R.F.J. v. M.E.W. Date:, 2017 BCPC 290

Citation: R.F.J. v. M.E.W. Date: 20170801 2017 BCPC 290 File No: 20930 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.F.J. APPLICANT AND: M.E.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Appearing on their own behalf: R.F.J.

Counsel for the Respondent: A. Gardner, Articled Student and B. Goud Place of Hearing: Victoria , B.C. Dates of Hearing: July 18, 26, 2017 Date of Judgment: August 1, 2017 A Corrigendum was released by the court on October 5, 2017.

The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: R.F.J., the father of V.A.J., born [omitted for publication], brings this application for an order varying a child support order dated August 23, 2007, and, if necessary, cancelling or reducing his arrears. [ 2 ] By order dated August 2007, Judge Fabbro imputed to R.F.J. an annual income totalling $16,608. Given that imputed income, R.F.J.'s child support obligations under the Federal Child Support Guidelines (the Guidelines) totalled $147 per month.

In addition, the order also required R.F.J. to provide M.E.W. with copies of his income tax returns and his notices of annual assessment by June 1st of each year for the purposes of adjusting child support in accordance with his income. [ 3 ] Since the 2007 order, R.F.J.'s income has varied, going both up and down. More recently, at least by 2015, R.F.J.'s Line 150 income, or his income for the purposes of accounting for his child support obligations, fell well below the income imputed to him by Judge Fabbro.

In 2015, R.F.J. also entered into a shared custody arrangement with M.E.W., V.A.J.'s mother. [ 4 ] As such, he seeks an order varying the 2007 order to reflect both his reduced income and the shared custody arrangement. [ 5 ] M.E.W. opposes R.F.J.'s application for a variation of the 2007 order and any reduction or cancellation of his arrears. She, in turn, seeks an order imputing income to him on the grounds that he is either hiding income or is deliberately under-employed. [ 6 ] In this case, the court is called upon to decide several issues.

The first is to determine R.F.J.'s income for the purposes of his child support obligations, taking into account the shared parenting arrangement and his declared income, as well as whether any income should be imputed to him. [ 7 ] Once R.F.J.'s income for the purposes of child support is determined, the court must determine M.E.W.'s income for the purposes of her own child support obligations. Once these figures are determined, it will be necessary, bearing in mind s. 9 of the Guidelines , to determine the amount of child support payable by either party.

Depending on that outcome, it may be necessary to address the question of arrears. [ 8 ] While R.F.J. brings this application on the grounds his income is reduced from what was imputed in 2007 and on the shared parenting arrangement from September 2015, his overall emphasis was that the order should go as a matter of fairness.

R.F.J. asserted throughout the hearing that despite M.E.W.'s assertions to the contrary, he was and is actively involved in his daughter's life and has been so since her birth, yet was never given any credit. [ 9 ] Most significantly for R.F.J. was the fact that until this past year, M.E.W. enjoyed the child tax credit, as well as his child support payments which he generally made in full at least until 2015.

R.F.J. calculated that M.E.W. received approximately $47,000 in various child support incomes, while he received nothing and was, instead, obligated to pay support. [ 10 ] His evidence, which I accept, was that by September 2015, he felt the arrangement was grossly unfair as he did, by then, have his daughter 40 percent of the time. R.F.J. was entitled, as of September 2015, to have his child support obligations calculated on the basis of a shared parenting arrangement.

Indeed, R.F.J. testified that he attempted to mediate a reckoning of his support obligations, but to no avail. [ 11 ] Because he was in the shared parenting arrangement and making less than $13,000 per year after 2015, R.F.J. has paid little in the way of child support since January 2015 and arrears have accrued. Presently, R.F.J.'s FMEP account shows $3,739.95 due, which balance includes interest and default fees. [ 12 ] While the application is one to cancel or reduce arrears, in the circumstances, I am of the view that this application is better filtered through s. 152 of the Family Law Act (the FLA ). That

section provides as follows:

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [ 13 ] Of these, only subsection (2)(

a) applies.

[14] In opposing this application, M.E.W. submits there has been no change in R.F.J.'s circumstances. In particular, in 2007, R.F.J.was employed as a music teacher and he continues to be so employed to this day. R.F.J. then worked as a musician and he does sotoday.

