S.A.W. v. W.B.B. Date:, 2015 BCPC 373

Citation: S.A.W. v. W.B.B. Date: 20151218 2015 BCPC 0373 File No: 15167 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.A.W. APPLICANT AND: W.B.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Applicant: Ms. Gillian Oliver

Counsel for the Respondent: Mr. Don Komori Place of Hearing: Kamloops , B.C. Dates of Hearing: September 22 and October 15, 2015 Date of Judgment: December 18, 2015 [ 1 ] This is an application by S.A.W. for one year of retroactive child support and for a contribution towards the children’s extraordinary expenses. For the purposes of this hearing the parties have agreed that W.B.B. earns an annual income of $120,000, S.A.W. earns $83,700, and the father is to pay child support in the amount of $1,086 per month.

He has paid child support in this amount since July of 2015. [ 2 ] The parties were married on December 27, 2003. Their only child together, A.R.B., was born [omitted for publication]. The parties separated in the fall of 2006 and divorced on January 1, 2009. [ 3 ] The parties entered into a written separation agreement on May 6, 2007. The separation agreement appears to have resolved all division of property and support issues between the two.

The parties did not have legal advice prior to entering into this agreement. [ 4 ] It provides that W.B.B. shall pay child support to S.A.W. based on W.B.B.’s Guideline income. In addition he was to pay “… for special expenses, the sum of $300”. S.A.W. says she understood this amount was to be long term and to cover extracurricular expenses and daycare. She says at the time the agreement was entered into she was paying $700 per month for daycare. This was later increased to $750 per month. She says this was the only expense at this time. [ 5 ] W.B.B. has paid less than the $300 starting in 2010.

S.A.W. says at this time he only paid one-half of any daycare expenses, but refused to pay for half of the extracurricular expenses. She agreed to his request to pay his half of daycare directly but wanted him to pay the remainder of the $300 to her. He initially refused to do this. S.A.W. says she paid $4,880 in 2013, and $4,220 in 2014, for daycare. She says she has paid $3,533 for extra ordinary expenses in 2015 for the child to date. [ 6 ] W.B.B. stated when daycare costs were $700 or $750 he did not increase his monthly contribution to S.A.W.’s expenses.

He says when the agreement was entered they did not discuss what the $300 monthly cost was for, but does say he understood that the agreement was for each to pay for half of the daycare expense. [ 7 ] S.A.W. has filed a FMEP printout which sets out that W.B.B. is as of September 18, 2015, in arrears of $776.88. This includes the special expenses of $300 per month and income of $1,044 per month. [ 8 ] S.A.W. is a biologist and employed with [omitted for posting]. She is remarried. Her husband’s income varies substantially. In 2013 his income was $108,924, and in 2014, $304,786.

She says she is able to meet her and A.R.B.’s expenses but does not have a lot for savings. [ 9 ] W.B.B. is a pharmacist and manager of a [omitted for posting] pharmacy. He has been a pharmacist for 23 years and a manager for over 12. He was just recently married but I understand has lived with his wife since 2010. She has one child aged 16 or 17 and together they have a 4 year old son. [ 10 ] S.A.W. says she and W.B.B. were into all kinds of sports and expected A.R.B. to also be.

She says W.B.B. was aware of the expenses she incurred on behalf of A.R.B. for sporting activities and that A.R.B. talked to him about what she was doing. She says the only concern he raised was whether A.R.B. was doing too much. She says as a result of this concern she spoke to A.R.B. and it was decided that she would not participate in guides and brownies. She does admit that she did not always tell him before hand of the activities A.R.B. was signing up for. W.B.B. says he is not opposed to A.R.B. playing sports and supports that she is active.

He says he was not advised before-hand that A.R.B. was going to be involved in rep soccer, skiing, dance, brownies, guides, or hockey. He agrees that A.R.B. does need to attend camps in the summer when her mother is working. [ 11 ] The activities that A.R.B. participated in included gymnastics, French camp, Peter Puck camp, skiing, dance, and rep soccer. S.A.W. says there are quite a few expenses involved in rep soccer including travel and overnight expenses. S.A.W. says A.R.B. required orthodontic work which cost $6,346, but that almost all of this has been covered by hers and W.B.B.’s dental plans.

S.A.W. says that even though W.B.B. has refused to make any payments of $300 since July she has continued to pay the extracurricular expenses on her own. [ 12 ] S.A.W. says she likes a set amount for this expense as her and W.B.B. do not communicate well. W.B.B. admitted that the two of them had difficulty in discussing financial matters. [ 13 ] S.A.W. says her new husband pays her $500 per month for household expenses.

She says she pays for all of the household expenses because it is her house. [ 14 ] W.B.B. testified that in 2013 he cashed in RRSP’s in the amount of $18,631 to purchase a trailer for his new family. Analysis [ 15 ] There are three issues that I must address. They can be summarized as follows: 1. Should the father have paid more child support in 2014 because his income was higher in 2013 as a result of his cashing in RRSP’s? 2. How much should the father pay for extraordinary expenses?

