J.E.C. v. R.R.A. Date:, 2016 BCPC 285

Citation: J.E.C. v. R.R.A. Date: 20160902 2016 BCPC 0285 File No: F71584 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.E.C. APPLICANT AND: R.R.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. P. MacCARTHY Appearing on their own behalf: J.E.C.

Appearing on their own behalf: R.R.A. Place of Hearing: Nanaimo , B.C.

Dates of Hearing: January 20, 2016, March 29, 2016, May 10, 2016 Date of Judgment: September 2, 2016 INTRODUCTION [ 1 ] This matter involves cross applications by the parties to a long standing separation agreement entered into on February 15, 1999 and filed with the Provincial Court on January 22, 2014 (the “Separation Agreement”). [ 2 ] It specifically involves a claim brought by the Mother to set aside the Separation Agreement in whole or in part, by way of a variation, as it relates to payment of child support and extra-ordinary expenses for a now teenage child who has been under her sole primary care since the parties separated and since that child was an infant. [ 3 ] It also involves the Father’s counter claim to enforce parenting time with that teenage child and to obtain full disclosure of all matters touching on the welfare of that teenage child and further to obtain an order regarding counselling for the child as it relates to her relationship with the Father. [ 4 ] All of this relief is being sought following a significant absence on the part of the Father from the life of that teenage child.

BACKGROUND The Separation Agreement [ 5 ] The parties to these proceedings and to the Separation Agreement are J.E.A., [now known as J.E.C.] (the “Mother”) and R.R.A. (the “Father”). The Mother and the Father (collectively the “Parents”) are the parents of K.C.A. (“Child K”) date of birth [omitted for publication] 1998, and S.R.A. (“Child S”) date of birth [omitted for publication] 1986. [ 6 ] Child K is the natural child of the Parents, and Child S is the Father’s child by a previous relationship who was not adopted by the Mother but who lived with the Mother and the Father for period of approximately 5 years.

The Mother fulfilled the role as the step mother for Child S prior to the Parents’ separation. [ 7 ] It is common ground that the Child K is at present time a child of the marriage being under the age of 19. She in the process of graduating from secondary school and arranging to enrol in university or college commencing in the fall of 2016.

Child K just turned 18 in the summer following the hearing of this matter. [ 8 ] It is also common ground that the Child S is no longer a child of the marriage; being over the age of 19, self-sufficient and not depending on either of the Parents for support or otherwise, for a considerable period of time. [ 9 ] The Parents lived in a common law relationship from November of 1992, married in May of 1994 and separated December 16, 1998. [ 10 ] With the assistance of legal counsel, the Parents entered into the Separation Agreement which dealt with a number of matters including the division of family assets including the matrimonial home, pension plans, family debts, wavier of spousal maintenance, and standard releases of claims.

The Separation Agreement has never been modified in writing or by any oral agreement. Prior to the initiation of these proceedings neither party has sought to change, modify or vary the Separation Agreement. No other proceedings have been brought in connection with the Separation Agreement or in connection with the matters presently before the court. [ 11 ] At the time of the making of the Separation Agreement the Mother (therein described as the “Wife”) was a teacher but then on maternity leave and with what the Separation Agreement describes as “usual earnings of approximately $53,000.00 per annum”.

The Father (therein described as the “Husband”) was a machine operator and had what is noted in the Separation Agreement as “earnings of approximate $37,195.00 per annum”. [ 12 ] Relevant to the issues before this court are the provisions of

section 4 of the Separation Agreement relating to what was characterized as “custody and access” under the then operative Family Relations Act , RSBC 1996, Ch. 128 as amended ( the “FRA”). [ 13 ] Under

section 4.1 of the Separation Agreement it was agreed that the Father was “to retain sole guardianship and sole custody” of Child S and under

section 4.2 the Mother had access to Child S at the Father’s sole discretion. [ 14 ]

Section 4.3 of the Separation Agreement provides as follows: 4.3 The Husband and the Wife agree that they shall retain joint guardianship of the infant child of the marriage namely [Child K] [date of birth] and joint guardianship shall for the purposes of this Agreement be defined as follows:

a) to be informed of the child’s medical and dental practitioners;

b) to contact the child’s medical and dental practitioners and obtain the child’s medical and dental records;

c) to be consulted with respect to the selection of the child’s alternative caregivers, such as daycare and preschools;

d) to be consulted with respect to the selection of the child’s schools and school programs;

e) to consult with the child’s alternative caregivers and teachers;

f) to be informed of events at the child’s schools or daycare so that each parent may attend;

g) to be informed of parent/ teacher nights so that each parent may attend;

h) to be consulted with respect to any significant health issues relating to the child; and

i) to be consulted with respect to any significant change in the child’s social environment and each of the Husband and Wife acknowledge that the other is a fit and proper person to look after the care, education and upbringing of the said children. [ 15 ] Under

section 4.4 of the Separation Agreement the Mother received sole custody of Child K. The Father received reasonable and generous access and with specified scheduled access for the period from February to June of 1999 and “at such further and other times as the parties may agree” but subject to specific conditions when Child S was in attendance. [ 16 ] Under

section 4.6 of the Separation Agreement provision was made for the Husband and the Wife to attend counselling in an effort to establish a permanent

schedule for the Husband’s access to Child K. That access was subject to review not later than July 1, 1999. The establishment of a permanent

schedule and that review has never occurred, nor does it appear did the contemplated counselling. [ 17 ] Under

section 4.8 of the Separation Agreement provision was made that each of the Parents “will participate as fully as possible in major events of [Child K’s] life, including Christmas, holidays, birthdays and such other occasions.” [ 18 ]

Section 4.9 provides as follows: 4.9 The parties further agree that there shall be full disclosure between them in all matters touching the welfare of the [Child K] and they agree that they shall confer as often as necessary to consider any problem or difficulty or matter requiring consideration touching the welfare of the said child; and the Husband and the Wife shall further agree that each shall conscientiously respect the rights of the other regarding the child, and shall continue to instill in the child love and respect for both parents, and neither party shall by any act, omission or innuendo attempt to alienate the child from the other party.

Child Maintenance Provisions of the Separation Agreement [ 19 ]

Section 3.2 of the Separation Agreement acknowledges that the Father did not receive financial support from Child S’s biological mother. [ 20 ] Under

section 3.3 it was agreed that the Father would support Child S without financial contribution from the Mother and “for so long as [Child S] shall be a child of this marriage, that the [Mother] shall support the youngest child of the marriage, [Child K]… without financial contribution from the [Father].” [ 21 ] Sections 3.4 purports to be the Father’s release, discharge and abandonment of the Father’ claims against the Mother for child maintenance for Child S notwithstanding any legislative provision, including the then applicable FRA and the Divorce Act , R.S.C. 1985 or any future legislative changes that may give the Father the right to make such a claim.

In addition it provides that the Father is to indemnify the Mother for any such claim that may be made on behalf of the Father. [ 22 ] Sections 3.5 purports to be the Mother’s release, discharge and abandonment of the Mother’s claims against the Father for child maintenance for the Child K notwithstanding any legislative provision, including the FRA and the Divorce Act , or any future legislative changes that may give the Mother the right to make such a claim. In addition it provides that the Mother is to indemnify the Father for any such claim that may be made on behalf of the Mother.

