Hull v. Kornilov, 2024 BCSC 82

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hull v. Kornilov, 2024 BCSC 82 Date: 20240117 Docket: E212058 Registry: Vancouver Between: Kate Louise Hull Claimant And Nikita Kornilov Respondent Before: The Honourable Justice Kent Reasons for Judgment Counsel for the Claimant: D. Rogers R. Rezai, Articled Student Counsel for the Respondent on August 29, 2023 and appearing in person: S. Mah N. Kornilov Place and Dates of Hearing: Vancouver, B.C. August 3, 2023, September 29, 2023, and November 24, 2023 Place and Date of Judgment: Vancouver, B.C.

January 17, 2024 Table of Contents Introduction and Overview ... 3 Issues to be Decided .. 4 Mr. Kornilov’s Guideline Income .. 5 Undue Hardship .. 8 Legal Principles . 8 Analysis . 12 Retroactive and Prospective Child-Support .. 15

Summary and Conclusion .. 18 Introduction and Overview [ 1 ] Ms. Hull and Mr. Kornilov are the parents of four year old Mila, born in British Columbia on November 14, 2019. These Reasons for Judgment address child support for Mila.

[ 2 ] The parents met in May 2018 when Ms. Hull travelled to Whistler from Australia on a two-year working holiday visa. They had a romantic relationship and lived together for a while but were never formally married. The claims for child support are thus governed by the Family Law Act, S.B.C. 2011, c. 25 . [ 3 ] In May 2019 the parties travelled to Australia to visit Ms. Hull's family. After they returned to Canada, they had discussions about moving to Australia on a permanent basis but no decisions were reached. [ 4 ] Mila lived with both parents for approximately 11 weeks following her birth. Thereafter Ms.

Hull took Mila to Australia at the end of January 2020, a trip to which Mr. Kornilov agreed based on his understanding they would be returning after one month. However, in mid-February 2020 Ms. Hull informed Mr. Kornilov that she had decided to stay in Australia with Mila and that their relationship was over. [ 5 ] Mr. Kornilov instituted proceedings under the Hague convention seeking an order for Mila's return to Canada. He obtained such an order from the Family Court of Australia in August 2020 and successfully resisted an appeal of that decision in August 2021. Ms.

Hull and Mila then returned to British Columbia. [ 6 ] This action was started in September 2021. Matters in dispute included parenting arrangements and child support for Mila. In large measure, these questions were governed by Ms. Hull's desire to return to Australia with Mila, a proposed relocation that Mr. Kornilov strenuously opposed. [ 7 ] The action proceeded to trial before Mr. Justice N. Smith of this court for a period of 8 Days in April 2022. His reasons for judgment were released on May 31, 2022, at which time an order was made permitting Ms. Hull to relocate Mila to Brisbane, Queensland, Australia.

Mr. Kornilov was granted parenting time (“sole care”) of Mila in British Columbia for “at least one month of each year” and “for at least half the time” during any occasions that he “is able to travel to Australia”. [ 8 ] At trial, Ms. Hull informed the court that if relocation to Australia was permitted, she would not be pursuing her claim for spousal support and that she was also prepared to release “some of the claim for child support”. [ 9 ] While Justice Smith acknowledged Ms.

Hull’s entitlement to waive spousal support, he noted, quite correctly, that child support was the right of the child and was not capable of being waived or negotiated away by either parent. He also noted however that, given Mr. Kornilov’s “relatively modest income”, a departure from the standard child support guideline table amounts might be warranted under the s. 10 “undue hardship” provisions of the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”) so that potential parenting time for Mr. Kornilov in Australia might be maximized. He therefore adjourned any child support decision so that Mr.

Kornilov might “have liberty to apply under s. 10”. [ 10 ] Since he was seized of the trial, including Ms. Hull’s adjourned claims for retroactive and prospective child support, Justice Smith was clearly contemplating that these issues would be decided by him in due course, whether as a continuation of the trial or perhaps as a chambers application. However, for reasons that are not entirely clear, that did not occur.

Instead the parties entered a Final Order on September 2, 2022 reflecting the trial judgment and thereafter in May 2023 they each filed competing child support applications which eventually came before me in chambers on three separate occasions ultimately concluding on November 24, 2023. Issues to be Decided [ 11 ] Mr. Kornilov applies under s. 10 of the Guidelines to invoke “undue hardship” as the basis for reducing his child support obligation to zero. He also seeks an order that Ms. Hull returned to him any child support paid since January 1, 2022. [ 12 ] For her part, Ms.

Hull seeks retroactive child support from March 1, 2020 forwards pursuant to s. 170 (

b) of the Family Law Act and prospective child support based on Mr. Kornilov’s Guideline income as of June 1, 2023. [ 13 ] I will therefore start by determining Mr. Kornilov’s Guideline income for the years 2020-2023 and will then move on to determine whether he is incurring “unusually high expenses in relation to exercising parenting time” with Mila such that he has and will continue to suffer “undue hardship” warranting relief from paying some or even all of the Guideline amount of child support he would otherwise be required to pay. Mr.

Kornilov’s Guideline Income [ 14 ] I was not the trial judge in this case and I have not been provided with any transcript of the trial or any documents marked as exhibits at the trial. I simply do not know what evidence was before the trial judge regarding Mr. Kornilov’s employment history and sources of income over the years. [ 15 ] On this child support application, I have been provided with two affidavits sworn by Mr. Kornilov and filed on May 19, 2023 and May 31, 2023 respectively. The evidence before me also includes three Form 8 Financial Statements sworn by Mr.

Kornilov on November 26, 2021, March 24, 2022 and May 18, 2023 respectively. Attached to these various Financial Statements are copies of Mr. Kornilov’s tax returns for calendar years 2019-2022. [ 16 ] In his November 26, 2021 Financial Statement, Mr. Kornilov stated that he was employed by Pure Extracts Ltd. and O&R Restaurants Inc. [ 17 ] In his March 24, 2022 and May 18, 2023 Financial Statements, Mr. Kornilov states that he is employed by a numbered company doing business as “Beacon Pub and Eatery”.

[ 18 ] According to Mr. Kornilov’s tax returns, his line 15000 total income for the tax years 2020, 2021, and 2022 was $57,295, $102,000 and $77,500 respectively (slightly rounded). [ 19 ] In his May 18, 2023 Financial Statement, Mr. Kornilov states, In 2022, I took six weeks holiday to exercise parenting time in Australia. Given it was the first year after the trial of this matter, I did not have parenting time in British Columbia pursuant to paragraph 4 of the Final Order. I will (or was ordered to have) such parenting time once per year. For this reason I anticipate that my income will be lower. [ 20 ] Mr.

Kornilov’s tax returns do not accurately reflect his actual income over the years inasmuch as he did not declare any gratuities received as a result of his employment in the hospitality industry and he also did not declare rental income received from renting out rooms in the house in which he lives in Whistler and which he co-owns with his mother. [ 21 ] I am advised by the parties that Mr. Kornilov testified at trial that he was receiving $7,000 per annum by way of gratuities.

In his May 18, 2023 Financial Statement, he discloses (for the first time) annual gratuities in the amount of $8,000. [ 22 ] In each of his November 26, 2021 and March 24, 2022 Financial Statements, Mr. Kornilov discloses gross rental income of $23,400 and net rental income of $16,223, although he does not elaborate on the expenses accounting for the difference between the two. In his May 18, 2023 Financial Statement, Mr. Kornilov makes no reference to any rental income, whether gross or net. [ 23 ] In her May 29, 2023 affidavit, Ms. Hull states that Mr.

Kornilov “has historically always had tenants at [his] property”. She refers to Mr. Kornilov’s evidence at trial that the rental income gets deposited into a joint account owned by Mr. Kornilov and his mother and that it is used to pay the mortgage and other expenses for the Whistler property. [ 24 ] In his responding affidavit of May 31, 2023, Mr. Kornilov says, Contrary to the claimant's belief, I do not always have both rooms occupied. It is common that people stay in Whistler for relatively short periods of time. People often stay for a season, or 3 to 6 months, or similarly short periods.

