L.M.S. v. D.E.S., 2003 BCSC 445

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.M.S. v. D.E.S., 2003 BCSC 445 Date: 20030325 Docket: E002982 Registry: Vancouver Between: L.M.S. Plaintiff And D.E.S. Defendant Before: The Honourable Mr. Justice Parrett Reasons for Judgment In Chambers Counsel for the plaintiff: M. Wood Counsel for the defendant: D.T. Paterson Date and Place of Hearing: July 12, 2002 Vancouver, B.C. INTRODUCTION [ 1 ] The parties bring cross applications, pursuant to R. 18A, seeking final resolution of various issues related to their marriage. [ 2 ] In her application filed July 11, 2002, the plaintiff seeks orders that: 1.

The Plaintiff and the Defendant shall have joint custody and joint guardianship of the children of the marriage, R.J.S. born […], 1991; and S.M.S. born […], 1996. (the “Children”) 2. The plaintiff and the Defendant shall have the Children in his or her care on alternating weeks from Sunday at 8:00 p.m. until the following Sunday at 8:00 p.m.

3. The parties shall share access to the Children on holidays as follows:

a) each party shall have the Children two consecutive weeks in July and two consecutive weeks in August;

b) each party shall have the Children one half of the Christmas school break with the Plaintiff having the Children every second year from December 26 until January 1 commencing 2002, and in alternate years from December 20 until December 26 commencing 2003;

c) each party shall have the Children one half of the Easter holidays;

d) each party shall have the Children one half of the Spring Break unless one party plans to take the Children on a trip and gives the other party one month’s notice, in which case the other party shall be entitled to have the Children for the full Spring Break the following year. 4. The Defendant shall pay to the Plaintiff child support for the Children; 5. The Defendant shall pay periodic or, in the alternative, lump sum spousal support to the Plaintiff; 6. There be a determination of family assets and a declaration of ownership, right of possession and division of family assets and other property; 7.

The family assets or other property at issue be reapportioned in favour of the Plaintiff; 8. The defendant shall pay costs to the Plaintiff; and 9. Such further and other relief as to this Honourable Court may deem just. [ 3 ] In his application filed the same date, the defendant seeks orders that: 1. Subject to

Section 17 of the Divorce Act (Canada) , the Plaintiff and the Defendant, who were married at Richmond, British Columbia, on July 21, 1990, are divorced from each other, the divorce to take effect on the 31 st day after the date hereof. 2. Final Orders concerning custody, access and child support on the terms of the Master Tokarek Order, paragraphs 1 through 5, of April 30, 2001, attached as

Schedule “A” to this Notice of Motion. 3. An order that, before either party places the children, or the child, of the marriage in a daycare, the other party shall have the option of caring for the child or children. 4. An Order that both parties shall maintain the children of the marriage as beneficiaries of his/her medical, dental and extended health insurance plans available through his/her employment. 5. An Order that the 95.82 shares of Telus in the name of the Defendant shall be divided in specie so that the Defendant transfers 47.91 Telus shares to the Plaintiff.

6. An Order that the net proceeds of sale from the parties’ former matrimonial home in the approximate sum of $14,837, together with accrued interest, in the trust account of Mary E.B. Wood, Barrister and Solicitor, shall be forthwith divided equally between the Plaintiff and the Defendant. 7. An Order that the parties’ Registered Retirement Savings Plans (approximately $42,000 in the Defendant’s RRSP and approximately $15,300 in the Plaintiff’s RRSP) shall be equalized using the spousal rollover provisions of the Income Tax Act and CCRA Form T2220. 8.

