Citation: R. v. R. Date: 20130827 2013 BCPC 0254 File No: F66060 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.M.R. APPLICANT AND: C.M.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.D. COWLING Appearing in person: T.M.R. Appearing in person: C.M.R. Place of Hearing: Nanaimo , B.C.

Date of Hearing: July 9 and 10, 2013 Date of Judgment: August 27, 2013 [ 1 ] This application came before me regarding allocation of parenting time and adjustment of child support. The parenting time issues were resolved in the course of the hearing and I reserved on the issue of adjustment of child support. Background [ 2 ] Both parties were self-represented. The original order in this matter is in the form of a Separation Agreement dated March 28, 2008 and filed as an order in April of 2008. [ 3 ] That agreement provided for a 50/50 split of the custody of their daughters who are now 15 and 12.

Since the 2008 agreement there was some movement by the children to spend slightly more time with their mother. [ 4 ] Both parties present as very mindful of the best interests of their children and wishful of maximizing their own time with the children while also being respectful of the children’s wishes and needs as they may exist from time to time. [ 5 ] When the split custody regime was in effect the parties used the straight offset approach to calculate the maintenance payable by C.M.R. to T.M.R.

The alteration of parenting time has had the somewhat unfortunate side effect of placing the parties on the cusp of the 60/40 departure from the guideline provisions. By T.M.R.’s calculations the girls are with her 61% of the time while C.M.R. has them with him from 42.78% to 44.5% of the time. Position of the Parties [ 6 ] C.M.R. is of the view that the straight offset approach should continue with a 57/43 ratio in place of the 50/50 ration. [ 7 ] T.M.R. is not asking that C.M.R. pay full guideline amounts with no offset but rather that her offset be reduced by 50%.

In 2012 this would result in the amount of child support payable by C.M.R. increasing from $865.93 per month to $1,269.01 per month. [ 8 ] Both parties agree that any order should be retroactive to May 1, 2012 which is the approximate time of the start of the new parenting schedule. Additional Context [ 9 ] T.M.R. and C.M.R. are both business professionals in their early 40’s. Both are in new relationships with working spouses. There are no other children in C.M.R’s household.

T.M.R.’s spouse has two children who are with him part-time. [ 10 ] C.M.R.’s guideline income is approximately $115,000 and her income is about $53,000. C.M.R. is slightly concerned that T.M.R. is not working full-time but acknowledges that this is at least in part to permit her to spend more time with her daughters. In any event T.M.R. works approximately 90% of full-time. Both households maintain single-family dwellings.

T.M.R.’s household recently downsized to a residence closer to the children’s schools. [ 11 ] The separation agreement appears to have provided for an equitable division of the parties assets and liabilities. The only provision for spousal maintenance was a $6,000 lump sum payment by C.M.R. to T.M.R. Legal Considerations [ 12 ] The leading decision with respect to the application of

section 9 of the Federal Child Support Guidelines is Contino v Leonelli- Contino 2005 SCC 63 . [ 13 ] I consider that the following extract from the head note for that decision appropriately summarizes the decision of the majority:

Section 9 of the Guidelines expressly provides for a particular regime in cases of shared custody, and this implies a departure from the payor/recipient model that comes under s.

Section 9 requires a court to determine the amount of child support in accordance with the three listed factors once the 40 percent threshold is met. The specific language of s. 9 warrants emphasis on flexibility and fairness to ensure that the economic reality and particular circumstances of each family are properly accounted for. The three factors structure the exercise of the discretion and none of them should prevail. The weight given to each factor will vary according to the particular facts of each case. Under s. 9, there is no presumption in favour of awarding at least the Guidelines amount under s. 3.

Nor is there a presumption in favour of reducing the parent's child support obligation downward from the Guidelines amount, as it is possible that, after a careful review of all of the factors in s. 9, a court will come to the conclusion that the Guidelines amount is the proper amount of child support. [paras. 19-31] [para. 39] Under s. 9(a), a court is required to take the financial situations of both parents into account, but the provision does not include a conclusive formula to determine how the Table amounts are to be considered or accounted for.

The simple set-off amount is the preferable starting point for the s. 9 analysis, but it must be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. Where both parents are making effective contributions, it is necessary to verify how each parent's actual contribution compares to the Table amount that is provided for each of them when considered payor parents.

