N.H. v. D.H. Date:, 2013 BCPC 413

Citation: N.H. v. D.H. Date: 20130711 2013 BCPC 0413 File No: F6029 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: NH APPLICANT AND: DH RESPONDENT File No: F6030 Registry: Richmond BETWEEN: LH AND MH AND NH APPLICANTS AND: DH RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. K. DHILLON Appearing on their own behalf: LH, MH and NH Counsel for Respondent: S. Sayani

Place of Hearing: Richmond , B.C. Dates of Hearing for F6029: April 5, May 9 & 10, 2013 Dates of Hearing for F6030: May 9 & 10, 2013 Date of Judgment: July 11, 2013 Introduction [ 1 ] The matter before the court is with respect to the child EH who is at present age 4, (date of birth redacted). The central issue before the court is what family law orders would be in EH’s best interests, having regard to the legal principles governing the care of children under the Family Law Act S.B.C 2011, c. 25 (“ FLA ”). [ 2 ] The father of the child is NH and he is supported in his application by his parents MH and LH.

MH conducted the hearing as the litigation representative of the H family. [ 3 ] The mother of the child is DH. She was represented by counsel. [ 4 ] The parties seek to vary and finalize the terms of their existing family law order, an Interim Consent Order reached by the parties on October 11, 2011. Preliminary Observations [ 5 ] I start with some preliminary observations. On the whole of the evidence, there is no question that each parent is individually dedicated to ensuring the best childhood for their son whom each loves immeasurably and unreservedly.

The difficulty is that they are unable to work jointly or collaboratively to translate their love of their son into a positive, mutually satisfying parenting arrangement. There has been a loss of trust and goodwill between the child’s parents, which in turn has eroded the foundation on which a child can build a complete and integrated life with the support and guidance of two separated parents. [ 6 ] I quote from the judgment of Justice Kirkpatrick (as she then was) from Langlois v. Langlois 2000 BCSC 511 at para. 84 citing from C.B. Garrity & M.A.

Baris, Caught in the Middle: Protecting Children of High-Conflict Divorce (San Francisco: Jossey-Bass, 1997): Nothing matters - not custody decisions, visiting arrangements, nor whether the child is a boy or a girl - as much as whether parents can minimize fighting.

Over time, parental wars take a greater toll on a child's development than any other single factor in divorce. (page 35) The most important of all the reasons why ongoing parental conflict hurts children so much is that it denies them permission to love both their parents. [ 7 ] No other factor is as important in the life experience of a child as the concerted effort by separated parents to relegate their disagreements to a lesser place of prominence and to give foremost consideration to providing stable and nurturing day to day care for the child.

Procedural History April 27, 2011 Grandparents and father filed application with Notice of Motion to obtain an access order and father sought custody and access May 20, 2011 Mother filed a Reply seeking orders of custody, guardianship, access, child maintenance, and travel restriction orders August 5, 2011 Father filed a Reply to mother’s claim agreeing with maintenance but disagreeing with other orders sought by her May 2011 Interim Order at Family Case Conference October 11, 2011 Consent Order sought to be varied in this proceeding [primary residence to mother, specified terms of access, joint guardianship with specified obligations to consult on major issues affecting child with mother having right to make final decision and father having a right of court review] July 26, 2012 Mother filed an application to change or cancel terms of the October 11, 2011 consent order seeking changes in access, guardianship, child support, and travel September 10, 2012 Father filed Reply opposing mother’s application for change and disputing his annual guideline income for child support October 15, 2012 Father and grandparents’ Reply opposing changes in parenting schedule, parenting responsibilities, and other issues and Notice of Motion to find mother in contempt of court application filed

October 17, 2012 Reply by mother to Contempt application and application for an order that father pay his proportionate share of the child’s day care and pre-school expenses retroactive to the start of such services. [ 8 ] The applications of the parties seek to put in place a new parenting arrangement in substitution for the Consent Order of October 11, 2011 including the application by the paternal grandparents for specified contact (formerly defined as access). [ 9 ] The Court heard a great deal of evidence about the difficulties between the parents as they started to parent their child in separated households.

The primary focus of the Court is to determine what parenting arrangements and financial support orders are in the best interests of the child. Consequently, the early history of the Applicant and Respondent will be summarized only briefly. It is that the mother and father had a brief romantic relationship from which the child was conceived and born on May 3, 2009. They did not live together until just before their son was born and separated very shortly thereafter. The family situation was stressful and it was not a beneficial living arrangement for either parent or for the child.

Attempts at reconciliation failed and the parents were separated for good by late 2009. [ 10 ] The child’s primary residence has been with his mother since birth. After separation from the father, the mother and child settled into a new home. The mother re-entered the work force after the end of her maternity leave in 2010. [ 11 ] Attempts in 2010 at a negotiated parenting arrangement failed.

The personality conflicts which contributed to their separation prevented their collaboration as parents. [ 12 ] There was a significant period of time when the mother did not wish to engage with the father on parenting issues and his contact was significantly curtailed. The mother said the father’s volatility and anger made her anxious and stressed. The father and the paternal grandparents were dissatisfied with the parenting time the mother was willing to afford the father after separation. They filed applications for parenting time in April 2011.

After they initiated court proceedings, the paternal grandparents and the father were given some gradually introduced contact with the child and the matter proceeded to a family case conference in October 2011 where the parents agreed to a Consent Order. [ 13 ] Under the Interim Consent Order reached by the parties on October 11, 2011 the mother and father agreed to have joint custody of the child whose primary residence would remain with his mother. The parents also agreed to share joint guardianship of the child.

Among the terms of guardianship was the obligation of each parent to keep the other parent informed of and to discuss any significant matters affecting the child. The mother was designated the primary day-to-day caregiver having the right to make any major decisions concerning the child if, after discussion between the parents, they were unable to reach an agreement on any significant issue. [ 14 ] The Interim Consent Order specified access to the paternal grandparents on alternate Fridays overnight to Saturday morning and access to the father on Saturdays and on alternating Sundays.

The parties agreed on a sharing of parenting time on Christmas and Boxing Day. [ 15 ] The parties consented to not removing the child from British Columbia without the written consent of the other parent. [ 16 ] For purposes of fixing child support, the father’s income was declared to be $36,000 in 2011 with a monthly child support payment of $334 commencing October 1, 2011.

The parents were required to provide to each other a copy of their income tax return by June 1 of each year commencing June 1, 2012 and “child support was to be reviewed and adjusted effective July 1 of each year in accordance with the Federal Child Support Guidelines .” [ 17 ] It is one thing to agree to terms, but it is a more difficult thing to put those terms into practice. [ 18 ] The father alleges that since separation he has been subject to the mother’s control of his access to the child and her conduct has unfairly curtailed his parental rights.

The father contends that the mother has been uncooperative to the point of being obstructive about his requests for travel with the child outside of B.C. He alleges that the mother has wilfully denied him parenting time under the Consent Order. [ 19 ] The mother denies any wilful act of denial of parenting, stating that all of her parenting decisions were made after an attempt to discuss and resolve her concerns, and then only with the best interests of the child in mind.