An Order that the 147 shares of Clarica Inc. in the name of the Defendant shall be divided in specie so that the Defendant transfers 74 Clarica shares to the Plaintiff. 9. An Order that certain case assets, namely: (

a) Clarica cash value in the name of the Defendant $10,500 (

b) Clarica cash value in the name of the Plaintiff 2,500 (

c) Year 1999 income tax refund in the name of the Plaintiff 1,739 (

d) Clarica policy refund received by the Plaintiff 1,700 be equalized by the Defendant paying to the Plaintiff the sum of $2,280.50. 10. An Order that the Defendant’s Telus Pension be divided pursuant to

Part 6 of the Family Relations Act with the Plaintiff’s entitlement dates being the date of the marriage (July 21, 1990) and April 30, 2001 when the Court granted a

Section 57 Declaration. 11. An Order that the Plaintiff’s claims to spousal support shall be dismissed. 12. An Order that the Plaintiff shall forthwith deliver up to the Defendant his banknote collection (of nominal value) containing less than 20 banknotes. 13. An Order that each party shall be the sole owner of the assets in his/her possession. 14. An Order that the Plaintiff shall pay costs to the Defendant forthwith after taxation thereof. 15.

Such further and other relief as to this Honourable Court seems meet [sic]. [ 4 ] It is obvious from the relief sought, as set out in these notices of motion, that the parties are essentially seeking final resolutions of all aspects of their relationship under the

summary trial process envisioned by R. 18A. Such a process is specifically contemplated by the provisions of R. 18A(1)(c).

[ 5 ] At the hearing on July 12, 2002, the plaintiff, while herself seeking relief under R. 18A, raised specific objections with respect to significant aspects of the defendant’s financial disclosure.

In light of that position, I ordered additional financial disclosure. [ 6 ] On September 13, 2002, the defendant filed that additional disclosure by way of affidavit and on November 13, 2002, the plaintiff filed her submissions with respect to that material. [ 7 ] At the close of the hearing on July 12, 2002, having been satisfied with respect to the statutory requirements, I granted the divorce requested and a joint custody order. BACKGROUND [ 8 ] The plaintiff is 38 years of age and was born on […], 1965.

The defendant is 43 years of age and was born on […], 1959. [ 9 ] The parties began a common law relationship in 1987 and married on July 21, 1990. They separated on May 31, 2000, ending a 13 year relationship. Two children were born of this union - R.J.S., born […], 1991, and S.M.S., born […], 1996. [ 10 ] Although the parties separated in May 2000, they continued to occupy the same residence until the end of November 2000. This interlude has yielded both the expected level of disagreement and significantly conflicting affidavit evidence which is, for the most part, irrelevant to the issues before the court.

These affidavits yielded such important information as the plaintiff’s assertion that on October 10, 2000, the defendant awakened the plaintiff by “ . . . turning on the lights and pulling the pillow out from under my head, called me names, grabbed me and then shoved me out of bed”. [ 11 ] The inclusion of such material within these court proceedings, given the issues and the legislation, serves little purpose other than to inflame emotions between the parties and reflects badly on both those parties and the lawyers who are responsible for drafting such material and placing it before the court.

DIVISION OF ASSETS [ 12 ] The plaintiff wife seeks a reapportionment in her favour and a 65% interest in the family assets. The defendant, in turn, submits that there should be an equal division of those assets. [ 13 ] The assets in this case are modest consisting of the following: House Proceeds $15,100 Mr. D.E.S.’s Sun Life Policy (Cash surrender Value) 12,960 Ms. L.M.S.’s Clarica Policy (Cash surrender value) 3,340 Disposal of Telus Shares (April 18, 2000) 9,958 Mr. D.E.S.’s Sun Life Shares (227 shares @ $27.10/share) 6,151 Mr. D.E.S.’s Remaining Telus Shares (95.82 shares @ $16.07/share) 1,540 Mr.

D.E.S.’s RRSP with Coast Capital 41,330 Ms. L.M.S.’s RRSP with Royal Bank 16,500 Mr. D.E.S.’s Telus Pension [ 14 ] Mr. D.E.S. is employed by Telus as a lineman and earns on the order of $60,087 per annum. The plaintiff is employed full time as a legal secretary, with a Richmond law firm, with net employment earnings (in 1997, 1998 and 1999) of $31,200. Her most recent affidavit discloses that her income is now $36,000 per annum. [ 15 ] One of the assets set out above is deserving of some comment. In his affidavit sworn June 10, 2002, the defendant swore, in paras. 19 and 20, that: 10.