I have had longer-term roommates, but I do not have any at this time. I have had up to two roommates at a time, but this is not always the case. [ 25 ] Presumably these comments applied equally to his rentals in 2021 and 2022, for which period of time Mr. Kornilov has disclosed on his Financial Statement gross rental income of $23,400 and net rental income of $16,223. It is perhaps not appropriate to take judicial notice of the critical housing shortage in Whistler but there is no reason and certainly no compelling evidence on which to conclude that Mr.

Kornilov could not continue to generate net rental income from his home in an annual amount of $16,223. I therefore impute that amount to him for the purposes of determining his Guideline income for child support purposes in 2023. [ 26 ] In her submissions, Ms. Hull concedes that Mr. Kornilov began receiving gratuities only in 2022 and 2023 when he started his job as a chef in Whistler. She submits, and I agree, that Mr.

Kornilov’s Guideline income should be determined by adding to his ITR total income imputed net rental income of $16,223 per annum and his gratuities in 2022/2023 of $8,000 per annum. [ 27 ] Adding the undeclared net rental and gratuity income to Mr. Kornilov’s total income as declared on his income tax returns results in Mr.

Kornilov’s Guideline income for child support purposes being set in the following amounts which in turn give rise to “table” monthly child support obligations (in parentheses) as follows: • 2020: $73,517 ($701 per month); • 2021: $117,984 ($1,097 per month); and, • 2022/2023: $105,818 ($996 per month). Undue Hardship Legal Principles [ 28 ]

Section 10 of the Guidelines provides for the concept of “undue hardship” which may result in a different amount of child support that might otherwise be payable under the other Guideline provisions: Undue hardship 10.

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising parenting time with a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support underany of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of livingtest set out in

Schedule II. Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable atthe end of that time. Reasons

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [29] As noted above, s. 10(3) of the Guidelines provides that, even if a parent might suffer undue hardship as a result of unusuallyhigh expenses related to parenting time, any consequential application to reduce or eliminate child support must be denied if the supportpayor’s “household” nonetheless has a higher standard of living than the “household” of the other parent. [30] Pursuant to s. 10(4) of the Guidelines, the court may, but is not necessarily obliged to, use the “comparison of householdstandards of living test” set out in

Schedule II of the Guidelines. [31]

Schedule II of the Guidelines defines the term “household” and then prescribes over the course of some four pages a complicatedsix step mechanism for comparing household standards of living.

The process may be summarized as follows: • step one: establish the annual income of each person in each household based on an “income less permitted deductions” formula; • step two: further adjust this annual income for certain additional prescribed deductions and additions; • step three: total up the adjusted annual income for all persons in each household; • step four: determine the applicable “low-income measures amount” in accordance with the prescribed schedule; • step five: divide the household income amount (step three) by the low-income measures amount (step four) to get a “householdincome ratio” for each household; and, • step six: compare the household income ratios… the household that has a higher ratio has the higher standard of living. [32] Kelly v.

Kelly, 2011 BCCA 173 summarizes the law and the procedural framework related to undue hardship claims in thecontext of child support: 33 A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis. First, the parent applying for relief mustdemonstrate the undue hardship that will be caused by paying Guidelines support. Section 10(2) sets out a non-exhaustive list of factorsthat may be considered at this stage, including "an unusually high level of debts" incurred prior to the separation or "to earn a living", and"unusually high expenses in ... exercising access".

This first step has a high threshold. The hardship that must be established is describedin the authorities as severe, extreme, improper, unreasonable, or unjustified: Van Gool v.

Van Gool (1998), (BC CA),59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51. 34 If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent's householdunder s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than the recipient if areduction in Guidelines support is made. 35 If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other than thatrequired by the Guidelines.

This is a narrow discretion, however, and should be exercised cautiously to avoid thwarting the Guidelines'objectives of predictability and consistency: Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada (Irwin Law:Toronto, 2009) at 302. [emphasis added] [33] In M.E.L. v. B.G.L., 2012 BCSC 1841, the court noted that hardship will be “undue” if it is “exceptional”, “excessive” or“disproportionate” in all the circumstances i.e. a contextual assessment is required. The court also noted:

41 Certain additional principles must be kept in mind. In R.D.O. v. C.J.O., 2003 BCSC 804 at paras. 31-32 , Justice Martinson says: [31] Using a purposive approach to statutory

interpretation, the undue hardship

section of the Guidelines should be interpreted in light of: the principle stated in the Divorce Act that parents have a joint financial obligation to maintain their children in accordance with their relative abilities to contribute to the performance of that obligation; and the objectives of the Guidelines , and in particular the objective of establishing a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. [32] Looked at in that manner, the undue hardship

section of the Guidelines is designed to provide relief to parents who have made every effort to meet their child support obligations, but who, for reasons of undue hardship, have been unable to do so. Parliament could not have intended to provide relief to parents who have wilfully ignored their child support obligations. Providing relief in those circumstances would be not only contrary to the principle underlying the enactment of the Guidelines and the objectives of the Guidelines , but contrary to public policy. [Emphasis in original, but also adopted here] [ 34 ] Lastly, it is perhaps worth repeating here part of a “plain English”

summary of child support principles which I often provide to self represented family law litigants, one version of which can be found in Sadana v. Sadana , 2021 BCSC 111 : 62 I start this

section of the judgment by setting out certain uncontroversial general principles of law governing child support. It is hoped that this attempt at "plain English" will guide the parties both in the next steps in this litigation and more generally in their approach to child support issues on the future.

a) General Principles of Child Support Various Supreme Court of Canada cases have articulated certain fundamental principles of law applicable to all child support matters: * a parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to provide financial support for the child automatically arises at birth; * parents have a joint and ongoing legal obligation to provide financial support for their children in a way that is commensurate to their income; * this obligation and the children's concomitant right to support exists independently of any statute or court order; * child support is the right of the child, not of the parent seeking support on the child's behalf; * support payments are based on earning capacity and not just on what a parent actually earns - as a result, parents have a legal obligation to earn as much as they reasonably are capable of earning so that the children receive an appropriate level of support; * a parent does not fulfil his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly; and * both parents must put their child's interests ahead of their own in negotiating and litigating child support. … Analysis [ 35 ] In this case the “undue hardship” alleged by Mr.

Kornilov relates to s. 10(2) (

b) of the Guidelines i.e. “unusually high expenses in relation to exercising parenting time with [Mila]” who now, of course, resides full-time in Australia, some 12,000 km distant from Vancouver. [ 36 ] As noted earlier, the trial judgment granted Mr. Kornilov parenting time (“sole care”) of Mila in British Columbia for at least one month each year (presumably to be arranged by agreement between the parties or, in the event of disagreement, by the court upon application). The Final Order also stated that Ms.

Hull was to be “responsible for bringing Mila or arranging for Mila to be brought to British Columbia for [Mr. Kornilov’s] parenting time each year”. [ 37 ] The Final Order was silent regarding responsibility for travel expenses associated with Mila's attendance in British Columbia for parenting time. Ms. Hull took the position that such expenses should be shared equally between the two parents, however Mr. Kornilov took the position that the concept of “responsibility” imported an obligation on Ms. Hull to pay 100% of such travel costs. [ 38 ] Counsel jointly sought clarification on the matter from Mr.

Justice N. Smith who thereafter issued a memorandum to the parties endorsing Mr. Kornilov’s position and clarifying that it was indeed Ms. Hull who was to be responsible for all costs associated with transporting Mila to and from British Columbia for the purposes of Mr. Kornilov’s allocated parenting time in Canada. [ 39 ] These transportation costs are significant, all the more so if they are combined with the cost of one month's accommodation should Ms. Hull remain in Canada for the duration of Mila's parenting time with her father.

