Kollmuss v. Kollmuss, 2015 BCSC 1101

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kollmuss v. Kollmuss, 2015 BCSC 1101 Date: 20150625 Docket: E110365 Registry: Vancouver Between: Mary-Ann Louise Kollmuss Claimant And Gerald Michael Kollmuss Respondent Before: The Honourable Mr. Justice Voith Reasons for Judgment Counsel for the Claimant: Susan Label Counsel for Respondent: Anna L. Perry Place and Date of Hearing: Vancouver, B.C. February 11, 2015 April 1-2, 2015 Written Submissions: April 20, 2015 May 7, 2015 Place and Date of Judgment: Vancouver, B.C. June 25, 2015 [ 1 ] The applicant, Mr.

Kollmuss, seeks various forms of relief – all of which arise in the context of a family law dispute. The availability of that relief devolves to three issues:

i) Whether Mr. Kollmuss should continue to pay child support and, if so, in what amount? ii) Whether Mr. Kollmuss should receive a credit for certain past childcare and child support obligations that he says he has overpaid? iii) Whether Ms. Kollmuss should be required to provide Mr. Kollmuss with various categories of information that relate to their son, Curtis? Background [ 2 ] Each of the parties is now 49 years old. They married on June 4, 1988, and separated on June 28, 2010. The parties have two children. Curtis was born on July 16, 1995, and is now 19.

Nicholas is 22. [ 3 ] In November 2011 and March 2012, I presided over a trial in which the parties raised various issues. My conclusions, in relation to those various issues, are found in reasons for judgment that are indexed at 2012 BCSC 709 (the “Reasons”). For present purposes the following matters are relevant:

i) Curtis is disabled. In the Reasons, I said: [5] Curtis is catastrophically disabled. The following facts emanate from an Agreed Statement of Facts prepared by counsel for the parties: 1. Curtis is disabled and requires constant supervision and care. 2. Curtis has Bardet-Biedl syndrome, with Retinitis Pigmentosa, with resulting retinal dystrophy. He suffers from "tunnel vision" and has progressive visual loss. He is legally blind and is registered with the CNIB. Curtis uses a white cane. 3. Curtis also suffers from scoliosis and epilepsy with absence seizures. 4. Curtis also has Stereotypic Movement Disorder.

His stereotypic consist of arm-flapping with extension in front of him, jerking of his body, fidgeting of his hands, hand-shaking, vocalizing and facial grimacing.

5. Curtis requires help with toileting, bathing and dressing. 6. Curtis has the mental age of a 5 year old. 7. Curtis has problems with his hips, legs and feet (he was born with 11 toes, has had one toe removed). He has deformed feet. He has to wear orthotics in both shoes and has to have special runners. 8. Curtis attends speech therapy with a private speech therapist once a week. [6] Curtis is also expected to fully lose his vision when he is in his 20s. He presently attends school Monday to Friday, where he has full-time access to a special needs educator. ii) Ms. Kollmuss works as a dietary aide. Mr.

Kollmuss is a carpenter and a hardwood-floor installer. At the time of trial, their respective net incomes were approximately $26,000 and $49,000, respectively. At trial I ordered Mr. Kollmuss to pay child support, for Curtis, in the amount of $449 per month. Ms. Kollmuss’ present income, for Federal Child Support Guidelines , SOR/97-175 [ Guidelines ] purposes is $35,464. Mr. Kollmuss’ present income, for Guidelines purposes, is $44,264.

He now pays child support, for Curtis, of $410 monthly. iii) A significant issue at trial was the hostility that each party bore towards the other and their inability to communicate. In the Reasons, I said: [9] The parties harbor a considerable amount of hostility to each other. They had not communicated in any meaningful way for years prior to their separation. They are presently unable to speak to each other and communicate only in writing. … [86] These are parties with significant and ongoing emotional and financial burdens.

They are handicapped both by a lack of resources and by the significant antipathy that exists between them. The first of these factors is not likely to change; the second hopefully will. The parties' must realize that their present hostility to each other is an impediment to their caring for Curtis and that it undermines their efforts to do so. In relation to fixing a

schedule for access and child custody purposes, I said: [90] If the parties were able to communicate more effectively or productively, some of their respective concerns might be addressed. Notwithstanding considerable evidence and discussion about this issue, no concrete proposal was forthcoming from either party, nor is it an area where I believe I could, through the imposition of some fixed schedule, assist. In relation to the guardianship of Curtis, I said: [96] The parties agree that I should make an order for joint custody and guardianship of Curtis.

The only issue is what arises in circumstances where the parties do not agree on what is in Curtis' best interest. These are two very different people with different strengths. Yet again, if they were able to communicate productively, they would likely advance Curtis' best interests. Unfortunately, they communicate poorly and only by e-mail. Thus, for example, Mrs. Kollmuss was recently unwilling to attend a meeting with Mr. Kollmuss and government workers to discuss future programs which might be available for Curtis. The parties’ animosity towards each other has not, unfortunately, abated with time.

Counsel for one of the parties bluntly asserted that “they hate each other”. I raise this matter for two reasons. First, the inability of the parties to communicate underlies significant portions of the present application. Indeed, if the parties communicated properly, each aspect of this application would have been unnecessary. Second, that same hostility continues to foster considerable mistrust. Each party ascribes various objects or motives to the other. Each seeks to paint the other in an unflattering light.

I do not consider that I either need to or should address any of these allegations. iv) At trial, the parties agreed, as I have noted, that I should make an order for joint custody and guardianship of Curtis. Under that order, I gave Ms. Kollmuss decision-making authority in relation to Curtis in the event the parties could not agree on any specific matter; Reasons at para. 98. I also noted: [100] In particular, I am ordering that decision making in relation to significant matters that pertain to Curtis be governed by the following additional specific terms: (

a) Mrs. Kollmuss, who has the primary responsibility for the day-to-day care of Curtis, will have the obligation to advise Mr. Kollmuss of any matters of a significant nature affecting Curtis; (

b) Mrs. Kollmuss will have the obligation to discuss with Mr. Kollmuss any significant decisions which have to be made with respect to Curtis, including significant decisions concerning his health (except emergency decisions), education, and general welfare, and Mr. Kollmuss will have the obligation to discuss these issues with Mrs. Kollmuss, and each parent will have the obligation to try to reach agreement with respect to those major decisions; (

c) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, Mrs. Kollmuss will have the right to make such a decision, and Mr. Kollmuss will have the right, under s. 32 of the Family Relations Act , to seek a review of any decision which he considers contrary to the best interests of Curtis; (

d) Mrs. Kollmuss shall, on an ongoing basis, advise Mr. Kollmuss of the names of Curtis' various health professionals and other caregivers; and

(

e) each parent will have the right to obtain information concerning Curtis directly from third parties, including teachers, counsellors,medical professionals, and third-party caregivers. Issue 1: Child Support [4] The central issue on this application is whether Mr. Kollmuss should continue to make the child support payments that hepresently makes. Mr. Kollmuss accepts that Curtis is a dependent child of the marriage due to his disability and will remain sopermanently.

He argues, however, that when Curtis turned 18, in July 2013, he began to receive $906 monthly in Persons with Disability(“PWD”) benefits, and when Curtis turned 19, he was able to access approximately $1,500 monthly in daycare and/or respite monies. [5] Mr. Kollmuss further argues that s. 3(2) of the Guidelines pertains and militates in favour of either a cessation or decrease inthe child support payments that he is presently making. [6] Ms. Kollmuss, conversely, argues that Curtis’ eventual receipt of the $906 PWD benefit was known at the time of trial and wasexpressly referred to by me in the Reasons.

She further argues that there has, therefore, been no material change in circumstance, that Idid not include a review provision in the various orders I made, and that there is, accordingly, no basis for the order that Mr. Kollmussseeks. [7] Variation orders for child support are governed by s. 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change ofcircumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variationorder made in respect of that order. [8]

Section 14 of the Guidelines states: Circumstances for variation 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise tothe making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any changein circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change inthe condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, enacted by

section 2 of chapter1 of the Statutes of Canada, (1997). [9] Willick v. Willick, (SCC), [1994] 3 S.C.R. 670 at 688, established that a “material change in circumstances”, isrequired before a court may vary a child support order. The Willick “material change” test continues to apply despite the more recentenactment of the “any change” language in the Guidelines, s. 14; see e.g. Bockhold v.

Bockhold, 2006 BCCA 472 at para. 34. [10] Willick expresses the test that must be met at 688: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [11] In L.M.P. v.

L.S., 2011 SCC 64 at para. 31, the majority of the Court confirmed the continued applicability of the Willickmaterial change test. The majority stressed that “[t]he focus of the analysis is on the prior order and the circumstances in which it wasmade” (at para. 33) and that “what amounts to a material change will depend on the actual circumstances of the parties at the time of theorder” (at para. 34).

Further, the majority held that “a material change must have some degree of continuity, and not merely be atemporary set of circumstances” (at para. 35). [12] Significantly, the majority also held that the same test applies to both spousal and child support variation requests (at para. 32),and that “[t]he threshold variation question is the same whether or not a spousal support order incorporates an agreement” (at para. 36).These holdings are particularly salient as they permit the court to rely on principles developed in cases decided in a variety of contexts. [13] Formerly, the Willick material change test had been interpreted as requiring a finding that, at the time of the initial order, thechange was not known and could not reasonably have been foreseen by the parties or the judge; see e.g.

Poulter v. Poulter, 2005 BCCA227 at para. 11. [14] However, the court in Dedes v. Dedes, 2015 BCCA 194, recently clarified: [25] As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather onwhat the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is toprevent parties from re-litigating issues that were already considered and rejected; in such cases, an application to vary would amount toan appeal of the original order (see Gordon at para. 15).

