K.A.H. v. S.V.B. Date:, 2016 BCPC 98

Citation: K.A.H. v. S.V.B. Date: 20160204 2016 BCPC 0098 File No: F8226 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.A.H. APPLICANT AND: S.V.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.A. DYER Counsel for the Applicant: No appearance

Counsel for the Respondent: P. Reimer Place of Hearing: North Vancouver , B.C. Date of Hearing: February 4, 2016 Date of Judgment: February 4, 2016 [ 1 ] THE COURT: Mr. H., the father, and Ms. V., the mother, commenced living together on or about October 2006. They were married July 14, 2007. On [omitted for publication], they had a girl child, one T., now age seven years. They separated on or about April 1, 2011, and the mother then left the family home and went to live with her own mother and with T. for a period of several months, and thereafter obtained her own place in North Vancouver.

T. continues to reside with the mother. [ 2 ] The mother works full-time as a firefighter and has done so since before she met the father. She works four 10-hour shifts each eight-day employment cycle: two day shifts from eight o'clock a.m. to six o'clock p.m., and two following night shifts from six o'clock p.m. to eight o'clock a.m., and then has four days off. Her shifts thus rotate and are rarely the same. [ 3 ] Prior to separation, the father worked in his own landscaping business called [omitted for publication], which he started in or about 2005. He was the sole employee.

The business was sold in June 2011 following their separation to one Robin for some $2,500. The purchaser received the customer list and some equipment, according to the father. [ 4 ] On June 14, 2011, the father moved to Nova Scotia to pursue a job eventually in a mine in Newfoundland, which did not pan out. He lived and worked in Nova Scotia until February 2013. Commencing February 23, 2013, the father obtained a job in Alberta, in Grande Prairie, doing natural gas well testing. His employer was called [omitted for publication], and it has since changed its name to [omitted for publication].

He now lives there with his new partner, one J., and a male child aged 17. She works full-time as a safety rep for a distribution company. They live in her home and have been together since July 2014. [ 5 ] Following separation, there have been a number of court applications by both parties and various orders made by a number of judges in this court. In

summary and chronological order, they are as follows: 1. On May 2, 2011, the father filed a motion seeking access to T. and an application seeking joint custody, guardianship, and access, including every other weekend. 2. On May 3, 2011, the mother filed an application seeking a custody and guardianship order for T. and child support, including Guideline 7 expenses, alleging at page 2 that the father's income was at least $75,000 per year. 3.

On May 24, 2011, Moss P.C.J. ordered that the father have interim supervised access with T. on Saturday or Sunday, dependent on the mother's work schedule, from 10 o'clock a.m. to two o'clock p.m., the supervisor to be either the mother or another agreed-upon adult. Moss P.C.J. ordered both parties, in addition, to attend a family case conference on August 16, 2011. 4.

On August 4, 2011, the mother sought in a motion an order that the father pay child support of $585 a month commencing July 1, 2011, based on the father's annual imputed income of $62,600 and a further order that she not be a supervisor on any of the father's access visits. 5. Mr. H. did not attend the family case conference as he was ordered to do by Moss P.C.J. on August 16, 2011. Thereat, Challenger P.C.J. granted the mother sole interim custody and guardianship of T. The father was granted reasonable access to T. to be supervised at the mother's discretion.

She imputed income to the father of $62,600 and ordered he pay $585 per month child support to the mother for T., commencing July 1, 2011, and ordered that his contribution to extraordinary expenses be determined at a later date. The matter was ordered adjourned to September 6, 2011. It is clear that my sister judge did not, at this family case conference, accept the mother's estimate of the father's income being $75,000.

She seems to have relied on Exhibit "E" to the mother's August 3, 2011, affidavit, being a Statistics Canada printout showing amounts of average earnings by sex and work pattern for full-time workers, disclosing that in 2008, Canadian men made, on average, $62,600. This same figure is set out on the face of the mother's August 4, 2011, notice of motion. Why the applicant mother would use this figure for 2008 in her 2011 application has not been made clear to me.

Nonetheless, the court accepted it as an appropriate amount of imputed income, no doubt because the father did not attend on August 16, 2011, to dispute it.

I should state parenthetically that when, as here, an applicant for child support in an application asserts that the payor's income is a certain amount and that person is served with the application and he or she neither appears at the hearing or files more accurate income information different from the asserted amount, as occurred here, many judges lacking better evidence will use the asserted amount, assuming that if the payor, here the father, disputed it, he would show up and provide better, more reliable facts to the judge. 6. Mr.

H. did not appear in court on September 6, 2011, in front of Challenger P.C.J. 7. Almost three years later, on July 17, 2014, the mother filed an application seeking to vary the Challenger August 16, 2011, child support order retroactively to January 2012, and award Guideline 7 expenses from May 2011. May 2011 was the date on which the mother first sought to have the father pay child support and Guideline 7 expenses, and I find that, insofar as it may be relevant to find as a fact when he was first put on notice of this claim, it was in May 2011. 8. The father filed a reply on August 25, 2014.

It clearly was not completed by a lawyer. On this understanding, it

raises the following issues: i. The father disagrees with the amount of child support set by Challenger P.C.J. on August 16, 2011, $585 a month. He seems to suggest his income was less than I assume the $62,600 amount she then imputed to him for three years. Again, I assume the years to be 2011, 2012, and 2013. Hence further assuming he paid the $585 a month, he seeks a credit, in my understanding, to be calculated, I expect, on the basis of: (

a) what child support did he in fact pay from July 1, 2011, the effective date of the $585 a month child support order, less (

b) what he ought to have paid, based on what I might find his actual income to be in the period in question; that is to say, part of three years, July 1 to December 31, 2011, the entire year 2012, and the entire year 2013. This credit would be applied against the Guideline 7 expenses amount, if any, I award to the mother. His reply really is a request for a retroactive variation of the amount of child support that he ought to have paid to the mother from July 1, 2011, to the end of December 2013, and as he is not represented by a lawyer, I intend to treat it as such. Mr.

Reimer described his claim as such on September 14, 2015, when this trial commenced. ii. He seeks increased parenting time every couple of months "when I am in town". He also seeks visits to his home province and two weeks' vacation in the summer and every second Christmas. In addition, he wants more telephone calls and video communications. I assume he means Skyping or FaceTime or something like that, at more feasible times other than 10 o'clock a.m. every Sunday. iii. He wants his parenting time not to be supervised. I return to a

summary of the historical court events: 9. Judge Challenger conducted a hearing in this matter on November 25, 2014, at which both parties attended. She varied her August 16, 2011, child support order, imputing income to the father of $100,000, and increased his child support from $585 a month to $868 a month commencing on December 1, 2014. Mr. Reimer appeared for the mother. He does not suggest this amount is incorrect and the order shows it was set pursuant to the then Alberta Child Support Guidelines , as the father then resided and worked in Alberta. She also ordered the father to produce to Mr.

Reimer, by December 9, 2014, a copy of his 2012 and 2013 notices of assessment and a recent cheque stub showing his year-to-date income. By the same date, the mother was to provide the father with a breakdown of all Guideline 7 expenses for which she was seeking to have him pay a proportionate share. She varied the access order made by Moss P.C.J. May 24, 2014 (the date should be 2011) and made additional orders as follows:

a) requiring the father to provide the mother with at least two weeks' written notice of the date and time of an intended access visit; and

b) as well, the name of the proposed supervisor; and

c) in essence, reinstated Saturday or Sunday four-hour visits from 10 o'clock a.m. to 2 p.m., or such other times as the parties agreed to;

d) ordered Skype visits at 10 o'clock a.m. on Sunday;

e) ordered the parties to attend a family case conference on February 11, 2015. Both did. 10. On February 11, 2015, Judge Milne, on a without prejudice basis, ordered the father to pay $300 a month commencing January 1, 2015, as a contribution towards his proportionate share of Guideline 7 expenses, his actual contribution to be adjusted by me, as it turns out, and directed a four-day hearing to deal with parenting time and Guideline 7 expenses. [ 6 ] This hearing commenced on Monday, September 14, 2015, before me. The issues I am to determine are thus as follows: 1.

Should there be a change to the father's parenting time, as most recently ordered by Judge Challenger, November 25, 2014? Specifically, should it be increased and should the father be able to exercise it in Alberta where he now resides? If this were permitted, a change would likely be required to Judge Challenger's order of August 16, 2011, prohibiting him from removing T. outside British Columbia without the mother's consent or a court order. 2. Should any parenting time he now has with T. continue to be supervised and, if so, by whom? 3.

Should there be additional terms or orders made with respect to his parenting time? For example, requiring him to undertake a psychiatric exam and obtaining a report as to his current mental health status and sharing same with mother. 4. What table amount of child support should now be paid to the mother for one child, T.? 5.

What Guideline 7 expenses are proper, and should the court make an award from May 1, 2011, or not, and if an award is made, should the father be given a credit for excessive table amounts of child support paid from July 1, 2011, to December 31, 2013, by reason of his actual income being less than the imputed amount used by the court.

Resolution of this issue will require me to make findings of fact as to what the parties' total incomes from all sources were in the years: 2011 to 2015 inclusive. [ 7 ] I intend to deal with the financial matters first, and then the father's application relating to parenting time. [ 8 ] On the last day of the hearing before me, I made various orders in the presence of both parties, including that the father's written submission was to be filed by January 8, 2016. I have not received any written submission from him. I did receive one from Mr. Reimer, within the time ordered, for the mother on November 19, 2015.

These reasons are therefore made without the benefit of such input from the father. That said, the father's position on the various above issues was made quite clear to me throughout hearing the

evidence in this case, and in particular his evidence. He is also self-represented. Position of the mother on financial issues [ 9 ] I will summarize the important points made by Mr. Reimer based on the evidence before me. Dealing with monthly child support and Mr. H.'s claim he was entitled to a credit from July 1, 2011, to December 31, 2013, Mr. Reimer points out that the father unhelpfully did not attend court (a family case conference, on August 16, 2011) although ordered to do so by Judge Moss on May 24, 2011.

He says on August 16th the court was presented with his client's affidavit, stating that "most" of his income was cash. This is not correct. Her affidavit asserts much of his income was cash, perhaps a subtle difference. [ 10 ] The father admitted to having undeclared cash sales prior to separation, on or about April 1, 2011. It is impossible to determine his income from January 1 to approximately June 1, 2011, when he left British Columbia and drove to Nova Scotia, and indeed to the end of 2013, by reason of his lack of credibility, save it appears he acquired a steady job in February of 2012.

His efforts to obtain employment are unknown. [ 11 ] There is no basis in law for providing him with the credit he seeks, and I understand Mr. Reimer in particular relies on the father's failure to take

part in the initial August 2011 hearing when the amount of child support was first set, and his failure at any time thereafter when he knew of the amount and income level used to achieve it, to apply to vary the order of August 16, 2011, based on his making materially less than the imputed amount used, namely $62,600. [ 12 ] His Canada Revenue Agency notices of assessment for 2011 to 2014 are as follows with respect to line 150 total income, and these are set out in the mother's very helpful court brief, Exhibit 1, at Tab 18 and 19: 2011, $24,646; 2012, $44,283; 2013, $46,908; 2014, $122,178. [ 13 ] I note that he appended to his financial statement at Tab 19 a T4 slip from his then employer, [omitted for publication], in the amount of $38,019.78.

Thus his 2012 notice of assessment amount must include other income earned by him in 2012 before he commenced work with [omitted for publication] on February 23, 2012, in all probability. There is no evidence he worked for another employer other than [omitted for publication] after February 23, 2012. [ 14 ] Mr. Reimer also argues that his actual income in 2011 cannot be determined as his then-income figure of $114,654.68 (see Exhibit 21) is not accurate.

This fact, together with his non-payment of child support while in Nova Scotia until March 12, 2012 (see Exhibit 6) and his failure to apply to vary the August 16, 2011, order amount to lack of clean hands, and thus the court should not now countenance his application for a credit and it should be dismissed. Table amount 2014 [ 15 ] The father's Guideline income for 2014 was $122,178 which, using the Alberta Guidelines, Mr.

Reimer says, would support a proper order of $1,064.78 for one child, and thus I should vary Judge Challenger's August 16, 2011, order and require him to pay this amount for the entire year beginning January 1, 2014. Insofar as the mother applied on July 17, 2014, for such an order and insofar as it reaches back to January 2012, I am of the view that she has thus made a claim for retroactive table child support based not only on this application, but I note that on May 3, 2011, she did as well apply both for a table amount and Guideline 7 expenses. [ 16 ] Mr.

Reimer also appears to have overlooked Judge Challenger's November 25, 2014, order increasing child support to $868 a month effective December 1, 2014, based on an imputed income of $100,000. This, in my view, is an order to be varied, as well, at least in the year 2014. Table amount 2015 [ 17 ] Mr.

Reimer argues I should use the father's 2015 year-to-date income (Exhibit 15) at August 15, 2015, of $57,701.21, and his own projection that he might earn another $15,360 in 2015, for a Guideline income amount of $73,061, which would require him to pay $623.61 child support commencing January 1, 2015, each month and until further order of the court. Table amount 2016 [ 18 ] Mr.

Reimer seems to argue that the above child support amount should continue in 2016. [ 19 ] I will now deal with the evidence relevant to the above issues. [ 20 ] The mother's income from 2011 to 2015 is referred to in Exhibit 1, and her various notices of assessment or tax returns as follows: 2011, $88,315; 2012, $78,776; 2013, $110,100; 2014, $102,753; and 2015, $102,753. [ 21 ] Her August 28, 2015, income year-to-date was some $68,808 or an annualized amount of $103,212.

I have used the above figure for 2015 because she testified before me that she expected to earn as much in 2015 as she had done in the year 2014. I have no evidence as to her 2016 income, including her expectations as to amount. I find the above unchallenged amounts to be correct. [ 22 ] The mother testified that when he was running his landscaping business, which I find ceased in or about May of 2011, that much of his income was in cash. This was not really made a significant issue at trial, including in his cross-examination on point.

He was cross-examined about his 2010 income and said he did not know what he had made that year, that his receipts had been lost, and said that he had not filed this return with Canada Revenue Agency. He did not know what his gross or net income was, but seemed to agree the gross revenue amount was between 40 to 44,000, and said variously some $1,800, an estimate of cash revenue, was or was not included in the above gross income amount.

That is the only evidence he gave as to a cash income. [ 23 ] Attached to the mother's August 3, 2011, affidavit as Exhibit B is a copy of his 2009 tax return with a completed statement of business activities showing that in this year his gross business income was some $41,913 and cost of goods sold, $8,469.84, and

expenses of some $25,415, and business use of home expense, $4,653, leaving a net business income this year of some $3,374.39, or some eight percent of his gross revenue in that year. [ 24 ] There was no evidence led to suggest that 2010 was a better year than 2009, and the median point of his above-estimated 2010 gross business income of $42,000 is totally in line with the prior year's figure, namely $41,913.

Eight percent of 42,000 is some $3,360. [ 25 ] Assuming he worked in 2011, the year of the separation, full-time in his landscaping business (which he did not) and further assuming the business generated revenues of say 42,000 that year, his line 150 income, putting aside any universal child care benefit, would have been in the order of $3,360 on the above analysis, and not $63,600, as used by the court on August 16, 2011. [ 26 ] His evidence, most of which was not successfully challenged on cross-examination, was that after separation in April 2011, he made a decision in late May to go to Nova Scotia.

He had been offered a job in Newfoundland in Labrador City, doing high pressure washing at some $2,025 a week, and in the result he elected to sell his business, really his customer list and equipment, as he felt he could not carry on, due to some back problems he was having. He listed it on Craigslist and admitted he had, in so doing, misrepresented its revenues to potential purchasers.

He was paid $2,500, as I have said, and later sold the pickup truck he used in this business for some $400. [ 27 ] When being questioned about this transaction, he agreed, notwithstanding his deceptive advertising, that his landscaping business was, in the spring of 2011, making about $4,500 a month in revenue.