She says, and I accept, that it is unrealistic for her to remain in Canada as she has a one-year-old child with her new partner to take care of in Australia as well as a part-time job as a barista. Hence, she will have to come back and forth to British Columbia to both deliver and retrieve Mila and her travel expenses associated with Mr. Kornilov’s parenting time in this province will include four 15-hour flights for her between Australia and Canada as well as the two flights for the child.

She submits, and again I accept, that the costs of this exercise will be upwards of $10,000. [ 40 ] As also noted earlier, the Final Order also provided that Mr. Kornilov would have parenting time (“care of”) Mila for at least half of the time on any occasions that he is able to travel to Australia. Again, the order is silent about responsibility for the costs of such travel (flights and accommodation). It is also silent regarding the precise mechanics of such shared parenting time during these visits and

presumably relies upon the parents being able to agree on such matters. [ 41 ] Mr. Kornilov did in fact travel to Australia in October 2022 and had six weeks of shared parenting time with Mila. He incurred airfare costs of approximately $2,600 and AirBnB accommodation costs of $6,000. On that occasion, he stayed in Chevron Island on Australia's Gold Coast, approximately a one hour drive from Ms. Hull's home near Brisbane. Ms. Hull submits that this was a high-end and expensive place to stay and that there were less expensive AirBnB options for accommodations closer to her home.

She also points out that, as an exercise of good faith, she offered Mr. Kornilov to have Mila stay with him for five days for each of the six weeks he was there instead of the 50% parenting time contemplated by the order. [ 42 ] Mr. Kornilov earns much more income than Ms. Hull. The latter works part time, 20 hours per week on average, depending on the shifts that she gets. Based on her payslips, her income is approximately $500-$600 AUD per week before tax depending on how many hours are worked. This averages about $26,000-$31,200 AUD per year (approximately $23,000-$28,000 CAD per year). [ 43 ] Mr.

Kornilov’s income is analysed above and in the past three years ranges from approximately from a low of $74,000 and a high of $118,000. His Financial Statements indicate that he contributed $250 per month to his RRSP in 2022 and in 2023 he contributed $100 more to his RRSP along with $100 to his TFSA on a monthly basis. [ 44 ] As well, Mr. Kornilov made no payment towards child support before the Consent Interim Order made in this case at a judicial case conference held December 10, 2021.

This Order was made on an “interim without prejudice basis” and required payment of child support in the amount of $507 a month based on a Guideline income of $54,000, starting January 1, 2022. A retroactive re-calculation of child support to date based on the Guideline incomes determined in this Judgment results in a substantial "shortfall" in Mr. Kornilov’s child support obligations if they are not otherwise eliminated by “undue hardship". [ 45 ] It must be remembered that hardship is only “undue” if it is extreme, excessive, disproportionate or unjustified in all the circumstances. [ 46 ] Mr.

Justice Smith did not articulate reasons why Ms. Hull was and is liable to pay 100% of the costs related to Mr. Kornilov's annual parenting time with Mila in British Columbia, however those costs represent at least one third of her current income. If those costs had been ordered to be shared between the two parents pro rata to their respective income, it might have been appropriate for Ms. Hull to also pay her proportionate share of Mr. Kornilov’s travel and accommodation costs related to his parenting time with Mila in Australia. However, to now treat those costs as “undue hardship” to Mr.

Kornilov eliminating any obligation on his part to pay child support would impose a severely disproportionate obligation upon Ms. Hull for the costs of raising Mila. In my view, this would be not only unfair but would fail to respect the fundamental legal principles animating child-support matters including, of course, the obligation of both parents to provide financial support for their child in a manner that is commensurate with their income and at least until the child reaches the age of majority. [ 47 ] I am not satisfied that requiring Mr.

Kornilov to absorb the costs of travel and accommodation related to any parenting time in Australia would cause him actual hardship. For sure, however, it is not hardship that is extreme, excessive, disproportionate or unjustified in the circumstances. Accordingly, Mr. Kornilov’s application for an order reducing his child support obligation to zero on grounds of undue hardship is dismissed, as is his application for an order requiring Ms. Hull to return to him any child support paid since January 1, 2022.

Retroactive and Prospective Child-Support [ 48 ] I referred earlier to the Consent Order made at a judicial case conference held December 10, 2021 requiring Mr. Kornilov to pay child support in the amount of $507 a month based on a Guideline income of $54,000, starting January 1, 2022.

This order was made on “interim and without prejudice basis”; this is language used by the court to indicate that the order was not intended to be a final decision but instead reflected only an interim “rough justice” outcome pending trial where all issues (here, relating to child support) would be visited afresh based on a full evidentiary record.

Such an order expressly contemplates retroactive variation at trial without the necessity of establishing any material change in circumstances or any of the other conditions for variations specified by s. 152 of the Family Law Act . [ 49 ] It is thus not really necessary to undertake any detailed review of legal principles respecting retroactive child support whether under s. 152 of the Family Law Act or as discussed in leading cases such as D.B.S. v. S.R.G. , 2006 SCC 37 , Michel v. Graydon , 2020 SCC 24 or Colucci v. Colucci , 2021 SCC 24 .

These cases address applications to retroactively increase or decrease child support and/or to rescind child support arrears. They discuss the requirement for a material change in circumstances, effective and/or formal notice of an intent to apply for retroactive changes in support, presumptive dates of retroactivity (three years), and the like. [ 50 ] In this case, Mila was born on November 14, 2019, the parties separated in mid February 2020 and this family law action was started by Ms. Hull on September 10, 2021, well within any three-year “limitation” applicable to any claim for retroactive support.

As noted, the “without prejudice” nature of the interim child support order made at the judicial case conference expressly permits the retroactive reassessment of support based on a more fulsome evidentiary record, whether at trial or, as here, a subsequent application after the child-support determination at trial was adjourned. [ 51 ] Mr. Kornilov paid no child support until the December 10, 2021 Interim Order was made. After the trial completed in late April 2022, Mr. Kornilov stopped making any child support payments until Ms.

Hull registered with the Family Maintenance Enforcement Program (“FMEP”) to enforce collection (at which time Mr. Kornilov of paid the arrears due under the interim order from May 1, 2020 forwards). [ 52 ] In para. 27 of these Reasons for Judgment I have already set out Mr. Kornilov’s Guideline income for the years 2020 through 2023 for child support purposes including the “table” child support required to be paid each month during those years. Based on these numbers, the retroactive child support owed by Mr. Kornilov for 2020 (commencing March 1, 2020) is $7,010 and for 2021 is $13,164.

[ 53 ] Similarly, the child support that should have been paid for the years 2022 and 2023 should have been $11,952 per annum against which actual payments made, whether through the mechanics of FMEP or otherwise, should be credited.

The information before the court regarding these actual payments is a little muddled (it may simply be the difference between $507 per month and $996 per month that is actually outstanding) but if the parties are unable to agree on this arithmetic for the purposes of entering any final order in this matter, they have liberty to apply for further directions in that regard. [ 54 ] Child support orders made under the Family Law Act are determined with reference to the Guidelines .

Section 7 of those Guidelines provides for the inclusion of special or extraordinary expenses in a child support order. The sharing of these expenses is governed by a “guiding principle” that requires parents to contribute in proportion to their respective incomes. [ 55 ] In many cases, the parties will agree on the types of expenses that might qualify as a “s. 7 expense”, although in my experience they often include amounts for recreational and extracurricular activities which this Court has already declared to be neither “special” nor “extraordinary”: see Clarke v.

Clarke , 2014 BCSC 824 , paras. 47 to 54 , a case that I have generally followed in most s. 7 expense disputes that have occurred before me and one which I commend to the parties in this case. [ 56 ] For the time being, Mr. Kornilov’s child support obligation for 2024 will continue on the basis of a Guideline income in the amount of $105,818 i.e. $996 child support per month. However, that child support and indeed all further child support is subject to an annual adjustment based on his actual income, whether declared or undeclared on his income tax returns.

Hence an annual exchange between the parties of their respective annual income is required. [ 57 ] Technically speaking, annual disclosure of Ms. Hull's income is only necessary if proportional sharing of s. 7 expenses is sought in the future. Nevertheless, since this will inevitably occur I will make an order at this time for such mutual disclosure as follows: 1.

Commencing in 2024, both parents will exchange all information required by the Guidelines by May 15 of each year to determine their respective Guideline incomes for child support purposes, including but not limited to the following: a. a copy of their respective income tax return filed for the previous calendar year, including all attachments such as T4 slips (or their Australian equivalent); b. a copy of their most recent statement of earnings received from their respective employer(s); c. documents or information substantiating any income received by either parent which is not declared on their respective income tax returns, including any gratuities and any gross and net rental income (which is to include a statement of the expenses incurred/applied to determine net income); 2.

Following the exchange of income information as set forth above, the parties will adjust the payment of child support in accordance with the Guidelines and will also determine the proportionate percentages for sharing any s. 7 special or extraordinary expenses upon which they might agree; 3. The new amount of child support payable will be effective as of July 1 of each year; and, 4.

If the parties are unable to agree on the amount of the adjusted child support by July 1 following the exchange of financial information aforesaid, they may apply to this Court for a determination of the amount of child support payable retroactive to July 1 of each year.

Summary and Conclusion [ 58 ] In

summary, and for ease of reference, I make the following orders regarding child support: 1. Mr. Kornilov’s Guideline income for child support purposes is determined to be in the following amounts for the following years: a. 2020: $73,517; b. 2021: $117,984; and, c. 2022/2023: $105,818; 2. Mr. Kornilov’s application for an order reducing his child support obligation to zero on grounds of undue hardship is dismissed, as is his application for an order requiring Ms. Hull to return to him any child support paid since January 1, 2022; 3. Mr. Kornilov must pay to Ms.

Hull retroactive child support for the following years in the following amounts: a. March 1, 2020 - December 31, 2020: $7,010; b. January 1, 2021 - December 31, 2021: $13,164; c. 2022: $11,952 minus such support payments made by him during that year, whether through FMEP or otherwise; and, d. 2023: $11,952 minus such support payments made by him during that year, whether through FMEP or otherwise. 4. Should the parties be unable to agree on the calculations required pursuant to paras. 3(

c) and (

d) above, they may apply to the court for determination of the matter.

5. Child support payable by Mr. Kornilov to Ms. Hull from January 1, 2024 forwards is in the amount of $996 per month, to be paid on the first day of each month unless varied by the parties as hereinafter provided or by order of this Court. 6.

Commencing in 2024, both parents will exchange all information required by the Guidelines by May 15 of each year to determine their respective Guideline incomes for child support purposes, including but not limited to the following: a. a copy of their respective income tax return filed for the previous calendar year, including all attachments such as T4 slips (or their Australian equivalent); b. a copy of their most recent statement of earnings received from their respective employer(s); c. documents or information substantiating any income received by either parent which is not declared on their respective income tax returns, including any gratuities and any gross and net rental income (which is to include a statement of the expenses incurred/applied to determine net income); 7.

Following the exchange of income information as set forth above, the parties will adjust the payment of child support in accordance with the Guidelines and will also determine the proportionate percentages for sharing any s. 7 special or extraordinary expenses upon which they might agree; 8. The new amount of child support payable will be effective as of July 1 of each year; and, 9.

If the parties are unable to agree on the amount of the adjusted child support by July 1 following the exchange of financial information aforesaid, they may apply to this Court for a determination of the amount of child support payable retroactive to July 1 of each year. [ 59 ] It is apparent from the above that Mr. Kornilov has not succeeded in his undue hardship application and that Ms. Hull is the successful party insofar as retroactive and prospective child support obligations are concerned. In such circumstances, costs must follow the event and are awarded to Ms. Hull accordingly. “Kent J.”