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J.E.C. v. R.R.A., 2016 BCPC 285 (CanLII)

Date:
2016-09-02
File number:
F71584
Citation:
J.E.C. v. R.R.A., 2016 BCPC 285 (CanLII), <https://canlii.ca/t/gtw5s>, retrieved on 2024-03-28

Citation:      J.E.C. v. R.R.A.                                                          Date:               20160902

2016 BCPC 0285                                                                          File No:                  F71584

                                                                                                        Registry:                 Nanaimo

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

     

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

J.E.C.

APPLICANT

 

AND:

R.R.A.

RESPONDENT

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE J. P. MacCARTHY

 

 

 

 

Appearing on their own behalf:                                                                                          J.E.C.

Appearing on their own behalf:                                                                                         R.R.A.

Place of Hearing:                                                                                                   Nanaimo, B.C.

Dates of Hearing:                                      January 20, 2016, March 29, 2016, May 10, 2016

Date of Judgment:                                                                                         September 2, 2016


INTRODUCTION

[1]           This matter involves cross applications by the parties to a long standing separation agreement entered into on February 15, 1999 and filed with the Provincial Court on January 22, 2014 (the “Separation Agreement”).

[2]           It specifically involves a claim brought by the Mother to set aside the Separation Agreement in whole or in part, by way of a variation, as it relates to payment of child support and extra-ordinary expenses for a now teenage child who has been under her sole primary care since the parties separated and since that child was an infant.

[3]           It also involves the Father’s counter claim to enforce parenting time with that teenage child and to obtain full disclosure of all matters touching on the welfare of that teenage child and further to obtain an order regarding counselling for the child as it relates to her relationship with the Father.

[4]           All of this relief is being sought following a significant absence on the part of the Father from the life of that teenage child.

BACKGROUND

The Separation Agreement

[5]           The parties to these proceedings and to the Separation Agreement are J.E.A., [now known as J.E.C.] (the “Mother”) and R.R.A. (the “Father”).  The Mother and the Father (collectively the “Parents”) are the parents of K.C.A. (“Child K”) date of birth [omitted for publication] 1998, and S.R.A. (“Child S”) date of birth [omitted for publication] 1986.

[6]           Child K is the natural child of the Parents, and Child S is the Father’s child by a previous relationship who was not adopted by the Mother but who lived with the Mother and the Father for period of approximately 5 years.  The Mother fulfilled the role as the step mother for Child S prior to the Parents’ separation.

[7]           It is common ground that the Child K is at present time a child of the marriage being under the age of 19.  She in the process of graduating from secondary school and arranging to enrol in university or college commencing in the fall of 2016.  Child K just turned 18 in the summer following the hearing of this matter.

[8]           It is also common ground that the Child S is no longer a child of the marriage; being over the age of 19, self-sufficient and not depending on either of the Parents for support or otherwise, for a considerable period of time.

[9]           The Parents lived in a common law relationship from November of 1992, married in May of 1994 and separated December 16, 1998.

[10]        With the assistance of legal counsel, the Parents entered into the Separation Agreement which dealt with a number of matters including the division of family assets including the matrimonial home, pension plans, family debts, wavier of spousal maintenance, and standard releases of claims.  The Separation Agreement has never been modified in writing or by any oral agreement.  Prior to the initiation of these proceedings neither party has sought to change, modify or vary the Separation Agreement.  No other proceedings have been brought in connection with the Separation Agreement or in connection with the matters presently before the court.

[11]        At the time of the making of the Separation Agreement the Mother (therein described as the “Wife”) was a teacher but then on maternity leave and with what the Separation Agreement describes as “usual earnings of approximately $53,000.00 per annum”.  The Father (therein described as the “Husband”) was a machine operator and had what is noted in the Separation Agreement as “earnings of approximate $37,195.00 per annum”.

[12]        Relevant to the issues before this court are the provisions of section 4 of the Separation Agreement relating to what was characterized as “custody and access” under the then operative Family Relations Act, RSBC 1996, Ch. 128 as amended ( the “FRA”).

[13]        Under section 4.1 of the Separation Agreement it was agreed that the Father was “to retain sole guardianship and sole custody” of Child S and under section 4.2 the Mother had access to Child S at the Father’s sole discretion.

[14]        Section 4.3 of the Separation Agreement provides as follows:

4.3      The Husband and the Wife agree that they shall retain joint guardianship of the infant child of the marriage namely [Child K] [date of birth] and joint guardianship shall for the purposes of this Agreement be defined as follows:

a)            to be informed of the child’s medical and dental practitioners;

b)            to contact the child’s medical and dental practitioners and obtain the child’s medical and dental records;

c)            to be consulted with respect to the selection of the child’s alternative caregivers, such as daycare and preschools;

d)            to be consulted with respect to the selection of the child’s schools and school             programs;

e)            to consult with the child’s alternative caregivers and teachers;

f)            to be informed of events at the child’s schools or daycare so that each parent may attend;

g)            to be informed of parent/ teacher nights so that each parent may attend;

h)           to be consulted with respect to any significant health issues relating to the child; and

i)            to be consulted with respect to any significant change in the child’s social environment

and each of the Husband and Wife acknowledge that the other is a fit and proper person to look after the care, education and upbringing of the said children.

[15]        Under section 4.4 of the Separation Agreement the Mother received sole custody of Child K.  The Father received reasonable and generous access and with specified scheduled access for the period from February to June of 1999 and “at such further and other times as the parties may agree” but subject to specific conditions when Child S was in attendance.

[16]        Under section 4.6 of the Separation Agreement provision was made for the Husband and the Wife to attend counselling in an effort to establish a permanent schedule for the Husband’s access to Child K.  That access was subject to review not later than July 1, 1999.  The establishment of a permanent schedule and that review has never occurred, nor does it appear did the contemplated counselling.

[17]        Under section 4.8 of the Separation Agreement provision was made that each of the Parents “will participate as fully as possible in major events of [Child K’s] life, including Christmas, holidays, birthdays and such other occasions.”

[18]        Section 4.9 provides as follows:

4.9      The parties further agree that there shall be full disclosure between them in all matters touching the welfare of the [Child K] and they agree that they shall confer as often as necessary to consider any problem or difficulty or matter requiring consideration touching the welfare of the said child; and the Husband and the Wife shall further agree that each shall conscientiously respect the rights of the other regarding the child, and shall continue to instill in the child love and respect for both parents, and neither party shall by any act, omission or innuendo attempt to alienate the child from the other party.

Child Maintenance Provisions of the Separation Agreement

[19]        Section 3.2 of the Separation Agreement acknowledges that the Father did not receive financial support from Child S’s biological mother.

[20]        Under section 3.3 it was agreed that the Father would support Child S without financial contribution from the Mother and “for so long as [Child S] shall be a child of this marriage, that the [Mother] shall support the youngest child of the marriage, [Child K]…without financial contribution from the [Father].”

[21]        Sections 3.4 purports to be the Father’s release, discharge and abandonment of the Father’ claims against the Mother for child maintenance for Child S notwithstanding any legislative provision, including the then applicable FRA and the Divorce Act, R.S.C. 1985 or any future legislative changes that may give the Father the right to make such a claim.  In addition it provides that the Father is to indemnify the Mother for any such claim that may be made on behalf of the Father.

[22]        Sections 3.5 purports to be the Mother’s release, discharge and abandonment of the Mother’s claims against the Father for child maintenance for the Child K notwithstanding any legislative provision, including the FRA and the Divorce Act, or any future legislative changes that may give the Mother the right to make such a claim.  In addition it provides that the Mother is to indemnify the Father for any such claim that may be made on behalf of the Mother.  The notable difference between this release provision and the former is that this release provision is operative only “for so long as [Child S] shall be a child of the marriage”.

[23]        Section 3.6 purports to provide that the mutual waiver of child support “shall apply regardless of any change in circumstances of the parties or either of them”.

[24]        Most noteworthy is section 3.7 which provides as follows:

3.7       When the older child, [Child S]:

(a)       is no longer a child of the marriage

(b)       permanently changes his place of residence to reside with his biological mother, or

(c)       when the Husband receives financial support for [Child S] from [Child S’s] biological mother,

whichever shall first occur, the spouses shall confer with one another in order to reach an agreement as to what amount of child support should be paid by the Husband for the younger child [Child K]. (emphasis added)

[25]        As is noted below, that consultation has never occurred.

Waivers and Releases Contained in the Separation Agreement

The parties mutually agreed that under the provisions of section 18 of the Separation Agreement to waive claims against the other for spousal support.  In part section 18.5 a further provision is made reading in part as follows:

Both parties hereto agree that there has been a full and adequate and satisfactory apportionment between the spouses of any financial consequences arising from the care of the children of the marriage over and above specific obligations apportioned under the heading of “Maintenance for the Children”

[26]        The sections under that particular heading are sections 3.1 to 3.7 inclusive to which I have previously referred.

[27]        The Separation Agreement also contains a number of comprehensive releases and waivers, including claims under the Wills Variation Act, RSBC 1979 Ch. 435, the Estate Administration Act RSBC 1979 Ch. 114, the FRA, and the Divorce Act, (supra).

[28]        These various provisions and other acknowledgments appear to be in aid of mutually reaching a full and final settlement of the matters dealt with by the Separation Agreement, the provisions of which the parties wished to continue and endure all without future variation by way of court intervention.

[29]        The Separation Agreement was made in contemplation of the parties becoming divorced.  That divorce has not yet occurred.  The Parents have never resumed cohabitation nor have they otherwise reconciled following the date of separation.


 

Mediation

[30]        Section 26.2 of the Separation Agreement states:

Should any dispute arise concerning this Agreement, the parties agree that neither the Husband nor the Wife shall take any Court proceedings until mediation of such dispute has failed.

[31]        The Mother made a referral request to the Nanaimo Justice Access Centre and met with a family justice counsellor on January 29, 2014 which was prior to the Father being served with the Mother’s Application.  The Referral Request in the court file indicates the Mother did not seek a referral to any person, program or service.  Also there were no requests for mediation through the Justice Access Centre.

[32]        The evidence confirms that no other mediation procedures were undertaken.  The Mother states that this was due in part to the fact that she had difficulty finding the Father and therefore filed the Mother’s Application referred to below.  On May 15, 2015 she sent a text message to the Father offering to mediate and stating that if he was willing she would set it up.  No response to that suggestion was forthcoming from the Father.  I am also given to understand that at the June 5, 2015, hearing before the Honourable Judge Cowling that mediation was again suggested by the court but did not ever proceed.

[33]        I am satisfied that the Father was not open to having matters resolved through mediation and therefore the mediation would not have been successful and hence I can conclude that mediation of the dispute has failed by the mutual failure of one or the other to formally initiate mediation or to demonstrate a mutual willingness to be involved is that process.  That is not to say that future issues covered by the Separation Agreement should not in fact be referred to mediation with a view to their resolution by mediation as contemplated by Section 26.2.  I shall have more to say about that later.

Court Proceedings

[34]        The Mother filed her Application Respecting Existing Orders or Agreement on January 22, 2014 (the “Mother’s Application”). In it she asked that the Separation Agreement be set aside in whole or in part and specifically pleads that the child support review set out in paragraph 3.7 of the Separation Agreement had not taken place and requested child support for Child K in accordance with the Child Support Guidelines plus extra-ordinary expenses.  The Father filed his Reply and his Counterclaims over a year later on April 13, 2015 (collectively referred to as the “Father’s Cross Application”).  In his Reply he stated he agreed with the request for child support and “a suspension or termination of an earlier order dated 02/15/99” which I take to be a reference to the Separation Agreement.  In his Counterclaim he sought to “uphold section 4.9 of the Separation Agreement” regarding disclosure that touches on the welfare of Child K and applies for parenting time and contact with Child K.

[35]        The location of the Father’s whereabouts for service appears to have been an impediment for the Mother according to her evidence.  Accordingly she retained the services of a skip trace services to locate him.  That proved unsuccessful but the Mother did learn that Child S was residing in Chilliwack and held a position at a furniture store in that community.  Notably the Father said he had continued to use the same email and cell phone number which was known to the Mother for several years, thus he questions the need for substitutional service.

[36]        On March 30, 2015 the Mother appeared before the Court and with the help of duty counsel obtained an ex parte order for substitutional service on the Father by serving the now adult child of the Father (namely Child S).  An order for financial disclosure by the Father was also made.

[37]        On April 13, 2015, a further interim order was made in the presence of both Parents whereby the Father was found to have a guideline income of $92,517.00 and he was required to pay child support in the sum of $857.00 per month for Child K commencing on April 1, 2015 and continuing on the first day thereafter so long as Child K is a child defined in the Family Law Act.  Both parties were instructed to file and exchange a sworn financial statement by May 15, 2015 (the “April 2015 Interim Order”).  The child support payments were based upon the Father’s imputed income calculated on the basis of his 2014 Line 150 income.

[38]        Also by way of the April 2015 Interim Order a Section 211 Report was ordered specifying that it was to be for the views of the Child K.  The issues of retroactive child support and section 7 special expenses were adjourned to the Judicial Case Manager to fix a hearing date.

[39]        The Section 211 report was completed by Lisa Bury, a Family Justice Counsellor with the Family Justice Report Service on April 30, 2015 (the “Views of the Child Report’). The Child K was age 16 at that time.

[40]        Following a 20 minute appearance on June 5, 2015 in the presence of both Parents a further interim order was made (the “June 2015 Interim Order”) requiring the Father to pay the Mother the sum of $8,500.00 on or before June 10, 2015 and further orders as follows:

The issue of whether this amount is to be allocated to child support or special expenses for the child shall be adjourned to the judicial case manager to fix a date for a family case conference.

[41]        So far as I can determine, that Family Case Conference did not ever proceed and instead the matter was set down for hearing.  The hearing proceeded before me on January 20, 2016, and continued thereafter on March 29, 2016, and again on May 10, 2016.

[42]        The parties were self-represented throughout the matters before this court.

[43]        On May 10, 2016, prior to the commencement of the continuation on that date, the Father filed a handwritten Notice of Motion in which he sought “to ask for counselling between myself and my daughter, to ask for no interference from mother”.  In his supporting Affidavit he alleges Child K “has been subject to Parental Alienation Syndrome.”

Issues Before the Court With Respect to the Mother’s Application and the Father’s Cross Application

[44]        As a result of these proceedings the issues upon which evidence has been heard and which will require a decision relate to the following:

a.            whether or not there should be a specific order made regarding the Father’s ongoing parenting time with Child K and in that regard whether direct means of contact between the Father and Child K should be ordered.

b.            whether or not a court order should be made regarding future counselling to occur between the Father and Child K in connection with their relationship

c.            the amount if any of child support to paid by the Father for the support of the Child K and the basis for both that obligation to pay and the quantum of that payment and whether any variation of any child support payment should be made and if so, should it be on a retroactive basis or a prospective basis or both and if so what the effective date for a retroactive variation.

d.            whether by their nature all of the expenses claimed by the Mother are to be properly regarded as special or extraordinary expenses

e.            the amount of any special and extra-ordinary expenses, if any, owed by the Father in connection with the Child K on an ongoing basis and whether that calculation is to be made on a retroactive basis, and if so, the effective date for making that calculation.

The Witnesses at the Hearing

[45]        The Mother was the sole witness on her own behalf.  The Father was the sole witness on his own behalf.

Personal Background of Child S

[46]        The Father obtained custody of the Child S when he was 18 months old following separation from his first spouse in 1986.

[47]        In order to accommodate the Father’s works schedule that often took him away from home he arranged for and paid for nannies.  As Child S got older he arranged and paid to have Child S live with family friends and his own parents, while he was working away during the period between about 1988 and 1993.

[48]        Starting in the summer of 1993 the Child S commenced living with the Mother and the Father, predating their marriage in1994 and he continued to reside with them until the date of separation in late 1998.  Accordingly, the Mother acted as the step mother for Child S for a period of some 5 years.

[49]        Child S lived with and was supported by the Father following the separation of the Parents in December of 1999.  Child S was approximately 13 years of age at the time of separation.  Again the Father found it necessary to arrange and pay for the care of the Child S in order to accommodate the Father’s out-of-town work schedule.

[50]        At the time of the hearing of this matter, Child S was 30 years of age, had graduated from high school at an approximately age of 18 years in 2003, and shortly thereafter found employment.  From age 18 to approximately age 25 he moved in and out of his Father’s residence, depending upon his personal and employment circumstances.  For the most part he was financially independent but he was generally reliant on minimum wage jobs.  The Father provided some financial support to Child S from time to time following high school graduation.  The Child S had also approached the Mother for money in or around 2001.  The Mother said that on the basis of her understanding that the Father was not financially supporting Child S and that Child S and the Father were estranged she gave him $100.00 but she refused to provide him with further financial support.  The Mother and Child S did not maintain contact.

[51]        Child S is now married, has a six-year-old child and has been a furniture store manager since approximately 2010 or 2011.

[52]        Effective from shortly after his 2003 high school graduation when he turned 19 some 12 years ago Child S was no longer a child of the marriage as contemplated by the Separation Agreement.

[53]        The Father concedes that he never updated the Mother on the status of his financial support for Child S or when that was terminated.

Background of Child K

[54]        The evidence of both of the Parents confirms the description of the Child K set out in the Views of the Child Report as follows:

[Child K] is a vibrant, athletic and intelligent teenager with a good head on her shoulders.  She is an avid volleyball player who is playing at a competitive level with hopes of getting a university scholarship.  [Child K] is a fantastic student who is dedicated to maintaining good grades in order to pursue a Bachelor of Science as part of her plan to become a physiotherapist.  She states she works hard and has a low A high B average in her grade 11 year…

[55]        The evidence also supports the conclusion that she is well-adjusted, has no health issues other than sports injuries sustained from her volleyball activities and has no special needs.

[56]        Volleyball has been a major focus of Child K’s life since Grade 4 but increasing in intensity since around age 13 years.  She has played on elementary and secondary school teams, local club and representative teams and beach volleyball, all at a competitive level.  Volleyball is a year-round endeavour for her.

[57]        She is talented.  She has been invited to play at the Canadian, Provincial and Western Canada levels and in the British Columbia Summer Games.  She has also been invited and has attended various try outs and scouting camps, again all at a highly competitive level for her age.

[58]        She has not made applications to any universities or colleges in the United States or Canada in order to pursue volleyball at that level or to possibly obtain a sport’s scholarship.

[59]        However, she is interested in attending and has received some interest from a college and a university both located on Vancouver Island, each with excellent, recognized volleyball programs.  Those endeavours remain hopeful and promising but at the time of the hearing still uncertain.

[60]        She has future aspirations of participating in beach volleyball at the Olympics.

[61]        Accordingly, Child K participates in numerous volleyball tournaments throughout the year which require travel and incurring transportation and accommodation costs.  This has continued for the past several years.  The Mother has been very supportive of these activities, both by way of encouragement and also financially.  The Mother frequently travels with Child K to these events.

[62]        The Child K has lived with the Mother throughout her life and relies upon the Mother for her necessities of life, including volleyball costs, and now also relies upon the amount of child support set out in the April 2015 Interim Order.  She does not have a part time job or any other source of income.  As at the hearing dates she had not received any notification of earning any scholarships or bursaries or awards for her upcoming university-college year.  She is not a “carded athlete”.  She does not have an outside athletic sponsor.  Accordingly she receives no financial support for her athletic endeavours.

Personal Background and Financial Circumstances of the Mother

[63]        The Mother is approximately 53 years of age, and holds a full-time position as an elementary school teacher in the local Nanaimo school district and has 25 years of service.  She has earned her Master’s degree, having started that post graduate program around 2012.  The Master’s degree was pursued at her own choice and at her own expense.  It is not a condition of her employment but results in a higher annual wage when completed.  She contributes to and will qualify for a public school teachers’ pension.

[64]        The Mother has worked steadily since the time of separation.  She had a significant health issue in 2006 from which she recovered.  As part of her recovery she only worked three days per week but was back to full time employment within a year.

[65]        The Mother’s line 150 income for 2011, according to her Notice of Assessment, was $67,071.00 and her permitted employment expense adjustments for union dues set out in line 212 of her T1 General Income Tax and Benefits Return, which is permitted for child support and special and extra ordinary expense calculations, for 2011 was $1,576.00.  Thus the Mother’s 2011 amount for the basis of calculation of child support and special and extra ordinary expenses (being the “Child Support Guideline Amount”) was $65,495.00.

[66]        Based upon her Notice of Assessment her line 150 income for 2012 was $72,008.00 representing T4 income of $71,814.00 and Workers’ compensation benefits of $194.00.  Her permitted employment expenses for union dues were $1,749.00 and a Workers’ Compensation overpayment of $194.00 resulting in a 2012 Child Support Guideline Amount of $70,065.00.  Her evidence is that for the period from September to December of 2012 she was taking an unpaid day off every second week in order to deal with her Master’s degree workload.

[67]        The Mother’s line 150 income for 2013 according to her Notice of Reassessment was $64,447.00.  Her permitted employment expenses for union dues were $1,630.00.  Thus, her 2013 Child Support Guideline Amount was $62,817.00.  During that year she was working on a 4/5 basis with one unpaid day off each week in order to deal with her Master’s degree workload.

[68]        According to a copy of the Mother’s 2014 T1 General Tax Return the Mother’s line 150 income was $61,590.74 including interest income of $157.90.  No Notice of Assessment was provided as part of her evidence.  Her permitted employment expenses were not available because it was on a missing page in her submitted T1 General Tax Return.  I estimate that amount to be the same as in 2013 at $1,630.00. Thus her 2014 Child Support Guideline Amount was $59,960.74.  She testified that she was teaching full time that year starting in September of 2014, with a Master’s degree qualification which in the normal course would have earned her $84,000.00 per annum.  However the British Columbia public school teachers’ strike/lockout for half of June and for the months of September and October of 2014 reduced her income quite significantly.  She borrowed to make up the resulting shortfall.

[69]        During the first day of evidence on January 20, 2016, the Mother indicated that she was uncertain of the amount she earned in 2015.  She was directed to bring to court a copy of her filed 2014 T1 General Return and her Notice of Assessment.  She was also directed to bring to court a copy of her 2015 year to date statement of earnings, and if prepared and filed a copy of her 2015 T1 General and her Notice of Assessment.  The only documentation subsequently produced by her was her 2015 T4 slip from the School District No 68 (Nanaimo-Ladysmith) showing her line 101 income as $84,524.19 and her year to date statement income for the period January 1 to March 15, 2016, showed earnings as $21,186.93.

[70]        However in her viva voce evidence she was referred to her March 16, 2015, sworn Financial Statement which indicated that her total employment income was $85,922.40.  She accepted that figure as being correct.  She also acknowledged that there were allowable deductions for union dues of $1,604.37 and therefore the correct Child Support Guideline Amount is $84,318.03 for 2015.

[71]        The Mother receives her annual pay over 10 months hence she does not receive any remuneration from her school district for the summer months of July and August.  This produces a cash flow problem for her that is handled by means of credit card debt and a personal line of credit.  She says that she lives pay cheque to pay cheque.  Her March 16, 2015, Sworn Financial Statement discloses a vehicle with a market value less than the outstanding loan on it and “other property” with a value of $50,000.00 and bank and “other accounts(including RRSP’s)” totalling $17,000.00.  She has credit card and other indebtedness of just under $15,000.00 including her car loan.  She lists her annual expenses at $94,295.09 exclusive of volleyball related expenses.

[72]        She owns a mortgaged home in which she resides along with Child K and her Child A, who is age 12 and in Grade 7.  Child A is the product of an artificial insemination procedure.  The Mother supports both children.  She receives no child support payments for Child A.  Child A’s child maintenance is not the subject matter of this proceeding.  The Mother testified that she has been able to support herself, Child K, and Child A in a reasonable lifestyle.

[73]        The Mother testified that up until Child K was approximately 10 years of age the Father paid for approximately 5 return flights in order that the Child K could visit with her maternal grandmother and other family member in Nova Scotia.

[74]        The maternal grandmother, referred to in the evidence as “Nana”, lived in Nanaimo for approximately one year with the Mother, Child K, and Child A but she also maintained a residence in Nova Scotia.  The Child K had a very close relationship with her up until Nana’s passing approximately 2 years ago in September of 2013.  Nana encouraged Child K with her volleyball activities and paid for some of the associated costs including hotel and ferry expenses, and occasionally Nana attended herself, all of which ceased upon Nana’s death.

[75]        The Mother testified that the costs for Child K to participate in volleyball at a highly competitive level are very significant.  In her opening submission on the first day of the hearing the Mother suggested that she had in a space of some 4½ years incurred volleyball costs of some $20,000.00 which she submitted should be characterized as special and extraordinary expenses.

[76]        During the course of her evidence I requested that she re-examine those figures pending the continuation of her evidence and provide the court with a breakdown of those costs in order to isolate and summarize the following:

1.       Direct costs and expenses for the Child K’s participation in the following volleyball activities (“Direct Costs”) including participation fees, equipment, uniforms and travel expenses for Child K, including those incurred for training and selection camps and for tournaments involving her:

a)       school teams;

b)       club teams;

c)         beach volleyball teams, and

d)       provincial, regional and national teams

2.         Necessary indirect costs and expenses of Child K’s participation in volleyball activities which required the Mother’s attendance (“Necessary Indirect Costs”).  These Necessary Indirect Costs included greater travel expenses incurred because of an official organizational requirement to have a parent or chaperone in attendance (in this case the Mother) at a tournament or a training or tryout camp or to provide transportation for the participating child or other members of the team; hence, additional travel and accommodation expenses incurred by the Mother for herself to fulfil these requirements.  Also to be broken out and included as part of this category of expenses were to be those incurred when the organization hosting or organizing volleyball events, competitions or camps had limited involvement in the oversight of the young participants thus making it necessary for a parent or an adult chaperone to be in attendance with a participating child and thus were required to incur additional travel expenses.

3.       Voluntary costs and expenses incurred when Child K was not required to travel as part of a team commitment or the Mother was not obliged to be in attendance as a parent or chaperon or as a transportation provider but Child K did participate as a matter of personal choice or in the case of the Mother chose to attend and be a spectator to support Child K and her team (“Voluntary Costs”).

[77]        At the continuation of her evidence on March 29, 2016 the Mother produced some summaries based upon the periods from September of one year to the end of August in the following year.

[78]        The Mother was unable to produce receipts for any of the categories for the 2011-2012 season except for a Direct Cost for Child K’s uniform expense of $170.00.

[79]        Using this basis of categorization the Mother provided evidence that for 2012 -2013 the Direct Costs (but based only upon available receipts for 2 of a possible 5 Island tournaments) totalled $2,106.16 for Child K.  The Mother’s Necessary Indirect Costs relating to team and player transportation and her accommodation for the 2012-2013 season totalled $794.91.  The grand total of those two amounts for 2011-2012 equalled $2,901.07.

[80]        For 2013-2014 the Direct Costs for Child K totalled $3,889.43 and the Mother’s Necessary Indirect Costs based on one available receipt totalled $372.60.  The grand total of these two amounts for 2013-2014 equalled $4,262.03. The Mother noted that these figures were based upon available receipts and noted that several were missing thus the actual costs and expenses were understated.  The Mother claimed the available children’s fitness amount of $500.00 for Child K on Line 365 of her T1 General Income Tax Return.

[81]        For the 2014-2015 season the Child K’s Direct Costs totalled $5,446.43 and the Mother’s Necessary Indirect Costs totalled $3,747.68.  The grand total of these two amounts for 2014-2015 equals $9,194.11.  These totals did not include Child K’s attendance at a tournament in Hawaii costing $1,817.68 (thus being Voluntary Costs) and which the Mother also attended at her own separate cost.  These totals also did not include the Mother’s Voluntary Costs to attend an Island tournament and a national tournament which amounts totalled $1,111.26.  The Mother claimed the available children’s fitness amount for Child K of $1,000.00 on Line 365 of her 2014 T1 General Return.

[82]        For the 2015-2016 season, Child K’s Direct Costs from September 2015 to March 2016 were $1,816.68.  The Mother’s Necessary Indirect Costs totalled $508.30.  The grand total of these two amounts is $2,324.98.

[83]        The total of Child K’s Direct Costs from September 2011 to March 16, 2016 is $13,428.76.  The total of the Mother’s Necessary Indirect Costs equals $5,423.49.  Therefore the grand total of these two amounts equals $18,852.25.

[84]        The Mother testified that she did not consult with the Father about incurring any of the volleyball related costs but chose to incur all of those costs without any commitment from the Father to share in the costs.

[85]        She testified that the Father offered to pay $10,000.00 towards the volleyball costs.  To date he has not made any contributions to the volleyball costs.  The Father did not present any contradictory evidence about either assertion.

[86]        The Mother testified that there are additional costs incurred by her that relate to Child K’s secondary school graduation which she submits should be characterized as extra-ordinary or special expenses.  These relate to Child K’s graduation celebrations and expenses and include her graduation dress and graduation photos.  The total amount as at March 29, 2016, totalled approximately $1,216.42.  The Mother has spoken to the Father and has requested that he make a contribution.  To date the Father has not made any contribution but he has apparently spoken to Child K about paying directly for some duplicate items, like a second graduation dress and photos.

[87]        Costs and expenses for Child K’s anticipated attendance at a post-secondary institution are beginning to accumulate for application and registration fees.  Also tuition fees and expenses are anticipated to be due in the coming summer months.  There was no evidence of what those amounts are anticipated to be.

[88]        The Mother seeks contribution to these post-secondary expenses from the Father.  To date the Father has made no such contribution.

[89]        The Mother has a relatively small investment account which she has maintained for contribution to Child K for post-secondary educational expenses but she has not established a Registered Educational Savings Plan which would entitle Child K to receive a contribution of funds from the Federal Government.  The Mother expressed an intention of doing so.

[90]        On the issue of lack of communication from the Father to the Mother or Child K, the Mother contends that her whereabouts and that of the Child K were known to or should have been known to the Father because the Mother’s address, telephone and email address have not changed in some 11 years.

Personal Background and Financial Circumstances of the Father

[91]        The Father is approximately 57 years of age and has spent most of his career as a heavy machine operator.  A considerable period that time was with the Provincial Ministry of Highways and Transportation involved in highway construction and maintenance throughout many regions within the Province of British Columbia.  He attained the positon of foreman following his separation from the Mother.

[92]        Following privatization of many functions of that Ministry some 13 years ago he gained and maintained employment with one of the chief road construction and maintenance contractors for the Ministry as a foreman but remains a BCGEU union member.  He works on crews that deal with highway markings; he has a home base out of Langley, BC.  It is project related work that is both seasonal and weather dependent by its very nature.

[93]        As I understand it he presently receives an annual base salary of some $68,000.00 plus over time.  He testified that he takes all of the overtime that he is offered which is allotted by seniority.  He is the most senior foreman.  From that I infer he is in a preferred positon to obtain overtime.

[94]        He is usually working away from his Langley home base some 13 weeks per year.  His employer pays for his accommodation when he is away and he has a per diem rate of $47.00 for meals and receives use of a vehicle when he is on “travel status”.

[95]        There is no mandatory retirement age for him.  However it is the Father’s intention to retire in the not too distant future.

[96]        He has a fully vested BCGEU pension plan.  In April of 2017, at which point he will be 59 years of age, he will be eligible to receive the maximum amount available from his pension plan.  According to his evidence his pension payment amount is based on formulae.  On the first day of his evidence he used a formulae calculated on a 4 year base average of hours for each year and a base hourly rate.  On that basis he anticipated that he would be receiving $63,000.00 per annum on his pension, which is indexed plus both a CPP bridge and then at age 65 he would be eligible to receive his Canada Pension.  Thus on that basis he expects to receive some $70,000.00 per annum in pension income from all sources.

[97]        On the second day of his evidence he corrected himself and said that his pension correctly was calculated on 80% of the average of his straight time earnings over the last 5 years.  On that basis he would be entitled to BCGEU pension income of an estimated annual amount of $58,000.00 plus, as I understand it a CPP bridge payment and ultimately his CPP monthly payments producing an additional $13,000.00 or $14,000.00 per annum.  Therefore I understand that he can expect to receive between $71,000.00 and $72,000.00 per annum in pension income from all sources.

[98]        There is an opportunity for him to continue to work as a part time employee even after drawing on his pension.  Some part time employees on his crew can actually obtain as many as 2,300 hours of employment over an 8 month season.

[99]        Following his separation from the Mother he continued to work on Vancouver Island during the course of the Island highway construction and thereafter throughout the Province, but he maintained Nanaimo as his home base where he and Child S lived.  He then moved to Mission B.C. while Child S continued to live in Nanaimo with family friends, while relying upon and receiving financial support from the Father, thus allowing Child S to compete his high school graduation in Nanaimo in 2003.

[100]     Eventually the Father moved to Chilliwack where he acquired and continues to reside in a mortgaged detached, condominium unit.  He testified that prices for that type of unit have actually dropped over the last 8 years in his location. His March 29, 2016 Sworn Financial Statement discloses $19,500.00 in vehicles and approximately $33,800.00 credit card debt, loans and a balance owing on a line of credit.  He lists his annual expenses which I have totalled at $73,966.66 per annum.

[101]     The Father does not financially support anybody other than by way of the existing order for child support under the April 2015 Interim Order.

[102]     The Father’s line 150 income and permitted adjustments for union dues for child support and special expense calculations for the periods from 2004 to 2015 inclusive are as follows:

Year

Line 150 Income

Allowable Employment Expenses Line 212 (Union Dues)

Child Support Guideline Amount

2004

$ 75,584.00

$1,487.00

$74,097.00

2005

$ 73,941.00

$1,323.00

$72,618.18

2006

$ 80,831.00

$1,402.00

$79,429.00

2007

$ 78,449.00

$1,361.00

$77,088.00

2008

$ 80,926.00

$1,387.00

$79,539.00

2009

$ 89,953.97

$1,586.70

$88,367.27

2010

$ 82,703.13

$1,416.30

$81,284.83

2011

$ 69,508.32

$1,025.96

$68,482.36

2012

$ 90,286.00

$1,559.00

$88,727.00

2013

$101,726.00

$1,766.00

$99,960.00

2014

$ 92,517.00

$1,535.00

$90,982.00

2015

$ 88,771.26

$1,308.47

$87,462.79

2015

(adjusted for WCB payments as noted below)

$ 92,111.00

$1,308.47

$90,802.53

 

[103]     The Father further testified than in 2011 his income was unusually low because of a three-week labour lockout and a union work to rule campaign during which period no overtime was worked.

[104]     The Father testified that in 2013 and 2014 he sold all of his shares in his employer corporation acquired through a share option plan in anticipation of his upcoming retirement.  The employer is an employee-owned corporation.  He estimated that the proceeds amounted to approximately $10,000.00 to $12,000.00 over 2 years hence his income for those particular years was higher than usual.  Based on the income tax information and other documentary evidence filed and entered it is difficult to determine exactly where this income was shown in the Notices of Assessment.  I can only presume that the sale proceeds are included as part of his line 150 income for those two years.  There is no available Schedule of Capital Gains (or Losses) or any Statement of Investment Income from his T1 General Return nor any other information made available about the income realized from the disposition of these shares.

[105]     According to the Father’s testimony in 2015 the Father was injured at work, requiring biceps surgery in June 2015 thereby reducing his ability to earn overtime.  He received a Worker’s Compensation payment that year of $10,121.55.  That Worker’s Compensation amount was included in his line 150 income but that amount, as I understood it from the Father’s evidence is tax-free and hence in the normal course would be grossed up by approximately 1/3 to reflect the gross amount on a pre-tax basis.  That results in an increase adjustment of income of some $3,340.00 which would result in income for 2015 of some $92,111.00 less adjustment for union dues results in a 2015 income for Child Support Guideline of $90,802.53.  I note that in the 2015 T1 summary the $10,121.55 receipt from Worker’s Compensation is included as part of the line 150 income at line 147.  However that amount becomes deductible at line 257 in calculating the taxable income at line 260.  Hence it appears correct that no income taxes are payable on these Worker’s Compensation amounts.  The Father was required to have a second operation in late July or early August 2015.  A graduated return of work on light duty started in October 2015 during which time he was receiving part payment from his employer and part compensation payments from Worker’s Compensation.

[106]     In 2016 the Father says that he and his fellow union members were locked out for two weeks for the period from April 1st to April 12, 2016.  Hence the Father’s prediction for his 2016 line 150 income would be in the range of between $80,000.00 and $86,000.00.  The Father is presently working on a full time basis.  During the lock-out period he received $50.00 per day tax free strike pay.

[107]     The Father has complied with the monthly payments of $857.00 required by the April 2015 Interim Order and the payment of the lump sum amount of $8,500.00 required by the June 2015 Interim Order.  The Father testified that his cheque #62 in the amount of $850.00, which he described as being provided to the Mother as an “early child support payment” had never been cashed.  As at the dates of the hearing no additional amounts have been paid by the Father by way of child support or for any additional expenses.

[108]     The Father testified that at one time he had previously established and maintained an “education fund” for Child K as part of a verbal arrangement with the Mother.  It was not a Registered Education Plan.  His own parents made contributions to that fund but they divorced and discontinued their payments.  The Father testified that he “fell on hard times” and had to collapse the fund some years ago.  His parents have no present relationship with Child K and have not had one for many years.

[109]     As noted above the Father states that his whereabouts since separating from the Mother was or should have been known to the Mother and for that matter the Child K since his email and cell phone number have not changed since that time.

The Relationship of the Mother and the Father

[110]     The relationship between the Mother and the Father is and has been for many years very strained.  Following the time of their separation they maintained some contact which was focused and centred on the Father’s visitation with Child K but only up until part way through 2009.

[111]     The Mother testified that there had been incidences of domestic violence during the Parent’s time together with actual hitting occurring in August of 1998, prior to their separation.  She did not report this incident to the police or to anybody else.

[112]     The Parents’ contact ceased in or around the spring of 2009.  There is some conflict in the evidence about the circumstance surrounding the cessation of that contact which also coincided with the lack thereafter of ongoing contact and communication between the Father with Child K.

[113]     It does not appear that there was any significant, noteworthy or memorable event occurring at the last visit in the spring of 2009.

[114]     The evidence supports the conclusion that the Mother asked the Father for some financial help for Child K at the time of that last visit between the Father and Child K in 2009 and which marked the end of meaningful contact and communication between the Parents.

[115]     In response to the request, the Father offered to contribute $3,000.00 towards a trip to Disneyland.  The Mother accepted the offer.  The amount was never paid and the Mother never reminded the Father about the accepted offer and the non-payment nor did she pursue that or other financial support or contributions from the Father for the support of Child K in any fashion.

[116]     The evidence suggests that prior to 2009 the Father had somewhat regular contact with Child K, including in person visits even after he had moved to the lower mainland.

[117]     The Father did continue to provide the Mother with occasional payments for things such as air fare to the Maritimes from the date of separation until 2009.  He purchased Child K a motorized ATV 4-wheel-drive in or around 2006.  The Father believed that the Mother was both overly restrictive and interfering during his visits with Child K and was not encouraging or promoting his relationship with his daughter.

[118]     The Mother believed that she went out of her way “to allow” the Father to have access to Child K.  No steps were taken by either party to deal with the questions relating to the Father’s ongoing access with the Child K (now referred to as parenting time in the Family Law Act) in the manner described in Sections 4.5 to 4.8 of the Separation Agreement.

[119]     The Mother suggested that the Father did not show up at important events, citing age 6 as the last time that he attended Child K’s birthday party.  The Father testified that his work obligations limited the amount of time off available to him in June around the Child K’s birthday.  The evidence supports that the Father has been very work focussed for many years.

[120]     The Father testified that he has always and continues each year to the time of the hearing, sent the Child K flowers on her birthday along with a message on an accompanying card.  The florists’ invoices and the Father’s credit card invoices tendered and accepted into evidence support that testimony.  It is noteworthy that the Child K does not believe that to be the case and is of the view that the Father discontinued sending her flowers several years ago, thereby contributing to her significant sense of abandonment by the Father.

[121]     The Father says that he received no acknowledgement or reply from the Child K or from the Mother regarding these flowers for the last 7 or 8 years.  Having now learned that Child K did not know about the annual gift of flowers, it raises the perplexing question for the Father as to why the Child K did not receive the birthday flowers and was therefore left with the impression that he had failed to reach out to her and to continue to acknowledge this important anniversary event in her life.

[122]     The Mother concedes that since that since 2009 and likely before that time she did not provide the Father with any information about Child K’s progress at school or how she was doing socially or with her activities.  In particular she did not inform the Father of Child K’s interest, talent and achievements in volleyball.  She suggests that the Father was somewhat aware of the Child’s circumstances prior to 2009.  It is clear that no consultation between the Parents in their roles as guardians of the Child K as agreed to and as set out in Section 4.3 of the Separation Agreement has ever occurred.

[123]     The Mother testified that she became concerned about some inappropriate remarks made in reference to the tongue of Child K by the Father in May of 1999 which she suggested contained some sexual innuendo.  Other individuals were present including a girlfriend of the Father who expressed criticism to him about the nature of his remark.  The Mother stated that this inappropriate remark made her very uneasy.  She sought some legal advice.  She says she reported her concerns to the Ministry of Children and Family Development or its predecessor in name.  No investigation occurred.  She testified that based on those discussions with Ministry officials she understood that she was not to allow the Father to have the Child K alone by himself.  There is no indication that she shared any of this information or her concerns with the Father.

[124]     The Mother testified that once again when Child K was about age 6 (which I therefore understand to be around 2004) the Father made another inappropriate comment containing sexual innuendo and in reference to Child K in the future working as a “stripper”.  Nobody else was present.  There is no indication that the Mother followed up to report the comments or her concerns to anybody, including the Ministry of Children and Family Development or to the Father.

[125]     However, when the Child was about age 12, (which I therefore understand to be around 2012) she told the Child K about the Father’s inappropriate May 1999 remarks.  There is no indication in the evidence that this disclosure included the 2004 inappropriate remarks.  She testified that she did this on the basis of advice received from a professional counsellor.  The Mother could not recall exactly what the counsellor had said or the apparent reason for that advice.  The Mother did testify that she was concerned Child K should have a “full understanding” of the Mother’s safety concerns for the Child K, if the Father wanted to be part of the Child K’s life.  It is noteworthy that this disclosure to Child K followed the time that the Father’s regular contact with Child K had ceased and the Child K was not responding to any gifts or communications from the Father.  Therefore that reason and the timing of the disclosure is somewhat puzzling and requires some further consideration by this court.

[126]     It was against this background and in response to a direct question from the court about what she thought the effect of this disclosure would have been on the relationship between Child K and her Father, that Mother testified that she felt that she tried hard not to say anything about the Father to the Child K and that she felt she was “trying to keep everything calm”.  Notwithstanding her expressed concerns and her stated reasons for the disclosure she later testified on cross-examination that the Child K was not then nor at the present time fearful of the Father.

[127]     The Mother contends that as a result of the domestic violence in their relationship and the inappropriate remarks made by the Father in 1999 that she was “fearful” of the Father and continued to be so for some 14 plus years.  In fact she cites her fear of the Father as a reason that she never approached him for child support of the Child K nor sought to revisit the issue of child support.  She further testified that she waited until January 22, 2014, when Child K “was older and less vulnerable” before she felt it was appropriate to seek to obtain child support for Child K.  She did not seek any legal advice about obtaining child support from the Father before 2013.

[128]     There was substantially no communication between the Parents from around 2009 until 2013 relating to child support or about the welfare and progress of Child K.  There was some communication which I understand occurred around 2011, when the Child K was approximately 13, and the Mother required the Father’s approval as a guardian to obtain a passport renewal for Child K.  Apparently no discussions occurred between them at that time about child support.

[129]     The Father does not recall ever telling the Mother at any time that the Child K did not need him anymore and that the Mother was doing a fine job raising her, all of which was contained in the Mother’s evidence.  I do not understand that he disputes that she has indeed done a fine job.  Notwithstanding that he cannot recall saying that, his conduct after 2009 relating to Child K certainly lends support to the Mother’s evidence.

[130]     The Mother did start reaching out to the Father by way of email and texts starting in September of 2013, shortly after the death of Nana, her own mother, suggesting to him that there be child support payments from him of $500.00 per month.  She testified that this amount was arrived at by her on the basis of a presumption that she and the Father were earning approximately the same amount of money.  She received texts from the Father indicating that he was prepared to help out and also seeking information about Child K.  It appears that the Mother provided very little information about the Child K to the Father.  No child support was forthcoming notwithstanding repeated reminders from the Mother.  She therefore filed the Mother’s Application on January 22, 2014.

[131]     The Mother concedes that at the time that she reached out to the Father and when she filed her Application in January of 2014 she was financially stretched having experienced reduced income while completing her Master’s program, paying for the mounting costs related to Child K’s volleyball activities and because her own mother, Nana, had passed away thus the financial support from that source had also terminated.

[132]     In his evidence, the Father offered little in the way of excuses as to why he did not pursue contact with the Child K after 2009, other than to say that he was not receiving any “thank you-s” or acknowledgements of the birthday flowers sent to Child K.

[133]     He denied that the reason he did not make any payment to the Mother in aid of the support of the Child K after 2009 was because he was not getting the opportunity to see the Child K without the Mother being present.

[134]     However his excuse for not raising the issue of child support with the Mother prior to her contacting him in 2013 was because he was “upset” and “stubborn” and “nothing else”.  I interpret that those emotions and feelings were directed at the Mother and seemed to be based upon the strained relationship he had with her and particularly as it related to the Child K and his relationship with Child K.

[135]     His lack of response to the Mother’s communications and his lack of forwarding any payments or other financial information, in part, appears to have been based on the fact that Mother was not providing him with adequate information about Child K.  That upset him and I infer that he continued to be “stubborn” because of that.  It is noteworthy that until contacted by the Mother in 2013 there is very little to indicate that he had specifically requested any information about Child K.

[136]     The Father testifies that since the Mother made contact with him in 2013 he has taken steps to attempt to rekindle his relationship with Child K.  That has presented several challenges to the Parents and to Child K.

[137]     The Father has attempted to make contact with the Child K by way of cards, personal letter correspondence and by electronic means.  He has attended a number of her volleyball tournaments.  Many of these attendances came as a result of invitations and suggestions made by the Mother to him.

[138]     Early on he believed his attendances were being welcomed by Child K and that when they met on those occasions that she was affectionate and engaging with him.

[139]     The Father attended the 2015 Provincial Volleyball Tournament in April of 2015.

[140]     In May of 2015 the Father contacted the Mother expressing an interest in attending a National Volleyball tournament in Calgary.  The Mother provided information to him.  He did not attend nor did he inform the Mother or Child K of that decision, which he says was based upon his own budgetary constraints.

[141]     The Father testified that from April of 2015 after the Provincial Volleyball Tournament until February of 2016 he had limited contact with Child K.  His texts, calls and messages had not been acknowledged nor responded to and Child K had blocked him from Facebook, but while maintaining contact with the Father’s girlfriend who had served as somewhat of a conduit for communication.  He sent Child K a number of letters and cards containing his apologies to her after he read the Views of the Child Report and after the 2015 Provincial Volleyball Tournament in April of 2015.

[142]     As I understand it communication once again started either directly or indirectly in February of 2016 and continued in some limited fashion until his attendance at the 2016 Provincial Volleyball Tournament in mid-April of 2016.

[143]     More recently he interprets the reaction of Child K as somewhat less than welcoming and in the case the Mother as hostile towards him.  Most unfortunately, rather than fostering the Father and Child K’s relationship, the Mother has on more than one occasion (and in particular on one notable occasion at the Provincial Volleyball Tournament in April 15, 2016) used the Father’s attendances as an opportunity to confront the Father regarding financial issues and other similar matters relating to the Child K.

[144]     On April 15, 2016, the Mother initiated discussions that took place both publically and in front of the Child K, who understandably became quite distraught.  Finally one of the volleyball coaches separated them and requested that the Father leave.  He did. This situation was very distracting, troubling and embarrassing for Child K.  The Father testified that the Mother also made public comments about his past infidelities that were overheard by Child K.

[145]     Subsequently, the Father sent her a form of apology via text to Child K for having to witness this most unhappy event.

[146]     Since that event, the Father has had no direct contact with the Child K and there have been no texts, no Facebook communications, no phone call, emails or other exchanges.  The Father has received no further communication from Child K about her Grade 12 graduation, about which they had previously spoken.  He has no record of any missed calls on his cell from her.

[147]     The Father generally has concluded and is of the view that the Mother has been continuing to attempt to undermine his attempts at re-building a relationship with Child K.  He says he left some of these volleyball events early because of these feelings and the fact that he felt he was being ignored by Child K.  The Mother suggests that these feeling are unfounded and the Father has failed to recognize that Child K was not ignoring the Father but simply was focussing on and fulfilling her responsibilities to her coach and to her teammates and that she did not have an appropriate opportunity to engage with the Father prior to his early departures.

[148]     The Mother suggests in her evidence that she has taken steps in order to have the Child K maintain contact with the Father.  However, the Mother notes that Child K must make her own decisions regarding pursuing the relationship with her Father which has been interrupted and non-existent for so many years.  She is in the view that Child K “is not yet ready” to pursue their relationship.

[149]     The Father testified that he did not have any way of contacting Child K except through the Mother. He did not do so because he did not want to have to comply with her various demands or wishes. In his words, he did not want to “be bullied into things without having a chance to say something about it”. He contends that the Mother’s behaviour amounts to “parental alienation”.

[150]     The Mother contends that in recent months the Father agreed to share the volleyball costs for Child K. The Father acknowledged the importance of volleyball in Child K’s life. Notwithstanding repeated requests of the Mother made by the Father, she provided little in the way of information to support the amounts that the Mother suggests she has spent on the Child K’s volleyball activities for the last 4 plus years, that is prior to preparation of the required disclosure for the hearing of these matters before this court.

[151]     The Mother and the Father have been very much at odds over expenses relating to Child K’s graduation. The Father has been very reluctant to share in expenses incurred by the Mother, again on the basis that he has had no input nor was he consulted regarding those expenditures. He testified that he spoke to Child K and told her that he wished to make his own separate purchases for the Child K’s graduation.

Parental Relationships With the Child

[152]     As I understand the timing sequence, before the unhappy incident between the Parents took place at the April 15, 2016 Provincial Volleyball Tournament, the Father and Child K had actually spoken about their relationship on some occasions at the volleyball events.

[153]     The Child K expressed feelings of abandonment and resulting resentment towards the Father, citing such things as the lack of flowers on her birthday and no contact for several years. The Child K expressed a lack of trust in the Father but did acknowledge receipt of a letter of explanation and outreach sent by the Father. In response Child K told him that she and the Mother were “a team”. The Father testified that he told her that he agreed with that statement.

[154]     The Father says that he wants to have an open relationship with Child K and to have the opportunity to “explain myself” to her. According to the Father, Child K had expressed a willingness to engage in counselling with the Father, the goal being to assist them in the restoration of their relationship. That counselling has not proceeded but it is the basis of the relief sought in the Father’s Notice of Motion filed May 16, 2016.

[155]     While the Father has counselling services as part of his employment benefits package, he has not made contact with a counsellor nor with any other professional to receive advice about how to get Child K engaged in that process with him. He describes himself as “waiting patiently” for Child K to respond to his outreach to her, saying the “ball is in her court”.

[156]     Understandably the Mother and Child K have a very strong bond and relationship with each other. The Mother has been the sole caregiver and provider for Child K for so long as Child K can recall. The Mother has been very involved in the Child K’s life at all levels. It is apparent from the evidence that the Mother, Child K, Child A, and Nana comprised a very cohesive family unit. It is clear that the Mother has encouraged Child K in her volleyball pursuits and has been willing to make significant personal and financial sacrifices in order that Child K could play at a highly competitive level.


 

The Section 211 Views of the Child Report

[157]     As noted above the Views of the Child Report was prepared pursuant to the April 13, 2015, Interim order.

[158]     Family Justice Counsellor Lisa Bury was told by Child K at their interview that she has a very strong relationship with the Mother. She described her Mother as “the person she can always count on”. Child K was described in the report as becoming “very emotional about her gratitude for her mom and all the sacrifices she has made” so that the Child K could play volleyball.

[159]     Based on her interview with Child K, Ms. Bury reports that the Child K recalls fairly regular visits with the Father until she was approximately 8 years of age. That frequency declined between the ages of 8 and 10. Child K’s last vivid memory of the Father was on her tenth birthday when she received her annual roses from him. Child K then described that the Father just disappeared around her tenth year. Child K then indicated that she tried to call the Father on Father’s Day after her tenth birthday but that he did not call or send any further presents or make further contact with her.

[160]     Child K reported emotionally to Ms. Bury that she found the Father’s attempt to reconnect with her by attending the 2015 Provincial Volleyball Tournament as very stressful and emotional for her. The Views of the Child Report states that the “idea of being forced into contact with her Dad is creating anxiety for her”.

[161]     Child K further indicated very emotionally to Ms. Bury that she felt frustrated about having to deal with the Father’s attempts to rekindle their relationship after so many years of absence from her life. This, of course, was based in part on her belief that he quit sending her roses for her birthday after her tenth birthday and that he did not respond to her nor attempt to reach out to her. She told Ms. Bury that her Mother asked her around Father’s Day if she wanted to try to call her dad but she declined to do so because she did not want to “feel the rejection”.

[162]     The Views of the Child Report contains the following important statements:

[Child K] has put a lot of thought into what the potential is for her relationship with her Dad. She feels very reluctant to commit to anything regarding him. She feels before she can move on she needs a sincere apology and an explanation around how he could “just walk out of my life”. She states she is willing to try if he is, stating “I am open to whatever he is willing to give, but I do not have a lot to give back right now”.

If [Child K] could tell the Judge one thing it would be “I do not want to be forced, I am not ready and I will do it on my own terms and in my own time”. She went on to highlight “when I am ready, he will need to make up for lost time”. [Child K] is open to her Dad sending her a letter, but she does not want to commit to a response.

 

[163]     It is important to note that the Views of the Child Report was completed before the very unfortunate incident at the 2016 Provincial Volleyball Tournament but apparently subsequent to the Father’s letters to her and his cards saying that he was “sorry” for her feelings of abandonment and apparently asking Child K why she felt that way.

[164]     However the apparent lack of communication from the Child K to the Father after the 2016 Provincial Volleyball Tournament must be considered both in the context of the views of the Child K as expressed to Ms. Bury and recorded in the Views of the Child Report and the embarrassment and anxiety caused to her by the unhappy events at that tournament.

[165]     The Father suggests that the Child K was “coached” by the Mother about what to say in the interview with Ms. Bury. He offers no evidence to support that position other than his assessment of what Child K stated to Ms. Bury.

POSITIONS OF THE MOTHER

[166]     The Mother’s position on the issues may be summarized briefly as following:

1.         The Child K should not, by way of court order, be required to have a relationship with the Father nor be required to undergo counselling unless it is her personal wish to do so.

2.         The Father should have been paying child support for the Child K from 2004 after the Child S had graduated from school and was working hence was no longer a child of the marriage.

3.         Alternatively, child support should be ordered on a retroactive basis against the Father for some 7 years prior to September 2013, being the date she made contact with him about paying child support.

4.         The volleyball costs are “special or extraordinary expenses” and depending on the extent of the retroactive child support that is ordered that the Father should be paying an amount ranging from the entire amount of those costs (if the ordered retroactive child support amount is limited) to an amount of between 50% and 60% (if the retro- active amounts ordered are more generous).

5.         The Father should be ordered to pay ongoing special and extraordinary expenses relating to the beach volleyball, Grade 12 graduating expenses and future university educational expenses for Child K.

 

POSITIONS OF THE FATHER

[167]     The Father’s position on the issues may be summarized briefly as follows:

1          On the issue of his parenting time and relationship with his daughter, Child K, he is of the view that he should be entitled by way of court order to receive her email address and her cell phone number in order that he may continue to attempt to remain in communication with her, rather than being required to direct his communication through the Mother. That is based on the Father’s contention that the Mother’s conduct as it relates to Child K’s relationship with him amounts to parental alienation.

2.         He views the issue of counseling with Child K to be important and he wishes to pursue it. That said he does accept that such counselling will require engagement by his daughter and when she is prepared to proceed.

3.         The Father does not deny his responsibility to be paying child support but he does submit that he should be paying child support from September of 2013 when the Mother contacted him.

4.         Alternatively, if he is ordered to pay retroactive child support it should be for a maximum of three years and that the court should be mindful that for him to pay all accrued arrears flowing from such an order that it will necessitate him remortgaging his residence. Further he contends that he will have to continue to work beyond his projected retirement date thereby depriving him of the enjoyment of a well-earned retirement after 38 years of work. .

5.         The Father says that volleyball costs should not be characterized as special and extraordinary expenses but if they are, then the amounts are unreasonable and that the court should not accept the Mother’s evidence regarding the amounts being claimed by her. The Father urges the court to allow him to make voluntary payments as he may wish towards those volleyball costs but should not be required to do so.

6.         The Father says that with respect to the other categories of special and extraordinary expenses being claimed by the Mother, that he should have some input and say as to the amounts for which he should be responsible. He supports the notion of Child K attending university but expresses concern about what those expenses may entail and also suggests that his input is required if he is to bear a share of those expenses.

 

RELEVANT PROVISIONS OF THE FAMILY LAW ACT

[168]     For the benefit of these self-represented parties I refer them to the following parts and the sections contained within them of the Family Law Act [S.B.C 2011, c 25 and amendments thereto] (the “FLA”). Many are relevant to the issues before the court and to which I may make reference and rely upon in the course of my reasons. They are as follows:

PART 1 — Interpretation “Definitions” (sections 1 to 9 inclusive)

PART 2 — Resolution of Family Law Disputes and Division 1 - “Resolution Out of Court Preferred” (sections 4 to 9 inclusive), and Division 2 - “Family Justice Counsellors” (sections 10 to 19 inclusive);

PART 4 “Care of and Time with Children” and Division 1 - “Best Interests of Child” (sections 37 and 38), Division 2 - “Parenting Arrangements” (sections 39 to 48 inclusive), Division 3 - “Guardianship” (sections 50 to 57), Division 4 - “Contact with the Child” (sections 58 to 60 inclusive), and Division 5 - “Compliance Respecting Parenting Time or Contact with the Child” (sections 61 to 64 inclusive);

PART 7 “Child and Spousal Support” and Division 1 - “Definitions” (section 146), Division 2 - “Child Support” (sections 147 to 152 inclusive), Division 3 - “Child Support Service” (sections 153 to 159 inclusive), and Division 5 - “General”;

PART 9 — “Protection From Family Violence” (section 182 to 190 inclusive);

PART 10 — “Court Process”, Division 4 - “General Orders the Court May Make” (sections 211 to 221 inclusive), Division 5 - “Orders Respecting Conduct” (sections 222 to 228 inclusive), and Division 6 - “Enforcement Generally” (sections 229 to 231 inclusive).

 

Law Relating to Care of and Time with Children and to Parental Responsibilities

[169]     Section 40(2) of the FLA provides that each guardian may exercise all parental responsibilities with respect to a child and must do so in the best interests of the child in consultation with the child’s other guardians, unless an order or agreement provides to the contrary.

[170]     No particular parenting arrangement must be presumed to be in the best interests of a child, including that parental responsibilities or parenting time should be shared equally or that decisions about a child should be made separately or by more than one guardian together [see section 40(4)].

[171]     Section 41 lists the parental responsibilities that may be allocated by agreement or court order such that they can be exercised by one or more guardians, each guardian acting separately or all guardians acting together [see section 40(3)].

[172]     In section 42 the term “parenting time” is stipulated to be the time that a child is with a guardian, as allocated under an agreement [see section 44] or court order [see section 45] and under section 45(3) the court may order that parenting time be supervised.

[173]     During parenting time, subject to an agreement or court order that provides otherwise, a guardian may exercise the parental responsibility of making day-to-day decisions affecting the child and will have day-to-day care, control and supervision of the child [see section 42(2)].

[174]     Section 43 of the FLA stipulates that a child’s guardian must exercise their parental responsibilities in the best interest of the child.

[175]     Section 44 of the FLA permits agreements respecting parenting arrangement to be made between two or more of a child’s guardians. Subsection 3 permits the enforcement by the court of a written agreement respecting parenting arrangements which has been filed with the court as if it were an order of the court. Subsection 4 requires that, upon application by a party, the court set aside or replace with an order made under Division 4 of Part 4 all or part of an agreement respecting parenting arrangements if the court is satisfied that the agreement is not in the best interests of the child.

[176]     Under section 45 upon application by a guardian a court may make an order respecting one or more of the following: (a) the allocation of parental responsibilities; (b) parenting time; (c) the implementation of an order made under Division 4 of Part 4 and the means for resolving disputes respecting an order made under Division 4.

[177]     Section 49 provides that a guardian may apply to court for directions on an issue affecting the child.

[178]     Section 37(1) provides that the only consideration that the court must take into account in making an order, or parties must take into account when making an agreement respecting guardianship, parenting arrangements or contact is in the child’s best interests. In determining the child’s best interests, the list of factors set out in section 37(2) must be considered. The listed factors are non-exhaustive. Section 37(3) further stipulates that an agreement or order is not to be in the best interests of a child unless it protects to the greatest extent possible, that child’s physical, psychological and emotional safety, security and well-being.

[179]     The conduct of a person may be considered by the court only if it substantially affects any of the factors set out in subsection (2) and only to the extent that it affects that factor.

[180]     Two of the factors listed for consideration under section 37 (2) relate to family violence, as that term is defined in section 1 of the FLA. Those subsections are:

1.         subsection (g) requiring a consideration of the impact of any family violence on the child’s safety, security or well-being, whether directed towards the child or another family member ; and

2.         subsection (h) requiring a consideration of whether the actions of a person responsible for family violence indicate that such person may be impaired in his or her ability to care for the child and meet the child’s needs;

 

[181]     Guidance is found under section 38 when the court assesses family violence as a consideration in determining the best interests of a child.

[182]     Under section 37(2)(j) the court and other decision-makers are required to consider the parties prior involvement in civil or criminal proceedings that may be relevant to the child’s safety, security and well-being.

[183]     The variation of a court order for parenting arrangements is governed by section 47. The court may change, suspend or terminate an order for parenting arrangements if satisfied that there has been a change in the needs or the circumstances of the child. This includes any change in the circumstances of another person since the order was made.

[184]     Division 4 of the FLA deals with contact with the child. The time that a person who is not a guardian of a child has with that child is referred to as “contact”. This includes time for a parent who is not a guardian. The court may make an order that a person who is not a guardian have contact with a child [see section 59] or the guardians may make an agreement about contact [see section 58]. Again, the best interests of the child must be considered.


 

ANALYSIS WITH RESPECT TO THE FATHER’S CROSS APPLICATION FOR PARENTING TIME AND RELATED INFORMATION ABOUT CHILD K

[185]     The Separation Agreement contains provisions that make it an agreement respecting parenting arrangements within the meaning of section 44 of the FLA.

[186]     The evidence clearly indicates that both of the Parents, each being a guardian of Child K, have not complied with the parenting arrangement provisions of the Separation Agreement. In particular the Mother, who has been the lifelong caregiver of Child K, has failed to consult with the Father as contemplated by section 4.3 of the Separation Agreement. The Father has demonstrated no interest in being consulted on those matters and by default has left those matters to the Mother.

[187]     Similarly the Mother has failed to make proper disclosure to the Father and to confer with him about matters touching the welfare of the Child K as required by section 4.9 of the Separation Agreement. Since ceasing direct contact with Child K after his last in person visit with Child K in 1999 until the fall of 2013 the Father never initiated any requests about these matters and when he did, little if anything was forthcoming from the Mother.

[188]     Neither Parent sought to establish a permanent schedule for the Father’s access to Child K as agreed to in Section 4.6 of the Separation Agreement

[189]     Little, if anything, has been done by either Parent to “instill in the child love and respect for both parents” as further stated in section 4.9. The Mother made disclosure to Child K about some of the inappropriate remarks made by the Father citing safety and full disclosure concerns as the reasons for providing that information to Child K at age 12. Given the fact that the Child was not having any direct contact whatsoever at that time and had not had any such contact for some 3 years, I find those reasons to be objectively unsatisfactory. I have concluded that the Mother’s disclosure was meant to cast the Father in a poor light and to make Child K more wary of the Father and to chip away at any remaining positive aspects of their relationship; however, that relationship had already been significantly harmed by his lack of in person contact with Child K.

[190]     I accept that the Father attempted to continue some indirect contact with Child K by continuously sending her birthday flowers. When he received no acknowledgement he took few if any steps to follow up to confirm that they had been received by Child K either by contacting the florist, or by contacting the Mother or Child K. There is not sufficient evidence for me to conclude that the Mother was preventing or intercepting those deliveries before they reached Child K but I can reasonably draw the inference that for some reason, either by an act of commission or omission, somebody did prevent the deliveries from occurring and if deliveries did occur then somebody prevented Child K from receiving them or from knowing that they had been sent by the Father. I could speculate that it was the Mother or the Nana but to do so would be unfair on the basis of the evidence before me. It is also apparent that the Mother never followed up with the Father to determine if he had sent anything to acknowledge Child K’s birthday.

[191]      What is clear on the evidence is that Child K attributes the lack of receipt of some acknowledgment of her birthday from her Father as further evidence of his lack of interest in her and as a symptom of his abandonment of her.

[192]     I do conclude on the evidence before me that the Mother was quite satisfied for the Father to have very limited or no contact with Child K, preferring the family unit to consist only of herself, Nana, Child K, and Child A. The Father also made a choice to not take any steps to foster the relationship or for that matter to use any diligence in pursuing a relationship with his daughter other than to arrange for an annual flower delivery.

[193]     The Father cites his dissatisfaction with the Mother’s control and supervision of his relationship and visitations with Child K and his own responding stubbornness as the basis of his action or lack of action in that regard. He was apparently also more focussed on his work responsibilities than in taking time to pursue the relationship. In addition he took absolutely no steps, as contemplated by the Separation Agreement or otherwise, to establish or improve that relationship through a permanent parenting time schedule. It is also noteworthy that his parenting time and communication with Child K ceased shortly after the Mother raised the issue of child support in 1999.

[194]     It may be overly harsh to conclude that the sole motivating factor for him ceasing any in person relationship or direct communication with Child K was to avoid having to undertake further discussions to reach an agreement with the Mother concerning future child support as contemplated by Section 3.7 of the Separation Agreement. However it is a reasonable inference that it was a least one of the factors that shaped his behaviour regarding Child K and their relationship after 2009 and up until the issue child support was once again raised in 2013 by the Mother.

[195]     The Father places reliance upon the suggestion that the Mother’s existing and long held attitude towards him and her various action are designed to alienate Child K from him.

[196]     L.G. v. R.G., 2012 BCSC 1365, and the cases discussed therein by Mr. Justice Neil Brown, provide an examination of a number of factors that must be considered including parental behaviour and actions as well as children’s behaviour and attitudes towards parents to determine whether a court can make a finding that parental alienation is at play or a child is afflicted by Parental Alienation Syndrome (PAS) as is alleged by the Father in his affidavit sworn May 10, 2016 in support of his application for the court to make an order for counselling and to “ask for no interference from mother”.

[197]     I cannot conclude on the basis of the evidence that is before me that this is a case of parental alienation or PAS. I have no expert report or expert evidence that would allow me to reach that conclusion about PAS.

[198]     In L.G. v. R.G. the court at least had some expert evidence to consider. As Mr. Justice Brown noted, he had many of the examples of characteristics of PAS arising out of the facts before him. However, he concluded that he could make no findings in the absence of a valid psychiatric or psychological diagnosis within the psychological/psychiatric disciplines or in Canadian law. [See paragraph 205].

[199]     As the court further noted in L.G. v. R.G. parental alienation as opposed to PAS focuses on the behaviour of the alienating parent. The descriptors of that behaviour are outlined at paragraph 203 of that decision.

[200]     At first blush, some of those descriptors arguably might describe some elements of the behaviour of the Mother in this case. In my view the overall behaviour of the Mother falls considerably short of parental alienation. Based on the entirety of the evidence, including the recitations from the Views of the Child Report, the cause of the failed relationship between Father and Child K, for the most part lies with the absence of the Father from the life of Child K for many years and her significant feelings of abandonment and then her understandable confused and anxious reaction to the eventual attempts of her Father to return into her life. I reject as unfounded and unsubstantiated the suggestion that Child K’s views expressed to Ms. Bury were forthcoming as a result of coaching by the Mother.

[201]     This is not a case that will turn on a finding of parental alienation or PAS when considering the Father’s various claims as it relates to Child K. Considerations of the best interests of the Child must be considered without any context of there being any existing parental alienation or PAS.

[202]     Therefore I will now deal specifically with the consideration of the section 37(2) factors in assessing the best interests of the Child K to determine what if any relief or orders are to be granted in this situation.

Section 37(2)(a): The Child’s health and emotional well-being

[203]     Child K’s health is not an issue but her emotional well-being certainly is. She is anxious about her Father attempting to rekindle his relationship with her, all for the reasons she expressed in the Views of the Child Report.

Section 37(2)(b): The Child’s views unless inappropriate to consider

[204]     Child K’s views as expressed in the Views of the Child Report are entirely appropriate to consider and appropriate weight must be accorded to them given that she is in her late teens. However the court is not necessarily bound by those views. In this case I accept that for the relationship between the Father and the Child K to be resurrected and to heal that it must at least initially be on the Child K’s terms. In my view counselling for both Child K and the Father both individually and together is vital and will assist them significantly. It will require more than stating a preparedness to engage in counselling. Professional advice needs to be obtained by the Father to deal with the preliminary issues of the nature and timing of that counselling and the method to obtain successful mutual engagement by the Father and Child K. Given all of these factors Court ordered counselling is inappropriate in this case. Court ordered parenting time in this case is also inappropriate and not in the best interests of Child K.

Section 37(2)(c) The nature and strength of the relationships between the Child and significant persons in the Child’s life

[205]     The evidence is clear that the Mother and Child A, (and Nana while she was alive) represent the foundational strengths of Child K’s family life. They also represent very positive aspects of Child K’s life. Given the present state of her relationship with her Father it can be properly characterized as currently quite insignificant. That is not to say that their relationship is irretrievable and may in the future become significant.


 

Section 37(2)(d) The history of the Child’s care

[206]     The Mother has completely dealt with the care of the Child K and has been solely responsible for very successfully exercising parental responsibilities. Given that Child K is approaching adulthood any intervention by the Father’s in these parental responsibilities at this late date is both unnecessary and inappropriate. It would not be in the best interests of Child K.

Section 37(2)(e):The Child’s need for stability, given the Child’s age and stage of development

[207]     Child K has always had a stable life and home. The only destabilizing factor presently faced by Child K’s is the emergence of the Father in Child K’s life and her apparent resulting anxiety and a rekindling of her long held feelings of abandonment. This destabilizing factor needs to be taken into account when considering the relief sought by the Father. This destabilization is not in Child K’s best interests.

Section 37(2)(f):The ability of each Guardian who seeks parenting time or parental responsibilities to exercise his or her responsibilities

[208]     The ability of the Mother to exercise parenting time or parental responsibilities is not in issue and not of any concern. On the whole of the evidence and given the age of Child K there is nothing to suggest that Father is capable of or poses any safety risk if he were to be exercising parenting time or parental responsibilities. However, exercising parenting time with Child K on an obligatory basis does not at present time reflect Child K’s wishes and as noted above does not deal in an appropriate manner with the anxiety that Child K is experiencing at this time.  Parenting time by the Father with Child K in the future on a mutually acceptable basis and at mutually acceptable times is appropriate and is in her best interests.

Section 37(2)(g): The impact of family violence on the Child’s safety, security or well-being

[209]     Given that any family violence in the relationship between the Parents was limited, occurred in the distant pass and apparently did not involve Child K nor did it occur in her presence and given the present age of Child K, I do not consider this to be a relevant factor in determining the best interests of Child K and specifically as having any impact on her safety, security or well-being. I do not view the Child’s anxiety about the emergence of the Father in her life as having any foundations in family violence.

Section 37(2)(h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the Child and meet the Child’s needs

[210]     Similarly the historic nature and apparent limited amount of family violence between the Parents cannot be considered at present time as an impairment of the Father’s ability to meet the needs of Child K.

Section 37(2)(i): The appropriateness of an arrangement that requires Guardians to cooperate on issues affecting the Child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the Child or other family members

[211]     Given the more advanced age of Child K and the general lack of a requirement for the Parents to cooperate, other than to be civil with each other and to deal appropriately and constructively with ongoing child support matters, I do not consider this to be a relevant factor in this case. The type of unhappy and unnecessary events at the volleyball tournaments when financial issues relating to Child K and past relationship matters were raised publically and heatedly in the presence of Child K are certainly not in her best interests and must be avoided entirely.

Section 37(2)(j): Any civil or criminal proceedings relevant to the Child’s safety, security or well-being

[212]     The evidence does not disclose any civil or criminal proceedings relevant to the safety, security or well-being of Child K.

Some Other Matters of Concern and Relevance

[213]     The Father needs to have some reliable method of communicating with Child K. However Child K requires a means by which she maintains some control over that communication.

[214]     I have weighed the scope of the requests of the Father. When I balance these requests against the wishes of Child K and her present views about her relationship with the Father and how she wishes to engage with her Father, the broad scope of the means sought by the Father is not in the best interests of Child K. I have concluded that what should be made available to the Father by the Mother is Child K’s current and updated postal mailing address in order that he can continue to correspond with her and to attempt to build his relationship with her. If Child K chooses to provide the Father with her other contact particulars at some time in the future that will be her choice as a young adult. The Father must respect that choice of Child K as a young adult.

[215]     There also needs to be some assurance that the mail sent to that address is passed along to Child K, especially if she continues to reside with the Mother. Accordingly there should be an order that any correspondence sent by the Father should contain his name and return address on outside of the envelope and the Mother should be required to take reasonable steps to ensure that any postal communication received at the Mother’s residence is forwarded to or delivered directly to Child K unopened and to confirm to the Father that such has occurred.

[216]     Since I will be making orders below setting out the requirement of the Father to pay for a portion of the Section 7 special expenses for Child K’s post-secondary education it is only fair that the Father be kept apprised of Child K’s progress. Therefore the Mother should be ordered to ensure that confirmation of Child K’s enrolment in a post-secondary institution and any change in that status is provided to the Father together with copies of transcripts showing Child K’s end of term marks all within 10 days of receipt. That will also include Child K’s final Grade 12 transcripts because they form an important basis for determining the appropriateness of Child K’s future educational plans.

Conclusions and Orders With Respect to the Relief Sought by the Father

[217]     Based on all of the above I make the following final orders on the following terms:

A.       FATHER’S PARENTING TIME ORDERS

1.         The applications for relief set out in the Father’s Cross Application are dismissed.

2.         The Father’s application for court ordered counselling for Child K born [omitted for publication] ( the “Child”) and an order for no interference from the Mother as set out in his May 10, 2016 Notice of Motion is dismissed.

3.         No orders will be made enforcing or varying any of the provision of the Separation Agreement as it relates to the Father’s parenting time with the Child nor as it relates to section 4.3 of the Separation Agreement except there will be a conduct order pursuant to section 222 of the Family Law Act that the Mother will notify the Father forthwith of any medical emergencies that may affect the Child or of other significant matters that may affect the well-being or safety of the Child.

4.         As a further conduct order pursuant to section 222 of the Family Law Act the Mother will provide to the Father the Child’s current and updated postal mailing address for so long as the Child remains a child of the marriage and is in receipt of child support from the Father. Any correspondence sent by the Father to the Child shall contain his name and his return postal address on the outside of the envelope addressed to the Child and so long as the Child’s current postal mailing address is the Mother’s residence, the Mother shall be required to take reasonable steps to ensure that any postal communication received at the Mother’s residence for the Child is forwarded to or delivered directly to the Child unopened within a reasonable time and to thereafter by email to the Father immediately confirm that such has occurred.

5.         As a further conduct order pursuant to section 222 of the Family Law Act the Mother will provide to the Father written confirmation from any applicable post-secondary institution of the Child’s continuing enrollment in a post-secondary program and any change in that status and the details of the program in which she is enrolled together with copies of post-secondary transcripts showing the Child’s end of term marks achieved at that post-secondary institution, all within 10 days of that information becoming available. The Mother will provide the Father with a copy of the Child’s Grade 12 graduating transcript showing her courses and the marks achieved no later than September 15, 2016.

 


 

THE LAW RELATING TO CHILD SUPPORT AND RETROACTIVE ORDERS AND SPECIAL AND EXTRAORDINARY EXPENSES

Child Support Provisions of the Family Law Act

[218]     Section 147 (1) of the FLA imposes the duty upon each parent and guardian of a child to pay child support. Section 150(1) of the FLA requires that a child support order must be determined in accordance with the Federal Child Support Guidelines (SOR/97-175, effective May 1, 1997) [the “Guidelines”]. Despite subsection (1) and pursuant to the provisions of subsection (2), a court may order child support in an amount different from that required by the Guidelines if the parties consent to an order being made under section 219 of the FLA or have an agreement respecting child support (see section 148) and the court is satisfied that reasonable arrangements have been made for the support of the child. Under subsection 3 the court must consider the Guidelines for the purposes of subsection 2, but must not consider the arrangements made for child support to be unreasonable only because the amount required under the Guidelines differs from those arrangements. Furthermore despite subsection 150(1), a court may pursuant to subsection 4(a) and (b) order child support in an amount different from that required by the Guidelines if the court is satisfied that an agreement or order respecting the financial duties of the parents or guardians or the division or transfer property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and applying the Guidelines would be inequitable on consideration of the agreement, order or special provisions. Section 150(5) directs that if a court must give reasons for doing so if it makes an order respecting child support in an amount different from that required under the Guidelines. Under section 148 (2) a written agreement respecting child support that is filed in the court is enforceable under the FLA and Family Maintenance Enforcement Act as if it were an order of the court. Under section 148(3), on the application by a party, the court may set aside or replace with an order made under Part 7, Division 2 of the FLA all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in determining child support under section 150.

[219]     Section 152 of the FLA permits the court to change, suspend or terminate an order respecting child support both prospectively or retroactively. [see subsection (1)] Before making such an order, the court must be satisfied that a change in circumstances as provided for in the Guidelines has occurred, there is evidence of a substantial nature not available during the previous hearing that has become available, or there is evidence of a lack of financial disclosure by a party that was discovered after the last order was made.

Child Support Guidelines

[220]     Section 1 (a) to (d) of the Guidelines states that its objectives are to establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation, to reduce conflict and tension between spouses by making the calculation of child support more objective, to improve the efficiency of the legal process by giving the courts and parents guidance and setting the levels of child support orders and encouraging settlement and to ensure consistent treatment of spouses and children who are in similar circumstances.

[221]     The presumptive rule under section 3 of the Guidelines is that the amount of child support for a child under the age majority is the amount of the payor’s Guideline income set out in the applicable tables of the Guidelines and the amount, if any determined to be the special or ordinary expenses as set out in section 7 of the Guidelines.

[222]     Under section 6 of the Guidelines the court may order medical or dental insurance coverage to be acquired or continued for a child where it is available to a spouse through their employment or otherwise at a reasonable rate

[223]     Sections 10 (1) of the Guidelines permits the court upon application of either parent to award support that is different than the amount of support determined under sections 3 to 5, and 8 or 9 of the Guidelines, if the court finds that the spouse making the request would otherwise suffer undue hardship. The circumstances that cause undue hardship may include those that are set out in section 10 (2). If the court finds that undue hardship exists under section 10(1) then the court must compare the household standards of living of the two parents under sections 10 (3) and (4).

[224]     Section 14 of the Guidelines sets out any one or more of the things that give rise to a change of circumstances and may give rise to the making of a variation of a child support order, including a change in a level of support in accordance with an applicable Guideline table.

[225]     Pursuant to section 15 of the Guidelines and subject to subsection 15 (2) a spouse’s annual income is determined by the court in accordance with sections 16 to 20. Pursuant to section 15(2) of the Guidelines, spouses can agree in writing to the annual income of a parent for the purposes of the Guidelines. The court can use this amount where the court determines that the amount is reasonable having regard to the income information provided by the payor parent under section 21 of the Guidelines.

[226]     Pursuant to section 16 of the Guidelines, a spouse’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General Form issued by Canada Revenue Agency. It is adjusted in accordance with Schedule III of the Guidelines. Schedule III sets out adjustments to income for: employment expenses, child support, spousal support and universal child care benefits, for the purposes of calculating income for special or extraordinary expenses, for social assistance that is not attributable to that spouse, for the treatment of dividends from taxable Canadian corporations, for capital gains and losses, for business investment losses, carrying charges, net self-employment income, capital cost allowance for property, partnership or sole proprietor income, stock options received as an employee benefit, and for split-pension amounts.

[227]     Under section 17, the court may have regard for a spouse’s income over the last three years and determine an amount that is fair and reasonable in light of a pattern of income, fluctuation in income or receipt of a non-reoccurring amount during those years. Such discretion may be exercised if the determination of income under section 16 would not be the fairest determination of that spouse’s income. The court may impute income under sections 16 to 21 of the Guidelines. Specifically under section 23, income can be imputed in the situation where there has been a failure to comply with the parent’s obligation set out under section 21 to provide income information as detailed therein. Section 19 of the guidelines specifically addresses the imputation of income. It provides the court with discretion to determine that income of a parent for guideline purposes should be more than the total income calculated. The section sets out the following non-exhaustive list of circumstances where the court has discretion to impute income to a parent:

Imputing income

19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

a)           the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

b)           the spouse is exempt from paying federal or provincial income tax;

c)            the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

d)           it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

e)           the spouse's property is not reasonably utilized to generate income;

f)            the spouse has failed to provide income information when under a legal obligation to do so;

g)           the spouse unreasonably deducts expenses from income;

h)           the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

i)            the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Reasonableness of expenses

(2)      For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

 

[228]     Section 25 of the Guidelines creates a continuing obligation of financial information disclosure on the part of a spouse against whom a child support order is made. The disclosure requirement may be either on the written request of the payee spouse or that person’s assignee. The obligation is to provide the information not more than once a year after the making of the order.

Special or Extraordinary Expenses

[229]     The amount of the Guideline income of the payor and payee is relevant in determining the sharing of special and extraordinary expenses, which under section 7 of the Guidelines are to be shared by the parents in proportion to their incomes, after deducting the child’s contribution, if any [see section 7(2)].

[230]     The principles relating to special or extraordinary expenses are set out in section 7 of the Guidelines as follows:

Special or extraordinary expenses

7.(1)    In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s       spending pattern prior to the separation:

a)           child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

b)           that portion of the medical and dental insurance premiums attributable to the child;

c)            health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

d)           extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

e)           expenses for post-secondary education; and

f)            extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1)    For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

a)           expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

b)           where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

                                                i.            the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

                                               ii.            the nature and number of the educational programs and extracurricular activities,

                                             iii.            any special needs and talents of the child or children,

                                             iv.            the overall cost of the programs and activities, and

                                               v.            any other similar factor that the court considers relevant.

Sharing of expense

(2)       The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.


 

Subsidies, tax deductions, etc.

(3)       Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

 

Universal child care benefit

(4)       In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

 

[231]      It is established law that the court retains discretion to divide the parents’ obligations other than in proportion to their incomes taking into account certain factors [see: for example A. v. B., 2013 BCSC 60]

Retroactive Child Support

[232]     In a Supreme Court of Canada decision relating to four appeals with the neutral citation of D.B.S. v. S.R.G., 2006 SCC 37 (herein referred to as “D.B.S.”) the Court decided the issue of retroactive child support and laid out the framework of principles.

[233]     D.B.S. recognizes certain core principles underlining child support obligations. They include as follows:

1.            Child support is the right of the child not the recipient parent

2.            The right to support survives the breakdown of a child’s parents’ marriage

3.            Child support should provide a child, as much as is possible, with the same standard of living being enjoyed when the parents were together, and

4.            The specific amounts of child support owed will vary based on the income of the payor parent.

 

[234]     D.B.S. further recognizes that the Child Support Guidelines have an underlying principle that the support obligation of the payor parent should fluctuate with that parent’s income. Also parents have an obligation to support their children in a way that is commensurate with their income.

[235]     Both the parental obligation and the corresponding right of a child to support exists independently of any statute or court order. Furthermore if a payor parent does not increase child support payments to correspond with their income, that payor parent will not have fulfilled the parent’s obligation to the child (see paragraph 54).

[236]     In addition D.B.S. states that notwithstanding that there may be no statutory or other legal obligation on a parent to automatically disclose changes to income, there remains an unfulfilled obligation that could later result in court enforcement if the payor parent’s income rises and the amount of child support paid does not. An application to the court is a necessary trigger to the court’s jurisdiction but the court retains the power to make a retroactive order once it is properly seized of a matter (see paragraph 60).

[237]     Three separate situations are identified (see paragraphs 61-84) in which it may be appropriate for a court to order that a retroactive award be paid:

1.            Where there has already been a court order for child support to be paid;

2.            Where there has been a previous agreement between the parties; and

3.            Where there has not already been a court order for payment of child support.

 

[238]     The Supreme Court of Canada in D.B.S. noted that if the order for support has already been made that such an order is not truly retroactive. Such an order does not impose an obligation on a payor parent that did not exist at the time for which support is being claimed. This is because the payor parent always has the obligation to pay and the dependent child always has the right to receive child support in an amount that is commensurate with the payor’s income. Thus the amount ordered by the court is presumed to be the support obligation but that amount is not necessarily “frozen” because of this continuing obligation (see paragraph 68).

[239]     If there is a previous agreement on child support between the parties, such an agreement will be given considerable weight. However, the court may order a retroactive award if circumstances have changed and the actual support obligations of the payor parent have not been met and so long as the applicable statutory regime permits it (see paragraph 78).

[240]     In the situation where there has not already been a court order for child support to be paid it is unreasonable for the non-custodial parent to believe that he or she was living up to their obligation to support the child, absent such things as hardship or an ad hoc sharing of expenses with the custodial parent. Because the court is only enforcing an obligation that existed at the relevant time, therefore it is available to make such an award as a retroactive original order. In such a case, it is not making a retroactive order in the true sense of altering a court order that stated a certain amount was due on a certain date (see paragraph 80).  [See also Family Law Sourcebook for British Columbia, 2015, Continuing Legal Education Society of British Columbia, section 3.71].

[241]     In Semancik v. Saunders, [2011] BCCA 264 (“Semancik”) the British Columbia Court of Appeal states at paragraph 40 that it is the responsibility of both parents to ensure that the payor parent fulfils his or his actual obligation and where they fail in this obligation a court may order an award that recognizes and corrects that failure.

[242]     Semancik further notes that the factors set out in D.B.S. are applicable to making retroactive orders for section 7 expenses under the Guidelines (see paragraph 38). At paragraph 57 the Court of Appeal noted the important factual difference between retroactive awards for child support and section 7 expenses namely that the payor parent’s income is determinative of the child support obligation while the recipient parent knows the details of the section 7 expenses and must communicate that to the payor parent in order that the payor parent can fulfil their obligation (see paragraph 57).

Factors to be Considered for a Retroactive Order

[243]     Semancik provides a very useful summary of the factors identified in D.B.S. to be considered for a retroactive order as follows:

41       A retroactive award is not always appropriate. Such an award may provide the child with no discernible benefit, or may cause hardship to the payor parent (at para. 95). A retroactive award can impair the balance between certainty and flexibility in this area of the law (at para. 96), but such an award is not to be regarded as exceptional. "It cannot only be exceptional that children are returned the support they were rightly due" (at para. 97).

42       In D.B.S., Bastarache J. for the majority of the Supreme Court set out four factors to be considered in determining whether a retroactive award is appropriate: whether the recipient parent has a reasonable excuse for why support was not sought earlier; blameworthy conduct of the payor parent; the circumstances of the child; and whether any hardship would be caused by a retroactive award (at paras. 100-116).

43       Once a court determines that a retroactive child support award should be ordered, it must decide the amount of that award. One of the elements of that decision is the date to which the award should be retroactive (at para. 117). That date is the date when "effective notice" was given to the payor parent that child support or s. 7 expenses need to be paid. Effective notice does not require the recipient parent to take any legal action; "all that is required is that the topic be broached" (at para. 121).

 

                        …

47       In D.B.S., Bastarache J. suggested that a reasonable excuse for delay would include a justifiable fear that a payor parent would react vindictively to an       application for child support, or the recipient parent lacked the financial or emotional means to bring an application (at para. 101).

                        ….

 

50       In D.B.S., Bastarache J. described "blameworthy conduct" as "anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support" (at para. 106). He commented that "a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct" (at para. 107).

 

[244]     When examining the child’s circumstances, D.B.S. directs that a court should consider the past and present circumstances of the child, noting that a child who is enjoying a relatively high standard of living my benefit less from a retroactive award (see paragraphs 110 to 113).

[245]     D.B.S. further indicates in paragraphs114 to 116 that in determining whether a retroactive award is appropriate the court must broadly examine all the circumstances when considering the hardship implications on a payor parent of such a retroactive award. Whereas prospective awards are based upon what the payor parent can currently afford from current income, retroactive awards are based on past income. Thus the calculation of retroactive awards are not “intrinsically linked to what the payor parent can currently afford” especially if they have new families and new family obligations. These new family members may then face hardship. In short, D.B.S. notes that retroactive awards “disrupt payor parents’ management of their financial affairs in a way that prospective awards do not.” Courts therefore should attempt to craft the retroactive award to in such a way as to minimize hardships.

Date of Retroactivity

[246]     In the D.B.S. at paragraph 118 the Supreme Court identified four choices for the date to which the award should be a retroactive once it determines that a retroactive award is due. Those choices are as follows: (a) the date when an application was made to court; (b) the date when formal notice was given to the payor parent; (c) the date when effective notice was given to the payor parent; (d) the date when the amount of child support should have increased. The court adopted the date of effective notice as a general rule.

[247]     “Effective notice” is described in D.B.S. 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.” Effective notice therefore does not require that the recipient parent take any legal action. All that is required is that the “topic be broached.” Once that has occurred, the payor parent can no longer assume “that the status quo is fair, and his interest in certainty becomes less compelling” (see paragraph 121).

[248]     Where a court decides to make a retroactive award, the awards should generally be made retroactive to the date when effective notice was given to the payor parent. However where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially (that being the date when the amount of child support should have increased) will be the presumptive start date of the retroactive award (see D.B.S. at paragraph 134).

[249]     In certain situations the more appropriate date on which the retroactive order should start may be the date when increased support should have been paid. D.B.S. says this situation can most notably arise where the payor parent engages in blameworthy conduct. Once that occurs, there can be no claim that the payor parent reasonably believed that his child’s support entitlement is being met (see D.B.S. at paragraph 124).

[250]     D.B.S. provides some examples of blameworthy conduct such as intimidating and lying to a recipient parent but also withholding information and failing to disclose a material change in circumstances, including increasing income that would expect to alter the amount of child support payable.

[251]     At paragraph 125 D.B.S. states as follows”

125    The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

 

ANALYSIS WITH RESPECT TO CHILD SUPPORT FOR CHILD K

The Father’s Obligation to Pay Child Support

[252]     The Father’s obligation to pay child support to Child K is based upon the Family Law Act, the Guidelines, the common law, and the Separation Agreement. The Father does not dispute his obligation. He does dispute the timing of the commencement of the child support payments pursuant to that obligation.

[253]     The Separation Agreement was not intended to relieve the Father of his child support obligations for Child K. In fact the opposite was intended.

[254]     Section 3.7 of the Separation Agreement establishes the procedure and the timeframe for the Parents to address the issue of the amount of child support for Child K to be paid by the Father and the timing of those discussions. The contemplated discussions should likely have occurred in or around 2003 when Child S graduated from high school and started to work to support himself.

[255]     The Parents mutually failed in their obligation to undertake the required consultation or to undertake mediation in order to reach an agreement regarding the amount of child support. They both also failed to bring a timely application to court in order to obtain a timely determination.

[256]     That failure to consult and to reach an agreement or to obtain a court order must not deprive Child K of her right to receive the benefits of child support, especially where there is continuing financial need.

The Basis for a Retroactive Award

[257]     This is a situation where it is appropriate for this court to consider that a retroactive award for child support be made. First there is an existing agreement to confirm the obligation for the Father to pay child support. Second there has not been an order for payment of child support except for the April 2015 Interim Order and the June 2015 Interim Order. Those interim orders left the question of retroactive payments to this further hearing.

[258]     I have considered the factors set out in D.B.S. in determining whether or not a retroactive order should be granted against the Father for payment of child support.

[259]     Circumstances clearly have materially changed and also within the contemplation of the Separation Agreement. The Father ceased to provide support for Child S some years ago. The Mother was aware of that. The Father also has had substantial increases in his annual income. Those increases were not disclosed to the Mother by the Father.

[260]     I have considered the delay in bringing the Mother’s Application. As I have noted above I am not satisfied about the reasonableness of her stated excuse for not bringing the Mother’s Application earlier. She essentially is suggesting that she harboured fears that the Father would retaliate in some fashion and was waiting for Child K to get older in order to be less vulnerable to that retaliation. The Mother clearly knew both about her rights and obligations to bring forward the Mother’s Application for child support. I cannot find that there was any emotional or financial impediment for the Mother bringing the Mother’s Application some time ago. In fact the Mother’s did not seem at all apprehensive about or impeded in contacting the Father about the passport renewal for Child K in 2011. However, while there is little in the way of a reasonable excuse to delay bringing on the Mother’s Application I am also mindful that this only one of several considerations I must take into account in dealing with the issue of a retroactive order. Against this delay on the part of the Mother I must also weigh the delay and the conduct on the part of the Father once he was in receipt of effective notice about dealing with his existing child support obligation. .

[261]      In weighing these factors I am drawing upon the guidance of the British Columbia Court of Appeal in its recent decision Ducharme v. Rempel, 2016 BCCA 198. At paragraph 17 the Court of Appeal indicates that in weighing the D.B.S. factors delay and misconduct “carry more weight” in relation to spousal support matters . In contrast because “the entitlement of a child to support is generally so compelling that those factors will be less significant in the exercise of the court’s discretion to make a retroactive award” in child support cases.

[262]     I am satisfied on the whole of the evidence that the Mother provided effective notice to the Father regarding the issue of establishing the quantum and the commencement of the payment of child support for Child K. That effective notice was provided to the Father by way of the discussions that occurred between the Parents during the Father’s last in person visit with Child K in the spring of 2009. He clearly recognized that responsibility when he made the unfulfilled offer about the Disneyland trip. By way of her emails in 2013 the Mother can be taken to be reconfirming the effective notice previously provided to the Father in 2009.

[263]     The Father also ceased to be providing occasional payments to the Mother on behalf of Child K which were commonplace prior to the effective notice in 2009.

[264]     The Father took no steps to clarify or to meet his financial obligations for child support once effective notice had been received by him. In fact, the Father intentionally vacated himself from direct ongoing contact with both the Child K and the Mother once the question of dealing with child support, as contemplated by the Separation Agreement was raised. The Father stated that he did so because he was stubborn about the Mother’s control of his visitations with the Child. However he took no steps either as contemplated by the Separation Agreement or by way of a court application to clarify his child support obligations or his ongoing visitation rights with Child K. No steps were taken by him to arrange the counselling specified by section 4.6 to establish a more permanent schedule for his access to Child K. As previously noted he failed to disclose his improved financial circumstances to the Mother that would have given rise to increases in the amount that he was obliged to pay for child support.

[265]     On the whole of the evidence, I find the Father’s conduct as it related to dealing with and satisfying his child support obligations to be blameworthy.

[266]     I have considered the present circumstances of Child K. She was a child within the meaning of the FLA at the time the Mother’s Application was filed and continues to be so at present time. She has continuing and increasing financial needs, especially as she is approaching and finalizing her plans for her post-secondary education. She will benefit from a retroactive award. The Mother’s financial position has been somewhat adversely compromised for the past several years in her quest to maintain a reasonable high standard of living for Child K and to provide her with significant opportunities and benefits.

[267]     I am satisfied that a retroactive award will not cause the Father hardship. It will cause him some reasonable financial inconvenience. I am of the view that he has had a substantial financial benefit for many years by not making any child support payments for Child K. He will likely have to re-mortgage his residence and he may have to defer his retirement plans in order to deal with the resulting arrears of child support from a retroactive award. However, I am of the view that such inconvenience will not be overly onerous or burdensome especially if he is give a reasonable amount of time to arrange his financial affairs.

[268]     Having regard for all of these factors I am of the view that the commencement date for retroactive child support should be set at January 1, 2009, being the year in which effective notice was received by the Father. To utilize an earlier date would be inequitable and unfair especially in light of the Mother’s failure to follow the provisions of the Separation Agreement regarding a process for establishing child support for Child K. I am also of the view that Father’s conduct prior to 2009 was less blameworthy and hence such a basis for using a date prior to 2009 is significantly less compelling. While the commencement date for retroactive child support that I have selected appears to predate slightly the date of effective notice, in my view it is justifiable on the whole of the Father’s blameworthy conduct.

The Quantum of a Retroactive Award of Child Support

[269]     I will now turn to the quantum of the retroactive child support. The Father has a significant fluctuation in his pattern of income for the period from 2009 to 2013 and particularly in 2011 and 2013.

[270]     Another recent decision of the British Columbia Court of Appeal in Harras v. Lhotka, 2016 BCCA 246 noted that by way of operation of section 17(1) of the Guidelines (pattern of income) and by way of section 19(1) (imputing income) that in the case of a payor’s income fluctuating significantly courts are provided with discretion to adjust income based on averaging the preceding 3 years or 5 years in the event that annual income under section 16 does not represent the “fairest” determination of income. In deciding whether a 3 year or 5 year averaging is to be utilized the aim is to more accurately reflect the income available to a payor spouse.

[271]     I am satisfied on the basis of the amount of fluctuation and the reason for that fluctuation that for the period from 2009 to 2013 inclusive the use of a 5 year average of the Father’s actual Child Support Guideline Amounts for each of 2009, 2010, 2011, 2012, and 2013 in order to determine the Father’s resulting Child Support Guideline Amount is the fairest approach. The annual Child Support Guideline Amount using a five year averages therefore equals $85,364.00. This represents child support payments of $796.00 per month multiplied by 60 months equals child support arrears of $47,760.00 for that inclusive 5 year period being from January 1, 2009, to December 31, 2013.

[272]     For the 2014 year the Child Support Guideline Amount for the Father is $90,982.00. This represents child support payments of $844.00 per month times 12 months which equals $10,128.00.

[273]     Therefore the total child support arrears from January 1, 2009, to December 31, 2014, being $47,760.00 plus $10,128.00 equals $57,888.00.

[274]     The Father’s 2015 Child Support Guideline Amount (as adjusted for WCB payments) equals $90,802.00. That Guideline Amount requires child support payments of $843.00 per month. That monthly payment figure should be applicable for the entire 2015 calendar year from January 1 to December 31, 2015. The Father has been paying $857 per month effective from April 1, 2015, as set out in the April 2015 Interim Order on the basis of guideline income of $92,517.00 being his line 150 income rather than on his actual 2015 Child Guideline Support Amount which is noted above and with resulting payments being $843.00 per month. Therefore the Father has been overpaying by the amount of $14.00 per month commencing April 1, 2015, for a total of 9 months hence he has an overpayment credit of $126.00 for the 2015 calendar year.

[275]     However, he only commenced his monthly payments effective from April 1, 2015, pursuant to the April 2015 Interim order. Thus there should be a further retroactive adjustment of $843.00 per month multiplied by 3 months (January, February and March, 2015) which equals $2,529.00. Thus the total accumulated arrears for 2015 equals $2,403.00 after a credit adjustment of $126.00 the total of 9 monthly overpayments of $14.00.

[276]     Accordingly, payments for the calendar year commencing January 2016 should continue on the same basis of the monthly payments at $843.00. The Father, up to the time of the last day of hearing, had been paying $857.00 for a 5 month period with the resulting overpayment of $14.00 multiplied by 5 months of $70.00. Given this relatively modest amount I will leave it to the Parents to make to the appropriate adjustment of this amount as between them.

[277]     The Father has made the lump sum payment of $8,500.00 pursuant to the June 2015 Interim Order which, for simplicity, will be allocated as a credit payment to the total of outstanding child support arrears, especially given that there will be a separate order respecting special and ordinary expenses.

[278]     Therefore the total of child support arrears is summarized as follows:

Annual Periods

Amount of Child Support Arrears

Jan. 1, 2009 to Dec.31, 2013

$ 47,760.00

Jan. 1, 2014 to Dec. 31, 2014

$ 10,128.00

Jan. 1, 2015 to March 31, 2015

$   2,403.00 (adjusted)

Total of Child Support Arrears

$ 60,291.00 (adjusted)

Less Arrears payment pursuant to June 2015 Interim Order

$   8,500.00

Outstanding Balance of Arrears

$ 51,791.00

 

[279]     Based on my understanding of the Father’s overall financial circumstances, it is his intention to seek new mortgage financing to pay the child arrears off within a reasonable period of time. In my view that can be reasonably accomplished by October 31, 2016.

CONCLUSIONS AND ORDERS WITH RESPECT TO CHILD SUPPORT AND CHILD SUPPORT ARREARS

[280]     Based on all of the above I make the following final orders in addition to those set out in paragraph 218 of these reasons for judgement:

B.       CHILD SUPPORT AND RETROACTIVE CHILD SUPPORT ORDERS

6.         The Father is found to be a resident of British Columbia and is found to have a child support guideline amount for 2015 of $90,802.00.

7.         Commencing April 1, 2015 and continuing on the 1st day of each and every month thereafter for so long as the Child is a child as defined in the Family Law Act or until further adjustment as set out in this order or until further order of the court, the Father will pay to the Mother monthly child support for the Child in the amount of $843.00.

8.         For the period from January 1, 2015 to March 31, 2015 the Father will also pay to the Mother retroactive child support in the same amount of $843.00 per month and the child support arrears for that period therefore are determined to be $2,529.00 (the “2015 Child Support Arrears”).

9.         For the period commencing January 1, 2014 until December 31, 2014 the Father is found to have a child support guideline amount of $90,982.00.

10.      For the entire calendar year of 2014, the Father will pay retroactive child support for the support for the Child to the Mother in the amount of $844.00 per month and the child support arrears for 2014 owing by the Father to the Mother therefore are determined to be $10,128.00 (the “2014 Child Support Arrears”).

11.      For the entire period from January 1, 2009 to December 31, 2013, the Father is found to have an imputed child support guideline amount of $ 85,364.00 per annum.

12.      For the entire period from January 1, 2009 to December 31, 2013 the Father will pay retroactive child support for the support of the Child to the Mother in the amount of $796.00 per month and the child support arrears for the 60 month period from January 1, 2009 to December 31, 2013 owing by the Father to the Mother therefore are determined to be $47,760.00 (the “2009 -2013 Child Support Arrears”).

13.      The total amount of the 2015 Child Support Arrears and the 2014 Child Support Arrears and the 2009 -2013 Child Support Arrears equals $60,417.00, before credit adjustments, as at May 10, 2016 (the “Total Child Support Arrears”) and the Father is entitled to receive credits for the following amounts totalling $8,626.00 paid by him on account of the Total Child Support Arrears:

a)       The amount of $8,500.00 paid pursuant to the interim order made June 5, 2016.

b)        The amount of $126.00 representing the total of nine monthly $14.00 overpayments of monthly child support from April 1 to December 31, 2015, made pursuant to the interim order made April 13, 2015

            such that the outstanding balance of the Total Child Support Arrears as at May 10, 2016 is the amount of $51,791.00 (the “Outstanding Balance of Child Support Arrears”).

14.      The Outstanding Balance of Child Support Arrears of $51,791.00 will be paid in full by the Father to the Mother on or before October 31, 2016.

15.      Any additional overpayments or underpayments of monthly child support for the period commencing January 1, 2016, to the date of this order will be adjusted directly between the parties on or before October 31, 2016.

16.      Paragraph 2 (guideline income determination) and paragraph 3 (monthly child support order) of the interim order made April 13, 2015, are hereby varied accordingly.

 

ANALYSIS WITH RESPECT TO MOTHER’S CLAIM FOR EXTRAORDINARY EXPENSES

[281]     The Parents have referred me to a number of cases relating to the question of extraordinary expenses. I have read those cases and considered them in reaching my decision on this issue. A number of those are decisions are from other jurisdictions. I have found and reviewed a number of decisions British Columbia which I have found to be very helpful.

[282]     The decisions and the analysis contained within them that I have reviewed and relied upon are as follows:

a)       Richter v. Richter, 2010 BCSC 1578; [2010] B.C.J. No. 2177 (CanLII)

b)       B.E.M. v. A.H.M., 2013 BCSC 827; [2013] B.C.J. No. 969 (CanLII)

c)         S.Z. v. D.Z., 2015 V. BCSC 2157; [2015] B.C.J. No 2523 (CanLII)

d)       Clarke v. Clarke, 2014 BCSC 824 ; [2014] B.C.J. No. 926 (CanLII)

e)       T.N.C. v. T.J.C., 2014 BCPC 257; [2014] B.C.J. No. 2803; [2014] B.C.J. No. 926 (CanLII).

 

[283]     Mr. Justice Baird in Clarke v. Clarke provides a very concise and useful summary about what are special and extraordinary expenses, as follows:

What are special and extraordinary expenses?

[47]      It appears that the parties do not agree as to what qualifies as a "special or extraordinary expense". In order to guide them in the future I am going to briefly comment on the legal meaning of that phrase. I note that there is a similar summary in MacDonald v. Pink, 2011 NSSC 421 at para. 55, which may also be helpful.

48       Section 7 of the Federal Child Support Guidelines gives the court the discretion to order payment of an amount over and above the regular table amount. However, in order to qualify for a s. 7 order, the expenses must be proven to be "special" or "extraordinary" in some way.

49       This is because the basic table amounts of child support are designed to cover all the "ordinary" costs of raising a child: D.M.C.T. v. L.K.S., 2008 NSCA 61 at para. 25. Food, shelter, clothing and other necessities are all ordinary, as are many educational, extracurricular and recreational expenses: McLaughlin v. McLaughlin (1998), 1998 CanLII 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.).

[50]      So when does an expense qualify as special or extraordinary? First, it must fit within one of the categories of expenses listed in section 7, as follows:

a)            child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

b)            that portion of the medical and dental insurance premiums attributable to the child;

c)            health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

d)            extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

e)            expenses for post-secondary education; and

f)            extraordinary expenses for extracurricular activities.

51       That list is exhaustive. If the claimed expense does not fit into any of those categories, it cannot be a special or extraordinary expense: Kase v. Bazinet, 2011 ONCJ 718 at para. 39.

52       Even where an expense fits into one of the listed categories, that is not the end of the story. The expenses must be both "necessary" -- as defined in relation to the child's best interests -- and "reasonable," as measured against the combined financial means of the parents (and, where appropriate, the child) as well as the family's spending patterns prior to separation: see section 7(1) and Yensen v. Yensen, 2003 BCSC 1372 at para. 8. In addition if the expense is one listed under subsection (d) or (f) -- educational programs or extracurricular activities -- the party claiming the expense must prove that they are "extraordinary."

53       There is no straightforward definition for "extraordinary" although section 7.1, recently added to the Guidelines, provides some guidance; it requires a sort of proportionality inquiry, looking at the nature and number of activities, any special needs or talents of the child, the overall cost of the activities, and any other similar relevant factors: see D.M.C.T. at para. 32.

54       Because the tests are fact-specific, I cannot definitively say what types of expenses qualify in every case. But I can say what does not qualify as special or extraordinary:

*Expenses such as "entertainment, pets, vacations, school fees, school supplies, children's allowances, meals outside the home, personal grooming, and clothing" are not section 7 expenses: Mertler v. Kardynal (1997), 1997 CanLII 11209 (SK KB), 35 R.F.L. (4th) 72 (Sask. Q.B.).

*A home computer and other similar technologies do not qualify as extraordinary as they are "common item[s] found in most homes": Yensen at para. 18.

*Recreational sports and other similar extracurricular activities -- dance lessons, community sports leagues, ski trips, etcetera -- are generally considered "ordinary." The question is whether the participation goes beyond that of the "average child": D.L.C. v. F.M.C., 2010 BCSC 1312 at para. 67.

 

[284]     Using this guidance provided by Clarke v. Clarke and applying it to this case and also following the approach utilized by Justice P.G. Voith in S.Z. v. D.Z. at paragraphs 125 to 127 I have reached a conclusion on the issue of whether or not some or all of the Volleyball Costs are extraordinary expenses. The conclusion is that Child K’s Direct Costs are extraordinary in nature, given the year round nature of Child K’s participation in volleyball, her significant level of talent, the competitive level at which she is successfully participating, her goal to represent her country at the international level, and the contribution it makes to her confidence and wellbeing and hence its contributions to her best interests. Taking all of this into consideration and in this context I am of the view that Direct Costs as described above are necessary.

[285]     I have also considered whether the participation costs are reasonable having regard for the financial circumstances of the Parents. The Direct Costs incurred by the Mother to permit that participation alone from September 2011 to March 16, 2016 totalled $13,428.76. That averages about $2,440.00 per year for the last 5½ years with those costs increasing significantly from 2013-2014 onward. Those Direct Volleyball Costs do not include the Mother’s Necessary Indirect Costs for that same period of $5,423.49 which averages $986.00 per year and again with those costs increasing significantly from 2013-2014 onward.

[286]     I am not satisfied that the Mother has proven on a balance of probabilities that the Mother’s Necessary Indirect Costs fall within the definition of extraordinary expense as she is required to do [see T.N.C. v T.J.C. at paragraph 45 citing N.A.D. v. S.A.D., 2010 BCSC 269 at paragraph 17]. In her evidence the Mother said that parents of team members attempt to share some of the transportation and chaperoning responsibilities. From her own evidence, I have concluded that the Mother has over the years chosen to assume a significantly greater share of those responsibilities including driving, travelling, chaperoning and scorekeeping, all with the attendant expenses. Her interest in the continuing development of Child K as a volleyball athlete and with Child K’s and her teammates’ successes is commendable but the Mother’s participation has not always been necessary in order to permit Child K to participate. The evidence suggests that there were other parents who could have borne some of those responsibilities and the resulting expenses but the Mother always made herself available. There is a personal aspect which has given rise to the Mother’s Necessary Indirect Costs which must be taken into consideration. The Mother has utilized Child K’s volleyball participation as a family travel opportunity. Following Child K’s volleyball events has become something in the nature of a hobby for the Mother.

[287]     From the evidence available it is not entirely clear what the continuing expenses will be for Child K to participate in the many forms of volleyball that she has chosen to play in the last three or four years. If she does play at the university or college level it is reasonable to expect that some of the participation costs and travel costs will be borne by those athletic programs. Also it is not clear from the evidence whether Child K’s Olympic aspirations will continue or whether she has the talent or desire to continue playing to realize those aspirations.

[288]     With respect to the question as to whether the Direct Costs of Child K’s volleyball participation are reasonable, I find the following observations of Justice Melnick in Richter v. Richter to be very useful:

7          Many parents will deprive themselves of almost anything to provide for their children's well-being, but "well-being" does not include spending extraordinary amounts of money on a child's sports or other activities just because the child is blessed with talent for that activity. Some parents are prepared to sacrifice almost anything to foster the talent of a child, whether academic, artistic, or sporting. That is not something that can be described as admirable or otherwise. It is just a decision they are prepared to take for the benefit of a child or children. Sometimes those types of decisions impact negatively on a less talented child, but again, those are family decisions that the family is entitled to make if it chooses to do so. But those decisions are complicated when, as here, the parents of children no longer live together in a family unit and have separate lives and other responsibilities, often other goals and differing needs and wants. That is why the guiding principle for what a parent must pay for expenses that are regarded as other than basic to a child's needs must be "reasonable." When two parties cannot agree on what is reasonable for a child to be given, they may, as here, seek the input of the court.

