Petrie v. Senay, 2015 BCSC 1083

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Petrie v. Senay, 2015 BCSC 1083 Date: 20150624 Docket: E053411 Registry: Vancouver Between: Eleanor Charlotte Anne Petrie Claimant And William Henry Senay Respondent Before: The Honourable Mr. Justice Greyell Reasons for Judgment Counsel for the Claimant: L.J. Hamilton Counsel for the Respondent: J.B. Carter Place and Date of Trial/Hearing: Vancouver, B.C. May 28, 2015 Place and Date of Judgment: Vancouver, B.C.

June 24, 2015 [ 1 ] This is a family law case in which the claimant seeks a retroactive adjustment to child support, retroactive and ongoing payment of certain s. 7 expenses and special costs and/or a fine pursuant to s. 213 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ]. [ 2 ] The parties have agreed to some of the terms of the order, particularly the amount of child support which should be paid going forward and the payment of certain ongoing special expenses. [ 3 ] The main issues are the date to which child support and certain s. 7 expenses should be retroactive, whether certain other expenses qualify as s. 7 expenses and whether special costs and/or a fine should be ordered.

Background [ 4 ] The parties were married in Vancouver on June 4, 1981. They divorced on July 13, 2007. [ 5 ] There is one child of the marriage, Freya Anne Senay Petrie (“Freya”) born September 14, 1999. Freya is currently 15 years old and resides with her mother in England. [ 6 ] The respondent currently resides in Mexico where he commutes to and from Montreal for the purposes of work. Court Proceedings [ 7 ] The divorce proceedings were commenced by way of a writ of summons and statement of claim issued on October 17, 2005. [ 8 ] On August 9, 2006, Mr.

Justice Kelleher ordered the respondent to pay interim child support of $1,380 per month and interim spousal support of $4,000 per month, both payments commencing August 1, 2006 (the “2006 Order”). These interim payments were based on the respondent having been found to have a Guideline income of $162,000 per annum. [ 9 ] The 2006 Order further provided the claimant was to have sole custody of Freya and both parties were to be joint guardians.

The claimant was required to “discuss with the Defendant any significant decisions which have to be made concerning Freya, including … education …”. [ 10 ] The claimant was granted permission in the 2006 Order to move with Freya to the United Kingdom in or about August 2006 and was required to facilitate the respondent’s visits with Freya a set number of times per year in both Canada and the United Kingdom.

[ 11 ] The claimant moved to England with Freya and continues to reside there. [ 12 ] The respondent is a pilot with a major Canadian airline and is able to facilitate travel arrangements for himself, his daughter and his former spouse. This was discussed in detail in both the 2006 Order and the subsequent final order. [ 13 ] The parties were granted an order for divorce by Madam Justice Holmes on July 13, 2007 (the “2007 Order”).

The 2007 Order provided for spousal and child support in the same amounts as the 2006 Order and was based on the same Guideline income of the respondent. [ 14 ] The 2007 Order also provided the parties would share extraordinary expenses in the proportion of a 1/3 payment by the claimant and a 2/3 payment by the respondent: The Plaintiff and the Defendant shall share extraordinary expenses for Freya including but not limited to orthodontic work in proportion to his and her guideline income, which, subject to further court order, shall mean that the Plaintiff will pay 1/3 of all such costs and the Defendant shall pay 2/3’s of all such costs as and when they arise. [ 15 ] The 2007 Order provided for consultation by the claimant before incurring extraordinary expenses: Except in the case of emergencies and the flights for Freya and the Plaintiff addressed in paragraph 5 herein, the Plaintiff will consult the Defendant in advance of incurring extraordinary expenses and either party will have liberty to apply to this court in the event they cannot agree with respect to what constitutes an extraordinary expense. [ 16 ] The 2007 Order also contained a provision respecting an annual review of each party’s income for the purposes of determining whether child support should be adjusted.

Paragraph 8 reads: The Plaintiff and the Defendant shall exchange updated financial information by July 1st of each year commencing in 2007 for the purpose of determining whether child support, including the base support or sharing of extraordinary expenses, should be adjusted. If an adjustment is warranted, the parties will either sign a consent order or apply to this court for the variation.