The notable difference between this release provision and the former is that this release provision is operative only “for so long as [Child S] shall be a child of the marriage”. [ 23 ]

Section 3.6 purports to provide that the mutual waiver of child support “shall apply regardless of any change in circumstances of the parties or either of them”. [ 24 ] Most noteworthy is

section 3.7 which provides as follows: 3.7 When the older child, [Child S]: (

a) is no longer a child of the marriage (

b) permanently changes his place of residence to reside with his biological mother, or (

c) when the Husband receives financial support for [Child S] from [Child S’s] biological mother, whichever shall first occur, the spouses shall confer with one another in order to reach an agreement as to what amount of child support should be paid by the Husband for the younger child [Child K]. (emphasis added) [ 25 ] As is noted below, that consultation has never occurred. Waivers and Releases Contained in the Separation Agreement

The parties mutually agreed that under the provisions of

section 18 of the Separation Agreement to waive claims against the other for spousal support. In part

section 18.5 a further provision is made reading in part as follows: Both parties hereto agree that there has been a full and adequate and satisfactory apportionment between the spouses of any financial consequences arising from the care of the children of the marriage over and above specific obligations apportioned under the heading of “Maintenance for the Children” [ 26 ] The sections under that particular heading are sections 3.1 to 3.7 inclusive to which I have previously referred. [ 27 ] The Separation Agreement also contains a number of comprehensive releases and waivers, including claims under the Wills Variation Act , RSBC 1979 Ch. 435 , the Estate Administration Act RSBC 1979 Ch. 114 , the FRA , and the Divorce Act , (supra). [ 28 ] These various provisions and other acknowledgments appear to be in aid of mutually reaching a full and final settlement of the matters dealt with by the Separation Agreement, the provisions of which the parties wished to continue and endure all without future variation by way of court intervention. [ 29 ] The Separation Agreement was made in contemplation of the parties becoming divorced.

That divorce has not yet occurred. The Parents have never resumed cohabitation nor have they otherwise reconciled following the date of separation. Mediation [ 30 ]

Section 26.2 of the Separation Agreement states: Should any dispute arise concerning this Agreement, the parties agree that neither the Husband nor the Wife shall take any Court proceedings until mediation of such dispute has failed. [ 31 ] The Mother made a referral request to the Nanaimo Justice Access Centre and met with a family justice counsellor on January 29, 2014 which was prior to the Father being served with the Mother’s Application. The Referral Request in the court file indicates the Mother did not seek a referral to any person, program or service.

Also there were no requests for mediation through the Justice Access Centre. [ 32 ] The evidence confirms that no other mediation procedures were undertaken. The Mother states that this was due in part to the fact that she had difficulty finding the Father and therefore filed the Mother’s Application referred to below. On May 15, 2015 she sent a text message to the Father offering to mediate and stating that if he was willing she would set it up. No response to that suggestion was forthcoming from the Father.

I am also given to understand that at the June 5, 2015, hearing before the Honourable Judge Cowling that mediation was again suggested by the court but did not ever proceed. [ 33 ] I am satisfied that the Father was not open to having matters resolved through mediation and therefore the mediation would not have been successful and hence I can conclude that mediation of the dispute has failed by the mutual failure of one or the other to formally initiate mediation or to demonstrate a mutual willingness to be involved is that process.

That is not to say that future issues covered by the Separation Agreement should not in fact be referred to mediation with a view to their resolution by mediation as contemplated by

Section 26.2. I shall have more to say about that later. Court Proceedings [ 34 ] The Mother filed her Application Respecting Existing Orders or Agreement on January 22, 2014 (the “Mother’s Application”). In it she asked that the Separation Agreement be set aside in whole or in part and specifically pleads that the child support review set out in paragraph 3.7 of the Separation Agreement had not taken place and requested child support for Child K in accordance with the Child Support Guidelines plus extra-ordinary expenses.

The Father filed his Reply and his Counterclaims over a year later on April 13, 2015 (collectively referred to as the “Father’s Cross Application”). In his Reply he stated he agreed with the request for child support and “a suspension or termination of an earlier order dated 02/15/99” which I take to be a reference to the Separation Agreement. In his Counterclaim he sought to “uphold

section 4.9 of the Separation Agreement” regarding disclosure that touches on the welfare of Child K and applies for parenting time and contact with Child K. [ 35 ] The location of the Father’s whereabouts for service appears to have been an impediment for the Mother according to her evidence. Accordingly she retained the services of a skip trace services to locate him. That proved unsuccessful but the Mother did learn that Child S was residing in Chilliwack and held a position at a furniture store in that community.

Notably the Father said he had continued to use the same email and cell phone number which was known to the Mother for several years, thus he questions the need for substitutional service. [ 36 ] On March 30, 2015 the Mother appeared before the Court and with the help of duty counsel obtained an ex parte order for substitutional service on the Father by serving the now adult child of the Father (namely Child S).

An order for financial disclosure by the Father was also made. [ 37 ] On April 13, 2015, a further interim order was made in the presence of both Parents whereby the Father was found to have a guideline income of $92,517.00 and he was required to pay child support in the sum of $857.00 per month for Child K commencing on April 1, 2015 and continuing on the first day thereafter so long as Child K is a child defined in the Family Law Act . Both parties were instructed to file and exchange a sworn financial statement by May 15, 2015 (the “April 2015 Interim Order”).

The child support payments were based upon the Father’s imputed income calculated on the basis of his 2014 Line 150 income.

[ 38 ] Also by way of the April 2015 Interim Order a

Section 211 Report was ordered specifying that it was to be for the views of the Child K. The issues of retroactive child support and

section 7 special expenses were adjourned to the Judicial Case Manager to fix a hearing date. [ 39 ] The

Section 211 report was completed by Lisa Bury, a Family Justice Counsellor with the Family Justice Report Service on April 30, 2015 (the “Views of the Child Report’).

The Child K was age 16 at that time. [ 40 ] Following a 20 minute appearance on June 5, 2015 in the presence of both Parents a further interim order was made (the “June 2015 Interim Order”) requiring the Father to pay the Mother the sum of $8,500.00 on or before June 10, 2015 and further orders as follows: The issue of whether this amount is to be allocated to child support or special expenses for the child shall be adjourned to the judicial case manager to fix a date for a family case conference. [ 41 ] So far as I can determine, that Family Case Conference did not ever proceed and instead the matter was set down for hearing.

The hearing proceeded before me on January 20, 2016, and continued thereafter on March 29, 2016, and again on May 10, 2016. [ 42 ] The parties were self-represented throughout the matters before this court. [ 43 ] On May 10, 2016, prior to the commencement of the continuation on that date, the Father filed a handwritten Notice of Motion in which he sought “to ask for counselling between myself and my daughter, to ask for no interference from mother”.

In his supporting Affidavit he alleges Child K “has been subject to Parental Alienation Syndrome.” Issues Before the Court With Respect to the Mother’s Application and the Father’s Cross Application [ 44 ] As a result of these proceedings the issues upon which evidence has been heard and which will require a decision relate to the following: a. whether or not there should be a specific order made regarding the Father’s ongoing parenting time with Child K and in that regard whether direct means of contact between the Father and Child K should be ordered. b. whether or not a court order should be made regarding future counselling to occur between the Father and Child K in connection with their relationship c. the amount if any of child support to paid by the Father for the support of the Child K and the basis for both that obligation to pay and the quantum of that payment and whether any variation of any child support payment should be made and if so, should it be on a retroactive basis or a prospective basis or both and if so what the effective date for a retroactive variation. d. whether by their nature all of the expenses claimed by the Mother are to be properly regarded as special or extraordinary expenses e. the amount of any special and extra-ordinary expenses, if any, owed by the Father in connection with the Child K on an ongoing basis and whether that calculation is to be made on a retroactive basis, and if so, the effective date for making that calculation.

The Witnesses at the Hearing [ 45 ] The Mother was the sole witness on her own behalf. The Father was the sole witness on his own behalf. Personal Background of Child S [ 46 ] The Father obtained custody of the Child S when he was 18 months old following separation from his first spouse in 1986. [ 47 ] In order to accommodate the Father’s works

schedule that often took him away from home he arranged for and paid for nannies. As Child S got older he arranged and paid to have Child S live with family friends and his own parents, while he was working away during the period between about 1988 and 1993. [ 48 ] Starting in the summer of 1993 the Child S commenced living with the Mother and the Father, predating their marriage in1994 and he continued to reside with them until the date of separation in late 1998.

