IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Anderson v. Anderson, 2018 BCSC 928 Date: 20180606 Docket: E172215 Registry: Vancouver Between: Christopher John Anderson Appellant And: Elizabeth Margaret Anderson Respondent Before: The Honourable Mr. Justice G.C. Weatherill On appeal from: A decision of the Judge of the Provincial Court of British Columbia dated December 20, 2017 (File no.: F9610) Reasons for Judgment The Appellant, appearing on his own behalf: C.J. Anderson The Respondent, appearing on her own behalf: E.M. Anderson Place and Date of Hearing: Vancouver, B.C.

May 30, 2018 Place and Date of Judgment: Vancouver, B.C. June 6, 2018 Introduction [ 1 ] This is an appeal of an order of the Provincial Court of British Columbia in a family law proceeding. The order relates to the payment of spousal support, child support and s. 7 special or extraordinary expenses, both retroactively and into the future. Background [ 2 ] The parties are 45 and 44 years old respectively. They were married on February 11, 1995.

There are three children of the relationship: Kaitlin (18 years of age), Jonathan (15 years of age) and Martin (12 years of age) (collectively, the “children”). [ 3 ] The parties separated on July 1, 2016. [ 4 ] The trial of the Provincial Court proceeding took place on June 12, 13, 28, July 18, August 4, September 20 and November 1, 2017 before Her Honour Judge Challenger. She issued her Reasons for Judgment in respect of the order in issue on December 20, 2017 (the “Reasons for Judgment”).

She issued separate Reasons for Judgment on July 18, 2017 in respect of matters relating to the parenting of the children which are the subject of separate appeal proceedings currently being heard by Madam Justice Watchuk of this court. Issues on Appeal [ 5 ] Although his Notice of Appeal raises many other issues, the only issues pursued by the appellant at the hearing of the appeal were that:

a) the award of s. 7 expenses was too high;

b) an annual income of $62,750 should have been imputed to the respondent rather than only $50,199;

c) he should have been ordered to pay only $75 per month in spousal support; and

d) he should not have been ordered to pay any retroactive spousal or child support or s. 7 expenses.

The Standard and Scope of Appellate Review [6] The standard of review applicable on an appeal such as this was set out in B.P.E. v. A.E., 2016 BCCA 335: [24] Having said that, is there an error in the manner in which the chambers judge exercised the discretion established by s. 9 [of theFederal Child Support Guidelines]? In addressing that question both parties correctly submit we should bear in mind the appellate roledescribed in Ouellette v.

Ouellette, 2012 BCCA 145: [19] The standards of review to be generally applied by an appellate court to determine whether the conclusions of a trial judgeshould be disturbed are set out in the decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.235. The standard of review for questions of law is whether the conclusion is correct (para. 8). The standard of review for findings offact is whether the finding is palpably wrong on the evidence and is overriding in the sense that it affected the outcome of the decision(paras. 10 and 25).

The standard of review for findings of mixed fact and law is also whether there is a palpable and overriding errorunless the legal question can be extricated from the factual aspect, in which case the standard is one of correctness (para. 36). [20] Significant deference is to be given to trial judges in relation to support orders. Appellate courts should not overturn supportorders unless the judge’s reasons disclose an error in principle or a significant misapprehension of the evidence, or unless the award isclearly wrong: see Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577 at paras. 11 and 12. [25] That approach has recently been reiterated in Parrett v. Parrett, 2016 BCCA 151, where Newbury J.A. noted: [15] The margin of deference is all the more fitting where (as in any consideration and application of s. 9) the obligation as to supportis based upon the consideration of various objectives, values, factors and criteria.

See Hickey (at para. 10): When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, andcriteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerablediscretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes withan appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the partiesand to their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellatecourts when such decisions are reviewed. [7] Our Court of Appeal has recently re-affirmed that the scope of appellate review in family matters is a narrow one and thatintervention by an appellate court is subject to a high standard of review: Kane v. Proffitt, 2018 BCCA 106 at para 42. [8] The Court of Appeal in Kane went on to state: [42] …The function of appellate review is not to re-try a case or to continue the trial at a different stage.

Rather, its purpose is toexamine the record below to determine if material or reversible error has been demonstrated, including an error of law, an error ofprinciple, an error of fact, or a serious misapprehension of the evidence that could reasonably have affected the result and thereforewarrants appellate intervention… [43] In R.E.Q. [v.

G.J.K., 2012 BCCA 146], Madam Justice Newbury summarized the appellate review jurisdiction as follows: [33] …The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, anappellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error (including a “significantmisapprehension of the evidence”, the trial judge’s having “gone wrong in principle or [his] final award [being] … clearly wrong”):see Moge v. Moge (SCC), [1992] 3 S.C.R. 813, at 832; and R.M.S. v.

F.P.C.S. 2011 BCCA 53, at para. 43, citing Hickeyv. Hickey (SCC), [1999] 2 S.C.R. 518 at para. 12 and Van de Perre v. Edwards 2001 SCC 60, [2001] 2 S.C.R. 1014 atparas. 14-5. In the latter case the Court wrote: …Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in theappreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the uniquecircumstances of each child is the hallmark of the process.

This discretion vested in the trial judge enables a balanced evaluation of thebest interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.[At para. 13] Thus the authorities make it clear that it is not for an appellate court to re-weigh the evidence or to interfere on the basis that theappellate court would give more weight than the trial judge did to one factor or another – or, in the words of the Court in Hickey, that itwould have “balanced the factors differently.” [Emphasis added.] [9] An appeal from an order of the Provincial Court under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”) is conducted on therecord that was established before the trial judge: Kane at para. 48.

Analysis

Section 7 expenses [10] Section 7(1) of the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) sets out the following exhaustive list of thecategories of expenses that qualify as s. 7 expenses:

(

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

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; (

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

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. [ 11 ] The categories set out in ss. 7(1)(a)–(

c) are “special expenses” while those set out in in ss. 7(1)(d)–(

e) are “extraordinary” expenses whose extraordinariness is determined in the context of the combined income of the spouses , as well as other considerations, including the nature and amount of the individual expense, the nature and number of the activities, any special needs or talents of the child, and the overall cost of the activities: Bodine-Shah v. Shah , 2014 BCCA 191 at para. 66 . [ 12 ] Even where an expense fits into one of the listed categories, it must be both “necessary” and “reasonable”.

Relevant considerations for the tests of necessity and reasonableness include whether the expenses are necessary in relation to the child’s best interests and reasonable having regard to the means of the spouses, the child and to the family’s spending pattern prior to separation. In assessing “means”, the court may consider the parties’ capital assets, income distribution, debts, third-party resources, access costs, support obligations, receipt of support, and any other relevant factor: Bodine-Shah at para. 66 ; Clarke v.

Clarke , 2014 BCSC 824 at para. 52 . [ 13 ] The question of whether or not an expense in some way qualifies as a s. 7 expense under the Guidelines is a discretionary one: Clarke at para. 48 . The determination depends on the facts of each case. An expense that does not qualify in one case may qualify in another.

For example, the court may consider that a child’s particular talent together with the parents’ spending habits prior to separation are such that an expense associated with that talent is a s. 7 expense. [ 14 ] The appellant asserts that many of the expenses awarded by the trial judge do not fall within any of the Guideline categories and that, to the extent they do, there was no evidence before the trial judge that they were or are “reasonable and necessary”.

Moreover, he says that the expenses are far beyond what the parties can reasonably manage given their financial circumstances. [ 15 ] The appellant challenges the following expenses that were found by the trial judge to be s. 7 expenses:

a) Rock climbing for Jonathan and Martin;

b) Silks for Kaitlin;

c) Australian passport renewals;

d) Required school fees for Kaitlin, including Advance Placement Exams;

e) Math tutor for Kaitlin;

f) Orthodontics for Jonathan and Martin;

g) Orthotics for Jonathan;

h) Exchange program for Jonathan;

i) Spanish tutor for Jonathan;

j) Robotics Academy for Jonathan;

k) Calculators for Kaitlin and Jonathan;

l) Physiotherapy for Jonathan; and

m) Counselling for Martin. [ 16 ] The trial judge found that the rock climbing and Silks expenses were only s. 7 expenses to the extent they had been committed to prior to the date of the Reasons for Judgment. [ 17 ] The appellant says that rock climbing, Silks, passport renewals, school fees, exchange program costs, Spanish tutor, the Robotics Academy and calculators do not fall within any of the categories of expenses set out in s. 7 of the Guidelines and are simply “ordinary” in nature. [ 18 ] The appellant’s submissions were replete with bald and unsubstantiated assertions that the trial judge “clearly misapprehended the facts”.

[ 19 ] The evidence considered by the trial judge with respect to each of those expenses was as follows (transcript references omitted):

a) Rock Climbing : Throughout the children’s upbringing, as part of the parties’ spending patterns prior to separation, the children were engaged in at least one sport (principally Taekwondo) and learned to play one musical instrument. However, after separation, their interests changed to rock climbing which was significantly less expensive than Taekwondo. They also dropped their music lessons. The appellant conceded during the trial below that rock climbing was a “fantastic activity” and that he supported his children’s participation in it.

b) Silks : My understanding from the parties is that “Silks” is a form of acrobatic dance. The evidence before the trial judge was that Kaitlin had a lot of physical issues because she was not participating in sports. Her physiotherapist recommended that this activity would help Kaitlin with her posture and would assist in her well-being.

c) Passport Renewals : The appellant conceded during the trial that the children’s passport renewal expenses were properly s. 7 expenses.

d) School Fees : The evidence before the trial judge was that these fees were in respect of Advanced Placement Examinations for Kaitlin which gave her additional credits for her first year at university.

e) Exchange Program : The evidence before the trial judge was that Kaitlin had participated in an exchange program two years earlier which was supported and paid for by the parties. Prior to separation, there was an expectation within the family that Jonathan would be able to participate in a similar program.

f) Spanish Tutor : As was the case with Kaitlin, this expense was incurred as part of the exchange program. Again, the evidence was that there was an expectation within the family that Jonathan would receive tutoring in Spanish prior to participating in the exchange program.

g) Robotics Academy : The evidence before the trial judge was that the appellant supported his children attending the Robotics Academy as an “excellent opportunity” for them and that he agreed the expense was reasonable. The appellant did not withdraw his support until after the children had enrolled in and committed to the program. If the children had dropped out of the course, they would not have had enough credits on their respective academic records.

h) Calculators : The evidence at trial was that both Jonathan and Kaitlin required “graphing calculators” for their secondary schooling. These calculators plot data and were required for their math program. [ 20 ] The appellant did not point to any evidence suggesting that that the trial judge misapprehended the evidence before her in respect of the foregoing expenses. Rather, his complaint is that he does not have the means to contribute to them. However, the trial judge concluded that these expenses were neither excessive nor unnecessary given the incomes of the parties: Reasons for Judgment at para. 18.

In my view, it is clear that the trial judge used the words “neither excessive” as another way of saying “reasonable” and “notunnecessary” as another way of saying “necessary”. [ 21 ] In my view, based upon the evidence that was before her, it was well within the trial judge’s discretion to make the ruling she did: that these activities and expenses were reasonable and necessary in the best interests of the children. [ 22 ] While the appellant concedes that the orthodontics, orthotics, physiotherapy and counselling are properly s. 7 expenses, he argues that they ought not to have been included because they are covered under his medical coverage.

However, as the trial judge found, the appellant refused to take the necessary steps to allow claims to have been made under his medical coverage and held that he was to be solely responsible for these costs until such time as he did. The appellant argued during the hearing of the appeal that he now has taken the necessary steps but he did not seek to introduce any new evidence of that fact. Regardless, new evidence is only admitted in rare circumstances and must be approached with caution: Kane at paras. 50–51 .

Other than the appellant’s bald assertion that he has taken the necessary steps to submit these claims, which the respondent disputes, no evidence was proffered by him. [ 23 ] The appellant also argues that the trial judge failed to consider case law and precedent related to the financial resources of the parties and the impact her decision would have on his finances. He says that surviving under the financial constraints resulting from her decision is impossible. He maintains that, despite his desire to support his children in their activities, he is under “genuine hardship”.

He says that the trial judge failed to take into account less expensive options for the activities. [ 24 ] The appellant did not provide the Court with any concrete basis for any of these assertions. [ 25 ] The trial judge based her determination that the expenses were necessary and reasonable upon her finding that the appellant had “historically supported” the various activities and expenses or had given the family a reasonable expectation that they would be paid for. She found that the appellant was aware that the children were involved in these activities and what the costs were.

She found that, in the face of the appellant’s failure to engage in discussions with the respondent about the expenses, the respondent had made thoughtful and appropriate decisions regarding the activities. [ 26 ] Key to the trial judge’s determination was a finding at para. 18 of her Reasons for Judgment that the expenses were not excessive or unnecessary given the incomes of the parties . She clearly found that these activities were of benefit to the children and that the expenses associated with them could be maintained by the parties at their respective income levels.

In doing so, she took into consideration the appellant’s financial circumstances and the impact her order would have on the parties’ respective households.

The trial judge found, at para. 35 of her Reasons for Judgement, that there was nothing in the appellant’s circumstances which would explain why he was experiencing financial difficulties other than that he had not sufficiently reduced his expenses since separation to accord with the reality of maintaining separate households. [ 27 ] It is important to note, as the trial judge did, that the appellant did not plead undue hardship under s. 10(1) of the Guidelines . The appellant conceded that establishing undue hardship requires a high threshold and that a mere lower standard of living is

insufficient. The appellant did not point to any cogent evidence as to what the financial circumstances within his household were or would be or to any misapprehension of the evidence on the part of the trial judge. [ 28 ] The appellant has failed to demonstrate an error of law, an error of principle, an error of fact, or a serious misapprehension of the evidence that could reasonably have affected the result and warrant appellate intervention. [ 29 ] This ground of appeal is dismissed.

Should income have been imputed to the respondent? [ 30 ] Despite having not pled that a higher income should be imputed to the respondent, the appellant argues that the trial judge refused to allow him to lead evidence or make submissions regarding what the respondent’s income should be imputed to be. [ 31 ] The appellant points to two tangential references, one in the transcript of the proceedings on the first day of trial, June 12, 2017, and one in an omnibus written submission dated July 6, 2017 (the appellant did not demonstrate that these submissions were actually made or provided to the court). [ 32 ] The June 12, 2017 transcript excerpt is from the appellant’s evidence in chief (p. 122 ll 16–21) and reads: A. …A couple of points to make, uh.

Obviously – well, firstly, sorry. So Beth is fit and well and is – is able to work full-time. THE COURT: Sorry, she’s what? Fit and well, is that what you said? A Yeah. She’s not – THE COURT: Okay. A She’s not suffering any – to my knowledge, anything that’s preventing her from working full-time. [ 33 ] The July 6, 2017 written submission states, in part: • Elizabeth has the capacity to earn more than she currently does. Elizabeth:

i) Has a master’s degree in Social Work; ii) Is fit and well, and is able to work; iii) Chooses to be under-employed as a lifestyle choice. Elizabeth has the ability to be self-sufficient and could increase her income by working full-time. [ 34 ] The appellant then points to the following exchange in the transcript of the proceedings on November 1, 2017 (p. 3 ll 46–47, p. 4 ll 1–18) during his cross-examination of the respondent: CHRISTOPHER ANDERSON: Yes, I understand that. I believe that Mrs. Anderson is deliberately under-employed. I’m trying to establish whether Mrs. Anderson is under-employed.

THE COURT: Have you given notice of that prior to today? Is it pled in your – did you plead it? Did you give mother notice that you were going to make the argument that she was under-employed? CHRISTOPHER ANDERSON: Oh. I – [inaudible]. THE COURT: Then you can’t pursue it. CHRISTOPHER ANDERSON: Okay. THE COURT: You can’t come to court and ambush someone… CHRISTOPHER ANDERSON: Okay. That’s my lack of understanding of the process, Your Honour. I do apologize. I’m not a lawyer. I’m just a dad doing his best.

Okay…. [ 35 ] The appellant says that, but for the trial judge’s refusal to allow him to pursue this issue, he would have led evidence regarding the availability of employment in the Vancouver area for a person with the respondent’s qualifications.

He did not articulate what form that evidence would have been or whether or not it would have even been admissible at trial. [ 36 ] Regardless, as it turned out, the trial judge did deal with the imputation of income argument in her Reasons for Judgement: [28] The final issue to be resolved is whether Mother should receive spousal support and, if so, whether it should be retroactive to the date of separation. [29] Mother is a social worker who is now 43 years of age. They were together in a marital relationship for over 20 years. Mother obtained her BSW in 1997 and her MSW in 2003.

Since the birth of their first child in late 2002, she has been working part time. Mother took four maternity leaves (one child did not survive infancy). During 2008 and 2009 she worked full time but returned to part time work due to the need for her to provide child care. She currently works in a permanent part-time position two days a week. Her future prospects for employment were not addressed in any detail.

[30] Father is 44. He has been the primary income earner since the birth of their first child. He has been involved in various occupations and, as set out in my previous reasons, worked overseas for periods of time. [31] Father took no issue with there having been agreement throughout for Mother to forgo her career development in order to care for the children. Rather, Father argues that Mother should have returned to full time work after separation .

Mother says that she felt it was important for her to remain available for the children during the transition to co-parenting especially for their youngest child, Martin, who was 10 years old in mid-2016. He has just turned 12. In my view, Mother should transition back to full time work as Martin proceeds through high school. The parents will have to carefully consider what working

schedule will enable Mother to continue to support the children academically and otherwise as, to date, they are excelling in all respects with the current level of attention and support she is able to provide. [Emphasis added.] [ 37 ] The evidence before the trial judge was that the appellant worked overseas for nine months each year from 2013 to 2016 in furtherance of his career, returning in April 2016, and that the respondent was the primary caregiver for the children during that period. [ 38 ] The trial judge recognized the obligation upon the respondent to now transition to full-time work as Martin progresses through school.

If the respondent fails to do so, the appellant has the right, anytime after August 2018, to seek a review of his support obligations. [ 39 ] The appellant has failed to demonstrate that the trial judge made an error of law, an error of principle, an error of fact, or a serious misapprehension of the evidence that could reasonably have affected the result. [ 40 ] This ground of appeal is dismissed. Award of spousal support [ 41 ] The appellant argues that the trial judge failed to properly apply the Spousal Support Advisory Guidelines in determining a spousal support obligation of $354 per month.

He submits that the trial judge failed to take into account the s. 7 expenses that she had ordered him to pay. [ 42 ] I note that the Spousal Support Advisory Guidelines: The Revised User’s Guide states the following at

Chapter 2, Common Errors To Avoid at p 4, (h):

Section 7 expenses must be taken into account under the with child support formula . This continues to be the single most common and most significant mistake under the SSAG. The failure to consider s. 7 contributions will inevitably lead to the payor paying too much spousal support, possibly way too much if the s. 7 expenses are substantial. [ 43 ] I could not find any case law and none was provided by the parties suggesting that the Court must take s. 7 expenses into account when determining spousal support under the “with child support” formula. That said, there are many cases that do account for them. Examples include:

a) P.T v. K.T., 2016 BCSC 2367 at paras. 232–234 : [232] Still further, providing K.T. with spousal support at the high end of the range would, on an after-tax basis, and factoring in various benefits, credits and

Section 7 expenses significantly distort the remaining disposable income, available to P.T. and K.T., in favor of K.T. [233] In light of these various circumstances I consider that P.T. should pay K.T. ongoing spousal support, at the midrange, or in the amount of $1,022 monthly. [234] P.T. and K.T. are, respectively, to pay the special or s.7 expenses of the children in a ratio of 70:30. [Emphasis added.]

b) M.A.T. v. K. P.T , 2017 BCSC 1603 at para. 236 [236] As I have indicated, because of the respondent's high income, an individualized fact specific analysis is necessary to determine the amount of spousal support, which considers the marital and post-separation standards of living, the parties' reasonable expenses, the strength of the claimant's entitlement, work incentives for the respondent, and s. 7 expenses for the children, where appropriate, in the context of s. 15.2(4) and (6) of the Divorce Act . [Emphasis added.]

a) Holmes v. Holmes, 2017 ONSC 6425 at paras. 104–105 : [104] If there were no s. 7 expenditures to consider, I would order a payment of $1,350 per month from [the respondent] to [the applicant], representing an award at the mid to upper end of the range. However, in the circumstances of the children's sports and post- secondary needs, that amount is reduced to $1,150 payable by [the respondent] to [the applicant]. … [105] In ordering a “global” monthly amount, which encompasses spousal support with a reduction to reflect [the applicant’s] contribution to s. 7 expenses, … [ 44 ] There are other cases that do not. One example is Turk v. Turk, 2018 ONSC 1931 :

[66] I appreciate that ordinarily, the payor’s payment of s. 7 expenses are considered in the SSAG calculations. … [ 45 ] Others cases have calculated income, for the purposes of determining the parties’ proportionate shares of the s. 7 expenses, by deducting the spousal support payor’s obligation and including the payment in the recipient’s income. See, for example, Thompson v. Thompson, 2013 ONSC 5500 at para. 163 . [ 46 ] The trial judge determined that the appellant was required to pay spousal support of $354 per month but did not explain how that figure was arrived at.

She wrote: [36] A mid-range Spousal Support Advisory Guideline amount, taking into account the current Guideline child support amount, would result in Mother having 59.7% of the disposable income available. I find this is appropriate and takes into account all of the circumstances of both parties. Father will pay to Mother $354.00 per month retroactive to July 1 st , 2016 and on the 1 st of every month thereafter until further order of this Court.

I fix arrears of spousal support at $6210.00 as of December 31 st , 2017. [ 47 ] The appellant produced his own DivorceMate printouts based upon the applicable Line 150 incomes found by the trial judge ($107,500 and $50,199, respectively) and a division of net disposable income of 40.3% and 59.7%, respectively. Those printouts show a mid-range Guideline amount payable by the appellant of $212 per month if s. 7 expenses are not considered, and $75 per month if s. 7 expenses are considered. [ 48 ] My own DivorceMate calculations are attached as

Schedule “A” to these reasons for judgment. They show a mid-range Guideline spousal support amount payable by the appellant of $212 per month if s. 7 expenses are not considered, and $138 per month if the s. 7 expenses ordered by the trial judge in the amount of $420 per month are considered. [ 49 ] No basis was provided by the trial judge for her departure from the Spousal Support Advisory Guidelines. Indeed, it appears that she may simply have made a mistake. Moreover, she did not consider whether the $420 per month she ordered the appellant to pay in s. 7 expenses should be taken into consideration.

In my view, the law requires that they should have been. [ 50 ] I find that the trial judge made a material and reversible error of principle and/or fact that affected the result of the spousal support award she made. That error warrants appellate intervention. [ 51 ] The trial judge’s order that the appellant pay spousal support of $354 per month retroactive to July 1, 2016 and on the first day of every month thereafter until further order of this Court is set aside, as is her fixing of arrears of spousal support at $6,210 as of December 31, 2017.

That order is replaced with an order that the appellant pay spousal support to the respondent of $138 per month commencing January 1, 2018 and on the first day of each month thereafter until further order of the Provincial Court. The Retroactive Award [ 52 ] In D.B.S. v. S.R.G. , 2006 SCC 37 , the Supreme Court of Canada considered (at paras. 94 to 106) the factors that a judge ought to take into account in the exercise of his or her discretion in making a retroactive order. They include:

a) whether there is a reasonable excuse for why support was not sought earlier;

b) the conduct of the payor parent;

c) the circumstances of the children; and

d) whether hardship will be occasioned by a retroactive award. [ 53 ] The fact that the trial judge did not make specific reference to these factors does not mean that she failed to take that guiding authority into account in making the order she did. A judge is presumed to know the law and is not required to exemplify it by reference to statute or authorities: E.R.H. v. B.W.H., 2009 BCCA 573 at para. 38 .

However, while it is not mandatory for a court making a retroactive order to explicitly refer to D.B.S. or expressly discuss the factors to be considered, some discussion of the reasons for the retroactive award is to be expected: Reis v. Bucholtz , 2010 BCCA 115 at para. 67 [ 54 ] The trial judge did not give reasons for making the retroactive awards that she did. Was there reasonable excuse for why support was not sought earlier? [ 55 ] A review of the transcripts discloses that there was no evidence before the trial judge regarding why the respondent did not claim entitlement to support before she did.

Although the respondent stated during her submissions that she had engaged in numerous attempts to resolve financial matters with the appellant in the hope that litigation would be avoided, there was no evidence to that effect.

In my view, the evidence falls short of demonstrating that the respondent gave the appellant informal notice that she was seeking spousal and child support prior to the filing of her counterclaim Conduct of the appellant [ 56 ] In D.B.S. , at para. 106 , the majority of the Court discussed the concept of “blameworthy conduct” on the part of the payor parent: [106] Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context.

I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an

appropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), (ON CA), 72 O.R. (3d) 561, at para. 85, where children’s broad “interests” – rather than their “right to an appropriate amount ofsupport” – were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ supportobligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger childsupport payments: see Hess v. Hess (1994), (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v.

Shippelt(2001), 293 A.R. 317, 2001 ABCA 307; S. (L.) [v. P. (E.) (1999), 67 B.C.L.R. (3d) 254, 1999 BCCA 393]. A payor parent cannotintimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995ABCA 425 , 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her child supportobligations are being met when (s)he knows that they are not. [57] There is no evidence suggestive of blameworthy conduct on the part of the appellant.

Circumstances of the children [58] Neither party pointed to evidence that the circumstances of the children were particularly unusual. Indeed, the evidencesuggests that they were and are thriving. This factor is neutral. Hardship [59] As set out above, there is no evidence that the retroactive award will result in undue hardship to the appellant.

However, hesubmits that the trial judge erred in awarding retroactive support based upon his 2017 income rather than his 2016 income. [60] Courts should attempt to craft the retroactive award in a way that minimizes the disruption in the payor’s management ofhis/her financial affairs: D.B.S. at paras. 115–116. [61] There was no explanation by the trial judge as to why a retroactive award for spousal and child support was warranted in theface of the evidence that was before her. None of the D.B.S. factors, other than the fourth one (no hardship), weigh in favour of such anaward.

In my view, the trial judge’s award of retroactive child and spousal support is not consistent with the principles in D.B.S. andcannot be supported on the evidence and must be set aside. [62] However, as set out above, the evidence does support the retroactive award for s. 7 expenses based upon the parties’ respective2016 and 2017 incomes. The appellant’s income in 2016 was $73,327 and in 2017 was $107,500. The trial judge imputed therespondent’s income for both years to be $50,199. Accordingly, the parties’ proportionate share of s. 7 expenses in 2016 should havebeen 59.4% and 40.6%, respectively.

For 2017, the proportionate shares were 68.2% and 31.8% respectively. These are the approximatefigures used by the trial judge (see Reasons for Judgment para. 25). No error of law, error of principle, error of fact or seriousmisapprehension of the evidence has been demonstrated by the appellant. [63] The appellant submits that, if any retroactive award was warranted, the trial judge erred in ordering a date of July 1, 2016 (thedate of separation) instead of February 2017 (the date of the respondent’s counterclaim which claimed this support).

He relies on thefollowing passage from D.B.S.: [93] … a court “will not ordinarily make an order retroactive to a date prior to the commencement of the divorce proceedings”…Thenuance in their phrase is important: simply because courts have the constitutional authority to make such a retroactive award under theDivorce Act does not imply that they should regularly do so.

As I will explain below, the presumptive date of retroactivity should not bethe date of separation; but in certain circumstances, a court acting under the federal power will find it appropriate to make a child supportorder from this date, and will have the jurisdiction to do so. [Emphasis in original.] [64] In my view, for the reasons set out above, it was appropriate for the trial judge to have made the order with respect to s. 7expenses retroactive to July 1, 2016 and I decline to disturb that ruling. Conclusion [65] The appeal of the trial judge’s order regarding ongoing spousal support is allowed.

The appellant will pay spousal support tothe respondent in the amount of $138 per month commencing January 1, 2018. [66] The appeal of the trial judge’s order regarding retroactive spousal and child support is allowed. [67] The appeal of all of issues raised, including the trial judge’s retroactive award with respect to s. 7 expenses is dismissed. [68] As there has been mixed success, each party will bear his or her own costs. “G.C. Weatherill J.”

Schedule “A”