E.M. v. M.S. Date:, 2016 BCPC 242

Citation: E.M. v. M.S. Date: 20160729 2016 BCPC 0242 File No: 1445232 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: E. M. APPLICANT AND: M. S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Appearing on their own behalf: E. M. Counsel for the Respondent: R. Craig Place of Hearing: Prince George , B.C.

Dates of Hearing: July 18 - 19, 2016 Date of Judgment: July 29, 2016 [ 1 ] Ms. M. and Mr. S. were in a common law relationship for approximately five years. They are the parents of C. J. R. S., born [omitted for publication]. The parties separated in November 2013, but continued to reside in the same home until March 2014. The parties have shared parenting arrangements on an informal basis. Both parties have since re-partnered. Ms. M. recently married her partner, Mr. G. Mr. S. has a common law relationship with A.

M.(2) and they celebrated the birth of their son, C.(2), in [omitted for publication]. [ 2 ] The parties had an informal parenting regime for C. which accommodated Mr. S.’s work schedule. He works at the [omitted for publication] in the far north of British Columbia. When that

schedule has involved Mr. S. being in camp two weeks in and two weeks out, Mr. S. had parenting time for his two weeks out and Ms. M. had the other two weeks. When Mr. S.’s

schedule was three weeks camp and one week out, Ms. M. had three weeks parenting time and Mr. S. had one week. For the last year, the parenting

schedule has been an equal parenting regime which accommodates Mr. S.’s current two weeks in, two weeks out schedule. Nature of the Applications [ 3 ] In October 2015, Ms. M. applied to Court seeking to formalize the parenting arrangements. In March 2016, the parties entered into a Consent Order before the Honourable Judge Gray at a FCC under which a Final Order was made declaring both parents to be guardians and that they would share parenting responsibilities. An Interim Order was also entered into by consent providing that the parties would share equal parenting time, that Mr.

S. should pay child support and that the parties share medical and dental expenses, 55% to Mr. S. and 45% from Ms. M. The issues of how to

schedule the equal parenting regime, child support, and contributions to child care expenses were adjourned for hearing. Those issues are before me to decide. 1. Parenting time [ 4 ] Ms. M. seeks to change the informal parenting arrangements to add some parenting time for her in Mr. S.’s rotation. Ms. M. is concerned that the two week separation is not in C.’s best interest, because he is only six years old and she feels he needs to have some parenting time with her during his two weeks with his father. She asks for one overnight and an “after school to after dinner” each week during Mr. S.’s parenting rotation.

She does not object to C. spending time with his step-mother and baby brother during her parenting rotation. [ 5 ] Mr. S. objects to any change in the parenting regime on the basis that it is “his” parenting time and it is not in C.’s best interest to have any more transitions from home to home than he already does, although he wants a change in the parenting rotation to accommodate his shift

schedule at Christmas time. [ 6 ] When invited by Ms. Craig, Mr. S.’s counsel, to state whether she would like to have additional parenting time on any special days, such as Mother’s Day or Christmas, regardless of the existing schedule, Ms. M. said she didn’t know she could ask for that but confirmed she would like to see C. on special days like Mother’s Day or Christmas. She volunteered that she would be willing to share or split such days with Mr. S. When the subject was canvassed with Mr. S. however, he objected to Ms.

M. having parenting time with C. on Mother’s Day or Christmas, if they happen to fall on a day that he would ordinarily have had parenting time because he does not want to be “handcuffed” in his plans. He concedes that he will accommodate Ms. M. with some parenting time with C. on those days if he is in town and if he has not made other plans. 2. Guideline Child Support and S. 7 Contribution to Child Care [ 7 ] Ms. M. also seeks child support and a contribution from Mr. S. towards the cost of before and after school care for C. Mr. S. did not pay any child support until it was ordered in March 2016, even when Ms.

M. had care of C. three weeks out of four and his income was significantly greater than hers. When asked if he had provided support, he commented that when Ms. M. had C. for three week rotations during the period in which he had a three week in, one week out rotation, he had given her his leftover groceries from his fridge whenever he returned to camp (since they would have spoiled in his absence anyway) and that he paid for her phone. He also noted that she took the pickup truck they had jointly purchased when she left (although he confirmed on cross- examination that she also took the payments for it).

He had been paying half of the child care expenses, but has since stopped contributing to the child care expenses. [ 8 ] Mr. S. took the position at trial that neither party should pay child support on the basis that the parties have an equally shared parenting regime and his income is approximately equal to hers. He adds that Ms. M. has a two income household, but he is the sole bread winner for his household because his spouse is not employed, having just given birth to their baby son.

He objects to paying a share of the day care expense because, since his spouse is at home, she can provide the before and after school care for C. at no cost. [ 9 ] Ms. M. opposes the proposal that Ms. M.(2) provide before and after school care for C. for two reasons. One concern is that if C. spends additional time in Mr. S.’s home during her parenting time, she feels that may reflect badly upon her as a mother. Another concern is that something might go awry with the arrangements. Additionally, although she has no complaint regarding Ms.

M.(2)’s abilities as a parent or caregiver, she really doesn’t know her and they have no relationship sufficient for her to feel comfortable having her as his caregiver. The current before and after school care is provided at C.’s school in the same building by the YMCA and works well for her and for C. All she has to do is drop him off on her way to work and he settles in and walks to his classroom inside the building, with the reverse in the afternoon. The Parties’ Financial Situation [ 10 ] Mr.