This will provide the judge with better insight when deciding whether the adjustments to be made to the set-off amount are based on the actual sharing of child-related expenses. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to the other. [paras. 40-51]

Section 9(

b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40percent to more than 40 percent. This paragraph recognizes that the total cost of raising children may be greater in shared custodysituations than in sole custody situations. Given that some applications under s. 9 are not meant to obtain a variation order but constitute afirst order and that the Table amounts in the Guidelines do not assume that the payor parent pays for any expense for the child, the courtwill consider all of the payor parent's costs.

The court will examine the budgets and actual expenditures of both parents in addressing theneeds of the children and determine whether shared custody has resulted in increased costs globally. These expenses will be apportionedbetween the parents in accordance with their respective incomes. [paras. 52-53] Lastly, s. 9(

c) vests the court with a broad discretion to analyse the resources and needs of both the parents and the children. It isimportant to keep in mind the objectives of the Guidelines, requiring a fair standard of support for the child and fair contributions fromboth parents. The court will look at the standard of living of the child in each household and the ability of each parent to absorb the costsrequired to maintain the appropriate standard of living in the circumstances. Financial statements and/or child expense budgets arenecessary for a proper evaluation of s. 9(c).

There is no need to resort to s. 10 and s. 7 of the Guidelines either to increase or to reducesupport, since the court has full discretion under s. 9(

c) to consider "other circumstances" and order the payment of any amount above orbelow the Table amounts. It may be that s. 10 would find application in an extraordinary situation, but that is certainly not the case here.[paras. 68-72] It is important that the parties lead evidence relating to ss. 9(

b) and 9(c), and courts should demand information from the parties whenthe evidence is deficient. A court should neither make "common sense" assumptions about costs incurred by the payor parent, nor applya multiplier to account for the fixed costs of the recipient parent. [para. 57] [para. 61] [14] This case concerned maintenance for one child with the mother having a guideline income of $68,000 and the father $87,000.

When the parties moved to a 50/50 sharing of their son the father applied to reduce his maintenance payment of $563 p/month. [15] The motions judge reduced the maintenance to $100 p/month; the Divisional Court set that order aside and ordered the father topay the full guideline amount of $688 p/month. The Court of Appeal reduced that to $399.61 p/month and the Supreme Court of Canadaset the maintenance at $500 p/month. The Honourable Mr.

Justice Fish in dissent would not have interfered with the decision of theCourt of Appeal. [16] I mention this history to illustrate how difficult it can be for even legal professionals to reach consensus on this type of mattersuch that the parties here should not be perplexed that despite their best efforts they have been unable to agree upon an appropriateamount. [17] Prior to the Contini decision our Court of Appeal considered

section 9 issues in the case of Berry v Hart 2003 BCCA 659. Inthat decision Saunders, J.A., has some very apt comments as to the “... negative potential of s.9 ...” and the unfortunate dynamic it cancreate. This is set forth in the following extract from that decision: 4 One view of s. 9 requires parents near the 40/60 time divide to become, in effect, time accountants. A court may be presented withevidence as to the hours, part days, days or weeks of a year that are spent by the children in the respective homes, at school or under thesupervision of others, on school and non-school days.

Often the evidence is in conflict and, if one is able to determine the time splitbetween the parents, there is still the question of the "type" of time that falls into the account column. In effect, rather than assessing theessence of the situation to determine whether there is truly shared custody or not, this approach turns a court into a calculator and thehearing into an accounting exercise. 5 Prior to promulgation of the Guidelines a formal connection between child support obligations and time spent with children waseschewed where possible, at least in British Columbia.

As a result any reward for denial of access was minimized. Parliament has alteredthat stance through the power given to the Governor in Council to establish guidelines.

Although Parliament did not directly address thesituation of child time-sharing in statutory language, s. 9 of the Guidelines now formally links time to money. 6 In a world where the budget of one or both parents is likely to be pinched, this linkage can create real pressure to increase or decreaseparent-child time where it is near the 40/60 divide, creating financial reward or penalty that may be disproportional to the short time thatis said to qualify or disqualify a situation from the application of s. 9.

While I do not say such is the case here, I note that the learnedChambers judge queried whether one or other of the parents was manipulating time for financial reason.

Courts would be unrealistic, inmy view, in failing to recognize that the 40 percent provision of s. 9, if approached with slavish accounting of small units of time,aggravates both the s. 9 financial incentive and financial disincentive inherent in an increase of a child's time with the minority-timeparent. 7 The negative potential of s. 9 has been subject to comment by trial judges who see examples at first instance and, in this Province, bymasters who handle a large volume of the interim child support applications. For example, in Hall v.

Hall (1997), (BCSC), 35 B.C.L.R. (3d) 311, 30 R.F.L. (4th) 333, in a passage referred to by this Court in Green v. Green (2000), 75 B.C.L.R. (3d) 306, 6R.F.L. (5th) 197, 2000 BCCA 310, Master Joyce (now Mr. Justice Joyce) said at para. 11: [11] I must say that I am distressed that one of the results of this new scheme of legislations seems to be that courts are now required totrack the hours which the children spend under the care of or subject to the primary responsibility of one parent or the other. I have toquestion whether such an exercise is in the best interests of the child.

The figure of 40% seems arbitrary. Up to that magic number thecourt has no ability to recognize access costs, which might be quite significant, unless the matter can be brought within the "hardship"section of the Guidelines (s. 10). Once the magic number is reached the court is given a wide discretion to apportion the costs associatedwith the care of the children in accordance with all relevant financial circumstances of the parties.

I have a very real concern that thisnew regime may encourage the custodial parent to discourage the maximum contact between the children and the other parent for fear ofthe economic consequences which may result. The custodial parent, or the parent with primary responsibility for the care of children,

may be reluctant to agree to an order for "liberal and general access" unless the order makes it clear that the generosity does not exceed 40%. I question whether this is in the best interests of the children. 8 The drag (or push, depending on the viewing position) discussed by Master Joyce may not be consistent with the intent of s. 16 of the Divorce Act : 16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. 9 One must also ask, considering that this approach may satisfy only the law of unintended consequences, whether the minutiae of such record keeping really determines whether s. 9 of the Guidelines applies. Rarely can anything be measured with precision.

Even science recognizes that all measurements are subject to a margin of error. 10 In my view the issue is a matter of judgment not amenable to simply a time accounting exercise.

I consider that in determining whether the threshold level for application of s. 9 is met the question is whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level is achieved. It follows, in my view, that a court may assess child-parent time as meeting the s. 9 criteria without a tight accounting.

That assessment should be made by considering the broader context of the parenting arrangement. It perhaps bears mentioning, further, that simply finding that a parental regime comes within s. 9 does not compel an automatic reduction in child support. That determination must be made considering all of the criteria in ss. (

a) to (

c) of s. 9 [ 18 ] Saunders, J.A. also noted at paragraph 30 “... that the discretion of the court must always be exercised with a view to the best interests of the children.” In this case the actual incomes of the parties are not given other than it is said that the payor’s income was “significantly higher.” The result was that the majority affirmed the lower court decision that the father pay the full guideline amount.

The dissenting judgment would have given the father a 1/12 reduction. [ 19 ] Another helpful decision re s.9 issues is that of Green v Green 2000 BCCA 310 where Madame Justice Prowse very comprehensively reviewed the various considerations that arise from such applications including a discussion of what is referred to as the “cliff effect” at paragraph 32.

This decision may be read as a caution to avoid “... the attraction of simplicity ...” by using a straight percentage reduction once the 40% threshold is attained. [ 20 ] At paragraph 33 of the reasons, mention is made of an approach used in some American jurisdictions to mitigate the “cliff effect”; this being the use of “... a multiplier of 1.5 to the resulting figure to be paid by the access parent.” The court concluded however (para. 34) “... that a particular formula should not be regarded as definitive.” At paragraph 35 the court set out the type of information that could be helpful and relevant to the exercise of the court’s discretion and also acknowledged the difficulties that lay litigants might have in assembling this information and placing it before the court. [ 21 ] In the Green case the payee was found to have an income of $35,000 per year and the payor $82,000.

At paragraph 40 of the decision, three different formulas are considered for calculation of a reduction from the full guideline amount of $1,040. The formulas give a low of $422 and a high of $634. The formula which resulted in the lowest maintenance payable is similar to that used by the parties herein. [ 22 ] At paragraph 49 of the decision the court summarized the more relevant factors considered in reaching its decision. This includes noting that the financial circumstances of the primary parent were less favourable and that she bore the greater burden of financial expenses for the children.

The Court noted that this disparity had been addressed in part by an award of spousal maintenance. In the case before me there was no award of spousal maintenance other than the somewhat token sum of $6,000 paid in 2008 at the time of the signing of the separation agreement. In the result the court concluded that none of the discussed formulas adequately addressed the

section 9 issues “... from the perspective of the best interest of the children.” (para. 49). The court did grant a reduction of $250 to the payor leaving the sum of $790 payable to the mother. In the Green decision it was also noted that the mother was out of the workforce for a number of years in the children’s early years and there is similar evidence from T.M.R. though possibly to a lesser extent. [ 23 ] I have assumed for the purpose of this decision that the guideline amounts have already taken into account any child tax benefits and/or universal child care benefit that is received by T.M.R.

The 2008 separation agreement provided that these would be received exclusively by her (para.26). [ 24 ] The cases I have referred to, and others such as Lamla v Kowall ( 2001 BCSC 765 ), generally do not support “cliff-effect” reductions in

section 9 situations particularly where there is a disparity in the incomes and/or standard of living between the spouses. Financial Evidence [ 25 ] The parties provided more evidence with respect to time issues regarding the children than as to actual expense issues. T.M.R.

gave evidence that her daughters tend to look to her with regard to purchases which might include such things as clothing, shoes, underwear, personal grooming and feminine hygiene products. C.M.R. said that he also assists with such purchases and hopefully that involvement will continue. Both T.M.R. and C.M.R. present as white-collar professionals who are sensibly style-conscious and who might be said to be aware of “dress for success” issues and who would want to see their children appropriately attired. It would be natural for the children to turn to their mother more so than their father in this regard.

With respect to expenses such as this and possibly as to matters such as vacations, recreational activities, dining out and entertainment, it will generally be seen as not in the best interests of the children that one household or parent is always in a position to treat the child or children substantially different from the other. [ 26 ] In this matter C.M.R. has not had to manifestly adjust his core living expenses to accommodate having his daughters 40% +/- 5% of the time.

With his new partner and his economic situation he would be expected to maintain the type of residence that he does or some reasonable variation. For a person in his position a single-family residence presents more as a long-term capital investment than as a child-care expense such as food and clothing. [ 27 ] The parties have not provided the type of detailed financial analysis that the Contini and other decisions refer to but neither has T.M.R. asked for payment of the full guideline amount.

It is also to be noted as mentioned in the Contini case and others that the discretion of the court is not limited to payment of guideline levels or less but can include an order for support above the guideline amount. I consider that at least the evidentiary onus in cases such as this should be on the party seeking a variation from the guideline amount.

Summary

a) I consider that the “time” evidence is sufficient to activate the discretion provisions of s.9 albeit marginally so. I would reiterate to the parties the very cogent advice of their Child Advocate Mediator, Stephen McPhee, in his letter of August 17, 2012 (Exhibit 1) as to shielding the children from the “legal/financial issues” that arise from their parenting time preferences as they may exist from time to time;

b) While unfortunately no convenient formula emerges from the case law to assist the parties with respect to any future application the case law does not appear supportive of any substantive departure from the guideline amounts particularly where there exists a marked discrepancy between the incomes of the parties;

c) That in any future application it should be noted that T.M.R. is not restricted to the position she took at this hearing and could potentially request that C.M.R. pay the full guideline amount (or more) or pay an amount closer to the full guideline amount;

d) That in any such future application the parties would presumably provide further and better information as to actual costs of having the children in their households;

e) That with regard to such “actual costs” whether you have the children 2 nights every 14 days or 6 nights every 14 days, you may still have the same size house and some expenses will be more child-related than others;

f) That also with regard to “actual costs” a higher income parent who demonstrates that they are spending more than the lower income parent on the children (particularly on “discretionary” spending items), may in fact be establishing a reason not to reduce the guideline amount if this would have the effect of deepening the disparity in the standard of living between the households. Decision [ 28 ] While I appreciate that the calculations relied upon by C.M.R. have been arrived at in good faith and are based upon a literal

interpretation of s.9, I do not consider that they adequately address the actual discretion that the court is required to exercise in the best interest of the children as set out in the case law to which I have earlier referred. [ 29 ] I consider that T.M.R.’s suggested calculation has greater validity according to the case law as I perceive it to have application to the facts of this case.

The case law could conceivably be taken as favouring a result even more adverse to C.M.R. but in the absence of more detailed evidence, there is no reason to go beyond the parameters the parties have set out in their respective submissions. [ 30 ] T.M.R.’s calculation may be summarized as having C.M.R. paying the full guideline amount with a reduction of ½ of the guideline amount that would be payable by her to C.M.R. if their situation was reversed. For 2012 the actual numbers are $1,672.09 less $403.08 (1/2 x $806.16) = $1,269.01.

The order will be retroactive to May 1, 2012 as responsibly agreed to by the parties. As of August 1, 2013 this means that C.M.R. owes retroactive support to T.M.R. of $6,154.00. Half of this amount is to be paid by November 30, 2013 and the balance by February 28, 2014. [ 31 ] Liberty to apply. BY THE COURT ______________________________ The Honourable Judge J.D. Cowling