B.B.B. Plaintiff v. A.E.B., 2013 YKSC 120

SUPREME COURT OF YUKON Citation: B.B.B. v. A.E.B. , 2013 YKSC 120 Date: 20131129 S.C. No.: 08-D4092 Registry: Whitehorse Between: B.B.B. Plaintiff And A.E.B. Defendant Before: Mr. Justice L.F. Gower Appearances: Kelly McGill Counsel for the Plaintiff A.E.B. Appearing on her own behalf REASONS FOR JUDGMENT INTRODUCTION [ 1 ] In this matter, the defendant mother is applying to vary a Consent Divorce Order, dated April 8, 2010, with respect to child support, special or extraordinary expenses, spousal support and property division.

With respect to the latter, the mother requires special leave of the Court pursuant to s. 15(2) of the Family Property and Support Act , R.S.Y. 2002, c. 83 (the “ Act. ”). [ 2 ] The parties were married on May 11, 2002 and separated on September 15, 2008. The child of the marriage, K., was born on March 11, 2006, and is now seven years old. The plaintiff father does not oppose paying child support for K. on a prospective basis, but does oppose the mother’s application for retroactive child support and property division. BACKGROUND [ 3 ] When the parties married, the father was 22 years old and the mother was 20.

It appears that the father was then employed full-time as a journeyperson carpenter and an apprentice welder. He has since qualified as a journeyperson welder. At the time of the marriage the mother was also employed full-time. She continued to be so until taking some time off following K.’s birth in 2006.

By 2008, the year of the separation, the mother was again employed full-time and in 2010, she began the employment she has today, subject to a current unpaid leave of absence. [ 4 ] In 2000 and 2001, the father purchased two mobile homes located in a Whitehorse trailer court, the first (Unit 29) for $10,000 and the second (Unit 14) for $11,000. It is uncontested that he paid in full for both prior to the marriage.

These units were used as rental properties during the marriage, except for approximately one year, when the family resided in Unit 14. [ 5 ] Before July 2008, the young family lived with the mother’s father, until he was moved into an extended care facility. The family then moved into the home of the father’s parents.

After the mother left that home on September 15, 2008, the date of separation, the father continued to reside there. [ 6 ] October 7, 2008, Veale J., of this Court, made an interim interim order granting joint custody of K. to the parties and specifying that her time was to be shared equally between them. It is largely agreed between the parties that since the separation K. has spent roughly 50% of her time with each parent. [ 7 ] On April 1, 2010, the parties entered into a written Separation Agreement dealing with their family assets and debts, as well as the issue of spousal support.

The father agreed to be responsible for the couple’s two main debts, totalling approximately $28,500. He also retained sole ownership of the two mobile homes. The Separation Agreement specified the City of Whitehorse tax assessment values for each unit: Unit 14 at $18,290; and Unit 29 at $18,990. The mother retained sole ownership of a 2000 Nissan X-Terra motor vehicle, as well as some furniture, kitchen equipment and other personal items. Each party agreed not to seek spousal support from the other, then or in the future. [ 8 ] On April 8, 2010, the parties entered the Consent Divorce Order.

In that Order they agreed to share joint custody of K., subject to an equal access

schedule to be specified in writing. They also agreed not to seek child support from one another and to pay “the extra financial costs that may arise from time to time on a 50% split.” I understood from the parties at the hearing that this was intended to cover most of the child’s special or extraordinary expenses.

However, in another clause in the Consent Divorce Order the parties agreed “that extra costs for holidays, vacations and extracurricular activities will be paid by the party that initiates such activities.” The Consent Divorce Order also confirmed the previous agreement of the parties not to pay spousal support to each other, as well as confirming the previously agreed-upon division of family assets and debts. [ 9 ] Following the Consent Divorce Order, a number of further interim orders were made, principally with respect to K.’s residential time with each parent.

On December 12, 2012, I heard an application by the father for interim sole custody of K., and a cross- application by the mother seeking specific residential time with K., as well as other relief, including the issue of child support. At the

request of the mother’s counsel, the child support issues were adjourned to be argued later. [10] In May 2013, the parties proceeded to trial before Deputy Justice Davies on the issues raised at the hearing on December 12,2012. The mother did not bring forward the issue of child support or special or extraordinary expenses at that trial. REOPENING PROPERTY DIVISION [11] Since the Consent Divorce Order has been granted, the mother requires “special leave” of this Court in order to make herapplication revisiting the issue of the division of family assets.

Section 15(2) of the Act, states: “2) Except by special leave of the Supreme Court, no application shall be brought under this Part, in relation to thedivision of family assets or other property under

section 6, 13, or 14 by a person against their former spouse after the pronouncement of adecree nisi of divorce in respect of the marriage, or the pronouncement of a declaration that the marriage is a nullity, as the case may be.” [12] This provision was addressed by Veale J. in Ngeruka v. Bruce, 2010 YKSC 51. In that case, the parties married in 1996, hadthree children, and separated in 2003. The wife had come into the marriage having previously purchased the family home in her name.

The family home was sold in 2006, and later that year the parties signed a Separation Agreement pursuant to which the father agreed toaccept $5000 as his share of the sale proceeds, relinquishing any further claim against the home. A consent divorce order was entered in2009. In 2010, the father commenced an action seeking special leave to reopen the division of family assets. Veale J. denied such leave. [13] There were two issues before the Court.

Firstly, whether the Separation Agreement was valid, and secondly, whether the fathershould be granted special leave. [14] In addressing the first issue, Veale J. noted that the Separation Agreement fell within the definition of a “domestic contract”under the Family Property Support Act. Section 61(1) of that Act states: “A domestic contract does not affect the rights of a person under this Act unless it is in writing, signed by both parties and witnessed byan independent third person.” [15] Veale J. referred to Waters v.

Conrod, 2007 BCCA 230, in which the Court of Appeal, at para. 13, approved of the followingstatement of the trial judge: “It is evident from the Ontario jurisprudence that in the view of those courts, the purpose of the witness requirement is to ensure that thesignatures on the agreement belong to the parties and that those signatures were not affixed under any duress or undue influence….” [16] Veale J. also referred to the Supreme Court of Canada decision in Miglin v. Miglin, 2003 SCC 24 (“Miglin”), as offering someanalysis of the approach to be taken in interpreting pre-existing Separation Agreements.

At para. 31, Veale J. summarized some of thecircumstances the Supreme Court considered in reviewing a separation agreement: “1. Was there any circumstance of oppression, pressure or other vulnerability present in the negotiations and was there any professionalassistance to overcome any systemic imbalances? (paras. 80-83). 2. If the conditions of negotiation were satisfactory, was the agreement in "substantial compliance" with the Act? In Miglin, thisquestion was directed to the merits more than procedural compliance. (paras. 84-86)”.

The question of substantial compliance refers to the objectives of spousal support in s. 15.2(6) of the Divorce Act, R.S.C.1985, c. 3 (2nd sup), a point to which I will return. [17] On the special leave issue, Veale J. referred to Turbo Resources Ltd. v.

Gibson (1987), (SK CA), 60 Sask R.221 (C.A.) and determined that special leave involves “a more stringent test than mere leave and requires special grounds.” While VealeJ. noted that the Family Property and Support Act does not specify any factors to be considered in the exercise of the discretion ingranting special leave, referring back to Miglin, at para. 45, he helpfully summarized a non-exhaustive list of considerations whichshould be taken into account: ”1. Did the parties have any opportunity to or did they obtain legal advice at any stage of the matter? 2.

Is there credible evidence of any oppression, duress, undue influence, unconscionability or vulnerability in the negotiations orproceedings? 3. Is there credible evidence of unequal bargaining power that was not addressed with professional assistance? 4. Is there credible evidence that one spouse had no knowledge that a divorce judgment would be issued, thereby removing the right toclaim a division of family or non-family assets?”

[ 18 ] Also relevant to the case at bar are ss. 2(1) and (4) of the Family Property and Support Act . Those subsections state: “2(1) Except as otherwise provided by this Act, if a marriage contract or separation agreement makes provision in respect of a matter that is provided for in this Act, the contract prevails . …

(4) Despite subsection (1), if a court is satisfied in any proceedings under this Act that a person has, through undue influence , secured the agreement of their spouse or a person with whom they are cohabiting to any provision in a domestic contract, a court may decline to give effect to the provision for the benefit of the person who secured the agreement.” (my emphasis) [ 19 ] In the case at bar, it is difficult to ascertain precisely why the mother is seeking special leave and why she is asserting undue influence.

In her affidavit #7, filed on July 17, 2013, she made several allegations purportedly relating to this issue. She repeated many of these allegations in her affidavit #10, filed October 11, 2013. However, the mother then filed an amended affidavit #9, on November 14, 2013, in which several of those allegations were crossed out.

Nevertheless, she referred to them in her oral submissions at the hearing before me. [ 20 ] In her affidavit #7, the mother complained about the fact that, when she signed the Separation Agreement and the Consent Divorce Order, the father had relied upon T4 statements for the previous three years, and a recent pay stub, to verify his income for 2010, which was noted to be $56,368. The mother now says that it was only brought to her attention during the trial last May that the T4’s were not an accurate representation of the father’s income because they did not include his rental income from the two mobile homes.

She also points to the fact that the father’s Notice of Assessment from the Canada Revenue Agency (“CRA”) for 2010 (attached to his Financial Statement filed September 6, 2013) shows that his total income for 2010 was in fact $84,626, an increase of $28,258 or roughly 50%. [ 21 ] In her affidavit #7, the mother also complained that the City of Whitehorse tax assessment values for the two mobile homes in the Separation Agreement and the Consent Divorce Order did not reflect their fair market value.

In that affidavit, the mother suggested that father had dishonestly used a realtor “friend” to suggest to the mother at the time that one of the mobile homes had “no value”. [ 22 ] The mother further complained that when she signed the Separation Agreement and Consent Divorce Order, the witness to her signature, Sharon Kerr, a clerk of this Court, was also a former friend from the Jehovah’s Witness Church, which the mother had attended in the past. As I understand it, following the separation, the mother stopped attending that Church and has since been shunned by the congregation.

Consequently, the mother said she felt stressed, confused and intimidated when signing the documents in Ms. Kerr’s presence, since Ms. Kerr is still a member of that Church. The mother claimed that the father had previously arranged for Ms.

Kerr to act as a witness in order to cover his deceit regarding the value of the mobile homes and his income. [ 23 ] However, in her amended affidavit # 9, filed November 14, 2013, the mother crossed out paragraphs 5 through 8, which included, in part, allegations relating to the issue of the father’s income, and all of the allegations relating to the value of mobile homes, the involvement of the realtor, and the signing of the documents before Ms.

Kerr. [ 24 ] In his affidavit #8, filed August 9, 2013, the father has included an email he sent to the mother on March 25, 2010, which was apparently the beginning of the negotiations between the parties on the terms of the Separation Agreement and Consent Divorce Order. In that email he proposes joint custody with equal access, “zero” child support by either party, and “zero” spousal support. He also proposes to retain the mobile homes, his tools and the family debt. The mother was to retain the X-Terra motor vehicle, the couch set, kitchen equipment and household items, but none of the family debt.

Towards the end of the email the father stated: “Please respond with your agreement or your alterations as soon as you are able. I desire us to be as amicable as possible [without] too much delay.” [ 25 ] In her email response the following day, the mother stated: “What I have set out is only reasonable and I am firm on my counter.” The father’s reply that same day was followed by the mother’s on March 27, 2010 referring to her “stand” on the issue of custody.

In neither of the mother’s emails did she oppose the proposed property settlement or the non-payment of child and spousal support. [ 26 ] The tone of this email exchange does not suggest that the father and mother had unequal bargaining power. Nor does it suggest that the father was taking unfair advantage of the mother. [ 27 ] While the father did indeed rely on T4 statements as evidence of his income, the mother did also. Prior to the Consent Divorce Order, each party signed a document entitled “Agreement as to Annual Income and Amount of Child Support”.

The father’s was dated April 1, 2010 and is signed by both parties. The mother’s was dated April 6, 2010, indicating an income of $44,934.24, and is also signed by both parties. The mother used T4 statements for the three previous calendar years, as well as a recent pay statement from her employer, as evidence of her then income. Thus, both parties relied upon such information and agreed upon each other’s respective incomes. It is noteworthy that, as these statements were signed in April, the prospective income values were necessarily estimates.

Indeed, the father’s document specifically stated that his income could “be higher depending on overtime hours worked.” [ 28 ] Further, the mother’s claim that she did not know the father’s income included rental income is not tenable. The mother’s 2008

CRA Tax Assessment includes an amount for “net rental income”. At the hearing before me, the mother agreed that this was because the parties historically split the rental income from the two mobile homes for tax purposes. Therefore, the mother had to have known that the father had rental income over and above what was reflected on his T4 statements. [ 29 ] The mother also conceded at the hearing that she had knowledge of the father’s actual income over the years prior to 2010. For example, the father’s T4 for 2009 indicated employment income of $61,000, approximately $4,600 more than what he estimated for 2010.

Similarly, his T4 for 2007 showed employment income of $59,730.51, which was $3,362.51 higher than his 2010 estimate. [ 30 ] Considering all of these circumstances, it is difficult to accept the mother’s suggestion that she was somehow unfairly taken advantage of in the negotiations leading up to the Separation Agreement and Consent Divorce Order in relation to the issue of the father’s income.

However, I will return to this issue when I deal with the question of child support. [ 31 ] On the question of the value of the mobile homes, the father has included bills of sale for the respective units in his affidavit #8. As I noted earlier, these indicate that Unit 29 was purchased in 2000 for $10,000, and Unit 14 in 2001 for $11,000. Further, the father included a comparative market analysis for Unit 14, prepared by a realtor, Karol Campbell, which was dated September 25, 2009. In that analysis, Ms.

Campbell stated: “The mobile is in need of extensive repairs, including roof, furnace, flooring, electrical, interior walls, and bathroom area. The oil tank appears to need replacing, as well the skirting around the mobile need some serious attention. I would suggest the mobile be sold as is, due to the amount of work that is required.” In the result, she suggested that the appropriate selling price should range from $20,000-$25,000.

It is interesting to note that the bottom end of that range is not significantly higher than the tax assessment value of $18,290 specified by the City of Whitehorse in the Property Tax Notice attached to the father’s Affidavit for Divorce Order, filed April 1, 2010. [ 32 ] On July 29, 2013, the father sold Unit 14 to a company owned by his parents for $47,000.

Since that transaction took place over three years after the property settlement and was not at arms-length, the value attributed to Unit 14 in 2013 does not necessarily reflect what it was worth in 2010. [ 33 ] The mother’s evidence on this point included the following statement at paras. 6 and 8, in her affidavit #10: “6. I understand the market value in 2008 for a mobile home in need of repair was between $80,000 to $100,000. … 8.

I am asking the courts to grant me half the division of assets from the market value when I left in September 2008 $180,000, $90,000 to the plaintiff [and] $90,000 to me.” The problem with these values is that the mother has provided no objective independent evidence in support of them, nor any rationale in justification. Rather, they appear to be quite arbitrary. Accordingly, I cannot give them any weight. [ 34 ] It must also be remembered that the father paid in full for both properties before the marriage.

