B.F. v. A.B. Date:, 2012 BCPC 85

Citation: B.F. v. A.B. Date: 20120314 2012 BCPC 0085 File No: F7418 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: B.F. APPLICANT AND: A.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: J. Speed Counsel for the Respondent: S. Mirzaian Place of Hearing: North Vancouver , B.C. Date of Hearing: January 3, 2012 Date of Judgment: March 14, 2012 [ 1 ] The parties are the parents of M.L.B., born [DOB].

They had a year long relationship and separated when M. was about six months old. They have no separation agreement and no prior court orders. [ 2 ] Ms. F. seeks a contribution from Mr. B. toward the cost of M.’s education and other extraordinary expenses. Mr. B. takes the position that the expenses sought, in particular the school fees, are not extraordinary expenses, and/or are not necessary and reasonable. Facts [ 3 ] Ms. F. has M. on Mondays and Tuesdays. Mr. B. picks her up after school on Wednesdays and has her until Friday. She spends alternate weekends with each parent. This

schedule has been in place since M. was three years old. It is a shared parenting

schedule with each parent having M. about half the time. [ 4 ] M. is currently in Grade 7 at St. Edmunds Catholic School. Ms. F. says the decision to send M. to private school was made when she was in Grade 1. She says she consulted with Mr. B. before sending her. She believes he agreed. Ms. F. filled out the forms. [ 5 ] M. has been going ever since, now seven years, and she is very involved with both the school and church. She has helped at the church since the beginning. Ms. F. is very satisfied with the school. She believes it is a better education and the belief system accords with her own. The school is rated high compared with others.

[ 6 ] Ms. F. became Catholic about five years ago. Her family was Catholic. She understands that Mr. B. is Muslim but believes he is not practicing. It is common ground that Mr. B. contributed to school fees in September 2010 when Ms. F. was off work, ill. [ 7 ] It appears that with respect to M.’s extracurricular activities, Ms. F. has traditionally enrolled her, and paid for them. Mr. B. has taken the position, she says, that he pays for the things that M. does when she is with him. Ms. F. recently asked him to pay for a babysitting course, but he refused.

She referred to this as the last straw which caused her to come to court. M. also takes piano and swimming and wants to join the air cadets but Ms. F. says that Mr. B. won’t agree to that. [ 8 ] M. does these activities on weekdays for the most part. Sometimes they are on weekends and Mr. B. takes her to them, but Ms. F. says he tends to object when it is during his time. Cost of Extraordinary Expenses [ 9 ] Ms. F. provided a

summary showing the total cost for the school, per year, as $3,643.95. That includes a non-participation fee of $500.00 per year. [ 10 ] In addition to the school costs, Ms. F. pays for piano, which costs $100.00 per month, community centre activities that cost about $60.00 each, and a day camp in the summer. [ 11 ] Ms. F. did not provide receipts for these. She says M.’s activities amount to about $400.00 per month. [ 12 ] Mr. B. takes the position that he contributes by buying things for M. when she is with him, but Ms. F. believes it is considerably less than she pays. Mr.

B. provided receipts from some of his shopping trips with M., and listed expenses on his Financial Statement including clothing and entertainment amounting to $400.00 per year. He did not keep receipts for those, he said, as he did not expect to be going to court. He did not have any documented extracurricular activities or programs, for which he had paid. Parties’ Incomes [ 13 ] Ms. F. is employed at Ocean Optical as a specialty contact lens fitter. This is a contract position. She expects she will have earned an income of $44,200 in 2011. In 2010 she earned less, because she was off ill.

She had no unemployment insurance. Her average for the past three years is about $38,000 given that she earned $14,000 in 2010. Ms. F. receives the child tax benefit and claims M. as a dependent on her tax return. [ 14 ] Mr. B. works as a carpet installer for Lonsdale Flooring. He stated in his Financial Statement that he earns income of $32,100; however an attached copy of the Payroll Deductions Online Calculator indicates he earns $1,500 semi-monthly as of June 2011. His pay cheques to the November 2011 are consistent with that, and Mr. B. acknowledges he earns this amount.

It appears the income he put in his Financial Statement is net of tax. His income is therefore $36,000. [ 15 ] Ms. F. believes Mr. B. may also lay carpet as a side business. She has seen his advertisements in Craigslist for that business, but some time ago. He mentioned it to her last fall. [ 16 ] Mr. B. says he previously ran a side business laying carpet, but is now in a salaried position. He hurt his back and now drives instead of installing carpet. [ 17 ] He says that his pay cheques represent his whole income.

While he still runs an advertisement for carpet installing he is working 40 hours a week and has little time to earn more. He points out that he is getting older, now 57. He says he is going into debt, using his credit cards and a line of credit to support himself and M. [ 18 ] When he was self employed he declared less income, as he was able to claim expenses for tax purposes. He claims personal expenses amounting to $34,293.60 per year, including $720.00 for alcohol and tobacco and $150.00 for entertainment and recreation, which he says includes activities with M.

Submissions [ 19 ] The parties filed written submissions. On behalf of Mr. B., Ms. Mirzaian submitted that the school expenses are not extraordinary as Ms. F. can pay for them herself, and has done so except for a brief period when she was not working. Ms. Mirzaian submitted that there had been no change in circumstances from when the fees were first incurred that should require Mr. B. to now start contributing to them. She takes the position that Ms. F. only made this application in response to the parties’ disagreement regarding the babysitting course, that the extraordinary expenses she seeks are within Ms.

F.’s means to pay without Mr. B. contributing, and that the expenses do not meet the definition of extraordinary expense under

section 7 of the Federal Child Support Guidelines. [ 20 ] Secondly, Ms. Mirzaian submitted that the school fees were not necessary and reasonable having regard to M.’s special talents. She says there is an absence of evidence that M. has any unique talents that need to be fostered in a private school setting. She says that Mr. B. has not been consulted on any of the extraordinary expenses Ms. F. has incurred, and that there is no evidence Mr. B. agreed to contribute toward any of them. She says the fact that Ms. F. has paid them all these years is evidence that the agreement between the parties was that she would pay for them.

[21] Finally, Ms. Mirzaian submits that the totality of the expenses is not reasonable in light of the means of the parties. She says ifMs. F. cannot afford to continue paying the school tuition, the transition between Grade 7 and high school is an ideal time for M. to enterthe public school system. [22] Ms. Mirzaian relies on the cases of B.A.C. v. D.L.C., 2003 BCSC 860; Reggelsen v. Reggelsen, 2009 BCSC 1790, and Byrne v.Byrne, (BCSC). [23] On behalf of Ms. F., Mr. Speed submits that M. has been thriving at the school and it is in her best interests to attend.

Hesubmits that M. has been attending the school for six years without any objection by Mr. B., until Ms. F. applied for a contribution fromhim. He says Mr. B. has not produced any evidence that attending the school is not in M.’s best interests, and that the expense is notunreasonable having regard to the incomes of the parties. He further submits that piano lessons, summer camps and recreation centreactivities are reasonable extraordinary expenses which are also in M.’s best interests and within the means of the parties. He relies uponthe case of M.A.B.D. v. L.R.S.S., 2006 BCPC 11 , 2006 BCPC 0011.

Analysis [24] In M.AB.D. v. L.R.S.S., Werier PCJ observed: [34]

Section 7 of the Child Support Guidelines outlines that I may provide for the payment of an additional amount to cover all or anyportion of an expense, taking into account the necessity of the expense in relation to K.’s best interests and the reasonableness of theexpense in relation to the means of the spouses. This

section also itemizes the types of expenses that I might consider constituteextraordinary expenses, and it is clear that private school tuition and K.’s extracurricular activities may qualify as valid s.7 expenses.Section 7(2) of the Guidelines provides that these expenses are to be shared by the spouses in proportion to their respective incomes. [25] The Guidelines are very clear as to the nature of expenses that are considered to qualify as extraordinary expense, and theobligation of parents to share these proportionately to their incomes. [26] In my view, the school expense clearly qualifies as an extraordinary expense within the meaning of

section 7. If the parties didnot agree when M. was enrolled, six years ago, it does not matter, since Mr. B. has acquiesced in her attendance since that time and infact paid the tuition for a brief time. It is clearly in M.’s best interests to remain in a setting where, according to the mother, she isthriving and happy.

