D.L. v. J.W. Date:, 2013 BCPC 412

Citation: D.L. v. J.W. Date: 20130801 2013 BCPC 0412 File No: 14913 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D. L. APPLICANT AND: J. W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: T. Hudson Counsel for the Respondent: A. Penner

Place of Hearing: Terrace , B.C. Date of Hearing: July 30, 2013 Date of Judgment: August 1, 2013 Background [ 1 ] This matter comes before the court concerning parenting time, child maintenance, and extraordinary expenses. On the hearing date the parties were able to agree on the child maintenance. The interim parenting time application was adjourned so viva voce evidence could be called.

The remaining issue was DL’s claim for contribution by JW for extraordinary expenses. [ 2 ] The parties have one child together, MRJEB, [omitted for publishing] . [ 3 ] There was a family case conference held November 2 nd , 2012, that resolved a number of interim issues by consent. Due to some confusion, the order was not entered until the hearing of this matter on July 30 th , 2013. The Evidence [ 4 ] Both parties filed financial statements. [ 5 ] JW’s financial statement was filed May 28 th , 2013.

The total of his attached T4s and Records of Employment is $70,934.14. [ 6 ] DL’s (formerly DB) financial statement was filed June 23 rd , 2012. It gives her 2012 income as $15,291.46 as drawn from line 150 of her attached 2012 income tax return. [ 7 ] JW filed an affidavit July 23 rd , 2013.

In paragraph 2 of that affidavit he estimates his 2013 income to be approximately $67,000. [ 8 ] JW’s affidavit (paragraph 2) states that his employer transferred him to Vancouver and he is expected to be there until July 2014. [ 9 ] JW’s affidavit (paragraph 3) indicates that he resides in Prince Edward Island and his fiancée lives there.

He states that he incurs expenses returning to Prince Edward Island to visit her. [ 10 ] Paragraph 12 of JW’s affidavit asserts that competitive figure skating was not an agreed expense. [ 11 ] In paragraph 19 of his affidavit, JW states that he is not in agreement with putting MRJEB into competitive skating but is “in agreement with paying for half the reasonable expenses with regard to swimming lessons and or soccer if discussed with (him) in advance” and if he could afford it. [ 12 ] DL filed an answering affidavit July 30 th , 2013.

In paragraph 1 it indicates that the child has been in competitive figure skating for the past four years. [ 13 ] In paragraphs 2 through 13 DL’s affidavit asserts that the child has ability as a figure skater as demonstrated by winning various awards and the exhibited letters of her skating coaches. [ 14 ] The letter of Ms.

M attached to that same affidavit states that MRJEB “shows very real promise of an athlete who will go on to compete as an amateur athlete provincially and potentially as a professional athlete.” That opinion is seconded by another attached letter from a second coach, JK. [ 15 ] In paragraph 17 of her affidavit, DL estimates her 2013 income to be at the maximum $17,040, as she only works two part-time jobs. [ 16 ] In direct contradiction to JW’s affidavit, DL states in paragraph 20 of her affidavit that JW agreed to the figure skating as long as he could help choose the coach. [ 17 ] In both DL’s financial statement and in JW’s affidavit are documents for the 2012 figure skating expenses.

These range from registration fees through the costs of lessons, ice-time, skate sharpening, leg warmers and competition registration fees. The total of the receipts and invoices attached to DL’s financial statement is approximately $2,400 for 2012. [ 18 ] It is common ground that, to this date, JW has not contributed to the figure skating costs. [ 19 ] It is common ground that DL is eligible for a $500 income tax deduction for the figure skating. [ 20 ] There is no evidence before the court of the spending habits of the parties before the separation.

That is particularly true concerning figuring skating as the child was very young at the time of the separation. Analysis

[21] Extraordinary expenses for the purposes of Extracurricular activities are defined in section 7(1.1) of the Federal Child SupportGuidelines as:

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

b) Where paragraph (

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

i) The amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spousewould receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that thecourt 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. [22] Subsection 2 of

section 7 deals with pro-rata sharing. It reads: The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spousesin proportion to their respective incomes after deducting from the expense, the contribution, if any from the child. [23] Finally, Subsection three deals with deductions.

It reads: Subject to subsection (4) (Universal child care benefit), in determining the amount of an expense referred to in subsection (1) the courtmust take into account any subsidies, benefits or income tax deductions or credits relating to the expense and any eligibility to claim asubsidy, benefit or income tax deduction or credit relating to the expense. [24] The British Columbia Court of Appeal, in McLaughlin v McLaughlin (1998) (BC CA), 44 RFL (4th) 148,established a two part process in determining whether an order for extraordinary expenses should be made. [25] Paragraph 81 reads in part, ...in determining whether an expense, or the totality of expenses claimed on behalf of children under s7(1)(

f) are extraordinary, the courtshould take into consideration the combined income of the parties, as well as the nature and amount of the individual expense, the natureand number of the activities, any special needs or talents of the children, and the overall cost of the activities. [26] Paragraph 82 lays out the second step in the process. In

part it reads: As earlier stated, once an expense or expenses are found to be extraordinary it is necessary for the court to proceed to determine whetherthe expenses are necessary in relation to the children’s best interests and reasonable, having regard to the means of the spouses and thoseof the child, and to the family’s spending pattern prior to separation. There appears to be a consensus in the authorities dealing with s7(1)(

f) that those questions do not need to be addressed until the expense or expenses in question have been found to be extraordinary.” [27] However, if extraordinary expenses are ordered, the court retains the discretion to stray from the income proportionality test ordecline to order contribution at all if the expense is not within the means of the parties.

A. v B. 2013 BCSC 60 (paragraph 48). [28] Similarly, the court may reduce the contribution to extraordinary expenses if it finds that part of the expense are “built into thebasic support figure” Laurie v Laurie {2002} BCCA 317 paragraph 5. [29] Counsel for DL submitted that the combined income of the two parents was approximately $90,000 and sought an 83%/17%split using the income pro-rata approach. [30] Counsel for JW submitted that:

a) It was not an extraordinary expense;

b) That her client was already paying $657/month as basic child support;

c) That DL was not working full time;

d) That a special skill was not demonstrated by the child;

e) That JW was of limited means due to the high costs of both exercising access from Vancouver and having to travel back to Prince Edward Island to visit his fiancée; and,

f) That if an order for contribution was made that it should be reduced, capped, or split 50-50. [ 31 ] Applying the criteria in the first step of the McLaughlin case, this court finds the following:

a) The total parental income is approximately $90,000;

b) The figure skating expense is currently approximately $2,000 but may rise over time;

c) There is only one extracurricular activity;

d) MRJEB has some special talent or potential in the activity; and,

e) That figure skating is in the best interests of the child. [ 32 ] Accordingly, the court finds that the costs of the figure skating are an extraordinary expense. [ 33 ] Applying the criteria of the second step of the McLaughlin case, the court finds the following:

a) There is no evidence of a prior spending pattern;

b) There was a nebulous offer by JW to contribute for swimming and or soccer;

c) That JW has extra expenses required to exercise parenting time; and,

d) That DL is eligible for a $500 deduction from her income tax for the figure skating, although at her income level it will only generate a deduction of approximately $75 (as per s7(3)). Decision [ 34 ] JW shall contribute to the extraordinary expenses of MRJEB’s figure skating at the rate of 50% to a maximum of $1,000 per year. The contribution shall be paid to DL within 30 days of receipt of invoices at the rate of $100/month until either the maximum of $1,000 is reached or his 50% share is paid in full, whichever occurs first. [ 35 ] This order is not retroactive. [ 36 ] This is an interim order. ___________________________ W. F. M. Jackson Provincial Court Judge