C.Z. v. Y.Y., 2022 BCPC 309

Citation: C.Z. v. Y.Y. 2022 BCPC 309 Date: 20221129 File No: (omitted for publication) Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.Z. APPLICANT AND: Y.Y. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Appearing on their own behalf: C.Z. Appearing on their own behalf: Y.Y. Place of Hearing: North Vancouver , B.C. Dates of Hearing: September 20, October 3, 24, November 1, 18, 2022 Date of Judgment: November 29, 2022

Introduction: [ 1 ] The parties are the parents and guardians of seven year old B. They separated when he was two and he has lived with Ms. Y. since. [ 2 ] The parties had a trial at Robson Square last autumn. That trial resulted in an order on October 26, 2021 dealing with basic child support and

section 7 Guideline expenses, (“the 2021 Order”). As well, an order was made on September 9, 2021 granting the parties equal and shared parenting responsibilities under s. 40(2) of the Family Law Act , (“ FLA ”). After that trial concluded, Ms. Y. successfully applied to have the file transferred to North Vancouver for all purposes. [ 3 ] She then filed the application dealt with here, asserting that Mr. Z. had latterly qualified for higher paying employment and alleging a lack of involvement by him with the child warranting a change to the order about parenting responsibilities. She seeks increased basic child support; higher contribution by him to

section 7 expenses; sole parenting responsibilities, subject to Mr. Z.’s ability to seek review by the court, and an order that she can travel with the child to China without Mr. Z.’s written consent. [ 4 ] This decision arises from a four day trial on that application. The Issues: [ 5 ] The issues raised on this trial are: 1. What is Mr. Z.’s annual income, for child support purposes?/ Has there been a change since the 2021 Order? 2. What is Ms. Y.’s annual income, for s. 7 Guidelines expenses calculations? 3. What are the s. 7 Guidelines expenses here, if any, that should be shared between the parties? 4.

Is it in B.’s best interests for Ms. Y. to have ultimate say about all parenting responsibilities, subject to court oversight at Mr. Z.’s instance? 5. Is it in B.’s best interests for Ms. Y. to be able to travel with him to China, or anywhere outside of BC, for that matter, without Mr. Z.’s written consent? Outline: [ 6 ] Before discussing these issues, I will briefly discuss the 2021 Order. Next, I will discuss the quality of the parties’ evidence, with particular attention to the issue of credibility. Then, I will turn to the five questions set out above.

The 2021 Order The 2021 Order includes the following terms: i. Mr. Z.’s anticipated 2021 income, for child support purposes, is $23,906; ii. Based on that figure, Mr. Z. is to pay Ms. Y. $200.07 monthly basic child support until further court order; iii. The parties are to share the costs of identified

section 7 Guidelines expenses, in proportion to their respective incomes: $376.49 for glasses purchased in 2020 and $288.75 for Pedalheads camp in 2021; iv. Ms. Y.’s child support Guidelines income for 2017 is identified as $11,552; for 2018, $17,972; for 2019, $17,865 and for 2020, $18,026. [ 7 ] The 2021 Order does not address Mr. Z.’s anticipated 2022 income for the purposes of establishing appropriate basic child support for that year. Quality of the evidence at this trial: [ 8 ] Ms. Y. was not a credible witness. [ 9 ] Ms.

Y. filed inaccurate Financial Statements which omitted significant financial information, including an investment fund worth about a quarter of a million dollars, (U.S. funds). This became apparent during the trial because of reference to investment income and capital gains in one of her Financial Statements, filed, and her evasive and inconsistent explanations as to how these entries could be correct when no investment vehicle or capital asset was disclosed. [ 10 ] At one point, Ms. Y. testified that any reference to “investments” in her Financial Statement related to mutual funds that she and Mr.

Z. had held, and divided. Given the timing and amounts involved, this could not have been true and was disputed by Mr. Z.. I did not accept her evidence in this regard. [ 11 ] She was also non-responsive when asked other questions about mutual funds, testifying, instead, about unrelated property in China.

[ 12 ] At one point, she sought to rely on her poor English skills to explain the omission of information in her Financial Statement filed with the court. (While Ms. Y. did have the benefit of a Mandarin interpreter throughout the trial, I found that her English was, generally, very good; mostly, she resorted to the interpreter for clarification or to help her find the right word to convey a complex matter. She has completed a Capilano University Course “English for Academic Purposes”).

Her assertion that poor language skills impeded her from providing clear, sensible evidence about the investments held by her was not believable. [ 13 ] In addition to testifying that she had been unaware that she should have disclosed the omitted financial information, she eventually testified that one undisclosed investment, (which she says is her parents’, but in her name), is a U.S. mutual fund portfolio valued at approximately $24,000.

While saying, on the one hand, that it was her parents’ investment, she also described purchasing the fund’s portfolio and receiving advice from her accountant as to how to deal with the revenue generated, from a tax perspective. She testified that the mutual fund had decreased significantly in value, in tandem with recent world markets.

