S.J.D. v. S.A.G. Date:, 2015 BCPC 370

Citation: S.J.D. v. S.A.G. Date: 20151124 2015 BCPC 0370 File No: F64755 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.J.D. APPLICANT AND: S.A.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on their own behalf: S.J.D.

Appearing on their own behalf: S.A.G. Place of Hearing: Nanaimo , B.C. Date of Hearing: June 11, 2015 Date of Judgment: November 24, 2015 Introduction [ 1 ] S.J.D. and S.A.G. married on July 8, 1995. They separated on August 1, 2010.

They are not divorced. [ 2 ] A number of matters arising out of their marriage and their subsequent separation were dealt with pursuant to a detailed separation agreement dated the 16 th of November 2011, signed by the parties following the receipt by each of independent legal advice and which was thereafter filed with the Provincial Court on March 21, 2012 (the “Separation Agreement”). [ 3 ] Notwithstanding a specific provision contained within paragraph 37 (2) of the Separation Agreement, stipulating that the Supreme Court of British Columbia has exclusive jurisdiction with respect to the Separation Agreement, the parties have agreed to have certain of their present differences as detailed in cross applications dealt with in the Provincial Court of British Columbia. [ 4 ] Those differences now before this court relate to the quantum of child support, the quantum of spousal support, and the variation or retroactive variation of each type of support.

A hearing was held on June 11, 2014. Both of the parties were self-represented at the hearing and apparently did not have legal advice, except possibly through the justice access centre, in the preparation of their court applications and their replies. They were also self-represented during the hearing. No case authorities were presented to the Court nor were any sections of the Family Law Act referred to nor were any specifically relied upon by the parties.

General Overview [ 5 ] The matters dealt with in the Separation Agreement between S.J.D. (hereinafter referred to as the “Father”) and S.A.G. (hereinafter referred to as the “Mother”) include but are not limited to:

a) an arrangement for joint custody and guardianship of their three Children (as described below),

b) an equal shared parenting arrangement for the Children alternating their residence between the Parents on a week on/ week off basis,

c) payment of child support, including provisions for review of child support by May 31 st of each year commencing May 31, 2012,

d) sharing of Special or Extraordinary Expenses for the Children in proportion to their respective “Adjusted Guideline Incomes”,

e) equal sharing of certain items which were agreed to not constitute Special or Extraordinary Expenses or Additional Special or Extraordinary Expenses, such as specified customary and recurring expenses, school-sponsored excursions costing less than $100 and any athletic or recreational activity,

f) spousal support scheduled to continue until the end of November of 2018 but terminating upon the happening of certain specified events, none of which have occurred,

g) a provision acknowledging the entitlement of the Mother to receive the child tax benefits, [ 6 ] Pursuant to the Separation Agreement both forms of support were to be paid by the Father to the Mother. [ 7 ] Significant changes have occurred in the personal and the family lives of both the Father and the Mother (collectively the “Parents”) since the making of the Separation Agreement. [ 8 ] At the date of the hearing, the Father was 57 years old and the Mother was 49 years old. [ 9 ] Among these significant changes that have occurred (which changes were mutually, orally consented to at the time they occurred) relate to the shared parenting arrangement, such that for some time now, the Children have resided on a full time basis with the Mother.

The Children do maintain a significant relationship with the Father. [ 10 ] That important change has given rise to a claim brought by the Mother in the Mother’s Application to increase the amount of child support and to seek a retroactive variation of the amount of that child support back to the date that the shared parenting arrangement changed. [ 11 ] The Father opposes the claim for a retroactive variation of child support primarily citing what he says is the Mother’s delay in bringing the claim and on the basis of his financial hardship [ 12 ] The Father also seeks a variation and termination of the provisions for spousal support payable by him to the Mother citing a change in her circumstances and again relying upon his financial hardship. [ 13 ] The Mother takes issue with that relief being sought by the Father, acknowledging some positive changes in her personal and financial circumstances but relying on her increased role in terms of caring for the Children and certain financial and personal sacrifices that this has entailed for her.

[ 14 ] The parties agree and jointly submit that there are significant changes that have occurred which they say amount to a material change of circumstances.

They submit that the material changes in their circumstances satisfy the applicable provisions of the Family Law Act which they say permit this court to set aside or replace the child support and spousal support provisions terms of their Separation Agreement with an order of the court, pursuant to sections 148 and 164 of the Family Law Act and further allow this court to grant the relief that each of them seeks. [ 15 ] Notwithstanding that the Separation Agreement provides that the Supreme Court of British Columbia has “exclusive jurisdiction over this Agreement”, the parties have agreed inter alia by way of an interim consent order made by me on January 12, 2015 (the “January 12, 2015 Order”) which contains in part the following provision: …the Provincial Court shall have the consent of the parties to assume jurisdiction to deal with the issue of variation of child support payments due under the Separation Agreement [ 16 ] A further consent provision of that January 12, 2015 Order also permits the Provincial Court to deal with issues under the Separation Agreement relating to spousal support and variation or amendments thereof including retroactive adjustment.

Background of Court Proceedings [ 17 ] The Mother filed her Application Respecting Existing Orders or Agreements (the “Mother’s Application) on October 14, 2014 seeking specific changes to the Separation Agreement, based on the Children commencing to live full time with her starting April 13, 2013 (hereinafter the “Parenting Time Change Date”). The changes sought by the Mother are as follows:

a) the Parents both be guardians,

b) the Mother be the primary care giver and that the Father have parenting time with the Children every other weekend or such times as agreed by the Children,

c) the Father pay child support in accordance with the Child Support Guideline commencing May 1, 2013 and

