E.M.L. v. C.L., 2024 BCSC 73

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: E.M.L. v. C.L., 2024 BCSC 73 Date: 20240116 Docket: E211635 Registry: Vancouver Between: E.M.L. Claimant And C.L. Respondent Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for the Claimant: I. Phillips Counsel for the Respondent: M.R. Epstein Place and Dates of Trial: Vancouver, B.C. November 27-30, 2023 December 1, 2023 December 4-8, 2023 Place and Date of Judgment: Vancouver, B.C. January 16, 2024 Table of Contents I. Introduction and Issues .. 4 II. Background – General .. 5 III. Legal Principles – Parenting Arrangements .. 7 IV.

Background – Parenting Arrangements .. 9 V. Parenting Arrangements – Analysis .. 14 1. Divorce Act s. 16(3) Factors . 18

a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability . 18

b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life 19

c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse . 19

d) The history of care of the child . 20

e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained . 20

f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage . 21

g) Any plans for the child’s care . 21

h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child . 21

i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child 24

j) Any family violence and its impact 25

k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child . 25 2. Section 16(5) – Past conduct not generally relevant 26 3. Section 16(6) – As much parenting time which each spouse as is consistent with the best interests of the child . 29 VI. Conclusions – Parenting Arrangements .. 30 VII. Child Support .. 32 A. Base Child Support 32 B.

Section 7 – Special and Extraordinary Expenses . 35 C.

Section 7 Expenses – Ongoing . 41 VIII. Property Division .. 41 A. Claimant’s Excluded Property Claim .. 41 B. Claimant’s Renovation Expense Claim .. 43 C. Other Property Division Matters . 44 D. Respondent’s Unpaid Expenses Claim .. 44 IX. Conclusions and Costs .. 45 I. Introduction and Issues [ 1 ] These are reasons for judgment in a family law action. [ 2 ] The major issue relates to parenting arrangements for the four children of the marriage.

Other issues relate to child support, including special and extraordinary expenses, and some relatively minor issues relating to property division. [ 3 ] The claimant, the mother, contends that parenting time should be unequal, and that she should be primarily responsible for the children during most weekdays. The respondent, the father, contends that parenting time should be equal. [ 4 ] All four of the children are boys. Their ages are 14, 10, 10, and 8. All four boys were born in the months of January or February, so at trial each was nearing an additional year of age.

In order to respect privacy concerns, I will refer to them as, respectively, W, X, Y, and Z. X and Y are twins. X is technically older by a few minutes. [ 5 ] Each party agrees that the other parent is a fit, capable and responsible parent, generally speaking. They recognize that their parenting styles differ, but that they each bring various strengths to their parenting responsibilities.

They agree that the children have a strong bond with the other parent, and that they wish to encourage and support the relationship of the other parent with the children. [ 6 ] The evidence supports their consensus about these critical issues. [ 7 ] The substantial parenting dispute is, therefore, relatively narrow, and primarily concerns whether parenting time should be substantially equal during the school year, and, secondarily, the particulars of the parenting schedule. [ 8 ] The parties agree that the parenting arrangements and

schedule should be the same for all four children, despite their age differences and differing circumstances. [ 9 ] Many important parts of the final order are agreed to. These include: 1. the continuation of joint guardianship; 2. sharing of all parental responsibilities under s. 41 of the Family Law Act , S.B.C. 2011, c. 25 ; 3. sharing of significant decisions about the children; 4. the appointment of a parenting coordinator to assist the parties, in case they are unable to agree; 5. encouraging the children to have a good relationship with the other parent;

6. equal sharing of parenting time for winter break, spring break, and summer holidays, with special provisions for alternating parenting at Christmas; 7. terms for travel; 8. annual disclosure of incomes, and annual review of child support and s. 7 expenses; 9. in general, equal sharing of family property and debt. II. Background – General [ 10 ] The claimant is 47 years of age. The respondent is 45 years of age. They married in June 2007, at Half Moon Bay, B.C.

They separated April 19, 2021. [ 11 ] At the time of their separation, they resided together with their four children on a five acre property located on M Road, on the Sunshine Coast (“M Road”). They had purchased M Road only a few months before their separation. The purchase completed October 30, 2020. There is a large main house on the property with 4,300 square feet of space, over three levels. There is also a cottage on the property, of approximately 900​ – 1,000 square feet.

Upon separation, initially, the parties continued to reside, separately, in the main house. [ 12 ] At the end of July 2021, the claimant moved into the cottage, while the respondent remained in the main house. In early October 2021, while the respondent was away for the Thanksgiving holiday weekend with the children, the claimant moved into the main house, and moved the respondent's belongings into the cottage, without prior notice to the respondent or obtaining his consent. [ 13 ] The respondent moved into a rented three bedroom house in Gibsons in March 2022. The parties sold M Road in June 2022.

The net proceeds of sale of about $395,000 (after payout by consent of $225,000 to each party) remain in a law firm trust account. [ 14 ] The claimant is a registered nurse. After the sale of M Road, she moved to a rented house located in Davis Bay, approximately 17 km from Gibsons. In June, 2023 she rented a five bedroom house in Gibsons, where she currently resides. [ 15 ] She works for the regional health authority, as a case manager, in community health. She works 4/5 of full time.

She is able to work from home some of the time, but prefers to work out of her office, which is in the local public health building, approximately 2 km from her home. [ 16 ] The public health building where she works is next to the elementary school that the three younger boys attend. The secondary school is across the street. [ 17 ] Her income for purposes of basic child support is $80,148 per annum. This is on the basis of her health authority employment. [ 18 ] In addition, the claimant works twice per month as a pediatric home respite nurse. The shifts are overnight from 10 p.m. to 6 a.m.

The pay is $49 per hour. Her take-home pay is about $800 per month for the two shifts. As far as I can tell, her most recent form F8 financial statement filed May 19, 2023 does not refer to this extra income. The claimant is only able to take these shifts on a day when the children are being taken care of by the respondent. She states that she would prefer not to do this extra respite care work, but needs to do so in order to earn needed income. [ 19 ] The claimant comes from a large family. She has three brothers and two sisters. One of her brothers resides on the Sunshine Coast.

Another brother lives in Powell River. She has two sisters, who reside in the Lower Mainland. Her parents reside in Kitimat. They are retired. [ 20 ] The respondent is trained as a teacher. He obtained a Bachelor of Education degree in 2001. He obtained a Masters of Education degree in 2013, from UBC. After working as a teacher for a number of years, he served as Vice Principal of a school on the Lower Mainland from 2014 to 2016. [ 21 ] From September 2016, he has served as principal of a school on the Sunshine Coast, located approximately 60 km from his home in Gibsons.

It is a small school, serving about 70 students, from grades seven through 12. [ 22 ] The respondent has one brother, who is married, and resides in Tsawwassen. His mother lives in a care home. His father resides in Kitsilano. [ 23 ] The respondent's most recent form F8 financial statement, sworn May 26, 2023, states that his income for child support purposes is $148,631.96. III. Legal Principles – Parenting Arrangements [ 24 ] The notice of family claim and the counterclaim rely on both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .) and the Family Law Act in respect of parenting arrangements and child support.

