B.H.B. v. N.K.H. Date:, 2012 BCPC 428

Citation: B.H.B. v. N.K.H. Date: 20121018 2012 BCPC 0428 File No: F26653 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: B.H.B. APPLICANT AND: N.K.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HAMILTON Counsel for the Applicant: I. Anthony Prkacin

Counsel for the Respondent: Rowan Davison Place of Hearing: Surrey , B.C. Dates of Hearing: September 4 - 7, 20, 2012 Date of Judgment: October 18, 2012 INTRODUCTION [ 1 ] N.H. and B.B. are the parents of K.B. born (d.o.b.). K.B. is seven years old. [ 2 ] This hearing commenced before me on September 4, 2012 and at issue between the parties was custody, guardianship, parenting time, and child maintenance with respect to K.B.

At the start of the third day of the hearing, the parties advised me that they had reached an agreement with respect to custody, guardianship, and parenting time for K.B. and I made the consent order. The result of the agreement reached is that K.B. spends approximately half his time in each of his parents’ homes. [ 3 ] The hearing then focused on a review of child maintenance, which at the time was governed by terms contained in a Separation Agreement filed by the parties on December 28, 2006.

Under the Separation Agreement, B.B. pays N.H. $188.00 per month in child maintenance based upon an annual Guideline income of $20,894.00. [ 4 ] In this hearing, N.H. seeks orders retroactively to September 1, 2009 and asks that B.B.’s annual Guideline income be established for the years 2009 to 2012. She seeks an order that I impute income to B.B. on the basis that he under-reports his income and because he has failed to disclose all of the necessary financial information to N.H.

Once I have determined B.B.’s annual Guideline income for each of the years 2009 to 2012, N.H. seeks a recalculation of the monthly child maintenance payable by B.B. based upon his annual income and then a calculation of any arrears owing to N.H. She also seeks orders retroactively to September 1, 2009 with respect to the parties’ proportionate responsibility for K.B.’s Special and Extraordinary Expenses (“Section 7 Expenses”) and then N.H. seeks an accounting as to what each parent has paid to determine if any money is owing from one parent to the other.

Lastly, N.H. seeks an order that there be an annual child maintenance review commencing June, 2013. [ 5 ] B.B. does not oppose the retroactive recalculation of child support sought by N.H., but says that in calculating N.H.’s annual Guideline income I should include certain government benefits she receives including rental assistance payments, autism funding, the Child Tax Benefit, and educational grants, bursaries, and student loans she receives to fund her living expenses while attending university. B.B. also seeks an order imputing income to N.H. on the basis that she is underemployed.

B.B. argues that N.H. should work part time while attending school and that I should impute a modest income from part time work to be added to the other sources of N.H.’s income. B.B. also does not oppose a retroactive calculation of the

Section 7 Expenses paid by each party and an accounting to determine if any money is owed by one parent to the other. Lastly, B.B. seeks an order that neither party enroll K.B. in activities or incur

Section 7 Expenses for K.B. without first obtaining the consent of the other party. BACKGROUND [ 6 ] N.H. is thirty-one years old and is a full time student at (name of university) studying for a degree in linguistics and psychology. She is in her fourth year of studies and expects to graduate in June, 2013. [ 7 ] N.H. plans to pursue a Master’s degree at the University of British Columbia in audiology with a view to working as an audiologist treating hearing disorders.

She testified that she expects to earn $77,000 per year when she starts working as an audiologist. [ 8 ] N.H. has worked part time as a receptionist at a real estate office in the past while attending school earning approximately $5,000 per year, but she found that her grades suffered as she did not have enough time for studying. She has not worked part time in 2012. [ 9 ] B.B. is thirty two years old and lives with his fiancé. They have an eleven month old daughter together. B.B.’s fiancé has a twelve-year old son whose time is spent divided between B.B.’s home and the child’s father’s home.

B.B. owns and operates a trucking company. His business runs a courier service and his truck is dispatched by (name of company). B.B. has hired a driver who drives the truck Monday to Friday each week and B.B. drives the truck in the evenings two to four nights each week. In addition, B.B. earns income as a barber on weekends, and he works occasionally as a disc jockey playing music at parties on weekends. While he earns a modest income as a barber, he testified that he earns only a nominal income from his work as a disc jockey which he says he does just for fun. [ 10 ] As I indicated, K.B. is seven years old.

He was diagnosed with autism when he was three. After his diagnosis, K.B. received $22,000 each year in government funding for services related to his autism. He attended Monarch House where he was introduced to a Behavioural Consultant (Michelle de Beer) and a Behavioural Interventionist (Amy Elliott). When K.B. turned six years old, the government cut his funding to $6,000 each year. N.H. and B.B. have continued to access the services of Ms. Elliott – the Behavioural Interventionist – as they have found her work with K.B. has been beneficial. Ms.

Elliott’s expenses are paid for with the $6,000 in government funding K.B. receives. Ms. Elliott works with K.B. in both parents’ homes. [ 11 ] K.B. attends school and N.H. has worked with K.B.’s teacher to maximize K.B.’s learning experience. He reads at a grade 3 or grade 4 level, much higher than his classmates. He is very good at math. K.B.’s difficulties lie mainly in his social interactions and in the fact that he processes information differently than other children his age. He interprets things in a very “black and white” manner and his days must be rigidly organized.

He is an anxious child. [ 12 ] The parties met and started dating in 2003. Both testified they had a volatile relationship. K.B. was born on (d.o.b.) and the

relationship between this couple ended in September, 2005. K.B. resided with N.H. following the end of the relationship and B.B. commenced court proceedings to obtain orders permitting him parenting time with K.B. [ 13 ] In early December, 2006, the parties executed a Separation Agreement. The Agreement was filed in the Provincial Court on December 28, 2006. [ 14 ] The Separation Agreement provided for the parties to share joint custody and joint guardianship of K.B. K.B.’s primary residence was with N.H., and B.B. was to have reasonable and generous access as agreed between the parties.

The Separation Agreement stipulated that B.B. had an annual Guideline income of $20,894.00 and he was to pay N.H. $188.00 each month in child maintenance. There have been no changes to the child maintenance payable since the parties signed the Separation Agreement. [ 15 ] Following their execution of the Separation Agreement these parties began what can fairly be described as a highly litigious course of action.

Indeed, on January 8, 2007, a mere eleven days after filing the Separation Agreement, N.H. filed a court application seeking to vary the Separation Agreement stating that B.B.’s annual Guideline income was $25,000.00 and seeking child maintenance of $400.00 each month along with

Section 7 Expenses. [ 16 ] Between January, 2007 and December, 2007 each party filed several court applications seeking changes to B.B.’s access, seeking orders that the other parent’s access be supervised, and seeking to change K.B.’s primary residence. A total of seven orders were made in the ten months between March and December, 2007.

The conflict between N.H. and B.B. escalated to the point that on May 16, 2007 Judge Raven ordered, by consent, that access exchanges occur at the police station, and that if K.B. is twenty minutes late for the access exchange, then either party could apply for an order authorizing a police officer to apprehend K.B. and bring him to the parent entitled to custody. [ 17 ] On May 22, 2007, Judge Cohen made a consent order declaring N.H.’s residence to be K.B.’s primary residence and declaring B.B.’s residence to be K.B.’s secondary residence. He also ordered that K.B. was to spend three days each week with B.B.

The result of Judge Cohen’s order was that K.B. was spending 43% of his time living in B.B.’s home. While the days K.B. spends living with B.B. have changed over the years, the division of K.B.’s time between B.B.’s and N.H.’s homes has remained relatively constant. [ 18 ] The parties had a three-day hearing before Judge Hyde in December, 2007 following which he ordered that N.H. transport K.B. to B.B. at the start of his access, and that B.B. transport K.B. to N.H. at the end of his access. Judge Hyde also ordered that no third parties were to be involved in the access exchanges.

The latter order was likely due to the fact that N.H.’s mother was a significant source of the conflict between the parties at access exchanges. [ 19 ] Following the hearing before Judge Hyde the parties stopped filing serial court application until 2010. [ 20 ] On April 9, 2010, N.H. filed an application seeking a child maintenance review as the child maintenance provisions in the Separation Agreement were four years old. B.B. filed his Reply on May 10, 2010 agreeing to the child maintenance review and stated that he wished the matter to be resolved in mediation.

Thereafter the parties filed numerous applications seeking changes in the custody and residence of K.B. In July, 2010 N.H. alleged that she was assaulted by B.B.’s girlfriend (now his fiancé) and there followed a number of further court appearances. [ 21 ] The parties did not address N.H.’s maintenance review application until the matter came before me for hearing on September 4, 2012. ISSUES [ 22 ] The issues I must decide in resolving the competing applications before me are: (

a) What are the parties’ respective annual Guideline incomes for each of the years 2009, 2010, 2011, and 2012? (

b) In determining each party’s annual Guideline income, should I impute income to either party? (

c) Once I have determined each party’s annual Guideline income, I must apply

section 9 of the Child Support Guidelines (the “Guidelines”) and determine how much child maintenance should have been paid each month, and by whom, commencing September 1, 2009 up to the present date. (

d) Once I determine the amount of child maintenance that should have been paid, I must determine if there has been an overpayment or an underpayment of child maintenance. (

e) Once I have determined the parties’ respective annual Guideline incomes I must determine their proportionate responsibility for

Section 7 Expenses for K.B. commencing September 1, 2009. (

f) Once I have determined each party’s proportionate responsibility for K.B.’s

Section 7 Expenses, I must calculate if there has been an overpayment or underpayment by either party since September 1, 2009;

(

g) Should there be a child maintenance review annually commencing June, 2013?; and (

h) Should there be an order that neither party incur

Section 7 Expenses for K.B. without the consent of the other party? WHAT ARE THE PARTIES’ RESPECTIVE ANNUAL GUIDELINE INCOMES FOR THE YEARS 2009, 2010, 2011, 2012? (

A) N.H. [ 23 ] N.H.’s reported income at line 150 of her tax returns for the years 2009 – 2011 is as follows: 2009 $8,363.00; 2010 $6,126.22; 2011 $5,571.12; and 2012 There are no tax returns for 2012 as the year is not complete. [ 24 ] Of those annual incomes, N.H. earned income from part-time employment working as a receptionist at a real estate sales office each year in the following amounts: 2009 $5,180.00; 2010 $4,926.22; 2011 $4,971.12; and 2012 $0.00. [ 25 ] As I have indicated earlier, N.H. did not work part time in 2012 because she felt her grades at school were suffering as she did not have enough time to study while working and caring for K.B. [ 26 ] Obviously N.H.’s income for each of those years is insufficient to cover living expenses for the year. [ 27 ] N.H. received government rental assistance to help with her housing costs in each of the years 2009 – 2012.

The rental assistance program provides N.H. $653.00 each month for a total of $7,836.00 annually. She testified that she received a slightly lesser amount in 2009 ($7,380.00) because her rent was lower that year. [ 28 ] N.H. has received all of the government Child Tax Benefit for K.B. every year. Between 2009 and 2011 she received $283.00 each month for an annual total of $3,396.00. Commencing May, 2011 the Child Tax Benefit increased to $291.52 for an annual total of $3,498.24. However, I have reviewed the Guidelines and in particular

Schedule 1 to the Guidelines. Note 6 to

Schedule 1 states that Federal Child Tax benefits are excluded from the calculation of income under the Guidelines. Accordingly I will not include the Child Tax Benefit N.H. receives for K.B. when calculating her annual Guideline income. [ 29 ] In each of the years from 2009 to 2012 N.H. received the following amounts in student loans and grants: 2009 Grants $3,160.00 Loans $22,729.00 2010 Grants $5,400.00 Loans $20,610.00 2011 Grants $5,400.00 Loans $20,610.00 2012 Grants $5,400.00

Loans $20,610.00 [30] Between January, 2009 and June, 2011 N.H. also received the Universal Child Care benefit of $100.00 each month. When K.B.turned six years old the Universal Child Care benefit ceased. Accordingly, for the years 2009 and 2010 N.H. received $1,200.00annually and in 2011 she received $600.00. These amounts are included in N.H.’s tax returns and are included in the income amounts setout in paragraph 23 above. [31] In addition to the foregoing, until June, 2011 N.H. received $22,000.00 each year in autism funding from the government.

InJune, 2011 K.B. turned six years old and his funding was cut to $6,000.00 per year. I am not going to add this autism funding to N.H.’sincome. These are funds provided by the government to cover the cost of very expensive counselling and behaviour intervention andtherapy to assist autistic children so that they can function in society. The money is provided to cover the cost of what would otherwisebe a

Section 7 Expense for the family. Both parents benefit from the funding as otherwise they would have to cover the cost on theirown. I can see no principled reason why the funds should be added to N.H.’s income when both parents receive financial benefit fromthose funds. [32] B.B. argues that N.H. is underemployed. He points out that N.H. is only taking three courses in each of the three semesters peryear and she has four days each week that she does not attend school.

She has worked part time in the past earning roughly $5,000.00per year from that work. [33] B.B. also points out that N.H. could take five courses in each of two semesters leaving her with 24 weeks each year duringwhich she could seek part time or full time employment. He notes that such a

schedule would speed up N.H.’s education as she would betaking ten courses each year rather than the nine courses she takes in her current schedule. B.B. asks that I impute $10,000.00 annuallyto N.H.’s income to reflect a modest income from part time employment while she attends school. [34] As I have stated, N.H. says that she stopped working part time because she was unable to devote sufficient time to her studiesand her grades suffered.

She also points out that if she were to work part time when she had K.B.in her care the daycare costs wouldoffset any income earned and would result in no net additional income into her home. Also, the daycare costs would add an expense toB.B. as he would be responsible for his proportionate share of those expenses. [35] If N.H. were to work in the evenings she would again have to find someone to watch K.B. while she worked. [36] N.H. also argues that her school

schedule changes each semester depending on the courses she is taking which would likelycause scheduling problems with her part time work. [37] With N.H.’s current school

schedule she has four days each week when she is not in school and of those four days, onlyTuesdays and Sundays are days when K.B.is in B.B.’s care. Her

schedule may change in January, 2013 when her last school semesterbegins. Also, I have no evidence before me as to her school

schedule in each of her school semesters from September, 2009 untilSeptember, 2012. [38] I am satisfied that N.H. is able, and should continue to be able, to earn at least $5,000.00 per year from part time employment. She earned that income in each of 2009, 2010, and 2011. While she says that her grades suffered, she provided no documentary evidenceto establish that as a fact. Also, she testified that she plans on pursuing a Masters degree at UBC once she finishes her undergraduatedegree in June, 2013.

If her grades suffered they could not have suffered much if she plans on pursuing a Masters degree. [39] Also, if N.H. were to work two days a week earning minimum wage over fifty weeks each year, she could earn approximately$8,400.00. There would be child care costs for her to do so and those costs would be shared by B.B. Under the circumstances I am ofthe view that imputing $5,000.00 to N.H.’s income annually is justified on the facts of the case before me.

As she earned roughly$5,000.00 in each of 2009, 2010, and 2011, I will impute $5,000.00 to N.H.’s income for 2012. [40] B.B. argues that the money available to N.H. to cover her living expenses includes the government grants and student loans shereceives each year. Some of those funds are needed to cover the cost of her tuition and books. On the second page of N.H.’s studentloan and grant documentation is an amount determined by the government as N.H.’s living expenses.

B.B. says that I should impute intoN.H.’s income the amount determined by the government to be N.H.’s living expenses because the student loans and grants are moniesavailable to N.H. to cover her living expenses. B.B. relies upon the decision of Mr. Justice Burnyeat in Razavi v. Aavani, (B.C.S.C.) in support of this argument. [41] In Razavi, Justice Burnyeat imputed student loans into Mr. Aavani’s income on the basis that those were funds available to Mr.Aavani to pay his child support obligation. Prior to going to school and obtaining his student loans, Mr.

Aavani had been on SocialAssistance and Justice Burnyeat held that Mr. Aavani had replaced the income available to him on Social Assistance with the moneyfrom the student loans. Justice Burnyeat further held that he could ignore the fact that the student loans were repayable by Mr. Aavaniin the future, and he made reference to the fact that when the loans became due Mr. Aavani would be employed and earning an incomesufficient to repay the loans. Accordingly, Justice Burnyeat imputed Mr. Aavani’s student loans into his income with no deduction forthe amount of his tuition and books.

Justice Burnyeat did so relying upon

section 19 of the Guidelines. [42] In Maynard v. Maynard, [1999] B.C.J. No. 325, Mr. Justice Cowan considered an appeal of a decision of a Master not to imputestudent loans into Mrs. Maynard’s income for the purpose of calculating each party’s proportionate responsibility for

Section 7Expenses. In deciding the appeal, Justice Cowan distinguished the decision in Razavi. Justice Cowan noted that in the Razavi decision,Justice Burnyeat was considering an application to determine the monthly child maintenance payable by Mr. Aavani in circumstanceswhere Mr. Aavani was subject to a court order for the payment of monthly child maintenance, and that he had substituted his monthlySocial Assistance with a student loan. [43] Justice Cowan distinguished Razavi in his decision in Maynard by noting that the Master had the discretion to decide not to

include Mrs. Maynard’s student loan when calculating her income and that the Master was not clearly wrong in doing so. [ 44 ] Justice Cowan also emphasized the fact that the student loan would be repayable and was therefore not a benefit as that term is used in the Guidelines. Lastly, Justice Cowan observed that student loans do not fall clearly into any of the enumerated categories for imputing income set out in

section 19 of the Guidelines. [ 45 ]

Section 19 of the Guidelines says: Imputing income 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; (

b) the spouse is exempt from paying federal or provincial income tax; (

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the spouse’s property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so; (

g) the spouse unreasonably deducts expenses from income; (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. [ 46 ] I prefer the reasoning of Justice Cowan in Maynard over the reasoning of Justice Burnyeat in Razavi . I agree that student loans do not appear to fall within the scope of

section 19 of the Guidelines. As well, it seems to me that if I were to impute student loans into income then I should impute into a payor’s annual income funds taken from a line of credit to meet monthly living expenses. I am not aware of any decision where a court has added into a payor’s income money taken from a line of credit to cover monthly living expenses. I believe the reason for that is because the money from a line of credit is not income, but rather a loan to be repaid.

While funds from a line of credit are available to the person borrowing the money to pay for monthly living expenses, that does not change those funds from a loan to income. [ 47 ] Accordingly I will not impute into N.H.’s income the student loans she has borrowed from the government to finance her schooling and cover her living expenses while at school. N.H.’s student grants, however, will be included in her income as those funds are not repayable by N.H.

N.H. did not argue that the grant monies should be excluded from her income. [ 48 ] In the result, I find that N.H. has an annual Guideline income for the years 2009 – 2012 as follows: 2009 $8,363.00 From line 150 of her 2009 tax return $3,160.00 Government education grant $7,380.00 Rental Assistance $18,903.00 TOTAL 2010 $6,126.00 From line 150 of her 2010 tax return $5,400.00 Government education grant $7,836.00 Rental Assistance $19,362.00 TOTAL 2011 $5,571.00 From line 150 of her 2011 tax return $5,400.00 Government education grant $7,836.00 Rental Assistance $18,807.00 TOTAL 2012 $5,000.00 Imputed income $5,400.00 Government education grant

$7,836.00 Rental Assistance $18,236.00 TOTAL (

B) B.B. [ 49 ] B.B. reported his annual income in his tax returns for the years 2009 – 2011 as follows: 2009 $22,001.50 2010 $39,585.44 2011 $43,588.55 2012 He anticipates his income this year will be $45,100.00. [ 50 ] In 2009 B.B.’s trucking/courier business earned $53,527.33 in gross revenue and $22,001.50 in net revenue. The business expenses claimed do not appear to me to be unreasonable and other than the phone expenses ($1,817.63) none of the expenses appear to include a personal use component.

B.B. readily conceded that the telephone expenses claimed by his business include his cellular phone which he uses for mixed business and personal use. I am unable to determine what amount of the phone expenses should be added back into B.B.’s personal income to account for his business covering the cost of his personal use of the phone. I do not know if the phone expenses include a cellular phone provided to B.B.’s driver. There simply was no evidence called to assist me in determining the amount to add back into B.B.’s personal income and to do so would have me simply taking a guess.

I am not prepared to do so given that whatever amount ought to be added back into B.B.’s personal income would likely be nominal. [ 51 ] In 2010 B.B.’s trucking/courier business earned $44,270.22 in gross revenue and $26,560.16 in net revenue. B.B. added another $13,025.28 in employment income for a total income at line 150 of his tax return of $39,585.44. B.B. did not include the portion of his 2010 tax return showing the business expenses deducted for his trucking/courier business, but I note that in 2009 his business had roughly $31,000 in business expenses and in 2010 roughly $18,000 in business expenses.

On the basis that I have found the business expenses in 2009 to be reasonable deductions (with the exception of some likely nominal telephone expenses the amount of which I am unable to determine) I conclude that the business expenses deducted in 2010 are reasonable. [ 52 ] B.B.’s employment income in 2010 came from his employment with (name of employer) where he earned $12,324.78. In addition, commencing in October, 2010 B.B. began cutting hair at (name of salon) on the weekends. His employment income in 2010 includes $700 earned as a barber working at (name of salon).

As indicated above, his employment income in 2010 was $13,025.28. [ 53 ] In 2011, B.B.’s trucking/courier business earned $92,130.42 in gross revenue and $13,196.69 in net revenue. The reason for the significant increase in gross revenue and expenses is the fact that B.B. hired a driver for his courier truck in December, 2010. The driver works full time Monday to Friday and receives 40% of the $45 per hour B.B. is paid by (name of company) for the use of his truck. Accordingly, in 2011 B.B. paid his driver $43,553.42 leaving $48,557.00 before deducting business expenses.

With the driver driving the truck full time, B.B.’s fuel costs increased dramatically. In 2011 his fuel costs were $14,894.41 compared with fuel costs of $6,436.12 in 2009. I was not provided with a breakdown of B.B.’s business expenses for 2010. [ 54 ] Looking at the other business expenses for B.B.’s trucking/courier business I find that they are reasonable expenses.

Again, B.B. gets a personal benefit from his company paying the monthly cellular phone bill but as I have indicated I am unable to determine the amount of that benefit. [ 55 ] In 2011, B.B. reported $16,023.74 as his employment income from (name of employer) and his income from (name of salon) was $14,368.12, for a total reported employment income of $30,391.66. [ 56 ] Combining his employment income and his income from his trucking/courier business, B.B.’s 2011 line 150 income was $43,588.55. [ 57 ] B.B. quit working for (name of employer) in 2011.

During 2012 B.B. was driving his own truck 20 to 25 hours each week. In addition, he continues to employ his driver during the day Monday to Friday each week. B.B. also continues to cut hair at (name of salon) and he anticipates nominal revenue from his work as a disc jockey. In his financial statement he anticipates he will earn $1,500.00 from his work as a disc jockey this year. [ 58 ] B.B. estimates his annual income for 2012 at $45,100.00.

It appears he arrives at that figure by taking his employment income from 2011 ($30,400.00 earned between (name of employer) and (name of salon)) and adding to that $14,700.00 from his trucking/courier business and his work as a disc jockey. He has taken his net revenue from the trucking/courier business in 2011 and added $1,500.00 in disc jockey income to that amount to arrive at $14,700.00. [ 59 ] The problem with the manner in which B.B. has estimated his 2012 annual income is that he has not worked for (name of employer) during 2012.

Instead he is driving his truck in the evenings for an average of 20 – 25 hours each week. At $45.00 per hour driving his own truck B.B. should be able to replace the income he earned from (name of employer) in 2011 ($16,023.74) with income he earns driving his own truck in the evenings. Indeed, if he drives his truck 20 – 25 hours each week as he says, earning $45.00 per hour, he could earn gross revenue from his own driving of $45,000.00 to $56,250.00 calculated over 50 weeks in the year.

When I asked B.B. what his added fuel costs would be for the time he is driving his truck, he estimated his additional fuel costs at $750.00 each month. The annual fuel costs for B.B.’s driving would be $9,000.00. Accordingly, B.B. could earn between $36,000.00 and $45,000.00 net revenue from driving his own truck in the evenings for 20 to 25 hours each week over 50 weeks of the year. The balance of his business expenses would remain constant from the previous years and are paid for from the revenue generated by B.B.’s driver.

[ 60 ] If I accept that B.B. will likely earn $14,000 from his work at (name of salon), add to that the $14,700 he anticipates he will earn from his driver driving the courier truck and his work as a disc jockey, and add to that a net a sum of $40,000 from B.B. driving his own truck in 2012, that produces an annual Guideline income for B.B. in 2012 of $68,700.00.

I arrive at that figure without imputing any income to B.B. as requested by N.H. [ 61 ] I find an income of $68,700.00 is a reasonable income for B.B. for the reasons stated but also on the basis that he reports annual expenses of $76,270.00 in his Financial Statement sworn and filed July 12, 2012. He reports only $10,000.00 in credit card debt in the same Financial Statement. In 2010 B.B. reported annual expenses at $70,806.00 in his Financial Statement sworn and filed July 16, 2010. His reported annual income in that same Financial Statement was $20,001.50.

B.B. reported credit card debt of $11,000.00 so his credit card debt has remained relatively stable over the course of the last two years. [ 62 ] A significant portion of B.B.’s reported personal expenses in his July, 16, 2010 Financial Statement is related to transportation expenses - $33,100.00. I infer that those expenses are actually paid for by his company. If that is the case they should not be listed as personal expenses in his Financial Statement the contents of which are sworn under oath to be true.

If I deduct the transportation expenses from his annual expenses the balance of his personal expenses is $37,706.00 – roughly $17,000 more than his annual income. While no evidence was led on this point, I suspect that a portion of B.B.’s personal expenses are paid for by his fiancé. In other words, the expenses B.B. lists in his Financial Statement are household expenses and not just B.B.’s portion of those expenses. That could account for why the expenses exceed B.B.’s income as listed in his Financial Statement. [ 63 ] I am not prepared to impute income to B.B.

While he has arranged his affairs such that he does not work during the day Monday to Friday, I am satisfied that he is not intentionally underemployed. He left (name of employer) and is now able to earn significantly more income from driving his own truck. He has an eleven-month old daughter at home with his fiancé. His fiancé is about to return to work and B.B. will be available to provide child care for their daughter.

I am satisfied that B.B. is earning a reasonable living while keeping himself available to provide child care to his daughter and K.B. when K.B. is in B.B.’s care. [ 64 ] Accordingly, I find that B.B. has an annual Guideline income for the years 2009 – 2012 as follows: 2009 $22,001.50 2010 $39,585.44 2011 $43,588.55 2012 $68,700.00 THE APPLICATION OF

SECTION 9 OF THE GUIDELINES AND THE CALCULATION OF THE CHILD MAINTENANCE PAYABLE FOR K.B. [ 65 ] B.B. argues that there should be a straight set-off of the child support payable by each parent to the other commencing September, 2009. [ 66 ] N.H. argues there should be no set-off because she has paid a disproportionate amount of K.B.’s expenses getting him to extracurricular activities such as soccer and basketball. I note that N.H. registered K.B. for those activities without first consulting B.B. and obtaining his agreement to incur the registration fees and his agreement to ensure K.B. attends those activities when K.B.is in B.B.’s care. [ 67 ]

Section 9 of the Guidelines says: 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. [ 68 ] The amounts set out in the applicable Tables for each of N.H. and B.B. are as follows: N.H. 2009 Based upon an annual Guideline income of $18,903.00 $169.00 2010 Based upon an annual Guideline income of $19,362.00 $174.00

2011 Based upon an annual Guideline income of $18,807.00 $168.00 2012 Based upon an annual Guideline income of $18,236.00 $155.00 B.B. 2009 Based upon an annual Guideline income of $22,001.00 $200.00 2010 Based upon an annual Guideline income of $39,584.00 $366.00 2011 Based upon an annual Guideline income of $43,588.00 $404.00 2012 Based upon an annual Guideline income of $68,700.00 $641.00 [ 69 ] Turning to the increased costs of the shared custody of K.B., I find that B.B. does not incur significant additional costs having K.B. in his home 43% of the time.

B.B. and his fiancé live in a two-bedroom condominium that B.B. owns. B.B.’s fiancé has a twelve- year old son who spends roughly half his time at B.B.’s home.

While there, the twelve-year old son and K.B. share a bed. [ 70 ] The fact that B.B. must have a two-bedroom condominium to accommodate K.B., is not an added cost to B.B. as he would need at least a two-bedroom home to accommodate his fiance’s son, K.B., and B.B.’s eleven-month old daughter. [ 71 ] B.B. called no evidence to support a claim he has additional costs due to the shared custody arrangements he has with K.B. [ 72 ] I infer, however, that there are some additional food costs and utility costs such as electricity and heat having K.B. in B.B.’s home. [ 73 ] In his Financial Statement sworn and filed July 16, 2010, B.B. lists his annual food costs at $6,000.00, electricity costs at $400.00, meals outside the home at $3,000.00, household supplies at $1,200.00, and clothing for children at $600.00 for a total of those expenses at $11,200.00.

In his Financial Statement sworn and filed July 12, 2012, B.B. lists annual expenses for food at $5,000.00, electricity at $300.00, heat at $300.00, meals outside the home at $3,000.00, and household supplies at $2,000.00. In addition he lists clothing for K.B. annually at $2,500.00 plus entertainment and recreation at $1,000.00.

The total of those expenses is $14,100.00. [ 74 ] While I was not provided with evidence as to what portion of those annual expenses are attributable to K.B., I find that a reasonable amount to attribute to a young child is $150.00 each month, or $1,800.00 per year. [ 75 ] Considering the conditions, means, needs and other circumstances of B.B., N.H., and K.B., I find that B.B. clearly has the greater ability to earn income to financially support K.B. N.H. is accruing significant student loan debt to put herself through school in the expectation that she will be able to earn a generous income as an audiologist.

Both parents spend time each week working with K.B. to help him with his autism, which I find occupies time they would otherwise have to earn income. Lastly, N.H. to this point has done virtually all of the driving to get K.B. to his extracurricular activities including soccer, basketball, and piano. K.B. is also a natural and accomplished drummer.

I find that both parents have devoted time to encourage K.B.’s drumming because they have found that his drumming provides benefits to K.B. [ 76 ] Accordingly, I am of the view that it is appropriate that N.H. pay to B.B. $150.00 each month as her contribution to the costs B.B. incurs to support K.B. in his home. [ 77 ] Taking all of the circumstances into account I find that the monthly child maintenance that should have been paid is as follows: 2009 For the four months from September to December, 2009 B.B. paid N.H. $188.00 child maintenance each month or $752.00.

Based upon his annual Guideline income in 2009, B.B. should have paid N.H. $200.00 per month, but N.H. should have paid B.B. $150.00 per month for a net payment by B.B. of $50.00 per month, or $200.00. Accordingly B.B. overpaid N.H. $552.00 in child maintenance in 2009. 2010 In 2010 B.B. paid N.H. $188.00 child maintenance each month or $2,256.00 for the year. Based upon his annual Guideline income in 2010 B.B. should have paid N.H. $366.00 per month, but N.H. should have paid B.B. $150.00 per month for a net payment by B.B. of $216.00 per month or $2,592.00 for the year.

Accordingly, B.B. underpaid N.H. $336.00 in child maintenance in 2010. 2011 In 2011 B.B. paid N.H. $188.00 child maintenance each month or $2,256.00 for the year. Based upon his annual Guideline income in 2011 B.B. should have paid N.H. $404.00 per month, but N.H. should have paid B.B. $150.00 per month for a net payment by B.B. of $254.00 per month or $3,048.00 for the year. Accordingly B.B. underpaid N.H. $792 in child maintenance in 2011. 2012 Between January and September, 2012 B.B. paid N.H. $188.00 child maintenance each month or $1,692.00 for the year.

Based upon his annual Guideline income in 2012 B.B. should have paid N.H. $641.00 per month, but N.H. should have paid B.B. $150.00 for a net payment by B.B. of $491.00 per month or $4,419.00 for the year. Accordingly B.B. underpaid N.H. $2,727.00 in child maintenance in 2012.

[ 78 ] Accordingly, I find that for the period of September 1, 2009 until September 30, 2012 B.B. had underpaid child maintenance to N.H. in the amount of $3,303.00. I therefore find that the arrears of child maintenance owed by B.B. to N.H. for the support and maintenance of K.B. as at September 30, 2012 is $3,303.00. THE PARTIES’ PROPORTIONATE SHARE OF

SECTION 7 EXPENSES FOR K.B. [ 79 ] Given the annual Guideline incomes I have found for N.H. and B.B., their proportionate responsibility for

Section 7 Expenses in each of the years 2009 – 2012 is as follows: 2009 N.H. – 46.2% B.B. – 53.8% 2010 N.H. – 32.8% B.B. – 67.2% 2011 N.H. – 30.1% B.B. – 69.9% 2012 N.H. – 21% B.B. – 79% HAS THERE BEEN AN OVERPAYMENT OR UNDERPAYMENT BY EITHER PARTY FOR K.B.’S

SECTION 7 EXPENSES SINCE SEPTEMBER, 2009? [ 80 ] In 2009 the total of K.B.’s

Section 7 Expenses was $846.00. B.B. paid $747.00 and N.H. paid $99.00. Based upon B.B.’s annual Guideline income he should have paid 53.8% of those

Section 7 Expenses or $455.15. Accordingly, in 2009 I find that B.B. overpaid K.B.’s

Section 7 Expenses by $291.85 and N.H. underpaid K.B.’s

Section 7 Expenses by the same figure. [ 81 ] In 2010 the total of K.B.’s

Section 7 Expenses was $4,980.08. B.B. paid $2,902.08 and N.H. paid $2,078.00. Based upon B.B.’s annual Guideline income he should have paid 67.2% of those expenses or $3,346.61. Accordingly, in 2010 I find that B.B. underpaid K.B.’s

Section 7 Expenses by $444.53 and N.H. overpaid K.B.’s

Section 7 Expenses by the same figure. [ 82 ] In 2011 the total of K.B.’s

Section 7 Expenses was $7,690.00. B.B. paid $3,413.00 and N.H. paid $4,277.00. Based upon B.B.’s annual Guideline income he should have paid 69.9% of those expenses or $5,375.31. Accordingly, in 2011 I find that B.B. underpaid K.B.’s

Section 7 Expenses by $1,962.31 and N.H. overpaid K.B.’s

Section 7 Expenses by the same figure. [ 83 ] In 2012 the total of K.B.’s

Section 7 Expenses up to and including the month of September, 2012 is $5,329.40. Thus far B.B. has paid $2,363.40 and N.H. has paid $2,966.00. Based upon B.B.’s annual Guideline income he should have paid 79% of those expenses or $4,210.23. Accordingly, up to September, 2012, I find that B.B. has underpaid K.B.’s

Section 7 Expenses by $1,846.83 and N.H. has overpaid K.B.’s

Section 7 Expenses by the same figure. [ 84 ] In total, since September 1, 2009 I find that B.B. has underpaid K.B.’s

Section 7 Expenses by $3,961.82 and N.H. has overpaid K.B.’s

Section 7 Expenses by the same figure. Accordingly I order B.B. to reimburse N.H. $3,961.82 for his underpayment of K.B.’s

Section 7 Expenses for the period from September 1, 2009 until September 30, 2012. ANNUAL CHILD MAINTENANCE REVIEWS COMMENCING JUNE, 2013 [ 85 ] N.H. asked for an annual review of the child maintenance payable for K.B. and B.B. did not object to me making that order. Accordingly, there will be an annual review of the child maintenance payable for K.B. in June of each year commencing June, 2013. Any changes to the monthly child maintenance payable for K.B. or the parties’ proportionate responsibility for K.B.’s

Section 7 Expenses will be effective July 1 each year. For the purposes of the child maintenance review, the parties will exchange their tax returns for the prior year with all the necessary attachments, their three most recent pay stubs from all places they are employed, documentation evidencing all government subsidies or grants received for the prior year as well as the current year, and year to date revenue and expenses for B.B.’s trucking/courier business and income earned from (name of salon). CONCLUSION [ 86 ] In

summary I make the following orders: (

a) I find that N.H.’s annual Guideline income for the years 2009 – 2012, after imputing $5,000.00 of part time income in 2012, is: 2009 – $18,903.00 2010 – $19,362.00 2011 – $18,807.00 2012 – $18,236.00

(

b) I find that B.B.’s annual Guideline income for the years 2009 – 2012 is: 2009 – $22,001.50 2010 – $39,585.44 2011 – $43,588.55 2012 – $68,700.00 (

c) I find that from September 1, 2009 until September 30, 2012 B.B. has overpaid/underpaid child maintenance for K.B. as follows: 2009 Overpaid in the total sum of $552.00 2010 Underpaid in the total sum of $336.00 2011 Underpaid in the total sum of $792.00 2012 Underpaid in the total sum of $2,727.00 Accordingly, B.B. owes N.H. $3,303.00 in arrears of child maintenance for the period from September 1, 2009 to September 30, 2012. (

d) I find that the parties’ proportionate share of K.B.’s

Section 7 Expenses for the period from September 1, 2009 until September 30, 2012 is as follows: 2009 N.H. 46.2% B.B. 53.8% 2010 N.H. 32.8% B.B. 67.2% 2011 N.H. 30.1% B.B. 69.9% 2012 N.H. 21% B.B. 79% (

e) I find that B.B. has underpaid his proportionate share of K.B.’s

Section 7 Expenses between September 1, 2009 and September 30, 2012 in the total amount of $3,961.82 and I order that he reimburse N.H. $3,961.82. (

f) I order that there will be an annual child maintenance review in June each year commencing June, 2013. I have set out in paragraph 78 above the financial documentation that the parties must exchange each year for the child maintenance review. I order that the documentation is to be exchanged by June 1 each year. (

g) Lastly, I order that neither party shall incur

Section 7 Expenses for K.B. in an amount exceeding $100.00 without the prior consent of the other parent. The Honourable Judge R.N. Hamilton Provincial Court of British Columbia