B.C. v. P.H., 2018 BCPC 217

Citation: B.C. v. P.H. 2018 BCPC 217 Date: 20180824 File No: F3632 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.C. APPLICANT AND: P.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: S. Loney, B.M. Pearce Counsel for the Respondent: S. de Wit Place of Hearing: Colwood , B.C.

Dates of Hearing: August 15, 16, 2017, August 7, 8, 9, 23, 2018 Date of Judgment: August 24, 2018 Background [ 1 ] Mr. C and Ms. H were engaged in a marriage-like relationship from 2009 until 2015. They are the biological parents of N, who was born on [omitted for publication] and is now 8 years of age. [ 2 ] When N was born, Mr. C was a sailor on active duty in the Canadian Navy and Ms. H worked part-time as a cleaner at a hotel. They lived in a rented house in Victoria with Ms. H’s daughter (

C) from a previous relationship. C is now 17. [ 3 ] During N’s first year of life, Ms. H took him to Nova Scotia to meet some of Mr. C’s extended family while Mr. C was deployed at sea. After that, Mr. C took 3 months’ leave and they took N to Thailand to meet Ms. H’s extended family. [ 4 ] In 2013, the Ministry of Children & Family Development (“MCFD”) removed N and C from the family home because of complaints that Mr. C and Ms. H had subjected them to excessive physical discipline. Each of Mr. C and Ms.

H entered a guilty plea to a charge of assaulting the children, and each received a suspended sentence and a period of probation. N was placed in foster care at the home of Ms. M, in whose care he remained from August, 2013 until April, 2015, when he was returned to the care of his parents. C chose to remain in the care of MCFD. [ 5 ] Mr. C and Ms. H separated in June, 2015, when N was 5. For most of the time since the separation, N has lived in Mr. C’s home from Monday to Friday and in Ms. H’s home on weekends. [ 6 ] Mr. C began a relationship with Ms.

M in the latter part of 2015 and married her in November, 2016, when N was 6. Mr. C and N moved into Ms. M’s house in [omitted for publication], British Columbia (the same house in which N had lived while he was a child in care). Ms. M’s four children from a previous relationship (now ages 12, 17, 22 and 24) lived with them. Mr. C enrolled N at [omitted for publication] Elementary School, which he has attended since then. [ 7 ] Mr. C was injured in a motor vehicle accident in 2013. He was disabled by his injuries and was discharged from the Navy as a result.

In October, 2017, he received a settlement of his personal injury claim in the amount of $822,650 (after payment of legal fees and claims expenses). The settlement was a lump-sum figure for all claims.

His personal injury counsel has provided an estimate of the breakdown of the settlement under various heads of damages, as follows (all figures rounded): General damages $164,500 Wage loss to October, 2017 $76,500 Future wage loss (to age 70) $450,000 Future loss of pension entitlement $98,700 Cost of future care $33,000 At about the same time, he received a lump-sum payment from the Navy of $40,000 in lieu of his earned pension entitlement as at the date of his discharge.

He receives a disability benefit of $47,000 per year from a private-sector insurer which provides disability benefits to Navy personnel under contract to the Navy. Mr. C will continue to receive that benefit for so long as he continues to be disabled. He undergoes an annual medical assessment to determine his disability status. [ 8 ] Ms. H now owns a company which provides cleaning services to homes, businesses and offices. She does cleaning work herself, and also has several employees. Her income consists of a salary from the company of $1000 bi-weekly and an annual dividend.

Her total income, as reported at line 150 of her income tax return, in each relevant year was: 2015 $39,346 2016 $37,150 2017 $43,355 [ 9 ] In early 2018, Mr. C and Ms. M purchased a house in [omitted for publication], British Columbia at a price of $700,000. Mr. C contributed $650,000 from his personal injury settlement and Ms. M contributed the balance from the proceeds of sale of her house in [omitted for publication]. They live there with N and Ms. M’s four children. [Omitted for publication] is a community of some 200 souls, about [omitted for publication] km west of [omitted for publication]. [ 10 ] Mr.

C used the balance of his personal injury settlement to pay off debts (his own and those of Ms. M). [ 11 ] Ms. H lives in the house in Victoria where she lived with Mr. C from 2010 - 2015, and now shares the house with several roommates. Her share of the rent is $350 per month. [ 12 ] Driving times between Victoria and [omitted for publication] vary from 90 minutes to three hours, depending on the time of day. The route passes through several commuter suburbs of Victoria, and traffic moves very slowly on that route during peak commuter hours.

Interim Orders [ 13 ] The following interim orders were made in this case: a. On June 20, 2016, His Honour Judge Cutler ordered that:

i. both parents be recognized as interim guardians; ii. Mr. C have parenting time “… from Monday morning to Friday afternoon …”; iii. Ms. H have parenting time from “… Friday afternoon to Monday morning …”; iv. “… commencing June 30, 2016, and for every second weekend thereafter, Ms. H’s weekly parenting time will begin on Thursday at 6:00 p.m. instead of Friday afternoon …”; v. neither parent remove N from British Columbia without the consent of the other parent or leave of the court. b. On July 15, 2016, Her Honour Judge Chaperon gave leave for Mr. C to take N to Nova Scotia for 10 days, on condition that Mr.

C post a $10,000 bond to secure N’s safe return to British Columbia. c. On June 5, 2017, His Honour Judge Cutler ordered that: i. for the remainder of the school year, Mr. C would have parenting time each week from 8:00 a.m. Monday to 6:00 p.m. Friday and Ms. H from 6:00 p.m. Friday to 8:00 a.m. Monday; ii. commencing June 29, 2017, Ms. H’s parenting time would begin at 6:00 p.m. Thursday instead of 6:00 p.m. Friday. d. On May 8, 2018, I ordered that: i. during the school year, Mr.

C would have parenting time each week from Monday at 8:00 a.m. to Friday at 6:00 p.m.; ii. if a professional development day or statutory holiday fell on a Friday during the school year, Ms. H’s parenting time would begin at 6:00 p.m. Thursday, rather than 6:00 p.m. Friday; iii. if a statutory holiday fell on a Monday during the school year, Ms. H’s parenting time would extend to 8:00 a.m. on Tuesday, rather than 8:00 a.m. on Monday. iv. during the summer holiday of 2018, Ms. H would have parenting time from June 28 to June 30, Mr. C from June 30 to July 15, Ms. H from July 15 to July 29, Mr.

C from July 29 to August 12, Ms. H from August 12 to August 30 and Mr. C from August 30 to September 3, the exchange to be at 6:00 p.m. on each day. [ 14 ] Each year, N has spent half of the Christmas holiday and half of Spring Break with each parent. This arrangement was agreed between Ms. H and Mr. C, and was not the subject of a court order. N [ 15 ] On May 8, 2018, I had lunch with N, his paternal grandmother and counsel at a local restaurant. I would like to express my gratitude to counsel for the professional and responsible approach which they took to that meeting.

In particular, they allowed N the opportunity to express himself freely without making him feel that he was under interrogation, or in some way on trial himself. Not surprisingly, when left to choose what to talk about, N expressed little interest in adult subjects. He is an avid devotee of “Pokemon Go”, an activity of which I was previously ignorant, but about which I am now well-informed. N’s enthusiastic description of his participation in that activity offered me an opportunity to get a sense of him as an individual.

He presents as a self-confident, articulate, intelligent little boy who is generally happy in his world. Given the turmoil in his early childhood, that is remarkable. I conclude that: (

i) N is an emotionally resilient child, possessed of some strength of character; and (ii) despite the difficulties in his childhood, he has been well-parented. In saying that, I am mindful that Ms. M has provided to N at least as much parental care-giving and guidance as either of his biological parents, and (given that she was his foster-mother for 2 years and is now his step-mother) probably more. N’s Education and Aptitudes [ 16 ] During the course of lunch, N remarked that he has many friends at school, and that he likes them very much. [ 17 ] Before Mr. C and Ms.

H separated, they intended to enrol N at [omitted for publication] Elementary School in Victoria, a short walk from the rental house which was then the family home, and in which Ms. H continues to live. After the separation, Mr. C enrolled N at [omitted for publication] Elementary School, approximately [omitted for publication] kilometres west of Victoria and a short walk from Ms. Ms’ home. [ 18 ] N attended [omitted for publication] Elementary School for a week or so after Spring Break in 2018 because Ms. H declined to return him to Mr. C (as previously agreed) at the end of Spring Break. Ms.

H then enrolled him at [omitted for publication] Elementary School without first consulting Mr. C. Mr. C retrieved him from the school a few days later and returned him to [omitted for publication]. With the exception of that brief interlude, all of N’s formal education (kindergarten, grade 1 and grade 2) has been delivered at [omitted for publication] Elementary School. [ 19 ] The following are some extracts from his November, 2017 report card: Language Arts N is not yet meeting expectations in Language Arts. N does not yet show a positive attitude towards reading.

He needs to be encouraged to get settled and read during independent reading periods. It is essential that N is in the routine of practicing reading and writing at home. Printing names of family members, keeping a special journal of fun activities he has done, and reading to N every day are ways to develop N’s literacy skills.

* * * Mathematics N is not yet meeting expectations in Math. …. * * * Social Studies N is approaching expectations in Social Studies. N was encouraged to be part of our discussion around roles, rights and responsibilities in our classroom. … N is working hard at being a positive and contributing member of our classroom community. * * * Arts Education N has been an active participant during our art activities. N takes pride in his art objects …. * * * Career Education Most days, N is able to follow directions. … N is not yet contributing to class discussions.

With encouragement, we feel that over time N will develop a positive outlook to learning. …. The following extracts are taken from N’s March, 2018 report card: Language Arts N is not yet meeting expectations in reading. N continues to work on displaying a positive attitude towards reading. N continues to work on developing reading strategies to help him read unknown words. Although N is not meeting grade level expectations there has been growth in his reading this year and this is exciting to see!

Thank you for your efforts reading at home with N. …. * * * Mathematics N is approaching expectations in Math. …. * * * Science N is meeting expectations in Science. …. * * * Arts Education N has been an enthusiastic participant during our art activities. …. * * * Career Education N continues to be a reluctant learner. …. The following extracts are taken from N’s June, 2018 report card: Language Arts N is not yet meeting expectations in Language Arts. N continues to work on learning to apply reading strategies to help him read unknown words.

N often lacks the stamina and focus to read independently during silent reading. …. * * * Mathematics N is approaching expectations in Math. … N often needs assistance in solving story problems. Together, we use manipulatives or drawings to solve the word problem. * * * Social Studies

N is approaching expectations in Social Studies. …. * * * Career Education N has had a fun year in Grade 2. He is excited to gain new experiences and asks many questions. Your child has been exploring and learning about the Core Competencies and will be continuing to work on self-assessment of the Core Competencies throughout their ( sic ) school career. It has been exciting to see his confidence develop and his understanding of different topics grow throughout the year. N continues to work on his social skills. He made some strong friendships in our class this year. This is great to see.

N enjoys building and creating in small groups. * * * Term Goals and Ways to Support Learning Spend time as a family outside to nurture his natural curiosity and foster a connection to the natural world. Enjoy books together every day - Read to and with your child. The [omitted for publication] Public Library offer a free summer reading program that includes materials, activities and incentives. It will be apparent from these extracts that: (

i) N has been doing well in Mathematics, Science and Art; (ii) N has made a significant improvement in Career Education over the past year; and (iii) reading skills are N’s most significant educational challenge. Ms. H’s first language is Thai, and she is not fluent in English. At her request, a Thai interpreter attended at trial. She required the assistance of the interpreter at many points in her evidence. She attended an ESL course in Victoria, and received a certificate of her competence to read English at a Grade 7 level. By contrast, Ms.

M is a well-educated and articulate person who speaks English well. [ 20 ] During her evidence in chief on August 16, 2017, Ms. H was asked the following questions and gave the following answers: Q The court heard yesterday that you and Mr. C have now agreed for N to stay at [omitted for publication] Elementary? A Yes Q Can you tell the court why you’re now in agreement? * * * A When N was first taken from me, he would often ask “Why am I not staying with you?” -- asking me this question. And now that he’s been at the school for two years, I understand that he’s happy there. He has friends there.

And -- but happiness and progress at school is what I want for him. It is important to note that, when Ms. H gave that evidence, N and Mr. C were living in Ms. Ms’ home, a short walk from [omitted for publication] Elementary School. [ 21 ] Ms. H’s current position, advanced in closing argument on August 8 - 9, 2018, is that N should reside in Victoria with her and attend [omitted for publication] Elementary School. She explains that, as a result of Mr. C’s move from [omitted for publication] to [omitted for publication], N now spends 90 minutes to 2 hours daily on the school bus.

By contrast, [omitted for publication] Elementary School is a few blocks from her home. [ 22 ] If the only issue were the choice of N’s school, I would have no hesitation in preferring [omitted for publication] Elementary School. [ 23 ] N needs help with reading, and the importance of reading at home with his parents is a recurring theme in his report cards. Ms. M is able to provide that assistance at a high level, and has been doing so. Ms.

H simply lacks the necessary facility in the English language. [ 24 ] Overall, N is doing well at school, and is making progress in many of the areas in which he has not done well in the past. It would be unwise to meddle with an educational program which is serving him, on balance, well. [ 25 ] N is at an age when peer relationships are gaining importance in his life. He has well-established friendships with other students at [omitted for publication] Elementary. Ms.

H points out that he has an engaging personality, and makes friends easily, but it is never easy being the new kid in the class. [ 26 ] N does have a long daily commute on the school bus, but that is not uncommon in rural areas, and students in those areas customarily use their time on the bus as an opportunity for social interaction. On balance, I do not regard the length of the commute as a decisive factor. [ 27 ] Much was said during the course of the trial about the importance of fostering N’s connection with Thai culture. I will discuss that subject below.

However, that issue does not bear significantly on the choice of N’s school. It is not proposed that he attend a Thai- language school if he lives in Victoria. [Omitted for publication] Elementary School is a conventional elementary school, in which the language of instruction is English and the curriculum is that mandated by the Ministry of Education (i.e. the same curriculum as that offered at [omitted for publication] Elementary). I accept the importance of N’s Thai heritage. However, for the next 10 years, he must learn to navigate an educational system in which the language of instruction is English.

In order to succeed in that endeavour, he needs to improve his English-language skills. His best opportunity to do that is in Mr. C’s home. Other Factors

[ 28 ] During closing argument, counsel proceeded on the unstated premise that the choice of N’s school would be determinative of his weekday place of residence. I don’t accept the premise, because the choice of school is not the only factor to consider in deciding which home is better suited to N’s weekday needs. [ 29 ] Ms. H is a single parent. If N’s weekday home were at her house, she would carry the burden of child care alone. By virtue of her commendable industry, she has built and now operates a successful business. Of necessity, that business demands much of her time, attention and energy. Mr. C and Ms.

Ms are both stay-at-home parents. Their only obligations are to care for their home and children. [ 30 ] In the home of Mr. C and Ms. M, N has four step-siblings. In the home of Ms. H, he would be an only child. Siblings often enhance a child’s family experience, although that factor is somewhat diminished by the fact that Ms. M’s children are much older than N. [ 31 ] Ms. H suggests that the educational, social and cultural opportunities for N are much richer and more varied in Victoria than they are in [omitted for publication].

It is true that Victoria is a city of some size, and that [omitted for publication] is a tiny community. There are certainly more, and more various, opportunities for children in Victoria. I do not think that that factor necessarily makes Victoria a better place to raise children. In particular, small communities offer more opportunities for unsupervised play than do big cities. Many children from smaller communities grow up to have happy, satisfying and successful lives.

Although this is a relevant factor, I do not consider it to be as important as the other factors I have mentioned. [ 32 ] The importance of fostering N’s connection to his Thai heritage cannot be over-stated. He is a dual Thai/Canadian citizen, and both countries have issued passports to him. It is probable that he will spend extended periods in Thailand as an adult, and that he will benefit from that experience. [ 33 ] However, I do not think that he would have more or better opportunities to participate in Thai culture if he lived with Ms. H on weekdays and Mr. C on weekends, rather than the other way around.

In either case, he will attend an English-language school, with predominantly anglophone friends, throughout the week. Ms. H’s opportunity to introduce him to Thai culture will be during evenings if he goes to school in Victoria and on weekends if he goes to school in [omitted for publication]. Each offers an equal opportunity for him to engage in Thai activities. [ 34 ] Mr. C expresses a desire to have some parenting time with N on the weekends. He points out that N is away at school from early morning to late afternoon during most of Mr.

C’s parenting time, and that evenings are taken up with efforts to assist him with his homework. Mr. C would like to have some unstructured leisure time with his son. I consider that to be a reasonable request, and one which would foster N’s relationship with his father. Conclusions on Residence & Parenting Time [ 35 ] I think that N is well-served by the existing arrangements for his residence and parenting time, and that the order which I made on May 8, 2018 should provide the template for the future. I think that some adjustment is necessary to give N some weekend time with Mr. C.

I also observe that the previous orders for parenting time were silent on the questions of Christmas and Spring Break. As noted below, the absence of such provisions is material to the question of child support. For that reason, they should be expressly addressed in any new order for parenting time. [ 36 ] Commencing September 3, 2018, Ms. H will have parenting time, as follows. a. on three weekends out of four, from 6:00 p.m. Friday to 8:00 a.m. Monday; b. if a statutory holiday or a professional-development day falls on a Friday preceding one of Ms. H’s parenting-time weekends, Ms.

H’s parenting time will commence at 6:00 p.m. on the preceding Thursday, rather than Friday; c. if a statutory holiday or a professional-development day falls on a Monday following one of Ms. H’s parenting-time weekends, Ms. H’s parenting time will end at 8:00 a.m. on the following Tuesday, rather than Monday; d. from 3:00 p.m. on Christmas Day to noon on January 1; e. from 9:00 a.m. on the first Saturday of Spring Break until 6:00 p.m. on the ensuing Friday. The first weekend of Ms. H’s parenting time on this

schedule will commence on Friday, September 7, 2018. N will remain in Mr C’s care on the fourth weekend of every four-week cycle. The first such weekend will be that of September 29 – 30, 2018. [ 37 ] If the parties are unable to agree on parenting time for the summer of 2019, either parent has liberty to apply. [ 38 ] As noted below, N’s standard of living in Ms. H’s home is lower than his standard of living in Mr. C’s home. That is principally because of Mr. C’s personal injury settlement, which allows Mr. C and Ms. M to live as stay-at-home parents in a large and luxurious house. By contrast, Ms. H must make time for N in her busy

schedule as the owner and operator of a small business. For the reasons given below, I do not think that I am in a position to ameliorate that situation by an award of child or spousal support. However, Mr. C is in a position to ease Ms. H’s burdens by assuming more responsibility for N’s transport between his parents’ houses. In the past, Mr. C and Ms. H have met, by agreement, mid-way between their homes to exchange N. If Mr. C were to take responsibility for transport to Ms. H’s home, it would enhance both the quality and the quantity of her time with N, and N would benefit accordingly.

I do not think that I should make an order on that subject at this stage, but I ask Mr. C to consider the suggestion. N’s Medical & Dental Care [ 39 ] Ms. H expresses concern that N should have regular medical and dental check-ups. It is difficult for her to arrange those because her parenting time is primarily on weekends. Mr. C has agreed to ensure that N has a medical and dental check-up at least once

a year, and to provide Ms. H with access to his attending professionals. Travelling With N [40] As noted in paragraph 13(a), there is an existing order that neither parent remove N from British Columbia without thepermission of the other parent or leave of the court. Ms. H seeks leave to travel with N to Thailand in the summer of 2019. Mr. Copposes the application because he fears that, if Ms. H takes N to Thailand, neither will return to Canada. [41] This is a difficult question. a. Mr. C’s fears are well-founded. N and Ms. H are both Thai citizens. Ms. H’s extended family is there.

She is presentlyengaged in Thai divorce proceedings with C’s father. One of the issues in that proceeding is title to a house in Thailand. Ms. H has nosignificant assets in Canada. Her business in Canada provides only a modest income. Thailand is not a party to the Hague Conventionon the Civil Aspects of International Child Abduction. b. On the other hand, when N reaches adulthood, he will be blessed with the opportunity to come and go between the twocountries as he chooses. He may well find his future in Thailand.

His opportunities and his ability to make well-informed andsuccessful choices would be greatly enhanced if he were to spend time in Thailand during his childhood. What is needed in these circumstances is a solution which would allow N to travel to Thailand, with a suitable assurance that he willreturn as and when scheduled. I observe that Mr. C posted a $10,000 bond when he last took N to Nova Scotia. I encourage counsel toconsider conditions which might be imposed to secure N’s safe return from Thailand to Canada. This is an issue which needs morework. Child Support/Shared Parenting [42] Mr.

C waives all claims for child support, retroactive or prospective. Understandably, he reserves the right to apply for childsupport in future if there occurs a material change in circumstances justifying such an application. [43] Ms. H applies for child support, and asks me to declare that the parenting regime over the past three years has been a sharedparenting regime, falling within the ambit of

section 9 of the Federal Child Support Guidelines: 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 courseof 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. [44] Ms. de Wit referred me to the decision of Justice Saunders in Berry v. Hart 2003 BCCA 659, in support of the propositions that:(

i) in determining the proportion of parenting time allocated to each parent, I need not do an arithmetic calculation, but rather that Ishould assess the question subjectively; and (ii) I may find that a shared custody regime exists, and has existed, even if I conclude thatMs. H’s parenting time has been, or will be, marginally less than 40%. Being bound by the authorities mentioned below, I reject bothsubmissions. [45] In ADJ v. TDP [2017] BCJ No. 2638; 2017 BCSC 2360 at paragraph 13, Justice Meiklem said: I recognize that Saunders J.A. for the Court in Maultsaid v.

Blair, 2009 BCCA 102, at para. 24, said that it may be appropriate tocalculate time in days in cases where that is the tenor of the order or agreement setting out the right of access, but I must observe thataccounting in units of days can be very misleading and an inaccurate measure of physical custody where there is no such tenor. It iscommonly necessary to break the time down to hours and examine what happens during the course of a particular day, to avoid a portionof a day being counted as a whole day. To say that you have a child for a day when you have him for a few hours in that day isinaccurate.

With that in mind, I note that T.D.P.'s statement of the facts counts an overnight period that starts at 5 p.m. on Wednesdayand ends at 8:30 a.m. on Thursday as a whole day, whereas it is actually a total of 15.5 hours spread over two days. In this case, countingby days is effectively an exaggeration of the actual time that T.D.P. exercises a right of access or physical custody of the child. In Maultsaid v.

Blair 2009 BCCA 102 , [2009] BCJ No. 467; 2009 BCCA 102, Justice Saunders said at paragraph 30: … it is not open to the court, faced with the express wording of s. 9, a court order particularizing "the right to access", and a measure ofthe time that falls short of the requisite 40 per cent, to ignore the words, the mandatory requirement, chosen by Parliament. In the wordsof the Alberta Court in L.C. v. R.O.C 2007 ABCA 158, "there is no place for 'deeming' parenting time to be what it is not". In Franke v.

Franke 2008 BCSC 1145 @ paragraph 28, Justice Joyce said: With respect, I do not agree with the defendant that the judgments of Koenigsberg and Neilson JJ. in S.L.P. v. C.W.P. [2006] B.C.J. No.2146 stand for the proposition that the court can embark on an analysis of the factors set out in s. 9(

a) to (

c) even where the 40 percentthreshold required by s. 9 is not met. In my view, Koenigsberg and Neilson JJ.'s reasons for judgment are examples of the application ofthe principle enunciated in Berry v. Hart, namely that in making the determination whether the threshold is met, the court need notmicroscopically examine the contested evidence with respect to every hour that the parties say they spend with the child to determinewhether a close case falls on one side of the line or the other. They deal with the methodology for determining whether the thresholdwas met and do not, in my opinion, stand as authority that the

section can be applied where the circumstances fall short of meeting thethreshold. As Saunders J.A. stated in Berry v. Hart (para. 10), the essential question is:

... whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of theevidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with aparent, one can say reasonably that the 40 percent or more level is achieved. [46] Ms. De Wit points out that N is in school during much of Mr. C’s parenting time, and submits that school hours should be leftout of account in the calculation of the relative proportions of parenting time of each parent. Justice Saunders rejected a similarsubmission in Maultsaid v. Blair at paragraph 20, and I am bound to reject it here. [47]

Section 9 of the Guidelines requires the court to assess the proportions of parenting time “… over the course of a year …”. Thatcalculation is difficult in this case because of the various orders which have been made. The governing principle in such cases was stated in Gosse v. Sorenson-Gosse 2011 NLCA 58 , [2011] NJ No. 331; 2011 NLCA 58; 12 RFL (7th) 1 at paragraph 126: There is nothing in the Guidelines to require application of the formula to a calendar year, or to a year determined on any other specificbasis.

I would conclude that the basis for determination of the time frame against which to measure the required percentage of custodywould depend on the circumstances in each case, considered in the context of any compelling practicalities. One cannot imagine that thephrase "over the course of a year" was ever intended to have indeterminate beginning and ending times, depending on what one spouseor the other may wish to assert in the circumstances. Such an

interpretation would invite confusion and abuse. As well, a calendar yearis the normal basis for calculating the income of a spouse in order to determine the level of financial responsibility for child support. Inthe ordinary course, the phrase, "over the course of a year" should, absent compelling reason to do otherwise, be taken to mean over thecourse of a calendar year. In the case of shared custody beginning at some point during the year, that point must be the beginning point.

Then, common sense and practicality would dictate that the initial period would end at the end of that calendar year and calendar yearsused thereafter, unless there was some compelling reason to use a year determined on a basis other than a calendar year.

As a result, I should address the shared parenting issue in relation to the last six months of 2016 as the first unit of time, the whole of2017 as the second unit of time, and the whole of 2018 as the third unit of time. [48] I am unable to take professional-development days into account in the calculations which follow because there is no evidence ofthe frequency of such days. [49] Judge Cutler’s first order in this case was in force from June 20, 2016 to June 5, 2017. I leave out of account the periodbetween June 20 and June 30, 2016 because it is too short to be material.

In respect of the period between June 30 and December 31,2016, Judge Cutler’s order does not allow a calculation in hours because Ms. H’s parenting time was expressed to be from Thursday at6:00 p.m. to “… Monday morning …”, and so might extend to anytime between 6:00 a.m. and noon on Monday. Doing my best tointerpret the order reasonably, I think it right to conclude that Judge Cutler’s first order entitled Ms. H to 3 ½ days per week of parentingtime; i.e. 50% of the total. [50] The same order and the same parenting-time

schedule applied during the period January 1 – June 5, 2017, a period of 126 days. Ms. H’s parenting time during the period June 5 to December 31, 2017 may be calculated in hours because Judge Cutler’s second orderwas more precise than his first. However, I think that I should apply the same methodology throughout the year, and so that I shouldcount days, rather than hours, for the period June 5 to December 31. Except for the brief interval between June 5 and June 29, Ms. Hwas entitled to parenting time for 3 ½ days per week.

It is clear that her entitlement to parenting time exceeded the statutory threshold(40%) for the year as a whole. [51] Ms. H’s parenting time for 2018 may be calculated in hours. The period from January 1 to May 8 was governed by JudgeCutler’s second order. Under that order, Ms. H was entitled to 62 hours per week of parenting time. There were 14 weeks betweenJanuary 1 and May 8, for a total of 868 hours. Similarly, under my order of May 8, 2018, Ms. H was entitled to 62 hours per week ofparenting time between May 8 and June 29, period of 7 weeks, for a total of 434 additional hours.

Add in 24 hours for the May 24holiday, and the total for the period January 1 – June 29 is 1326 hours. During the period June 28 to September 30, 2018 (a total of 67days), Ms. H had parenting time for 34 days (816 hours), bringing the aggregate total to 2142 hours. Under the new parenting-timeschedule to take effect on September 3, 2018, Ms. H will have parenting time with N for 180 hours in each 4-week cycle. There are 4such cycles during the period September 3 to December 22.

Adding in 2 days (of 24 hours each) for Thanksgiving Monday andRemembrance Day, 9 hours on Christmas Day, and 6 days (of 24 hours each) on December 26 –31, Ms. H will have parenting time for921 hours during the period September 3 – December 31, bringing the aggregate total for 2018 to 3063 hours. There are 8760 hours in ayear (unless it is a leap year). Accordingly, Ms. H’s parenting-time entitlement in 2018 will be 34.9%. Even allowing for professionaldevelopment days, it is clear that her parenting-time entitlement will be less than 40% in 2018. [52] The parenting-time

schedule for the summer of 2019 remains to be determined. For that reason, I cannot predict how muchparenting time Ms. H will have in 2019. [53] It follows that

section 9 of the Guidelines applies to the latter half of 2016 and to all of 2017, but not to 2018. Child Support/Quantum [54] Ms. deWit submits that, in assessing Mr. C’s income for the purposes of child and spousal support, I should include in each yeara portion of Mr. C’s personal-injury damage settlement, having regard to the fact that much of it is comprised of compensation for lossof income and loss of income-earning capacity. For the following reasons, I do not think that I should do so when considering issues ofchild support: a. “Income”, for the purposes of the Federal Child Support Guidelines, is defined by

section 16 of the Guidelines to be the “totalincome” reported at line 150 of the taxpayer’s T-1 General tax return. While other receipts may be commonly referred to as “income”,they are not “income” as defined by the Guidelines: SEW v. SCW 2016 BCJ No. 249; 2016 BCPC 32 at paragraphs 19 to 28. b. Awards of damages for loss of past income or impairment of future income-earning capacity are not taxable under the currentIncome Tax Act, and are not included in “total income” at line 150 of the T-1 General form. The rationale is that the damage award is

intended to provide a capital sum which, if invested at current rates, will produce an income stream roughly equivalent to the income lostas a result of the injury. The stream of investment income will be taxable, and included in “total income”. As a result, to tax the capitalreceipt would result in double-taxation. Mr. C has chosen to spend most of his damage award on debt repayment and a house, neither ofwhich produce investment income to be taxed. c. Mr. C was able to do that because he receives sufficient disability benefits to defray his routine expenses.

Those are taxable,and are included in his “total income”. d. No deduction was made from his personal injury damage award on account of his entitlement to disability benefits because thelaw does not permit the tortfeasor to benefit from the prudence of the victim in purchasing disability insurance: Cunningham v. Wheeler (SCC), [1994] 1 SCR 359. [55]

Section 9 does not provide a formula for the assessment of child support. Rather, it requires the court to determine a fairmeasure of child support by reference to the three factors set out in the section. In Contino v. Leonelli-Contino 2005 SCC 63 ,[2005] 3 SCR 217 at paragraph 27, Justice Bastarache said: The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail ….

Considerationshould be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs,resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particularcircumstances of each family are properly accounted for. It is meant to ensure a fair level of child support. Addressing the three factors in turn: a. If this were not a shared custody situation, the child support obligation of the non-custodial parent would be determined byreference to the tables set out in the Guidelines.

The amounts payable by each of the parties, if [s]he were the non-custodial parentwould have been: 2016 2017Mr. C $442 $442Ms. H $349 $407Difference $93 $35 b. Each parent has some increased costs resulting from the shared parenting arrangement. Transportation costs are being sharedequitably. Mr. C and Ms. H have been exchanging N at agreed pick-up and drop-off points mid-way between the two homes. I suspectthat Ms. H has incurred more costs for N’s extra-curricular activities than has Mr. C, simply because such activities tend to be moreexpensive in cities.

However, there is no evidence which would allow me to quantify that difference. c. The “… conditions, means, needs and other circumstances of each spouse …” in this case are very different. Mr. C lives in alarge and luxurious house (with an indoor swimming pool), in an outdoorsman’s paradise, with a supportive spouse and no obligations inlife except to care for his children. Ms. H shares a rented house in a mid-size city with three roommates, and works long hours in herown business. [56] In Walling v.

Holonsey 2011 BCSC 104; [2011] BCJ No. 122, Justice Bowden said at paragraph 17: The objective of s. 9 is to give a court the discretion necessary to adjust child support in situations of shared custody so that the childrendo not experience significant differences in the standards of living that each parent can offer in their homes. There is no reason to believe that N lacks any of the necessaries of life while in Ms. H’s care. There is no indication in the evidence that,if Ms. H were awarded child support, she would change her residence or the nature of her work, and I think that both are unlikely.

Onthe other hand, Ms. H is correct in her assertion that Victoria offers different opportunities for young people to engage in extra-curricularactivities than does [omitted for publication]. The activities available in [omitted for publication] are free. A fee is charged for many ofthe activities available in Victoria. If there were a specific proposal from Ms. H for activities in which she wishes to enrol N during herparenting time, and some evidence of the cost of those activities, that might provide a basis for an award of child support. There may beother practical steps which Ms.

H could take to improve N’s standard of living in her home. Such matters might be dealt withprospectively by an order in relation to special & extraordinary expenses under

section 7 of the Guidelines. In the absence of evidence ofpast expenditures, they do not support a retrospective award of child support. Special & Extraordinary Expenses [57] Until further order of the court, the parties will share special & extraordinary expenses in proportion to their 2017 incomes; i.e.Ms. H will be responsible for 46% of such expenses and Mr. C for 54%. Given the history, differences of opinion on the subject areinevitable. Those differences will be resolved in the following way: a.

On or before October 1, 2018, each party will provide the other with a budget for special & extraordinary expenses which thatparty plans to incur for N during the ensuing 6 months. The budget must provide sufficient detail and explanation of the need for eachexpense to allow the other party to make a reasoned assessment of it. b. On or before October 15, 2018, each party must provide the other with a written response to the other’s budget, approving of orchallenging each proposed expense, and providing reasons for disputing those items which are not agreed. c.

If, as a result of that exchange, the parties are agreed on the budget, they should exchange signed copies. If they do not agree,they may

schedule a hearing to resolve the disagreement. d. Once the budget is settled, by agreement or court order, each party will send the other on the first day of each month, an

itemized list of special and extraordinary expenses incurred during the preceding month (within the limits of the budget), together withcopies of receipts for each expense claimed. e. On or before the 15th day of each month, each party will send the other a cheque or e-transfer for her or his share of the other’sspecial & extraordinary expenses incurred in the preceding month. f. If disputes arise, either party has liberty to apply. g.

If either parent is of the opinion that the budget supports an increase in the other parent’s share of special & extraordinaryexpenses, [s]he may apply to the court for such an order. The difference between N’s standard of living in Mr. C’s house and his standard of living in Ms. H’s house may be addressed, at least inpart, by varying the proportions of special & extraordinary expenses payable by each parent, or by providing more opportunities forextra-curricular activities when N is staying with his mother. Those questions should be addressed if and when Ms.

H presents anappropriate evidentiary basis for an exercise of judicial discretion. Spousal Support [58] A large part of Mr. C’s pre-accident income stream has been replaced by the disability benefits which he now receives. Theportion of his settlement funds attributable to loss of future income-earning capacity was calculated to fully replace that same futureincome stream with investment income. As a result, Mr. C has been double-compensated for loss of future income. That windfall hasenabled Mr. C to substantially improve his standard of living. The questions are: (

i) whether he should be obliged to share that windfallwith Ms. H; and (ii) if so, whether an award of spousal support is an appropriate tool to effect that result. For the reasons given below, Iwould answer the second question in the negative. That conclusion renders it both unnecessary and inappropriate for me to answer thefirst question. [59] The Federal Child Support Guidelines have brought admirable clarity, simplicity and certainty to the adjudication of claims forchild support. Unfortunately, the same cannot be said in relation to the principles governing awards of spousal support.

As far as I candetermine, all or almost all issues of spousal support are discretionary and dependent upon the circumstances of the individual case. Ihave done my best to extract some guiding principles from the authorities mentioned below, but I would not want my articulation of thegoverning principles to be taken as categorical - the jurisprudence does not allow for that kind of certainty. [60] The authorities recognize three grounds upon which spousal support may be ordered: (

i) compensatory; (ii) contractual and (iii)non-compensatory: Chutter v. Chutter 2008 BCCA 507 , [2008] BCJ No. 2398; 2008 BCCA 507 (leave to appeal refused at[2009] SCCA No. 41). There is no basis in this case for a compensatory or contractual award of spousal support. Ms. H’s career wasneither delayed nor impeded by her family responsibilities. Indeed, since N’s birth, she has built a successful business, no doubt assistedby the fact that, since N was 3 years of age, his primary caregivers have been Ms. M and Mr. C. It is not alleged that there was anyagreement on the subject of child support.

The remaining question is whether the evidence supports an award of non-compensatoryspousal support. [61] Mr. C’s annual disability benefit ($47,000) is not significantly higher than Ms. H’s annual income from her business (about$43,000 in 2017). Mr. C enjoys a higher standard of living than does Ms. H because: (

i) he and Ms. M own their home, and have nomortgage; and (ii) living in Victoria is more expensive than living in [omitted for publication]. Those advantages are offset by the factthat Mr. C and Ms. M have six people in the household and Ms. H has only herself and N. There is no evidence of the contributions, ifany, made by Ms. M and her adult children to the household expenses in [omitted for publication]. [62] As noted in paragraph 56, one important objective of child support is to ensure that the child’s standard of living, post-separation, is roughly comparable in the home of each parent.

Similarly, where the applicant is entitled to compensatory child support,one objective of the award is to equalize (more or less) the post-separation standards of living of the former spouses. As a result, post-separation changes in their financial circumstances are relevant to a claim for spousal support on a compensatory basis. However, wherethe applicant’s only claim to spousal support is on a non-compensatory basis, the objective is to (more or less) sustain the applicant in thestandard of living which [s]he enjoyed during the marriage: Chutter at paragraph 52; BAC v.

RWC [2018] BCJ No. 366; 2018 BCSC 317 at paragraphs 50 - 51; AAM v. RPK [2010] OJ No. 4001; 2010 ONSC 930; 81 RFL (6th) 370 at paragraphs 202 – 207; Reid v. Gillingham[2014] NBJ No. 98; 2014 NBQB 79 at paragraph 8. The right to share in post-separation income increases does not typically arise in cases involving non-compensatory claims, since theprimary focus of such claims is the standard of living enjoyed during the relationship. Thompson v.

Thompson, 2013 ONSC 5500 , [2013] OJ No. 4001; 2013 ONSC 550, at paragraph 103 The claimant must lead the necessary evidence to establish a right to share in post-separation income increases. It is ultimately in thediscretion of the court, taking into account the facts of each case and the general objectives of spousal support. Kozak v. Kozak, [2016] OJ No. 1711; 2016 ONSC 690, at paragraph 127 [63] It is easy to understand why post-separation changes in financial position should be governed by different principles in relationto spousal support than in relation to child support. Children come first.

One of the recognized objectives of spousal support is toencourage the recipient spouse to pursue self-sufficiency: Bracklow v. Bracklow (SCC), [1999] 1 SCR 420 atparagraph 32. We do not expect children to become self-sufficient until they are adults. When a parent’s ability to contribute to his orher child’s well-being increases after separation, that parent’s child support obligation should increase commensurately, applying theFederal Child Support Guidelines.

The same imperative does not apply to spousal support. [64] It is more difficult to devise a convincing rationale for applying different principles to compensatory and non-compensatoryspousal support. With that acknowledged, I think that I should follow the guidance given in Thompson and Kozak, leading to the

conclusion that, absent special circumstances, post-separation enhancements of the payor spouse’s financial position should not be taken into account in relation to non-compensatory spousal support. [ 65 ] Ms. H’s present standard of living is almost identical to that which she enjoyed during her relationship with Mr. C. I find no unusual factor in this case which would justify me in taking into account Mr. C’s improved financial position when adjudicating Ms. H’s claim for non-compensatory spousal support. For that reason, her claim for non-compensatory spousal support fails. [ 66 ] The fact that Mr.

C now enjoys a higher standard of living than does Ms. H is entirely attributable to the settlement of his personal injury claim. The event living rise to the claim occurred before Mr. C and Ms. H separated, but the settlement was agreed and the settlement funds were paid after separation. Mr. C’s personal injury settlement might or might not be a family asset, and so subject to a claim under

Part 5 of the Family Law Act . I express no opinion on that question because this court has no jurisdiction under

Part 5: Family Law Act , s 193. Any such claim must be pursued in the Supreme Court. Moving Forward [ 67 ] It is apparent that there are a number of issues which cannot be resolved at this time, and probable that other issues will arise which Ms. H and Mr. C will fail to resolve by negotiation. Recognizing that, I asked the parties whether they wish me to be seized of future proceedings in this case. Both replied in the affirmative. Disposition [ 68 ] I make the following orders: a. N’s primary place of residence will be Mr. C’s home in [omitted for publication]. b. N will continue to attend [omitted for publication] Elementary School. c. The parenting time

schedule will be that set out in paragraph 36. d. Each parent is declared be a guardian of N. e. Each parent will exercise, during his or her parenting time, all of the parental responsibilities set out in

section 41 of the Family Law Act SBC 2011 c. 25. f. Ms. H’s application for child support is dismissed. g. Ms. H’s application for spousal support is dismissed. h. Ms. H will pay 46% of N’s special & extraordinary expenses and Mr. C will pay 54% of such expenses, the amount to be determined by the process set out in paragraph 57 Either party has liberty to apply in relation to future special & extraordinary expenses and the apportionment of responsibility for them. i. Mr.

C will ensure that N has a physical examination by a general practitioner and a dental examination by a dentist at least once each year, and will instruct the attending professionals to discuss N’s physical and dental health with Ms. H upon her request. j. No one is to remove N from Vancouver Island without: (

i) the written consent of both parents; or (ii) leave of the court. k. Any passports which have been issued to N by any government are to be delivered to the clerk of the court no later than September 3, 2018, and are to be held in safe-keeping in the court registry pending further order of the court. l. Except in emergencies, I will be seized of future proceedings in this case. If an emergency arises, an application may be brought before any Judge of the court, who will decide whether to deal with the matter or to refer it to me. August 24, 2018 ____________________________ T. Gouge, PCJ