J.C.W. v. D.S.D. Date:, 2014 BCPC 7

Citation: J.C.W. v. D.S.D. Date: 20140123 2014 BCPC 0007 File No: 14943 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.C.W. APPLICANT AND: D.S.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Applicant: Mr. David C. Dundee

Counsel for the Respondent: Mr. Joaquin A. Mariona Place of Hearing: Kamloops , B.C. Date of Hearing: November 14, 2013 Date of Judgment: January 23, 2014 [ 1 ] J.C.W. and D.S.D. were in a common law relationship from late 2008 until they separated on July 26, 2013. They have one child together, D.H.D. D.H.D. was born on [omitted for posting]. [ 2 ] On separation, Ms. W. immediately applied for guardianship, an allocation of parental responsibilities, parenting time, child support, special expenses and spousal support.

An interim and without prejudice order dealing primarily with parenting time and child exchanges was made on August 28, 2013. The interim order was largely cancelled and replaced by a further order made at a Family Case Conference (“FCC”) held before me on November 14, 2013. The FCC order confirms that Ms. W. and Mr. D. are both guardians of D.H.D. and sets out a detailed shared parenting regime. The FCC order also requires Mr. D. to pay Ms. W. $300 per month in child support and 50% of Ms.

W.’s child care expenses commencing November 1, 2013. [ 3 ] Following the FCC, I heard evidence and subsequently received written submissions on the issues of child support and special expenses. Ms. W. asked that her application for spousal support be adjourned generally with Ms. W. being at liberty to reapply for spousal support in the future. [ 4 ] The parties agree that their respective incomes for the purposes of the Federal Child Support Guidelines (the “ Guidelines ”) are $73,900 for Mr. D. and $35,818 for Ms. W. [ 5 ] The issues before me are: 1. Is Mr.

D. eligible for a reduction in child support payments under s. 9 of the Guidelines ? 2. What amount should Mr. D. pay in child support to Ms. W.? 3. What proportion of Ms. W.’s child care costs should Mr. D. pay? 4. What date should the order commence? Applicability of

Section 9 of the Guidelines [ 6 ]

Section 9 of the Guidelines provides: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

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

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

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 7 ] Mr. D. submits that the shared parenting regime puts him over the 40% threshold while Ms. W. submits that it does not. To determine who is right requires a careful examination of the terms of the shared parenting regime and the relevant authorities. [ 8 ] The shared parenting regime is largely based on Mr. D.’s “four on four off” work schedule. This

schedule repeats itself every eight weeks. Mr. D. is to pick up D.H.D. from Ms. W. “no later than after lunch” on his first day off work except for one Friday when he is to pick up D.H.D. at 3:00 p.m. and one Monday when he is to pick up D.H.D. at 8:00 a.m. Mr. D. is to drop off D.H.D. with Ms. W. at 7:00 p.m. the day before he goes back to work except on one Saturday when he is to drop off D.H.D. at 3:00 p.m. [ 9 ] Ms. W. works Mondays to Fridays. If the shared parenting regime provided that Mr. D. always enjoyed time with D.H.D. when Mr. D. was not working, this would necessarily result in Ms.

W. being primarily responsible for D.H.D. when she was working. To enable Ms. W. to enjoy more quality time with D.H.D., Mr. D. appropriately and generously agreed to D.H.D. being in Ms. W.’s care on one of Mr. D.’s scheduled Saturdays and two of his scheduled Sundays off. This accommodation allows Ms. W. to enjoy the better part of six full weekends out of eight with D.H.D.

D.H.D. spending this better quality time with his mother is clearly in D.H.D.’s best interest. [ 10 ] The FCC order is silent with respect to holidays and special occasions but these times will be shared quite equitably simply by operation of the terms of the order.

[11] Both parents deserve much credit for developing a shared parenting regime that is in D.H.D.’s best interest without regard to thepossible implications on child support issues. [12] Having outlined the shared parenting regime, I turn now to consider whether s. 9 of the Guidelines applies. [13] Mr. D. concedes that he does not meet the 40% threshold by a strict hourly accounting of the time he spends with D.H.D.

Herelies on a number of trial and appellate decisions from various jurisdictions in support of his submission that I not apply an hour by hourtime accounting to determine the 40% threshold issue but rather take a “holistic” approach that considers how the shared parentingregime evolved and the amount of quality time that D.H.D. spends with each parent. [14] I have carefully reviewed the authorities referred to in argument by counsel for Mr. D., including McKerracher v.McKerracher, (B.C.S.C.), Berry v. Hart, 2003 BCCA 659, Mehling v. Mehling, 2008 MBCA 66 , 2008M.B.C.A. 66, Maultsaid v.

Blair, 2009 BCCA 102 , 2009 B.C.C.A. 102 and Yakimitz v. Chorkwa, 2013 ABQB 443 ,2013 A.B.Q.B. 443. I have also reviewed Sonne v. Wurzer, 2011 BCSC 609 , 2011 B.C.S.C. 609 which was brought to myattention by counsel for Ms. W. [15] These authorities make clear that there is no universally accepted method of determining whether the 40% threshold has beenmet.

The appropriate method depends on the unique circumstances of each case. [16] In Berry, Madam Justice Saunders, for a majority of our Court of Appeal, concluded that: [10] In my view the issue is a matter of judgment not amenable to simply a time accounting exercise.

I consider that in determiningwhether the threshold level for application of s. 9 is met the question is whether the paying parent spends such a sizeable percentage oftime with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child inspending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level isachieved. It follows, in my view, that a court may assess child-parent time as meeting the s. 9 criteria without a tight accounting.

Thatassessment should be made by considering the broader context of the parenting arrangement. [17] Madam Justice Saunders dealt with the same issue in Maultsaid. Writing for a unanimous Court, Madam Justice Saunders putit this way: [25] There is, in my view, no single method to employ in determining the amount of time a parent has access to their child for purposesof s. 9, given the variety of orders, agreements, and arrangements that exist in parenting situations.

However, considering the languageused giving the right of access, as it may apply to the criteria of s. 9, and bearing in mind the objectives of the Guidelines set out in s. 1, ajudge must make a finding of fact as to the amount of a year in which the access parent has a right to access. [18] The circumstances and results were different in Berry and Maultsaid. [19] In Berry, the father worked for a tow-boat company and worked at sea approximately 130 days per year.

The parenting regimegenerally provided that the three children be in his care on alternate weeks while he was home from sea plus four additional weeks. Theparental arrangements were flexible. Each of the children spent different amounts of time with their father with the eldest spendingapproximately 50% of her time with her father and the others less than 40% of their time with him. A strict accounting of the time spentwas accordingly difficult to complete. In overturning the chambers judge, the Court concluded that s. 9 was “engaged”.

Madam JusticeSaunders wrote: [29] …(This) conclusion is based upon the tenor of the custody and access portions of the trial order which seem to limit Mr. Berry fromequal parenting only because of his work schedule, the fact that the order provides for joint custody, the overall nearness of his totalaccess time to the 40 percent level, the stated desire of one child to spend additional time with him, and the desirability that Mr.

Berry'sparental time be flexible to opportunities and the children's desires. [20] In Maultsaid on the other hand, the parenting arrangements were specifically spelled out by the terms of an order. The Courtdetermined the threshold issue by calculating the amount of time the children were under the care of their mother both by the hour and bythe day. The Court concluded that the 40% threshold was not met either way and distinguished Berry on the basis that the access orderin Berry “did not specify a precise access

schedule but rather described it in terms of the father’s work schedule, which varied with timeshe was at sea.” Madam Justice Saunders added: [30] I recognize this calculation brings the matter close to 40 per cent and appears arbitrary. However, in my view, it is not open to thecourt, faced with the express wording of s. 9, a court order particularizing “the right to access”, and a measure of the time that falls shortof the requisite 40 per cent, to ignore the words, the mandatory requirement, chosen by Parliament. In the words of the Alberta Court inL.C. v.

R.O.C., 2007 ABCA 158, “there is no place for ‘deeming’ parenting time to be what it is not”. [21] In the case of Ms. W. and Mr. D., the circumstances are much closer to the circumstances in Maultsaid than Berry and I willapproach the question in the same fashion, namely in a quantitative rather than qualitative fashion with the “right to access” based on theterms of the FCC order. (See Maultsaid at paras. 20 and 21.) [22] Assuming that Mr. D. picks up D.H.D. at noon on the days he is to pick up D.H.D. “no earlier than after lunch” (which is a

generous assumption to Mr. D.), Mr. D. will spend 478 out of 1344 hours in each eight week rotation with D.H.D. This is 35.6% of the time. Calculating Mr. D.’s time with D.H.D. by the day rather than by the hour helps Mr. D. but still does not bring him across the 40% threshold. Giving Mr. D. a full day’s credit for each day that he picks up D.H.D. at 8:00 a.m. or drops off D.H.D. at 7:00 p.m. and a half day’s credit for each day that he picks up D.H.D. in the afternoon (which again is being generous to Mr. D.), results in Mr. D. being credited with 21.5 days out of 56 days in each eight week rotation.

This is 38.4% of the time. [ 23 ] On the evidence before me, I find that Mr. D. does not cross the 40% threshold and is not entitled to the benefit of any reduction in child support payments under s. 9 of the Guidelines . Having said this, I acknowledge that the FCC order provides that, in addition to his scheduled parenting time with D.H.D., Mr. D. has a right to “such other reasonable and generous” parenting time as the parties can agree. Given that both parties struck me as being sincerely interested in putting D.H.D.’s best interest ahead of any financial implications, it may turn out that Mr.

D. spends additional time with D.H.D. beyond what is specifically spelled out in the FCC order. For example, Mr. D. may have D.H.D. on special occasions or when Ms. W. is unable to access child care for D.H.D. On the other hand, it may turn out that any additional time D.H.D. spends with Mr. D. is offset in whole or in part by extra time D.H.D. spends with Ms. W. for the same or similar reasons. [ 24 ] Unlike Berry , this is not a case where I have the benefit of knowing how the parenting regime is actually operating.

Because the shared parenting regime was put into place on the very day I heard evidence on child support issues, my decision must necessarily be prospective and based on the terms of the FCC order. At this point, I am unable to speculate whether the parties will strictly adhere to the FCC order or whether they will approach their co-parenting responsibilities with flexibility towards one another with a view only to D.H.D.’s best interest. I am specifically unable to speculate whether Mr. D. will spend more, less or the same time with D.H.D. as compared to the terms of the FCC order. If it turns out that Mr.

D. has physical custody of D.H.D. more than 40% of the time, Mr. D. can apply to vary the terms of the child support order. [ 25 ] Many of the decisions I have read, speak of the perverse financial incentives that arise for parents to order their affairs with a view to achieving the 40% threshold (or preventing the other parent from doing so) rather than concerning themselves only with the best interest of their child. The folly of such conduct is evident.

Not only does such conduct have the potential for being contrary to the best interest of the child but the financial impact of reaching the 40% threshold may not be significant. Even if the 40% threshold is crossed, that does not necessarily mean that a change in support will be made just that one might be made after a careful consideration of the factors set out in s. 9 of the Guidelines . [ 26 ] Using this case as an example, if I had found that Mr. D. had crossed the 40% threshold, I would not have made a significant reduction in his Guidelines support obligation.

By expressing this point openly, it should be clear to Ms. W. that there is no reason for her to prevent Mr. D. from having the other “reasonable and generous” parenting time with D.H.D. contemplated in the FCC order, even if that may open the door to a future s. 9 adjustment. Determination of Mr. D.’s Child Support Obligation [ 27 ] Given my factual finding that s. 9 of the Guidelines does not apply, the determination of Mr. D.’s child support obligation is straightforward. On earnings of $73,900, the Guidelines provide that Mr. D. must pay Ms. W. $692 per month in child support for D.H.D.

Of course, this is net of any child support payments made by Mr. D. under the terms of the FCC order. Apportionment of Child Care Costs [ 28 ] The parties agree that Mr. D. to contribute to Ms. W.’s child care expenses net of subsidies and net of any tax benefit. For a variety of reasons, Ms. W. does not know the cost of future child care for D.H.D. The parties have, therefore, agreed that Mr. D. contribute to Ms. W.’s net child care expenses on a monthly basis assuming a 10% tax benefit with an annual adjustment for the actual tax benefit received by Ms. W.

The annual adjustment can take place every May 31 after Ms. W. has received her Notice of Assessment from the Canada Revenue Agency. [ 29 ] The issue I am left to determine is what proportion of the net child care expenses Mr. D. should pay. Ms. W. seeks two thirds, an amount that is in direct proportion to their respective incomes. Mr.

D. suggests that, given the parties respective financial situations, one half is more appropriate. [ 30 ] Section 7(2) of the Guidelines provides that the “guiding principle” for the sharing of special expenses such as child care expenses is that the spouses share “in proportion to their respective incomes”. The parties correctly acknowledge that the court has the discretion to vary from this guiding principle. [ 31 ] I have reviewed the parties’ filed Financial Statements carefully. Neither lives an extravagant lifestyle. With the child support order I have made, it is apparent that Ms.

W. will be able to meet her financial obligations while Mr. D. will have to make some significant changes to meet his. I am confident he can do so and I am not prepared to make an adjustment to child care cost sharing based on the current financial position of the parties. That, however, is not the end of the story. [ 32 ] The FCC order makes Mr. D. responsible to both pick up and drop off D.H.D. Mr. D. will incur a not insignificant expense to do so. Mr. D. will also be caring for D.H.D. a very substantial amount of the time which will necessarily result in some modest savings for Ms.

W. for items like food and entertainment. For these reasons, I order that Mr. D. pay one half of Ms. W.’s net child care expenses. Commencement Date of the Order [ 33 ] The final issue is the commencement date of the Order. Ms. W. seeks August 1, 2013, a date less than one week from the date the parties separated. Mr. D. seeks November 1, 2013, the date that he began paying $300 in monthly support payments as well as one half of Ms. W.’s net child care expenses on an interim basis.

[ 34 ] The leading case on “retroactive” child support orders is D.B.S. v. S.R.G. , 2006 SCC 37 . In D.B.S. , the Supreme Court of Canada describes the ultimate goal of child support payments in the following words: [4] ...(T)he ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it.

Any incentives for payor parents to be deficient in meeting their obligations should be eliminated. [ 35 ] The Court goes on to analyse three scenarios where retroactive child support orders may be made: where a previous child support order has been made; where a previous agreement regarding child support is in place; and, where no previous order or agreement exists. In the latter scenario, the Court understandably favours child support orders being made effective on the date the obligation to pay child support arose, namely on separation.

The Court provides the following analysis of the scenario where no previous order or agreement exists: [80] …(A)bsent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe (s)he was acquitting him/herself of his/her obligations towards his/her children. … [82] In my view, the legislatures left it open for courts to enforce obligations that predate the order itself. This

interpretation is consistent with the Guidelines , which are meant to “establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation ” (s. 1( a )). So long as the court is only enforcing an obligation that existed at the relevant time, and is therefore not making a retroactive order in the true sense, I see no reason why courts should be denied the option of making this sort of award. (Emphasis in original.) [ 36 ] Mr.

D. resists a commencement date of August 1, 2013 on the basis that he has not engaged in any blameworthy conduct, D.H.D. has not “gone without” between the date the parties separated and November 1, 2013 and Mr. D. has no ability to pay a retroactive award. [ 37 ] I agree with Mr. D. that he has not engaged in overt blameworthy conduct such as filing misleading financial statements or causing undue delay in the proceedings. I also note, however, that Mr. D. did not volunteer any financial assistance to Ms. W. for D.H.D. until the FCC order was made. As the Supreme Court of Canada highlighted in D.B.S. , Mr.

D.’s obligation to provide support to Ms. W. for D.H.D. arose on the separation of the parties. [ 38 ] I also agree that D.H.D. does not appear to have “gone without” between the date the parties separated and November 1, 2013. That D.H.D. did not suffer is due in large part to the generosity of Ms. W.’s parents who gave their financial support to Ms. W. and D.H.D. following the parties’ separation. [ 39 ] Finally, I accept that Mr. D. has no present ability to pay the “instant arrears” that would be created by virtue of a retroactive award. [ 40 ] In my view, the three factors raised by Mr.

D. do not amount to the sort of “special circumstances” that would justify a three month delay in the commencement of the order. The commencement date will be August 1, 2013. To address Mr. D.’s present inability to immediately pay the arrears that will arise on the making of my order, I will give Mr. D. time to pay these arrears. I order that Mr. D. pay the arrears that arise from this order at a rate of not less than $200 per month until the arrears are paid in full.

Summary [ 41 ] To summarize, I make the following order: 1. Mr. D. is to pay Ms. W. $692 per month in child support commencing August 1, 2013. These payments are net of any child support payments made by Mr. D. under the terms of the FCC order made November 14, 2013. 2. Mr. D. is to pay one half of Ms. W.’s child care expenses for D.H.D. net of any available subsidies and net of any tax benefit to Ms. W. commencing August 1, 2013. Ms. W. must provide receipts of her actual child care expenses (i.e. net of subsidies) to Mr. D. on a monthly basis. After making a 10% deduction for the estimated tax benefit Ms.

W. will receive for her child care expenses, Mr. D. is to promptly reimburse Ms. W. for these expenses. The parties will make an annual adjustment to the amounts paid by Mr. D. to reflect the actual tax benefit received by Ms. W. The adjustment will take place on May 31 each year, after Ms. W. has received her Notice of Assessment from the Canada Revenue Agency. 3. Mr. D. is to pay the arrears that arise on the making of this order by paying Ms. W. not less than $200 per month until the arrears have been paid in full. 4. Ms. W.’s application for spousal support is adjourned generally with Ms.

W. being at liberty to reapply in the future. [ 42 ] I thank and commend the parties and their counsel for their respectful conduct throughout the hearing. I encourage the parties to continue putting D.’s best interest ahead of all else. __________________________ L.S. Marchand

Provincial Court Judge