D.S.W. v. A.K.W., 2018 BCSC 910

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.S.W. v. A.K.W., 2018 BCSC 910 Date: 20180604 Docket: E9468 Registry: Chilliwack Between: D.S.W. Claimant And A.K.W. Respondent Before: The Honourable Madam Justice Young Reasons for Judgment Counsel for the Claimant: J. Dreyer Counsel for the Respondent: M. Lam Place and Date of Hearing: New Westminster, B.C. April 13, 2018 Place and Date of Judgment: Chilliwack, B.C.

June 4, 2018 Introduction [ 1 ] The claimant has applied by notice of application, filed November 23, 2017, for an order that the respondent pay increased child support to the claimant for the support of the children E., born in 2009 and L., born in 2007, retroactive to June 1, 2012. The claimant also seeks an order that the respondent pay his proportionate share of special and extraordinary expenses including tuition for private school and for both children’s psychoeducational assessments.

Although the claimant applied for a $5,000 fine to be imposed against the respondent for failure to provide financial disclosure and special costs, these applications were not pursued at the hearing. Background Information [ 2 ] The parties married in August 2004 and divorced in January 2012 when the claimant was pregnant with the second child. The claimant and the children moved from [name withheld], BC to [name withheld], BC in 2012.

The respondent remains in [name withheld] with his second wife and their four-year-old son. [ 3 ] A divorce order granted on January 4, 2012 contained a consent order for corollary relief (the “Divorce Order”). Pursuant to that Divorce Order, the claimant and respondent shared joint custody of the children and joint guardianship. The respondent was to have reasonable parenting time with the children including alternating spring break vacations, two weeks of summer vacation and one half of Christmas vacation.

To facilitate access, the claimant agreed that she would finance two one-way trips for the children to visit their father in [name withheld] annually. [ 4 ] The child support order contained in the Divorce Order made a finding by consent that the claimant’s income was $26,969 per year and the respondent’s income was $72,200 per year.

The respondent agreed to pay $500 every two weeks for the support and maintenance of the children commencing December 1, 2011 and continuing every two weeks thereafter until further agreement or court order. [ 5 ] The respondent was obliged to pay his proportionate share of special and extraordinary expenses including child care expenses, reasonable and necessary health related expenses, and extraordinary expenses for primary or secondary school education and other educational programs that meet the children’s particular needs as agreed upon by the parties in advance of the expense.

He was also to share expenses for extracurricular activities as the parties may expressly agree in advance of the expense or as determined by order of the Court. [ 6 ] By May 30 of each year, the parties were to provide each other with a copy of their most recent income tax return, notice of assessment if received, details of child tax benefits or similar benefits, particulars of the children’s special and extraordinary expenses

anticipated for the coming year, the most recent annual statement of earnings including over-time, and any other relevant information tofacilitate determination of the adjustment, if any, required to child support. [7] In the Divorce Order, the respondent agreed to pay retroactive child support of $2,500. [8] Since the Divorce Order was made, child support had not been reviewed until this application.

The Current Application [9] The claimant deposed that child support has not been reviewed since the Divorce Order because the respondent was reluctant todisclose his income. [10] The claimant deposed that the respondent advised her lawyer at the time of the divorce that his income was $72,200 for 2012but he refused to provide proof. [11] The respondent has now disclosed his income in the affidavit material in response to this application. His income has been asfollows: 2012 $113,6352013 $111,0472014 $103,4502015 $101,9782016 $141,1412017 $110,462 [12] The respondent works full-time for a mining company.

He works a four-day on/four-day off

schedule and as a result, has extratime available to pursue a private business. [13] The respondent started his own business doing snowmobiling tours. [14] The respondent lives in a home with a two bedroom basement suite available for rental. [15] The respondent’s wife suffered from a stroke a few years ago while she was in school and according to the respondent, is onlyable to work one day a week as a result of the residual effects of that stroke. [16] The claimant challenges the respondent’s evidence that he does not earn any money from his snowmobiling business and hiswife is only employed one day a week. [17] The claimant produced a copy of an Instagram post about the respondent’s snowmobiling business which suggests that it is asuccessful business and that the respondent’s wife spent the vast majority of her winters teaching riders how to snowmobile.

