L.A.F. v. C.P.M, 2015 BCSC 281

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.A.F. v. C.P.M, 2015 BCSC 281 Date: 20150225 Docket: 13684 Registry: Smithers Between: L.A.F. Claimant And C.P.M. Respondent Before: The Honourable Madam Justice Koenigsberg Reasons for Judgment (In Chambers) Counsel for the Claimant: T.E. Hudson Counsel for the Respondent: M.J. Mazurek Place and Date of Trial: Smithers, B.C. November 24-26 & 28, 2014 December 5, 2014 Place and Date of Judgment: Smithers, B.C.

February 25, 2015 [ 1 ] These reasons address the following issues remaining from the application brought by the claimant and heard November 24-25 & 28, 2014 and December 5, 2014. I released Oral Reasons for Judgment on December 16, 2014 dealing solely with the issue of on- going child support. Those reasons will be appended to these reasons as the factual basis for that decision significantly overlaps these reasons. [ 2 ] The outstanding issues are retroactive child support; retroactive extraordinary expenses and ongoing extraordinary expenses.

Retroactive Child Support [ 3 ] The claimant has raised the issue of arrears versus retroactivity. While valid arguments have been made as to why this is a matter of arrears rather than retroactivity, in my view, the fact that there has been a child support order in place since 2007, the respondent has complied with it and the claimant did not seek an increase in child support nor an enforcement order for non-disclosure of yearly income until December 2012 -- this is more appropriately classified as an issue of retroactivity. I note that the Supreme Court of Canada majority in D.B.S. v. S.R.G.; L.J.W. v.

T.A.R.; Henry v. Henry; Hiemstra v.

Hiemstra , 2006 SCC 37 , the leading case on retroactivity of child support, characterized the situation most analogous to this one in this way -- “these appeals do not concern the non- payment of arrears; they concern the enforceability and quantification of support that was neither paid nor claimed when it was supposedly due.” The end result in this case would not be significantly different. [ 4 ] Both counsel relied on the D.B.S. , decision for basic principles to be considered in determining whether a retroactive child support award is appropriate and the factors to consider in determining the number of years back a court should go in making such an award. [ 5 ] As set out in D.B.S. , the four factors to be considered are: a. any delay in bringing the application for retroactive child support; b. the conduct of the payor parent, including if they were following a court order; c. the circumstances of the children; and d. if any hardship would be caused by a retroactive award.

Overview and Observations on Credibility/Reliability

[ 6 ] The law in relation to awards of retroactive child support, following the majority decision in D.B.S. , has been characterized by Mr. Philip Epstein at p. 13 of the Supreme Court of Canada decision as “balanced and flexible and, admittedly, complicated approach”; and at p. 11, “Bastarache J., speaking for the four-person majority embarks upon a somewhat complex formula which lower courts are going to have to try to interpret and apply.”, (Mr. Epstein’s discussion is included in the Supreme Court of Canada reported decision just after the head note). I agree with Mr. Epstein and I will endeavor to apply this complex formula. [ 7 ] Thus, this decision embarks upon a journey of

interpretation of the considerations set out in D.B.S. , in the context of a lengthy, high conflict and costly proceeding. The parties have three children who at the time of the first trial of this family case in 2005 were 5, 3 and 2. And which children despite an already high conflict parental relationship seemed to be fine. The children are now 15, 14 and 12 and are not so fine.

The eldest daughter is struggling with what might otherwise be referred to as normal adolescent angst but which is heightened by the ongoing conflict and litigation between her parents and a disclosure she made in January 2013 of inappropriate sexual touching by her father when she was 6 or 7 years of age. [ 8 ] This disclosure prompted a subsequent RCMP investigation resulting in no charges; an inconclusive s. 211 report (the cost of which was in excess of $30,000 paid up front by the claimant; and an arguably incomplete sexual deviancy report cost of $3,000 paid for by the respondent).

In addition there have been some further disclosures by the eldest daughter, first online to a “friend” and now apparently to a therapist, all still under further investigation. The respondent is apparently submitting to a more complete sexual deviancy investigation and there is to be an updated s. 211 report. [ 9 ] The upshot of the disclosure by the parties’ eldest child is that there has been no access with any of the children with their father in over a year. As of this past fall all three children said, during interviews with the s. 211 psychologist, they would like to have access with their father.

The claimant takes significant issue with both the methodology used in the s. 211 report in particular in the sexual deviancy section, and some of its conclusions. [ 10 ] The high conflict nature of the parties’ relationship can be reasonably assessed through the lens of a finding of contempt against the father on December 20, 2013 for his failure to observe boundaries in relation to abusive communication to, and harassment of the mother and by persistent intrusion on her privacy and space when the children were with her. [ 11 ] Finally, one further matter likely has a bearing in general on findings of credibility and reliability -- there has been, beginning in 2005, a very large disparity in the parties financial ability to provide for the children.

The claimant began a romantic relationship with her current spouse, Mr. F., sometime prior to the first trial in the spring of 2005. In his reasons for judgment the trial judge made mention of Mr. F. being primarily a resident and working in the United Kingdom and having an income of $500,000 per year. The claimant and Mr. F. continued the relationship after 2005 with Mr. F. eventually establishing a home in Smithers, British Columbia for himself, the claimant and the three children. The couple then had two more children and although Mr.

