K.S.L. v. B.M. Date:, 2015 BCPC 201

Citation: K.S.L. v. B.M. Date: 20150713 2015 BCPC 0201 File No: F66264 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K. S. L. APPLICANT AND: B. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Ms. L

Appearing in person: Mr. M Place of Hearing: Nanaimo , B.C. Date of Hearing: May 19, 2015 Date of Judgment: July 13, 2015 The Facts [ 1 ] Mr. M and Ms. L married in May, 1996 and separated in January, 2011. They are the parents of three children, a daughter, S, now age 18, a son, C, now age 16, and a second daughter, L, now age 14. Mr. M lives in Victoria and Ms. L in Nanaimo. It is a 90 minute drive from one city to the other. [ 2 ] Mr. M & Ms. L are the parties to a detailed separation agreement dated February 1, 2012. Articles 5.1 - 5.3 provide: 51.

The Wife and the Husband shall have joint custody of the Children. 5.2 The Children shall reside primarily with the Wife and be under the primary day to day care of the Wife. 5.3 The Husband shall have reasonable and generous access to the Children. At the hearing before me, the parties agreed that Mr. M would have parenting time with the two younger children at his home in Victoria on alternating weekends from 6:30 p.m. on Friday to 8:00 p.m. on Sunday, that Ms. L would be responsible to deliver the children to Mr. M’s home on Friday evenings, and that Mr. M would return them to Ms.

L’s home in Nanaimo on Sunday evenings. In his written submissions, Mr. M asks for an order that he drive both ways on one weekend and that Ms. L drive both ways on the next. He explains that such an arrangement would allow him to spend some weekends in Nanaimo and to participate in his children’s activities there. Ms. L objects to that proposal, and adheres to the driving

schedule agreed at the hearing. [ 3 ] Articles 5.5, 5.6 and 5.8 of the separation agreement provide: 5.5 Based on the Husband’s estimated child guideline income in 2012 … the Husband shall pay to the Wife support for the Children in the sum of $1134 per month …. 5.6 The Husband and the Wife shall share the costs of the Children’s special or extraordinary expenses as defined in

Section 7 of the Federal Child Support Guidelines … in proportion to their respective guideline incomes …. * * * 5.8 … the support payable by the Husband to the Wife for the Children pursuant to paragraphs 5.5 and 5.6 of this Agreement shall be reviewed on or after the 31 st day of May of each and every calendar year to determine the parties’ previous calendar year’s incomes for the purposes of adjusting the parties respective obligations under paragraphs 5.5 and 5.6 of this Agreement for the following 12 months effective June 1 of the year in question …. [ 4 ] Mr.

M’s total income in 2014 was $90,985, comprising employment income of $79,873 and RRSP withdrawals of $11,112. Mr. M says that his child support obligation should be assessed solely by reference to his employment income, and that his RRSP withdrawals should be disregarded for that purpose. [ 5 ] Ms. L earned $47,000 in employment income in 2014. In the past, she also received the child tax credit for the children, but says that she is no longer eligible for that credit. Mr.

M asserts that she continues to be eligible for child tax credits of $420 per month, and asks that her income for child support purposes be assessed at $52,000. He provides no evidence in support of the assertion that Ms. L continues to be eligible for the benefit and no basis for the calculation of the amount. [ 6 ] In September, 2014, S enrolled in a post-secondary education program in Vancouver, and has been in attendance in that program since. She is expected to graduate in May, 2016. S’s tuition (for the entire program) is $45,000.

A family friend in Vancouver provides her with room and board at the rate of $700 per month, a significant discount from the market rate. Mr. M estimates the total cost of the program (including S’s living expenses) at $63,000, and seeks an order that the parents divide that cost between themselves in proportion to their incomes. [ 7 ] Mr. M paid S $8,500 on account of tuition in September, 2014. He also paid her $700 per month on account of living expenses from September, 2014 to February, 2015. [ 8 ] Ms.

L advanced a loan of $1,500 to S to assist her with tuition, and bought her a computer (required for S’s program of study) at a cost of $673.33. Since February, 2015, Ms. L has been paying S $200 per month to assist her with living expenses. [ 9 ] S is a beneficiary of a registered education savings plan, established by Mr. M’s father for the benefit of Mr. M’s three children. Mr. M says that S has received, to date, $10,000 from the RESP, and will receive a further $3000 from that source before she graduates. Ms.

L confirms that S has received $10,000 to date, but says that she will receive an additional $11,552 if she completes her present program.

[10] S will also receive a lump sum of $23,896.16 on her 21st birthday (about 2 ½ years from now), being the proceeds of settlementof her claim for personal injuries arising from a motor vehicle accident when she was a child. The Travel Issue [11] It would be reasonable to expect parents to be able to work out sensible and flexible arrangements on issues like childtransportation. I made that observation to Ms. L and Mr. M during the hearing. They concede that such an expectation would bereasonable, but tell me that they have been unable to reach agreement on issues of this kind.

It is apparent, and they concede, that thereis no realistic prospect of future cooperation between them on any issue. They are both weary of conflict. Because the parents areunable to work cooperatively and flexibly, any resolution which I impose will be, of necessity, arbitrary and inflexible. It seems to methat the agreement reached at the hearing is not unfair, and should be enforced. Assessment of Incomes for Child Support Purposes [12] There are two issues: (

i) whether to include Mr. M’s RRSP withdrawals in the assessment of his income; (ii) whether to includean amount on account of possible child tax credits in the assessment of Ms. L’s income. [13] In McKenzie vs Perestrelo 2014 BCCA 161; [2014] BCJ No 734; 57 BCLR (5th) 40 @ paragraphs 83 - 84, Justice Kirkpatricksaid that: … there is a presumption that RRSP withdrawals should be included in income for the purpose of calculating child support ….

Thepresumption may be displaced by an array of circumstances. , and that the spouse seeking to exclude RRSP withdrawals from the calculation carries “ … the burden of establishing that thepresumption should not apply …”. [14] Mr. M did not address the issue in his evidence at the hearing. In his written submissions, Mr. M says: Most of the amounts withdrawn are amounts that were deposited in the same year. I am part of a group RRSP through my employer,which increases my employment income, through matching contributions up to 3%. From that statement, I infer that it has been Mr.

M’s practice to make RRSP contributions equal to 3% of his salary each year, thusattracting a matching contribution from his employer, and then to withdraw some or all of the contributions so as to augment his annualcash flow. In effect, he can achieve a 3% salary increase by so doing.

That does not seem to me to be a circumstance which shoulddisplace the presumption articulated in McKenzie vs Perestrelo. [15] In Gold vs Romhanyi 2006 BCSC 443; [2006] BCJ No. 612 and in Krislock vs Krislock [1997] SJ No. 698; (SK KB), [1998] 4 WWR 230; 34 RFL (4th) 420, it was held that child tax credits do not fall within the definition of “income” set out insection 16 of the Guidelines, and so are not to be taken into account in the apportionment required by section 7(2).

In Canada vsCanada-Somers 2008 MBCA 59, the Manitoba Court of Appeal reached the opposite conclusion, and held that such credits must betaken into account in that apportionment. Neither Gold vs Romhanyi nor Krislock is mentioned in the judgment in Canada vs Canada-Somers, and that judgment contains no discussion of the statutory definition of “income”. Gold vs Romhanyi is a judgment of theSupreme Court of British Columbia, and so binding upon me.

I am not bound to follow judgments of the Manitoba Court of Appeal: Rvs Vu 2004 BCCA 230; [2004] BCJ No. 824 @ paragraph 24. [16] I observe that section 7(3) of the Guidelines has no application to the present question. That is true for two reasons: a. Section 7(3) requires tax credits to be taken into account when determining the amount of an expense under section 7(1), notwhen apportioning the expense under section 7(2).

So, for example, if S is entitled to tax deductions or tax credits because she paidtuition, those credits should be taken into account in assessing the amount of the expense, but not in apportioning the net expensebetween the parents, or between the parents and the child. b. The tax credits to be taken into account are those “relating to” the special expense. The tax credits to which Mr. M refers arepayable, not because S is a post-secondary student, but rather because custodial parents are entitled to them simply by reason of beingcustodial parents.

They do not “relate to” to the special expenses in issue (being the costs of S’s educational program). [17] I conclude that the child tax credit is not to be taken into account when apportioning special expenses between parents. [18] I assess Mr. M`s income for child support purposes at $91,000, and Ms. L`s at $47,000. Basic Child Support [19] Because S has not yet attained the age of majority, Mr.

M continues to be responsible to pay basic child support for threechildren in accordance with the Federal Child Support Guidelines SOR/97/175 (“the Guidelines”), despite the fact that S no longer lives at home: Bockhold vs Bockhold 2006 BCCA 472; [2006] BCJ No. 2755; 59 BCLR (4th) 211; P.R.M. vs B.J.M. 2012 BCSC 1795; [2012]BCJ No. 2521 @ paragraphs 111 - 116. The guideline figure for a payor spouse with three children and an income of $91,000 is $1,762

per month. Mr. M is required to pay child support in that amount on the first day of each month, commencing May 31, 2015. [ 20 ] Different considerations may arise after S attains the age of majority. In

article 5.8 of the separation agreement (quoted in paragraph 3), Mr. M and Ms. L agreed on an annual review of the child support obligation, to be effective on May 31 of each year. When S turns 19, Mr. M may wish to apply for an adjustment on that ground. S’s Expenses [ 21 ] Section 7(2) of the Guidelines articulates a “guiding principle”, to the effect that the parents are responsible to contribute to special expenses in proportion to their incomes “… after deducting from the expense, the contribution, if any, of the child.” However, that is a guiding principle, not a formula.

The circumstances of an individual case may justify a different apportionment: Razavi- Brahimi vs Ershadi 2007 ONCJ 406 ; [2007] OJ No. 3736 ; 43 RFL (6 th ) 439 @ paragraphs 14 - 15. [ 22 ] In this case, I am relieved of the responsibility to decide whether a different apportionment is justified because the parents have agreed that they will divide special expenses in proportion to their incomes: paragraph 3, above. [ 23 ] “There is no ‘formula’ to establish the proper contribution from the child, if any contribution is required”: Razavi-Brahimi vs Ershadi @ paragraph 14 . [ 24 ] I accept Mr.

M’s estimate of $63,000 as the total cost of S’s educational program. Of that, Mr. M has already contributed $12,000. Ms. L has contributed $1,873, and has also advanced a loan of $1,500. S has received $10,000 from her RESP, and will receive more from that source, although the amount is not clearly established by the evidence. So, there remains a balance of about $39,000, to be funded from four sources: (

i) future receipts from the RESP; (ii) contributions from S; (iii) contributions from Ms. L; and (iv) contributions from Mr. M. [ 25 ] I think it reasonable for S to contribute an amount equal to that which she will receive on her 21 st birthday. It may be that she will find it necessary to borrow against her expectations to meet her immediate needs, but any bank will happily lend at a favourable rate against the security of funds in a solicitor’s trust account. So, I would assess the contribution to be expected of S at $24,000, leaving $15,000 to be funded from the other three sources.

Because future receipts from the RESP are uncertain, I think that the $15,000 balance should be addressed as follows: a. The total income of Mr. M and Ms. L is $138,000. Ms. L’s income ($47,000) is 34% of the total. The amount to be funded is $15,000. Ms. L should contribute one third of that and Mr. M two thirds. Payment should be made over the next 10 months in equal monthly instalments. b. If S receives any further payments from her RESP, Mr. M should be entitled to reduce his future contribution by two thirds of the amounts received by S, and Ms. L by one third. [ 26 ] I have not overlooked the fact that Mr.

M’s previous contributions ($12,000) are much more than double those of Ms. L ($1,873). I do not think it appropriate to make a retroactive adjustment in recognition of that. Fairness demands that a spouse who seeks a contribution to child care expenses discuss the proposed expenditure with the other spouse in advance, and attempt to reach an agreement as to the need for the expense and what level of expense is reasonable and justifiable.

A failure to pursue good-faith discussions of that kind may be a bar to a retrospective award: K.A.M.R. vs W.G.H. 2014 BCSC 103 ; [2014] BCJ No. 112 @ paragraphs 55 - 56; Plett vs Plett 2010 BCSC 758 ; [2010] BCJ No. 1013 @ paragraph 49. In this case, there has been no constructive engagement between Mr. M and Ms. L on the issues, and a retroactive adjustment is therefore unwarranted. Special Expenses for C and L [ 27 ] Issues were raised at the hearing over special expenses for C and L. It was apparent that meaningful consultation between Ms. L and Mr. M on those issues has not occurred.

Given the parents acknowledged inability to cooperate, some structure will be necessary. Accordingly, I make the following orders under the authority of

section 222 of the Family Law Act SBC 2012, C 25 : a. Ms. L must prepare a budget for special expenses which she proposes to incur for C and L during the 12 months commencing September 1, 2015. The budget must include sufficient information to allow Mr. M to make a reasoned assessment of each budget item. b. Ms. L must deliver the budget to Mr. M by July 31, 2015. c. Mr. M must provide a written response to Ms. L by August 15, 2015. If he objects to any budget item, he must state the basis for his objection. d. If the parties are unable to agree on the special expenses budget for C and L, Ms. L should

schedule a court application on that subject for September, 2015. e. Whether final budget is agreed or settled by court order, Mr. M will be responsible for two thirds of special expenses and Ms. L for one third. f. Ms. L will render to Mr. M on the first day of each month an accounting of special expenses incurred (within the limits set by the budget) during the preceding month. Mr. M will pay to Ms. L two thirds of the amounts incurred within 14 days of delivery of the statement of account. If Mr. M disputes any item in the statement of account, he may bring an application to court to challenge the item. g.

It may be that unforeseen circumstances may arise during the year which will lead Ms. L to think that a special expense, not provided for in the budget, should be incurred. If so, she must notify Mr. M, in writing, and seek his agreement to the expense. If the parents do not agree, Ms. L should apply to the court to resolve the question before incurring the expense.

Health Care Costs [ 28 ] At the hearing, the parents agreed that the children are entitled to dental and extended health benefits provided by Mr. M’s employer, that Mr. M would reimburse Ms. L for expenses covered by his benefit program within 7 days of presentation of receipts for the expenses claimed, and that Mr. M would then arrange for reimbursement from his employer at his convenience. In her written submissions, Ms. L proposed a different arrangement in relation to that issue. I am unable to adjudicate the question on the information provided to me. Mr.

M has expressed no discontent with the terms agreed at the hearing. If the parents are unable to reach agreement on this question, either of them may bring an application to the court. July 13, 2015 __________________________ T. Gouge, PCJ