Now attached and market Exhibit “A” to this my Affidavit is a 2-page

summary of my Telus Share holdings for the period April 20, 2000, to December 30, 2000. I had the same number of shares on April 17, 2000 , when the Plaintiff spouse and I separated as I did on April 20, 2000, when that Statement begins. 20. I am asking that my Telus shares be divided in kind so that, when I transfer 47.91 Telus shares to the name of the Plaintiff spouse, the balance of my Telus shares become my sole property.

[ 16 ] The

summary of the defendant’s Telus share holdings referred to in para. 19 is a Statement of Account, apparently produced by Telus, covering the period from April 20, 2000 to December 30, 2000. This statement was provided in response to repeated demands that he provide such a statement for the time period covering January 1, 2000, to December 31, 2000. The opening entry on this statement reflects an opening balance on April 20, 2000 of 95.8217 shares.

The 47.91 shares reflected in para. 20 of the defendant’s affidavit is one-half of that opening balance. [ 17 ] The plaintiff replied to the defendant’s affidavit with her own affidavit sworn June 29, 2002. In that affidavit are found the following passages: 23. According to a Statement of Participation dated December 31, 1999 the value of the Defendant’s BCT.Telus Employee Share Purchase Plan was $12,616 as at December 31, 1999. A true copy of the Statement of Participation dated December 31, 1999 is marked Exhibit “D” and attached to my Affidavit. 24.

According to a printout of the Defendant’s TELUS Employee Share Plan the value of the Defendant’s TELUS Employee Share Plan is marked Exhibit “E” and attached to my Affidavit. 25. Sometime between January 1, 2000 and April 30, 2000 the Defendant withdrew approximately $10,000 from his TELUS Employee Share Plan. During this period the Defendant and I were experiencing marital problems. The Defendant has been asked to provide a statement showing the transactions on his TELUS Employee Share Plan for the period between January 1, 2000 and April 30, 2000 but he has refused to comply. 26.

The Defendant declared in his Financial Statement sworn February 26, 2001 that he received $10,000 from the sale of TELUS shares in 1999 and 2000 and that he used the sale proceeds to finance RRSP purchases and home improvements. The Defendant did not use the $10,000 that he received from the sale of the TELUS shares in the period between January and April 2000 to do home improvements or purchase RRSP(s). 27. The Defendant has refused to provide an accounting of the $10,000 that he received from the sale of the TELUS shares just prior to our separation.

The Defendant did not deposit the sale proceeds into our joint account with Richmond Savings Credit Union. [ 18 ] Mr. D.E.S., in turn, replied to the plaintiff’s June 29, 2002 affidavit by a further affidavit sworn July 8, 2002. [ 19 ] In the 32 paragraphs of this affidavit, Mr.

D.E.S. replies to the plaintiff’s affidavit, often paragraph by paragraph, yet he never responds to the questions raised by paras. 23 to 27. [ 20 ] In his affidavit filed September 13, 2002, in response to the Court’s direction as to further financial disclosure, the defendant does little more than exhibit some additional financial documents. Of more importance, it offers no explanation for the contents of Exhibit D. This document is a statement headed “Telus Employee Share Plan Statement of Accounts”. This statement is identical in form to that attached to his affidavit of June 10, 2002.

The difference is that it covers the period from January 1, 2000 to December 31, 2000. The entries on this statement show that, contrary to his affidavit, he did not have the same number of shares on April 17, 2000 when they separated as he did “ . . . on April 20, 2000, when the [earlier] statement begins”. [ 21 ] What the latest statement reveals is that, on April 6, 2000, he, in fact, held 337.4378 shares, not 95.8217 shares; and that on April 18, 2000 he withdrew 246.0025 shares and received $9,958.18. Mr. D.E.S. has offered no explanation for this transaction or his previous affidavit evidence.