Thestatements the respondent’s wife makes about her capabilities on the snowmobile suggests that she does not have residual symptomsfrom her stroke. [18] The claimant also provides hearsay evidence that the respondent’s wife works more than one day a week. [19] The respondent did not respond to the second affidavit from the claimant. [20] In his affidavit, the respondent did produce some financial documentation from a snowmobiling business which discloses thatthe business makes a very modest gross income and no net income.

The highest income from sales was in 2016 when the gross incomefor the business was $20,321. The business does provide the respondent with an ability to write off some of his automobile expenses andentertainment expenses for his own snowmobiling truck and telephone. [21] I accept the respondent’s employment income as his Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) income forthe purposes of this application. The other evidence provided by the claimant suggests that the respondent may have the means to earnadditional income through his business and by renting out the suite in his home.

His wife may be capable of working more than hedeposes. These factors will be considered in assessing the respondent’s means to pay special and extraordinary expenses and retroactivesupport. Retroactive Child Support [22] The respondent has underpaid child support right from the beginning. The claimant’s counsel produced a chart calculating howmuch child support the respondent should have paid based on his actual income and has subtracted the amount that the respondentactually did pay.

Before I review those figures I will consider the law related to retroactive child support. [23] Since the original order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [Divorce Act], this is a variationapplication under s. 17 of the Divorce Act.

Section 17 of the Divorce Act says that an award of support may be varied prospectively orretroactively. Section 17(3) allows me to include in a variation order, any provision that could have been made under the original order. Iam also required to find that a change in circumstance as provided for in the applicable Guidelines has occurred since the making of achild support order. [24] In D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 S.C.R. 231, the Supreme Court of Canada said that in situations where

payor parents are found to be deficient in their support obligations to their children, it will be open for the courts acting pursuant to the Divorce Act to vary the existing orders retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable. [ 25 ] In D.B.S. , the Supreme Court of Canada said at para. 68: 68. ...

Accordingly even where the payor parent has made payments consistent with an existing court order, (s)he would not have been fulfilling his/her obligation to his/her children if those payments did not increase when they should have, according to the applicable law at the time. Thus the support obligation of a payor parent, while presumed to be the amount ordered by the court, will not necessarily be frozen to the amount ordered by the court. It is the responsibility of both parents to ensure that the payor parent fulfils his/her actual obligation, tailored to the circumstances at the relevant time period.

Where they fail in this obligation, a court may order an award that recognizes and corrects this failure. Such an award is in no way arbitrary for the payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already. [ 26 ] In making an award for retroactive child support a court should consider the four factors set out in D.B.S. , namely: (

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

b) whether there has been blameworthy conduct on behalf of the payor parent; (

c) whether the present circumstances of the child will be improved by a retroactive award; and (

d) whether hardship would be occasioned by a retroactive award Reasonable Excuse for Delay in Applying for Variation [ 27 ] The claimant addresses this issue in her second affidavit at para. 13. She notes that the respondent did not file a response to the notice of family claim. Her lawyer booked a court date to keep moving things forward. She was hoping to avoid the court date because she could not afford the legal fees quoted by her lawyer for attendance at court. Her lawyer called the respondent and had a discussion with him on November 24 and 25, 2011 about the need to provide income disclosure.

The respondent continued to refuse to provide any proof of income and verbally told her lawyer that his income was around $72,000. The respondent was encouraged by the claimant’s lawyer to retain legal counsel. The claimant accepted the amount of child support that the respondent was willing to pay. It was an increase from what she had been receiving before.

Her thought was that the respondent would be required to provide her with his updated income tax returns each year and so if there had been a significant change she could address it then. [ 28 ] Counsel for the claimant sent the respondent the claimant’s income disclosure on October 3, 2013 and requested income disclosure from the respondent. The letter also provided a breakdown of s. 7 expenses that the claimant had incurred on behalf of the children. The respondent ignored the letter.

The claimant’s lawyer sent a follow-up letter and the respondent did not respond to it. [ 29 ] On October 8, 2013, the respondent called the claimant and told her that he did not think it was any of her business to see his financial information and he would not supply it to her. He refused to contribute toward s. 7 expenses.

He went on to tell her that the $500 biweekly payment he was making for the children was more than enough to cover all of the children’s expenses and that she would never receive anything more from him. [ 30 ] The claimant deposed that at this point she could not afford to pursue the matter any further through the courts. [ 31 ] The first time the claimant saw the respondent’s proof of income was in 2016 when the respondent’s wife sent a copy of the respondent’s 2015 Income Tax Reassessment for the purpose of applying for a grant application for private school for the oldest child.

His income was substantially higher than the claimant had thought it to be. [ 32 ] The respondent deposed that that he did not object to providing the claimant with reasonable disclosure of his income. He deposed that he regularly gave the claimant verbal updates about his income which she seemed satisfied with. [ 33 ] The claimant denies this. At para. 33 of her second affidavit, she deposed that the respondent had not provided verbal updates as to his income. She deposed that she has not known what his income was and that is why she filed this application.

She further deposed that she made her intention to revisit child support clear on multiple occasions. The respondent has refused to discuss and contribute toward s. 7 expenses. He has failed to provide financial disclosure. [ 34 ] The claimant’s evidence makes more sense than the respondent’s evidence. I do not think she knowingly agreed to the respondent underpaying child support. On the basis of this evidence, I find the reason for the claimant’s delay was her lack of financial resources to retain counsel to vary the child support order.

I understand from submissions by counsel that the claimant sold her house in 2017 and therefore did have some money to retain counsel. I find she has a reasonable explanation for her delay. Blameworthy Conduct [ 35 ] I accept the claimant’s evidence that the respondent refused to provide financial disclosure. The respondent was under court order to provide this disclosure annually. I find his refusal to do so to be blameworthy conduct. Will the Children Benefit From a Retroactive Award [ 36 ] The children are young and attending a private school because they both have learning disabilities.

The claimant is paying for this private school out of her savings and is receiving inadequate child support. If the claimant did receive proper child support and

contribution toward special and extraordinary expenses then there would be less financial pressure on the claimant’s household which would benefit the children. Whether Hardship Would be Occasioned by a Retroactive Award [ 37 ] In addition to being responsible for paying child support to the children, the respondent has a new family. A large retroactive award will be difficult for him to pay. The respondent and his wife own a home and the respondent has retirement savings but these are not liquid assets. He has a healthy income but also has consumer debts. His wife has a modest income of $8,982 per year.

The respondent does also have some rental income and as mentioned earlier, the ability to write off some of his personal expenses through his company. A retroactive order could be tailored so as not to create significant hardship for the respondent's family. Decision [ 38 ] I find that a retroactive award is warranted. I must now decide the date to which the award should be retroactive and secondly, the amount of support that should be payable. Date of Retroactivity [ 39 ] According to D.B.S. , the starting date for a retroactive award could be:

a) the date of formal notice of the application to the payor parent;

b) the date when effective notice was given to the payor parent or;

c) the date when the amount of child support should have increased according to the applicable Guidelines tables. As a general rule, the date of effective notice when demands for financial disclosure or increased child support are made should be the date set for the retroactive award. [ 40 ] In this case, I find going back to the Divorce Order is appropriate because the respondent misled the claimant and her lawyer as to what his actual income was and did not correct this misstatement of his income. In fact, his income was approximately $40,000 a year more than what he disclosed.

The Respondent’s 2012 Income and Child Support Payable [ 41 ] In 2012, the respondent’s income was $113,635. A portion of that income in the amount of $5,175 was non-recurring RRSP income. The respondent paid $1,198 in union dues. I find that the RRSP amount should be included and the union dues should be subtracted from his total income to arrive at his Guidelines income of $112,437. According to the December 31, 2011 Guidelines tables, the respondent should have been paying $1,637 per month. Instead, he was paying $1,083 per month leaving a shortfall of $554 per month and arrears of $6,648 for the year.

The Respondent’s 2013 Income and Child Support Payable [ 42 ] In 2013, the respondent’s income was $111,047. The respondent did not provide a breakdown of what income comprised his total income. I am assuming that he paid union dues so I will subtract the same amount of $1,198 leaving the respondent with a Guidelines income of $109,849. According to the December 31, 2011 Guidelines tables, the respondent should have been paying $1,604 per month. He was paying $1,083 leaving a shortfall of $521 per month and arrears owing for the year in the amount of $6,252.

The Respondent’s 2014 Income and Child Support Payable [ 43 ] In 2014, the respondent’s income was $103,450. After I subtract his union dues of $1,093, the respondent had a Guidelines income of $102,357. According to the December 31, 2011 Guidelines tables, the respondent should have been paying $1,508 per month. He was paying $1,083 leaving a shortfall of $425 per month and arrears owing for the year in the amount of $5,100. [ 44 ] The claimant noted that during this year, the respondent was able to purchase an RRSP in the amount of $7,399.

The Respondent’s 2015 Income and Child Support Payable [ 45 ] In 2015 the respondent’s income was $101,978. After I subtract his union dues of $1,288, the respondent had a Guidelines income of $100,690. According to the December 31, 2011 Guidelines tables, the respondent should have been paying $1,487 per month. He was paying $1,083 leaving a shortfall of $404 per month and arrears owing for the year in the amount of $4,848. [ 46 ] The claimant noted that in this year, the respondent purchased an RRSP in the amount of $9,774.

His business earned $20,321 in gross earnings and the respondent purchased a sled for the business that cost $17,010. The Respondent’s 2016 Income and Child Support Payable [ 47 ] In 2016, the respondent’s income was $141,141. After I subtract his union dues of $1,654, the respondent had a Guidelines income of $139,487. According to the December 31, 2011 Guidelines tables, the respondent should have been paying $1,976 per month.

He was paying $1,083 leaving a shortfall of $893 per month and arrears owing for the year in the amount of $10,716. [ 48 ] The claimant noted that the respondent purchased $12,941 in RRSPs that year.

The Respondent’s 2017 Income and Child Support Payable [ 49 ] In 2017, the respondent’s income was $110,462 from his T4 slip. According to his sworn financial statement he earned other income of $5,334 from net rental income. He deposed in his financial statement that $137.86 should be subtracted for union and professional dues. This is clearly an error and I have to assume that is a monthly amount. I am deducting $1,644 in union dues.

After I subtract the union dues of $1,644, the respondent had a Guidelines income of $114,152. [ 50 ] According to the December 31, 2011 Guildelines tables, the respondent should have been paying $1,659 per month for 11 months. The Guidelines tables changed on November 22, 2017. For the month of December 2017 and onward, the respondent should be paying $1,706 per month. He was paying $1,083 per month until November 23, 2017 when Justice Verhoeven made a retroactive order that the respondent pay $1,716 per month retroactive to November 23, 2017. There is a shortfall of $576 per month for 11 months.

After Verhoeven J.’s order, the respondent may actually have been paying a $10 a month surplus leaving arrears owing for the year in the amount of $6,326. The Respondent’s 2018 Income and Child Support Payable [ 51 ] I anticipate that these Reasons will be released in early June 2018. The respondent should continue to pay $1,706 per month. Pursuant to an interim order, he has been paying $1,716 per month and so he has been accumulating a credit of $10 per month which can be applied toward his arrears.

Amount of Retroactive Award [ 52 ] As of the date of release of this Judgment, the respondent will owe arrears in basic child support in the amount of $39,048. Special and Extraordinary Expenses [ 53 ] Educational costs are at issue. The children attended a Christian school from 2013 to 2016 and the claimant incurred some modest tuition fees. In 2016 and 2017, E. has attended a private school and the claimant has incurred tuition costs of $1,510 per month.

In 2016, the respondent paid half of the tuition for E. [ 54 ] In 2017, the claimant made the decision to put L. in private school and now she incurs $3,040 per month tuition for private school. The respondent refuses to contribute. The respondent deposed that the claimant unilaterally decided to move L. from a public school where he started kindergarten to be homeschooled and then to attend private school. [ 55 ] The respondent agrees that E. has learning disabilities. The respondent himself has the same learning disability. The respondent does not acknowledge that L. has a learning disability.

L. has displayed some behavioural issues which the respondent believes can be addressed through counselling. [ 56 ] The claimant has produced psychoeducational reports for both children. These reports clearly diagnose both children with learning disabilities. [ 57 ] The private school the children attend is an accredited independent school for children with learning disabilities. There are only 47 students enrolled in the school and the school teaches grades 3 to 7. There 18 staff members all of whom specialize in working with children with learning disabilities. [ 58 ] Previously E. attended a Christian school.

