T.D. v. S.F., 2024 BCPC 10

Citation: T.D. v. S.F. 2024 BCPC 10 Date: 20240103 File No: 17296 Registry: Revelstoke IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.D. APPLICANT AND: S.F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. LEVEN

Appearing on their own behalf: T.D. Appearing on their own behalf: S.F. Place of Hearing: Revelstoke , B.C. Dates of Hearing: June 7, 8, September 6, 7, November 1, 2, 2023 Date of Judgment: January 3, 2024 Introduction [ 1 ] This is a decision about N., born [omitted for publication]. Her parents T.D. (Mr. D.) and S.F. (Ms. F.) were in a common-law relationship for approximately 12 years. They separated in 2017 when N. was [omitted for publication] years old.

Since May 14, 2020, the record of proceedings indicates over 50 court dates; there have been more than 20 court orders. [ 2 ] I heard portions of the trial in June, September and November, 2023. The parties both testified, filed voluminous materials and made extensive written submissions. I also had the benefit of two

Section 211 Reports. [ 3 ] Despite numerous interim orders, the parties have filed applications on the majority of court sittings in Revelstoke even after the trial had concluded. On the last occasion, I summarily dismissed the applications and instructed the registry to refuse further filings. What is clear is that the parents do not get along and are not capable of cooperating in N.’s best interests. [ 4 ] The

Section 211 Reports show that N. deeply loves both her parents but is traumatized by their conflict. What is necessary is a definitive and final court order where there is nothing left to be decided or disputed by the parents. History of Proceedings Separation Agreement [ 5 ] The parties entered into a comprehensive separation agreement with the assistance of a mediator and lawyers. They signed the agreement in March of 2020. In it, they agreed to shared parental responsibilities, shared parenting time and to pay child support according to the child support guidelines.

The agreement also resolved division of property. The agreement said parenting time was to be 50/50 with N. to live with each party “in Revelstoke” on an alternating weekly schedule. [ 6 ] At trial, Ms. F. argued that she had not agreed to the “in Revelstoke” portion of the agreement and said Mr. D. had inserted this into the agreement without her consent or knowledge. She says, somehow she missed seeing this when she signed the agreement. [ 7 ] I do not accept her evidence on this point. Regardless of whether Mr.

D. did make that insertion, she clearly signed the agreement with that clause in it and in the presence of her legal counsel. This creates a presumption of regularity. If she wished to displace that presumption, I would have expected her to call evidence from her former counsel who helped prepare and before whom she signed the agreement. That lawyer continues to practice and appears frequently in Revelstoke court. [ 8 ] Mr. D. testified that he believes Ms.

F. never intended to abide by the shared parenting portion of the separation agreement and signed the agreement in order to receive funds from the division of property. He believes she was anxious to receive those funds to purchase a residence with her new partner. He then expected her to bring an application to relocate N. This he says, would have made shared parenting unworkable and was effectively a breach of the separation agreement. [ 9 ] Ms. F. does not disagree with this. She says both parties were aware of her intention to relocate before the agreement was signed.

May 14, 2020 Order [ 10 ] On May 14, 2020, Judge Morgan made an order that the parties continue to have shared parenting as per the separation agreement, that Ms. F.’s parenting time may take place outside of Revelstoke during non-school weeks and that N. will attend school in Revelstoke in the fall of 2020. In his reasons for making that order Judge Morgan said “…during the school year, the child is going to be primarily residing at dad’s place most likely, unless mom comes and spends her week during the school year”. [ 11 ] Judge Morgan granted this order after an application by Mr. D. to prevent Ms.

F. from relocating N. to [omitted for publication], Alberta. August 4, 2021 Order [ 12 ] The matter was set for a two-day trial before Judge Hewson on August 4 and 5, 2021. On the first day of trial, the parties consented to turn the trial into a family management conference. They spent several hours discussing the issues with the assistance of Judge Hewson before Judge Hewson pronounced an order. [ 13 ] The order was a comprehensive interim order, dealing with parenting time, parental responsibilities and conduct orders. That order also required the parties to attend co-parenting counselling and that Ms.

F. and the child attend counselling together. [ 14 ] The parenting time in that order for Ms. F. included weekly telephone or FaceTime on Tuesdays and Thursdays at 5:00 pm or with either parent as requested by the child, as well as Christmas, Spring Break, Easter school holidays in even numbered years and the

child’s birthday in odd numbered years. It also included 1 week at the end of the school year and 4 weeks in August of each year. The order did not authorize any parenting time where N. would be withheld from school. [ 15 ] It ordered that the parties advise each other of school and medical appointments and share all report cards and notices. [ 16 ] It gave Mr. D. final decision making if the parties could not agree on an important parental decision and Ms. F. the right to have that decision reviewed in court. March 15, 2022 Order [ 17 ] On March 15, 2022, Mr.

D. brought an application for a protection order and an application about a priority parenting matter without notice to Ms. F. Judge Morgan dismissed the without notice protection order but granted the priority parenting application. He made an interim order that Ms. F.’s parenting time be at Mr. D.’s discretion, supervised at his discretion and to take place at a location pre-approved by Mr. D. [ 18 ] Mr. D.’s applications followed and contained media reports that Ms. F.’s partner M.D. had been arrested and was facing extradition proceedings to Thailand.

He and another Canadian were wanted in Thailand for the alleged February 4, 2022 murder of an internationally renown gang member. [ 19 ] Mr. D. expressed concerns that the allegations against M.D. had the markings of a contract killing between rival gangs and that anyone at M.D.’s and Ms. F.’s home in [omitted for publication] might be in grave danger of gang retaliation. [ 20 ] Judge Morgan agreed and made the order restricting Ms. F.’s parenting time. Judge Morgan’s order was reviewed by Judge Sangha on May 4, 2022 with both Mr. D. and Ms. F. present. Judge Sangha declined to vary Judge Morgan’s order.

July 6, 2022 Order [ 21 ] On July 6, 2022, Judge Hewson pronounced an interim order at a further family management conference, finding Ms. F. to have an annual Alberta Guidelines income of $45,000, and requiring her to pay the Federal Child Support Guidelines support amount of $411 per month commencing on August 1, 2022 and continuing monthly until further order. [ 22 ] Judge Hewson’s order also dealt with the issue of retroactive child support and fixed child support arrears payable by Ms. F. at $6,725 as of July 6, 2022, inclusive of statutory interest. Judge Hewson ordered that Ms.

F. pay those arrears at the rate of $50.00 per month over and above the regular child support payments. [ 23 ] Judge Hewson also ordered ongoing annual financial disclosure by Ms. F. by June 1st of each year. September 7, 2022 Order [ 24 ] On September 7, 2022, I pronounced an order relaxing the term of Judge Morgan’s March 15, 2022 order whereby all parenting time would be at Mr. D.’s discretion. I ordered some specified in person and electronic parenting time. I also ordered that in person parenting time for Ms.

F. must take place in Revelstoke unless specified in the order or agreed in writing between the parties. [ 25 ] Mr. D. continues to maintain that parenting time should take place in Revelstoke or at least not at any residence jointly owned by Ms. F. and M.D. in Alberta. [ 26 ] Ms. F. feels her home in [omitted for publication] is safe. She and M.D. have a daughter M., born [omitted for publication] whom Ms. F. is looking after as a single parent and residing within that home. The home is close to a police station. [ 27 ] She is trained and employed as a registered nurse.

She says her finances are limited and she has childcare responsibilities for her new daughter. She cannot afford the time commitment nor the finances to travel to and rent accommodation in Revelstoke to exercise parenting time with N. She feels Mr. D.’s continuing refusal to allow her to exercise parenting time in [omitted for publication] is unreasonable and amounts to parental alienation. Issues [ 28 ] Both parents agree that that they are the child’s guardians. The issues that need to be decided are parental responsibilities, parenting time and child support.

The issue of child support requires consideration of retroactive and prospective support, special and extraordinary expenses and a hardship claim by Ms. F. Various conduct orders are necessary to reduce the impact of the parties’ conflict on the child. Parental responsibilities and parenting time [ 29 ] This decision is only about N. and her best interests. It is not about the parents.

Section 37 of the Family Law Act ( FLA ) says the following: 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.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the

following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise the person's responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(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.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Parental Responsibilities [ 30 ] The separation agreement gave the parties shared parenting responsibilities. The August 4, 2021 Order of Judge Hewson maintained the shared parental responsibilities, but gave Mr. D. the ultimate decision making responsibility and Ms. F. to apply to the court for a review for a review if the parties could not agree. [ 31 ] The

Section 211 Reports and particularly the first report make it clear that N. has been traumatized by parental conflict both before and after the separation. [ 32 ] Mr. D. has had the vast majority of parenting time since Ms. F.’s move to Alberta. Since August 4, 2021 he has also made the final parenting decisions where the parties have not been able to agree. [ 33 ] Overall, I am more than satisfied that Mr. D. has provided exemplary care to N. This is clear from the two

Section 211 Reports and from virtually all of the professionals who were contacted by the report writers. [ 34 ] Perhaps most revealing are N.’s own statements to the report writers. [ 35 ] Family Justice Counsellor Karen Fenton prepared a full

Section 211 report dated June 20, 2022. Ms. Fenton acknowledges that N. has a close relationship with and benefits from time spent with each parent. She describes the relationship with her father as follows: N.’s bond with her father appears to go further than the usual parent/ child, fulfilling the role of a confident and best friend. Mr. D. appears to balance his desire for N. to have professional support to reach her full potential with N.’s need for emotional regulation and a chance to refuel and be a child.

He has made himself available and has engaged positively with the school and community staff involved with N. N. was relaxed, engaged and grounded in Revelstoke, describing it as her home and safe place. She is secure in her father’s commitment to staying in Revelstoke and making her needs his top priority. [ 36 ] Report writer Leanne Harder noted the following comments from N.: “I love my dad a lot” “he’s my favourite person in the universe” “dad’s home feels safest”. She also told Ms. Harder that she feels her dad does the best job managing her diabetes. [ 37 ] The parties have differing views.

Their inability to work together has affected N.’s best interests in a number of different areas. Obvious examples are her medical care, childcare, education and travel. Medical care [ 38 ] N. was diagnosed as a Type 1 Diabetic in September of 2019. She is under the care of a pediatrician. Mr. D. suggested enrolling her in a new treatment regime called “looping”. Mr. D. says this was a treatment recommended by the British Columbia Diabetes Association and supported by the pediatrician. Ms. F. was initially opposed to the treatment because it had not yet received Health Canada approval. [ 39 ] In the

Section 211 Report prepared by Leanne Harder, Ms. Harder says she contacted the pediatrician and was advised that through this treatment, “her numbers [blood sugar levels] are some of the best. They are excellent”.

[ 40 ] The treatment of N.’s diabetes continues to be a source of conflict. Ms. F. submits that she should not have to pay special or extraordinary expenses associated with “looping” because it has not yet received a stamp of approval from Health Canada. [ 41 ] Her position is different when it comes to vaccinations approved by Health Canada. Mr. D. has reached out to Ms. F. about vaccinations for N. After some back and forth discussions, Ms. F. advised him that she was opposed to any vaccinations for N. particularly the COVID-19 vaccine which she described as “gene therapy”. [ 42 ] For all medical decisions, Mr.

D. says he follows medical advice to determine what is in N.’s best interests. He is concerned that Ms. F., despite her medical training, opposes the recommendations of N.’s medical professionals. Further, he says Ms. F. imparts her opposition to vaccination on N. who has been influenced by these views. [ 43 ] I accept that Ms. F. does not share the predominant medical view that vaccinations approved by Health Canada are beneficial and in the best interests of a child. She submitted that she has been unable to continue to work as a nurse in British Columbia because of COVID-19 policies in this province.

I take that to mean that she refused to be vaccinated. [ 44 ] Many courts have found that vaccinations approved by public health authorities are in a child’s best interests. Regarding the COVID-19 vaccine, courts have ruled that there is a presumption that it is in a child’s best interests to be vaccinated against COVID-19. (See for example T.K. v. J.W. , 2022 BCPC 16 at para. 19 ). Childcare [ 45 ] Mr. D. testified that he has hired “au pair” workers to assist him with looking after N.’s medical and educational needs. He needed help because of his own employment and medical situation. When he advised Ms.

F. of his doing so, Ms. F. reacted strongly. He says Ms. F. seemed more concerned with him trying to replace her as a mother with an au pair rather than appreciating that he was doing this because he needed help with their child’s needs. [ 46 ] Ms. F. expressed some legitimate concerns such as the au pair’s training to manage diabetes. However, rather than trying to make contributions to ensure the au pair is properly qualified, trained or paid, Ms. F. threatened to try to terminate an au pair by reporting Mr. D. to the authorities for underpaying them. It is hard for me to see how Ms.

F.’s actions are motivated by a concern for N.’s best interests. Schooling [ 47 ] Judge Morgan’s May 14, 2020 order clearly contemplated that N. attend school in Revelstoke and not miss school because of Ms. F.’s parenting time. Ms. F. submits that she feels that should change because she can adequately home school N. [ 48 ] N. has struggled in school. Mr. D. feels that she should not miss any school because of those struggles and the supports she receives through her school. He hired a private tutor to assist N. with her schooling. Ms.

F. disagreed with the focus of the tutor and says the tutor should be following a plan more consistent with N.’s individual needs rather than her school year. [ 49 ] I accept from the

Section 211 Reports that N. has a lot of extra support at school and that she is making good progress with all that support. Further, a stable school environment with as little disruption as possible, is beneficial to a child from a social perspective. It is clear from the

Section 211 Reports that N. enjoys and values school. I do not agree that Ms. F. can replace the benefit N. receives from attending school in Revelstoke with home schooling. [ 50 ] Mr. D. says N. has missed school because Ms. F. took her to Alberta numerous times during school weeks contrary to Judge Morgan’s May 14, 2020 order. I accept that this has occurred on more than one occasion. Travel [ 51 ] Mr. D. planned a trip to Costa Rica with N. during the 2023 school spring break. Ms. F. refused to provide written consent. On February 1, 2023, I granted an order in the presence of both parties that Mr.

D. may travel to Costa Rica with N. without the written consent of Ms. F. I also ordered that Ms. F. send Mr. D. N.’s passport by registered mail within 7 days. When I made that order, I clearly understood from both parties that Ms. F. was in possession of a valid passport for N. [ 52 ] On March 8, 2023, Mr. D. once again appeared before me. He advised the court that Ms. F had not sent him the passport as per my order. He applied for orders to cancel N.’s existing passport and that he may apply for a passport and any renewals without the consent of Ms. F. He properly substitutionally served Ms.

F. with that application but she failed to appear in court. I granted Mr. D.’s applications. [ 53 ] He testified at trial that he had to miss work in order to bring the necessary court applications and to apply for a passport which he did manage to do with an expedited application. He said Ms. F.’s actions almost cost him and N. what he called a trip of a lifetime. [ 54 ] During the trial. Ms. F. testified that she did not send the passport as per my order because she was unable to locate it and that it was not in her possession. I do not believe her. It is clear from an email exchange in July of 2022, that Ms.

F. was opposed to this trip in part because she felt Mr. D. had interfered with her previous travel plans with N. [ 55 ] I find that Ms. F.’s actions and breach of my court order of February 1, 2023 were a calculated attempt to prevent Mr. D. from taking their daughter on the trip. Her prior withholding of consent, her failing to advise Mr. D. at any time that she did not supposedly have the passport, and her failing to respond to and appear at the subsequent application on March 8, 2023, can lead me to no other conclusion.

Conclusion on Parental responsibilities [ 56 ] It is almost always in a child’s best interests that two capable parents make decisions about their child together. That is not always possible when the parties cannot cooperate and have very differing views about what is in a child’s best interests. [ 57 ] This is precisely the situation contemplated by s. 37(2)(

i) of the FLA which requires the court to determine the appropriateness of any order or agreement requiring cooperation. In my view, cooperation between Mr. D. and Ms. F. is not possible without more conflict and needless future court applications. More conflict will continue to traumatize N., and Mr. D. This is detrimental to the family’s finances and well-being. The conflict must stop. [ 58 ] N. is clearly comfortable with her father and her father’s ability to take care of all her needs. I find that her physical, educational and emotional needs are being well looked after.

She is closest to her father and has the most stability under his care. Further, I am satisfied that Mr. D. maintains professional and respectful relationships with all of N.’s care providers in Revelstoke. [ 59 ] There are some allegations of past family violence but I do not find that any of those allegations against Mr. D. have an impact on his ability to exercise parental responsibilities. [ 60 ] Considering all the factors under s. 37 of the FLA , and in particular s. 37(2)(i), I will award all parental responsibilities to Mr. D. Parenting Time [ 61 ] Mr.

D. says I should maintain the parenting time ordered by Judge Hewson on August 4, 2021. He says Ms. F. should not be allowed to exercise her parenting time at any residence she jointly owns with M.D. He also says that N. should not be taken out of school during Ms. F.’s parenting time. [ 62 ] He argues that his position is consistent with the status quo which was considered and established in the separation agreement and all the interim orders. He says maintaining the status quo is important for N.’s safety and stability. [ 63 ] Considering all the factors under s. 37 of the FLA , I agree with Mr.

D. in part. [ 64 ] I do not agree with Ms. F. that her home or vacation residence in Alberta are safe places for N. at this time. M.D. was extradited to Thailand and is in custody there awaiting trial for murder. [ 65 ] I have reviewed the reasons of Madam Justice Kiss of the Court of King’s Bench of Alberta in the extradition proceedings against M.D. dated September 27, 2022. In those reasons, Madam Justice Kiss reviewed the evidence against M.D. and concluded that the evidence supports the reasonable inference that the Kingdom of Thailand has established a prima facie case for murder against M.D.

That evidence is concerning. [ 66 ] M.D. will stand trial in Thailand in the coming months. Mr. D. says his position may change depending on the outcome of that trial. The media reports supporting Mr. D.’s court application upon which this court exercised its discretion to restrict Ms. F.’s parenting time, strongly suggest the murder in Thailand was a gang related contract killing. Mr. D. continues to be concerned about possible gang retaliation. I share those concerns. However, I disagree with Mr. D. that the outcome of the trial will alleviate safety concerns surrounding M.D.’s residences in Alberta.

Should M.D. be acquitted and return to Alberta, those concerns may in fact be even greater than they are now. [ 67 ] The

Section 211 Reports are clear that N. considers Revelstoke her home. All of her established supports in Revelstoke are more than capable of meeting her needs. This includes the care provided by Mr. D. I cannot ignore N.’s own strong views expressed in the reports that she feels closest to her father, considers Revelstoke her home and does not want to go to [omitted for publication]. [ 68 ] Ms. F. will have decisions to make based on the outcome of the proceedings in Thailand. Her decisions and the passage of time may alleviate some of the court’s concerns.

Given the ongoing proceedings and attention M.D. is expected to receive in the next few months, it is not in N.’s best interests to be in or near [omitted for publication] at this time. [ 69 ] Having been said, it is important to establish a predictable parenting

schedule where N. can spent as much time as possible with her mother. The following recommendation is contained in the last

Section 211 Report prepared by Karen Fenton: To reduce the impact of N. being caught in the middle of her parent’s conflict, it may prove beneficial to eliminate Mr. D.’s discretion over Ms. F.’s parenting time, outlining a specified

schedule structured by the court. The court may wish to consider Ms. F. having parenting time in British Columbia to give her more options for finding suitable accommodations and spending quality time with N. Ms. F. should be encouraged to spend as much time with N. with no restrictions on her taking N. to appointments, spending time with her school or engaging in spontaneous activities. [ 70 ] I intend to allow Ms. F.’s non-school day parenting time to occur elsewhere in British Columbia. Ms. F. also says she would like additional parenting time in Revelstoke during N.’s school year.

She suggests that the court order an additional three weeks in May and two weeks in October. [ 71 ] I find it is in N.’s interests to spend more time with her mother. I will be ordering a two-week period in May and a two-week period in October. During this time, N. must attend school, in person, in Revelstoke and must attend all her other scheduled appointments and activities. [ 72 ] There will also be an order that N. be able to maintain contact with both parents at all times through her cell phone. Mr. D. testified that he had limited contact with N. during Ms.

F.’s parenting time from July 25 and August 29, 2023 and only one phone call. Mr. D. says during this time, location services on N.’s cell phone was turned off. N. subsequently told him Ms. F. had taken her to

Alberta contrary to the court orders. [ 73 ] Ms. F. said in cross-examination, that she turned off location services and had limited contact with Mr. D. during that time because of Mr. D.’s controlling ways. She said she did not want him controlling or influencing her parenting time. I do not believe Ms. F. I strongly suspect she took N. to [omitted for publication] contrary to the court orders. [ 74 ] Mr. D. and the court, must know that orders are followed. I also find it is contrary to N.’s best interests to prevent her from contacting her father. N. made it clear to the

Section 211 Report writers that her father is her best friend and the person she trusts the most. She feared that her mother might prevent her from seeing her father. [ 75 ] That cannot happen. Location services on her cell phone must remain turned on at all times and she must be able to contact the other parent as she wishes but no less than three times a week on Mondays, Wednesdays and Saturdays at 7:00 pm on her cell phone. Child Support [ 76 ] Mr. D. seeks retroactive and ongoing child support according to the Federal Child Support Guidelines ( Guidelines ). He says that Ms.

F. has provided incomplete financial information or is underemployed. He says the court should impute an income on her consistent with the average registered nurse’s salary working in a hospital in Alberta. He says that is $91,000. He also seeks retroactive child support and that Ms. F. pay special and extraordinary expenses in proportion to her imputed income. [ 77 ] Ms. F. seeks a review of child support and a reduction of arrears.

She also seeks a reduction of child support from the guideline amount because of her obligations to provide for her new child as well as travel and accommodation expenses to exercise parenting time with N. [ 78 ] Pursuant to the separation agreement, each party was to pay child support to the other under a shared parenting arrangement and the Guidelines . [ 79 ] Judge Hewson made an interim order about child support on July 6, 2022 at a family management conference. Based on financial information before him, he found Ms. F. to be a resident of Alberta and found her to have an annual guideline income of $45,000.

He ordered that she pay the guideline amount of support of $411.00 per month commencing on August 1, 2022 and continuing until further court order. [ 80 ] He also considered the issue of retroactive child support and fixed arrears as of July 6, 2022 at $6,725 inclusive of interest. He ordered that Ms. F. repay the arrears at a rate of $50.00 per month commencing on August 15, 2022 and continuing on the 15th of each month until the arrears are paid. [ 81 ] Judge Hewson had before him a financial statement sworn by Ms.

F. on March 7, 2022 where she declared her annual income to be $45,000 from Employment Insurance benefits. [ 82 ] Ms. F. disagreed with Judge Hewson’s order and filed an application on July 18, 2022 asking to be relieved of paying child support while she was on maternity leave. Mr. D. opposed that application saying Judge Hewson was aware of Ms. F.’s maternity leave status when he made the order. [ 83 ] Having reviewed the materials that were available to Judge Hewson, I agree with Mr. D.

Once a court makes an interim order, that order cannot simply be overturned by that same court without a material change in circumstances or a finding that evidence of a substantial nature was not available, when the order was made (see s. 216 (3) and (4) of the Family Law Act) . [ 84 ] I am satisfied that Judge Hewson considered all the financial information available to him at the time including Ms. F.’s financial statement filed on March 7, 2022. I was not given new evidence of a substantial nature that was not available to Judge Hewson. There was no material change in the circumstances until Ms.

F. returned to work in April of 2023. [ 85 ] Judge Hewson did not make an undue hardship exception although both parties say the issue was raised. If that amounted to a legal error, that is an issue that should have been appealed to the Supreme Court. It is not one over which this court has jurisdiction. [ 86 ] Ms. F. filed another Financial Statement on March 24, 2023. In it, she declared an employment income of $3,208 from Alberta Health Services from April 2023 onwards. I am assuming this is her monthly income although her financial statement does not specify that. She also declared a rental income of $12,000.

She says her income for child support purposes in 2023 was expected to be $52,195. [ 87 ] She testified at trial that she has not been able to work full time because of child care obligations towards her new child. I note that Mr. D. challenged her rental income at trial pointing to online advertisements and reviews that suggest a higher income from a vacation rental property she and M.D. own in Alberta. For now, I am prepared to accept Ms. F.’s figures. [ 88 ] She will be required to file new and ongoing financial statements each year commencing in 2024 no later than June 1st.

Rental income is self-employed income and she will need to file all the proper documents regarding self-employed income. Should either her self-employed income or her employment income turn out to be higher, Mr. D. will be able to pursue a claim for retroactive support then, for lack of disclosure of proper financial information. Imputing income and hardship claim [ 89 ] I am going to address these two issues together because they are related.

[90] Section 19(1) of the Federal Child Support Guidelines (Guidelines) allows me to impute income if a spouse is intentionallyunderemployed or unemployed unless the underemployment or unemployment is required by the needs of a child under the age ofmajority. [91] Clearly, this applies to Ms. F. I accept her testimony that she is unable to work to her full capacity because of ongoing obligationstowards her new child. [92] Given Ms. F.’s qualifications as a registered nurse and that she is earning rental income, I consider $52,195 to be a very modestincome.

She has earned over $100,000 as a nurse in years past without rental income. A parent must work to their fullest capacity toprovide for their children. I would not accept any future incomes of less than this amount without reconsidering imputation. [93] I decline to impute income on her as suggested by Mr. D., at least at this time. [94] Ms. F. then also says she should pay less than the Guideline amount because of undue hardship. The applicable sections of theFamily Law Act are as follows: 150

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the childsupport guidelines. . . . (5) if a court makes an order respecting child support in an amount different from that required under the child support guidelines, itmust give reasons for doing so. [95] The applicable sections of the Guidelines are as follows: 10

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined [underthe Guidelines] if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwisesuffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: … (

b) the spouse has unusually high expenses in relation to exercising parenting time with a child; … (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or … [96] The factors listed in s. 10(2) are non-exhaustive. [97] I accept that Ms. F. will have high expenses exercising parenting time with N. because she will need to travel and possibly rentaccommodations in Revelstoke or elsewhere in British Columbia. [98] In Kelly v. Kelly, 2011 BCCA 173, our court of appeal made the following comments: [33] A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis. First, the parent applying for relief mustdemonstrate the undue hardship that will be caused by paying Guidelines support.

Section 10(2) sets out a non-exhaustive list of factorsthat may be considered at this stage, including “an unusually high level of debts” incurred prior to the separation or “to earn a living”,and “unusually high expenses in … exercising access”. This first step has a high threshold. The hardship that must be established isdescribed in the authorities as severe, extreme, improper, unreasonable, or unjustified: Van Gool v.

Van Gool (1998), (BC CA), 59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51. [34] If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent’shousehold under s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than therecipient if a reduction in Guidelines support is made. [35] If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other than thatrequired by the Guidelines.

This is a narrow discretion, however, and should be exercised cautiously to avoid thwartingthe Guidelines’ objectives of predictability and consistency: Julien D. Payne and Marilyn A. Payne, Child Support Guidelines inCanada (Irwin Law: Toronto, 2009) at 302. [99] I find that Ms. F. had not met the onerous first stage of the test for undue hardship. I make this finding for two reasons. [100] First, I find that she is not working to her full capacity mostly because of her obligation to care for her new child.

I also accept thatshe will need to take time off work to exercise parenting time with N. in British Columbia. She is not entitled to have the court acceptthat she needs to be underemployed to care for her new child and exercise parenting time and then once again, claim hardship based onthat reduced income. She is not entitled to “double dip”. [101] Second, I find that she has created any hardship that does exist through her own decisions. Her obligation to pay support wasclearly established in the separation agreement, as was the reasonable inference that N. would remain in Revelstoke.

Within a month ofsigning the agreement, she made the conscious decision to move to another province assuming she could succeed with an application to

relocate N. [ 102 ] I find her plans to relocate N. contrary to what she had agreed to in the separation agreement. She must have known that moving to another province would make the shared parenting and support arrangements she had just agreed to after mediation and with legal advice, unworkable. [ 103 ] She also knew or ought to have known of her support obligations for N. prior to having a new child. [ 104 ] The courts have repeatedly held that a payor is required to organize their affairs in light of their existing support obligations (see for example, D.L.D. v. R.A.G ., 2010 BCSC 1080 at para. 33 ).

I find Ms. F. has clearly not done so. [ 105 ] I dismiss her hardship application. [ 106 ] Ms. F. will pay the Guideline amount of $432 for an Alberta resident on the income of $52,195 commencing on May 1, 2023 and continuing until the matter is reviewed. If upon review, a court finds that the financial information she provided to this court for 2023 is inaccurate, Mr. D. may pursue a retroactive claim. Judge Hewson’s order of August 4, 2021 applies until April 1, 2023. [ 107 ] I will not fix a new arrears amount.

Any payments missed after Judge Hewson’s order remain payable until May 1, 2023 when this order takes effect. The calculation should be simple math considering what is owing under the orders and what has been paid. In case the parties feel they need to have a dispute over that as well, I will order that they attend before a lawyer or arbitrator with the orders and receipts to figure that issue out before coming back to court. Special and Extraordinary Expenses [ 108 ] Mr. D. claims special and extraordinary expenses.

He says childcare expenses (au pairs), tutors, and some extra-curricular activities like a season’s ski pass, hockey, dance and piano should be considered as special and extraordinary expenses. [ 109 ] This issue was considered by Judge Hewson in his July 6, 2022 order. Judge Hewson defined special and extraordinary expenses as the child’s cell phone bill and such other expenses as agreed to by the parties. [ 110 ] No other expenses were agreed to by the parties. Each party was to pay 50% of the cell phone bill. [ 111 ] Ms. F. says she has paid this expense to Mr. D. but wishes to have it reimbursed.

She argues that Mr. D. receives an annual tax disability credit and that this money should be used to pay the cell phone. [ 112 ] I am not satisfied that the disability tax credit is new information and that Mr. D.’s receipt of it amounts to a material change of circumstances. Judge Hewson could have ordered other special and extraordinary expenses to be paid but did not do so. Clearly, he felt the parties should share the expense of the cell phone bill and he may have considered not accounting for the tax credit as a compromise.

Once again, if that was an error in Judge Hewson’s order, it should have been appealed and is not a matter over which this court has jurisdiction. [ 113 ] Similarly, I am not satisfied that Mr. D. is entitled to any retroactive payments for any other items other than the cell phone bill. Judge Hewson clearly intended to limit special and extraordinary expenses to the cell phone bill. [ 114 ] Going forward I am prepared to expand the definition of special and extraordinary expenses to include the cell phone bill but also: (

a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time including the expense of an au pair; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling 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 including the expenses for “looping”; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs including a tutor. [ 115 ] I am satisfied that Mr. D. needs childcare when he is working and to assist him with N.’s medical needs. I am satisfied than an au pair is reasonably required.

I am satisfied that N.’s particular educational needs require a tutor. [ 116 ] I am not satisfied that a season’s ski pass or any of the other extra-curricular activities are reasonable and necessary in light of the available finances. [ 117 ] Based on the latest financial information, the parties should pay these expenses proportionally and according to their incomes starting on February 1, 2024. Those incomes are $117,000 for Mr. D. and $52,195 for Ms. F. Mr. D. will pay 69% and Ms. F. will pay 31%. [ 118 ] Going forward, the disability tax credit will be deducted from all expenses claimed by Mr.

D. before he seeks reimbursement from Ms. F. (see s. 7(3) of the Guidelines ). Mr. D. will include an accounting of the tax credit with any claim for reimbursement. [ 119 ] I will seize myself with any future applications. Should I find that either party has breached a term of my order or filed further unnecessary or frivolous court applications, I will impose penalties on the offending party. This may include financial penalties and changes to parenting time.

Order [ 120 ] There will be the following final order to be drafted by the registry. 1. Upon the court being advised that the name and birth date of each child is as follows: N.D., [omitted for publication]. 2. The court is satisfied that both parties are the guardians of the child under s. 39(1) of the Family Law Act . 3. Pursuant to section 40(3)(

a) of the Family Law Act , T. D. will solely have all of the parental responsibilities for the child as set out in s. 41 of the Family Law Act . 4. S.F. will not discuss, or permit any third party to discuss the issue of vaccination with the child, or supply social media or other information about vaccination to the child. 5. Both parties shall have the obligation to advise each other of any matters of a significant nature affecting the child including medical treatment and school report cards. 6. T.D. may travel outside of Canada without the written consent of S.F. 7.

T.D. may apply for a passport, NEXUS pass, visa, and any renewals of a passport, NEXUS pass or visa for the child without the consent of S.F . 8. The child shall reside primarily with Mr. D. in Revelstoke and shall attend school in Revelstoke. 9. Ms. F. shall have the following in person parenting time: a.

The duration of the spring school break in each year commencing the day after school ends and ending the day before school starts; b. the first half of the Christmas school holiday in even numbered years and the second half of the Christmas school holiday in odd numbered years commencing the day after school ends and ending the day before school starts; c. five weeks in the summer with one week commencing the day after school ends and for the first 28 days in August; d. the first 14 days in October of each year; and e the first 14 days of May of each year. 10. Ms.

F. must not remove the child from British Columbia for the spring, Christmas and summer parenting time. She must not remove the child from Revelstoke and must ensure that the child continues to attend classes at her school in Revelstoke for the October and May parenting times. All exchanges for parenting time will occur in Revelstoke at 8:00 am on the first day and at 6:00 pm on the last day of Ms. F.’s scheduled parenting times. 11.

Each party shall have telephone and/or electronic communication with the child during the other’s parenting time on the child’s cell phone on Mondays, Wednesdays and Saturdays at 7:00 pm., on Christmas Day, birthdays, Mother’s Day and Father’s Day at 9:00 am and at any other time requested by the child. The parties will ensure that the child has private access to her cell phone. Location services on the child’s cell phone must never be turned off. 12. S.F. is found to be a resident of Alberta and is found to have a Guideline annual income of $52,195. 13.

S.F. shall pay to T.D. the sum of $432 per month for the support of the child, commencing on May 1, 2023 and continuing on the first day of each and every month thereafter, for as long as the child is/are eligible for support under the Family Law Act or until further court order. Any arrears owing or accrued under this order or the July 6, 2022 order of Judge Hewson, will be paid at the rate of $50.00 per month in addition to regular child support on the 15th of each month until those arrears are paid in full. 14. S.F. shall pay to T.D. her proportional share for the child’s special or extraordinary expenses.

The parties’ respective proportional shares are S.F. 31% and T.D. 69%. The following expenses will be special or extraordinary expenses: (

a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time including the cost of an au pair; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling 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 including the cost of looping; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs including a tutor; (

e) the child’s cell phone bill. 15. T.D. shall provide S.F. with a copy of the receipt or proof of payment for any special or extraordinary expenses along with an accounting of any disability tax credit for the child. S.F. shall pay her proportional share of any expense exceeding the disability tax credit, to T.D. within 30 days.

16. For as long as the child is eligible to receive child support, the parties shall exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than June 1st, each year commencing in 2024; and (

b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency, immediately upon receipt. 17. Pursuant to s. 222 of the Family Law Act, upon exchange of their income tax returns and notices of assessment, the parties shall discuss any material change in circumstances which may warrant a change in the amount or date of support payable and the proportion of special and extraordinary expenses payable. Any agreement to change the support payable will be set out in a consent order and filed with the court as set out in Rule 81. Any changes to support will commence on July 1st of the year following the taxation year. 18. Pursuant to s. 224(1)(

a) of the Family Law Act , if the parties cannot agree to changes in the child support and proportion of special and extraordinary expenses payable, or the amount of arrears owing, they shall use a lawyer or a professional arbitrator before filing a court application. The lawyer or arbitrator must be given a copy of this order and a copy of Judge Hewson’s July 6, 2022 order and is directed to make changes to the support and special and extraordinary expenses payable based solely on the parties’ incomes and pursuant to the guidelines.

The arbitrator or lawyer may assist the parties in preparing the Rule 81 consent order and is not to consider the issue of undue hardship. The parties will share equally the cost of the lawyer or arbitrator. 19. Pursuant to s. 225 of the Family Law Act , the parties shall communicate with each other only through text, email or other electronic means where there is a written record of the communication. 20. The parties shall:

a) put the best interests of the child before their own interests;

b) encourage the child to have a good relationship with the other parent and speak to the child about the other parent and that parent’s partner in a positive and respectful manner; and

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument. 21. The parties shall not:

a) question the child about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with the child any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to the child. 22. Pursuant to s. 222(

c) of the Family Law Act , both parties are prohibited from filing any further applications without leave of the court, save for an application to seek leave of the court to file a further application. 23. Judge Leven is seized with any future applications. ____________________ The Honourable G. Leven Provincial Court Judge