d) the Father pay extraordinary expenses of $75 per month for the Child N’s horseback riding and $110 per month for 15 months to cover 50% of the orthodontic work for the Child B, as both of these children are described below. [ 18 ] In the Father’s Reply filed November 14, 2014 (the “Father’s Reply”) the Father agreed with the changes to guardianship and parenting time sought by the Mother but disagreed with the Mother’s application for child support, spousal support (which was not mentioned in the Mother’s Application), retroactive support and parental responsibilities (which also was not specifically mentioned). [ 19 ] At a first appearance on December 22, 2014 an order was made by me requiring the parties to make financial disclosure to each other by way of filing completed sworn financial statement along with the last three years of income tax returns and year to date pay stubs for 2014 (the “December 22, 2014 Order”) . [ 20 ] The matter was set over to January 12, 2015 at which time it came back before me and the January 12, 2015 Order was made with the assistance of duty counsel. [ 21 ] In addition to the orders relating to this court’s agreed jurisdiction described above, the following interim terms were also contained within the January 12, 2015 Order, made by consent, other than provision (

e) below:

a) the guideline incomes of the Parents set out in the Separation Agreement be replaced in paragraph 7.1 with an amount of $87,000 for the Father and in paragraph 7.2 with an amount of $36,000 for the Mother

b) paragraph 8 of the Separation Agreement be replaced with a provision requiring the Father to pay the Mother $1700 per month for support of the Children commencing on February 1, 2015 and continuing on the first day of each month thereafter so long as the Children are Children as defined by the Family Law Act .

c) an equal sharing of the amount of $3,600 incurred by the Mother for Child B’s orthodontic expenses be paid by the Father to the Mother in 15 monthly installments of $110 commencing February 1, 2015 and continuing thereafter until paid in full

d) liberty for either party to bring an application regarding retroactive variation of the spousal support provision contained in the Separation Agreement, and such application maybe heard at the same time as the as the hearing of the issue of retroactive variation of the child support provisions contained in the Separation Agreement, provided the Father filed his cross application to vary spousal support within one week.

e) an order for further financial disclosure including the filing of the parties respective 2014 income tax returns and delivery of notices of assessment and updates on projected income for 2015. [ 22 ] The Father filed the cross application by way of a detailed Application Respecting Existing Orders or Agreements on January 19, 2015 (the “Father’s Cross Application”).

In it he seeks to remove his obligation to pay spousal support under the Separation Agreement on the basis of changes in the Mother’s circumstances and on the basis of the increased child support contained within the January 12, 2015 Order, claiming that these payments “have created undue financial hardship to pay both spousal and be able to live at a basic level”. [ 23 ] The Mother filed a Reply to the Father’s Cross Application (the “Mother’s Cross Application Reply”) on March 6, 2015

disputing the basis for such an order and stating: Although child support has increased, I have used past spousal to support children and am trying to further my career so I can be self-supporting. In addition my child tax benefit will decrease by 3000.00 Circumstances at Separation and the Making of Separation Agreement [24] At the time of separation on August 1, 2010 (the “Separation Date”) and as set out in the Separation Agreement, the Father wasemployed as a professor at [omitted for posting] (the “University”).

According to the Separation Agreement he earned approximately$90,000 per year which included income derived from teaching extra courses during the summer semester and from running a certainacademic project at the University (the “Academic Project”). [25] The Mother was working as a part-time administrative assistant, in a unionized position at the University. According to theSeparation Agreement she was earning approximately $30,000 per annum. According to the evidence she worked between 24 and 28hours per week. [26] The Mother and Father were the Parents of three dependent children (the “Children”) namely:

a) T.A.D.M., born [DOB] (“Child T”) being age 14 at the Separation Date;

b) B.J.M.D., born [DOB] (“Child B”) being age 12 at the Separation Date;

c) N.J.E.D., born [DOB] (“Child N”) being age 9 at the Separation Date. [27] The Parents were both actively involved in the lives of their Children and shared many of the responsibilities for the Childrennotwithstanding their own respective work and educational commitments. [28] Under the terms of the Separation Agreement the Parents agreed to share joint custody of the Children as that term wascommonly used when the Family Relations Act was then in force in British Columbia. [29] The Parents also agreed to share parenting of the Children equally on a week on a “week on/week off” basis with the exchangetaking place after school each Monday.

Arrangements were made in the Separation Agreement for sharing vacations. [30] The Parents further agreed to use their respective Federal Child Support Guideline incomes to determine child support and theirrespective shares of special or extraordinary expenses, all in accordance with the Federal Child Support Guidelines.

It was agreed thatthe Mother was entitled to apply for any child tax benefits or other benefits for the Children payable by federal provincial governments. [31] Pursuant to the terms of the Separation Agreement, commencing December 1, 2011 the Father was required to pay to theMother as child support the amount of $1,080 per month which, as I understand it, represented the agreed set-off amount to be utilized ina shared parenting arrangement. I note parenthetically that a set off formulae is not specifically mentioned in

section 9 of the FederalSupport Child Support Guidelines in shared custody situations where each spouse or former spouse has custody of one or more childrenover 40% of the time. However, in such a situation the amount of a child support a court will order or parties may agree to often is thedifference between the amount that each spouse would otherwise pay in accordance with the Child Support Guidelines if a child supportorder were sought against each of the spouses. In the Supreme Court of Canada decision of Contino v. Leonelli-Contino, 2005 SCC 63 the court set out the approach to determine the quantum of child support under

section 9, and held that the court must determinethe amount in accordance with the factors in s. 9(

a) to (c). Consideration is given to the overall situation of shared custody and the costrelated to the arrangement, while paying attention to the needs and situation of a parent and any child, thus allowing sufficient flexibilityto ensure for a proper accounting of the economic reality and particular circumstances each family.

This is all meant to ensure a fairlevel of child support. (see: Contino a para 27.) Contino also held that there was no presumption in s. 9, as there is in ss. 3(2) and 4 of theGuidelines, that the guideline amount of support applies unless the court finds the amount is inappropriate. [32] Under paragraph 11 of the Separation Agreement it was agreed the obligation to pay child support ceased in respect of a Childwho:

a) marries;

b) becomes self-supporting

c) becomes 19 years old, unless the Child remains a “child of the marriage” within the meaning of the Divorce Act because ofinability to become self-supporting due to illness, disability, the pursuit of education, or other causes. [33] Paragraph 12 (1) of the Separation Agreement makes provision for the review of child support “and if necessary, revise it toensure that it accords with the requirements of the Federal Child Support Guidelines”.

