C.J.A. v. E.M.A. Date:, 2017 BCPC 406

Citation: C.J.A. v. E.M.A. Date: 20171220 2017 BCPC 406 File No: F9610 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: C.J.A. APPLICANT AND: E.M.A. RESPONDENT RULING ON APPLICATION RE CHILD SUPPORT,

SECTION 7 EXPENSES, AND SPOUSAL SUPPORT OF THE HONOURABLE JUDGE J. CHALLENGER

Appearing on his own behalf: C.J.A. Appearing on her own behalf: E.M.A. Place of Hearing: North Vancouver , B.C. Dates of Hearing: August 4, September 20, November 1, 2017 Date of Judgment: December 20, 2017 [ 1 ] This decision follows an earlier decision rendered in the same Hearing on Application which dealt with the issues of parenting time and responsibilities. In my earlier reasons I found that since separation Mother has been the primary residential parent and that Father has had the children in his care for less than 40% of the time.

As a result, in determining child support, the Guideline tables are applicable and s. 7 expenses should be shared pro-rata based on the incomes of the parents. Mother is also seeking an order for spousal support. [ 2 ] Father has made several different arguments about his income being “estimated” on his 2016 tax return and that there was a “transition period” during which the Guidelines should not apply. In his arguments and testimony, he says it would be a “hardship” for him to have to pay the table amounts or contribute toward s. 7 expenses.

I do not recall any testimony and cannot find the evidence he says he filed with respect to the “medical expenses” he says he is incurring save for one “sample” in exhibit 20. Father did not plead s. 10 of the Guidelines (although he filled in the Hardship portion of the Financial Statement) and did not lead evidence capable of supporting such a claim. [ 3 ] He also claimed that the tax he is required to pay on a dividend paid to him from their jointly held corporation is a family debt.

However, Mother’s evidence is that each parent received an equal payment post separation in 2016 which was taxable in each of their hands individually. In May of 2017 he wrote to Mother demanding access to the corporate records. He does not reference a need to have those records for the family proceedings. In the hearing before me, he claimed he was unable to obtain the evidence he required with respect to the issue of the dividends as he alleged Mother was withholding the corporate documents from him. However, at no time did he ask the Court to order her to produce those documents.

It was never made clear to the Court how these other documents would be relevant to the family court proceedings. In any event, Father would have a record of the dividend paid in his possession as he declared that income on his taxes. [ 4 ] In my earlier reasons, I found Mother to be a reliable witness and I make that finding again in these reasons. I observed that Father was prone to

interpretation of information given to him. In the evidence given in the more recent hearing with respect to financial issues, I found Father to be a poor historian and to have a propensity to fail to pay careful attention to or integrate what Mother communicated to him about various issues. This same pattern was evidenced in the evidence about parenting issues although I did not specifically comment on it in my earlier ruling.

However, the issues surrounding the trip to Australia arose from a similar failure to appreciate the circumstances or to have grossly misinterpreted what he was told. [ 5 ] An example of Father’s inconsistent positions and apparent failure to absorb what is communicated to him is his position with respect to a Robotics Academy in which the children were enrolled. In February of 2016 Mother wrote to him about their eldest child, K., attending this program (exhibit 4 - page 27).

The bottom line of the first paragraph states “There is a cost involved - 10 payments of $250 across the school year.” She went on to suggest that their second child, J., should also participate and that “it would mean double the tuition, so cost of 10 payments of $500.” Father wrote back the same day saying it sounded “like an excellent opportunity for both of them. I too support the idea and I think the amount is “reasonable”…it’s worth it.” In September he emailed Mother stating that she “went ahead and enrolled the children in Academy (robotics) without prior consultation”.

In October he wrote again saying “The only additional expenses I’m aware of is (sic) Robotics and we agreed to draw on savings to cover that.” In December he wrote and announced he was no longer willing to support the children attending for the spring term. The latter was a unilateral and untenable change in position given the children were pursuing this course for credit and not completing it would have impacted the progress of their education. [ 6 ] Throughout the hearing Father insisted that he had only agreed to pay for the first term of the program despite having his attention drawn to these emails.

