Martyniuk v. Frederickson, 2015 BCSC 2594

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Martyniuk v. Frederickson, 2015 BCSC 2594 Date: 20150629 Docket: E112872 Registry: Vancouver Between: Joni Leanne Martyniuk also known as Joan Leanne Frederickson Claimant And Gordon David Frederickson Respondent Before: The Honourable Madam Justice H. Holmes Oral Reasons for Judgment Counsel for the Claimant: Erin M. Bowman Counsel for the Respondent: David T. Paterson Place and Dates of Trial: Vancouver, B.C. June 8-12, 16 and 18, 2015 Place and Date of Judgment: Vancouver, B.C.

June 29, 2015 INTRODUCTION [ 1 ] In January 2007, not long after the breakdown of their 16 ½ year marriage, the parties agreed that Ms. Frederickson would buy out Mr. Frederickson’s interest in the family home, with the help of her brother and his wife. This arrangement enabled Ms. Frederickson to continue living in the family home with the parties’ two children, as she and Mr. Frederickson felt was in the children’s best interests. [ 2 ] Mr. Frederickson contends that the January 2007 agreement concerning the home also provided for Ms. Frederickson to give up her interest in his employment pension. Ms.

Frederickson responds that the January 2007 agreement related only to the home, and she claims a half-interest in the pension as accrued from the date of the marriage through to the “triggering event” in August 2012, when a declaration was made under s. 57 of the Family Relations Act . The parties agree that Parts 5 and 6 of the FRA ,

an Act which has been replaced by the Family Law Act , continue to govern the parties’ property claims by virtue of the transitional provisions in sections 252 and 253 of the FLA . [ 3 ] Mr. Frederickson contends, in the alternative, that he received so small a share of the value of the family home that his pension should be reapportioned under s. 65 FRA and allocated entirely or substantially to him. Ms.

Frederickson disagrees, and submits that the value of the family home was divided almost equally at the time, and that, in any event, the assessment of the fairness of the division should take account of the fact that she has borne the responsibility of caring for the children and of remaining in the home to do so. [ 4 ] Ms. Frederickson also claims retroactive child support. Mr. Frederickson paid a substantial lump sum at the time of the separation, and has paid some additional monthly support since. However, the total amount falls short of the amounts for which the Child Support Guidelines provide. Mr.

Frederickson submits that, in pursuing her claim some 8 ½ years after the separation and the lump sum payment, Ms. Frederickson fails to meet the requirements for a retroactive order set out in D.B.S. v. S.R.G. , 2005 ABCA 2 , rev’d on other grounds 2006 SCC 37 , particularly since Mr.

Frederickson has given her all his income information over the years, and has paid numerous extraordinary expenses for the children, including post-secondary tuition fees for both. [ 5 ] I will briefly set out some background details, before then discussing, in turn, each of the main issues arising from the parties’ positions and the evidence. BACKGROUND

[ 6 ] The parties married in August 1990, when each was twenty-six years of age. Their daughter M. was born in September 1991, and their son J. in October 1994. At the time of the marriage breakdown, in late 2006, M. was thirteen years of age, and J. was ten. [ 7 ] Ms. Frederickson had been the children’s primary caregiver during the marriage, while also working part-time as a dental assistant and, later, as a dental office manager. She now works in this capacity full-time. [ 8 ] Mr. Frederickson provided most of the financial support for the family.

He has worked full-time since 1984 for the City of Richmond in several positions that led to the position of Trades Supervisor, a position he has held since 2000. [ 9 ] On the breakdown of the marriage, the parties agreed or assumed that the children would live with Ms. Frederickson after Mr. Frederickson left the family home. At first, they assumed that the family home would have to be sold, because neither party could afford to buy out the other’s interest. However, Ms. Frederickson’s brother, Brad Martyniuk, offered to help Ms.

Frederickson remain in the home by taking a legal interest in it himself and co-mortgaging it with Ms. Frederickson, whose income on its own was not sufficient to support a mortgage. With this assistance from Mr. Martyniuk, Ms. Frederickson would be able to buy out Mr. Frederickson’s interest in the home. [ 10 ] Both parties were grateful for Mr. Martyniuk’s offer to assist, because they wanted the children to be able to remain in the home and the neighbourhood until they finished high school. [ 11 ] As it turned out, Mr. Martyniuk’s wife, Barb Kee, also became party to the agreement to buy out Mr.