The first review was scheduled to be completedby May 31, 2012. [34] Paragraph 12(2) provides that in the event that the parties did not review child support or did not vary it in writing then bothparties were deemed to consider the agreed child support continued to satisfy the requirements of the Federal Child Support Guidelines. [35] Paragraph 12(3) specifically states: Any adjustment to Child Support on a review under this clause will apply retroactively to May 31st of every year irrespective of whenthe parties exchange financials.

[ 36 ] Paragraph 12 (4) of the Separation Agreement permits either party to request by way of a written notice to the other party a review of child support upon the happening of any of the following: (

a) a material change in circumstances, such as custodial changes or a change of the child’s primary residence, or a substantial change in either [the Father’s] or the [Mother’s] Guideline Income (

b) a change leading to undue hardship for either party as defined by the Federal Child Support Guidelines (

c) a child ceasing to be eligible for support, (

d) a child’s need for support changing by reaching the age of majority, or (

e) a child who ceased to be eligible for support becoming dependent again [ 37 ] Paragraph 13(1) of Separation Agreement further provides that by May 31 of each year, commencing May 31, 2012, the Parents are each to provide the other with: (

a) a photocopy of the most recent full income tax return, (

b) the notice of assessment, if received, (

c) details of child tax benefits or other similar benefits received in the previous year and anticipated in the coming year, if known, (

d) particulars of the Children’s Special and Extraordinary Expenses anticipated for the coming year, (

e) the most recent annual statement of earnings including over time, and (

f) any other relevant information, to facilitate determination of the adjustment of any to child support. [ 38 ] Paragraph 14 (1) of the Separation Agreement makes further provision for the Father’s support of the Mother (the “Spousal Support”) in the amount of $600 per month payable on the first day of each month commencing December 1, 2011. Under paragraph 14(2) entitlement to Spousal Support for the Mother is scheduled to end on November 31(sic) 2018.

Under paragraph 14(3) provision is made for termination of the Spousal Support obligation in the event of the Father’s death, or the Mother’s death, or the Mother remarrying or entering into a marriage like relationship for more than 180 days. None of these events have occurred. No provision is contained in the Separation Agreement for an annual review of the Spousal Support nor any review or variation in the event of change of any other circumstances, other than termination as specifically stipulated and as noted above.

I note that such a review by a court may take place pursuant to s.168 of the FLA when an agreement or order for spousal support makes provision for a review of spousal support. Paragraph 14 (4) of the Separation Agreement then states as follows: Nothing in this Agreement (

a) extends a claim for Spousal Support beyond the term agreed upon between the parties; or (

b) revives or establishes any claim for contractual, compensatory, or non-compensatory support. [ 39 ] Other provisions are made in the Separation Agreement to deal with the division of the couples pensions, division of other savings and investments including RRSP’s and the Parents’ continuing contributions to Registered Education Savings Plans for the Children (“RESP”), sale of the family residence, the payment of certain expenses and reimbursements from the proceeds thereof, and the equal distribution of the balance remaining from that sale, distribution of the family vehicles and the distribution of other personal property.

Further provisions are made with respect to debts and obligations and there are standard provisions for testamentary releases and to deal with any future reconciliation. [ 40 ] Paragraphs 38 (1) and (2) of the Separation Agreement purport it to be a full and final settlement of property and family asset and family debt issues and a “full and final settlement of spousal support, child care and child support” matters. [ 41 ] Under paragraph 39 (

f) it states: (

f) if either party makes or pursues a claim against the other, this Agreement shall form the basis of a consent order in those proceedings, so as to maintain the full force and effect of this Agreement. [ 42 ] According to the evidence all matters contemplated by the Separation Agreement were implemented and the parties continued to operate under its provisions in one form or another for a significant period of time. No modifications in writing were made to the Separation Agreement.

Circumstances Following the Making of the Separation Agreement [ 43 ] Following the sale of the family residence each of the Parents financed their respective purchase of a replacement residence in order to provide each with their own accommodation and adequate accommodation for the Children, during the shared parenting arrangement. [ 44 ] The Father purchased a 4 bedroom detached house for approximately $360,000, using part of his proceeds from the sale of the family home as his down payment.

He obtained a mortgage of $333,000 which required monthly payments for principal, interest, taxes and life insurance on the mortgage of $1,600 per month.

[ 45 ] The Mother purchased a house to accommodate herself and the Children for a purchase price of $412,000 by utilizing her proceeds from the sale of the family home for her down payment. She obtained a mortgage of $368,000 which required monthly payments for principal, interest, taxes and likely life insurance on the mortgage with payments of $1,600 per month.

Changes in the Father’s Circumstances [ 46 ] Shortly after the Separation Date but prior to entering into the Separation Agreement, the Father developed issues with depression which he says were triggered by the matrimonial break up and loss of the family unit. It necessitated him seeking professional assistance.

This included being placed on antidepressant medication which kept the condition in check but requiring ongoing professional monitoring and necessary medication changes, from time to time. [ 47 ] He continued to be very busy professionally with his basic University teaching load as well as the additional summer courses and with the Academic Project. [ 48 ] In April 2013 the Father found the week on/week off for the shared parenting arrangement onerous. The eldest Child T wanted to live full time at the Mother’s residence and the younger Children wanted to be there also.

Accordingly, a wholesale change occurred such that the Children commenced to live full time with the Mother and to spend every second weekend with the Father at his residence. As I understand it, that arrangement continued for some time. At present time the older Children Child T (now age 19) and the Child B (now age 16) have intermittent visits with the Father.

The youngest child, being Child N (now age 14) continues to have stays every second weekend with the Father. [ 49 ] The Father’s depression issues continued and became more challenging in the spring of 2014 when the Father’s financial matters began to unravel, his house went into foreclosure and he made an assignment into bankruptcy in July of 2014. [ 50 ] In his evidence the Father concedes that given his financial circumstances and obligations following the Separation Date, the purchase of his replacement residence was financially the wrong decision for him to make but he contends it was made for the “right reasons”, namely to provide a suitable residence in order to allow the shared parenting arrangement to continue.

From his evidence I understand that his house sold in November 2014 by way of the foreclosure proceedings for less than the original mortgage amount, thereby resulting in him owing a significant deficiency balance. In addition he had incurred between $20,000 and $25,000 of credit card debt while attempting to meet his various financial obligations and maintain his lifestyle following the Separation Date. These overall financial obligations and debts precipitated and became the subject matter of his bankruptcy which he declared on July 11, 2014 (the “Date of Bankruptcy”).

Under the terms of his bankruptcy he is required to pay a total of $8,673 to the trustee in bankruptcy by way of 21 monthly instalments of $413. He anticipates being eligible to apply to receive a discharge from bankruptcy in the spring of 2016.

There were no arrears of child or spousal support under the terms of the Separation Agreement at the Date of Bankruptcy. [ 51 ] The Father occupied his house with H.M. whom he described in his evidence as his “former fiancé” (hereinafter referred to as the “Former Fiancé”) [ 52 ] She was not on title to that residence. [ 53 ] They continued to occupy his house after the Parenting Time Change Date and he did not thereafter attempt to sell it because he says he was hopeful that he would be able to continue to provide the Children with a place that they could stay when they visited him.

I infer from the evidence that neither the Father nor the Former Fiancé were making any payments for accommodation from at least the Date of Bankruptcy until they left the residence. I understand that as a result of the foreclosure sale, the Father and the Former Fiancé moved into a 2 bedroom basement suite at a rent of $1,000 per month.

At the time of the hearing that relationship was in the process of dissolving and she was planning on leaving the shared basement suite by the end of June 2015. [ 54 ] The Father’s evidence is that the Former Fiancé worked part-time for [omitted for posting] as a visiting health care worker, earning approximately $10,000 per annum. She did not pay him rent but did make some unspecified contribution to other household expenses. She has children by a previous relationship who all reside with their father.

The Father confirms that he was financially assisting and supporting the Former Fiancé throughout the duration of their cohabitation relationship. I understand it was established at some time in 2012 following the Separation Date. [ 55 ] The Father was able to teach at the University in the spring term of 2014 but because of his depression he was required to go on to paid sick leave in July 2014.

He continued on paid sick leave provided by the University until November 2014 when he went onto short-term disability. [ 56 ] However as a result of a dispute with the short-term disability carrier, apparently arising out circumstances surrounding the change of his treating physicians, he was cut off short term disability payments in January 2015 and hence was left with no income. [ 57 ] At the end of February 2015, the issues with the carrier were resolved and he returned to short-term disability without any loss of compensation. The short-term disability covered the period up to February of 2015.

At the end of February 2015 he went on to a long- term disability program which saw him working on a 50% basis for the University dealing with the Academic Project and working for a University centre that provides targeted assistance to students.

Hence his 50% shortfall in his regular University income was made up by long-term disability payments. [ 58 ] I understand that the benefit payments received by him while on short and long-term disability and while working on a 50% basis are essentially calculated on his University base salary being approximately $87,000 per annum rather than on the higher amount historically earned by him when teaching the additional semester each year. [ 59 ] According to his oral evidence his present psychological evaluation is that he has suffered severe depression and anxiety.

He has continued to receive counselling and is working with a rehabilitation specialist provided by his long term disability carrier. [ 60 ] He testified that it is his plan and his hope to return to full time work at the University in the fall of 2015 but because of his

mental health issues he does not expect that he will be teaching the extra term in the spring and summer of 2016. [ 61 ] The Father maintains coverage for the Children on his medical and dental plans through the University. Changes in Father’s Income and Details of Support Payments [ 62 ] Based on various documents admitted into evidence and based on the Father’s viva voce evidence and that of the Mother, and referring to the Child Support Guidelines and to the Father’s income and details of his support payments since 2011, I have created the following

summary table, which is subject to the various notes set out below: Year Father’s Guide Line Income Based on Imputed or Actual Annual Income Child Support Amount Paid by Father per month Father’s Child Support Guideline Amount for 3 Children & Payments based thereon Spousal Support Paid by Father per month Total Support Paid by Father 2011 $90,000.00 (Note 1) $1,080 x 1= $1,080 (Note 1) $1,080 x 1= $1,080 (Note 1) $600 x1 = $600 (Note 1) $1,080 +$600=$1,680 (Note 1) 2012 $96,001.23 $1,080 x 12=$12,960 (Note 1) $1,002 x 12=$12,024 (Note 2) $600 x12=$7,200 (Note 1). $12,960 + $7,200=$20,160 2013 -for the 4 months of January to April until Parenting Time Change Date $99,214.50 $1,080 x 4=$4,320. (Note1) $1,124 x4 = $4,496 (Note 3) $600 x 4 = $2,400 (Note 1) $4,320 +$2,400= $6,720 (Note 1) 2013 for the 8 months May to December following Parenting Time Change Date $99,214.50 $1,080 x 8=$8,640 (Note 1) $1,909 x 8= $15,272 (Note 4) $600 x 8=$4,800 (Note1) $8,640 +$4,800=$13,440 ( Note 1) 2014 $94,538.24 $1,080 x 12=$12,960 (Note 1) $1,829 x 12= $21,948 (Note 5) $600 x12 =$7,200 (Note 1) $12,960 + 7,200= $20,160 (Note 1) Subtotals to December 31, 2014 $39,960 $54,820 $22,260 $62,160 2015 for the month of January $87,000 (Note 6) $1,080 x 1= $1,080 (Note 1) $1,700 x 1=$1,700 (Note 6) $600 x 1=$600 (Note 1) $1,080 +600=$1,680 (Note 1) 2015 for 5 months February to June $87,000 (Note 6) $1,700 x 5 = $8,500 (Note 6) $1,700 x 5= $8,500 (Note 6) $0 ( Note 7) $8,500.00 (Notes 6 & 7) Subtotals to June 30, 2015 $1,080 + $8,500= $9,580 $1,700 = $8,500= $10,200 $600.00 $9,580 =$600=$10,180 Note 1: Based on terms of the Separation Agreement and on a shared parenting arrangement with a setoff being applied.

See paragraph 31 above. Note 2: Based on a shared parenting arrangement, on a set off basis, with Guideline Income of $96,001.23 for the Father (being child support of $1,855.00) and $34,646.84 for the Mother (being child support of $ 853); the setoff off amount being $1,002 ($1,855- $853=$1,002) Note 3: Based on a shared parenting arrangement, on a set off basis, with Guideline Income of $99,214.50 for the Father (being child

support of $1,909) and $38,671 for the Mother (being child support of $785); the set off amount being $1,124. ($1,909 -$785=$1,124) Note 4: Based on non-shared parenting arrangement after the Parenting Time Change Date with Guideline Income of $99,214.50 for the Father (being child support of $1,909) with no set-off. Note 5: Based on non-shared parenting arrangements after Parenting Time Change Date with Guideline Income of $94,538.24 for the Father (being child support of $1,829) with no set off.

Note 6: Based on imputed income for the Father of $87,000 used as the basis for the child support amount of $ 1,700 on a non-shared parenting arrangement with no set off and pursuant to the January 12, 2015 Order Note 7: Based upon the Father’s unilateral decision to suspend payments of spousal support after the January 2015 payment. [ 63 ] Based on this

summary table, had the Child Support been varied taking into account the changes in the shared parenting arrangements effective from the Parenting Time Change Date and the variation of the Child Support based on the Father’s actual income earned during the period from December 1, 2011 to December 31, 2014 the arrears of child support would have been the difference between the resulting adjusted child support payments of $54,820 less the amount actually paid for child support of $39,960 equalling $14,860.

Father’s Present Financial Circumstances [ 64 ] Due in large part to the foreclosure and to his bankruptcy the Father has little in the way of any remaining assets. [ 65 ] According to the Father’s evidence his current monthly budget is based upon his present net take home pay of some $5,127 being what he receives from the University and from the long term disability carrier. He receives a gross bi-weekly payment of $1,690 less deductions of between $516.62 and $555.00 which nets out at between $1,143.26 and $1,104. 88.

He says his actual take home amount will decrease because no benefits deductions are being made from the long term carrier’s portion. I also infer that possibly no income tax is being deducted from that benefit payment.

He anticipates that he will have less take home pay once he returns to work in August of 2015 which amount is estimated at $4,700 per month. [ 66 ] He says his “fixed expenses” which include such items as child support, spousal support, payments to the Mother for Child B’s orthodontic expenses, rent, car insurance and his $413 payment to the trustee in bankruptcy total approximately $3,798. [ 67 ] In addition to that he has other reoccurring monthly household expenses including vehicle gas and maintenance, cable, internet, telephone, and cell phone expenses which total $775. [ 68 ] He says the sum total of his monthly expenses are now $4,673.00. [ 69 ] At the end of the month he says that based on his present take-home pay he only has $554 in order to pay for food, clothing, household cleaning products, including cat litter, gifts, haircuts, entertainment, vacations and veterinarian expenses for his 3 cats, which alone were $200 in one month.

No evidences was presented by the Father as to any steps he has taken or plans to contain, reduce or eliminate any of his expenses, other than spousal support and child support. [ 70 ] Because of his bankruptcy he no longer has a credit card or a line of credit, hence he says he has “no cushion” in meeting his obligations from his available funds and cash flow. [ 71 ] Thus, the Father says that his financial position is precarious and that he is in a hardship situation and needs relief from the spousal support payments. [ 72 ] He is presently subject to enforcement of his support payment by the Director of Maintenance Enforcement.

He unilaterally discontinued spousal support payments effective after the January 2015 payment and in conjunction with the increase in child support payment by way of the January 12, 2015 Order. [ 73 ] He says that he does not lead an extravagant lifestyle and says that he cannot afford and does not make expenditures on several of the items which were originally set out in his sworn financial statement of November 14, 2014, which he described as his “normal budget”.

I take that to mean his ideal budget. [ 74 ] That “normal budget” sets out total annual expenses of $104,016 which are well in excess of his stated income of $86,611. It also includes allotments for such items as meals outside the home, alcohol and tobacco and vacations, charitable donations, and entertainment and recreation. A revised annual budget attached to the Father’s January 19, 2015 sworn financial statement eliminates or reduces some of these latter expenses and reallocates others but at the end it still shows total expenses of $103,746 and still with a stated income of $86,611.

That amount is shown to be the annual income for the Child Support Table amount, a special or extraordinary expenses claim or a spousal support claim.

Changes in the Mother’s Circumstances [ 75 ] When the Father and the Mother first met she was a student taking courses at the University. She started working full-time for the University in 1994 with an intervening six month maternity leave for Child T and then moved from full-time employment to part- time employment in September 1998. She continued to work part-time hours as the Children were growing up thus permitting her to fulfil certain important responsibilities for the Children.

At the same time she continued to complete courses at the University towards obtaining her first degree. [ 76 ] The Father encouraged her to continue with her education and was supportive of her efforts by utilizing his flexible

schedule to share some responsibilities for the Children. The Mother ultimately obtained her bachelor’s degree in June 2014. [ 77 ] At present she continues to maintain employment with the University on part-time basis as an administrative assistant which provides approximately 28 hours of regular or guaranteed time per week. [ 78 ] She has also been able to take on some additional timetabling work and increased administrative coordination responsibilities within her department.

She has also applied for and obtained some additional work which involves teaching responsibilities in a program outside of her department. This job is covered by a different union bargaining unit than her administrative assistant position. The teaching provides her with an additional non-guaranteed 7 hours per week.

She therefore has what may be described as a variable 35 hour full- time workload that drops back to 28 hours per week during the months of June, July and August when the non-guaranteed work is not available to her. [ 79 ] There is a level of uncertainty with respect to continuing availability of her “non-guaranteed” work. It appears to be subject in part to obtaining her faculty dean’s consent, her continuing success when applying for the teaching postings [which she notes may eventually require a Master’s degree] and the on-going availability of the timetabling work within her department or faculty.

Her plan is to pursue the completion of a Master’s degree which would benefit her in maintaining and increasing her prospects for an increased teaching role at the University. [ 80 ] The Mother testified that she has maintained her residence to provide a home for the Children who presently all continue to live there. To do so she has relied upon her income from the University, the child support she has received from the Father, the child tax credits (which are in the process of declining as a result of the aging of the Child T and also the Child

B) and her spousal support. [ 81 ] She has also utilized the spousal support to help pay for her continuing education that has ultimately allowed her to obtain her first degree. She intends on using the spousal support to help pay for a Master’s degree. She testifies that she had to use a portion of the spousal support to finance the purchase the Father’s $1,500 share of the RESP that was forfeited to the Father’s trustee in bankruptcy, thus avoiding the loss of the Federal Governments contributions to the RESP.

She also chose to use her line of credit to purchase the Father’s share in the recreational trailer from the trustee in bankruptcy in the amount of $2,000 which she subsequently sold and repaid her line of credit. [ 82 ] The Mother maintains coverage for the Children on her medical and dental plans through the University.

Changes in Mother’s Income and Details of Support Payments Received [ 83 ] The Mother’s Guideline Income based upon the documentary evidence and her viva voce evidence may be summarized as follows: Year Mother’s Guide Line Income Based on Imputed or Actual Annual Income Spousal Support Received by the Mother from the Father Mother’s Total Line 150 Income 2011 $30,000 (Note 1) Month of Dec: 1x $600=$600 $33,098 2012 $34,646.84 $600 x 12= $7,200 (Note 1) $41,846.84 2013 $38,671.41 $600 x 12=$7,200 (Note 1) $45,871.41 (estimated) 2014 $44,576.42 $600 x 12=$7200 ( Note1) $51,776.42 (estimated) Note 1: Based on terms of the Separation Agreement and on a shared parenting arrangement.

See paragraph 31 above. Mother’s Present Financial Circumstances [ 84 ] The Mother filed her sworn financial statement on March 6, 2015. She states her employment income is $44,352.92 plus the spousal support amount of $7,200 for a total income of $51,552.92. After making all allowable adjustments her annual income to be used for a child support table amount is $43,456.30, for a special or extraordinary expenses claim is $50,656.30, and for a spousal support claim is stated to be $48,689.81.

[ 85 ] Her expenses are disclosed to be $76,816.97. She emphasised in her evidence that the difference between her employment income and a significant number of the expenses required in order for her to maintain a household for the Children is derived from both the child and spousal support payments that she receives from the Father. [ 86 ] She further indicated in her evidence that she makes a concerted effort to live within her means and she maintains what she characterizes as a “thrifty lifestyle”. She mentioned the fact that she pruned back her budget and manages her money carefully.

She cites examples of not parking on the University campus since the Date of Separation thereby saving $700 per year, acquiring and riding a $1,200 scooter as her transportation to work during the period from April to October to save on fuel and in the colder months using public transit, shopping in consignment stores and seldom eating outside of the home. [ 87 ] She accepts that some variation in the spousal support may be warranted given the present financial circumstances that the Father faces.

Changes in the Circumstances of the Children [ 88 ] Since the making of the Separation Agreement certain circumstance surrounding the Children have changed. The Child T [ 89 ] At the date of the hearing the Child T was completing Grade 12, he does well academically and in sports and is enrolled and planning on attending the University in the fall of 2015, in a 4 year business program. He turned 19 in summer of 2015. [ 90 ] He was continuing to live with the Mother and intends on doing so while attending the University, rather than obtaining his own rental accommodation.

Both Parents are supportive of this academic plan and the continuing living arrangement, agreeing that residing with his Mother while attending the University is the financially preferred plan. [ 91 ] He held a part time job during his high school Grade 12 year at a local grocery store which will likely provide him with close to full time employment during the summer months. Child T’s projected earnings for the year are estimated to be $12,000. These earnings along with proceeds from the RESP will permit him to pay for his university tuition and his books estimated to be between $5,000 and $6,000 per year.

He also pays for his own vehicle, fuel, clothes and other personal expenses. No mention was made in the evidence of the Child T paying his Mother for room and board now or in the future while he is attending the University. [ 92 ] While moving to a level of more financial independence, there is no evidence to support the contention that the Child T is now financially independent. To the contrary the evidence suggests that he presently remains financially dependent upon the Parents and is reliant on the Mother to provide him with accommodation.

The evidence also suggests that this court may be required to make an inquiry once he reaches age 19 and thereafter as to whether the provisions of paragraph 11(

c) of the Separation Agreement will apply and Child Support will continue to be payable. The Child B [ 93 ] At the date of the hearing the Child B was completing his Grade 11. He turns 17 in the late fall of 2015. He does well academically and in sports and is scheduled to complete his Grade 12 starting this fall at the same secondary school. [ 94 ] He has just started his first job at the same grocery store as his brother. I understand that he will be working there for the summer and may continue on a part time basis during his Grade 12 year.

His plan is to attend a university following the completion of Grade 12 and he is examining different opportunities [ 95 ] There is no specific evidence on the Child B’s earning capacity from the part time work or the intended use of those funds. Presumably it will not be much different than that of Child T. Overall the evidence supports that he is not financially independent of the Parents. The Child N [ 96 ] The Child N is progressing well in school and will continue in the same secondary school this coming fall academic year.

She turned 14 in the summer of 2015. [ 97 ] She continues to be active in equestrian activities which according to the Mother’s sworn financial statement filed March 6, 2015 apparently started prior to the date of separation. To assist in covering those on-going expenses, the Child N is a “working student” which I understand to mean she gets a reduction in the cost of leasing a horse by performing certain chores at the stable. The Mother pays $100 per month towards the cost of the lease. The Child N participates in 6 to 8 equestrian shows each year at a cost of $120 per show plus travel expenses.

The Mother has been covering these expenses. [ 98 ] The Child T remains financially dependent upon the Parents.

Actions for Review Taken by the Mother and Father Following the Making of the Separation Agreement. [ 99 ] As noted above, the Parents have not followed the provisions of the Separation Agreement with respect to the annual review, exchange of financial information, service of notices in writing or for that matter formally documenting the changes agreed to with respect to terminating their shared parenting arrangement. [ 100 ] The Mother testified that subsequent to the Change of Parenting Time Date she raised the issue of changes to the child support

with the Father on several occasions because of the Children living with her full time rather than in the shared parenting arrangement. She recounted her discussion shortly after that date with the Father while in the library at the University, at which time she told him that she required additional child support.

She says that she told him what the Child Support Guideline amount was but further indicated to him that she did not expect him to be able to pay the full amount, because of his financial constraints and specifically in light of the fact that he was paying her spousal support. [ 101 ] She also indicates that she spoke to a family justice counsellor in an attempt to engage the Father in a discussion to increase child support.

That was not successful. [ 102 ] She did not make a formal written demand upon him until the filing of her Application Respecting Existing Orders on October 14, 2014. [ 103 ] In confirmation of her attempts to engage the Father in discussions about the increase in child support she tendered a copy of an email exchange between herself and the Father on August 16, 2013. In her initial email to the Father with the subject line “basketball shoes” she asked the Father: “will you be helping with any extras for the kids? Basketball shoes, haircuts etc”.

The Father’s e-mail response on that same day was as follows: I told them i [sic] would give them some money towards the clothing they bought in the states, but beyond that, no. That is what child support is for. I haven’t anything left at the end of the month – I have two collection agencies that call me daily. I wish I could go on vacation and do something nice for my children like you can, but I can’t. There is nothing left Her email reply to him shortly thereafter read as follows: … you know the amount of child support was based on shared living. You are right that is what child support is for.

You have not even called to ensure that the child tax benefit is increased for where your kids live full time. It would help. Please take care of it. I have taken care of things you needed very quickly, i [sic] only ask that you do the same. I received a call from Family Justice and they indicated you are not interested in negotiating. I wish you were [ 104 ] She concedes she never asked him for full financial disclosure.

She says she was hesitant about taking formal steps in court to vary the amount of child support, being concerned about the legal expense that it could possibly entail. [ 105 ] The Father concedes that the Mother’s recollection of the chronology of these discussions and events may be better than his own, admitting that his recollection was “fuzzy”.

In response, he said that he was of the view that the Mother’s request for further child support beyond what was provided in the Separation Agreement left him feeling he was “being taken advantage of” because she had not provided him with a breakdown of her expenses and because he was being asked to pay for things such as haircuts which he considered to be “double dipping” He has no recollection of providing any further response to the email exchange of August 16, 2013. Issues before the Court [ 106 ] This case raises a number of issues of both a preliminary nature and of a more substantive nature.

In brief those issues requiring consideration may be summarized as follows: 1. The first preliminary issue is the impact, if any, of the Father’s bankruptcy and his continuing status as a bankrupt, on the remedies being sought by both the Mother and the Father before this court. 2. The second preliminary issue is whether or not a retroactive variation of child support under the Separation Agreement is permitted under

section 148 of the Family Law Act . 3. The third issue is a substantive issue, namely if section 148(3) of the Family Law Act does permit retroactive variation of the Separation Agreement what is the test to permit the court to set aside or replace the child support provisions of the Separation Agreement with an order of the court. 4.

The fourth issue is another substantive issue and is whether or not there should be any further order for retroactive variation, with respect to child support beyond the January 12, 2015 Order and if so what should be the operative date of the retroactive variation and what are the resulting arrears (if any) of child support. 5. A fifth ancillary issue relates to whether there should be an order made with respect to the

section 7 expenses or extracurricular activity expenses. 6. The sixth issue is whether or not the requirements of section 164(3) or 164(5) of the Family Law Act exist in order to permit the court to set aside or replace the Spousal Support provisions of the Separation Agreement with an order of the court.

7. The seventh issue is also substantive in nature and is whether or not there should be any variation by way of court order of the Spousal Support provisions of the Separation Agreement and if so what should the variation amount be and what should be the operative date for variation and what arrears or other adjustments flow from any variation. Relevant Provisions of the Family Law Act [ 107 ] The following are the relevant provisions of the Family Law Act that apply to these issues, which I have set out for the benefit of these unrepresented parties. Division 2 — Child Support Duty to provide support for child 147

(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child (

a) is a spouse, or (

b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.

(2) If a child referred to in subsection (1) (

b) returns to his or her parents' or guardians' charge, their duty to provide support for the child resumes.

(3) If a guardian who is not the child's parent has a duty to provide support for that child, the guardian's duty is secondary to that of the child's parents.

(4) A child's stepparent does not have a duty to provide support for the child unless (

a) the stepparent contributed to the support of the child for at least one year, and (

b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty (

a) is secondary to that of the child's parents and guardians, and (

b) extends only as appropriate on consideration of (

i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and (ii) the length of time during which the child lived with the stepparent. Agreements respecting child support 148

(1) An agreement respecting child support is binding only if the agreement is made (

a) after separation, or (

b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in

section 150 [determining child support] . Orders respecting child support 149

(1) Subject to subsection (3), on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by (

a) a child's parent or guardian, (

b) the child or a person acting on behalf of the child, or (

c) if the right to apply for an order under this

section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act , the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) An order under subsection (1) may only be made against a stepparent if (

a) the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child] , and (

b) the stepparent and the child's parent are separated.

(4) The making of an order against one person for the support of a child does not affect the liability of, or prevent the making of an order against, any other person responsible for the support of the child. Determining child support 150

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if (

a) the parties consent under

section 219 [persons may consent to order being made] or have an agreement respecting child support, and (

b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied that (

a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and (

b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so. Changing, suspending or terminating orders respecting child support 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

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

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

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. Division 4 — Spousal Support Duty to provide support for entitled spouse 160 If, after considering the objectives set out in

section 161 [objectives of spousal support] , a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with

section 162 [determining spousal support] . Objectives of spousal support 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. Determining spousal support 162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:

(

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. Agreements respecting spousal support 163

(1) An agreement respecting spousal support may provide for the circumstances under which spousal support will change or end, including if a spouse lives with another person or enters a relationship with another spouse, but a condition of spousal support that the spouse abstain from sexual relations after separation is not binding.

(2) Despite

section 160 [duty to provide support for entitled spouse] , in making an agreement respecting spousal support, a spouse may agree to release the other spouse from liability for spousal support.

(3) A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court. Setting aside agreements respecting spousal support 164

(1) This

section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (

a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement; (

b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress; (

c) a spouse did not understand the nature or consequences of the agreement; (

d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement.

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: (

a) the length of time that has passed since the agreement was made; (

b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse; (

c) the intention of the spouses, in making the agreement, to achieve certainty; (

d) the degree to which the spouses relied on the terms of the agreement; (

e) the degree to which the agreement meets the objectives set out in

section 161 [objectives of spousal support] .

(6) Despite subsection (1), the court may apply this

section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances. Orders respecting spousal support 165

(1) On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration

section 160 [duty to provide support for entitled spouse] .

(2) An application under subsection (1) may be made (

a) by either spouse or both, (

b) on behalf of a spouse, by a designated agency under the Adult Guardianship Act after an investigation conducted under

Part 3 of that Act, or (

c) if the right to apply for an order under this

section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act , by the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) The court may not make an order respecting spousal support if the spouses have an agreement described in section 164 (1) [setting aside agreements respecting spousal support] , unless all or part of the agreement is set aside under that section.

Misconduct of spouse 166 In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably (

a) causes, prolongs or aggravates the need for spousal support, or (

b) affects the ability to provide spousal support. Changing, suspending or terminating orders respecting spousal support 167

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

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

a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that (

a) the order is necessary to relieve economic hardship that (

i) arises from a change described in subsection (2) (a), and (ii) is related to the relationship between the spouses, and (

b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order. Review of spousal support 168

(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for (

a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred, (

b) the type of family dispute resolution by which the review will take place, (

c) the grounds on which a review will be permitted, and (

d) the matters to be considered for the purposes of a review.

(2) On review, a court, on application, may do one or more of the following: (

a) confirm an agreement or order respecting spousal support; (

b) set aside all or part of an agreement, or terminate an order, respecting spousal support; (

c) make an order under

section 165 [orders respecting spousal support] .

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support] . Matters that may be provided for in support orders 170 In an order respecting child support or spousal support, the court may provide for one or more of the following: (

a) that payments be made periodically, annually or otherwise, for an indefinite or limited period or until a specified event occurs; (

b) that child support or spousal support be paid respecting any period of time before the date the application for the order is made; (

c) that payment of a lump sum be made, directly or in trust; (

d) that a charge be registered against specific property to secure payment; (

e) that a person who has a contract of life insurance within the meaning of

Part 3 of the Insurance Act (

i) designate his or her spouse or child as a beneficiary, irrevocably or for the period designated by the court, and

(ii) either pay all premiums on the policy, or authorize his or her spouse to pay all premiums on the policy and to compensate the spouse for doing so; (

f) that expenses arising from and incidental to prenatal care of a mother or child, or the birth of a child, be paid, except in relation to the prenatal care of a surrogate within the meaning of section 29 (1) [parentage if surrogacy arrangement] ; (

g) subject to section 171 (1) [support obligations after death] , that a duty to pay child support or spousal support continues after the death of the person having the duty, and is a debt of his or her estate for the period fixed by the court. Priority of child support 173

(1) In making an agreement or order respecting spousal support, the parties to the agreement and the court must give priority to any duty to pay child support.

(2) If, as a result of giving priority to a duty to pay child support, the parties do not make an agreement respecting spousal support or make an agreement respecting spousal support in an amount that is less than it otherwise would have been, (

a) the agreement must indicate that the circumstances referred to in this subsection apply, and (

b) if child support is subsequently reduced or terminated, (

i) the reduction or termination is a change in circumstances, and (ii) the court may make an order under

section 165 [orders respecting spousal support] .

(3) If, as a result of giving priority to a duty to pay child support, a court is unable to make an order respecting spousal support or makes an order respecting spousal support in an amount that is less than it otherwise would have been, (

a) the court must give reasons for doing so, and (

b) if child support is subsequently reduced or terminated, (

i) the reduction or termination is a change in circumstances, and (ii) the court may make an order under

section 165 or 167 [changing, suspending or terminating orders respecting spousal support] , as applicable.

(4) Section 164 [setting aside agreements respecting spousal support] does not apply to the making of an order under this section. Reducing or cancelling arrears 174

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [ 108 ] The following are the relevant provisions of the Federal Child Support Guidelines which I have set out for the benefit of these unrepresented parties. AMOUNT OF CHILD SUPPORT Presumptive rule 3.

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. Special or extraordinary expenses 7.

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses ”

(1.1) For the purposes of paragraphs (1)(

d) and ( f ), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit Split custody 8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. Shared custody

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. Undue hardship 10.

(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. Reasons

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. VARIATION OF CHILD SUPPORT ORDERS Circumstances for variation 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, enacted by

section 2 of

chapter 1 of the Statutes of Canada, (1997). INCOME

Determination of annual income 15.

(1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20. Agreement

(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under

section 21. Calculation of annual income 16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. Pattern of income 17.

(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. Non-recurring losses

(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under

section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of

Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate. Imputing income 19.

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

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

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

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

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

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

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

g) the spouse unreasonably deducts expenses from income; (

h) the spouse d

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