He also agreed he had no medical evidence to support his decision to sell this business, because as the sole proprietor he could not withstand the eight-hour-day labour involved. [ 28 ] Using the above eight percent figure for net income, on $4,500 a month times 12 months, or $54,000, would produce an amount of $4,320 of net income or line 150 income. Again, far less than the $63,600 amount set by the court on April 16, 2011. [ 29 ] The father testified he travelled by car to Nova Scotia on June 14, 2011. I do not believe I was given an arrival date.

He worked one week in a mine in Labrador City and then was laid off. He later got a job in Nova Scotia as a forklift operator and lost it in or about the month of November 2011. He was then on Employment Insurance into December 2011. While doing these jobs, he apparently lived with his parents. I find that his evidence supports his notice of assessment line 150 amount of income of $24,646 for the tax year 2011.

I also find that he earned more taxable line 150 income while in Nova Scotia than he would have earned had he remained in British Columbia running his landscaping business. [ 30 ] The allegation made by the mother in her August 3, 2011, affidavit that much of his income was in cash and that she expected he earned at least 75,000 a year is not supported in the evidence in this case. The $24,646 is for 2011, and again it is dramatically less than the $63,600 income amount used by the court. I find that $24,646 was his income in the year 2011.

It is also clear that in August 2011 it is unlikely he could have produced any documents to substantiate this amount or anything close to it, in my view. [ 31 ] He has worked at [omitted for publication], now [omitted for publication], since February 23, 2012. His financial statement, Exhibit 1, Tab 19, exhibits a T4 from [omitted for publication] for 2012 in the amount of $38,019.78. Thus, as per his notice of assessment this year, he has clearly declared other income this year of $6,263.

It is not clear what this is, but assuming his [omitted for publication] income was roughly some $3,800 a month, February 23 to December 31, 2012, this $6,263 amount, or say $3,580 a month is in line with what he made for most of the year at [omitted for publication]. [ 32 ] Wherever he worked, I find that his 2012 income was $44,283, some $19,317 less than the $63,600 amount used by the court in August 2011 as an imputed income. [ 33 ] His 2013 notice of assessment sets out total income of $46,908.

This was all earned at [omitted for publication] and is fully supported with his 2013 T4 slip appended to his above financial statement. [ 34 ] His 2014 notice of assessment amount is not challenged at $122,178. His evidence at trial included Exhibit 15, a document setting out his year-to-date income from [omitted for publication], at August 15, 2015, at some $57,701.21.

He testified that he was then an inspector, a new job with the same company, being paid a daily rate of $480 to work at various natural gas wells in the field. [ 35 ] When testifying at trial in September 2015, he estimated that he would work 32 more days in the balance of the year, at the above hourly rate, make an additional $15,360 income after August 15.

He said he had not worked from August 15 to September 15, 2015, and as well that he could not work during spring break - up for several months, as the gravel roads leading to the wells were too muddy to drive on. [ 36 ] I find his income this last year (2015) therefore will be a combination of these two amounts as submitted by Mr. Reimer, and that is the amount that is to be used to calculate child support in the year in issue, 2015. [ 37 ] The father says he is entitled to a credit for the excessive amounts of child support he says he paid, again from July 1, 2011, to the end of 2013.

He has not provided the court with a calculation. [ 38 ] Using his actual line 150 income in this period as found above and the Alberta child support tables, the table amount of child support he should have paid for one child in 2011 was some $207.52 from July 1 to December 31, 2011, or for six months some $1,245.12. The August 16, 2011, order required him to pay, and I understand that he is now generally up to date on his child support payments as ordered by the court, some $585 times six months or $3,510.

The difference in the two amounts is $2,265, being the amount of the 2011 credit he claims. [ 39 ] In 2012, he ought to have paid $352.43 times 12, or $4,229.16 over 12 months, and in fact paid $585 times 12 or $7,020, the difference is some $2,791, again being the credit I understand he claims. [ 40 ] In 2013, he ought to have paid $375.81 times 12 months or $4,509.72 in total. He paid $585 times 12 months or $7,020. The difference is some $2,510, again being the credit he claims.

[ 41 ] In 2014, he ought to have paid $1,064.57 times 12 equals $12,774.84. He paid $585 times 11 months or $6,435 to November 30th, and $868 in the month of December, for a total of $7,303. The shortfall therefore is some $5,472. [ 42 ] In 2015, based on a Guideline income of $73,061, he ought to have paid $623.56 times 12 months or $7,482.72. The November 25, 2014, order required him to pay $868 a month times 12, or $10,416. The February 11, 2015, order required him to pay $300 a month commencing January 1, 2015, towards Guideline 7 expenses, or times 12 months, $3,600 in the year.

I will deal with this Guideline 7 amount below. The credit he is asserting he is entitled to for table amounts in 2015 would thus be $2,933. [ 43 ] These credits and shortfalls summarized then to December 31, 2015, with respect to table amounts of child support are as follows: the period of July 1 to December 31, 2011, $2,265; 2012, $2,791; 2013, $2,510; 2014, ($5,472); 2015, $2,933; for a total of $5,027. [ 44 ] As summarized above, Mr.

Reimer says the father is not entitled to this credit as a matter of law, but in the same breath he says his client is entitled to retroactive child support, a table amount to January 2012, and a proportionate share of Guideline 7 expenses from May 1, 2011, to date, based on the father's actual, not imputed, income, certainly in 2014 when his actual income exceeded the imputed income figure of $100,000, but is content with the imputed income figure in my understanding of $63,600 in earlier years, which, as I have found, significantly exceeded at times his actual income.

Guideline 7 Expenses [ 45 ] I turn now to the mother's claim for Guideline 7 expenses. I will deal with the evidence with respect to the figures and calculations first as best I can. I confess, I found the mother's documentary evidence on point somewhat difficult to reconcile internally and, as well, with Mr. Reimer's closing submission. [ 46 ] I will deal with the years 2011, from May 1 to December 31, and 2012 first. The various expenses claimed are set out in Exhibit 1 at Tab 11 for 2011, and Tab 12 for the year 2012.

The 2011 claim, including all child care costs, in my understanding, is the total amount of $4,115.66: see Exhibit 4, a spreadsheet prepared by the mother for the years 2011 to 2015 to the month of August, which shows a total claim each year, inclusive of extra expenses and medical expenses each year, and from 2012 to 2015, includes, in addition, school expenses. [ 47 ] Exhibit 4 replaces Tab 10 of Exhibit 1. The total claimed on Exhibit 4 is some $4,150.40, somewhat less than the total on Exhibit 1, Tab 11. Mr. Reimer uses the lower figure of $4,150.40 in his closing argument.

It includes amounts for January to April, or four months for which the mother is not seeking to have the father share in the cost. I prefer to use the Exhibit 1, Tab 11 amount, although higher, as the father had an opportunity to review this and, where he objected, he set out the amounts that he was objecting to in a document marked as Exhibit 2. I reviewed all his objections. [ 48 ] The mother testified that she had discussed none of these 2011 expenses with the father.

She also said she did not start to see a naturopath until late 2012 or early 2013. [ 49 ] There are three issues at play here, in my view: firstly, is the expense claimed in each year in the first instance a proper Guideline 7 expense within the definition in Guideline 7; secondly, if it is, is the amount proper; thirdly, should this father now be required to contribute to it, if the expense and amounts are proper? [ 50 ] Guideline 7 expenses must be both necessary in relation to the child's best interests, and also reasonable in relation to the means of both spouses.

Hence, what might have been reasonable in 2014 for the father, when his Guideline income was some $122,178, would not necessarily be so when his income was materially less than that, for example, in the year 2011. [ 51 ] I have taken the various income levels of each spouse into account in making my findings below, as well as the fact that, for the most part prior to 2015, there is little evidence that the mother ever discussed any of these expenses with the father and sought his approval in same before an expense was incurred. [ 52 ] That said, I agree generally with Mr.

Reimer's submission that certain of the expenses, for example, daycare, were clearly appropriate each year. The father knew the mother was working and since June 14, 2011, has not been himself available to help with child care, a point clearly made by Mr. Reimer.

Here there is usually little need for discussion, and typically the only issue is whether the expense is reasonable in amount or not. [ 53 ] Based on all the evidence I have received, I am satisfied all claimed daycare expenses were both required, so the mother could work, and reasonable in amount. [ 54 ] I do not intend to set out with respect to each disallowed expense why I have done so. In my view, parking, as an example, is generally not a Guideline 7 expense.

I am not of the view that naturopathic remedies, without some medical opinion or prescription, fall within Guideline 7 either, including "prescription drugs".

The page numbers I refer to are found in Exhibit 1, Tabs 11 to 14. 2011 [ 55 ] I disallow $226.35 of claimed expenses at pages 4, 8, 9, 10, 11, and 12 of Exhibit 1, Tab 11, and deducting this from the claim at Tab 11 of $4,115.66, leaves a claim of $3,889.31. [ 56 ] Using the parties' Guideline incomes for 2011, namely 24,646 and $88,315, the father's share would be 22 percent or $855.65. 2012 [ 57 ] Here the Exhibit 1, Tab 12 amount is $11,318.87, which is almost identical to the Exhibit 4 amount of $11,318.81, as it should be.

I disallow using Tab 12 of Exhibit 1 figures on pages 10, 14, 18, 19, and 20, or $507.99. Deducting this from the total claimed

leaves a balance of $10,810.88. [ 58 ] Using the parties' Guideline incomes in this year of $78,776 for the mother and 44,283 for the father, his proportionate share would be 36 percent or $3,891.92. 2013 [ 59 ] Here there is a significant unexplained discrepancy between the total claimed on Exhibit 1, Tab 13, of $10,347.57, and the total claim on Exhibit 4, namely $12,150.70. It is some $1,803.13. The two total claims should be the same in each case. Because the father reviewed Exhibit 1, Tab 13, and set out his objections again on Exhibit 2, I intend to use the lower amount as the starting point.

I disallow in Exhibit 1, Tab 13, the claims at page 25, 26, 27, and 28 in the total amount of $418.36. Deducting this from the total claim of 10,347.57 leaves a claim of $9,929.21. [ 60 ] Using the parties' 2013 Guideline incomes of $110,100 and $46,908, the father's proportionate share would be 30 percent or $2,978.76. 2014 [ 61 ] Again there is an unexplained discrepancy between the Exhibit 1, Tab 14 total claim of $3,851.66 and the Exhibit 4 total claim of $9,875.97.

If I deduct the daycare expenses from the Exhibit 4 total, I get a total of $2,596.39, for the extra medical and school expenses, which is some $1,255.27 less than the Exhibit 1 amount, $3,851.66.

Lacking any evidence as to why this is so, in this year I have elected to use the lower figure of $2,596.39 as my starting point for all claimed Guideline 7 expenses, save child care, so to speak, and the deductions I feel are appropriate as per Exhibit 1, Tab 14, again reviewed by the father, will be taken from there. [ 62 ] The deductions as per Exhibit 1, Tab 14, I feel are appropriate are as per pages 3, 15, 23, 24, 25, 26, 27, and 33 and 34 in the total amount of $926.12. Deducting this from $2,596.39 leaves a balance of $1,670.27.

Adding the Exhibit 4 2014 daycare amount claimed of $7,279.58 thereto yields a total of some $8,949.85. [ 63 ] Using the parties' 2014 Guideline incomes of $102,753 and $122,178 results in the father's proportionate share being 54 percent or some $4,832.92. 2015 [ 64 ] The documentary evidence with respect to the mother's claim this year is found in Exhibit 3 (some 49 pages in length) and Exhibit 4. Mr. Reimer agreed to provide a one-page

summary of these expenses, which I understood would be similar to, for example, Exhibit 1, Tab 11, setting out for each page the amount claimed or not, as the case may be. I have yet to receive this. I have Exhibit 4. It sets out a total of some $7,137.70 for all claimed expenses, including a daycare expense of $4,351.50. Deducting this from the total claim leaves an amount of extra medical and school expenses of some $2,786.20. I do not know whether pages 1 to 49 as claimed total this amount or not. [ 65 ] The father reviewed Exhibit 3 and registered his objections to various claims thereon in Exhibit 7.

I note the mother also testified that she had some consultation with the father on certain 2015 expenses, for example, swimming, Girl Guides, and Flicka Gymnastics, I think via email, but said she again did not seek his agreement, rather gave him notice of what the child was doing. They had no real discussion on any of the expenses claimed. She said with respect to pages 1 to 19, she specifically chose not to discuss these expenses with him. [ 66 ] I disallow the following claims in Exhibit 3 using the pages therein: pages 9, 11, 12, 13, 14, 15, 31, 34, 35, and 36 to 46, for a total of some $950.26.

Deducting this amount from the above Exhibit 4 figure of $7,137.70 leaves a 2015 claim of $6,187.44. [ 67 ] The father's proportionate share of these expenses would be, using the parties' 2015 Guideline incomes of $102,753 and $73,061, some 42 percent or $2,598.72. [ 68 ] Thus the total Guideline 7 claim advanced, after deducting amounts which I find not to be proper, and including various amounts withdrawn by the mother in her evidence before me would, in

summary, be as follows: from May 1 to December 31, 2011, $855.65; 2012, $3,891.92; 2013, $2,978.76; 2014, $4,832.92; 2015, $2,598.72 for a total of $15,157.97. [ 69 ] Effective January 1, 2015, Milne J. ordered the father to pay $300 towards these Guideline 7 expenses as his contribution, to be subject to adjustments at the hearing which I have conducted. If I assume the father paid the $3,600 ordered in 2015, the analysis would be, I think, straightforward. I have found his proportionate share in 2015 of Guideline 7 expenses to be $2,598.72.

He therefore paid $3,600 or $1,001.28 too much, and thus is entitled to this as a credit against the award I make relating to the mother's overall claim. [ 70 ] The only evidence I have is Exhibit 6, which seems to show that each month from January 2015 to September 2015, nine months, he was required to pay by court order $1,168 each month, or $10,512 in total, but the document seems to show that he paid $8,632.25, for a shortfall of $1,879.75, an amount in excess of the credit. [ 71 ] I do not know whether, in the year 2015, by year end, he was up to date or not in all his payments.

There was no evidence on point that I recall at the hearing, but again Mr. Reimer did state in his opening remarks on September 14 that he was up to date on his child support payments. [ 72 ] Hence, for purposes of these reasons, I will take Mr. Reimer at his word and thus find, assuming that he remained up to date thereafter to December 31, 2015, and thus he is entitled to this credit of $1,001.28. [ 73 ] Mr. Reimer argues that the claim advanced by his client is not really a claim for retroactive child support. Rather, it should be seen really as a delayed claim.

Nonetheless, he refers to the leading case on point for retroactive child support, namely D.B.S. v. S.R.G. ,

2006 SCC 37 , in particular the passages at page 27, paragraph 80 et seq dealing with claims for retroactive support where there has not, as in the case at bar, been a previous order. The court has a discretion to make such orders: see paragraph 94. The factors that the court is to consider in exercising its discretion, none of which are decisive, include: 1. Will there be a discernible benefit to the child if an order is made? 2. Will the hardship caused to the payor parent if an award is made retroactively occur or not? 3. Has there been delay on the part of the applicant in seeking child support? 4.

Conduct of the payor parent, is it blameworthy? 5. The present and past circumstances of the child. Arguably point 1 is encompassed in this last point. [ 74 ] These various points are referred to by Madam Justice Dorgan in Leachman , 2007 BCSC 1166 , a case dealing with retroactive child support, including a claim for Guideline 7 benefits brought by a mother of one child against a father who worked as a dentist and lived in Victoria. The mother with whom the daughter resided lived in Kelowna.

Following their divorce, a child support order was made in 1996 which did not provide for sharing Guideline 7 expenses. [ 75 ] In July 2004, the mother requested that the father file a Form 89 financial disclosure statement. Dorgan J. held that this was the date of effective notice of increased child support for purposes of the D.B.S. decision.

The mother applied in November 2006 for retroactive table and Guideline 7 amounts, for the most part, on and after July 2004, the date of effective notice. [ 76 ] Dorgan J. found that the father's failure to voluntarily provide updated information on his income was blameworthy conduct. There was no evidence that the child had suffered in any way because the father did not pay increased child support, having regard to increases in his income after the initial order.

She found that the mother bore some responsibility for her daughter not receiving the amount she was owed (paragraph 18), but ordered a retroactive variation of the 1996 order from 2004 to 2006, basing new table amounts on the new income amounts earned by the father. [ 77 ] She held that the above factors in D.B.S. were also relevant in the court's assessment of retroactive Guideline 7 amounts (paragraph 27).

She found that the father was not informed of the special and extraordinary expenses incurred for the daughter until the same were itemized in her affidavit filed in November 2006 in support of her application, and that many were incurred well before the application date, November 6, 2006 (paragraph 28). [ 78 ] She found that the mother delayed unreasonably to inform the father of the Guideline 7 expenses incurred for the daughter, and that a contribution to them was required (paragraph 30), and then said this in paragraph 29 of her reasons, and I quote: [29] In my view, the plaintiff does not have a reasonable excuse for her delay in requesting the defendant's contributions.

The plaintiff did not have to know the defendant's exact income to know that he should be contributing to special and extraordinary expenses. Although the defendant can ascertain how much child support he owes based on his income, he is unable to determine his contribution towards special and extraordinary expenses unless the plaintiff informs him of the amount expended. As Metzger J. states in Petersen , supra , at para. 30: The defendant was and is entitled to know why a special and extraordinary expense is being incurred.

In the interests of fairness and certainty, it is essential that the recipient parent inform the payor parent in a timely manner of the details of the expenses as they occur. It is unfair and unreasonable to expect a payor parent to pay a lump sum for past special and extraordinary expenses when the other parent does not inform him of the nature and extent of those expenses. [ 79 ] The Leachman case was cited with approval in Semancik v. Saunders , 2011 BCCA 264 , a judgment of our Court of Appeal, the decision given by Levine J.A., at paragraph 55.

In Semancik , a father had been ordered to pay retroactive Guideline 7 expenses by a Supreme Court chambers judge. On September 10, 1998, an order had been made that he contribute his proportionate share of daycare and orthodontic costs for his two children. Likely in or about 2010, the mother applied under the Family Relations Act for a retroactive Guideline 7 expense contribution from the father for the years 2008 and 2009.

The expenses in issue were dental, eyewear, and post-secondary costs for the daughter, all found by the chambers judge to be proper Guideline 7 expenses (paragraph 15), and ordered him to pay his proportionate share, having found what his Guideline income was in 2008 and 2009. [ 80 ] The father had argued he did not have effective notice of the expenses in issue and had not received receipts until, as in Leachman , they were appended to the mother's affidavit in support of her application and as well, as in the case at bar, that he was not consulted about the various expenses. [ 81 ] The chambers judge accepted that the mother had discussed dental expenses with him.

He also found that the father knew of this and of the educational expenses being incurred and had notice of the mother's request, I assume for help paying same, "more or less contemporaneously with her having personally taken on each expense". The award was for two years, 2008 and 2009, preceding the date the mother filed her application. [ 82 ] The father appealed on two grounds: (1) no proper notice was given to him of the special expenses; and (2) no retroactive order was warranted. Our Court of Appeal confirmed that the above D.B.S. principles applied to retroactive Guideline 7 awards (paragraph 38).

Levine J.A. said this as to the date of effective notice in paragraph 43: [43] Once a court determines that a retroactive child support award should be ordered, it must decide the amount of that award. One of the elements of that decision is the date to which the award should be retroactive (at para. 117). That date is the date when "effective notice" was given to the payor parent that child support or s. 7 expenses need to be paid. Effective notice does not require the recipient

parent to take any legal action; "all that is required is that the topic be broached" (at para. 121). [ 83 ] The Court of Appeal also agreed with the chambers judge that the mother was not guilty of unreasonable delay because she gave up pursuing the father due to her frustration at his lack of cooperation and disclosure (paragraph 46). He knew the daughter was attending post-secondary school (paragraph 49). The Court of Appeal agreed he had the financial capacity to provide the additional amount of support claimed by the mother (paragraph 52). [ 84 ] Levine J.A. then said this in

part in paragraphs 55 to 58: [55] The father's primary objection to the retroactive award is that the mother did not provide receipts for expenses as they were incurred by her, and that the first notice of the specific nature, amounts and timing of the expenses was in affidavits filed on this application. He says that without that information, there was no way for him to know what the expenses were, and how much he was required to contribute. The father says that the mother's application is like that considered by BC Supreme Court judges in Petersen . . . and Leachman . . .

In both of those cases, the applicant for an order for contribution to retroactive s. 7 expenses first informed the other parent of the nature, amount and timing of the expenses in her affidavit filed on the application. The application was dismissed on the ground that the applicant did not have a reasonable excuse for delay in requesting the contributions . . . Levine J.A. then quoted from portions of the Leachman decision, which reasons I have fully set out above.

To continue: [56] From reading the reasons for judgment in those cases, it appears that the mother had not discussed any of the expenses with the father, in even a general way, before bringing the application for a retroactive award.

The evidence in this case, however, supports the chambers judge's finding that the father knew the nature and at least the approximate amount of the dental and education expenses that were being incurred by the mother for the daughter in 2008 and 2009, and that she wished him to contribute. [57] Having said that, and accepting that the principles applicable to retroactive awards of child support and s. 7 expenses are the same, in my opinion the factual difference between these two types of parental contribution to child support is worth mentioning.

In the case of child support, the payor parent's income is determinative. That parent knows what his or her income is and can determine the amount of the child support obligation from the Guidelines. In the case of s. 7 expenses, it is the recipient parent who knows the details of the expenses. If that parent does not communicate that information to the payor parent, the payor parent cannot fulfill his or her legal obligation to contribute.

That is the point, with which I agree, of the decisions in Petersen and Leachman . [58] In this case, both parties have difficulty communicating with each other regarding these matters. It seems to me that much of the financial and emotional expense involved in this application and appeal might have been avoided had the mother taken the additional step of providing the receipts for the expenses to the father as they were incurred, as Josephson J. required in the order he made in 1998. The mother could mail the receipts to the father, which would obviate any direct communication.

The father would then be in a position to determine his obligation to contribute. Discussion [ 85 ] Mr. Reimer argues that there was no delay on the part of the mother seeking a contribution to Guideline 7 expenses and seems to focus on her filing her application in May 2011, immediately following separation, and implicit in his submission is that she did not seek retroactive amounts before this date.

He says the father is guilty of blameworthy conduct, fleeing British Columbia and paying nothing until FMEP commenced attaching his wages in the year 2013, and paid nothing towards Guideline 7 expenses until Judge Milne's order of February 11, 2015. [ 86 ] Referring to the circumstances of the child, he simply states that the most significant part of the claim is for daycare expenses, which were necessary for the mother to incur to work. I agree with this point. Using the figures in Exhibit 4, I calculate that the daycare expense claim is some 81 percent of the overall claim advanced. [ 87 ] Mr.

Reimer argues that the effective date of retroactivity is May 1, 2011. I agree that this is the date upon which the mother gave the father notice she was advancing such a claim, but not notice of the precise amounts.

This is one of the elements in the court making a decision as to a retroactive amount. [ 88 ] I find that for the most part the mother did not consult the father on the various expenditures she made or the amounts, and that it was not really until the trial in September 2015 before me, when she filed Exhibit 1 with receipts for the years 2011 to 2014, and Exhibit 3 with receipts for 2015, that he had in hand full and accurate particulars of her expenditures from May 1, 2011, to August 2015. [ 89 ] There is no evidence that copies of these two exhibits or their content was given to him prior to the start of the trial.

I do not agree with Mr. Reimer's submission that with respect to the extra expenses, medical expenses and school expenses, that the mother from 2011 onwards informed him of these expenses. This submission is not, in my view, supported with the evidence led at the hearing. [ 90 ] I do agree with Mr. Reimer's submission that daycare was an obvious need and that, because after June 14, 2011, the father lived outside B.C., he was not able to help with it as he did prior to their separation on April 1, 2011.

His evidence, for example, that he looked after T. when the mother worked night shifts prior to separation on April 1, 2011, was not challenged by the mother. [ 91 ] I am of the view that there was delay on the part of the mother in prosecuting her claim for Guideline 7 expenses. She knew he was in Nova Scotia shortly after he arrived there in 2011, and that he had moved to Alberta.

