E.M.B. v. J.R.B. Date:, 2016 BCPC 366

Citation: E.M.B. v. J.R.B. Date: 20161114 2016 BCPC 0366 File No: 58521 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.M.B APPLICANT AND: J.R.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacCARTHY Appearing on her own behalf: E.M.B.

Appearing on his own behalf: J.R.B. Place of Hearing: Nanaimo, B.C.

Dates of Hearing: April 18 & 21, June 16, 2016 Date of Judgment: November 14, 2016 INTRODUCTION [ 1 ] This matter involves an application brought by one parent with respect to a variation of a fairly recent separation agreement entered into on November 10, 2014 and filed with the Provincial Court on January 19, 2015 (the “Separation Agreement”). [ 2 ] It specifically involves an Application Respecting Existing Orders or Agreement filed by the Mother (as defined below) to set aside the Separation Agreement in whole or in part, by way of a variation, as to the shared parenting time for two children as presently provided for in the Separation Agreement.

The issues of adjustment of child support, arising from the variation being sought, retroactive child support and the issue of obligations for and the sharing of extra-ordinary expenses have also been raised in this hearing before the court. [ 3 ] In his Reply, the Father (as defined below) opposes any variation of the shared parenting arrangement and there is joinder of issues regarding any required adjustment of child support, retroactive child support, the obligation for and the sharing of extraordinary expenses.

In addition there is an issue as whether the court should be enforcing the Father’s parenting time with the eldest child. [ 4 ] All of the issues arise against a background of a significant deterioration of the Father’s relationship with the eldest child, referred to herein as “Child A”, who was 15 years old at the time of the hearing. The result of the deterioration has been an estrangement that has continued for several months immediately following the making of the Separation Agreement.

The issues also arise against a background of the youngest child, referred to herein as “Child R” being approximately 11 years at the time of the hearing continuing to be subject to the shared parenting arrangement. The other context is the significantly dysfunctional relationship between the Mother and the Father that has continued to deteriorate since the making of the Separation Agreement. BACKGROUND Matters Giving Rise to the Separation Agreement [ 5 ] The parties to these proceedings and to the Separation Agreement are E.M.B. (the “Mother”) and J.R.B. (the “Father”).

The Mother and the Father (collectively the “Parents”) are the parents of A.J.B. (“Child A”) date of birth [omitted for publication], and R.J.B. (“Child R”) date of birth [omitted for publication], collectively the “Children”. [ 6 ] It is common ground that the parents were married in August of 2000 and commenced to live separate and apart from June of 2009 at which point Child A was approximately 8 years of age and Child R was approximately 4 years of age. [ 7 ] The Parents entered into a written agreement pursuant to

Section 28 and

Section 121 of the then operative Family Relations Act , RSBC 1996, ch. 128 as amended (the “FRA”).which was dated November 9, 2009 (the “2009 Agreement”) and which was filed with the Provincial Court on December 16, 2009. [ 8 ] The 2009 Agreement stipulated that the Parents were joint guardians of the Children. It was agreed that the Father’s access (as it was then known) was to be every other weekend, weekdays as agreed by the Parents and with a provision for a weekly phone call and a further phone call when the Children were with the Mother on her weekend.

Also there was a provision concerning the sharing of Christmas. [ 9 ] Provisions were also made for the Father to pay monthly child support of $623 based apparently upon his Guideline Income of $40,904.50 and for the sharing of special and extraordinary expenses, including day care, swimming lessons and taekwondo lessons proportionate to their incomes, such that Father was to pay 69% and the Mother was to pay 31%, apparently on the basis of her Guideline Income of $18,000. [ 10 ] It is not entirely clear on the evidence but at some point the Father’s child support payment amounts increased and such increase was in effect at least in 2011.

Thereafter he was paying $730 per month for the two Children which would be based upon a Guideline Income of $48,100 per annum. Those payments continued in effect until September of 2013. [ 11 ] On September 6, 2013 an interim order was made by this court, (the “September 2013 Interim Order”) in which: 1. The Father was ordered to pay monthly child support to the Mother of $895 per month commencing September 15, 2013, with equal payments of $447.50 on the 15 th and the 1 st day of each month. 2.

The Mother was ordered to send the Father daycare expense receipts by electronic mail and with follow up mailed hard copies and the Father was ordered to pay 2/3 of the receipts within seven days of receipt. 3. No order was made in respect of arrears of maintenance and that matter was adjourned to the Judicial Case Manager to fix a date for a one day trial. [ 12 ] It is noteworthy that the child support amount set out in the September 2013 Interim Order would be the amount payable on a Guideline income of $59,000.

In the Father’s sworn Financial Statement filed May 22, 2013, which I infer was available to the court at

the September 15, 2013 hearing, the income amount disclosed by the Father at that time was $57,916. This was his actual 2012 line 150 amount on his 2012 Income Tax Return. In fact using the Father’s actual and now available Guideline Income figure for 2012 of $59,916, it would result in a monthly child support payment for 2 children of $909, being a difference of $14 per month than the amount ordered. [ 13 ] It is also common ground that the parties entered into a Consent Order prepared with the assistance of each of their separate, independent legal counsel and filed in the Court Registry on July 7, 2014 (the “July 2014 Consent Order”) which in

summary: 1. On a “without prejudice basis” it was agreed that the Father was to have increased parenting time during specific days in July and August of 2014 and in September of 2014 the Father was to have increased parenting time from Thursday from 5:30 p.m. to Saturday at 5:30 p.m. 2. It was contemplated that the Parents would continue to seek an agreement on parenting time before October 1, 2014 and in the event that did not occur the parenting arrangement set out in the 2009 Agreement would be operative “pending an order of the Court or agreement between the parties”. 3.

It was further agreed that a “Views of the Child Report” would be prepared by Dr. Waterman and the estimated cost of that report would be shared equally. The Separation Agreement [ 14 ] With the assistance of a mediator and upon receiving independent legal advice, the Parents entered into the Separation Agreement which dealt with changes to the parenting arrangements for the Children and made revised provisions for maintenance of the Children. [ 15 ] The Separation Agreement has never been modified in writing or by any oral agreement.

Prior to the initiation of these proceedings neither party formally has sought to change, modify or vary the Separation Agreement. [ 16 ] At the time of the making of the Separation Agreement the Mother was described therein to be a travel agent with an expected Guideline Income of $31,500. The Father was described as an electrician with a stated Guideline Income of $62,000. As will be seen below, those figures are not entirely accurate.

Guardianship and Parental Responsibilities Provisions of the Separation Agreement [ 17 ] The Separation Agreement adopted the meaning of words set out in the Family Law Act , SBC 2011, c. 25. (the “ FLA ”).

It confirmed that the Parents continued to be guardians of the Children and to parent the Children and further that during parenting time, a guardian may exercise parental responsibilities of making day-to-day decisions affecting the Children but provided that the guardian must advise the other parent of any matters of a significant nature affecting the Children. [ 18 ] Other relevant provisions of the Separation Agreement include paragraph 11 of the Separation Agreement which provides as follows: 11. The guardians will email each other once a week when the Children are transferred to the other.