 

[289]     At paragraph 9 the learned Justice goes on to say:

9          It is reasonable to expect parents of a child to provide a balanced life to the child, a balance between school, sporting, and artistic activities (depending upon his or her inclination and talent), good health, appropriate and proper food, clothing, shelter, and so on. Of course, what is reasonable for one set of parents may not be reasonable for another depending upon their respective financial and other circumstances. Thus, the term "reasonable" is an elastic one meant to reflect what is reasonable in a given set of circumstances. Thus, in a situation where a custodial parent is making the life decisions for the child in his or her custody, that parent cannot make decisions on behalf of the child that will impact in an unreasonable way on the non-custodial parent, whether that relates to what support the non-custodial parent must pay or what access time he or she gets, et cetera.

 

[290]     In this case the Father has taken an interest in Child K’s volleyball participation as he once again attempted to re-enter Child K’s life. He accepted invitations to attend important tournaments in which she was participating. He is clearly proud of her achievements and is supportive of her volleyball goals. Given the amount of $10,000.00 that he apparently discussed contributing towards the costs of Child K’s volleyball participation he acknowledged the relatively high financial expense that her participation entails. However I understand that he has concerns about expenditures that the Mother has made with respect to volleyball.

[291]     The Mother has shown little in the way of restraint when it comes to incurring expenses of any kind when it relates to Child K’s volleyball endeavours. That approach has contributed to the presently strained cash flow position of the Mother but she has made those expenditures as an important family priority.

[292]     Mr. Justice Neil Brown noted in B.E.M. v A.H.M. at paragraph 47 that the law expects parties to “recognize what extra-curricular activities their combined incomes are capable of supporting.” Notwithstanding how beneficial an activity might be, if the “parties cannot afford to pay for them, they cannot afford to pay for them.” He goes onto to state that the “law expects parties to communicate with a view to coming to an agreement of what activities are most beneficial for the children and are affordable.” In this case the Parents have not consulted about these expenses. Rather the Mother has spent and now seeks to recover from the Father.

[293]     In the Father’s sworn Financial Statement he lists an expense of $1,200.00 per annum for “hockey”. I presume that this is his cost of participating in that sporting activity at a recreational level. It provides something in the nature of a gauge to consider what the Father considers reasonable for sporting activities at that recreational level. The costs of activities at a much higher completive level can be expected to be greater.

[294]     Having regard for the overall financial circumstances of the Parents, the orders that I have made concerning child support and a review of the financial receipts submitted by the Mother along with the breakdown of the expenses, I am of the view that the expenditure for Direct Costs for Child K’s volleyball activities of $13,428.76 for the period from September 2011 to March 16, 2016, is a reasonable amount.

[295]     That is the amount upon which I will base the arrears of extraordinary expenses for Child K’s volleyball activities.

[296]     The next question that I must consider is what level of contribution, if any, the Father should be required to make to the Direct Costs and to other special and extraordinary expenses.

[297]     That determination poses some challenges given the fact that the Mother’s actual Support Guideline Amount has been unusually low for what can be regarded as one time events for 2013 (time off for her Master’s degree) and for 2014 (time of for her Master’s degree and public school labour issues). The amount of approximately just over $84,000.00 is what her Support Guideline Amount is teaching full time with her Master’s degree at present and approximately that same amount will continue for 2016. On the other hand the Father’s Support Guideline Amounts have varied quite considerably over that same period with a high in 2013 of close to $100,000.00 and then dropping down to what is likely more representative amounts in 2014 and 2015 of approximately $91,000.00. In exercising the court’s discretion to divide the parents’ obligations other than in proportion to their incomes I am seeking to provide a reasonable basis for future sharing of special and extraordinary expenses that will be reasonably affordable for each of the Parents. By using different combinations of Support Guideline Amounts for each of the Parents for different years between 2013 and 2015 it is possible to arrive at a 25% difference in their proportional amounts.

[298]      If I utilize the more realistic Support Guideline Amounts of $91,000.00 for the Father and $84,000.00 for the Mother, the Father will be responsible for 52% and the Mother will be responsible for 48% of the special and extra ordinary expenses. That will be the basis for sharing. In my view sharing in those proportionate amounts, reasonable, realistic, appropriate and affordable for both of the Parents.

[299]     Accordingly the Father’s 52% of the Direct Costs for Child K’s volleyball activities of $13,428.76 for the period from September 2011 to March 16, 2016 equals $6,983.00. That amount will be paid by the Father to the Mother by way of a payment of $2,500.00 on or before September 20, 2016. The remaining balance will be paid in full on or before October 31, 2016.

[300]     Various court decisions have capped the amount of annual special and extraordinary expenses for extracurricular activities that are subject to being shared by the parents, again having regard to the means and the other obligations of the parents (see for example Richter v. Richter, B.E.M. v. A.H.M. and S.Z. v. D.Z.).

[301]     I am of the view that such an approach is useful in this case.

[302]     Therefore the future direct costs and expenses for Child K’s participation in the following volleyball activities (“Volleyball Direct Costs”) including registration fees and participation fees, equipment, uniforms and travel expenses for Child K, including those incurred for instruction, training and selection camps and for tournaments involving her:

a)         post-secondary institution extramural and intramural teams;

b)         club teams;

c)         beach volleyball teams, and

d)         provincial, regional and national teams

subject to being shared by the Parents will be capped at the annual amount of $3,800.00, based upon a 12 month period commencing September 1 and ending the following August 31, starting September 1, 2016, such that the Father will be responsible for up to $1,976.00 being 52% of the total capped amount and the Mother will be responsible up to $1,824.00 being 48% of the total capped amount.

[303]     That does not mean that the Mother and Child K may not decide to spend beyond the $3,800.00 limit of the annual cap amount for volleyball activities but they will pay for additional amounts from their own resources.

[304]     The Mother will notify the Father in advance in writing of an intended expenditure in excess of $150.00 that will form part of the Volleyball Direct Costs and will provide copies of descriptive receipts to the Father representing all expenditures for which contribution from the Father is sought. The Father will pay the Father’s proportionate 52% share within 14 days of the delivery of the receipts

[305]     The Father will pay the Father’s 52% proportionate share of Volleyball Direct Costs for the period from March 17, 2016, to and including August 31, 2016, based upon the descriptive receipts provided to the Father but all payments will still be subject to the application of the $3,800.00 annual cap amount which will apply for the entire period from September 1, 2015, to August 31, 2016. Those amounts will be paid on or before October 31, 2016.

[306]     I have considered the Mother’s submission that Child K’s graduation expenses including the cost of her graduation celebrations and related expenses including her graduation dress and graduation photos should be characterized as special or extraordinary expenses and that the Father should be required to make a proportionate contribution to them. I do not accept that submission. To be treated as a special or an extraordinary expense it must fit within an enumerated category contained in section 7 which is to be regarded as exhaustive (see Clarke v. Clarke). As important as graduation is to a student and as important as that the celebration of that milestone event is to the student and her family, in my view the expenses attendant to the event itself and the accompanying celebrations are not covered by section 7(1)(d) as an extraordinary expense for secondary school education or as part of any other educational program. Attending graduation celebrations is not a requirement of graduation. Of course it is always open to the Father to make a voluntary contribution to these expenses.

[307]     Child K’s forthcoming expenses for post-secondary education are to be considered as special expenses under section 7(1)(e). Both of the Parents are supportive that Child K attends at a post-secondary institution which also appears to be her wish and her goal. I consider attendance at a post-secondary institution to continue her education as both necessary and reasonable and in the best interest of Child K. As noted above, there is an absence of evidence as to the exact costs and what if any amount Child K can contribute to those expenses by way of earned scholarships, prizes or non-repayable bursaries. The Father will share 52% of the special expenses for post-secondary education and the Mother will share 48%. Those special expenses which will all be net of any applicable scholarships, prizes, and non-repayable bursaries received or earned by Child K, which will be considered as part of her contribution. Such special expenses will include without limitation the following :

(a)       application, registration and tuition fees and related expenses;

(b)       text books, reading materials, and study materials;

(c)       student fees;

(d)       laboratory and course material fees, supplies and related expenses specifically required to be paid by students enrolled in such courses;

(e)       student public transportation fees or passes; and

(f)       student parking fees or passes.

 

[308]     Again having regard for the overall financial circumstances for the Parents and what is reasonable and necessary I am of the view that there should be an $8,500.00 cap on the amount of Child K’s post-secondary education expenses which will be subject to proportionate sharing by the Parents and which are attributable to each complete academic year, commencing with the 2016 fall academic term. The Father will pay his 52% proportionate share to the Mother following delivery of descriptive receipts to the Father representing all expenditures for which contribution from the Father is sought and such payment shall be made by the Father within 14 days of the delivery of the receipts.

[309]     Based on all of the above I make the following further final orders in addition to those set out in paragraphs 218 and 281 of these reasons for judgement. Accordingly there will be final orders with respect to the sharing of special and extraordinary expenses on the following terms:

C.       SPECIAL AND EXTRA ORDINARY EXPENSES ORDERS AND ORDERS FOR RETROACTIVE PAYMENT OF SPECIAL AND EXTRA ORDINARY EXPENSES

17.      The Parents’ respective shares of special and extraordinary expenses under section 7 of the Federal Child Support Guidelines will be based upon an imputed Child Support Guideline Amount for that purpose for the Father of $91,000.00 and an imputed Child Support Guideline Amount for that purpose for the Mother of $84,000.00 and accordingly the proportionate share of the Father for such expenses will be 52% and the proportionate share of the Mother for such expenses will be 48% until further agreement of the parties or further order of the court.

18.      The following future expenses will be considered extraordinary expenses for the purposes of section 7 of the Federal Child Support Guidelines, namely future direct costs and expenses for Child K’s participation in the following volleyball activities (“Volleyball Direct Costs”) including registration and participation fees, equipment, uniforms and travel expenses for the Child, including those incurred for instruction, training and selection camps and for tournaments, all involving her:

a)       post-secondary institution extramural and intramural teams;

b)       club teams;

c)         beach volleyball teams, and

d)       provincial, regional and national teams

            subject to such expenses being collectively capped at the annual amount of $3,800.00 based upon a 12 month period commencing September 1 and ending the following August 31 of the following year, starting September 1, 2016, and such amount will shared proportionately by the Parents and such that the Father will be responsible for up to $1,976.00 being 52% of the total capped amount of Volleyball Direct Costs and the Mother will be responsible for up to $1,824.00 being 48% of the total capped amount of Volleyball Direct Costs. The Volleyball Direct Costs will be net of any reimbursement received by the Mother or Child from any third party person, institution or organization but not including available tax credits available to and claimed by the Mother.

19.      The Mother will notify the Father in advance in writing of an intended expenditure in excess of $150.00 that will form part of the Volleyball Direct Costs and she will provide copies of descriptive receipts to the Father representing all expenditures for which contribution from the Father is sought. The Father will pay his proportionate 52% share to the Mother within 14 days of the delivery of the receipts.

20.      The Father will pay his 52% proportionate share of Volleyball Direct Costs for the period from March 17, 2016 to and including August 31, 2016 based upon descriptive receipts provided to the Father but all payments will still be subject to the application of the $3,800.00 annual cap amount applicable for the entire period from September 1, 2015 to August 31, 2016. That amount will be paid to the Mother on or before October 31, 2016.

21.      The Volleyball Direct Costs for the period from September 1, 2011, to March 16, 2016, are hereby determined to be in the amount of $13,428.76. Accordingly the Father’s 52% of the Volleyball Direct Costs for the period from September 1, 2011, to March 16, 2016, equals $6,983.00 (the “Volleyball Direct Costs Arrears”). The Volleyball Direct Costs Arrears will be paid by the Father to the Mother by way of a payment of $2,500.00 on or before September 20, 2016. The remaining balance of the Volleyball Direct Costs will be paid in full on or before October 31, 2016.

22.      The Child’s expenses for post-secondary education expenses are determined to be special expenses under section 7(1)(e) of the Federal Child Support Guidelines. The Father will be responsible for 52% and the Mother will be responsible for 48% of those special expenses. Those special expenses which will all be net of any applicable scholarships, prizes, and non-repayable bursaries received or earned by the Child, which will be considered to be part of her contribution, and will include but are not limited to the following expenses:

(a)       application registration and tuition fees and related expenses;

(b)       text books, reading materials, and study materials;

(c)       student fees;

(d)       laboratory and course material fees, supplies and related expenses specifically required to be paid by students enrolled in such courses;

(e)       student public transportation fees or passes; and

(f)       student parking fees or passes.

23.      The Child’s post-secondary education expenses which will be subject to proportionate sharing by the Parents and which are attributable to each complete academic year for Child K, commencing with the 2016 fall academic term will be capped at a total annual amount of $8,500.00 for each complete academic year running inclusively from September to the following June. The Father will pay his 52% proportionate share to the Mother following delivery of descriptive receipts to the Father representing all expenditures for which contribution from the Father is sought and such payment shall be made by the Father within 14 days of the delivery of the receipts.

 

FURTHER REQUIRED ORDERS

[310]     Unfortunately the Parents failed to use the dispute resolution mechanism as set out in the Separation Agreement. That was to their mutual disadvantage.

[311]     In order to deal with future disagreements between the Parents as it relates to Child K and their respective parental financial and other obligations and matters relating to Child K and in anticipation that the Parents will use their best efforts to deal with matters relating to Child K on a collaborative basis and in furtherance of the goals of seeking to have matters resolved in an efficient and timely matter, I am of the view that further final orders are required to deal with ongoing financial disclosure and dispute resolution. Based on all of the above I make the following further final orders in addition to those set out in paragraphs 218, 281 and 310 of these reasons for judgement.

[312]     Accordingly there will be final orders on the following terms:

D.        ORDERS WITH RESPECT TO CONTINUING FINANCIAL DISCLOSURE AND ADJUSTMENT OF CHILD SUPPORT AND PROPORTIONATE SHARING OF SPECIAL AND EXTRA-ORDINARY EXPENSES

Continuing Financial Disclosure

24.      For as long as the Child is eligible to receive child support, no later than June 1 of each year, commencing June 1, 2017, and continuing thereafter the Mother and the Father will exchange with each other:

(a)       copies of their respective T1 General Form income tax returns for the previous taxation year, including all attachments; and

(b)       copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt,

Adjustments Based On Updated Financial Information

25.       Thereafter based on that updated financial information the amount of child support payable for the Child K by the Father and the respective proportions of the special and extraordinary expenses of the Father and the Mother will be adjusted in accordance with the Child Support Guidelines effective from January 1 of that year for the rest of the ensuing year, commencing January 1, 2017, and any resulting adjustments will be reconciled and made directly between the parties.

Variation By Agreement

26.       The Parents may by mutual agreement change, amend or vary any of the provisions of this order that relate to child support or payment of special or extraordinary expenses or any schedule for payment of any arrears provided that any such agreement will be in writing and if the agreed changes will be for a duration of 6 months or more then such agreed changes will be incorporated into a consent desk order and submitted to the court for approval.

 

Dispute Resolution Provisions

27.      In the event that the Parents cannot reach agreement, despite their best efforts, with respect to any important decisions regarding the Child or any other matters pursuant to this Order that may be subject to changes, variations or amendments by mutual agreement of the Parents, then before bringing an application to court to resolve any disagreement the Parents will attend mediation at the earliest appointment that is made available to them with a Family Justice Counsellor in Nanaimo, B.C. to attempt to resolve their disagreement out of court. In the event that the Family Justice Counsellor shall decline to mediate the disagreement then the matter will be referred forthwith to a mediator who is qualified as a “family law dispute resolution professional” as that term is defined in Part 3, Regulation 4(2) of the Family Law Act Regulations and who practices in Nanaimo, B.C. (the “Mediator”) and in which location the mediation will be conducted. The Parents will jointly retain the Mediator and will forthwith equally share all of the Mediator’s fees, costs and expenses. The Parents may by mutual agreement engage the Mediator without first referring the disagreement to the Family Justice Counsellor. In the event that an agreement is not reached through a conducted mediation then either Parent may apply to this court for directions or a determination of any issue in dispute.

 

[313]     I direct the Nanaimo Registry to prepare the form of this order based upon the provisions of paragraphs 218, 281, 310 and 313 of these reasons for judgment with all necessary amendments. The signatures of both of the parties approving the form of the order are dispensed with and therefore their signatures are not required.

 

 

BY THE COURT

 

 

 

________________________________

The Honourable Judge J.P. MacCarthy