Absent some explanation, it appears that the defendant obtained a statement beginning on April 20, 2000 for the purpose of concealing the transaction and supporting the false evidence found in para. 19 of his affidavit of June 10, 2000. I specifically find that the 246.0025 shares disposed of on April 18, 2000 were family assets disposed of the day after separation. Under the principles established in Newson v.

Newson [1] , a compensation order can be made, but in this case, given the modest asset base, it is appropriate to include those shares within that asset base and credit the defendant with having received that asset as a portion of his share of those assets. THE CLAIM FOR UNEQUAL DIVISION [ 22 ] The plaintiff, in this case, seeks an unequal division of the assets; 65% to her with the remaining 35% going to the defendant. The primary submission advanced in support of an unequal division is that it would be unfair if she were to leave this relationship with two children and only $300 per month in child support. Ms.

Wood goes on to submit that the plaintiff has suffered economic hardship from the breakdown of the relationship because if she remains single she will be unable to save or to own her own home. [ 23 ] The approach to the division of matrimonial property begins with the presumption established in s. 56 of the Family Relations Act [2] . The provisions of s. 56(1) establish an entitlement in each spouse “ . . . to an interest in each family asset . . .” upon the

happening of one of the specified “triggering events”. Under s. 56(2), it is declared that:

(2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common. [ 24 ] In appropriate circumstances, the court may reapportion the assets or a particular asset. The application for judicial reapportionment is made under s. 65: 65(1) If the provisions for division of property between spouses under

section 56,

Part 6 or their marriage agreement, as the case may be, would be unfair having regard to (

a) the duration of the marriage, (

b) the duration of the period during which the spouses have lived separate and apart, (

c) the date when property was acquired or disposed of, (

d) the extent to which property was acquired by one spouse through inheritance or gift, (

e) the needs of each spouse to become or remain economically independent and self sufficient, or (

f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse, the Supreme Court, on application, may order that the property covered by

section 56,

Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.

(2) Additionally or alternatively, the court may order that other property not covered by

section 56,

Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse. [ 25 ] The plaintiff’s claim for an unequal division, in this case, arises, she submits, under s. 65(1)(e). There is no doubt that, in the present case, a discrepancy in income exists between the two parties. This was outlined earlier in these reasons at para. 14. [ 26 ] The plaintiff is employed as a legal secretary with a Richmond law firm. She has been employed throughout the marriage with the exception of two six month maternity leaves surrounding the birth of the couple’s two children.

At the time of their marriage, the plaintiff was working full time as a legal secretary for a notary public. After the birth of R.J.S. in 1991, she returned to that employment before moving to full time employment with a law firm a few years later. After taking maternity leave at the time of S.M.S.’s birth, she returned to full time employment with the same law firm where she has remained since sometime in late 1996. [ 27 ] The plaintiff’s work

schedule is 9:00 a.m. to 5:00 p.m., Monday to Friday. In addition, she has been, and remains, very active in organized sports which she plays on a regular basis. [ 28 ] While there is some conflict in the affidavit material, I have no difficulty concluding that child care responsibilities in this relationship were shared from a very early stage with the plaintiff continuing both her full time employment in her chosen field and her sporting activities.

The defendant supported her in these pursuits by assuming a significant part of the child care responsibilities. [ 29 ] I do not accept the plaintiff’s assertion that she was the primary caregiver for the children and find that, on the balance of probabilities, those responsibilities were shared equally. [ 30 ] The contrast between the situation in the case at bar and the “traditional marriage” situation is evident from the principles enunciated in relation to spousal support in Moge v. Moge [3] . Those principles have found expression in many subsequent decisions, including Lodge v.

Lodge [4] where our Court of Appeal considered the application of those principles in the context of what was then s. 51(1)(e). Prowse, J.A., at p. 266, set out the circumstances before the Court in these words: She emphasizes that she was out of the work force for many years during the marriage because of her commitment to raising the children and taking care of the home, and that she is now forced to re-enter that work force with a high school education and limited marketable skills. Mr.