Each guardian is to communicate to the other any issues arising with the Children while in the guardian’s care including: (

a) school-such as events, key dates, report cards, newsletters, outings, assignments, home reading, parent/teacher meetings and homework; (

b) health – observations of the child, child’s complaints, doctors’ appointments, dental appointments, medications, injuries and diet; (

c) social-invitations, activities taken and family events; (

d) extracurricular activities-registration, schedules, equipment, and events; (

e) key contact information for doctors, dentists, daycare, sitters, parents emergency contact numbers; and (

f) any other matter relating to the care of the child. Parenting Arrangement Provisions of the Separation Agreement [ 19 ] Relevant to the issues before this court also include the provisions of paragraph 12 of the Separation Agreement relating to the living arrangements of the Children which provides: 12. The Children will reside with each parent as follows: (

a) From September 1, 2014 to January 14, 2015, the Children will reside with each parent as follows: (i) [Mother] every week from Saturday at 6 PM to Thursday at 6 PM; and (ii) [Father] every week from Thursday at 6 PM to Saturday at 6 PM. (

b) Commencing January 14, 2015, the Children will reside with: (i) [Mother] every week from Saturday at 6 PM to Wednesday at 6 PM; and

(ii) [Father] every week from Thursday at 6 PM to Saturday at 6 PM. (c) [Father] agrees that the Children will not be left at the school or before school care before 7:30 AM on the days the Children are with him. (

d) The parties will equally share all parenting time on significant holiday times during the year including Christmas school break, Spring school break, Easter school break and Summer school holidays. The parties further agree to alternate on a yearly basis, the timing on important holidays, such as Christmas Eve and Christmas morning, Easter morning and Thanksgiving dinner. (

e) The parties will make arrangements with each other regarding each holiday in the first week of the month preceding the month in which the holiday falls. Child Maintenance Provisions of the Separation Agreement [ 20 ] The relevant provisions of the Separation Agreement relating to child maintenance are found in paragraphs 18 and 19 which provide as follows: 18.

Based on [Father’s] guideline income of $62,000 and [Mother’s] guideline income of $31,500, [Father] agrees to pay to [Mother] for the maintenance of the children of the marriage, the sum of $453 a month commencing on the 1 st day of January 2015 and to continue on the 1 st day of each and every month thereafter so long as there are children of the marriage as defined by the Divorce Act (Canada). 19.

The parties also agreed that on May 31 st of each year they will exchange copies of their respective Income Tax Returns, with attachments as well as any other relevant financial documentation, to enable the amount of child support to be adjusted based on the Federal Child Support Guidelines .

Special or Extraordinary Expenses Provisions of the Separation Agreement [ 21 ] The relevant provisions of the separation agreement relating to special or ordinary expenses are found in paragraphs 20 to 22 inclusive and paragraph 24 which read as follows: 20. (a) [Mother] and [Father] agreed to pay the costs of special or extraordinary expenses for the Children, as agreed upon, for as long as there are children of the marriage pursuant to the terms of the Divorce Act (Canada) in proportion to their respective Guideline Income; (

b) The parties will indemnify each other for their proportionate share of special expenses as set out below within one month of the expense being incurred; (

c) The party responsible for payment of enrolment in the activity will give copies of all receipts to the other parent; 21. The following are special or ordinary expenses: (

a) medical and dental expenses; (

b) to the extent the parties agree to them in advance, all sports and recreational activities including gymnastics, music lessons, art, soccer, swimming as well as the equipment and registration costs involved; (

c) to the extent the parties agree to them in advance, counselling and tutoring expenses; (

d) all costs of education except those listed in paragraph 22; (

e) expenses arising in the future that qualify as special or extraordinary expenses within the meaning of the Federal and British Columbia Child Support Guidelines (the “additional special or extraordinary expenses”); and (

f) for the purposes of determining each party’s share of the special or extraordinary expenses, the amount of the expense will be calculated by taking into account any tax benefit or subsidy for, or associated with, the expense. 22. The following do not constitute special or extraordinary expenses: all customary and recurring expenses, such as for clothing, food, gym kit and transportation to and from school. …. 24.

The parties will perform an accounting by May 31 st of each year or at such other time as they agree upon, to ensure that each party has paid the appropriate share of the special or extraordinary expenses for the previous year, and the party who has paid less than required will pay the amount of the deficiency to the other party within seven days of the conclusion of the accounting. Other Relevant Provisions of the Separation Agreement [ 22 ] The Separation Agreement contains two provisions for mediation or alternative dispute resolution.

Under the provisions relating to parenting arrangements the following appears as paragraph 17: 17. Should there be a dispute regarding the well-being, education or upbringing of the children that [Mother] and [Father] cannot resolve between them, each party agrees that an alternate dispute resolution mechanism such as mediation or the collaborative family law process will be used to help negotiate an agreement before either party will initiate legal or court action.

[ 23 ] A further general Mediation of Disputes provision is found under paragraph 29 which reads as follows: 29. If a dispute arises concerning parenting arrangements under this Agreement, the parties will use best efforts to resolve the dispute through mediation before taking court proceedings. [ 24 ] Another relevant provision is contained within paragraph 14 which reads as follows: 14. If a parent cannot care for the Children for an extended period of time, that parent will give the other parent the opportunity to care for the Children before seeking the assistance of extended family such as grandparents.

Mediation [ 25 ] The Parents have in the past been able to reach agreements with the assistance of mediation, including the execution of the Separation Agreement. I understand that a private mediator was engaged to assist in reaching those agreements, and in particular the Separation Agreement. Thereafter the Mother suggested use of the Nanaimo Justice Access Centre and a family justice counsellor to resolve subsequent differences. The Father wished to return to the private mediator which was rejected by the Mother on the basis of expense.

Thus the parties were stalemated about the mediator. [ 26 ] The evidence confirms that no other mediation procedures were subsequently undertaken notwithstanding the provisions of paragraphs 17 and 29 of the Separation Agreement. [ 27 ] I am satisfied that given the deterioration in the relationship between the Mother and the Father shortly after the November 2014 Incident and the Christmas 2014 Event (both as are hereinafter described) mediation would not likely have been successful at that time.

That is not to say that future issues covered by the Separation Agreement and related matters involving the Children should not in fact be referred to mediation. I shall have more to say about that later. Recent Court Proceedings [ 28 ] The Mother filed her Application Respecting Existing Orders or Agreement on January 19, 2015 (the “Mother’s Application”). In it she asked that the Separation Agreement be set aside in whole or in part. She swore and filed her own affidavit on the same date (the “Mother’s January 2015 Affidavit”) in support of the Mother’s Application.

The Mother’s January 2015 Affidavit was admitted into evidence at the hearing as an exhibit. In the Mother’s January 2015 Affidavit she indicates that as a result of the present deteriorated state of the relationship between the Father and Child A over the preceding months and the refusal of Child A to go to the Father’s residence other than some 3 nights from November 16, 2014 until the date of deposition, and none since December 27, 2014, it leaves Child R to go there by himself.

That says the Mother is affecting the “dynamic between [Child R] and his Father as well as between [Child A] and [Child R] in an unhealthy way.” The Mother states that the “boys’ best interest” is to remain together. Hence the Mother says that the increase in parenting time for the Father as provided for in the Separation Agreement should not occur and is not in the best interest of the Children. [ 29 ] The Father filed a Reply, without a counterclaim, on March 9, 2015 (the “Father’s Reply”).

In support of the Father’s Reply and in response to the Mother’s 2015 Affidavit, the Father swore an Affidavit on March 9, 2015 which was filed on the same date (the “Father’s March 2015 Affidavit”). It was admitted into evidence during the Father’s testimony as an exhibit.

The Father’s Reply disagrees with the relief being sought and states that it is not in the best interest of the Children to set aside or replace the Separation Agreement, stating that the Mother has been breaching the Separation Agreement though it had only been in place a short time. [ 30 ] On March 23, 2015 the Mother and Father appeared before the Court and with the help of duty counsel an order was made that a Family Justice Counsellor prepare a

section 211 report to assess the views of the Children and the matter was adjourned to the Judicial Case Manager to fix a hearing date. [ 31 ] The

Section 211 report was completed by Lisa Bury, a Family Justice Counsellor with the Family Justice Report Service on May 20, 2015 (the “Views of the Child Report”). Child A was age 14 and Child R was age 10 at that time. The Parents have each testified that they do not take issue with the contents of the Views of the Child Report. [ 32 ] On May 29, 2015 the Mother and the Father attended a Family Case Conference before me.

As a result of the discussions at that Family Case Conference the matter was adjourned to set a further Family Case Conference in about three months’ time to permit the Mother and the Father to arrange counselling for Child A and the Father on his own behalf to be coordinated and to deal with the Father’s and Child A’s relationship.