At trial both parties focused their submissions on the parenting order provisions of the Divorce Act . [ 25 ] Orders should be clear as to what statute is relied upon: Sandy v. Sandy , 2018 BCCA 182 at para. 19 , citing Fitzgibbon v. Fitzgibbon , 2014 BCCA 403 at para. 15 .

[ 26 ] The parenting order I make will be primarily based on the Divorce Act , except for provisions that must rely on the Family Law Act , such as guardianship, and the appointment of the parenting coordinator. [ 27 ] Certain relevant parenting provisions of the Divorce Act are as follows: 16

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. …

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. … 16.1

(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by (

a) either or both spouses; …

(4) The court may, in the order, (

a) allocate parenting time in accordance with

section 16.2; (

b) allocate decision-making responsibility in accordance with

section 16.3; (

c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and (

d) provide for any other matter that the court considers appropriate. … 16.2

(1) Parenting time may be allocated by way of a schedule. …

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons. [ 28 ] As can be seen, in relation to a parenting order, the only consideration is the best interests of the child of the marriage: s. 16(1).

The court is required to consider all factors relating to the circumstances of the child, including those set out in s. 16(3), and in so doing, the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being: ss. 16(2) and (3). IV. Background – Parenting Arrangements [ 29 ] The parties shared parenting time equally in the period immediately following their separation on April 19, 2021, pursuant to an informal agreement. Until early July they parented the children on a 4 day/3 day schedule, on alternating weeks.

During this period of time the parties were able to cooperate well together in sharing parental duties, as they had done prior to separation. [ 30 ] The reasonably amicable post-separation relations between the parties seem to have ended at about the time of an incident occurring July 6, 2021. [ 31 ] The local police were called to M Road on two occasions while the parties were both still residing there; once on July 6, 2021 and once in September 2021.

The testimony of the parties differs substantially about these incidents. [ 32 ] In brief, on the first occasion on July 6, 2021, there was a dispute and minor altercation between the parties. The claimant insisted on entering the upstairs area of the main house at M Road, where the respondent was residing, in order to obtain the parties’ marriage certificate, which she needed to obtain in order to initiate these proceedings. The respondent objected or protested in some way. The respondent began recording the claimant on his cell phone. The claimant says she felt intimidated.

She seized the respondent’s cell phone out of his hand. Voices were raised. The children were present in the home. The claimant and the respondent both called the police, who attended. The incident did not result in any charges or further police involvement. After this incident, the claimant took the children away with her, and stayed with her brother for a week. She then took the children to Savary Island for a planned vacation.

On her return at the end of July, she moved from the downstairs part of the main house into the cottage. [ 33 ] In her self-prepared Notice of Family Claim, filed July 9, 2021, the claimant stated, “I wish to have the children in my primary care over 60% of the time. I wish to share guardianship and parental responsibilities." [ 34 ] As of September 2021, the parties were in dispute about the parenting schedule. The

schedule had become a major area of conflict between them. In the claimant’s view the parenting time should be unequal, with the children in her care during the week, and in the respondent’s care on the weekends, essentially. The respondent’s view was that the claimant was attempting to impose an unequal “5/2” parenting schedule, contrary to the earlier agreement he says the parties had for equal shared parenting.

He says the agreement was for an equal “4/3” schedule, under which he had the children four days in one week, and three days in the other, with Sundays alternating between them. [ 35 ] The claimant says that without prior notice to her, the respondent picked up the children after school on a Thursday in September 2021, and brought them to the main house at M Road. The respondent says that he notified the claimant prior to this by sending her an email to which she did not respond. She says that the respondent was attempting to impose his “4/3” schedule.

She expected the children to be returned to her after dinner. [ 36 ] W called the claimant in the evening to tell her that the respondent was putting the children to bed. She went from the cottage to the house and demanded the children accompany her to the cottage. W went to the cottage. According to the respondent the claimant physically took the other children from his care, including physically removing X from the respondent’s father, who was visiting. The respondent says that the claimant’s father was present, and threatened him. The respondent called the police.

No charges ensued. [ 37 ] It is unnecessary to make conclusive or detailed findings regarding the facts of these incidents. In my view they are only relevant as contextual evidence, showing the high level of conflict between the parties, in the absence of a clear parenting schedule. Neither incident indicates that family violence is a concern in future. [ 38 ] The marital conflicts between the parties caused the claimant to go on stress leave from work as of July 12, 2021. She returned to work on November 7, 2021. Similarly, the respondent went on stress leave from work in October or November, 2021.

The evidence as to the precise commencement date of his leave conflicts. He returned to work in June 2022. [ 39 ] After the respondent went on stress leave, the claimant allowed him more parenting time. The children were in his care from Thursday to Saturday two weeks out of four, and from Thursday to Sunday two weeks out of four. This

schedule continued until the interim parenting decision of the arbitrator on March 2, 2022. Although there have been conflicts about the

schedule since the decision was released, in general both parties have respected the

schedule imposed by the arbitrator. [ 40 ] Both parties have worked steadily during the marriage, except that the claimant was off work for maternity leaves after the birth of the children. She has generally worked somewhat less than full time. The claimant argues that she has been the children's primary caregiver since their births. However, the evidence supports that the respondent has always been involved in the children's care and in their extracurricular activities. He has been an active and involved parent throughout.

The claimant does not suggest otherwise. [ 41 ] As the respondent contends, at various times the parties have needed help from paid caregivers or family members to assist with childcare, and in order to allow the parties to fulfil their work obligations. At one time the parties had a nanny to help with childcare. From January to June 2021 the parties hired a person to assist with morning routines, two hours each day, three times a week. Other family members including the claimant's siblings and the respondent's father have helped out.

As the children's extracurricular activities have increased, the parties have increasingly relied on friends and other parents to assist with driving and rides to activities.

[ 42 ] On November 12, 2021, the claimant filed an application seeking an order that the children would be in her care from Sunday evenings at 8 p.m. until Friday mornings, at school drop off, and that the children be in the respondent's care for three weekends out of four, with one weekend split between them; and that the respondent would have parenting time with the children one evening per week from 4 p.m. to 8 p.m. Thus, the majority of the parenting time would be with the claimant. In his response, the respondent asserted that the 4/3 parenting

schedule had been agreed to and should be continued. He filed an application on January 7, 2022 seeking a 4/3 schedule. The parties were unable to have their applications heard by the court. As a result, they entered into an arbitration, which was conducted in February 2022. [ 43 ] On March 2, 2022, the arbitrator issued a decision determining an interim parenting schedule, and ordering, by consent, the appointment of a parenting coordinator.

No parenting coordinator was retained, as the parties could not agree on one. [ 44 ] The arbitrator noted that the children had a close relationship with both parents, and that this was not in dispute. [ 45 ] The interim parenting order was generally in line with that proposed by the claimant. Since the arbitrator's decision, the parties have largely followed the parenting

schedule ordered by the arbitrator. [ 46 ] The respondent was on stress leave at the time of the arbitrator’s decision. The arbitrator recognized that the

schedule following the respondent's return to work would see the children with the claimant for 21/28 overnights, but reasoned that the respondent had quality parenting time every Wednesday after school which was “just about bedtime which is basically giving this full day of parenting time to dad". Also, the respondent had three out of four Sundays until 8 p.m. He reasoned that the claimant’s

schedule provided for an “almost equal parenting regime” when considered from the point of view of out of school time with each parent. [ 47 ] Apparently on this basis, he ordered that child support be calculated on a set off, shared parenting basis pursuant to s. 9 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. The result was that the respondent paid monthly child support of $144 to the claimant, based upon their incomes at the time, which were similar, as the respondent was on stress leave from work and had a reduced income.

The arbitrator determined the claimant’s income for child support purposes at $90,463, and the respondent’s income at $97,520. [ 48 ] The claimant appealed the child support aspect of the arbitrator's decision. On appeal, Justice Warren accepted that the arbitrator had erred in law by applying s. 9 of the Guidelines . She noted that the arbitrator had made no express finding that the respondent exercised not less than 40% of parenting time over the course of the year, in accordance with s. 9 , and that on a correct application of the Guidelines , the respondent did not meet the 40% threshold.

She found that, including school and overnight hours, the claimant had 67.7% of the time, and the respondent had 32.3% of the time. Justice Warren ordered that the respondent pay interim child support of $2,309 per month commencing March 1, 2022. [ 49 ] On June 19, 2023 the claimant demanded that the respondent’s child support be increased to $3,303, based upon his 2023 income of $148,632. However, the respondent has not increased the amount of child support he pays from the amount ordered by Warren J. [ 50 ] The parties have had difficulties communicating positively and effectively to alter the

schedule as required for special plans, or the children's many activities. There have been many acrimonious, extended communications, mostly via email and text, concerning proposed alterations to the schedule. The claimant asserts that the respondent is uncooperative and unresponsive to her scheduling proposals. The respondent complains that the claimant schedules activities that impinge on his parenting time, without his agreement. V. Parenting Arrangements ​– Analysis [ 51 ] All four children lead busy lives, with several extracurricular activities. [ 52 ] W is a talented, keen hockey player.

He hopes to become a professional hockey player. As noted, he is 14 years of age. He will be 15 in January 2024. In the past school year he attended grade eight at the secondary school in Gibsons, where he achieved very good grades. Effective September 2023, he has been enrolled with a “hockey academy” located in North Vancouver (the “hockey academy”). The hockey academy is focused on developing elite level hockey players. Students attending the hockey academy receive education through a partially self-directed home-schooling program, supervised by teachers.

The school uses the North Island Distance Education School (“NIDES”) program. The registration fees for the hockey academy and associated private schooling are approximately $31,000. [ 53 ] In order to attend the hockey academy and school, W must depart his home in Gibsons at about 6 a.m. in order to make a 6:20 a.m. ferry from Langdale to Horseshoe Bay. The ferry returns to Gibsons in the afternoon at 5 p.m. He spends one or two nights per week at his paternal grandfather's home in Kitsilano. [ 54 ] The claimant describes him as athletic, quiet, intelligent, organized, and responsible.

In order to earn extra income, he referees minor hockey games. His hockey games are scheduled on weekends. The team plays in the Canadian sport school hockey league. Home games are played at an ice rink in North Vancouver. [ 55 ] The claimant states that W’s coach and school report that he is doing very well this year. [ 56 ] W is expected to play baseball in the spring. The games will mostly be on the weekends. [ 57 ] X is 10 years of age. He admires his older brother. Like him, he excels at hockey. He is a hard worker, who is popular at school. He is currently enrolled in grade five.

He received very good grades in grade four. In addition to hockey, he is involved in the related activities of power skating and dryland training. He has two hockey practices during the week, as well as home and away hockey games on the weekends. He and Z also participate in wrestling. [ 58 ] X and Y are identical twins, but according the claimant, Y’s personality is very different than that of X. Like his brothers he is athletic, but no longer plays hockey. He participates in theatre, hip-hop dance, and choir. His grades last year were excellent, with the

exception of mathematics, which was somewhat weaker. [ 59 ] X and Y will likely be involved in track and field in the spring. They participate in a running group prior to school three days each week. [ 60 ] Z is eight years of age and in grade three. His marks in grade two were very good. The claimant describes him as an easy-going child, who is very bright. He plays hockey, and participates in wrestling.

Z is especially close to his eldest brother, W. [ 61 ] The claimant states that all of the boys have a very close relationship with each other, and enjoy spending time together. [ 62 ] The respondent did not disagree with the descriptions of their children provided by the claimant in her testimony. [ 63 ] The claimant states that the children all have a good relationship with the respondent. He is affectionate with them, and they enjoy spending time with him, particularly in various sports and leisure activities. However she states that he is disorganized, and is not a good planner.

She says that co-parenting the children since separation has been very difficult. She says that communications between them since separation have been very problematic. [ 64 ] Other than the parties themselves, the only other witness at trial was the claimant's older sister, L.M. She is a veterinarian who resides near UBC, where she works. She has no children of her own, however she parented a god-daughter for several years, whom she continues to see regularly, and who is similar in age to W. [ 65 ] L.M. has a close relationship with all four children.

She describes both parents as very affectionate with the children. She says the claimant is very well organized, and very good at multitasking. She is calm and patient, and a good listener for the children. She provides good emotional support for the children. She states that the respondent is a “superfun dad”, but tends to be disorganized and chaotic in terms of planning. [ 66 ] The respondent agrees that the children have a close emotional bond with both parents. The respondent contends that the parties have different parenting styles, but they each have parenting strengths.

Despite the generally acrimonious nature of their relationship since separation, he believes that they could continue to work as a team in the best interests of their children, as they did before they separated, once the court decides on the parenting arrangements and schedule. [ 67 ] There are no fundamental concerns with respect to the parenting abilities of either parent. Both are capable, loving parents, who both have close parental bonds with each of their four children. Of course they have different personalities, and unsurprisingly, differing parenting styles.

Managing a busy household with four active children, where both parents work at full-time or nearly full time jobs is no simple or easy task. Both parents are capable of doing so, including by obtaining appropriate supports from friends, family, other parents, or paid caregivers as necessary. [ 68 ] I accept that the claimant has excellent planning and organizational skills. This is consistent with the evidence of all three witnesses at trial.

Her skills in this area are also demonstrated by the documents she prepared for use at trial, including tables and spreadsheets relating to the children's activities, and relating to expenses incurred and her monetary claims. [ 69 ] The respondent has special strengths in relation to arranging for and participating in enjoyable leisure and sports activities with the children. [ 70 ] Based upon the relationship of each party to each child, and the ability of each parent to provide for the care of each child, there is no reason to favour one parent or the other, in terms of the proportion of parenting time that each parent should be responsible for, or the parenting schedule. [ 71 ] The claimant argues for a regular school year parenting

schedule similar to that ordered by the arbitrator. She proposes two options for the regular parenting schedule, which both entail the children spending the substantial majority of nights with her (20 or 21 nights out of 28). The respondent's parenting time would primarily be on the weekends. [ 72 ] The respondent contends that the most appropriate

schedule is a 2-2-5-5 schedule. This is a four week schedule, in which Mondays and Tuesdays are always with the claimant, Wednesdays and Thursdays are always with the respondent, and Fridays through Sundays alternate between the parties. Therefore, under this schedule, weekdays and weekends are shared equally. The weekends alternate between the parties. This is one of the schedules suggested in the AFCC-BC Parenting Plan Guide prepared by a parenting plan guide task force appointed by the British Columbia

Chapter of the Association of Family and Conciliation Courts (AFCC-BC). [ 73 ] There is a six year age gap between the oldest and the youngest child, and their needs and circumstances vary. However, as noted, it is common ground that the same parenting

schedule should apply to all four children. I agree that it would be inappropriate and impractical to have different parenting schedules for the children. The commentary in the AFCC-BC parenting plan guide is applicable in the circumstances of this case: Siblings are usually good emotional support for one another, and keeping them together in a parenting

schedule often provides them with security. It is generally emotionally preferable and more practical to keep siblings together during parenting time, even if there are age differences that extend over several years. Guardians need to develop a plan that works well for all of their children, even if that plan may not be developmentally optimal for one child at a particular point in time. [ 74 ] As the Divorce Act indicates, all factors relating to the circumstances of the child must be considered. Nonetheless it is convenient to group the considerations with reference to the specific factors enumerated in s. 16 of the Divorce Act . 1. Divorce Act s. 16(3) Factors

a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[ 75 ] The claimant argues that the children have very busy schedules as a result of their many extracurricular activities, and that given their busy lives, they have a great need for stable and predictable support from their parents. I accept that submission. [ 76 ] The claimant argues that she has strong planning and organizational skills, and is the more stable, trustworthy and reliable parent. The claimant argues that the respondent is not as organized and reliable, and tends to postpone decisions.

As noted, I accept that the claimant has exceptional planning and organizational skills, which are important for planning and scheduling the children's busy lives. However I do not conclude that the respondent is unreliable or not capable of attending to these needs satisfactorily. [ 77 ] The children need a simple, predictable schedule, that minimizes scheduling conflicts and acrimony between the parties, and minimizes the need for the parties to communicate and negotiate scheduling matters.

Both parents are fully capable of providing stable households that support the children's needs in all areas, including their education, extracurricular activities, and social and emotional needs. Consideration of this broad factor does not lead to the conclusion that one or the other parent should be responsible for the majority of parenting time.

b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life [ 78 ] As previously noted, each child has a strong emotional bond to both parents. They have positive relationships with both of them. As the parties acknowledge, each has different strengths as a parent. [ 79 ] Again, this is a neutral factor in the analysis.

c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse [ 80 ] I accept the evidence of both parties that they value and support the relationships their children have with the other parent. The parties successfully co-parented the children during the marriage, and in the early period after their separation.

d) The history of care of the child [ 81 ] As noted, the claimant argues that she has been the primary caregiver for the children since their births. She contends that she continues to be their primary source of emotional support. She also argues that some weight should be given to the status quo . She argues that her proposals are similar to the

schedule that has been in place for the past 21 months, since the arbitrator's decision, and before that. [ 82 ] As noted, both parents have been actively involved in the care of the children since birth. [ 83 ] In my view, the history of care of the children does not militate in favour of unequal parenting time. Initially the status quo was imposed by the claimant. As the trial judge, with the benefit of a full evidentiary record, no deference is owed by me to the interim decision of the arbitrator. In any event, maintenance of the status quo is not a significant consideration in the circumstances of this case.

I do not foresee any great difficulty in the children or the parties adapting to a modified schedule.

e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 84 ] The parties did not adduce any professional reports or assessments relating to the views of the children. I interviewed the children during the course of the trial in order to assess their views and preferences. [ 85 ] None of the children expressed a preference for either parent. All of the children enjoy spending time with both parents. [ 86 ] W expressed no strong preference for spending time with one parent or the other. He was content with the present schedule.

He noted that the claimant's five-bedroom house had more space than the respondent's three-bedroom home, in which his three brothers share a single bedroom. However he noted that he is now away in the city much of the time. [ 87 ] X cautiously suggested that he would like to spend another night with the respondent. Y stated that he would like the parenting time to be equal as between them. [ 88 ] Y’s wish for equal parenting time is consistent with the evidence that in September 2021 he said to a school guidance counsellor that he wanted to spend more time with his father.

Standing alone I would have been inclined to give minimal weight to this hearsay evidence from more than two years ago. However in the context of Y's currently expressed wishes, this evidence takes on greater significance. It tends to show that Y has been wanting to spend more time with the respondent for a long time. [ 89 ] Z had no discernible preference for either parent or any particular schedule.

f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage [ 90 ] There is no evidence of any significant circumstances in this respect.

g) Any plans for the child’s care

h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

[ 91 ] These considerations may be considered together. [ 92 ] Both parties are capable parents. [ 93 ] A major focus of the evidence at trial related to practical matters having to do with the care of the children before and after school, and in relation to their many activities. [ 94 ] Fortunately, both parents have structured their lives in such a way as to be able to look after the children. Currently they both rent accommodation in central Gibsons near the elementary and secondary schools, and the community centre, where the ice rink is located.

They are both relatively close to the all-important Horseshoe Bay to Langdale ferry terminal. [ 95 ] Both residences are close enough to the schools that the children can walk or ride bicycles to and from school if they wish. They often check in with the claimant at her nearby place of work after school, as well. [ 96 ] The claimant changed jobs effective July 2022, taking on her current position with the health authority, which allows her to be available for the children each Monday, and provides flexibility in her work. [ 97 ] Her regular work hours are 8 a.m. to 4 p.m., Tuesday to Friday. However her

schedule is somewhat flexible. She could start as late as 9 a.m. and stay until 5 p.m. She could work Monday and take Friday off. She can work Mondays, and bank time to use later. This is how she arranged time off for the trial. [ 98 ] The claimant points out that she has Mondays off, and that her work location is next to the school, whereas the respondent works full-time as a school principal of a school which is located about 60 km away from Gibsons. The respondent's work requires time- consuming daily commutes, lengthening his work day.

Travel time from his home to his school is approximately 50 minutes. [ 99 ] The respondent insists that he can manage the children's care on the equal time

schedule he proposes. [ 100 ] At his examination for discovery he testified that he usually left for work at 6:45 a.m. in order to arrive in the school just before 8 a.m. to unlock the building, and arrives home between 4:30 p.m. and 5 p.m. At trial, he stated that he is able to rely on one of the two “teachers in charge” or an administrative assistant, to open the school, if necessary. On this basis, he needs to leave home at about 8 a.m. in order to arrive at the school by 9 a.m. on each school day. The school day ends at 3:10 p.m.

He testified that he can arrange to leave the school earlier in the afternoon, if necessary. He estimates that he works 45 to 46 hours per week. [ 101 ] The respondent's work location could change. He is seeking work in or close to Gibsons. [ 102 ] The main current issue is morning care. The claimant contends that the respondent has no viable plan for looking after the children in the mornings and ensuring that they get to their activities. [ 103 ] The younger three children sometimes have morning activities such as early-morning hockey practices or power skating, or running group at the school.

They often have afternoon or evening activities such as dryland training, dance, theatre, and choir, or hockey practices. [ 104 ] I accept that the respondent has enough flexibility in his

schedule so that he can take care of the children's needs or arrange for their needs to be taken care of by others, during his parenting time, on his proposed schedule. [ 105 ] The respondent recognizes that he may sometimes need assistance from others, including other parents, with transportation, for example. This is not unusual in a busy family with four active children. [ 106 ] In my view it is not necessary for the respondent to prove that he can personally take care of all contingencies. The children's needs and their activities will constantly evolve. Both parents will have to adapt accordingly.

I am satisfied that both of them can adequately manage and support their children's activities and their needs, generally. [ 107 ] The claimant drives W to the ferry early in the morning while the other three children remain at home. The respondent expresses concern that the claimant leaves the three younger children alone in her residence for 15 or 20 minutes while she drops W off at the ferry terminal in the morning. I am not persuaded that this is unsafe. The children know where their mother is, and how to reach her if necessary.

The respondent could do the same. [ 108 ] Neither party is concerned that the children are on their own at times after school. [ 109 ] There was no evidence at trial that either party has re-partnered. As a result there are no issues relating to actual or potential step- parents or step-family members. [ 110 ] Both parties allege that the other has a financial ulterior motive in relation to their proportion of parenting time.

The claimant argues that the respondent seeks equal, shared parenting in order to reduce his child support obligations, by obtaining a set-off of child support pursuant to s. 9 of the Guidelines . The respondent argues that the claimant wishes to avoid a set-off, and therefore seeks to avoid allowing him 40% or more of the parenting time. He notes that the claimant was content with equal shared parenting, until about three months after separation, around the time she filed her Notice of Family Claim, in which she specifically stated that she wished to have the children in her primary care over 60% of the time.

The respondent asks me to infer that as of July 2021, when the claimant filed the Notice of Family Claim, she had become aware of the financial implications of shared parenting in relation to child support payments. [ 111 ] In my view it is likely that child support considerations have affected the thinking of both parties to some extent. This is an unfortunate reality in many cases of this nature. However, this factor forms no part of my analysis.

i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in

particular with one another, on matters affecting the child [ 112 ] The parties have had difficulty communicating with each other since separation in relation to scheduling matters. I accept the claimant's criticism of the respondent in this respect. The respondent has not always responded promptly and succinctly to the claimant's communications regarding the children. His responses have sometimes been untimely, or lacking in clarity, or qualified, such as by suggesting that extensive dialog is required before a decision can be made.

Examples include the matter of the hockey academy, and a UBC camp for X and Y in the summer of 2022. [ 113 ] However, fundamentally, I am of the view that both parents are supportive of each other's parenting of the children, as they both assert. Their communications and their cooperation need to improve. In my view a simple and clear parenting

schedule will assist them. As noted, they agree to the appointment of a parenting coordinator. A parenting coordinator should be able to assist them in relation to communications, cooperation and collaboration in the best interests of the children. They could both perhaps benefit from parenting coaches, but I make no order in this respect, as the topic was not addressed at trial.

j) Any family violence and its impact [ 114 ] In her Notice of Family Claim, the claimant stated that she has “concerns regarding the safety and security of the children”. Her pleading was filed on July 9, 2021, just three days after the July 6, 2021 incident, when the police were called to the home. At trial the claimant testified that she had no safety concerns regarding the children while in the care of the respondent. [ 115 ] There is no evidence of family violence within the meaning of s. 2(1) of the Divorce Act .

The July and September 2021 incidents were uncharacteristic of the parties’ relationship and were driven by situational circumstances. Neither party made any reference to family violence in their submissions at trial. Family violence is not relevant in this case.

k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child [ 116 ] There are no relevant criminal proceedings. [ 117 ] As to civil proceedings, the claimant's parents have brought civil proceedings against the parties claiming in unjust enrichment for work done by them in cleaning and renovating the house and cottage at M Road between October 29, 2020 (when the parties acquired the property) and June 1, 2022 (when the property was sold).

Their claim states that the property increased in value from $1,220,000 to $2,080,000, an increase of $860,000 over that period of time, and say that they contributed to the increase in value through their efforts. In addition to compensation for their efforts, they seek repayment of $4322.74 for out-of-pocket expenses. [ 118 ] In her Response to Civil Claim, the claimant consented to most of the relief sought.

She has settled the claim against her for the amount of $75,000, which she has not yet paid. [ 119 ] The respondent opposes the claim, contending that the efforts of the plaintiffs were gratuitous, and intended to benefit their daughter, and her family. [ 120 ] On the first day of the trial I dismissed an application brought by the claimant's parents for an order that $150,000 from the sale proceeds of M Road be retained in the law firm's trust account, presumably for the benefit of and as security for their claims. [ 121 ] The civil proceedings brought by the claimant's parents could of course negatively affect the finances of the respondent, in particular, which could have consequential effects on the well-being of the children.

However, the merits of the claim are questionable. In any event, the parties collectively have the capacity to earn incomes that will adequately provide for the care of the children. In my view the civil proceedings are not relevant to the parenting issues in this case. 2.

Section 16(5) – Past conduct not generally relevant [ 122 ] Section 16(5) states that the past conduct of a person is not relevant to the court’s decision as to the exercise of parenting time or decision-making responsibilities, except when it is. [ 123 ] The claimant argues that there are aspects of the respondent's conduct that are relevant. [ 124 ] The respondent has had serious problems with gambling, which came to light in 2015. At that time he disclosed to the claimant that he had accumulated gambling debts of about $170,000. The respondent’s gambling mostly took place in casinos.

He hid his gambling addiction from the claimant and lied to her about his activities. His accumulated debts included over $50,000 borrowed from his parents, as well as other personal loans, bank loans, and misappropriated funds from a side business he was operating in property management. There was a pattern of dishonest behaviour associated with the respondent’s gambling, which he concedes was an addiction. [ 125 ] The disclosure of the respondent's gambling problems and the accumulated debts led to the parties separating for several months in late 2015. In early 2016 the parties reconciled.

The respondent agreed to grant the claimant complete control over their finances. The respondent obtained counselling for his gambling addiction. He continues to receive counselling regularly. [ 126 ] The parties’ separation in April 2021 was triggered by the respondent disclosing to the claimant that he had obtained a bank line of credit, without the claimant's knowledge or consent.

The respondent argues that this was inconsequential. [ 127 ] The respondent argues that his gambling is several years in the past, and is no longer a problem. [ 128 ] The claimant alleges that the respondent’s history shows that he can be dishonest, untrustworthy, is financially irresponsible, and

unable to manage his finances. [ 129 ] The claimant also points to mismanagement of the respondent’s M Road payment. [ 130 ] The claimant responsibly managed her July 2022 $225,000 pre-payment from the sale of M Road. The respondent did not. He spent approximately $80,000 on hockey cards and other sports memorabilia, purchased mainly from online sources. Within a few months, his entire $225,000 payout was spent. He also owes $30,000 to a cousin for money spent on sports memorabilia. He argues that the purchase of hockey cards and sports memorabilia was in part a shared pastime with the children.

He also argues that that these purchases constituted the acquisition of inventory for a business. He denies that the purchase of these items is a form of gambling, as the claimant asserted when she became aware of this. He denies involving the children in a form of gambling, as the claimant asserted. He asserts that he expects to make a profit on the sale of these goods. However he concedes that he “went further than he should have” in acquiring the memorabilia. [ 131 ] I do not accept that the acquisition of sports memorabilia is in any sense a real business.

Instead, it appears to me to be compulsive behaviour similar to the respondent’s gambling. [ 132 ] The claimant argues that the respondent's financial decisions do not prioritize the needs of the children. She notes as well that he has failed to pay appropriate child support in accordance with his income. [ 133 ] I accept that the respondent has been guilty of serious financial irresponsibility. This is a very real concern which could in future affect his ability to provide for the children financially. [ 134 ] He claims that his counsellor is aware of his memorabilia purchases and does not see it as a problem.

I find this very hard to believe. It seems likely that the counsellor was not made fully aware of the relevant facts and circumstances. [ 135 ] However, the respondent continues to participate in counselling for his gambling problem. I infer that he intends to continue with it. He acknowledged some level of regret and embarrassment about the memorabilia purchases, while continuing to defend or justify his conduct. He would be wise to address the memorabilia purchases and his financial management issues with a counsellor. However I make no order in this respect.

None was sought. [ 136 ] In the near-term, the respondent should be able to get by, financially. [ 137 ] The respondent’s May 2023 financial statement lists debts of $165,633. He is liable for unpaid retroactive child support, legal fees in an undetermined amount, and payment of costs for the appeal of the arbitration decision. [ 138 ] However, approximately $395,000 remains in the law firm trust account. In addition, the claimant will pay him $142,500 for his interest in their Savary Island property.

Subject to the potential liability arising out of the claimant's parent’s action, the respondent seems likely to be in a position to pay off his debts, including arrears of child support. He earns a good income and has steady employment. [ 139 ] In

summary, I am not persuaded that the respondent's problems with financial mismanagement and gambling, or other compulsive behaviour, should affect the parenting schedule, at this time. 3.

Section 16(6) – As much parenting time which each spouse as is consistent with the best interests of the child [ 140 ] Section 16(6) provides that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interest of the child. [ 141 ] The respondent argues that this principle militates in favour of equal shared parenting. [ 142 ] As noted by the Supreme Court in Barendregt v.

Grebliunas , 2022 SCC 22 at para. 135 , this factor is subordinated to the question of what is in the best interests of the child, and is better referred to as the “parenting time factor” as compared with previous references to the “maximum contact principle”. [ 143 ] On the basis of the evidence overall, it is in the best interests of the children to have substantial parenting time with both parents. In my view s. 16(6) adds nothing to the analysis, in the circumstances of this case. VI.

Conclusions ​– Parenting Arrangements [ 144 ] In my view, an equal or approximately equal, shared parenting arrangement is in the best interests of all four children, taking into account all of the relevant facts and circumstances. [ 145 ] The next issue is the particulars of the parenting schedule. [ 146 ] The interim parenting

schedule directed by the arbitrator has been problematic. Under that

schedule the respondent has parenting time each Wednesday from 4 to 8 p.m. That

schedule provides that most of the weekend time has been with the respondent (3 weeks out of 4). The exchange at 9 a.m. on Saturday morning of the other weekend has been troublesome, in view of the children’s busy weekend schedules. [ 147 ] Division of parenting time over the weekend should be avoided. Clarity as to which parent is responsible for each weekend is important, and will reduce uncertainty and conflict, as well as weekend transitions, which would be problematic.

[ 148 ] A simple, equal parenting plan such as one week on, one week off, or the respondent's 2-2-5-5 proposal would be strongly preferable. [ 149 ] Leaving aside W, the other children are probably somewhat young for a simple week on and week off schedule, at this point in time. [ 150 ] Overall, the 2-2-5-5

schedule with alternate weekends sought by the respondent is best. This

schedule is simple and consistent. The

schedule leverages the fact that the claimant is off work on Mondays. She will have the children every Monday and Tuesday. The weekends alternate, and are not shared. The respondent will be responsible for the children two or three weekday mornings each week. He should be able to

schedule some of his work activities outside of regular school hours such as meetings or other duties onto the days where the claimant is looking after the children. [ 151 ] This

schedule provides for equal sharing of parenting for both weekdays and weekends. Giving the respondent parenting time on weekdays allows him to be more directly engaged in the children’s schooling, and to apply his knowledge and experience as an educator in this area. It avoids limiting either parent to being the weekend “fun” parent, or the school-week disciplinarian. The children are able to spend weekend time with both parents. Both parents share responsibility for fixed school day responsibilities and routines, such as preparing for school, and doing homework and assignments.

Both parents have an equal opportunity to be involved in the children’s other school-related activities. In a shared parenting arrangement, it is generally better to avoid allocating all weekend time to one parent, unless there are good reasons to do so: John-Paul Boyd, JP Boyd on Family Law , 3rd ed (Vancouver: Clicklaw Wikibooks, 2019) at 378. [ 152 ] This

schedule respects the express desire of Y for an equal parenting schedule. I recognize that W was content with the current schedule, while X suggested only one additional day with the respondent. My sense was that X was for some reason being cautious in suggesting only one more day with the respondent. He may have worried that suggesting more than that would risk upsetting the claimant. In any event, I expect that X would be content with equal time parenting. [ 153 ] W's preference for the current

schedule was in part driven by his preference for the claimant's larger more comfortable home. This is not an entirely insignificant consideration, but it should not be given too much weight. The respondent is looking for larger accommodation, so this circumstance could change. W’s views did not reflect any substantial concern with the parenting of either parent, or time spent with either parent. I suspect that, on the evidence (for example his phone call to the claimant in September 2021), and given his intelligence and level of maturity, W fully understands the importance of the parenting issue to both parents.

As a responsible child he may have felt constrained in expressing his views. Before long, W will be at an age where he will largely decide for himself where he spends his time. He is already spending a fair bit of time away from home. [ 154 ] In my view the wishes of X and Y deserve somewhat more weight, in all of the circumstances. Z is an easy-going child who expressed no real preference.

I expect he will be content with any schedule, and along with his brothers will benefit from substantial parenting time with both parents. [ 155 ] In the circumstances the scheduling issue is somewhat more significant to the issue of the best interests of the younger three children. [ 156 ] I will leave it to the parties to agree if possible on the details of the parenting schedule, in relation to the timing of exchanges.

They will have liberty to apply, in the event that they are unable to agree on this. [ 157 ] The parties agreed on terms relating to Mother's Day, Father's Day, Christmas break, spring break, summer holidays, other holidays, and children's birthdays. Those provisions of the draft order presented at trial will also be ordered. [ 158 ] The claimant seeks an order that the parties shall indicate their summer holiday preference by no later than October 15 of the preceding year, with any disagreement to be resolved with the parties’ parenting coordinator.

The respondent suggested that the date ought to be January 15, rather than October 15. The claimant is required to stipulate for summer holiday vacation times in October of the preceding year, so I will order that the parties will indicate their summer holiday preference by no later than October 15 of the preceding year. VII. Child Support A. Base Child Support [ 159 ] The claimant calculates retroactive base table support owing by the respondent from June 2021 through to November 30, 2023 at $92,325.

According to her calculations, the respondent paid $23,945.56, for a net amount owing of $68,379.44. [ 160 ] The respondent contends that no child support should be payable for the period prior to March 2022, at which time he moved out of M Road.

He argues, in the alternative, that for the period of April 19, 2021 (date of separation) to March 2, 2022 (arbitrator's decision on child support, varied by Warren J.), child support should be paid on a shared parenting net set-off basis pursuant to s. 9 of the Guidelines . [ 161 ] The parties agree that child support should be determined on a straight set-off basis pursuant to s. 9 (

a) of the Guidelines . Neither party has presented evidence or made submissions with reference to ss. 9 (

b) or (c). [ 162 ] Based on his submission that no child support is payable until March 2022, the respondent says his net arrears of child support would be $41,756, taking into account payments he has made, which he says are $24,993. [ 163 ] I accept the claimant's submissions as to the incomes of the parties for child support purposes, as follows:

Year Claimant’s Income Respondent’s Income 2021 $99,280 $138,513 2022 $81,701 $138,232 2023 $81,009 $148,632 [ 164 ] I accept the claimant's submission that child support should be payable from June 2021. The claimant's calculations recognize that for the period from April through to the end of June 2021, the finances of the parties remained intermingled, and therefore no child support should be payable until July 2021. [ 165 ] The evidence shows that the parties separated their finances as of June 2021.

On May 17, 2021 the claimant provided the respondent with a spreadsheet table setting out how their monthly expenses would be divided, on a going forward basis, equally. This equal division was favourable to the respondent, in that his income was larger than that of the claimant. However, it makes some sense in that most of the monthly expenses were in relation to M Road, which would be sold, with the proceeds being divided equally.

The respondent claims for payment of one-half of various payments he says he made, including the M Road mortgage. [ 166 ] As noted, the respondent's alternative argument is that child support should be payable on a set-off basis pursuant to s. 9 of the Guidelines . [ 167 ]

Section 9 of the Guidelines is as follows: 9 If each spouse exercises not less than 40% of parenting time with a child 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 parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 168 ] The children were in the claimant's care for 57 days and the respondent's care for 28 days over the period from July through September 2021. On this basis, the children were in the respondent’s care about 32% of the time. [ 169 ] For the next five months from October through February 2022, parenting was unequal.

The respondent had the children for 10 nights out of 28 (2 nights in weeks one and three, and three nights in weeks two and four.) In weeks one and three, the respondent had the children from after school on Thursdays until noon on Saturdays. In weeks two and four, the respondent had the children from after school on Thursdays until Sunday. The Sunday transition time is not clear on the evidence. [ 170 ] Although the evidence could be more precise about the schedule, doing the best I can with the evidence, in my view the proportionate sharing of nights provides a fair guide.

On this basis, the respondent’s parenting time was approximately 35% during this time period. Even assuming in the respondent’s favour that he was responsible for parenting on Thursday from 9 a.m. until Sunday at 9 p.m., his parenting time over the course of four weeks was 268 hours out of 672 hours, or 39%. This is near the 40% threshold, but does not meet it. However, s. 9 provides that the parenting time is to be assessed “over the course of a year” which indicates that a long term focus is required.

On that view, the July to September parenting time should also be considered, as part of a global assessment of the whole period of time from July 2021 through February 2022. I conclude that on the evidence overall, parenting was not shared within the meaning of s. 9 prior to the arbitrator’s decision. [ 171 ] The fact that this parenting

schedule was imposed by the claimant over the strenuous objections of the respondent does not affect this issue. [ 172 ] As Warren J. determined, parenting was not shared for purposes of s. 9 following the arbitrator’s decision.

Therefore, no set-off of child support obligations is available to the respondent, prior to the present. [ 173 ] The parties will have liberty to apply, in case they are unable to agree on the precise amount payable. [ 174 ] Commencing with the release of these reasons, the respondent will pay child support in accordance with the Guidelines , on a shared parenting, set-off basis pursuant to s. 9 of the Guidelines . [ 175 ] The parties have agreed to terms for the exchange of income information annually, and review of child support and special expenses, annually, or upon written request in the event of a material change in circumstances or other relevant circumstances, and for adjustment of table child support commencing July 1 of the review year.

The terms as agreed to are ordered. B.

Section 7 – Special and Extraordinary Expenses [ 176 ] The claimant seeks payment of the respondent’s share of unpaid s. 7 expenses in the amount of $27,685.34. [ 177 ] The largest single expense in dispute is the respondent’s share of $31,755 that the claimant has paid for W's participation in the hockey academy for 2023/2024. The cost of the hockey school itself including an August training camp was $24,615.

The cost of the private school tuition associated with the hockey academy was $7,140. [ 178 ] After the claimant raised this matter with the respondent in late April 2023, in an email sent May 4, 2023, the respondent indicated that he was willing to support W's participation in the hockey academy, however he stated that he would cover 50% of the costs

(rather than sharing proportionally pursuant to s. 7) and would be prepared to pay only from his share of the funds held in trust. In short,the respondent agreed in principle to the expense, but on the condition that he access the funds in trust to pay his share of the cost. Theclaimant would not consent to the release of further trust funds for this purpose.

The claimant was not aware at this time that therespondent had already spent the entirety of the $225,000 pre-payment he had received from the proceeds of sale of M Road. [179] The claimant recognizes that the amount involved is for hockey academy is very large. She indicates that the claim is made onlyfor the current year. She indicates that time will tell whether the finances of the parties and other factors justify continuation of W’sparticipation in the hockey academy program beyond this current season.

This is a sensible approach. [180] Section 7(1) and (1.1) of the Guidelines is as follows: Special or extraordinary expenses 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the followingexpenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests andthe reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern priorto the separation: (

a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spousewho has the majority of parenting time; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professionalcounselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speechtherapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’sparticular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking intoaccount that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determinedthat the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse wouldreceive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court hasotherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [181] A

summary of the relevant principles in relation to s. 7 expenditures is found in Bodine-Shah v. Shah, 2014 BCCA 191: [66] Special expenses listed in ss. 7(1)(a)-(

c) and (

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

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

Relevant considerations for the tests of necessity and reasonableness include whether theexpenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, the child, and tothe family’s spending pattern prior to separation. See McLaughlin v. McLaughlin (1998), (BC CA), 57 B.C.L.R. (3d)186 at paras. 81-82 (C.A.). In assessing “means”, the court may consider the parties’ capital assets, income distribution, debts, third-party resources, access costs, support obligations, receipt of support, and any other relevant factor: Delichte v.

Rogers, 2013 MBCA 106,37 R.F.L. (7th) 81 at para. 38. Courts may consider whether the non-custodial parent was consulted regarding the expense, though a lackof consultation does not automatically preclude a finding that the expense is reasonable and necessary: Delichte at paras. 39, 44. [182] Generally, recreational sports and other similar extracurricular activities such as dance lessons, community sports leagues, skitrips etc. will not qualify as special or extraordinary expenses, unless the child's participation goes beyond that of an ordinary child:Dorey v. Havens, 2019 BCCA 47 at para. 44, citing Clarke v.

Clarke, 2014 BCSC 824 at paras. 48–54.

[ 183 ] In the circumstances of this case, in my view the hockey academy expense qualifies as an extraordinary expense for extracurricular activities, pursuant to s. 7(1) (

f) and 7(1.1) . [ 184 ] W was recruited by representatives of the hockey academy, who suggested that W was an exceptional player who could benefit from the program. I place some weight on this as an indication of W’s exceptional talent. The program is, by definition, one designed for elite athletes in hockey. The respondent suggests that the hockey academy is motivated by a need to recruit paying players, which is no doubt true.

But on the other hand, the hockey academy has a strong interest in recruiting and developing elite hockey players in order to have winning teams and to be able to tout the athletic and professional success of its participants. The claimant testified that W is an exceptional player. The respondent did not disagree. [ 185 ] The program is very important to W. When I spoke with him, he noted that the program was “awesome”. W’s word choice stood out, in the context of an otherwise neutral and reserved presentation. The evidence indicates that W is very dedicated to the program.

The claimant noted that W is draft eligible this year. I infer she meant that he is at an age where he could be scouted for junior or college leagues. As with almost any 14 or 15 year old youth, a professional athletic career is a long shot, but there is a path towards W’s objective. The parties should support W’s hope if they have the financial means. [ 186 ] The parties have a combined income of approximately $230,000. The respondent's share of the expense at 65% is approximately $21,000. The parties have some assets, including the remaining trust funds and property.

The claimant used a portion of her $225,000 trust fund pre-payment to fund the hockey academy expense. The respondent can also utilize his assets to pay his share. [ 187 ] The cost is significant, but I bear in mind that the respondent has spent at approximately $80,000 purchasing sports memorabilia, since separation. He continues to hold all of these goods. He describes his expenditures as an investment.

He testified that he expects to make a return (profit) on selling it. [ 188 ] While I am exceedingly sceptical about the market value of this property, there is no actual evidence about that, other than the testimony of the respondent. The respondent listed this property on his F8 as a sports collectibles collection worth $55,000. In my view the respondent cannot claim that the hockey academy expense is unaffordable in the face of this expenditure and his assertion that the goods are a valuable asset. [ 189 ] Prior to separation, hockey was a very important activity for both parties, and their children.

The arbitrator noted that the parties agreed on certain s. 7 expenses, including hockey, power skating, volleyball, basketball, baseball, soccer, and hip hop dance. [ 190 ] In my view, the one-year expense for the hockey academy, while large, is reasonable and necessary in view of W’s best interests, in all of the circumstances. Whether similar expenditures are reasonable in future will depend upon circumstances at that time. [ 191 ] The respondent noted that the parties have three other children to consider. [ 192 ] It may be that exceptional expenditures of this type cannot be justified for the other children.

That will depend on circumstances in future. It is not a present consideration. [ 193 ] I have no doubt that the claimant has incurred all of the other s. 7 expenses that she has listed in the tables she prepared. She has in each case indicated the amount, date, purpose, and where the expense was paid from. In the last few months, all of the more recent expenses have been submitted to the respondent through a parenting app that the parties have been using, called Two Homes. In most cases the respondent has paid his share of the expenses. [ 194 ] The respondent refused to pay for choir, for Y.

He objected that the choir was scheduled for his parenting time. That is not a valid reason not to pay the expense, which is modest, and should be a shared expense. Y no longer plays hockey. Fairness as between the children is a factor militating in favour of shared payment of Y’s expenses for extracurricular activities such as dance (an agreed expense as noted by the arbitrator). [ 195 ] The respondent has declined to pay for certain hockey equipment for W. This is about $1,200. These expenses are appropriate given W's participation in the elite hockey program.

Also appropriate are the hockey related activities such as referee clinics. W now referees minor hockey games in order to earn income, and the respondent takes the position that he should contribute to his own expenses. [ 196 ] The respondent has declined to pay for W’s golf activities. These are minor expenses. He states that he already takes W to a different golf course. Given the expenditure on hockey and other activities, I conclude that golf is not a reasonable or necessary expense within the meaning of s. 7.

Mountain biking expense was not agreed to and does not qualify, in my view. [ 197 ] The claimant claims for the cost of the Two Houses subscription. Among other things this program provides for communications about activities, scheduling, and expenses. It is a necessary and reasonable expense that should be shared, within the category of extraordinary expense for extracurricular activities, even though the program has broader functions. The parties have agreed to use the Two Houses program in their draft order. [ 198 ] In

summary, all of the claimant’s unpaid s. 7 claims are allowed, with the exception of golf and mountain biking. [ 199 ] The respondent says that he paid $4,652.96 for s. 7 expenses that the claimant should reimburse proportionately. Unlike the claimant, the respondent did not provide timely advance notice with backup details for this claim. As suggested by the claimant, I direct that this claim be referred to the registrar for assessment along with the respondent’s other unpaid expenses claims, which are discussed below, and for the same reasons.

However, the respondent’s claim of $230.95 for bicycle expenses is rejected, in view of my rejection of the claimant’s claim for mountain biking expense, and the general principles applicable. The respondent’s remaining s. 7 claim is $4,422.01.

C.

Section 7 Expenses – Ongoing [ 200 ] I did not receive detailed submissions as to an order for special and extraordinary expenses payable in future. Based upon the draft order submitted by the claimant at the opening of trial, there are some areas of agreement, in relation to the order sought. Those orders to which the parties indicated agreement are made. [ 201 ] The parties have liberty to apply in relation to any further orders sought regarding special and extraordinary expenses in future. VIII. Property Division A. Claimant’s Excluded Property Claim [ 202 ] The claimant claims for an exclusion in the amount of $15,240, based upon s. 85(1) (

a) of the Family Law Act , for property acquired by a spouse before the relationship with the parties began, together with s. 85(1) (g), property derived from such property or the disposition thereof. [ 203 ] I adopt the applicable principles set out in my recent decision in B.S.W. v. W.F.W. , 2023 BCSC 1925 at paras. 129–130 . [ 204 ] As in that case, the claiman

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