M.S. v. N.H. Date:, 2017 BCPC 300

Citation: M.S. v. N.H. Date: 20171018 2017 BCPC 300 File No: F-9470 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.S. APPLICANT AND: N.H. RESPONDENT SUPPLEMENTAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing on his own behalf: M. Sadler

Counsel for the Respondent: W. McLachlan Place of Hearing: North Vancouver , B.C. Date of Hearing: July 31, 2017 Date of Judgment: October 18, 2017 [ 1 ] These reasons are supplemental to my reasons given July 31 st , 2017 on the issues of relocation and parenting time. All of the findings in that earlier judgment are incorporated herein. [ 2 ] The issues to be addressed in these reasons are determining retroactive child support from October of 2014. Mother is only seeking relief back to this date. With respect to an accounting and reconciliation of s. 7’s, she is asking the court go back to January of 2010.

Ongoing support and s. 7 expenses must also be addressed. [ 3 ] The evidence is that Father unilaterally stopped paying full support as of mid-2014. His position was that none was payable as he had the children for 40% of the time. In an unsigned agreement dated December 2013, the parties contemplated the need for off-set child support to be paid in these circumstances and this was done until Father stopped paying entirely.

His pattern of payment is inconsistent with his position that none was payable at all. [ 4 ] There is an email from Mother to Father written in August of 2014 expressing her frustration that he had stopped paying support for three months without advising her. His response was to berate her for not keeping better track of her finances. The evidence is that Father has never had the children in his care for 40% of the time since separation. More recently he has had the children for two weekends each month for five overnights.

This amounts to one third of their time being spent in Father’s care. [ 5 ] For the reasons set out in my earlier decision respecting why Mother did not pursue various issues with Father, and the reasons herein, I find Mother is entitled to the full amount of guideline support from October 2014 forward and for any s. 7 expenses which have not been shared equally. There is no unfairness to Father in requiring him to pay what he should have been paying all along and could have easily determined was payable.

The children were in need during this time and Mother was experiencing financial challenges which could have been ameliorated by an appropriate amount of support and s. 7 expenses being paid by Father. The evidence establishes to the balance that Father has many discretionary expenses which he will have to forgo in the future. However, this does not amount to hardship.

I also find that in all the circumstances, ordering Father to pay these arrears is in accord with the provisions of the FLA which provides that each parent and guardian has a duty to support their children according to the Child Support Guidelines (see: D.B.S. v. S.R.G. et al , 2006 SCC 37 ). [ 6 ] A

summary of the amounts of child support payable was prepared by counsel for Mother and was marked as Exhibit 12. It is accurate except for 2015 where Father’s income was $128,217.00 yielding a monthly child support payment for two children of $1830.00. The total arrears for that year are $22,056.00. As of March 2017, Mr. Sadler was ordered to pay $1670.00 per month based on an income which was later determined to be somewhat higher and he should have been paying $1760.00 per month.

The total arrears for 2017 (given that he has continued to pay the $1670.00 per month) amount to $4240.00. [ 7 ] Mother has kept receipts and was able to provide a detailed breakdown of her claim for s. 7 expenses. She is claiming only for daycare, hockey and soccer fees, physiotherapy, Keats Camp, and piano. Half of those amounts from 2010 to early 2017 amount to $22,865.00 (Exhibit 10 - Tab 36). [ 8 ] Father took the position that he would not pay for any amounts unless a receipt was provided, but did not keep receipts himself for many amounts he says he paid and now wishes to be reimbursed for.

However, Mother agreed that his credit card statements were sufficient where no receipt were produced. Over the years since separation, Father has taken the position that they were each bearing an equal amount of such expenses. This position was arrived at in the absence of any assessment of the actual expenses each parent was covering. In fact, Mother has been paying far more for s. 7 expenses over the years. [ 9 ] As Mother is not claiming for clothing or sporting equipment, I have not granted Father his expenditures for such items. He purchased single vision glasses for one child and paid $743.79.

This is an excessive amount to pay and I have allowed him $343.00 for this. I have included the expenses Father incurred in 2016 for hockey fees for the 2016/2017 season. Although prospective and not included in the calculation of arrears, I am not allowing the hockey fees for the 2017/2018 season which Father paid in May of 2017 as the children will not be attending that program and I expect Father can be reimbursed for that expense by the Hockey Association.

This was an expense incurred at a time when the hearing on Mother’s application to relocate was pending and should not have been committed to without some assurance it could be refunded. On the evidence before the court, 50% of Father’s total expenditures amount to $5162.00. Terms of the Order [ 10 ] The total arrears of support from October 1 st of 2010 to and including October 1 st , 2017 are fixed at $51,643.00.

I impute Father’s 2017 income to be the same as his 2016 income for the purposes of determining a Guideline amount and his ongoing obligation is $1760.00 commencing November 1 st , 2017 and on the 1 st of every month thereafter until further order of the court or written agreement between the parties. [ 11 ] I order that arrears of s. 7 expenses owed by Father to Mother as of December 31 st , 2017 are fixed at $17,692.00. [ 12 ] I order that the parties must forthwith exchange all receipts for s. 7 expenses incurred to date in 2017 and determine the total amount which is to be shared equally.

If one party has paid less than the other party, they must reimburse the other party forthwith.

[ 13 ] The parties will each establish their own budget for s.7 expenses for the following 6 months and a list of their priorities with respect to non-essential expenses such as sports and activities and attempt to reach agreement, in consultation with the children, about what expenditures will be made. This will be repeated every February 1 st and August 1 st each year. The total expected expenditures will be divided in half and divided again into 6 payments to be paid by Father to Mother on the 15 th of November 2017 and the 15 th of every month thereafter.

If each party is incurring expenses, there must be an accounting of any over or underpayment every 3 months.

Each party must provide the other party with receipts for all such expenses they have incurred and any over or underpayment shall be amortized over the next 3 months and paid by the party who has underpaid to the party who has overpaid. [ 14 ] Each party will forthwith provide the other party with a list of essential s. 7 expenditures such as dental care, orthodontics, vision care, prescriptions, physiotherapy, and education expenses which are anticipated to be incurred over the next 6 months and when those expenses are likely to be incurred. This will be repeated every February 1 st and August 1 st each year.

The anticipated costs will be divided in half and divided again into 6 payments to be paid by Father to Mother on the 15 th of each month. If each party incurs expenses, there must be an accounting of any over or underpayment every 3 months.

Each party must provide the other party with receipts for all such expenses they have incurred and any over or underpayment shall be amortized over the next 3 months and paid by the party who has underpaid to the party who has overpaid. [ 15 ] All communications about s. 7 expenses and all accounting calculations must be done by email with scanned copies of all receipts attached to the emails.

Any non-essential s.7 expenses which are not agreed to in advance by one party are not payable by that party. [ 16 ] Each party must provide the other party with a copy of their filed income tax return by no later than May 15 th each year and their Notice of Assessment as soon as received.

The parties will forthwith calculate the amount of child support which was properly payable for the preceding year and any over or underpayment will be divided by 12 and amortized monthly over the next 12 months and any underpayment by Father will be payable on the 1 st of each month commencing July 1 st of each year. [ 17 ] The arrears of support and s.7 expenses may be enforced through the Family Maintenance Enforcement Program. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia