the Court maysometimes be called upon to consider the extent to which the agreement aligns with or departs from the obligation each spouse wouldotherwise have under the Guidelines. See G.J.L. v. M.J.L., 2017 BCSC 688at para. 22; Worsfold v.

Worsfold at para. 34-38. [32] The case law indicates that a change in circumstance is not a pre-requisite to revisiting the terms of a written agreement regardingchild support. See Worsfold at para. 35. However, a change in circumstance since entering the agreement would be another basis forreconsidering child support obligations.

I find support for this conclusion in s. 148(3) and s. 150(1) of the Family Law Act, and in s. 14(a)of the Guidelines, under which a change in spousal income that could result in a different calculation of the amount of child support is abasis for revisiting either a child support order, or an agreement filed with the court pursuant to s. 148(2) of the Family Law Act . Sincethe income of both parties had changed after the written agreement, there were grounds to revisit their respective child supportobligations. [33] In conclusion, I do not accept Mr.

Galpin’s argument that the trial judge erred in failing to consider whether there was a basis to ruleon the child support issue. The parties asked the trial judge to revisit the child support arrangement, and the trial judge had a legal basisfor doing so. Principles governing retroactivity [109] In Michel v.

Graydon, 2020 SCC 24 (“Michel”) the Supreme Court of Canada confirmed and amplified the followingcore principles and policy objectives governing child support espoused in D.B.S.: a. the purpose and promise of child support is to protect the financial entitlements due to children by their parents: Michel, para.28; b. child support obligations arise upon a child’s birth or the separation of their parents: Michel, para. 41; c. child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of therelationship of the child’s parents: D.B.S. para. 38; Michel, para 61; d. child support should, as much as possible, provide children with the same standard of living they enjoyed when their parentswere together: D.B.S. para. 38; Michel, para 31; e. the child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities oflife” D.B.S. para. 38-45; Michel, para. 10; f. today, children are viewed as individuals who, as full rights bearers and members of a group made vulnerable by dependency,age, and need, merit society’s full protection.

This includes a call on the real resources of their parents, translated into a right to childsupport based on their parents’ actual incomes: Michel, para. 77; g. retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to paysupport commensurate with their income: D.B.S. para. 2; Michel, para 25, 61; h. retroactive awards are not confined to “exceptional circumstances” or “rare cases”: D.B.S. para. 5; Michel, para 61. “[T]here isnothing exceptional about judicial relief from the miserable consequences that can flow from a payor’s indifference to their child supportobligations”: Michel, para. 31; i. retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income:D.B.S. para. 107; Michel, para. 32.

At any given point in time the payor has knowledge of what their support obligation should be, whilethe recipient parent may not: D.B.S. para. 56; Michel, para 32; j. retroactive awards enforce pre-existing, free-standing obligations and recover monies owed: Michel, para. 41; k. the obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against thepayor parent to enforce it because child support is a continued obligation owed independently of any statute or court order: Michel, para.79; l. in determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must bebalanced with the need for “fairness and . . . flexibility”: D.B.S. para. 133; Michel, para. 62; m. the neglect or refusal to pay child support is strongly linked to child poverty and female poverty: Michel, paras. 41, 73, 97, 100; n. the principles of child support favour the

interpretation that is favourable to children such that the best interest of the child is atthe heart of any interpretive exercise: Michel, para. 102; o. today, parents know they are liable to pay support in accordance with the Guidelines and their actual income and they will beheld accountable for underpayment, even if enforcement of their obligations may not always be automatic: Michel, para. 130; p. child support is a debt that is owed from the moment it ought to have accrued — no matter the length of the delay Michel,

paras. 79, 131 ; and q. retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so: Michel para. 132 . [ 110 ] In D.B.S. v.

S.R.G . , the Supreme Court set out the factors a Court should consider in dealing with retroactive applications: 1. whether the recipient spouse has a reasonable excuse for failing to seek support earlier; 2. the conduct of the payor spouse, and whether the payor engaged in “blameworthy conduct”; 3. the circumstances of the child; and 4. any hardship occasioned by a retroactive award. [ 111 ] None of these factors take precedence or is determinative. “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”: D.B.S. , para. 99 .

In Michel , Supreme Court confirmed (at para. 108) that once judges must first determine if there is an outstanding debt for child support, and then consider what would be a fair award under the D.B.S. factors. [ 112 ] In D.B.S. (at para. 125 ) the Supreme Court of Canada decided that as a general rule, and subject to blameworthy behaviour on the part of the payor spouse, “it usually will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given.” In Michel , the Supreme Court characterized child support as a valid debt owed from the moment it ought to have accrued - a debt owed to the child that must be paid, similar to any other financial obligation: para. 78.