Frederickson’s interest. [ 12 ] Ms. Kee worked as a corporate paralegal for the law firm that prepared the conveyancing and other documents necessary for the transfer. Mr. Martyniuk testified that the legal fees were lower as a result. [ 13 ] It is clear that neither of the parties had any discussions with the lawyer or anyone else at the law firm until they were asked to sign the documents. On the evidence, the only reasonable inference is that it was either or both of Mr. Martyniuk and Ms.

Kee who took the lead in developing the details of the arrangement for the transfer, and who gave instructions to the law firm to put the arrangement into effect. [ 14 ] Ms. Frederickson and Mr. Frederickson each went to the law firm on a date in January 2007 to sign the conveyancing and other documents. [ 15 ] There are disputes, which I will address later, about whether the parties’ agreement concerning their family home also included an agreement concerning Mr. Frederickson’s pension, and about the total amount Mr. Frederickson actually received in exchange for his interest in the family home.

However, the parties agree that the documents produced by the law firm and signed by both parties had the effect of removing Mr. Frederickson from title to the home, paying out the existing mortgage and all others of the parties’ joint debts, and paying Mr. Frederickson an amount (albeit an amount that is in dispute) that was treated as being in full satisfaction of his interest in the family home in all of the circumstances (those circumstances also in dispute because of Mr. Frederickson’s position that the agreement also encompassed his employment pension). [ 16 ] In the lead-up to, or around the time of, Mr.

Frederickson’s departure from the family home, the parties informally divided their various items of personal property, including their vehicles and the household contents. Neither party takes issue with this division. [ 17 ] Through the documents prepared by the law firm, Ms. Frederickson took a 40% interest in the family home, with Mr. Martyniuk and Ms. Kee together taking 60%. A separate agreement, drafted by Mr. Martyniuk and Ms. Kee themselves, and, they all testified, signed by the two of them and Ms.

Frederickson, set out in some detail the responsibilities, among themselves, in relation to the home, and the distribution of the proceeds of any sale that might follow. [ 18 ] Emphasis was given in the trial to the fact that Ms. Frederickson took only a 40% interest in the home through her agreement with Mr. Martyniuk and Ms. Kee. However, in my view that agreement is irrelevant to the question of what share of the value of the home Mr. Frederickson received under the January 2007 agreement. Ms. Frederickson’s agreement with Mr. Martyniuk and Ms. Kee amounted to a financing arrangement, and Mr.

Frederickson had no rights under it. [ 19 ] The parties agree that the triggering event, for the purposes of s. 56 of the FRA , was in August 2012, when Leask J. made a declaration under s. 57 that the parties had no reasonable prospect of reconciliation. [ 20 ] From the compensation he received for his interest in the family home, Mr. Frederickson paid Ms. Frederickson $36,500 as lump sum child support. [ 21 ] The evidence is unclear, and somewhat in conflict about the timing, but it is agreed that at some later time, when Ms.

Frederickson made him aware that the lump sum amount would not represent his full obligation to the children under the Child Support Guidelines , Mr. Frederickson began to pay $110 per month. He increased this amount to $288 per month some time later to better reflect the Guidelines requirements. [ 22 ] Mr. Frederickson stopped paying monthly child support after October 2011, when the parties sought advice in the hope of amicably achieving a divorce, and it became apparent that they had different views about whether Ms. Frederickson had an interest in Mr.

Frederickson’s employment pension. [ 23 ] The order for child support Ms. Frederickson seeks would encompass retroactive child support back (though not on a continuous basis) to 2007, to accord with the Child Support Guidelines , as well as ongoing support through to the end of this month for M. and to the end of August, 2015 for J. THE ISSUES

[ 24 ] The parties’ positions and the evidence give rise to the following main issues: 1. whether the parties’ January 2007 agreement encompassed Mr. Frederickson’s pension, as well as the family home; 2. if it did not, what amount Mr. Frederickson received under the January 2007 agreement in exchange for his interest in the family home; 3. whether the relationship of that amount to the value of the family home, at the applicable time, favoured Ms. Frederickson so much that an equal division of Mr. Frederickson’s pension would be unfair, within the meaning of s. 65 of the FRA ; 4. if an equal division of Mr.

Frederickson’s pension would be unfair, how his pension should be reapportioned; 5. whether Mr. Frederickson should pay retroactive child support. [ 25 ] I will discuss these issues in turn. 1. DID THE JANUARY 2007 AGREEMENT ENCOMPASS THE PENSION? [ 26 ] Mr. Frederickson contends that in the oral agreement by which the parties came to terms about the home, they also agreed that Ms. Frederickson would forego her interest in his employment pension. He testified that it was because he would therefore retain the full interest in his pension that he was content to agree that Ms.

Frederickson should have so much larger a share of the value of the home than he was to receive under the January 2007 agreement. [ 27 ] Ms. Frederickson testified that the oral agreement related only to the home, and that at no time did she give up her interest in Mr. Frederickson’s employment pension. [ 28 ] On all the evidence, I conclude that Mr. Frederickson has failed to establish that the agreement relating to the house also related to his pension. [ 29 ] While, as I will discuss later, I conclude that Ms. Frederickson received a much greater share of the value of the home than did Mr.

Frederickson, I find that this was because Mr. Frederickson behaved generously toward her at the time; commendably, he wanted her to be able to continue in the home for the sake of the children. [ 30 ] There is no evidence of any written mention of an agreement concerning the pension, and no evidence, except Mr. Frederickson’s own evidence, that the agreement was made. Nor is there any such evidence that Ms. Frederickson at any time acknowledged or referred to such an agreement. [ 31 ] Mr.

Frederickson submits that the informal manner in which the parties agreed, he submits, that he would keep his pension, was consistent with the way in which they reached agreement concerning all of their property in late 2006 and early 2007. As I have noted, the parties divided their personal possessions and the family home without (as to the former) any or (as to the latter) much in the way of a written record of those agreements, except for the documents necessary to effect the formal transfer of title to the home and the payment of funds to Mr. Frederickson for his interest. Mr.

Frederickson submits that in this context, the absence of a documentary record of an agreement concerning the pension has no real significance and does not support an inference that no such agreement was made. [ 32 ] However, I view the evidence somewhat differently. In my view, the parties addressed only those of the issues arising from the marriage breakdown which could not be avoided. They had no alternative but to make some form of arrangement in relation to the family home, because they did not wish to continue living together.

As I have already described, at first they expected to have to sell the home, but then Mr. Martyniuk made his offer. Significantly, in my view, the parties themselves took no role in preparing or giving instructions for the documents they both signed to effect the arrangement by which Mr. Martyniuk and Ms. Kee would effectively buy out Mr. Frederickson’s interest and provide financing to Ms.

Frederickson. [ 33 ] As to the items of personal property, these the parties divided informally when circumstances required them to do so. [ 34 ] There was no single comprehensive agreement relating to all of the financial issues, or even all of the family assets, and no effort to make any such agreement in late 2006 or early 2007. [ 35 ] In all the circumstances, I am unable to accept Mr. Frederickson’s evidence that the parties had numerous conversations about his pension that led to the pension being a subject of the January 2007 agreement. Mr.

Frederickson gave no meaningful details about these conversations, and, in the vague and general terms in which he described them, they seemed out of accord with the circumstances at the time. For example, I find it most unlikely that the pension was a topic of conversation immediately after the marriage breakdown, when the parties were far more concerned first about the well-being of the children, and, later, how to deal with the family home. However, asked in his evidence about the parties’ discussions at that stage, the pension was the first topic Mr. Frederickson mentioned. [ 36 ] I accept Ms.

Frederickson’s evidence that when the parties met in approximately 2011 to discuss arrangements for what they hoped to be an amicable divorce, and it came to light that Ms. Frederickson claimed an interest in the pension, Mr. Frederickson became loudly irate, and voiced the strong view that the pension was his alone. Ms. Frederickson testified that shortly afterwards, he demanded that she sign a waiver of interest in the pension, and, when she refused to sign it, refused to continue paying the monthly child support he was paying at the time. By all accounts, Mr.

Frederickson did stop paying monthly child support at about that time, and I find that he did so for the reason Ms. Frederickson indicated.

[ 37 ] Mr. Frederickson may well have come to believe over time that the agreement concerning the home also provided for him to have the entire interest in his pension, but the evidence is not sufficient to establish that such an agreement was made at the time. [ 38 ] The question, then, is whether Mr. Frederickson’s pension should be divided in accordance with

Part 6 FRA , with Ms. Frederickson receiving a half interest in the portion that accrued between the date of the marriage (August 1990) and the s. 57 declaration (August 2012). As I mentioned earlier, Mr. Frederickson submits that the pension should be reapportioned entirely or substantially to him, because Ms. Frederickson received a much larger interest than he did in the equity in the family home. [ 39 ] In the consideration of Mr. Frederickson’s position in this regard, I will first determine what amount, in total, Mr. Frederickson received for his interest in the family home. 2. WHAT AMOUNT DID MR.

FREDERICKSON RECEIVE UNDER THE JANUARY 2007 AGREEMENT? [ 40 ] Neither party has a clear memory of the exact amount or amounts paid out to Mr. Frederickson through the law firm that handled the conveyance. The documentary evidence is also scant, and, in the following instance, questioned as to its reliability. An unsigned and undated direction to pay, which can only have been prepared by the law firm, sets out amounts payable to Mr. Frederickson, and indicates how the pre-existing mortgage and the family debts would be paid at the time of the January 2007 agreement. Ms.

Frederickson suggests that this document may have been only a draft, and that the final arrangement may have been different. However, the terms set out in the document accord in general terms with evidence of a cheque issued to Mr. Frederickson by the law firm. On all the evidence, I conclude that Mr. Frederickson received $49,854 through the law firm under the January 2007 agreement. [ 41 ] The question then is whether Mr. Frederickson also received $20,000 by way of cheque from Mr. Martyniuk in late 2006 as an advance payment under what was to become the January 2007 agreement. [ 42 ] Mr.

Martyniuk testified that he wrote a cheque to Mr. Frederickson in advance of the January 2007 agreement -- likely in October or November 2006 -- so that, as he understood, Mr. Frederickson could settle some personal debts before the agreement to buy out his equity in the home was finalized. Ms. Frederickson testified that she received the cheque from Mr. Martyniuk, and gave it to Mr. Frederickson. [ 43 ] Mr. Frederickson denies that he ever received a $20,000 cheque from Mr. Martyniuk or from Ms. Frederickson. [ 44 ] There is a complete absence of documentary evidence concerning this cheque.

The evidence does not include the cheque itself, a copy of it, or any record of a debit in that amount from Mr. Martyniuk’s account or a credit to Mr. Frederickson’s at the relevant time. [ 45 ] The evidence does include a page of handwritten notes which refers to $20,000 paid to Mr. Frederickson. Mr. Martyniuk testified that he wrote those notes in preparation for drafting the agreement between Ms. Frederickson, on one hand, and himself and Ms. Kee, on the other. However, the notes are undated and therefore add little weight to Mr.

Martyniuk’s oral evidence. [ 46 ] The evidence also shows a large credit (of approximately $57,100) to Mr. Frederickson’s account at the time he opened the account in late January 2007. However, I do not view that credit as providing evidence that Mr. Frederickson must have received a $20,000 cheque some months before. The amount of the credit bears no meaningful relationship to the total of the $49,854 Mr. Frederickson received from the law firm with or without an additional $20,000. Also, if Mr.

Frederickson had received $20,000 as an advance, for financial needs to be met before he received funds under the January 2007 agreement, it seems unlikely that a significant portion would remain unspent in late January 2007 when he opened the new account and made the deposit. Furthermore, the only stated reason for the advance, namely (through Mr. Martyniuk) that Mr. Frederickson had personal debts to settle, is inconsistent with the undisputed evidence that all the family debts were paid as part of the January 2007 agreement, and with the absence of evidence of any other personal debts owed by Mr.

Frederickson alone. [ 47 ] There is no satisfactory explanation for the absence of documentary evidence concerning the cheque. Mr. Martyniuk testified that the manager of the branch of the bank on which it was drawn told him, when he asked for the cheque, that the bank destroys its paper records after seven years. However, Mr. Martyniuk testified that he made his request for records in 2012 or 2013, which was a time within, or very close to, the seven-year period.

Also, he did not explain why the bank could not have provided some other evidence of the cheque, whether produced from an electronic record of the cheque itself, or from a record of the transactions in Mr. Martyniuk’s account. [ 48 ] In all the circumstances, I conclude that Ms. Frederickson has not established that Mr. Frederickson received $20,000 in addition to the $49,854 he received through the law firm. [ 49 ] I turn now to consider whether, as he submits, Mr. Frederickson received substantially less than an equal share of the equity in the home, when he received $49,854 under the January 2007 agreement. 3.

DID MR. FREDERICKSON RECEIVE SUBSTANTIALLY LESS THAN 50% OF THE VALUE OF THE HOME? [ 50 ] It is common ground that after payment of the mortgage, the family debts and expenses associated with the conveyance (which

together amounted to $342,940), and the total amount paid to Mr. Frederickson for his interest (which I have found to be $49,854), Ms. Frederickson received the full amount of the equity in the family home. The relationship between the value of that equity to the $49,854 paid to Mr. Frederickson therefore turns on the fair market value of the home at the time, subject to an adjustment to reflect the fact that the January 2007 agreement took place without realtors’ commissions. [ 51 ] Ms. Frederickson contends that the fair market value of the home at the time was $530,000.

She relies on a retrospective valuation in that amount, done in 2013, of the value as of January 1, 2007. [ 52 ] However, in my view the more appropriate approach is to rely on the value to which both parties and Mr. Martyniuk and Ms. Kee agreed at the time, which was $570,000. All the conveyancing documents to effect the January 2007 agreement showed the home as having that value. [ 53 ] Ms. Frederickson and Mr.

Martyniuk testified that the conveyancing documents showed the value as $570,000 only because with a lower, but more accurate, value, the bank would not have granted the necessary mortgage financing after the January 2007 transfer. [ 54 ] I must say that I find it surprising and distasteful that the Court is told that a party has misrepresented the value of a property to a lending institution, and is then asked to accept that the actual value was different, in a way that advantages that party in the litigation. [ 55 ] But also, Ms. Frederickson’s position concerning the value of the home runs counter to Mr.

Martyniuk’s evidence of his experience that a bank will almost inevitably conduct a valuation of property before granting financing for which that property is given as security. Also, Mr. Frederickson testified that although he never saw or heard about the result of an appraisal of the home, he did open the door to an appraiser who arrived at the home, and, Mr.

Frederickson assumed, conducted such an appraisal. [ 56 ] In my view, to the extent that it affects the analysis of the issues for determination, the fair market value of the home in January 2007 should be considered to have been $570,000. [ 57 ] Starting with a fair market value of $570,000, and deducting the total of $342,940 and $49,854, plus an additional $20,000 to notionally represent the approximate effect of real estate commissions, the value of the equity Ms. Frederickson received under the January 2007 agreement was $157,206. 4.

WOULD EQUAL DIVISION OF THE PENSION BE UNFAIR, GIVEN THE UNEQUAL DIVISION OF THE VALUE IN THE HOME? [ 58 ] From the analysis I have just conducted, it is clear that under the January 2007 agreement Ms. Frederickson received very substantially more of the value of the equity in the family home than did Mr. Frederickson. [ 59 ] However, for several reasons it does not necessarily follow that the division of that asset was unfair, or that, as a result, Mr.

Frederickson’s pension should be allocated entirely or substantially to him. (I note in passing that the Court is not asked to pronounce directly on the division of the value in the home, because the January 2007 agreement preceded the triggering event, such that s. 56 is not engaged in relation to that asset.) [ 60 ] One such reason is that Ms.

Frederickson had responsibility for the care of the children, and it was both parties’ wish that she and the children remain in the home that was larger (and, logically, more costly to support) than was necessary for but one adult and two children. [ 61 ] Another such reason is that the evidence does not allow for a determination of the relative values the parties each received for their interest in the home as of the date of the s. 57 declaration, or the date of the trial. The home was sold in 2011 for $673,000. However, by that time Ms.

Frederickson’s new partner had acquired an interest in the home – the details of which were unclear in the evidence – and Mr. Martyniuk and Ms. Kee were no longer on title, having been “bought out” by Ms. Frederickson and her new partner in 2009. One cannot reliably determine, on the evidence, to what extent Ms. Frederickson may have benefited from a rise in the fair market value of the home between 2007 and the sale in 2011 – although it appears that there was certainly no loss in value. Nor can one reliably compare any such rise with the appreciation Mr.

Frederickson may have enjoyed in the value of the proceeds he received in 2007 as compensation for his interest. [ 62 ] A further difficulty exists in the fact that the only evidence of the value of Mr. Frederickson’s pension is as of December 1, 2006. The report of Mr. Michael Demner, dated May 23, 2013, indicates that a half-interest in the pension, based on the value accrued from the date of the marriage to December 1, 2006, and assuming retirement at age 65, had a lump sum capitalized value of $94,100 before taxes, or $78,100 after taxes. (Mr.

Demner also gave values assuming retirement at ages 55 and 56, but I conclude that, with the marriage breakdown, Mr. Frederickson’s expectations and plans have changed, and 65 is his realistic retirement date.) [ 63 ] There are several limitations to the valuation in the circumstances of this trial. [ 64 ] First, the lump sum capitalized value it provides is as of May 2013, and not as of the date of the triggering event or the date of trial. [ 65 ] Second, and likely with greater effect on the valuation, it is based on an assumption that Ms.

Frederickson’s interest in the pension accrued only to December 1, 2006, the approximate date of the separation. However, in a division under

Part 6 of the FRA , a spouse’s interest runs through to the “entitlement date”, which, in this case, is the date of the s. 57 declaration in August 2012. Joyce J.

provides a helpful

summary of the statutory and regulatory provisions governing pension division, in Smith v. Smith , 2008 BCSC 363 at para. 24 and following. In essence, a spouse’s proportionate share of the pension is determined according to a formula set out in the Division of Pensions Regulation , which, in turn, relates the total length of the member’s pensionable service to the length of the period between the marriage and the “entitlement date”. [ 66 ] It is logical to conclude that the lump sum capitalized value of Ms.

Frederickson’s interest in the pension based on accrual through to August 2012 would be substantially more than the value based on accrual through to December 2006. However, there is no basis at all in the evidence from which to estimate by how much. There is therefore no basis on which to compare the value of the reapportionment Mr. Frederickson now suggests with the value of Ms.

Frederickson’s larger share of the family home. [ 67 ] Delay between the separation and the triggering event is not, of itself, a basis for finding that an equal division of the pension as accrued between the marriage and the triggering event would be unfair: see Smith at para. 29 . [ 68 ] For the reasons I have given, the evidence is not sufficient to show that, as a result of the January 2007 agreement, an equal division of the pension, as accrued to the triggering event, would be unfair. [ 69 ] Since Mr.

Frederickson has therefore not met the burden of establishing that a different order should be made, the pension will be divided in accordance with

Part 6 of the FRA, with the “entitlement date” being the date of the s. 57 declaration in August 2012. [ 70 ] As Ms. Frederickson agrees, her CPP pension should also be divided on the same basis. 5. SHOULD MR. FREDERICKSON PAY RETROACTIVE CHILD SUPPORT? [ 71 ] The next question is whether Mr. Frederickson should pay retroactive child support. Ms. Frederickson seeks an order for retroactive child support back to 2007 in accordance with the Guidelines , as well as ongoing support through to the end of this month (June 2015) for M. and the end of August 2015 for J. [ 72 ] Ms.

Frederickson seeks support for M. and for J. over various periods through to the dates I have indicated on the basis that M. and J. were or are unable to remove themselves from the financial care of their parents because of education or training programs they were or are still pursuing. M., who is now 23 years of age, took a one-year training program as a hairstylist beginning in late 2013, and has worked as a stylist since she completed the program in late 2014, albeit for an income she hopes to increase. J., who is now 20 years of age, began a program in music production at Langara College in September 2014.

He expects to graduate in this coming July (July 2015), and then to return to work in rebar, which he work he has done before, while also developing a career in music production. [ 73 ] As I have noted, the parties agree that Mr. Frederickson paid some child support through the $36,500 lump sum he paid from the compensation he received for his interest in the family home, and also later by way of some monthly support. The evidence is then unclear and somewhat in conflict about when it was that Ms. Frederickson made Mr.

Frederickson aware that the lump sum amount would not represent his full obligation to the children under the Child Support Guidelines , and Mr. Frederickson then began to pay $110 per month in addition. Later -- and there is disagreement also about when this was -- Mr. Frederickson increased that amount to $288 per month to better reflect the Guidelines requirements. [ 74 ] Mr. Frederickson stopped paying monthly child support after October 2011. This was when the parties sought advice to help them move amicably toward a divorce, and it became apparent that they had different views about whether Ms.

Frederickson had an interest in Mr. Frederickson's employment pension. [ 75 ] There is no dispute about Mr. Frederickson’s income for the purposes of the Guidelines . Over the years, his income has risen from $63,000 in 2007 to $80,100 currently. [ 76 ] Although Ms. Frederickson’s income is not directly relevant at this stage of the discussion, I will mention that it was $33,000 in 2007, and also rose steadily to $59,600 in 2012. She estimates her income for each of the years 2013 and 2014 to have been $50,000, and her income for the year 2015 as being $63,500. However, Ms.