When ordered to produce documentation relating to the investment, she produced documentation reflecting a current value of $240,714.80 - ten times what she had earlier testified to. (It appears that when she completed her last Financial Statement, it had been valued at closer to $280,000). [ 14 ] All in all, I do not accept her explanations for failing to disclose her investments and find that she deliberately filed inaccurate financial information in this application, to conceal her actual financial situation. [ 15 ] Returning to credibility, generally, during cross examination, when Mr.

Z. put an unsworn, undated, unstamped Form 4 Financial Statement to Ms. Y., she testified that she had not seen it before, contending that it had not been exchanged between the parties and noting that it was not stamped with a registry stamp. She testified that it was not hers and that she did not know where Mr. Z. had obtained it. In the document Income

Summary, there is reference to $85,000. [ 16 ] A file review, including a review of exhibits from the Robson Square trial, revealed that Ms. Y. had produced the document, (which she now disavows), during that trial, for her own purposes at that time. Her testimony at this trial about the document does not reconcile with an accurate recall. [ 17 ] In support of this application, Ms. Y. filed an affidavit on May 3, 2022, (Doc. No. 108), to which she attached as exhibits undated photographs of Mr.

Z. engaged in activities described by her as expensive, suggestive of a lifestyle inconsistent with his declared income. [ 18 ] The same photos are attached to an affidavit she filed on March 23, 2018 in support of a different application. The photos appended to that affidavit, however, have dates on them, consistent with the photos being taken in 2017 and 2018. It appears that these photos have been altered by deleting the dates for the 2022 affidavit such that their being three or four years old is not evident. [ 19 ] Mr.

Z. appeared more forthright, although during cross-examination it became evident that he claimed that he spent $800 in rent at one point when he did not incur that expense. Further, as discussed below, he has inflated expenses beyond what is reasonable, such that his income available for child support purposes is higher than he claims. Background Facts: [ 20 ] Ms. Y. came to Canada from China in 2013 to study. She has never worked here. She says that she has a Masters degree in sociology from a university in China and that she worked in China with a former spouse who owned several companies there.

She described her income there as significant but “flexible.” She says that she saved a significant sum and purchased an apartment or two, one of which generates rental income. [ 21 ] Mr. Z. is also originally from China. It is unclear when he arrived in Canada, but he was a post-secondary student in China before coming here to study. He qualified and registered here as an acupuncturist in the autumn of 2021. It is unclear whether this occurred before the Robson Square trial ended, but it appears that the judge there was not advised of this event. [ 22 ] As a couple, the parties lived together with Mr.

Z.’s family, in Coquitlam, until separating when B. was two years old. Mr. Z.’s family provided their shelter and paid for many of their needs during that time. He was a student during this period, although he may also have worked; that is not clear on the evidence. His parents gave him some money throughout this period. [ 23 ] Ms. Y. and B. currently live in North Vancouver in a residence, which her parents purchased. She does not work and she no longer goes to school. She does not receive spousal support and the child support paid by Mr. Z. has been nominal to date.

She may return to school or she may seek work, but it is clear that given her parents’ financial support, she can choose to stay home and parent B. full time. The Current Application : [ 24 ] In this application, Ms. Y. seeks higher monthly child support than in 2021, on the basis that Mr. Z.’s financial situation has improved since the 2021 Order was made, given that he is now a registered acupuncturist.

Based on her internet research, she says that income of $80,589 should be imputed to him, as that is the average income of a full time registered acupuncturist in Vancouver. [ 25 ] She also seeks pro-rated contribution for various expenses which she claims are s. 7 Guideline expenses using that higher income figure. [ 26 ] Finally, she seeks an order allocating to her final say about parenting responsibilities, subject to court application by Mr. Z., and the ability to travel to China with B., without Mr. Z.’s written consent. [ 27 ] Mr. Z.’s Reply to the Application notes that he disagrees with everything Ms.

Y. seeks, except that he agrees that there should be some increase in monthly child support payments: He states that monthly child support should be $671.51, which correlates to an annual income of just over $70,000.

[28] Mr. Z. says that the September 2021 Order allocating parental responsibilities to both of the parties, shared, should remain anddenies the minimal contact asserted by Ms. Y.. Further, he says that he should have a say as to whether she travels to China with theirson. Discussion of the Issues: Issue 1: What is Mr. Z.’s income, for the purposes of calculating his monthly child support obligations to B.? [29] Mr. Z. attached a table entitled “2022 Estimate Gross Income” to his June 1, 2022 Reply. In it, he estimates that his gross totalincome for 2022 will be $85,974.

He then estimates “employment expenses” of over $15,000 and ends up with an estimated annualincome for child support purposes of $70,574. [30] As mentioned, the 2021 Order, made late in the year, reflects Mr. Z.’s 2021 income of $23,096 – that is, about $50,000 less thanMr. Z.’s estimated his annual income would be for 2022. This is consistent, more or less, with his trial evidence here. [31] At trial, Mr.

