IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           In this case, the Applicant Mother, SLL(L), has made an Application to Change or Cancel an Order, seeking, in brief, a retroactive adjustment of child support from 2002, based on actual and imputed incomes as well as retroactive contributions for Section 7 expenses during the same period.  This Application was filed September 30, 2011. The Respondent Father, GRL, argues that the Court should not find the Applicant to be entitled to any retroactive orders given the circumstances of this case.

[2]           Before commencing the hearing and because of the volume of evidence in this matter, the parties agreed to divide the hearing into two parts: 

[3]           The Applicant (“the Mother”) and the Respondent (“the Father”) met in high school in June 1982.  They began living together in about 1984 and were married December 8, 1989.  They had two children, A born November 1, 1992 and C born July 19, 1995.  The parties separated at the end of 1999.  They had a fairly traditional marriage with the Mother staying home with the children while the Father worked long hours as a realtor.  At the time of separation, they owned the family home outright and had a second home with a mortgage that was used as a revenue property.  In early 1999, the Father encouraged the Mother to return to work in order to pay off the line of credit that they relied on to even out the income stream.  She obtained some part-time work which became full-time in March 1999.  As a result of stress from a conflict at work and with her doctor’s advice, she reduced this after a few months to one day per week only.  All of their income was used for family purposes.

[4]           Each of them eventually retained counsel and they signed a comprehensive Separation Agreement on June 8, 2001.  That Agreement was filed in Provincial Court on July 3, 2001 pursuant to Section 121 of the Family Relations Act, RSBC 1996, c. 128.  They subsequently divorced on May 6, 2002 and each party remarried some time later.  The Father separated from his second wife, in 2009 and they were later divorced.

[5]           The Separation Agreement was explicitly intended as a final settlement of all outstanding matters between the parties including the payment of child support, Section 7 expenses, and child access.  The Mother received sole custody and the parties shared joint guardianship.  Both parties expressly waived spousal support.

[6]           The preamble to the Separation Agreement indicated that the Father was a realtor earning approximately $75,000 per annum and the Mother was a receptionist earning approximately $14,600.  (In the Spring of 2000, she increased her work to two days per week, then in about September 2000 to four days per week.)  In addition the parties received rental income from the two properties they owned.  Child support was calculated on the basis of a Guideline Income of $75,000, at $973 per month payable in equal instalments on the 1^st and 15^th of each month, commencing July 1, 2001.  Section 7 expenses were to be paid proportionately including the expenses of the children’s then current activities of “swimming, golf, hockey, tennis, soccer, and baseball”.  Neither party produced any financial information such as tax returns to substantiate their statement of their income and instead relied on their own beliefs.  Notably, no allowance was made in the case of the Father for the difference between his gross income as a realtor and his net, after business deductions, income.  As a result, for several years, by paying the amount in the Separation Agreement, the Father paid more than would have been required when calculated in terms of his actual income adjusted for allowable business expenses.  Ultimately his net business income did exceed $75,000.  However no adjustment in child support was made until February 2012, after the commencement of these proceedings, when he voluntarily increased his child support payments.

[7]           The Children, who were 7 and 4 at the time of separation, lived with the Mother in the former matrimonial home.  Initially the Father lived in a room in the rental property, sharing with their tenant, then moved in with his sister.  By the terms of the Separation Agreement, the Mother received the matrimonial home and the Father, the rental property.  Both parties began living with their new partners in 2003, the Mother with CL (“CL”) and the Father with KO (“KO”).  Both couples subsequently married.  All original properties were eventually sold as the parties moved on with their lives. 

[8]           The marriage had begun to break down some time before the actual separation.  Communication had become strained and the parties saw little of each other, in large part according to the Mother, because of the irregular hours of the Father’s work as a realtor.  The Father agreed he worked long and irregular hours but believed he was still at home for significant periods of time and that he had maintained a real involvement in the lives of the children.  The Father believed that the Mother permitted her mother to play too large a role in the family’s lives which he felt contributed to the erosion of the marriage.  In addition, the Father had commenced a relationship with KO a few months before the separation.

[9]           The access set out in the Separation Agreement (two afternoons per week until after supper, two weeks in the summer, half of spring break as well as some time Christmas Eve, Boxing Day, alternate Easter and Father’s Day) was never in fact followed.  According to the Father, his access was very spotty, particularly on the weekdays.  As well he never received the summer holidays or Easter access, and struggled to get some time at Christmas and Father’s Days.  In addition, he testified that the access he did get was typically already filled with other scheduled activities for the children.  So although he might attend with them, the opportunity for interaction was very limited.  In addition, the nature of his business as a realtor impinged on his ability to maintain a fixed schedule.  Although there was some flexibility provided, he was unable to make up for all missed visits.

[10]        He also testified to a very poor relationship with the maternal Grandmother, (“B”).  It had been poor even before the separation and was exacerbated after separation, when she spoke rudely and disparagingly to him in front of the children.  As a result, even the scheduled visits were substantially interfered with by B who essentially refused to turn the children over to him when she had them in her care which included most access days after school.  In addition when he went to the children’s events to watch them during his visits, very often both the Mother and B would also attend with B approaching him and KO if she was with him.  B frequently spoke very rudely and aggressively, including making impolite hand gestures, towards him or them.  As a result he avoided such events to prevent the children from witnessing this behaviour.  The Mother did nothing to intervene.  When asked about B’s relationship with the Father after the separation, the Mother testified, “She was massively hurt by what he did to us”.  When asked if B disliked the Father intensely, the Mother replied, “I think it was fairly mutual.”  When asked about B’s behaviour during assorted encounters including facilitating the after-school access, the Mother repeatedly stated she could not remember; that it was just too long ago. 

[11]        These observations were corroborated by KO who described the impact of these behaviours on the children.  According to her, this continued for five to seven years.  She testified that the Father had had a good relationship with the children, but that this worsened in direct response to the challenges presented by B and the Mother as they repeatedly negatively interfered with and interrupted the Father’s visits. 

[12]        Given the quantity of detailed information that she does recall, I do not accept the Mother’s evidence that she does not remember these events.  I am satisfied that she was well aware of her mother’s behaviour and constant interference.

[13]         On the other hand, the Mother described the Father as being very unreliable in exercising his access, often though not necessarily because of apparent work commitments.  As such, although she said she would try to accommodate his requests for changes, the visits generally did not occur.  She denied being aware of her mother’s refusal to accommodate the Father’s weekday access or of her unacceptable behaviour toward the Father at sporting events or in the community.  Again, as stated above, I do not accept her evidence in this regard.

[14]        The Father’s actual access to the children continued to diminish and then stopped by the end of 2003.  Finally in early 2004, the Father, with the assistance of the Mother, engaged a psychologist, Nancy Michel, “for the purpose of understanding and resolving [the] estrangement between the children and their father.”  [Report from Nancy Michel, July 15, 2004]  She met with all members of the family including CL and B (but not KO at the Mother’s and B’s insistence) over a total of 23 sessions. 

[15]        According to the Report, the Mother described the children as being resistant to seeing their father culminating in early January 2004, with A refusing to see her father at all.  The Mother also believed that the children felt displaced by the Father’s relationship with KO and her children and she acknowledged the significant animosity between the Father and B.  On the other hand, she said that they had a positive relationship with her new partner, CL.

[16]        Similarly, the Father outlined that the limited access time that he had initially agreed to had been because he had nowhere for the children to spend the night with him when he first moved out and at his sister’s home.  Once he obtained suitable quarters which could accommodate overnights, the children seldom came.  He believed that many of the difficulties were created by B and the Mother, reinforcing the ideas that he had abandoned them, did not love them and was untrustworthy.

[17]        At the time that counselling started, both children were maintaining a high degree of resistance to reconnecting with their father.  After about two months, C began to engage somewhat but it took the Mother’s intervention to bring him around to working more cooperatively with his father.  It took nearly three months longer for A to meet again with her father.  It was apparent to the psychologist that the children were having difficulty “reconciling their relationships with both sides of the family”.  In reviewing the family dynamic, she noted that, “It is important to acknowledge that elements of the children’s behaviour are not inconsistent with a pattern of parental alienation….”  A number of specific symptoms were detailed supporting this opinion.  A plan was developed to reinforce the reconnection of the children with their Father, and then to enlarge that to include the new stepmother, KO, and her children.  Other advice was given to improve communication between the Mother and the Father. 

[18]        This counselling and the written report were paid for in their entirety by the Father, in the amount of $2,690.

[19]        Notwithstanding the plan put into place by the counsellor, the situation regarding access did not change significantly.  No other orders were sought nor were any other access agreements ever reached. 

[20]        Throughout her evidence, the Mother refused to provide any latitude regarding the children’s relationship with KO.  She had no recollection of the children having any sort of positive relationship with her, and it seems clear that she continued to project her antipathy of KO onto the children.  She seems to have also been supported in this by her mother, B.  This contrasts with the evidence of the Father and KO herself who testified on behalf of the Father, notwithstanding their divorce.  According to them, the children had developed a positive relationship with KO; however, they were strongly discouraged in it by the actions of the Mother.  For example, on one occasion they made a gingerbread house with KO and took it home to show their mother.  She threw it in the garbage.  They did not take anything else home again after that to avoid any further conflict.  As a result, they were increasingly separated from their Father and his new family by the Mother.  Numerous requests were made by the Father to the Mother to have the children accompany him on vacations, but very few invitations were accepted until the children were much older and could accept on their own.  Currently the Father has a good relationship with C, seeing him about twice weekly as arranged between them.  Unfortunately, his relationship with A continues to be strained.

[21]        A is now 21 having completed her studies to become a registered massage therapist after graduating from high school in 2010.  C is 18 (turning 19 in July 2014) and is attending Douglas College after graduating from high school in 2013.  Both children continue to reside with their mother.  It is agreed that A is no longer a “child of the marriage” by definition, but that C will continue to be so past his 19^th birthday as long as he continues his studies.

[22]        The Separation Agreement states, at paragraph 9:

[23]        The earliest document filed as evidence in this hearing regarding child support is an email apparently dated April 5, 2005.  It appears to be in response to an email from the Father to the Mother requesting vacation time with the children and confirming the Mother’s vacation plans.  In the email, the Mother explains why the children could not go on an earlier requested vacation with their Father which would mean missing school, notwithstanding her confirming her own plans to take them out of school for a week to vacation with her and their stepfather.  A tacit acknowledgment was made of the summer and spring break time that was supposed to be allocated to the Father, but no mention of his actually receiving that access.

[24]        Other comments in the email suggest that the Father had stated that if he did not have his access time that he would be speaking with a lawyer.  In response to that, the Mother raised the issue of his obligation to pay for extraordinary expenses and requested his income tax returns from 2001 to 2004.

[25]        The next mention of these matters is in a letter dated September 2, 2005 signed by the Mother referring to a letter of the Father dated August 16, 2005.  It is clear from the contents of the letter that the Father had again written about access, requesting changes to the Separation Agreement.  The September 2, 2005 letter which I believe was in fact written by CL with the Mother’s approval, resolutely links any possible changes in access to financial disclosure.  The tone of the letter is anything but a negotiation regarding access.  It is imperative and dictatorial regarding both the children and financial matters.  This is evident in the second paragraph as follows:

[26]        A similar letter was sent, dated September 11, 2005, by CL on behalf of the Mother to a lawyer whom the Father had consulted.  This letter set out more background between the parties including referring very negatively to KO – in complete contradiction of the plan that had been devised by the psychologist just one year earlier to help reconnect the children with their father.  This letter included the paragraph:

[27]        The letter ended with the admonishment, “Should I do [sic] not hear from you within the given period, it would be my intention to pursue these matters thought [sic] the various legal remedies available.”

[28]        A further letter signed by the Mother was filed, dated September 18, 2005.  This was also addressed to the Father’s lawyer, and restated the Mother’s intention to allow access only as in the Separation Agreement. It is indicative of the Mother’s state of mind that in offering a compromise to change the access to non-activity dates, she would do so only on the following conditions:

[29]        This letter also contains the following paragraph:

[30]        It must be remembered that during all of this time, child support payments as set out in the Separation Agreement were being paid regularly although sometimes late in which case interest was also paid.  None was ultimately missed.  The difficulty in timeliness was explained by the Father as resulting from the erratic nature of the payments he received as a realtor and his inability to always have the money available to pay precisely as scheduled.  The evidence from both parties was clear that this was also the situation when the parties were together and their reason for maintaining a line of credit.  The Father was also paying for some special expenses.

[31]        Upon receipt of these letters, the Father discussed the requests for disclosure with counsel and was advised that in the event an action was begun, he would be required to provide it at that time.  As no action was begun, he believed these emails essentially to be threats to intimidate him into not pursuing either custody of or increased access time with the children.  As he could not afford legal action, he “backed down” (in his words).

[32]        Nothing further was done by either party after this correspondence for several years.  The Father stopped pursuing additional time with the children and the Mother (through CL primarily) stopped her requests for tax returns.  As CL testified, “It was not our intention to take legal action.”

[33]        Nonetheless, during this time, the parties maintained some communication including meeting to discuss the purchase of investment property by the Mother and CL using the Father as realtor.  As well, the Mother and Father discussed various extraordinary expenses including driving lessons, advanced education, and graduation expenses for both children, as well as a school trip to Europe for A.  The Father’s contribution to these expenses will be discussed below.

[34]        In fact, no further steps were taken until September 30, 2011 when the Mother filed an Application in this court to retroactively vary the child support by imputing additional income to the Father as well as to obtain further contributions from the Father for certain Section 7 expenses, again retroactively.  (An Application had been filed in Supreme Court in August, however that was not the correct forum.)  The Father filed a Form 4 Financial Statement on November 22, 2011, with some attachments, however it was not complete.  Further documents were later disclosed after further specific requests.

[35]        On February 13, 2012 through counsel (at the time), the Father voluntarily increased child support for the children based on a guideline income of $100,000 to $1478 per month (payable semi-monthly), commencing March 15, 2012.  Further adjustments were made after that date for the two children as follows:  by April, 2012, $722 every half month ($1444/month); then from May, 2012 to March, 2013, $808.50 every half month ($1617/month).  The Father then stopped paying for A as she no longer qualified as a child of the marriage having graduated from college in January 2013.  The Father then made payments for C only, as follows:  April 2013 to July 2013, $520 every half month ($1040/month); then for  August 2013 a total of $1151; which increased September 2013 to $607.50 every half month ($1215/month), and finally beginning mid-November 2013, $625 per half month ($1250/month).  Some of these figures were based on Notices of Assessment; the last adjustment was voluntary.

[36]        It should be noted that CL is employed as a litigation assistant for a law firm in Vancouver.  As such, it is evident from his evidence that all demands for payment, financial information, etc. were prepared by him, with the Mother’s knowledge, including the September 2001 request for contribution to special expenses.  His involvement in these matters has continued from then up to now including preparation of all documents for this trial.  He has never been merely an interested bystander, but rather has been actively involved in all litigation steps.

[37]        The Separation Agreement provided for payment of Section 7 expenses in accordance with the Guidelines, adding, “Without limiting the generality of the foregoing, the Husband agrees to contribute proportionately to the children’s current activities of swimming, golf, hockey, tennis, soccer and baseball.”  In practice, whenever requests for contribution were made, the Mother requested a 50% contribution.

[38]        The Mother testified to requesting a contribution from the Father for special expenses as early as September 2001; however, he either did not respond or responded by saying that “he pays enough”.  CL confirmed this response in his testimony, adding that the Father also sometimes indicated that his income had decreased.  The Father testified that he never saw the September 2001 document before 2011, during this action.  Nonetheless, some of these expenses were expenses with which he disagreed and which he believed were simply unaffordable.  These included in particular the expenses related to synchronized swimming and Sylvan tutoring.  According to the Father, when the issue of tutoring for A was raised, he met with the teachers at school to find a more affordable alternative.  However when he met with the Mother and B shortly thereafter to tell them what he had learned, they had already signed A up for Sylvan at a much greater expense and without consulting him or obtaining his agreement.  When he asked Sylvan if he could see the contract, they refused to show it to him, so he never saw it.  Similarly with synchronized swimming, the Father disagreed with the cost and did not agree to pay for it.  The Mother indicated that she would go ahead with it anyway, with her mother’s financial assistance.  I do not accept that “swimming” in the Separation Agreement referred to the substantial costs associated with synchronized swimming.

[39]        Other items claimed as special expenses in the September 2001 list, in addition to Sylvan and synchronized swimming, include school pictures, lacrosse, and school supplies totalling $472.63. A portion of all other school expenses are also claimed, including “hot food days”.

[40]        In her evidence the Mother acknowledged that the Father in fact contributed to some of the children’s sports expenses throughout the years, in particular soccer and basketball, often by paying cash.  In addition, he coached soccer for a season and lacrosse.  He also paid the balances after her discount and his dental insurance for the children’s orthodontia.  In the Spring of 2004, the children were added to CL’s medical and dental plans.

[41]        The Father also contributed $1,250 to A’s school trip to Europe in 2008.  This was supposed to be paid 1/3 each by the Mother, the Father and A.  However, when A did not come up with her share her mother paid it on her behalf for a total of $2450.  The Mother agreed that over the years, the Father paid for or contributed to numerous other special expenses including graduation expenses, and driving lessons, as well as cash amounts for other assorted activities including swimming and skiing. 