Accordingly, the Mother acted as the step mother for Child S for a period of some 5 years. [ 49 ] Child S lived with and was supported by the Father following the separation of the Parents in December of 1999. Child S was approximately 13 years of age at the time of separation.

Again the Father found it necessary to arrange and pay for the care of the Child S in order to accommodate the Father’s out-of-town work schedule. [ 50 ] At the time of the hearing of this matter, Child S was 30 years of age, had graduated from high school at an approximately age of 18 years in 2003, and shortly thereafter found employment. From age 18 to approximately age 25 he moved in and out of his Father’s residence, depending upon his personal and employment circumstances. For the most part he was financially independent but he was generally reliant on minimum wage jobs.

The Father provided some financial support to Child S from time to time following high school graduation. The Child S had also approached the Mother for money in or around 2001. The Mother said that on the basis of her understanding that the Father was not financially supporting Child S and that Child S and the Father were estranged she gave him $100.00 but she refused to provide him with further financial support.

The Mother and Child S did not maintain contact. [ 51 ] Child S is now married, has a six-year-old child and has been a furniture store manager since approximately 2010 or 2011. [ 52 ] Effective from shortly after his 2003 high school graduation when he turned 19 some 12 years ago Child S was no longer a

child of the marriage as contemplated by the Separation Agreement. [ 53 ] The Father concedes that he never updated the Mother on the status of his financial support for Child S or when that was terminated. Background of Child K [ 54 ] The evidence of both of the Parents confirms the description of the Child K set out in the Views of the Child Report as follows: [Child K] is a vibrant, athletic and intelligent teenager with a good head on her shoulders.

She is an avid volleyball player who is playing at a competitive level with hopes of getting a university scholarship. [Child K] is a fantastic student who is dedicated to maintaining good grades in order to pursue a Bachelor of Science as part of her plan to become a physiotherapist.

She states she works hard and has a low A high B average in her grade 11 year… [ 55 ] The evidence also supports the conclusion that she is well-adjusted, has no health issues other than sports injuries sustained from her volleyball activities and has no special needs. [ 56 ] Volleyball has been a major focus of Child K’s life since Grade 4 but increasing in intensity since around age 13 years. She has played on elementary and secondary school teams, local club and representative teams and beach volleyball, all at a competitive level. Volleyball is a year-round endeavour for her. [ 57 ] She is talented.

She has been invited to play at the Canadian, Provincial and Western Canada levels and in the British Columbia Summer Games.

She has also been invited and has attended various try outs and scouting camps, again all at a highly competitive level for her age. [ 58 ] She has not made applications to any universities or colleges in the United States or Canada in order to pursue volleyball at that level or to possibly obtain a sport’s scholarship. [ 59 ] However, she is interested in attending and has received some interest from a college and a university both located on Vancouver Island, each with excellent, recognized volleyball programs.

Those endeavours remain hopeful and promising but at the time of the hearing still uncertain. [ 60 ] She has future aspirations of participating in beach volleyball at the Olympics. [ 61 ] Accordingly, Child K participates in numerous volleyball tournaments throughout the year which require travel and incurring transportation and accommodation costs. This has continued for the past several years. The Mother has been very supportive of these activities, both by way of encouragement and also financially.

The Mother frequently travels with Child K to these events. [ 62 ] The Child K has lived with the Mother throughout her life and relies upon the Mother for her necessities of life, including volleyball costs, and now also relies upon the amount of child support set out in the April 2015 Interim Order. She does not have a part time job or any other source of income. As at the hearing dates she had not received any notification of earning any scholarships or bursaries or awards for her upcoming university-college year. She is not a “carded athlete”. She does not have an outside athletic sponsor.

Accordingly she receives no financial support for her athletic endeavours. Personal Background and Financial Circumstances of the Mother [ 63 ] The Mother is approximately 53 years of age, and holds a full-time position as an elementary school teacher in the local Nanaimo school district and has 25 years of service. She has earned her Master’s degree, having started that post graduate program around 2012. The Master’s degree was pursued at her own choice and at her own expense. It is not a condition of her employment but results in a higher annual wage when completed.

She contributes to and will qualify for a public school teachers’ pension. [ 64 ] The Mother has worked steadily since the time of separation. She had a significant health issue in 2006 from which she recovered.

As part of her recovery she only worked three days per week but was back to full time employment within a year. [ 65 ] The Mother’s line 150 income for 2011, according to her Notice of Assessment, was $67,071.00 and her permitted employment expense adjustments for union dues set out in line 212 of her T1 General Income Tax and Benefits Return, which is permitted for child support and special and extra ordinary expense calculations, for 2011 was $1,576.00.

Thus the Mother’s 2011 amount for the basis of calculation of child support and special and extra ordinary expenses (being the “Child Support Guideline Amount”) was $65,495.00. [ 66 ] Based upon her Notice of Assessment her line 150 income for 2012 was $72,008.00 representing T4 income of $71,814.00 and Workers’ compensation benefits of $194.00. Her permitted employment expenses for union dues were $1,749.00 and a Workers’ Compensation overpayment of $194.00 resulting in a 2012 Child Support Guideline Amount of $70,065.00.

Her evidence is that for the period from September to December of 2012 she was taking an unpaid day off every second week in order to deal with her Master’s degree workload. [ 67 ] The Mother’s line 150 income for 2013 according to her Notice of Reassessment was $64,447.00. Her permitted employment expenses for union dues were $1,630.00. Thus, her 2013 Child Support Guideline Amount was $62,817.00.

During that year she was working on a 4/5 basis with one unpaid day off each week in order to deal with her Master’s degree workload. [ 68 ] According to a copy of the Mother’s 2014 T1 General Tax Return the Mother’s line 150 income was $61,590.74 including interest income of $157.90. No Notice of Assessment was provided as part of her evidence. Her permitted employment expenses were not available because it was on a missing page in her submitted T1 General Tax Return. I estimate that amount to be the same as in 2013 at $1,630.00. Thus her 2014 Child Support Guideline Amount was $59,960.74.

She testified that she was teaching full time that year starting in September of 2014, with a Master’s degree qualification which in the normal course would have earned her $84,000.00 per

annum. However the British Columbia public school teachers’ strike/lockout for half of June and for the months of September and October of 2014 reduced her income quite significantly. She borrowed to make up the resulting shortfall. [ 69 ] During the first day of evidence on January 20, 2016, the Mother indicated that she was uncertain of the amount she earned in 2015. She was directed to bring to court a copy of her filed 2014 T1 General Return and her Notice of Assessment.

She was also directed to bring to court a copy of her 2015 year to date statement of earnings, and if prepared and filed a copy of her 2015 T1 General and her Notice of Assessment.

The only documentation subsequently produced by her was her 2015 T4 slip from the School District No 68 (Nanaimo-Ladysmith) showing her line 101 income as $84,524.19 and her year to date statement income for the period January 1 to March 15, 2016, showed earnings as $21,186.93. [ 70 ] However in her viva voce evidence she was referred to her March 16, 2015, sworn Financial Statement which indicated that her total employment income was $85,922.40. She accepted that figure as being correct.

She also acknowledged that there were allowable deductions for union dues of $1,604.37 and therefore the correct Child Support Guideline Amount is $84,318.03 for 2015. [ 71 ] The Mother receives her annual pay over 10 months hence she does not receive any remuneration from her school district for the summer months of July and August. This produces a cash flow problem for her that is handled by means of credit card debt and a personal line of credit. She says that she lives pay cheque to pay cheque.

Her March 16, 2015, Sworn Financial Statement discloses a vehicle with a market value less than the outstanding loan on it and “other property” with a value of $50,000.00 and bank and “other accounts(including RRSP’s)” totalling $17,000.00. She has credit card and other indebtedness of just under $15,000.00 including her car loan. She lists her annual expenses at $94,295.09 exclusive of volleyball related expenses. [ 72 ] She owns a mortgaged home in which she resides along with Child K and her Child A, who is age 12 and in Grade 7. Child A is the product of an artificial insemination procedure.