F.’s income has apparently decreased to approximately $250,000 a year he still works exclusively in the UK. The claimant and Mr. F. married in 2012 and the evidence is consistent with a stable home life for all of the five children. [ 12 ] It is obvious that throughout this very difficult nine-year period of high conflict between the parents of these three children, financially these children have had a lifestyle consistent with Mr. F.’s high income with a lovely home, a stay-at-home mom, regular vacations and travel abroad as well as several extracurricular activities including music lessons and dance.

By all accounts, all three children are very musically talented. [ 13 ] There are two factors which have a bearing on the Court’s decision in this case (neither of which is determinative of a conclusion on any of the factors to be considered as set out in D.B.S. ).

First, since the eldest child’s disclosure of sexual impropriety this Court ordered in January 2014 that all access to all of the children be suspended until evidence could be presented that none of these children would be at risk -- that order remains in place pending the completion of further sexual deviancy testing of the respondent and the completion of a further s. 211 report and views of the children report. [ 14 ] Secondly, and from a financial point of view most relevant -- the s. 211 report already completed cost in excess of $30,000 and was paid for upfront by the claimant.

The respondent has paid $3,000 for the sexual deviancy report, which arguably was not complete. These additional s. 211 and sexual deviancy reports will no doubt cost more thousands of dollars. [ 15 ] The litigation costs are no doubt considerable to date and the respondent has several awards of costs made against him, thus far, none made payable forthwith. [ 16 ] There is evidence before this Court that this litigation, spanning nine years, has been primarily funded by Mr. F. as the sole support of the claimant and the five children in relation to which Mr. F. is either the step-parent or biological parent.

He funded the s. 211 report and ongoing therapy for the children and the claimant. With the minimal child support paid by the respondent -- to date $350 per month since 2007 -- clearly Mr. F. has funded almost all of the children’s lifestyle. [ 17 ] Also, there is uncontradicted evidence before this Court, which I accept, that Mr. F. is currently working more and has fewer blocks of time he can spend with his family here in Smithers as a result of the need to fund this litigation particularly issues relating to risk to the children.

I also accept that he has had to make use of some of his capital to fund this ongoing litigation. It is suggested and I accept that this financial burden is having an adverse effect on all of the children in the household as the claimant operates as a single parent more of the time now.

I consider this circumstance when determining the effect on the children of the wholly inadequate child support provided by the respondent since 2007. [ 18 ] Finally, this Court considers the respondent’s credibility and reliability as woefully inadequate in relation to financial disclosure and his reporting to the Court on many matters relating to who did what to whom in the general conflict about parenting between the parties.

This has very specific consequences in relation to awarding a retroactive award of child support, but the more general consequences are that wherever there is a conflict between the parties in relation to a specific matter, this Court can only accept the respondent’s version if it is corroborated by independent documentation. [ 19 ] This is not to say that the claimant has never been found to be wrong or inaccurate in her version of what has or is going on

between the parties. The Court is mindful as well that at this point in this nine-year saga she has a heightened sense of suspicion and danger of and from the respondent in relation to herself and parenting. However, she has become assiduous in providing corroboration for what she has sworn to and overall I find she is very credible and reliable as a reporter of events and financial circumstances. This necessity, on the part of the claimant to document her version of matters in the face of mostly bald denials by the respondent has added greatly to the cost of this litigation.

New Evidence [ 20 ] In the Court’s December 16, 2014 reasons on ongoing child support quantification I referred to the lack of evidence to support the respondent’s assertions of undue hardship. I will repeat some of what I said in those oral reasons (which are appended to these written reasons) but the test for retroactivity of child support is hardship not necessarily undue.

Thus, I repeat and slightly elaborate that evidence for greater clarity of its application to the retroactivity test. [ 21 ] At the close of the hearing the issue of the lack evidence to support the respondent’s submissions of undue hardship or hardship in relation to any award of child support, retroactive child support and extraordinary expenses was canvassed. The Court was concerned that allegations that the respondent had three vehicles at his disposal, a boat, significant renovations to the home etc., had been made and either not responded to at all or responded to generally with no documentation.

Nevertheless, the respondent insisted to the Court through counsel, and in his affidavits, that he would experience undue hardship or hardship if he had to pay the Federal Child Support Guidelines , SOR/9-/175, child support, child support arrears or extraordinary expense arrears. Particularly the statement was made by counsel for the respondent that documentation was available to support that the respondent could not borrow any further funds from his Credit Union because there was insufficient equity in his home.

Counsel took responsibility for the failure of the respondent to include any such documentation in support of these assertions of debt limits and assets and liabilities and stated that documentation was available. [ 22 ] Over strong objections of the claimant I allowed the respondent to provide any such documentation without editorial comment to contradict repeated assertions by the claimant that he appeared to own or have at his disposal three vehicles, a boat, expensive renovations to his home etc. and that he had reached his debt limit for borrowing.

I also allowed any reply to be filed to this additional evidence. The respondent produced an affidavit December 8, 2014 attaching some documentation relating to his financial affairs.

On behalf of the claimant her counsel provided a four page letter objecting again to the Court’s receipt of these documents and pointing out several deficiencies and frailties in such documentation going to the weight the Court could give this evidence in coming to any conclusion regarding hardship. [ 23 ] Having considered the evidence proferred, the circumstances surrounding its coming forward and the claimant’s concerns as set out above, I conclude that no case for real hardship has been made out.