He persisted in pursuing this issue even after Mother had said clearly and repeatedly in Court that she was not asking him to pay anything toward the costs of the spring 2017 term of the Robotics Academy. However, she is seeking that Father contribute to the cost of J.’s attendance at the Academy for the 2017/2018 school year. [ 7 ] I was unable to appreciate much of what Father argued with respect to the issues I must now decide. Overall, I found Father’s testimony to be unclear and often scattered in presentation.

I find that Mother has been a conscientious record keeper with respect to what Father has paid to her as child support and what he has paid toward the s. 7 expenses of the children and I accept her evidence on these issues. Her evidence on the financial matters was consistent and careful in all respects. I accept her evidence with respect to the difficulties she has had in engaging Father in appropriate and timely discussions regarding s. 7 expenses. [ 8 ] Although the parties separated in 2015, their finances remained intertwined until July 1 st of 2016.

Father’s line 150 income for 2016 was $73,327.00 yielding a child support payment of $1452.00 for July to December. He paid $4515.84 in total over those months leaving arrears owing of $4196.16. [ 9 ] In 2017 Father’s income was $107,500.00 according to his pay statements. This yields a monthly child support payment of $2047.00. He has paid that amount since May of 2017. He paid $6485.13 from January to April leaving arrears outstanding in the amount of $1702.87. (I am assuming he has continued to pay $2047.00 per month over the months since the matter adjourned for reasons to be given in coming to this amount.)

[ 10 ] The arrears of child support for 2016 and 2017 are fixed at $5899.03 as of December 31 st , 2017. Father will continue to pay $2047.00 per month until further order of the Court or until a written agreement between the parties varies that amount. [ 11 ] Each year, by no later than April 30 th , the parents will exchange copies of their income tax returns and will also exchange a copy of their Notice of Assessment forthwith upon receipt.

By the end of June each year, the parents will do an accounting of child support paid for the preceding year, to April 30 th and will amortize any over or under payment over the next 12 months. The parties will also estimate their line 150 incomes, the amount of child support payable, and their respective pro-rata share of s. 7 expenses for the next 12 months. [ 12 ] The next issue to resolve is what expenses for the children should be considered s. 7 expenses and which of those Father should be required to contribute to.

His primary argument is that he did not approve many of the educational and recreational expenses Mother determined were appropriate s. 7 expenses. Mother’s income for the years 2016 and 2017 is imputed at $50,199.00. [ 13 ] During the course of the evidence on parenting issues, Father said he enjoyed very close relationships with all of the children and that he was involved in or took an active interest in all of their educational endeavors and other activities. The children were described by both parents as being very intelligent and excellent students.

However, in the later hearing Father claimed he did not know what activities or programs the children were participating in during 2016 and 2017. Mother says that Father was fully apprised of their activities through communications with her and through the children and was supportive of their participation. [ 14 ] She says Father did not clearly or meaningfully respond to her requests over 2016 and 2017 to discuss and try to reach an agreement about the children’s extra educational programs and activities and their costs.

Mother sent Father a list of the proposed 2016/2017 school year programs and activities and associated costs in early August of 2016. He wrote back saying that money was tight and they needed to discuss each program and activity to determine what was affordable. However, he never did so despite Mother following up with him. As a result she was required to make the decisions herself. [ 15 ] In the spring of 2017, although he supported the child’s participation, he failed to respond to numerous requests by Mother to get him to sign papers allowing J. to participate in a student exchange program.

Despite K. having participated in the same program and having had a Spanish language tutor to assist her in preparing for her time overseas, Father now claims that the expense of a language tutor is not something he supports for J. He also says that he did not agree to a math tutor for K. yet there is an email in which he supports this and queries the cost. His response to Mother’s requests for input regarding the fall of 2017 was that he was awaiting the ruling of the Court and could not commit to any s. 7 expenses until then.

Mother was again required to make these decisions herself. [ 16 ] Father did not produce any written communications supporting his suggestion that he had made efforts to work with Mother to come to agreement on the children’s programs and activities. Aside from the email where he alleged Mother failed to consult him about the robotics course, he did not produce any written communications expressing his opposition to any of the activities Mother had determined were appropriate.

I do not accept his evidence that he was unaware of the various activities and I accept Mother’s evidence that she (and the children) spoke to him about the various programs and activities she arranged for the children and that Father was supportive. Father did make clear in one email that he was not supporting rock climbing for M. for the spring of 2016 and that is not an expense Mother is seeking he contribute toward. [ 17 ] Father had also refused to take steps to allow Mother to submit expenses she incurs directly to his health insurer.

She explained to him that she must submit them under his plan, which covers more, before she can submit the outstanding balance under her plan. At the end of the hearing, Father had still failed to make these arrangements which caused the Court to order he would be solely responsible for the payment of all medical and associated costs for the children until he did.

I expect he has now taken these steps, which should not have required the Court’s intervention given it is in the interests of both parents that they be able to claim as much as possible from their respective plans. [ 18 ] It is not fair for Mother to bear the costs of appropriate educational and recreational activities for the children which Father historically supported, verbally supported when he was advised about them or knew were being incurred, because of his failure to properly engage with Mother in determining a mutual budget for these expenses.

Where one parent does not meet their obligation in this regard, the other parent is required to make such decisions. The Guidelines do not require that parents reach agreement for an expense to be considered a proper s. 7 expense. I find Mother made thoughtful and appropriate decisions and that none of the expenses are excessive or unnecessary given the incomes of the parents. [ 19 ] Mother claimed for the cost of soccer and baseball which I find to be expenses which are properly covered by the monthly Guideline support amount.

I have based my findings on the s. 7 list provided by Mother which is the first page of exhibit 16. [ 20 ] The 2016 s. 7 expenses which I find are appropriate are: $ 645.96 - Rock climbing - M. and J. for September to December $ 294.00 - Silks - K. for September to December $ 744.01 - Renewal of Australian Passports for all $1484.47 = $247.41 per month ($82.48 average per month per child) [ 21 ] The 2017 s. 7 expenses (as submitted to the time of hearing) which I find are appropriate are: $ 378.00 - Silks - K. $ 340.00 - Required school fees - K. (includes Advance Placement Exams) $ 528.00 - Math tutor - K. $1400.00 - Orthodontics - J. $ 85.00 - Orthotics - J. $1995.00 - Exchange program - J.

$ 160.00 - Spanish tutor - J. $1000.00 - Robotics Academy - J. $ 303.00 - Calculators - K. and J. $ 344.51 - Rock climbing - M. $6533.51 = $544.45 per month ($181.49 average per month per child) [ 22 ] The ongoing s. 7 expenses identified up to the time of the hearing and going forward to the end of June 2018 are: $ 960.00 - Required school fees for K. (yearbook, PAC donation and scholarship fund excluded - amounts taken from the document provided by Mother during argument and used only to estimate future expenses) $ 450.00 - Math tutor - K. $ 600.00 - Orthodontics - J. (full year) $1500.00 - Robotics Academy - J. $ 80.00 - Spanish tutor - J. $ 80.00 - Physiotherapy - J. $ 100.00 - Counselling - M. $ 400.00 - Orthodontics - M. (expected to start March 2018 at $100 per month) $4362.00 = $727.00 per month ($242.00 average per month per child) [ 23 ] The Silks and rock climbing activities shall be s. 7 expenses if they have already been committed to as of the time of this judgement.

However, in the future, these activities will be subject to the process I will be putting into effect for determining s. 7 expenses. [ 24 ] Father has paid Mother $85.14, a figure he calculated, toward s. 7 expenses. He purchased a French horn for one child and paid $446.00 for that. The child no longer uses the horn and presumably it can be sold. Father should take steps to sell the instrument and when he does so he can ask Mother to pay her proportionate share of the difference between what he paid and what it was sold for.

Father also says he should be credited for the entire amount he pays monthly for extended health and dental. However, he is only entitled to claim those portions which are attributable to the children and did not put that evidence before the Court. [ 25 ] Father’s pro-rata share of the 2016 s. 7 expenses is 59% or $875.84 less $85.14 for a balance owing of $760.70. Father’s pro- rata share of the 2017 s. expenses is 68% or $6533.51 less $1500.00 for a balance owing of $2942.79. This assumes he has continued to pay the amount ordered of $300.00 per month as of August 1 st , 2017.