Payor parents cannot escape their child support obligations on technicalities or narrowly construed

interpretation of provincial legislation. Factor #1: the recipient parent’s reason for delaying the application [ 113 ] In Michel , Supreme Court Justice Martin set out in her concurring judgment (at para. 85) a host of reasons courts have accepted as justifying a delayed application for child support . This include (

a) fear of reprisal or family violence from the payor parent; (

b) prohibitive costs of litigation or fear of protracted litigation; (

c) lack of information or misinformation over the payor’s income; (

d) fear of counter-application for custody; (

e) the payor leaving the jurisdiction or recipient unable to contact the payor; (

f) illness/disabil ity of a child or the custodian; (

g) lack of emotional means; (

h) wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement; (

i) ongoing discussions in view of reconciliation, settlement negotiations, or mediation; (

j) and the deliberate delay of the application or the trial by the payor. [ 114 ] Justice Martin goes on to say at paras. 86 and 87, in part: [86] These cases bring two different notions to mind: on the one hand, impracticability and inaccessible justice; and on the other, fear and danger.

In neither case should claimants be barred from having their applications heard. . . [87] It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier.

Remember, “courts are not to be discouraged from defending the rights of children when they have the opportunity to do so” ( D.B.S. , at para. 60 ) and this requires taking into account the realities of those recipient parents for whom it is impossible, impracticable, or unsafe to apply for child support without some delay. . . [ 115 ] At para. 111, Martin J. states, “the focus should be on whether the reason provided is understandable” rather than whether the support recipient had a “reasonable excuse” for the delay.

In paragraph 113, she writes: Rather, a delay will be prejudicial only if it is deemed to be “unreasonable”, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made . . . [ 116 ] M.M.L. testified she first broached the issue of child support with J.K.S. approximately three months prior to filing her July 29, 2019 Application. She says that it was not until she became embroiled in family law proceedings with F.W.S., she became aware that child support was payable even in a shared parenting arrangement.

Although M.M.L.’s excuse does not fall into any of those categories referred to in D.B.S. , I do not consider her ignorance of the law blameworthy or arbitrary or unreasonable. [ 117 ] What is unclear to me is when M.M.L. actually learned of a parent’s obligation to pay child support in shared parenting arrangement. I do know when M.M.L.’s legal proceedings against F.W.S. commenced and whether she had legal counsel. I do not know if the cost and stress of two legal proceedings against two different fathers was a factor in her reluctance to pursue J.K.S. for child support earlier.

M.M.L. states in her application J.K.S. had never provided to her with his financial information to properly determine child support.” I understand from her evidence at trial, M.M.L. first asked him for this information in the late spring of 2019. [ 118 ] A generous appreciation of the social context leads me to conclude M.M.L.’s reason for not pursuing child support sooner is “understandable” and therefore, not unreasonable.

Factor # 2: conduct of the payor parent [ 119 ] In D.B.S. , the Supreme Court purposely provided an expansive definition of “b lameworthy conduct” to mean, “anything that privileges the payor parent’s own interests over [their] children’s right to an appropriate amount of support ( D.B.S., para.106). [ 120 ] In Michel , at para. 34 , the Supreme Court held that a payor’s failure to disclose actual income of which they have knowledge is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty.

In assessing blameworthiness, the primary focus is not on the payor’s intent, but on payor’s actions and their consequences. Martin J. states, at para. 118, “Today, the payor’s

subjective intention is rarely relevant — the real question is whether the payor’s conduct had the effect of privileging [their] interests over the child’s right to support” . . . [ 121 ] In Michel , the Supreme Court emphasizes at para. 119 that blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support.

Blameworthy conduct, if present, weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. [ 122 ] In the circumstances of this case, where the parties shared equal parenting time with their children and shared equally the cost of “extras”, I cannot say J.K.S. engaged in blameworthy conduct. I do not know whether M.M.L. and J.K.S.’ incomes were similar when they first separated, and if so, when they became so disparate.

I do know that M.M.L. has been working at [omitted for publication] for 16 years and J.K.S. has worked for [omitted for publication] for seven or eight years and has been a foreman for the past six years. [ 123 ] I conclude J.K.S.’ conduct only became blameworthy when he refused M.M.L.’s request to revisit the issue of child support with the Family Justice Counsellor three months prior to filing her July 29, 2019 Application. Factor # 3: circumstances of the L. & S.

Children [ 124 ] In Michel , at para. 120 , Martin J., comments that the Guidelines “heralded a shift from the conception of need as the primary motivator for child support to an understanding of support as the child’s entitlement . . . ” Nevertheless, a child’s needs may still be relevant in awarding and calculating retroactive child support. Where the child has suffered deprivation or hardship or needs funds at the time of the hearing, this weighs in favour not only of an award but also of extending the temporal reach of the award. [ 125 ] The s. 211 report indicates both A.E.G.S. and A.J.O.S. suffer from ADHD.

I Ms. Toews’ s. 211 report does not suggest A.E.G.S. and A.J.O.S.’s standard of living at M.M.L.’s residence is lower than their standard of living at J.K.S.’ residence. If anything, the converse is true, because of B.S.W.’s higher income and stable of recreational vehicles, A.E.G.S. and A.J.O.S. have outdoor recreation opportunities at their mother’s residence they do not have at their father’s residence. I suspect, however, the L. & S.

Children’s living standard at their father’s residence is impacted by J.K.S.’ voluntary financial commitments to C.S. and her three children. [ 126 ] In Michel , at para. 123 , Martin J. points out it is the recipient parent who absorbs the hardship created by the dearth of child support [citations omitted]: [123] Additionally, there are plenty of circumstances where a parent will absorb the hardship that

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