Just as one example -- I note that the appraisal of the respondent’s home is dated April 17, 2012, more than two and one half years prior to the hearing and before some of the substantial renovations to the home were complete. Thus, it is not clear that there is not more equity in the home at this time.

I refer as well, to other examples of inadequacy in the new evidence at paras. 19-23 of the appended Reasons for Judgment. [ 24 ] Unfortunately, as has been repeatedly demonstrated by the claimant, the respondent’s credibility is such that, absent clear unequivocal documentation of contested financial matters the Court cannot put reliance on what the respondent asserts. There was no unequivocal evidence produced undermining the assertions of assets held by the respondent.

Including no unequivocal evidence that the respondent does not either own or have the benefit of the three vehicles. [ 25 ] I will refer to this lack of credibility when discussing, the applicability of hardship versus undue hardship in the analysis of the relevant factors for an award of retroactivity below. [ 26 ] I make findings relevant to the issue of applicability and quantum of retroactive child support and extraordinary expenses in the following discussion of the four factors summarized above.

Reasonableness of Delay in Seeking Support [ 27 ] There has been delay in bringing court proceedings from 2008 to 2012 -- over four years. I specifically exclude 2007 as a consent order was entered into by the parties in 2007 reducing child support. The claimant says that the respondent’s conduct throughout 2007-2012 was marked by harassing conduct, intimidation and pushing the boundaries of court orders intended to control the conflict between them to the point of contempt of court orders.

This Court found that the respondent, in those years and since, has been in contempt of various court orders and required that he purge his contempt, which he did. The claimant states she was afraid to bring on such applications because she did not want to deal with even more harassment.

I accept and find that the claimant had a justifiable fear of a very negative reaction from the respondent if she pressed him for more child support. [ 28 ] The respondent raised as an issue at an earlier hearing that he should be excused from a finding of financial non-disclosure because the claimant had not provided yearly financial disclosure. I find that the claimant did provide her income tax returns to the respondent each year and request his information and remind him that he had not complied with court orders in that regard.

This is one more instance of the problem of relying on bald assertions of the respondent. [ 29 ] I do note that at the same time the claimant’s partner Mr. F. earned and earns a very substantial income and the claimant and the parties’ children benefitted from the lifestyle Mr. F provided. [ 30 ] By pointing this out I do not intend to be understood that Mr. F.’s generosity and income earning ability relieved or now relieves the respondent from providing child support for his children pursuant to the Guidelines .

However, there has been no deprivation of anything necessary for a beneficial lifestyle for these children -- a factor I will discuss below in relation to the third factor. However, I think it unlikely that if the claimant had been a single mother working at a relatively low paying job as a health care worker and jointly raising three daughters with the respondent that she would have allowed the respondent to shirk his child support obligation whether somewhat fearful or not.

[ 31 ] Thus, while the delay in most respects was not unreasonable there is an inference which can be made that the respondent likely believed and not unreasonably that the claimant did not need more child support for the proper raising of the children. Considering all of the evidence this factor becomes, on balance, in favor of the application of retroactivity but is somewhat qualified in weight. Conduct of Payor [ 32 ] It is the claimant’s position that the respondent is guilty of blameworthy conduct as discussed in D.B.S. , which is a strong factor militating in favor of an award of retroactivity.

The claimant primarily relies on two factors that the Court should consider in determining whether an award of retroactive child support should be made and how far back in time the award should go beyond three years from the time of effective notice. [ 33 ] Blameworthy conduct includes failure to provide timely updated financial information in order to avoid the full extent of support obligations.

In addition, blameworthy conduct also includes conducting oneself so as to give rise to fear on the payee’s part that seeking more child support will result in the payor reacting vindictively. [ 34 ] On the evidence set out above while the respondent’s conduct doesn’t rise to the highest level of blameworthy, it certainly is encompassed in the definition of blameworthy conduct as discussed in D.B.S. , and Bobyn v.

Bobyn , 2014 BCSC 1441 . [ 35 ] The respondent has been advised by at least three judges of this Court over the course of litigation from 2005 to 2013 of his obligations to provide updated financial information on an ongoing basis. Further, he was advised what kind of evidence he would need to provide to meet a finding of undue hardship, as far back as his 2006 unsuccessful application to reduce arrears of child support. He has not complied with full disclosure to date -- albeit at least as of the fall of 2013 he provided all of his income tax returns.

The respondent has never provided the Court with any reason why he could not or did not comply with this obligation -- leaving, in the circumstances, the only reasonable inference -- he did not wish to provide evidence of his failure to meet his obligation to his children of paying proper child support. [ 36 ] I find that in this case, effective notice of child support arrears was the December 18, 2012 application brought by the claimant.

I note that in that application child support was asked to be assessed going back to 2009 or approximately three years, while the application itself is not determinative it is a consideration. Circumstances of the Children [ 37 ] Clearly, as already discussed, despite the respondent’s failure to provide proper child support for his three young children -- as a result of their mother’s means through her partner the children’s step-parent Mr. F.’s means and generosity the children have benefitted from a very positive lifestyle. Thus, although Mr.

F.’s making his means available has been unstinting, the respondent’s obligations to his children remain. This circumstance militates against a significant retroactive award. Hardship [ 38 ] As set out above and discussed in the December 16, 2014 oral reasons, the respondent’s intransigent failure to provide any financial disclosure between 2005 and 2012 and incomplete financial disclosure in 2013, this Court cannot place weight on unsubstantiated statements of hardship as set out in the respondent’s affidavits.

He has sworn that he has had to borrow monies from friends and family and has had to sell his possessions.

These assertions are made without any documentation, and when given an opportunity to provide substantiation of an inability to borrow money in order to pay a retroactive award if made -- the evidence was sparse and inadequate -- some of the reasons for this are set out above and in the appended Reasons for Judgment for ongoing child support. [ 39 ] Thus, this Court is left to infer hardship from incomplete documentation that the respondent has earned or earns somewhere between $60,000 and $70,000 a year and has no other sources of income.

Yet, he has not explained how he could, given the expenses he states he has (but again documentation is inadequate) leaves him a surplus of only $20 a month when he has had the ability to provide, for instance, travel and jewelry for his new wife. It must be said that the fact that his new wife is from Ukraine and cannot yet work in Canada and that her mother also needs to be sponsored is not in the Court’s view, a matter for negative comment. Rather, some of these costs have apparently already been incurred.

In relation to his alleged borrowed funds from friends and family and need to sell possessions of which there has been no supporting evidence, the respondent shows no debt other than his mortgage (or line of credit).

The law is clear and has been made clear to the respondent for over six years -- a finding of hardship can only be made on the basis of clear, cogent unequivocal evidence that providing Guidelines child support will cause hardship. [ 40 ] To determine the number of years of retroactivity the Court must balance all of the evidence referred to above and apply the wide discretion conferred by the case law.

The claimant asserts that the Court should go back to 2007, primarily on the basis that the respondent obtained a consent court order for a significant reduction in the child support ordered in 2005 on the basis of inaccurately stated income for that year and his ongoing failure to provide financial disclosure.

However, the Court must be mindful that the claimant had legal counsel in 2009 and both her counsel and the claimant knew they had inadequate or no financial disclosure and for likely practical reasons decided to accept the income amount admitted to by the respondent at the time and consented to the reduction. As well, I have in mind two other factors of limited but some weight. [ 41 ] The first factor concerns the application of s. 9 of the Guidelines.

The 2005 trial judgment determined that the respondent had the children at least 40% of the time and thus set child support pursuant to s. 9 of the Guidelines . (See the discussion of this in the appended ongoing child support reasons at paras. 2-5). [ 42 ] However, in 2007, it was unclear whether the respondent would consistently fail to have the children 40% of the time. Between 2005 and 2008, the respondent’s work

schedule and the ongoing conflict between the parents as well as the children’s lifestyle with their father both by circumstance and the children’s wishes from time to time resulted in the father having the children consistently about 30% of the time. Thus, the s. 9 reduction in child support might still have been available to the respondent in 2007.

[ 43 ] The second factor I consider is the fact the children were experiencing a financially beneficial lifestyle living with their mother and step-father. In other words, the children lost nothing in the way of support despite the fact that their father was not complying with his obligation to provide adequate child support nor did they suffer from spending less time with their father. [ 44 ] I bear in mind that there is a significant degree of difference between undue hardship and hardship.

In balancing all of the aforementioned evidence and lack of reliability in the evidence put forward by the respondent, I find he has failed to meet even the lower standard of hardship which would allow this Court to forgive all retroactivity as contended for by the respondent. [ 45 ] As already noted, the December 2012 application for retroactive child support requested that the award go back to 2009 or effectively three years from the date of the application. [ 46 ] Thus, balancing the evidence and findings in relation to all of the factors set out in D.B.S. , a just result dictates an award back to January 1, 2010; or three years from the bringing of the application and the finding of effective notice.

The calculation of this award is simply to add the Guidelines amount against the income as set out in the submissions of the claimant. This should include the amount owing for 2014 after deduction of the amount paid in 2014. Extraordinary Expenses and Retroactivity [ 47 ] It is agreed that there has been no order for payment of extraordinary expenses and no request or demand for such an order by the claimant until December 2012. [ 48 ]

Section 7 of the Guidelines reads as follows: 7.

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

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

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(

d) and ( f ), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [ 49 ] The very significant disparity in income available to fund a family lifestyle between the claimant and the respondent has remained stable since approximately 2007 and 2008.

The difference has been that the claimant has had available to her for both herself and the parties’ three children and two more children of the marriage the income of her spouse at approximately $250,000 Canadian a year and the respondent’s income as far as it can be clearly ascertained has been consistently between $60,000 and $70,000 a year.

[50] While the disparity has little or no relevance in establishing the Guidelines amount for child support payable by the respondentit does have relevance in determining a retroactive child support award as already discussed and significant relevance to both any awardof extraordinary expenses and retroactivity of extraordinary expenses. [51] I set out the principles of law to be applied in determining any award of extraordinary expenses and retroactive extraordinaryexpenses. [52] The guiding principle for awarding extraordinary expenses under s. 7 of the Guidelines is that each parent pays in proportion totheir respective income.

However, the Court retains discretion to award a different proportion based on the financial circumstances of thepayor and payee. [53] As well, an award for an extraordinary expense can be denied or the proportion paid can be adjusted based on the means of thepayor and payee: see Ebrahim v. Ebrahim (1997), 73 A.C.W.S. (3d) 812 at paras. 19-21 (B.C.S.C.). In Ebrahim, the husband's incomewas substantially less than his ex- wife's but the means of the husband were adjusted by the Court to factor in contributions he wasreceiving from his family.

This approach is consistent with the British Columbia Court of Appeal decision, McLaughlin v.

McLaughlin(1998), (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.), discussing the reasonableness of extraordinary expenses JusticeProwse, writing for the Court, held at para. 48: [48] … The question of reasonableness involved examining the "means" of the parties, taking into account the reality of their separatestatus and such other factors as their … capital, income distribution, debt load, third party resources which impact upon a parent's ability to pay, access costs, obligations topay spousal or other child support orders, spousal support received and any other relevant factors … … [54] In Baum v.

Baum, 2000 BCSC 1835, Justice Martinson expressed the notion that the means of the parties under s.7 of theGuidelines should be interpreted liberally: [9] Section 7(1) of the Guidelines does however give the court a discretion. It requires the court to consider the means of the parties,not just their income. The word "means" should be interpreted broadly to include not just the income of the spouse, but other sources ofrevenue available to that spouse.

The court can look at the economic wellbeing of the spouses and this includes a consideration of familyincome. [10] Section 7(2) does say that a guiding principle is that the expense is shared by the spouses in proportion to their respectiveincomes after deducting from the expense, the contribution, if any, from the child. However, the mandatory provisions of s. 7(1) mustprevail when there is a conflict. [55] Baum has often been cited by courts in this province when assessing the means of a party where they have remarried. In Pearsev.

Pearse, 2010 BCSC 117, Justice Schultes, citing Baum, held that the wife's means were to be assessed based on income available toher through her new spouse. The Court held that the wife was to pay a greater share of certain educational expenses as "her overall meansas part of her family unit is greater than the defendant's." [56] A similar conclusion was reached in Marshall v. Marshall, (BC SC), 4 R.F.L. (5th) 115 (B.C.S.C.) (Master).In that case the husband's income was higher than his ex-wife's (although he only made $25,000 a year).

However, the wife had recentlybegun cohabitating with a new spouse who earned $54,000 a year. When considering who was to pay for daycare, which was deemed anextraordinary expense, Master Powers factored in the new spouse's contribution to the means of his new wife. At para. 17 of thejudgment, Master Powers holds: 17 However, in considering the means of the spouses with regard to these extraordinary expenses one of the factors which will effectMs. Marshall's means is the contribution made to her household by her new spouse.

This is the case even though this new spouse maynot be a parent with an obligation to contribute to the support of the child. The contribution does effect Ms. Marshall's means.

As a result, the husband was ordered to pay only $70 of the $290 a month for the child's daycare. [57] The law as set out above can be applied to the circumstances extant in the instant case. [58] As documented in the voluminous affidavit record of the claimant, from time to time the claimant requested that the respondentassist with certain extraordinary expenses and his most usual response was that he could not afford to assist, but he believed the activitiesat issue would be beneficial to the children.

The claimant went ahead and enrolled the children in various activities and paid for them.There is no evidence that the decision to enroll the children in piano, violin, gymnastics and dance caused any financial hardship to theclaimant and Mr.

F. at any time. [59] The only reasonable inference to be drawn from this uncontroverted evidence is that the respondent understood that he was notobliged to contribute to the extraordinary expenses and that his lack of contribution would not deprive his children of any such benefits.As to the children’s medical/dental expenses, again any requests to assist were met with very limited success, primarily on the basis thatthe respondent could not afford to pay. [60] The claimant seeks contribution to past and ongoing extraordinary expenses on a 50/50 basis.

The respondent agrees to payingsome ongoing extraordinary expenses on a one-quarter to one-half basis. This Court has minimal information about the actual income ofMr. F. available to fund the children’s expenses. [61] On the basis of the only evidence available Mr. F. earns approximately $250,000 a year. However, he supports a household ofseven including the parties’ three children. He must commute between Smithers and the UK to do so and undoubtedly there are

significant costs of travel and accommodation to enable him to earn that income. The Court lacks basic evidence to say that a 50-50 split is not fair and there is some basis to consider that a 50-50 split is a reasonable assessment of relative available funds to contribute to extraordinary expenses. [ 62 ] The extraordinary expenses agreed to by the respondent on an ongoing basis are two extracurricular activities for each child. However, in my view one extracurricular activity should be contributed to and he should contribute to all reasonable medical and dental expenses.

Retroactivity of Extraordinary Expenses [ 63 ] The claimant seeks a retroactive contribution to extraordinary expenses. Again, there is wide discretion in making such an award. [ 64 ] Here, the evidence is consistent with the claimant allowing the respondent to believe that he was not obliged to fund the children’s extraordinary expenses. [ 65 ] Such expenses were finally sought by the December 18, 2012 application. I consider the following as the most salient factors in relation to whether to award retroactive extraordinary expenses:

a) The very large ongoing cost of past and ongoing litigation, particularly the cost of resolving the respondent’s access with his children.

b) The delay in seeking such an order which quite differently from the matter of child support, may reasonably be seen as lulling the respondent into the belief that he was not obliged to contribute. [ 66 ] Thus, an extraordinary expense award will go back only to January 1, 2013 or the effective date of notice. [ 67 ] In

summary, on the issue of ongoing extraordinary expenses and retroactive extraordinary expenses the parties will each contribute 50% of the cost of one extracurricular activity for each of the three daughters.

And all reasonable medical and dental expenses will be shared 50/50 and all extraordinary expenses must be on notice to the respondent in advance and must be the subject of discussion on how any given expense can be paid for. [ 68 ] For retroactive expenses claimed as of January 1, 2013 the respondent will pay half of all of the medical and dental expenses claimed for 2013 and 2014, and one extracurricular expense (such as music lessons) for each daughter for 2013 and 2014. [ 69 ] For 2015, and going forward, the respondent will pay for one extracurricular activity to be agreed to (such as music lessons) and 50% of all reasonably incurred medical and dental expenses.

Costs [ 70 ] The claimant seeks special costs of this application on two grounds. First, that the respondent’s conduct of consistently failing to provide full disclosure of his income and assets and liabilities is blameworthy conduct along with the conduct during the litigation resulting in a finding of contempt by the Court. [ 71 ] In addition, the cost of preparation for this application was made unduly complex and expensive because of the need to prove that the children had not resided with the respondent 40% of the time since sometime in 2007.

Not until the opening of trial of this issue was the admission made that the respondent averaged approximately 30% of time with his children after 2007. The claimant had already provided copies for the respondent and the Court of over 1,000 pages of material to prove what the respondent surely already knew. Thus, says the claimant such conduct is reprehensible and deserving of rebuke by the Court in an award of special costs. [ 72 ] As indicated there is a very wide discretion in a trial or chambers judge in awarding costs of any kind -- which discretion must be judicially exercised.

Neither sympathy nor irritation are relevant considerations. [ 73 ] The test for special costs has been set out for this Court in Leung v. Leung (1993), 77 B.C.L.R. (2d) 305 (S.C.) : 5 … “reprehensible" is a word of wide meaning. It can include conduct which is scandalous, outrageous or constitutes misbehaviour; but it also includes milder forms of misconduct. It means simply "deserving of reproof or rebuke". [ 74 ] Madam Justice Ballance held in International Hi-Tech Industries Inc. v.

FANUC Robotics Canada Ltd. , 2007 BCSC 1724 at para. 6 : [6] Special costs are punitive and are intended as well to encompass an element of deterrence: Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 311, 12 C.P.C, (3d) 319 ). The purpose of awarding them is to chastise and discourage reprehensible conduct. Accordingly, the focus of the inquiry is on the party’s blame-worthiness and intent: Bank of Credit and Commerce International (Overseas) Ltd. v.

Akbar et al , 2001 BCCA 204 , 86 B.C.L.R. (3d) 312, at para. 23 . [ 75 ] The respondent has been responsible for contemptuous behaviour in the course of this litigation and has caused unnecessary expense by his unwillingness to provide timely and full financial disclosure or to make necessary admissions in a timely way all of which arguably could fall within the definition of conduct deserving of rebuke by an order of special costs. [ 76 ] However, I am also mindful that this is not only a high conflict family matter -- it is one in which three children, despite all that has happened, said as recently as six months or so ago that they wished to resume some access with their father.

In the now long ago past, when these children were very young -- the respondent was a very caring hands-on father. He continued maintaining a quality relationship with these children over the last seven years, before the eldest daughter’s disclosure.

[ 77 ] Thus, in the context of this long and hard fought litigation, the best interest of these children must not be lost sight of. Their best interests are served, in my view, by putting in place a regime where by all of the children, as long as that is their desire, can spend safe and quality time with their father.

It is obvious that that can only happen with a continuing significant cost being borne by both parties to obtain a further s. 211, views of the children report and a full sexual deviancy assessment -- and then ongoing in at least the short term -- counselling for all concerned. [ 78 ] While the claimant has borne far more of the cost of this litigation to date including the cost of the s. 211 report and counselling for herself and the children -- the cumulative cost of this decision, ongoing child support and the costs awards mounting up to day will impose a significant financial burden on the respondent. [ 79 ] I am mindful as well that the claimant and Mr.

F. have thus far obviously acted in the best interests of their children by funding the reports and never taking the position that the children should never spend time with their father, despite his at times, verbally abusive behaviour, and the current and outstanding issue of the sexual impropriety disclosure of the eldest daughter. [ 80 ] While high conflict family cases often throw up issues of reprehensible behaviour -- there are few family cases reported where special costs have been awarded. Perhaps that is for the reason stated by Mr. Justice Truscott in Walden v.

Walden , 2012 BCSC 521 at para. 10 , “special costs which would simply inflame the family situation further.” [ 81 ] In addition I also note that degrees of special costs may not net much more in monies than party and party costs at Scale C. [ 82 ] Scale C is the highest level of party and party costs and is to be applied to cases of more than ordinary difficulty.

This case might not fall into that category but for the finding this Court has made of the consequence of the respondent’s failure to properly disclose his income; assets or debts; and his unwillingness to make timely admissions putting the claimant to unnecessary and expensive production of voluminous materials requiring counsel for the claimant to analyze and render comprehensible such material for the Court no doubt adding many hours of preparation. [ 83 ] In Friedl v. Friedl , 2010 BCSC 139 , Scale C costs were imposed on the basis of “the more than ordinary difficulty encountered by counsel for Ms.

Friedl responding to Dr. Friedl’s application and determining the questions raised by his failure to make full disclosure.” (para. 29). [ 84 ] To the extent there may be issues in determining all “allowable” disbursements, the entire actual cost to the claimant of putting in evidence the voluminous documentation relating to the late admission made of parenting time of the respondent is by definition “allowable”. “Koenigsberg J.” ATTACHMENT I IN THE SUPREME COURT OF BRITISH COLUMBIA Date: 20141216 Docket: 13684 Registry: Smithers Between: L.A.F. Claimant And C.P.M.

Respondent Before: The Honourable Madam Justice Koenigsberg Oral Reasons for Judgment re Issue of Ongoing Child Support (In Chambers) Counsel for the Claimant: T.E. Hudson Counsel for the Respondent: M.J. Mazurek Place and Date of Trial: Smithers, B.C. November 24-26 & 28, 2014 December 5, 2014

Place and Date of Judgment: Smithers, B.C. December 16, 2014 [1] THE COURT: The claimant applies to this Court for an order quantifying ongoing child support consistent with the Federal Child Support Guidelines , SOR/97-175. The respondent seeks a finding of undue hardship and corresponding reduction in child support from the Guidelines amount and/or a reduction in child support based on a s. 9 analysis of the Guidelines . [2] At the outset of this

summary trial, the respondent submitted that this Court should also consider that the 2005 order of this Court following the trial provided that he exercise access for up to 40% of the time. However, after a brief argument based on the production of what can only be described as a massive amount of documentation by the claimant, the respondent made a clear admission that he in fact, from at least 2007, had exercised access no more than 30% of the time.

Thus the submission became that s. 9 should apply because the respondent had a right of access 40% of the time. [3] The August 9, 2005 parenting time, in relation to child support, order reads as follows: 14. Upon determining, for the purposes of the Child Support Guidelines , the Defendant [C.M.’s] total annual income to be $38,000.00, and the Plaintiff [L.M.’s] total annual income to be $12,000.00; and upon determining that the Defendant has custody of the Children more than 40% of the time: a.

The Defendant shall pay to the Plaintiff child support in the amount of $534.00 per month, commencing September 1, 2005 and payable on the first day of each and every month thereafter. b. The parties shall exchange their income tax returns annually. [4] This is not an order according the respondent the right to parent his children 40% of the time.

It is an order that at that time -- August of 2005 -- the respondent was parenting the children 40% of the time. [5] The evidence before this Court is clear that choices made by the respondent sometime in 2007 resulted in his not having the children more than 30% of the time.

When this became permanent is a question addressed in relation to retroactivity of child support. [6] Thus, there is no merit in the submission that s. 9 was and is triggered by an order giving a right of access. [7] The respondent submits that once access is reinstated and the relationship between the three daughters and their father is normalized, he would request that they spend at least if not more than 40% of their time with him and thus this order should be considered interim. [8] Child support orders can always be varied by application based on a significant and long-lasting change of circumstances.

There is no need to make this an interim order.

Significant changes can include changes in amount of time spent with a parent over time or significant changes in the financial ability of the payor to pay the ordered amount, among others. [9] I note in this case further or different financial information than that currently before the Court which could have been provided in a timely way before this order was made would not constitute a change of circumstances. [10] In the result there is no basis to apply s. 9 of the Guidelines in furtherance of a reduction in the guideline amount. [11] I will now deal with undue hardship. [12] There are two specific issues to consider in analyzing the evidence and the application of s. 10 of the Guidelines so as to reduce the child support guideline amount.

First, has the respondent met the test that he will suffer undue hardship if the Guidelines amount is awarded?

Section 10 provides as follows: Undue hardship 10.

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: … (

b) the spouse has unusually high expenses in relation to exercising access to a child. … [13] I note that this is not, of course, exclusive and standards of living must be considered. [14] The respondent submits that he has already had to borrow money and sell possessions in order to meet his obligations to his children. His written submissions at para. 17 set out his circumstances, wherein he states: 17. [He] has had to sell off assets, re-mortgage his house, borrow from friends and family, and scrimp and save where possible. [He]

has recently had to undertake the support of his wife and mother-in-law, who are unable to work in Canada. His expenses to see his children have increased in 2014, following the suspension of his access to the girls. The reference for this submission is affidavit #12 of the respondent, paras. 5, 6, 10, 11 and 12. I reviewed all of that affidavit evidence. [15] In his affidavit #12, para. 10, he sets out his expenses. He shows no debt other than his mortgage payment and after deducting $1,066 per month in child support, just under the Guidelines amount for 2013 or 2014, he has $20 left over.

At the hearing of this matter, I noted that the Court had no actual evidence from the respondent to support the statements of hardship as summarized or submitted in para. 17; in particular, nothing in relation to debts or monies borrowed from other persons, nothing about selling possessions and no documentary evidence in relation to the appraisal of his home or other outstanding debt. [16] Over strong protestations from counsel for the claimant, I allowed the respondent to provide any further factual evidence, such as statements from the bank, loan agreements, etc., or appraisals of his home which would have allowed the Court to do more than assume that he has equity in his home to allow further debt. [17] Allegations were made in earlier affidavits from the claimant that any debt, including a remortgage, could have been to pay for substantial remodelling of the respondent's home, including all new appliances in his kitchen and that the respondent has at his disposal, three vehicles, not just one; that according to her children he has purchased two diamond rings for his wife and has purchased a boat.

The respondent did not deny in any affidavit that these allegations made by the claimant were untrue. [18] I allowed the respondent to provide the Court with further factual evidence and the claimant to factually respond.

I allowed this for one reason only: because the respondent's counsel took the blame and stated to the Court that it was his decision not to include more evidence, but that such evidence was, in fact, available and could have been included. [19] The respondent has provided an appraisal of his home, a mortgage document, a loan document along with a letter from the Credit Union that they would be unprepared to loan further monies on the outstanding equity of his home.

There is other documentation such as Insurance Corporation of British Columbia car insurance and I would simply note that none of the information provided or documentation provided is conclusive of the conclusions that the respondent would ask the Court to draw. [20] I do not intend to go through all of this new material in these reasons, but it is still inadequate to allow the Court to draw any conclusions that there is undue hardship based on those documents in the sense meant in the case law. [21] I refer to a couple of examples to illustrate the overall inadequacy of the evidence to meet the high threshold test for undue hardship. [22] In terms of the information provided regarding the respondent's home appraisal and mortgage and loan documentation, I note the following. [23] The appraisal is 2.5 years old.

It was made before renovations were complete and prior to the new kitchen being completed. There is no evidence, other than a bald statement in the respondent’s affidavit that the remortgaging of his house, was necessary in order to pay for child support costs or access costs. In this case access costs are defined by the respondent as coming to Court to attempt to regain access and paying for a sexual deviancy report.

In other words, there is still no unequivocal evidence that the remortgaging of his home and attendant loan were for anything other than the cost of remodelling his home, including kitchen appliances, diamond rings, costs associated with travel for and with his wife and mother-in-law, or a boat. [24] This topic cannot be left without noting that the respondent has complained about what to him seemed to be relentless demands for production of documentation for any and all matters relating to his finances, which relentlessness seems to him to be an unjustifiable lack of trust on the part of the claimant and her counsel. [25] Unfortunately, the respondent has earned that distrust, at least from 2008 on.

He has never to this date fully complied with his obligation to produce his tax returns, including tax assessments as well as reassessments, despite several references to the need for yearly full financial disclosure and several court appearances beginning in 2005. He persists in saying to the claimant and then this Court that he has complied with disclosure requirements when the evidence is to the contrary or that the claimant has not met her obligations to provide her financial information yearly.

However, the claimant has been able to document that, in fact, every year she did send the respondent her tax return and, with them, reminded him that she had not received any such documentation from him. [26] Finally, the claimant, having brought on an application for child support and arrears or retroactive support in December of 2012 asking for such information going back to 2009. The respondent provided his tax returns, up to and including 2013, in the fall of 2013.

There is some reference to some documents having been provided earlier in 2013, but this is unclear. [27] In 2007, the claimant consented to a reduction in child support to $350 per month based on the respondent's assertion that his income for the year was $24,000. He did not provide financial documentation at the time or subsequently. What is clear now from the late production, without clear assessment or reassessment documentation, is that the respondent's income for 2007 was in fact $35,405 plus some undisclosed rental income.

The claimant did enter into a consent order for this reduction in child support and she had counsel and the knowledge that the respondent had not provided financial disclosure. [28] In addition, the respondent has always had a rental suite in his home. He has never, to this date, provided documentation of the amount of rent collected. He has stated in earlier years that he has incurred significant costs and damages to the suite such that the actual net income is from either nothing to much less than the rent charged.

However, even in affidavits before this Court, the respondent states that he told the claimant he would provide all the paperwork on this suite, but he still has not. He now says he gets $500 per month for the suite, which would add $6,000 per year in income. There are, no doubt, some actual expenses to the respondent for the suite, but he has provided no documentation of what they are. I note as well that there is no documentation of the claim that the rent is only $500 per month.

[29] The issue of non-financial disclosure, I set out above, as well as a substantial record before this Court of problems of inaccuracy in, for instance, stating to the Court, until documentation proving him wrong, that he did spend 40% or more of the time with his children in their earlier years provides the justification for the claimant's lack of trust and the inability of this Court, without clear, unambiguous evidence, to make a finding of undue hardship relieving the respondent from the application of s. 3 of the Child Support Guidelines amount. [30] In addition, I have considered the increased costs of this litigation in relation to the respondent regaining access to his daughters.

First, there is the cost of the sexual deviancy assessment which left some matters unanswered. However, as is clear from the records now before this Court from the RCMP and the Ministry of Child and Family Development and disclosures to Dr. England, the respondent's behaviour over the years up to and including 2010 involved very poor judgment in relation to sexuality and young girls or women. Thus, in my view, these disclosures are drivers in relation to the costs of further deviancy reports, and they are driven by the respondent’s behaviour and tardy disclosures.

The respondent brought two applications in 2014 for this Court to revisit the suspension of all access, which applications were unsuccessful. The respondent persists in failing to accept that in the face of his eldest daughter’s disclosures and ongoing investigations, such applications could not be successful. [31] These matters no doubt impose a considerable financial burden, but they are not of the claimant's making nor are they related to the cost of the care of his children.

At this point in time they cannot be matters which should be considered in determining whether the Child Support Guidelines amounts impose an undue hardship. Thus I find there is insufficient evidence to make a finding of undue hardship, and the respondent's child support obligations ongoing for 2014 will be based on his 2013 income as now documented by his tax returns, plus $6,000 in rental income, or $66,000, $1.310 per month. “Koenigsberg J.”