IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  These are my Reasons for Judgment in the case of C.M.B. versus C.G.H., file 16173.

[2]           H.G.H. is now seven years old and he has a diagnosis of autism. His parents, C.G.H. and C.M.B., dearly love this little boy but they have very different views on his future parenting arrangements.

[3]           For most of his young life, H. has been in the primary care of Ms. B. with the assistance of other family members who provide daycare. Mr. H. sees H. every other weekend, but he was a primary caregiver for a three-month period in late 2016 and early 2017. H. has difficulty changing routines and he has a very limited vocabulary. He currently attends a special school called [omitted for publication] for only morning hours.

[4]           Mr. H. has brought an application seeking a shared parenting arrangement, likely on a week on/week off basis. He also seeks a reduction in child support. The governing written agreement between the parties was made June 18, 2014 and under its terms the parties share parental responsibilities but Ms. B. was to have the majority of the parenting time of H. The child support was set at $679 per month with a sharing of daycare costs.

[5]           Ms. B. has counterclaimed for primary residence of H., allocation of parenting responsibilities, travel orders and retroactive child support, and a fixing of any outstanding special expenses for H. I must address these issues bearing in mind only the best interests of H.

[6]           The parties lived in a marriage-like relationship beginning in 2006. Mr. H. acquired employment with [omitted for publication] and he went to Northern Alberta for training in late November of 2011. Ms. B. had complications with her pregnancy and H. was born prematurely on [omitted for publication]. H.'s due date was [omitted for publication].

[7]           Mr. H. had the family vehicle, so Ms. B. used her parents' vehicle to visit H. in the neonatal intensive care unit of Royal Columbian Hospital. Mr. H. did fly down to see H. at the NICU ward where H. stayed until [omitted for publication].

[8]           The parties moved into Ms. B.'s parents' home in April 2012 and Ms. B. maintains that the separation was on June 9, 2012, whereas Mr. H. asserts the date to be in the summer of 2012.

[9]           Following separation, Mr. H. continued to work in Grand Prairie, Alberta so he saw H. infrequently in 2012, 2013, 2014 and 2015. Mr. H. had a week long visit in 2015.

[10]        In November of 2015, Mr. H. moved to the Sunshine Coast and he visited H. approximately every second weekend, although he said he wanted every weekend.

[11]        In mid 2016, Mr. H. moved to Abbotsford to be closer to his son. He married his present spouse on February 14, 2016 and they have a daughter, born [omitted for publication]. For most of 2016, Mr. H., saw H. on alternating weekends.

[12]        H. was formally diagnosed with autism in a clinical diagnostic assessment summary prepared by Westcoast Child Development Group on November 28, 2016. He was also diagnosed with a moderate intellectual disability and language disorder.

[13]        In December of 2016, there were difficulties with H.'s daycare at [omitted for publication] and Ms. B. also had some health issues. It was agreed that Mr. H. could care for H. during the weekdays and on alternating weekends and this lasted until the end of April 2017 when Mr. H. underwent a spinal fusion operation. Following that three-month period, Mr. H.'s visits with H. reverted to alternating weekends.

[14]        H. now attends [omitted for publication] in [omitted for publication] and he has speech and behaviour therapy there. Both Ms. B.'s sister and her mother provide daycare but Mr. H. was never consulted about these arrangements and he says he could have provided the daycare.

[15]        The written agreement made June 18, 2014 and filed August 19, 2014, is the only substantive order on file. The other orders relate to procedural or disclosure matters.

[16]        H. is now seven years old and he weighs 75 pounds, so he is somewhat overweight. As outlined in the Westcoast Child Development Group Report, H. is within the autism spectrum and he has minimal language skills. At page 3 of that report, H. is said to have a short attention span and is dependent on his daily routines. He needs a lot of time and repetition to make transitions, but he understands familiar routines and can cooperate with them.

[17]        Under recommendations, the Westcoast report indicates that H. will perform best and be most comfortable in a stable, predictable environment (see page 10 of the report).

[18]        When H. was younger he attended [omitted for publication] Daycare until approximately November of 2016. Ms. B. is a care aide and when she works her sister, T.B., provides daycare in [omitted for publication]. Ms. B.'s mother, W.B., also provides daycare, primarily in the evening.

