IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This matter involves an application brought by one parent with respect to a variation of a fairly recent separation agreement entered into on November 10, 2014 and filed with the Provincial Court on January 19, 2015 (the “Separation Agreement”).

[2]           It specifically involves an Application Respecting Existing Orders or Agreement filed by the Mother (as defined below) to set aside the Separation Agreement in whole or in part, by way of a variation, as to the shared parenting time for two children as presently provided for in the Separation Agreement.  The issues of adjustment of child support, arising from the variation being sought, retroactive child support and the issue of obligations for and the sharing of extra-ordinary expenses have also been raised in this hearing before the court.

[3]           In his Reply, the Father (as defined below) opposes any variation of the shared parenting arrangement and there is joinder of issues regarding any required adjustment of child support, retroactive child support, the obligation for and the sharing of extraordinary expenses.  In addition there is an issue as whether the court should be enforcing the Father’s parenting time with the eldest child.

[4]           All of the issues arise against a background of a significant deterioration of the Father’s relationship with the eldest child, referred to herein as “Child A”, who was 15 years old at the time of the hearing.  The result of the deterioration has been an estrangement that has continued for several months immediately following the making of the Separation Agreement.  The issues also arise against a background of the youngest child, referred to herein as “Child R” being approximately 11 years at the time of the hearing continuing to be subject to the shared parenting arrangement. The other context is the significantly dysfunctional relationship between the Mother and the Father that has continued to deteriorate since the making of the Separation Agreement.

[5]           The parties to these proceedings and to the Separation Agreement are E.M.B. (the “Mother”) and J.R.B. (the “Father”).  The Mother and the Father (collectively the “Parents”) are the parents of A.J.B. (“Child A”) date of birth [omitted for publication], and R.J.B. (“Child R”) date of birth [omitted for publication], collectively the “Children”.

[6]           It is common ground that the parents were married in August of 2000 and commenced to live separate and apart from June of 2009 at which point Child A was approximately 8 years of age and Child R was approximately 4 years of age.

[7]           The Parents entered into a written agreement pursuant to Section 28 and Section 121 of the then operative Family Relations Act, RSBC 1996, ch. 128 as amended (the “FRA”).which was dated November 9, 2009 (the “2009 Agreement”) and which was filed with the Provincial Court on December 16, 2009.

[8]           The 2009 Agreement stipulated that the Parents were joint guardians of the Children. It was agreed that the Father’s access (as it was then known) was to be every other weekend, weekdays as agreed by the Parents and with a provision for a weekly phone call and a further phone call when the Children were with the Mother on her weekend.  Also there was a provision concerning the sharing of Christmas.

[9]           Provisions were also made for the Father to pay monthly child support of $623 based apparently upon his Guideline Income of $40,904.50 and for the sharing of special and extraordinary expenses, including day care, swimming lessons and taekwondo lessons proportionate to their incomes, such that Father was to pay 69% and the Mother was to pay 31%, apparently on the basis of her Guideline Income of $18,000.

[10]        It is not entirely clear on the evidence but at some point the Father’s child support payment amounts increased and such increase was in effect at least in 2011.  Thereafter he was paying $730 per month for the two Children which would be based upon a Guideline Income of $48,100 per annum.  Those payments continued in effect until September of 2013.

[11]        On September 6, 2013 an interim order was made by this court, (the “September 2013 Interim Order”) in which:

[12]        It is noteworthy that the child support amount set out in the September 2013 Interim Order would be the amount payable on a Guideline income of $59,000.  In the Father’s sworn Financial Statement filed May 22, 2013, which I infer was available to the court at the September 15, 2013 hearing, the income amount disclosed by the Father at that time was $57,916.  This was his actual 2012 line 150 amount on his 2012 Income Tax Return.  In fact using the Father’s actual and now available Guideline Income figure for 2012 of $59,916, it would result in a monthly child support payment for 2 children of $909, being a difference of $14 per month than the amount ordered.

[13]        It is also common ground that the parties entered into a Consent Order prepared with the assistance of each of their separate, independent legal counsel and filed in the Court Registry on July 7, 2014 (the “July 2014 Consent Order”) which in summary:

[14]        With the assistance of a mediator and upon receiving independent legal advice, the Parents entered into the Separation Agreement which dealt with changes to the parenting arrangements for the Children and made revised provisions for maintenance of the Children.

[15]        The Separation Agreement has never been modified in writing or by any oral agreement.  Prior to the initiation of these proceedings neither party formally has sought to change, modify or vary the Separation Agreement.

[16]        At the time of the making of the Separation Agreement the Mother was described therein to be a travel agent with an expected Guideline Income of $31,500.  The Father was described as an electrician with a stated Guideline Income of $62,000.  As will be seen below, those figures are not entirely accurate.

[17]        The Separation Agreement adopted the meaning of words set out in the Family Law Act, SBC 2011, c. 25. (the “FLA”).  It confirmed that the Parents continued to be guardians of the Children and to parent the Children and further that during parenting time, a guardian may exercise parental responsibilities of making day-to-day decisions affecting the Children but provided that the guardian must advise the other parent of any matters of a significant nature affecting the Children.

[18]        Other relevant provisions of the Separation Agreement include paragraph 11 of the Separation Agreement which provides as follows:

[19]        Relevant to the issues before this court also include the provisions of paragraph 12 of the Separation Agreement relating to the living arrangements of the Children which provides:

[20]        The relevant provisions of the Separation Agreement relating to child maintenance are found in paragraphs 18 and 19 which provide as follows:

[21]        The relevant provisions of the separation agreement relating to special or ordinary expenses are found in paragraphs 20 to 22 inclusive and paragraph 24 which read as follows:

[22]        The Separation Agreement contains two provisions for mediation or alternative dispute resolution. Under the provisions relating to parenting arrangements the following appears as paragraph 17:

[23]        A further general Mediation of Disputes provision is found under paragraph 29 which reads as follows:

[24]        Another relevant provision is contained within paragraph 14 which reads as follows:

[25]        The Parents have in the past been able to reach agreements with the assistance of mediation, including the execution of the Separation Agreement.  I understand that a private mediator was engaged to assist in reaching those agreements, and in particular the Separation Agreement.  Thereafter the Mother suggested use of the Nanaimo Justice Access Centre and a family justice counsellor to resolve subsequent differences.  The Father wished to return to the private mediator which was rejected by the Mother on the basis of expense.  Thus the parties were stalemated about the mediator.

[26]        The evidence confirms that no other mediation procedures were subsequently undertaken notwithstanding the provisions of paragraphs 17 and 29 of the Separation Agreement.

[27]        I am satisfied that given the deterioration in the relationship between the Mother and the Father shortly after the November 2014 Incident and the Christmas 2014 Event (both as are hereinafter described) mediation would not likely have been successful at that time.  That is not to say that future issues covered by the Separation Agreement and related matters involving the Children should not in fact be referred to mediation.  I shall have more to say about that later.

[28]        The Mother filed her Application Respecting Existing Orders or Agreement on January 19, 2015 (the “Mother’s Application”).  In it she asked that the Separation Agreement be set aside in whole or in part.  She swore and filed her own affidavit on the same date (the “Mother’s January 2015 Affidavit”) in support of the Mother’s Application.  The Mother’s January 2015 Affidavit was admitted into evidence at the hearing as an exhibit.  In the Mother’s January 2015 Affidavit she indicates that as a result of the present deteriorated state of the relationship between the Father and Child A over the preceding months and the refusal of Child A to go to the Father’s residence other than some 3 nights from November 16, 2014 until the date of deposition, and none since December 27, 2014, it leaves Child R to go there by himself.  That says the Mother is affecting the “dynamic between [Child R] and his Father as well as between [Child A] and [Child R] in an unhealthy way.”  The Mother states that the “boys’ best interest” is to remain together.  Hence the Mother says that the increase in parenting time for the Father as provided for in the Separation Agreement should not occur and is not in the best interest of the Children.

[29]        The Father filed a Reply, without a counterclaim, on March 9, 2015 (the “Father’s Reply”).  In support of the Father’s Reply and in response to the Mother’s 2015 Affidavit, the Father swore an Affidavit on March 9, 2015 which was filed on the same date (the “Father’s March 2015 Affidavit”).  It was admitted into evidence during the Father’s testimony as an exhibit.  The Father’s Reply disagrees with the relief being sought and states that it is not in the best interest of the Children to set aside or replace the Separation Agreement, stating that the Mother has been breaching the Separation Agreement though it had only been in place a short time.

[30]        On March 23, 2015 the Mother and Father appeared before the Court and with the help of duty counsel an order was made that a Family Justice Counsellor prepare a section 211 report to assess the views of the Children and the matter was adjourned to the Judicial Case Manager to fix a hearing date.

[31]        The Section 211 report was completed by Lisa Bury, a Family Justice Counsellor with the Family Justice Report Service on May 20, 2015 (the “Views of the Child Report”).  Child A was age 14 and Child R was age 10 at that time.  The Parents have each testified that they do not take issue with the contents of the Views of the Child Report.

[32]        On May 29, 2015 the Mother and the Father attended a Family Case Conference before me.  As a result of the discussions at that Family Case Conference the matter was adjourned to set a further Family Case Conference in about three months’ time to permit the Mother and the Father to arrange counselling for Child A and the Father on his own behalf to be coordinated and to deal with the Father’s and Child A’s relationship.  That further Family Case Conference did occur on September 4, 2015 in front of the Honourable Judge Cowling (the “Second Family Case Conference”) and thereafter the matter was set for a hearing.

[33]        At the Second Family Case Conference the issues that were identified for hearing under the heading of “Support/Maintenance” were “enforcement and/or variation of existing agreements” with additional mention under “Contact with the Child” of the Father’s contact (which I take to be parenting time) with Child A.  The hearing proceeded before me on April 18, 2016, (with the approval of both parties notwithstanding that I conducted the first Family Case Conference) and continued thereafter on April 21, 2016 May 29, 2016, and again on June 16, 2016.

[34]        The parties were self-represented throughout these matters before this court.

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

[36]        The Mother was the sole witness on her own behalf.  She provided viva voce evidence.  The Mother filed a further affidavit sworn and filed on March 17, 2016 (the “Mother’s March 2016 Affidavit”) as well as an updated sworn Form 4 Financial Statement on that same date (the “Mother’s 2016 Financial Statement”).

[37]        The Father was the sole witness on his own behalf.  He provided viva voce evidence.  The Father filed a further affidavit sworn and filed on April 6, 2016 (the “Father’s April 2016 Affidavit”) as well as an updated sworn Form 4 Financial Statement on that same date (the “Father’s 2016 Financial Statement”).

[38]        Based on the evidence of both the Mother and the Father and the information contained in the Views of the Child Report, Child A presently is 15 years of age, attends a local secondary school and at the date of the hearing of this matter was completing grade 9.  Generally he does well in school, but some academic challenges were noted during the period that Child A’s relationship with his Father became problematic.  He enjoys reading, science and computers. There are no behavioural issues at school.

[39]        The Views of the Child Report describes him as a “pragmatic and serious teenager”.  The evidence of the Parents describes him as a happy child but more quiet and sensitive than most.  Based on the evidence I heard that surrounded what is described below as the “November 2014 Incident” that sensitivity was quite apparent and especially as it related to the loss of Child A’s cat.

[40]        Child A has two close friends with whom he enjoys playing video games.  He is not athletic but enjoys outdoors activities such as fishing in the Nanaimo area and in the Cowichan Valley.  Some of his fishing activities occur in the company of the Mother’s new partner, K.W. who resided in the Cowichan Valley.  According to the Views of the Child Report and the Mother’s evidence Child A has a very good relationship with K.W. and they spend quite a bit of time together.

[41]        The Views of the Child Report describes that Child A reported a “large blended family” with the Mother, Child R, himself and K.W. and his two children, ages now approximately 9 and 7.  In addition there of course is the Father and his partner M.S. and a younger half-brother M. who is presently approximately 2 years of age. M.S. is described by Child A as a “good person”.  The Father testified that she and Child A got along “great”.

[42]        Based on all of the evidence, Child A and his brother Child R have enjoyed and continue to enjoy a strong relationship and enjoy each other’s company, notwithstanding their differences in ages.

[43]        Based on the evidence of both the Mother and the Father and the information contained in the Views of the Child Report, Child R presently is 11 years of age, attends a local elementary school and at the date of the hearing of this matter was completing grade 4.  He does well academically in school and historically ranks at the top of his class.  He takes pride in his achievements.  Historically there are no behavioural issues at school.

[44]        Child R excels at sports and plays volleyball, basketball and football.  He also takes drumming lessons.  He also enjoys fishing.

[45]        He is a very social child with a wide group of friends and is described in the evidence as being more extroverted and outgoing than his brother Child A.  Child R is described in the Views of the Child Report as “energetic and thoughtful”.

[46]        The Views of the Child Report states that Child R describes feeling happy in both homes and enjoys his siblings and the new partners of each parent.  He enjoys his relationship with and feels close to his brother Child A and the time they spend playing together.

[47]        Notwithstanding all of the positive information, the Parents agreed in their testimony that Child R can be more challenging in his behaviour than Child A and can be seen to be manipulative.

[48]        In her evidence, the Mother suggests that in the last 12 to 15 months that Child R’s behaviour has become more negative, with examples of acting out to other family members with verbal abuse, shouting and throwing things and being emotional and teary.  This has prompted her to raise concerns with the school and she has considered obtaining counselling for Child R.  The Mother also suggests that Child R’s historically strong academic performance has been somewhat negatively impacted over this same period.

[49]        The Mother is approximately 37 years of age.  She is qualified as a licensed practical nurse, for which she trained in 2009 and 2010 following her separation from the Father and at which she worked at including in 2012 and 2013.  She worked “on call” and on various shifts which she found challenging for her personal and family schedule.

[50]        In August of 2013 she changed careers and became a licensed travel agent / consultant at which she has continued to work in 2014 through to present.  Her hourly wage is $15.50; she does not work on commission and does not receive bonuses but may earn a small amount extra for selling travel insurance.

[51]        She also is qualified in providing foot care, having taken courses in 2010 and 2011.  She started a small business with a few clients in 2012 and also worked as an employee through a foot care group.  She pretty well ceased doing that in 2013 and 2014 when she became a travel consultant.  However in 2015 she returned part time to foot care and has started her own business.  Thus she is working 4 days per week as a travel agent and presently about a 1 ½ days per week at foot care.

[52]        According to her evidence and her 2015 T1 General Income Tax and Benefit Return she earned business net income of $2,530 from her foot care proprietorship before adjustments claimed for business expenses totalling $18,199.01.  The business expenses included significant amounts for rent, telephone and utilities and advertising.  As I understand it the business expenses for rent and telephone and utilities represent a portion of her own residential expenses that have been attributed to her proprietorship business.  Thus for income tax purposes her net business loss equalled $15,669.01.  This amount was deducted from her employment income of $32,056.98 and her Universal Child Care Benefit of $1,100 which totalled $33,156.98 thereby substantially reducing her 2015 income to $17,497.97.

[53]        The Mother did not provide her complete 2014 T1 General Income Tax and Benefit Return, but rather just a Canada Revenue Summary which states that her line 150 income equals $23,173.  However, it also discloses total T4 earnings at line 101 of $30,734, no line amounts for universal child care benefit, line 162 gross business income of $320 and line 135 net business income (being a loss) of $7,561.  I gather that the business income and losses are from her limited business activity in foot care during that taxation year.  No breakdown of the claimed business expenses was provided but I can infer the categories were the same as claimed in 2015.  The Mother testified that she does not have any significant expenses for her tools, equipment and supplies which she stated are somewhere in the annual range of between $20 and $100.

[54]        The Mother’s business losses claimed in 2014 and in 2015, given the amount of actual reported business income generated, in my view distort the picture of the actual earned income of the Mother for those two years.  I appreciate that the Mother is seeking to establish and to grow her proprietorship business and eventually the claimed expenses for Income Tax purposes may be reflective of a reasonable, positive net business income.  Given the modest amount of gross business income achieved and the very significant amount of business expenses claimed, for Guideline purposes those expenses are in my view excessive when dealing with child support issues.

[55]        In my view, for the purposes of determining the Mother’s income for both 2014 and 2015, a more accurate, historically consistent and fairer determination requires making an adjustment by totally excluding the gross business income earned through the proprietorship and also the business expenses claimed and thereby adjusting and imputing the Mother’s income for those years on that basis.  This can be done having regard to section 16 of the Guidelines which is subject to sections 17 to 20 of the Guidelines and in particular under section 19 (1) (g).  In the future when the Mother’s business expenses are more reflective of business income then such an adjustment may be unnecessary.  The Mother testified that her business was doing better in 2016.  She attributes this to obtaining and securing a service arrangement at a local independent and assisted living facility and through use of web based advertising. She is anticipating that she will be securing another service arrangement at another facility.  She indicated that in 2016 she has been grossing about $1,000 per month in the first six months of 2016.  It is the Mother’s ultimate goal to focus entirely on and work full time at her foot care business when it is financially viable and to quit her employment as a travel consultant.

[56]        The Mother’s line 150 income and allowable employment expenses on line 212 of the T1 General Income Tax and Benefit Return and her imputed income based upon the adjustments thereto noted above are follows:

[57]        As noted above, the Mother is in a new relationship with K.W.  I understand that they started residing together in late August or in September of 2015 and they were doing so at the time that the Separation Agreement was signed.  K.W. is a designer and builder of custom homes.

[58]        The Mother’s Financial Statement discloses a vehicle with a market value of $1,000 and no other assets except her real estate equity.  She has credit card indebtedness of $6,500 and other indebtedness of $45,000 including student loans.  She lists her annual expenses at $48,596. Her credit card is apparently used, in part, to fill the gap between income and expenses.

[59]        She owns a mortgaged home with an estimated equity of $120,000 in which she resides along with the Children and as I understand it also with K.W. and his children.  It is not clear on the evidence how much K.W. contributes to the housing and related costs.

[60]        The Mother does not have any dental plan or dental benefits through her present employment.

[61]        The Mother has advanced a claim for special expenses relating to Child A’s orthodontic treatment arising out of an October 2015 consultation with an orthodontist.  He diagnosed a bite misalignment resulting from the placement of the upper and lower jaws, an overjet whereby the upper front teeth are out from the lower front teeth and an excessive amount space for the upper teeth and an insufficient amount of space for the lower teeth.  In a letter from Dr. F. Edward Murdoch Inc. at Ocean’s Edge Orthodontics in Parksville, B.C. a treatment plan for Child A is outlined at a cost of $ 7,025 (excluding examinations and records fee) and requiring a down payment of $925 and 20 monthly payments of $305.  The Mother signed an instalment agreement on March 15, 2016 with Dr. F. Edward Murdock Inc. and made the down payment of $925. She has been making the monthly instalment payments.  The orthodontic work for Child A has thereby started.  In addition she paid a dentist bill to Dr. Layton of $234 dated March 15, 2016 to cover the cost of required extractions for Child A.

[62]        The Mother informed the Father about her intention to consult with the orthodontist in or around the fall of 2015 and then about this diagnosis shortly after it was received in October of 2015.  As I understand it from the evidence an earlier email exchange occurred between the Mother and Father in September of 2015 at which time the Father indicated that he was in disagreement about booking dental appointments with Dr. Layton and stating that he had booked an appointment for Child R with another dentist, Dr. Sertic, stating that his own dental benefits were “maxed out” but 90 % coverage was available on M.S.’s dental benefits for Child R, it seems because he was living with the Father and M.S., but no coverage was available for Child A because Child A was not.

[63]        The Mother had also told the Father about an orthodontic referral for Child R who apparently has a number of missing teeth.

[64]        In an email dated September 29, 2015 the Father complained to the Mother about the lack of timely and relevant reports from her and stated:

[65]        A similar type of text exchange took place between the parties on that same day in which the Father reconfirms the availability of dental coverage for Child R through M.S.’s dental benefits.

[66]        Subsequently the Mother sent further electronic communications to the Father seeking his agreement to pay for the orthodontic treatment for Child A.  She testified that when the Separation Agreement was signed the Father was aware of the possibility of orthodontic care for both Child A and Child R and they had spoken about its necessity for some years.  On the evidence before me I conclude that the Father never agreed to participate in the orthodontic expenses for Child A.

[67]        The Mother testified that she also incurred the following which she characterizes as “Special and Extraordinary Expenses”:

[68]        The Mother seeks contribution to these dental expenses and other Special and Extraordinary Expenses from the Father and says that to date the Father has made no such contribution.

[69]        The Father is approximately 37 years of age and is a journeyman, red seal electrician who has maintained stable employment with the same electrical contracting firm in Nanaimo for some 8 years.  His hourly rate is $34.45 for approximately a 37 ½ hour work week.  He is entitled to hourly pay at $45.68 as an overtime rate and $68.90 for a double overtime rate.  A recent pay stub indicates that he does have the opportunity to earn overtime rates.  The Father says that normally overtime is not available.  He does not receive compensation from doing work during his off times but does help friends out from time to time but does not accept cash payments.

[70]        He receives partial benefits for medical, including some extended medical coverage and has dental coverage that covers $2,000 per annum for his entire family.

[71]        From the evidence before me, providing transparent financial disclosure, including the production of full and complete T1 Income Tax and Benefit Returns by the Father has been a historical issue.  It is noteworthy that even at this lengthy hearing at which the Father testified on the last day, he did not have at hand nor produce all the required attachments for his Financial Statement.  He disclosed only Notices of Assessment for 2012, 2013 and 2014.  What was very problematic is that he did not provide his complete 2015 Income Tax return or even a 2015 Notice of Assessment.  His excuse was that he was not prepared to make financial disclosure because he was mistrustful of the Mother and did not believe her financial disclosure, which he believed to be incomplete.  In my view all of this is completely unacceptable now and in the years to come, especially when it was clear that there were financial and child support issues to be decided in this case.  In that regard reliance was placed on some of the available Notices of Assessment and the court was left only with the Father providing his recollection of his 2015 Line 150 income.  The Father stated in his evidence that he now understands that he was in error by failing to make full and complete and early financial disclosure.

[72]        The last comprehensive financial disclosure made by the Father was in his Sworn Financial Statement sworn and filed on May 22, 2013 (the “Father’s 2013 Financial Statement”).  The incomes section of it discloses employment income, other income and employment insurance benefits totalling $57,916.  This is the same amount shown in his attached tax preparer’s 2012 Tax Return Summary line 150 income.  However, no 2012 Notice of Assessment was provided.  Also attached to the Father’s 2013 Financial Statement was his 2011 Tax Return Summary which showed line 150 income of $56,814.94 including $7,361.11 of RRSP Income.  However his 2011 Notice of Reassessment that was attached showed a revised line 150 income of $57,314.

[73]        The Father’s line 150 income and permitted adjustments for union dues for child support and special expense calculations for the periods from 2010 to 2015 inclusive based upon information available to the court are as follows:

[74]        Since March of 2013 the Father has been in a relationship and currently lives with M.S., to whom he became engaged.  They have a son (M) age 2 and M.S. is expecting another child with the Father.

[75]        M.S. is employed in Nanaimo as an administrative officer with a Federal Ministry and has had that employment for some 4 years.  She contributes to a Federal pension plan.  She has extended benefits including medical and dental, that covers her, the Father, their two year old child, and Child R, but not Child A because of his present living arrangement and the fact that he is not living with the Father.

[76]        As I understand the Father’s evidence, he has spent all of the dental coverage available from his own plan on himself and his own dental needs for both 2015 and in 2016.  That is the basis on which he informed the Mother that he was “maxed out” on his dental plan, although the reason only became apparent during his testimony.  He testified that his “mouth is a priority” over that of Child A.  He also testified that he has not organized the use of the two available dental plans in order to permit the use of his plan to cover orthodontic work for Child A.

[77]        He further testified that he did not agree to pay for orthodontic expenses because the Mother has “taken complete control” of dental expenditures and will not allow him the control over those expenditures.  He says that he cannot afford to pay those expenses.

[78]        The Father’s Financial Statement discloses no vehicles but claims a car loan payment of $1,886 annually as well as around $1,110 annually in car insurance and license fees and vehicle gas and oil expenses.  He discloses no other assets except his residential real estate equity and another bank or RRSP asset in the amount of $600.  He has no credit card indebtedness but discloses a bank indebtedness of $5,522 incurred to cover “additional personal expense above normal” which appears to be on a line of credit upon which he pays an amount annually of $1,500.  He lists his annual expenses at $64,302.04.

[79]        He owns a mortgaged home with an estimated equity of $36,359 in which he resides along with M.S., their child M and Child R. It is not clear on the evidence how much M.S. contributes to the housing and related costs or what her interest is in the mortgaged home.

[80]        The Mother prepared a summary entitled “Arrears of Maintenance” which was admitted into evidence as Exhibit 9 during her viva voce evidence.  The Father referred to it in his viva voce evidence.  He did not take issue with her statement in Exhibit 9 that his income for 2011 was $57,314 which she used as the basis of calculating what the Father should have paid for child support in 2012.   Furthermore he did not take issue with Exhibit 9 regarding the monthly child support payments that the Father had made in 2012, and then from January to September of 2013 prior to the September 2013 Interim Order.

[81]        It appears to be common ground that the Father paid the required child support of $895 per month for the two Children in accordance with the September 2013 Interim Order from September 15, 2013 to and including payments due for December 2014.

[82]        It also appears to be common ground that commencing January 1, 2015, the Father then started to make monthly payments of $453 as set out in the Separation Agreement based upon the agreed shared parenting arrangement and using as a stated Guideline Income for the Father of $62,000 being his 2013 Guideline Income amount and not upon his actual 2014 Guideline income amount of $70,461.  As I understand the evidence the amount of $62,000 was used but it was not clear from the evidence as to what financial disclosure the Father had actually made in the course of the mediation leading to the Separation Agreement.  The Father was unable to clarify this point during his evidence. It is also noteworthy that the Separation Agreement states that the Mother’s Guideline Income was $31,500 which is very close to her actual Guideline Income in 2013.

[83]        As at the date of hearing, the Father was continuing to make monthly child support payments based upon the Separation Agreement notwithstanding that only Child R was subject to the shared parenting arrangement and Child A was living fulltime with the Mother.  In other words notwithstanding this material change in circumstances the Father did not make any increase in the child support payments.

[84]        Similarly no adjustment in child support payment has been made notwithstanding the significant increase in the Father’s Guideline Income for 2014 and 2015.

[85]        The Father and the Mother have also had a dispute with respect to after school care expenses for Child R for the period from October 2014 to June of 2015 and a City of Nanaimo summer sports camp in 2015 again for Child R.  The total comes to $2,008.  The Mother says that the Father enrolled Child R in these programs for his own benefit without her consent and hence she should not share the cost.

[86]        But she does say the Parents should be proportionately sharing the cost of the summer enrolment in Boys and Girls Club summer program at a cost of $664.  The Father says he never agreed to pay this amount.

[87]        The Father suggests that an alternative to paying for childcare was available had M.S. been permitted to perform those responsibilities while she was on maternity leave.  The Parents disagree as to whether that offer was made and accepted and the reasons for not implementing that arrangement.

[88]        The relationship between the Mother and the Father is and has been for many years very strained.  Based upon the evidence before me it is fair to conclude that the relationship has become mutually mistrustful and dysfunctional.  Effective communication has all but disappeared.  It has been replaced with emails and texts that are replete with mutual criticism and complaints about a wide range of topics from the other’s parenting styles with each of the Children, parenting time and scheduling disputes, including allegations of lack of accommodation and flexibility, criticism about timely reporting about the Children and the nature and content of that reporting, failures to consult with the other Parent, perceived and real slights contained in their communications, and significant issues about financial expenditures and financial disclosure between the Parents and the accuracy of that disclosure.

[89]        Notwithstanding that parties were able to effectively use mediation to reach the Separation Agreement, their adherence to the goals and provisions of the Separation Agreement have been seriously undermined by their conduct towards each other.

[90]        This has not always been the case. Following the time of their separation they maintained an appropriate level of civility and mutual respect when dealing with matters relating to the Children.  They were able to enter into the 2009 Agreement.  The Views of the Child Report indicates that Child R. recalls “happier times when his parents were friendly and everyone was able to get along”.

[91]        It is difficult to ascertain why this change has occurred.  There is no evidence of any single significant, noteworthy or memorable event.  It is difficult to conclude that the fact that each Parent has entered into a new relationship has contributed to the deterioration.  However, given what occurred during the Christmas 2014 Event, most unfortunately the new partners are being drawn into the relationship dysfunction.

[92]        There is certainly evidence that every time the Mother has raised the issue of a review of child maintenance, starting with the Application Respecting Existing Orders or Agreements filed in April of 2013, the Father has countered with wanting more parenting time with the Children.

[93]        There is no evidence of incidences of physical domestic violence during the Parent’s time together or after separation.  However, the events that occurred at the Christmas 2014 Event described below are of some concern in this context.

[94]        The Christmas 2014 Event occurred on December 26, 2014 following the November 2014 Incident.  Child A had returned to his Father’s residence on December 25, 2014 in order to spend family Christmas time together as part of the Father’s scheduled parenting time.  However, it is clear that emotions were still very raw from the November 2014 Incident and there was considerable unhappiness between the Father and Child A.  The Mother said that she attempted to contact Child A, such contact being through the Father, as she and Child A had apparently previously arranged but as noted elsewhere not previously arranged through the Father.

[95]        The Mother and the Father engaged in a series of text messages commencing at around 7:29 PM in which the Mother sought to have a talk with both of Child A and Child R and asking when it would be convenient.

[96]        At 7:37 PM, the Father responded by text to say “In a while.  And probably just [Child R] [Child A] is having a meltdown.”

[97]        At 7:37 PM the Mother texted to the Father as follows: “I want to know what is happening with [Child A].  He was apprehensive to go to your place this weekend and I would really like to talk to him.  Please have him call me as soon as possible.”

[98]        There was no immediate response forthcoming so that the Mother tried to call the Father on his cell phone and there was no answer.   At 8:03 PM the Mother sent the Father another text asking why Child A was having a meltdown. With no response immediately forthcoming she made the unfortunate decision to attend uninvited at the Father’s residence with K.W., arriving sometime shortly after 8:15 PM.  Thereafter based on all of the evidence before me a very unpleasant exchange of heated words and various threats occurred outside of the Father’s residence involving the Father, the Mother, K.W. and M.S. but with the Children apparently inside the residence.  This resulted in K.W. calling the police, who arrived, and spoke with Child A.  Child A apparently indicated to the RCMP that he wanted to leave and Child A then left the Father’s residence with the Mother and K.W.  Since that time, Child A has never returned to the Father’s residence.

[99]        As it turned out, based upon the Father’s evidence, he was not ignoring the Mother’s rapid series of electronic communications but rather was otherwise involved in attempting to arrange Christmas contact and communication with his extended family in the United States.

[100]     While the Children may not have been directly involved with the highly unpleasant exchanges between the Parents and their respective partners that took place during the Christmas 2014 Event, on the whole of the evidence is clear that they were very much aware of the incident and it was understandably upsetting for both Children.

[101]     The Father believes that the Mother seeks to interfere with the Father’s parenting time and that she does not promote or assist in the healing of his relationship with Child A.  He also suggests that the Mother is attempting to undermine his ongoing relationship with Child R. In his evidence an allusion appeared to be made to “alienation” by the Mother which I took to be a reference to “parental alienation”.

[102]     A significant source of conflict between the parents has occurred because of the email reports contemplated by paragraph 11 of the Separation Agreement.  The Father has complained to the Mother about the timeliness and the content of those reports.  The Mother has complained about a lack of reports from the Father.  As a general observation, the Mother’s reports are lengthy narratives with considerable amplification concerning matters beyond the key items of school, health, social matters, extracurricular activities, key contact information and other matters relating to the care of the Children.  As a further observation, the reports to the extent that they had been provided by each of the Parents, have taken on an opportunity to raise provocative issues between the Parents and exchanges of criticism rather than to simply provide the required information on the required subject matter.

[103]     Since the signing of the Separation Agreement, and particularly since the November 2014 Incident and the Christmas 2014 Event there is little that the Parents have been able to agree upon.  This includes, but is not limited to, the selection of a dentist, the need for orthodontic care, the selection of a mediator and a mediation process, the selection of a counsellor to deal with the relationship issues between the Father and Child A and the selection of and enrolment of the Children, especially Child R, in extra-curricular activities.  So far as I can determine, effective and respectful consultation between the Parents has all but perished.

[104]     The Mother and the Father have been very much at odds over a number of past and present expenses relating to the Children.  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.  The Mother suggests that the reference to dental expenses in paragraph 21(a) of the Separation Agreement reflected that there was an oral agreement that orthodontic expenses were necessary for the Children and that the Parents “were on the same page” about its necessity.  As I understand it the issues of arrears of child support and arrears of special expenses were not the focus of the mediation that gave rise to the Separation Agreement.  The Separation is silent with respect to arrears of those items.

[105]     Understandably the Mother and the Children have a very strong bond and relationship with each other.  The Mother was the primary caregiver and daily provider for the Children from the time of the Parents’ separation.  The Mother has been very involved in the Children’s lives at all levels.  The Mother and the Children seem to engage in a number of activities together and they both seem to very much enjoy that time with her, which is somewhat limited by her busy work schedule.  This includes her proprietorship business, which according to the Views of the Child Report the Children know about and are aware of her time commitment to it.

[106]     The Views of the Child Report makes it very clear that Child A appears to have a very close connection with the Mother and she is a person upon whom he can count.

[107]     From the evidence it is also clear that the Father has been an important figure in the lives of the Children. Historically he and the Children have participated in a number of activities together. Child R continues to do so and according to the Views of the Child Report very much looks forward to the time that he spends at both Parents’ homes.

[108]     The Father appears to encourage Child R’s activities in sports.

[109]     The Parents have different parenting styles. Based on the evidence I have concluded that the Father tends to be much stricter and disciplines the Children by removing privileges.  The Mother appears to be more enabling.

[110]     A source of high conflict within this family arises out of events occurring from approximately November 20, to November 29, 2014 shortly after the Separation Agreement had been signed.

[111]     I have previously referred to these events as the “November 2014 Incident”.  At that time Child A was approximately 13 years old. It initially centred around Child A’s pet cat that went missing for 2 weeks, and was then located by the SPCA as a result of a report and returned to the Mother’s home. The cat was suffering from a large abscess apparently from being attacked by another cat. It turns out that the cat had been cared for by a neighbour who was reluctant to return the cat to its home. The next day, Thursday, November 20, 2014, after being returned to the Mother’s residence the cat ran away again all of which was upsetting for Child A. He did not want to go to school that day, became very emotional and expressed himself disrespectfully to his Mother, which exchange was overheard by the Father during a cell phone call. The Father also understood that Child A had batted a cell phone held by the Mother away from her. The Mother paints a picture of it being much less of an intentional act on the part of Child A. Child A did not want to go to the Father’s house for the Father’s scheduled parenting time on the Thursday evening and did not go, locking himself in the bathroom. The Mother said she encouraged Child A to go to his Father’s residence but to no avail. The cat was again recovered on the Thursday evening from the neighbour who remained reluctant to part with it.

[112]     The Father testified that he was concerned about Child A’s behaviour towards and the disrespect to the Mother and accordingly indicated to Child A that he was going to remove the privilege of Child A’s cell phone, which he did the next day. The Mother and Child A both apparently interpreted this as punishment for Child A’s refusal to go to the Father’s residence for parenting time.

[113]     Child A wanted to stay at the Mother’s residence on the Friday and over Friday night to care for the ailing cat. The next day, the cat’s condition was worsening and it was taken to a veterinarian. Unfortunately the cat died while undergoing treatment. Child A was understandably very upset over the loss.

[114]     Thereafter Child A and Child R did attend for the Father’s parenting time the following Thursday, November 27, 2014 to Saturday, November 29, 2014. According to the Mother’s evidence Child A came home following that parenting time attendance very upset, apparently as a result of his discussions and interaction with the Father.

[115]     Of course there are different versions and interpretations of what took place during those discussions but the result was that Child A said he did not want to go back to his Father’s residence and did not do so for about a month. Based upon the Views of the Child Report and on the other available evidence Child A’s perception and feeling was that the Father was unsympathetic and angry towards him. Again the Mother testified that she encouraged Child A to attend the scheduled parenting times at his Father’s residence.

[116]     The Mother testified that she did encourage Child A to attend for Christmas celebrations and scheduled parenting time at his Father’s residence with Child R. The evidence is that Child A was reluctant and anxious about doing so but did attend thereon from the latter part of December 25, 2014 with the intention of remaining there until Saturday December 27, 2014. The Mother and Child A agreed that the Mother would call on the evening of December 26, 2014 to check on him. It does not appear that this arrangement was specifically made known to the Father.

[117]     Again there are of course different versions and interpretations of what occurred but it is reasonable to conclude that unhappy words were once again exchanged between the Father and Child A during that parenting time with the result that Child A became quite emotional and upset. That in turn led to what I have described as the “Christmas 2014 Event”.

[118]     Since December 26, 2014 Child A has not returned to the Father’s residence and their relationship has continued to deteriorate with limited communication except electronically and then very heated and emotionally charged with demands from the Father for an apology.

[119]     The Views of the Child Report provides the following insight about the relationship between Child A and the Father, starting on page 2:

[120]     On page 3 it continues as follows:

[121]     The Views of the Child Report goes on to indicate that there are several unresolved issues between Child A and the Father that cause Child A significant anxiety.  Those are reported as Child A expressing anxiety about what he perceives as an expectation on the part of the Father about receiving an apology from Child A.  By way of example Child A in support of that perception referred Ms. Bury to a text received from the Father that contains words as follows: “This isn’t right, you are not calling, you should apologise”.

[122]     The Views of the Child Report further indicates that Child A feels that the Father needs to take the initiative to heal the relationship and is fearful that the Father will not because in Child A’s words “he just wants to prove he is right”.

[123]     As at the date of the Views of the Child Report being May 20, 2015, Child A appeared open to a reconciliation and a resumption of the Father’s parenting time schedule and even offered some suggestions for improving it insofar as his daily pick up and drop off were concerned.

[124]     The following passage on page 4 of the Views of the Child Report provides some significant insight as to Child A’s perception of their relationship and what Child A seeks by way of improvement:

[125]     The Views of the Child Report was available for the parties at the Family Case Conference held on May 29, 2015.  At that Family Case Conference coordinated counselling for Child A and for the Father to deal with their relationship was discussed.  Accordingly, an adjournment of the May 29, 2015 Family Case Conference was granted in order to pursue this counselling but it never took place and agreement was not reached about the selection of a counsellor.  Counselling services are apparently partially covered under the Father’s employment benefits package.  He did not appear to be particularly well informed about the extent of that coverage.

[126]     Notwithstanding the Parents disagreement over the selection of a counsellor, the Father has not made contact with any counsellor since the November 2014 Incident, in order to obtain counselling on his own behalf nor with any other professional to receive advice about how to get Child A engaged in a counselling process with him.  The Father says that he in fact had some counselling about his relationship with both Child A and Child R in October or November of 2014, just before the November 2014 Incident but not thereafter.

[127]     In his testimony the Father went so far as to say that he did not think that there would be any benefit for Child A to have counselling and further that he did not think it was necessary.  He indicated that he is of the view that if he continues to reach out and to text to Child A he is hopeful that their relationship will heal.

[128]      However he testified that he did not think that such will occur because of “outside influences” from the Mother and her side of the family.  He indicates that there is no encouragement or influence being exerted from her side of the family towards Child A to encourage Child A to have a relationship with the Father.  The Father does not say that it is the Mother’s fault that his relationship with Child A has reached this stage but does say Child A has been “influenced”.  He could not provide any evidence of that, other than referring to an insult about the Father allegedly made by the maternal grandparents and reported to him by Child R.

[129]     Thus using his own words, the Father has “assumed” that Child A does not want a relationship with him and he is “respecting his wishes”.  The Father goes on to state that Child A is “old enough to make that decision” and the Father says he is “not going to argue it anymore”.  The Father further said that Child A has deleted both the Father and M.S. from Facebook.

[130]     I am left with the impression from his evidence that the Father is of the view that he is waiting for Child A to seek the continuation of a relationship with the Father and hence the ball is entirely in the court of Child A to make the next move.

[131]     As noted above the Views of the Child Report was prepared pursuant to the March 23, 2015 Interim Order.

[132]     In addition to the information from the Views of the Child Report referred to above, Family Justice Counsellor Lisa Bury provides the following useful summary:

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

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

[135]     Initially the Mother submitted that the email communication provisions in paragraph 11 (a) to (e) inclusive of the Separation Agreement be eliminated because she is not receiving any information from the Father and he has told her not to provide her with any communications.  The Father agreed with the Mother that the reporting provisions contained in paragraph 11 of the Separation Agreement should be removed.

[136]     However upon being questioned by the court there appeared to be agreement between the Parents that reporting provisions and the topics contained in paragraph 11 (a) to (f) inclusive were important but what was missing was a constructive exchange of information.

[137]     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:

[138]     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.

[139]     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)]

[140]     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)]

[141]     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.

[142]     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)]

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

[144]     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.

[145]     Under section 45 upon application by a guardian a court may make an order respecting on 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.

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

[147]     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.

[148]     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.

[149]     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:

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

[151]     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.

[152]     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.

[153]     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.

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

[155]     The evidence clearly indicates that both of the Parents, each being a guardian of Child A and Child R have a keen interest in the lives and a love for each of the Children.  However the state of the relationship between the Parents and an overall lack of effective communication and a lack of consultation threatens the underpinnings of the Separation Agreement and its underlying goals which include bringing certainty to their relationship as it relates to parenting arrangements and child support.

[156]     The relationship between the Father and Child A has been very seriously injured by the November 2014 Incident and also by the Christmas 2014 Event.  As noted above there is an acceptance of the Father of the fact about that seriously injured relationship.  However, the Father does not seem to wish to accept any responsibility for the injured relationship.  Rather he seems to want to lay the blame at the feet of the Mother and other outside influences as the cause of the problems and to conclude that Child A has been subject to some manipulation and a failure on the part of the Mother to promote the Father’s relationship with Child A.  It is also clear from Views of the Child Report that there was an earlier opportunity to seek counselling or input from qualified professionals to put in place a process for dealing with the issues between the Father and Child A.  The opportunity has been lost for the present time.  Furthermore the Father does not seem prepared to take any positive and proactive steps in order to attempt to commence the healing process of his relationship with Child A.  I find this somewhat troubling but that is the Father’s choice and he will ultimately have to live with the consequences.

[157]     I do not find evidence that the Mother has been the cause of the deterioration in the relationship between the Father and Child A.  I am however concerned about her part in the Christmas 2014 Event and what was in my view an unnecessary and uninvited attendance at the Father’s residence with the resulting attendance of the police.  In my view the Christmas 2014 Event exacerbated the strains not only in the relationship between the Father and Child A but also in the relationship between the Parents, all at very vulnerable times.  The Father’s reaction to the Mother’s attendance was unwarranted.  Hopefully both Parents have learned a lesson about dealing effectively with high conflict situations and especially as it relates to the Children.

[158]     Given the age of Child A and the attitude of the Father about reconciliation, I am of the view that it is not in the best interests of Child A to make any orders at this time enforcing the Father’s parenting time with Child A.

[159]     The Father places some reliance upon the suggestion that the Mother’s existing attitudes towards him and some of her various actions are designed to alienate Child A from him.

[160]     L.G. v. R.G., 2012 BCSC 1365, and the cases discussed therein, Mr. Justice Neill Brown, provides 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).  That is not specifically stated by the Father but it is alluded to by him in his evidence.

[161]     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.

[162]     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]

[163]     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.

[164]     At very first blush, some of those descriptors arguably might, utilizing the Father’s lens describe some elements of the behaviour of the Mother in this case.  However, in my view the overall behaviour of the Mother falls very 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 A, for the most part lies with some unresolved issues between the Father and Child A which appear to have predated the November 2014 Incident and the Christmas 2014 Event.

[165]     I further find that there is nothing to support the suggestion that there is any form of parental alienation or PAS as it relates to the relationship between the Father and Child R.

[166]     This is not a case that will turn on a finding of parental alienation or PAS when considering the Father’s or Father’s claims as they relate to either Child A or to Child R.  Considerations of the best interests of the Children must be considered without any context of there being any existing parental alienation or PAS.

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

[168]     Child A’s health is not an issue but his emotional well-being certainly is.  He is anxious about further interaction with the Father any attempts and any preconditions the Father may require in order to rekindle their relationship all for the reasons he expressed in the Views of the Child Report.

[169]     Child R’s health and emotional well-being are not presently relevant issues in this case.

[170]     Child A’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 he is in his mid-teen.  However the court is not necessarily bound by those views.  In this case I accept that for the relationship between the Father and Child A to be resurrected and to heal that it must at least initially be on the initiative of the Father with due regard to Child A’s concerns.  In my view counselling for both Child A 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 A.  The Father is not prepared to proceed in that fashion.  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 A.

[171]     I am satisfied based upon all of the evidence and also relying upon the Views of the Child Report that Child R is coping well and appears to be thriving in the environment of a shared parenting arrangement as provided for in the Separation Agreement and that any changes are not in the best interests of Child R.

[172]     The evidence is clear that at this point the Mother and Child A have a very strong relationship.  That relationship along with his relationship with his brother Child R are essential parts of the foundational strength of Child A’s family life.  They represent a very positive aspect of Child A’s life.  Given the present state of his relationship with his Father it can be properly characterized as currently quite dormant.  That is not to say that their relationship is irretrievable and may in the future become significant and sought out by both.

[173]     The evidence is clear that for Child R both the Mother and Child A represent the foundational strengths of Child R’s family life along with the extended family consisting of K.W. and his children.  They represent very positive aspects of Child R’s life.  The same has to be said of the Father, M.S. and the half-brother M.

[174]     Until the implementation of the Separation Agreement both Child A and Child R primarily resided with the Mother but the Father played an active role in each of their lives during both his scheduled parenting time and in extended parenting time based upon arrangements made by the Parents.  Both Parents have exercised parental responsibilities.  With the shared parenting arrangement set out in the Separation Agreement in place the Father of course has been more involved in the day to day care of Child R.  Given the estrangement of the Father and Child A there has been no recent care provided to Child A by the Father and little in the way of the exercise of parental responsibilities for Child A.

[175]     Both Child A and Child R have always had a stable life and home.  The only destabilizing factor presently faced by Child A is his presently failed relationship with the Father and his apparent resulting anxiety.  This destabilization is not in Child A’s best interests.

[176]     The abilities of the Mother and the Father to exercise parenting time or parental responsibilities are not in issue and not of any concern.  Neither poses any safety risk to either of the Children.  However, the Father exercising parenting time with Child A on an obligatory basis does not at present time reflect Child A’s wishes and as noted above does not deal in an appropriate manner with the anxiety that Child A is experiencing at this time.  Parenting time by the Father with Child A in the future on a mutually acceptable basis and at mutually acceptable times is appropriate and is in his best interests.

[177]     On the basis of the evidence before me I cannot conclude that family violence is a relevant and operative factor in this case.

[178]      It appears that both Children were exposed to the very unfortunate events at the Christmas 2014 Event including the arrival of the police.  I do not have sufficient evidence before me to conclude that what took place was of such a nature or that it amounted to direct or indirect exposure to psychological or emotional abuse of a family member as defined in the FLA.

[179]     There is a suggestion made that the Father has anger management issues.  However again I do not have sufficient evidence before me that these amount to direct or indirect exposure to psychological or emotional abuse of a family member as defined in the FLA.

[180]      Given that the Ministry of Children Family Development apparently was not prompted to take any action as a result of the Mother’s report about the Father’s apparent use of corporal punishment on one occasion, in my view that also does not raise any family violence concerns in this matter.

[181]     Similarly I do not find that strained and at times very dysfunctional relationship between the Parents amounts to family violence as may be the case in some situations. [see M. (L.D.) v. M. (R.H.), 2014 BCPC 98 (reversed on a separate issue 2014 BCSC 1673].

[182]     Therefore I do not consider this to be a relevant factor in determining the best interests of either Child A or Child R and specifically as having any impact on their respective safety, security or well-being.  I do not view Child A’s anxiety about his relationship with his Father as having any foundations in family violence.

[183]     Similarly given all of the above in consideration of the factors in s. 37 (2) (h) and my comments above regarding an absence of family violence, this factor is of no relevance and there is no impairment of either Parent’s ability to meet the needs of either Child A or Child R.

[184]     There is no doubt that there is a growing lack of cooperation between the Parents following the making of the Separation Agreement.  Our Court of Appeal in Robinson v. Filyk (1996) 1996 CanLII 3310 (BC CA), 28 B.C.L.R. (3d) 21 rejected the presumption that joint custody and joint guardianship under the then applicable FRA is appropriate only when both parents are excellent parents, there is a history of cooperation with respect to parenting of the child and there is no valid reason to exclude a parent from having a significant input into raising of the child.  While there have been significant problems here with cooperation in the recent past, I am not satisfied that there is any risk to the safety and security of the Children or any other family member that arises from the existing parenting arrangement.  I have noted above that there is a concern about the emotional well-being of Child A, that may to a certain extent result from the Parents' lack of cooperation.  It is evident to me that both sets of Parents must seek to utilize appropriate means of achieving co-operation and consensus when it relates to decisions that pertain to the Children.  Given the above and given the more advanced age of the Children and being mindful of some modest adherence to a requirement for the Parents to cooperate, and to be civil with each and to deal appropriately and constructively with ongoing child support matters and parenting arrangements, on balance I do not consider this to be a relevant factor in this case.  That said the type of unhappy and unnecessary events at the Christmas 2014 Event are not in the best interests of the Children and must be avoided entirely.

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

[186]     I am satisfied from their submissions that the Parents now realize that both the focus and the content of their communications in furtherance of the requirements of paragraph 11 of the Separation Agreement need to be re-examined.

[187]     The goal needs to be efficient and useful communication which must replace the existing failed communications and the overlay of personal conflict and provocation.  That will be in the best interest of both Children.

[188]     Accordingly I intend to make an order to provide the Parents with further guidance in this regard.

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

[190]     Section 147 (1) of the FLA imposes the duty upon each parent and guardian of a child to pay child support.

[191]     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.

[192]     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.

[193]     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.

[194]     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.

[195]     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.

[196]     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.

[197]     Section 1 (a) to (d) of the Guidelines states that their 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.

[198]     The presumptive rule under section 3 of the Guidelines is that the amount of child support for a child under the age of 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.

[199]     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.

[200]     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).

[201]     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.

[202]     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.

[203]     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.

[204]     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 parents obligation set out under section 21 to provide income information as detailed therein.

[205]     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:

[206]     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.

[207]     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)].

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

[209]     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]

[210]     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.

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

[212]     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.

[213]     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).

[214]     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).

[215]     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:

[216]     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)

[217]     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 )

[218]     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: para 80) [See also Family Law Sourcebook for British Columbia, 2015, Continuing Legal Education Society of British Columbia, section 3.71].

[219]     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.

[220]     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].

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

[222]     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).

[223]     D.B.S. further indicates in paragraphs 114 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.

[224]     In 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.

[225]     “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 pay or parent can no longer assume “that the status quo is fair, and his interest in certainty becomes less compelling.” (see paragraph 121).

[226]     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 pay or parent.  However where the pay or 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).

[227]     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).

[228]     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.

[229]     At paragraph 125 D.B.S. states as follows:

[230]     The Father’s obligation to pay child support to Child A and to Child R is based upon the Family Law Act, the Guidelines, the common law, the 2009 Agreement and the Separation Agreement.  The Father does not dispute his obligation.  He does dispute the timing of any retroactive variation of child support payments pursuant to that obligation.

[231]     The Separation Agreement was not intended to relieve the Father of his child support obligations for Child A and Child R or to anyway limit those obligations.  In fact the opposite was intended.  Similarly, the fact that the Mother may be enjoying additional afterschool time with Child R on the days that the Father has parenting time should be treated as an example of necessary cooperation and flexibility and not as an opportunity to consider that the shared parenting arrangement should be done away and to thereby alter the basis for the payment of child support.

[232]     Paragraph 19 of the Separation Agreement establishes the procedure and the annual timeframe for the Parents to address the issue of the amount of child support to be paid by either Parent and the timing of those discussions.  But for this litigation, the contemplated discussions should likely have occurred starting May 1 of 2015.

[233]     The 2009 Agreement does not have the same type of provision for exchange of financial information but its absence does not necessarily relieve the Parents of that obligation especially where there are material changes in circumstances such as a significant increase in income as experienced by the Father in this case.

[234]     Given that at some point the amount of child support being paid by the Father was increased from that originally set out in the 2009 Agreement, it is clear that the Parents were aware of the obligation to revisit the issue and to exchange financial information in order to address the matter of any further adjustments.

[235]     The Parents in this case appear to have mutually failed in their obligation to undertake the required consultation to address the issue of changes in their respective financial circumstances.  The Mother did file an Application Respecting Orders or Agreements on April 29, 2013 that raised this issue as it related to increases in child support payments originally established by the 2009 Agreement.  I understand that her Application gave rise to the September 2013 Interim Order that left the issue of retroactive adjustment of child support to be dealt with later.

[236]     Any failures on the part of the Parents in consulting or failing to reach an agreement or in not bringing a timely application to obtain a court order must not deprive the Children of their rights to receive the benefits of child support at an appropriate level especially where there is continuing financial need.

[237]     This is a situation where it is appropriate for this court to consider that a retroactive award for child support be made.  First there was the 2009 Agreement which confirmed the obligation for the Father to pay child support.  Second the payments thereunder were adjusted at some point prior to 2011 apparently on the basis of an increase in the Father’s Guideline Income.  Third there has not been an order for payment of child support except for the September 2015 Interim Order.  That interim order left the question of retroactive payments to this further hearing.

[238]     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.

[239]     Circumstances clearly have materially changed and also within the contemplation of the Separation Agreement.  The Father also has had substantial increases in his annual income.  Those increases were not disclosed to the Mother by the Father.

[240]     The Father did not make continuing adequate and correct financial disclosure after the last increase in child support from the original amount set out in the 2009 Agreement.  Even the Father’s 2013 Financial Statement is not adequate.  He also apparently failed to make adequate and correct financial disclosure preceding and during the mediation that gave rise to the Separation Agreement.  He failed to adjust the payments of child support set out in the Separation Agreement when it became very apparent that Child A was not going to be subject to the shared parenting arrangement.

[241]     There is no clear evidence as to a precise date that the Parents spoke or communicated about reviewing the child support amount.  However, given that there was an adjustment made from the amount originally set out in the 2009 Agreement, I can draw a strong inference that both knew that this was an ongoing issue.

[242]     I have considered any delay in bringing the Mother’s Application.  Arguably the Mother should have brought an application regarding the child support issue in 2012.

[243]     Against this delay on the part of the Mother I must also consider the conduct on the part of the Father and specifically his lack of continuing financial disclosure.

[244]     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.

[245]     I am satisfied on the whole of the evidence that the Father had effective notice regarding the issue of the quantum and the adjustment of child support for the Children in at least 2012 since an adjustment had previously been made for 2011.

[246]     As previously noted I am drawing the reasonable inference that he failed to disclose his improved financial circumstances to the Mother because it would have given rise to increases in the amount that he was obliged to pay for child support.

[247]     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.

[248]     I have considered the present circumstances of both Child A and Child R.  Both were a child within the meaning of the FLA at the time the Mother’s Application was filed and they continue to be so at present time.  Both Children have continuing and increasing financial needs, especially as they get older.  Both will benefit from a retroactive award.  The Mother’s financial position has been somewhat adversely compromised for the past several years in what appears to be her quest to maintain a reasonable high standard of living for the Children.

[249]     I am satisfied that a retroactive award will not cause the Father undue hardship.  It will cause him some reasonable financial inconvenience.  I am of the view that he has had a financial benefit since 2012 by not making the correct amount of child support payments for the Children.  However, I am of the view that such inconvenience will not be overly onerous or burdensome or amount to undue hardship especially if he is given a reasonable amount of time to arrange his financial affairs and there is an appropriate schedule for the repayment of those arrears.

[250]     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, 2012, being the year in which I can infer that effective notice was received by the Father and that his behaviour became blameworthy by not making appropriate financial disclosure.  To utilize an earlier date would be inequitable and unfair and may be overly burdensome on the Father.

[251]     I will now turn to the quantum of the retroactive child support. The Father has had a significant increase of income, which I am equating as his Guideline Income, for the period from 2009 and apparently up to 2015 and into 2016.

[252]     Based upon various document admitted into evidence and based on the Father’s viva voce evidence and that of the Mother, referring to the Child Support Guidelines and to the Father’s income and details of his support payments, I have created the following summary table, which is subject to the various notes set out below:

[253]     I am satisfied on this basis that total arrears of child support owed by the Father, based upon his Guideline Income in each year, for the period January 1 to December 31 for the years from 2012, 2013 and 2014 totals $5,794.50.

[254]     In addition the payments being made by the Father for child support from January 1, 2015 onward need to be adjusted on the basis that Child R is subject to a shared parenting arrangement as described in the Separation Agreement and therefore the child support is subject to a setoff calculation for that child and Child A whose child support is not presently subject to a set off calculation.

[255]     For the purposes of such calculations I am using the Father’s imputed Guideline Income for 2015 of $72,000 and the Mother’s imputed Guideline Income of $33,157 (rounded) and subject to further future review and adjustment, those amounts will be utilized for the purposes of calculating child maintenance for 2016 on the same basis.

[256]     If the Father was paying for 2 children based on a Guideline Income of $72,000 and without a setoff the monthly child support payment is $1,092.  If the Mother was paying for 1 child based on a Guideline Income of $33,157 without a setoff, the child support payment is $300.  Setting off these two amounts the Father is required to pay the Mother child support of $792 each month for Child A and Child R, calculated as $1,092-$300=$792.

[257]     The Father has only been paying on the basis of the shared parenting at the amount set out in the Separation Agreement of $453 per month since January 1, 2015. Therefore there are arrears owing calculated as follows:

[258]     Therefore the total of the arrears for the periods in 2015 and 2016 set out above are $5,794.50 plus $6,102 equalling $11,896.50.

[259]     Based on my understanding of the Father’s overall financial circumstances, he will require a reasonable payment schedule in order to pay the increased monthly child support payments and to discharge the arrears.

[260]     It is noteworthy that it has been necessary to use imputed income amounts for 2015 and 2016. Therefore a future review and possible further adjustments will be required.

[261]     Based on all of the above I make the following final orders in addition to those set out in paragraph 189 of these reasons for judgement:

[262]     I must now turn to the thorny question of extraordinary expenses.  I have found and reviewed a number of decisions from British Columbia courts which I have found to be very helpful.  I commend these decisions to the Parents when they consider some of the issues that they have encountered and will encounter relating to special and extraordinary expenses.

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

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

[265]     The Mother and the Father have given some thought in the Separation Agreement to identifying and defining special and extraordinary expenses and have made it clear that there must be agreement with respect to incurring these types of expenses.  They have also identified in the Separation Agreement what is not to be considered special or extraordinary expenses.

[266]     Insofar as what is to be included they both have been unwilling to consult reasonably with each other about incurring those expenses and they have failed to take any reasonable steps to mediate their differences.  Instead each has forged ahead and in varying degrees has then sought to obtain recovery of the other’s portion after the fact.

[267]     Consultation and agreement are important factor for the court to consider when faced with the present situation regarding the substantial expenses incurred by the Mother for Child A’s orthodontic treatment.

[268]     In the recent decision of K.A.M.R. v. W.H.G. (supra), Mr. Justice Punnett provides the following useful guidance:

[269]     Based upon the evidence before me I am satisfied that the orthodontic treatment for Child A was reasonable and necessary but I am not satisfied that it was urgent insofar as its timing was concerned.

[270]     The Father chose his own dental care as a priority and was not very forthcoming about that choice to the Mother.  Similarly he did not present an alternative time frame for when that orthodontic treatment could or should proceed having regard to his financial circumstances.  All of that should have occurred as part of a consultation process.

[271]     There may be occasions when it is appropriate for the court to make directions respecting an issue affecting a child, upon an application of a child’s guardian, pursuant to section 49 of the FLA.

[272]     If the Mother had believed there was urgency with respect to the orthodontic treatment for Child A, then that application process was available to her.  Better yet she had available to her a mediation process that she did not utilize.

[273]     The court must be cautious in making orders that may have either a direct or indirect effect upon and thereby undermine the pursuit of consultation, agreement or mediation by the parties when it comes to matters affecting children.  This is especially true when the parties have committed to those aims in an agreement.  These considerations are particular important given the manner in which the Mother has proceeded in incurring the orthodontic expenses for Child A.  Failure to consult or to mediate in order to reach agreement or failure to make timely applications under section 49 should not be rewarded.

[274]     I am also mindful that the Father will as a result of the decisions reached by this court have some additional, immediate and continuing financial obligations for child support and for payment of arrears of child support.

[275]     Given all of these factors, this court will not make an order for the Father to contribute to Child A’s orthodontic expenses, which are special expenses and therefore I dismiss the Mother’s application in that regard.

[276]     The Parents will apparently have to consider the necessity, advisability, and eventual timing of orthodontic treatment for Child R.  There is insufficient evidence before the court for me to make a final determination of these issues at this point.  The Parents appear to agree that some type of orthodontic treatment for Child R will have to take place.  The timing and the scope of that treatment is unclear.

[277]     The Father has stated a willingness to cover the entire cost of the orthodontic treatment for Child R.  Again what is unstated is the scope and the timing of that treatment.

[278]     Having regard to the order that I have made which in essence requires the Mother to cover the cost of the orthodontic treatment for Child A, there will be an order that the Father will bear the entire cost of any future orthodontic treatment for Child R without any contribution from the Mother.  The scope of that future orthodontic treatment, the engagement of a specific orthodontist to provide that treatment and the timing of that treatment will be by the agreement of the Parents and failing agreement will be subject to the Dispute Resolution Provisions of this Order.

[279]     Specifically there will be an order that in the event that an agreement is not reached following the utilization of the Dispute Resolution Provisions of this Order with respect to Child R’s scope of future orthodontic treatment, the engagement of a specific orthodontist to provide that treatment or the timing of that treatment then either party will be at liberty to apply to this court for directions or a determination of any issue remaining in dispute.

[280]     The Parents have also failed to adequately consult with each other and have failed to utilize mediation in order to reach an agreement regarding the other items that are in dispute with respect to what are claimed as special or extraordinary expenses.

[281]     I am not satisfied that either has proven that the additional child care expenses and related programs were agreed to by both Parents.  Each Parent will bear the expenses of those child care expenses and related programs that each has incurred.

[282]     I am satisfied that the expenses for drum lessons for Child R, contemplated by paragraph 21(b) of the Separation Agreement have been agreed to and those expenses will be subject to being shared by the parties in a proportionate manner as hereinafter described.

[283]     I did not receive any additional viva voce evidence on an item claimed by the Mother in the amount of $200 described in Exhibit 9 as “[Child R’s] Epipens Annual”.  I am presuming that is a reference to a medical device trademarked under the name of “EpiPen” which is a portable, disposable spring activated hypodermic syringe containing epinephrine which is used in emergency situations by somebody with severe allergic reactions or asthma.  If that be the case then it qualifies as a medical expense under paragraph 21 (a) of the Separation Agreement and it is both a reasonable and necessary expense.  The net cost after any payment by the Father’s benefits plans, including that of M.S. which covers Child R, will be shared by the parties in a proportionate manner as hereinafter described.

[284]     The next question that I must consider is what is the respective proportion of contribution each parent should be making to special and extra-ordinary expenses other than orthodontic expenses.

[285]     In reaching that decision I have based it upon the imputed Guideline incomes established above for each of the Father and the Mother for 2015, being the amount of $72,000 for the Father and $33,157 for the Mother.

[286]     Thus the proportionate shares of responsibility for Special and Extraordinary expenses as described herein for each will be as follows:

[287]     The Father will pay his 68.5% proportionate share of all special and extraordinary expenses provided for in these reasons or as may be agreed to by the parties or as may otherwise ordered by the court 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 without any set off.

[288]     The Mother will pay her 31.5% proportionate share of all special and extraordinary expenses provided for in these reasons or as may be agreed to by the parties or as may otherwise ordered by the court to the Father following delivery of descriptive receipts to the Mother representing all expenditures for which contribution from the Mother is sought and such payment shall be made by the Mother within 14 days of the delivery of the receipts without any set off.

[289]     Based on all of the above I make the following further final orders in addition to those set out in paragraphs 189 and 261 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:

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

[291]     In order to deal with future disagreements between the Parents as it relates to the Children and their respective parental, financial and other obligations and matters relating to the Children and in anticipation that the Parents will use their best efforts to deal with matters relating to the Children 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 on-going 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 189, 261 and 289 of these reasons for judgement.

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

[293]     I direct the Nanaimo Registry to prepare the form of this order based upon the provisions of paragraphs 189, 261, 289, and 292, 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.