The Mother supports both children. She receives no child support payments for Child A. Child A’s child maintenance is not the subject matter of this proceeding.

The Mother testified that she has been able to support herself, Child K, and Child A in a reasonable lifestyle. [ 73 ] The Mother testified that up until Child K was approximately 10 years of age the Father paid for approximately 5 return flights in order that the Child K could visit with her maternal grandmother and other family member in Nova Scotia. [ 74 ] The maternal grandmother, referred to in the evidence as “Nana”, lived in Nanaimo for approximately one year with the Mother, Child K, and Child A but she also maintained a residence in Nova Scotia.

The Child K had a very close relationship with her up until Nana’s passing approximately 2 years ago in September of 2013. Nana encouraged Child K with her volleyball activities and paid for some of the associated costs including hotel and ferry expenses, and occasionally Nana attended herself, all of which ceased upon Nana’s death. [ 75 ] The Mother testified that the costs for Child K to participate in volleyball at a highly competitive level are very significant.

In her opening submission on the first day of the hearing the Mother suggested that she had in a space of some 4½ years incurred volleyball costs of some $20,000.00 which she submitted should be characterized as special and extraordinary expenses. [ 76 ] During the course of her evidence I requested that she re-examine those figures pending the continuation of her evidence and provide the court with a breakdown of those costs in order to isolate and summarize the following: 1.

Direct costs and expenses for the Child K’s participation in the following volleyball activities (“Direct Costs”) including participation fees, equipment, uniforms and travel expenses for Child K, including those incurred for training and selection camps and for tournaments involving her:

a) school teams;

b) club teams;

c) beach volleyball teams, and

d) provincial, regional and national teams 2. Necessary indirect costs and expenses of Child K’s participation in volleyball activities which required the Mother’s attendance (“Necessary Indirect Costs”).

These Necessary Indirect Costs included greater travel expenses incurred because of an official organizational requirement to have a parent or chaperone in attendance (in this case the Mother) at a tournament or a training or tryout camp or to provide transportation for the participating child or other members of the team; hence, additional travel and accommodation expenses incurred by the Mother for herself to fulfil these requirements.

Also to be broken out and included as part of this category of expenses were to be those incurred when the organization hosting or organizing volleyball events, competitions or camps had limited involvement in the oversight of the young participants thus making it necessary for a parent or an adult chaperone to be in attendance with a participating child and thus were required to incur additional travel expenses. 3.

Voluntary costs and expenses incurred when Child K was not required to travel as part of a team commitment or the Mother was not obliged to be in attendance as a parent or chaperon or as a transportation provider but Child K did participate as a matter of personal choice or in the case of the Mother chose to attend and be a spectator to support Child K and her team (“Voluntary Costs”). [ 77 ] At the continuation of her evidence on March 29, 2016 the Mother produced some summaries based upon the periods from September of one year to the end of August in the following year. [ 78 ] The Mother was unable to produce receipts for any of the categories for the 2011-2012 season except for a Direct Cost for Child K’s uniform expense of $170.00. [ 79 ] Using this basis of categorization the Mother provided evidence that for 2012 -2013 the Direct Costs (but based only upon

available receipts for 2 of a possible 5 Island tournaments) totalled $2,106.16 for Child K. The Mother’s Necessary Indirect Costs relating to team and player transportation and her accommodation for the 2012-2013 season totalled $794.91. The grand total of those two amounts for 2011-2012 equalled $2,901.07. [ 80 ] For 2013-2014 the Direct Costs for Child K totalled $3,889.43 and the Mother’s Necessary Indirect Costs based on one available receipt totalled $372.60. The grand total of these two amounts for 2013-2014 equalled $4,262.03.

The Mother noted that these figures were based upon available receipts and noted that several were missing thus the actual costs and expenses were understated. The Mother claimed the available children’s fitness amount of $500.00 for Child K on Line 365 of her T1 General Income Tax Return. [ 81 ] For the 2014-2015 season the Child K’s Direct Costs totalled $5,446.43 and the Mother’s Necessary Indirect Costs totalled $3,747.68. The grand total of these two amounts for 2014-2015 equals $9,194.11.

These totals did not include Child K’s attendance at a tournament in Hawaii costing $1,817.68 (thus being Voluntary Costs) and which the Mother also attended at her own separate cost. These totals also did not include the Mother’s Voluntary Costs to attend an Island tournament and a national tournament which amounts totalled $1,111.26. The Mother claimed the available children’s fitness amount for Child K of $1,000.00 on Line 365 of her 2014 T1 General Return. [ 82 ] For the 2015-2016 season, Child K’s Direct Costs from September 2015 to March 2016 were $1,816.68.

The Mother’s Necessary Indirect Costs totalled $508.30. The grand total of these two amounts is $2,324.98. [ 83 ] The total of Child K’s Direct Costs from September 2011 to March 16, 2016 is $13,428.76. The total of the Mother’s Necessary Indirect Costs equals $5,423.49.

Therefore the grand total of these two amounts equals $18,852.25. [ 84 ] The Mother testified that she did not consult with the Father about incurring any of the volleyball related costs but chose to incur all of those costs without any commitment from the Father to share in the costs. [ 85 ] She testified that the Father offered to pay $10,000.00 towards the volleyball costs. To date he has not made any contributions to the volleyball costs.

The Father did not present any contradictory evidence about either assertion. [ 86 ] The Mother testified that there are additional costs incurred by her that relate to Child K’s secondary school graduation which she submits should be characterized as extra-ordinary or special expenses. These relate to Child K’s graduation celebrations and expenses and include her graduation dress and graduation photos. The total amount as at March 29, 2016, totalled approximately $1,216.42. The Mother has spoken to the Father and has requested that he make a contribution.

To date the Father has not made any contribution but he has apparently spoken to Child K about paying directly for some duplicate items, like a second graduation dress and photos. [ 87 ] Costs and expenses for Child K’s anticipated attendance at a post-secondary institution are beginning to accumulate for application and registration fees. Also tuition fees and expenses are anticipated to be due in the coming summer months. There was no evidence of what those amounts are anticipated to be. [ 88 ] The Mother seeks contribution to these post-secondary expenses from the Father.

To date the Father has made no such contribution. [ 89 ] The Mother has a relatively small investment account which she has maintained for contribution to Child K for post-secondary educational expenses but she has not established a Registered Educational Savings Plan which would entitle Child K to receive a contribution of funds from the Federal Government.

The Mother expressed an intention of doing so. [ 90 ] On the issue of lack of communication from the Father to the Mother or Child K, the Mother contends that her whereabouts and that of the Child K were known to or should have been known to the Father because the Mother’s address, telephone and email address have not changed in some 11 years. Personal Background and Financial Circumstances of the Father [ 91 ] The Father is approximately 57 years of age and has spent most of his career as a heavy machine operator.

A considerable period that time was with the Provincial Ministry of Highways and Transportation involved in highway construction and maintenance throughout many regions within the Province of British Columbia. He attained the positon of foreman following his separation from the Mother. [ 92 ] Following privatization of many functions of that Ministry some 13 years ago he gained and maintained employment with one of the chief road construction and maintenance contractors for the Ministry as a foreman but remains a BCGEU union member.

He works on crews that deal with highway markings; he has a home base out of Langley, BC. It is project related work that is both seasonal and weather dependent by its very nature. [ 93 ] As I understand it he presently receives an annual base salary of some $68,000.00 plus over time. He testified that he takes all of the overtime that he is offered which is allotted by seniority. He is the most senior foreman. From that I infer he is in a preferred positon to obtain overtime. [ 94 ] He is usually working away from his Langley home base some 13 weeks per year.

His employer pays for his accommodation when he is away and he has a per diem rate of $47.00 for meals and receives use of a vehicle when he is on “travel status”. [ 95 ] There is no mandatory retirement age for him. However it is the Father’s intention to retire in the not too distant future. [ 96 ] He has a fully vested BCGEU pension plan. In April of 2017, at which point he will be 59 years of age, he will be eligible to receive the maximum amount available from his pension plan. According to his evidence his pension payment amount is based on formulae.

On the first day of his evidence he used a formulae calculated on a 4 year base average of hours for each year and a base

hourly rate. On that basis he anticipated that he would be receiving $63,000.00 per annum on his pension, which is indexed plus both a CPP bridge and then at age 65 he would be eligible to receive his Canada Pension. Thus on that basis he expects to receive some $70,000.00 per annum in pension income from all sources. [ 97 ] On the second day of his evidence he corrected himself and said that his pension correctly was calculated on 80% of the average of his straight time earnings over the last 5 years.

On that basis he would be entitled to BCGEU pension income of an estimated annual amount of $58,000.00 plus, as I understand it a CPP bridge payment and ultimately his CPP monthly payments producing an additional $13,000.00 or $14,000.00 per annum. Therefore I understand that he can expect to receive between $71,000.00 and $72,000.00 per annum in pension income from all sources. [ 98 ] There is an opportunity for him to continue to work as a part time employee even after drawing on his pension.

Some part time employees on his crew can actually obtain as many as 2,300 hours of employment over an 8 month season. [ 99 ] Following his separation from the Mother he continued to work on Vancouver Island during the course of the Island highway construction and thereafter throughout the Province, but he maintained Nanaimo as his home base where he and Child S lived.

He then moved to Mission B.C. while Child S continued to live in Nanaimo with family friends, while relying upon and receiving financial support from the Father, thus allowing Child S to compete his high school graduation in Nanaimo in 2003. [ 100 ] Eventually the Father moved to Chilliwack where he acquired and continues to reside in a mortgaged detached, condominium unit. He testified that prices for that type of unit have actually dropped over the last 8 years in his location.

His March 29, 2016 Sworn Financial Statement discloses $19,500.00 in vehicles and approximately $33,800.00 credit card debt, loans and a balance owing on a line of credit.

He lists his annual expenses which I have totalled at $73,966.66 per annum. [ 101 ] The Father does not financially support anybody other than by way of the existing order for child support under the April 2015 Interim Order. [ 102 ] The Father’s line 150 income and permitted adjustments for union dues for child support and special expense calculations for the periods from 2004 to 2015 inclusive are as follows: Year Line 150 Income Allowable Employment Expenses Line 212 (Union Dues) Child Support Guideline Amount 2004 $ 75,584.00 $1,487.00 $74,097.00 2005 $ 73,941.00 $1,323.00 $72,618.18 2006 $ 80,831.00 $1,402.00 $79,429.00 2007 $ 78,449.00 $1,361.00 $77,088.00 2008 $ 80,926.00 $1,387.00 $79,539.00 2009 $ 89,953.97 $1,586.70 $88,367.27 2010 $ 82,703.13 $1,416.30 $81,284.83 2011 $ 69,508.32 $1,025.96 $68,482.36 2012 $ 90,286.00 $1,559.00 $88,727.00 2013 $101,726.00 $1,766.00 $99,960.00 2014 $ 92,517.00 $1,535.00 $90,982.00 2015 $ 88,771.26 $1,308.47 $87,462.79 2015 (adjusted for WCB payments as noted below) $ 92,111.00 $1,308.47 $90,802.53 [ 103 ] The Father further testified than in 2011 his income was unusually low because of a three-week labour lockout and a union work to rule campaign during which period no overtime was worked. [ 104 ] The Father testified that in 2013 and 2014 he sold all of his shares in his employer corporation acquired through a share option plan in anticipation of his upcoming retirement.

The employer is an employee-owned corporation. He estimated that the proceeds amounted to approximately $10,000.00 to $12,000.00 over 2 years hence his income for those particular years was higher than usual. Based on the income tax information and other documentary evidence filed and entered it is difficult to determine exactly where this income was shown in the Notices of Assessment. I can only presume that the sale proceeds are included as part of his line 150 income for those two years. There is no available

Schedule of Capital Gains (or Losses) or any Statement of Investment Income from his T1 General Return nor any other information made available about the income realized from the disposition of these shares. [ 105 ] According to the Father’s testimony in 2015 the Father was injured at work, requiring biceps surgery in June 2015 thereby reducing his ability to earn overtime. He received a Worker’s Compensation payment that year of $10,121.55.

That Worker’s Compensation amount was included in his line 150 income but that amount, as I understood it from the Father’s evidence is tax-free and hence in the normal course would be grossed up by approximately 1/3 to reflect the gross amount on a pre-tax basis. That results in an increase adjustment of income of some $3,340.00 which would result in income for 2015 of some $92,111.00 less adjustment for union dues results in a 2015 income for Child Support Guideline of $90,802.53. I note that in the 2015 T1

summary the $10,121.55 receipt from Worker’s Compensation is included as part of the line 150 income at line 147. However that amount becomes deductible at line 257 in calculating the taxable income at line 260. Hence it appears correct that no income taxes are payable on these Worker’s Compensation amounts. The Father was required to have a second operation in late July or early August 2015. A graduated return of work on light duty started in October 2015 during which time he was receiving part payment from his employer and

part compensation

payments from Worker’s Compensation. [ 106 ] In 2016 the Father says that he and his fellow union members were locked out for two weeks for the period from April 1 st to April 12, 2016. Hence the Father’s prediction for his 2016 line 150 income would be in the range of between $80,000.00 and $86,000.00. The Father is presently working on a full time basis.

During the lock-out period he received $50.00 per day tax free strike pay. [ 107 ] The Father has complied with the monthly payments of $857.00 required by the April 2015 Interim Order and the payment of the lump sum amount of $8,500.00 required by the June 2015 Interim Order. The Father testified that his cheque #62 in the amount of $850.00, which he described as being provided to the Mother as an “early child support payment” had never been cashed.

As at the dates of the hearing no additional amounts have been paid by the Father by way of child support or for any additional expenses. [ 108 ] The Father testified that at one time he had previously established and maintained an “education fund” for Child K as part of a verbal arrangement with the Mother. It was not a Registered Education Plan. His own parents made contributions to that fund but they divorced and discontinued their payments. The Father testified that he “fell on hard times” and had to collapse the fund some years ago.

His parents have no present relationship with Child K and have not had one for many years. [ 109 ] As noted above the Father states that his whereabouts since separating from the Mother was or should have been known to the Mother and for that matter the Child K since his email and cell phone number have not changed since that time. The Relationship of the Mother and the Father [ 110 ] The relationship between the Mother and the Father is and has been for many years very strained.

Following the time of their separation they maintained some contact which was focused and centred on the Father’s visitation with Child K but only up until part way through 2009. [ 111 ] The Mother testified that there had been incidences of domestic violence during the Parent’s time together with actual hitting occurring in August of 1998, prior to their separation. She did not report this incident to the police or to anybody else. [ 112 ] The Parents’ contact ceased in or around the spring of 2009.

There is some conflict in the evidence about the circumstance surrounding the cessation of that contact which also coincided with the lack thereafter of ongoing contact and communication between the Father with Child K. [ 113 ] It does not appear that there was any significant, noteworthy or memorable event occurring at the last visit in the spring of 2009. [ 114 ] The evidence supports the conclusion that the Mother asked the Father for some financial help for Child K at the time of that last visit between the Father and Child K in 2009 and which marked the end of meaningful contact and communication between the Parents. [ 115 ] In response to the request, the Father offered to contribute $3,000.00 towards a trip to Disneyland.

The Mother accepted the offer. The amount was never paid and the Mother never reminded the Father about the accepted offer and the non-payment nor did she pursue that or other financial support or contributions from the Father for the support of Child K in any fashion. [ 116 ] The evidence suggests that prior to 2009 the Father had somewhat regular contact with Child K, including in person visits even after he had moved to the lower mainland. [ 117 ] The Father did continue to provide the Mother with occasional payments for things such as air fare to the Maritimes from the date of separation until 2009.

He purchased Child K a motorized ATV 4-wheel-drive in or around 2006. The Father believed that the Mother was both overly restrictive and interfering during his visits with Child K and was not encouraging or promoting his relationship with his daughter. [ 118 ] The Mother believed that she went out of her way “to allow” the Father to have access to Child K.

No steps were taken by either party to deal with the questions relating to the Father’s ongoing access with the Child K (now referred to as parenting time in the Family Law Act ) in the manner described in Sections 4.5 to 4.8 of the Separation Agreement. [ 119 ] The Mother suggested that the Father did not show up at important events, citing age 6 as the last time that he attended Child K’s birthday party. The Father testified that his work obligations limited the amount of time off available to him in June around the Child K’s birthday.

The evidence supports that the Father has been very work focussed for many years. [ 120 ] The Father testified that he has always and continues each year to the time of the hearing, sent the Child K flowers on her birthday along with a message on an accompanying card. The florists’ invoices and the Father’s credit card invoices tendered and accepted into evidence support that testimony.

It is noteworthy that the Child K does not believe that to be the case and is of the view that the Father discontinued sending her flowers several years ago, thereby contributing to her significant sense of abandonment by the Father. [ 121 ] The Father says that he received no acknowledgement or reply from the Child K or from the Mother regarding these flowers for the last 7 or 8 years.

Having now learned that Child K did not know about the annual gift of flowers, it raises the perplexing question for the Father as to why the Child K did not receive the birthday flowers and was therefore left with the impression that he had failed to reach out to her and to continue to acknowledge this important anniversary event in her life. [ 122 ] The Mother concedes that since that since 2009 and likely before that time she did not provide the Father with any information about Child K’s progress at school or how she was doing socially or with her activities.

In particular she did not inform the Father of Child K’s interest, talent and achievements in volleyball. She suggests that the Father was somewhat aware of the Child’s circumstances prior to 2009. It is clear that no consultation between the Parents in their roles as guardians of the Child K as agreed to and as set out in

Section 4.3 of the Separation Agreement has ever occurred. [ 123 ] The Mother testified that she became concerned about some inappropriate remarks made in reference to the tongue of Child K by the Father in May of 1999 which she suggested contained some sexual innuendo. Other individuals were present including a girlfriend of the Father who expressed criticism to him about the nature of his remark. The Mother stated that this inappropriate remark made her very uneasy. She sought some legal advice. She says she reported her concerns to the Ministry of Children and Family Development or its predecessor in name.

No investigation occurred. She testified that based on those discussions with Ministry officials she understood that she was not to allow the Father to have the Child K alone by himself. There is no indication that she shared any of this information or her concerns with the Father. [ 124 ] The Mother testified that once again when Child K was about age 6 (which I therefore understand to be around 2004) the Father made another inappropriate comment containing sexual innuendo and in reference to Child K in the future working as a “stripper”. Nobody else was present.

There is no indication that the Mother followed up to report the comments or her concerns to anybody, including the Ministry of Children and Family Development or to the Father. [ 125 ] However, when the Child was about age 12, (which I therefore understand to be around 2012) she told the Child K about the Father’s inappropriate May 1999 remarks. There is no indication in the evidence that this disclosure included the 2004 inappropriate remarks. She testified that she did this on the basis of advice received from a professional counsellor.

The Mother could not recall exactly what the counsellor had said or the apparent reason for that advice. The Mother did testify that she was concerned Child K should have a “full understanding” of the Mother’s safety concerns for the Child K, if the Father wanted to be part of the Child K’s life. It is noteworthy that this disclosure to Child K followed the time that the Father’s regular contact with Child K had ceased and the Child K was not responding to any gifts or communications from the Father.

Therefore that reason and the timing of the disclosure is somewhat puzzling and requires some further consideration by this court. [ 126 ] It was against this background and in response to a direct question from the court about what she thought the effect of this disclosure would have been on the relationship between Child K and her Father, that Mother testified that she felt that she tried hard not to say anything about the Father to the Child K and that she felt she was “trying to keep everything calm”.

Notwithstanding her expressed concerns and her stated reasons for the disclosure she later testified on cross-examination that the Child K was not then nor at the present time fearful of the Father. [ 127 ] The Mother contends that as a result of the domestic violence in their relationship and the inappropriate remarks made by the Father in 1999 that she was “fearful” of the Father and continued to be so for some 14 plus years. In fact she cites her fear of the Father as a reason that she never approached him for child support of the Child K nor sought to revisit the issue of child support.

She further testified that she waited until January 22, 2014, when Child K “was older and less vulnerable” before she felt it was appropriate to seek to obtain child support for Child K. She did not seek any legal advice about obtaining child support from the Father before 2013. [ 128 ] There was substantially no communication between the Parents from around 2009 until 2013 relating to child support or about the welfare and progress of Child K.

There was some communication which I understand occurred around 2011, when the Child K was approximately 13, and the Mother required the Father’s approval as a guardian to obtain a passport renewal for Child K. Apparently no discussions occurred between them at that time about child support. [ 129 ] The Father does not recall ever telling the Mother at any time that the Child K did not need him anymore and that the Mother was doing a fine job raising her, all of which was contained in the Mother’s evidence. I do not understand that he disputes that she has indeed done a fine job.

Notwithstanding that he cannot recall saying that, his conduct after 2009 relating to Child K certainly lends support to the Mother’s evidence. [ 130 ] The Mother did start reaching out to the Father by way of email and texts starting in September of 2013, shortly after the death of Nana, her own mother, suggesting to him that there be child support payments from him of $500.00 per month. She testified that this amount was arrived at by her on the basis of a presumption that she and the Father were earning approximately the same amount of money.

She received texts from the Father indicating that he was prepared to help out and also seeking information about Child K. It appears that the Mother provided very little information about the Child K to the Father. No child support was forthcoming notwithstanding repeated reminders from the Mother.

She therefore filed the Mother’s Application on January 22, 2014. [ 131 ] The Mother concedes that at the time that she reached out to the Father and when she filed her Application in January of 2014 she was financially stretched having experienced reduced income while completing her Master’s program, paying for the mounting costs related to Child K’s volleyball activities and because her own mother, Nana, had passed away thus the financial support from that source had also terminated. [ 132 ] In his evidence, the Father offered little in the way of excuses as to why he did not pursue contact with the Child K after 2009, other than to say that he was not receiving any “thank you-s” or acknowledgements of the birthday flowers sent to Child K. [ 133 ] He denied that the reason he did not make any payment to the Mother in aid of the support of the Child K after 2009 was because he was not getting the opportunity to see the Child K without the Mother being present. [ 134 ] However his excuse for not raising the issue of child support with the Mother prior to her contacting him in 2013 was because he was “upset” and “stubborn” and “nothing else”.

I interpret that those emotions and feelings were directed at the Mother and seemed to be based upon the strained relationship he had with her and particularly as it related to the Child K and his relationship with Child K. [ 135 ] His lack of response to the Mother’s communications and his lack of forwarding any payments or other financial information, in part, appears to have been based on the fact that Mother was not providing him with adequate information about Child K. That upset him and I infer that he continued to be “stubborn” because of that.

It is noteworthy that until contacted by the Mother in 2013 there is very little to indicate that he had specifically requested any information about Child K. [ 136 ] The Father testifies that since the Mother made contact with him in 2013 he has taken steps to attempt to rekindle his

relationship with Child K. That has presented several challenges to the Parents and to Child K. [ 137 ] The Father has attempted to make contact with the Child K by way of cards, personal letter correspondence and by electronic means. He has attended a number of her volleyball tournaments.

Many of these attendances came as a result of invitations and suggestions made by the Mother to him. [ 138 ] Early on he believed his attendances were being welcomed by Child K and that when they met on those occasions that she was affectionate and engaging with him. [ 139 ] The Father attended the 2015 Provincial Volleyball Tournament in April of 2015. [ 140 ] In May of 2015 the Father contacted the Mother expressing an interest in attending a National Volleyball tournament in Calgary. The Mother provided information to him.