As was stated by L'Heureux-Dube J. in Willick at p. 734, "the diversity ofpossible scenarios in family law dictates that courts maintain a flexible standard of judicial discretion which does not artificially limit the

adaptability of the Divorce Act provisions". See also G. (L.) v. B. (G.), (SCC), [1995] 3 S.C.R. 370 at paras. 49-51 andJakob v. Jakob, 2010 BCCA 136 at para. 40. [15] Prior to this recent guidance in Dedes, a number of cases had considered how the former foreseeability inquiry could bereconciled with more complex circumstances where a particular fact may have been identified or even considered but the impact of thatfact was not known or appreciated. In Stones v.

Stones, 2004 BCCA 99, a case that is cited in Dedes at para. 21, Lambert J.A., for thecourt, considered this issue in the context of a request to vary an order based on a separation agreement: [15] In my opinion, the question of what is a material change of circumstances may vary from one case to another. That is particularlyso in relation to foreseeability.

There are a group of cases which decide that retirement from employment, even at the retirement age setby the employer, or by collective agreement, can be a material change of circumstances, although clearly it would be foreseeable. [16] I suppose that the question should really be asked in each case of whether the circumstance in question was one which the partiesmust have had in contemplation and built into the framing of their agreement.

Perhaps it is a change that the parties were prepared toleave out of contemplation in the agreement because of complexity or some other reason, so that when it occurs it is a material change ofcircumstances, even though the parties knew it must be going to happen at some time or another. [16] In Megson v.

Megson, 2014 BCSC 2467, Fitch J. summarized the materiality test discussed in Stones, noting that: [155] A change can be a material one, even if it was within the general contemplation of the parties at the time of the prior agreement,if they made a conscious decision to leave it out because it was sufficiently complex, or the extent of its impact was unknowable: Stonesv. Stones, 2004 BCCA 99. [17] Of further relevance to this issue, I note that the majority in L.M.P. said: [38] The agreement may address future circumstances and predetermine who will bear the risk of any changes that might occur.

Andit may well specifically provide that a contemplated future event will or will not amount to a material change. … [42] Ultimately, courts are tasked with determining if a material change of circumstances has occurred so as to justify a variation of as. 15.2 order under s. 17. The analysis is always grounded in the actual circumstances of the parties and the terms of the s. 15.2 order;what meaning a court will give any general statement of finality found in an order will be a question to be resolved on that basis.

As wehave explained, in some situations, the agreement incorporated into the order may help shape what is meant by a "material change ofcircumstances". Where a s. 15.2 order deals with a specific change, it assists courts by answering the Willick inquiry through its terms.Conversely, when the order is general, or simply purports to be final, these less specific terms provide less assistance to courts inanswering the Willick inquiry.

Sometimes, in such cases, the circumstances of the parties may be such that courts will give little weightto a general statement of finality and conclude that a material change exists.

However, at other times, in such cases, the circumstances ofthe parties may also be such that the courts will give effect to a general statement of finality and conclude that a material change does notexist. [18] Having regard to the foregoing guidance, the fact the parties and the court were aware at the time of trial that Curtis wouldreceive PWD benefits, does not, without more, mean that there has not been a material change of circumstance. A broader inquiry isnecessary. Though Curtis’ imminent receipt of the PWD benefit was not in doubt, his broader financial circumstances were uncertain atthe time of trial.

Indeed, I expressly addressed this uncertainty in the Reasons: Future Uncertainty for Curtis and the Consequences of such Uncertainty [82] Curtis' circumstances and status will change gradually and in various respects over the next few years. At age 18 Curtis willbegin to receive what is presently $906 per month. Mrs. Kollmuss will continue to be able to claim Curtis as a "disabled dependent" onher taxes. At age 19 Curtis' care will be moved from the Ministry of Children to Community Living British Columbia. When Curtisleaves school at 20 it is not clear what programs and care will be available to him.

There are presently serious funding shortfalls andwaiting lists for many relevant programs. Curtis will, at that time, be regarded as an adult. The programs and funding available fordisabled adults is also much more limited than for disabled children. [83] I have considered, without success, what orders or directions I might make to address these future uncertainties and to obviate theneed for the parties to return to court. I also asked for the assistance of counsel who, notwithstanding their efforts, were unable to provideany meaningful assistance.

The range of possibilities and contingencies that face Curtis in the next several years is simply too great. It ispossible, even with the best of intentions on the part of both parties, that they will not be able to care for Curtis or pay for the level ofcare he will require on a full-time basis.

It is also possible that Curtis will have access to programs and care which will enable the partiesto continue as they presently hope and plan. [84] I also observe that it is not clear whether Nicholas will live with his father, whether his addiction will worsen or abate, andwhether he will, on the one hand, require medical or other intervention or, on the other, go to university. [85] These uncertainties are relevant to many of the issues I have addressed. This includes the reapportionment of the family home,which was significantly premised on Mrs.

Kollmuss requiring a home from which she can continue to provide care for Curtis. It extendsto payments for child support or special expenses, where the monies being provided to and for Curtis will be changing. I have in eachsuch case, or for each such issue, based my decision both on what is presently known and on what the parties both wish for Curtis. [19] Before turning to s. 3(2) of the Guidelines, the relevant case law, and the details of this aspect of the application, I wish to returnto an earlier point.

If these parties communicated more effectively, this aspect of the present application would have been unnecessary.Mr. Kollmuss’ submission devolves to his questioning whether the various benefits Curtis receives fully provide for his needs havingregard to his condition and other circumstances. I say “questioning” because what he has sought from Ms. Kollmuss, for some time, is an

estimate or budget of what Curtis’ expenses are. He has also sought details of what benefits or supplemental benefits Curtis receives. Hehas been given no information, been told his requests for information are irrelevant, been given partial information, or been giveninformation that was delayed. [20] Mr. Kollmuss argues that the $906 PWD benefit, together with other benefits, should be sufficient to provide for Curtis’ needs.These other benefits include, for example, benefits that provide for Curtis’ special shoes, his eyeglasses, and other dental and health-careneeds.

They include the $1,500 in daycare and respite monies that Curtis can access. Mr. Kollmuss has generated a budget of what heestimates Curtis’ requirements to be, and argues that the various benefits and monies Curtis receives exceed this budget. [21] Indeed, it appears that Mr. Kollmuss believed that Curtis also received additional monthly amounts of $201 and $115.50 in GSTCredits and Income Climate Tax Credits, respectively. These figures, in combination with the PWD benefits would generate a netincome of $14,670 annually.

It was, apparently, the belief that Curtis received this level of benefit funding that, in part, underlayMr. Kollmuss’ application. It is clear, however, that these particular credits are only annual credits. Curtis’ net income, apart from anyconsideration of the child support payments Mr. Kollmuss makes is, thus, slightly more than $11,100 annually. [22] What remains, however, is the question of how this figure or this income interacts with the sums that Mr. Kollmuss may berequired to pay under s. 3(2) of the Guidelines. [23] The position of Ms. Kollmuss is somewhat dismissive.

She argues that it is self-evident that an amount of approximately$11,000 is not sufficient to provide for Curtis’ daily needs, and that there is no need for her to provide any details of Curtis’ expenses.She further argues that there is no statutory requirement that she provide a budget of Curtis’ expenses or needs and that the onus lies withMr. Kollmuss to justify the variation that he seeks. This position is both unhelpful and only partly correct. [24] Section 3(2) of the Guidelines governs the amount of child support payable where a child is over the age of majority:

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority orover, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [25] In Wesemann v. Wesemann, (BC SC), [1999] B.C.J. No. 1387 at para. 6 (S.C.), Martinson J. set out a four-part framework for determining the amount of child support payable under s. 3(2) of the Guidelines. This framework has since beenapplied widely; see e.g. Neufeld v. Neufeld, 2005 BCCA 7 at para. 38.

The four-part framework gives rise to the following inquiries: Step One Decide whether the child is a "child of the marriage" as defined in the Divorce Act? If s/he is not, that ends the matter. Step Two Determine whether the approach of applying the Guidelines as if the child were under the age of majority ("the usual Guidelinesapproach") is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach. Step Three If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach isinappropriate.

If not, the usual Guidelines amount applies. Step Four If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs andother circumstances of the child and the financial ability of each spouse to contribute to the support of the child? [26] Since Curtis remains a child of the marriage, and since the usual Guidelines approach is challenged, steps three and four of thisanalysis are particularly relevant. Considerations relevant to these two steps are discussed in James C.

MacDonald, Q.C. & Ann C.Wilton, Child Support Guidelines: Law and Practice, loose-leaf, 2d ed. (Toronto: Carswell, 2004) vol. 1 at 3-10: Whether the usual Guidelines approach is inappropriate (step 3) requires a judicial determination of inappropriateness. The court maymove away from the Guidelines amount if either the usual amount in s. 3(2)(

a) of the approach of s. 3(2)(

a) is inappropriate. The usualGuidelines approach is based on factors that normally apply to a child under the age of majority; that is the child resides with one or bothparents, is not earning an income and is dependent on his of her parents. It is also based on the understanding that, though only theincome of the person paying is used to calculate the amount payable, the other parent makes a significant contribution to the costs of thatchild’s care because the child is residing with him of her.

The closer the circumstances of the child are to those upon which the usualGuidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate. The opposite is also true.Children over the age of majority may reside away from home and earn a significant income. If a child is not residing at home, thenature of the contribution towards the child’s expenses may be quite different. After finding that the usual Guidelines approach isinappropriate, the next step is to determine what approach or amount is appropriate.