They were Skyping in January and February 2012, including on February 23, 2012, which I understand is the date he first commenced work in Grande Prairie with [omitted for publication]: see Exhibit 1, Tab 16. [ 92 ] The parents were emailing one another re his visiting T. in January and March 2012, and he visited on July 20, 2012: see Exhibit 9. He was not hiding and it is improbable that she did not know where he was and what he was doing, yet she did not bring the matter of Guideline 7 expenses back to court until she filed an application on July 17, 2014, some three years following her initial application.

This delay, in my view, was and is unreasonable and not explained by the mother in a way which I accept. Her disclosure of

particulars of the claimed expenses came very late in the day as well. [ 93 ] I find that the father is also guilty of blameworthy conduct and that he must have known in 2011 and 2012 that the August 16, 2011, child support order was unrealistic, using as it did an imputed income amount that he was not earning and not even close to earning, yet he did nothing in a timely way to seek to vary it, nor did he voluntarily disclose his actual income to the mother each year, likely because he had not taken the time to prepare and file his relevant tax returns; hardly an excuse. [ 94 ] I find there is no evidence that T.'s circumstances were negatively affected by the father's failure to make the contributions I have calculated above.

The father is now in a new relationship and has some financial responsibilities therein to a new partner and her 17-year-old son, but generally, and based on the evidence I have, this is a somewhat neutral factor in my determining the entitlement to and amount of any retroactive Guideline 7 expense amount that should be ordered to be paid. He lives in her house. She works full-time and helps with their costs. [ 95 ] However, his August 25, 2014, Form 4, Exhibit 1, Tab 19, does show that he has a negative net worth.

If I were to now make an award for the full amount calculated above, $15,157.97, it would, I think, in the circumstances of this case, cause him some degree of financial hardship.

Decision [ 96 ] Taking all the D.B.S. factors into account and the principles in Leachman and Semancik , I am of the view that the mother has established entitlement to a retroactive award and that I should exercise my discretion in making one, and that it should be made at or about May 1, 2011, being the effective date of notice, but reduced somewhat by three factors, two referred to above: (1) the overpayment of $5,027; (2) the overpayment of $1,001.28 re 2015 Guideline 7 expenses; (3) some arbitrary and modest amount should be deducted in exercising my discretion by reason of the delay and hardship factors above, neither of which is so decisive as to result in my dismissing her claim altogether as occurred in Leachman .

I set this at $1,129.69. [ 97 ] Thus the order I make, exercising my discretion, is that he will be responsible to pay retroactive child support to the mother for his proportionate share of Guideline 7 expenses from May 1, 2011, to December 31, 2015, of some $8,000. This is to be paid commencing January 1, 2016, and on the first day of each month thereafter in the amount of not less than $250 a month until paid in full, in less than three years at this rate, assuming the payments are made.

He may pay more each month if he wishes. [ 98 ] All previous child support orders will be varied in accordance with my findings herein, and particularly the above monthly child support payments I have calculated he ought to have made in the years 2011 to 2015. [ 99 ] Thus I make these further orders: 1.

The father's legal liability pursuant to the Family Law Act and Child Support Guidelines to pay retroactive child support to the mother for the child T. in the years 2011 to 2015 will be based on the court finding his current Guideline income in each year is as stated below, and that the monthly amount of child support for T. is, as well, as stated below: 2011: child support $207.52, based on income $24,646; 2012: child support, 352.43, based on income of 44,283; 2013: child support, 375.81, based on income, $46,908; 2014: $1,064.57, based on income of $122,178; 2015: $623.56, based on income, $73,061.

The order, I expect, should also refer to the Family Relations Act with respect to the year 2011. 2. Commencing on January 15, 2016, and payable on the 15th day of each month thereafter, and imputing annual income to the father this year of $73,061, he will pay monthly child support to the mother of $623.56 for the child T. 3. In the year 2016, the father's proportionate share of agreed-upon Guideline 7 expenses or child care expenses is 42 percent of the monthly amount paid by the mother for the child T.

The mother will, not later than the end of the first week in February, and the end of the first week in each month thereafter, remit documents to the father setting out the amount of the Guideline 7 expense for the prior month, and commencing February 15th and on the 15th day of each month thereafter, he will pay his 42 percent proportionate share to the mother with respect to the agreed-upon or daycare Guideline 7 expenses. [ 100 ] The order that Mr. Reimer will draw in this matter will set out the above income amounts and I assume Mr. Reimer will provide a copy of the entered order to FMEP in a timely way.

The hardship argument [ 101 ] I do not see that the mother has properly presented the claim as Mr. Reimer alleges at page 33 of his submission to the court. This claim was not referred to in Mr. Reimer's opening at the start of the trial. I further understood that it is the subject of a civil action now proceeding in the Supreme Court of British Columbia. That was the evidence before me. [ 102 ] This court has no jurisdiction to divide up assets and debts, all of which are dealt with in

Part 5 of the Family Law Act . Family debt is defined in s. 86. Pursuant to ss. 88 and 89, the Supreme Court of British Columbia only has jurisdiction to deal with this issue. [ 103 ] I am of the view that this matter was not really before me in terms of the motions or applications filed by the mother. Even if it were, I would not grant the relief sought on the basis that I am without jurisdiction and, insofar as s. 10(2) of the Child Support

Guidelines is relied on, in my view, they cannot and should not be used in a sense to have a court make a finding that one or other or both parties may be responsible for family or other debts. This claim is therefore dismissed. [ 104 ] I turn now to the parenting time issue. (PROCEEDINGS ADJOURNED AND RECONVENED) Parenting time [ 105 ] The current arrangement for parenting time remains that set out in Judge Challenger's November 25, 2014, order which I have referred to above.

It is to be supervised and not to exceed four hours on a Saturday or a Sunday, assuming proper notice is first given. [ 106 ] His parenting time following separation historically is referred to on Exhibit 9. He had three visits before leaving for Nova Scotia on June 14, 2011. He did not tell T. or the mother he was going, as he said it would have been too painful to do so. He next saw T. some 13 months later on July 20, 2012. He made efforts to arrange visits when he had returned to Alberta in or about February 2012, and before July 20th, but they did not occur.

There were no further visits in the year 2012. [ 107 ] In 2013, he saw T. three times prior to March 17th. He was not able to see T. on July 22nd, 2013, albeit he was in Vancouver, I believe, due to potential supervisor problems. The mother proposed that two of their friends, B. and Y., could supervise this visit with no expectation of being paid, but this did not occur. There were no further visits in the year 2013. [ 108 ] In 2014, he saw T. twice, firstly on July 19, 2014, and the mother said he that day smelled like stale alcohol. According to the mother, T. was then looking forward to seeing her dad.

She did not think he was inebriated. [ 109 ] I might add that there is no evidence in this case that the father has ever been inebriated or under the influence of an illicit drug at any parenting time visit. The first paid supervisor, one Ms. Gladstone was present on July 19, 2014. He was 45 minutes late for this visit and the visit lasted two hours only, not the maximum four permitted. [ 110 ] He next saw T. on December 30, 2014, for two hours, not four. This, too, was a supervised visit. The mother noted in Exhibit 9 that initially, at least, T. was hesitant to leave her and was crying and said she was scared.

The mother was critical of the paid supervisor's report, which I shall come to below. [ 111 ] He saw her on February 14, 2015, for two hours. [ 112 ] With my encouragement, on Friday, September 18, 2015, the mother, to her credit, agreed to supervise a visit at the conclusion of the trial. [ 113 ] Putting aside the issue of supervision, these parenting time visits are problematic because the father resides in Grande Prairie, Alberta, a choice he made in 2012.

He was able to get what has proven to be a good job there, but one that I have no doubt, in terms of its pay and longevity, will be directly related to the price of oil and natural gas in world markets. For visits, he drives from Grande Prairie to North Vancouver in a pickup truck. Each leg takes 13 hours. The gas cost in September 2015 was said to be between $400 and $500 round trip. He needs three days off work to accomplish a visit.