He did not attend nor did he inform the Mother or Child K of that decision, which he says was based upon his own budgetary constraints. [ 141 ] The Father testified that from April of 2015 after the Provincial Volleyball Tournament until February of 2016 he had limited contact with Child K. His texts, calls and messages had not been acknowledged nor responded to and Child K had blocked him from Facebook, but while maintaining contact with the Father’s girlfriend who had served as somewhat of a conduit for communication.

He sent Child K a number of letters and cards containing his apologies to her after he read the Views of the Child Report and after the 2015 Provincial Volleyball Tournament in April of 2015. [ 142 ] As I understand it communication once again started either directly or indirectly in February of 2016 and continued in some limited fashion until his attendance at the 2016 Provincial Volleyball Tournament in mid-April of 2016. [ 143 ] More recently he interprets the reaction of Child K as somewhat less than welcoming and in the case the Mother as hostile towards him.

Most unfortunately, rather than fostering the Father and Child K’s relationship, the Mother has on more than one occasion (and in particular on one notable occasion at the Provincial Volleyball Tournament in April 15, 2016) used the Father’s attendances as an opportunity to confront the Father regarding financial issues and other similar matters relating to the Child K. [ 144 ] On April 15, 2016, the Mother initiated discussions that took place both publically and in front of the Child K, who understandably became quite distraught.

Finally one of the volleyball coaches separated them and requested that the Father leave. He did. This situation was very distracting, troubling and embarrassing for Child K. The Father testified that the Mother also made public comments about his past infidelities that were overheard by Child K. [ 145 ] Subsequently, the Father sent her a form of apology via text to Child K for having to witness this most unhappy event. [ 146 ] Since that event, the Father has had no direct contact with the Child K and there have been no texts, no Facebook communications, no phone call, emails or other exchanges.

The Father has received no further communication from Child K about her Grade 12 graduation, about which they had previously spoken. He has no record of any missed calls on his cell from her. [ 147 ] The Father generally has concluded and is of the view that the Mother has been continuing to attempt to undermine his attempts at re-building a relationship with Child K. He says he left some of these volleyball events early because of these feelings and the fact that he felt he was being ignored by Child K.

The Mother suggests that these feeling are unfounded and the Father has failed to recognize that Child K was not ignoring the Father but simply was focussing on and fulfilling her responsibilities to her coach and to her teammates and that she did not have an appropriate opportunity to engage with the Father prior to his early departures. [ 148 ] The Mother suggests in her evidence that she has taken steps in order to have the Child K maintain contact with the Father.

However, the Mother notes that Child K must make her own decisions regarding pursuing the relationship with her Father which has been interrupted and non-existent for so many years. She is in the view that Child K “is not yet ready” to pursue their relationship. [ 149 ] The Father testified that he did not have any way of contacting Child K except through the Mother. He did not do so because he did not want to have to comply with her various demands or wishes. In his words, he did not want to “be bullied into things without having a chance to say something about it”.

He contends that the Mother’s behaviour amounts to “parental alienation”. [ 150 ] The Mother contends that in recent months the Father agreed to share the volleyball costs for Child K. The Father acknowledged the importance of volleyball in Child K’s life.

Notwithstanding repeated requests of the Mother made by the Father, she provided little in the way of information to support the amounts that the Mother suggests she has spent on the Child K’s volleyball activities for the last 4 plus years, that is prior to preparation of the required disclosure for the hearing of these matters before this court. [ 151 ] The Mother and the Father have been very much at odds over expenses relating to Child K’s graduation.

The Father has been very reluctant to share in expenses incurred by the Mother, again on the basis that he has had no input nor was he consulted regarding those expenditures. He testified that he spoke to Child K and told her that he wished to make his own separate purchases for the Child K’s graduation.

Parental Relationships With the Child [ 152 ] As I understand the timing sequence, before the unhappy incident between the Parents took place at the April 15, 2016 Provincial Volleyball Tournament, the Father and Child K had actually spoken about their relationship on some occasions at the volleyball events. [ 153 ] The Child K expressed feelings of abandonment and resulting resentment towards the Father, citing such things as the lack of flowers on her birthday and no contact for several years.

The Child K expressed a lack of trust in the Father but did acknowledge receipt of a letter of explanation and outreach sent by the Father. In response Child K told him that she and the Mother were “a team”. The Father testified that he told her that he agreed with that statement.

[ 154 ] The Father says that he wants to have an open relationship with Child K and to have the opportunity to “explain myself” to her. According to the Father, Child K had expressed a willingness to engage in counselling with the Father, the goal being to assist them in the restoration of their relationship.

That counselling has not proceeded but it is the basis of the relief sought in the Father’s Notice of Motion filed May 16, 2016. [ 155 ] While the Father has counselling services as part of his employment benefits package, he has not made contact with a counsellor nor with any other professional to receive advice about how to get Child K engaged in that process with him. He describes himself as “waiting patiently” for Child K to respond to his outreach to her, saying the “ball is in her court”. [ 156 ] Understandably the Mother and Child K have a very strong bond and relationship with each other.

The Mother has been the sole caregiver and provider for Child K for so long as Child K can recall. The Mother has been very involved in the Child K’s life at all levels. It is apparent from the evidence that the Mother, Child K, Child A, and Nana comprised a very cohesive family unit. It is clear that the Mother has encouraged Child K in her volleyball pursuits and has been willing to make significant personal and financial sacrifices in order that Child K could play at a highly competitive level. The

Section 211 Views of the Child Report [ 157 ] As noted above the Views of the Child Report was prepared pursuant to the April 13, 2015, Interim order. [ 158 ] Family Justice Counsellor Lisa Bury was told by Child K at their interview that she has a very strong relationship with the Mother. She described her Mother as “the person she can always count on”. Child K was described in the report as becoming “very emotional about her gratitude for her mom and all the sacrifices she has made” so that the Child K could play volleyball. [ 159 ] Based on her interview with Child K, Ms.

Bury reports that the Child K recalls fairly regular visits with the Father until she was approximately 8 years of age. That frequency declined between the ages of 8 and 10. Child K’s last vivid memory of the Father was on her tenth birthday when she received her annual roses from him. Child K then described that the Father just disappeared around her tenth year. Child K then indicated that she tried to call the Father on Father’s Day after her tenth birthday but that he did not call or send any further presents or make further contact with her. [ 160 ] Child K reported emotionally to Ms.

Bury that she found the Father’s attempt to reconnect with her by attending the 2015 Provincial Volleyball Tournament as very stressful and emotional for her. The Views of the Child Report states that the “idea of being forced into contact with her Dad is creating anxiety for her”. [ 161 ] Child K further indicated very emotionally to Ms. Bury that she felt frustrated about having to deal with the Father’s attempts to rekindle their relationship after so many years of absence from her life.

This, of course, was based in part on her belief that he quit sending her roses for her birthday after her tenth birthday and that he did not respond to her nor attempt to reach out to her. She told Ms. Bury that her Mother asked her around Father’s Day if she wanted to try to call her dad but she declined to do so because she did not want to “feel the rejection”. [ 162 ] The Views of the Child Report contains the following important statements: [Child K] has put a lot of thought into what the potential is for her relationship with her Dad. She feels very reluctant to commit to anything regarding him.

She feels before she can move on she needs a sincere apology and an explanation around how he could “just walk out of my life”. She states she is willing to try if he is, stating “I am open to whatever he is willing to give, but I do not have a lot to give back right now”. If [Child K] could tell the Judge one thing it would be “I do not want to be forced, I am not ready and I will do it on my own terms and in my own time”.

She went on to highlight “when I am ready, he will need to make up for lost time”. [Child K] is open to her Dad sending her a letter, but she does not want to commit to a response. [ 163 ] It is important to note that the Views of the Child Report was completed before the very unfortunate incident at the 2016 Provincial Volleyball Tournament but apparently subsequent to the Father’s letters to her and his cards saying that he was “sorry” for her feelings of abandonment and apparently asking Child K why she felt that way. [ 164 ] However the apparent lack of communication from the Child K to the Father after the 2016 Provincial Volleyball Tournament must be considered both in the context of the views of the Child K as expressed to Ms.

Bury and recorded in the Views of the Child Report and the embarrassment and anxiety caused to her by the unhappy events at that tournament. [ 165 ] The Father suggests that the Child K was “coached” by the Mother about what to say in the interview with Ms. Bury. He offers no evidence to support that position other than his assessment of what Child K stated to Ms. Bury. POSITIONS OF THE MOTHER [ 166 ] The Mother’s position on the issues may be summarized briefly as following: 1.

The Child K should not, by way of court order, be required to have a relationship with the Father nor be required to undergo counselling unless it is her personal wish to do so. 2. The Father should have been paying child support for the Child K from 2004 after the Child S had graduated from school and

was working hence was no longer a child of the marriage. 3. Alternatively, child support should be ordered on a retroactive basis against the Father for some 7 years prior to September 2013, being the date she made contact with him about paying child support. 4.

The volleyball costs are “special or extraordinary expenses” and depending on the extent of the retroactive child support that is ordered that the Father should be paying an amount ranging from the entire amount of those costs (if the ordered retroactive child support amount is limited) to an amount of between 50% and 60% (if the retro- active amounts ordered are more generous). 5. The Father should be ordered to pay ongoing special and extraordinary expenses relating to the beach volleyball, Grade 12 graduating expenses and future university educational expenses for Child K.

POSITIONS OF THE FATHER [ 167 ] The Father’s position on the issues may be summarized briefly as follows: 1 On the issue of his parenting time and relationship with his daughter, Child K, he is of the view that he should be entitled by way of court order to receive her email address and her cell phone number in order that he may continue to attempt to remain in communication with her, rather than being required to direct his communication through the Mother. That is based on the Father’s contention that the Mother’s conduct as it relates to Child K’s relationship with him amounts to parental alienation. 2.

He views the issue of counseling with Child K to be important and he wishes to pursue it. That said he does accept that such counselling will require engagement by his daughter and when she is prepared to proceed. 3. The Father does not deny his responsibility to be paying child support but he does submit that he should be paying child support from September of 2013 when the Mother contacted him. 4.

Alternatively, if he is ordered to pay retroactive child support it should be for a maximum of three years and that the court should be mindful that for him to pay all accrued arrears flowing from such an order that it will necessitate him remortgaging his residence. Further he contends that he will have to continue to work beyond his projected retirement date thereby depriving him of the enjoyment of a well-earned retirement after 38 years of work. . 5.

The Father says that volleyball costs should not be characterized as special and extraordinary expenses but if they are, then the amounts are unreasonable and that the court should not accept the Mother’s evidence regarding the amounts being claimed by her. The Father urges the court to allow him to make voluntary payments as he may wish towards those volleyball costs but should not be required to do so. 6.

The Father says that with respect to the other categories of special and extraordinary expenses being claimed by the Mother, that he should have some input and say as to the amounts for which he should be responsible. He supports the notion of Child K attending university but expresses concern about what those expenses may entail and also suggests that his input is required if he is to bear a share of those expenses.

RELEVANT PROVISIONS OF THE FAMILY LAW ACT [ 168 ] For the benefit of these self-represented parties I refer them to the following parts and the sections contained within them of the Family Law Act [S.B.C 2011, c 25 and amendments thereto] (the “ FLA ”). Many are relevant to the issues before the court and to which I may make reference and rely upon in the course of my reasons. They are as follows:

PART 1 —

Interpretation “Definitions” (sections 1 to 9 inclusive)

PART 2 — Resolution of Family Law Disputes and Division 1 - “Resolution Out of Court Preferred” (sections 4 to 9 inclusive), and Division 2 - “Family Justice Counsellors” (sections 10 to 19 inclusive);

PART 4 — “Care of and Time with Children” and Division 1 - “Best Interests of Child” (sections 37 and 38), Division 2 - “Parenting Arrangements” (sections 39 to 48 inclusive), Division 3 - “Guardianship” (sections 50 to 57), Division 4 - “Contact with the Child” (sections 58 to 60 inclusive), and Division 5 - “Compliance Respecting Parenting Time or Contact with the Child” (sections 61 to 64 inclusive);

PART 7 — “Child and Spousal Support” and Division 1 - “Definitions” (section 146), Division 2 - “Child Support” (sections 147 to 152 inclusive), Division 3 - “Child Support Service” (sections 153 to 159 inclusive), and Division 5 - “General”;

PART 9 — “Protection From Family Violence” (section 182 to 190 inclusive);

PART 10 — “Court Process”, Division 4 - “General Orders the Court May Make” (sections 211 to 221 inclusive), Division 5 - “Orders Respecting Conduct” (sections 222 to 228 inclusive), and Division 6 - “Enforcement Generally” (sections 229 to 231 inclusive). Law Relating to Care of and Time with Children and to Parental Responsibilities [ 169 ] Section 40(2) of the FLA provides that each guardian may exercise all parental responsibilities with respect to a child and must

do so in the best interests of the child in consultation with the child’s other guardians, unless an order or agreement provides to the contrary. [ 170 ] No particular parenting arrangement must be presumed to be in the best interests of a child, including that parental responsibilities or parenting time should be shared equally or that decisions about a child should be made separately or by more than one guardian together [see section 40(4)]. [ 171 ]

Section 41 lists the parental responsibilities that may be allocated by agreement or court order such that they can be exercised by one or more guardians, each guardian acting separately or all guardians acting together [see section 40(3)]. [ 172 ] In

section 42 the term “parenting time” is stipulated to be the time that a child is with a guardian, as allocated under an agreement [see

section 44] or court order [see

section 45] and under section 45(3) the court may order that parenting time be supervised. [ 173 ] During parenting time, subject to an agreement or court order that provides otherwise, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and will have day-to-day care, control and supervision of the child [see section 42(2)]. [ 174 ]

Section 43 of the FLA stipulates that a child’s guardian must exercise their parental responsibilities in the best interest of the child. [ 175 ]

Section 44 of the FLA permits agreements respecting parenting arrangement to be made between two or more of a child’s guardians. Subsection 3 permits the enforcement by the court of a written agreement respecting parenting arrangements which has been filed with the court as if it were an order of the court. Subsection 4 requires that, upon application by a party, the court set aside or replace with an order made under Division 4 of

Part 4 all or part of an agreement respecting parenting arrangements if the court is satisfied that the agreement is not in the best interests of the child. [ 176 ] Under

section 45 upon application by a guardian a court may make an order respecting one or more of the following: (

a) the allocation of parental responsibilities; (

b) parenting time; (

c) the implementation of an order made under Division 4 of

Part 4 and the means for resolving disputes respecting an order made under Division 4. [ 177 ]

Section 49 provides that a guardian may apply to court for directions on an issue affecting the child. [ 178 ] Section 37(1) provides that the only consideration that the court must take into account in making an order, or parties must take into account when making an agreement respecting guardianship, parenting arrangements or contact is in the child’s best interests. In determining the child’s best interests, the list of factors set out in section 37(2) must be considered. The listed factors are non-exhaustive.

Section 37(3) further stipulates that an agreement or order is not to be in the best interests of a child unless it protects to the greatest extent possible, that child’s physical, psychological and emotional safety, security and well-being. [ 179 ] The conduct of a person may be considered by the court only if it substantially affects any of the factors set out in subsection (2) and only to the extent that it affects that factor. [ 180 ] Two of the factors listed for consideration under section 37 (2) relate to family violence, as that term is defined in

section 1 of the FLA . Those subsections are: 1. subsection (

g) requiring a consideration of the impact of any family violence on the child’s safety, security or well-being, whether directed towards the child or another family member ; and 2. subsection (

h) requiring

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