I agree that there is no evidence here that attendance at the school is not or will not continue to be in her bestinterests. [27] If M. did not initially have any special needs or talents requiring her to attend the private school, it is in my view a placement thatthe parents initially agreed upon. It has become part of the child’s life, and must be said now to meet her particular needs. It would becruel to require M. to leave the Catholic school simply because her father now says he disagrees with the expenditure. [28] B.A.C. v. D.L.C. was a different case.

The children’s prior attendance at the private school was said to be limited. WhileM.AB.D. v. L.R.S.S. involved a mutual agreement at the outset, and a contribution by the respondent during the child’s attendance forseveral years, it assists in characterizing the expense in this case, in my view, where the child has attended over a period of years.

Atparagraph 36, Judge Werier stated: Having voluntarily paid for this expense for five years, and having allowed K. to become comfortable and to succeed at C.H., I find thatit is in K.’s best interests for her to continue at this school now, and that it is reasonable for L.R.S.S. to pay his proportionate share.[Emphasis added.] [29] While the respondent here has not paid for the expense, except briefly, in my view he has acquiesced in having M. attend theschool, and permitted her to “become comfortable and to succeed” there. [30] In terms of whether the expense is one that Mr.

B. ever agreed to pay, the evidence is clear in my view that it is not. Ms. F. doesnot assert that he ever agreed to it. The position she takes is that he had never paid for any extraordinary expenses. His attitude towardthe babysitting course, a nominal expense, is indicative of how he has reacted to requests for contribution.

He did not assert otherwise inhis evidence; he takes the position that the party incurring the expense should pay for it. [31] While I entirely agree that large extraordinary expenses should be agreed upon ahead of time, as set out in Reggelson v.Reggelson, there is difficulty with the approach taken to the issue by Mr. B. It is quite clear that Ms. F. would never be able to securehis agreement to any legitimate extraordinary expense, in advance. In those circumstances I do not believe it is open to him to say heshould have been consulted on the tuition expenditure. [32] This is also not a case like Byrne v.

Byrne, where the decision to have the child attend Catholic school was made to satisfy theinterests of the mother and her new husband, and the decision was made without consulting the father. As well, there was nolongstanding history of attendance and acquiescence, as there is here. [33] The real, and only, issue, to my mind, is whether this is a reasonable expense, having regard to the means of the parties. I acceptMr. B.’s evidence that he earns less now and is not capable of returning to laying carpet. There is no evidence of recent carpet layingcontracts.

He produced evidence that he is on salary, working full time. [34] The collective net income of the parties is therefore in the range of $80,000. Private school tuition in the amount incurred by Ms.F., which amounts to about $300.00 per month, is well within the means of the parties, in my view. I do not see Byrne v. Byrne asauthority for the proposition that $1,000 per year is unreasonable for an income level of $50,000. In addition to the problem withconsultation and whether the school was in the best interests of the child, the Court in Byrne noted that as the mother did not work, the

expense would have to be borne entirely by the father. He was already expending over $5,000 a year on child support, and had considerable costs to access his son in Prince George. [ 35 ] The parties here have only one child to support and no other out of the ordinary expenses. Their joint focus should be on seeing that she is given every opportunity to learn and succeed that they can afford. At their collective incomes I do not find the expense of Catholic school to be beyond the means of the parties. Mr.

B. appears to have a considerable debt load, which is not entirely explained, but the monthly amount required to make an appropriate contribution toward his child’s education and the development of her talents will not exceed some of the amounts he has reported for debt reduction or vehicle expenses. [ 36 ] I note that neither party is obliged to pay child support, given the division of parenting time, but the Guidelines might be one measure of a reasonable monthly expense for a given income level. For Mr.

B. if he had to pay child support, it would be $327.00 a month. [ 37 ] I do recognize that child support is payable in recognition that one spouse is carrying more than their share of living expenses for the child. I accept that is not occurring here, and that the offset under

section 9 might actually work in Mr. B.’s favour. Nonetheless there is an assumption inherent in the Guidelines that a person at Mr. B.’s income level could afford to spend that amount toward the wellbeing of their child, if they were not the custodial parent. [ 38 ] I note that Mr. B. pays little less for alcohol and tobacco than his proportionate share of the items Ms. F. is requesting, and he pays much less toward entertainment or extracurricular expenses for M., himself. He does not have any monthly expenses beyond living expenses that he pays for M. In my view Mr.

B. has the capacity to pay toward extraordinary expenses. [ 39 ] As for the extracurricular activities, as noted by Judge Werier, the Guidelines provide that extraordinary expenses for such activities are covered by

section 7. As a general proposition, activities that occur outside of school, have more than an incidental cost, are in the child’s best interests, and are either agreed upon in advance or unreasonably refused, should be paid for proportionately, in my view. [ 40 ] Mr. B. does not enroll M. in any formal activities. He pays for outings and he appears to enjoy shopping with her. Ms. F. attends to her enrolment in programs and activities, and for the most part takes her to them. Of those she listed, piano was the only one for which she provided a monthly amount that she was paying at this time. [ 41 ] Ms.

B. is currently paying a total of $4,843.95 per year for tuition and piano. These are in my view both legitimate extraordinary expenses. [ 42 ] Based on the parties’ incomes, Mr. B.’s share of those extraordinary expenses should be 45%, or $2,179 per year. Monthly, this is $181.00, an amount I find he can easily afford. I find this to be a reasonable amount for him to pay toward school tuition and piano as extraordinary expenses. [ 43 ] In my view it would be reasonable for M. to engage in one additional extracurricular activity, preferably something athletic.

It is clearly also in M.’s best interests to attend summer camps while she is not in school, if both parents are working. [ 44 ] It would be preferable if these activities could be something the parents could agree upon in advance. My view is that Mr. B. ought not to withhold his agreement to such programs unreasonably, if it is something his daughter wishes to do. Rather than leave his agreement as a contingency, however, in this case I find it preferable to order an additional monthly amount so that Ms. F. will have some predictability and flexibility. I therefore add $49.00 per month to Mr.

B.’s monthly amount, as a contribution toward one other activity and any summer programs Ms. F. decides to enrol M. in. [ 45 ] While Ms. F. claims tuition from September 2011, in my view this decision should be prospective from the date of the hearing. In light of the different positions taken by the parties, I am unable to conclude that Mr. B. should have been accruing these payments or put on notice that he would have to pay retroactively. A court decision was required. He will be required to pay from January 1. There is therefore a retroactive amount of $690.00.

This should be added to the monthly amount in 12 instalments of $57.50. [ 46 ] For the future, the parties should be making plans as to how they will pay, proportionately, for M.’s post secondary tuition, and any other anticipated extraordinary expenses, such as orthodontic and international travel with her school, if it has that tradition. Order [ 47 ] Mr. B. will pay $230.00 per month to Ms. F. commencing January 1, 2012, toward extraordinary expenses. [ 48 ] Mr. B. owes $690.00 retroactively for January 1, February 1 and March 1, 2012. Mr.

B. will pay an additional $57.50 from April 1, 2012 through March 1, 2013, to cover the retroactive amount in full over 12 months. [ 49 ] Payment for future

section 7 expenses agreed upon between the parties, such agreement not to be unreasonably withheld, shall be shared proportionately to the parties’ incomes as reported each year in their income tax returns. The parties will exchange income tax information as of June 1 each year and adjust effective July 1 in accordance with this order and the Federal Child Support Guidelines. __________________________________

The Honourable Judge C. Baird Ellan Provincial Court of British Columbia