Lodge, on the other hand, retains not only the skills he built up over the course of the marriage, but also a successful business which is well-established and producing a good income. At p. 267, she continued:

I am persuaded, however, that the learned trial judge was plainly wrong in failing to reapportion the 91A Street property in Mrs. Lodge’s favour under s. 51(

e) of the Act . I come to this conclusion on the basis that the learned trial judge gave no consideration to the fact that Mrs. Lodge was out of the work force raising the children and caring for the home for the better part of the 19-year marriage. His reasons fail to record the significance of the fact that, when the marriage ended, she was 40 years of age, with only a grade 12 education and limited and dated working skills . It is noteworthy that her anticipated income as of the date of trial was $1,000 per month.

This is in stark contrast to her husband, who left the marriage with 19 years of experience in his trade and a variety of marketable skills he was able to accumulate during the marriage, in part at least, because Mrs. Lodge was taking primary responsibility for the children and the household . He took with him a successful business which, as already noted, was producing income in the range of $60,000 a year. In my view, the learned trial judge erred in approaching his analysis under s. 51(

e) by focusing almost exclusively on whether Mrs. Lodge would be able to meet her current monthly expenses by a combination of her modest income, interest from projected investments, and maintenance from Mr. Lodge. While this type of analysis is appropriate to determine an adequate level of periodic maintenance, it completely overlooks the capital loss suffered by Mrs.

Lodge during the marriage in terms of her ability to become and remain economically self-sufficient if and when the marriage came to an end . (emphasis added) [ 31 ] The emphasis found in these passages relates to a finding of economic disadvantage arising from the marriage. In Lodge , Prowse J.A. went on to make it clear that the views expressed by L’Heureux-Dubé, J. with respect to “compensatory” maintenance under the Divorce Act in her decision in Moge v. Moge were also relevant to reapportionment considerations under the Family Relations Act . [ 32 ] In Toth v.

Toth [5] the Court of Appeal had before it a similar situation. After considering both Moge and Lodge , Taylor, J.A. concluded at para. 38-39: 38 The emphasis of the “compensatory” approach, adopted in Moge v. Moge with respect to periodic maintenance under the Divorce Act , and in Lodge v.

Lodge with respect to reapportionment of family assets under the Family Relations Act , is in both cases on a wife’s loss of opportunity to acquire or advance in a calling, suffered as a result not simply of the marriage but rather of unequal assumption of child-raising and housekeeping duties during the marriage, and her consequently diminished or limited earning capacity on marriage breakup .

The compensation is not, of course, for breach by the husband of the arrangement under which his wife can be said to have assumed these duties - that is to say to continue to provide a home and support for her thereafter - because that would be a fault-based form of compensation, and fault can play no

part in determining the allocation of assets on matrimonial break-up; the same compensation will be due where the marriage is terminated by the actions of the wife as when the husband is responsible for its termination. Nor can the purpose of the compensatory approach be to achieve greater equality of income as between previously-married parties on the basis of a presumption that the one with the larger earning capacity must be held responsible for the lower earning capacity of the other.

There must be an evidentiary basis for compensation in the facts of the particular case, and any compensation must, of course, meet the test of fairness to both parties . 39 The important first question in this difficult area, it seems to me, will be whether in the context of the division of family assets it can be said, in the words of s. 51(e), that the allocation of child-raising and housekeeping functions more heavily, or wholly, to one spouse has [sic] in the particular case resulting in that spouse being less financially “independent” and “self-supporting” on the breakup of the marriage than would be the case had those tasks been wholly undertaken by the other, or equally shared between them.

Only to the extent that it can be said to be likely that the more domestically-burdened spouse would, but for the unequal sharing of that burden, have acquired employment advantages no longer available can this factor play a

part in the allocation or apportionment of family assets. It cannot in my view be enough to show that there was a possibility that the spouse burdened unequally by housekeeping and child-raising responsibilities might, but for that burden, have improved their earning potential by the time of separation. If that were the standard, then compensation would be due under this heading, either by way of unequal asset distribution or compensatory maintenance, in the breakup of every, or almost every, marriage of this sort, and I do not understand the cases to say that. Indeed, in Moge v.

Moge Madam Justice L’Heureux-Dubé emphasizes (particularly at p. 391) the need for attention to the evidence in the particular case. I find no basis in the cases for any sort of presumption in this area. It is, of course, very commonly the case that people continue in the same occupation throughout their working lifetime, and there can be no general rule with respect to the extent to which their skills increase. [ 33 ] The evidentiary base on which such a determination will rest was described by McLachlin J. at p. 400 of Moge v. Moge : This leaves the question of evidence.

I agree with my colleague that evidence of the spouses’ respective contributions and gains from the marriage is necessary under s. 17(7)(1). I do not think the evidence need be detailed, in the sense of a year-by-year chronology of sacrifices and gains. This is not an exercise in accounting, requiring an exact tally of debits and credits for each day of the marriage. It is beyond the means of most parties and our overburdened justice system to devote weeks of lawyers’ and experts’ time to providing such a tally. Nor do I think it necessary. It is clear that certain things must be done to maintain a family.

Income must be earned. Food must be bought and prepared. Children must be cared for. And so on. In most cases it will suffice if the parties tell the judge in a general way what each did. That will allow the judge very quickly to get an accurate picture of the sacrifices, contributions, and advantages

relevant to determining compensation under s. 17(7)(a), making detailed qualification and expert evidence unnecessary. Poverty is one of the main problems arising from marital breakdown; it should not be made worse by long and expensive legal proceedings. [ 34 ] In my view, the evidence before the court on the present application falls far short of that required to meet the burden on the plaintiff to demonstrate that an equal division under s. 56 would be unfair, and in fact, establishes the reverse. [ 35 ] Turning to the specific factors enumerated in s. 65(1), I am satisfied that:

a) the length of the marriage favours an equal division of assets;

b) the duration of the separation is neutral;

c) the date of acquisition is neutral;

d) the extent to which property was acquired by one spouse through inheritance or gift is inapplicable;

e) the needs of each spouse to become or remain economically self-sufficient militates in favour of equal division;

f) there are no other circumstances emerging from the evidence favouring an unequal distribution. [ 36 ] The burden has not been met. There will, therefore, be an equal division of the assets as contemplated by s. 56 . DISPOSITION OF ASSETS Telus Pension [ 37 ] As agreed between the parties, the defendant’s Telus Pension will be divided pursuant to

Part 6 of the Family Relations Act with the plaintiff’s entitlement dates being the date of marriage, July 21, 1990, and the date of the s. 57 declaration, April 30, 2001. Registered Retirement Savings Plans [ 38 ] The spouses’ RRSP’s will be equalized by the defendant transferring $12,415 by way of spousal rollover. Shares [ 39 ] The defendant will transfer to the plaintiff 113 of his Sun Life Shares and one-half (47.91) of his remaining Telus shares. Remaining Assets [ 40 ] The remaining assets include the house proceeds, the cash surrender values of Mr. D.E.S.’s Sun Life Policy and Ms.

L.M.S.’s Clarica Policy and the Telus shares disposed of by Mr. D.E.S.; a total of $41,358. [ 41 ] Crediting Mr. D.E.S. with the value of the Telus shares he received and the cash surrender value of his Sun Life Policy, he has been credited with $22,918. [ 42 ] The plaintiff will be entitled to the whole of the proceeds of the house plus any accumulated interest and to retain her Clarica policy. In addition, there will be an order that the defendant pay to the plaintiff by way of compensation $2,239 to equalize the division of assets. CUSTODY [ 43 ] At the close of the hearing, I granted the divorce.

The parties will also share joint custody and guardianship. Inherent in the joint guardianship order is the right of both parents to be kept informed as to such things as education and health issues. ACCESS ISSUES [ 44 ] The plaintiff seeks a variation of the access regime established under the order of Master Tokarek on April 30, 2001. Her major concern seems to be the number of exchanges that take place under the terms of that order. [ 45 ] I have reviewed all of the material. I am not satisfied that a change from the pattern established is in the children’s best interests.

CHILD SUPPORT [ 46 ] The order of Master Tokarek established an equal sharing of custody which has been continued by consent in the present order. The sharing of custody in this case gives rise to the application of s. 9 of the Guidelines: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses;

(

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 47 ] This provision has generated significant controversy and different approaches to its application. In British Columbia, the Court of Appeal traced the controversy in Green v. Green [6] . Prowse, J.A. found: 18 The intent of s. 9 was to provide a degree of financial relief to parents exercising extensive access to their children by permitting the court to deviate from the Guidelines tables based on the criteria set out in the section.

The assumption underlying this provision must have been that substantial access by one parent would generally result in increased expenses to him or her relevant to childcare. The drafters of the Guidelines may also have assumed that an increase in access beyond 40 percent by one parent would result in a reduction in child-related costs for the custodial parent.

While these assumptions may be valid in many cases, the decisions I have reviewed under s. 9 indicate that they are not valid in every case. . . . 26 Unfortunately, determining how the factors set forth in s. 9 should be applied is an issue which has also resulted in conflicting decisions at the trial level.

Numerous problems have been encountered by masters and trial judges in attempting to find a “one size fits all” formula which will preserve the certainty and predictability which have been identified as important goals in applying the Guidelines generally . . . 27 As earlier stated, one of the policy considerations giving rise to s. 9 was the recognition that parents who exercise extensive access to their children often incur additional child care expenses beyond those experienced by parents who exercise lesser access.

While this is a legitimate consideration, it must be tempered by the fact that not every dollar spent by a parent in exercising access over the 40 percent threshold results in a dollar saved by the custodial parent . . . . . . In other words, in cases in which the access parent has a significantly higher income than the custodial parent (as is the situation in the majority of cases), the more probable it will be that a decrease in the amount of support payable under the Guidelines will operate to the detriment of the standard of living in the custodial parent’s home.

In those cases, there is a real concern that a reduction in the amount payable under the Guidelines will not serve the best interests of the children. [ 48 ] Hunter, J., considered Green in Bossert v. Bossert [7] , and observed in para. 29 and following: 29 In Green , Prowse J.A. considered three approaches to the application of s. 9 which have been applied in British Columbia and other jurisdictions. The first of those approaches is simply to require the payor spouse (in these circumstances Mr. Bossert) to pay 50% of his Guideline obligation.

The second approach is to take the percentage of time with the mother (50%) multiplied by the Guideline amount for the father ($823), less the percentage of time with the father (50%) multiplied by the Guideline amount for the mother ($356) and subtract one from the other. The third approach uses the basic set-off formula described in Spanier v. Spanier, 1998 CanLII 5536 (BC SC) , [1998] B.C.J. No. 452(B.C.S.C.) and then applies a multiplier of 1.5 to the resulting figure which is to be paid by the access parent (that is the father Mr. Bossert).

In that regard I refer to para. 33 of Green: Another approach to the application of s. 9 is found in Hunter v. Hunter (1998), 1998 CanLII 14872 (ON SC) , 37 R.F.L. (4 th ) 260 (Ont. Ct. (Gen. Div.)). There, the trial judge adopted an approach taken in several American jurisdictions of using the basic set-off formula referred to in the first approach described in Spanier (see para. 29 of these reasons) and then applying a multiplier of 1.5 to the resulting figure to be paid by the access parent.