L. attended the same Christian school part-time and was part-time homeschooled because he was too disruptive in the classroom. The claimant made the decision to enroll the children in the Christian school because it offered significantly smaller classes and more one-on-one teacher-student time for the children. [ 59 ] The claimant did approach the respondent about her desire to have the children attend the Christian school and he “flat out rejected this and refused to share the cost”.

The claimant did not pursue him for his proportionate share because the cost of doing so would have been higher than the cost of paying for the schooling herself. [ 60 ] Pursuant to para. 3 of the Divorce Order, the parties share joint guardianship.

The parties are to try to reach an agreement concerning important issues affecting the children including health, education, religious instruction, and general welfare of the children but if they disagree, despite their best efforts, pursuant to para. 3(D), the claimant has the right to make such decision and the respondent has the right to seek a review of the decision if he considers it to be contrary to the best interest of the children. [ 61 ] Although the respondent has not made a formal application to set aside the decision, he is challenging the necessity of private school in his response to this application. [ 62 ] With respect to special and extraordinary expenses for education programs, the parties are to share these expenses in proportion to their incomes as agreed upon by the parties in advance of the expense (para. 5(B)(iii) of the Divorce Order). [ 63 ] In 2016, the respondent paid 50% of E.’s tuition at private school for the 2016/2017 school year although he did tell the claimant at the time he could not afford to have E. attend that school.

He suggested other schools. He did pay for half of E.’s educational assessment. [ 64 ] The respondent deposed that the claimant never asked him to contribute to the children’s educational expenses at the Christian school. The claimant directly denies this and provides a copy of an October 3, 2013 letter from her lawyer to the respondent asking that

he contribute to L’s psychoeducational assessments and tutoring and tuition for a Christian school. [ 65 ] The respondent agrees that E. needed extra help with school and researched programs in the [name withheld] area. He located a school that provided a 10 week fast-forward program designed to help children who struggle with reading. [ 66 ] The claimant attached emails from the respondent and his wife where they acknowledge that the private school sounded great for E. and they would find a way to share in the cost.

They signed the re-registration for the 2017/2018 school year. [ 67 ] At the time the claimant made the decision to put E. in private school, he was reading four grades behind in school and struggling with his writing. She did not believe that the fast-forward program was suitable for him and did not think it provided for ongoing difficulties she was observing with his education. It was a 10 week afterschool program work-at-your-own-pace but did not provide support in the school setting. [ 68 ] L. had a difficult time in school from kindergarten onward. He moved kindergartens in the middle of the year.

His teachers experienced him as being defiant and disrespectful which was contrary to the way he behaved at home. L. experienced several episodes of defiance while in kindergarten. Concerns reported were incidents of him hiding under furniture, refusing to comply, attention-seeking oppositional and defiant behaviour including rough play during recess, and tantrums in class. [ 69 ] The psychoeducational assessment prepared in June 2013 revealed L. to be a very bright but sensitive child which likely resulted in him being very wounded and as a result, reactive to his kindergarten experience.

The assessor believed that L. experienced a great deal of stress in school. He has a gifted learning profile but when overwhelmed, he reacted negatively. It was her assessment that his learning needs were not being fully accommodated in the structure of a regular classroom. The assessor supported the claimant’s decision to homeschool L. in Grade 1. [ 70 ] The claimant was also concerned about the way the school chose to discipline L. He had a tendency to run away from school and on the last day that L. attended the school, two male teachers restrained him to prevent him from running.

He was very upset by the event and hid under a blanket, tore off his school uniform and said he would never go back to school and that he hated school. The claimant did not take L. back to the school after that event because it was such a negative experience for him. It was her hope that after a year of homeschooling L. would have a more positive feeling about schoolwork and himself. [ 71 ] Between Grades 1 and 3, L. was homeschooled in conjunction with the Christian school’s distributed learning program. He attended two regular school days per week and the remainder of the week was spent at home.

He was fully homeschooled in Grade 4. In 2017, the claimant had a further psychoeducational assessment of L. to assess his ongoing academic struggles and to help her make an informed decision about his educational placement and planning. By this time the claimant was concerned because L. did not pay attention, made careless errors, and gave up easily with difficult tasks. He did not follow instruction and failed to finish homework. He took a long time to complete work and it was often incomplete. [ 72 ] The assessment said that L. demonstrated considerable variability in his cognitive ability.