Z. testified that rather than seeking full time work as a registered acupuncturist, he has, since the 2021 Order wasmade, had three different types of employment: working as a contracted real estate photographer, a translator and acupuncturist. [32] He estimated that he works ten hours weekly as a photographer. He explained that since he filed his June 2022 FinancialStatement estimating gross income of over $85,000, the economy has suffered a downturn and the demand for his photography serviceshas declined.

He testified that he believes that his income estimate was likely high. [33] He testified that he works seventeen hours weekly as an acupuncturist: half a day, each, on Tuesdays and Thursdays and the fullday on Saturday. [34] The job he does most – eighteen (18) hours weekly - is translating, on what seems to be an on-call basis. For this, he gets paid$16/hour and when no one calls for transactions, he can do nothing and watch TV. [35] From the above, I conclude that Mr.

Z. is not maximizing his income-earning capacity: He spends most of his work time at thejob that demands the least and pays the least. [36] In Earle v. Earle, (BCSC), Justice Martinson explained that the obligation of a parent is to earn to theircapacity; (see: para. 14(1)(c)). [37] Further, in his “Gross Estimate”, Mr. Z. claims monthly car payments of $1,260, which expense is used to decrease his incomesaid to be available for child support. He disclosed on the witness stand that the car in question is a new Mustang crossover, with a costof just under $70,000.

He testified, essentially, that due to the pandemic, it was almost impossible to get any other type of vehicle. Whileit is general knowledge that new and used vehicles are less available, following the pandemic, I do not accept Mr. Z.’s uncorroboratedtestimony that the only vehicle available to him was a brand new hybrid SUV. He agreed that he did not need such an expensive vehicle. [38] At trial, he testified that at one point he paid $800 monthly for rent when his bank statements showed that he did not. When facedwith this evidence, Mr.

Z. reframed his testimony, saying that he paid for daily expenses such as groceries and his girlfriend, (withwhom he shared the apartment), covered his rent. [39] I find that, at times, Mr. Z. sought to minimize his post-expense income available for the purposes of calculating child supportfor B.. [40] Ms. Y. argued that e-transfers and deposits reflected in Mr. Z.’s bank statements for the past year, totalling $145,000, should bethe basis for imputing his income. Mr. Z. testified that the $145,000 included transfers from his saving account to his chequing accountand that Ms.

Y. had double-counted much of the money she described as “unexplained income.” Mr. Z. produced an affidavit explainingthe various transactions – essentially an aide memoire – which supports his position. [41] Apart from the car expense, his evidence, generally, speaks to a modest lifestyle in relation to his accommodation; he hasroommates, all living together in a shared home. As mentioned, the photos of him travelling and engaged in expensive activities appearto be out of date by several years.

He testified that he is of the view that, taking into account deductions, he has $70,574 annuallyavailable for child support. The car expenses are not reasonable. It is appropriate to add half of the vehicle costs back into the incomeavailable for B.’s support, which amounts to $7,560 annually. Taken together, a reasonable imputed income for Mr. Z. is $78,134. [42] The evidence here is that Mr. Z. became qualified as an acupuncturist in the autumn of 2021.

Allowing for some time to obtainfull time employment in the field and taking into account that this event could almost certainly have been raised with the judge dealingwith these issues a year ago, rather than requiring a further multi-day trial, it is reasonable that the imputed income of $78,134 be used asthe base to ascertain basic child support payable by Mr. Z. as of January 1, 2022. Guidelines basic child support, for one child, based ona payor’s annual income of $78,134, is $746, monthly. The difference between $746 and $200.07, (see: the 2021 Order), is $545.93. [43] In the result, Mr.

Z. should have paid $8,206 basic child support for the past 11 months of 2022, rather than the $2,200.77 basedon the 2021 Order; the difference is $6,005.23. Mr. Z. owes Ms. Y. $6,005.23 retroactive basic child support for January throughNovember, 2022. [44] Going forward, Mr. Z. shall pay to Ms. Y. $746 for the basic child support of B. on the first of every month, beginning onDecember 1, 2022 until further order of the court. Issue 2: What is the appropriate figure for Ms. Y., for the purpose of calculating the pro-rated

section 7 expenses? [45] Section 7(1) of the Federal Child Support Guidelines sets out that a child support order may include an amount toward any

portion of six (6) listed expenses: (

a) child care in certain circumstances; (

b) medical/dental insurance premiums for the child; (

c) health related expenses, including glasses and prescription drugs; (

d) extraordinary educational expenses, due to need; (

e) post-secondary and (

f) extraordinary expenses for extracurricular activities. [ 46 ] In determining whether to make an order under s. 7(1), the court must consider “…the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and… to the family’s spending pattern prior to the separation,” (see: s. 7(1), underlining added). [ 47 ] Subsection 7(2) of the Guidelines sets out that the guiding principle in determining the amount payable for a “special expense”, (under subsection 7(1)(a) – (

c) and (e)), or an “extraordinary expense”, (under subsections 7(1)(

d) and (f)), is that the expense be shared by the parents “in proportion to their respective incomes …” (underlining added). [ 48 ] Under subsections 7(1.1)(

a) and (b), the “ income of the spouse requesting” contribution for an expense is an integral factor in assessing whether a particular expenses is “extraordinary” and whether contribution or payment should be ordered, (underlining added). [ 49 ] Given the language of these subsections, the parties’ means and income are relevant to a consideration of special and extraordinary expenses. Evidence with regard to Ms. Y.’s financial situation [ 50 ] As noted, the 2021 Order sets out that Ms.

