TPH v. BAB, 2019 BCPC 151

Citation: TPH v. BAB 2019 BCPC 151 Date: 20190709 File No: F-17514 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: TPH APPLICANT AND: BAB RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: N. Sutherland, Articled Student Counsel for the Respondent: J. Fitzmaurice Place of Hearing: [omitted for publication] , B.C. Dates of Hearing: June 13, 14, & 21, 2019 Date of Judgment: July 9, 2019

Introduction [1] TPH and BAB are the biological parents of nine year old LIH. TPH and BAB were in a relationship that began in 2009 andended in 2011 when LIH was one year old. For a number of years TPH and BAB have shared parenting time with LIH in varyingamounts. Since LIH began school in 2015, BAB has had parenting time with LIH during the school week and TPH has had parentingtime on weekends, non-instructional days, and school holidays. The parties agree TPH has LIH in his care over 40% of the time. [2] Both parents have re-partnered since their separation.

TPH supports himself, his wife, and six children from his employmentwith a local sawmill. He also pays BAB child support for LIH. The parents agree this Court ought to determine their respective supportobligations retroactively to November 1, 2016. TPH acknowledges he is the payor parent, but seeks an order imputing income to BAB. [3] BAB seeks increased parenting time with LIH when he is not in school, which TPH opposes. Issue [4] The issues before this Court engage the Family Law Act, SBC 2011, c 25 (the “FLA”) and the Federal Child SupportGuidelines (the “Guidelines”) and ask: 1.

How should parenting time be allocated between TPH and BAB? 2. How should the Court determine TPH and BAB’s child support obligations? 3. Should the Court impute income to BAB for under-employment? 4. What are TPH and BAB’s respective support obligations for LIH? 5. What, if any, are the arrears in child support? [5] This matter came to hearing before me on June 13, 14, and 21, 2019. I heard oral evidence of TPH and BAB and received intoevidence the following documentation: a. TPH’s Financial Statements filed June 15, 2016, September 28, 2016, August 7, 2018, and June 6, 2019; b.

BAB’s Affidavit #1 filed September 30, 2016 and Affidavit #2 filed November 13, 2018; c. BAB’s Financial Statements filed June 13, 2016, September 21, 2018, and June 11, 2019; d. Exhibit 1: Calendar from January-December 2018 indicating the days TPH had parenting time with LIH in 2018; e. Exhibit 2: TPH’s calculations of monies he paid to BAB for LIH’s child support from November 2016 to June 2019; f. Exhibit 3: TPH RBC bank statements from October 1, 2016, to June 10, 2019, for withdrawals ranging from $100 to $1200; g.

Exhibit 4: "Edit Transfer" with the dollar value of $778 which is the sum to be automatically transferred each month fromTPH’s RBC savings account to BAB’s RBC account; h. Exhibit 5: BAB’s hand-written agreement that TPH did not have to pay her child support for LIH for the month of August 2017,but payments would continue on September 1, 2017; i. Exhibit 6: Job postings for nail care technicians in [omitted for publication] and [omitted for publication]; j.

Exhibit 7: Three letters from Canada Revenue Agency to KH dated December 17, 2018, February 13, 2019, and February 14,2019, concerning the Universal Child Care Benefit for LIH; k. Exhibit 8: An exchange of text messages between TPH and BAB from September 15, 2017, to December 14, 2018; l. Exhibit 9: A statement setting out TPH’s arrears of his combined child support payments ordered by Judge Jackson on October11, 2016, (arrears totalling $6,980 from June 1, 2017, to May 31, 2019); m. Exhibit 10: BAB’s statements from the Royal Bank of Canada from June 1, 2017, to May 31, 2019; and n.

Exhibit 11: BAB’s statement from the Royal Bank of Canada, from June 1, 2017, to May 31, 2019, with page numbers. [6] During their closing submissions counsel provided me with the following cases: (

a) Contino v. Leonelli-Contino, 2005 SCC 63; (

b) D.B.S. v. S.R.G., 2006 SCC 37 ; (

c) Fong v. Fong, 2011 BCSC 42 ; (

d) Barker v. Barker, 2005 BCCA177; and (

e) Warbinek v. Warbinek, 2006 BCSC 1728 . I provided the parties with a copy of Justice Schultes’ decision in G.J.L.v. M.J.L., 2017 BCSC 688. [7] The parties have also provided me with their calculations on TPH’s retroactive and ongoing child support payments to KH. Ihave attached TPH’s calculations as Appendix “A” to these Reasons for Judgment and BAB’s as Appendix “B”. History of Proceedings

[ 8 ] This family matter commenced on May 12, 2016, when BAB filed an Application to Obtain an Order against TPH in [omitted for publication] Provincial Court, File 17514. BAB sought orders respecting parenting time for LIH and spousal support. On June 6, 2016, TPH filed a Reply agreeing to orders with respect to parenting time and child support, however, disagreed with retroactive child support.

BAB’s Application to Obtain an Order was amended to substitute a claim for child support in place of spousal support. [ 9 ] BAB filed Financial Statements on June 13 and September 30, 2016 attaching her 2013, 2014, and 2015 tax returns . She declared a Guideline income of $13,000, all of which derived from her self-employment as an esthetician. BAB admitted no other income source, including employment.

BAB’s total income as per Line 150 of her tax returns was (a) $23,194 in 2013 inclusive of $35 in gratuities and a $1,200 Universal Child Tax Benefit (“UCCB”) (b) $20,813.43 in 2014, inclusive of a $1,200 UCCB; and (c) $24,220.29 in 2015, inclusive of a $1,920 UCCB. None of BAB’s returns include a Line 214 deduction for child care expenses.

Also, BAB did not complete Parts 2 or 3 of her June 13, 2016, Financial Statement. [ 10 ] TPH filed a Financial Statement on June 15, 2016, declaring (on page 5) a Guideline income for a child support claim in the amount of $125,396.84 after deducting his union dues of $937.40. At the time TPH was a temporary [omitted for publication] supervisor in the employ of CFP.

TPH’s attached Income Tax Returns showed he earned (a) $114,840.58 in 2014 ($113,298.58 from employment and $1,542 from Employment Insurance) and paid $911.70 in union dues; and (b) $126,334.24 in 2015 ($125,302.89 from employment and $1,031.35 from RRSP income) and paid $937.40 in union dues. TPH also attached his Records of Earnings and Deductions for the pay periods ending May 21, 2016, and June 4, 2016.

The latest record set out TPH’s year-to-date earnings as $62,379.55 [ 11 ] TPH states in para. 3 of his affidavit: I have taken a 6 month position as a relief supervisor at an hourly rate of $36.00, my current position is a [omitted for publication] at an hourly rate of $26.86. If I get the full time supervisor position my salary rate will be $80,000.00/year. [ 12 ] TPH attached a letter dated June 9, 2016 from CFP confirming: a. TPH was hired to work fulltime on April 11, 2012; b. TPH’s “bid job” was that of [omitted for publication]; c.

From May 9 to November 9, 2016, TPH was a temporary relief supervisor earning $36 per hour for a minimum of 40 hours per week; d. TPH applied for the position of [omitted for publication] supervisor as of November 2016. This position paid $80,000 per year; and e.

If TPH did not succeed with his application for [omitted for publication] supervisor, he would return to his bid position of [omitted for publication] in November 2016, which would pay $28.68 per hour for a minimum of 40 hours per week. [ 13 ] On September 28, 2016, TPH filed an updated Financial Statement stating on page 5 his Guideline income for child support was $86,523.20, which included employment income of $84,000 and net rental income of $3,158 and excluded $634.80 in union dues.

TPH’s attached Income Tax Returns indicated his total income per Line 150 was (a) $94,221 in 2013 (not excluding $813 in union dues); (b) $114,840 in 2014 which included $1,542 from Employment Insurance (not excluding $911 in union dues); and (c) $126,333 in 2015, which included $1,031 RRSP income (not excluding $937 in union dues). TPH further attached four of his Records of Earnings and Deductions from CFP for the pay periods ending August 19, 2016, August 27, 2016, September 2, 2016, and September 16, 2016.

The Records show TPH’s year-to-date earnings as a [omitted for publication] as of August 27, 2016, totalled $92,314.66 and his year-to-date earnings as a [omitted for publication] supervisor as of September 16, 2016, totalled $8,076.92. TPH stated in para.3 of his affidavit: I have now been granted a permanent position as a supervisor with a salary of $84,000 per year.

I present this updated financial statement, and include information related to benefits available to me through my employment. [ 14 ] TPH attached to his September 28, 2016, Financial Statement CFP’s offer of employment dated August 11, 2016, for the position of [omitted for publication] supervisor. The letter confirms TPH would earn a base salary of $84,000 and would be eligible to participate in the CFP [omitted for publication] C.S.I.P., which I gather is a discretionary performance bonus.

TPH was also entitled to dental, medical, and disability benefits for himself and his dependents, vacation and enrolment in CFP’s Defined Contribution Pension Plan. [ 15 ] In his September 28, 2016, Financial Statement, TPH completed

Part 2 setting out his annual household expense of $93,779.36 and

Part 3 listing assets valued at $29,664.68 and debts of $8,660. He attached to his Financial Statement invoices from Pacific Northern Gas, B.C. Hydro, Telus Mobility, Mutual Fire Insurance Company, September 9, 2016, RBC Visa Statement, the BMO MasterCard Statement, and the RBC Mortgage Statement, setting out the original and outstanding principal, interest rate and bi-weekly payments. Judge Jackson’s October 11, 2016 Order [ 16 ] The parties attended a hearing before Judge Jackson on October 3, 2016, seeking a judicial determination of ongoing and retroactive child support.

In his written Reasons for Judgment of October 11, 2016, Judge Jackson: a. found TPH liable to BAB for retroactive child support for LIH from March 1, 2015 to October 31, 2016; b. imputed BAB’s annual income during the period March 1, 2015 to December 31, 2015, to be $21,302.48. This was based on a three year average of her income excluding the UCCB. BAB’s Guideline monthly child support obligation during this period for one child was $184; c. found TPH’s annual income during the period March 1, 2015 to December 31, 2015 was $123,302. TPH’s Guideline monthly

child support obligation during this period for one child was $1,113.54; d. found TPH’s annual income during the period January 1, 2016 to August 31, 2016 was $92,314.66. TPH’s Guideline monthly child support obligation during this period for one child was $856; e. found TPH’s annual income during the period September 1, 2016 until further order of the Court was $87,158.

TPH’s Guideline monthly child support obligation during this period for one child was $812; f. fixed the total arrears TPH owed BAB at $15,582; g. set-off the parties respective monthly child support obligations under the Guidelines and found TPH liable for ongoing child support to BAB in the amount of $628 ($812 - $184 = $628); h. ordered TPH pay to BAB $628 per month in ongoing child support commencing November 1, 2016 and continuing on the first of each month thereafter until further order of the Court as long as LIH remains a child under the Family Law Act ; and i. ordered TPH pay BAB the $15,582 in arrears in the amount of $150 per month commencing January 1, 2017, and continuing on the first of each month thereafter until satisfied. [ 17 ] Judge Jackson did not specifically order the parties to exchange ongoing financial disclosure nor did he order a right to review. [ 18 ] On June 22, 2018, TPH filed an Application to Change or Cancel Judge Jackson’s October 11, 2016 Order.

TPH sought orders: a. reducing his child support payments to BAB from $628 per month to $300 per month payable on the first day of every month; b. reducing his monthly arrears payment to BAB from $150 per month to $100 per month; c. granting him parenting time with LIH every weekend and school break; and d. ceasing his child support and arrear payments for the months of July and August while LIH is in his fulltime care. [ 19 ] TPH justified the requested change to Judge Jackson’s October 11, 2016 Order on the basis (

a) his family had grown since the Order; (

b) his expenses had risen significantly; (

c) his debts had been mounting; and (

d) he lost his rental income. TPH did not specifically seek a retroactive variation of Judge Jackson’s October 11, 2016 Order. [ 20 ] On August 7, 2018, TPH filed a Financial Statement stating his Guideline income for child support was $116,503.39, which he earned from his employment as a supervisor with CFP. He estimated his annual household expenses totalled $114,089.74; he valued his assets at $56,911.73; and he declared debts of $49,314.32. To this Financial Statement, TPH attached (

a) his 2017 T4 CFP Statement of Remuneration indicating his total employment income was $116,503.93; (

b) his CFP Record of Earnings and Deductions for the four pay periods ending June 8, June 22, July 6, and July 20, 2018. TPH’s July 20, 2018 Record of Earnings and Deductions indicate his gross earnings to date were $76,774.03 and his net earnings $50,424.65. [ 21 ] On September 21, 2018, BAB filed a Reply opposing a change or suspension or termination of Judge Jackson’s October 11, 2016 Order, and counterclaiming for parenting time and child support pursuant to the Guidelines and special expenses proportionate to the parties respective income.

She did not specifically seek retroactive child support. [ 22 ] On September 21, 2018, BAB filed a Financial Statement in which she declares a Guideline income for a child support claim of $11,967, all of which derived from her self-employment. To her Financial Statement BAB attached: a. a CRA T2125 Business Activities

Summary, indicating in 2016 a gross business income of $10,563 and a net income of $6,426 and in 2017, a gross business income of $20,637 and a net income of $11,967; b. a 2015 Reassessment indicating her total income (Line 150) was $24,808, consisting of employment income of $22,888, Employment Insurance of $430.31 and the UCCB in the amount of $1,920; c. a 2016 Assessment indicating her total income (Line 150) was $12,112, comprising of $4,916 from employment, $6,436 as net business income, and $760 in the amount of UCCB; and d. a 2017 Assessment, indicating a total income (Line 150) of $11,967, comprising her net business income after deductions. [ 23 ] In her September 21, 2018, Financial Statement BAB did not complete

Part 2 setting out her annual expenses or

Part 3 listing her debts or assets.

Also, BAB did not claim in her Income Tax Returns any deduction on Line 214 for child care expenses. [ 24 ] On September 27, 2018, Judge Whonnock ordered, by consent, that within 30 days, TPH provide to BAB copies of his 2016 and 2017 Income Tax Returns along with any Notices of Assessment or Reassessment. [ 25 ] On November 13, 2018, BAB filed an affidavit, in which she stated: a. her only source of income was from her company, [omitted for publication], which she started in April 2016; b. in 2016, her company’s gross sales were $10,563, after deducting her expenses, her total income was $12,112; c. in 2017, her company’s gross sales were $20,637, and after deducting her expenses, her total income $11,967; and d. she anticipated her income in 2018 would be no more than it was in 2017.

[ 26 ] BAB did not include in her November 13, 2018 Affidavit her employment income for the first few months of 2016 or the UCCB she received or information as to her household income or expenses. [ 27 ] In her November 13, 2018 Affidavit, BAB attached TPH’s Notices of Assessment indicating that in 2016 he earned a total income (Line 150) of $138,749 and in 2017, he earned $142,018. BAB said this recently disclosed financial information indicated TPH should have been paying her significantly more for child support than he had since October 2016.

BAB also states (at para. 16) that TPH paid her child support and arrears pursuant to Judge Jackson’s October 11, 2016 Order without issue until July 2017, after which he began to pay late and fell into arrears. [ 28 ] On November 22, 2018, BAB and TPH appeared in [omitted for publication] Provincial Court before Judge Jackson.

At that time, Judge Jackson ordered TPH to provide two of his most recent pay stubs to BAB’s counsel within 10 days of the family case conference. [ 29 ] On May 22, 2019, TPH filed an Application to Obtain an Order in which he sought orders: a. imputing income to BAB of at least $27,700 per year ongoing and retroactive to December 1, 2016; b. requiring BAB to provide TPH information about where and with whom she resides; c. requiring BAB to provide full financial disclosure for herself and her sole proprietorship, [omitted for publication]; d. requiring BAB to provide her personal and business bank statements for the last two years; and e. for an accounting of any child support arrears owing from December 1, 2016, until present. [ 30 ] On June 3, 2019, BAB filed a Reply disputing TPH’s June 3, 2019, Application to Obtain an Order and counterclaimed for orders: a. for parenting time; b. compelling TPH to provide BAB with financial disclosure; c. child support based on TPH’s Guideline income which BAB believed to be $150,000; and d. special or extraordinary expenses proportionate to the parties respective income. [ 31 ] In her June 3, 2019, Reply, BAB did not counterclaim for retroactive child support nor did she seek to vary Judge Jackson’s October 11, 2016 Order. [ 32 ] On June 3, 2019, BAB filed a Notice of Motion returnable on June 6, 2019, for direction of the Court in advance of the June 13 and 14, 2019, hearing dates. [ 33 ] On June 6, 2019, TPH and BAB appeared before the Court on BAB’s Notice of Motion.

At that time I ordered, by consent, TPH would proceed to hearing on his May 22, 2019, Application to Obtain an Order on June 13 and 14, 2019, in substitution of his June 22, 2018, Application to Change or Cancel Judge Jackson’s October 11, 2016 Order. [ 34 ] Also on June 6, 2019, TPH filed an updated Financial Statement declaring on page 5 a Guideline income of $123,300.82 from his employment as a Maintenance Supervisor with CFP. He estimated his annual expenses totalled $116,291.27. TPH attached the following financial information: a.

His 2016 T1 General Income Tax Return and Notice of Assessment showing his total income from all sources (Line 150) was $138,749.85, which included $137,296.32 in employment income, $810.11 in rental income, and $643.42 in RRSP income. TPH indicated his wife’s income for 2016 was $1,770.10 plus a UCCB of $960. b. His 2017 T1 General Income Tax Return and Notice of Assessment showing his total income from all sources (Line 150) was $142,018.50, which included employment income of $116,503.39 and a lump sum payment of $25,515.15.

TPH testified the $25,515.15 indicated on Line 130 as “other income” was a payout of his pension when he transitioned from a [omitted for publication] to a [omitted for publication] supervisor. TPH also indicated his wife’s income for 2017 was $6,561.88; c. His 2018 T1 General Income Tax Return, T1-KFS Form and Notice of Assessment showing his total income from all sources (Line 150) was employment income of $123,300.82; and d. His Records of Earnings and Deductions from CFP for the pay periods ending May 24, 2019, and June 7, 2019.

TPH’s latest Record showed his year-to-date income earnings totalled $65,390.66, which included his regular employment income of $46,324.56, Flex/cashback of $460.82, overtime income of $2,135.28, and C.S.I.P. of $3,463 and $13,007. [ 35 ] On June 11, 2019, BAB filed a Financial Statement declaring a Guideline income for child support from self-employment of $14,056.34 and expenses of $27,896.54. She disclosed assets totalling $5,217.88 and debts of $246.

BAB attached the following information to her Financial Statement: a. 2016 Income Tax Return indicating she had an income from all sources (Line 150) of $12,112.08. This included employment income of $4,916.15, the UCCB of $760 and net business income of $6,436.93. BAB’s net business income was $10,563.81 less expenses of $4,126.88, which included $1,523.81 in rent and $1,583.68 for her cell phone. b. 2017 Income Tax Return showing a gross business income of $20,637 and net income of $11,967.45. Her business expenses

totalling $8,669.55 included $4,169.05 in rent and $1,708.35 for her cell phone; c. 2018 Income Tax Return showing a gross business income of $20,563 and a net business income of $14,056.34.

Her business expenses totalling $6,506.55 included $4,800 in rent and $720 for her cell phone; d. business expense forms particularizing expenses, including business taxes, rent, utilities, and supplies; e. income forms particularizing income received; f. expense tracker forms for 2018 and 2019 particularizing the business expense, supplier, amount owing, due date and amount paid; and g. income tracker forms for 2018 and 2019 particularizing on a day-by-day basis, the date of payment, manner of payment, amount paid, and gratuities.

TPH’s circumstances [ 36 ] TPH was born on [omitted for publication], and is now 32 years old. He is married to KH, who is 30. [ 37 ] TPH is the biological father of six children with three different mothers. His children from his first relationship with AK are KYH, age 12, born [omitted for publication], and GH, age 11, born [omitted for publication]. TPH and AK had a shared parenting arrangement until KYH and GH started school in [omitted for publication] where their mother lived. KYH and GH began spending the entire summer school break with TPH.

Initially TPH paid AK $678 per month, however his child support payments were subsequently reduced by agreement to $300 per month. [ 38 ] In the spring and summer of 2018, KYH and GH came to live with TPH and KH fulltime in [omitted for publication], B.C. [ 39 ] TPH entered into a relationship with BAB in 2009. Their son LIH is now nine years old, born on [omitted for publication]. TPH and BAB’s relationship started when they were in their early 20s. LIH was one year old when they separated permanently in 2011.

In his October 11, 2016 decision, Judge Jackson describes TPH and BAB’s parenting time with LIH as follows: [2] The child resided with his mother for the first year after separation. The applicant moved several times thereafter. Starting in 2012 the child spent increasing periods of parenting time with his father. In 2014, the applicant moved to [omitted for publication] and the child resided with his father.

That situation gradually changed until by the spring of 2015 there was a basic 4/3 day sharing of the parenting time. [3] As of March 2015 the child resided with his applicant mother with weekends and school breaks with his father. As well, the child stayed with his father and four half-siblings for July and August in both 2015 and 2016. [ 40 ] TPH and BAB’s shared parenting arrangements established in March 2015 persist to this day. TPH is and has been amenable to providing BAB with additional parenting time when LIH is in his care. [ 41 ] TPH met his wife KH in 2011 and they married on January 24, 2013.

They are the biological parents of three children: SH, age 4, born [omitted for publication], IH, age 3, born [omitted for publication], and MH, age 1, born [omitted for publication]. [ 42 ] TPH resides with his wife and children at [omitted for publication], [omitted for publication], BC. TPH and KH own their own residence, which they purchased with the assistance of KH’ parents who lent them a $40,000 for the down payment. The $40,000 loan is repayable on the sale of the residence or upon TPH or KH’ death or separation.

The residence is subject to a Royal Bank of Canada mortgage of which there is currently outstanding $128,000 from the original principal of $160,000. TPH testified that because he and KH did not qualify on their own, his father-in-law had to consign the mortgage. [ 43 ] Until February 2018, TPH and KH rented the basement suite in their residence. They had to reclaim the rental space to provide KYH and LIH a bedroom. I gather from TPH’s Income Tax Returns, some or all of this rental income was paid to KH. [ 44 ] TPH started at CFP as a [omitted for publication] on April 1, 2011.

He worked his way up to a lead hand and on August 15, 2016, he was promoted to the salaried position of [omitted for publication] supervisor. TPH is now CFP’s maintenance supervisor. He works the graveyard shift from Sunday to Thursday. He is off work from Friday morning to Sunday evening.

His most recent Record of Earning and Deductions indicate that in 2019 TPH will earn a base income of approximately $107,015.16 ($46,324.56 ÷ 158 x 365 = $107,015.60) and a gross income of $125,620.88 ($107,015.60 + $2,135.28 (overtime) + $3,463 (C.S.I.P. - CP) and $13,007 (C.S.I.P.)). [ 45 ] The parties agree TPH’s 2019 Guideline income for a child support claim is $123,300. [ 46 ] Prior to his promotion to a managerial position, TPH earned significant sums from working overtime, sometimes as much as $40,000 to $47,000 per annum.

TPH lost the opportunity for significant overtime work when he took a management position. Offsetting this loss were better benefits, an enhanced pension, discretionary performance bonuses, and a 40 hour (as opposed to a 60 hour) work week. In any event, given the nationwide crisis in the softwood lumber industry, CFP no longer offers overtime to its employees. [ 47 ] Through CFP, TPH has medical and dental benefits which covers himself, his wife, and his six children. TPH exchanges some of his paid vacation for enhanced dental benefits. [ 48 ] KH does not work outside the home.

She cares for all of TPH’s children when he is at work, sleeping, or otherwise unable to do so. KH receives the UCCB for five children in the amount of $1,200 per month. This sum includes a benefit for LIH for which she applied in December 2018. [ 49 ] In 2018, TPH and KH advised Canada Revenue Agency LIH lived with them part of the time from June 2014 to present. They

stated: LIH lived with them: January 2014 to September 2014, two weeks on and two weeks off; September 2014 to April 2015, Monday to Thursday or Tuesday to Friday; and May 2015 to present, all weekends and holidays. [ 50 ] KH indicated she was primarily responsible for LIH’s care and upbringing when he lives with the TPH family. [ 51 ] In his June 6, 2019 Financial Statement, TPH estimates his annual household expenses to be $116,291.27; in his August 7, 2018, Financial Statement TPH estimated his annual household expenses to be $114,089.74; and in his September 28, 2016, Financial Statement TPH estimated his annual household expenses to be $93,779.36.

TPH attributes the increase in expenses to include, among other things, KYH and GH coming to live with him fulltime and the birth of his son MH. [ 52 ] As to assets, TPH and KH have little equity in their home, no savings or RRSPs. They have a number of old vehicles, some of which were borrowed, or are uninsured and inoperable. Recently, KH’ parents purchased an older van for her use. As to debts, TPH owes $8,200 to MasterCard, $40,000 to his in-laws, and arrears in child support to BAB. [ 53 ] There is no suggestion TPH or KH or any of the children suffer from any disability or significant impairment.

BAB’s circumstances [ 54 ] BAB is 30 years old and resides in [omitted for publication], BC, LIH is her only child. [ 55 ] LIH resides with BAB during the school week. He is in Grade [omitted for publication] at [omitted for publication]. He is involved in a number of recreational activities such as swimming, soccer, and gymnastics. [ 56 ] In November 2017, BAB married her current husband, TB. They reside in a two bedroom suite at [omitted for publication] [omitted for publication], BC. BAB rents the suite for $650 per month from her DM.

In the summer months, DM and his wife, JM, reside on the main floor of the house and TPH and BAB reside in the upstairs suite. BAB says she loves where she lives. [ 57 ] TB works fulltime in construction and operates a commercial steam-cleaning business on the side. BAB was unable to say with certainty what TB earns from his employment or business. She believes TB earns $800 to $1200 every two weeks from his regular fulltime job. I gather that sum is net of deductions.

BAB cannot say how much her husband earns from his steam cleaning business as his income depends on the number and size of the projects. [ 58 ] In 2008-2009 BAB trained in esthetics with some upgrading in 2015-2016. Her training included manicures, pedicures, waxing, massage, facials, and eye lash extensions. BAB worked in [omitted for publication] in [omitted for publication] and in 2015 - 2016, she worked 40 hours per week for [omitted for publication] in [omitted for publication] BC. Generally she worked Tuesday through Saturday from 10 a.m. to 6 p.m. or 9 a.m. to 5 p.m.

When she started at [omitted for publication] she earned $12 per hour. At some point her salary was raised to $15 per hour. BAB also received gratuities. As set out in Judge Jackson’s Order, BAB’s income for 2015 was $24,220, inclusive of the $1,920 UCCB. I note in her September 21, 2018, Financial Statement, BAB includes a 2015 Reassessment indicating a total income (Line 150) of $24,808. [ 59 ] In April 2016, BAB quit her fulltime job and started her own business, [omitted for publication] . Since then, it has been her only source of income.

BAB rents a business space from DM at [omitted for publication], [omitted for publication], BC for $400 per month. BAB’s esthetic’s business has the following limitations: a. BAB services include eye lash extensions and facial waxing, she does not offer other esthetic services such as manicures, pedicures, massages, etc.; b. She works by appointment only and does not accept walk-ins; c. During the school week BAB is available for work from 9 a.m. to 3 p.m. except Thursdays when her work day ends at 2 p.m.; d. BAB does not work Sundays because of her commitments to her church; e.

BAB volunteers at LIH’s school during lunch hour so she is not available for appointments during that time; f. BAB advertises only on Facebook and accepts only cash payment; g. BAB d oes not accept debit or credit cards transactions; and h. BAB is the only employee. [ 60 ] Depending on the type of service, BAB charges $50, $120, or $130 for eye lash extensions. These services can take anywhere from 45 minutes to two hours. Facial waxing appointments rarely take more than 15 minutes. I surmise the longer the appointment, the higher the price.

BAB’s records indicate about 22% of her appointments are longer appointments for which she was paid in excess of $100. [ 61 ] BAB testified she books three to four appointments per day with the exception of Sunday when she does not work. BAB’s business records included in her June 11, 2019, financial statement indicate otherwise. For example:

a. In 2016, BAB had a total of 174 appointments from May 1 to December 31, 2016, during which period she earned a gross business income of $10,563.81 . This is an average of 21.75 appointments per month for an average gross income of $60.71 per appointment. BAB’s 2016 Income Tax Return indicated she incurred business expenses of $4,126.88, leaving her a 61% profit of $6,436.93 (or about $805 per month); b. In 2017 BAB records a total of 298 appointments from January 1 to December 31, 2017, during which time she earned a gross business income of $20,637.

This is an average of 24.84 appointments per month for an average gross income of $69.25 per appointment. In 2017 BAB’s business expenses were $8,670 leaving her with a 58% profit of $11,967 (or $962.33 per month); c. In 2018 BAB records a total of 282 appointments from January 1 to December 31, 2018, during which period she earned a gross income of $20,563. This is an average of 23.50 appointments per month for an average gross income of $73 per appointment. In 2018, BAB’s net business expenses were $6,506.66 leaving her a 68% profit of $14,056.34 (or $1,171.36 per month); and d.

In 2019 BAB records a total of 212 appointments from January 1 to May 31, 2019, during which time she earned a total income of $15,372 including GST, or approximately $14,640 net of GST. This is an average of 42.40 appointments per month for an average gross income of $69.06 per appointment. Projecting her earnings to date to December 31, 2019, BAB’s business would gross $35,136 in 2019 ($14,640 ÷ 5 x 12 months = $35,136). BAB did not provide the Court with her 2019 year-to-date business expenses.

If she earned a profit of roughly 58% to 68% as she had done in previous years, then BAB’s profit for the first 5 months of 2019 is between $8,491.20 and $9,955.20. BAB could be expected to earn a gross net business income in 12 months between $20,378.88 and $23,892.48 in 2019. [ 62 ] BAB did not provide any evidence of what non-remunerative time she invests in her business. In other words, all the Court has is BAB’s appointment lists and a vague description of the days and times when she will accept appointments. [ 63 ] In 2016, BAB received the UCCB in the amount of $760.

I understand CRA has recently penalized BAB when it learned LIH lived with TPH and KH more than 40% of the time. [ 64 ] In her June 11, 2019, Financial Statement, BAB set out her annual expenses for her household, which include LIH and TB. She estimates her expenses to be $27,896.54, although these are understated. She agrees she likely pays more than $300 per month on food for three people. Moreover, she has not included in her expenses the 10% tithe she pays to her church. Still, the expenses BAB does record are almost $14,000 more than her income. She discloses no corresponding debt in that amount.

BAB says her husband makes up the disparity which includes buying groceries and paying the $400 per month rent on her business space. [ 65 ] BAB has provided very little information about her husband’s financial or personal circumstances. I therefore conclude her household consists of two healthy working adults and a nine year old boy. I also conclude BAB is more or less content with her current standard of living provided she receives her child support payments from TPH and her share of the UCCB.

Issue 1: How should parenting time be allocated between the parents? [ 66 ] The parties agree: a. they have a shared parenting arrangement; b. TPH had 162 days of parenting time with LIH in 2018, which is about 44% of the time; c. TPH has parenting time with LIH every weekend from Friday after school to Sunday evening. His parenting time is extended if Friday or Monday are statutory holidays or non-instructional days; d. TPH has parenting time with LIH for the entire school summer break; e. BAB and TPH share parenting time with LIH during the Christmas and spring school break, although not necessarily equally; f.

The parties have additional parenting time with LIH at various dates and times as they may agree; g. LIH is healthy and happy; and h. LIH loves his mother, father, stepmother, and siblings. [ 67 ] BAB seeks to have additional parenting time for a minimum of one week each month of the summer and one weekend each month during the school year. [ 68 ] TPH is agreeable to BAB having LIH for a long weekend in each of the summer months. TPH does not agree to BAB having a weekend with LIH while school is in session because that would mean he would go for 12 straight days without seeing him.

TPH is agreeable to BAB occasionally having parenting time with LIH on his weekends during the school year. [ 69 ] BAB was not agreeable to reversing the parenting time

schedule for LIH so TPH can have parenting time with LIH during the school week and BAB parenting time with LIH on the weekends and holidays. [ 70 ] BAB offers TPH no compensatory parenting time with LIH in exchange for increasing her parenting time on weekends and summer holidays. Legislative framework for parenting time [ 71 ]

Section s. 40(1) of the FLA provides that only a guardian may have parental responsibilities and parenting time with respect to a child. As TPH and BAB were cohabitating parents during their relationship they are presumptively guardians under s. 39(1) of the FLA .

[ 72 ] Where, as in this case, there are no existing orders allocating parenting, s. 48 of the FLA prohibits any unilateral changes to informal parenting arrangements once they have become a part of a child’s routine. It states: Informal parenting arrangements 48

(1) If (

a) no agreement or order respecting parenting arrangements applies in respect of a child, and (

b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking (

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements]. [ 73 ]

Part 4 of FLA deals with care of and parenting time with children and directs that, in making orders on such matters, the Court must only consider the best interests of a child. [ 74 ] Section 37(2) of the FLA requires that in determining what is in the best interests of a child, the Court must consider all of the child’s needs and circumstances, including: a. the child’s health and emotional well-being; b. the child’s views, unless it would be inappropriate to consider them; c. the nature and strength of the relationships between the child and significant persons in the child’s life; d. the history of the child’s care; e. the child’s need for stability, given the child’s age and stage of development; f. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time, or contact with the child to exercise his or her responsibilities; g. the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member; h. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs; i. the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; and j. any civil or criminal proceeding relevant to the child’s safety, security or well-being. [ 75 ] Section 37(3) of the FLA provides that an agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

Analysis on parenting time [ 76 ] BAB and TPH have shared parenting time with LIH for much of his life without the benefit of a court order. It speaks volumes of their ability and willingness to cooperate with one another in LIH’s best interest. [ 77 ] BAB wishes to have more time with LIH when he is not in school. In making this application, BAB does not suggest any deficits on TPH’s part.

In fact, when asked in cross-examination what LIH thought of the existing parenting relationship, BAB stated emphatically: He really does loves his dad, he loves K. and he loves his sibling and loves his mom when he is here as well. [ 78 ] TPH wants to preserve existing parenting

schedule for the same reason BAB wants it changed. He loves LIH and wants to maximize his parenting time with him. Nevertheless, TPH is willing to be flexible in providing BAB with additional parenting time with LIH during the weekends and holidays. [ 79 ] The evidence before me indicates (

a) LIH is physically, psychologically, and emotionally healthy; (

b) LIH has a positive relationship with all the significant people in his life, including his mother, father, step-mother, step-father, and siblings; (

c) the parents have shared parenting time with LIH for much of his life; (

d) like all nine-year olds, LIH needs stability in his life. Nevertheless, he has no special challenges which increase his need for stability beyond what healthy boys ordinarily require; (

e) both parents competently exercise their parenting responsibilities; (

f) there is no indication LIH experiences family violence in either of his two homes; (

g) the

parents are able to cooperate with one another on most issues affecting LIH. Modest adjustments as to parenting time will not present any risk to LIH’s safety, security, or well-being; and (

h) this is the only proceeding relevant to LIH’s well-being. [ 80 ] The Court does not have the benefit of a “Views of the Child Report” pursuant to s. 211 of the FLA . To their credit, neither TPH nor BAB has discussed at length the parenting time issue with LIH. Their ability to communicate and cooperate with each other in a respectful manner is commendable and I do not see the need for any highly intrusive court orders. [ 81 ] If the parent lived in the same community, they could be more flexible in how they shared parenting time with LIH. I am not suggesting one parent should move.

Both have compelling reasons to remain in the community in which they currently reside. Still, [omitted for publication] and [omitted for publication] are only 64 kilometres apart on a major thoroughfare. Perhaps the parents could meet in [omitted for publication] from time-to-time to transition LIH. I note that LIH already commutes 15 minutes to and from school. I do not see why he could not commute to school from [omitted for publication] on occasion to increase the parents’ flexibility as to how they share-parenting time.

Conclusion on Issue #1 [ 82 ] I find it is in LIH’s best interests for this Court to make orders formalizing BAB and TPH’s existing shared parenting arrangement with respect to LIH with some exceptions which I will address below. These orders will acknowledge BAB and TPH’s joint guardianship and shared parenting responsibilities. [ 83 ] I find BAB’s request for additional parenting time with LIH as reasonable as I find TPH resistance to losing more parenting time with LIH.

I am of the view BAB ought to have more parenting time with LIH when he is not in school and TPH ought to have some parenting time with LIH when he is in school. I therefore order BAB have five consecutive days parenting time with LIH in each of July and August, as well as one two-day weekend per month during the school year, except in those months which already include a major holiday. TPH is entitled to some compensatory parenting time during the school year.

As BAB will have 10 extra days with LIH in the summer and approximately 16 days in the school year, TPH will have parenting time 24 days additional while school is in session. I will leave it to BAB and TPH to work what dates and times they wish to exercise this variation in the parenting schedule. Issue # 2: How should the Court determine TPH and BAB’s child support obligations? [ 84 ] TPH and BAB agree TPH is obligated to pay her child support for LIH. They do not agree on the amount he ought to pay and ask this Court to determine what that should be prospectively and retrospectively.

Legislative framework for child support [ 85 ]

Section 147 of the FLA imposes a duty on each parent and guardian to support a child under the age of 19 except in circumstances that are not present in this case. [ 86 ] When making an order respecting child support, s. 150 of the FLA compels a Court to determine the amount in accordance with Guidelines unless the parties have an agreement for some other amount and the Court is satisfied that reasonable arrangements have been made for the support of the child. The principles on which child support is based as espoused Earle v.

Earle , 1999 BCSC 283, are as follows: a. the parents of a child have a joint and ongoing obligation to support their children; b. child support belongs to the child; and c. the amount of child support is based, not only on the parents’ earnings, but also on what the parent can earn. See Carriere v.

Carriere , 2013 BCSC 235 , at para. 21 . [ 87 ] The Guidelines objectives are: a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective; c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and d. to ensure consistent treatment of spouses and children who are in similar circumstances. [ 88 ] TPH and BAB have a shared custody regime, which is governed by s. 9 of the Guidelines : Shared custody 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

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

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

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[89] Contino is the leading case on the

interpretation and application of s. 9 of the Guidelines. Justice Schultes in G.J.L. v. M.J.L.cites with approval Professor D.A. Rollie Thompson’s explanation of the essential principles Contino establishes. I have taken guidancefrom this jurisprudence. In C.A.S. v A.B.S, 2019 BCSC 948 , Justice Marchand (at para. 56) distilled the following keyprinciples from Contino: a. The court must determine child support in accordance with the three listed factors in s. 9 once the 40% threshold is met; b.

The court must emphasize flexibility and fairness to ensure the economic reality and particular circumstances of each family areproperly accounted for; c. The three factors structure the exercise of the court’s discretion but no factor prevails over the others; d. The weight given to each factor varies with the particular facts of each case; e. There is no presumption in favour of any particular award of child support, be that at, above or below thefull Guidelines amount; f.

The preferable starting point is to determine the straight set-off amount of child support that each party would pay to the otherunder the Guidelines; g. The court, however, has the discretion to modify the set-off amount where, considering the financial realities of the parents, itwould lead to a significant variation in the standard of living experienced by the child as he moves from one household to the other; h.

The court is to examine the budgets and actual expenditures of both parents in addressing the needs of the child, determinewhether shared custody has resulted in increased costs globally and apportion these costs between the parents in accordance with theirincomes; i. Keeping in mind the objectives of the Guidelines to ensure a fair standard of support for children and fair contributions fromboth parents, the court has broad discretion to analyse the resources and needs of both the parents and the child; and j.

The court will look at the standard of living of the child in each household and the ability of each parent to absorb the costsassociated with maintaining the appropriate standard of living in the circumstances. [90] Contino instructs the Court that when considering child support under s. 9 of the Guidelines, there is no need to separate outspecial or extraordinary expenses (s. 7) or resort to the undue hardships provisions of s.

Section 9(

c) confers the judge with a broaddiscretion to take into consideration a panoply of expenses and hardships when determining child support in a shared parentingarrangement. [91] In G.J.L., Justice Schultes noted the “question left unanswered by Contino was the precise extent to which the income providedby a new spouse of one of the parents is to be taken into account in this process.” He sought clarity from the following passages from theBC Court of Appeal decision of B.P.E. v.

A.E., 2016 BCCA 335: [51] There has been limited consideration of the weight to be afforded to a new partner's income in shared custody situations,particularly at the appellate level… [52] If the new partner's income is to be taken into account, it is under the rubric of "the conditions, means, needs and othercircumstances of each spouse" considered in s. 9(c). … [54] Household income is properly taken into account at the stage when the court considers the effect of payment of table amounts ofchild support on comparative living standards, as in Corsie v.

Taylor, 2006 BCSC 528, where the payor was ordered to pay more than theset-off amount because the substantial income of her second spouse resulted in her financial situation being "considerably better" thanthat of the children's father. Similarly, in L.A.B. v. M.L.B., 2012 BCSC 1066, the court found there was a significant (and growing)divergence in the standards of living between the father's and mother's households.

Attempting "to attenuate the discrepancies betweenthe two homes and yet remain alive to the realities of the financial situation" Barrow J. ordered the payor to pay two-thirds of the set-offamount despite approximately equal household incomes. Changing a child support order [92] On June 22, 2018, TPH initially filed an Application to Change Judge Jackson’s October 11, 2016 Order, which he withdrew onMay 22, 2019, and replaced it with an Application for an Order.

Judge Jackson October 11, 2016 Order, although final, appears toanticipate further court orders in para. 43, where he states: [43] This court fixes the child maintenance payable by the respondent commencing November 1st, 2016 and on the first of each monththereafter until further order of the court as long as the L.I.H. remains a child under the Family Law Act at $812 minus $184 equaling$628. [93] Although not specifically pleaded by either party, TPH and BAB agree this Court ought to determine the parties respectivesupport obligations retroactively to November 1, 2016. [94] The discretion to make an order of retroactive child support is found in ss. 152 or 170(

b) of the FLA, depending on whether it isa variation order or not.

Section 170(

b) states: 170 In an order respecting child support or spousal support, the court may provide for one or more of the following:

. . . (

b) that child support or spousal support be paid respecting any period of time before the date the application for the order is made; [95] The authority for changing a child support order is found in s.152 (1) of the FLA, which states, in part: 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively orretroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it intoconsideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support wasmade; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [96] The “change in circumstances as provided for under the child support guidelines” refers to s. 14 of the Guidelines asincorporated by reference by

Part 4 of Family Law Act Regulation, BC Reg 347/201.

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

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

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; . . . [97] In G.M.W. v. D.P.W., 2014 BCCA 282 the BC Court of Appeal confirmed (at para. 32) s. 14 of the Guidelines doesnot supplant the test of materiality for a change in circumstances as set out in Willick v. Willick, (SCC).

The thresholdrequirement for variation of an existing order as described in Willick (at 688) is as follows: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [98] The appellate court in G.M.W distilled (at para. 33) the following relevant principles from Willick: a. the onus is on the applicant to establish a material change of circumstances; b. the existing order is presumed to have accurately assessed the needs of the children and therefore the correctness of that ordermust not be reviewed in the variation proceeding (at 687); c. the actual circumstances of the parties will determine if there has been a material change of circumstances during the relevantperiod; and d. the approach to the making of child support orders is child-centered and requires consideration of the children’s needs, therelative ability of the spouses to pay and the joint obligation of the parents toward their children. [99] In my view, the parties seek to vary Judge Jackson’s October 11, 2016 Order, and must satisfy one of the three criteria set out ins. 152(2) of the FLA.

One of those criterion (152(2)(a)) is a change in circumstances that would result in a different child support orderunder the Guidelines since the Court made the order. This provision has been interpreted to be a material change in circumstances. [100] In his October 11, 2016 Order, Judge Jackson bifurcated TPH’s earnings into two different discrete periods. For the period fromJanuary 1, 2016, to August 31, 2016, Judge Jackson found TPH’s Guideline income to be $92,314.66. For the ongoing periodcommencing September 1, 2016, Judge Jackson found TPH projected annual Guideline income to be $87,158.

This means that in 2016,TPH had a total annual income of $121,367 ($92,314.66 + ($87,158 ÷ 12 x 4 months = $29,052) = $121,367). [101] TPH actually earned $138,749.85 in 2016, likely because of his yearend C.S.I.P. bonus which had not yet been declared or paidwhen Judge Jackson made his October 11, 2016 Order. This represents a $17,383.19 or 14.32% increase to TPH’s 2016 income($138,749.85 - $121,367 = $17,383.19). TPH 2017 Guideline $142,660 was $55,202 or 63.33% more than what Judge Jackson haddetermined to be TPH’s Guideline income as and after September 1, 2016.

In 2018 TPH’s Guideline income was $123,300, which is$36,182 or a 41.5% increase to the $87,158 Guideline income on which Judge Jackson based TPH’s ongoing child support. The partiesagree TPH’s 2019 Guideline income is the same as in 2018, namely, $123,300. All these increases would give rise to TPH paying moreGuideline child support for LIH, and in some years, significantly so. [102] I am satisfied the criteria in s. 152 (2)(

a) and (

b) are engaged and Judge Jackson’s October 11, 2016 Order for child support canbe varied. I conclude had Judge Jackson known TPH would earn $138,749.85 in 2016, $142,660 in 2017, and $123,300 in 2018 and2019, he would have made a different order.

Retroactive child support [103] The parties seek a retroactive adjustment of child support. A retroactive order is discretionary but not exceptional: Williams vWilliams, 2015 BCSC 928 at paras 108-112. It engages the principles set out in D.B.S. v. S.R.G. et al, 2006 SCC 37 , whichrequire the Court to take into consideration (

a) the delay in applying for child support; (

b) the payor parent’s conduct; (

c) the child’scircumstances; and (

d) any hardship occasioned by a retroactive award: see Sampley v. Burns, 2018 BCCA 178 , paras. 47 & 48.In D.B.S. Justice Bastarache (at para. 99) cautioned no factor is determinative on its own and the trial judge must strive for a “holisticview of … each case on the basis of its particular factual matrix” in determining whether to make a retroactive support award. [104] The date of retroactivity where the Court finds a retroactive award is due is (

a) the date when an application was made to acourt; or (

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

c) the date when effective notice was given to the payorparent; or (

d) the date when the amount of child support should have increased: D.B.S., para. 118. Typically, the Court will not make aretroactive award for more than three years prior to when “formal notice was given to the payor parent”: D.B.S., para. 123. This isconsistent with s. 25(1)(

a) of the Guidelines, which limits requests for a payor’s historical income information to a three-year period. [105] “Effective notice” is described in D.B.S. (at para. 121) as “any indication by the recipient parent that child support should bepaid or if it already is, that the current amount of child support needs to be renegotiated.” Effective notice only requires the topic bebroached; it does not require that the recipient parent take any legal action.

Once that has occurred, the payor parent can no longerassume “that the status quo is fair, and his interest in certainty becomes less compelling.” (see para. 121). [106] Generally, a court will not make a retroactive award prior to the date when effective notice was given to the payor parent unlessthe payor parent has engaged in blameworthy conduct.

Where there is “blameworthy conduct”, the presumptive start date of a retroactiveaward is the date the circumstances changed materially, namely, the date when the amount of child support should have increased:D.B.S. at para.124. [107] D.B.S. provides some examples of blameworthy conduct such as intimidating and lying to a recipient parent, withholdinginformation or failing to disclose a material change in circumstances, including increasing income that would expect to alter the amountof child support payable.

Justice Bastarache states at para. 125 as follows: [125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certaintyprotected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonableup to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having thepresumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (

s) he must disclose thematerial change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthybehaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. Apayor parent should not be permitted to profit from his/her wrongdoing. Duty to disclose changes to income [108]

Section 25 requires the payor of child support must provide income information upon written request by the other spouse, butnot more than once per year. It states: Continuing obligation to provide income information 25

(1) Every spouse against whom a child support order has been made must, on the written request of the other spouse or the orderassignee, not more than once a year after the making of the order and as long as the child is a child within the meaning of theseGuidelines, provide that other spouse or the order assignee with (

a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previouslyprovided the documents; (

b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1);and (

c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of unduehardship. [109] Although the Supreme Court of Canada in D.B.S. held that parents are obligated to support their children in a mannercommensurate with their income, they are not automatically required to disclose changes in income after a support order is made.Bastarache J., for the majority states at para. 58, in part [Citations omitted]: [58] The same could be said about automatic disclosure requirements.

The Guidelines provide, at s. 25, that a payor parent mustdisclose his/her income not more than once per year upon request by the recipient parent. (Though I assume a single custody situation inmy discussion here, I should note that this rule will apply to both parents in a shared custody context, as both of their incomes arerelevant in determining the amount of child support due: s. 9 of the Guidelines.) Thus the scheme in the Guidelines does not burden apayor parent with an automatic disclosure obligation every time his/her income increases: . . .

In crafting this system, Parliament wasobviously concerned with the balance between the privacy of payor parents and the expectation of recipient parents that they will be paidthe appropriate Guidelines amount based on the true income of the payor parent. This is not to suggest that court orders or separationagreements cannot themselves provide for automatic disclosure; to the contrary, if the circumstances so demand, courts may even finddisclosure obligations implicit in separation agreements. . .

But it is not for this Court to second-guess Parliament’s policy choice,absent indication that a court ordered, or the parties agreed, otherwise. [110] As the appellate courts have clearly stated, however, “with or without an obligation to disclose increases in income, payors whofail to disclose increases may risk a retroactive award being made”: Dyck v. Bell, 2015 BCCA 520 at para. 43; see

also D.B.S. at para. 125 . [ 111 ] TPH testified he understood his duty to disclose his financial information was activated upon BAB requesting he do so. She did so in September 2017 after TPH asked her to reduce his child support payments. He continued to press her for a response without providing her with the requested financial information. On the other hand, neither was BAB particularly forthcoming with her financial information.

Is there a reasonable excuse for why support was not sought earlier by the recipient parent? [ 112 ] In this case BAB gave formal notice of her intention to seek Guideline child support in her reply filed September 21, 2018. Her application was triggered by TPH June 22, 2018, application for the reduction of maintenance payable. It was TPH, not BAB who broached the topic of adjusting the ongoing child support.

I gather BAB’s “effective notice” coincided with her “formal notice.” Was there any blameworthy conduct on the part of the payor parent? [ 113 ] BAB alleges TPH engaged in blameworthy conduct as follows : a. On 15 September 2017, and continuing to December 2018, TPH began pressuring BAB to agree to reduce the amount of child support he pays for LIH: see Exhibit 8; b. TPH linked his consent to BAB having more parenting time with LIH conditional upon her agreeing to reduce his child support; c. On April 16, 2018, TPH texted BAB (Exhibit 8, p. 19) and stated: Are you almost ready to discuss lowering the payment?

I made quite a bit less last year [than] I did the year we went to court. d. TPH did not disclose to BAB his current financial information until he filed his August 7, 2018 Financial Statement; e. TPH unilaterally stopped paying BAB the amount of child support Judge Jackson ordered on October 11, 2016 and thereafter paid it inconsistently; and f. TPH unreasonable asserted he was “under the impression” BAB had agreed to accepting less child support than Judge Jackson had ordered. [ 114 ] TPH denies tying BAB’s parenting time with LIH to her agreeing to a reduction in child support.

He says he would not use her reluctance to deny her extra parenting time with LIH. I note that but for the $25,515.10 pension payout TPH received in 2017, he did earn less employment income in 2017 than he had in 2016. [ 115 ] On September 17, 2017, BAB told TPH (Exhibit 8, p. 2) she would need to know what he had earned that year and what he expected to earn.

She did not offer to provide him with her financial information, and did not do so until September 21, 2018, even then she did not disclose her expenses, debts, or assets. [ 116 ] Both TPH and BAB provided updated Financial Statements containing all the requisite documents within a week of the hearing of this matter. In her June 11, 2019, Financial Statement, BAB disclosed her expenses, debts, and assets. Nevertheless, when she attended at the hearing, BAB was not forthright in her evidence as to her husband’s contribution to her household income.

Is a retroactive award appropriate in light of the child’s past and present circumstances? [ 117 ] Counsel for the parties have not provided submissions in this regard. Given their position on retroactivity, I assume they agree a retroactive award is appropriate in light of LIH’s past and present circumstances. Will a retroactive award cause hardship to the payor parent or to his other children? [ 118 ] TPH has not strenuously argued a retroactive award would cause him or his other children hardship. I find this surprising given the history of these proceedings and his text messages to BAB comprising Exhibit 8.

On June 21, 2019, I recalled this matter to confirm with counsel that both parties unequivocally agree to a retroactive award given neither specifically pled such. Conclusion on Issue # 2 [ 119 ] I find TPH and BAB’s respective support obligations are governed by s. 9 of the Guidelines . I am satisfied a retroactive child support award is appropriate. [ 120 ] As to the retroactive date, TPH accepts the appropriate date for retroactive child support is November 1, 2016.

The parties agree this is the date when the amount of child support should have increased even though Judge Jackson’s decision was barely three weeks old and there is no suggestion TPH’s September 28, 2016, Financial Statement did not include all his relevant and current financial information at the time. I do not infer from his agreement on retroactivity that TPH concedes he engaged in blameworthy conduct. [ 121 ] By the consent of the parties, I will determine TPH and BAB’s respective support obligations retroactive to November 1, 2016.

Issue #3: Should the Court impute income to BAB for under-employment? [ 122 ] TPH seeks an order recalculating child support retroactive to November 1, 2016, using his actual income but imputing to BAB an annual Guideline income of alternatively $27,700, $30,000, $32,000, and $40,000. TPH submits $27,700 represents BAB’s annual income if she worked 40 hours per week, 50 weeks per year, at a minimum wage of $13.85 per hour. The $30,000 represents her annual income if BAB worked 40 hours per week for 50 weeks at $15 per hour; $32,000 assumes BAB worked 40 hours per week for 50 weeks

at $16 per hour; and $40,000 assumes BAB worked 40 hours per week for 50 weeks at $20 per hour. Legislative framework on imputing income [123]

Section 16 of the Guidelines states: Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Totalincome” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. [124]

Section 19 of the Guidelines permits the Court to depart from the methodology set out in s. 16 and “impute such amount ofincome to a spouse as it considers appropriate in the circumstances.” Although there are nine statutorily defined situations, it is not anexhaustive list and the

section gives the Court a significant amount of discretion in imputing income. [125] Section 19(1)(

a) of the Guidelines provides the court may impute income to a spouse who is intentionally underemployed, otherthan where the underemployment is required by the needs of the children. Section 19(1)(

d) permits imputation of income where itappears it has been diverted. [126] Although TPH raised the spectre of BAB hiding or diverting income, there is scant evidence supporting this allegation. The onlyobvious anomaly in BAB’s business expenses is the fact TB pays the rent. BAB was not seriously challenged on her computation ofincome or the nature and amount of her business expenses. I therefore accept the business expenses are as stated in her CRA Statement ofBusiness or Professional Activities. [127] TPH’s principal argument is that BAB is underemployed.

In determining whether this is in fact the case, the Court need not findBAB was acting in bad faith. In Barker v. Barker, 2005 BCCA 177, Madam Justice Huddart had this to say in paras. 18 and 19, in part[Citations omitted]: [18] Under s. 19(1)(

a) of the Guidelines, the important question is whether the payor spouse has demonstrated an intention to beunderemployed, with the consequence that his children do not benefit from his potential earning capacity. This does not mean a parentmust work the long hours Ms. Barker puts in to earn her significant income. It does mean that a parent who chooses to work less than aregular work week must justify that choice by the needs of the children or suffer the loss personally. He cannot effectively transfer partof the cost of that choice to his children . . . [19] . . . I prefer the reasoning of the trial judges of this province who have looked for guidance to this court’s early

interpretation of s.19(1)(a) . . . to find that the intent to evade or minimize the payment of child support is not required for a finding of intentionalunderemployment or unemployment, although if that intent exists that finding is required. What matters under the Guidelines is . . .whether the parent is earning what the parent is capable of earning . . . [128] Citing Barker, Madam Justice D. Smith in Marquez v.

Zapiola, 2013 BCCA 433 stated at para. 37 [Citations omitted]: [36] For the purposes of both child and spousal support, there is a broad judicial discretion to impute income to either or both spouses.However, the party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis for such afinding. [37] The test for imputing income for intentional underemployment or unemployment is one of reasonableness, having regard to theparties’ capacity to earn income in light of their age, education, health, work history and work availability.

A spouse’s capacity to earnincome will include that person’s ability to work or to be trained to work . . . [129] Each parent has a positive obligation to support a child. As stated by Justice Bruce in Warbinek v.

Warbinek, 2006 BCSC 1728, at para. 19, “A parent is obliged to take reasonable steps to maximize their earnings to the extent consistent with their age,education, skills, health, and work history.” If a parent is intentionally under-employed or unemployed, the Court may impute incomeunless the parent establishes that he or she falls within an exception under s. 19(1)(a). [130] Algner v Algner, 2008 SKQB 132 , is an oft-cited decision of Ryan-Froslie, J. (as she then was), in which she espoused(at para. 18) the following considerations and principles relevant to an application to impute income under s. 19(1)(

a) of the Guidelines[Citations omitted]: (

i) Section 19 sets out a non-exhaustive list of circumstances where a court may consider imputing income . . . (ii) The decision to impute income pursuant to s. 19 is a discretionary one . . . (iii) In determining an application pursuant to s. 19(1)(a), a three-step analysis should be employed: Firstly, the court must determine ifthe spouse is intentionally under-employed or unemployed. If the "spouse" is intentionally under-employed or unemployed, the courtmust determine whether any of the exceptions set out in s. 19(1)(

a) apply, i.e. whether the under-employment or unemployment isrequired by reason of: (

i) the needs of a child of the marriage; (ii) the needs of any child under the age of majority; (iii) the reasonableeducational needs of the spouse; or (iv) the reasonable health needs of a spouse. Finally, if a court determines a "spouse" is intentionallyunder-employed or unemployed, and that none of the exceptions apply, the court must decide whether to exercise its discretion andimpute income . . . (iv) The word "intentionally" in s. 19(1)(

a) means "voluntarily". There is no need to find a specific intent to evade child support . . . (

v) A parent has an obligation to seek employment commensurate with their ability to earn income . . . (vi) As a general rule, a parent cannot avoid his or her child support obligations by a self-induced reduction of income. Thus, once it hasbeen established that a spouse is intentionally under-employed or unemployed, the burden shifts to that spouse to establish his

employment or lack thereof is reasonable in the circumstances . . . (vii) Parents are entitled to make employment or career changes that may impact their ability to pay child support so long as the decision is reasonable in the circumstances. (viii) In determining what income should be imputed pursuant to s. 19, the Court should also have regard to what is reasonable in the circumstances. (ix) The factors to be considered in determining whether employment is reasonable, and in setting the amount of income to be imputed include, but are not limited to, the payor's age, education, training, work experience, skills, historical earning capacity, health, the motivation for the change in employment, the availability of job opportunities, the payor's ability to relocate, the number of hours the payor is reasonably available to work and their support obligations . . . [ 131 ] The question I must ask in this case is whether BAB was earning what she is capable of earning.

To this end, I have attempted to try and figure out how much BAB actually worked over the past three years. She has provided a list of her appointments, income, and expenses for that period, except for 2019, where she has omitted her expenses. According to BAB’s own evidence, fulltime work for an esthetician is 40 hours per week. As there is 52 weeks in a year, this means fulltime employment would require BAB to work 2,080 hours per year. Of course, working 52 fulltime weeks per year is as unrealistic as it is unfair. Obviously, there would be days when BAB could not work for one reason or another.

She is also entitled to holidays. [ 132 ] Unfortunately, BAB did not attempt to reconcile the hours she actually worked with her income tracking documentation. For example, she says she is available to work from Monday to Wednesday 9 a.m. to 3 p.m. and Thursday 9 a.m. to 2 p.m. She says she is also open Fridays and Saturdays, but did not specify her hours.

When asked in cross-examination what hours she was open on weekdays, BAB replied, “I actually go by appointment, so I am not open all the time.” [ 133 ] I understand from her evidence that BAB’s hours of work are largely determined by the number and length of her appointments. BAB’s business records indicate she rarely worked an eight hour day or a 40 hour week. She steadfastly refuses to work Sundays given her involvement and commitment to her church, which is understandable and entirely justifiable. However, her records indicate she rarely works Wednesdays, for which she has offered no explanation.

In addition there are many days when she has few or no appointments, including days when LIH would have been in TPH’s care. [ 134 ] Since she started her business in April 2016, BAB has earned substantially less than what she earned at her employment with [omitted for publication] . In fact, she earned substantially less than minimum wage for fulltime work. In British Columbia, pursuant to the Employment Standards Regulation, BC Reg 396/95 , the minimum wage in April 2016 when BAB became self-employed was $10.45.

It increased to (a) $10.85 on September 15, 2016; (b) $11.35 on September 15, 2017; (c) $12.65 on June 1, 2018; and (d) $13.85 on June 1, 2019. [ 135 ] In 2016 BAB earned $6,436.93 from self-employment in 8 months or 35 weeks. During this start-up period, BAB recorded a total of 174 appointments for an average of 21.75 appointments per month. This is not substantially less than in 2017 when she booked an average of 24.84 appointments per month or in 2018 when she booked an average of 23.50.

If those 174 appointments averaged 1.5 hours each, BAB worked providing actual client services approximately 261 hours in 35 weeks. She earned on average a profit of $37 per appointment ($6,436.93 ÷ 174 = $37) or $24.67 per hour ($6,436.93 ÷ 261 = $24.67). Had she worked fulltime with two weeks off, BAB would have worked 1320 hours (40 hours x 33 weeks = 1320 hours).

Instead, BAB only worked providing actual client services roughly 20% of a fulltime job (261/1320 x 100 = 19.78%). [ 136 ] I accept BAB would have had to invest some non-remunerative time in her business, but she provided no evidence as to what that might be and the Court is not obligated to guess. Had she worked fulltime (40 hours per week) for minimum wage for 33 weeks in 2016, BAB would have earned approximately $14,018 (19 weeks x 40 hours x $10.45 per hour = $7,942) + (14 weeks x 40 hours x $10.85 = $6,076) = $14,018).

Had she continued with earning $15.00 per hour as she had with [omitted for publication] , BAB would have earned $19,800 (33 weeks x 40 hours x $15.00 = $19,800). [ 137 ] In 2017, BAB earned $11,967 from self-employment from January 1 to December 31, 2017. During this 52 week period, BAB recorded a total of 298 appointments. Assigning an average time of 1.5 hours per appointment, BAB worked approximately 447 hours. This is an average of 24.84 appointments per month for an average profit of $40.16 per appointment. If BAB worked a fulltime job at 40 hours per week for 50 weeks she would have worked 2,000 hours.

Instead, she provided client services at 22.35% of a f

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