S. works as a supervisor at [omitted for publication], which is located on traditional native lands, some three hours north of

Stewart, B.C. He works for a business owned and operated by his family. Because he is an Aboriginal person (Gitxsan) and the circumstances of his employment, he pays no income tax on his earnings. He declared income of $72,727 for 2015. His counsel agreed that his income should be grossed up to recognize its tax free status and has submitted that a grossed up figure for employment income would be $91,316. [ 11 ] Mr. S. declared annual expenses of $139,341 in his Financial Statement.

He explained that the declared expenses for 2015 are exceptionally high because they include some non-recurring expenses, such as $20,000 in new furniture and renovation expenses for finishing the basement of his newly purchased home and $12,000 in travel and relocation expenses for his partner Ms. M.(2), who previously resided in Nanaimo, but has now moved permanently to Prince George. He also includes an amount of $9,000 for vacation, which he explains are vacations in Nanaimo and Vancouver he takes every year. He commented that he rented a beach house in Tofino in February this year for vacation.

When I asked him to explain the deficit between his income and his expenses, he explained that he had a line of credit. However, he testified that the line of credit is only in the amount of $10,000 and he owes only $7,800 on it at present. Thus the source of funds for approximately $60,000 worth of claimed expenses above his declared income remains a mystery. [ 12 ] Ms. M. works as a community school coordinator at W. E. S. and now earns $67,651 annually, which is taxed at prevailing rates.

She also received non-taxed stipend of $10,320 per year (the “Stipend), on a discretionary basis, from her native band to assist with her attendance at a master’s degree program at UNBC, which is not taxed. Ms. Craig submitted that if the non-taxed income is grossed up, Ms. M.’s total income would be the equivalent of $81,918 annually. Ms. M. hopes to receive the Stipend for the 2016/17 academic year, but it is discretionary. The Stipend will cease in any event when she graduates next spring and she will be obliged to commence repayment of $38,000 in student loans six months thereafter. DISCUSSION 1.

Should C. remain in the YMCA day care at his school or go to his father’s home for before and after school care from his father’s spouse? [ 13 ] The present arrangement at his school minimizes the number of transitions for C. He leaves his mother’s home in the morning and goes to school and then goes back to his mother’s home at the end of the day. He can walk directly from his care provider within the school to his classroom and back again at the end of the school day. It is an arrangement that has been working well for C. and his mother.

It is provided by professionals and can be relied on to be operating at all times that it is required. [ 14 ] If Mr. S.’s position on before and after school care were imposed, C. would have four additional transitions every single day that he goes to school: from his mother’s home to the handoff to Ms. M.(2) in the morning, travel to Ms. M.(2)’s home, then pack up again and travel to school to be dropped off, and then be picked up by Ms.

M.(2) at school and taken to her home and then have to be packed up again to be taken to be handed off to his mother in the afternoon to return to his mother’s home. [ 15 ] It is inherent in this proposal that Ms. M.(2) will be required to pack up her baby and haul him to and from the car four times per day to make this arrangement work. Ms. M. was concerned that there could be problems with such an arrangement, although she could not articulate how those might occur. In my view, it is reasonably foreseeable that there are bound to be disruptions to this program, for instance, if the baby or Ms. M.(2) falls ill.

She will have no backup from Mr. S. who will be hundreds of kilometers away and unavailable to assist. [ 16 ] Mr. S. argues that the current parenting time arrangement, which has C. changing homes only once every two weeks should not be changed to add any parenting time for the other parent, because he says it is in C.’s best interest to have as few transitions as possible. However, in order to save his proportionate share of child care expenses, he would seek to impose a regime which adds approximately 40 transitions per month to C.’s

schedule (four transitions per day times ten school days). It is apparent that Mr. S. has no difficulty with additional transitions for C. if that is in Mr. S.’s financial best interest. [ 17 ] I agree with Mr. S. that transitions from one home to another can be difficult for children and ought to be minimized unless there is some particular benefit to the child to be gained from the transition. With respect to Mr. S.’s proposal for before and after school care, I can see no benefit to C. from adding multiple transitions per day to C.’s life. Although Mr.

S. did not mention it, his counsel submitted that a benefit to this proposal is that it would maintain contact between C. and his baby brother during his mother’s rotation. While it is true that C. would be able to see his baby brother daily, it seems to me that the quality of that time spent may well be marginal, given that both of them will spend much of that pre and post school time being bundled into and out of cars and putting on and taking off jackets and boots and not being able to settle down anywhere, much less spend quality time with each other. [ 18 ] Ms.

Craig submitted that there is no substantive basis for Ms. M.’s concern that this proposal might somehow reflect badly on her parenting ability. While I agree that the provision of child care from any trustworthy person should not reflect badly on the parenting ability of a parent, I do not dismiss Ms. M.’s concern so lightly. [ 19 ] Some less than scrupulous persons might seek to take advantage of such an arrangement to later argue that the court ordering such an arrangement was, in fact, giving greater than equal parenting time to the parent by whom the day care is provided.

Such a parent might then use that status as the basis to seek other relief as the “primary” parent. Ms. M. has come to court without the benefit of legal assistance and may not be aware of the strategic disadvantages to her and corresponding advantages to Mr. S. inherent in this proposal. In my view, however, her uneasiness is understandable, given some of Mr. S.’s strategic gambits to do with parenting arrangements for C., which I will address later in these reasons. [ 20 ] Indeed, the only advantage I can see with respect to this proposal is a financial one.

Given that his parents are not destitute, the payment of this expense by his parents will not adversely affect C.’s best interest. I am not persuaded that it is in C.’s best interest, regardless of the financial advantage to the parties, to have before and after school for C. provided by Ms. M.(2).