He must give four weeks' notice to get three days off in a row to his employer, although I understand in the spring each year, as I have said, there is a lot of down time in his job. He agreed it was not a problem for him to get time off if he was not busy. [ 114 ] I understand he drives down on a Friday and returns home on the Sunday. His evidence was that the mother would be flexible in agreeing to a Saturday or a Sunday visit, but that generally she would not agree to a visit outside an existing court order provision. [ 115 ] There is the mother's firefighter four-day on and off

schedule to contend with as well, although according to her testimony her annual

schedule is known well in advance.

While she does not have every weekend off, she has some off, and in the event T. was to be exchanged on a weekend where she was working, I would have thought, without a great deal of difficulty, this could occur if she was working day shifts by having some adult, including her own mother, present for the exchange, and if she worked a night shift, tailoring the pickup to when she returned home from work and before she went to sleep or tried to do so. [ 116 ] His stated goal, given in evidence, is not to pay to see T., by which I clearly understood he meant not to have to pay for supervision.

He does not want supervision at all. While genuinely crying in the witness box, he said, "I just want to see my kid." He seemed to suggest that the mother's insistence on supervision was preventing him from seeing T. as regularly as he would like. What he said he would like is a visit every two months and to have T. with him in Alberta for a summer visit, of course, on the assumption he continues to live there and that supervision is either not required or could be worked out. He would like to have her every other Christmas.

He said, again while crying in the witness box, he would love to see more of her and wanted to be in her life. Weekend visits were now best. [ 117 ] He was okay with the Skyping now occurring, usually at 7:30 p.m. on Sunday, and some telephone calls, but said T. was not really into the latter. T. has not yet interacted with his new common-law spouse, J., nor has the mother met her, although there is some evidence J. has been in Vancouver with the father. I would highly recommend the father rectify this situation.

If this relationship continues, there is every reason for the mother first, and T. at some appropriate time and in an appropriate way and at an appropriate age, to meet J. This is an important part of his current reality. These two parents cannot pretend she does not exist. [ 118 ] The mother testified that prior to separation, the father cared for T., in essence, without her being present, more so when she worked nights.

There are approximately 42 eight-day cycles in 11 months, giving the mother a one-month holiday in a given year, and within each eight-day cycle, two overnight shifts worked by the mother, or 84 in the 11-month period. I find that this father, on this simple analysis, would have, prior to separation on April 1, 2011, have cared for T. for significant periods of time with the mother's consent when she was away from the family home, wherever that might have been, working a night shift.

[ 119 ] His mental health status and history and the need for a report was seemingly not then an issue for this mother. This is a very important fact in this case, in my view. There is, in my view, no evidence that his mental health status has worsened from what it was in the 12 months (April 2010 to April 2011) to date. [ 120 ] The mother's view as to what parenting time would be in T.'s best interests is, I think, set out in Mr. Reimer's closing submission at page 15. I have considered this submission very carefully. It proposes supervised visits every three months upon one month's notice to the mother.

It does not set out the duration of such visits. This plan will not, in my view, assist in re-establishing a strong bond between T. and her father. This important issue, which lies at the heart of parenting time orders and the need for them is not addressed at all by Mr. Reimer in his written submission. [ 121 ] This proposal also calls for a very detailed report. The report is said to be necessary, because the mother has what she described as a "huge red flag" that the father had done no counselling to deal with his gambling addiction issues or two suicide attempts in or about October 2007.

Without a report from a psychiatrist that he has disclosed these issues and was somehow working on them and following the doctor's advice, she clearly had and has a concern that if T. were with her dad in an unsupervised visit, that her safety might be at risk. She did not say how it might be at risk or how he would pose a risk to T. [ 122 ] She, according to Mr.

Reimer, needs to be satisfied that he is mentally fit to have T. for short and presumably longer periods of time while unsupervised: see argument, page 14. [ 123 ] The mother testified that she hoped he would be transparent and get the report, so she could feel comfortable moving forward with unsupervised visits. If such a report was positive (and she did not say what it would have to state to meet her own expectation in this regard) there could be four-hour unsupervised visits, so he could get to know T., all dependent on what the report said.

She did not want to give him carte blanche that if he got a report, unsupervised visits could commence. She seemed to want to reserve control as to exactly how such visits might occur and when, if at all. [ 124 ] In addition to a positive report, the mother quite fairly, I think, said she wanted to see him have some consistent time visiting with T., she suggested every two to three months or more often. If he could do six, I assumed consecutive, monthly visits over a six-month period of time, all supervised, that would suffice, as I understood her evidence.

Thus, in her view, supervision must continue to guarantee T.'s safety and at least until a psychiatrist's report is got. [ 125 ] The mother testified as to supervisors. She was aware professionals cost about $100 an hour or $400 for a single four-hour visit. The father has said he cannot afford this and I accept this evidence as truthful. [ 126 ] The mother said in or about 2013, she declined to supervise parenting time visits with T. and her dad, as T. as a result felt they were then a "family", and they were not.

The appearance of a family dynamic was, in essence, misleading when there was none in truth that existed. I observe the obvious; T. was then much younger than she is now. [ 127 ] When asked by Mr. Reimer if there were any people who could supervise unpaid visits, she said they had discussed this and that she had disagreed with some of his proposed choices, including D. and C.M. in Maple Ridge, and B.R., whose demeanour she disliked. [ 128 ] When the father comes to North Vancouver to exercise parenting time, I understand he stays with the M.'s. The father was aware that Mr. R. and the mother did not get along.

She felt her own mother might help in September 2015, and maybe her sister, G., who was not, in September, wanting to do so. B. and Y. were okay choices. Nonetheless, she said she did not, in July 2013, wish to use them. In 2014, one C. offered to help but might not be available in the year 2015. [ 129 ] The mother testified as to her daughter's relationship with her father. T. has told her mother she would like to have visits with her father. She asks all the time, either about visits or her dad.

For Father's Day, for example, in 2015, she made him a card at school and a magnet that said "I love you", and gave them to him on July 19, 2014, at the above parenting time visit. I assume at Christmas 2014, the mother told T. to make out a Christmas wish list for Santa with three items only on it. Her evidence was that one item was that Santa might give her $200 so she could give the money to her father to pay for a visit. I was not sure if the reference was to defray gas and/or travel costs or the cost of a supervisor. In my view, it does not matter.

This evidence speaks volumes for just how badly T. wants to see her father. [ 130 ] The mother testified that absolutely it was in her daughter's best interests that she has a relationship with her father. She believed she should and encouraged this. I accept that, to some extent, she has done so; for example, facilitating Skype visits which were regularly occurring in the three months prior to trial. She said T. was happy and excited to see him in person.

T. expressed interest in seeing him in person and, I assumed in the Skype or telephone calls, asked him every time when he was coming to visit. [ 131 ] What is the evidence of mental health issues on the part of these two parents? The mother agreed she was on antidepressant medications after T. was born in December 2008 and possibly was prior to her cohabitation with the father in the fall of 2006.

No evidence was led as to why she might have been using such medications and as to what her issues might then have been, and none whatsoever that, whatever they were, they could in any way have affected T.'s safety while in her care. [ 132 ] The father and mother both testified as to his two suicide attempts: one, according to her, in the summer of 2007, approximately one month after they were married (July 14, 2007) and the second one, I understood, some three months later, in or about mid-October 2007. [ 133 ] On the first, he told her he had taken a bottle of Advil and put a bag over his head and tried to suffocate himself, but was able to drive around the next morning, but was contemplating finding a large truck to drive into, to end his life.

She asked him why he would do this and he said it had to do with his then gambling that he was struggling with. He testified that this event occurred two days before the second October 14, 2007, attempt, and only agreed he put a bag over his head and tried to go to sleep. The major reason for making this attempt and the later or second one, according to him, was that he was unhappy and depressed about everything. He was unhappy trying to figure out what was wrong with him. Gambling, according to him, was not a reason for his depression. He felt gambling had little or nothing to do with why he was depressed.

I do not accept this evidence as accurate.

[ 134 ] The second attempt occurred when he consumed some moss control chemicals or pesticide. Part of the event was first getting into a fist fight with B.R., a proposed access supervisor. Afterwards, the mother drove him to the Ridge Meadows Hospital. She was later advised that his blood alcohol level greatly exceeded 80 milligrams percent. This is really the only evidence that I have heard suggesting the father ever drank to excess. [ 135 ] His undisputed evidence is that he now drinks socially and has never had a licence suspension or criminal conviction for drinking and driving.