[19]        H. first attended school at [omitted for publication] and during his last school year he attended [omitted for publication]. He now attends [omitted for publication], as I said earlier, usually from 9:30 a.m. to noon. H. is in a class with four other students and he has a one-on-one therapist.

[20]        H. can have meltdowns when his routines are disturbed. For example, in 2017, when there was a change in H.'s teaching assistant at [omitted for publication], H. acted out and bit the new teaching assistant.

[21]        H. also has incontinence issues where he does not have a regular bowel movement. Ms. B. says that she gives him Lax-A-Day and she believes that H. often does not have a bowel movement while at his father's home.

[22]        It is clear that Ms. B. took on the primary care of H. when he was an infant. Mr. H. was away in Alberta and only saw H. a few times per year. Ms. B. provides H. with the routine he requires, even though that routine has changed over time. [omitted for publication] in [omitted for publication] is H.'s third school but, according to the [omitted for publication] letters, H. is making slow but steady growth in his behaviours (see Exhibit 2). The school has the necessary aides and therapists for H.

[23]        H. has also experienced a number of daycare situations but, again, the current daycare arrangement serves H. well. I appreciate that Mr. H. has not been fully consulted about these arrangements and that is a separate issue. H. is attached to his maternal grandmother when there is evening daycare and he is also attached to his aunt, T.B.

[24]        It is unfortunate that when describing the most important people in H.'s life, the mother's family does not mention the father. I understand that Mr. H. was largely absent from H.'s early life, but the mother's family seems to be disregarding the important role Mr. H. now plays in his son's existence.

[25]        I have no issues with Ms. B. as a caregiver. She is a care aide with some unusual working hours but the daycare is appropriate. Her sister and her parents are also closely bonded to H. and she lives with her parents.

[26]        Mr. H. now has a growing family in [omitted for publication]. He has a wife and young daughter. Mr. H. last worked in July of 2015 due to a work injury, so he does suffer from chronic pain. The letter from Dr. Salo, dated April 19, 2018, indicates that Mr. H. continues to have limiting back and leg pain. Nevertheless, Mr. H. has the capability to care for H. full-time. Mr. H. has noted that his current wife does have a strained relationship with H., and he blames Ms. B. for saying inappropriate things within earshot of H.

[27]        Historically, Mr. H. was largely absent for H.'s life. In 2012, 2013 and 2014, he only saw H. a few times per year. In 2015, H. spent a week with Mr. H. but Ms. B. observed that H.'s behaviour deteriorated following that visit. During 2015, Mr. H. did move from Alberta down to the Sunshine Coast to be closer to his son and physiotherapy. Ms. B. drove H. to the Horseshoe Bay ferry terminal to accommodate visits approximately every second weekend. Mr. H. was hoping for weekend visits every week.

[28]        In mid 2016, Mr. H. moved to [omitted for publication] and exercised visits on alternating weekends. As previously mentioned, in late 2016 and early 2017, Mr. H. had primary care of H. for three months. This arrangement could not continue due to Mr. H.'s surgery and Ms. B. observed that H.'s behaviour again deteriorated during this period. Of course, there were a number of factors at play during this time. H. had just lost his [omitted for publication] Daycare and there was a change of his teaching assistants at school.

[29]        Since that time, Mr. H. has exercised his parenting time with H. with alternating weekends and some extended visits. He missed some visits in 2017 due to his recovery from surgery.

[30]        Ms. B. reports that the transitions from her to Mr. H. are difficult on H. He often cries and is upset to go to his father. However, Mr. H. reports that H. soon settles down once in his care.

[31]        As stated previously, I am only governed by H.'s best interests, as set out in s. 37 of the FLA. The issue here is whether I should significantly change H.'s parenting arrangements so that Mr. H. can have an equal role in H.'s day-to-day life.

[32]        There is no doubt that there have been some significant changes since the agreement was made in June of 2014. First, Mr. H. moved to Abbotsford and he is physically much closer to his son. There was also a brief period in early 2017 when he primarily cared for H. Secondly, H.'s diagnosis of autism is clearly set out now in the Westcoast Child Development Group report from late 2016. Consequently, I am satisfied that there has been a change of circumstances since the agreement was made, allowing for a variation of the agreement under s. 47 of the Family Law Act.

[33]        Despite these developments, I am reluctant to significantly disrupt H.'s routine during a school year. He is slowly making progress under the current regime where he attends school for half days with the mother's family providing daycare. Mr. H. is now an involved father, despite being largely absent in H.'s early life. However, H. still has issues transitioning from his mother's care to his father's care and he is a child who can only thrive with a set routine.

[34]        I have noted in open court more than once that Ms. B. and Mr. H. do not communicate well. It is unlikely that Mr. H. would maintain a school-week routine for H. that is similar to the one at his mother's home simply because the parents cannot communicate effectively. I also find that while H. now has a strong bond with his father, his primary bond is still with his mother and her side of the family.

[35]        There have been a few occasions when H. has returned from extended visits with his father with unusual behaviours. For example, following a spring break visit H. appeared very afraid of water. These transitional difficulties are not likely the fault of the father. Rather, they are a demonstration of the need for a very structured routine for this boy who has autism. H. struggles with transitions.

[36]        Given these circumstances, my orders will not significantly change H.'s routine during the school year. That said, the time has come for Mr. H. to have some more extensive visits during holiday periods when school is not in session. These holiday times will allow H. to visit with his father and establish routines there without the concern of disruptions to his school or daycare schedule.

[37]        Following separation, Mr. H. continued to work in the oil sector in Alberta until mid 2015. He has received WCB payments since that time. Ms. B. was initially on income assistance at the time of separation but she acquired employment as a care aide in November of 2012.

[38]        Before the parties entered into the agreement dated June 18, 2014, Mr. H. asserts that he paid Ms. B. $500 a month as a form of child support and he paid for a loan and insurance on the Mercedes vehicle which he used. He believes he assumed roughly $10,000 in credit card debit and Ms. B. assumed $4,000 debt. I do not have any extensive bank records as to what Mr. H. paid for the year 2012 and I have very little records for 2013. Ms. B. is of the view she assumed closer to $8,000 of the family debt. She says that prior to entering the agreement, Mr. H. was to pay her about $870 per month but that essentially covered car payments, insurance and credit cards.

[39]        In 2012, Mr. H. earned $78,366 and Ms. B. earned only $8,479. In 2013, Mr. H. earned $79,028 but $4,561 of that income was WCB benefits which were received tax free. Ms. B. earned $24,361 in 2013. In 2014, Mr. H. earned $85,859 and Ms. B. earned $30,342.

[40]        The parties entered into the agreement on June 18, 2014 and Mr. H.'s earnings were stated to be $79,030, producing child support of $679 per month. Mr. H. says he paid $850 per month thereafter for some time, which included the child support, daycare and something for Ms. B.'s cell phone. The records show that he paid $800 per month fairly regularly in 2015 to 2016 and the $800 consisted of $600 child support and $200 towards daycare.

[41]        In 2015, Mr. H. earned $94,423 and Ms. B. earned $28,672 but Mr. H.'s income included $28,467 in WCB benefits.

[42]        In 2016, Mr. H.'s income was $58,324 and $57,082 of that was WCB benefits. Ms. B. earned $32,610.

[43]        In 2017, Mr. H. earned $57,563 in WCB benefits and Ms. B. earned $31,101.

[44]        In 2018, Mr. H. received a T5007 showing $57,802.57 in WCB benefits, a very similar income to 2016 and 2017. There was some insinuation that he has been working under the table but the evidence in that regard is inconclusive.

[45]        Based on the banking records and mother's counsel's calculations, Mr. H. has paid the following support and daycare to Ms. B.:

[46]        Using the FMEP records, Mr. H. paid $3,318 in 2016 in addition to the $5,600 previously mentioned and the total paid for 2016 is, therefore, $8,918. In 2017, Mr. H. paid $8,457.43 through FMEP. In 2018 to April he paid $8,150.

[47]        According to FMEP, the arrears of child support are only $1,844.42 to February 19, 2019, including $88.85 interest.

[48]        Financial information for Mr. H. has been slow in coming. Based on court orders, he was late providing a financial statement and his 2016 income tax return.

[49]        I do note that Mr. H. has had to avail himself of payday loans and, in a sense, he has asked me to consider an undue hardship claim. Based on the difference between his income and that of Ms. B., there is no chance of the undue hardship claim succeeding and I am unaware of his spouse's income. I, again, point out that his WCB income needs to be grossed up for child support purposes.

[50]        The major issue here is retroactive child support. The Supreme Court of Canada decision of D.B.S. v. S.R.G., 2006 SCC 37, indicates that the court will not normally go back more than three years before formal notice is given to the payor parent. In the case at bar, Ms. B. gave notice through her reply and counterclaim, dated June 14, 2017. Hence, I would ordinarily only address retroactive child support back to June of 2014, right when the agreement was made.

[51]        However, counsel for Ms. B. submits there is blameworthy conduct by Mr. H.. The D.B.S. case does allow for a retroactive award of child support back to the time increased child support should have been paid where there is blameworthy conduct by the payor. Blameworthy conduct is not simply deceitful conduct, it includes withholding of information.

[52]        With all due respect, I do not find blameworthy conduct here. Mr. H. disclosed his income at the time of the agreement in 2014 to be $79,030 and that was his income in 2013, although a small portion included WCB benefits requiring a gross up. Ms. B. also disclosed her income using 2013 information. The child support in the agreement was based on a Guideline income of $79,030.

[53]        Regarding the period prior to the agreement, it is extremely difficult to render calculations of payments made prior to June of 2014. Mr. H. does assert that he provided payments for both child support and family debts. It would be impractical and expensive for Mr. H. to produce voluminous bank records for the years 2012 and 2013 and even if he did, allocation of these payments is difficult, if not impossible. For example, mother's counsel is asking that I treat any payments made prior to June of 2014 as spousal support and not child support. That is problematic given that neither party ever referred to the sums paid then as spousal support. Ms. B. has never made a claim for spousal support and Mr. H. has never received a tax deduction for such payments. I also note that Ms. B.'s father worked in the same field as Mr. H., so she likely had some idea of his income prior to 2014.

[54]        Now, I wish to make it very clear that Ms. B. was undoubtedly in some financial hardship in 2012 and 2013 and she had to rely on her parents to some degree. However, I do not see Mr. H.'s conduct to be such that I can go back further than June of 2014. By his evidence, Mr. H. was supporting the family, assuming debt in 2012 and 2013, even though there was little documentary evidence available at trial.

[55]        Looking from June 2014 onwards, I calculate the retroactive child support as follows:

[56]        For 2014, Mr. H. actually earned $85,859 so he should have been paying $800 per month in child support for the last half of 2014. Six months at $800 a month is $4800. He paid $3,437 for that six months, not including daycare, so the arrears are $1,363 for 2014.

[57]        For 2015, Mr. H. earned $92,423 (grossed up) so he should have been paying $857 per month in child support. Twelve months at $857 a month is $10,284. He paid $6,850, not including daycare, so the arrears are $3,434 for 2015.

[58]        For 2016, Mr. H. earned $70,809 (grossed up) so he should have been paying $661 per month in child support. Twelve months at $661 per month is $7,932 and there was $12 interest. He paid $7,518, not including daycare, so the arrears are only $426 for 2016.

[59]        In 2017, Mr. H. earned $69,838 (grossed up) so he should have been paying $664 per month in child support. Twelve months at $664 per month is $7,968 and there was $36.28 interest. He paid $8,457.43 so he gets a credit of $453.15. However, Mr. H. also had significant care of H. for about three months, so I am increasing the credit to $1200.

[60]        I do not have complete records of payments for 2018 so I will only set the arrears to the end of 2017. I will set current child support from January 1, 2018 onwards and let FMEP deduct any payments made so as to calculate any arrears for 2018 and 2019.

[61]        Based on the above calculations, the total child support arrears to the end of 2017 are $4,023. There may be some arrears for 2018 and 2019 as well.

[62]        I am setting current child support using Mr. H.'s 2017 income of $69,838 (grossed up) because that is virtually identical to what has been disclosed for 2018. From January 1, 2018 onwards, Mr. H. will be required to pay child support of $664 per month.

[63]        The agreement of June 18, 2014, required Mr. H. to pay 50 percent of the daycare costs. After July of 2016, Mr. H. stopped contributing to daycare. I agree that, as a general principle, Mr. H. should pay half the cost of daycare as per the agreement up to June 2017 when the mother's counterclaim was filed. Following that date, Mr. H. should pay his proportionate share of the daycare costs as set out in s. 7(2) of the Child Support Guidelines.

[64]        H. is a special needs child requiring a daycare he is familiar with. He only goes to school for half days or less, so daycare is required given that Ms. B. is working. Most of her shifts are 12 hours. Because of H.'s behaviours, it is difficult for him to go to a conventional daycare.

[65]        Ms. B.'s sister, T.B., typically provides daycare for H. on Tuesdays, Thursdays and every other Friday. She cares for H. after school and has him until 5:30 p.m. She is not a licensed daycare but H. is quite bonded to her. T.B. receives a government subsidy in addition to what C.B. provides her. This daycare cost is not covered by autism funding. T.B. provided receipts for April to December of 2017, usually in the amount of $300 per month. She also provided receipts for the 2018 year and all of those were for $300 per month. [omitted for publication] personnel have attended T.B.'s daycare.

[66]        Ms. B.'s mother, W.B., typically provides daycare for H. in the evenings and on Wednesdays. W.B. charges $25 per day for evening daycare and her daycare is called [omitted for publication]. Typically, her receipts are for $400 per month, starting in January 2016. The daycare costs are incurred even when Mr. H. had weekday care of H. in early 2017, presumably because it was evening care.

[67]        There are a number of issues concerning the daycare costs.

[68]        First, Mr. H. takes issue with the fact that it is Ms. B.'s family providing the daycare for H. In my view, if the daycare is required and it is serving H.'s best interest, it is a legitimate s. 7 expense. Section 7(1)(a) makes it clear that childcare expenses incurred as a result of a custodial parent's employment may be subject to a court order if they are necessary, in relation to the child's best interest and if they are reasonable. Moreover, Mr. H. himself had agreed to contribute to daycare expenses in the June 2014 agreement.

[69]        I also note that cases such as Mistry v. Mistry, 2019 Carswell Ont. 76, have ruled that it is the responsibility of parents to support their children and the generosity of grandparents does not absolve them of that responsibility. Of course, in this case, Ms. B.'s mother and sister are actually charging for their services and money is tight all around.

[70]        Mr. H.'s second issue with the daycare costs revolves around the legitimacy of the receipts and the reasonableness of the daycare expense. I am of the view that Ms. B. is truly incurring the daycare costs. She is often working four 12‑hour shifts per week and she requires daycare. Both Ms. B.'s mother and sister testified about their receipts and the daycare costs are being claimed on tax returns.

[71]        As to the reasonableness of the daycare expense, s. 7 of the Child Support Guidelines does require me to examine the means of the parties and their spending patterns prior to separation.

[72]        Mr. H.'s WCB income does allow room for daycare expenses and he, in fact, historically paid $200 a month for that sort of expense. I also find that the daycare costs here are reasonable, given that we are dealing with an autistic child.

[73]        The third and final issue concerning daycare costs is Mr. H.'s lack of consent to the present-day care arrangements.

[74]        The Mistry case cited above does discuss a party losing the right to seek reimbursement where no consent for a s. 7 expense was sought. However, this case law is specific to orders which required prior consent before incurring a s. 7 expense.

[75]        Having considered all aspects of this issue, I am inclined to provide Mr. H. with a modest discount on the daycare arrears, given that he was not consulted about the daycare arrangements. He was certainly aware daycare was required, to some degree, but he claims he could, at least theoretically, have provided some of the daycare himself and he now faces a considerable accumulation of daycare arrears.

[76]        In 2016, the daycare receipts total $4,800 and Mr. H.'s share of that is 50 percent based on the agreement. Of the $2,400 owing, he paid $1,400. The arrears are, therefore, $1,000.

[77]        For the first six months of 2017, prior to Ms. B.'s counterclaim, the daycare costs were $3,300. Mr. H.'s 50 percent share of that sum is $1,650 and he paid none of that figure. From July to December of 2017, the daycare cost was $4,200 and Mr. H.'s proportionate share is 69.19 percent of $4,200 which equals $2,906.

[78]        In 2018, the daycare costs total $8,400. Mr. H.'s proportionate share is 69.19 percent of that figure, which equals $5,812. Again, he paid no daycare in 2018 or 2017.

[79]        The total daycare arrears are, therefore, $11,368. However, taking into account the lack of consultation and Mr. H.'s care of H. for three months in 2017, I am discounting that figure to $8,000.

[80]        For 2019 onwards, Mr. H. should pay 69.19 percent of the approximate $700 per month daycare expense. I am rounding this off to $480 per month and I am assuming that Ms. B. receives no subsidy or autism funding to offset that daycare expense.

[81]        I realize that Ms. B.'s mother is caring for H. in the evenings while Ms. B. cares for a patient at the home. In my view, $25 for evening is a reasonable cost.

[82]        I will be prorating the daycare costs for the summer, spring break and Christmas.

[83]        Mr. H. should also pay $50 towards [omitted for publication] commencing September 1, 2018. This expense is outside of the autism funding.

[84]        Based on the above analysis these are my orders:

[85]        Upon the court being advised that the name and birth date of each child is as follows:  H.G.H., born December 13th, 2011.

[86]        The agreement dated June 18, 2014 and filed August 19, 2014 is cancelled.

[87]        The court is satisfied that C.G.H. and C.M.B. are the guardians of the child under s. 39(1) of the Family Law Act.

[88]        Under s. 40(2) of the Family Law Act the guardians will share all parental responsibilities for the child.

[89]        Under s. 49, if the guardians cannot agree on a parental responsibility, C.M.B. must make the decision and C.G.H. may apply for a review of that decision under s. 49 of the FLA.

[90]        Each guardian will cooperate with the other guardian in the provision of passports, consents to travel and other necessary documents as may be required to allow the child to travel.

[91]        C.M.B. will have the primary residence for the child.

[92]        C.G.H. will have parenting time during the school year every other weekend from Friday after school (or noon if no school) until Sunday at 5:00 p.m. If the day preceding or following the weekend is a statutory holiday or professional development day, C.G.H.'s parenting time will include that extra day.

[93]        The exchanges will occur at school or [omitted for publication] if there is no school.

[94]        C.G.H. will have holiday parenting time as follows:

[95]        C.G.H. is found to be a resident of British Columbia and is found to have a gross annual income of $69,838 (grossed up WCB benefits).

[96]        C.M.B. is found to be a resident of British Columbia and is found to have a gross annual income of $31,101.

[97]        C.G.H. shall pay to C.M.B. retroactive child support for the period June 18, 2014 to end of 2017 in the sum of $4,023, including principal and interest.

[98]        C.G.H. will pay to C.M.B. the sum of $664 per month for the support of the child, commencing January 1, 2018 and continuing on the 1st day of each month thereafter for so long as the child is eligible for support under the Family Law Act or until further court order.

[99]        C.G.H. will be credited for all payments made to FMEP from January 1, 2018 onwards.

[100]     C.G.H. will pay to C.M.B. arrears of childcare expenses from the beginning of 2016 to end of 2018 in the sum of $8,000.

[101]     C.G.H. will pay to C.M.B. his proportionate share of childcare expenses in the sum of $480 per month commencing January 1, 2019 and continuing on the 1st day of each month thereafter, save and except that the sum will be reduced to $360 for the months of March and December and to $240 for the months of July and August.

[102]     C.M.B. will provide copies of daycare receipts to C.G.H. each month.

[103]     Either party is at liberty to apply to vary the childcare expense if the expense is significantly different than the base of $700 per month (with reductions in March, December and the summer).

[104]     I am also going to make this order: For so long as the child is eligible to receive child support, the parties will exchange:  (a) copies of their respective income tax returns for the previous year including all attachments not later than June 30th each year; and (b) copies of any notice of assessment or reassessment provided to them by Canada Revenue Agency immediately upon receipt.

[105]     My final order is: C.G.H. will pay $50 per month to [omitted for publication] for the school fees commencing September 1, 2018 and for each month thereafter in which school fees apply.