He has strong intellectual reasoning ability but had processing deficits in working memory, processing speed, and some aspects of executive functioning. He displayed weakness in visual fine motor integration and motor coordination. The processing difficulties were found to undoubtedly impact his acquisition of academic skills. L. experienced unexpected underachievement in mathematics and aspects of written language. He qualifies for a diagnosis of learning disability despite his average or above average cognitive ability.

He should have an individual education plan. [ 73 ] E. has been doing very well at the private school and the claimant made the decision to enrol L. in the same school so that he would get specialized attention for his learning disability. Her decision was well thought out. L. was struggling academically because of his learning disabilities and had a very negative experience in the public school system. In order to support his educational and emotional needs, the claimant believed it was in his best interest to go to a small school with specialized attention in a small student to teacher ratio.

She believed that this was the best environment for L. to reintegrate himself into the public school system. [ 74 ] The respondent submits that there is no evidence that the public school system cannot accommodate the boy’s educational needs. His counsel drew my attention to A.D. v.

A.P. , 2016 BCSC 2023 where Justice Kent found that the fact that the parents had substantial debt and could not realistically afford the cost of private schooling, combined with the complete absence of any evidence as to the inability of the public school system to accommodate the children’s needs, led him to the conclusion that private schooling was either necessary or reasonable in the circumstances of that case. [ 75 ] In J.D.G. v.

J.J.V. , 2016 BCSC 2389 , Justice Fleming found that the psychoeducational assessment did not recommend private school and there was no evidence that the public school could not accommodate the child’s learning difficulties. She approved Kumon tutoring on an ongoing basis for the child but concluded it was not reasonable to include the cost of tuition as an extraordinary educational expense in circumstances where she imputed income of $60,000 to each parent. There was some assurance that extended family would assist in allowing the child to remain at the private school.

That evidence is not available to me in the present case. [ 76 ] I distinguish these cases on the basis of the financial situations of the parties. There is also fairly clear evidence in this case that these children did not succeed in the public school system. L. in particular had a very negative experience and had developed a strong aversion to public school. He was displaying distress in kindergarten and the incident at the end of that year was a dramatic display of distress.

In my view, the claimant reacted appropriately by withdrawing him from public school temporarily and homeschooling him. [ 77 ] I have read both psychoeducational reports and I accept the opinion of the assessors. I find that it is in the children’s best interest to attend this private school. It will give them the opportunity to develop learning strategies to help them cope with their learning disabilities in a supportive environment.

Hopefully this experience will shift L.’s negative impressions of school as well. [ 78 ] The main concern I have is the affordability of private school based on the relative incomes of these parties. [ 79 ] I have set out the respondent’s income information above. The claimant is employed as a production manager for a greenhouse

company and currently earns $63,531 per year. She has not re-partnered and she has recently sold her home and is renting a home for herself and the children. She owns a partially built home with another family member on a lot conveyed by her parents. She is using the net proceeds of sale from her former home for the construction costs and she owes her parents $275,000 for the lot that she is building on. She has financed the psychoeducational assessments, both children’s schooling costs, and legal fees from the sale proceeds of her home. [ 80 ] The private school the children attend only goes up to Grade 7.

E. is completing Grade 6 and therefore will have one further year at the private school. L. is completing Grade 5 and will have two further years at the private school. It is the claimant’s intention to enroll both children in public school for middle school and high school. They will likely require tutoring and additional psychoeducational assessments prior to attending college. [ 81 ] The cost is $3,040 per month to have both children attend school for ten months of the year.

The cost should be shared on a proportionate basis. [ 82 ] Based on their current income, the respondent should be paying 61.31% of this cost and the claimant should be paying 38.69%. The respondent’s share for ten months of the year would be $1,864 per month. If that was stretched over 12 months of the year, the respondent’s proportionate share would be $1,553 per month. [ 83 ] The respondent’s monthly budget already exceeds his reported income and does not factor in any income earning potential from his wife or his business and his rental income.

I appreciate that ordering the respondent to pay his children’s private school fees will cause his family financial strain. It is possible that the only way they can meet this obligation is to go further into debt. That is exactly what the claimant has done for the last two years in order to ensure that the children have the best opportunity in school. [ 84 ] I believe the respondent has some financial flexibility which he does not disclose. He has a long history of underreporting income. In fact, his current financial statement underreports his annual employment income by $10,000.

I am mindful that while he was underpaying child support, he was contributing to his RRSP and buying sporting equipment for a non-profitable business instead. [ 85 ] It is hard to assess the household income of the respondent. The Instagram post from the respondent’s wife and her lengthy articulate correspondence with the claimant suggests to me that she’s far more capable than she was when she was last assessed after her stroke. It is not her obligation to pay any portion of this child support but she likely could contribute more to the household income of the respondent than she is currently reporting.

The respondent’s business has to be providing some benefit for him or he would not have been running it for the last seven years. If he is not removing income from the business he has the benefit of writing off personal expenses through the business plus funding his winter entertainment. It is likely that the vehicle expenses he lists in his Form F8 Financial Statement are actually paid by the business and is also likely that the telephone expenses and some rental expenses claimed by the business are reducing the respondent’s personal expenses. [ 86 ] Private school for the children is not a luxury.

They require special educational attention and I find that it is critical that they get this intervention now. It is not fair that the claimant has had to pay this on her own. [ 87 ] I will order that the respondent contribute 61.31% of the private school tuition fees. I will make some accommodation for the payment of arrears to enable him to do so over the next two years. Retroactive Award for Special and Extraordinary Expenses [ 88 ] In P.V. v.

D.B. , 2007 BCSC 237 , Justice Russell concluded that the principles for retroactive child support articulated in D.B.S. applied to the determination of retroactive s. 7 expenses. [ 89 ] There is no doubt that the private school tuition and psychoeducational assessments are extraordinary in that they are not expenses that the claimant can reasonably cover from her income and child support. I have also already determined that the private school expenses are necessary and should be paid by both parties. The respondent did request contribution for the Christian school and for the private school tuition.

I find the respondent refused to pay the Christian school tuition and he did pay one year of private school tuition but when faced with having to pay tuition for both children, he chose to pay nothing. [ 90 ] I am backdating this special and extraordinary expense to the dates when they were incurred. [ 91 ] For the purpose of assessing the parties percentage share of expenses I accept the claimant’s evidence of her income as follows: 2013 $57,790 2014 $64,689 2015 $62,941 2016 $72,797 2017 $70,397 [ 92 ] The combined income of the parties and percentage sharing of special and extraordinary expenses are as follows: 2013 $167,639 Percentage sharing 66/34% 2014 $167,046 Percentage sharing 61/39% 2015 $163,631 Percentage sharing 62/38% 2016 $212,284 Percentage sharing 66/34% 2017 $184,549 Percentage sharing 62/38% [ 93 ] The cost of a Christian school and the respondent’s share is as follows:

[ 93 ] The cost of a Christian school and the respondent’s share is as follows: 2013 $1,336 Respondent’s share - $882 2014 $3,420 Respondent’s share - $2,086 2015 $3,470 Respondent’s share - $2,151 2016 $3,270 Respondent’s share - $2,158 [ 94 ] The cost of psychoeducational assessments and private school tuition has been as follows: L.’s psychoeducational assessment $1,500 E.’s second psychoeducational assessment $1,500 E.’s 2016 tuition $15,100 E. and L.’s 2017/2018 ten months tuition $30,400 Total $48,500 Respondent’s percentage share of total based on 62% $30,070 Minus contributions by the respondent -$6,725 Retroactive award $23,345 [ 95 ] The respondent currently owes arrears of $39,048 for basic child support and $23,345 special and extraordinary expenses totaling $62,393 and he is being ordered to pay ongoing child support and special extraordinary expenses of $3,259 per month for 2018/2019.

That amount will reduce to approximately $2,486 per month the following year once E. has completed Grade 7. Nonetheless I see no ability for the respondent to pay these arrears while he is incurring the high cost of private school. Therefore I order that any enforcement of the arrears be suspended for a period of three years at which time hopefully the respondent can negotiate an instalment payment through the Family Maintenance Enforcement Program to pay off the arrears. The current payments of child support and special and extraordinary expenses will, of course, be enforceable.

Costs [ 96 ] The claimant has been successful in this application and is entitled to her costs for two half days of contested hearing in the amount of $2,000. This amount will not be enforceable for a period of three years. “Young J.”