[42]        The parties established an RESP for the children when they were together.  Its value at the date of separation was $8926.66.  It was augmented by a gift from the Father’s brother that matured in 2007, totalling approximately $4700.  For the purposes of this trial, the parties have agreed that the current value of the pre-separation contributions (including the uncle’s gifted contributions) is $15,500, half of which should be attributed to the Father. 

[43]        In about 2006, CL rolled the original RESP into a plan that he managed and to which he and the Mother made further contributions.  They drew on it starting in 2010 for A’s post-secondary schooling, paying out a total of $19,811.11 (including $3897.79 for lunches, parking, and bus passes).  It should be noted that during this period, the Father continued to pay child support for A which one might assume would be used for such things as lunches, parking and bus passes.  In addition, the Father paid a total of $16,001.09 out of non-RESP funds for A’s course. 

[44]        SLL(L) and CL are now drawing on the RESP for the Mother’s portion of C’s schooling.  The remaining balance of the combined RESPs was $31,325.26 as of November 30, 2013.  Both CL and the Mother acknowledge that the Father asked for details of the RESPs in February 2010, when A began college however that information was not provided until this trial was well underway, because, “He had made no further requests.”

[45]        The Father testified that he made no further personal contributions to RESPs for the children after the separation as he did not have the funds available to do so.  However, in about 2010, he created trust accounts for each child and contributed $100 per month per child until diverting A’s payments to her college expenses.  He then has continued to pay the full $200 into trust for C.

[46]        The Father contributed $317.50 to A’s graduation expenses and provided $600 towards a laptop computer for C for graduation.  The Mother paid for A’s driving lessons (even though the Father had offered to teach her himself – an offer to which the Mother never responded) and he paid for C’s lessons.  The Father pays for C’s cell phone and the Mother for A’s.

[47]        The Mother is also claiming for MSP premiums and medical expenses from 2001 to date – seeking half the total premium paid for a family of four, notwithstanding that the increase in premiums for a third family member is minimal, and there is no extra charge at all for a fourth family member.  Given that the family for most of that period was comprised of two adults, the Mother and CL, and the two children, it is highly questionable as to whether that would be a reasonable division.  The Father testified that no request had been made for contribution to MSP premiums and medical expenses until this case.  In fact he had both of the children covered on his plan including dental and extended medical benefits.  A aged out of the plans at 21; C is still covered.  The Father indicated that he was not aware that they had also been covered under CL’s plan until seeing the documents filed for the trial.

[48]        KO also testified with respect to “special expenses”.  She testified that besides receiving persistent calls from the Mother whenever child support was due (if he was not seeing the children that day) or late, that the Mother would also call requesting the Father pay other incidentals such as those associated with school, etc., including half of hot dog day pizza day or for a chocolate fund raiser.  And according to KO, he paid.  She denied that the Mother had called requesting financial disclosure.

[49]        The leading case regarding retroactive child support is D.B.S. v. S.R.G. 2006 SCC 37.  The decision describes three situations where a court may be asked to make a retroactive award.  These are:  where there has already been a court order for child support; where there has been a previous agreement for child support between the parents; and where there has been no court order for child support and no existing payment of child support.  After deciding which situation applies, the court must then consider a series of factors to determine whether or not retroactive child support should be ordered.

[50]        The ordering of retroactive child support is discretionary, based on these factors.  As noted in paragraph 95:

[51]        Bastarache J also noted, however, in paragraph 97:

[52]        It is also clearly noted that this level of discretion is not intended to apply to the situation where arrears on what has been already ordered or agreed to be paid, have accumulated.  In addition, the factors outlined in the decision are expressly not decisive.  Rather, “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.”  (paragraph 99)

[53]        The four factors delineated in the decision are:  (1) whether there was a reasonable excuse for the recipient parent not seeking child support or varying the child support earlier; (2) did the payor parent engage in blameworthy conduct; (3) the past and present circumstances of the child; and (4) will there be hardship to the payor parent caused by a retroactive award.

[54]        Once entitlement to a retroactive award has been determined, then the court must determine the date of retroactivity.  There are four possible dates:  the date an application was made to the court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date child support should have increased (paragraph 118).  The date of effective notice was adopted as being the general rule.

[55]        “Effective notice” is described in paragraph 121 as, “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be renegotiated.”  Once the topic is broached, the payor parent’s reliance on certainty becomes less compelling.  The matter does not end there however.  According to paragraph 123:

[56]        Bastarache J also noted that the appropriate date when the payments should have changed might be earlier, if “the payor parent engages in blameworthy conduct.”

[57]        In addition to D.B.S. v. S.R.G., counsel provided me with the following cases:

[58]        Other cases I have consulted include: 

[59]        In reviewing these cases they demonstrate the degree to which each is determined on its own facts, taking a holistic view of the circumstances of the parties, as set out in D.B.S.  While they all provide guidance, none is determinative of the issues in this case.  However the following remarks in Athwal are helpful where Ralph, J. describes the pertinent facts as follows:

[60]        Ultimately, Ralph J. found that effective notice was given in a letter dated November 21, 2005 from Ms. Athwal’s counsel to Mr. Athwal.  Child support was varied retroactively to November 2005 – for a total of 13 months before the date of the judgment.

[61]        In this case the matter of child support incorporates aspects of both the first and second situation described in D.B.S. v. S.R.G. (supra).  The Separation Agreement was reached between the parties with the assistance of their lawyers.  Thus the following comments made by Bastarache J in paragraph 76 are apt:

[62]        In addition, where there was already a Court Order, or the agreement has the force of a Court Order (such as here), some deference must be given to that Order.  This is described in paragraphs 63 and 64:

[63]        In considering whether or not there is a reasonable excuse for not seeking child support earlier, Bastarache J. notes in D.B.S., as follows:

[64]        The Mother argues that she delayed requesting a review of child support because of her psychological reaction to the separation.  Their fairly traditional marriage had ended on December 28, 1999, when the Father said he was leaving, apparently without any warning, notwithstanding numerous discussions previously about his being unhappy.  The situation worsened a few weeks later when the Mother was told of the involvement of KO.  She began attending counselling in March 2000, initially with the Father, and then after a few sessions she continued on her own until about September 2001.  During the joint sessions, the Father indicated that the problem in the marriage was the interference of the Mother’s parents, especially B, in their marriage.  During this time she also began taking anti-depressants and sleeping medications.  She was the first to retain counsel.

[65]        In February 2001, she met CL and she began to improve. That relationship continued to where they began to live together then eventually they married.  In about 2004, her doctor suggested that she have CL mediate between her and the Father so that she could distance herself from him as she felt she could not cope.  Nonetheless, the Mother had the emotional support of both her parents and her new partner during all of this period.

[66]        According to their evidence, from time to time both the Mother and CL made verbal requests for updated financial disclosure.  The Father’s response was typically that to the effect that he already paid enough.  No written request was made until 2005 at which time several letters were exchanged.  These were all written in the context of the father seeking additional time with his children, including the time that had previously been agreed upon but not received.  The father described this correspondence as follows, “This letter to me was a threat in response to a letter that I sent to them.  When I dropped it, they dropped it.”  It stayed “dropped” thereafter until 2011.

[67]        The financial documents that have been filed in this matter indicate clearly that the original child support was set at an amount higher than the Guidelines required as a result of using the Father’s gross business income as his Guideline income notwithstanding that there were certainly appropriate deductions that should ordinarily have been considered.  In addition, throughout this period his income frequently fluctuated downwards such that had child support been revisited at that earlier time, the amount payable would have been reduced.

[68]        In reviewing the evidence, I find that any stress and anxiety that was being felt by the Mother in her dealings with the Father after the signing of the Separation Agreement were largely the result of and exacerbated by the conduct of her mother and her own failure to simply move on with her new life with CL.  This is evidenced, for example, by her overreaction to KO dropping off a child support cheque at her workplace as late as 2005. The ongoing hostility that was demonstrated towards both the Father and his new partner combined with the Mother’s resistance to cooperating even to the extent of facilitating the limited access including holidays provided for in the Separation Agreement notwithstanding the psychologist’s recommendations ensured that whatever stress and anxiety she felt, it was largely of her own making. 

[69]        The Separation Agreement was signed nearly one and one-half years after the separation and after the Mother had commenced her relationship with CL.  She obviously allowed herself to be influenced by those closest to her to in failing to achieve a working relationship with the Father.  I do not find that her emotional issues arose from the actions of the Father, but rather were the result of these other influences.  As such, they do not provide a reasonable excuse for delay in commencing these proceedings.

[70]        D.B.S. states that, “the payor parent’s interest in certainty is least compelling where (s)he engaged in blameworthy conduct.  Put differently, this factor combined with the last, establish that each parent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case.” (paragraph 105)  Blameworthy conduct is defined as, “…anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.”  (paragraph 106)

[71]        Bastarache, J.  also adds, at paragraph 108:

[72]        In this case, the Father’s income began to rise sometime after 2005.  He made no adjustment to his child support payments until after the commencement of these proceedings, beginning in March 2012.  It should also be noted that if, in fact, the original child support agreed to in the Separation was correctly adjusted, he would have been paying less than he actually paid for several years.  Nonetheless, while he may have correctly held a belief that he was meeting or more than meeting his support obligations up to 2005 or perhaps later, that belief could not have reasonably been sustained up to and including 2011.

[73]        It seems clear that his failure to voluntarily disclose his increased income was more a response to the failure of his relationships with his children as a result of the interventions of the Mother and other family members than an effort to avoid paying increased child support.  While child support and access to children are independent issues, the responses engendered by any overtures to change the status quo, or to even implement what was set out in the Separation Agreement, cannot be ignored.  Here it seems obvious that whatever actions he might have taken unilaterally, nothing would be reciprocated.  Nonetheless, he continued to make substantial payments for special expenses, including costs for higher education, while continuing to make child support payments.  This may also be looked at when considering “blameworthy conduct” (paragraph 109).

[74]        On this subject, it should also be noted that when financial disclosure was sought from the Mother, in particular with respect to the RESP in 2010, none was forthcoming until after the trial was underway, in 2014.

[75]        The evidence on this trial establishes that these children were financially supported in all activities in which they wished to participate, including sports, educational trips, driving lessons, higher education, etc., and they never did without.  In most cases, contributions were made by the Father when requested by the Mother.  In those where he did not agree to contribute, most notably Sylvan and synchronized swimming as described above, they were enrolled in any event paid for by the Mother with the financial assistance if necessary by her parents or CL.  No evidence was led that suggested that there was any deprivation of any kind for these children.  In fact, according to KO, for example, the children, “…never did without, were always dressed to the nines, and had the best of every toy.”  I find that they have been financially very well cared for, appropriate to the means of the parties.

[76]        Further, there is no evidence that the Mother accumulated any debt in order to maintain this lifestyle for the children or that the children were deprived in any way.  In fact the evidence suggests ongoing payments into the children’s RESPs, family vacations, personal RRSPs etc. during this time, while building substantial equity in other assets.  Any family debts of the Mother and CL are clearly related to investment strategies and asset purchases, not family expenses.  This is consistent also with their discussions with the Father in 2008 about the possibility of purchasing investment properties using his professional services as a realtor.  Ultimately none was purchased.

[77]        Counsel for the Mother is seeking a retroactive order in the amount of $95,000 to $130,000, depending on Guideline Income calculations. 

[78]        In reviewing the Father’s financial circumstances it is clear that if he were to be ordered to pay this amount, he would be unable to do so unless he substantially depleted all savings, RRSPs and the equity in his apartment.  That equity totals about  $55,000, his vehicle is leased, he has about $40,000 in RRSPs which would be taxable upon withdrawal, and savings of $82,000 which is frozen as it is secured against a 1/3 interest in a vacation property with other family members.  He has no other retirement savings or pension plan or any other assets.  In addition, he is carrying about $10,000 of consumer debt.

[79]        The Father is 50 years old, gainfully employed and currently making child support payments of $1,250 per month, in addition to paying half of C’s school fees since September 2013 and paying $200 per month into a trust fund for C.  It is of note that none of the payments for post-secondary school for either child have come from the RESP, notwithstanding the Father’s interest in a portion of it.

[80]        I am satisfied that ordering a retroactive payment, particularly of the magnitude sought, would constitute a significant hardship for the Father, particularly in light of his age and ongoing support obligations.

[81]        In the event that I find that the Mother is entitled to a retroactive adjustment of child support and/or section 7 expenses, I must determine an effective date from which to make the appropriate calculations.

[82]        Counsel for the Mother argues that “effective notice” as the term is used in D.B.S. was given by the Mother to the Father beginning soon after the Separation Agreement was signed when she made numerous requests for his financial information.  The first written request is documented in an email dated April 5, 2005, apparently written in response to a request by the Father for vacation time with the children.  When further emails were sent by the Father in August and September 2005, to increase his access time from what was contained in the Separation Agreement, the lengthy emails presumably prepared by CL at Mother’s instance, were sent in reply.  Some of those were sent to counsel retained by the Father.  When he terminated that retainer and took no further action to attempt to reach an agreement for further access, the letters requiring financial disclosure also ceased. 

[83]        No further requests were made until September 2011, with the filing of this application.  In response, about two months later, the Father filed a Form 4 Financial Statement.  It was not complete and further requests were made and responded to over the next couple of years.  Some of the complications included the lengthy period of time for which disclosure was being sought – about twelve years – and the Father’s many moves including a second marriage which by then had also ended as well as the fact that he had no control over some of the records.  Notwithstanding the hundreds of pages disclosed, the Mother is of the view that they are still incomplete. 

[84]        Counsel for the Mother has referred to several possibilities as the date from which to calculate retroactivity, starting with 2002, the year after the signing of the Separation Agreement, and from which date the Mother says she began asking for financial information.  Other possible dates include 2005 from the exchanges of letters requesting financial disclosure in the context of also discussing child access, and September 2011, when this Application was filed. 

[85]        Counsel for the Father argues that there were in fact no conversations seeking financial disclosure before 2005, and that the 2005 requests were not intended to obtain financial disclosure so much as they were meant to cause the Father to retreat from his request for more and better child access.  As such, they should not be considered effective notice for this Application. 

[86]        I find that it has not been proven that requests for financial disclosure were made before 2005.  I also find that by ceasing to take any further action following the requests made in 2005, particularly when the Father ceased to proceed with his request for custody or further access to the children, pursuant to the decision in Athwal, the notice given by the Mother had no continuing effect.  The September 2011 Application is unequivocal and clear and not merely responsive to any other issues.  Accordingly, I find that the date of effective notice is the date of actual notice, that is, September 2011.

[87]        After a careful reading of D.B.S., it is evident that all of the factors and other considerations for retroactivity invoke the use of judicial discretion.  There are no absolutes.  As stated in paragraph 2, “…retroactive awards implicate the delicate balance between certainty and flexibility….”  The four factors outlined are not to be read in isolation; rather each factor must be weighed in light of the others.

[88]        In this case, I have found that the Mother has not provided a reasonable excuse for the delay in seeking financial disclosure.  In addition, I have found the request that was made in 2005 to not have had a continuing effect.  I have found blameworthy conduct on the part of the Father for not voluntarily providing information about his increased income; however that is vitiated to some extent by the unspoken “truce” between the parties whereby neither party took any further action after 2005 until 2011.  Nothing in the evidence suggests that the children’s circumstances were impacted adversely in any way by the Father not paying increased child support and in fact they have lived a comfortable and well-funded life.  And finally, I am satisfied that the making an order of retroactive child support would cause hardship to the Father, and would not financially benefit the children given the level of support they received and that C continues to receive.

[89]        Other evidence including the overpayment of child support in the early years plus the ongoing payment, including interest where necessary, does not demonstrate a father trying to avoid his responsibilities to his children.  His continued efforts to have a larger role in their lives including the psychological counselling, invitations for holidays, etc., albeit unsuccessful, also suggests a Father trying to do his best for his children.

[90]        This contrasts with what I have found to be misguided and inappropriate interference in the relationship between the Father and the children by B, condoned and perhaps encouraged by the Mother.  This narrow focus, of seeing the Father as only a source of revenue and restricting him in his efforts to have a larger role as the father of the children, is reinforced by the pettiness of most of the requests for retroactive section 7 expenses.  As examples, hot dog day and pizza day are not special expenses – but they were paid.  Asking to split Medical Services Plan premiums in half, when the third person increases the premiums only slightly and the fourth not at all, is simply misinformed.  This is more so given that the Father already had them both insured.  Most, if not all, of those items sought simply do not qualify.  In addition, using the RESPs fully against the Mother’s share of higher education expenses without crediting the Father is similarly inappropriate.

[91]        In conclusion, keeping in mind the admonition in paragraph 99 of D.B.S., that all of these factors must be considered holistically, and considering the increased child support paid since March 2012 as well as the higher than required child support paid in the early years and the costs of the psychologist, among other matters, I am satisfied that in these circumstances that no award should be made for retroactive child support or for retroactive section 7 expenses.  Accordingly, the Application is dismissed.