Therefore, it is not a foregone conclusion that the mother would necessarily have shared in the value of the properties at the time of separation, even if the parties had not come to the agreement they did.

Further, while the father ultimately negotiated the retention of these units, it is significant that he also agreed to take on all of the family debt of approximately $28,500. [ 35 ] As for the mother’s allegations regarding the realtor, she stated in her affidavit #10: “The plaintiff hired a real estate friend, Carroll [as written] Campbell, to tell me the mobile homes [as written] had no value.” The father disputed that Ms. Campbell was a friend, although he conceded that she had done some previous real estate work for his parents. In any event, the comparative market analysis done by Ms.

Campbell speaks for itself. It is a professional and objective document and it does not state that the mobile homes had “no value”. Rather, it was only with respect to one unit, #14, and it attributed a value to that unit of $20-$25,000. [ 36 ] With respect to the mother’s allegations regarding Sharon Kerr, the father deposed as follows in his affidavit #8: “…I did not prearrange with Ms. Kerr to sign the documents... Ms. Kerr is employed by the Government of Yukon and works at the Court Registry. As I recall, Ms. Kerr was serving the counter when the Defendant and I entered the Court Registry on April 1, 2010.

Ms. Kerr took us into a side office and before we did anything, she asked us if there was any concern with her notarizing the documents because she knew us. I recall that both the Defendant and I said that there were no issues and we executed the documents and Ms. Kerr notarized them.” [ 37 ] While it is always difficult to deal with contested facts in affidavits when there has been no testing by cross-examination, I find the father’s version to be much more likely. As a notary public and an officer of the Court, I have great difficulty accepting the mother’s apparent suggestion that Ms.

Kerr somehow conspired with the father to witness the signing of the settlement documents in a manner that allowed the father to gain a tactical advantage. Rather, it is more consistent that, being cognizant of her professional duties and responsibilities, Ms. Kerr would have asked each of the parties if there were any concerns with her acting as a witness, since she also

knew them personally. This, of course, is precisely what the father deposed to. Once again, I can give little or no weight to the mother’s allegations in this regard. [ 38 ] It is also noteworthy here that on April 1, 2010, the mother swore two affidavits, one for each of the mobile homes, expressly acknowledging that she had signed a Separation Agreement and had relinquished any and all interest in each of them.

Thus, the question of her potential interest in the units and their respective values was squarely brought to her attention at the time of the settlement. [ 39 ] Finally on this point, and very significantly, the mother conceded in the hearing that nothing prevented her from attempting to obtain some legal advice or information before signing the Separation Agreement and the Consent Divorce Order. This was despite the fact that she has sworn she was “uneasy” about signing the Consent Divorce Order as she believed it was “unfair” (affidavit # 10, para. 11).

In her oral submissions, the mother complained that she had already spent approximately $20,000 in legal fees to that point (which seems like an exaggeration, given the limited activity on the Court file between the separation in 2008 and the divorce in 2010) and did not want to spend any more money on legal advice. Nevertheless, the mother appeared to concede at the hearing that it probably would have taken less than an hour of a lawyer’s time to review the documents. [ 40 ] In the result, I conclude that the mother has not met the stringent onus for obtaining special leave.

Nor has she established undue influence with respect to the Settlement Agreement. Referring back to the considerations listed by Veale J. in Ngeruka , cited above, I find: 1) the mother had an opportunity to obtain legal advice before signing the settlement documents; 2) there is no credible evidence of any oppression, duress, undue influence, unconscionability or vulnerability in the negotiations or the proceedings; and 3) there is no credible evidence of unequal bargaining power between the parties.

Rather, I am of the view that, while the Settlement Agreement and the Consent Divorce Order may not have been a perfect deal, the parties both knew what they were signing and chose this settlement as a better and final resolution than arguing about the matter in court.

As Veale J. stated in Ngeruka at para. 48 : “Changing one’s mind or being advised that a separation agreement may not be the best deal that could be negotiated [is] not a basis for granting special leave.” REOPENING SPOUSAL SUPPORT [ 41 ] Once again, the parties agreed early in their negotiations and ultimately in the Separation Agreement not to seek spousal support from one another. Indeed, the two paragraphs dealing with this issue were the only ones of all the provisions in the agreement which were headlined in bold and underlined as “ Spousal Support ”.

Further, clause 8 of the Consent Divorce Order states: “The parties agree not to pay spousal support to each other”. [ 42 ] A threshold issue here is whether the mother has met her onus of establishing “undue influence” under s. 2(4) of the Act . If she fails in that regard, then “the contract (i.e. the Settlement Agreement) prevails” pursuant to s. 2(1) .

The issue of special leave under s. 15(2) of the Act does not apply, as it is only engaged in applications to do with “family assets or other property”. [ 43 ] Miglin , cited above, was an appeal concerning the proper approach to determining an application for spousal support under the Divorce Act where the spouses had executed a separation agreement releasing any future claim for spousal support.

The Court held that a fairly negotiated agreement that represents the intentions and expectations of the parties and complies substantially with the objectives of the Divorce Act should receive considerable weight (para. 4). In determining whether the circumstances of the negotiation of the separation agreement were fair, the court looks to whether one party was vulnerable and whether the other party took advantage of that vulnerability (para. 4) [ 44 ] The objectives of the Divorce Act with respect to spousal support are set out in s. 15.2(6) : “

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.” [ 45 ] In the case at bar, I have already addressed the circumstances of the negotiation leading to the Separation Agreement and the Consent Divorce Order. Suffice it to say that I am satisfied those negotiations were fair. The mother was not demonstrably vulnerable and the father did not attempt to take advantage of her.

Accordingly, to use the language in Miglin at para. 83 , this Court “should be loathe to interfere” with the settlement established by those documents. [ 46 ] However, according to Miglin , even if I am satisfied that the conditions under which the Separation Agreement was negotiated were satisfactory, I must still examine the substance of the Agreement to determine the extent to which it takes into account the factors

and objectives listed in the Act , thereby reflecting an equitable sharing of the economic consequences of the marriage and its breakdown (para. 84). Miglin holds that only a “significant” departure from the general objectives of the Act will justify intervention by the courts (para. 84). [ 47 ] Here, the mother once again relies upon her professed ignorance of the father’s real income in the years following the separation and asserts that she is entitled to spousal support “as our incomes and cost of living were so different” (affidavit #10, para. 5).

The mother has further deposed: “I am seeking the support order as I have had a huge economic disadvantage resulting from the divorce. During the course of our marriage all of our extra time, energy and resources went into providing the plaintiff with education and tools needed for his trade in addition to maintaining our rental properties… I worked for family and cared for our daughter and did not pursue any education for a [career] of my own.” [ 48 ] On the other hand, the father’s counsel argued that there was no significant economic imbalance between the parties during the marriage.

They were both in their early 20’s when they married and each was employed full-time until K.’s birth in 2006. [ 49 ] Further, the father has deposed that, at one point during the marriage, he supported the mother in enrolling in an apprentice hairdressing program. On another occasion the father deposed that he encouraged the mother to enrol in some accounting courses so that she could better assist her father when she worked for him in his business.

Neither of these points were contested by the mother. [ 50 ] Finally on this point, the father expressly addressed the mother’s suggestion that she was economically disadvantaged from the divorce by detailing the nature of his trades’ education and how that was paid for. This account contradicts the mother’s assertion that “all” her energies went into assuring the father’s success in his trades’ training, ultimately to her economic disadvantage.

Once again, while it is difficult to make credibility assessments on the basis of affidavit material when there has been no cross-examination, I prefer the detailed allegations of the father to the vague and unsubstantiated assertions of mother. In particular, I was impressed by paras. 50 through 58 of the father’s affidavit #8. For example, it appears that the father completed his journeyperson qualification in carpentry before the couple were even married. Because of the importance of these allegations to my decision on this point, I will set them out in full here: “50.

Regarding my education, I started a carpentry apprenticeship when I was 16 years old and by the time I was 17 I was working full time as a carpenter apprentice. I knew that I wanted to be in the construction industry and worked in many different companies. 51. I started with [name of business] in February 1999 prior to [marrying] the Defendant. In March 2000 I started the Journey Person Welding Apprenticeship Program. 52. I did take extra schooling to become a Journey Person Welder and successfully completed this course. I started the program in the Yukon by challenging the first year Journey Person exam.

For the second and third years I was required to attend the Northern Alberta Institute of Technology in Edmonton, Alberta. Each of the two school years I was required to do to Alberta once. Each schooling session in Alberta was six weeks in duration. 53. When I attended the third and final six week session in Alberta I also took a B-Pressure pipe welding course, which I successfully passed. This course cost just under $1000.00. I received the money to pay for this course from my parents from a payment plan I had had with them since I was 13 years old and found this to be the occasion to use the money. 54.

My course tuition, travel and time away from work for the above described schooling was sponsored through the Yukon Government Grants and the Employment Benefits through Government of Canada. 55. When I was not in school I was employed full time and so there was no time that the Defendant was required to be the sole person responsible for the family expenses. 56. When I went to Alberta the Defendant came with me each time for 3 weeks. Both trips to Alberta were at very little cost to the family income as we stayed with family friends, free of charge both times. 57.

I did also start a Pipe Fitters Apprenticeship and challenged the first year and passed, this did not cost anything. 58. The two major expenses for tools were purchased with money that earned as extra income and money received

through the International United Association Competition.” [ 51 ] In the result, the mother has not met her onus in persuading me that the mutual waiver of spousal support in the Separation Agreement and the Consent Divorce Order, in all of the circumstances, constitutes a significant departure from the general objectives of the Divorce Act provisions relating to that issue. Rather, I prefer to respect the equally important objectives of “finality and certainty”, given that the parties have sought to determine their own affairs in this regard.

As the Supreme Court stated in Miglin , at para. 91 : “The objectives of finality and uncertainty noted above caution against too broad a discretion in varying an order that the parties have been relying on in arranging their affairs.” Accordingly, this aspect of the mother’s application is dismissed. CHILD SUPPORT Base Table Amount [ 52 ] The mother seeks child support retroactive to the date of separation, i.e. September 15, 2008. The father does not oppose child support on a prospective basis, and acknowledges that child support is K.’s right.

However, he does oppose retroactive child support because of the mother’s delay and lack of diligence in pursuing this claim. If there is to be retroactive child support, the father says that it should not begin before July 13, 2013, as that was the date the mother filed her Notice of Application in this matter. [ 53 ] This issue is largely governed by the principles in the leading case of D.B.S. v. S.R.G. , 2006 SCC 37 (“ D.B.S. ”).

At para. 38, the Supreme Court stated that one of the “core principles” is that child support is the right of the child and survives the breakdown of the marriage of the child’s parents.

Further, child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together, although the specific amounts payable will vary with the income of the payor parent. [ 54 ] Because child support is the right of the child, the Consent Divorce Order should be no impediment to reconsidering this issue, since the parties cannot agree to deprive the child of something which is the child’s right.

On the other hand, the existence of a previous agreement or court order stating that child support was not payable is a factor to take into account in determining whether a retroactive order should be made ( D.B.S. , at para. 108 ). Further, unlike prospective child support awards, retroactive child support implicates “the delicate balance between certainty and flexibility in this area of the law” ( D.B.S. , at para. 2 ). In addressing that balance, courts must have regard to any unreasonable delay by the recipient parent in seeking the support, as well as any blameworthy conduct by the payor parent.

As the majority stated in D.B.S. , at para. 5 : “… A modern approach compels consideration of all relevant factors in order to determine whether a retroactive award is appropriate in the circumstances. Thus, while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases either. Unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect.

Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility.” (my emphasis) [ 55 ] The mother’s main point here is again to do with the father’s underestimation of his income at the time of the settlement in 2010.

I have already observed that his estimate in his Agreement as to Annual Income and Amount of Child Support, dated April 1, 2010, was $56,368, which the father allowed could “be higher depending on overtime hours worked.” Attached to that estimate were T4 statements from 2007, 2008 and 2009, as well as a pay stub from his employer for the pay period ending March 13, 2010. I assume the estimate was principally based on this pay stub. However, as it turned out, the father actually earned a total of $84,626 in 2010, according to his CRA Notice of Assessment for that year.

That constitutes a very significant increase of almost 50% more than his estimate in April 2010. However, the relevant question which arises from that fact is: What impact should this increase have on the issue of retroactivity? [ 56 ] On the one hand, D.B.S. suggests that the father was, until now, entitled to rely upon the certainty of the Consent Divorce Order, which specified that neither party would seek child support from the other when K. was in their custody.

Further, there was no requirement in the Order for ongoing financial disclosure, which explains the mother’s evidence, as I understand it, that she was unaware of the actual amount of the father’s 2010 income until the trial last May. On the other hand, D.B.S. holds that anything that privileges the payor parent’s own interests over his child’s right to an appropriate amount of support can be characterized as “blameworthy conduct” (para. 106). In other words, as I read the decision, a payor parent should generally not be allowed to profit from nondisclosure of a revised ability to pay (para. 107).

That said, this entire area of what might constitute blameworthy conduct becomes more complex because of the subjectivity of the analysis. This is recognized by the majority at para. 108: “ On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy.

For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. …Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order.

However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.”

[ 57 ] The other significant factor in determining whether a retroactive child support order is appropriate is if there has been delay by the recipient parent in pursuing the issue. D.B.S. holds that the date on which the recipient parent gave “effective notice” to the payor parent of his or her intention to seek child support can generally be regarded as the date when the retroactive payments should begin (para. 5). “Effective notice” refers to “any indication by the recipient parent the child support should be paid” (para. 121). Legal action need not be taken.

Rather, “all that is required is that the topic be broached” (para. 121). “Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/ her interest in certainty becomes less compelling” (para. 121). [ 58 ] However, D.B.S. also holds that even if effective notice has been given, it will usually be inappropriate to delve too far into the past. The majority observed that the federal child support guideline regime limits a recipient parent’s request for historical financial information to a three-year period.

Accordingly, the majority held that “it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent” (para. 123). It does not appear that the majority made any distinction here between “formal notice” and “effective notice” in suggesting that guideline. [ 59 ] With respect to effective notice, the mother’s then-counsel wrote to the father on April 4, 2012 requesting certain financial information and indicating that the mother was considering raising the issue of child support.

Arguably, this letter could constitute effective notice by the mother. The problem is that the mother seemingly took no steps to follow up on the matter in a diligent fashion. As I said earlier, the mother’s first Notice of Application which sought, among other things, child support and the sharing of special or extraordinary expenses was not filed until December 10, 2012. Further, when that application was heard, the mother expressly asked for the child support component to be adjourned. In addition, when the trial took place in May of this year before Davies J., he observed, at para. 27 ( B.B.B. v.

A.E.B ., 2013 YKSC 43 ): “Paragraphs 4 and 5 of [the mother’s] cross-application that were adjourned [on December 12, 2012] concerned [the father’s] potential liability for basic child support obligations under the Guidelines as well as extraordinary expense issues. Those issues were not brought forward at this trial and no evidence was led that would allow me to determine them.” The mother has failed to explain, then or now, why that was the case.

Finally, the mother did not file her Notice of Application in the within matter, again pursuing the issue of child support, until July 17, 2013. [ 60 ] The majority in D.B.S. addressed the question of delay by the recipient parent at para. 123: “ Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated .

While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent's reasonable interest in certainty has returned…” (my emphasis) [ 61 ] A final consideration in determining date of retroactivity is whether a retroactive award of child support will cause “undue hardship” to the payor parent ( D.B.S. , at para. 129 ). The further back in time an award is made, the greater the quantum which could immediately become due and payable by the payor parent.

In this regard, the father has provided evidence that he started his own business July 2013, although he continues to be employed part-time with his former employer. Because of this change in status, the father has deposed that the new business will take time to get established.

Accordingly, he expects that his Guideline income for 2013 will drop from what it was in his 2012 tax return, i.e. $93,931, to approximately $67,000. [ 62 ] Regardless of whether and to what date an award should be retroactive, because the parties are equally sharing custody of K. and their respective residential time with her, s. 9 of the Child Sport Guidelines will apply.

In this jurisdiction, that has generally meant that the child support is payable by the parent with the greater income, after being set off against the notional table amount of child support the recipient parent would pay to the payor parent. [ 63 ] As I noted earlier in these reasons, the mother is currently on an unpaid leave of absence from her employment. Unfortunately, the mother’s evidence of why this is the case is vague and unsubstantiated.

In her affidavit #9, at para. 4, she deposed: “I am currently on stress leave without pay from my place of employment and do not anticipate being back for quite some time if at all. I am using this time to care for our daughter and focus on her emotional and intellectual needs in addition to mine. I am completely overwhelmed trying to cope with present and previous stress from my workplace and what the defendant has incurred in my life since our separation.

Due to multiple factors I will be staying home to care for our daughter [K.] for an unknown period of time.” When I pressed the mother on this point during her oral submissions, she explained that she was ordered by her doctor to go on stress leave this past August, and that she is scheduled to have a review of the issue with some medical professionals in January 2014. When I asked why the mother did not tender any evidence from her doctor to objectively substantiate the validity of this leave of absence, the mother indicated she was concerned about privacy issues. I do not accept that explanation.

I expect that it would have been relatively easy for the mother to have obtained from her doctor a short note verifying the need for the leave, without violating doctor-patient confidentiality or revealing any issues which the mother may have with her employer. [ 64 ] According to the CRA Tax Assessments in the mother’s Financial Statement filed September 5, 2013, her gross annual income in 2010 was $48,416, and in 2011 it was $47,310. In 2012, her total income dropped to $20,659.

In her oral submissions, the mother explained that the drop in 2012 was due to discovering that K. had learning issues and that she had opted to take time off work to pick K. up after school. Once again, none of this was in the mother’s evidence. Further, the mother informed me that she expects her income

will drop again in 2013 because of the stress she is under and her current unpaid leave of absence. At the present time, the mother said she has no income whatsoever and is currently living off of her savings. However, she has been residing with her current common-law partner since December 2011, and I note from her statement of monthly expenses in her sworn Financial Statement of September 5, 2013, that she has no housing expenses at all. I assume that this is because her common-law partner has taken the responsibility for those expenses.

In any event, little or none of this information was included in the mother’s evidence, and to the extent that it was, there was no objective independent confirmation of its validity. [ 65 ] The father’s counsel objected to the lack of such independent evidence from the mother to explain her present financial circumstances. Accordingly, counsel submitted that the mother is presently intentionally under-employed and that income should be imputed to her pursuant to s.19 of the Guidelines .

Counsel noted that, according to the mother’s Financial Statement, she was apparently employed as the “Executive Administrator” to the Chief Executive Officer of her employer when she went on her leave of absence. The implicit suggestion here is that the mother has demonstrated that she is capable of working in high-level and sensitive positions.

That inference, combined with what the mother has been able to earn in previous years, caused counsel to suggest that her present gross annual income should be imputed at $50,000. [ 66 ] I am generally sympathetic to the father’s concerns about the mother’s present financial circumstances. While I can certainly understand that this ongoing court action has been stressful for the mother, such stress is all too often unfortunately inherent in high conflict family litigation, especially when it involves young children.

I am also mindful of the fact that the mother is presently self- represented, and that this no doubt has added to her general level of stress. Nevertheless, that should not be seen as an excuse or an opportunity to gain a tactical advantage on the father. Further, the mother should not benefit by her lack of diligence in providing proper evidence to this Court.

Indeed, given the apparent importance of these financial issues to the mother and the volume of affidavit material which she has provided, I would have expected her to have taken greater care in providing the necessary direct evidence on many of these contested points, as well as appropriate independent corroborative evidence, as required. [ 67 ] For all these reasons, I am imputing a gross annual income of $45,000 to the mother for the current year.

That would result in a notional table amount of child support payable to the father of $412 monthly. [ 68 ] The father’s counsel has suggested that the father’s gross income for 2013 should be rounded up to $67,000, which would result in a notional table amount of $621 monthly. [ 69 ] Pursuant to the set-off usually employed in circumstances of equally shared residential time, under s. 9 of the Guidelines, the net amount payable by the father to the mother will be $209 monthly. [ 70 ] I must next balance the failure of the father to disclose a significant increase in his income in the years from 2010 to 2012, from what he originally estimated in 2010, arguably “blameworthy conduct” under the D.B.S. principles, with the failure of the mother to diligently pursue child support after giving her initial effective notice in April 2012.

The complete absence of any explanation from the mother as to why she did not prosecute her legal action in that regard, before filing her Notice of Application on July 17, 2013, leads me to agree with the father’s counsel that that date should be the basis for determining the commencement of the retroactive child support.

Here I employ local common practice in selecting the first day of the month following the date on which notice is given of the intention to pursue child support, as the date on which child support payments will commence. [ 71 ] First, it is necessary to vacate para. 5 of the Consent Divorce Order, and I so order. Second, based upon the respective incomes which I have attributed to the parties, I order the father to pay child support of $209 per month for K., commencing August 1, 2013, and on the first day of each month following, until further order of this Court or an agreement in writing between the parties.

Third, I order that the child support order to be issued after these reasons are filed will be registered with the Maintenance Enforcement Program for administration and enforcement, if necessary. Lastly, I order that each party provide ongoing financial disclosure to the other party no later than June 1 st each year, including the items set out in s. 21 of the Guidelines , as appropriate, commencing June 1, 2014.

Special or Extraordinary Expenses [ 72 ] In his reasons for judgment following the trial last May, Davies J. generally agreed with the suggestion of the father’s then- counsel that the responsibility for organizing K.’s extracurricular activities would be shared between the parties. However, Davies J. also ordered that, in the event agreement could not be reached on an extracurricular activity that would involve both parents’ time with K., the father would have the final decision-making power concerning such an activity in 2013, and in each subsequent odd-numbered year.

The mother will alternately have that same final decision-making power in 2014, and each subsequent even-numbered year (para. 77). [ 73 ] Notwithstanding this relatively clear direction, it appears that there continues to be friction between the parties in this area.

Consequently, I will attempt to make further directions to alleviate this friction as much as possible, with a view to maximizing K.’s best interests. [ 74 ] I begin by suggesting that the parties have a close look at s. 7 of the Child Support Guidelines, in order to better acquaint themselves with what kinds of expenses fall within the definition of special or extraordinary expenses. In

summary, they include: • child care; • health related expenses, including orthodontics, psychological counselling, prescription drugs and prescription glasses; • extraordinary expenses for school education or other educational programs;

• post-secondary education expenses; and • extraordinary expenses for extracurricular activities. [ 75 ] Pursuant to s. 7(2) of the Guidelines , any of these expenses which are incurred during K.’s time with both parents are to be shared in proportion to their respective incomes.

As the father’s current gross annual income is $67,000, and the mother’s imputed gross annual income is $45,000, the father will pay 60% of any such expenses and the mother will pay 40%. [ 76 ] A parent seeking reimbursement of an agreed-upon special or extraordinary expense on the 60/40 basis shall provide copies of the relevant receipt to the other parent within 30 days of the date of the receipt. The parent obliged to reimburse the other for such an expense must make payment within a further period of 30 days after receiving the receipt.

Here I would encourage each parent to scan copies of all relevant receipts and attach them to emails to the other party, so that there is an ongoing record and less confusion in this regard. [ 77 ] Should the parent who does not have final decision-making power in a given year incur any special or extraordinary expenses without the prior written agreement of the other parent who has final decision-making power in that year, then the parent incurring that expense will not be entitled to reimbursement on the 60/40 basis. [ 78 ] Should a parent incur a special or extraordinary expense for K. for a matter or activity which occurs exclusively during that parent’s residential time with .K, then that parent shall be solely responsible for the expense. [ 79 ] Should there be any further disputes between the parties in this area, I would invite them to ask the Trial Coordinator to arrange a Family Law Case Conference for the purpose of attempting to resolve the dispute, rather than being required to bring a further court application. [ 80 ] As I understood paragraph 6 of the Consent Divorce Order, it was intended to refer to special or extraordinary expenses.

Accordingly, since that provision has been replaced by the above orders, it will be vacated.

To the extent that para. 7 of the Consent Divorce Order also deals with extracurricular activities, that provision will be amended to read: “The parties agree that extra costs for holidays and vacations will be paid by the party that initiates those activities.” Child Tax Credit [ 81 ] I direct the father to provide the mother with appropriate written authorization, for the purpose of forwarding to CRA, indicating that for the tax year 2013, the mother will be entitled to claim the full child tax credit for K., and in the year 2014, the father will claim for that credit.

The authorization should further specify that in future odd-numbered years, the mother will continue to make this claim, and in future even-numbered years, the father will do so. This written authorization is to be provided to the mother within 30 days of the issuance of these reasons. Should either party seek further directions in this regard, they can request a further appearance before me in court or at a Family Law Case Conference. COSTS [ 82 ] As success on this application was divided between the parties, I order that each shall bear their own court costs.

ORDER [ 83 ] I direct the father’s counsel to draft the Order arising from these reasons. Should there be any uncertainty about settling the terms of the Order, either party can request a further appearance before me in court or at a Family Law Case Conference. ____________________ Gower J.