2. Should the shared parenting regime be altered to provide for parenting time for one parent during the other parent’s two weeks with C.? [ 21 ] In the analysis of this issue, I must first deal with a submission made by Ms. Craig on behalf of Mr. S. that since the two week rotation parenting time regime has been in place for some time, the burden is on Ms. M. to show a change in circumstance to justify a change in regime. No authority for that proposition was provided by counsel. I note that no such submission is advanced with respect Mr.

S.’s application to change the parenting rotations at Christmas time to coincide with a change in shifts that Mr. S. has unilaterally decided to impose on his co-worker regarding working over Christmas in alternating years. Is Ms. M. obliged to show a change in circumstance to justify a change to the parenting arrangements? [ 22 ] After Ms. M. brought on this Application, an Order was made by consent at the Family Case Conference (“FCC”) which provided that Ms. M. and Mr. S. share parenting time equally, but the issue of how that parenting time would be scheduled was set for hearing. That is the matter before me.

There is, therefore, no prior order governing this particular issue. It is before the Court at first instance. [ 23 ] The parties do not have a written agreement or court order governing the specifics of their parenting arrangements.

Section 48 of the FLA governs situations in which no agreements or Court orders apply: Informal Parenting arrangements 48

(1) If (

a) no agreement or order respecting parenting arrangements applies in respect of a child, and (

b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking (

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements] . [ 24 ] Ms. M. has clearly complied with this

section in bringing her Application before me. Nothing in

section 48 requires that she demonstrate a change of circumstance in order to do so. [ 25 ]

Section 47 of the FLA permits a court to change an order where there has been a change in circumstance, but it does not speak to changes to agreements, nor does it speak to changes to informal arrangements where there is neither an order nor an agreement. Even if the arrangement between the parties in this case qualified as an “agreement” under

section 44 of the FLA , that

section provides that: 44(4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child. [ 26 ] It seems to me that if I have the legal obligation to set aside a written agreement on the grounds that it is not in the best interest of the child, without the requirement for the applicant to show a change in circumstance, I must have the authority (and obligation) to set aside or replace an informal arrangement on the same grounds. [ 27 ] In my view, this matter is before me as an Application in the first instance.

Therefore, Ms. M. is not required to show a change in circumstance in order to have the Court determine what specific equal parenting arrangement is in C.’s best interest. However, I find it is proper to take into consideration the longevity of the current arrangement and the reasons it was put into place, in order to fully consider whether it is in C.’s best interest to carry on with it or change it. History of the current arrangement [ 28 ] The parties have had an informal two week rotation parenting arrangement for more than a year. Mr.

S.’s position is that the two week rotation, with no “in person” parenting time for the other parent during that rotation, is in C.’s best interest because it minimizes the disruption of transitions for him. He points to the longevity of this arrangement to support the contention that it is in C.’s best interest. Ms. M. says, in contrast, that she believes the arrangement is not in C.’s best interest and that the arrangement is in place because, until recently, she was unable or unwilling to challenge or gainsay Mr. S. [ 29 ] Ms.

M. testified that she felt there was “a lot of control” by him in their relationship and she could not challenge him. I find this

characteristic of their relationship is borne out by an incident in September 2015 when C. began Kindergarten. Ms. M. testified that his first week of school was a gradual entry program to which parents were invited to attend to ease the transition of the small children into Kindergarten. That week happened to fall during Mr. S.’s parenting time. [ 30 ] Ms. M. attended on the first day and that evening told C. on the phone that she would see him again the next day. She says, and Mr. S. admits, that Mr. S. telephoned her that night and told her not to attend at the school the following day.

She says he told her she could not attend because it was his parenting time and that he would speak to the principal at the school to have her removed. [ 31 ] Mr. S. admitted in Court that he told Ms. M. he would contact the principal, but says he did not in fact call him. However, Ms. M. believed his threat and as a result she did not attend the school, nor did she ever attend any event involving C. during Mr. S.’s parenting time thereafter until she was informed by Judge Gray at the FCC held on this matter on March 30, 2016, that Mr. S. had no right to prohibit her from doing so.

It was only after that date that any flexibility in the parenting

schedule occurred. [ 32 ] I find that Mr. S. used a threat to illegitimately coerce Ms. M. into not attending at C.’s school when, in fact, that attendance was part of a gradual entry program to which parents were invited and expected to attend. In his testimony, Mr. S. appeared to be of the view that the program was unimportant and C. should just be left alone. Any experienced parent is aware that such programs are in place to assist the transition of small children into a new environment, which is obviously in the child’s best interest. Mr. S. used a threat of public removal of Ms.

M. in front of C. to coerce Ms. M. into avoiding participation in this program. [ 33 ] This same threat caused Ms. M. to avoid all of C.’s extra-curricular activities that occurred on Mr. S.’s rotation. I find that children benefit from the interest, encouragement, and support provided by both of their parents in their activities. Mr. S.’s threat deprived C. of that benefit. Mr. S. has provided no reason for having chosen to deprive C. of the support of his mother at school and at extra- curricular events during his rotation, aside from the fact that it is his rotation. [ 34 ] After Judge Gray’s advice to Ms.

M. at the FCC, the parties have made accommodations to allow C. to attend at the hospital when his brother was born in April (during Ms. M.’s parenting time) and to allow C. to attend Ms. M.’s cousin’s graduation (during Mr. S.’s parenting time). [ 35 ] However, on May 20, 2016, Ms. M. texted Mr. S. to request C.’s attendance at “a very important family event” which was to occur during Mr. S.’s parenting rotation in July (the event was in fact Ms. M.’s wedding). Ms. M. explained that she did not mention that the event was her wedding because she feared Mr. S. would attempt to sabotage it in some way. Mr.

S. did not respond until June 14, 2016, when he said that he had vacation in July and asked what was so important. When told that the event was her wedding, he responded simply “Ooh man, sorry that sucks.” [ 36 ] Mr. S. explained in Court that the vacation plans in question were to take C. up north to his camp with him so that C. could play with the machinery and spend time with him and C.’s grandfather in his workplace. While such a venture is, of course, a pleasant prospect for a small boy, it seems to me that since Mr.

S.’s family runs the business, it is not an event that would be difficult or impossible to arrange again - unlike a wedding. [ 37 ] Mr. S. did not agree to her request to have C. attend the wedding. The text messages show that he offered to agree to C.’s attendance at the wedding only if she agreed to his demands regarding changes to the Christmas parenting time

schedule and his insistence that C. was to be with him whenever he was in town. His text said “my lawyer will draw up an agreement for you to sign. If not, we will be going on vacation.” [ 38 ] Mr. S. testified he had intended to agree to let C. go, but in fact it was only after Ms. M. filed a Notice of Motion in court about this issue that Mr. S. texted his agreement to have C. attend the wedding. [ 39 ] It is obvious from this course of conduct that Mr.

S. was willing to deprive his son of attending his mother’s wedding and walking her down the aisle, something which would, of course, be one of the biggest moments of C.’s young life. I find that Mr. S. attempted to use Ms. M.’s desperation to have C. participate in her wedding as a means to coerce her into complying with his demands for exclusive parenting time with C. at his convenience - in other words, to coerce her capitulation to his position in the Application before me.

I find that his behaviour in this regard demonstrates a callous disregard of C.’s best interest in favour of his own desire for control. [ 40 ] I closely observed Mr. S. in Court. He is a large, imposing man who carries himself with the manner of a man accustomed to being obeyed without demur. He commented, with respect to the changes he has made in his work

schedule to accommodate his desire for Christmas time at home that “he makes the

schedule and he can make it the way he likes.” [ 41 ] I am convinced by these examples that Mr. S. managed to cow Ms. M. into acquiescing to arrangements for C. that exactly suited Mr. S.’s convenience, even where such arrangements were obviously not in C.’s interest (such as the “arrangement” that Ms. M. must never attend at C.’s school or his extra-curricular activities during Mr. S.’s parenting rotation) nor even in compliance with the law of the land, such as the “arrangement” that Mr. S. paid no child support for C. (at a time when Ms. M. had C. 75% of the time and earned less than half Mr S.’s income).

I am not satisfied that Ms. M.’s failure to dispute this arrangement had anything to do with any acceptance by the parties that these arrangements, particularly such a lengthy rotation period, were in C.’s best interest. I find that the arrangements presently in place were made at Mr. S.’s insistence and were not arrived at by the parties in order to serve C.’s best interest. [ 42 ]

Section 37 of the Family Law Act states: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

[ 43 ] The law obliges me to place C.’s best interest as my only consideration when deliberating as to appropriate parenting arrangements for him. [ 44 ] In considering the arrangement that has been in place to the present, I must also consider S. 37(3) of the FLA , which states:

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. [ 45 ] While I recognize that the present parenting regime has been in place for some time, I have found that it is not one that was arrived at by the parties with C.’s best interest in mind. I find it is not one that was chosen to protect, to the greatest extent possible, his emotional and psychological well-being, and it fails to do so.

Accordingly, I am of the view that I am not fettered by the current regime in my consideration of what parenting arrangement is in C.’s best interest. Concerns regarding the present parenting regime [ 46 ] Ms. M. testified that she is concerned about C.’s emotional well-being since this two week rotation has been in place. She said that he is normally a bright child who is physically affectionate. However, she finds that when he returns from his rotation with his father, he is shut down emotionally. Instead of his normal warm hugs, he leans in to her with a perfunctory hug only when prompted.

He just stands there when she hugs him and he does not make eye contact with her. She described him as only “half present” and having no sense of excitement. It takes him a few days to get back to normal. Mr. S. testified he has made the same observation when C. returns home to him after a rotation with his mother, but Mr. S. is unconcerned by this altered behaviour. Ms. M. testified that C.’s teacher at school approached her with concerns about C.’s “emotional shutdown” after observing the similar behaviour from C. at school. [ 47 ] Ms. M. also testified that C. seems excessively worried.

She explained that C. is very concerned with keeping straight which of his possessions are his father’s things that he has to make sure go back to his father’s house. Ms. M. is concerned that the depth of his worry about these things is not good for him. [ 48 ] Ms. M. says that in the past few months, C. has begun crying inconsolably at bedtime, for up to an hour at a time, as the date for his transition back to his father’s home approaches. He asks to sleep with her in her bed. Ms.

M. said that C. gives her one reason or another for his sadness - loss of a toy or a problem at school - but said he sounds heartbroken. I infer that these explanations would not appear to explain the depth of his distress. The crying goes on for 45 minutes or so while she seeks to console him. Mr. S. testified that C. has no such problems at his home. [ 49 ] Ms. M. acknowledged that she did not have an expert opinion to support her view, but she said she believes that “this arrangement is not helping C.” I found Ms. M. to be scrupulously honest in her evidence and not prone to exaggeration.

I accept the evidence of Ms. M. as true and accurate. [ 50 ] In my view, expert evidence regarding this issue is not required. Experts are not present while a child cries himself to sleep - the expert simply provides recommendations on the information received from all parties. At the end of the day, this is a court of law and the judge is the person with the obligation to make a determination as to what arrangement is the best interest of the child.

In making that determination, the judge brings to bear his or her own experience and knowledge gleaned from years dealing with people and the law. [ 51 ] In this case, it doesn’t take a rocket scientist or a child psychologist to figure out that a child exhibiting the changes in personality described by Ms. M. is in significant distress. In terms of timing, it is clear the distress is associated with the transitions from home to home. It is clear to me that C. treats each parent as if they are a stranger for the first few days at either home.

For a child who is just turned six years old, two weeks might as well be two months; for a child that young, a person they meet after two weeks is a stranger. Little wonder that C. is upset; every two weeks he is taken from a beloved parent and unable to see that parent again for what must seem like an eternity to him. It is no wonder that he is showing great sadness as the end of his time with his mother approaches.

As far as his worries about possessions that he believes he must not forget to return to his father’s house, that worry is an obvious reflection of pressure placed on him by his father. [ 52 ] Even if Ms. M. were obliged to show a change in circumstance, I am satisfied that the behavioural changes in C. that Ms. M. pointed out are sufficient justification to make changes to the parenting regime to attempt to assist C.’s psychological and emotional well-being. Decision re: parenting time

schedule [ 53 ] I find it is not in C.’s best interest, at his age, to spend such a long time without “in person” parenting time with his mother. The same goes for “in person” time with his father - but if Mr. S. can’t or won’t, arrange his

schedule to meet C.’s needs, there is no reason to inflict that reality upon C. and his mother in the name of equality. If Mr.

S. chooses to change his schedule, as he has arranged to do at Christmas time, he and C. may benefit from having parenting time more frequently. [ 54 ] While fewer relocations from one home to another are certainly more convenient for parents and may contribute to greater stability for a child, many children transition from one home to the other each week, or even twice a week, with no apparent ill effect. [ 55 ] I find that for younger children, it is generally better for their emotional well-being to have parenting time with their parents every few days, whether for overnights or shorter periods.

In my view, having some in person time with each parent at least once per week will help the child to maintain a sense of continuity with that parent. [ 56 ] I find that it is in C.’s best interest that he spends some time with his mother during the rotation he spends with his father, and vice versa (“Mid-Rotation Parenting Time’). That time will include three visits during each two week period. When school is in session,

two of these visits will be after school until 30 minutes before bedtime and one visit will be overnight, from after school until drop off at school the next day. During school vacation, the start of these visits will be at noon, or such other time as the parties agree. Any extra- curricular activity in which C. is to be enrolled must be arranged so that it will not interfere with that parent’s parenting time, unless that parent consents to the arrangement of that activity on that day. I leave it to the parties to choose which days in any rotation period will work best for the parties and for C.

If the parties cannot agree, the matter can be placed before me for decision. [ 57 ] I recognize that the parties may wish to go out of town on vacation during some school breaks. For one two week rotation during summer school vacation, and for spring break vacation, the Mid-Rotation Parenting Time will be suspended to permit out of town travel with C. During that time, each parent must facilitate telephone and/or Skype time with C. at least three times per week. Christmas Parenting Time [ 58 ] It makes sense that the parties both be able to spend time with C. during the Christmas break from school. Mr.

S. has now organized his work

schedule to permit him to have a one week rotation at that time, instead of a two week rotation, so that he can spend either the week including Christmas or the week including New Year’s Day at home each year. This year he has arranged to return home for one week commencing December 20, 2016. He seeks an order giving him parenting time with C. in alternating years, commencing this year. Ms. M. does not object to alternating one week rotations at Christmas break, but proposes that the other party have some time with C. on Christmas Day. Mr.

S. opposes that proposal on the basis that it may interfere with plans he may make to visit family out of town. [ 59 ] Christmas is a time for family and many families travel to visit relatives at that time. However, C. is very young and in my view if he does not spend some time with each parent on Christmas Day he may feel forgotten by the other parent and may feel he has missed Christmas with that parent.

Accordingly, in consideration of C.’s age, I find it is in C.’s best interest that he spends some time with each parent on Christmas Day. [ 60 ] With respect to Christmas school breaks, the parenting rotations will be one week each instead of two weeks, with the parents alternating the week containing Christmas each year. The Mid-Rotation Parenting Time will be suspended during these rotations, except for Christmas Day.

Each parent will have Mid-Rotation Parenting Time from noon until 4 pm, or such other time as the parties may agree, on Christmas Day during the years in which that parent does not have Christmas Day in their rotation. Mr S. will exercise his parenting rotation commencing December 20, 2016. Mother’s Day/Father’s Day [ 61 ] Mr. S. objects to Ms. M. having any time with C. on Mother’s Day because, he says, he (Mr S. that is) may wish to visit his own mother on that day. While Mr. S. is, of course, free to visit his own mother, it is C.’s mother that C. should have the opportunity to visit on Mother’s Day.

On any Mother’s Day falling during Mr. S.’s rotation, Ms. M. will have a visit with C. for four hours at a time of her choosing. If Mr. S. is in town on a Father’s Day that falls in Ms. M.’s rotation, he will have a visit with C. for four hours on Father’s Day at a time of his choosing. [ 62 ] I realize that Mr. S., due to his current work arrangements, may not be able to personally enjoy such parenting time during Ms. M.’s rotation with C. However, this Order contemplates that Ms. M.(2) may choose to exercise some or all Mr.

S.’s parenting time in his stead, so that C. can maintain his relationship with his baby brother, C.(2). Ms. M. does not object to this arrangement and in my view it is in C.’s best interest to have more frequent contact with his sibling than he presently enjoys. [ 63 ] Both parties have expressed the concern that they have not been able to reach C. for telephone calls on occasion. I find it is C.’s best interest to know that he will be able to speak to, or hear from, the other parent on a frequent basis during the other parent’s rotation.

I order that each parent facilitate telephone or Skype communication between C. and the other parent a minimum of at least three times per week. In addition to any other opportunities, I order that the parties will make C. available for telephone or Skype calls on Sundays. During Ms. M.’s parenting rotation with C., Mr. S. will call C. at 7 pm and during Mr. S.’s rotation, Ms.

M. will call C. between 3 and 4 pm. [ 64 ] I wish to emphasize to the parties that C. is more likely to flourish if the parenting arrangements are more flexible and include a willingness on the part of both parties to accommodate the participation of the other parent in C.’s life, regardless of whose parenting rotation it happens to be. The Mid -Rotation Parenting Time I have ordered should be considered a minimum, not a maximum. 3. What guideline child support, if any, should be paid by Mr. S.? What contribution, if any, should be made by Mr.

S. towards before and after school care for C.? [ 65 ] The right to receive child support is the right of the child, not the parties. That is why, for instance, Mr. S.’s failure to pay (and Ms. M.’s failure to seek) child support previously when C. was clearly entitled to receive it does not bind the Court in any way. Ms. M. seeks child support and a proportional sharing of the child care expense. [ 66 ] Mr.

S. argues that at this point in time, the parties have an equally shared parenting regime, their two incomes are close to equal (he argues after the gross up, their incomes are a little more than $10,000 apart) and he has a spouse and new child to support, while Ms. M. and her new husband have only C. to support.

Thus, he argues that the Court should apply s. 9 of the Federal Child Support Guidelines (the “ Guidelines ”) to find that after a consideration of the amounts set out in the applicable tables, the increased costs of a shared parenting agreement, and the conditions, means, needs, and other circumstances of the parties, to impose no child support to be payable by him despite the fact that his income is higher than that of Ms. M. Ms. M.’s Income [ 67 ] Ms. M.’s Financial Statement declared a current income of $77,651, which includes her employment income plus non- taxed

Stipend of $10,320. She does anticipate changes to her income. Ms. M. testified that she may not receive the Stipend for the 2016/17 academic year, and even if she does, her income will decline as soon as she finishes her master’s degree because the discretionary Stipend she receives will end in April 2016. On the other hand, her taxable income is likely to increase by about $6,000 upon receipt of her master’s degree.

Since those changes are quite foreseeable at this time, I find it is proper for me to take them into account in my deliberations, rather than require Ms M. to return to Court to seek a variation later. [ 68 ] I also take into account that Ms. M. has declared the shared parenting regime to the appropriate authorities which has resulted in a retroactive Debit to her Canada Child Tax Benefit of $2,229.58 and her Universal Child Care Benefit of $1,500 (collectively the “Child Benefit Debt”). Mr.

S. will, presumably, be receiving a corresponding credit, particularly since his income is non-declared (his T4 shows no income). Although the Child Tax Benefit is not normally included in income for the purpose of calculating income for child support purposes, it is something that enters into the analysis when the means, needs, and circumstances of the parties are to be considered under s.9 of the Guidelines . [ 69 ] I also take into account that Ms.

M. will have an additional debt payment of $333 per month to service a $38,000 student loan debt which was incurred to obtain the education that now enables her to earn the income she has. [ 70 ] After consideration of all of these factors, as well as the contents of the parties Financial Statements and their testimony, I find it is proper to reduce Ms. M.’s income in 2016 and 2017 by $1,864.50 (one half of $3,729) Child Benefit Debt, because the benefits otherwise payable to her will be reduced by 100% until the debt is paid. Mr.

S.’s available resources will be increased by that amount as a lump sum in 2016, since the amount debited from her will be credited to him. [ 71 ] I make the assumption that the Stipend will be given to Ms. M. this year, as in the past. If she does not receive it, that will be a change in circumstance that will justify a change in the calculations regarding child support. Taking this factors into account, I fix Ms. M.’s 2016 income at $79,111, which represents her grossed up income less one half the Child Benefit Debt. [ 72 ] With respect to Ms.

M.’s 2017 income, her income will be reduced by the other half of the Child Benefit Debt. I also find that it is proper to reduce Ms. M.’s 2017 income by one half of the Stipend, or $5,160, because it is already known that the Stipend will end at the end of the semester in April 2017. She anticipates an increase in pay of $6,000 annually when she has completed her masters’ degree but she will have to pay $333/m (or $3,996 annually) in student loans starting in September. I therefore attribute an increase in income of only $3,000 for 2017. Taking all of these things into account, I fix Ms.

M.’s grossed up income for 2017 at $73,921. Mr. S.’s Income [ 73 ] Mr. S. says his income in 2016 is not as high as usual because he missed work in March due to illness. It is not clear to me whether the income he declared in his Financial Statement takes that reduction into account, but he testified that he does not anticipate any future change to his income as declared in his Financial Statement. [ 74 ] I am troubled that Mr.

S.’s declared income cannot reflect his actual income, because the expenses he has attested to are approximately $70,000 in excess of his take home income and the explanation he provided for the discrepancy (use of a $10,000 line of credit) only explains, at best, $10,000 of that excess. Obviously, Mr. S. has resources available to him aside from his declared income which permit him to spend approximately $60,000 per year more than his income without incurring an equal amount of debt. In considering the means and needs of the parties, I take that apparent resource into account. [ 75 ] Calculating Mr.

S.’s income taking his means, needs, and circumstances into account, is made more difficult given his failure to disclose the source of income for approximately $60,000 of claimed expenses. Even if some of these expenses are one-time expenses, they were still paid for somehow, by real money coming from somewhere. Even taking all of Mr. S.’s debt into account, the debt claimed by Mr.

S. is not sufficient to explain the ability to pay those expenses. [ 76 ] Assuming the non-recurring expenses were paid from savings, or from liquidation of another asset, or a gift from family (no such explanations were provided by Mr. S.), that would still leave $30,000 real dollars of recurring annual expenses paid for without the apparent means to do so. I therefore impute additional income to Mr. S. in the amount of $30,000 for 2016 plus the Child Benefit Credit he will receive of $3,729.58, for a total untaxed income for 2016 of $106,517.08. Since Mr.

S. anticipates no changes to his 2017 income, I impute the same additional $30,000 untaxed income to him, for a total untaxed income to him of $102,787 for 2017. [ 77 ] The tax table amounts are based upon employment income which is taxed at prevailing rates. In order to correctly apply the Guideline table amounts for child support to Mr. S.’s income, his untaxed income must be grossed up to reflect what taxable income would be required to generate his tax exempt income. Based on a 2016 tax exempt income of $106,517, I calculate Mr. S.’s grossed up income for 2016 at $151,542. For 2017, Mr.

S.’s tax exempt income, plus imputed income, will be $102,787 and I calculate his grossed up income at $141,088. [ 78 ] The Guidelines contemplate a calculation of the support otherwise payable by each party as if the other had the child full time, and then setting off the support obligations against each other. The table child support thus payable by Mr. S. to Ms.

M. based on the incomes as calculated would be $593 per month for 2016, commencing January 1, 2016, and $562 per month for 2017, commencing January 1 2017. [ 79 ] Ordinarily, child care costs are shared between the parties proportionate to their respective incomes. Based upon their proportionate incomes, Mr. S.’s share of the $6,216 child care cost for each year is 65% each year; thus, his proportionate share for each of 2016 and 2017 would be $4,040.40. Retroactivity [ 80 ] Ms. M.’s Application includes a claim for retroactive support going back to the date of separation, in March 2014.

Neither of the parties addressed this issue directly in their submissions, but the evidentiary foundation has been laid for this claim. Ms. M.’s Line 150 income for 2014 was $47,553. Her evidence was that she received the Stipend from her band that year also, so I attribute to her

additional income of $10,320. Her grossed up income would be $61,295. [81] Mr. S.’s income for 2014 has not been disclosed, but according to the Notice of Assessment he has provided, his incomeappears to have been approximately the same as 2015, or very slightly lower. According to his 2015 T4, his income for CCP pensionableearnings was $53,600 (although he stated his untaxed income was $72,787) and in 2014, according to his Notice of Assessment, hispensionable earnings were $52,500. However, according to Line 5875 of the Notice of Assessment, his tax exempt income was $64,300.

For purposes of calculating the child support payable for 2014, I will fix his income at $70,000. Grossed up, that is the equivalent of ataxable income of $90,107. [82] From March 2014 until December 2014, Ms. M. had C. three weeks out of four, which is greater than 60% of the time, andtherefore not a shared parenting regime to which S. 9 of the Guidelines applies. Mr. S. testified that he provided no support for C. duringthat period aside from leftover groceries once per month. That does not qualify as child support.

The table amount of child supportpayable under the Guidelines is $837 per month, for a total of nine months. Thus the arrears of table child support owing for 2014 willbe $7,533. Mr. S. is also ordered 60% of the child care expenses (his proportionate share) from March 2014 to July 31, 2015. Anypayments made by Mr. S. towards child care expenses in this period will be credited to him. [83] For the period January 1, 2015 to December 31, 2015, the grossed up incomes of the parties, for child support purposes, are as Ihave found earlier, Mr. S. $151,542 and Ms. M. $81,223.

The table child support payable in a shared arrangement on these incomes is$574 per month, payable by Mr. S. to Ms. M. Ms. M. moved in with Mr. G. in August 2015, as a result of which her household financialmeans changed in ways relevant under s. 9 of the Guidelines. Until then, I find the means of the parties did not justify a s.9 reduction ofchild support aside from the set off as noted. I therefore fix the arrears of child support for January 1, 2015 through August 1, 2015 at$4,018.

The calculation of arrears of child support accumulated thereafter will depend upon the analysis of the parties’ means, need andother circumstances under s. 9 of the Guidelines. Application of S. 9 of the Guidelines [84] Under s. 9 of the FLA, in a shared parenting time arrangement, I must consider not only the table Guideline amounts, but alsothe increased costs of a shared custody arrangement, and the conditions, means, needs, and other circumstances of the parties.

I have noevidence before me of any increased costs incurred by the parties with respect to the shared custody arrangement, but obviously bothhomes must be adequately sized to accommodate C. being there half the time. [85] A consideration of the needs, means, and other circumstances of the parties includes a consideration of the position of theirrespective spouses. I note that Ms. M. began living with Mr. G., her husband, in August 2015. Mr. S. testified that he and Ms. M.(2)have been living together for about 15 months, which I take to mean since April 2015. Ms. M.(2) was a student and earned no income.

Their child was born in April 2016. [86] Although neither of the parties’ respective spouses are legally obligated to contribute to C.’s support at this time, any resourcesthey bring into the family unit will factor into the means of the parties. I do take into account that Ms. M.’s spouse has an incomeapproximately equal to hers, and his income does contribute to the means of the household. [87] Mr. S.’s spouse does not work outside the home at present, and he now has a new baby to support. It is reasonable to assumethe Ms.

M.(2) will remain home with her baby for approximately one year from his birth, which will take her to April 2017. Accordingto Mr. S., Ms. M.(2) has not yet completed her education and will need to do so. Therefore, Ms. M.(2) is not likely to be able tocontribute to Mr. S.’s household resources for the foreseeable future. [88] Therefore, since August 2015, despite Mr. S.’s mysterious sources of income, the gross income of Ms. M.’s household (giventwo income earners) is approximately equal to Mr.

S.’s grossed up imputed income. [89] Applying s. 9 considerations to the table child support payable, taking a common sense approach as recommended inContino v. Leonelli-Contino, 2005 SCC 63 , [2005] 3 S.C.R. 217, I find that it is appropriate to reduce the child supportotherwise payable by Mr. S. from August 1, 2015 through 2016 and 2017, to a lower amount which recognizes the fact that Mr. S.supports his household including a wife and new baby, in addition to C., on one income and that Ms. M. supports her household and C.with the assistance of her husband. I therefore reduce the child support payable by Mr.

S. to Ms. M. by $300 per month from the tableamounts, commencing August 1, 2015 to $274 from August 1 to December 31, 2015, $293 per month for 2016, commencing January 1,2016, and $262 per month for 2017, commencing January 1 2017. [90] Taking all of the foregoing into account, under s. 9 of the Guidelines, I find that it is appropriate to reduce Mr.

S.’s share of thechild care expense to 50% instead of the larger portion he would be obliged to pay if the expense were allocated proportionate to theparties’ incomes from August 1, 2015 to recognize the changes in the parties living arrangements which affected their means, needs, andother circumstances. [91] For these reasons, I make the following Orders: 1. The parties will share parenting time of C. J. R. S. (“C.”) equally. C. will reside for two weeks with one parent followed by two weeks with the other parent (the “Rotation”). 2.

During each parent’s Rotation, the other parent will have parenting time (Mid-Rotation Parenting Time) to include three visitsduring each Rotation. When School is in session, two of these visits will be after school until 30 minutes before bedtime and one visitwill be overnight, from after school until drop off at school the next day. During school vacation, the start of each visit will be at noon,or such other time as the parties agree. 3.

Any extra-curricular activity in which C. is to be enrolled must be arranged so that it will not interfere with that Mid-RotationParenting Time, unless that parent consents to the arrangement of that activity on that day.

4. The parties may choose which days in any rotation period will work best for the parties and for C. If the parties cannot agree, the matter can be placed before me for decision. 5. For one two week rotation during summer school vacation, and for spring break vacations, the Mid-Rotation Parenting Time will be suspended to permit out of town travel with C. During that time, each parent must facilitate telephone and/or Skype time with C. at least three times per week. 6.

For Christmas school breaks, the Rotation will be one week for each parent instead of two weeks, with the parents alternating the week containing Christmas every other year. The Mid-Rotation Parenting Time will be suspended during these rotations, except for Christmas Day. 7. For Christmas Day, each parent will have Mid-Rotation Parenting Time from noon until 4 pm, or such other time as the parties may agree, during the years in which that parent does not have Christmas Day in their rotation. Mr. S. will exercise his parenting rotation commencing December 20, 2016. 8.

In any year in which Mother’s Day falls in Mr. S.’s parenting rotation, Ms. M. will have a four hour visit with C. at a time of her choosing. In any year in which Father’s Day falls in Ms. M.’s parenting rotation, if Mr. S. is in town, he will have a four hour visit with C. at a time of his choosing. 9. Each parent will facilitate telephone or Skype communication between C. and the other parent a minimum of at least three times per week. In addition to any other such communication, the parties will make C. available for telephone or Skype calls on Sundays. During Ms. M.’s parenting rotation with C., Mr.

S. will call C. at 7 pm and during Mr. S.’s rotation, Ms. M. will call C. between 3 and 4 pm. 10. Mr. S. is a resident of B.C. and is found to have a grossed up annual income of $90,107 for 2014, and is imputed to have a grossed up annual income of $151,542 for 2015, $151,524 for 2016 and $141,088 for 2017. 11. Ms. M. is a resident of B.C. and is found to have a grossed up annual income of $61,295 for 2014, $81,223 for 2015, $79,111 for 2016 and $73,921 for 2017. 12. Mr. S. will pay to Ms. M., for the support of C., as follows:

a) the sum of $837 per month commencing on March 1, 2014 until December 31, 2014, for a total of $7,533;

b) the sum of $574 per month commencing on January 1, 2015 until July 31, 2015, for a total of $4,018;

c) the sum of $274 per month commencing on August 1, 2015 until December 31, 2015, for a total of $1,370;

d) the sum of $293 per month commencing January 1, 2016 until December 31, 2016, for a total of $3,516; and

e) the sum of $262 per month commencing January 1, 2017 continuing on the 1 st of every month thereafter for as long as C. is eligible for support under the Family Law Act or until further order of this court. 13. Mr. S. will pay to Ms. M. 60% of C.’s child care expenses from March 2014 to July 31, 2015. 14. Mr. S. will pay to Ms. M. one half of C.’s child care expenses, commencing August 1, 2015, until further order of the court. 15. Any contributions Mr. S. has already made towards child support and child care expenses since March 1, 2014 will be credited to him. S. K. Keyes Provincial Court Judge Province of British Columbia