Frederickson has not filed a tax return for the past three years, and her financial disclosure in the proceedings is therefore incomplete. [ 77 ] The chart below sets out the additional child support Ms. Frederickson now seeks. The amounts shown in the chart rely on DivorceMate calculations provided by Ms. Frederickson’s counsel, based on the information I have just mentioned. The annual totals shown take into account the monthly amounts Mr. Frederickson has already paid in child support, and the lump sum he paid is deducted from the aggregate total at the foot of the chart.

The chart provides for child support for the two children over certain periods and not others; I will discuss those periods later in these reasons. 2007 M. and J. $11,424 2008 M. and J. $12,120 2009 M. and J. $11,016 2010 M. and J. J. only 9 months 3 months $9,207 $1,788 (M. turned 19 in September) 2011 J. only $6,058 2012 J. only $8,376

2013 J. only M. and J. 8 months 4 months $5,904 $4,772 (M. in training program for 4 mos.) 2014 M. and J. J. only 6 months 6 months $7,158 $4,428 (M. in training program 6 mos.) (J. 2 GED classes & working) 2015 J. only 8 months $5,992 (J. completes program in July) TOTAL 2007 - 2015: $88,243 LESS LUMP SUM PAID: $36,500 CHILD SUPPORT OWING: $51,743 [ 78 ] In addition to the conflict about when Mr.

Frederickson began to pay monthly child support, and about when he increased the monthly amount, there is also some minor disagreement -- and, in any event, considerable imprecision in the evidence -- about the start and end dates of the children’s post-secondary educational programs. I will work with the dates and amounts provided by Ms. Frederickson, as they are shown in the chart above. Those dates and amounts appear to provide, at least, a reasonably reliable framework. The evidence in this case does not allow for precision. [ 79 ] I note also that Ms.

Frederickson’s calculations, as reflected in the chart above, do not include support for M. after she turned 19, except during the ten months of her hairstyling program. Ms. Frederickson’s formal claim for support encompasses a much longer period, but, in my view, M. was not a “child of the marriage” except during the ten-month period of her training program. M. had an extensive period before her program in which to earn some money to contribute to her own support during the program, and she has been fully employed since completing the program.

There is insufficient evidence before me to allow for a conclusion that, despite M.’s full- time employment, she is nonetheless unable to remove herself from her parents’ financial care. [ 80 ] Mr. Frederickson submits that retroactive support should not be ordered because none of the factors outlined in D.B.S. that normally weigh in favour of such an order exist in this case.

He submits that he made good faith efforts to pay sufficient child support by way of the initial lump sum of $36,500, and topped up that amount with monthly payments when he came to realize that the lump sum amounted to less than the Child Support Guidelines would require over the period until the children reached the age of 19. He notes that he has kept Ms.

Frederickson well-informed of his income and financial circumstances, providing her annually with his tax returns and other financial documents, and that she nonetheless brought no application for child support until approximately two weeks before the trial, when she amended her pleadings. Mr.

Frederickson acknowledges that child support is the right of the child, not the payee parent, but he submits that, at this stage, when they are starting careers of their own, the children would receive no discernible benefit from a retroactive award, particularly since he has paid in full the sizeable costs of their post-secondary education, as well as other extraordinary expenses. [ 81 ] I see considerable merit in Mr. Frederickson’s submissions in all the circumstances, and do not find Ms. Frederickson’s explanation for her late claim to be a compelling one. Ms.

Frederickson contends that the matter of child support was always an issue between the parties. That may have been so, but it was an issue which Ms. Frederickson chose not to formally pursue. On the evidence, there is no compelling reason for her not to have done so at an earlier stage (even allowing for some confusion or oversight that may have taken place in relation to the formal filings). Ms.

Frederickson’s failure to provide complete and up-to-date tax information (presumably because of her failure to file tax returns over the past three years) does not help her position in this area, particularly since she seeks, among other things, a proportionate sharing of extraordinary expenses. [ 82 ] Another factor militating against a retroactive award is that the children benefitted indirectly from Mr. Frederickson taking a much smaller interest than Ms. Frederickson’s in the value of the family home, and thereby enabling Ms. Frederickson and the children to continue living in the home.

Although the January 2007 agreement that led to this result was not an agreement relating directly to child support, it indirectly contributed to the children's standard of living. [ 83 ] I note also that although M. was not yet 19 years of age when she travelled away from home for lengthy periods -- and, of course, Ms. Frederickson was required to maintain a home for her even during her travels -- the expenses Ms. Frederickson actually incurred for M.’s support during that period were necessarily reduced.

The evidence in this area is unclear and somewhat in conflict, but it appears that M. travelled at the age of approximately 17 and stayed with a relative in Alberta for roughly four to six months. Then, after coming home for something short of a couple of months, she travelled to Australia for almost a year, and, it appears, worked while she was there. Each of the parties testified that they sent M. some money from time to time during her travels when she requested it.

However, the amounts they each sent were entirely unclear in the evidence. [ 84 ] Even were I to conclude that an order for retroactive support should be made, I would not conclude that Mr. Frederickson should pay support at the full Guidelines table amount after the children turned 19, even when they were or are in full-time post- secondary studies. I reach this conclusion for several reasons. [ 85 ] First, Mr. Frederickson has paid very large extraordinary expenses for the children over the past three years, and has done so without seeking a contribution from Ms. Frederickson. For example, in 2013 Mr.

Frederickson paid a total of $14,850 in extraordinary expenses, consisting mainly of tuition fees for M. That amount also included driving lessons for J., as well as some other expenses. In 2014 Mr. Frederickson paid a total of $14,474, mainly in relation to tuition and computer supplies associated with J.’s studies, and also for some of J.'s counselling sessions. In the year 2015 to date Mr.

Frederickson has paid a total of $7,352 for extraordinary expenses. [ 86 ] Also, the evidence includes little reliable evidence or information about the efforts the children themselves have made to contribute to their own financial support. Each of the children has had extensive periods during which she or he was not involved in an

education or training program on a full-time basis or at all. Yet little is said in the evidence to allow for a determination of whether the children each made reasonable efforts in the circumstances to make a contribution toward their own financial support. [ 87 ] There is little evidence about the children's financial needs and their spending. Ms. Frederickson testified that she pays for bus passes for each of the children as they travel in and out of Vancouver for their courses or employment, as the case may be, and Ms. Frederickson also pays for the cell phone bills for each of the children.

Asked about on what M. spends the money she earns, Ms. Frederickson referred to dinners out and time with friends. The evidence in this area does not provide a sufficient basis for a conclusion that M. has financial needs that are not being met, or to which she cannot make a financial contribution -- if indeed M. cannot meet them entirely herself. [ 88 ] Furthermore, in the circumstances of these parties I would not view the children’s cell phone expenses and bus passes as extraordinary expenses. I make that observation because Ms.

Frederickson has suggested that those expenses should set off any recognition otherwise to be given to the extraordinary expenses Mr. Frederickson has paid for the children. [ 89 ] In all the circumstances there will be no order for child support on a retroactive basis. [ 90 ] I do not understand there to be a claim for child support on an ongoing basis. ADDITIONAL MATTERS [ 91 ] Those are my reasons. Is there anything else that needs to be addressed, or anything to be clarified? [ 92 ] MR. PATERSON: My Lady, on the issue of costs it would appear that success has been divided. Mr.

Frederickson failed to establish that the pension was part of the January 2007 agreement, which was one-half of this case, and Ms. Frederickson has failed to establish her claim for retroactive support, which was the other half of this case. So I am suggesting in the circumstances of this case and your decision that each party should bear his or her own costs. [ 93 ] THE COURT: Ms. Bowman? [ 94 ] MS. BOWMAN: Well, the child support issue I think arrives and becomes a more important claim in light of Mr. Frederickson's position on the pension issue.

So, for example, if the court found that that the pension was part of the parties' deal, then of course the benefit to the children having stayed in the house, it changes everything financially. So the claim needed to be made, in my submission, and because it was the key issue was his pension and whether it was in the agreement between the parties, I would say that costs should go to my client and perhaps at a reduced scale as a result. [ 95 ] THE COURT: Anything further, Mr. Paterson? [ 96 ] MR.

PATERSON: No, My Lady. [ 97 ] THE COURT: I view success as divided, and so the order will be that each party bear their own costs. [ 98 ] Anything further? [ 99 ] MS. BOWMAN: No, I think that is everything for me. Thank you, My Lady. [ 100 ] THE COURT: Mr. Paterson, anything? [ 101 ] MR. PATERSON: Nothing further. [ 102 ] THE COURT: Thank you. We will adjourn. H. Holmes J.