CMS v. JRW Date:, 2016 BCPC 425

Citation: CMS v. JRW Date: 20161125 2016 BCPC 425 File No: F10155 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: CMS APPLICANT AND: JRW RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Appearing on their own behalf: CMS Appearing on their own behalf: JRW Place of Hearing: Quesnel , B.C.

Dates of Hearing: October 31 and November 25, 2016, Date of Judgment: November 25, 2016 INTRODUCTION [ 1 ] CMS and JRW are the biological parents of CAW, born [omitted for publishing]. JRW seeks to terminate his child support payments for CAW, who is soon to be 20 years old. CMS, CAW’s mother, asks the Court to order JRW pay ongoing child support and child support retroactive to 2009. [ 2 ] JRW and CMS met in 1991 when they were in Grade 8. They dated until Grade 12, when CAW was born. JRW and CMS never married and never cohabitated. In 1998, JRW moved away from Quesnel.

He upgraded his education and between 2000 and 2002 completed a two year nursing program in Cranbrook. In 2001, JRW met his current wife, EW. In 2003, the W’s returned to live in Quesnel and in 2005 they married. They now have three children in addition to CAW. The W’s youngest child is four years old. [ 3 ] Upon his return, JRW worked at [omitted for publishing] t o 2008 and Mrs. W worked part-time teaching Kindergarten at [omitted for publishing] Elementary School in Quesnel.

In 2008, the W’s started a construction company and in 2010 they began to invest in acquiring, renovating, and renting residential properties. Since then they have refocused their attention from the construction company to their residential rental business. [ 4 ] When JRW left Quesnel for five years after high school graduation, CMS and CAW remained behind. They continued to live with CMS’s mother, AS. Eventually, CMS married someone else and now has two children in addition to CAW. CMS is employed with [omitted for publishing] as a residential care aide.

Last year her hours of work increased to almost full time (.85 FTE). [ 5 ] Until he was 15, CAW lived primarily with CMS. From the summer of 2012 to July 27, 2016, he divided his time between CMS and JRW. Since November 5, 2002, JRW has been paying CMS via the Family Maintenance Enforcement Program $187 per month for CAW’s child support. ISSUES [ 6 ] CMS and JRW agree JRW’s child support payments should end as of August 31, 2016.

As of that date, CAW was 19 years old, had completed his first year of post-secondary education in Power Engineering 4 th Class and working full time for [omitted for publishing] in Quesnel earning $27 per hour. [ 7 ] The remaining issues between the parties are as follows. a. Should the Court review child support for CAW retrospectively? If the answer is yes, then the following issues arise: b. JRW and CMS have a shared parenting arrangement with respect to CAW? c. For what time period should the Court review child support for CAW? d. How should the Court assess child support for CAW during the review period? i.

What are the parents’ guideline incomes? ii. What is the setoff amount of child support? iii. What increased costs arise from the shared parenting arrangement? iv. What are the conditions, means, needs and other circumstances of each parent and CAW? e. Should the Court impute income to JRW for underemployment? f. Should the Court order retroactive support? LITIGATION HISTORY [ 8 ] The evidence suggests that JRW had limited involvement in CAW’s early life. CMS says that he would visit with CAW when in Quesnel over Christmas. By 2005 this situated changed significantly after Mr. and Mrs.

W moved back to Quesnel. [ 9 ] On September 14, 2000, Judge R. Smith made an order awarding CMS sole custody and guardianship of CAW with reasonable access to JRW. [ 10 ] On October 11, 2000, Judge R.

Smith found JRW had an annual gross income of $22,800 and ordered him to pay CMS child support in the amount of $200 per month for CAW, commencing November 1, 2000. [ 11 ] On November 5, 2002, Judge Blake found JRW to have an annual income of $21,646 pursuant to the Child Support Guidelines and ordered him to pay CMS $187 per month for the support of CAW commencing January 1, 2002. [ 12 ] On February 18, 2005, upon hearing an application by JRW, Judge Blake ordered JRW access to CAW each Monday, Wednesday, and Friday from 4:30 to 7:30 p.m. and from Saturday at 4:00 p.m. to Sunday at 12:00 p.m.

Within one week, this order was varied upon an application by CMS. On February 25, 2005, Judge Blake ordered JRW have access to CAW each Wednesday and Friday

from 4:30 to 7:30 p.m. and every other weekend from Friday at 4:00 p.m. to Sunday at 12:00 p.m. commencing February 25, 2005. [ 13 ] On June 30, 2005, upon hearing an application by JRW, Judge Blake ordered JRW access to CAW: (

a) each Tuesday and Friday between 12 noon and 7:30 p.m.; (

b) every second weekend commencing with the weekend of July 1, 2005, from Friday at noon until Sunday at 7:30; and (

c) from 12:00 p.m. on August 5, 2005 to 7:30 on August 16, 2005. Access reverted to the February 25, 2005

schedule as of Labour Day. [ 14 ] On September 9, 2005, Judge MacDonald ordered JRW and CMS share joint guardianship of CAW and that CMS have sole custody of CAW. JRW was to have access to CAW Wednesday and Friday from 4:30 to 7:30 p.m., alternating weekends from Friday at 2:00 p.m. to Sunday at noon and extended by one day on statutory holiday weekends. JRW was to have access to CAW: (

a) for one week in July; (

b) one week in August; (

c) one week at Christmas: and (

d) one-half of school Spring and Easter breaks. Judge MacDonald also ordered JRW to provide a copy of his previous year’s Income Tax Return to CMS by March 30 of each calendar year. [ 15 ] The matter came before me for trial on October 31, 2016. I heard oral evidence from CMS, JRW and EW. I had before me the affidavit evidence of: CAW (Exhibits 8 and 9), CMS, CMS’s mother, AS (Exhibit 15), JRW (Exhibit 1), JRW’s wife, EW (Exhibit 6), Mr. and Mrs. W’s former neighbour, SV (Exhibit 5), CAW’s paternal grandparents, MRRW and CLW (Exhibit 4) .

I also received into evidence JRW’s Form 4 Financial Statement (Exhibit 2), CAW’s Form 4 Financial Statement (Exhibit 7) and CMS’s Form 4 Financial Statement (Exhibit 14). JRW has provided Notices of Property Assessments for all his real estate holdings, Income Tax Returns for 2009 to 2011, and Canadian Revenue Agency Notices of Assessment for 2009 to 2015, as well as a 2014-2015 balance sheet for [omitted for publishing]. CMS has provided CAW’s scholastic records (Exhibit 14) and a calculation of child support she believes remains outstanding (Exhibit 16).

Issue #1: Should the Court review child support for CAW retrospectively? [ 16 ] CMS seeks an order that JRW pay child support based on his guideline income retroactively. Currently, JRW is paying child support for CAW in the amount of $187 per month in accordance with Judge Blake’s order made November 5, 2002. [ 17 ] Section 152(1) of the FLA governs an application to vary child support, either prospectively or retrospectively.

It states: Changing, suspending or terminating orders respecting child support 152(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

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

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

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. [ 18 ] In this case, all three circumstances apply to varying degrees. Foremost, CMS bases her application on JRW’s failure to comply with Judge MacDonald’s September 9, 2005 order requiring him to provide her with a copy of his previous year’s Income Tax Return by March 30 of each calendar year.

CMS says it was only when JRW filed his Financial Statement in the context of these proceedings she received a copy of JRW’s Income Tax Returns. [ 19 ] I find that in the circumstances, the Court ought to review of JRW’s child support payment for CAW retroactively.

Issue 2: Did CMS and JRW have a shared parenting arrangement with respect to CAW? [ 20 ] A shared parenting arrangement arises when a guardian has parenting time with a child for not less than 40 percent of the time over the course of a year: see Federal Child Support Guidelines , SOR/97-175, s. 9 and Family Law Act Regulation , BC Reg 347/2012. [ 21 ] JRW says at the beginning of the 2012 school year and continuing to July 27, 2016, CAW lived with him fifty percent of the time. CMS and CAW say that during this period CAW lived with CMS and “visited” his father.

CMS strongly disagrees CAW ever lived with JRW 50 percent of the time. [ 22 ] On August 5, 2016, Judge Bayliff ordered JRW and CMS to produce all documents they have in their respective possession which establish where CAW was living. Both parties complied with this order and these documents have been received into evidence in these proceedings. CMS’s evidence of CAW’s residence [ 23 ] CMS provided the following documents confirming CAW lived with her in Quesnel, B.C., at [omitted for publishing], from 2009 to 2014, and thereafter at [omitted for publishing].

These documents were filed with the Court Registry on October 28, 2016 and include: a. an unsigned letter dated October 20, 2016, from Dr. [omitted for publication], CAW’s family doctor. Dr. [omitted for publication] confirms CAW lived with his mother at [omitted for publishing] in Quesnel, B.C. in the years 2009 to 2014, inclusive; b. a letter dated October 20, 2016, from JJ, the secretary of [omitted for publishing] Secondary School stating that their records show that from 2009 until his graduation, CAW’s primary residence was with is mother at [omitted for publishing], Quesnel, B.C. Ms. J

says this is supported by his Permanent Student Record, Transcript of Grades, Student Profile and Verification Report; c the Consent Order of Judge W.G.

MacDonald made September 9, 2005, granting CMS sole custody of CAW; d. unsigned TD Canada Trust Financial Services Agreements with CAW showing his address at [omitted for publishing], e. an Easy Access Customer Confirmation for CAW with the TD Bank showing his address as of August 1, 2013, was [omitted for publishing], f. a copy of CAW’s B.C. driver’s license issued August 28, 2015, showing his address as [omitted for publishing], which is CMS’s most recent address; g. a copy of CMS’s B.C. driver’s license and Service B.C. Card showing her new address to be [omitted for publishing]; h.

CAW’s T1 General 2014 Income Tax Returns showing his address as [omitted for publishing]; and i. a copy of CAW’s pay stub from [omitted for publishing] for November 15, 2014, showing his address as [omitted for publishing]. These documents are marked as Exhibit 12 in these proceedings. [ 24 ] CMS testified that she has always had sole custody of CAW since his birth. He has always lived with her. It was not until 2005 that JRW became CAW’s joint guardian. She agrees that after 2011, CAW increased his visits with his father on his own accord. She never restricted CAW’s access to his father.

She allowed CAW to visit with JRW as he wished. She allowed JRW to see CAW when he wished. She facilitated CAW’s paternal grandparents contact with CAW and kept them informed of his milestones. Nevertheless, whenever JRW was out of town on business, or he and CAW were not on speaking terms, CAW would return to live full-time with CMS. [ 25 ] CMS points out that JRW never sought to vary the court orders giving her full-time custody of CAW nor did he seek to vary any of the court orders setting out his access

schedule or child support payments. [ 26 ] CMS’s mother, AS, provided an affidavit in support of CMS. AS confirms that CAW has always lived with her daughter and visited his father. (See Exhibit 15) JRW’s Evidence as to CAW’s residence [ 27 ] JRW states that in 2002, CAW resided with his mother and visited him at his residence. These visits increased over the years until in 2012, when CAW began living with JRW half time. Each Sunday CAW alternated his residence between CMS and JRW’s residences. [ 28 ] JRW said that it was CAW who decided to divide his time equally between his two biological parents. JRW said this alternating parenting

schedule with CAW persisted from the fall of 2012 when CAW was 15 years old until July 27, 2016, when CAW was 19. JRW does not dispute that CAW maintained CMS’s residence as his mailing address. [ 29 ] JRW provided the following evidence as to CAW residing with him and his family: a. the affidavit of MRRW and CLW sworn August 10, 2016, and marked Exhibit 4. In that affidavit CLW and MRRW depose they have known about CAW residing half-time with each parent for several years. They are generally at their son’s residence every week as they babysit JRW and EW’s younger children.

They confirmed that in 2012, JRW built CAW his own bedroom, while the younger children, MW and NW, shared one bedroom. CLW and MRRW’s letter includes a photograph of CAW’s bedroom, which is furnished with a queen size bed, closets, dresser, night table, large flat screen television, x-box, desk, chair, pictures and a guitar. b. the affidavit of Staff Sergeant SV, formerly of the Quesnel, RCMP, who lived next door to the W’s on [omitted for publishing] in Quesnel, B.C., sworn October 10, 2015 and marked exhibit 5.

Officer V attests that from July 2012, when the W’s moved to [omitted for publishing] until the V family moved away in July 2015, CAW resided with JRW and EW. Mr. V stated: The amount I saw CAW at JRW and EW’s residence on [omitted for publishing] is consistent with CAW living there for one out of every two weeks. I did not see CAW every day, but I would see him regularly during the week as well as on weekends. We often had Sunday dinners with the W family, and CAW was often present at those.

Once CAW had a vehicle, it would also be present in the W’s driveway consistently every other week. c. a calendar which JRW and EW prepared showing those weeks between October 2013 to July 2016, when CAW lived at their residence. They created this chart from text and Facebook messages they exchanged with CAW during this period. JRW also printed out and attached to his affidavit of October 18, 2016, as part of Exhibit E, 104 pages containing hundreds of those messages. In these messages, CAW asked for a ride, or permission to stay out later or something else showing he was living at the W residence at the time.

JRW submits these texts show a pattern of CAW living alternating weeks at the W residence. There were some periods for which there were no text messages, such as 2012 to November 2013 and May 2015 to November 2015. These texts were lost over time. Also, CAW had two separate Facebook Messenger accounts, a text plus account and two different cell phones during the past four years, so it was difficult to locate and recover all the corroborative conversations. [ 30 ] JRW acknowledges there were times when CAW’s week on, week off

schedule varied; but for the most part, it was routine. Sometimes he would stay at CMS’s residence for two to three weeks in a row and other times he would stay with the W’s for two to three weeks. For example, in July 2015, CAW wrecked his vehicle in an accident and lost his license, after which he had to rely on others to transport him to and from work. In August 2015, CAW stayed with CMS for the entire month as they had roughly the same hours of work. CMS drove CAW to his work at [omitted for publishing] each morning on her way to her work. In September 2015,

when he began his studies in CNC in Quesnel, CAW lived continuously with the W’s to mid-October, after which he reverted to the alternating parenting time schedule. CAW’s bedroom contains his work clothes and electronic entertainment systems. JRW says that during his weeklong stay at his residence, CAW ate there, showered there, and went to and from work from there. CAW’s girlfriend, R, picked CAW up at the W residence each morning to drive him to school and returned him in the evening. [ 31 ] EW testified there were times that CAW departed from the alternating

schedule when they were out of town or when there were arguments. These hiatus in the regime did not last for more than a week or two. She denies the lack of text messages for the period between May and November 2015 represent a period when CAW was not communicating with his father. EW says that during this period she and JRW attended CAW’s high school graduation ceremony and in July 2015.

CAW called JRW for assistance after his car accident in Prince George. [ 32 ] JRW says he did not seek any variation to the existing court orders because he wanted to avoid the stress of court proceedings, for himself, his family and CAW. He recalls the multiple court proceedings in 2005 were difficult for everyone. On this point, JRW and CMS agree. CAW’s evidence as to his residence [ 33 ] CAW provided two affidavits in these proceedings.

In his affidavit filed on July 20, 2016, CAW deposed that: a. from 2005 to 2012, he lived at his mother’s house full-time with visits to his father every Wednesday and Friday and every other weekend plus holidays; b. in the summer of 2012, he decided to increase his visitation to his father’s residence to a bi-weekly routine. His mother allowed him to make that choice; c. as of the date of this affidavit, CAW maintained his routine of spending a week at his father’s residence followed by a week at his mother’s residence, with change overs on Sundays.

There were times when he has foregone this routine for a period; d. he is hopeful of going to school in Prince George in 2016 to obtain his Power Engineering Class 3 certification. He is unable to do this until he receives his Power Engineering - 4 th Class certification. His goal is to continue his training until he receives his Power Engineering Class 2 certification. [ 34 ] In his affidavit of July 27, 2016, CAW claims he provided his July 20, 2016 affidavit under pressure from his father.

CAW states on page 3 of this second affidavit: … in 2012 when I decided to increase my visitation to my father’s house to a bi-weekly routine there was no Arrangement or agreement made between my mother and father. I chose to do this on my own free will and my mother allowed me to do so. She has always had open door access to my father. She has always allowed me to make my own decisions and my own choices when it comes to my visitation to my father’s home, and there have been incidents where I have chosen to stop my visitation to my father’s home.

The majority of the past couple years I have kept my weekly routine between my mother and father’s of my own choice . [emphasis added] [ 35 ] In his July 27, 2016 affidavit CAW also states: I would like to State I live with my mother and I visit my father. If this was not the case and my father wishes to claim that I do live with him everything would be equal.

My father and my stepmother would treat me equal to their children, but they never have and never will, they have shown this through their actions. [ 36 ] CAW claims his father and step-mother treat him unequally because: a. although invited on their family vacations, CAW is required to accommodate their

schedule rather than the W’s accommodating his; b. they provide luxuries for the younger W children but not for CAW; c. they willed CAW only 1/7 of their estate while their younger three children will each inherit 2/7; d. his father has paid only a “measly amount of $190.00 dollars to $200.00 dollars at max” to support him over the years, even though he “owns multiple homes with a large rental income and his own company”; and e. his father places stipulations on any help he provides to CAW. [ 37 ] CAW goes on to say: When it comes to a day to day basis and I need help I ask my mother and my step-father for help because they have always been there to help me and don’t place stipulations on everything.

They never require me to conform to their views and do as they wish in order to help. They do this because that’s what family does. They have helped me out multiple times and numerous times throughout the years in everything and have never expected anything in return. [ 38 ] CMS and her mother appear to share CAW’s perception that his father treats him unequally. (See: Exhibit 15) CMS points out that until this year, CAW had no key to the W residence. When she pointed this out to JRW earlier this year, he gave CAW a key. [ 39 ] JRW and EW deny they treated CAW less favourably than their younger children.

They have always invited CAW on family vacations and he has accompanied them on many of these vacations. As CAW became older his work and school interfered with his ability to join the W’s on vacations. The W’s have tried to talk to CAW about his concerns that he is treated unequally, but apparently to

no avail. [40] A source of tension between CAW and JRW is his parent’s differing expectations. For example, CMS spoke of an incidentwhere CAW refused to return to the W’s residence after an argument about his dirty bedroom. It was not until his grandmother, CLW,agreed to clean his room that CAW agreed to resume his visits. [41] With respect to CAW’s finances, JRW believes that CAW needs to become more fiscally responsible and save some of hisearnings for school or a vehicle. JRW does not believe that CAW should spend his money as he sees fit and rely on his parents to pay hisschool expenses.

In order to encourage CAW to save money, JRW has offered to match any savings CAW can accrue in order topurchase a car or pay for his post-secondary education. [42] JRW believes that CAW has cut off communication with him at the end of July 2016, because CAW blames him for failing hisexam. CAW claims he was unable to adequately study for his exam because of the pressure his father exerted on him to write anaffidavit in his support in these proceedings.

JRW suggests CAW’s scholastic difficulties arose as a result of CAW’s decision to spendtime attending his girlfriend’s graduation celebrations rather than studying. Decision on Issue #2 [43] CMS argues that CAW lived with her and visited JRW. This is a distinction without a difference. JRW and CMS are CAW’sparents and guardians. The transitional provisions of the Family Law Act (which came into force on March 18, 2013) set out in s. 251(1)bestow parenting responsibilities and parenting time with respect to CAW on both guardians.

The fact that CAW maintained CMS’sresidence as his official address indicates that he also lived with her, which no one disputes. CAW spends time with each parent, or didso until the end of July 2016. [44] The question I must answer is whether CAW spent 40 percent of his time with each parent in a year and if so for what period? Iam persuaded on the evidence before me that for the period beginning in the late summer of 2012 and ending on July 27, 2016, CMSand JRW had a shared parenting arrangement with respect to CAW.

Specifically, I find that during this period, CAW lived with eachparent at least 40 percent of the time over the course of a year.

I base my decision on the oral and affidavit evidence admitted at trial andin particular, CAW’s two affidavits in which he confirms that during this period he alternated his time between JRW and CMS’sresidences. [45] Although, CMS expressly rejects JRW’s claim CAW spent 50 percent of his time at his residence, she has not articulated whatpercentage of time she believes CAW did spend with each parent. [46] I accept that CAW genuinely feels he is a second class member in the W’s household. I suspect this is not an uncommonsentiment of children whose parents have re-partnered.

In my view, I do not consider the matters of which CAW and his mothercomplain as evidence of unequal treatment. It is not unreasonable for the W’s to

schedule a family vacation at a time when they areavailable. It is not unfair to bequeath CAW a lesser percentage of their estate because presumably CAW will inherit from both hismother and father’s estates. It is not uncaring to expect a young man to clean his own bedroom. [47] It is apparent JRW wants CAW to become a responsible adult and that CMS believes CAW has already reached that goal. CMSis very protective of CAW and wants JRW to recognize the son he once left behind as equal to those who were always with him.

Itseems to me the prolific number of court orders in 2005 represents JRW’s efforts to do just that. I do not accept JRW’s more exactingparenting style means he loves or cares for CAW less than he does his three younger children. Issue #3: For what period should the Court review child support for CAW? [48]

Section 170(

b) of the FLA provides that support can be ordered retroactively with respect to any period before the applicationfor the order is made. [49] The governing authority on retroactive child support obligations is the Supreme Court of Canada decision of D.B.S. v. S.R.G.,2006 SCC 37 . D.B.S. dealt with an application by the recipient parent for a retroactive increase in child support. Mr. JusticeBastarache makes it clear in D.S.B. (at para. 60) that “[n]o child support analysis should ever lose sight of the fact that support is theright of the child.” [50] In D.B.S., Bastarache J. sets out four factors to be considered by the court in assessing whether a retroactive order isappropriate:

a) whether there is a reasonable excuse for why support was not sought earlier;

b) the conduct of the payor parent;

c) the circumstances of the child or recipient spouse; and

d) any hardship occasioned by a retroactive award on the payor spouse (See McKenzie v.

Perestrelo, 2014 BCCA 161 at para. 106) [51] In D.B.S., the Supreme Court held that as a general rule, absent misconduct, a retroactive change to a child support willcommence the date of effective notice, but no more than three years in the past. “Effective notice” is “not restricted to the date uponwhich an application to the court or formal notice is given, but generally when the topic is broached.” The reason for this rule is thatpersons must have some certainty in their financial affairs. [52] In this case, the evidence before me indicates the topic of retroactive child support was broached on November 15, 2015, just

over a month before CAW’s 19th birthday. JRW asked CMS when she thought the date on which CAW’s child support should end. JRW says that CMS became angry and said if he stopped paying child support or tried taking her to court to end the payments, shewould pursue him for retroactive child support. CMS was of the view that JRW had been lying to her and concealing his true incomeover the years. CMS believed JRW ought to have been paying significantly more child support than $187 per month. [53] CMS acknowledges JRW spoke to her shortly before CAW’s 19th birthday.

She says that is when JRW wanted to stop all childsupport payments. She asked that he continue on until CAW completed his power engineering course in June 2016. JRW denies any intention to terminate child support on CAW’s 19th birthday. He said all he wanted to know was when CMS thought child supportshould end. He instituted these proceedings, because CMS said he would have to continue paying child support for a further ten years. CMS is adamant she said no such thing. [54] This is not the first time CMS has sought an increase in child support.

In 2011, CMS asked a Family Justice Counsellor (“FJC”)in Prince George to review JRW’s child support payments. JRW sent the FJC his financial statements for 2009, 2010 and 2011 (Exhibit3), who reviewed them with CMS.

The FJC advised CMS that based on his Returns, JRW’s child support payments would actuallydecrease, but that JRW agreed to continue to pay $187 per month. (See Exhibit B to JRW’s October 18, 2016 Affidavit) CMS did notpursue JRW for increased child support payments until May 24, 2016, when she filed her Reply and Counterclaim in these proceedings. [55] I make no finding with respect to the parties’ hearsay evidence about what the FJC may or may not have said to CMS.

I doaccept as uncontested that JRW provided the FJC with his Income Tax Returns for 2009, 2010 and 2011, and that the FJC did conduct areview of his child support payments at that time. JRW’s Income Tax Returns and Notice of Assessment for those years indicate hisguideline income in 2009 was $23,662, in 2010 it was $18,859.40, and in 2011 it was $17,592.10. This means JRW’s Guideline childsupport payments would have been $204 in 2009, $164 in 2010, and $144 in 2011 for a total of $6,144. JRW actually paid $187 permonth for a total of $6,732.

Decision on Issue #3 [56] I find the Court ought to review child support for CAW for the period commencing January 1, 2012 and ending on August 31,2016. In reaching this decision I have taken into consideration: (

a) CMS and JRW both reasonably resisted returning to court earlier torevisit child support in order to maintain peaceful family relations; (

b) JRW failed to comply with Judge MacDonald’s September 9, 2005order to disclose to CMS his yearly Income Tax Returns; (

c) JRW, CMS and CAW’s financial circumstances have changed significantlyover the years; (

d) JRW and CMS’s parenting arrangements for CAW evolved into a shared parenting regime in 2012; and (

e) onDecember 20, 2015, CAW turned 19 years old. Issue #4: How should the Court assess child support for CAW during the review period? [57] Every parent has a duty to pay child support providing that the child: (

a) is a minor and not a spouse (FLA, s. 147(1)(a)); or, (b)has attained the age of majority but is unable to withdraw from the charge of his or her parents (FLA, s. 146). Each parent of a child has aduty to provide support for the child and may be required to pay child support (FLA, ss. 147(1), 149(1)). [58] The amount of child support must be determined in accordance with the Child Support Guidelines (s. 150(1)). Pursuant to theFLA and

Part 4 of the Family Law Act Regulation, BC Reg 347/2012, the Child Support Guidelines means the Federal Child SupportGuidelines (the “Guidelines”) established under

section 26.1 of the Divorce Act (Canada). The Guidelines set out the rules and tablesused to determine child support when parents are separated or divorced. The purpose of the Guidelines is to: (

a) establish a fair standardof support for children so that they continue to benefit from both parents’ incomes after the separation or divorce; (

b) reduce conflict andtension between parents by making the calculation of child support more objective and (

c) ensure that parents and children in similarsituations are treated the same; and (

d) make the legal process more efficient and encourage settlements by giving courts and parentsguidance about child support. (See Guidelines, s. 1 (

a) to (

d) and Kowalewich v. Kowalewich, 2001 BCCA 450 , at para. 42). [59] My review of JRW’s child support payments for CAW retroactive to January 1, 2012, engages the analytical frameworkapplicable to child support payable in a shared parenting arrangement under

Section 9 of the Guidelines. It is not the simplemathematical calculation based on JRW’s Guideline income as was the case when CAW spent more than 60 percent of his time withCMS. The Court must also take into consideration the parent’s respective Guideline income, the increased cost of shared custody andthe condition, means, needs, and other circumstances of each parent and the child. The Court must weigh all these factors to determinean appropriate child support amount: see the Guidelines, s. 9(1). In Contino v.

Leonelli-Contino, 2005 SCC 63 JusticeBastarache, said in para. 3: Shared custody arrangements are not a simple variation of the general regime, they constitute by themselves a complete system. [60] In shared parenting arrangements, the court begins its analysis with the application of a simple setoff formula. The courtdetermines the amount of child support each parent would pay to the other parent if the other parent had 60 percent or more parentingtime with the child and offsets the difference.

The court must go on to assess if the setoff formula adequately addresses the increasedcosts of shared parenting arrangement or is otherwise appropriate in the circumstances given the conditions, means, and needs of theparents and of the child for whom support is sought. There is no presumption that the Guidelines Table amount or the setoff amountcalculated under the Tables will be awarded: Contino, para. 31.

The objective of s. 9 of the Guidelines is to give a court the discretion toadjust child support in situations of shared custody so that the child does not experience significant differences in the standards of livingthat each parent can offer in their homes.

What are the parents’ Guideline incomes? [61] As a general rule, a parent’s income for the purposes of calculating child support is derived from the sources of income used tocalculate that parent’s “Total income” on line 150 of his or her T1 Income Tax and Benefit Return or the CRA’s Notice of Assessment ormost recent Notice of Reassessment (Guidelines, s. 16). In some cases the court must look beyond Line 150 of the Return, Notice ofAssessment or Reassessment. For parents whose income fluctuates or who are self-employed, the calculation of their gross income is not

as simple as it is for wage earners. They have business expenses that must be offset against the gross income. The judge must determinewhat their gross income would be if they were employed for wages. (Guidelines,

Section 16) [62]

Schedule III of the Federal Child Support Guidelines gives the court discretion to “adjust the Total Income” to reflect funds thepayor parent has at his or her disposal for child support purposes: Andreassen v. Andreassen, 2016 BCSC 1196 , citing Vincentv. Vincent, 2012 BCCA 186 at para. 35. [63]

Schedule III requires a payor spouse who earns income through a partnership or sole proprietorship to “deduct any amountincluded in income that is properly required for purposes of capitalization.” Capitalization in the context of the Guidelines means themoney needed to operate the business on a day-to-day basis: C.R.E. v. K.L.E., 2011 BCSC 291 at para. 10, citing Ghosn v.Ghosn, 2006 NSSC 2 .

The W partnership’s capitalization costs on their rental properties consist primarily of interest paymentson the cost of borrowing, insurance, property taxes, utilities, repairs and maintenance. [64] Section 17(1) of the Guidelines provide the courts with discretion to adjust income based on the preceding three years if thejudge finds the annual income under s. 16 does not represent the “fairest determination of income”. In Marquez v. Zapilola, 2013 BCCA433 , the Court of Appeal held, at paragraph 53, that the test for the application of s. 17(1) of the Guidelines is what is “fair andreasonable”. (See Harras v.

Lhotka, 2016 BCCA 246 para. 22 wherein the court applied a five-year average where the payor’sincome was fairly described as fluctuating). [65]

Section 19 of the Guidelines provides the court with a broad discretion to impute income to a spouse unencumbered with therestrictions set out in ss. 16, 17 and 18: Harras v. Lhotka, para. 23, citing Oulette v. Oulette, 2012 BCCA 145 at para. 66. [66] One of the circumstances enumerated under s. 19(1) wherein a court can impute income is when a spouse unreasonably deductsexpenses from income (s. 19(1)(g).

Section 19(2) expressly states: “For the purposes of s. 19(1)(g), the reasonableness of an expensededuction is not governed by whether the deduction is permitted under the Income Tax Act. [67] JRW has filed a Form 4 Financial Statements and provided his Income Tax Returns for the 2009 to 2015 taxation years,inclusive: see Exhibits 2 and 7. He has also provided Canada Revenue Agency’s Notices of Assessment to show these returns wereaccepted as filed. These Returns confirm the W’s have a business partnership acquiring run down residential properties which theyrenovate and rent. Mr. and Mrs.

W divide the profits equally and pay personal income tax on their respective share. [68] On October 18, 2016, JRW provided the court and CMS with those documents Judge Bayliff ordered disclosed on August 5,2016, namely, JRW’s property tax assessments for all real estate in which he has an interest. These documents relate to one property at[omitted for publishing], Prince George, B.C.; and seven in Quesnel B.C., located at [omitted for publishing]. The property on [omittedfor publishing], Quesnel, B.C., is the W family residence and not a revenue producing property.

JRW says the W partnership hasacquired but not sold properties in the past three years. I note JRW’s 2009 Income Tax Return is the only return before the court whichindicates a capital gain or loss. [69] Mr. W says the partnership is able to acquire the rental properties because they have excellent credit. The properties arefinanced through non-standard mortgages in the form of a re-advancable line of credit. I understand a re-advancable mortgage is onewhich allows the borrower to re-borrow on the principal amount of the original mortgage that has been paid down.

JRW says theyborrow up to 80% of the value of the property, renovate it, have it reappraised and re-mortgage it up to 80% of its increased value. Thisprovides them with the funds to acquire more properties. The W’s are disciplined with their money. They live modestly on a combinedincome of $60,000 to $70,000 per year, which includes Mrs. W’s teacher’s salary. He says they live in an old house and drive oldvehicles. Ms. W says they spend little, they use air miles which they save for years to take family vacations. [70] The rental properties are capital assets belonging to the W partnership.

These are not assets available for the purposes ofdetermining JRW’s child support. JRW’s profit earned from the rent of those properties is conceptually available for that purpose. InJeffery v. Motherwell, 2006 BCSC 140 , the court held the onus is on the payors to demonstrate what business income or assetsare unavailable to him. The evidence must be clear and compelling: Andreassen, at para. “The court should not have to ferret out thenecessary information from inadequate or incomplete financial disclosure.” [71] JRW’s reported income from the W business partnership is minimal.

Most profits are reinvested in acquiring more properties,all of which are highly leveraged. In his Financial Statement sworn June 26, 2016, JRW indicates he and his wife own real property withan aggregate value of $1,324,700 against which there is owing $1,285,848, leaving $38,852 in equity. [72] Since 2008, JRW has also worked for [omitted for publishing], a family owned home renovation business. EW owns 100% ofthe shares in [omitted for publishing] and JRW is a causal employee.

The monies JRW has declared as employment income on hisIncome Tax Returns during the review period are monies he earned from working on construction projects for [omitted for publishing]. JRW says that he and his wife found their partnership business far more lucrative than [omitted for publishing]’s construction-for-hirebusiness. Since 2014, the W’s have allowed [omitted for publishing]’s business to wither. Where it once had nine employees, in nowhas only one. [omitted for publishing] does not provide renovation services to the W partnership. It has no assets other than tools. Although Mrs.

W owns the company, she does not physically work for the company other than to assist with the bookkeeping. In 2015,[omitted for publishing] undertook only two renovation jobs which barely kept the company afloat. [73] The only document before the court with respect to [omitted for publishing] is Exhibit 11, a corporate balance sheet for [omittedfor publishing]’s fiscal year from September 2014 to August 2015. The balance sheet indicates a business loss of $9,205.48. [74] Both Mr. and Mrs. W deny that [omitted for publishing] provided the revenue to purchase any of their residential rentalproperties.

These were all acquired with borrowed money. [75] JRW’s Income Tax Returns also indicate that he claims the Universal Child Care Benefit (“UCCB”) for his three youngerchildren. This benefit is not included in JRW’s income for the purposes of calculating obligations to CAW: see Guidelines,

Schedule III,s. 3.

[76] CMS argues that JRW’s income for the purposes of determining his child support obligations ought to be one-half of the grossrental income from the W business partnership. She calculates that for the 2013, 2014 and 2015 taxation years, JRW has underpaid hermaintenance by $22,949: Exhibit 16. CMS bases her argument on the fact that her gross employment income is used to calculate childsupport. JRW chose to reinvest his income into acquiring new properties rather than in CAW.

Although I do not agree with CMS’ssubmission, I do agree that JRW’s “Total Income” recorded on Line 150 of his Income Tax Returns is not all the money available forchild support. Nevertheless, I must take into account the legitimate needs of the W’s business partnership and balance those againstJRW’s support obligations for CAW: Chapman v. Summer, 2010 BCCA 237 . [77] In this case, I find that for the purposes of calculating JRW’s income for child support, depreciation of rental properties, oftenreferred to as the capital cost allowance, should be added back into income: see Egan v.

Egan, 2002 BCCA 275 ; Guidelines,Schedule III, s.11. I also find that some portion of the office, travel, and motor vehicle expenses claimed ought to be added back into therental property income because JRW has a home office and I have also assumed he has accrued some personal benefit from the travel andvehicle expenses. With only minimal description of those expenses, I concluded that it is appropriate to limit the deduction for theseexpenses to one-half of the sum claimed.

JRW’s Unadjusted Guideline Income for 2012 [78] JRW’s 2012 T-1 General Income Tax Return includes employment income from [omitted for publishing] of $19,100 and theUCCB of $3,100. This Return also includes a “Statement of Real Estate Rentals” setting out the gross partnership revenues, expensesand profits. In 2012, the W partnership owned four rental properties which earned gross revenue of $49,575. It declared expenses of$40,929.34, which included: (

a) advertising for rentals in the amount of $114.42; (

b) insurance in the amount of $2,538.36; (

c) intereston the cost of borrowing money to acquire the property in the amount of $19,292.25; (

d) office expenses of $211.40; (

e) legal,accounting and other professional fees of $459.20; (

f) maintenance and repairs totalling $8,617.12; (

g) property taxes totalling $6,319.80;(

h) travel in the amount of $950.40; (

i) utilities in the amount of $1,452.39; (

j) bank fees in the amount of $574 and (

k) supplies in theamount of $400. Upon deducting the enumerated expenses from the $49,575 gross profits, the W partnership earned at net income of$8,645.66 which it totally offset with a capital cost allowance (depreciation expense). This meant that in 2012, JRW declared no rentalincome for the purpose of the Income Tax Act. [79] In my view, for the purposes of determining JRW’s Guideline income for 2012, the capital cost allowance and one half of thetravel expenses ought to be factored back into the partnership income.

This leaves the W partnership with a net income of $9,170.80, ofwhich one half ($4,585.40) belongs to JRW. (Gross Profits: $49,575 - Adjusted expenses: $40,404.20; ($40,929.34 - $950.40 + $425.20)= $9,170.80). Based on this calculation, I find that JRW’s 2012 Guideline income before any further adjustment was $23,685.40. JRW’s Guideline income for 2013 [80] JRW’s 2013 T-1 General Income Tax Return forms part of Exhibit 2. It shows JRW declared employment income from[omitted for publishing] of $16,500 and income from property rentals of $2,231.26.

JRW’s “Statement of Real Estate Rentals” for 2013indicates the W partnership owned five rental properties which earned gross revenue of $68,450. The partnership declared expensestotalling $44,498.40, which included: (

a) advertising in the amount of $118.31; (

b) insurance in the amount of $2,709.26; (

c) interest onthe cost of borrowing totalling $24,947.26; (

d) office expenses of $212.16; (

e) legal, accounting and other professional fees of $1,100.50;(

f) maintenance and repairs totalling $2,819.61; (

g) property taxes totalling $8,742.52; (

h) travel in the amount of $1,036.80; (

i) utilitiesin the amount of $2,167.98, and (

j) bank fees in the amount of $644. Upon deducting the enumerated expenses from the $68,450 grossprofits, the W partnership earned a net income of $23,951.60. The partnership offset this net profit with a capital cost allowance of$19,489.08, leaving a net income of $4,462.52 for the purpose of the Income Tax Act.

JRW declared one-half of this sum ($2,231.26) onhis 2013 Return. [81] I will add one-half of the travel expenses ($1,036.80 ÷ 2 = $518.40) and the total capital cost allowance ($19,489.08) back intothe partnership income for the purposes of calculating JRW’s 2013 Guideline income, JRW’s share of the business partnership income in2013 would have been $12,235 ($68,450 - $43,980 = $24,470 ÷ 2 = $12,235). Adding $12,235 rental income to JRW’s $16,500 inemployment income, provides him with an unadjusted Guideline income for 2013 of $28,735 ($16,500 + $12,235 = $28,735).

JRW’s Guideline income for 2014 [82] In his 2014 T-1 General Income Tax Return (Exhibit 2), JRW declared employment income from [omitted for publishing] of$15,000. The Statement of Real Estate Rentals indicates the W partnership had seven rental properties in 2014, earning a gross income$89,611.72. The partnership declared expenses totalling $140,309.86, which included: (

a) advertising in the amount of $49.98 (b)insurance in the amount of $4,667.07; (

c) interest on the cost of borrowing totalling $33,260.09; (

d) office expenses of $1,879.33 (e)legal, accounting and other professional fees of $2,206.99; (

f) maintenance and repairs totalling $77,817.24; (

g) property taxes totalling$10,903.13 (

h) utilities in the amount of $4,423.56, (

i) vehicle expense in the amount of $5,102.47. Because of the high cost ofrenovations to the rental properties in 2014, the W partnership declared no income and in fact, reported a business loss of $50,698.14. JRW’s share of this loss $25,349.07 ($50,698.14 ÷ 2 = $25,349.17). Even if I were to factor back into the expenses a portion of themonies deducted for a home office and motor vehicle expenses, JRW would not have earned any money from the rental properties in2014. [83] I find JRW’s unadjusted Guideline income for 2014 was the $15,000 in employment income as set out on Line 101 of his 2014Income Tax Return.

The only other income he received in that year was the $2,400 from the UCCB, which is not included in thecalculation of his guideline income. JRW’s Guideline income for 2015 [84] In his 2015 T-1 General Income Tax Return (Exhibit 2), JRW declared two sources of income: $396.96 in rental income and$3,760 in the UCCB. He did not work for [omitted for publishing] in 2015, so he has no employment income from that source. The2015 Statement of Real Estate Rentals indicates the W partnership had seven rental properties in 2015, earning a gross income$110,798.40.

The partnership declared expenses totalling $81,543.47, which included: (

a) advertising in the amount of $819.06 (

b) insurance in the amount of $5,764.397; (

c) interest on the cost of borrowing totalling $37,892.24; (

d) office expenses of $3,631.02 (

e) legal, accounting and other professional fees of $2,359.80; (

f) maintenance and repairs totalling $7,401.61; (

g) property taxes totalling $12,292.81 (

h) utilities in the amount of $5,669.24, (

i) vehicle expense in the amount of $5,713.32. After deducting a total of $81,543.49 for expenses, the W partnership was left with a net profit of $29,254.91. From this sum, JRW has deducted, for tax purposes, the capital cost allowance on the rental properties, which in 2015 was $28,460.99. The remaining profit for the purposes of personal Income Tax Act was $793.92, which JRW shared equally with EW. JRW declared $396.96 as his share of the rental income in 2015. [ 85 ] JRW recognizes the depreciation is not an expense that ought to be deducted for the purposes of calculating his income for paying child support.

He submits the appropriate income for 2015 would be his share of the pre-depreciated profits. His share (50%) of the $29,254.91 is $14,627.46. To this sum, I also factor in one half of the motor vehicle and home office expenses. This means that the partnership expenses for 2015 would be $76,871.32 and the net partnership profits $33, 927.08 ($110,798.40 - $76,871.32 = $33,927.08). JRW’s share of that net rental profits is $16,963.54. Accordingly, I find JRW’s 2015 Guideline income, without further adjustment is $16,963.54.

CMS’s Guideline income [ 86 ] CMS is employed with [omitted for publishing] as a part-time residential care aide. Her Guideline income is straight forward. In 2013, CMS’s Guidelines income was $23,196, which consists of her “Total Income” on Line 150 of her 2013 Income Tax Return of $23,633 less $437 in union dues as per Guidelines ,

Schedule III, s.1(g)). In 2014, CMS’s income was $29,845 ($30,405 employment income less $560 for union dues). In 2015, CMS’s Guideline income was $49,265 ($50,191 employment income less $926 for union dues). What is the setoff amount of child support? [ 87 ] In accordance with step-one of the Supreme Court’s directive in Contino , I will offset JRW and CMS’s respective Guideline incomes for the review period. I hasten to add that although this exercise indicates a net benefit to CMS, JRW has not sought retroactive child support from CMS. a.

JRW’s 2012 Guideline income before any further adjustment was $23,685.40. Based on this sum, JRW’s child support payments for 2012 would be $204 per month. I do not have information as to CMS’s 2012 Guideline income, however using her 2013 Guidelines income of $23,196 CMS’s child support payments for 2012 would be $200 per month. This sum is relevant to the period from September 1, 2012 to December 31, 2012, when the shared parenting regime was in place. JRW ought to have paid $2,448 in child support for 2012.

Offsetting this sum is the $2,244 he did pay and the $800 which CMS would have paid resulting in CMS receiving a net benefit of $596 (($204 x 12) - ($187 x 12) - ($200 x 4) = $596). b. JRW’s unadjusted Guideline income for 2013 was $28,735. Based on this sum, JRW’s child support payments for 2013 would be $256 per month. CMS’s 2013 Guidelines income was $23,196 which means her child support payments for 2013 would be $200 per month. Offsetting the two incomes would result in CMS receiving an additional $56 per month ($256 - $200).

Because JRW paid $187 per month in child support, CMS received a net benefit of $131 per month for a total of $1,572 for the year. c. JRW’s unadjusted Guideline income for 2014 was $15,000. Based on this sum his child support payments would be $97 per month. CMS’s Guideline income in 2014 was $29,845, which means her child support payments would be $267. Because JRW paid CMS $187 per month CMS received a net benefit of $357 per month or $4,084 for the year: ($267 - $97 + $187) x 12 = $4,284). d. JRW’s unadjusted 2015 Guideline income $16,963.54. Based on that income, his support payments would be $132 per month.

In 2015, CMS’s Guideline income was $49,265, which means her child support obligations would be $451 per month. Because JRW paid her $187 per month for child support in 2015, CMS received a net benefit of $506 per month for a total of $6,092 for the year: (($451 - $132 + $187) x 12 = $6,072). e. Because I have no information as to the parties’ income and expenses for 2016, I assume they will mirror those earned and incurred in 2015 and I will not factor in any change for the period after December 20 2015, when CAW turned 19.

I understand that CAW was unemployed and attending school fulltime from November to the end of June 2016. Based on a Guideline income of $16,963.54, JRW’s child support payments would be $132 from January 1 to August 31, 2016, when CAW’s eligibility for child support ends. CMS would have had to pay JRW $451 per month in child support for seven of those months when the share parenting regime was still in place.

As JRW paid CMS $187 per month, this means CMS received a net benefit of $506 per month for a total of $3,542 for the year: (($451 - $132 + $187) x 7 = $3,542). [ 88 ] It is clear that upon a mathematical application of the setoff method to the parties’ respective Guideline incomes, CMS would not be entitled to any retroactive child support during the review period. In 2012, she received a benefit of $596; in 2013, she received $1,572; in 2014 it was $4,284; in 2015, it was $6,072 and in 2016, it was $3,542.

Using a simple setoff method, CMS received a total benefit of $16,066. [ 89 ] As the Supreme Court has unequivocally stated in Contino , the set off calculations is the beginning, not the end of the inquiry. What are the increased costs of shared parenting arrangements? [ 90 ] There is no specific evidence before the Court as to the increased costs JRW experienced as a result of the shared parenting arrangements. There is evidence that JRW fixed up a bedroom for CAW in 2012.

I accept that having a young man residing in their home every other week would increase some of their household expenses. [ 91 ] CMS did not say her costs remained unchanged when CAW was with JRW, but I accept that would likely have been the case. Obviously, a parent’s housing costs do not decrease because their child is with the other parent for a week. In Contino , Bastarche J. stated at para. 54:

not every dollar spent by a parent exercising access over the 40 percent threshold results in a dollar saved by the recipient parent and it is possible to presume, in the absence of evidence to the contrary, that the recipient parent’s fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access irrespective of the residential arrangement (para 54) [ 92 ] Simply put, CAW needs equal living space in each residence.

The consumables such as food, gas and utilities would likely vary, but fixed costs would not. [ 93 ] JRW says that during the review period he and CMS split the costs of CAW’s expenses. CMS said the only money she ever received from JRW was $187 per month in maintenance. She maintains JRW did not contribute anything towards CAW’s upkeep beyond his child support payments. CMS believes that she paid for all of CAW’s necessaries of life and extras. I accept that is her perspective, but I do not accept that was in fact the case. CAW lived at the W residence almost every other week for four years.

While at their residence, the W’s covered his living expenses. In his Financial Statement, CAW does not admit to paying any living expenses whatsoever. Moreover, the W’s have made or offered contributions of which CMS was not aware or refuses to acknowledge. Some of those contributions include: a. JRW saved the basement suite in a Prince George rental property for CAW in the expectation he could live there in the fall of 2016 while attending CNC. This did not happen because CAW has to rewrite his exam in May 2017.

I understand JRW is still intent on providing CAW with accommodation while he attends his Power Engineering 3 rd Class in Prince George next year. With the cost of accommodation in Prince George, this is not an insignificant contribution; b. The W’s have taken CAW on vacations when CAW’s scheduled allowed it. c. JRW has also offered to match CAW’s savings for his educational expenses and the cost of a new vehicle; d. JRW arranged for CAW to work for [omitted for publishing] in construction so he got an early introduction into the work force; e. Mrs. W’s extended family has contributed to CAW’s education.

CAW said he received $200 from his great-grandmother HM to help pay for his course books and a $900 RESP from MRRW and CAW to assist with tuition. [ 94 ] Upon reviewing JRW and CMS’s Financial Statement, I do not see much margin for savings from a shared parenting arrangement for either parent beyond food and utilities. I accept that any additional costs incurred by each parent because of the shared parenting arrangement do not translate into any significant savings to the other. [ 95 ] I am unable to conclude which parent, if either, bore the greater proportion of the CAW’s costs during the review period.

What other conditions, means, needs and other circumstances of each parent and CAW? [ 96 ] There has been no suggestion that any of JRW or CMS or CAW have any physical or mental disability. All three are obviously intelligent and work hard in physically demanding jobs. CAW is only 20 and JRW and CMS are in their 30’s. There is no evidence that either parent has other members in their household who are disabled. [ 97 ] JRW indicates in his Financial Statement sworn June 26, 2016, the W’s have significant real estate holdings, all of which are heavily mortgaged. They also have vehicles.

JRW estimates their unencumbered asset value as $87,362, of which his share is $43,676. He also indicates in his Financial Statement his annual expenses for the W family are $57,244, of which he is responsible for one-half ($28,622). [ 98 ] CMS indicates her household expenses are $49,875.63, and does not apportion those between herself and her husband. She lives in rental accommodation and does not admit to having any assets, although she does indicate she has car payments.

There is no evidence as to her spouse’s occupation or income. [ 99 ] CAW is obviously a very industrious young man who started working part-time when he was 16 years old. He worked part time for [omitted for publishing] and [omitted for publishing] while in high school. CAW’s 2013 T4 (Exhibit 12), shows he earned $1,179.36 from [omitted for publishing] and $8,306, from his student clean up job at [omitted for publishing] . In 2014, CAW earned $19,278.51 from his employment with [omitted for publishing] and in 2015 he earned $19,982.89.

In his Financial Statement sworn June 24, 2016, CAW says he has been unemployed since November 7, 2015. I understand that since August 2016, he is working full time at [omitted for publishing] earning $27 per hour. CMS believes his take home pay is about $1,300 every two weeks. [ 100 ] On October 28, 2016, pursuant to Judge Bayliff’s order, CMS filed with the court registry CAW’s record relating to his post- secondary education: see Exhibit 13. These records show that CAW was enrolled in [omitted for publishing] in Quesnel in 2015-2016.

CAW obtained B’s in 9 of his courses for his Power Engineer Course Class Four. Apparently, he obtained 57% in a Power Engineer, Operator & Safety Awareness course in which a passing grade was 65% and was unable to advance to the Power Engineer Class 3 stage of this program. CMS also produced a copy of CAW’s application dated October 24, 2016 to the B.C. Safety Authority to rewrite his Power Engineer, Operator & Safety Awareness examination in Prince George on May 15, 2017. I glean from this documentation that CAW is an intelligent young man who ordinarily does well in his educational pursuits.

I do not put much weight on the fact he has to rewrite on of his Power Engineering examinations. This is not an uncommon setback for a young person making the transition from high school to post- secondary school. It is sufficient that he has plans to do so and continue with his chosen course of studies. [ 101 ] Although CAW does not yet contribute any of his earnings to household expense, he likely pays for various items his parents would have funded had he been unemployed. CAW has purchased a vehicle and pays to operate and insure it.

He paid $3,500 to cover the cost of his tuition for his Power Engineering Program. The court expects that generally adult children make a reasonable contribution to their education: see R.J.M. v. E.M ., 2016 BCSC 1813 , at para. 22 . As CAW matures, I am confident he will become increasingly independent, both physically and financially. [ 102 ] In considering the conditions, means and needs JRW, I consider the following circumstances relevant:

a. Whereas CMS’s and CAW’s incomes have increased over the years, JRW’s has decreased. This is so, even though JRW is skilled, educated, abled-bodied, intelligent and ambitious; b. JRW and EW have arranged their affairs so JRW devotes much of his energy into managing and advancing their business of acquiring, renovating and renting residential properties. The W’s now have seven or more residential rental properties. Their partnership has no employees and JRW personally manages, renovates and repairs these assets.

Although the W’s only realize a modest income from their residential rentals, they see this as a lucrative investment with a promising future; and c. JRW has not suggested his lifestyle has suffered as a result of paying $187 per month to CMS even though she out-earned him. d. JRW and CMS’s respective household expenses are not unreasonable or disproportionate. JRW’s expenses are slightly more than CMS’s, but he has four children and child care expenses of $5,000, whereas CMS has three children and no child care expenses. Issue #5: Should the Court impute income to JRW? [ 103 ] Section 19(1) (

a) of the Guidelines which state: 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 104 ] CMS cannot fathom how it is that JRW has so many properties and so little income on which to pay child support. For years, JRW was buying, selling, renovating and renting properties.

When he was not involved in those activities, he was working in his family renovation business, which, at one point, had up to nine employees. [ 105 ] There is no question that JRW works extremely hard at building the family business. Both Mr. and Mrs. W espouse the virtue of living a modest lifestyle now for future benefit. JRW’s endeavours will likely provide their business with a significant asset base and income stream; however, in these building years, JRW’s industry has not generated much income.

JRW is able to give free reign to his entrepreneurial ambitions because EW earns $45,000 per year as a part-time teacher which pays for more than half of the family’s expenses. [ 106 ] I do not believe that JRW has arranged his affairs in order to avoid paying child support. If that was his intent, he would likely have sought a decrease in child support long ago. I accept he is an entrepreneur who is legitimately trying to establish a viable business.

Still, I am struck by the fact that in 2015, CAW, while working part time at [omitted for publishing] and attending CNC full-time, managed to out-earn his father. [ 107 ] I find the court ought to impute income to JRW for the review period. The question remains, what should that sum be? Considering the history of JRW’s earnings, I am of the view that the court ought to impute a Guidelin e income of $30,000 per year, which makes his child support payments $269 per month.

Issue #6: Should this Court order retroactive child support? [ 108 ] Making a retroactive child support award is not exceptional, but it is discretionary. I have concluded that ordering retroactive child support is not appropriate in this case. In reaching this conclusion, I have taken in to consideration the following: a. CMS has believed for some time that JRW ought to have been paying more than $187 per month for child support. JRW believed that since the advent of the shared parenting regime, he was not obligated to pay any child support.

Neither took any steps to change the child support payable for the laudable reasons that they did not want to distress their families. Nevertheless, JRW arranged his affairs with the expectation that his child support payments would be $187 per month; b. JRW failed to comply with Judge MacDonald’s court order to provide CMS with his previous year’s Income Tax Return by March 30 in each calendar year. Other than this breach, I do not find JRW guilty of any misconduct. I do not believe he arranged his business affairs in the manner he did in order to minimize his child support payments for CAW; c.

There is no evidence that JRW’s Income Tax Returns do not accurately record his income and expenses. The Canadian Revenue Agency, in its Notices of Assessment, appears to have accepted the returns as filed. d. I do not have evidence of CAW suffering hardship in the review period. He seems to have enjoyed a reasonable standard of living from each of his parents. In 2013, CAW began to work, first for [omitted for publishing] and then for [omitted for publishing]. In three years he has earned approximately $47,468.40 after tax and union dues. He had almost his entire earnings as discretionary income.

Like many young man, he chose to use much of his income buying and operating a vehicle. JRW and CMS paid for his daily living expenses while he was at their respective residences. e. If I recalculate the parties’ setoff income retroactive to January 1, 2012, using JRW’s imputed income, I find that CMS still receives a significant benefit during the shared parenting regime: 2012: JRW’s guideline income was $30,000; CMS’s Guideline income was $23,196. JRW ought to have paid $269 per month for a total of $3,227 for the year: ($269 x 12 = $3,227).

He actually paid $187 per month for a total of $2, 244 for the year: ($187 x 12 = $2,244). CMS should have paid $200 per month for four months for a total of $800 ($200 x 4 = 800). Offsetting the payments JRW ought to have made against those he did make and CMS’s support payments means that JRW would owe CMS $183: ($3,227 - $2,224) - $800 = $183.

2013: JRW’s Guideline income: $30,000; CMS’s Guideline income: $23,196. JRW ought to have paid $269 per month for a total of$3,227 for the year ($269 x 12 = $3,227). He actually paid $187 per month for a total of $2, 244 for the year ($187 x 12 = $2,244). CMS should have paid $200 per month for 12 months for a total of $2,400 ($200 x 12 = 2400). Offsetting the payments JRW ought tohave made against those he did make and CMS’s support payments means that CMS would owe JRW $1,417: ($269 x 12) $3,227 -$2,400 = $1,417. 2014: JRW’s Guideline income: $30,000; CMS’s Guideline income: $29,845.

JRW ought to have paid $269 per month for a total of$3,227 for the year ($269 x 12 = $3,227). He actually paid $187 per month for a total of $2, 244 for the year ($187 x 12 = $2,244). CMS should have paid $267 per month for 12 months for a total of $3,205 ($267 x 12 = $3,204). Offsetting the payments JRW ought tohave made against those he did make and CMS’s support payments means that CMS would owe JRW $2,221: $3,204 - ($3,227-$2,244)= $2,221. 2015: JRW’s Guideline income: $30,000; CMS’s Guideline income: $49,265. JRW ought to have paid $269 per month for a total of$3,227 for the year ($269 x 12 = $3,227).

He actually paid $187 per month for a total of $2,451 for the year ($187 x 12 = $2,244). CMSshould have paid $451 per month for 12 months for a total of $5,412 ($451 x 12 = $5,412). Offsetting the payments JRW ought to havemade against those he did make and CMS’s support payments means that CMS would owe JRW $4,429: $5,412- ($3227-$2,244) =$4,429. 2016: JRW’s Guideline income: $30,000; CMS’s Guideline income: $49,265. JRW ought to have paid $269 per month for a total of$3,227 for the year ($269 x 8 months = $2,152). He actually paid $187 per month for a total of $1,496 for the year ($187 x 8 = $1,496).

CMS should have paid $451 per month for 7 months for a total of $3,157 ($451 x 7 = $3,157). Offsetting the payments Mr. JRW oughtto have made against those he did make and CMS’s support payments means that CMS would owe JRW $2,501: $3,157-($2,152-$1,496) = $2,501. f. I do not find the straight application of the setoff formula an appropriate measure of child support in these circumstances; g. JRW is not seeking any retroactive child support from CMS during the review period; h.

Even if I were to impute an amount of income to JRW sufficient to give CMS a nominal retroactive award, it is not apparent tome how this would now benefit CAW. CAW is now almost 20 years old and gainfully employed. It seems to me that if CAW returns tocollege full-time he may once again require financial assistance, but that is a prospective not a retrospective support; i. I do not find that JRW engaged in any blameworthy conduct by not paying CMS more child support than he had from January 1,2012 and August 31, 2016.

He reasonably believed that because of the shared parenting regime and his relatively low income, he wasnot required to pay any further monies for child support. If there is any gap in what JRW paid and what he ought to have paid, it wouldbe relatively small; and j. The parties have agreed that JRW’s current child support payments for CAW should end on August 31, 2016.

SUMMARY 1. CAW is no longer a child for the FLA from and after September 1, 2016 and Judge Blake’s Order of November 5, 2002 isterminated. 2. CMS’s application for child support and retroactive child support is dismissed. [109] In conclusion, I am leaving you with the thoughtful words of Mr. Justice Goepel in K.D.P. v. A.R.K. aka R.K., 2011 BCSC 1085: [1] No parents are perfect. All have flaws of one kind or another.

If families stay together, except in those rare circumstances inwhich a child is found to be in need of protection, the state and the courts allow imperfect parents to raise their children as best they can. The children, in most cases, are no worse for wear for the experience. [2] If families separate, however, and issues of custody and access arise, in the guise of determining the best interests of the child, aparent’s flaws of character and conduct are put under a microscope. In such circumstances, care must be taken not to lose sight of thestrengths that a party brings to the challenge of raising a child.

The Honurable Judge J. T. Doulis Provincial Court of British Columbia