The exchange of information by the Plaintiff and the Defendant shall include the following: a. a copy of his income or her income tax returns filed for the previous taxation year; b. copy of his or her Notice of Assessment and/or Reassessment from Canada Customs and Revenue Agency (or in the Plaintiff’s case, the equivalent from the United Kingdom) with respect to the preceding taxation year; c. a copy of his or her most recent statement of earnings showing employment earnings to date for the year including overtime or, where such statement is not available from the party’s employer, a letter from the party’s employer setting out the information; d. in the event that either party is self-employed or employed abroad, that party’s obligation to disclose financial information annually shall include the obligation to disclose the information set out in section 21 (1)(

d) through (

f) inclusive of the Federal Child Support Guidelines . The Guideline Income of the Parties [ 17 ] There is no issue over the amount of each party’s present Guideline income. [ 18 ] The claimant’s Guideline income for basic child support purposes, based on rental income she receives, is $9,908 and for special expense purposes, after adding in the spousal support she receives, is $57,908. [ 19 ] The respondent’s line 150 income (after the deduction of union dues), since the 2007 Order which contained the final support orders, is provided in the table below.

The table also shows the difference between the child support paid and the child support owed based on actual income: Year Line 150 Income Union Dues Guideline Income Child support payable per month Child support payable per annum Child support paid per annum at $1,380/ month Difference 2008 (Jul - Dec) $179,012 $3,885 $175,127 $1,498/month $8,988 (6 mos) $8,280 $708 2009 $280,183 $3,772 $276,411 $2,288/month $27,456 $16,560 $10,896 2010 $197,017 $2,601 $194,416 $1,648/month $19,776 $16,560 $3,216 2011 $206,751 $3,285 $203,466 $1,719/month $20,628 $16,560 $4,068 2012 $221,200 $3,733 $217,467 $1,828/month $21,938 $16,560 $5,379 2013 $233,430 $3,237 $230,193 $1,927/month $23,130 $16,560 $6,570 2014 $233,149 $2,324 $230,825 $1,921/month $23,052 $16,560 $6,492 [ 20 ] It should be noted that the 2009 income above is the respondent’s line 150 income of $189,181, as well as $45,501 in capital gains grossed up to $91,002 in accordance with

section 6 of

Schedule 3 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ].

[ 21 ] I also note that the calculations are based on the table amount applicable in each year. From 2008 to 2013, the tables were consistent, with changes made in 2014. Events Subsequent to the Final Order [ 22 ] Notwithstanding the increase in his Guideline income (and the terms of the 2007 Order) the respondent has not increased the amount of child support he has paid on behalf of Freya since the date of the 2007 Order.

He has continued to pay the sum of $1,380 monthly. [ 23 ] The parties differ as to what financial material the respondent has actually provided to the claimant subsequent to the 2007 Order. [ 24 ] The claimant acknowledges she received the respondent’s 2008 income tax return and notice of assessment, his 2011 income tax return, his 2012 notice of assessment and his 2013 income tax return. She says she did not receive any financial information for 2009 or 2010 and only received the notice of assessment for 2012, not an income tax return.

She does not say when she received this financial information but I assume it was at least by the time specified in the 2007 Order: that is, by July 1 of the ensuing taxation year. [ 25 ] The respondent says he has provided the claimant with copies of all his financial statements “and /or” T4 slips since the 2007 Order. He deposes he is “quite certain” he provided the claimant with his 2009 and 2010 income tax returns. [ 26 ] I accept the claimant’s statement as to the tax information she says she received.

Clearly the respondent did not comply with the 2007 Order by providing the claimant with all the financial information the 2007 Order required him to provide even in those years he did provide financial information. [ 27 ] I also accept the respondent’s financial information in the years for which the claimant says there was no financial information produced was not produced until these proceedings were commenced. The respondent did not produce covering correspondence, copies of notes or emails to demonstrate he had provided the claimant with the financial information she said she had not received.

He says he did not send covering correspondence. He acknowledged he had moved his residence several times over the last several years and that his “paperwork is not in good order" as a result. In my view, in the event the issue is disputed, as in this case, a payor spouse bears the onus of establishing he/she has complied with the terms of a court order requiring disclosure of his/her financial information.

Being “quite certain” without more does not meet such burden. [ 28 ] The issue of a review of child support was first raised on July 30, 2014, when the claimant’s counsel wrote respondent’s counsel raising the issues of outstanding special expenses and an “overdue review of base child support”. [ 29 ] Claimant’s counsel sought income tax returns for 2009, 2010 and 2012 and notices of assessments and/or reassessments for 2007, 2009, 2010, 2011 and 2013. [ 30 ] In addition, counsel sought reimbursement for the respondent’s share of various flights and specified extraordinary expenses which I will discuss shortly. [ 31 ] Counsel for the respondent responded that his client had provided the claimant with “all his income tax returns from previous years” and addressed the issue of extraordinary expenses. [ 32 ] Not being satisfied with this response, the claimant brought this application on December 17, 2014, which was set for hearing January 22, 2015. [ 33 ] The respondent had not provided his Form F8 financial statement at the time of the hearing.

The parties consented to an order that he provide this document by no later than February 12, 2005, with all necessary attachments. The claimant agreed to adjourn the hearing to March 11, 2015. As a result of scheduling issues, the matter ultimately came on for hearing before me on May 28, 2015. [ 34 ] The respondent signed his Form F8 financial statement on January 29, 2015 and filed it on February 2, 2015, however, it did not include any attachments. On March 4, 2015, the respondent filed a second Form F8 financial statement.

This time he attached his 2014 T4 from his employer and a BC Assessment Roll report containing the appraised value of property in Grand Forks but he did not provide a most recent statement of earnings from his employer. The claimant was already in possession of the respondent’s 2014 income tax return. Freya’s Circumstances [ 35 ] There is little doubt Freya is intellectually gifted. [ 36 ] In addition, because of her birth date in September, she was, under the English school system, the oldest child in her class (which, when she started school, had children up to 23 months younger in her class).

This became a problem for Freya’s academic progress. The claimant, on the advice of friends, decided to enroll Freya in Hooke Court School (“Hooke”), a private school, to give her an opportunity to ultimately attend a highly recommended non-fee paying grammar school for children from ages 11 to 18. At the time Freya attended Hooke she was, according to the claimant, “working more than a year ahead of her chronological age in all subjects, and two years ahead in Math and Science”.

She graduated from Hooke achieving grades she would not have received had she continued to attend the school in which she had been enrolled. The claimant deposed she considered Freya’s enrollment at Hooke “to have been necessary and worthwhile for Freya and her continued academic progress”. As noted below, the respondent attended the school and spoke to her teachers. There is no evidence he objected to her enrollment at the time.

[ 37 ] Freya then entered Colyton Grammar School (“Colyton”) in September 2011. She attended there until December 2013 when she left because of a bullying problem. She tried another school but found it was not academically challenging enough. At the time she left Colyton, the claimant deposes that the headmaster advised her that Freya was “on target to achieve A/A+ grades in all her subjects by the summer of 2015.” Since January 2014, Freya has been homeschooled. [ 38 ] I will now turn to deal with the issues raised on this application.

Child Support Arrears [ 39 ] The respondent’s position is that his current Guideline income of $230,825 is the correct amount upon which current child support payments should be based. The respondent also acknowledges there should be retroactive child support based on the Guideline incomes set out in the chart I have provided above for three years, that is to August 1, 2011. [ 40 ] The claimant accepts the respondent’s Guideline income amounts and agrees that current child support payments to July 1, 2015, should be based on the respondent’s 2014 Guideline income.

However, the claimant submits retroactive child support should be effective July 1, 2008, the date she says it would have been first reviewed and adjusted pursuant to the 2007 Order. [ 41 ] The leading case underlying the basis of child support and when the court should order retroactive child support is the well- known Supreme Court of Canada decision in D.B.S. v. S.R.G. , 2006 SCC 37 . The case reiterated the long-standing principle that child support is a right of the child, arising on birth and extending beyond a requirement to pay for the simple necessities of life.

Child support is a joint financial obligation commensurate with each parent’s income. The amount of child support payable by a payor parent is generally determined by the Guidelines : Divorce Act , R.S.C.1985, c. 3 (2nd Supp.), s. 15.1(3) . [ 42 ]

Section 25 of the Guidelines recognizes the basic obligation of a payor parent by imposing a continuing obligation on the parent against whom a child support order has been made to provide specified income information at the request of the other spouse once per year. [ 43 ] The 2007 Order in this case recognized that basic principle by imposing an obligation on both parties to annually exchange their respective financial information by July 1st of each year. [ 44 ] D.B.S. outlines four factors the court should take into account when asked to make a retroactive order: 1. the reasons for the recipient’s delay in asking for an order updating the amount of child support; 2. any misconduct on the part of the payor, such as hiding or lying about income or pressuring the recipient to not ask for more support; 3. any hardship suffered by the child as a result of the shortfall; and 4. any hardship the payor might suffer if required to pay retroactive child support. [ 45 ] When considering the conduct of the payor parent, Justice Bastarache said at para. 106: [106] … courts should take an expansive view of what constitutes blameworthy conduct … I would characterize as blameworthy conduct as anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support … [ 46 ] In this case, the parties agree a retroactive child support order is appropriate, however, they disagree as to the date of retroactivity and, therefore, the amount of the award. [ 47 ] The claimant says the respondent has been guilty of “blameworthy conduct” such as to warrant an award of retroactive child support from July 1, 2008 [ 48 ] The Court in D.B.S . explained at para. 118 that once it is determined that a retroactive award is due, a court has four choices for the date to which a retroactive child support order should be made: (1) when the application is made to court; (2) the date formal notice was given to the payor parent; (3) the date when effective notice was given; and (4) the date when the amount of child support should have increased.

In this case those dates are respectively December 16, 2014 (the date of the application); July 30, 2014 (date of counsel’s letter seeking a review of child support which, in this case, would be the date of both formal notice and effective notice); and August 1, 2008 (the first of the month following exchange of financial information and the date upon which child support should have been recalculated based upon revised Guideline incomes). [ 49 ] The Court went on to explain at para. 123 that an award of retroactive child support should not generally exceed three years before formal notice was given: [123] … Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past.

The federal regime appears to have contemplated this issue by limiting a recipient parent's request for historical income information to a three-year period: see s. 25(1) (

a) of the Guidelines . In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent. [ 50 ] However, this is not always the case, particularly if the payor parent has engaged in blameworthy conduct: [124] The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start.

This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being

met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially.

A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments. [Emphasis added.] [ 51 ] The Court summarized the law regarding the date of retroactivity as follows: [125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past.

However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing. [ 52 ] The present case raises a challenging issue.

The 2007 Order imposes an obligation on each party to disclose their respective incomes annually and then states, “if an adjustment is warranted, the parties will either sign a consent order or apply to this court for the variation”. In my view the parties intended child support should increase with an increase in income. The words “if an adjustment is warranted” I interpret to mean “if there is a change in income, an adjustment will follow”.

Furthermore, considering that a parent’s support obligations are commensurate with his or her income, even if not directly spelled out in the 2007 Order, it is implicit in the order that if the respondent’s income increases the respondent had an obligation to take action to fulfil his increased child support obligations. The respondent did make disclosure of his income, as least in 2008, 2011, 2012 and 2013 on or about the date he was required to do so.

What the respondent did not do from 2008 onwards was to increase the monthly amount of his child support payments as he was required to do pursuant to the 2007 Order. [ 53 ] The claimant was aware the respondent’s income had risen slightly in 2008. She was not aware his income had increased substantially from that amount in 2011 until July 2012.

Although she was aware at least by July 2012 that the respondent’s income had, by that time, risen significantly above the Guideline income set out in the 2007 Order, she was never made aware of the respondent’s capital gains in 2009 or his income in 2009 or 2010 until after these proceedings were commenced.

Notwithstanding the knowledge she did have of the increase in the respondent’s Guideline income, she did not raise any issue about retroactive child support until the matter was raised in her counsel’s letter of July 30, 2014. [ 54 ] The claimant was residing in England, clearly had limited means and had the care of Freya. As has been discussed earlier, Freya is a gifted student who is academically several years ahead of her peers and has been attending a private school which the claimant considers to be in Freya’s best interests.

The claimant has funded much of Freya’s educational requirements to date (which have been substantial) and a substantial amount of travel expenses. She has done so without raising the issue of a review of child support with the respondent. I am satisfied also that the claimant has had little in the way of financial resources to spend on pursuing legal recourse against the respondent.

Yet it is striking to me that, notwithstanding, she did not raise the issue of the respondent’s obligations under the 2007 Order to adjust the child support amount for Freya. [ 55 ] This is not a case where the respondent hid his income from or deceived the claimant about his income. While I do find the claimant did not receive 2009 and 2010 financial information from the respondent, the claimant was aware of the fact the respondent’s income had increased for a number of years before raising the issue of an adjustment to child support.

In this sense, the present case is different on its facts from those considered in Hausmann v. Klukas , 2009 BCCA 32 , upon which the claimant relies. In Hausmann , the Court of Appeal, citing D.B.S. , ordered retroactive child support to be paid when such support would have changed under the terms of a court order commenting at para. 21: Mr. Klukas was bound by the terms of the court order to comply with it or apply to the court to vary it.

He did neither. [ 56 ] The distinguishing feature between Hausmann and the present case is that in the former the court found blameworthy conduct because the payor parent had failed to disclose the increases which had occurred in his Guideline income to the claimant. [ 57 ] A further distinguishing feature is that the order in Hausmann directly and clearly stated that the parties were to exchange completed personal and corporate tax returns by June 1 each year and that child support be varied as required. [ 58 ] The claimant in this case may have had difficulty raising the issue of increasing child support because she found it disruptive to both herself and Freya when she generally raised issues involving money.

In particular, the cost of flights and whether Freya should be flying alone to save the respondent money. The evidence I do have of communications over this issue between the claimant and respondent is curt and pointed. The evidence does not rise to the level where it is asserted any type of intimidation occurred by the respondent: D.B.S. at para. 124. [ 59 ] In my view, it is appropriate in this case to make an order for retroactive child support for three years from the date of effective/formal notice.

However, I also find that in order to yield a fair result, I should exercise the discretion referred to in para. 130 of D.B.S. : [130] A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures.

While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. … Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [ 60 ] While I find that I should not go beyond the rough guideline of three years’ retroactive child support from the date of effective/formal notice, I do find that, although the claimant was aware of the respondent’s substantial increase in income by 2012, she was never made aware of the capital gains received by the respondent in 2009 until the disclosure exchange related to this application.

Ignoring this fact in the calculation of the amount of a retroactive award would be unfair to the claimant.

I note she was also not made aware of the respondent’s 2009 and 2010 income. [ 61 ] I find that the appropriate award of retroactive child support is support commencing August 1, 2011, however, the respondent’s 2009 income will be used in place of his 2012 income. [ 62 ] In reaching this conclusion, I have taken into account the obligations imposed on the respondent by the 2007 Order to exchange his financial information annually, his failure to do so in breach of the order, the fact the claimant did not raise the matter until July 2014 notwithstanding that she had some financial disclosure from the respondent for the years 2008 to 2011 which demonstrated the change in his Guideline income, the gross disparity between the Guideline incomes of the parties and the fact the claimant has borne most of the financial burden of raising Freya. [ 63 ] The claimant submits that since the respondent’s income is known for the year in respect of which child support is sought, I ought to use that annual income to determine the amount of retroactive child support because this is consistent with s. 2(3) of the Guidelines which states that the most current information must be used to determine any Guideline amount and because it is anticipated that when the respondent retires, potentially in 2018, he will seek that his child support be reduced immediately rather than continue to pay child support on his previous year’s income.

The respondent submits, instead, that his support obligation should be based on the previous year’s income, as set out in the 2007 Order. Having done the calculations, there is approximately a $2,800 difference between these two approaches. [ 64 ] Despite the delay evident in the 2007 Order, in that on each July 1 st the previous year’s income would be used to vary the child support paid, I find it is appropriate to use the most current information available.

Where the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should be paid retroactively: Lewis v. Adesanya , 2014 ONCJ 326 at paras. 22 - 23 and 31 . If the respondent wished to enjoy the benefit of such a delay, he should have provided the disclosure and increased support in compliance with the 2007 Order. He should not be allowed to now benefit from that when the court is determining his support obligations commensurate to his income.

As the Court stated in para. 68 of D.B.S. , “This obligation is independent of any court order that may have been previously awarded”. [ 65 ] Therefore, I find that the respondent should pay the following in retroactive child support for a total of $28,893: Year Monthly Obligation Annual Obligation Annual Amount Paid Difference Owed 2011 $1,719 $8,595 (5 mos) $6,900 $1,695 2012 $2,288 (2009 income) $27,456 $16,560 $10,896 2013 $1,927 $23,124 $16,560 $6,564 2014 $1,921 $23,052 $16,560 $6,492 2015 $1,921 $11,526 (6 mos) $8,280 $3,246 Prospective Child Support [ 66 ] The respondent will pay the claimant child support in the amount of $1,921 per month commencing July 1, 2015, and continuing on the first of each month for so long as Freya remains a child of the marriage or until further court order or written agreement of the parties or as adjusted pursuant to the terms of the annual exchange and review of income as set out at paragraph 8 of the 2007 Order. [ 67 ] As described above, paragraph 8 begins as follows: The Plaintiff and the Defendant shall exchange updated financial information by July 1st of each year commencing in 2007 for the purpose of determining whether child support, including the base support or sharing of extraordinary expenses, should be adjusted.

If an adjustment is warranted, the parties will either sign a consent order or apply to this court for the variation. … Special Expenses [ 68 ] The claimant claims retroactive reimbursement for the respondent’s share of various special and extraordinary expenses. Some of these expenses have been agreed to by the respondent; some are in contention. I will review both those the parties have agreed to and those not agreed to.

Reimbursement for Flight Costs Incurred by the Respondent [ 69 ] The respondent has agreed to reimburse the claimant for $11,973 for his 2/3 proportionate share of the flight costs for summer 2010, Christmas 2010, Christmas 2011, summer 2012 and Christmas 2012. Other Special Expenses Agreed [ 70 ] The respondent has agreed to pay his portion of the following special expenses: • Freya’s homeschooling, expected to be approximately $551 (Can.) per month at current exchange rates commencing from the date of the application;

• the ongoing costs of Pilates classes and Art and Design classes, estimated at approximately $364 (Can.) per month at current exchange rates; • any future costs of transporting Freya for visits with the respondent; • expenses for post-secondary education that are agreed upon in writing by the claimant and the respondent prior to being incurred; • any other expenses that are agreed upon in writing by the claimant and the respondent prior to being incurred; • that portion of the medical and dental insurance premiums attributable to Freya; and • health related expenses that exceed reimbursement by at least $100 annually including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses.

Retroactivity of Special Expenses [ 71 ] There are several special expense claims made by the claimant that the respondent agrees to pay on an ongoing basis but where the parties disagree on the issue of retroactivity.

Most of the disagreement arises from the claimant’s obligation to consult with the respondent before incurring such expense as set out in the 2007 Order. [ 72 ] It is difficult to see why I should hold the claimant strictly accountable to the 2007 Order for failing to consult with the respondent for special expenses while at the same time finding the respondent is not accountable for failing to account for increased child support as his income increased as intended in the 2007 Order.

In my view, the same principle should be applied to both. [ 73 ] Using the same three year retroactivity option, the respondent will pay his proportionate share of those special or extraordinary expenses incurred by the claimant on or after August 1, 2011, but not prior to that date. The respondent’s portion will be based on his Guideline income in the year the expense was incurred and on the prevailing exchange rate at that time. As explained above, the 2009 income amount will be used in place of 2012.

The special expenses which fall to be determined in this manner include expenses for Freya’s home schooling from January 2014 and past Pilates classes and Art and Design classes. Special Expenses Disallowed Sailing Lessons [ 74 ] I disallow the claimant’s claim for the cost of sailing lessons for Freya which she took while in Vancouver in 2013 and 2014 totalling $592.52 (respondent’s proportionate share) for several reasons. Not only was the respondent not consulted about incurring this cost, he is a skilled sailor and could have given such lessons to Freya himself.

Given the limited means of the claimant and lack of particularity about Freya’s reasons for taking such lessons, I am not satisfied the expense was a reasonable one which should have been incurred. Future Educational Expenses [ 75 ] While I have found homeschooling expenses to be reasonable special expenses, I am of the view making a broad order, as requested, covering future educational expense is inappropriate. Whether such expenses are proper special expenses will depend on the amount and nature of the expense.

Further, such an order would be inconsistent with the claimant’s obligation to discuss such expenses with the respondent before incurring them as set out in the 2007 Order. Special Expenses Allowed Hooke Private School Tuition [ 76 ] I have earlier outlined Freya’s educational achievements and her schooling circumstances.

The claimant claims reimbursement of the respondent’s share of the cost of tuition fees for Freya attending Hooke between 2008 and 2011 in the amount of $14,174.87. [ 77 ] The defendant disputes he is responsible for any of the above sum on the basis he was not notified by the claimant she intended to enroll Freya at Hooke. [ 78 ] At some point in time between 2008 and 2011, the respondent acknowledges he learned Freya was enrolled in Hooke. He deposes: Freya’s enrolment in Hooke Court School was never discussed with me prior to her enrollment.

I first heard the explanation for Freya going to Hooke School through her counsel last year, other than a short verbal explanation from the Claimant previously (when I learned that Freya was in Hooke School). My understanding is that she was enrolled in and attended Hook Court School for two years. I did meet with her teachers and did tour the school. [ 79 ] In my view, the Hooke private school expense should be an exception to retroactivity extending only to August 2011.

For the reasons set out in the following paragraph, I order the respondent to pay this special expense. [ 80 ] The respondent was aware Freya was enrolled in and attending a private school. As a parent, one of his prime responsibilities was to ensure his daughter received an education that would enable her to reach her potential. That responsibility did not cease because

his daughter resided with the claimant in England and he resided elsewhere. It cannot be said he was lulled into a sense of security he would not eventually be called upon to fulfil his responsibility to bear his responsibility to fully contribute to Freya’s educational costs. I find it is likely the claimant would have called on him to do so had she been aware of his greater income in 2009 and 2010. In my view, it is fair and just the claimant recover the cost of Freya attending Hooke, a cost she bore herself with considerable sacrifice of her own resources.

Accordingly, I allow the claimant’s claim for $14,175.87 Interest Accrued on Line of Credit [ 81 ] I allow this amount. The respondent’s obligation to pay his portion of flight costs is acknowledged by the agreement now to pay this amount. There is no doubt about the claimant’s entitlement to such payment. He should bear the cost of the claimant having to finance the amount he should otherwise have paid at the time he was requested to pay the amount. There is no credible evidence to suggest the claimant did not incur interest on her line of credit to pay for this expense.

Exchange Rate Differential [ 82 ] I disallow this claim as, in my view, the basis for such an award has not been made out by the claimant. Any monies owing from the claimant should be determined by the prevailing exchange rate at the time of the expense. That amount is what the claimant would have received from the respondent had he paid the expense at the time. I note that the claimant is already receiving interest on her line of credit for what she had to carry.

General [ 83 ] I find, for the purpose of their contribution to special expenses pursuant to s. 7 of the Guidelines , the parties have the following Guideline incomes: • Claimant: $9,908 plus $48,000 (spousal support) = $57,908 • Respondent: $230,825 less $48,000 (spousal support) = $182,825 [ 84 ] The claimant and respondent will share special expenses for Freya in proportion to their respective Guideline incomes.

At present, that means the claimant is responsible for 24% and the respondent for 76%. [ 85 ] The respondent will reimburse the claimant for his share of any and all agreed special or extraordinary expenses within 30 days after the claimant emails him a copy of a receipt or other document confirming the cost was incurred. As mentioned, such payment will be at the then prevailing exchange rate. [ 86 ] In the event the parties cannot agree on any issue relating to Freya’s special or extraordinary expenses pursuant to s.7 of the Guidelines , then either party will have liberty to apply to the court.

Fine/Special Costs [ 87 ] In my view, the facts of this case do not warrant either special costs or a fine being imposed under s. 213 of the FLA . The respondent has not engaged in disreputable conduct deserving of rebuke by the court. While he has omitted to disclose his income for some years, he has complied in other years. The claimant had notice (albeit incomplete) of increases in the claimant’s income in 2008, 2011, 2012 and 2013. She took no steps before mid-2014 to seek a review of child support.

The respondent now has notice he is to comply with the 2007 Order by providing annual financial information in the form required by that order and that he is to adjust his child support payments accordingly. The court expects he will henceforth comply with the 2007 Order. [ 88 ] If the parties are unable to agree on the issue of costs, they may approach scheduling to arrange a time to appear before me or make short written submissions. “Greyell J.”