The s. 7 arrears for 2016 and 2017 are fixed at $3703.49. [ 26 ] I find ongoing s. 7 expenses, subject to an accounting and adjustment mid-year, should be $650.00 per month which is the average between the total per month for 2017 and the anticipated monthly amount from January to June of 2018.

As a result of my ruling on spousal support which follows, Father will pay 64% of those expenses being $416.00 per month. [ 27 ] By no later than June 30 th each year, the parents will review the s. 7 expenses incurred in the previous 12 months (in 2018 for the previous 6 months) and do an accounting to determine if there has been any under or over payment by either parent. Any under or over payment will be amortized over the next 12 months.

By the end of June each year, the parents will determine the expected s. 7 expenses which will be incurred over the next 12 months and determine a pro-rata monthly amount payable by Father to Mother to commence July 1 st . [ 28 ] The final issue to be resolved is whether Mother should receive spousal support and, if so, whether it should be retroactive to the date of separation. [ 29 ] Mother is a social worker who is now 43 years of age. They were together in a marital relationship for over 20 years. Mother obtained her BSW in 1997 and her MSW in 2003.

Since the birth of their first child in late 2002, she has been working part time. Mother took four maternity leaves (one child did not survive infancy). During 2008 and 2009 she worked full time but returned to part time work due to the need for her to provide child care. She currently works in a permanent part-time position two days a week. Her future prospects for employment were not addressed in any detail. [ 30 ] Father is 44. He has been the primary income earner since the birth of their first child.

He has been involved in various occupations and, as set out in my previous reasons, worked overseas for periods of time. [ 31 ] Father took no issue with there having been agreement throughout for Mother to forgo her career development in order to care for the children. Rather, Father argues that Mother should have returned to full time work after separation. Mother says that she felt it was important for her to remain available for the children during the transition to co-parenting especially for their youngest child, M., who was10 years old in mid-2016. He has just turned 12.

In my view, Mother should transition back to full time work as M. proceeds through high school. The parents will have to carefully consider what working

schedule will enable Mother to continue to support the children academically and otherwise as, to date, they are excelling in all respects with the current level of attention and support she is able to provide. [ 32 ] As an aside, the parents have been very careful with their money and have managed to acquire three residential rental properties which more or less break even each year but which they hope will provide them with equity over the long term. It is from this corporation that they received the dividends in 2016. [ 33 ] I find that Mother is entitled to spousal support to meet the objectives set out in s. 161(

a) and (

b) of the FLA . As noted, she should strive to achieve economic self-sufficiency within a reasonable period of time. The amount and duration must be determined “on consideration of the conditions, means, needs, and other circumstances” as set out in s. 162. [ 34 ] Mother applied for spousal support in her Counterclaim which followed Father’s original Application filed in early 2017.

Father now earns over twice as much as Mother. Mother bears the greatest burden with respect to shelter, food, clothing, and supplies for the children. Father pays rent of $22,200.00 per year while Mother pays $28,800.00. Father claims in his financial statement to expend $8400.00 for food which is the same amount Mother listed in her statement. Mother now says she probably spends double that amount for food and spends much more on vehicle expenses due to driving the children around.

I find I cannot rely on Father’s expenses as set out as many are identical to those claimed by Mother and some are not properly included. Mother has no debt and Father has only a debt to the CRA. The current amount of that debt is not clear and it is also not clear why Father is saying he must save to pay taxes when he is an employee. [ 35 ] I am not satisfied that there is anything in Father’s circumstances which would explain why he is experiencing financial difficulties except that he has not sufficiently reduced his expenses since separation to accord with the reality of maintaining separate households.

Mother has been able to meet all of the children’s expenses without accumulating debt and without the benefit of full Guideline amounts throughout or any payments toward s. 7 expenses despite her much lower income level. [ 36 ] A mid-range Spousal Support Advisory Guideline amount, taking into account the current Guideline child support amount, would result in Mother having 59.7% of the disposable income available. I find this is appropriate and takes into account all of the circumstances of both parents.

Father will pay to Mother $354.00 per month retroactive to July 1 st , 2016 and on the 1 st of every month thereafter until further order of the Court. I fix arrears of spousal support at $6210.00 as of December 31 st , 2017. [ 37 ] Father may seek a review of this order for him to pay spousal support no sooner than September of 2018. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia