J.R. v. C.R. Date:, 2015 BCPC 54

Citation: J.R. v. C.R. Date: 20150215 2015 BCPC 0054 File No: F67282 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.R. APPLICANT AND: C.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on their own behalf: J.R.

Appearing on their own behalf: C.R. Place of Hearing: Nanaimo , B.C. Date of Hearing: January 8, 2015 Date of Judgment: February 19, 2015 Introduction [ 1 ] THE COURT (Orally): By way of cross-applications brought under the Family Law Act ( FLA ) S.B.C. 2011, c. 25, the parents of three children seek to change the terms of an Order of this Court made under the former Family Relations Act ( FRA ) on February 7, 2013, (the "February 2013 Order") as it relates to parenting time, child support, and spousal support. [ 2 ] J.R. (the "Mother") and C.R. (the "Father") are the parents (collectively the "Parents") of three male children (collectively the "Children"), namely, (

a) N.G.R., birth date [dob], (the "Child N.G."); (

b) J.R.R., birth date [dob], the -- [ 3 ] [THE MOTHER]: [provides correct year of birth]. [ 4 ] THE COURT: I am sorry, [correct year of birth], (the "Child J.R."); and (

c) N.D.J.J.R., birth date [dob], (the "Child N.D.") [ 5 ] Since the making of the February 2013 Order, the Child N.D. has been born, the Father has a new, but somewhat uncertain career in the RCMP and the Mother is presently acting as a surrogate mother within the meaning of s. 3 of the Assisted Human Reproduction Act ( AHRA ) S.C. 2004, c. 2, and as a surrogate within the meaning of s. 29(1) of the FLA . Background of the Court Proceedings [ 6 ] As a result of a hearing, the February 2013 Order was made containing the following provisions: (

a) The Parents were named as joint guardians of the two born children and the terms of joint guardianship were set out. (

b) The Parents were granted joint custody of the two born children with primary residence being with the Mother. (

c) The Father's access to the two born children was defined as every second weekend from 6:30 p.m. on Saturday to Tuesday evening until the Father departed to RCMP depot in Regina, Saskatchewan. (

d) Following departure to RCMP depot in Regina, Saskatchewan, the Father's access to the born children was to be every other weekend from Sunday evening to Tuesday evening and any further access at such times and places as agreed by the parties. (

e) The Father was found to have imputed Guidelines income of $38,300 for 2013. (

f) The Father was ordered to pay the Mother the sum of $587 per month for the support of the two born children commencing February 1st, 2013, and on the first day of each and every month thereafter. (

g) The Father was ordered to pay the Mother the sum of $200 per month for spousal support commencing February 1st, 2013, and continuing on the first day of each month thereafter until further Order of the Court. (

h) The Father was ordered to provide medical and dental coverage for the two born children "as is available through his employment." [ 7 ] The Mother filed her application on February 6th, 2014, to increase child support and spousal support on the basis of the Father's new job with the RCMP, his change of income, and the change in the number of the Children. [ 8 ] In his Reply and cross-application filed April 9th, 2014, the Father opposed the Mother's application on the basis that he was seeking to have the Children live with him half time and further seeking to have the spousal support duration set to half the length of the marriage on the basis that the Mother now had time to seek employment.

In her filed Reply on April 24, 2014, opposing the Father's cross-application, the Mother indicated that the Father's occupation would not allow him to have half-time with the Children, indicating that she did have employment, and further citing that the Children "will be school age and go to school in Nanaimo." Circumstances at the Time of Making of the February 2013 Order The Parents' Relationship Together [ 9 ] The Mother and Father married on December 21st, 2007, and around August 4, 2012, started to live separate and apart under the same roof. By November 1st, 2012, they were no longer residing together.

The two born children continued to reside with the Mother, but the Father had frequent access with the children. The Parents have remained married and not commenced divorce proceedings pending the outcome of this matter. The Father [ 10 ] At the time of the hearing giving rise to the February 2013 Order, the Father was and had been employed as an outside service technician for several years with the local cable company. He had just been accepted into the RCMP on February 6th, 2013, but had not yet departed for his RCMP training in Regina. That subsequently occurred around May 18, 2013.

[ 11 ] At the time of the 2013 hearing, the Father had been earning a good income as a service technician. According to his January 7, 2013, sworn financial statement, his Line 150 income was $55,600 for 2009; $60,019 for 2010; $53,237 for 2011; and his year-end pay statement showed his gross income to be $53,108 for 2012. At the time of the February 2013 Order, the Father was not certain as to what his income would actually be for the 2013 taxation year. Accordingly, the imputed income figure of $38,300 was apparently utilized in calculating child support for two children and spousal support.

The Mother [ 12 ] In February 2013, the Mother was employed as a technical services representative at a call centre with the same cable company as the Father. She had held the job since approximately December 2006. She was on unpaid medical leave from that employer and had been since approximately April of 2012. [ 13 ] She was earning some income running a small unlicensed daycare in her home starting around January 2013 and was working for the family of an autistic child as a behavioural interventionist, for which she had no formal training, but had some background since her own brother was autistic.

She was pregnant with the Child N.D. [ 14 ] According to her February 6th, 2013, sworn financial statement, her Line 150 income was $16,108 for 2009; $3,511 for 2010; and $11,450 for 2011. Her estimated income for 2012 was apparently to be $11,450. It is noteworthy that her 2007 Line 150 income was $25,845 and her 2008 Line 150 income was $22,063 which, I understand, was earned while working for the cable company. I understand that the variation in her income arises out of the fact that she was on maternity leave for the first two children and also, more recently, had been on unpaid medical leave.

Circumstances from February 2013 Order to Present Time The Father [ 15 ] As noted above, the Father, who is approximately 37 years old, started his RCMP training in May of 2013. That continued until his graduation on November 17th, 2013, with the rank of constable. On November 28, 2013, he was assigned to a mid-Island detachment of the RCMP to start his six-month probation period and to complete his field training program with that detachment. [ 16 ] The Father had difficulty meeting the benchmarks required in his field training program and, accordingly, was placed on administrative duties in early 2014.

He has approximately two weeks left in order to satisfy the requirement of the program and, if he does not complete it successfully, that results in automatic termination from the force. [ 17 ] At the time of hearing of this matter, the Father was on paid stress leave as a result of a major depressive episode and anxiety attacks which were apparently affecting his job performance.

He is receiving medical treatment for this problem. [ 18 ] In 2013, the Father actually earned the total Line 150 income of $45,070 from his four months of employment with the cable company including some overtime before he resigned and from six months of RCMP training and two months of his RCMP full-time pay. Notwithstanding previous Court Orders directing him to specifically provide information concerning the RCMP pay grid which applies to him, he has not provided that information.

The last sworn financial statement from the Father was sworn on August 11, 2014, which contains his 2013 income tax information. [ 19 ] According to the Father's viva voce evidence, his present-day salary with the RCMP is $49,680. The Mother agrees with this figure. He said that he earned $51,000 in 2014 as a result of working some available overtime.

I am presuming that he continues to earn the full base RCMP salary while he is on stress leave. [ 20 ] According to his August 11, 2014 financial statement, the Father was anticipating a raise to his base salary upon completion of his field training and, at the end of the probationary period. That would take his income to a base rate of $65,840.

That raise, of course, is being deferred pending successful completion of the Father's probationary period with the RCMP. [ 21 ] Upon being assigned to his detachment, the Father moved out of the Greater Nanaimo Area, where the Mother and the Children live, to a location closer to his detachment posting. Owing to his variable RCMP work schedule, including 12-hour shifts covering both days and nights and a four-day-on/four-day-off rotation and other job demands including overtime requirements, the Father was seeing the children on a

schedule different than was set out in the February 2013 Order. [ 22 ] The daycare and school schedules of the two older children complicated the scheduling of his time with them, especially since he did not live near Nanaimo and had to travel back and forth to Nanaimo for the eldest child's school and the second child's daycare schedules. [ 23 ] After the Father started active duty with the RCMP and from about February to October 2014, the Father was attempting to see and to have the care of the Children for about three-and-a-half days, with three overnights, on his days off.

He was obviously struggling with the lack of sleep, the travel to and from Nanaimo, and a lack of down-time on his days off. He did not, in fact, always see the Children for the entire planned period of time and, on several occasions, had to forego that time of seeing the Children due to work and to catch up on training commitments or for personal reasons. [ 24 ] The Father's

schedule changed to Monday to Fridays in the fall of 2014 when he went onto administrative duties. His daily

schedule was from 8:30 a.m. to 4:30 p.m. with weekends off. This permitted him to have the Children on weekends. Presently, the Father has the Children alternate weekends from Saturday morning around 9:00 a.m., overnight to Sunday afternoon at approximately 7:00 p.m. The Father has more time available to see the Children while he is on stress leave and not working. I understand that, presently, the

schedule has not been changed to reflect this, and I gather the Father is using the available time to complete his recovery. [ 25 ] I have concluded that the Father did not have the Children with him 40 percent of the time as he estimates that he did when he was working the four-day-on/four-day-off shift. Neither of the parents kept formal records.

[ 26 ] The Father has entered into a new relationship with A.R., who is a licensed practical nurse working for Vancouver Island Health Authority. They have lived together since May of 2014. They have moved into a rental accommodation in the Nanaimo area. A.R. has two children who are approximately the same age as the Child N.G. and the Child J.R., and who live with her and with the Father in a four-bedroom house. A.R.'s eldest child is high-functioning autistic. The father of A.R.'s children has them every other weekend. In addition, the Father's own mother lives in the house.

She is presently not working and apparently is able to provide childcare. I have concluded that the Father and his new partner are sharing the rent on an equal basis, but with some limited contribution from the Father's own mother to the rent and some of the household operating expenses. The Mother [ 27 ] The 34-year-old Mother continues to live in a four-bedroom duplex in Nanaimo with all three Children. That has been their home from around the time of the separation which she has maintained for the stability of the children.

There is a downstairs suite that could be rented out, but the Mother has not been successful in doing so. She previously had a roommate who occupied that suite during 2012 and 2013 and who helped to share some household and rental expenses. [ 28 ] The eldest Child N.G. will be assessed at the appropriate time for possible ADHD which runs in the Mother's family. He is characterized as having "high emotional sensitivity" and I gather is quite anxious. He is described as being sensitive to change. The Child J.R. has developmental delays in his speech which has now improved.

He is more adaptive than his older brother. Both of these children have been treated at the Nanaimo Child Development Centre. The Child N.D. had no identifiable special needs. [ 29 ] According to the Mother's sworn financial statement of November 24th, 2014, the Mother's total Line 150 income for 2012 was $14,794 and in 2013 was $8,989.

The Mother officially resigned while on unpaid medical leave from her employer, the cable company, in April of 2014. [ 30 ] The Mother's source of income for 2013 was generated partially by delivering newspapers from September 2013 through to August 2014, operation of her unlicensed daycare, and working as a behavioural interventionist.

Her job as a behavioural interventionist finished just before the birth of the Child N.D. in July of 2013 and is no longer available to her. [ 31 ] Owing to her own childcare responsibilities for the eldest two children, she has chosen not to continue with the operation of her unlicensed daycare. She says that decision makes her better able to transport the five-and-a-half-year-old and the four-year-old children to school and preschool and the Child Development Centre where they receive professional assistance for some of their developmental deficits.

In addition, she is the primary caregiver for the Child N.D., who is 18 months of age. [ 32 ] Her sources of income, therefore, during 2013 and 2014 have been the Child Tax Benefits and the money she receives for spousal support and for child support.

From the child support payments, she pays all extracurricular activities for the Children, including the fees for kindergarten supplies, as well as the unsubsidized portion of the preschool expenses for the Child J.R. and his daycare expenses. [ 33 ] The Mother entered into a surrogacy agreement pursuant to which she is carrying the child or foetus that was conceived by means of assisted reproduction procedures and derived from genes of a donor or donors. She is due to deliver that baby in mid-June of 2015, at which time the child will be returned to the biological parents.

According to the Mother's evidence, there is a formal surrogacy agreement between the Mother and the intended parents of the child that the Mother presently carries. The form of that surrogacy agreement was not entered into evidence. [ 34 ] The Mother says that pursuant to the terms of that surrogacy agreement, she is entitled to receive reimbursement of certain expenses such as food, medications, childcare expenses related to pregnancy, and emergency expenses all up to $1,950 per month.

I understand her evidence is that the maximum amount of reimbursement available is $20,000 during the course of the surrogacy pregnancy. She received her first amount of $1,950 in November of 2014 and, by the time of the hearing before me, had received another payment for a total of two payments of $1,950 each. [ 35 ] As I understand it, the Mother is not able to receive any fee or any other consideration for acting as a surrogate, except for the reimbursement of expenses incurred by her in relation to her surrogacy.

This is consistent with s. 6(1) and s. 12 of the AHRA . [ 36 ] The Mother's plan is to take a period of six weeks' recovery following the birth of the child that she is presently carrying and then to examine the available opportunities for her which will permit her to continue to care for the Children while at the same time generate some income. Her future plans, whether educational to complete her university degree or to take some additional training or to obtain gainful employment or all of these, are quite imprecise at this point.

However, she anticipates these plans will be clarified in the fall of 2015. [ 37 ] Her goal is to be able to work, ideally from home, while at the same time being able to look after the Children and thereby not incur childcare expenses. She says that she would be able to work on a more full-time basis once all the Children are in full-time kindergarten or at school The Present Relationship of the Mother and the Father [ 38 ] Unfortunately, the relationship between the Mother and the Father is quite strained.

They find it difficult to agree on several issues relating to the Children and especially those issues before this Court at present time. Both say that they need guidance and some direction from the Court. [ 39 ] The Mother indicates that it is important for the Father to have time with the Children. The Mother expresses concerns about the effect of unsettled and aggressive behaviour displayed by the two older children after spending time with the Father and especially in the present home environment with A.R. and her two boys. Issues Before the Court

[ 40 ] The issues to be decided by this Court are as follows: (

a) whether there has been a material change in circumstance in order to vary some or any of the final orders contained within the February 2013 Order; (

b) whether the existing parental responsibilities now contemplated by s. 41 of the FLA should be varied based on the best interests of the child as set out in s. 37 of the FLA ; (

c) whether the existing allotted parenting time contemplated by s. 42 of the FLA be varied; (

d) whether the amount of child support contained with the February 2013 Order be varied either on an ongoing basis or on a retroactive basis; (

e) whether the amount of spousal support be varied and should any variation be on a go-forward basis or on a retroactive basis; (

f) whether the surrogacy expense reimbursement for the Mother be considered or imputed as income of the Mother. Positions of the Parents Parenting Responsibilities and Parenting Time [ 41 ] The Mother says all three Children should continue to live with her on a full-time basis; that she be the primary caregiver; and that the Father should have reasonable parenting time with the Children which will be scheduled in accordance with the challenges of his variable work

schedule as a full-time RCMP member. [ 42 ] The Father says that, ideally, all three Children should be with him on an equal basis and that his mother would be able to look after the Children at his residence when his work

schedule does not permit him to be available to look after the Children. At present time, the Father cannot commit to a four-day-on/four-day-off

schedule since his RCMP career remains in flux. Spousal Support [ 43 ] The Father says that the Mother is not making any efforts to obtain income to support herself and the Children. Specifically, he says that he has now paid spousal support for a period of two years, which equals about half of the duration of the spousal relationship. Specifically, he says that her income should be imputed either at the minimum-wage level or, alternatively, based upon the amount that she is receiving by way of reimbursement for acting as a surrogate.

Therefore, her income should be imputed at approximately $23,000. [ 44 ] The Father wishes to take the Mother off of his extended medical and dental coverage, while at the same time maintaining coverage for the Children as required by the February 2013 Order. He intends on adding A.R. to his plan and he will be added to her plan. [ 45 ] The Mother takes the position that the reimbursement of expenditures that she is receiving as a surrogate should not be taken into account in computing or imputing her income.

Furthermore, she indicates that given the fact that she has a very young child for whom she is caring for, therefore it is not practical for her to obtain a substantial amount of employment and to thereby be required to incur childcare expenses for the Child N.D. She wants to maintain the extended medical and dental coverage for herself until the end of 2015.

Child Support [ 46 ] The Mother says that the Father should be paying the Federal Guidelines support for two children effective from February 1st, 2013, and for the additional third child from July 15th, 2013, using an income equal to his actual higher income for 2013, which was $45,070, rather than being based on his imputed income of $38,300 utilized in the February 2013 Order. [ 47 ] As I calculate it on this basis, the Father should have been paying, for two children, the amount of $684 for five months (from February to June of 2013) which equals $3,420 and, for three children, the amount of $754 for six months (July to December of 2013) which equals $4,524 for a total in 2013 due of $7,944.

The Father paid the amount set out in the February 2013 Order of $587 per month for two children during 11 months for a total of $6,457. Therefore, the arrears for 2013 equal $1,487. [ 48 ] For 2014, the Mother says the Father should have been paying for the three Children on the basis of $49,680 which is his base RCMP salary.

Therefore, the Father should have been paying child support of $991 per month for a 2014 annual total of $11,892. [ 49 ] The Father only paid $587 for January 2014 and then increased his payments to $991 without a Court Order and continued those increased payments from February to September of 2014, inclusive, when he then unilaterally reduced the payments to $587 per month for the months of October, November, December, and January of 2015.

The monthly difference is $404 which, for a total of five months including January 2015, equals arrears of $2,020. [ 50 ] If payments have continued at the lower monthly amount of $587 since January of 2015, then the arrears continue to accrue. I am informed, in fact, that the February 2015 payment was at the lower amount of $587.

That information came to me by way of submissions made by the parties this morning. [ 51 ] The two amounts of arrears on this basis, therefore, equal $1,487 plus $2,020, which totals $3,507, plus the additional amount owed for the month of February, 2015, which creates an additional amount of $404 on the arrears figure. [ 52 ] I understand that the Father says that, on the basis of him having the children 40 percent of the time, there is a shared custody arrangement.

Accordingly, the provisions of s. 9 of the Federal Child Support Guidelines should be applied and that the Mother's income should be imputed as described above. Thus there should be a simple, straight setoff applied on the child support payments. As I

understand it, this approach would apply for most of 2014 and on an ongoing basis, presuming that I change the present parentingarrangements. I understand that the Father rejects that there should be any retroactive change in the child support. Analysis Transition of the February 2013 Order Under the FLA [53] Under

Part 13 entitled "Transition Provisions" of the FRA [sic], s. 251 provides as follows: 251(1) If an agreement or Order, made before the coming into force of this section, provides a party with (

a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities andparenting time with respect to the child under this Act, or (

b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are asdescribed in the agreement or Order respecting custody, guardianship and access. [54] The transition provision is very significant in this case because of the existence of the February 2013 Order made under theFRA.

Guardianship and Parenting Responsibilities for the Children [55] Under the existing final Order of this Court, being the February 2013 Order made under the FRA, the parents were granted jointguardianship and joint custody of the children, the Child N.G. and the Child J.R. Therefore under the transition provisions, they bothshare guardianship of those two children and each have parental responsibilities and parenting time with respect to both of these twochildren, all within the meaning of the FLA.

Given that the Father has an Order for scheduled access under the February 2013 Order, hecontinues to have scheduled parenting time under the FLA with respect to the two named children. Court's Jurisdiction to Change the February 2013 Order [56]

Section 47 of the FLA gives the Court jurisdiction to change, suspend, or terminate an Order respecting parenting arrangementswhich includes parenting time or parenting responsibilities or both if, since making that Order, there has been a change in the needs orcircumstances of the child, including because of a change in circumstances of another person. A similar provision is contained in s. 60 ofthe FLA with respect to changing Orders relating to contact with a child. [57]

Section 215 of the FLA is a general provision that also allows the Court to change, suspend, or terminate other Orders if therehas been a change of circumstances. There are other separate similar provisions that are relevant to the issues in this matter that arereferred to below. [58] In all cases, the authorities support the proposition that it must be a material change. When the Supreme Court of Canadaconsidered the threshold issue of a change of circumstances, it was characterized as having to be a "material change." Thatcharacterization is in the leading decision of Gordon v.

Goertz, (S.C.C.), [1996] 2 S.C.R. 2, at paragraphs 12 and 13. [59] The threshold test of the existence of a material change continues to apply under the FLA when considering the variation of anOrder made under s. 47 and s. 251(1): (see C.J.V.G. v. E.T., [2014] B.C.J. No. 3245, at para. 16, followed in E.A.H. v. C.R.H., 2015BCPC 13, and also see Jellis v. Jellis, 2014 BCSC 375 ). [60] No doubt there have been many changes in the circumstances of both the Mother and Father since the February 2013 Order wasmade. Those changes and circumstances are outlined above.

The parties both submit that it was contemplated at the time of theFebruary 2013 hearing giving rise to the February 2013 Order that changes to that Order would likely be necessary, given the very recentchanges in the Father's career and his recent acceptance into the RCMP and the necessity to leave for Saskatchewan for training. [61] I am satisfied that the requirements of s. 47 have been satisfied and an investigation can be undertaken by this Court todetermine whether the February 2013 Order should be changed with respect to the parenting arrangement.

Conclusions With Respect to a Variation of Guardianship, Parenting Time, and Parental Responsibilities [62] Given the evidence before me, I am of the view that no change in the existing guardianship of the children N.G. and J.R. shouldbe made. That is in the best interest of both of these children. [63] I am of the view that notwithstanding that the Father and Mother were not residing together at the time of Child N.D.'s birth, theFather meets the requirements of s. 39(3)(

c) of the FLA and the Father is a guardian of the Child N.D. because he regularly cared for theChild N.D. [64] In addition, I note that the Child N.D. has resided with the Father for a significant period of time during his life. Therefore, theMother and Father are both guardians of the Child N.D. There is to be a declaration accordingly. Flowing from that, both Parents haveparental responsibilities for the Child N.D.

I will deal later with this issue and also that of parenting time for this child. [65] Having decided that there is a material change in circumstances, I must then decide whether or not there should be a change inthe existing parenting time and living arrangements for the Children. In doing so, I have considered the best interests of the Children,including based on the non-exclusive set of factors as outlined in s. 37(2) of the FLA. I am satisfied that both the Mother and the Fatherare capable and loving parents. They have strong bonds with all of the Children.

The Father's bond with the Child N.D. is not as fullydeveloped because of the fact that the Father was not part of his life for some months following his birth due to the fact that the Father

was away on his RCMP training. [ 66 ] The Father is presently going through a significant upheaval in his life and his career. He faces many challenges in the months to come. He initially indicated in his evidence that if weekend access were to continue, he did not want it to start on Friday afternoons, but rather to be put over to Saturday mornings to give him some time for himself. This morning in further submissions, he modified that position. [ 67 ] I have concluded that a shared parenting arrangement will be very challenging for him, notwithstanding the possible availability of his mother to assist him.

Neither Parent suggests it would be in the best interest of the Children to split them up from living together with one of the Parents. [ 68 ] Having specifically considered the emotional well-being of all the Children, the history of their care which has primarily been with the Mother, and the respective needs for stability in the lives of these three young people, and having regard for their respective stages of development, the change suggested by the Father is not in the best interests of the Children. [ 69 ] Therefore, all three Children will continue to reside with the Mother, and she will continue to provide their primary residence and to provide primary care during the exercise of her parenting time; but subject to the exercise of the Father's parenting time as set out in these reasons and in the Orders flowing from it or as agreed by the Mother and the Father.

There will be an Order accordingly. Parenting Time [ 70 ] At the conclusion of the hearing, I indicated to the Parents that they should attempt to resolve the terms of the Father's parenting time if I declined to change the parenting time and the parenting responsibilities from the present arrangement; if they could not agree, I said I would seek further submissions from them.

This morning I heard further submissions from them, and they have agreed as follows: [ 71 ] The Father will have reasonable parenting time as the Mother and Father may agree from time to time, including the sharing of holidays and vacations, but in any event, the Father will be entitled to parenting time every second weekend commencing February 27th, 2015, from Friday at 6:00 p.m. until Sunday at 6:00 p.m., subject always to any further agreement between the Mother and the Father.

This will replace paragraphs 5 and 6 of the February 2013 Order. [ 72 ] In the event any disagreement shall arise between the Mother and the Father with respect to any aspect of the Father's parenting time, the Mother and the Father will seek to resolve the issue in dispute by mediation at the Justice Access Centre in Nanaimo, British Columbia. If the matter remains unresolved after that mediation, then either party may bring the matter back before the Court for a review or for directions.

Parental Responsibilities [ 73 ] Having regard to the whole of the circumstances and the best interests of the Children, both parents will share the following parental responsibilities for all three of the Children. Those parenting responsibilities are as set out in s. 41 of the FLA, but with the following changes: (

a) when the parent is exercising their parenting time, the responsibility of making day-to-day decisions affecting the child and having day-to-day control and supervision of the child; (

b) when the parent is exercising their parenting time, to have the parental responsibility of making decisions respecting where the child will reside; (

c) when the parent is exercising their parenting time, the parental responsibility of making decisions respecting with whom the child will live and associate; (

d) when the parent is exercising their parenting time, the parental responsibility of making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent, and location; (

e) making decisions respecting the child's cultural, linguistic, religious, and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to s. 17 of the Infant's Act , giving, refusing, or withdrawing the consent to medical, dental, and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege, or other thing for the child; (

h) giving, refusing, or withdrawing consent for the child if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) requesting and receiving from third parties health, education, or other information respecting the child; (

k) subject to any applicable provincial legislation: (

i) starting, defending, compromising, or settling any proceedings relating to the child; and (ii) identifying, advancing, protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development.

[74] There will be a further Order as follows.

Each guardian will advise the other guardian of any matters of significant natureaffecting the child or any of the children. [75] Each guardian will consult with the other guardian about any important decisions that must be made and will try to reachagreement concerning these important decisions. [76] In the event that there should be any disagreement shall arise between the Mother and the Father with respect to parentalresponsibilities, the Mother and the Father will seek to resolve those matters in dispute by mediation at the Justice Access Centre,Nanaimo, British Columbia.

If the matter remains unresolved after that mediation, then either party may bring the matter back beforethe Court for a review or for directions.

Change of Child Support [77] Section 152(1) of the FLA permits the Court to change, suspend, or terminate Orders respecting child support both prospectivelyor retroactively if any change of circumstances as provided for in the Child Support Guidelines has occurred since the Order respectingchild support was made or evidence of a substantial nature was not available during the previous hearing has become available or therehas been a lack of financial disclosure by a party that was discovered after the last Order was made. [78] I accept the Mother's position with respect to the variation of the child support payable by the Father and the increase inpayments as she has suggested.

The increase should be retroactive as suggested by the Mother. In my view, a retroactive Order in thiscase meets the requirements as set out in s. 152(1) of the FLA and as described in the Supreme Court of Canada decision in S.(D.B.) v. G.(S.R.), 2006 SCC 37. [79] It was clear to both Parents at the time the February 2013 Order was made that the Father's income for 2013 was uncertain as tohow much it would decrease from his 2012 level of $53,108, and that he would most likely be receiving an increase in income in 2014. The 2013 income decrease was less than anticipated.

The 2014 income increase materialized. [80] The Father knew or should have known that once the increase from the imputed level used in the February 2013 Ordermaterialized that a variation in child support would follow. The Father should have been more forthcoming with his financial disclosureand without the necessity of court orders in that regard. [81] There has been no material delay on the part of the Mother bringing this application.

I am also satisfied that the change here inthe Father's income is a material change in circumstances and that the February 2013 Order would have been different if the Court knewof this change in circumstances (see Earle v. Earle, 1999 B.C.J. No.383, , and Carriere v. Carriere, 2013 BCSC2357). Any hardship on the Father by the making of the retroactive Order can be addressed with an appropriate payment

schedule forthe accumulated arrears. [82] There will be an Order as follows.

There will be a retroactive increase in child support as set out in the February 2013 Order,such that the Father will pay the Mother based on the Federal Child Support Guidelines for the two children, the Child N.G. and theChild J.R., effective from July 2013, and with the birth of the additional third child, the Child N.D., for three children effective from July15, 2013, using a Guidelines income equal to his actual income for 2013, being $45,070. [83] Therefore, the Father will pay child support for two children in the amount of $684 per month for five months (from February toJune 2013, inclusive) and for three children in the amount of $754 for six months (from July to December 2013, inclusive) for a total in2013 of $7,944, less the amount actually paid of $6,457, with the resulting accumulated arrears in 2013 of $1,487. [84] The Father will further pay the Mother child support for three Children on the basis of an income of $49,680, being the amountof $991 per month, effective from January 1, 2014, for so long as each of the Children are children as defined in the Family Law Act, anduntil further Order of the Court. [85] Therefore, the Father is required to pay from January 1st, 2014, to and including January 1st, 2015, the amount of $12,883.

Theresulting accumulated arrears for the period, January 1st, 2014, to and including January 1st, 2015, equals $2,020 plus any further arrearsfor the month of February 2015, which this morning I was informed have accrued.

The total arrears on this basis equals $1,487, plus$2,020, plus additional arrears of $404 for the month of February 2015, totalling $3,911 as at February 19, 2015. [86] The total arrears will be discharged on the basis of additional payments of $50 per month commencing April 15, 2015, andcontinuing on the 15th day of each month thereafter until July 15, 2016, and thereafter, at the rate of $100 per month on the 15th day ofeach month commencing on August 15, 2016, and continuing until all the arrears are paid in full. [87] The Father will continue to provide medical and dental coverage for all three Children as is available through his employment. [88] There will be Orders accordingly.

Change of Spousal Support [89]

Section 161 of the FLA sets out the objectives of spousal support and s. 160 sets out the duty of a spouse to pay an entitledspouse such support.

Section 162 of the FLA sets out the considerations in determining spousal support as follows: Determining spousal support162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs andother 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. [ 90 ]

Section 167 of the FLA grants the Court jurisdiction to suspend or terminate Orders respecting spousal support. The same tests such as material change in circumstances, et cetera, apply as are found in s. 152(1) of the FLA which deals with changes to Orders relating to child support.

For the reasons discussed under "Change of Child Support" above, in my view, the test has been met and a fresh inquiry can be made by this Court with respect to spousal support. [ 91 ] I will deal first with the issue of the reimbursement of the surrogacy expenses being received by the Mother and whether that should be taken into account in considering her income or to be imputed as part of her income.

Legislation Relating to Compensation for Surrogacy Services The Assisted Human Reproduction Act [ 92 ] The principal legislative authority on compensation for surrogacy services is the Assisted Human Reproduction Act , S.C. 2004, c. 2 (" AHRA "). In 2010, the Supreme Court of Canada determined the constitutionality of the AHRA in the Reference re Assisted Human Reproduction Act , 2010 SCC 61 . All of the provisions that I refer to below were declared to be constitutional.

The relevant provisions are as follows, "Definitions," s. 3 : "surrogate mother" means a female person who ... with the intention of surrendering the child at birth to a donor or another person ... carries an embryo or foetus that was conceived by means of an assisted reproduction procedure and derived from the genes of a donor or donors. ... Payment for surrogacy 6(1) No person shall pay consideration to a female person to be a surrogate Mother, offer to pay such consideration or advertise that it will be paid. ...

Offence and punishment 60 A person who contravenes any of sections 5 to 7 and 9 is guilty of an offence and (

a) is liable, on conviction on indictment, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding ten years, or to both; or (

b) is liable, on

summary conviction, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding four years, or to both. Reimbursements [ 93 ] Section 6(1) of the AHRA makes it clear that payment for surrogacy services is prohibited in Canada. However, a surrogate mother is permitted to be reimbursed for pregnancy-related expenses. Reimbursement of expenditures is addressed in s. 12 of the AHRA .

Section 12 is not in force. For reference, this provision provides: Reimbursement of expenditures 12(1) No person shall, except in accordance with the regulations ... (

c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy.

(2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure.

(3) No person shall reimburse a surrogate mother for a loss of work-related income incurred during her pregnancy, unless (

a) a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus; and (

b) the reimbursement is made in accordance with the regulations. [ 94 ] It is somewhat unclear how reimbursement for surrogacy-related expenditures are regulated, given that s. 12 of the AHRA is not in force.

According to a Health Canada fact sheet on prohibitions related to surrogacy, payment of a particular expense must not involve financial or other gain to the surrogate mother and normally occurs after receipts for costs are provided for the person making the payment. [ 95 ] Further, whether or not a particular cost is directly related to the surrogacy is dependent on the circumstances of each surrogacy arrangement (Health Canada Fact Sheet Prohibitions related to Surrogacy [Ottawa: Health Canada 2013] http://www.hc-sc.gc.ca/dhp- mps/brgtherap/legislation/reprod/surrogacy-substitution-eng.php ) .

There does not appear to currently be a formal policy. Surrogacy Agreements [ 96 ] Section 6(5) of the AHRA provides that the prohibition of payment for surrogacy services does not affect the validity under provincial law of any agreement under which persons agree to be a surrogate mother. In British Columbia, a surrogacy agreement is defined in s. 29 of the Family Law Act . There does not appear to be a standardized surrogacy agreement form. [ 97 ] Without reviewing the surrogacy agreement specific to this case, it is difficult to determine what the Mother is being reimbursed for and under what circumstances.

However, I do have her evidence which I accept. It appears, therefore, that the compensation she is receiving could not be considered to be a financial or other gain pursuant to the AHRA .

Are Reimbursements of Surrogacy-Related Expenditures Income for the Purposes of Determining Spousal Support? Definition of "Income" under the Spousal Support Advisory Guidelines [ 98 ] The Spousal Support Advisory Guidelines (" SSAG" ) are constructed around two basic formulas, the without-child-support formula and the with-child-support formula ( SSAG 3.3.1). Both formulas use income sharing as the method for determining the amount of spousal support, not budgets. Income sharing formulas work directly from income as income levels essentially determine the amount of support to be paid ( SSAG 3.3.2).

The SSAG provides: The starting point for the determination of income under both formulas is the definition of income under the Federal Child Support Guidelines , including the

Schedule III adjustments. ( SSAG 3.3.2) Definition of "Income" Under the Federal Child Support Guidelines [ 99 ] "Income" is defined in s. 2 of the Federal Child Support Guidelines , SOR/97-175, as the annual income determined under s. 15 to 20 .

Section 15 provides that where spouses do not agree in writing on a spouse's annual income, it shall be determined by considering the remaining methods set out in s. 16 to 20 .

Section 16 holds that: 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 [CRA] and is adjusted in accordance with

Schedule III. [ 100 ]

Schedule III applies where the spouse is an employee and certain employment expenses are deducted. Section 17(1) provides that: 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. [ 101 ]

Section 19 outlines a number of circumstances in which the Court may impute income to a spouse for the purposes of the Federal Child Support Guidelines . Calculating "Total Income" for the CRA's T1 General Form [ 102 ] The financial information provided by the Mother does not appear to refer to any payments she received in relation to her surrogacy. There does not seem to be any reference in calculating "Total Income" on a CRA T1 General Form to surrogacy-related or an analogous type of reimbursement.

I have been unable to locate any provision of the Income Tax Act , R.S.C. 1985, c. 1 (5th supp.), that refers to such compensation. Case Law and Calculation of Income Under the Federal Child Support Guidelines [ 103 ] There does not appear to be any case authority that addresses whether reimbursement for surrogacy-related expenditures should be included as income or considered generally for the purposes of determining child or spousal support. There is a case which has some potential analogous principles. That is the decision of Cole v. Cole , 2010 B.C.J. No 1867 .

It was an application by the mother in that case to vary the amount of child support she was receiving. Her application was based on the argument the father in that case was receiving substantial monthly allowances from the provincial government for the care of foster children ("foster allowances"). The central issue was whether the foster allowances could be taken into account in determining the father's income under the Federal Child Support Guidelines . The foster allowances were not reported on Mr. Cole's income tax returns. [ 104 ] One significant distinction in Cole v.

Cole is that the Income Tax Act has this provision providing that foster allowances are non- taxable if the legislative requirements are met. That is found in s. 81(1) (

h) of the Income Tax Act . There was some question as to whether or not Mr. Cole met the requirements set out in s-s. (h)(ii). However, for the purpose of the application before the Court, the Honourable Mr. Justice Butler made the assumption, as the parties had, that the foster allowances were properly excluded from Mr. Cole's taxable income. [ 105 ] The analysis then shifted to s. 19 in the Federal Child Support Guidelines where these payments could still be imputed as income.

The Court held that the relevant provisions of s. 19 included s. 19(1), the Court may impute such amount of income to a spouse as is considered appropriate in the circumstances which circumstances include the following: (

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

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax ... [ 106 ] The Court found that to the extent an allowance provided some form of compensation to the foster parent over and above expense, some portion of it should be treated as income for child support purposes ( Cole v. Cole at paragraph 20). [ 107 ] Another significant distinction in the Cole v. Cole case from the case before me is that the Mother's situation is different than that of Mr. Cole. Mr.

Cole was running a foster home much like a business and was gaining net revenues from this endeavour. The income that the Court imputed to him was from the net revenue. The portion of the foster allowances that went towards the expense for the foster children in Mr. Cole's care was not considered income under the Federal Child Support Guidelines .

Conclusion With Respect to Surrogacy Reimbursement [ 108 ] Upon review of the law concerning the surrogacy-related compensation and the calculation of income for child and spousal support orders, it is apparent that there is very limited legal authority on the intersection of these issues. Pursuant to the AHRA , payment

for surrogacy services is prohibited. If the Mother's surrogacy agreement is in compliance with the AHRA , the payment she is receiving would not provide her with any financial gain beyond the reimbursement for pregnancy-related expenditures. [ 109 ] Extending the reasoning in Cole v.

Cole to this case, it is my view that the compensation going exclusively to the reimbursement of expenses would not be considered as income under the Federal Child Support Guidelines , nor should it be considered under the Spousal Support Advisory Guidelines or when considering the quantum of spousal support. [ 110 ] In the evidence before me was a DIVORCEmate calculation completed December 19, 2013. It used the income of the Father at the amount of $49,680. It based the calculation of spousal support on the with-child-support formula.

The calculation indicates that the range of payment for spousal support would be as follows: low, $144; mid, $267; high, $391. [ 111 ] The duration of spousal support is an issue in this matter. The Mother's plan and ability to gain employment will be better known later this year.

A review under s. 168 of the Family Law Act is in order. [ 112 ] Based on the whole of the circumstances, the present amount of spousal support should not be changed and will continue in force at the rate of $200 per month as set out in the February 2013 Order until further order of the Court. [ 113 ] The issue of spousal support will be set for review, and the parties will appear before this Court on Monday, May -- Madam Clerk, do we have a 2016 calendar? [DISCUSSION RE 2016 DATES] [ 114 ] THE COURT: Well, I will make it May 16th, 2016, or such other date as the judicial manager may fix or may assign to fix a date for a hearing or for a consent order with respect to spousal support. [ 115 ] The Father will continue to provide medical and dental coverage for the Mother as is available through his employment until December 31st, 2015, unless otherwise agreed to by the parties. [ 116 ] There will be Orders accordingly. [ 117 ] Given that financial disclosure has been an issue in the past, I am going to make a further Order on the following terms.

For as long as the Children are eligible to receive child support, the parties will exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than May 5th of each year, commencing May 5th, 2016; and (

b) copies of any notices of assessment or re-assessment provided to them by the Canada Revenue Agency immediately upon receipt. [ 118 ] That concludes my reasons for judgment with respect to this matter. I direct that the court registry will prepare the form of Order. I will waive the approval of the parents with respect to the form of the Order.

I will direct that the form of the Order be provided to me, and I reserve the right to amend any wording contained within the Order so long as it does not change either the meaning or the intent of the provisions of the orders that I have made today. [ 119 ] [THE MOTHER]. So will the increase start as of March 1st, then, I assume? [ 120 ] THE COURT: It has been made effective back to the dates that I mentioned. So there will be an arrears payment that will be included in the total arrears for the month of February 2015.

Then, thereafter, the payments should be at the higher amount as I have ordered. [ 121 ] [THE FATHER] On the topic of arrears, the amount between February 2013 and February 2015, going by what would have been ordered, is $19,675. In that period, I transferred a total amount of $25,864.27. That much has been transferred to J.R.(1) at that time. [ 122 ] THE COURT: Well, that evidence is not before me. I have made my determination. I have done it on the basis of what the evidence was before me as to the amounts.

If you are of the view that there is a miscalculation of the amounts, I will grant you liberty to bring that issue back before me, but it must be done inside of the next 14 days, with any filings in that regard. But the amount that I have determined is in accordance with the evidence. I am not going to accept new evidence, but if there is a miscalculation on my part, then I need to have details of it.

Monies that may have been paid for additional items, other than specifically for child support, in my view would not be subject to being characterized as child support at this point. [ 123 ] That concludes my reasons. [REASONS FOR JUDGMENT CONCLUDED]