That further Family Case Conference did occur on September 4, 2015 in front of the Honourable Judge Cowling (the “Second Family Case Conference”) and thereafter the matter was set for a hearing. [ 33 ] At the Second Family Case Conference the issues that were identified for hearing under the heading of “Support/Maintenance” were “enforcement and/or variation of existing agreements” with additional mention under “Contact with the Child” of the Father’s contact (which I take to be parenting time) with Child A.

The hearing proceeded before me on April 18, 2016, (with the approval of both parties notwithstanding that I conducted the first Family Case Conference) and continued thereafter on April 21, 2016 May 29, 2016, and again on June 16, 2016. [ 34 ] The parties were self-represented throughout these matters before this court. Issues before the Court with Respect to the Mother’s Application and the Father’s Reply [ 35 ] As a result of these proceedings the issues upon which evidence has been heard and which will require a decision relate to the

following: (

a) whether or not there should be a specific order made varying or setting aside the Separation Agreement provisions regarding shared parenting and the Father’s ongoing parenting time with either or both of Child A and Child R and in that regard whether direct means of contact between the Father and Child A should be ordered. (

b) whether or not a court order should be made regarding future counselling to occur between the Father and Child A in connection with their relationship. (

c) the variation of the amount, if any, of child support to be paid by the Father for the support of Child A and the basis for both that obligation to pay and the quantum of that payment and whether any variation of any child support payment should be made. If so, should it be on a retroactive basis or a prospective basis or both and if so what is the effective date for a retroactive or prospective variation. (

d) whether by their nature all of the expenses claimed by the Mother or alternatively the Father are to be properly regarded as special or extraordinary expenses. (

e) the amount of any special and extra-ordinary expenses, if any, owed by the Father or the Mother in connection with the Children, on an ongoing basis and whether any portion of that calculation is to be made on a retroactive basis, and if so, the effective date for making that calculation. The Witnesses at the Hearing [ 36 ] The Mother was the sole witness on her own behalf. She provided viva voce evidence.

The Mother filed a further affidavit sworn and filed on March 17, 2016 (the “Mother’s March 2016 Affidavit”) as well as an updated sworn Form 4 Financial Statement on that same date (the “Mother’s 2016 Financial Statement”). [ 37 ] The Father was the sole witness on his own behalf. He provided viva voce evidence. The Father filed a further affidavit sworn and filed on April 6, 2016 (the “Father’s April 2016 Affidavit”) as well as an updated sworn Form 4 Financial Statement on that same date (the “Father’s 2016 Financial Statement”).

Personal Background of Child A [ 38 ] Based on the evidence of both the Mother and the Father and the information contained in the Views of the Child Report, Child A presently is 15 years of age, attends a local secondary school and at the date of the hearing of this matter was completing grade 9. Generally he does well in school, but some academic challenges were noted during the period that Child A’s relationship with his Father became problematic. He enjoys reading, science and computers.

There are no behavioural issues at school. [ 39 ] The Views of the Child Report describes him as a “pragmatic and serious teenager”. The evidence of the Parents describes him as a happy child but more quiet and sensitive than most. Based on the evidence I heard that surrounded what is described below as the “November 2014 Incident” that sensitivity was quite apparent and especially as it related to the loss of Child A’s cat. [ 40 ] Child A has two close friends with whom he enjoys playing video games. He is not athletic but enjoys outdoors activities such as fishing in the Nanaimo area and in the Cowichan Valley.

Some of his fishing activities occur in the company of the Mother’s new partner, K.W. who resided in the Cowichan Valley. According to the Views of the Child Report and the Mother’s evidence Child A has a very good relationship with K.W. and they spend quite a bit of time together. [ 41 ] The Views of the Child Report describes that Child A reported a “large blended family” with the Mother, Child R, himself and K.W. and his two children, ages now approximately 9 and 7. In addition there of course is the Father and his partner M.S. and a younger half-brother M. who is presently approximately 2 years of age.

M.S. is described by Child A as a “good person”. The Father testified that she and Child A got along “great”. [ 42 ] Based on all of the evidence, Child A and his brother Child R have enjoyed and continue to enjoy a strong relationship and enjoy each other’s company, notwithstanding their differences in ages. Personal Background of Child R [ 43 ] Based on the evidence of both the Mother and the Father and the information contained in the Views of the Child Report, Child R presently is 11 years of age, attends a local elementary school and at the date of the hearing of this matter was completing grade 4.

He does well academically in school and historically ranks at the top of his class. He takes pride in his achievements. Historically there are no behavioural issues at school. [ 44 ] Child R excels at sports and plays volleyball, basketball and football. He also takes drumming lessons. He also enjoys fishing. [ 45 ] He is a very social child with a wide group of friends and is described in the evidence as being more extroverted and outgoing than his brother Child A.

Child R is described in the Views of the Child Report as “energetic and thoughtful”. [ 46 ] The Views of the Child Report states that Child R describes feeling happy in both homes and enjoys his siblings and the new partners of each parent.

He enjoys his relationship with and feels close to his brother Child A and the time they spend playing together. [ 47 ] Notwithstanding all of the positive information, the Parents agreed in their testimony that Child R can be more challenging in his behaviour than Child A and can be seen to be manipulative. [ 48 ] In her evidence, the Mother suggests that in the last 12 to 15 months that Child R’s behaviour has become more negative, with examples of acting out to other family members with verbal abuse, shouting and throwing things and being emotional and teary.

This has prompted her to raise concerns with the school and she has considered obtaining counselling for Child R. The Mother also suggests that

Child R’s historically strong academic performance has been somewhat negatively impacted over this same period. Personal Background and Financial Circumstances of the Mother [ 49 ] The Mother is approximately 37 years of age. She is qualified as a licensed practical nurse, for which she trained in 2009 and 2010 following her separation from the Father and at which she worked at including in 2012 and 2013.

She worked “on call” and on various shifts which she found challenging for her personal and family schedule. [ 50 ] In August of 2013 she changed careers and became a licensed travel agent / consultant at which she has continued to work in 2014 through to present. Her hourly wage is $15.50; she does not work on commission and does not receive bonuses but may earn a small amount extra for selling travel insurance. [ 51 ] She also is qualified in providing foot care, having taken courses in 2010 and 2011.

She started a small business with a few clients in 2012 and also worked as an employee through a foot care group. She pretty well ceased doing that in 2013 and 2014 when she became a travel consultant. However in 2015 she returned part time to foot care and has started her own business.

Thus she is working 4 days per week as a travel agent and presently about a 1 ½ days per week at foot care. [ 52 ] According to her evidence and her 2015 T1 General Income Tax and Benefit Return she earned business net income of $2,530 from her foot care proprietorship before adjustments claimed for business expenses totalling $18,199.01. The business expenses included significant amounts for rent, telephone and utilities and advertising.

As I understand it the business expenses for rent and telephone and utilities represent a portion of her own residential expenses that have been attributed to her proprietorship business. Thus for income tax purposes her net business loss equalled $15,669.01. This amount was deducted from her employment income of $32,056.98 and her Universal Child Care Benefit of $1,100 which totalled $33,156.98 thereby substantially reducing her 2015 income to $17,497.97. [ 53 ] The Mother did not provide her complete 2014 T1 General Income Tax and Benefit Return, but rather just a Canada Revenue

Summary which states that her line 150 income equals $23,173. However, it also discloses total T4 earnings at line 101 of $30,734, no line amounts for universal child care benefit, line 162 gross business income of $320 and line 135 net business income (being a loss) of $7,561. I gather that the business income and losses are from her limited business activity in foot care during that taxation year. No breakdown of the claimed business expenses was provided but I can infer the categories were the same as claimed in 2015.

The Mother testified that she does not have any significant expenses for her tools, equipment and supplies which she stated are somewhere in the annual range of between $20 and $100. [ 54 ] The Mother’s business losses claimed in 2014 and in 2015, given the amount of actual reported business income generated, in my view distort the picture of the actual earned income of the Mother for those two years.

I appreciate that the Mother is seeking to establish and to grow her proprietorship business and eventually the claimed expenses for Income Tax purposes may be reflective of a reasonable, positive net business income.

Given the modest amount of gross business income achieved and the very significant amount of business expenses claimed, for Guideline purposes those expenses are in my view excessive when dealing with child support issues. [ 55 ] In my view, for the purposes of determining the Mother’s income for both 2014 and 2015, a more accurate, historically consistent and fairer determination requires making an adjustment by totally excluding the gross business income earned through the proprietorship and also the business expenses claimed and thereby adjusting and imputing the Mother’s income for those years on that basis.

This can be done having regard to

section 16 of the Guidelines which is subject to sections 17 to 20 of the Guidelines and in particular under section 19 (1) (g). In the future when the Mother’s business expenses are more reflective of business income then such an adjustment may be unnecessary. The Mother testified that her business was doing better in 2016. She attributes this to obtaining and securing a service arrangement at a local independent and assisted living facility and through use of web based advertising. She is anticipating that she will be securing another service arrangement at another facility.

She indicated that in 2016 she has been grossing about $1,000 per month in the first six months of 2016.

It is the Mother’s ultimate goal to focus entirely on and work full time at her foot care business when it is financially viable and to quit her employment as a travel consultant. [ 56 ] The Mother’s line 150 income and allowable employment expenses on line 212 of the T1 General Income Tax and Benefit Return and her imputed income based upon the adjustments thereto noted above are follows: Year Line 150 Income Allowable Employment Expenses Line 212 (union/professional dues) Child Support Guideline Amount 2010 $36,388.80 $61.60 $36,327.20 2011 $42,646.60 $125.60 $45,521.00 2012 $33,268.70 $294.59 $32,974.11 2013 $31,537.00 $262.34 $31,274.66 2014 Before Further Adjustments Noted Above $23,173.00 $23,173.00 2014 (Imputed) After Further Adjustments Noted Above $30,734.00 $30,734.00

2015 Before Further Adjustments Noted Above $17,497.97 $17,497.00 2015 (Imputed) After Further Adjustments Noted Above $33,156.98 $33,156.98 [ 57 ] As noted above, the Mother is in a new relationship with K.W. I understand that they started residing together in late August or in September of 2015 and they were doing so at the time that the Separation Agreement was signed. K.W. is a designer and builder of custom homes. [ 58 ] The Mother’s Financial Statement discloses a vehicle with a market value of $1,000 and no other assets except her real estate equity.

She has credit card indebtedness of $6,500 and other indebtedness of $45,000 including student loans. She lists her annual expenses at $48,596. Her credit card is apparently used, in part, to fill the gap between income and expenses. [ 59 ] She owns a mortgaged home with an estimated equity of $120,000 in which she resides along with the Children and as I understand it also with K.W. and his children.

It is not clear on the evidence how much K.W. contributes to the housing and related costs. [ 60 ] The Mother does not have any dental plan or dental benefits through her present employment. [ 61 ] The Mother has advanced a claim for special expenses relating to Child A’s orthodontic treatment arising out of an October 2015 consultation with an orthodontist.

He diagnosed a bite misalignment resulting from the placement of the upper and lower jaws, an overjet whereby the upper front teeth are out from the lower front teeth and an excessive amount space for the upper teeth and an insufficient amount of space for the lower teeth. In a letter from Dr. F. Edward Murdoch Inc. at Ocean’s Edge Orthodontics in Parksville, B.C. a treatment plan for Child A is outlined at a cost of $ 7,025 (excluding examinations and records fee) and requiring a down payment of $925 and 20 monthly payments of $305. The Mother signed an instalment agreement on March 15, 2016 with Dr. F.

Edward Murdock Inc. and made the down payment of $925. She has been making the monthly instalment payments. The orthodontic work for Child A has thereby started. In addition she paid a dentist bill to Dr. Layton of $234 dated March 15, 2016 to cover the cost of required extractions for Child A. [ 62 ] The Mother informed the Father about her intention to consult with the orthodontist in or around the fall of 2015 and then about this diagnosis shortly after it was received in October of 2015.

As I understand it from the evidence an earlier email exchange occurred between the Mother and Father in September of 2015 at which time the Father indicated that he was in disagreement about booking dental appointments with Dr. Layton and stating that he had booked an appointment for Child R with another dentist, Dr.

Sertic, stating that his own dental benefits were “maxed out” but 90 % coverage was available on M.S.’s dental benefits for Child R, it seems because he was living with the Father and M.S., but no coverage was available for Child A because Child A was not. [ 63 ] The Mother had also told the Father about an orthodontic referral for Child R who apparently has a number of missing teeth. [ 64 ] In an email dated September 29, 2015 the Father complained to the Mother about the lack of timely and relevant reports from her and stated: “The things that are relevant like the orthodontist appointment should be sent to me as far earlier than when you just sent it to me today.

I will not pay for orthodontist appointment for either child. I cannot afford it and you are giving me one week notice. Considering you do not pay nearly what I need to pay for a portion I need to be in agreement. I would suggest maybe you get a job with benefits.” [ 65 ] A similar type of text exchange took place between the parties on that same day in which the Father reconfirms the availability of dental coverage for Child R through M.S.’s dental benefits. [ 66 ] Subsequently the Mother sent further electronic communications to the Father seeking his agreement to pay for the orthodontic treatment for Child A.

She testified that when the Separation Agreement was signed the Father was aware of the possibility of orthodontic care for both Child A and Child R and they had spoken about its necessity for some years. On the evidence before me I conclude that the Father never agreed to participate in the orthodontic expenses for Child A. [ 67 ] The Mother testified that she also incurred the following which she characterizes as “Special and Extraordinary Expenses”:

a) Child R’s oral surgeon consult: $245

b) Annual dental check-ups: $244

c) Child R’s Epipens Annual: $200

e) Child R’s drum lessons (monthly): $88 [ 68 ] The Mother seeks contribution to these dental expenses and other Special and Extraordinary Expenses from the Father and says that to date the Father has made no such contribution.

Personal Background and Financial Circumstances of the Father [ 69 ] The Father is approximately 37 years of age and is a journeyman, red seal electrician who has maintained stable employment with the same electrical contracting firm in Nanaimo for some 8 years. His hourly rate is $34.45 for approximately a 37 ½ hour work week. He is entitled to hourly pay at $45.68 as an overtime rate and $68.90 for a double overtime rate. A recent pay stub indicates that he does have the opportunity to earn overtime rates. The Father says that normally overtime is not available.

He does not receive compensation from doing work during his off times but does help friends out from time to time but does not accept cash payments. [ 70 ] He receives partial benefits for medical, including some extended medical coverage and has dental coverage that covers $2,000 per annum for his entire family. [ 71 ] From the evidence before me, providing transparent financial disclosure, including the production of full and complete T1 Income Tax and Benefit Returns by the Father has been a historical issue.

It is noteworthy that even at this lengthy hearing at which the Father testified on the last day, he did not have at hand nor produce all the required attachments for his Financial Statement. He disclosed only Notices of Assessment for 2012, 2013 and 2014. What was very problematic is that he did not provide his complete 2015 Income Tax return or even a 2015 Notice of Assessment. His excuse was that he was not prepared to make financial disclosure because he was mistrustful of the Mother and did not believe her financial disclosure, which he believed to be incomplete.

In my view all of this is completely unacceptable now and in the years to come, especially when it was clear that there were financial and child support issues to be decided in this case. In that regard reliance was placed on some of the available Notices of Assessment and the court was left only with the Father providing his recollection of his 2015 Line 150 income.

The Father stated in his evidence that he now understands that he was in error by failing to make full and complete and early financial disclosure. [ 72 ] The last comprehensive financial disclosure made by the Father was in his Sworn Financial Statement sworn and filed on May 22, 2013 (the “Father’s 2013 Financial Statement”). The incomes

section of it discloses employment income, other income and employment insurance benefits totalling $57,916. This is the same amount shown in his attached tax preparer’s 2012 Tax Return

Summary line 150 income. However, no 2012 Notice of Assessment was provided. Also attached to the Father’s 2013 Financial Statement was his 2011 Tax Return

Summary which showed line 150 income of $56,814.94 including $7,361.11 of RRSP Income.

However his 2011 Notice of Reassessment that was attached showed a revised line 150 income of $57,314. [ 73 ] The Father’s line 150 income and permitted adjustments for union dues for child support and special expense calculations for the periods from 2010 to 2015 inclusive based upon information available to the court are as follows: Year Line 150 Income Allowable Employment Expenses Line 212 Child Support Guideline Amount 2010 $47,736.48 0 $47,736.48 2011 $57,314.00 0 $57,314.00 2012 $ 57,916.00 0 $57,916.00 2013 $61,973.00 0 $ 61,973.00 2014 $ 70,461.00 0 $70,461.00 *2015 (*based only upon the Father’s estimate) *$ 72,000.00 0 * $72,000.00 [ 74 ] Since March of 2013 the Father has been in a relationship and currently lives with M.S., to whom he became engaged.

They have a son (

M) age 2 and M.S. is expecting another child with the Father. [ 75 ] M.S. is employed in Nanaimo as an administrative officer with a Federal Ministry and has had that employment for some 4 years. She contributes to a Federal pension plan.

She has extended benefits including medical and dental, that covers her, the Father, their two year old child, and Child R, but not Child A because of his present living arrangement and the fact that he is not living with the Father. [ 76 ] As I understand the Father’s evidence, he has spent all of the dental coverage available from his own plan on himself and his own dental needs for both 2015 and in 2016. That is the basis on which he informed the Mother that he was “maxed out” on his dental plan, although the reason only became apparent during his testimony.

He testified that his “mouth is a priority” over that of Child A. He also testified that he has not organized the use of the two available dental plans in order to permit the use of his plan to cover orthodontic work for Child A. [ 77 ] He further testified that he did not agree to pay for orthodontic expenses because the Mother has “taken complete control” of dental expenditures and will not allow him the control over those expenditures.

He says that he cannot afford to pay those expenses. [ 78 ] The Father’s Financial Statement discloses no vehicles but claims a car loan payment of $1,886 annually as well as around $1,110 annually in car insurance and license fees and vehicle gas and oil expenses. He discloses no other assets except his residential real estate equity and another bank or RRSP asset in the amount of $600. He has no credit card indebtedness but discloses a bank indebtedness of $5,522 incurred to cover “additional personal expense above normal” which appears to be on a line of credit upon which he pays an amount annually of $1,500.

He lists his annual expenses at $64,302.04. [ 79 ] He owns a mortgaged home with an estimated equity of $36,359 in which he resides along with M.S., their child M and Child R. It is not clear on the evidence how much M.S. contributes to the housing and related costs or what her interest is in the mortgaged home.

[ 80 ] The Mother prepared a

summary entitled “Arrears of Maintenance” which was admitted into evidence as Exhibit 9 during her viva voce evidence. The Father referred to it in his viva voce evidence. He did not take issue with her statement in Exhibit 9 that his income for 2011 was $57,314 which she used as the basis of calculating what the Father should have paid for child support in 2012.

Furthermore he did not take issue with Exhibit 9 regarding the monthly child support payments that the Father had made in 2012, and then from January to September of 2013 prior to the September 2013 Interim Order. [ 81 ] It appears to be common ground that the Father paid the required child support of $895 per month for the two Children in accordance with the September 2013 Interim Order from September 15, 2013 to and including payments due for December 2014. [ 82 ] It also appears to be common ground that commencing January 1, 2015, the Father then started to make monthly payments of $453 as set out in the Separation Agreement based upon the agreed shared parenting arrangement and using as a stated Guideline Income for the Father of $62,000 being his 2013 Guideline Income amount and not upon his actual 2014 Guideline income amount of $70,461.

As I understand the evidence the amount of $62,000 was used but it was not clear from the evidence as to what financial disclosure the Father had actually made in the course of the mediation leading to the Separation Agreement. The Father was unable to clarify this point during his evidence.

It is also noteworthy that the Separation Agreement states that the Mother’s Guideline Income was $31,500 which is very close to her actual Guideline Income in 2013. [ 83 ] As at the date of hearing, the Father was continuing to make monthly child support payments based upon the Separation Agreement notwithstanding that only Child R was subject to the shared parenting arrangement and Child A was living fulltime with the Mother.

In other words notwithstanding this material change in circumstances the Father did not make any increase in the child support payments. [ 84 ] Similarly no adjustment in child support payment has been made notwithstanding the significant increase in the Father’s Guideline Income for 2014 and 2015. [ 85 ] The Father and the Mother have also had a dispute with respect to after school care expenses for Child R for the period from October 2014 to June of 2015 and a City of Nanaimo summer sports camp in 2015 again for Child R. The total comes to $2,008.

The Mother says that the Father enrolled Child R in these programs for his own benefit without her consent and hence she should not share the cost. [ 86 ] But she does say the Parents should be proportionately sharing the cost of the summer enrolment in Boys and Girls Club summer program at a cost of $664. The Father says he never agreed to pay this amount. [ 87 ] The Father suggests that an alternative to paying for childcare was available had M.S. been permitted to perform those responsibilities while she was on maternity leave.

The Parents disagree as to whether that offer was made and accepted and the reasons for not implementing that arrangement. The Relationship of the Mother and the Father [ 88 ] The relationship between the Mother and the Father is and has been for many years very strained. Based upon the evidence before me it is fair to conclude that the relationship has become mutually mistrustful and dysfunctional. Effective communication has all but disappeared.

It has been replaced with emails and texts that are replete with mutual criticism and complaints about a wide range of topics from the other’s parenting styles with each of the Children, parenting time and scheduling disputes, including allegations of lack of accommodation and flexibility, criticism about timely reporting about the Children and the nature and content of that reporting, failures to consult with the other Parent, perceived and real slights contained in their communications, and significant issues about financial expenditures and financial disclosure between the Parents and the accuracy of that disclosure. [ 89 ] Notwithstanding that parties were able to effectively use mediation to reach the Separation Agreement, their adherence to the goals and provisions of the Separation Agreement have been seriously undermined by their conduct towards each other. [ 90 ] This has not always been the case.

Following the time of their separation they maintained an appropriate level of civility and mutual respect when dealing with matters relating to the Children. They were able to enter into the 2009 Agreement. The Views of the Child Report indicates that Child R. recalls “happier times when his parents were friendly and everyone was able to get along”. [ 91 ] It is difficult to ascertain why this change has occurred. There is no evidence of any single significant, noteworthy or memorable event.

It is difficult to conclude that the fact that each Parent has entered into a new relationship has contributed to the deterioration.

However, given what occurred during the Christmas 2014 Event, most unfortunately the new partners are being drawn into the relationship dysfunction. [ 92 ] There is certainly evidence that every time the Mother has raised the issue of a review of child maintenance, starting with the Application Respecting Existing Orders or Agreements filed in April of 2013, the Father has countered with wanting more parenting time with the Children. [ 93 ] There is no evidence of incidences of physical domestic violence during the Parent’s time together or after separation.

However, the events that occurred at the Christmas 2014 Event described below are of some concern in this context. [ 94 ] The Christmas 2014 Event occurred on December 26, 2014 following the November 2014 Incident. Child A had returned to his Father’s residence on December 25, 2014 in order to spend family Christmas time together as part of the Father’s scheduled parenting time. However, it is clear that emotions were still very raw from the November 2014 Incident and there was considerable unhappiness between the Father and Child A.

The Mother said that she attempted to contact Child A, such contact being through the Father, as she and Child A had apparently previously arranged but as noted elsewhere not previously arranged through the Father. [ 95 ] The Mother and the Father engaged in a series of text messages commencing at around 7:29 PM in which the Mother sought to have a talk with both of Child A and Child R and asking when it would be convenient.

[ 96 ] At 7:37 PM, the Father responded by text to say “In a while. And probably just [Child R] [Child A] is having a meltdown.” [ 97 ] At 7:37 PM the Mother texted to the Father as follows: “I want to know what is happening with [Child A]. He was apprehensive to go to your place this weekend and I would really like to talk to him. Please have him call me as soon as possible.” [ 98 ] There was no immediate response forthcoming so that the Mother tried to call the Father on his cell phone and there was no answer. At 8:03 PM the Mother sent the Father another text asking why Child A was having a meltdown.

With no response immediately forthcoming she made the unfortunate decision to attend uninvited at the Father’s residence with K.W., arriving sometime shortly after 8:15 PM. Thereafter based on all of the evidence before me a very unpleasant exchange of heated words and various threats occurred outside of the Father’s residence involving the Father, the Mother, K.W. and M.S. but with the Children apparently inside the residence. This resulted in K.W. calling the police, who arrived, and spoke with Child A.

Child A apparently indicated to the RCMP that he wanted to leave and Child A then left the Father’s residence with the Mother and K.W.

Since that time, Child A has never returned to the Father’s residence. [ 99 ] As it turned out, based upon the Father’s evidence, he was not ignoring the Mother’s rapid series of electronic communications but rather was otherwise involved in attempting to arrange Christmas contact and communication with his extended family in the United States. [ 100 ] While the Children may not have been directly involved with the highly unpleasant exchanges between the Parents and their respective partners that took place during the Christmas 2014 Event, on the whole of the evidence is clear that they were very much aware of the incident and it was understandably upsetting for both Children. [ 101 ] The Father believes that the Mother seeks to interfere with the Father’s parenting time and that she does not promote or assist in the healing of his relationship with Child A.

He also suggests that the Mother is attempting to undermine his ongoing relationship with Child R. In his evidence an allusion appeared to be made to “alienation” by the Mother which I took to be a reference to “parental alienation”. [ 102 ] A significant source of conflict between the parents has occurred because of the email reports contemplated by paragraph 11 of the Separation Agreement. The Father has complained to the Mother about the timeliness and the content of those reports. The Mother has complained about a lack of reports from the Father.

As a general observation, the Mother’s reports are lengthy narratives with considerable amplification concerning matters beyond the key items of school, health, social matters, extracurricular activities, key contact information and other matters relating to the care of the Children.

As a further observation, the reports to the extent that they had been provided by each of the Parents, have taken on an opportunity to raise provocative issues between the Parents and exchanges of criticism rather than to simply provide the required information on the required subject matter. [ 103 ] Since the signing of the Separation Agreement, and particularly since the November 2014 Incident and the Christmas 2014 Event there is little that the Parents have been able to agree upon.

This includes, but is not limited to, the selection of a dentist, the need for orthodontic care, the selection of a mediator and a mediation process, the selection of a counsellor to deal with the relationship issues between the Father and Child A and the selection of and enrolment of the Children, especially Child R, in extra-curricular activities. So far as I can determine, effective and respectful consultation between the Parents has all but perished. [ 104 ] The Mother and the Father have been very much at odds over a number of past and present expenses relating to the Children.

The Father has been very reluctant to share in expenses incurred by the Mother, again on the basis that he has had no input nor was he consulted regarding those expenditures. The Mother suggests that the reference to dental expenses in paragraph 21(

a) of the Separation Agreement reflected that there was an oral agreement that orthodontic expenses were necessary for the Children and that the Parents “were on the same page” about its necessity. As I understand it the issues of arrears of child support and arrears of special expenses were not the focus of the mediation that gave rise to the Separation Agreement. The Separation is silent with respect to arrears of those items. Parental Relationships with the Children [ 105 ] Understandably the Mother and the Children have a very strong bond and relationship with each other.

The Mother was the primary caregiver and daily provider for the Children from the time of the Parents’ separation. The Mother has been very involved in the Children’s lives at all levels. The Mother and the Children seem to engage in a number of activities together and they both seem to very much enjoy that time with her, which is somewhat limited by her busy work schedule.

This includes her proprietorship business, which according to the Views of the Child Report the Children know about and are aware of her time commitment to it. [ 106 ] The Views of the Child Report makes it very clear that Child A appears to have a very close connection with the Mother and she is a person upon whom he can count. [ 107 ] From the evidence it is also clear that the Father has been an important figure in the lives of the Children. Historically he and the Children have participated in a number of activities together.

Child R continues to do so and according to the Views of the Child Report very much looks forward to the time that he spends at both Parents’ homes. [ 108 ] The Father appears to encourage Child R’s activities in sports. [ 109 ] The Parents have different parenting styles. Based on the evidence I have concluded that the Father tends to be much stricter and disciplines the Children by removing privileges.

The Mother appears to be more enabling. [ 110 ] A source of high conflict within this family arises out of events occurring from approximately November 20, to November 29, 2014 shortly after the Separation Agreement had been signed. [ 111 ] I have previously referred to these events as the “November 2014 Incident”. At that time Child A was approximately 13 years old. It initially centred around Child A’s pet cat that went missing for 2 weeks, and was then located by the SPCA as a result of a report and returned to the Mother’s home.

The cat was suffering from a large abscess apparently from being attacked by another cat. It turns out

that the cat had been cared for by a neighbour who was reluctant to return the cat to its home. The next day, Thursday, November 20, 2014, after being returned to the Mother’s residence the cat ran away again all of which was upsetting for Child A. He did not want to go to school that day, became very emotional and expressed himself disrespectfully to his Mother, which exchange was overheard by the Father during a cell phone call. The Father also understood that Child A had batted a cell phone held by the Mother away from her.

The Mother paints a picture of it being much less of an intentional act on the part of Child A. Child A did not want to go to the Father’s house for the Father’s scheduled parenting time on the Thursday evening and did not go, locking himself in the bathroom. The Mother said she encouraged Child A to go to his Father’s residence but to no avail.

The cat was again recovered on the Thursday evening from the neighbour who remained reluctant to part with it. [ 112 ] The Father testified that he was concerned about Child A’s behaviour towards and the disrespect to the Mother and accordingly indicated to Child A that he was going to remove the privilege of Child A’s cell phone, which he did the next day.

The Mother and Child A both apparently interpreted this as punishment for Child A’s refusal to go to the Father’s residence for parenting time. [ 113 ] Child A wanted to stay at the Mother’s residence on the Friday and over Friday night to care for the ailing cat. The next day, the cat’s condition was worsening and it was taken to a veterinarian. Unfortunately the cat died while undergoing treatment. Child A was understandably very upset over the loss. [ 114 ] Thereafter Child A and Child R did attend for the Father’s parenting time the following Thursday, November 27, 2014 to Saturday, November 29, 2014.

According to the Mother’s evidence Child A came home following that parenting time attendance very upset, apparently as a result of his discussions and interaction with the Father. [ 115 ] Of course there are different versions and

interpretations of what took place during those discussions but the result was that Child A said he did not want to go back to his Father’s residence and did not do so for about a month. Based upon the Views of the Child Report and on the other available evidence Child A’s perception and feeling was that the Father was unsympathetic and angry towards him.

Again the Mother testified that she encouraged Child A to attend the scheduled parenting times at his Father’s residence. [ 116 ] The Mother testified that she did encourage Child A to attend for Christmas celebrations and scheduled parenting time at his Father’s residence with Child R. The evidence is that Child A was reluctant and anxious about doing so but did attend thereon from the latter part of December 25, 2014 with the intention of remaining there until Saturday December 27, 2014. The Mother and Child A agreed that the Mother would call on the evening of December 26, 2014 to check on him.

It does not appear that this arrangement was specifically made known to the Father. [ 117 ] Again there are of course different versions and

interpretations of what occurred but it is reasonable to conclude that unhappy words were once again exchanged between the Father and Child A during that parenting time with the result that Child A became quite emotional and upset.

That in turn led to what I have described as the “Christmas 2014 Event”. [ 118 ] Since December 26, 2014 Child A has not returned to the Father’s residence and their relationship has continued to deteriorate with limited communication except electronically and then very heated and emotionally charged with demands from the Father for an apology. [ 119 ] The Views of the Child Report provides the following insight about the relationship between Child A and the Father, starting on page 2: In November 2014, [Child A] decided to take a break from spending time with his Dad.

He was upset over the way his Dad dealt with his sick and dying cat. [Child A] felt it was important to stay at his Mom’s home to care for the cat. [Child A] feels his Dad was not supportive around his choice to nurse the sick cat, as well as the grief following the death of the cat. [Child A] describes struggling with his Dad and his anger. [ 120 ] On page 3 it continues as follows: [Child A] describes a difficult relationship with his Dad who he feels has “anger management issues”. He states he feels his Dad is hard to communicate with and he often feels his Dad is mocking him or sending him angry messages.

It has been difficult for [Child A] to step back from his time with his Dad and he notes he would like to resolve the fight, but he is not sure how. He spoke about visiting at Christmas “to make things right”, but then there was an argument with his Mom and Dad on Boxing Day which was very stressful for him. [ 121 ] The Views of the Child Report goes on to indicate that there are several unresolved issues between Child A and the Father that cause Child A significant anxiety.

Those are reported as Child A expressing anxiety about what he perceives as an expectation on the part of the Father about receiving an apology from Child A. By way of example Child A in support of that perception referred Ms.

Bury to a text received from the Father that contains words as follows: “This isn’t right, you are not calling, you should apologise”. [ 122 ] The Views of the Child Report further indicates that Child A feels that the Father needs to take the initiative to heal the relationship and is fearful that the Father will not because in Child A’s words “he just wants to prove he is right”. [ 123 ] As at the date of the Views of the Child Report being May 20, 2015, Child A appeared open to a reconciliation and a resumption of the Father’s parenting time

schedule and even offered some suggestions for improving it insofar as his daily pick up and drop off were concerned. [ 124 ] The following passage on page 4 of the Views of the Child Report provides some significant insight as to Child A’s perception of their relationship and what Child A seeks by way of improvement: Child A is requesting his Dad try and not get angry over small things and be more encouraging and supportive. He would also like it if

his Dad would be more active and playful with him. [Child A] appeared emotional when he added “I do not want him to be mad at me anymore”. [ 125 ] The Views of the Child Report was available for the parties at the Family Case Conference held on May 29, 2015. At that Family Case Conference coordinated counselling for Child A and for the Father to deal with their relationship was discussed. Accordingly, an adjournment of the May 29, 2015 Family Case Conference was granted in order to pursue this counselling but it never took place and agreement was not reached about the selection of a counsellor.

Counselling services are apparently partially covered under the Father’s employment benefits package. He did not appear to be particularly well informed about the extent of that coverage. [ 126 ] Notwithstanding the Parents disagreement over the selection of a counsellor, the Father has not made contact with any counsellor since the November 2014 Incident, in order to obtain counselling on his own behalf nor with any other professional to receive advice about how to get Child A engaged in a counselling process with him.

The Father says that he in fact had some counselling about his relationship with both Child A and Child R in October or November of 2014, just before the November 2014 Incident but not thereafter. [ 127 ] In his testimony the Father went so far as to say that he did not think that there would be any benefit for Child A to have counselling and further that he did not think it was necessary.

He indicated that he is of the view that if he continues to reach out and to text to Child A he is hopeful that their relationship will heal. [ 128 ] However he testified that he did not think that such will occur because of “outside influences” from the Mother and her side of the family. He indicates that there is no encouragement or influence being exerted from her side of the family towards Child A to encourage Child A to have a relationship with the Father.

The Father does not say that it is the Mother’s fault that his relationship with Child A has reached this stage but does say Child A has been “influenced”. He could not provide any evidence of that, other than referring to an insult about the Father allegedly made by the maternal grandparents and reported to him by Child R. [ 129 ] Thus using his own words, the Father has “assumed” that Child A does not want a relationship with him and he is “respecting his wishes”. The Father goes on to state that Child A is “old enough to make that decision” and the Father says he is “not going to argue it anymore”.

The Father further said that Child A has deleted both the Father and M.S. from Facebook. [ 130 ] I am left with the impression from his evidence that the Father is of the view that he is waiting for Child A to seek the continuation of a relationship with the Father and hence the ball is entirely in the court of Child A to make the next move. The

Section 211 Views of the Child Report [ 131 ] As noted above the Views of the Child Report was prepared pursuant to the March 23, 2015 Interim Order. [ 132 ] In addition to the information from the Views of the Child Report referred to above, Family Justice Counsellor Lisa Bury provides the following useful

summary: [Child A] and [Child R] are close siblings who have different perspectives regarding the conflict in their family. [Child A] is upset over the way he feels his Dad treated him when he wanted to care for his sick cat, as well as the lack of sympathy he received when dealing with the grief of the cat’s death. [Child A] describes a tough situation where he would like to resolve the conflict with his Dad, but feels helpless and confused as the child, on how to proceed. [Child R] is a happy and easy-going child who appears to enjoy all the grown-ups in his life.

He would like to see his brother return to the normal parenting schedule, so everyone can spend time with each other and move on. [Child R] has a keen desire for peace in the family like there once was. He is hopeful the family can start getting along again so he can share his life and excitement with the grown- ups he loves. POSITIONS OF THE MOTHER [ 133 ] The Mother’s position on the issues may be summarized briefly as following: 1.

Child A should not be subject to the shared parenting arrangement set out in the Separation Agreement because of the complete deterioration of the relationship between Child A and the Father. The Mother further submits that it is in the best interests of both Children that they remain together and not be separated because of the shared parenting arrangement which occurs when Child R is at his Father’s residence. Thus I understand that she wishes this court to vary provisions of the Separation Agreement to eliminate the shared parenting arrangement set out in paragraph 12 (

a) through (

d) such that both Children will reside with the Mother and the Children will have available parenting time with the Father every other week as set out in the 2009 Agreement such parenting time running from Friday at 5:00 PM to Sunday at 5:00 PM; but as it relates to Child R. I take it that the future parenting time for the Father with Child A is subject to the wishes of Child A. 2. Child A should not by way of court order, be required to have a relationship with the Father and be required to attend at his residence for parenting time unless it is his personal wish to do so. 3.

The Mother seeks an adjustment of the child support payments set out in paragraph 18 of the Separation Agreement from the commencement of the Separation Agreement. Hence the Mother seeks a retroactive order to set the amounts of the child support payments and arrears and also seeks to eliminate the child support set off arrangement that has been in place pursuant to the Separation Agreement on both a retroactive and prospective basis. 4.

Alternatively, the Mother submits that because of the extra time she is having after school with Child R on Thursday and Friday afternoons during the Father’s scheduled parenting time, that in fact there is not really a shared arrangement time and hence the required

child support payments should be adjusted to reflect that there is no set off for the payments made for Child R. 5. The Mother says Father should have been paying child support for Child A and Child R from and including 2012, 2013 and 2014, based on the Father’s actual Guideline Income amount hence there should be a retroactive calculation of and an order for payment of those child support arrears. 6. The Mother seeks to recover the Father’s proportionate share of orthodontic expenses for Child A incurred and still being paid by her and as I understand it prospectively for Child R, as a special expense within the meaning of s 7 (

c) the Federal Support Guidelines. 7. The Mother also seeks to recover as arrears the Father’s proportionate share of other items which she says are “special or extra ordinary expenses” within the meaning of

section 7. Specifically this includes 2014 Summer Daycare expenses incurred with the local Boys & Girls Clubs for Child R of $664 paid for by the Mother. This covered the 9 week period from July 1 to August 29 of 2014. 8. The Mother also seeks to receive a proportionate share of various items from the Father on an ongoing basis as special and extraordinary expenses, with payments to be made on a monthly basis including dental and orthodontic expenses and drum lessons for Child R. POSITIONS OF THE FATHER [ 134 ] The Father’s position on the issues may be summarized briefly as follows: 1.

On the issue of his parenting time the Father submits that the shared parenting arrangement with respect to Child R should remain in place as set out in the Separation Agreement and hence there should not be any variation of it because Child R has made an appropriate adjustment to the shared parenting arrangement and it is not in the best interests of Child R to make a further change. 2.

On the issue of his parenting time with respect to Child A he appears to accept the reality that it will not occur as set out in the Separation Agreement in the present or in the immediate future unless his relationship with Child A heals. He views the issue of counseling with Child A to be unimportant and he does not wish to pursue it with Child A. I therefore understand that he is not seeking an order to enforce his parenting time with Child A. 3.

The Father does not deny his responsibility to be paying child support but he does submit that he should not be paying any retroactively adjusted child support prior to the execution of the Separation Agreement. Although not specifically stated I understand that this position is based upon the fact that the Separation Agreement makes no provision for such a retroactive adjustment. 4. He acknowledges that there should be some adjustment going forward from the date of the execution of the Separation Agreement based upon the actual living arrangements and parenting time of the Father. 5.

The Father says that with respect to Child A’s orthodontic expenses that he does not disagree that Child A needs the treatment but not as this time. Therefore those expenditures and the timing of those expenditures are not really an issue of necessity but essentially a financial timing matter for the Father. He says that he cannot presently afford the expense and that his benefits program will not cover the expenses at this time and the coverage is not available on M.S.’s benefits plan.

He further submits a willingness to pay 100% of the cost of Child R’s future orthodontic expense which he acknowledges will be necessary. I presume that this will be on the basis of the available benefit coverages. He also says that he has not agreed to pay for other dental expense and that if he is expected to pay for these either directly or through his benefits or through M.S.’s benefits he should have some “control” over when and where the Children are going for dental care. 6.

The Father says that with respect to the other categories of special and extraordinary expenses being claimed by the Mother, that he has paid after school care amounts at Child R’s school in the period from October 2014 to June 2015 which payments offset what he might owe the Mother for past child care and activity expenses. He does acknowledge that sharing of after school care was not specifically provided for in the Separation Agreement and that no agreement was in place with respect to those expenses.

Similarly he says that he never agreed to pay for the portion of the child care expenses that the Mother is claiming from him. JOINT POSITIONS OF THE PARENTS [ 135 ] Initially the Mother submitted that the email communication provisions in paragraph 11 (

a) to (

e) inclusive of the Separation Agreement be eliminated because she is not receiving any information from the Father and he has told her not to provide her with any communications. The Father agreed with the Mother that the reporting provisions contained in paragraph 11 of the Separation Agreement should be removed. [ 136 ] However upon being questioned by the court there appeared to be agreement between the Parents that reporting provisions and the topics contained in paragraph 11 (

a) to (

f) inclusive were important but what was missing was a constructive exchange of information. RELEVANT PROVISIONS OF THE FAMILY LAW ACT [ 137 ] For the benefit of these self-represented parties I refer them to the following parts and the sections contained within them of the Family Law Act [S.B.C 2011, c 25 and amendments thereto] (the “ FLA ”). Many are relevant to the issues before the court and to which I may make reference and rely upon in the course of my reasons. They are as follows:

PART 1 —

Interpretation “Definitions” (sections 1 to 9 inclusive)

PART 2 — Resolution of Family Law Disputes and Division 1 - “Resolution Out of Court Preferred” (sections 4 to 9 inclusive), and

Division 2 - “Family Justice Counsellors” (sections 10 to 19 inclusive);

PART 4 — “Care of and Time with Children” and Division 1 - “Best Interests of Child” (sections 37 and 38), Division 2 - “Parenting Arrangements” (sections 39 to 48 inclusive), Division 3 - “Guardianship” (sections 50 to 57), Division 4 – “Contact with the Child” (sections 58 to 60 inclusive), and Division 5 - “Compliance Respecting Parenting Time or Contact with the Child” (sections 61 to 64 inclusive);

PART 7 — “Child and Spousal Support” and Division 1 - “Definitions” (section 146), Division 2 - “Child Support” (sections 147 to 152 inclusive), Division 3 - “Child Support Service” (sections 153 to 159 inclusive), and Division 5 - “General”;

PART 9 — “Protection From Family Violence” (section 182 to 190 inclusive);

PART 10 — “Court Process”, Division 4 - “General Orders the Court May Make” (sections 211 to 221 inclusive), Division 5 - “Orders Respecting Conduct” (sections 222 to 228 inclusive), and Division 6 - “Enforcement Generally” (sections 229 to 231 inclusive).

Law Relating to Care of and Time with Children and to Parental Responsibilities [ 138 ] Section 40 (2) of the FLA provides that each guardian may exercise all parental responsibilities with respect to a child and must do so in the best interests of the child in consultation with the child’s other guardians, unless an order or agreement provides to the contrary. [ 139 ] No particular parenting arrangement must be presumed to be in the best interests of a child, including that parental responsibilities or parenting time should be shared equally or that decisions about a child should be made separately or by more than one guardian together. [see section 40(4)] [ 140 ]

Section 41 lists the parental responsibilities that may be allocated by agreement or court order such that they can be exercised by one or more guardians, each guardian acting separately or all guardians acting together. [see section 40(3)] [ 141 ] In

section 42 the term “parenting time” is stipulated to be the time that a child is with a guardian, as allocated under an agreement [see

section 44] or court order [see

section 45] and under section 45(3) the court may order that parenting time be supervised. [ 142 ] During parenting time, subject to an agreement or court order that provides otherwise, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and will have day-to-day care, control and supervision of the child. [see section 42(2)] [ 143 ]

Section 43 of the FLA stipulates that a child’s guardian must exercise their parental responsibilities in the best interest of the child. [ 144 ]

Section 44 of the FLA permits agreements respecting parenting arrangement to be made between two or more of a child’s guardians. Subsection 3 permits the enforcement by the court of a written agreement respecting parenting arrangements which has been filed with the court as if it were an order of the court. Subsection 4 requires that, upon application by a party, the court set aside or replace with an order made under Division 4 of

Part 4 all or part of an agreement respecting parenting arrangements if the court is satisfied that the agreement is not in the best interests of the child. [ 145 ] Under

section 45 upon application by a guardian a court may make an order respecting on or more of the following: (

a) the allocation of parental responsibilities, (

b) parenting time, (

c) the implementation of an order made under Division 4 of

Part 4 and the means for resolving disputes respecting an order made under Division 4. [ 146 ]

Section 49 provides that a guardian may apply to court for directions on an issue affecting the child. [ 147 ] Section 37(1) provides that the only consideration that the court must take into account in making an order, or parties must take into account when making an agreement respecting guardianship, parenting arrangements or contact is in the child’s best interests. In determining the child’s best interests, the list of factors set out in section 37(2) must be considered. The listed factors are non- exhaustive.

Section 37(3) further stipulates that an agreement or order is not to be in the best interests of a child unless it protects to the greatest extent possible, that child’s physical, psychological and emotional safety, security and well-being. [ 148 ] The conduct of a person may be considered by the court only if it substantially affects any of the factors set out in subsection (2) and only to the extent that it affects that factor. [ 149 ] Two of the factors listed for consideration under section 37 (2) relate to family violence, as that term is defined in

section 1 of the FLA . Those subsections are: 1. subsection (

g) requiring a consideration of the impact of any family violence on the child’s safety, security or well-being, whether directed towards the child or another family member; and

2. subsection (

h) requiring a consideration of whether the actions of a person responsible for family violence indicate that such person may be impaired in his or her ability to care for the child and meet the child’s needs; [ 150 ] Guidance is found under

section 38 when the court assesses family violence as a consideration in determining the best interests of a child. [ 151 ] Under section 37(2) (

j) the court and other decision-makers are r

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