He described his driver's licence at this time as his "golden ticket" without which he could not do his job at [omitted for publication] which, as a supervisor, involves his driving to various locations of natural gas wells in Alberta. [ 136 ] He also testified that in October 2007, and before the 14th, he owed $30,000 for online gambling charges which had gone on the mother's Visa card without her knowledge or consent. By this date, he had gambled and lost thousands of dollars in one night. He never won.

Nonetheless, he testified that he felt he did not then have a gambling problem. [ 137 ] There is evidence that he was gambling as late as January 2011, contrary to his direct evidence that he stopped in December 2010, but an event he admitted to in his cross-examination by Mr. Reimer. In January, he lost some $7,000 of customers' prepaid revenues for lawn cutting that he had not yet done. This was essentially trust money. [ 138 ] As early as April 9, 2008, he told the mother he had a gambling addiction since age 15.

At trial, he testified inconsistently that he never felt he had a gambling addiction and that no one told him he did, but he agreed that on January 19, 2014, he felt he had such an addiction. His further evidence was that now that he lives in Grande Prairie, he plays poker only socially.

There is no evidence that at this time gambling is the problem for him it clearly was in and prior to January 2011. [ 139 ] I find that he was not truthful in explaining his past history of gambling before he left for Nova Scotia in June 2011 when he testified. [ 140 ] There is no evidence he has ever used, as I have said, illicit drugs or endangered anyone, including himself, while doing so. I find that after October 14, 2007, he has made some very positive effort to deal with what might generally be called mental health issues.

I will summarize his evidence on point. [ 141 ] He was hospitalized at Ridge Meadows Hospital for three to five days in October 2007. He saw a psychiatrist while there, one Dr. Gopinath, and a disorder counsellor, Mr. Depow, and was released into an outreach program. He saw these two persons weekly in the program. I understand this counselling, at least in part, dealt with his proclivity to gamble and in part with anxiety issues. The mother said he ceased attending this counselling in January 2008.

He testified that he had done some counselling at or through Maple Ridge Health in the fall of 2007, but left when group work commenced as the next step. He did not wish to share his issues with the public, only in a one-on-one situation with a professional. [ 142 ] His discharge diagnosis from hospital was depression. He then had much to be depressed about; for the most part, financial issues contributed to by his heavy gambling. T. was not then part of the family. On discharge, he was prescribed one anxiety medication and two antidepressant medications.

He said he took these pills faithfully and then, on his own, in November 2008 elected to stop. The mother said he stopped as early as January 2008. The mother testified he only took medications faithfully when she handed the pills to him. He testified that the medications he had been prescribed did help reduce his sadness and increased his motivation. [ 143 ] These events, of course, occurred a very long time ago. He said he ceased his counselling in April 2008.

He agreed that in January of 2008, the mother asked him to get help for his depression, but again denied that his gambling was the predominant cause, saying it was but a component of his depression. He also agreed that it was fair to say that throughout his relationship with the mother, she had encouraged him to get counselling and medication to help with his anxiety and depression. [ 144 ] In April or May 2009, he saw his general practitioner, Dr. Koon, because he started to feel himself being "dragged down" again. He asked Dr.

Koon to prescribe Wellbutrin to help with feelings of anxiety he was then experiencing. This drug is one used to deal with the symptoms of depression. Dr. Koon apparently wanted the father to take this drug for six to eight weeks. He, in fact, took it for six weeks only, which he said was not long enough. He stopped as he was getting happy again and he felt he did not need the medication.

He testified that other than this, he had not, prior to separation, refused to take or follow any treatment recommended by a doctor. [ 145 ] Several months earlier, in January 2011, he and the mother attended a single counselling session together. He was then, according to him, in emotional distress and was a mess emotionally. He did not stay to the end of this session and later the same night lost $7,000 gambling. [ 146 ] In July 2012, he went back on Wellbutrin. This time, his new general practitioner, Dr. Elwanami-Murad, prescribed it at a walk-in clinic.

He said he had gone on this drug as in the months previously he was getting low and felt he was becoming more anxious. He ascribed, as reasons for his mental state, feeling let down over the Nova Scotia job, or I suppose lack of same, his move to Alberta, his new job, then in a lower position than he now has, and the absence of friends.

He said he took this medication daily until July 1, 2015. [ 147 ] He also agreed he had done some counselling on eight separate occasions at a walk-in clinic in Grande Prairie, four in 2013, two in 2014, and two in 2015, all, as I understood, due to anxiety or like feelings he was experiencing. He believed he had told the counsellor on this first visit about his two suicide attempts in 2007. In July 2015, Dr.

Elwanami-Murad prescribed an antidepressant medication and another drug to help with night-time anxiety, which he said he was taking as requested. [ 148 ] In September 2015, he started with a new general practitioner, one Dr. Olumide-Ojodun. He had not, at trial, told him about his two suicide attempts. Generally he felt his mood and outlook in 2015 was good. He had had no further thoughts of suicide since 2008, and said he was not a harm to anyone now.

This evidence was not challenged in cross-examination. [ 149 ] As indicated above, the mother testified that she wanted the father to obtain a report, from likely a psychiatrist or like person, that the father was dealing with his past issues, primarily gambling and mental health issues. She was of the view that as late as February

11, 2015, at the family case conference, he had agreed to obtain this report as a precondition for obtaining unsupervised parenting time with T. [ 150 ] The mother had testified that the whole reason she first sought supervision in the year 2011 was due to her concerns over the 2007 suicide attempts, and her perception that the father was not dealing with the issues that led to it.

That said, she also agreed that the father never lost a job to mental health issues, and that the only time an assessment report came up after their separation, April 1, 2011, was before Judge Milne in the above February 11, 2015, family case conference. [ 151 ] She also seemed to agree that, for purposes of locating an overnight caregiver for T., she was not, as a requirement of her employment, seeking that the applicant candidates first undergo a mental health assessment. [ 152 ] The father said that in the Milne family case conference, he did explain that his goal, a foremost issue for him, was to be free of supervision on parenting time visits.

He understood that Judge Milne had only suggested that he obtain a mental health assessment or letters from his company and friends. He agreed the hearing date, which later took place in front of me, was set at a later date to allow him to obtain this information.

He also admitted in cross-examination that Milne P.C.J., was directing him to get a mental health assessment, but agreed he had not done so by the start of the hearing on September 15, 2015. [ 153 ] He could not recall the judge asking the mother what it would take to satisfy her to agree to remove the supervision requirement, and the mother stating that she wanted him to be open with his doctors, obtain help from them, and provide proof, a report, that he had done so and grappled with his issues. [ 154 ] He did agree in cross-examination that the mother may have said she needed evidence he is now okay, and importantly that it was reasonable for her to have something to allay her concerns. [ 155 ] Lastly, he also then admitted that the mother had been saying for years that she did not trust him and that, this being so, he agreed it was prudent for him to obtain a report, particularly when he was not wanting supervision at his parenting time visits. [ 156 ] On the last day of the hearing before me, the father, in answer to some questions I put to him, made a form of commitment and agreed in his next scheduled appointment with his general practitioner, which he felt could occur in the week of September 21, 2015, that he would get a referral to a psychiatrist in Grande Prairie and would have a report done and, once done, would give it to the mother. [ 157 ] Near the conclusion of this day, I said on the record that I would not then order that a report be done, as he had made a commitment, which I expected him to follow through with.

Mr. Reimer's argument was filed with the court on November 19, 2015. There is no reference in it to any report being done by that date. [ 158 ] The father filed two exhibits relevant to his request for parenting time with his daughter. Exhibit 11 comprises three reports from the [omitted for publication] relating to the father's supervised visits on July 19, 2014, for 1.3 hours, December 30, 2014, for two hours, and February 14, 2015, for two hours. I have reviewed these documents.

They are entirely positive, in my view, with respect to this father's interaction in somewhat strained circumstances with his daughter, T. On the first visit, he was 45 minutes late, and thus the two-hour visit which took place at the Vancouver Aquarium was only one and a quarter hours in length and not two hours in duration, notwithstanding the father apparently having paid the supervisor, Ms. Gladston

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