At this stage, it is helpful to consider: (1) the reasonable needs of the child; (2) the ability and opportunity of the child to contribute to those needs; and

(3) the ability of the parents to contribute to those needs. [ 27 ] The cases decided under s. 3(2) generally fall into two categories: dependent adult children attending post-secondary schools and dependent adult children in receipt of some form of disability benefit. While the parties provided me with some out-of-province authorities, as well as authorities relating to adult children attending university, I have focused my analysis on the disability cases that have been decided in British Columbia. In my view, these authorities establish an appropriate and consistent framework for the application of s. 3(2)(

b) in this province. Five cases are relevant to this discussion. [ 28 ] In Briard v. Briard , 2010 BCCA 431 at paras. 19-24 , a case relied upon by Mr. Kollmuss, the court upheld the trial judge’s approach. At trial, the judge had first accepted that the application of the usual table amounts was rendered inappropriate due to the child’s receipt of PWD benefits, and had then entered into a consideration of whether the child could obtain the necessaries of life based on a consideration of her income, costs of living and further expenses.

In the second part of this analysis, the trial judge noted the fact that the lack of a detailed budget “somewhat hampered” the analysis; at para. 23. After concluding that the child could not obtain the necessaries of life on her own, the trial judge turned to a consideration of her parents’ respective incomes, the default table amount and the fact that her mother was her primary caregiver. The trial court concluded that the mother’s proposed amount, which was $78 less than the Guidelines amount, was appropriate; at para. 25. [ 29 ] In C.L.C. v.

B.T.C ., 2012 BCSC 736 at para. 75 , a further decision relied upon by Mr. Kollmuss, the court again accepted that the child’s receipt of PWD benefits could engage s. 3(2) ( b ), as per the third and fourth steps of the Wesemann approach. In considering whether the table amount was inappropriate, the court posited the following inquiry: [62] The question, then, is simply whether the addition of the PWD benefits of approximately $940 per month renders the underage approach to determination of child support inappropriate.

In my view this question turns on the relative financial significance of the PWD benefits in the circumstances of this case. [ 30 ] After considering the income of both parents, the usual table amount, the custodial parent’s lost child tax benefit, and the custodial parent’s claimed costs for household and additional expenses, the court concluded that the PWD benefits rendered the usual table amount inappropriate: [75] In my view, even assuming that the PWD benefits provide a net additional benefit that is in the range of $600 per month, in all of the circumstances of the case, the underage approach to determination of child support is inappropriate.

The addition of $600 in additional government assistance is significant enough in the context of C.'s support expenses and the finances of the parents that it ought to be taken into account. [ 31 ] The court then turned to the assessment of the appropriate amount based on the child’s financial needs, noting at para. 80 that “[w]hile the mother's evidence concerning C.'s financial needs could have been more detailed, I am satisfied that I have sufficient information to deal with the matter on the merits.” [ 32 ] The court’s approach to determining the appropriate amount involved calculating the child’s monthly expenses, deducting the PWD benefit amount, and then dividing the shortfall between her parents in proportion to their incomes: [94] On the evidence, I conclude that the monthly expenses for C. are approximately $2,100.

In my view this is a reasonable amount of expense, upon a consideration of all of the factors referred to in s. 3(2) (

b) of the Guidelines . Of this, $940 is now received through the PWD benefits. Clearly, the amount of the PWD benefits does not approach the amount required for C.’s support. This leaves a monthly shortfall of $1,160 to be financed by C.’s parents. [95] In my view it is appropriate that the shortfall in C.’s financial needs be financed by C.’s parents in proportion to their incomes. That is, 74% by the father, and 26% by the mother.

On this basis, the appropriate amount of child support to be paid by the father is $858 per month, commencing June 1, 2012. [ 33 ] I observe that the child in the C.L.C. case required less day-to-day care than Curtis requires from his mother.

I also observe that the court implemented a form of reporting requirement: [96] As the father's obligation is dependent upon the amount of C.'s expenses in relation to the incomes of the parties, I order that the information the father may request under s. 25(1) of the Guidelines will also include an annual budget regarding C.'s expenses and any government benefits or subsidies to which he may be entitled, and information as to C.'s income. [ 34 ] Poehlke v. Poehlke , 2012 BCSC 1029 at paras. 48-51 , considered the impact of disability payments on a default table amount of $1,034.

The court, once again, accepted that the receipt of the PWD benefits engaged s. 3(2) (

b) of the Guidelines , though a calculation of an appropriate amount was not necessary in this case: [51] Just as the court will take into account the income-earning ability of a child over the age of majority who, for instance, is attending university, so it is appropriate in the circumstances of this case to take into account the income earned by BP as an adult person with disabilities in the amount of $906 per month, together with the expenses that are covered. With this in mind, I consider that a reduction from the Guideline amount to $750 per month is not unreasonable.

The parties and their counsel evidently agreed in November. It is most unfortunate that one should seek to renege from that agreement by mischaracterizing it. [ 35 ] In Ross v. Ross , 2004 BCCA 131 at para. 25 , the court upheld the trial decision to deviate from the Guidelines in the case of an adult child who was both receiving a grant and held a number of other assets in his name. [ 36 ] In Carten v. Carten , 2015 BCSC 19 , the court addressed circumstances where the custodial parent applied, pursuant to s. 3(2) ( b ), for a payment in addition to the table amounts.

In holding that the usual table approach was inappropriate, the court noted not only the PWD benefit, but also the child’s increased costs as a result of his need for assistance with activities of daily living and round- the-clock care and supervision:

[21] Both parents have modest incomes, and Patrick's PWD benefit is in this context a significant income: C.L.C. v. B.T.C., 2012BCSC 736, at paras. 55-75. Moreover, because of his disability, Patrick has higher expenses than most children. His circumstances arefar removed from those upon which the usual Guidelines approach is based. [37] Again, the court first considered the child’s expenses and the amount of his disability payment and then the ability of eachparent to contribute, concluding: [31] The proper resolution under s. 3(2)(

b) of the Guidelines is, in this case, for the parents to absorb their child's monthly expenseshortfall in proportion to their respective incomes; this has been the approach adopted by this Court in like cases: see, for instance,Hickman v. Hickman, 2003 BCSC 116, and C.L.C. v. B.T.C., 2012 BCSC 736. Accordingly, using my findings as to the parents' incomes,Mr. Carten's share of the $1639.61 shortfall is 45%, say $740. The previous orders regarding child support for Patrick are varied suchthat Mr. Carten is obligated to pay monthly child support of $740 effective 1 January 2015. [38] In

summary, these five cases establish that the receipt of PWD benefits is often considered sufficient to trigger a s. 3(2)(b)analysis. This will particularly be so where, as in this case, the incomes of the parties are modest.

Further, these cases apply theWesemann approach: the court must ask itself (1) whether the claimant has proven that the usual Guidelines approach is inappropriate,and (2), if not, what amount is appropriate, “having regard to the condition, means, needs and other circumstances of the child and thefinancial ability of each spouse to contribute to the support of the child”. [39] The party requesting the change has the onus of establishing that the usual Guidelines approach is inappropriate.

It may beinappropriate where the child’s circumstances differ from the circumstances upon which the usual Guidelines approach is based. Somedisability benefit cases have held that the receipt of the benefit itself renders the usual Guidelines approach inappropriate; Briard atpara. 22; Poehlke at para. 51; Ross at para. 25.

Others engage in an initial consideration of the financial significance of the benefitamount in the context of the case; C.L.C. at para. 62; Carten at para. 21. [40] In considering an appropriate amount or level of support, the court engages in the usual condition, means, needs and othercircumstances analysis; however, in these cases, the reasonable ability of the child to contribute to those needs is also incorporated, orfactored, into the analysis. Ultimately, a court will calculate a child’s reasonable costs and deduct the amount of the disability benefit inorder to quantify the relevant shortfall.

The court will then consider the parents’ incomes and the usual table amount. The child’sshortfall is then often divided in proportion to the parents’ respective incomes. [41] In terms of financial reporting, courts have generally been prepared to work with rough budget amounts, or budgets lackingsignificant detail, so long as they were able to determine the reasonable costs of the child. [42] The foregoing authorities also establish, however, that it is necessary for a court to have some reasonable sense of an adultchild’s expenses in order to address s. 3(2) of the Guidelines.

From a legal perspective, the failure of a custodial parent to provide suchdetail, in a reasonable way, has the prospect of frustrating both the payor parent’s ability to marshal the evidence required of them and tomeet the onus that rests with them. As noted above, in C.L.C. at para. 96, the court ordered that the payor could request an annual budgetunder s. 25(1) of the Guidelines. [43] Curtis’ $906 PWD monthly payment has embedded within it an assumption that allocates $375 to rent, $200 to food andapproximately $330 to other needs. There is no doubt that these are modest amounts.

It is not, however, self-evident that they areinadequate or that they do not reasonably meet Curtis’ expenses and needs. For present purposes, I do not consider the fact that, at trial, Iallocated Ms. Kollmuss 65% of the equity in the family home to assist with the expenses associated with Curtis’ housing: Reasons atpara. 39. [44] Ms. Kollmuss’ most recent Financial Statement indicates that the monthly rent for her two-bedroom apartment is $1,205.

I donot know what rent for a one-bedroom apartment would be, but it is not at all obvious that the difference between those two forms ofaccommodation would exceed the $375 figure I referred to. Similarly, it is not clear that Ms. Kollmuss’ heat, telephone, internet and cellphone expenses would change appreciably if she lived alone. The same holds true, on the face of it, for many of the other expenses listedon her Financial Statement. [45] Ms. Kollmuss does fix her monthly food and meal expense at nearly $1,000.

The $200 figure I alluded to earlier would notappear to adequately account for Curtis’ portion of these expenses, though I note that Curtis spends alternate weekends with his father,and I was told that he is provided lunch at the school and/or daycare that he goes to. [46] There are also other costs on Ms. Kollmuss’ Financial Statement that likely can be ascribed to Curtis’ needs but the extent towhich this would be so is conjecture. Indeed, Ms. Kollmuss, in her affidavit materials, comments that Mr.

Kollmuss’ notional budgetsfor both her expenses and for Curtis’ expenses were based on “assumptions” and are, in some respects, inaccurate. Absent detail andinput from her, it could not be otherwise. [47] The parties are individuals with relatively modest incomes. Those incomes, on an after-tax basis, are similar. There is no doubtthat Ms. Kollmuss has in the past, and continues at this time, to carry the lion’s share of the physical, economic and emotional burdenassociated with Curtis’ care, and that Mr.

Kollmuss has little apparent interest in spending more time with Curtis than is provided forunder their present schedule. To some extent that considerable burden, fortunately, is abated by the $1,500 monthly daycare and respiteallowance Ms. Kollmuss can access. [48] The object of child support, however, is to address Curtis’ daily needs and the cost of those needs, not to achieve householdequalization; Francis v. Baker, (SCC), [1999] 3 S.C.R. 250 at para. 41. Regrettably, I do not consider I am able toaddress this aspect of the present application. I am reluctant to rely on Mr.

Kollmuss’ notional budgets as his estimates and calculationshave, in the past, sometimes been inaccurate. Furthermore, though, Ms. Kollmuss does make reference to some of Curtis’ expenses in hermaterials, I do not consider that that information is nearly adequate. [49] Accordingly, I am directing Ms. Kollmuss to provide Mr. Kollmuss with a reasonable budget, based on either actual expenses or

reasonable assumptions of Curtis’ monthly expenses. She is to do so within 30 days. With this information in hand, the parties, each of whom is represented by experienced counsel, should be able to address the matter. They are to do so within 30 days of receiving Ms. Kollmuss’ information. Thereafter, if the parties require an order to deal with the Family Maintenance Enforcement Program (“FMEP”), they can prepare a consent order or return to address the matter before me. [ 50 ] Let me say that the product I am expecting Ms.

Kollmuss to generate need not be an exacting exercise or an exercise that fixes Curtis’ expenses with great precision. Curtis has many special needs. Some, but not all of those needs, are recognized financially through the supplemental benefits he receives and through Ms. Kollmuss’ medical benefits plan. Those needs that are offset by particular benefits should be referenced as such. The exercise of estimating Curtis’ expenses should be exactly that – an estimate.

The interaction of the parties should recognize both the relatively modest circumstances of the parties, and the fact that Curtis is a young man with many special needs whose care gives rise to a range of expenses. [ 51 ] If the parties cannot agree, they will have to re-set the matter before me. I would not, however, provide Mr. Kollmuss with any “credit” for any “overpayment” of childcare expenses even if I were to determine that the full $410 that Mr. Kollmuss pays monthly was not necessary to meet Curtis’ needs.

Furthermore, having regard to the underlying intention of the considerations that are identified within s. 3(2) of the Guidelines , I also do not consider that placing monies into a savings account for Curtis or having him contribute to a Registered Disability Savings Plan is a childcare expense that Mr. Kollmuss should pay for; C.L.C. at para. 82 . Issue 2: Daycare Expenses [ 52 ] The second issue raised by Mr. Kollmuss arises from his assertion that he has overpaid Ms. Kollmuss for Curtis’ daycare expenses incurred up to the end of July 2014. He seeks recovery of the difference between what he estimates Ms.

Kollmuss actually paid and what he has contributed. That difference, he says, is $2,547.69. [ 53 ] This issue is temporally fixed. It is common ground that effective August 1, 2014, Community Living BC began providing $1,500 monthly to the Delta Community Living Society to provide respite care for Curtis. Ms. Kollmuss is able to use this amount for daycare and respite care. Monies that are not used go back into a pot for donation to other families with special-needs children who require respite services. Both Mr. Kollmuss and the FMEP were advised, at or about August 1, 2014, that Mr.

Kollmuss does not have to contribute to Curtis’ daycare as long as the $1,500 sum continues to be made available to Curtis. Mr. Kollmuss’ claim relates to expenses incurred prior to this change. [ 54 ] Ms. Kollmuss’ ninth affidavit, made April 1, 2015, provides a detailed explanation of her daycare costs from December 2012 to the end of July 2014. I have reviewed that material. I am satisfied that Ms. Kollmuss has acted prudently and that she has incurred the daycare cost she has claimed. This aspect of Mr. Kollmuss’ application is dismissed.

Issue 3: Being Kept Apprised of Curtis’ Activities and Status [ 55 ] Mr. Kollmuss asserts that Ms. Kollmuss will not keep him advised of matters that pertain to Curtis’ activities and his well- being. This would pertain, for example, to Curtis’ school activities, to his health and to government programmes that are available to him. [ 56 ] It is clear that it is overwhelmingly Ms. Kollmuss who oversees and organizes these matters for Curtis. Her primary response to Mr. Kollmuss is that he is free to make whatever inquiries of whatever persons he wishes. She made the same submission at trial.

It was unpersuasive then and it remains unpersuasive now. [ 57 ] There are, no doubt, some inquiries of a routine nature that Mr. Kollmuss can make. This would pertain, for example, to obtaining a copy of Curtis’ report card. The fact is, however, that he does not know when, for example, Ms. Kollmuss will have applied for some programme for Curtis or when she has taken him to a doctor. He would, in such circumstances, have no knowledge of when, or where or from whom he ought to make inquiries. [ 58 ] I need not detail the various examples that are raised in Mr.

Kollmuss’ materials or the responses that are provided to those examples. I am satisfied that, in the main, Mr. Kollmuss’ concerns and position are valid. One particularly egregious example will make clear that Ms. Kollmuss’ position and attitudes are unacceptable. [ 59 ] On Thursday, February 12, 2015, Curtis had a medical emergency. It was believed that he either had a stroke or a protracted seizure. He was admitted to hospital and kept overnight. However, it was not until after 9:00 p.m. that Sunday, February 15, 2015, that Ms. Kollmuss informed Mr. Kollmuss, by email, of what had occurred with Curtis. Ms.

Kollmuss sought to justify her conduct in her affidavit material, though her counsel, properly, conceded that there was no excuse for not having contacted Mr. Kollmuss almost immediately. [ 60 ] The level of dysfunction between the parties hurts them and cannot help but hurt Curtis. Each complains that the friction between them has affected their health. Each seems oblivious to their own conduct and only sees the fault of the other.

The orders I made following the trial contained specific terms whose intent mirrored those portions of the judgment that I referred to earlier in para. 3 of these reasons. [ 61 ] The foregoing terms should be sufficiently explicit that it should not be necessary to supplement them. The difficulty is not one of concept or clarity but, rather, of implementation. Ms. Kollmuss is presently required, by court order, to do the things I have described. If she continues to fail to do so, she does so at her jeopardy. [ 62 ] Mr.

Kollmuss, conversely, must recognize that he has chosen to have relatively little involvement in Curtis’ life. The necessary corollary of this decision is that he cannot know all that occurs in Curtis’ life or have input into all the decisions that affect Curtis’ day-

to-day activities. His view that he could do certain things better than Ms. Kollmuss does is also largely irrelevant. How she manages her budget or her resources, absent something aberrant, is her affair. [ 63 ] Having said this, the parties, in supplemental written submissions, appear to agree that the following additional terms, clarifying their respective reporting, notice or consultation requirements, should be confirmed by court order. Accordingly, I am prepared to order that each of Mr. and Ms. Kollmuss are:

a) to notify the other if they apply for any passport, licence, permit or benefit for Curtis;

b) to notify the other of any notice that Curtis or his parent or his guardian is entitled or required by law to receive;

c) to notify the other of all third-party health, education, income benefits and other information relating to Curtis;

d) to maintain a record of Curtis’ personal records such as his bank account statements, applications and notices from third parties about his income, benefits, health and education;

e) in the case of a medical emergency involving Curtis, to first attend to that emergency and to Curtis’ care, and then, as soon as possible, advise the other of what has occurred;

f) to notify the other, in writing, if they obtain new contact information, or a change of contact information, for any third party who provides care, services or funding to Curtis; and

g) to provide their respective tax information to the other. The case law relevant to s. 3(2) of the Guidelines makes clear that the income of both parents is relevant to the application of that provision. [ 64 ] In addition:

a) in the event that Ms. Kollmuss schedules an appointment relating to or involving Curtis’ care, funding, health, or services, or files applications relating to any of these matters, she is to apprise Mr. Kollmuss, in writing and in advance of these matters; and

b) Ms. Kollmuss is to provide Mr. Kollmuss with Curtis’ income tax returns, benefits and banking information. This need only be done once a year by the end of June. [ 65 ] I do not consider that the additional forms of information that Mr. Kollmuss seeks are necessary. [ 66 ] I do not consider that Ms. Kollmuss need provide Mr. Kollmuss with an annual budget of Curtis’ expenses. The exercise I have described in paras. 49-50 of these reasons, together with the other forms of financial disclosure I have ordered, should address the concerns of Mr. Kollmuss. If Curtis incurs any unusual expenses, Ms.

Kollmuss would, in any event, be required to apprise Mr. Kollmuss of such expenses. [ 67 ] I consider that success on this application is divided. Each party is to bear their own costs of the application. “Voith J.”