The mother contends that the father’s animosity towards her creates a hostile environment for any joint decision-making about the child, and creates stress particularly at transfer times. She states that it is difficult to co-parent in circumstances where there is anger directed at her, and where respect and trust are lacking. [ 20 ] The mother says that she is supportive of the father’s parenting in circumstances that are mindful of the age and stage of development of the child. She notes that the father’s demanding work

schedule will limit his availability to parent, and the grandparents’ involvement adds a layer of complexity to parenting decision-making. She testified to her concerns about the health risks and religious upbringing of the child which she believes have not been taken seriously by the father’s family. [ 21 ] Only July 26, 2012 the mother filed an application to change the Consent Order to reflect her concerns that the circumstances affecting the child had changed, and parenting and support orders needed to be varied. Issues in Dispute [ 22 ] In this proceeding, the parents disagree on a number of parenting issues including the following:

1. Guardianship of EH, including appointment of a testamentary guardian on the death of a guardian; 2. Parenting Arrangements - The parenting arrangements which will meet the child best interests in the immediate short term and longer term as he proceeds to full time schooling; 3. Parenting time and Parenting Responsibilities - The amount of parenting time each parent will have with the child and the responsibilities to be undertaken by each parent during their parenting time; 4.

Decision Making - about important matters affecting the child and who will have authority to make decisions in the event of disagreement between the parents. 5. Child Support – what amount of support is payable by the father, when should it commence, whether there should be a retroactive adjustment, and what should be his guideline income for fixing child support. 6. Special and Extraordinary Expenses – what is the net income of each parent for purposes of fixing such expenses, what proportionate amount is payable by each parent, and when should such payments commence. 7.

Travel Outside of B.C. – an order setting out the mechanism by which each parent should be entitled to travel outside of B.C. with the child, [including obtaining and retaining a passport for the child, the amount of consecutive travel time that is in the child best interests, and the obligations of the travelling parent to provide information as to travel dates and locations and to facilitate daily contact with the other parent.] 8.

Contempt of Court application – whether the mother should be found in contempt with respect to the father’s and grandparents’ access under the consent order pronounced 11 October 2011. [ 23 ] In determining these issues, particularly guardianship or parenting of a child, the Court must consider and apply the statutory standards set out in the Family Law Act . [ 24 ] I have reviewed the issues in dispute and the evidence of the parties in this proceeding. I have considered the evidence carefully. I set out below a

summary of the evidence, the Court’s findings of fact, and applying the law, its determination of what family law orders are in the child’s best interests. The Law [ 25 ]

Section 37 of the FLA provides: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child’s health and emotional well-being; (

b) the child’s views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child’s life; (

d) the history of the child’s care; (

e) the child’s need for stability, given the child’s age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

[26] In determining what is in the child’s best interests, the court is only concerned with what family law orders would enhance thechild’s physical, emotional and mental well being, provide for support and security, and allow the child to develop in a positive andnurturing environment without being exposed to parental conflict. Evidence [27] Every family law proceeding lays bare, often in great and unflattering detail, the subjective views of the litigants about thefailings of the other party. No human being could emerge unscathed from the type of invasive scrutiny that family law litigation entails.

The fact that the parties are in litigation about their child and their child’s support is testament to the differences and tensions causingbreakdown in the family unit. In discussing the evidence at this hearing, it is important to state at the outset that allegations about theconduct of a party require more than a subjective belief, and the allegations are only relevant if they relate to conduct of a parent that isshown to impact on or impair the best interests of the child. [28] This approach to deciding family law issues was succinctly stated in D.L.S. v.

R.S., 2012 BCSC 977, aff’d on appeal 2012BCCA 406, at para. 173: The law is clear, both in statute and in case authority, that judges are not to consider past conduct unless the conduct is relevant to theability of that person to act as a parent of a child. Prof. McLeod, member of the University of Western Ontario, Faculty of Law, capturedthe essence of the evidentiary rule against considering past conduct when he commented, “[a] person may be a poor spouse but asatisfactory parent. A person may even be a poor parent to one child but a good one to another” (Stark v.

Stark (1988), (BC SC), 16 R.F.L. (3d) 257 (B.C.S.C.), head note comment). [29] Accordingly, I shall note only that evidence which is relevant to considering the ability of each parent to foster the best interestsof the child under s. 37 of the FLA. Background of each parent [30] The mother manages finance operations for a software company and has been employed in similar capacities with technologycompanies since 1994. She has a demanding job which affords her some flexibility on occasion. She lives in Vancouver with the childand has been his primary residence parent since birth.

She has provided full time daily care to him, and managed and met his needswhile holding down a full-time demanding professional employment. The mother has the support of her extended family in B.C.including in Metro Vancouver, on Vancouver Island and in Smithers. [31] The father resides in Delta B.C. and has family in Delta, White Rock and the USA. He has been employed as a truck driverwith his current employer since July 2011. He operates a refrigerated unit and frequently carries loads across the Canada-USA border.

His job involves long weekday hours, and can start as early as 5 a.m. and end late into the evening, with the truck requiring to be parkedon Annacis Island at the end of the day. He earns $21 per hour. He works a significant amount of overtime hours, and while such extrawork is not guaranteed, when the need for it arises he is not in a position to refuse it. His work day is affected by the nature of the loadthat is being dispatched, its destination, the border line-up and customs processing times, and any last minute dispatches.

His hours aretherefore unpredictable and not amenable to a set schedule. [32] Although his work

schedule on weekdays can be unpredictable, the father generally has weekends off. He relies on his parents,MH and LH, to coordinate and facilitate his parenting time, by picking up the child on Fridays when he is still on the road, and havinghim overnight to Saturday morning when he can spend his free time with him the rest of the day. [33] The father’s vacations are work dependent, and he may be given time off on short notice if there is reduction of work. He doeshave the ability to plan in advance for annual vacations with his employer. It is important to the father that he be able to have parentingtime with the child that recognizes the logistics of his work

schedule and his reliance on his very supportive extended family to helpfacilitate his parenting. He has siblings in the lower mainland and in Portland Oregon with whom his family is closely bonded. It isimportant to the father to have the opportunity to travel with the child to the United States on occasion for family gatherings andcelebrations. The Health and Emotional Well Being of the Child [34] The child is well loved on both sides of his family. He is closely bonded with each of his parents and they are important rolemodels for him.

Each brings emotional richness and joy to the child’s life. [35] There is no question that the burdens and rewards of day to day care of the child, and the costs in time and emotional investmenthave fallen largely on the mother. This is due to her greater capacity to organize and effectively implement the myriad of decisions thatneed to be made in raising a child. I find that the child is exceptionally well cared for by his mother who has tended to focus on andinvest in his growth and development.

It would be wrong to assume that because the mother has a professional job, her work demandsare any less than that of the father. As with many working parents, she has made sacrifices and adjustments in her priorities in order toput the child’s needs for care, education, and health ahead of her own needs or priorities. [36] The child experienced severe allergic reaction to the introduction of fish in his diet and was hospitalized in summer 2010.