R.F.J. also presently works as a care aid. [15] I do not disagree that if the issue were R.F.J.'s employment prospects or his ability to work, he would be hard pressed to prove achange in circumstances, despite moving to Victoria from Nelson to continue to father V.A.J. [16] However, as of September 2015, I find there clearly was a change in circumstances and that is the shared parenting arrangement.

At that point, R.F.J. was entitled to a reconciliation of his child support obligations with M.E.W.'s own obligations, bearing in mind all ofthe factors set out in s. 9 of the Guidelines. [17] This, then, brings me to the issue of the parties' respective incomes for the purposes of their child support obligations as ofSeptember 2015.

In R.F.J.'s case, there is the question of his actual income and income M.E.W. submits he ought to have made given hisabilities and his existing work schedule. [18] Section 19(1) of the Guidelines provides that a court may impute such amount of income to a spouse that it considers appropriatein the circumstances, one of those being that the spouse is intentionally underemployed or unemployed. [19] In this instance, the allegation is that R.F.J. is intentionally under-employed and has been for some time.

However, I should notethat this is not, on M.E.W.'s part, a retroactive application for an increase in child support. Rather, in her reply, M.E.W. opposes R.F.J.'sapplication to reduce or cancel his arrears, stating that she had reason to believe he made more income than he disclosed.

In the hearing,I allowed her counsel to extend that to an application that income be imputed to R.F.J., based on the simple fact adduced in the evidenceat the hearing that while there was no impediment to his taking on more work, R.F.J. worked only part time and made significantly lessthan a minimum wage worker would working full time. [20] There is no counterclaim, other than a retroactive claim for an equal contribution by R.F.J. to V.A.J.'s special and extraordinaryexpenses. [21] In terms of his income for the purposes of child support, R.F.J. provided financial statements disclosing the following incomesince 2013. [22] In 2013, R.F.J.'s income was $23,426.

He paid child support in the amount of $1,764 at the rate of $147 per month, as providedfor by the 2007 order. If R.F.J. had paid in accordance with his Guidelines income, his support payments should have been $202 foreach month, for an annual payment of $2,424. [23] In 2014, R.F.J.'s income was $17,968. Had he paid in accordance with the Guidelines, his support payments would have been$152 each month, for an annual payment of $1,824. [24] Instead, in 2014, R.F.J. was in default of his payments pursuant to the 2007 order in the amount of $470.90. [25] In 2015, R.F.J.'s line 150 income was $12,679.

FMEP records indicate he paid $577 in child support and is in default in theamount of $1,187 for the year. Had his payments been assessed on his line 150 income, he would have been required to pay $55 amonth, for an annual total of $660. [26] In 2016, R.F.J.'s line 150 income totalled $13,665. At that rate, his support payments under the Guidelines would have been $73per month, for an annual total of $876. R.F.J. paid $1,025 in child support payments in 2016. [27] For the year 2017, R.F.J. calculates his income for the purposes of child support will be approximately $14,000.

As such, hischild support obligations under the Guidelines would be $79 a month, for a total of $948 for the year. To date, R.F.J. has paid $695 inchild support through FMEP. [28] At present, R.F.J. is employed as a support worker at Wellspring Support Inc. He testified to having three days a week lockeddown. He is, he testified, paid $16.56 an hour and works from 9:30 a.m. to 3:30 p.m., for a total of 16.5 hours a week. R.F.J. teachesmusic on Thursday evenings at the rate of $26 an hour. He testified he typically gets around three hours' work.

Apart from that, R.F.J.performs, on occasion, at various musical outlets for a modest wage. [29] Most vexing to R.F.J. is the manner in which his arrears and the attendant garnishee orders have interfered with his desire towork as an eeducational assistant at the Selkirk Montessori School. His evidence was that he had procured a few shifts at the schoolwhen his account was garnisheed. Since then, though he maintains he is still employed by Selkirk, he has not been called back because,he assumes, of the garnishee order.

His plan had been to focus his energies on being an EA. [30] Aside from working very limited hours, R.F.J. devotes time to the care of his daughter. On cross-examination, he admitted to nothaving made any real effort to look for part time work to supplement his income, and that while there was nothing about the care ofV.A.J. that required him to work part time, it was, he testified, convenient that he could pick her up and drop her off at school. [31] The law as it applies to a parent's obligation to pay child support is set out in a number of cases.

One of the most often cited isthe decision of Justice Martinson in Earle v. Earle, (BCSC). As Justice Martinson was addressing an applicationbrought on by a self-represented litigant, she found it useful to set out in some detail the three fundamental principles that apply to allchild support applications. They are set out at paragraph 15 as follows: i. parents have a joint and legal obligation to support their children; ii. it is the child, not the parent with custody, who has the right to maintenance; and

iii. the payment of maintenance is based on the ability to pay, and the word “ability” is underlined. This means it is based notonly on what a parent earns, but also on what a parent can earn. [32] In Van Gool v. Van Gool, (BCCA), the court addressed s. 19 of the Guidelines, which I have referred to earlierin these reasons. Echoing Justice Martinson's reasons in Earle, the court wrote at paragraph 28: Counsel did not refer us to any decisions which have specifically considered s. 19 of the Guidelines.

In my view, however, the conceptof imputing income to a spouse for the purpose of determining the extent of his or her maintenance obligations is not new. The analysisengaged in imputing income to a spouse under s. 19(1)(

a) is similar to that engaged in prior to the enactment of the Guidelines under theformer child support provisions of both the Divorce Act and the Family Relations Act, R.S.B.C. 1996, c. 128 . . . Section 15(8) of theDivorce Act required the Court to consider, as an objective of child support, that the obligation should be apportioned between the[parties] "according to their relative abilities to [continue] to the performance of the obligation." (A similar provision is now found in s.26.1(2) of the Act.) Sections 93(2) and 96(1) of the FRA addressed this concept by reference to the "capacities" of the spouses.

Pursuantto those provisions, in making or varying an order for child support, the courts considered not only the amount of income a spouse wasactually earning, but the amount of income a spouse could earn if working to capacity. [33] Finally, in Hanson v. Hanson, (BCSC), Justice Martinson, commenting directly on the imputation of incomepursuant to s. 19 of the Guidelines, provided the following helpful point form

summary at paragraph 14: 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is"no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earnincome is an irrelevant factor." (Van Gool at para 30.) 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. 3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significantskills, or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at thelower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her childrensimply because the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive careeraspirations. 6.

As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [34] In Van Gool, the Court of Appeal overturned a lower court ruling and held that the respondent in that case was intentionallyunder-employed. In doing so, the court noted, first at paragraph 33, that there was nothing about the respondent's childcare duties thatprecluded her from seeking additional work hours.

It held, secondly, that there was nothing about the respondent's limited workexperience and job skills that explained her failure to pursue employment which did not require special skills. [35] At paragraph 34, the court wrote that: While these would doubtless be jobs at the low end of the wage scale, [and to paraphrase the previous quote] this Court has neversanctioned the refusal of a parent to take reasonable steps to support his or her children simply because they could not obtain interestingor highly-paid work. [36] The court continues: Rather, this Court has made it clear that a person is expected to take reasonable steps to obtain employment commensurate with suchfactors as their age, state of health, education, skills and work history. [37] In Hanson at paragraph 30, Justice Martinson observed that in addition to the parents' ability to earn based on the factors justenumerated; the court must also consider job opportunities that are realistically available. [38] I have already noted that there is nothing about R.F.J.’s parenting of V.A.J. that would justify his not seeking additional workover these past few years.

R.F.J. is admittedly healthy and I find fully capable of taking on more work. Indeed, R.F.J. said he hoped toget more hours. At the same time, R.F.J. is holding out hope, it seems, for shifts as an EA at Selkirk. [39] The evidence that R.F.J. can and should pursue more work is overwhelming. I have little or no evidence of what work might beavailable. R.F.J. testified to asking for more hours at Wellspring, but I know little about the efforts made or the reason more work is notavailable. R.F.J. spoke of perhaps picking up another student.

Again, I have no evidence as to the availability of students. [40] However, I have absolutely no doubt R.F.J., that if you were minded to, you could pick up work in the service industry to makeup the 20 or so hours each week that you fall short of full time work. I do not say that you should do this, only that it is clearly available. [41] A full time minimum wage worker in British Columbia can earn just slightly over $18,000 a year at the rate of $10.85 per hour.

M.E.W. calculates that if I were to add even 20 hours of minimum wage work on top of your existing income for 2017, your incomewould just slightly exceed $24,000 per year. She asks this court to impute this income to you and to do so retroactive to September2015.

[42] I have no difficulty with the request that I find you intentionally underemployed. I find as a fact, R.F.J., that you are clearlycapable of earning more than $14,000 for the year, and that for the years 2015 and 2016, you were capable of earning more than $12,679and $13,665 respectively. [43] I do have difficulty with the application now before me that I impute income retroactive to 2015, as it was never the subject ofany application. I was, as noted, prepared to allow counsel to argue the case for an imputation of income, even though the reply statedonly that M.E.W. suspected you had hidden income.

The evidence entirely supports an imputation of income going forward but D.B.S. v.S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231, aside, it would be unfair to impose an increase in income retroactively without yourfirst having been given some notice of the application. [44] However, I see nothing in the evidence that would justify a variation of the 2007 order reducing your child support payments toreflect the income earned, when it is abundantly clear to me that you could have and should have earned much, much more than thepaltry income imputed to you in 2007. [45] Moreover, you enjoyed two years, 2013 and 2014, on the evidence in this case, where you paid less support than you shouldhave based on your income.

Again, as these went unchallenged in this hearing, I make no retroactive adjustment. [46] For these reasons, R.F.J., I decline to grant an order varying the 2007 order so as to reduce or cancel your arrears on the groundsyou earned less than what was imputed to you by that order. To the contrary, on a go forward basis, I impute to you an income in theamount of $18,000 for the year 2017. [47] M.E.W. has leave to apply to impute a greater amount for the following years, in the event you do not pick up the extra hoursyou indicate you will at your present job.

For the years 2015 and 2016, your child support obligations remain as they were pursuant tothe 2007 order. [48] You, R.F.J., are in a shared parenting arrangement with M.E.W. and have been so since September of 2015.

I have found thatthat fact constitutes a change in circumstances and could support a variation of the 2007 order, depending on M.E.W.'s income and aconsideration of s. 9 of the Federal Child Support Guidelines. [49] Child support obligations for the purposes of shared parenting arrangements are governed by s. 9 of the Guidelines whichprovide as follows: Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the courseof a year, the amount of the child support order must be determined by taking into account (

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

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

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [50] In Contino v. Leonelli-Contino, 2005 SCC 63, the court was careful to point out that s. 9 must be applied with the underlyingprinciples of the Guidelines in mind. That is, that parents have "a joint financial obligation to maintain the children of the marriage inaccordance with their relative abilities to contribute to their performance of that obligation.” [51]

Section 9 offers no presumption in favour of awarding at least the Guidelines under s. 3, and there is no presumption in favour ofreducing the parent's child support obligations downwards from the Guidelines amount. [52] However, at paragraph 34, the court did note that: Parliament, in adopting s. 9, deliberately chose to emphasize the objectives of fairness, flexibility and recognition of the actualconditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, even if to the detriment ofpredictability, consistency and efficiency . . . [53] Pursuant to s. 9 of the Guidelines, the amount of child support payable in a shared custody arrangement is determined by firsttaking into account the table amount of child support for each spouse.

Once that is done, and Contino is clear that the simple set offserves as the starting point, the court has to consider the increased cost to each parent of the shared custody arrangement, and finally, as amatter of fairness, the conditions, means, needs, and other circumstances of each spouse. As the court in Contino states at paragraph 51: This is where discretion comes into play.

The court retains the discretion to modify the set-off amount where, considering the financialrealities of the parents, it would lead to a significant variation in the standard of living experienced by the [child] as [she or he] move[s]from one household to another, something . . . Parliament did not intend. [54] Determining the set off amount in this case raises an immediate and difficult issue, and that is determining M.E.W.'s income forthe purposes of child support. In 2015, M.E.W.'s line 150 income totalled $2,715.72. In 2016, it was $1,452.02.

In 2017, the documentsindicate that M.E.W. is on track to earn $12,339. [55] Yet, as M.E.W.'s financial statements disclose, her annual expenses are much higher. For 2016, M.E.W.'s annual expenses total$33,801.56. M.E.W. was able to meet these expenses through student loans, grants, and bursaries. If these monies were calculated asincome for the purposes of child support, M.E.W. might, in theory, be in the position of paying child support to R.F.J.

M.E.W. submitsthat these monies should not be counted as income for the purposes of her child support obligations. [56] With respect to her student loans, M.E.W. relies on the reasons of Master Young in T.E.Z. v. A.D.Z., 2011 BCSC 1256. Atparagraph 12 of that decision, Master Young, relying on the reasons of the court in Maynard v. Maynard, held that student loans cannot

be considered as income for the purposes of child support as being repayable. They are not a benefit to the recipient. In T.E.Z., MasterYoung did include the grant portions of the student loan as income for the purposes of child support. [57] Based on these reasons, I would not include M.E.W.'s student loans as income for the purposes of calculating her child supportobligations. It would, however, be consistent with T.E.Z. to include M.E.W.'s grants and bursaries as income, but for the reasons of mybrother Judge Gouge in S.E.W. v. S.C.W., 2016 BCPC 32 , 2016 BCPC 0032.

In S.E.W., Judge Gouge rejected the notion thatscholarships or bursaries could be taken into account in determining a Guidelines income, as neither income source fell under thecategory of taxable income or "total income" for the purposes of the Income Tax Act. [58] Judge Gouge held, at paragraph 26, that income for the purposes of s. 16 of the Guidelines only includes income that falls underthe phrase "total income" in the T1 General forms issued by Revenue Canada, and only those can be used to determine child supportobligations.

As neither scholarships nor bursaries fall under this definition, they cannot be taken into account. [59] In my view, the reasons of Judge Gouge entirely address the question here, being whether M.E.W.'s grants and bursaries can betaken into account in assessing her child support obligations. They cannot. M.E.W.'s financial information shows total income for theyears set out as indicated. [60] It is only for the year 2017 that M.E.W. has enough "total income" to warrant an order for child support. Having an annualincome of $12,339, M.E.W.'s child support payments would amount to $49 per month.

For the years 2015 and 2016, M.E.W. would nothave sufficient income to order any child support payments. [61] In the result, R.F.J., there is nothing against which to offset your income. So for the purposes of the first leg of s. 9, there is a setoff amount only for the year 2017 as between the parties. For the years 2015 and 2016, based on M.E.W.'s total income, you, R.F.J.,would be responsible to continue to pay child support based on the 2007 order, but for the other considerations in the remainingsubsections of s. 9. [62]

Section 9(

b) then requires a consideration of any increased costs to either party of the shared custody arrangement. [63] In this instance, I am able only to conclude that you, R.F.J., have benefited from the shared custody arrangement, in that you arenow in a subsidized rental unit paying only $200 a month rent.

I see no increased cost that would justify a deviation from the tableamounts. [64] This brings me to the final leg of the s. 9 analysis, which is to determine an appropriate amount of child support based on theconditions, means, needs, and other circumstances of each spouse, taking into consideration the table amounts and increased expenses, ifany. [65] If I were to strictly follow the set off approach, R.F.J., as I say, you would be required to continue to pay child support under theGuidelines.

It would follow, from such an order, that your arrears would continue, and I would add parenthetically that I would notcancel your arrears. It is clear you are not yet in a position where you could not pay the arrears at some point in the future. [66] As Justice Martinson clearly states in Earle v.

Earle at paragraph 26 “not being able to pay now is not a valid legal reason tocancel or reduce arrears.” [67] However, for the reasons I will state, it would not be necessary to make such an order in any event, as I find there are no arrearsowing. [68] Taking into account the parties' circumstances, I find it would work a great unfairness if I were to ignore M.E.W.'s income forthe purposes of s. 9(c).

It is the case that M.E.W.'s various loans, grants, and bursaries cannot be accounted for in determining her childsupport obligations, but at the same time it would be unfair, in my view, to proceed as if M.E.W. does not have access to these resources. [69] Even assuming that as much as one third of M.E.W.'s income is made up of student loans, this leaves her with a reasonableamount of money for the care of V.A.J.

It gives her resources that approximate R.F.J.'s income, as I have imputed it. [70] Were I to require R.F.J. to continue to pay child support, it could only have the effect, given the income I am prepared to imputeto him, of reducing his ability to make adequate provision for V.A.J. while she is in his care.

After all, even imputing an income ofapproximately $18,000 to R.F.J. does not leave him much in the way of resources at the end of the day. [71] In my view, given the parties' relative financial position, a fair order in their shared parenting arrangement would be one that sawneither party pay child support to the other for the present.

This may appear as if the court is giving with one hand and taking away withthe other, but in my view, while M.E.W.'s various loans, grants, and bursaries cannot, by virtue of Judge Gouge's decision, be taken intoaccount for determining her child support obligations pursuant to s. 16 of the Guidelines, they cannot be ignored pursuant to s. 9, giventhe comments of the Supreme Court of Canada in Contino. [72] For the four months of 2015 when the shared arrangement commenced, M.E.W.'s available resources would have beenapproximately $30,000.