3. Should there be a cancellation of arrears; this is related to issue 2? [16] On the first issue, the mother says that W.B.B. in 2013 earned income in the amount of $148,842. She says based on thisincome he should have paid child support of $1,267 per month. W.B.B. paid $1,044 per month in 2013. She says as a result W.B.B. isin arrears in the amount of $2,676. [17] S.A.W. relies on the case of McKenzie v. Perestrelo, 2014 BCCA 161. In that case, the father made a non-recurring withdrawalfrom his RRSP’s to pay for legal fees.

Madam Justice Kirkpatrick found that there was no clear rule of when RRSP withdrawals wouldbe included in income for the determination of child support. She did find, however, that there were some guiding principles. Theprinciples applicable to the matter before me can be summarized as follows: 1. There is a presumption that it should be included as income and the person arguing that it should not be included had the onus ofshowing that “… it would not lead to the fairest determination of income” (para. 82). 2.

There is not a presumption that non-recurring withdrawals should be automatically excluded from income for child support. 3. The court is to consider the reason for the withdrawal. The presumption “may be displaced by an array of circumstances” (para.83). [18] The court found in McKenzie that the payor’s income, exclusive of the RRSP withdrawal, was approximately $100,000.

Madam Justice Kirkpatrick stated that if the withdrawals were his only income then the exclusion might not have been justified. [19] W.B.B. says that it is discretionary whether the court will include a one-time RRSP withdrawal as income for the purposes ofdetermining child support. W.B.B. stated that the withdrawal was made for the purpose of purchasing a trailer to be used by his newfamily. [20] In applying the principles set out in McKenzie the onus is on W.B.B. to show why the RRSP withdrawal should not be includedas income as it does not lead to the fairest determination of income.

As the court notes in McKenzie this presumption may be displacedby an array of circumstances. The circumstances in favour of displacing this presumption include that it is a non-recurring event and thisis not the only income of W.B.B. during this taxable year. On the other hand, I consider that the use of the funds withdrawn, that beingto purchase a trailer, tends towards inclusion. I say this because W.B.B. chose to use this to provide support to his new family. In all thecircumstances I find W.B.B. has not displaced the presumption and therefore this shall be included as income for the 2013 year.

Relyingupon the calculation of counsel I determine that the amount for retroactive child support for 2013 is $2,676. [21] On the second issue set out above S.A.W. relies on the decision of Bodine-Shaw v. Shaw, 2014 BCCA 191. Madam Justice D.Smith referred to s. 7 and 7(1.1) of the Guidelines. She then stated as follows (at para. 66): Special expenses are defined as relating to child care, medical or dental insurance premiums, health related costs, and post-secondaryeducation. They must be found to be reasonable and necessary. Extraordinary expenses are not defined.

Their extraordinariness isdetermined in the context of the combined income of the spouses, as well as other considerations, including the nature and amount of theindividual expense, the nature and number of the activities, any special needs or talents of the child, and the overall cost of the activities. They must also be found to be reasonable and necessary.

Relevant considerations for the tests of necessity and reasonableness includewhether the expenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, thechild, and to the family’s spending pattern prior to separation. See McLaughlin v. McLaughlin (1998), (BC CA), 57BCLR (3d) 186 at paras. 81-82 (C.A.). In assessing “means”, the court may consider the parties capital assets, income distribution,debts, third-party resources, access costs, support obligations, receipt of support, and any other relevant factor: Delichte v.

Rogers, 2013MBCA 106 at para. 38. Courts may consider whether the non-custodial parent was consulted regarding the expense, though a lack ofconsultation does not automatically preclude a finding that the expense is reasonable and necessary: Delichte at paras. 39,44. [22] S.A.W. argues that any amount claimed for special expenses should be granted without dispute. S.A.W. argues that the realissue is whether the other expenses claimed qualify as extraordinary expenses. S.A.W. argues that pursuant to either s. 7(1.1)(

a) or (b)she qualifies for the extraordinary expenses claimed. [23] S.A.W. points to the evidence that A.R.B. is a talented soccer player as she has been selected for rep soccer. She refers me tothe case of Farmer v. Farmer, 2009 BCSC 1064 , 2009 B.C.S.C. 1064, in which Mr. Justice Cole found that the daughterplayed at a “metro level” of soccer. He makes this comment that this was not just house league and that the total expenses were asignificant amount of money but the income of the parents could justify the expenditure.

It was found therefore to be both reasonableand necessary and as a result qualified as an extraordinary expense. [24] S.A.W. submits that neither party takes the position that these activities are not in the child’s best interest. She says the issue iswhether the expenditures are reasonable. She argues that both parties have the means to contribute to these expenses, althoughacknowledges that the father’s position is that he has other expenses that make this difficult. [25] S.A.W. also referred me to the decision of J.P.S. v. C.G.W., 2003 BCSC 968 , 2003 B.C.S.C. 968.

In this case Mr.Justice McEwan gives a narrow definition to the term “means”: he says that in s. 7(1) “means” relates primarily to the reasonableness ofthe expense (para. 15). [26] S.A.W. argues that the issue of whether a parent has incurred expenses without consultation of the other parent is only an issuewhere there is not an amount agreed to by the parents that the payor is to contribute.

She argues therefore that in these circumstanceswhere the parties agreed to a set amount that she was not required to consult with W.B.B. [27] S.A.W. argues that W.B.B. should be paying a total of $175 per month for s. 7 expenses. [28] W.B.B. argues with respect to extraordinary expenses that these are expenses which S.A.W. can afford to pay. This argument isbased on the evidence of S.A.W. that she has continued to pay for these expenses even though W.B.B. stopped contributing the $300 per

month. [29] W.B.B. refers me to the decision of D.L.C. v. F.M.C., [2010] B.C.J. No. 1842. Madam Justice Bennett found that the leadingcase of what would amount to an “extraordinary expense” under s. 7 is McLaughlin v. McLaughlin, (1998), (BC CA), 44 RFL (4th) 148 (BCCA). Prowse, J.A., in McLaughlin found that the Guideline amount included extracurricular and school/educationexpenses that were not extraordinary.

This requires, in a courts determination of whether an expense is extraordinary, an assessment ofwhether the expense accords with the parent’s income and a comparison of what expenses are normal for that income. [30] Madam Justice Bennett in D.L.C. found that none of the children were participating in activities beyond the average child and assuch the expenses were not extraordinary expenses in “… light of the parties’ income and child support ordered” (para. 67).

W.B.B.argues that the same principle applies to the case before me and that I should find the expenses claimed by S.A.W. are not extraordinary. [31] W.B.B. also refers me to the case of Baum v. Baum, 2000 BCSC 1835 , [2000] B.C.J. No. 2565. Madam JusticeMartinson stated that s. 7(1) of the Guidelines requires the court to consider the means of the parties and not just their income (para. 9).

The court can also look at the economic well-being of the spouses which should include a consideration of family income. [32] W.B.B. then argues that I should consider the evidence of S.A.W.’s household of three persons and their income including thather husband earned over $300,000. He compares this to W.B.B.’s household income of $120,000 for four persons.

He argues that theyshould each pay for the expenses of the child during times that the child is with them. [33] For the purposes of calculating extraordinary expenses, I will first determine which of the extracurricular expenses of A.R.B.are ordinary and which are extraordinary. The only expense that I find to be an activity beyond the average child is that of A.R.B.’sparticipation in rep soccer. I find that rep soccer requires expenditures beyond the ordinary as it requires extensive travel and other fees. The evidence is that this is significantly more than league soccer.

I find, on the other hand, the expenses for skiing and dance areordinary expenses for the average child when one considers the activity itself, the parent’s income, and the child support ordered. Iestimate the additional cost of rep soccer to be $1,000. [34] The amount claimed for child care expenses is for camps that the child attends during the summer months when the mother isworking. I find that this is a special expense as it is as a result of S.A.W.’s employment.

The evidence is this adds up to $455. [35] I am not ordering any medical or dental expenses as I understand that the parent’s employment benefits should pay for these. [36] I also find that the amount claimed by S.A.W. for extraordinary educational expenses is not supported by the evidence. Theexpenses appear to be no more than the ordinary educational expenses for a child. [37] The total for special and extraordinary expenses is $1,455. I find that this expense should be shared equally between theparties.

This means W.B.B. is required to pay $60.63 per month. [38] On the issue of arrears and whether they or some part should be cancelled, the evidence is W.B.B. paid $300 per month untilthe month of June 2015. I am not prepared to re-calculate the amount he should have paid up until that time. I will make the order forarrears of special or extra-ordinary expenses of $60.63 to be retroactive to July I, 2015. [39] The order is as follows: 1.

W.B.B. shall pay S.A.W. child support in the amount of $1,086 per month on the first day of each month commencing January 1, 2016and for as long as the child is eligible for support under the Family Law Act or until further court order. 2. W.B.B. shall pay S.A.W. retroactive child support for the year 2014, based on the income of 2013, in the sum of $2,676. 3. W.B.B. shall pay S.A.W. special and extra-ordinary expenses in the amount of $60.63 per month commencing July 1, 2015 toDecember 31, 2015.

Starting January 1, 2016, W.B.B. shall pay S.A.W. 50% of all special and extraordinary expenses including anysuch expense for rep soccer and summer programs attended by the child while S.A.W. is working. ___________________________ R.C. Dickey Provincial Court Judge