He isfollowed by a family physician and has been assessed by allergists who have provided dietary and environmental recommendations toprevent or reduce the risk of adverse reactions. [37] The mother has managed the child’s health risks. She has researched and attended to his medical needs with physicians andallergists, and kept the father and his parents fully informed of the medical issues affecting the child and recommendations for his

safety.

She expressed concern that the paternal grandparents early on were not properly monitoring his diet but I am satisfied that the father and his family are now aware of and responding appropriately to the risk of an adverse reaction to food or environmental factors. [ 38 ] The mother has enrolled the child in care, and transitioned him to a pre-school program to help ease his integration into the public school system as he approaches kindergarten age. [ 39 ] In looking at the father-child relationship, I am satisfied that the child is also emotionally bonded to his father who is an important part of his life.

On the evidence, their father-son parenting time is full of affection, adventure and exploration, including sharing the father’s interest in custom cars, and enjoying golfing, ball sports and the beach. The father’s work

schedule means that the day to day care of the child is not possible for him on weekdays, and he must manage his parenting time on weekends. Even then, the father testified he is often worn out from work, and does rely on his own parents to help him parent the child for part of the weekend. [ 40 ] I am satisfied that each parent brings a unique set of emotional and experiential qualities to his or her role as the child’s parent and the child has benefitted enormously from their devotion and will continue to do so.

The Nature and Strength of Family Relationships [ 41 ] There are strong family bonds and extended family connections on both sides of the child’s family. I find that the child is fortunate to have his maternal grandmother and his paternal grandparents in his life. He has spent time in his paternal grandparents’ home on a regular basis and there is a settled routine where he has quality time with his grandfather in particular. [ 42 ] I find that the paternal grandparents are important to the child and a moderating influence on the father in his dealings with the mother, all of which is to the benefit of the child.

In particular, the child has a unique and close relationship with his grandfather which consists of their being “best buddies”, doing activities such as digging in the garden, going on excursions, feeding ducks and fish, looking at bugs under a microscope, and watching videos. [ 43 ] There is extended family outside the Metro Vancouver region on both sides and there are opportunities for building connections and friendships for the child as he develops. A child’s development is enhanced when his family roots and connections are expanded and strengthened.

The Child’s Need for Stability [ 44 ] One of the factors in determining the child’s best interests is his need for stability given his age and stage of development. The child has two households, two separated parents and two extended families. It is important for the child to maintain his strong connection to the mother’s household because she has the ability and capacity to carry out his daily routine with a minimum of disruption. She can arrange to get him to pre-school (and school when he is of school age), attend to his daily needs, and arrange for and attend his medical and dental appointments.

The father is on the road during the workweek and is not generally available to assist the child with day care or schooling schedules or other demands. [ 45 ] The father says that his lack of weekday parenting time should be made up on the weekends, long weekends, and on vacation times. He says the child has reached the stage where he should be able to vacation over extended days with him. He notes that the mother has travelled outside Vancouver on overnight trips with the child.

She says this was feasible because the child has regularly lived with her and there was no issue of separation between them during those trips. [ 46 ] The father wants to travel with the child to visit family in the United States on his parenting time. The mother has expressed concerns about the child travelling to the United States at this time because of his young age, his allergy risks, and because he has not been exposed to consecutive overnights away from her.

On one weekend away from her, she was not given an opportunity to have phone contact with their son, and he appeared to be emotionally overwrought on his return. [ 47 ] The father says that the mother is applying a different standard to him for extended travel than she applies to herself. He believes she is both inflexible and unreasonable about his desire to travel with the child to the United States. There is no question that the mother is anxious for the child and wants to be assured of his well-being and contentment when he is away for longer periods of time from her.

Her feelings of concern are understandable for any parent but they must give way to supporting the child’s time with his extended family in a reasonable and gradual process. [ 48 ] I find that an appropriately calibrated, graduated exposure of the child to short visits or trips, and then longer overnight visits should be the goal of both parents. It is a reality with extended family in other parts of the province and across the border that travel will be a component of the child’s future life.

In principle, there should be no reason why the child can not travel with either parent during their designated parenting time provided there is a gradual build up of overnights to acclimate the child when in his father’s care and if reasonable terms of travel are honoured. The Ability and Capacity of Each Parent [ 49 ] Both parents are loving and capable parents who desire to maximize their parenting time with the child. [ 50 ] As noted earlier, the mother has a better ability to organize, implement and accommodate to the child’s

schedule and needs by reason of her skill set and experience as the primary residence parent. [ 51 ] The significant impediment in the father’s ability to parent to the extent he would wish is his demanding and inflexible work schedule. He is not able to commit to any kind of weekday parenting responsibilities. He relies on his extended family or his parents

who can not always accommodate him to set the stage for his weekend parenting time. This leads to a level of uncertainty about the extent to which he could reliably and consistently meet the child’s daily needs. [ 52 ] Each parent also has limitations that were evident in listening and watching them in court, and in reviewing the evidence. Unhappily, there is a history of the parents engaging in emotionally reactive responses to one another in the presence of the child during transitions which is not beneficial for the child.

The mother finds conflict unsettling and stressful, but she has a capacity for self- reflection on how parenting might be improved if there were some peace between the parties. She withstood a significant period of cross examination by MH without losing her patience or control, and her responses were thoughtful and child-centred. [ 53 ] The father was not able to keep his emotions as firmly under control while listening to evidence and showed a much more self- centred focus particularly when addressing financial matters relating to the support of the child.

During his much shorter cross- examination, he very quickly showed his displeasure by pronouncing that he found the questions “disgusting” in response to a fairly routine and unaggressive line of questioning by counsel. Cooperation between the Parents [ 54 ] There has been poor cooperation between the parents that has roots in their separation and their personality make-up and response to conflict. The grandfather LH summarized it well when he said that “they can’t get along, I wish they could – they are both good persons here”.

The Mother’s Position [ 55 ] The mother testified that she has always wanted to have the father involved in their son’s life but the father’s personality and inability to approach problem solving in a respectful fashion eroded her willingness to the point of shutting down. She testified that she sought out a counsellor or mediator under her benefits plan and willingly agreed to the father having parenting time 3 days a week in early 2010.

She said the father’s volatility increased to the point she felt insecure and unsafe and she retreated from having to deal with him face to face. [ 56 ] She testified that there remain very significant communication problems between the parents. She tries to communicate about parenting issues with the father in advance but he has a consistent pattern of refusing to acknowledge or respond to her emails.

The father agrees that he does not like to use emails, and he also agrees that he relies on his mother MH to do many written communications on his behalf. [ 57 ] The mother alleges that the father has treated her disrespectfully, such as calling her a “douche bag” in front of the child or speaking of adult matters in front of their son such that he told her that “dada says you are mean to him”. In particular, the mother believes that the father fails to grasp the importance of affording their child a normalized peaceful transition of parenting time between the parents.

Handing over care of the child to the father has been met with a rushed impatience, with little or no time for placing their son in his car seat or a calm kiss goodbye. [ 58 ] On the other hand, the mother has many positive things to say about the child’s paternal grandparents including that their involvement has been a moderating force over the father’s temperament. They do facilitate her contact with the child when he is in their care, which the father does not when he alone is parenting the child.

The mother’s main concern is that with the father’s demanding work schedule, he does not have the capacity to parent for the periods of time he wishes to have the child in his care, and relegates many of his parental responsibilities to his own parents. [ 59 ] For the mother, the child has a life and a community which embraces and involves him. She has tried to be inclusive of the father’s family but they have not taken up her invitations to attend birthdays, field trips or day care events. She says they would be welcomed into the child’s life if they choose to participate.

The Father’s Position [ 60 ] The father maintains that the mother is not flexible about accommodating his parenting time in accordance with his work

schedule or when he wishes to have the child for special family occasions. He says that she has not adhered to the specified parenting

schedule and has unfairly deprived him of valuable parenting time. He points to a number of failings on her

part in adhering to the Consent Order which he says shows her contempt of the order. I will focus on changes to specified parenting time and the child’s name change process. Pre-School [ 61 ] On the issue of the child’s education, I accept that the parents made a joint decision to enrol the child in daycare at [omitted for posting] in 2010. This decision was made in the child’s infancy to allow the mother to return to work in October 2010. It is a full daycare program open Monday through Friday from 7:30 a.m. to 6 p.m. [ 62 ] The child has been attending the[omitted for posting] day care facility since infancy.

It is close to his mother’s residence, and has an attached pre-school program for 3 to 5 year old children. In July 2012, after the child attained age 3, the mother sought agreement from the father to enrol the child at a special transition program for pre-schoolers available on Fridays, a day on which the grandparents

had scheduled parenting time. [ 63 ] On the evidence adduced at the hearing, I find that the mother attempted to engage the father in discussions about the benefits of enrolling the child in the transitional pre-school program. I accept the mother’s evidence that she asked the father to consider the pre- school enrolment as vital to the child’s development but he essentially ignored her and sought to maintain the Friday contact by the grandparents.

The father testified that he did not believe the child needed the pre-school program and was rather dismissive about it. [ 64 ] Not reaching an agreement, and believing it to be in the child’s best interest, the mother made a unilateral decision to enrol the child in the Friday program in the same complex to assist with transitioning him from day care to pre-school.

She explained, and I accept as fact, that she offered compromises on the affected parenting time by providing alternative times, but was rebuffed. [ 65 ] I am entirely satisfied that transitioning a child to pre-school in graduated steps is a good parenting decision. Becoming comfortable with a new program is important for the child and is vital to introducing him to a structured routine which engages him intellectually and socially.

It exposes him to play, learning, develops social skills, and builds learning skills with a cohort of students with whom he is familiar and who are his friends. [ 66 ] It is unfortunate that the mother did not file an application to court seeking to vary the specified parenting time for the father and grandparents. In the result, the mother made a unilateral change in parenting time which effectively suspended Friday access to the grandparents.

Soccer Sundays [ 67 ] Another area of dispute is that the mother enrolled the child for soccer Sunday mornings from 9 – 11 even in the face of the father’s objections and its clear adverse impact on his alternating Sundays parenting time. The father says the mother was running interference with the child attending church on his parenting time. I find that it was not open to the mother to enrol the child in a recreational program which affected the father’s parenting time. It puts the father in an invidious position of denying the child a chance to take

part in an enjoyable recreational activity or denying oneself the right to make one’s own parenting decisions on one’s parenting time. Name Change [ 68 ] The child was registered on his birth certificate as bearing the father’s surname or family name. The mother said she wished to have her surname appended to the child’s legally registered name because she registered him under a joint family name at the start of school. The evidence is that the mother emailed the father on March 5, 2012 to advise she wanted to legally change the child’s name and sought his consent.

If his consent was not forthcoming, she advised she would proceed to seek a waiver of consent. She said the father did not respond to her inquiry but the father says he was not properly informed. [ 69 ] In July 2012 the mother filed a statutory declaration stating she asked the father to sign the forms but he refused. She asked that the father’s consent be waived. [ 70 ] The father says that the mother caused the child’s surname to be changed through omission or deception. He seeks an order reversing the name change. [ 71 ] There is nothing deceptive about the mother’s approach to the name change.

The evidence shows she told the father in writing of her intended application to the department of Vital Statistics and sought his consent. She testified at the hearing that she forwarded to the registrar information on where the father could be contacted for his views. She did indeed forward his mobile phone number and his email address, the modes of contact she had used when attempting to communicate with him. [ 72 ] The mother said she had reason to believe the father’s consent was being unreasonably withheld, and she gave the father’s contact information available to her to Vital Statistics.

She believed they followed their own protocol and he did not respond to them. She went ahead with the name change application. [ 73 ] I must infer that the Ministry did forward notice by email to the father following its own notification processes. The required notification information includes email, and email was a usual course of communication if and when the father chose to avail himself of it. The father has admitted that he chooses not to read email, particularly if from the mother.

The mother cannot be held to account for any ignored email or any omission on the part of Vital Statistics. [ 74 ] I do not accept in the face of clear written notice of the mother’s intentions that there was any deception on the part of the mother in the steps she took as permitted under law. Contempt Application [ 75 ] I am satisfied on the evidence that the mother changed the Friday access to enrol the child in a pre-school program. I am also satisfied that the mother enrolled the child in extracurricular activities on part of the father’s Sunday parenting time without his consent.

I accept that these were significant and unilateral changes that adversely affected the father’s relationship with the child in that it impinged on his right to be consulted about impacts on his actual parenting time. [ 76 ] What is in dispute is whether the mother made unilateral changes to the parenting

schedule to wilfully deny the father his parenting time, thereby being in contempt of court. [ 77 ] An allegation of contempt is serious, and a hearing to decide the issue is a quasi-criminal process. The applicant must prove beyond a reasonable doubt that the parent’s conduct amounts to contempt: Bhatnager v. Canada (Minister of Employment &

Immigration), (SCC), [1990] 2 S.C.R. 217 at 229. Proof beyond a reasonable doubt is proof to a near certainty and therespondent is entitled to the benefit of any doubt. [78] The intent component permits the court to assess whether a reasonable degree of diligence was exercised to follow the courtorder. [79] I am satisfied that the mother did try to provide substitute parenting time to allow for the pre-school enrolment. The change wassought for reasons of good faith and not done maliciously or out of ill will with the object of defying the order.

I am also satisfied thatthe Sunday impingement by soccer of 2 hours of the father’s time evidenced poor decision making but the father was still able tocontinue with parenting on that day. [80] Not every act by a parent against the interest of the other or a term of the court order amounts to contempt. Otherwise, thecourts would be clogged with unending contempt applications because parents make poor or mistaken decisions.

After considering theevidence and explanations provided by the parties, I find that the applicant has not met the high threshold of showing beyond areasonable doubt that the mother’s conduct amounts to civil contempt of court. [81] The father asks that the court order the mother to consent to changing the name back to the child’s original legal name. Inessence, the father seeks an order pursuant to s. 4.1 of the Vital Statistics Act, R.S.B.C. 1996, c. 479 (the “VSA”) which provides that acourt may, upon an order declaring parentage, order that the registration of a child's name be changed.

The Supreme Court has exclusivejurisdiction in matters respecting name changes under the VSA and the remedy of the father lies in that court or under any reviewprovisions of the Name Act RSBC 1996 c. 328. Religious Instruction [82] Both families are of the Christian faith.

On the father’s parenting Sunday the child has occasionally gone to church with hisfather but attends more regularly with the paternal grandparents who have strong ties to their church and its congregants. [83] The mother seeks an order that the child not be exposed to formal religious instruction by the father or the child’s paternalgrandparents. [84] She expressed concerns about doctrinal differences which are rooted in a more traditional and conservative religious world viewon the grandparents’ side.

She was raised in the United Church of Canada and describes the father’s to be a fundamentalist Christianchurch. The mother notes that the father was not an adherent when they met, and he is not a regular congregant of his parents’ church atthe present time.

The mother notes that, against her expressed wishes, the grandparents have taken on the role of instructing the child inreligious matters. [85] She prefers that she and the father explore and mutually agree to a place of Christian worship for the child, or that the child beleft to informally explore various Christian churches until he is old enough to make a decision for himself on his faith and place ofworship.

She is opposed to any religious instruction until the child is 6 to 8 years of age but does not object to social events at thefather’s church. [86] Failing a common agreement on what type of religious instruction the child should receive, the mother asks that her wishes berespected and she be permitted to make all parenting decisions about the child’s religious upbringing and instruction. [87] The father admits he does not attend church every Sunday but his own parents are closely connected to their church.

It is thefather’s wish to have the child attend the children’s program at the church. [88] The paternal grandfather testified about the role of the church and the grandparents’ beliefs. He noted that the child’s parentsare both adherents of the Christian faith and believe in the message of the Bible. He testified that his church does not believe in originalsin but does teach about guilt and accountability. With respect to the child’s attendance, the children’s program does not have anyformal instruction. It allows children to sing, hear Bible stories, and do crafts.

The membership at the church is by choice made onreaching an age of accountability which is usually in the mid-teens or older. There is no pressure on a person to join as it is a voluntaryand personal decision. As an example, his own son (the child’s father) was never integrated as an active member, does not regularlyattend church and was for a time completely disengaged from any involvement with the church. [89] The role of the courts in family disputes about religious matters is generally non-interventionist unless there is cogent evidenceof substantial harm to the child. As noted in H.(B.) v.

Z.(S.), (ON CJ), [2000] O.J. No. 4601, 2000 Carswell Ont4641, it is not for the courts to choose between religious practices of the parents. Citing the decision of Young v. Young (1993), (SCC), 49 R.F.L. (3d) 117 (S.C.C.) at p. 120 the court noted: The custodial parent does not have the right to determine whether limits should be placed on access. His or her obligation make basicchild-rearing decisions does not mean that an access parent of a different faith should not share his or her religion with a child. [90] In Young v.

Young at page 122, the Supreme Court said: The best interests test should be interpreted as permitting the right to freedom of religious expression to be overridden only if itsapplication leads to consequences that are more significant than inconvenience, upset, or disruption to the child and, to a lesser extent,the custodial parent. The child has the right to have a meaningful relationship with both parents. Consequently, each parent should beallowed to involve the child in the different aspects of his or her everyday life.

Parental rights should be shared following marriagebreakdown and the traditional notion of the custodial parent having full control over the child is no longer appropriate. The best interests

of the child test is, in general, to be applied. When it is used to restrict religious expression, however, risk of substantial harm is not only an important factor, but must be shown. [ 91 ] I understand the mother’s desire to inculcate religious values in the child that are inclusive and non-judgmental of persons of differing faiths and practices.

I listened carefully to the evidence of the father and his own parents, and I saw no evidence to suggest that their involvement of the child in their church’s children’s programs amounted to harmful indoctrination or otherwise posed a risk of substantial harm to the child. I accept that it will be up to the child when he reaches an appropriate age to choose if he wishes to formally join this or any other church or faith.

The fact that the father did not is proof that there is a voluntary choice. [ 92 ] In the marketplace of religious ideas and faiths, each parent has the right to expose the child to his or her beliefs and to engage the child in a respectful examination of what that faith means and teaches. The mother has an opportunity to also discuss religious matters with the child that are in line with her values and thinking. There is no basis in law to dictate to a parent on his or her parenting time what religious faith or practices the child should be exposed to merely because the other parent fundamentally disapproves.

Guardianship [ 93 ] Section 39(1) of the FLA provides that: 39

(1) While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian. [ 94 ] On the undisputed evidence that the mother and father lived together with the child after his birth, albeit for a brief period of time until their separation, they are at law guardians of the child. [ 95 ] By virtue of operation of law, I am satisfied that each parent is a guardian of the child under s. 39(1) and s. 51 (

a) of the FLA . Testamentary Guardian [ 96 ] Under s. 53(1) of the FLA a guardian may appoint a guardian to act upon his or her death. An appointment of a testamentary guardian may be made by will or by Form 2 under s. 53(1). Appointments made by Form 2 must be signed in the presence of two witnesses, neither of whom are the appointed guardian (s. 53(1). [ 97 ] The mother does not need permission of the court to appoint her sister as a testamentary guardian because she can do so by virtue of the provisions of the FLA .

To the extent that the court is required to opine, I accept and find that making such a provision for a guardian in the event of the death of a parent and guardian is in the best interests of the child. It preserves the maternal family connections for the child. There is no basis in law for the father to oppose such a designation. He is also able to appoint his own testamentary guardian.

Parenting Arrangements and Responsibilities [ 98 ] Under the law, guardians of a child are charged with responsibility for the child’s care, control and supervision including the attendant duties and obligations arising from the exercise of their parental responsibilities, as defined under s. 41 of the FLA .

A guardian is obliged to exercise his or her parental responsibilities in the best interests of the child: s. 43(1) FLA . [ 99 ] On an application by a guardian, a court may make an order about parenting arrangements, being the allocation of parental responsibilities ( s. 41 ) or parenting time (s. 42) between separated parents. Such an allocation must be made after considering only what manner of arrangements is in the child’s best interests ( s. 37 ). This means that the approach of the court in deciding this issue is child focused and child-centered.

The parent’s convenience or preference is not at the forefront in deciding these issues unless it is consistent with, addresses and meets the child’s best interests. [ 100 ] I now turn to what parenting arrangements are in the child’s best interest having regard to his needs and circumstances and the ability of each guardian to exercise his or her parental responsibilities. [ 101 ] The father says his demanding and at times unpredictable work days requires more flexibility in facilitating last minute changes to extend or shorten his parenting times depending on his availability.

In my view, the parties have a history of not consulting with each other or communicating productively with the objective of making mutually satisfactory changes in parenting time or schedules. [ 102 ] The lack of cooperation and communication between the parents suggests that there should be structure and specificity of parenting time and parenting arrangements. Such a defined parenting road map leaves little room for disagreement but provides little flexibility to accommodate real life, real time events. [ 103 ] The pattern of non-communication or poor communication suggests that a predictable

schedule is required for there to be consistency and harmony in parenting. Such a

schedule will be paramount and will permit very little flexibility until the parents show that they can agree to work consultatively and cooperatively for the benefit of their child and for their mutual benefit. Consultation does not mean that a request once made must be rubber stamped as approved simply because a parent has time and the activity will involve the child – it means approaching the other parent with reasonable notice and fully understanding that he or she will have their own

obligations and life demands that have to be managed around fixed parenting schedules that may not be easily or readily changed. [ 104 ] In examining the practicalities of meeting day to day needs of the child given the parents’ work responsibilities, I am satisfied on a balance of probabilities that the father is not able to exercise equal parenting time in the full measure of what such parenting requires.

This means being available during the weekdays to feed and clothe the child, pick up and drop off the child at school, arrange for extracurricular activities, do laundry, shopping for the child, or to attend to a myriad of large and small needs that parenting a child involves. Equal parenting time is not feasible and would not be in the child’s best interests.

The mother is best able to provide for the child’s needs and I find it established on a balance of probabilities that she should be the primary residence parent of the child for reasons of stability and continuity of care. [ 105 ] The fact that the father does not have the ability to provide care during the work week does not mean that it is in the child’s best interests that the father’s parenting time should be the majority of the weekends. [ 106 ] The type of parenting during the work week, with ferrying the child to and from school or care, shopping and preparing meals at the end of a busy work day, and getting the child and oneself ready for the next work day is not the same as parenting, playing and socializing in a more relaxed fashion on a non-work or non-school weekend.

Indeed, the father testified that he was often worn down with work, and he used his alternating non-parenting Sundays simply to relax. I do not accept that the father has the capacity, with or without his parents’ assistance, to have the child in his care on the majority of the weekends. [ 107 ] I have determined on the basis of the evidence that each parent will have parenting time as specified below.

During his or her parenting time, each parent will have the right to make day-to-day decisions affecting the child and shall have day-to-day care, control and supervision of the child. [ 108 ] The mother will make decisions respecting routine health and dental treatments and educational needs of the child with notice to and consultation with the father about significant decisions in these areas. [ 109 ] Each parent will have the obligation to advise the other of significant matters relating to the health or wellbeing of the child arising during the parent’s parenting time. [ 110 ] Each parent will have the ability to obtain information and updates from third party educators, health care providers and care givers unless the information is required to respond to an emergency in which case the parent having the information will forthwith provide a copy or

summary to the other parent. [ 111 ] Each parent is obliged to work collaboratively and respectfully with the other parent to resolve unforeseen issues relating to parenting time or parenting arrangements, failing which the parties must refer the matter to a determination by a parenting coordinator under sections 14-18 inclusive of the FLA and jointly share the costs of this service. [ 112 ] Neither parent shall

schedule any extracurricular activity for the child that takes place on the other parent’s parenting time without the written consent of the other parent to the activity and its schedule.

The parent scheduling the activity shall bear the costs of that activity. [ 113 ] The father shall have alternating weekend parenting time with the child commencing on Friday August 1, 2013 after pre-school or school to Sunday evenings at 6 p.m. unless the Monday immediately following is a statutory holiday in which case he may extend his parenting time to the holiday Monday. [ 114 ] The father may arrange to have specifically designated and authorized persons, including his parents or his brother JH, pick up the child from pre-school/school on his parenting Fridays and the mother will consent to these designates being added to the list of family members authorized to pick up the child from pre-school or school. [ 115 ] In the event the father or his authorized designates are unable to pick up the child for Friday night parenting, he must give at least 24 hours written notice by text of such inability and may pick up the child Saturday morning at 9 a.m. for his weekend access overnight to Sunday evening.

There shall be no make-up time for missed Friday parenting time due to non-pick up of the child. [ 116 ] The father may have one mid-week overnight every other week with the child provided he or his designates pick up the child from pre-school or school and drop off the child the next morning at his pre-school or school. [ 117 ] Commencing in November 2013 and each year thereafter, the father will have parenting time over the US Thanksgiving Holiday from Wednesday to Sunday, being November 27 to December 1 inclusive, and may travel with the child to the United States on terms as specified below.

This period is in substitution for one of the father’s parenting weekends in the latter half of November and not in addition. The father may have his parents or authorized designate facilitate travel for his US Thanksgiving parenting time with the child. He must give at least 7 days written notice of his decision to waive taking US Thanksgiving time. [ 118 ] Commencing in 2014 over the calendar year, the 6 long weekends with a defined statutory holiday on Monday each year [Family Day, Victoria Day, Canada Day, B.C.

Day, Labour Day and Canadian Thanksgiving] shall be allocated such that each parent will have a total of 3 such long weekends in a calendar year, unless the parent waives the right to the holiday Monday by sending written notice at least 7 days in advance.

If a total of 3 holiday Mondays do not fall naturally on a parent’s weekend time in a calendar year, the parties will have to adjust their weekend parenting schedules to provide the next long weekend, or provide a 3 day weekend in lieu, to the parent who has not enjoyed an equal number of long weekends unless he or she waives this adjustment. [ 119 ] The parents shall share equally Christmas Day, Boxing Day, and Easter Weekend and Spring Break each year.

The parents will allocate New Year’s Day and Remembrance Day equally between them with each parenting on one or the other. [ 120 ] The parents will accommodate the other parent to have parenting time for the mother on Mother’s Day and for the father on Father’s Day if these Sundays do not fall on the celebrant parent’s parenting weekend. The parents will share the child’s birthday.

[ 121 ] A parent waiving or declining scheduled parenting time must give reasonable notice in writing to the other parent and such time is not subject to make-up time unless the other parent consents. [ 122 ] Notice in writing may include notice by text or emails, and must be acknowledged and responded to within 24 hours. Telephone Contact [ 123 ] The parent having parenting time with the child must facilitate telephone contact between the child and the other parent between 6:30 p.m. and 8 p.m. each day.

Passport [ 124 ] Within 30 days of this order, both parents will sign any required consents for the child’s passport, including an Application for a Passport, and will share equally the regular cost of obtaining the passport. The mother will submit the application and will retain custody of the child’s passport. On the request of the father, the mother will forthwith transfer custody of the passport for purposes of travel and the passport must be returned to her at the time the child is returned to her care.

Vacation Time and Travel [ 125 ] For 2013 either parent may have up to 5 consecutive overnights vacation time with the child provided at least 21 days written notice is given, which notice period may be shortened or waived by the written consent of the other parent. [ 126 ] Commencing in 2014 and annually thereafter, twice in the calendar year either parent may have up to 7 days of consecutive overnight parenting time with the child for vacation, including travel with the child, provided that the parent gives at least 30 days written notice to the other parent, which notice may be shortened or waived by the written consent of the other parent. [ 127 ] In any event, any such vacation time must not fall on the other parent’s weekend parenting time, or designated shared holiday time unless otherwise agreed. [ 128 ] The notice of intended vacation or travel must include the dates of travel, destination address, phone, and contact persons, and date and expected time of return. [ 129 ] Either parent may travel with the child across the Canada USA border on short day trips [less than 48 hours] on their parenting time without notice to the other parent however such notice would be a courtesy. [ 130 ] Each parent must ensure that the child has reasonable health insurance and travel insurance coverage for travel outside British Columbia and must provide proof of same to the other parent before embarking on travel. [ 131 ] Neither parent may unreasonably withhold any written consent required of a parent by the Canada Border Services Agency to permit the other parent to travel with the child on the travelling parent’s parenting time if the travel is consistent with the vacation time limits, day trip limits and other travel terms under this order.

Contact with grandparents and extended family [ 132 ] The contact sought by the paternal grandparents must be subsumed or taken from the father’s parenting time. Although they are loving, devoted and generous grandparents with whom the child is closely bonded, there will be no order specifically allocating contact time to the grandparents. It is not in the child’s best interests to manage separate parenting schedules for the father and the grandparents.

They live near the father and can ensure that their involvement and contact with the child continues through their ongoing support of the father’s parenting, as they have done unfailingly in the past. [ 133 ] In my view the above

schedule of alternating weekend and mid-week parenting time, US Thanksgiving Holiday, up to 5 days of vacation in 2013 and two 7 day blocks of vacation time in 2014 provides a reasonable opportunity for the father to parent the child. It allows him to arrange for visits between the child and extended family in Canada and the USA. Of course, it is also the obligation of extended family to travel to visit the child and to share the burdens of travelling in the child’s best interests. [ 134 ] This order provides very little flexibility to accommodate

schedule changes caused by life or work demands, or family celebrations, unless both parents dedicate themselves to making these parenting arrangements work effectively going forward and thereby build a foundation of good will and trust on which to secure mutually agreeable scheduling adjustments. Good Faith in Parenting [ 135 ] It is important to note that courts take seriously any interference with or loss of parenting time caused by the conduct of the either parent. [ 136 ] D.L.S. v. R.S., 2012 BCSC 977 , affirmed on appeal 2012 BCCA 406 noted that interference with parenting time is as serious as

loss of parenting time, stating as follows: [172].. [A] pattern of conduct by the other parent that interferes with or disturbs the child's enjoyment of their parenting time with a parent is no less serious than conduct depriving them of it altogether.

This is because such conduct interferes with the parent's ability to devote time and attention to the child, which is clearly in the child's best interests, and it exposes the child to parental conflict, which clearly is not ... [ 137 ] Behaviours by parents that impair the child’s ability “to receive and enjoy the other parent's love, companionship, and instruction” is against the child's best interests and may result in changes in parenting arrangements. Child Support and special and extraordinary expenses [ 138 ] The parents separated in 2009 but the mother did not seek basic child support until 2011.

The father was not employed for a period of time after separation, and did not regularly earn an income until around May 2011. [ 139 ] The mother quite correctly contends that the child still required the necessaries of life whether or not the father was working. She shouldered those financial responsibilities. She seeks a child support payments commencing retroactive to May 2011. [ 140 ] The father says that the Interim Consent order binds the parties and is a go-forward order. He states that it provided for a mid- year review in 2012 and a mid-year adjustment going forward.

He states that no retroactive award from May 2011 should be made, and that a child support award from July 1, 2013 should be on his current earnings. [ 141 ] The father is employed in the transportation industry and is entitled to a deduction for transportation related employment expenses before his child support guideline income is determined.

The father has provided his income and adjusted employment expense income calculations to the court. [ 142 ] Under the interim Consent order, the father was fixed with an annual income of $36,000 and his child support payment was set at $334 per month to commence on October 1, 2011. [ 143 ] The father paid $334 per month for the last 3 months of 2011 [total $1,002] and the first six months of 2012 [$2,004]. [ 144 ] On July 1, 2012 he reduced his payments from $334 to $212.71 because his annual guideline income in 2011 was less than the estimated $36,000, being only $22,759.

He had only worked 8 months that year, May to Dec 2011, and not the full year. [ 145 ] Although he was fully employed in 2012 and knew his projected income for 2012 was significantly higher than $22,759 earned for 2011, he reduced his payments from $334 to $212.71 monthly commencing in July 2012 based on his 2011 income. The father’s annual guideline income for 2012 was in actual fact over $50,630 after adjustments for employment related expenses for the 2012 calendar or tax year. [ 146 ] For the $50,630 earned in 2012, his monthly child support obligation was $464.05.

As noted, he paid $334 for half the year and then $212.71 on and after July 1, 2012. The father has resisted paying his lawful child support. The mother said he told her that requiring support was “stealing from him” and at trial said retroactive child support would “ruin me” and that “it is not in the child’s best interests to put the father in a financial struggle”.

As the figures will show, which does not appear to be acknowledged by the father, the mother has shouldered a large burden of the financial costs of raising the child with little voluntary payment by the father on his basic support until ordered, and no contribution to special and extraordinary expenses. [ 147 ] I find the father’s view of child support payable under the Interim Consent Order to be in error. The purpose of an interim support order is to maintain some form of child support until the matter can be reviewed and adjudicated in a final order. An interim order is always reviewable.

If such was not the case, no interim consent order would be possible as parties would not want to lock themselves into a de facto final order without a full review of all the relevant factors. The court retains a jurisdiction to review and adjust a child support order under the Federal Child Support Guidelines (SOR/97-175 as am.). [ 148 ] The objectives of the Guidelines include “establish[ing] a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation ”: s. 1 (

a) of the Federal Child Support Guidelines . The financial means includes the annual guideline income as determined under the Guidelines. [ 149 ] In my view, the review date under the Interim Consent Order does not set the period over which the adjustment is to be calculated.

I find it contrary to the spirit and intent of the Federal Child Support Guidelines not to use the tax year, along with the income calculations as confirmed by the Canada Revenue Agency in the Notice of Assessment for the particular tax year, to calculate the annual guideline income of the payor and to fix his monthly payment obligations on that basis. [ 150 ] The proper method of calculating child support is as follows: Year Father’s Actual Income Adjusted Income Monthly Guideline Amount Total yearly Amount payable Paid 2011 $24,907 $22,759 $196.38 $ 589.14 $1,002.00 2012 $54,727 $50,630 $464.05 $5,568.60 $2,278.26

2013 Jan. to June 30 $54,000 projected $50,000 $458.00 $2,748.00 to June 30 $1,276.26 Total $8,905.74 $4,556.52 Shortfall ($4,349.22) Special and extraordinary expenses [ 151 ] The mother seeks the father’s proportionate share of special and extraordinary expenses including day care costs. [ 152 ] The largest such expense is day care and pre-school for the child.

The expenses are necessary because they permitted the mother to return to work and earn an income to support herself and the child. [ 153 ] The mother’s gross annual line 150 income is in the range of $92,517. [ 154 ] The father takes issue with the mother’s failure to file a timely tax return for 2012 and to provide the necessary calculations under s. 7(3) of the Federal Child Support Guidelines . This

section refers to the fact that tax rules allow a taxpayer parent with certain child-related expenses such as day care to deduct those expenses from her income which in turn may reduce the amount of income tax the parent has to pay on gross income earned.

The amount of “tax relief” granted to the parent as a result of the allowable deduction must be subtracted from the total cost of the “special expense” so that only the net expense is payable by the payor in his proportionate share. [ 155 ] The father asks to court to punish the mother for not complying with the s. 7(3) calculations by not filing her tax returns in a timely fashion or preparing the required tax schedules to calculate the tax relief benefits in advance of trial. [ 156 ] I am not prepared to accede to the father’s request to draw an adverse inference against the mother or to hold her in contempt.

I would note that the father’s financial support of the child has been less than exemplary. There is no doubt as to the mother’s gross income or that she paid the child care expenses.

The only question is the matter of the tax relief received by her to reduce the gross day care expense to a net expense (a very modest adjustment overall), and what amount of benefits to attribute to her total annual income. [ 157 ] In my view, the information provided by the mother to the court in closing submissions adequately sets out the gross cost of special expenses, the reduction in income taxes available to her from the deduction of the expense from her income, and tax savings received and credited to the total cost of the claimed expense to reduce it to a net expense. [ 158 ] The tables are as follows: Year Mother’s Income Father’s Adjusted Income Pro-Rata Share Mother / Father 2011 $93,370 $22,759 76% / 24% 2012 $93,717 $50,630 65% / 35% 2013 $93,717 $50,000 65% / 35% Year Gross Child Care Expense Net Child Care Expense after tax savings Mother’s Share Mother’s Amount Paid Father’s share Father’s Amount Claimed 2011 $14,260 $11,537 76% $8,768 24% $2,768 2012 $12,090 $ 9,347 65% $6,075 35% $3,271 2013 $ 9,840 estimated $3,500 to June 30 – [$7,000 for the year] 65% $2,275 to June 30 35% $1,225 to June 30 TOTAL $36,190 $24, 384 $17,118 $7,264 [ 159 ] I next turn to whether the claimed expenses are payable in whole or in part.

[ 160 ]

Section 7 of the Federal Child Support Guidelines (SOR/97-175 as am.) states a court may order an amount to cover all or any portion of the enumerated expenses, and shall consider the following criteria [emphasis added]: (

a) the necessity of the expense in relation to the child’s best interest (

b) the reasonableness of the expense having regard to (

i) the means of the spouses (ii) the means of the child (iii) the family’s spending pattern prior to separation. [ 161 ] Child care expenses incurred by a parent to undertake paid employment are special expenses within the meaning of the Guidelines. [ 162 ] The application for special and extraordinary expenses was filed by the mother on October 12, 2012. It was sought one year after the interim consent order fixing child support. [ 163 ]

Section 3 of the Guidelines sets forth the presumptive rule that the amount of child support provided for in the tables, together with any “add ons” under s. 7 for special or extraordinary expenses, is the amount which the payor is required to pay for children under the age of majority. This presumptive rule is a rebuttable rule if a parent can establish that the amount he or she is required to pay under the table would cause “ undue hardship” : s. 10(1) of the Child Support Guidelines . [ 164 ] I am satisfied that the day care expense is necessary, and it is reasonable in all the circumstances.

There is little evidence of spending patterns before separation, because they lived together very briefly. [ 165 ] The issue is whether requiring the payment of the whole or part of the day care expense would pose undue hardship on the father. [ 166 ] The threshold for establishing undue hardship, if pleaded, is high because both parents have an ongoing legal obligation to support their child and to arrange their financial affairs in a manner that places the child’s needs in priority to the discretionary spending of the parent.

I am not satisfied that the father has shown hardship that is “undue”, defined as being excessive or inordinate hardship on the evidence adduced. [ 167 ] The court does retain a discretion to determine what amount of special expenses, whether any or all, is payable under s. 7(1) of the Guidelines. [ 168 ] The means of the parties are quite disparate, with the father having to work a significant number of overtime hours to earn a living that does not approximate what the mother has earned and is earning.

The mother has recognized this in part, and to maintain peace, did not seek a contribution until in the latter stages of litigation and in response to the various applications filed by the father and his parents, including allegations of contempt. [ 169 ] In my view, it would not be reasonable to require the father to pay his actual proportionate share of the special expenses from the start of day care in 2010 or 2011 given his reduced means in contrast to that of the mother’s means, and because these expenses were not sought from the outset.

In exercising my discretion, I order that the father’s contribution towards child care expenses shall be 30% of the annual net amount of day care commencing January 1, 2012 to June 30, 2013 and thereafter until further court order. [ 170 ] As the chart below makes clear, the mother has paid in excess of $24,000 in child day care and pre-school.

The father’s liability to pay retroactive day care expenses have been significantly reduced to $3,854 leaving over $20,000 to be borne by the mother summarized as follows: Year Gross Child Care Expense Net Child Care Expense after tax savings Father’s proportionate share Father’s Amount Due Reduced to 30% 2011 $14,260 $11,537 24% $2,768 -- 2012 $12,090 $ 9,347 35% $3,271 $2,804 2013 $9,840 est. $ 3,500 to June 30; est. $7,000 for year 35% $1,225 to June 30 $1,050 to June 30 TOTAL $38,440 $24,384 $7,264 $3,854 - s. 7 arrears

Summary of Support Orders [ 171 ] I conclude and find as follows: 1. The father is liable for payment of child support from May 2011 to June 30, 2013 based on his annual guideline income for child support for 2011, 2012 and 2013 as set out in these reasons for judgment [see para. 150]. 2. His arrears of child support from May 2011 to June 30, 2013 are assessed at $4,349.22. His arrears of special and extraordinary expenses are assessed at $3,854, for total arrears of $8,203.22. 3. The father’s income for 2013 for purposes of the Federal Child Support Guidelines is fixed at $50,000. 4.

His table amount of child support payable commencing July 1, 2013 and on the first of each month thereafter is fixed at $458 per month. 5. Also commencing on July 1, 2013 the father shall contribute to the arrears at $142 per month until the arrears are satisfied in full. 6. His total monthly payment of arrears ($142) and child support ($458) is $600 per month. 7. Upon being provided with proof of payment for day care or pre-school expenses, the father shall contribute 30% of the net expenses after all deductions and benefits. 8.

Commencing in 2014 the parties shall exchange income documents for the previous year, including T4’s, filed income tax returns, applicable tax schedules, and notices of assessment on or before July 31, 2014 and on or before July 31 of each subsequent year until further court order. 9.

Commencing in 2014 the parties shall review child support paid the previous calendar year and if the payor’s income for the previous calendar year is more than the table amount on which child support was paid, he shall pay a retroactive adjustment of child support which will be the difference between the amount of child support paid the previous year and the amount that should have been paid pursuant to the federal Child Support Guidelines with such retroactive payment to be paid in full no later than October 31 of each year of the review.

If there has been a significant and permanent decline in the income of either parent, then they may adjust the payments accordingly by consent agreement or seek a court order after review of same. 10.

With respect to special and extraordinary expenses paid the previous calendar year, upon proof of payment, the parties will review and adjust their respective proportional share of any such expense, net of subsidies, benefits, tax deductions or credits, and payable in proportion to the annual guideline income of each parent as defined under s. 7 of the Child Support Guidelines no later than October 31 of the year of the review. [ 172 ] Counsel for the mother shall draft the terms of the order for approval by the court.

The parties signatures are hereby dispensed with. ____________________________ The Honourable Judge H.K. Dhillon Provincial Court of B.C.