The assumption behind the multiplier approach is that 50 percent of the custodial parent’s costs are fixed and, therefore, unaffected by the time the children spend with the access parent. The multiplier operates to obviate the necessity of the parties calling evidence of the increased costs associated with children living for substantial periods of time in two households. While this formula takes into account the increased costs of shared custody, it does so in a somewhat inflexible fashion. And at para. 35:

In order to apply s. 9 however, it is important that the parties lead evidence relating to ss. 9(

b) and (c); that is, of “the increased costs of shared custody arrangements” and “the conditions, means, needs and other circumstances of each spouse [parent] and of any child for whom support is sought.” . . . 30 In order to put Green into context, I note that in that case the father’s annual income was $35,000 and the mother’s was $24,000. 31 Prowse J.A. went on to say in Green at para. 49 : Bearing in mind all of these factors, I would summarize the results of a s. 9 analysis in this case as follows:

(1) Under s. 9(a), a comparison between the amounts each parent would have to pay the other under the Guidelines tables using a set-off approach would indicate that Mr. Green should be granted some relief from a strict application of the Guidelines amount;

(2) Under s. 9(b), the evidence indicates that Mr. Green is incurring additional expenses because of the substantial amount of time the children spend with him, which includes overnight time. In particular, his costs of food, some housing costs, transportation, recreation and “miscellaneous” expenses are higher than one would anticipate if he were exercising access on a less frequent basis.

(3) Under s. 9(c), the relative circumstances of the parties indicate that Ms. Green’s overall financial circumstances are less favourable and less secure than those of Mr. Green. Although this disparity has been addressed, in part, by an award of spousal maintenance, it remains significant, as it affects her ability to adequately support the children while they reside with her as primary caregiver. She clearly bears the greatest burden of financial expenses for the children. This fact should not be underestimated in determining the extent of any relief to be granted to Mr. Green under s. 9.

Further, any relief from a strict application of the Guidelines should be assessed from the perspective of the best interests of the children. (Emphasis added) [ 49 ] The father’s annual income for Guideline purposes I find to be $60,087 and the mother’s to be $36,000. The father’s obligation would be to pay $816 per month child maintenance if both children were in her custody; and her obligation would be to pay $516 per month if both children were in his custody.

The difference is $300 per month. [ 50 ] There is no evidence before the court indicating that either parent is incurring additional expenses related to the sharing of custody. [ 51 ] The existing order provides for the payment, by the defendant to the plaintiff, of $300 per month as interim support for the children and that the two share as special or extraordinary expenses R.J.S.’s hockey expenses and daycare expenses for S.M.S. in proportion to their respective incomes. [ 52 ] The plaintiff submits that S.M.S. is now playing hockey as well and that the interim order ignores the daycare costs for R.J.S.. [ 53 ] In my view, the proper evidentiary base mentioned in para. 35 of Green has not been put before the court in this case. [ 54 ] Doing the best I can with the information before the court and recognizing the discrepancies in annual income, I am satisfied that continuing the order for the defendant to pay $300 per month in child support is the appropriate order provided the category of special or extraordinary expenses is expanded to include both children’s hockey and daycare expenses.

Those costs will be shared in proportion to their respective incomes. SPOUSAL SUPPORT [ 55 ] For the reasons outlined in the

section on unequal division of assets, the plaintiff has not established an entitlement to spousal support. The reality in this case is that, rather than establishing economic disadvantage occasioned by the marriage or its breakdown, the evidence here establishes that she was able to pursue, with success, her chosen career throughout the marriage, as well as maintaining her leisure activities.

When this is combined with the joint custody arrangement, neither a claim for spousal support or an unequal division of assets can be justified. [ 56 ] In this case success has been divided; but what concerns me is the issue of the disposal of the bulk of the defendant’s Telus shares and his affidavit concerning that disposal. [ 57 ] As I indicated earlier, the absence of any explanation leads to the conclusion it was a deliberate attempt to mislead. In the

circumstances, the plaintiff will recover her costs on Scale 3. “W.G. Parrett, J.” The Honourable Mr. Justice W.G. Parrett