The records indicate that nearly two thirds of this would have been made up of repayable student loans and theremainder made up, for the most part, of grants and bursaries.

R.F.J. was obligated to pay child support that year based on an annualincome of $16,608, though his total income shown at line 150 of his tax return for the year showed an income of $12,679. [73] Even discounting the student loan portion in 2015, M.E.W.'s remaining income was not much less than R.F.J.'s actual income,though the loan portion did, ultimately, give M.E.W. access to more resources. [74] I find, in the circumstances, that for the four month period in 2015 from September to December, R.F.J. should have beenrelieved of any obligation to pay child support to M.E.W.

In 2015, R.F.J. was obligated to pay child support in the amount of $147 foreach month from January to August.

[ 75 ] He should have paid $1,176 but paid only $577. As such, R.F.J. is in arrears for the year 2015 in the amount of $599. I have not relieved payments for 2014, so R.F.J. remains in arrears for 2014 in the amount of $470.90. [ 76 ] I find that R.F.J. should be relieved of his child support obligations for the year 2016. In that year, R.F.J.'s child support payments according to FMEP totalled $1,025. He is entitled to credit in that amount. [ 77 ] The same holds true for the year 2017. I find R.F.J. should be relieved of his child support obligations for the year 2017.

To date, he has paid $695 and he is entitled to a credit in that amount. [ 78 ] When R.F.J.'s credits in the amount of $1,720 are deducted from his arrears owing in the amount of $1,069.90, I find he is entitled to a credit in the amount of $650.10. As R.F.J. has overpaid, I order that any interest and other fees be cancelled.

R.F.J.'s arrears, including any interest and fees, are hereby cancelled. [ 79 ] However, R.F.J.'s credit must be applied to his share of V.A.J.'s special and extraordinary expenses as claimed by M.E.W. [ 80 ] M.E.W. provided documented evidence of various expenses incurred for the care of V.A.J., some medical and dental, some educational, some in the nature of day care expenses, and still others in the nature of extracurricular activities that would enhance the life of any child, such as live theatre, roller derby, sewing classes, and the like. [ 81 ] The question is whether all of these expenses qualify as special and/or extraordinary expenses, given their nature and R.F.J.'s ability to pay.

His evidence was that he had rarely been consulted with respect to many of these expenses, and even still, though he was supportive for activities like roller derby, he could not afford to enrol V.A.J. in such activities. R.F.J. also alluded to some of his own special and extraordinary expenses, but those are not before me and I make no ruling in that regard. [ 82 ] As for M.E.W.'s expenses, I have no difficulty accepting that her childcare expenses and school fees constitute a special expense not intended to be covered by child support.

I am prepared also to accept the fees associated with Camp Thunderbird, a camp V.A.J. has long attended and which can constitute a form of day care. [ 83 ] I regret that I cannot accept that fees and expenses for stampede or Kaleidoscope or roller derby, and the like, qualify as extraordinary expenses. They are, as I say, activities which enhance a child's life experience, but given M.E.W.’s income, which has never been substantial at any time in V.A.J.'s life, I cannot accept that these are the sorts of expenses that are reasonable in relation to the parties' respective incomes.

It is not suggested in the evidence that V.A.J. has any special needs or talents in respect of these activities such that there might be an obligation on the part of R.F.J. to contribute to the cost of these programs. [ 84 ] Moreover, I accept that R.F.J. was not consulted with respect to most of these expenses, including the counselling session at B.C. Families in Transition. [ 85 ] Even still, I find he must bear his share of V.A.J.'s medical and educational expenses. As for her dental expenses, these are special expenses for the purposes of s. 7 of the Guidelines .

However, there was evidence at the hearing, never contradicted, that these monies may yet be owing to the dental agency. [ 86 ] In the result, I order that R.F.J. pay an equal share of V.A.J.'s dental expenses upon receipt of proof of their payment by M.E.W. [ 87 ] In regard to expenses generally, I find, as I have said, that M.E.W.'s childcare expenses are special expenses and R.F.J. must pay an equal share. M.E.W.'s day care expenses entered in this trial total $929.07. In addition, I accept M.E.W.'s claim for payments for the cost of Camp Thunderbird. On the evidence before me, those expenses total $588.02.

Fees for V.A.J.'s school music class total $367.36, and those, too, are payable. Finally, M.E.W. has submitted receipts in the amount of $119.31 for prescription medications which, too, qualify as special expenses. [ 88 ] In all, M.E.W.'s special and extraordinary expenses that I accept qualify as such total $2,003.76. R.F.J.'s share of that is $1,001.88. From that will be deducted his credit in the amount of $650.10.

In the result, I order R.F.J. to pay to M.E.W. the amount of $351.78 for his share of V.A.J.'s special and extraordinary expenses. [ 89 ] R.F.J.'s application for an order varying the 2007 order, so as to reduce or cancel his arrears on the grounds of reduced income, is dismissed.

Given my finding that R.F.J. has been intentionally under-employed, I will grant M.E.W.'s application for an order imputing income to him on an ongoing basis. [ 90 ] I order that as of January 1, 2017, R.F.J.'s income for the purposes of his child support obligations is $18,000. [ 91 ] Though his child support pursuant to the Guidelines would be $152 each month, and while M.E.W.'s line 150 income is such that she would have no child support obligations, pursuant to s. 9(

c) of the Guidelines , I order that R.F.J. be relieved of his obligation to pay child support from September 2015 to December 1, 2017. R.F.J.'s child support obligations for 2018 will be determined by his total income and that of M.E.W., assuming the shared custody arrangement continues. It can be no less than $18,000, given my findings. [ 92 ] As R.F.J. overpaid his child support obligations from September 2015; he is entitled to a credit in the amount of $650.10.

When that amount is deducted from R.F.J.'s share of special and extraordinary expenses, he must pay M.E.W. the amount of $351.78 plus his equal share of V.A.J.'s dental expenses upon receipt of proof of payment. [ 93 ] On a go forward basis, the parties will share the cost of V.A.J.'s special and extraordinary expenses equally. Unless otherwise agreed, each will pay their contribution to the other within 30 days of receipt of proof of payment. [ 94 ] The parties will use their best effort to consult with one another before incurring any special or extraordinary expenses. [ 95 ] That concludes the reasons.

I will order these and get them out to the parties. Thank you both for your assistance.

(REASONS CONCLUDED) CORRIGENDUM – Released October 5, 2017 [1] In the Transcript of the Oral Reasons for Judgment issued August 1, 2017, errors in the monetary values were discovered at paragraphs 75, 78, 88, and 92.

Additionally, the Respondent’s name appeared on the cover page in full (rather than initials) and at paragraph 72, the second reference to M.E.W. should be stated as R.F.J. [The corrected information appears in bold.] [2] The Respondent’s name appearing on the cover page of the Transcript should be replaced with her initials, M.E.W . [3] Paragraph 72 of the Transcript is amended to read as follows: For the four months of 2015 when the shared arrangement commenced, M.E.W.'s available resources would have been approximately $30,000.

The records indicate that nearly two thirds of this would have been made up of repayable student loans and the remainder made up, for the most part, of grants and bursaries. R.F.J. was obligated to pay child support that year based on an annual income of $16,608, though his total income shown at line 150 of his tax return for the year showed an income of $12,679. [4] Paragraph 75 of the Transcript is amended to read as follows: He should have paid $1,176 but paid only $577 . As such, R.F.J. is in arrears for the year 2015 in the amount of $599 .

I have not relieved payments for 2014, so R.F.J. remains in arrears for 2014 in the amount of $470.90. [5] Paragraph 78 of the Transcript is amended to read as follows: When R.F.J.'s credits in the amount of $1,720 are deducted from his arrears owing in the amount of $1,069.90 , I find he is entitled to a credit in the amount of $650.10 . As R.F.J. has overpaid, I order that any interest and other fees be cancelled.

R.F.J.'s arrears, including any interest and fees, are hereby cancelled. [6] Paragraph 88 of the Transcript is amended to read as follows: In all, M.E.W.'s special and extraordinary expenses that I accept qualify as such total $2,003.76. R.F.J.'s share of that is $1,001.88. From that will be deducted his credit in the amount of $650.10 .

In the result, I order R.F.J. to pay to M.E.W. the amount of $351.78 for his share of V.A.J.'s special and extraordinary expenses. [7] Paragraph 92 of the Transcript is amended to read as follows: As R.F.J. overpaid his child support obligations from September 2015; he is entitled to a credit in the amount of $650.10 . When that amount is deducted from R.F.J.'s share of special and extraordinary expenses, he must pay M.E.W. the amount of $351.78 plus his equal share of V.A.J.'s dental expenses upon receipt of proof of payment.