Y.’s annual income was well below $20,000 for each of 2017 – 2020. [ 51 ] Despite this, and despite receiving no spousal support and minimal child support, I find that Ms. Y. has all her material wants and needs met. Her lifestyle and that of B.’s looks nothing like the lifestyle of a person in our community who actually has less than $20,000 income available for housing, food, clothing, transportation, entertainment in a year, along with $200 monthly child support: Ms.

Y. lives in a home in a North Shore neighbourhood that is not rented; she drives an Acura for which she pays $689 monthly; B. takes golf lessons, piano lessons, swimming lessons and goes to bike camps and other activities during school breaks. She paid for him to be in daycare when she was not working or at school, but, rather, likely to give her free time from parenting. She has, it turns out, in addition to real estate in China, an interest of some kind in an additional investment worth a quarter million dollars. [ 52 ] Ms. Y. testified that her sources of money are (

i) rental income and (ii) parental support. [ 53 ] Her evidence with regard to the rental income paints a confusing picture: while she owns the rental apartment in China, the tenant pays rent directly to her father, not to her. Her father does not transfer those rental payments to her, but, rather, she says that he uses the rental funds he receives in China to offset the costs incurred by her parents in having secured a home for her and B. in North Vancouver. No documentation evidencing any arrangement was produced and there is imprecision in the figures Ms.

Y. uses in relation to the rental income: on her T1 she claims $18,000 annually, which amounts to $1,500 monthly; she testified that her father receives closer to $1,300 monthly for the rent. The numbers do not reconcile and Ms. Y. is not a reliable witness. Ms. Y. referred to an untranslated agreement of some kind, written in Chinese characters. I conclude from the evidence on this point that Ms.

Y. never does receive the actual rental income from her apartment in China; rather, it is likely that her parents absorb that revenue into their funds and put it into the mix of all the monies they use to give to their daughter for her and their grandson’s financial wellbeing. [ 54 ] With regard to direct payments from her parents, Ms. Y. testified that she began receiving around $50,000, annually, from them, starting in 2014, when she and Mr. Z. were married. She continues to receive the monies for her and B.’s financial well-being.

There is no expectation that she will repay the money. [ 55 ] She testified that she is an only child and that in China most parents support their children; that they have nothing in writing. She testified that because she does not work, her parents give her what she needs. Expenses such as utilities are paid from her mother’s account; some of Ms. Y.’s expenses are paid by her parents, directly; others, she asks for money to cover. She agreed with the suggestion that it does not matter how much she spends, they will always pay the bill.

She testified that, regularly, they give her some hundreds of dollars every month. She does not keep track because her parents do not want the money back. [ 56 ] This testimony is consistent with dated documentary evidence in the form of Ms. Y.’s February 2020 Financial Statement and her Financial Statement filed in August 2019. [ 57 ] Her and B.’s lifestyle is provided for, significantly, by regular payments and benefits provided to her by her parents. Are these payments relevant to a consideration of the appropriate apportionment of the

section 7 expenses between the parties? [ 58 ] I am satisfied that the monies that Ms. Y. routinely receives from her parents are relevant to a consideration of the appropriate sharing of

section 7 Guidelines expenses between the parties because the payments are relevant to assessing (

i) the spouses’ “means,” (see: s. 7(1) – special and extraordinary expenses), and (ii) her “income”, (see: ss. 7(1) & 19 – imputing income; s. 7(1.1) –extraordinary expense and s. 7(2) - sharing of expenses). i. Means

[59] As noted, subsection 7(1) of the Guidelines empowers a court to include in a child support order an amount to cover any portionof certain expenses, “taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of theexpense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation…..”(underlining added). [60] The objectives of the Guidelines includes establishing “a fair standard of support for children that ensures that they continue tobenefit from the financial means of both spouses after separation;” (see: s. 1(a), underlining added). [61] In Bodine-Shah v.

Shah, 2014 BCCA 191 the BC Court of Appeal discussed

section 7 of the Guidelines and, at the end ofparagraph 66, observed that “means” in the

section includes “third party resources”: [66] Special expenses listed in ss. 7(1)(a)-(

c) and (

e) are distinct from extraordinary expenses referred to in ss. 7(1)(

d) and (f). Specialexpenses are defined as relating to child care, medical or dental insurance premiums, health-related costs, and post-secondary education.They must be found to be reasonable and necessary. Extraordinary expenses are not defined. Their extraordinariness is determined in thecontext of the combined income of the spouses, as well as other considerations, including the nature and amount of the individualexpense, the nature and number of the activities, any special needs or talents of the child, and the overall cost of the activities. They alsomust be found to be reasonable and necessary.

Relevant considerations for the tests of necessity and reasonableness include whether theexpenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, the child, and tothe family’s spending pattern prior to separation. See McLaughlin v. McLaughlin (1998), (BC CA), 57 B.C.L.R. (3d)186 at paras. 81-82 (C.A.). 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: Delichte v.

Rogers, 2013 MBCA106, 37 R.F.L. (7th) 81 at para. 38. Courts may consider whether the non-custodial parent was consulted regarding the expense, though alack of consultation does not automatically preclude a finding that the expense is reasonable and necessary: Delichte at paras. 39, 44.(My underlining). [62] Here, Ms.

Y.’s testimony about her financial means was pocked by concealment of assets and unreliable evidence, generally. [63] However, I find that the general and consistent gist of her evidence is that she receives about $50,000 annually from her parents.This does not include the benefit of living in the home they purchased for her in North Vancouver.

Because she does not have to pay forshelter, she has additional “means.” Even if there were reliable evidence to support the conclusion that her declared income of $18,000(stated to be rental income) was accurate, there is no evidence that she paid this income to her parents to defray their costs with regard toher living expenses. Further, even if there was, the rental reality these days is that $1,500 monthly (or $18,000 annually), would not comeclose to covering the actual cost of securing a two-bedroom home in the Lower Mainland’s North Shore.

I am satisfied that aconservative attribution of her means is reached by adding $18,000 to the $50,000 she receives, annually, for a total of $68,000. [64] Mr. Z. is required to pay Ms. Y. $746 per month, which injects a further $8,952 totalling $76,952. [65] Thus, for the purposes of subsection 7(1) of the Guidelines, Ms. Y.’s annual means are $76,952 and Mr. Z.’s means are $78,134. (ii) income [66] The income of a spouse requesting contribution for extraordinary expenses is integrally relevant to determining thereasonableness of the expense: “Extraordinary expenses,” referred to in subsection 7(1)(

d) and (f), are those expenses that “…exceedthose” that the requesting spouse can reasonably cover, taking into account that spouse’s income and the amount that the spouse wouldreceive under the applicable table or, where the court has determined the table amount is inappropriate, the amount that the court hasotherwise determined is appropriate, (see: s. 7(1.1(a), underlining added) or “the amount of the expense in relation to the income of therequesting spouse, along with four other factors, (see: s. 7(1.1)(b)). [67] In determining income for the purposes of the Guidelines,

section 19 provides that a judge may impute “such amount ofincome…as it considers appropriate in the circumstances,” and then sets out a list of nine (9) such circumstances. [68] While none of those nine listed are circumstances where one of the spouses receives payments on a regular basis from theirparents,

section 19 gives the court a broad discretion to impute income and the circumstances listed in

section 19 do not constitute anexhaustive list; (see: Ouellette v. Ouelette, 2012 BCCA 145, at para. 66). [69] The general policy of the Guidelines is “… that a payor’s income for child-support purposes is based on money reasonablyavailable for that purpose;” (see: Richardson v. Richardson, 2013 BCCA 378 at para. 56). [70] The leading case in Ontario considering a parent receiving monies from their parent and whether those monies amount to“income” for

section 19 purposes is Bak v. Dobell, 2007 ONCA 304.

In Bak, the Ontario Court of Appeal observed that while gifts“given in the normal course” are not presumptive income, circumstances surrounding a particular gift may be so unusual that theyamount to “appropriate circumstances” in which to impute income. [71] The Court in Bak identified a number of factors to consider in determining whether gifts should be imputed as income: • The regularity of the gifts; • The duration of their receipt; • Whether the gifts were part of the family’s income during cohabitation that entrenched a certain lifestyle; • Circumstances of the gifts that earmark them as exceptional; • Whether the gifts do more than provide a basic standard of living;

• Whether the income generated by the gifts in proportion to the payor’s entire income; • Whether they are paid to an adult child during a crisis or period of disability; • Whether the gifts are likely to continue; • The true purpose and nature of the gift; • Whether the funds create disposable income. [ 72 ] The BC Court of Appeal cited Bak with approval in Nielsen v. Nielsen , 2007 BCCA 604 , observing that the court in Bak had held that “…a gift of money from a parent can potentially be imputed as income to a spouse….” (at para. 39).

As discussed below, this has been applied, with varying outcomes, in B.C. [ 73 ] I note that the facts in Nielsen have nothing to do with recurring payments from a payor party’s parents. Rather, Mr. Nielsen was given free accommodation from a work colleague, following the parties’ separation. In concluding that this benefit was not “income,” within s. 19, the Court stated: “In the present case, the free housing provided to Mr. Nielsen was unrelated to his employment and was not payment for any service provided by him.

It was not of a nature similar to income, like gifts of money can be ….” (see: para. 43; underlining added). [ 74 ] In S.R. v. B.E. , 2011 BCSC 1586 , B.E. received “considerable support from her father throughout the marriage [to S.R. ]”, (para. 88 ), and afterward, on a “regular and ongoing basis,” (para. 91). Like Ms. Y., B.E. was allowed to use the monies her father gave her whenever she needed money; (see: para. 90). In 2007, she received $25,000; in 2008, $21,000; between February and May 2009, inclusive, she received $20,000, and more, after.

The funds “provided more than a basic standard of living,” and were in “nature and purpose” to provide an allowance to B.E., and would continue, (para. 92). [ 75 ] In imputing as income some of the funds provided by her father to B.E., the Court noted that B.E. held legal title to 25% of her father’s company in Iran and, as well, held legal title to an apartment that generated rent there.

While the Court noted that the evidence suggested that B.E . had never actually received any income from the assets nor any profit share, Justice Fisher concluded that B.E. remained entitled to it, and inferred that some of the funds provided to her by her father consisted of that income to which she was entitled; (see: para. 92).

As well, the court drew an analogy between the funds B.E. received from her father and trust income, since her father was entitled to legally deal with her assets, but only to her benefit; (see: para. 92, also). [ 76 ] Describing the circumstances as “unusual,” the court concluded that it was appropriate to include some of the funds as income, given the nature of the gifts as described; (see: para. 94). [ 77 ] The Court emphasized that it was B.E., not her father, who bears the legal obligation to support her child; (see: para. 94). [ 78 ] The court in Flader v. Gutkin , 2013 BCSC 414 discusses Bak and S.R. .

There, the facts are completely different than those here. In that case, the Court concluded that the funds received by Mr. Flader from his parents did not amount to “income” within s. 19. [ 79 ] In Andreassen v. Andreassen , 2016 BCSC 1196 , the Court observed that “…[o]ne of the purpose of the Guidelines is to establish a fair standard of support for children to ensure they continue to benefit from the financial means of both spouses after separation,” (at para. 73, citing s. 1(

a) of the Guidelines ). [ 80 ] In Kowalewich v. Kowalewich , 2001 BCCA 450 , Justice Huddard described the purpose of the Guidelines as being “…to permit an impartial assessment of “money” available to a spouse to pay child support. They are not just about actual income as a parent directly or indirectly determines it to be;” (see: para. 42). [ 81 ] Returning to Ontario case law, in F.B.M. v.

B.F . , 2019 ONSC 708 , Justice Dietrich, summarized the law on the issue, in Ontario: [ 49 ] Recently, this court has imputed income to the payor in circumstances where there was evidence establishing a settled pattern of monetary gifts from the payor’s parents that established a lifestyle in excess of a basic standard of living and the gifts continued post- separation in material amounts. The court found that imputing income on the basis of these gifts reflected a determination about the payor’s past revenues and likely financial futures. See Korman v. Korman , 2015 ONCA 578 , at paras. 62-67 . In Malkov v.

Stovichek- Malkov , 2017 ONSC 6822 , at paras. 69-73 , Justice McGee found that when gifts to the husband (e.g., payments for housing, utility costs, realty taxes) take on the appearance of a long-term subsidy as if the spouse was a beneficiary of income or benefits from an unwritten trust, the advances bend towards income. In Kkabbazy v. Esfahani , 2012 ONSC 4591 , at paras. 77-87 , the court imputed income to the husband based on evidence that he typically received and expected to receive funds “as needed” to support his lifestyle from his family. In Teitler v.

Dale , 2017 ONSC 248 , at paras. 41-67 , the court imputed income to the husband despite his assertion that the funds advanced from his parents were loans and not gifts. He had adduced no evidence that he had repaid any part of the alleged loans and his expenses were far in excess of his asserted income. [ 82 ] With the above in mind, I turn to a consideration of the factors set out in Bak , discussed at paragraph 71 , above: (

i) The regularity of the gifts: In this case, the payments are regular: Ms. Y. receives monies every month from her parents, totalling approximately $50,000 annually. (ii) The duration of their receipt: Ms. Y. has received these monies for eight years, since 2014. (iii) Whether the gifts were part of the family’s income during cohabitation that entrenched a certain lifestyle: Ms. Y. has received these monies since marrying Mr. Z.. (iv) Circumstances of the gifts that earmark them as exceptional: These payments are not associated to an event or milestone; they

are regular, predictable and expected payments made throughout the year to cover Ms. Y.’s daily needs and those of B., including music and sports lessons and an expensive vehicle. (

v) Whether the gifts do more than provide a basic standard of living: These payments provide a basic standard of living and then some. (vi) The income generated by the gifts in proportion to the payor’s entire income: This is impossible to assess, given the poor quality of the financial evidence produced by Ms. Y.. (vii) Whether they are paid to an adult child through a crisis or period disability: Here, the payments are made to Ms. Y., who is capable of working but whom I find has chosen not to work.

While she cited her speaking Mandarin as a reason for not working, I note that her English is workable; that she has completed a university course about English for academic purposes and that there are many businesses in the Vancouver Lower Mainland where Mandarin is spoken. (viii) Whether the gifts are likely to continue: I find, on the evidence, that the gifts are likely to continue: Ms.

Y. is an only child; she has testified to the effect that the financial arrangement she has is not unusual, based on her life experience, and that the monies given to her are not expected to be repaid. (ix) The true purpose and nature of the gift: These payments are not “gifts”, in the sense that they mark a celebratory event or special occasion; rather, they supplant Ms. Y.’s financial positon while she does not work outside the home. Her situation is similar to that of a trust beneficiary. (

x) Do the funds create disposable income: The funds from Ms. Y.’s parents are her main source of funds and create disposable income, as illustrated by her paying for child care when she did not need B. to be looked after by a third party so that she could work or study; her choice of vehicle; her decision to enrol B. in a variety of activities, even without his father’s agreement or predicted financial contribution. [ 83 ] In these certain circumstances, I am satisfied that it is appropriate to impute the monies Ms.

Y.’s parents give her as income for the purposes of the Guidelines sections under consideration here. As noted, this totals approximately $50,000 annually. [ 84 ] With regard to other sources of income, the $18,000 rental income declared in Ms. Y.’s income tax returns is not corroborated by anything. Her filed Financial Statements are incomplete and deceptive. She lied on the witness stand, first, about, the existence of, and, next, the amount of, the mutual fund that she holds. Evidence about her financial situation was wholly unreliable. [ 85 ] At one point during the trial, Mr. Z. questioned Ms.

Y. about the discrepancy between her stated income and evidence of her spending for the same time frame, which far exceeded the income claimed. She did not provide an adequate explanation. [ 86 ] In all of the circumstances, I conclude that a rough approximation of Ms. Y.’s income, under

section 19 and for the purposes of

section 7 considerations, is $68,000 annually, comprised of roughly $18,000 benefit of some kind, being the number on her tax return, along with the $50,000 or so she testified to receiving from her parents. While she also did refer to $40,000 on occasion, as the annual amount from her parents, I found Ms.

Y. to be self-servingly deceptive and am satisfied that the higher figure is more likely to come close to reflecting the sum she receives annually from her parents. [ 87 ] As noted, subsection 7(2) of the Guidelines establishes that the sharing of s. 7(1) expenses should be in proportion to the parties’ respective incomes; here, I find that Ms. Y.’s income is $68,000; Mr. Z.’s is $78,134. Consequently, they shall share the expenses on a pro-rated basis, with Ms. Y. contributing 46.5% and Mr. Z. contributing 53.5%. Special Expenses [ 88 ] The expenses claimed by Ms.

Y. that fall within s. 7(1) of the Guidelines as “special expenses” are the cost of B.’s glasses, (s. 7(1)(c.)), and some medical expenses, (s. 7(1)(b)). The child care expenses claimed do not fall within the permitted expenses, because they were not incurred as a result of any of the circumstances listed in subsection 7(1)(a). [ 89 ] While no prescription or medical evidence was tendered, Mr. Z. did not challenge Ms. Y.’s evidence that B. has a stigmatism and needs glasses. I find that the glasses and frames are necessary. [ 90 ] Ms.

Y. testified that the glasses originally cost $800 but that there was a 50% discount because they are child’s glasses, not adult. She testified that they were designer frames. In submissions, Mr. Z. observed that his own glasses cost less than half of what Ms. Y. paid; he objects to the reasonableness of her choice of glasses for their son. [ 91 ] Here, the question is whether the expense was reasonable in relation to the means of the parties and to their spending pattern prior to separation. While little evidence was led about their spending patterns prior to separation, it is clear that Mr.

Z.’s family helped them with hard costs such as accommodation and groceries; that help is no longer available to him. [ 92 ] Mr. Z., as noted, appears to live a fairly frugal lifestyle; Ms. Y., on the other hand, it appears, can have any expense she incurs covered by her parents.

Her decisions have included having B. attend an expensive private school, far beyond the parties’ means – that is, without her parents’ contribution; she plans a trip to China, which will be costly, even considering tickets, only. [ 93 ] While no evidence was led as to less expensive options being available, I am satisfied that it is likely that less costly glasses – more generic and less designer - were available and that the cost incurred by Ms. Y. was not reasonable, given the parties’ means, (without further recourse to her parents’ monies).

In all of the circumstances, for a rough estimate, I am satisfied that it is appropriate to use $300 as a base for the cost of the glasses and frames and Mr. Z. is required to pay 53.5% of $300, towards the cost of the glasses and frames.

[ 94 ] Similarly, he must pay 53.5% of all medical prescriptions that Ms. Y. produces in the next fourteen (14) days in relation to costs incurred by her for B. in 2022. I make this order because, during the trial, Ms. Y. testified to the effect that she did not have receipts for all of the prescriptions for medications that she purchased for the child with her and it is clear that those are expenses, which Mr. Z. should be sharing. Extraordinary Expenses [ 95 ] The extraordinary expenses claimed by Ms. Y., under subsection 7(1.1) of the Guidelines, are comprised of swimming lessons; golf lessons; piano lessons; summer camp expenses and school fees of $102 inclusive of tax, (see: ss. 7(1)(

d) and (f)). [ 96 ] Here, consideration involves Ms. Y.’s income ($68,000) and the child support she receives under this order, ($746 x 12 months), which total $76,952, and the expenses exceeding those she can reasonably cover; (see ss. 7 (1.1(

a) and (b)of the Guidelines ). [ 97 ] None of the lessons such as golf, swimming, piano or biking are necessary in relation to B.’s best interests, but they are likely consistent with his best interests. The summer camps are not a necessity, in that Ms. Y. does not work outside the home and does not require a substitute for day care when B. is out of school in the summer. Having said that, he is an only child and social interaction with other children and physical activity and gaining skills, I find, are in his best interest. [ 98 ] Mr.

Z. ultimately agreed that the cost of the piano and swimming lessons are reasonable, particularly having regard to the value that gaining such skills has for B.. He does not agree with B.’s taking golf lessons and says that they are an unreasonable expense, given, in particular, his means. [ 99 ] A further cost that was raised, but not seriously pursued, related to costs associated with B. changing to a different school. This is something that Mr. Z. says he was not consulted about and does not agree to. The amount was $200. I do not understand Ms.

Y. to be pressing for that. [ 100 ] With regard to the $102 school fees, I do not find that the fees exceed costs that Ms. Y. can cover, given her income and the child support that she receives. [ 101 ] Given the parties’ means, the cost of living and the evidence of some frugality on the part of Mr. Z., I am satisfied that it would not be appropriate to order him to contribute to the cost of the golf lessons or the summer camp. While it is clearly Mr. Z., (and not Ms. Y.’s parents), who are required to contribute to B.n’s financial well-being, Mr.

Z.’s means are not limitless and the Guidelines prescribe that the expenses under s. 7(1) be reasonable, having regard to the means of the spouses. [ 102 ] In the result, Mr. Z. is ordered to pay 53.5% of the cost of B.’s piano lessons and swimming lessons incurred by Ms. Y. for 2022 and going forward, limited to one (1) hour of piano lessons per week and one (1) swimming lesson per week, unless otherwise agreed between the parties. This does not prevent the parties from identifying and agreeing upon other paid lessons or activities for their child and agreeing to share those costs.

Parenting responsibilities: [ 103 ] Prior to hearing evidence, while trying to distil which issues raised in the pleadings remained contentious between the parties, I understood Mr. Z. to resile from his opposition to Ms. Y. having exclusive parenting responsibilities for B. and I indicated that in the circumstances, that part of Ms. Y.’s application would be granted. [ 104 ] However, during the hearing, it became clear that Mr. Z. does not, in fact, agree to Ms.

Y. having exclusive decision making about parenting responsibilities, with his having review only by recourse to the court. [ 105 ] Further, after hearing the evidence at this trial, and having regard to Ms. Y.’s lack of credibility, Mr. Z.’s increased involvement with B. and the recency of the September 2021 Order, and having regard to B.’s best interests, I have concluded that Ms. Y.’s having exclusive parenting responsibilities would not be in B.’s best interests. [ 106 ] No order has been entered in this regard and I have concluded for the reasons above and having regard to

section 47 of the FLA , that no such order should be made: Ms. Y.’s application for exclusive parenting responsibilities is dismissed and the terms of the Order made on September 9, 2021 by the Honourable Judge Senniw are confirmed. Travel to China: [ 107 ] Ms. Y. says that she has travelled with B. twice to China since separating from Mr. Z. and returned to Canada, both times. She says this fact shows that she will always return, if granted the order to permit her to travel to China without Mr. Z.’s written consent.

She testified to the effect that North Vancouver is now her and B.’s home, not China. [ 108 ] While it is clear that the child has many connections here – school, friends, sports activities – and while it is clear that Ms. Y.’s parents own a home here in which she resides, it is also clear that she has family and history from growing up and being a working adult in China, as well. [ 109 ] I did not find Ms. Y. to be trustworthy during this trial. It is impossible to know whether she is telling the truth about her plans in regard to travel and B.. Mr.

Z. is in a better position to assess these matters going forward, as he knows Ms. Y. and her background. [ 110 ] Mr. Z. has said that he will not unreasonably refuse to provide his written consent to Ms. Y. and B. travelling to China. [ 111 ] In all of the circumstances, I am not satisfied that it is in B.n’s best interests to grant Ms. Y.’s application to travel without Mr. Z.’s consent. Her application for an order in this regard is dismissed. Conclusion:

i. Ms. Y.’s application for increased child support payable by Mr. Z. is granted. ii. Ms. Y.’s application for pro-rated contribution to

section 7 Guideline expenses is granted, in part. iii. Ms. Y.’s application for exclusive parenting responsibilities is dismissed; the terms of the September 9, 2021 Order herein are confirmed; iv. Ms. Y.’s application for an order permitting her to travel to China with B. without Mr. Z.’s written permission is dismissed. (JUDGMENT CONCLUDED)