IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. C and Ms. H were engaged in a marriage-like relationship from 2009 until 2015.  They are the biological parents of N, who was born on [omitted for publication] and is now 8 years of age.

[2]           When N was born, Mr. C was a sailor on active duty in the Canadian Navy and Ms. H worked part-time as a cleaner at a hotel.  They lived in a rented house in Victoria with Ms. H’s daughter (C) from a previous relationship.  C is now 17.

[3]           During N’s first year of life, Ms. H took him to Nova Scotia to meet some of Mr. C’s extended family while Mr. C was deployed at sea.  After that, Mr. C took 3 months’ leave and they took N to Thailand to meet Ms. H’s extended family.

[4]           In 2013, the Ministry of Children & Family Development (“MCFD”) removed N and C from the family home because of complaints that Mr. C and Ms. H had subjected them to excessive physical discipline.  Each of Mr. C and Ms. H entered a guilty plea to a charge of assaulting the children, and each received a suspended sentence and a period of probation.  N was placed in foster care at the home of Ms. M, in whose care he remained from August, 2013 until April, 2015, when he was returned to the care of his parents.  C chose to remain in the care of MCFD.

[5]           Mr. C and Ms. H separated in June, 2015, when N was 5.  For most of the time since the separation, N has lived in Mr. C’s home from Monday to Friday and in Ms. H’s home on weekends.

[6]           Mr. C began a relationship with Ms. M in the latter part of 2015 and married her in November, 2016, when N was 6.  Mr. C and N moved into Ms. M’s house in [omitted for publication], British Columbia (the same house in which N had lived while he was a child in care).  Ms. M’s four children from a previous relationship (now ages 12, 17, 22 and 24) lived with them.  Mr. C enrolled N at [omitted for publication] Elementary School, which he has attended since then.

[7]           Mr. C was injured in a motor vehicle accident in 2013.  He was disabled by his injuries and was discharged from the Navy as a result.  In October, 2017, he received a settlement of his personal injury claim in the amount of $822,650 (after payment of legal fees and claims expenses).  The settlement was a lump-sum figure for all claims.  His personal injury counsel has provided an estimate of the breakdown of the settlement under various heads of damages, as follows (all figures rounded):

[8]           Ms. H now owns a company which provides cleaning services to homes, businesses and offices.  She does cleaning work herself, and also has several employees.  Her income consists of a salary from the company of $1000 bi-weekly and an annual dividend.  Her total income, as reported at line 150 of her income tax return, in each relevant year was:

[9]           In early 2018, Mr. C and Ms. M purchased a house in [omitted for publication], British Columbia at a price of $700,000.  Mr. C contributed $650,000 from his personal injury settlement and Ms. M contributed the balance from the proceeds of sale of her house in [omitted for publication].  They live there with N and Ms. M’s four children.  [Omitted for publication] is a community of some 200 souls, about [omitted for publication] km west of [omitted for publication].

[10]        Mr. C used the balance of his personal injury settlement to pay off debts (his own and those of Ms. M).

[11]         Ms. H lives in the house in Victoria where she lived with Mr. C from 2010 - 2015, and now shares the house with several roommates.  Her share of the rent is $350 per month.

[12]        Driving times between Victoria and [omitted for publication] vary from 90 minutes to three hours, depending on the time of day.  The route passes through several commuter suburbs of Victoria, and traffic moves very slowly on that route during peak commuter hours.

[13]        The following interim orders were made in this case:

[14]        Each year, N has spent half of the Christmas holiday and half of Spring Break with each parent.  This arrangement was agreed between Ms. H and Mr. C, and was not the subject of a court order.

[15]        On May 8, 2018, I had lunch with N, his paternal grandmother and counsel at a local restaurant.  I would like to express my gratitude to counsel for the professional and responsible approach which they took to that meeting.  In particular, they allowed N the opportunity to express himself freely without making him feel that he was under interrogation, or in some way on trial himself.  Not surprisingly, when left to choose what to talk about, N expressed little interest in adult subjects.  He is an avid devotee of “Pokemon Go”, an activity of which I was previously ignorant, but about which I am now well-informed.  N’s enthusiastic description of his participation in that activity offered me an opportunity to get a sense of him as an individual.  He presents as a self-confident, articulate, intelligent little boy who is generally happy in his world.  Given the turmoil in his early childhood, that is remarkable.  I conclude that: (i) N is an emotionally resilient child, possessed of some strength of character; and (ii) despite the difficulties in his childhood, he has been well-parented.  In saying that, I am mindful that Ms. M has provided to N at least as much parental care-giving and guidance as either of his biological parents, and (given that she was his foster-mother for 2 years and is now his step-mother) probably more.

[16]        During the course of lunch, N remarked that he has many friends at school, and that he likes them very much.

[17]        Before Mr. C and Ms. H separated, they intended to enrol N at [omitted for publication] Elementary School in Victoria, a short walk from the rental house which was then the family home, and in which Ms. H continues to live.  After the separation, Mr. C enrolled N at [omitted for publication] Elementary School, approximately [omitted for publication] kilometres west of Victoria and a short walk from Ms. Ms’ home.

[18]        N attended [omitted for publication] Elementary School for a week or so after Spring Break in 2018 because Ms. H declined to return him to Mr. C (as previously agreed) at the end of Spring Break.  Ms. H then enrolled him at [omitted for publication] Elementary School without first consulting Mr. C.  Mr. C retrieved him from the school a few days later and returned him to [omitted for publication].  With the exception of that brief interlude, all of N’s formal education (kindergarten, grade 1 and grade 2) has been delivered at [omitted for publication] Elementary School.

[19]        The following are some extracts from his November, 2017 report card:

[20]        During her evidence in chief on August 16, 2017, Ms. H was asked the following questions and gave the following answers:

[21]        Ms. H’s current position, advanced in closing argument on August 8 - 9, 2018, is that N should reside in Victoria with her and attend [omitted for publication] Elementary School.  She explains that, as a result of Mr. C’s move from [omitted for publication] to [omitted for publication], N now spends 90 minutes to 2 hours daily on the school bus.  By contrast, [omitted for publication] Elementary School is a few blocks from her home.

[22]        If the only issue were the choice of N’s school, I would have no hesitation in preferring [omitted for publication] Elementary School.

[23]        N needs help with reading, and the importance of reading at home with his parents is a recurring theme in his report cards.  Ms. M is able to provide that assistance at a high level, and has been doing so.  Ms. H simply lacks the necessary facility in the English language.

[24]        Overall, N is doing well at school, and is making progress in many of the areas in which he has not done well in the past.  It would be unwise to meddle with an educational program which is serving him, on balance, well.

[25]        N is at an age when peer relationships are gaining importance in his life.  He has well-established friendships with other students at [omitted for publication] Elementary.  Ms. H points out that he has an engaging personality, and makes friends easily, but it is never easy being the new kid in the class.

[26]        N does have a long daily commute on the school bus, but that is not uncommon in rural areas, and students in those areas customarily use their time on the bus as an opportunity for social interaction.  On balance, I do not regard the length of the commute as a decisive factor.

[27]        Much was said during the course of the trial about the importance of fostering N’s connection with Thai culture.  I will discuss that subject below.  However, that issue does not bear significantly on the choice of N’s school.  It is not proposed that he attend a Thai-language school if he lives in Victoria.  [Omitted for publication] Elementary School is a conventional elementary school, in which the language of instruction is English and the curriculum is that mandated by the Ministry of Education (i.e. the same curriculum as that offered at [omitted for publication] Elementary).  I accept the importance of N’s Thai heritage.  However, for the next 10 years, he must learn to navigate an educational system in which the language of instruction is English.  In order to succeed in that endeavour, he needs to improve his English-language skills.  His best opportunity to do that is in Mr. C’s home.

[28]        During closing argument, counsel proceeded on the unstated premise that the choice of N’s school would be determinative of his weekday place of residence.  I don’t accept the premise, because the choice of school is not the only factor to consider in deciding which home is better suited to N’s weekday needs.

[29]        Ms. H is a single parent.  If N’s weekday home were at her house, she would carry the burden of child care alone.  By virtue of her commendable industry, she has built and now operates a successful business.  Of necessity, that business demands much of her time, attention and energy.  Mr. C and Ms. Ms are both stay-at-home parents.  Their only obligations are to care for their home and children.

[30]        In the home of Mr. C and Ms. M, N has four step-siblings.  In the home of Ms. H, he would be an only child.  Siblings often enhance a child’s family experience, although that factor is somewhat diminished by the fact that Ms. M’s children are much older than N.

[31]        Ms. H suggests that the educational, social and cultural opportunities for N are much richer and more varied in Victoria than they are in [omitted for publication].  It is true that Victoria is a city of some size, and that [omitted for publication] is a tiny community.  There are certainly more, and more various, opportunities for children in Victoria.  I do not think that that factor necessarily makes Victoria a better place to raise children.  In particular, small communities offer more opportunities for unsupervised play than do big cities.  Many children from smaller communities grow up to have happy, satisfying and successful lives.  Although this is a relevant factor, I do not consider it to be as important as the other factors I have mentioned.

[32]        The importance of fostering N’s connection to his Thai heritage cannot be over-stated.  He is a dual Thai/Canadian citizen, and both countries have issued passports to him.  It is probable that he will spend extended periods in Thailand as an adult, and that he will benefit from that experience.

[33]        However, I do not think that he would have more or better opportunities to participate in Thai culture if he lived with Ms. H on weekdays and Mr. C on weekends, rather than the other way around.  In either case, he will attend an English-language school, with predominantly anglophone friends, throughout the week.  Ms. H’s opportunity to introduce him to Thai culture will be during evenings if he goes to school in Victoria and on weekends if he goes to school in [omitted for publication].  Each offers an equal opportunity for him to engage in Thai activities.

[34]        Mr. C expresses a desire to have some parenting time with N on the weekends.  He points out that N is away at school from early morning to late afternoon during most of Mr. C’s parenting time, and that evenings are taken up with efforts to assist him with his homework.  Mr. C would like to have some unstructured leisure time with his son.  I consider that to be a reasonable request, and one which would foster N’s relationship with his father.

[35]        I think that N is well-served by the existing arrangements for his residence and parenting time, and that the order which I made on May 8, 2018 should provide the template for the future.  I think that some adjustment is necessary to give N some weekend time with Mr. C.  I also observe that the previous orders for parenting time were silent on the questions of Christmas and Spring Break.  As noted below, the absence of such provisions is material to the question of child support.  For that reason, they should be expressly addressed in any new order for parenting time.

[36]        Commencing September 3, 2018, Ms. H will have parenting time, as follows.

[37]        If the parties are unable to agree on parenting time for the summer of 2019, either parent has liberty to apply.

[38]        As noted below, N’s standard of living in Ms. H’s home is lower than his standard of living in Mr. C’s home.  That is principally because of Mr. C’s personal injury settlement, which allows Mr. C and Ms. M to live as stay-at-home parents in a large and luxurious house.  By contrast, Ms. H must make time for N in her busy schedule as the owner and operator of a small business.  For the reasons given below, I do not think that I am in a position to ameliorate that situation by an award of child or spousal support.  However, Mr. C is in a position to ease Ms. H’s burdens by assuming more responsibility for N’s transport between his parents’ houses.  In the past, Mr. C and Ms. H have met, by agreement, mid-way between their homes to exchange N.  If Mr. C were to take responsibility for transport to Ms. H’s home, it would enhance both the quality and the quantity of her time with N, and N would benefit accordingly.  I do not think that I should make an order on that subject at this stage, but I ask Mr. C to consider the suggestion.

[39]        Ms. H expresses concern that N should have regular medical and dental check-ups.  It is difficult for her to arrange those because her parenting time is primarily on weekends.  Mr. C has agreed to ensure that N has a medical and dental check-up at least once a year, and to provide Ms. H with access to his attending professionals.

[40]        As noted in paragraph 13(a), there is an existing order that neither parent remove N from British Columbia without the permission of the other parent or leave of the court.  Ms. H seeks leave to travel with N to Thailand in the summer of 2019.  Mr. C opposes the application because he fears that, if Ms. H takes N to Thailand, neither will return to Canada.

[41]        This is a difficult question.

[42]        Mr. C waives all claims for child support, retroactive or prospective.  Understandably, he reserves the right to apply for child support in future if there occurs a material change in circumstances justifying such an application.

[43]        Ms. H applies for child support, and asks me to declare that the parenting regime over the past three years has been a shared parenting regime, falling within the ambit of section 9 of the Federal Child Support Guidelines:

[44]        Ms. de Wit referred me to the decision of Justice Saunders in Berry v. Hart 2003 BCCA 659, in support of the propositions that: (i) in determining the proportion of parenting time allocated to each parent, I need not do an arithmetic calculation, but rather that I should assess the question subjectively; and (ii) I may find that a shared custody regime exists, and has existed, even if I conclude that Ms. H’s parenting time has been, or will be, marginally less than 40%.  Being bound by the authorities mentioned below, I reject both submissions.

[45]        In ADJ v. TDP [2017] BCJ No. 2638; 2017 BCSC 2360 at paragraph 13, Justice Meiklem said:

[46]        Ms. De Wit points out that N is in school during much of Mr. C’s parenting time, and submits that school hours should be left out of account in the calculation of the relative proportions of parenting time of each parent.  Justice Saunders rejected a similar submission in Maultsaid v. Blair at paragraph 20, and I am bound to reject it here.

[47]        Section 9 of the Guidelines requires the court to assess the proportions of parenting time “… over the course of a year …”.  That calculation is difficult in this case because of the various orders which have been made.  The governing principle in such cases was stated in Gosse v. Sorenson-Gosse 2011 NLCA 58 (CanLII), [2011] NJ No. 331; 2011 NLCA 58; 12 RFL (7^th) 1 at paragraph 126:

[48]        I am unable to take professional-development days into account in the calculations which follow because there is no evidence of the frequency of such days.

[49]        Judge Cutler’s first order in this case was in force from June 20, 2016 to June 5, 2017.  I leave out of account the period between June 20 and June 30, 2016 because it is too short to be material.  In respect of the period between June 30 and December 31, 2016, Judge Cutler’s order does not allow a calculation in hours because Ms. H’s parenting time was expressed to be from Thursday at 6:00 p.m. to “… Monday morning …”, and so might extend to anytime between 6:00 a.m. and noon on Monday.  Doing my best to interpret the order reasonably, I think it right to conclude that Judge Cutler’s first order entitled Ms. H to 3 ½ days per week of parenting time; i.e. 50% of the total.

[50]        The same order and the same parenting-time schedule applied during the period January 1 – June 5, 2017, a period of 126 days.  Ms. H’s parenting time during the period June 5 to December 31, 2017 may be calculated in hours because Judge Cutler’s second order was more precise than his first.  However, I think that I should apply the same methodology throughout the year, and so that I should count days, rather than hours, for the period June 5 to December 31.  Except for the brief interval between June 5 and June 29, Ms. H was entitled to parenting time for 3 ½ days per week.  It is clear that her entitlement to parenting time exceeded the statutory threshold (40%) for the year as a whole.

[51]        Ms. H’s parenting time for 2018 may be calculated in hours.  The period from January 1 to May 8 was governed by Judge Cutler’s second order.  Under that order, Ms. H was entitled to 62 hours per week of parenting time.  There were 14 weeks between January 1 and May 8, for a total of 868 hours.  Similarly, under my order of May 8, 2018, Ms. H was entitled to 62 hours per week of parenting time between May 8 and June 29, period of 7 weeks, for a total of 434 additional hours.  Add in 24 hours for the May 24 holiday, and the total for the period January 1 – June 29 is 1326 hours.  During the period June 28 to September 30, 2018 (a total of 67 days), Ms. H had parenting time for 34 days (816 hours), bringing the aggregate total to 2142 hours.  Under the new parenting-time schedule to take effect on September 3, 2018, Ms. H will have parenting time with N for 180 hours in each 4-week cycle.  There are 4 such cycles during the period September 3 to December 22.  Adding in 2 days (of 24 hours each) for Thanksgiving Monday and Remembrance Day, 9 hours on Christmas Day, and 6 days (of 24 hours each) on December 26 –31, Ms. H will have parenting time for 921 hours during the period September 3 – December 31, bringing the aggregate total for 2018 to 3063 hours.  There are 8760 hours in a year (unless it is a leap year).  Accordingly, Ms. H’s parenting-time entitlement in 2018 will be 34.9%.  Even allowing for professional development days, it is clear that her parenting-time entitlement will be less than 40% in 2018.

[52]        The parenting-time schedule for the summer of 2019 remains to be determined.  For that reason, I cannot predict how much parenting time Ms. H will have in 2019.

[53]        It follows that section 9 of the Guidelines applies to the latter half of 2016 and to all of 2017, but not to 2018.

[54]        Ms. deWit submits that, in assessing Mr. C’s income for the purposes of child and spousal support, I should include in each year a portion of Mr. C’s personal-injury damage settlement, having regard to the fact that much of it is comprised of compensation for loss of income and loss of income-earning capacity.  For the following reasons, I do not think that I should do so when considering issues of child support:

[55]        Section 9 does not provide a formula for the assessment of child support.  Rather, it requires the court to determine a fair measure of child support by reference to the three factors set out in the section.  In Contino v. Leonelli-Contino 2005 SCC 63 (CanLII), [2005] 3 SCR 217 at paragraph 27, Justice Bastarache said:

[56]        In Walling v. Holonsey 2011 BCSC 104; [2011] BCJ No. 122, Justice Bowden said at paragraph 17:

[57]        Until further order of the court, the parties will share special & extraordinary expenses in proportion to their 2017 incomes; i.e. Ms. H will be responsible for 46% of such expenses and Mr. C for 54%.  Given the history, differences of opinion on the subject are inevitable.  Those differences will be resolved in the following way:

[58]        A large part of Mr. C’s pre-accident income stream has been replaced by the disability benefits which he now receives.  The portion of his settlement funds attributable to loss of future income-earning capacity was calculated to fully replace that same future income stream with investment income.  As a result, Mr. C has been double-compensated for loss of future income.  That windfall has enabled Mr. C to substantially improve his standard of living.  The questions are: (i) whether he should be obliged to share that windfall with Ms. H; and (ii) if so, whether an award of spousal support is an appropriate tool to effect that result.  For the reasons given below, I would answer the second question in the negative.  That conclusion renders it both unnecessary and inappropriate for me to answer the first question.

[59]        The Federal Child Support Guidelines have brought admirable clarity, simplicity and certainty to the adjudication of claims for child support.  Unfortunately, the same cannot be said in relation to the principles governing awards of spousal support.  As far as I can determine, all or almost all issues of spousal support are discretionary and dependent upon the circumstances of the individual case.  I have done my best to extract some guiding principles from the authorities mentioned below, but I would not want my articulation of the governing principles to be taken as categorical - the jurisprudence does not allow for that kind of certainty.

[60]        The authorities recognize three grounds upon which spousal support may be ordered: (i) compensatory; (ii) contractual and (iii) non-compensatory: Chutter v. Chutter 2008 BCCA 507 (CanLII), [2008] BCJ No. 2398; 2008 BCCA 507 (leave to appeal refused at [2009] SCCA No. 41).  There is no basis in this case for a compensatory or contractual award of spousal support.  Ms. H’s career was neither delayed nor impeded by her family responsibilities.  Indeed, since N’s birth, she has built a successful business, no doubt assisted by the fact that, since N was 3 years of age, his primary caregivers have been Ms. M and Mr. C.  It is not alleged that there was any agreement on the subject of child support.  The remaining question is whether the evidence supports an award of non-compensatory spousal support.

[61]        Mr. C’s annual disability benefit ($47,000) is not significantly higher than Ms. H’s annual income from her business (about $43,000 in 2017).  Mr. C enjoys a higher standard of living than does Ms. H because: (i) he and Ms. M own their home, and have no mortgage; and (ii) living in Victoria is more expensive than living in [omitted for publication].  Those advantages are offset by the fact that Mr. C and Ms. M have six people in the household and Ms. H has only herself and N.  There is no evidence of the contributions, if any, made by Ms. M and her adult children to the household expenses in [omitted for publication].

[62]        As noted in paragraph 56, one important objective of child support is to ensure that the child’s standard of living, post-separation, is roughly comparable in the home of each parent.  Similarly, where the applicant is entitled to compensatory child support, one objective of the award is to equalize (more or less) the post-separation standards of living of the former spouses.  As a result, post-separation changes in their financial circumstances are relevant to a claim for spousal support on a compensatory basis.  However, where the applicant’s only claim to spousal support is on a non-compensatory basis, the objective is to (more or less) sustain the applicant in the standard of living which [s]he enjoyed during the marriage: Chutter at paragraph 52; BAC v. RWC [2018] BCJ No. 366; 2018 BCSC 317 at paragraphs 50 - 51; AAM v. RPK [2010] OJ No. 4001; 2010 ONSC 930; 81 RFL (6^th) 370 at paragraphs 202 – 207; Reid v. Gillingham [2014] NBJ No. 98; 2014 NBQB 79 at paragraph 8.

[63]        It is easy to understand why post-separation changes in financial position should be governed by different principles in relation to spousal support than in relation to child support.  Children come first.  One of the recognized objectives of spousal support is to encourage the recipient spouse to pursue self-sufficiency: Bracklow v. Bracklow 1999 CanLII 715 (SCC), [1999] 1 SCR 420 at paragraph 32.  We do not expect children to become self-sufficient until they are adults.  When a parent’s ability to contribute to his or her child’s well-being increases after separation, that parent’s child support obligation should increase commensurately, applying the Federal Child Support Guidelines.  The same imperative does not apply to spousal support.

[64]        It is more difficult to devise a convincing rationale for applying different principles to compensatory and non-compensatory spousal support.  With that acknowledged, I think that I should follow the guidance given in Thompson and Kozak, leading to the conclusion that, absent special circumstances, post-separation enhancements of the payor spouse’s financial position should not be taken into account in relation to non-compensatory spousal support.

[65]        Ms. H’s present standard of living is almost identical to that which she enjoyed during her relationship with Mr. C.  I find no unusual factor in this case which would justify me in taking into account Mr. C’s improved financial position when adjudicating Ms. H’s claim for non-compensatory spousal support.  For that reason, her claim for non-compensatory spousal support fails.

[66]        The fact that Mr. C now enjoys a higher standard of living than does Ms. H is entirely attributable to the settlement of his personal injury claim.  The event living rise to the claim occurred before Mr. C and Ms. H separated, but the settlement was agreed and the settlement funds were paid after separation.  Mr. C’s personal injury settlement might or might not be a family asset, and so subject to a claim under Part 5 of the Family Law Act.  I express no opinion on that question because this court has no jurisdiction under Part 5: Family Law Act, s 193.  Any such claim must be pursued in the Supreme Court.

[67]        It is apparent that there are a number of issues which cannot be resolved at this time, and probable that other issues will arise which Ms. H and Mr. C will fail to resolve by negotiation.  Recognizing that, I asked the parties whether they wish me to be seized of future proceedings in this case.  Both replied in the affirmative.

[68]        I make the following orders: