IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           TPH and BAB are the biological parents of nine year old LIH. TPH and BAB were in a relationship that began in 2009 and ended in 2011 when LIH was one year old. For a number of years TPH and BAB have shared parenting time with LIH in varying amounts. Since LIH began school in 2015, BAB has had parenting time with LIH during the school week and TPH has had parenting time on weekends, non-instructional days, and school holidays. The parties agree TPH has LIH in his care over 40% of the time.

[2]           Both parents have re-partnered since their separation. TPH supports himself, his wife, and six children from his employment with a local sawmill. He also pays BAB child support for LIH. The parents agree this Court ought to determine their respective support obligations retroactively to November 1, 2016. TPH acknowledges he is the payor parent, but seeks an order imputing income to BAB.

[3]           BAB seeks increased parenting time with LIH when he is not in school, which TPH opposes.

[4]           The issues before this Court engage the Family Law Act, SBC 2011, c 25 (the “FLA”) and the Federal Child Support Guidelines (the “Guidelines”) and ask:

[5]           This matter came to hearing before me on June 13, 14, and 21, 2019. I heard oral evidence of TPH and BAB and received into evidence the following documentation:

[6]           During their closing submissions counsel provided me with the following cases: (a) Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII); (b) D.B.S. v. S.R.G., 2006 SCC 37 (CanLII); (c) Fong v. Fong, 2011 BCSC 42 (CanLII); (d) Barker v. Barker, 2005 BCCA 177; and (e) Warbinek v. Warbinek, 2006 BCSC 1728 (CanLII). I provided the parties with a copy of Justice Schultes’ decision in G.J.L. v. M.J.L., 2017 BCSC 688.

[7]           The parties have also provided me with their calculations on TPH’s retroactive and ongoing child support payments to KH. I have attached TPH’s calculations as Appendix “A” to these Reasons for Judgment and BAB’s as Appendix “B”.

[8]           This family matter commenced on May 12, 2016, when BAB filed an Application to Obtain an Order against TPH in [omitted for publication] Provincial Court, File 17514. BAB sought orders respecting parenting time for LIH and spousal support. On June 6, 2016, TPH filed a Reply agreeing to orders with respect to parenting time and child support, however, disagreed with retroactive child support. BAB’s Application to Obtain an Order was amended to substitute a claim for child support in place of spousal support.

[9]           BAB filed Financial Statements on June 13 and September 30, 2016 attaching her 2013, 2014, and 2015 tax returns. She declared a Guideline income of $13,000, all of which derived from her self-employment as an esthetician. BAB admitted no other income source, including employment. BAB’s total income as per Line 150 of her tax returns was (a) $23,194 in 2013 inclusive of $35 in gratuities and a $1,200 Universal Child Tax Benefit (“UCCB”) (b) $20,813.43 in 2014, inclusive of a $1,200 UCCB; and (c) $24,220.29 in 2015, inclusive of a $1,920 UCCB. None of BAB’s returns include a Line 214 deduction for child care expenses. Also, BAB did not complete Parts 2 or 3 of her June 13, 2016, Financial Statement.

[10]        TPH filed a Financial Statement on June 15, 2016, declaring (on page 5) a Guideline income for a child support claim in the amount of $125,396.84 after deducting his union dues of $937.40. At the time TPH was a temporary [omitted for publication] supervisor in the employ of CFP. TPH’s attached Income Tax Returns showed he earned (a) $114,840.58 in 2014 ($113,298.58 from employment and $1,542 from Employment Insurance) and paid $911.70 in union dues; and (b) $126,334.24 in 2015 ($125,302.89 from employment and $1,031.35 from RRSP income) and paid $937.40 in union dues. TPH also attached his Records of Earnings and Deductions for the pay periods ending May 21, 2016, and June 4, 2016. The latest record set out TPH’s year-to-date earnings as $62,379.55

[11]        TPH states in para. 3 of his affidavit:

[12]        TPH attached a letter dated June 9, 2016 from CFP confirming:

[13]        On September 28, 2016, TPH filed an updated Financial Statement stating on page 5 his Guideline income for child support was $86,523.20, which included employment income of $84,000 and net rental income of $3,158 and excluded $634.80 in union dues. TPH’s attached Income Tax Returns indicated his total income per Line 150 was (a) $94,221 in 2013 (not excluding $813 in union dues); (b) $114,840 in 2014 which included $1,542 from Employment Insurance (not excluding $911 in union dues); and (c) $126,333 in 2015, which included $1,031 RRSP income (not excluding $937 in union dues). TPH further attached four of his Records of Earnings and Deductions from CFP for the pay periods ending August 19, 2016, August 27, 2016, September 2, 2016, and September 16, 2016. The Records show TPH’s year-to-date earnings as a [omitted for publication] as of August 27, 2016, totalled $92,314.66 and his year-to-date earnings as a [omitted for publication] supervisor as of September 16, 2016, totalled $8,076.92. TPH stated in para.3 of his affidavit:

[14]        TPH attached to his September 28, 2016, Financial Statement CFP’s offer of employment dated August 11, 2016, for the position of [omitted for publication] supervisor. The letter confirms TPH would earn a base salary of $84,000 and would be eligible to participate in the CFP [omitted for publication] C.S.I.P., which I gather is a discretionary performance bonus. TPH was also entitled to dental, medical, and disability benefits for himself and his dependents, vacation and enrolment in CFP’s Defined Contribution Pension Plan.

[15]        In his September 28, 2016, Financial Statement, TPH completed Part 2 setting out his annual household expense of $93,779.36 and Part 3 listing assets valued at $29,664.68 and debts of $8,660. He attached to his Financial Statement invoices from Pacific Northern Gas, B.C. Hydro, Telus Mobility, Mutual Fire Insurance Company, September 9, 2016, RBC Visa Statement, the BMO MasterCard Statement, and the RBC Mortgage Statement, setting out the original and outstanding principal, interest rate and bi-weekly payments.

[16]        The parties attended a hearing before Judge Jackson on October 3, 2016, seeking a judicial determination of ongoing and retroactive child support. In his written Reasons for Judgment of October 11, 2016, Judge Jackson:

[17]        Judge Jackson did not specifically order the parties to exchange ongoing financial disclosure nor did he order a right to review.

[18]        On June 22, 2018, TPH filed an Application to Change or Cancel Judge Jackson’s October 11, 2016 Order. TPH sought orders:

[19]        TPH justified the requested change to Judge Jackson’s October 11, 2016 Order on the basis (a) his family had grown since the Order; (b) his expenses had risen significantly; (c) his debts had been mounting; and (d) he lost his rental income. TPH did not specifically seek a retroactive variation of Judge Jackson’s October 11, 2016 Order.

[20]        On August 7, 2018, TPH filed a Financial Statement stating his Guideline income for child support was $116,503.39, which he earned from his employment as a supervisor with CFP. He estimated his annual household expenses totalled $114,089.74; he valued his assets at $56,911.73; and he declared debts of $49,314.32. To this Financial Statement, TPH attached (a) his 2017 T4 CFP Statement of Remuneration indicating his total employment income was $116,503.93; (b) his CFP Record of Earnings and Deductions for the four pay periods ending June 8, June 22, July 6, and July 20, 2018. TPH’s July 20, 2018 Record of Earnings and Deductions indicate his gross earnings to date were $76,774.03 and his net earnings $50,424.65.

[21]        On September 21, 2018, BAB filed a Reply opposing a change or suspension or termination of Judge Jackson’s October 11, 2016 Order, and counterclaiming for parenting time and child support pursuant to the Guidelines and special expenses proportionate to the parties respective income. She did not specifically seek retroactive child support.

[22]        On September 21, 2018, BAB filed a Financial Statement in which she declares a Guideline income for a child support claim of $11,967, all of which derived from her self-employment. To her Financial Statement BAB attached:

[23]        In her September 21, 2018, Financial Statement BAB did not complete Part 2 setting out her annual expenses or Part 3 listing her debts or assets. Also, BAB did not claim in her Income Tax Returns any deduction on Line 214 for child care expenses.

[24]        On September 27, 2018, Judge Whonnock ordered, by consent, that within 30 days, TPH provide to BAB copies of his 2016 and 2017 Income Tax Returns along with any Notices of Assessment or Reassessment.

[25]        On November 13, 2018, BAB filed an affidavit, in which she stated:

[26]        BAB did not include in her November 13, 2018 Affidavit her employment income for the first few months of 2016 or the UCCB she received or information as to her household income or expenses.

[27]        In her November 13, 2018 Affidavit, BAB attached TPH’s Notices of Assessment indicating that in 2016 he earned a total income (Line 150) of $138,749 and in 2017, he earned $142,018. BAB said this recently disclosed financial information indicated TPH should have been paying her significantly more for child support than he had since October 2016. BAB also states (at para. 16) that TPH paid her child support and arrears pursuant to Judge Jackson’s October 11, 2016 Order without issue until July 2017, after which he began to pay late and fell into arrears.

[28]        On November 22, 2018, BAB and TPH appeared in [omitted for publication] Provincial Court before Judge Jackson. At that time, Judge Jackson ordered TPH to provide two of his most recent pay stubs to BAB’s counsel within 10 days of the family case conference.

[29]        On May 22, 2019, TPH filed an Application to Obtain an Order in which he sought orders:

[30]        On June 3, 2019, BAB filed a Reply disputing TPH’s June 3, 2019, Application to Obtain an Order and counterclaimed for orders:

[31]        In her June 3, 2019, Reply, BAB did not counterclaim for retroactive child support nor did she seek to vary Judge Jackson’s October 11, 2016 Order.

[32]        On June 3, 2019, BAB filed a Notice of Motion returnable on June 6, 2019, for direction of the Court in advance of the June 13 and 14, 2019, hearing dates.

[33]        On June 6, 2019, TPH and BAB appeared before the Court on BAB’s Notice of Motion. At that time I ordered, by consent, TPH would proceed to hearing on his May 22, 2019, Application to Obtain an Order on June 13 and 14, 2019, in substitution of his June 22, 2018, Application to Change or Cancel Judge Jackson’s October 11, 2016 Order.

[34]        Also on June 6, 2019, TPH filed an updated Financial Statement declaring on page 5 a Guideline income of $123,300.82 from his employment as a Maintenance Supervisor with CFP. He estimated his annual expenses totalled $116,291.27. TPH attached the following financial information:

[35]        On June 11, 2019, BAB filed a Financial Statement declaring a Guideline income for child support from self-employment of $14,056.34 and expenses of $27,896.54. She disclosed assets totalling $5,217.88 and debts of $246. BAB attached the following information to her Financial Statement:

[36]        TPH was born on [omitted for publication], and is now 32 years old. He is married to KH, who is 30.

[37]        TPH is the biological father of six children with three different mothers. His children from his first relationship with AK are KYH, age 12, born [omitted for publication], and GH, age 11, born [omitted for publication]. TPH and AK had a shared parenting arrangement until KYH and GH started school in [omitted for publication] where their mother lived. KYH and GH began spending the entire summer school break with TPH. Initially TPH paid AK $678 per month, however his child support payments were subsequently reduced by agreement to $300 per month.

[38]        In the spring and summer of 2018, KYH and GH came to live with TPH and KH fulltime in [omitted for publication], B.C.

[39]        TPH entered into a relationship with BAB in 2009. Their son LIH is now nine years old, born on [omitted for publication]. TPH and BAB’s relationship started when they were in their early 20s. LIH was one year old when they separated permanently in 2011. In his October 11, 2016 decision, Judge Jackson describes TPH and BAB’s parenting time with LIH as follows:

[40]        TPH and BAB’s shared parenting arrangements established in March 2015 persist to this day. TPH is and has been amenable to providing BAB with additional parenting time when LIH is in his care.

[41]        TPH met his wife KH in 2011 and they married on January 24, 2013. They are the biological parents of three children: SH, age 4, born [omitted for publication], IH, age 3, born [omitted for publication], and MH, age 1, born [omitted for publication].

[42]        TPH resides with his wife and children at [omitted for publication], [omitted for publication], BC. TPH and KH own their own residence, which they purchased with the assistance of KH’ parents who lent them a $40,000 for the down payment. The $40,000 loan is repayable on the sale of the residence or upon TPH or KH’ death or separation. The residence is subject to a Royal Bank of Canada mortgage of which there is currently outstanding $128,000 from the original principal of $160,000. TPH testified that because he and KH did not qualify on their own, his father-in-law had to consign the mortgage.

[43]        Until February 2018, TPH and KH rented the basement suite in their residence. They had to reclaim the rental space to provide KYH and LIH a bedroom. I gather from TPH’s Income Tax Returns, some or all of this rental income was paid to KH.

[44]        TPH started at CFP as a [omitted for publication] on April 1, 2011. He worked his way up to a lead hand and on August 15, 2016, he was promoted to the salaried position of [omitted for publication] supervisor. TPH is now CFP’s maintenance supervisor. He works the graveyard shift from Sunday to Thursday. He is off work from Friday morning to Sunday evening. His most recent Record of Earning and Deductions indicate that in 2019 TPH will earn a base income of approximately $107,015.16 ($46,324.56 ÷ 158 x 365 = $107,015.60) and a gross income of $125,620.88 ($107,015.60 + $2,135.28 (overtime) + $3,463 (C.S.I.P. - CP) and $13,007 (C.S.I.P.)).

[45]        The parties agree TPH’s 2019 Guideline income for a child support claim is $123,300.

[46]        Prior to his promotion to a managerial position, TPH earned significant sums from working overtime, sometimes as much as $40,000 to $47,000 per annum. TPH lost the opportunity for significant overtime work when he took a management position. Offsetting this loss were better benefits, an enhanced pension, discretionary performance bonuses, and a 40 hour (as opposed to a 60 hour) work week. In any event, given the nationwide crisis in the softwood lumber industry, CFP no longer offers overtime to its employees.

[47]        Through CFP, TPH has medical and dental benefits which covers himself, his wife, and his six children. TPH exchanges some of his paid vacation for enhanced dental benefits.

[48]        KH does not work outside the home. She cares for all of TPH’s children when he is at work, sleeping, or otherwise unable to do so. KH receives the UCCB for five children in the amount of $1,200 per month. This sum includes a benefit for LIH for which she applied in December 2018.

[49]        In 2018, TPH and KH advised Canada Revenue Agency LIH lived with them part of the time from June 2014 to present. They stated:

[50]        KH indicated she was primarily responsible for LIH’s care and upbringing when he lives with the TPH family.

[51]        In his June 6, 2019 Financial Statement, TPH estimates his annual household expenses to be $116,291.27; in his August 7, 2018, Financial Statement TPH estimated his annual household expenses to be $114,089.74; and in his September 28, 2016, Financial Statement TPH estimated his annual household expenses to be $93,779.36. TPH attributes the increase in expenses to include, among other things, KYH and GH coming to live with him fulltime and the birth of his son MH.

[52]        As to assets, TPH and KH have little equity in their home, no savings or RRSPs. They have a number of old vehicles, some of which were borrowed, or are uninsured and inoperable. Recently, KH’ parents purchased an older van for her use. As to debts, TPH owes $8,200 to MasterCard, $40,000 to his in-laws, and arrears in child support to BAB.

[53]        There is no suggestion TPH or KH or any of the children suffer from any disability or significant impairment.

[54]        BAB is 30 years old and resides in [omitted for publication], BC, LIH is her only child.

[55]        LIH resides with BAB during the school week. He is in Grade [omitted for publication] at [omitted for publication]. He is involved in a number of recreational activities such as swimming, soccer, and gymnastics.

[56]        In November 2017, BAB married her current husband, TB. They reside in a two bedroom suite at [omitted for publication] [omitted for publication], BC. BAB rents the suite for $650 per month from her DM. In the summer months, DM and his wife, JM, reside on the main floor of the house and TPH and BAB reside in the upstairs suite. BAB says she loves where she lives.

[57]        TB works fulltime in construction and operates a commercial steam-cleaning business on the side. BAB was unable to say with certainty what TB earns from his employment or business. She believes TB earns $800 to $1200 every two weeks from his regular fulltime job. I gather that sum is net of deductions. BAB cannot say how much her husband earns from his steam cleaning business as his income depends on the number and size of the projects. 

[58]        In 2008-2009 BAB trained in esthetics with some upgrading in 2015-2016. Her training included manicures, pedicures, waxing, massage, facials, and eye lash extensions. BAB worked in [omitted for publication] in [omitted for publication] and in 2015 - 2016, she worked 40 hours per week for [omitted for publication] in [omitted for publication] BC. Generally she worked Tuesday through Saturday from 10 a.m. to 6 p.m. or 9 a.m. to 5 p.m. When she started at [omitted for publication] she earned $12 per hour. At some point her salary was raised to $15 per hour. BAB also received gratuities. As set out in Judge Jackson’s Order, BAB’s income for 2015 was $24,220, inclusive of the $1,920 UCCB. I note in her September 21, 2018, Financial Statement, BAB includes a 2015 Reassessment indicating a total income (Line 150) of $24,808.

[59]        In April 2016, BAB quit her fulltime job and started her own business, [omitted for publication]. Since then, it has been her only source of income. BAB rents a business space from DM at [omitted for publication], [omitted for publication], BC for $400 per month. BAB’s esthetic’s business has the following limitations:

[60]        Depending on the type of service, BAB charges $50, $120, or $130 for eye lash extensions. These services can take anywhere from 45 minutes to two hours. Facial waxing appointments rarely take more than 15 minutes. I surmise the longer the appointment, the higher the price. BAB’s records indicate about 22% of her appointments are longer appointments for which she was paid in excess of $100.

[61]        BAB testified she books three to four appointments per day with the exception of Sunday when she does not work. BAB’s business records included in her June 11, 2019, financial statement indicate otherwise. For example:

[62]        BAB did not provide any evidence of what non-remunerative time she invests in her business. In other words, all the Court has is BAB’s appointment lists and a vague description of the days and times when she will accept appointments.

[63]        In 2016, BAB received the UCCB in the amount of $760. I understand CRA has recently penalized BAB when it learned LIH lived with TPH and KH more than 40% of the time.

[64]        In her June 11, 2019, Financial Statement, BAB set out her annual expenses for her household, which include LIH and TB. She estimates her expenses to be $27,896.54, although these are understated. She agrees she likely pays more than $300 per month on food for three people. Moreover, she has not included in her expenses the 10% tithe she pays to her church. Still, the expenses BAB does record are almost $14,000 more than her income. She discloses no corresponding debt in that amount. BAB says her husband makes up the disparity which includes buying groceries and paying the $400 per month rent on her business space.

[65]        BAB has provided very little information about her husband’s financial or personal circumstances. I therefore conclude her household consists of two healthy working adults and a nine year old boy. I also conclude BAB is more or less content with her current standard of living provided she receives her child support payments from TPH and her share of the UCCB.

[66]        The parties agree:

[67]        BAB seeks to have additional parenting time for a minimum of one week each month of the summer and one weekend each month during the school year.

[68]        TPH is agreeable to BAB having LIH for a long weekend in each of the summer months. TPH does not agree to BAB having a weekend with LIH while school is in session because that would mean he would go for 12 straight days without seeing him. TPH is agreeable to BAB occasionally having parenting time with LIH on his weekends during the school year.

[69]        BAB was not agreeable to reversing the parenting time schedule for LIH so TPH can have parenting time with LIH during the school week and BAB parenting time with LIH on the weekends and holidays.

[70]        BAB offers TPH no compensatory parenting time with LIH in exchange for increasing her parenting time on weekends and summer holidays.

[71]        Section s. 40(1) of the FLA provides that only a guardian may have parental responsibilities and parenting time with respect to a child. As TPH and BAB were cohabitating parents during their relationship they are presumptively guardians under s. 39(1) of the FLA.

[72]        Where, as in this case, there are no existing orders allocating parenting, s. 48 of the FLA prohibits any unilateral changes to informal parenting arrangements once they have become a part of a child’s routine. It states:

[73]        Part 4 of FLA deals with care of and parenting time with children and directs that, in making orders on such matters, the Court must only consider the best interests of a child.

[74]        Section 37(2) of the FLA requires that in determining what is in the best interests of a child, the Court must consider all of the child’s needs and circumstances, including:

[75]        Section 37(3) of the FLA provides that an agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

[76]        BAB and TPH have shared parenting time with LIH for much of his life without the benefit of a court order. It speaks volumes of their ability and willingness to cooperate with one another in LIH’s best interest.

[77]        BAB wishes to have more time with LIH when he is not in school. In making this application, BAB does not suggest any deficits on TPH’s part. In fact, when asked in cross-examination what LIH thought of the existing parenting relationship, BAB stated emphatically:

[78]        TPH wants to preserve existing parenting schedule for the same reason BAB wants it changed. He loves LIH and wants to maximize his parenting time with him. Nevertheless, TPH is willing to be flexible in providing BAB with additional parenting time with LIH during the weekends and holidays.

[79]        The evidence before me indicates (a) LIH is physically, psychologically, and emotionally healthy; (b) LIH has a positive relationship with all the significant people in his life, including his mother, father, step-mother, step-father, and siblings; (c) the parents have shared parenting time with LIH for much of his life; (d) like all nine-year olds, LIH needs stability in his life. Nevertheless, he has no special challenges which increase his need for stability beyond what healthy boys ordinarily require; (e) both parents competently exercise their parenting responsibilities; (f) there is no indication LIH experiences family violence in either of his two homes; (g) the parents are able to cooperate with one another on most issues affecting LIH. Modest adjustments as to parenting time will not present any risk to LIH’s safety, security, or well-being; and (h) this is the only proceeding relevant to LIH’s well-being.

[80]        The Court does not have the benefit of a “Views of the Child Report” pursuant to s. 211 of the FLA. To their credit, neither TPH nor BAB has discussed at length the parenting time issue with LIH. Their ability to communicate and cooperate with each other in a respectful manner is commendable and I do not see the need for any highly intrusive court orders.

[81]        If the parent lived in the same community, they could be more flexible in how they shared parenting time with LIH. I am not suggesting one parent should move. Both have compelling reasons to remain in the community in which they currently reside. Still, [omitted for publication] and [omitted for publication] are only 64 kilometres apart on a major thoroughfare. Perhaps the parents could meet in [omitted for publication] from time-to-time to transition LIH. I note that LIH already commutes 15 minutes to and from school. I do not see why he could not commute to school from [omitted for publication] on occasion to increase the parents’ flexibility as to how they share-parenting time.

[82]        I find it is in LIH’s best interests for this Court to make orders formalizing BAB and TPH’s existing shared parenting arrangement with respect to LIH with some exceptions which I will address below. These orders will acknowledge BAB and TPH’s joint guardianship and shared parenting responsibilities.

[83]        I find BAB’s request for additional parenting time with LIH as reasonable as I find TPH resistance to losing more parenting time with LIH. I am of the view BAB ought to have more parenting time with LIH when he is not in school and TPH ought to have some parenting time with LIH when he is in school. I therefore order BAB have five consecutive days parenting time with LIH in each of July and August, as well as one two-day weekend per month during the school year, except in those months which already include a major holiday. TPH is entitled to some compensatory parenting time during the school year. As BAB will have 10 extra days with LIH in the summer and approximately 16 days in the school year, TPH will have parenting time 24 days additional while school is in session. I will leave it to BAB and TPH to work what dates and times they wish to exercise this variation in the parenting schedule.

[84]        TPH and BAB agree TPH is obligated to pay her child support for LIH. They do not agree on the amount he ought to pay and ask this Court to determine what that should be prospectively and retrospectively.

[85]        Section 147 of the FLA imposes a duty on each parent and guardian to support a child under the age of 19 except in circumstances that are not present in this case.

[86]        When making an order respecting child support, s. 150 of the FLA compels a Court to determine the amount in accordance with Guidelines unless the parties have an agreement for some other amount and the Court is satisfied that reasonable arrangements have been made for the support of the child. The principles on which child support is based as espoused Earle v. Earle, 1999 BCSC 283, are as follows:

[87]        The Guidelines objectives are:

[88]        TPH and BAB have a shared custody regime, which is governed by s. 9 of the Guidelines:

[89]        Contino is the leading case on the interpretation and application of s. 9 of the Guidelines. Justice Schultes in G.J.L. v. M.J.L. cites with approval Professor D.A. Rollie Thompson’s explanation of the essential principles Contino establishes. I have taken guidance from this jurisprudence. In C.A.S. v A.B.S, 2019 BCSC 948 (CanLII), Justice Marchand (at para. 56) distilled the following key principles from Contino:

[90]        Contino instructs the Court that when considering child support under s. 9 of the Guidelines, there is no need to separate out special or extraordinary expenses (s. 7) or resort to the undue hardships provisions of s. 10. Section 9(c) confers the judge with a broad discretion to take into consideration a panoply of expenses and hardships when determining child support in a shared parenting arrangement.

[91]        In G.J.L., Justice Schultes noted the “question left unanswered by Contino was the precise extent to which the income provided by a new spouse of one of the parents is to be taken into account in this process.” He sought clarity from the following passages from the BC Court of Appeal decision of B.P.E. v. A.E., 2016 BCCA 335:

[92]        On June 22, 2018, TPH initially filed an Application to Change Judge Jackson’s October 11, 2016 Order, which he withdrew on May 22, 2019, and replaced it with an Application for an Order. Judge Jackson October 11, 2016 Order, although final, appears to anticipate further court orders in para. 43, where he states:

[93]        Although not specifically pleaded by either party, TPH and BAB agree this Court ought to determine the parties respective support obligations retroactively to November 1, 2016.

[94]        The discretion to make an order of retroactive child support is found in ss. 152 or 170(b) of the FLA, depending on whether it is a variation order or not. Section 170(b) states:

[95]        The authority for changing a child support order is found in s.152 (1) of the FLA, which states, in part:

[96]        The “change in circumstances as provided for under the child support guidelines” refers to s. 14 of the Guidelines as incorporated by reference by Part 4 of Family Law Act Regulation, BC Reg 347/201. Section 14 states, in part:

[97]        In G.M.W. v. D.P.W., 2014 BCCA 282 (CanLII) the BC Court of Appeal confirmed (at para. 32) s. 14 of the Guidelines does not supplant the test of materiality for a change in circumstances as set out in Willick v. Willick, 1994 CanLII 28 (SCC). The threshold requirement for variation of an existing order as described in Willick (at 688) is as follows:

[98]        The appellate court in G.M.W distilled (at para. 33) the following relevant principles from Willick:

[99]        In my view, the parties seek to vary Judge Jackson’s October 11, 2016 Order, and must satisfy one of the three criteria set out in s. 152(2) of the FLA. One of those criterion (152(2)(a)) is a change in circumstances that would result in a different child support order under the Guidelines since the Court made the order. This provision has been interpreted to be a material change in circumstances.

[100]     In his October 11, 2016 Order, Judge Jackson bifurcated TPH’s earnings into two different discrete periods. For the period from January 1, 2016, to August 31, 2016, Judge Jackson found TPH’s Guideline income to be $92,314.66. For the ongoing period commencing September 1, 2016, Judge Jackson found TPH projected annual Guideline income to be $87,158. This means that in 2016, TPH had a total annual income of $121,367 ($92,314.66 + ($87,158 ÷ 12 x 4 months = $29,052) = $121,367).

[101]     TPH actually earned $138,749.85 in 2016, likely because of his yearend C.S.I.P. bonus which had not yet been declared or paid when Judge Jackson made his October 11, 2016 Order. This represents a $17,383.19 or 14.32% increase to TPH’s 2016 income ($138,749.85 - $121,367 = $17,383.19). TPH 2017 Guideline $142,660 was $55,202 or 63.33% more than what Judge Jackson had determined to be TPH’s Guideline income as and after September 1, 2016. In 2018 TPH’s Guideline income was $123,300, which is $36,182 or a 41.5% increase to the $87,158 Guideline income on which Judge Jackson based TPH’s ongoing child support. The parties agree TPH’s 2019 Guideline income is the same as in 2018, namely, $123,300. All these increases would give rise to TPH paying more Guideline child support for LIH, and in some years, significantly so.

[102]     I am satisfied the criteria in s. 152 (2)(a) and (b) are engaged and Judge Jackson’s October 11, 2016 Order for child support can be varied. I conclude had Judge Jackson known TPH would earn $138,749.85 in 2016, $142,660 in 2017, and $123,300 in 2018 and 2019, he would have made a different order.

[103]     The parties seek a retroactive adjustment of child support. A retroactive order is discretionary but not exceptional: Williams v Williams, 2015 BCSC 928 at paras 108-112. It engages the principles set out in D.B.S. v. S.R.G. et al, 2006 SCC 37 (CanLII), which require the Court to take into consideration (a) the delay in applying for child support; (b) the payor parent’s conduct; (c) the child’s circumstances; and (d) any hardship occasioned by a retroactive award: see Sampley v. Burns, 2018 BCCA 178 (CanLII), paras. 47 & 48. In D.B.S. Justice Bastarache (at para. 99) cautioned no factor is determinative on its own and the trial judge must strive for a “holistic view of … each case on the basis of its particular factual matrix” in determining whether to make a retroactive support award.

[104]     The date of retroactivity where the Court finds a retroactive award is due is (a) the date when an application was made to a court; or (b) the date when formal notice was given to the payor parent; or (c) the date when effective notice was given to the payor parent; or (d) the date when the amount of child support should have increased: D.B.S., para. 118. Typically, the Court will not make a retroactive award for more than three years prior to when “formal notice was given to the payor parent”: D.B.S., para. 123. This is consistent with s. 25(1)(a) of the Guidelines, which limits requests for a payor’s historical income information to a three-year period.

[105]     “Effective notice” is described in D.B.S. (at para. 121) as “any indication by the recipient parent that child support should be paid or if it already is, that the current amount of child support needs to be renegotiated.” Effective notice only requires the topic be broached; it does not require that the recipient parent take any legal action. Once that has occurred, the payor parent can no longer assume “that the status quo is fair, and his interest in certainty becomes less compelling.” (see para. 121).

[106]     Generally, a court will not make a retroactive award prior to the date when effective notice was given to the payor parent unless the payor parent has engaged in blameworthy conduct. Where there is “blameworthy conduct”, the presumptive start date of a retroactive award is the date the circumstances changed materially, namely, the date when the amount of child support should have increased: D.B.S. at para.124.

[107]     D.B.S. provides some examples of blameworthy conduct such as intimidating and lying to a recipient parent, withholding information or failing to disclose a material change in circumstances, including increasing income that would expect to alter the amount of child support payable. Justice Bastarache states at para. 125 as follows:

[108]     Section 25 requires the payor of child support must provide income information upon written request by the other spouse, but not more than once per year. It states:

[109]     Although the Supreme Court of Canada in D.B.S. held that parents are obligated to support their children in a manner commensurate with their income, they are not automatically required to disclose changes in income after a support order is made. Bastarache J., for the majority states at para. 58, in part [Citations omitted]:

[110]     As the appellate courts have clearly stated, however, “with or without an obligation to disclose increases in income, payors who fail to disclose increases may risk a retroactive award being made”: Dyck v. Bell, 2015 BCCA 520 (CanLII) at para. 43; see also D.B.S. at para. 125.

[111]     TPH testified he understood his duty to disclose his financial information was activated upon BAB requesting he do so. She did so in September 2017 after TPH asked her to reduce his child support payments. He continued to press her for a response without providing her with the requested financial information. On the other hand, neither was BAB particularly forthcoming with her financial information.

[112]     In this case BAB gave formal notice of her intention to seek Guideline child support in her reply filed September 21, 2018. Her application was triggered by TPH June 22, 2018, application for the reduction of maintenance payable. It was TPH, not BAB who broached the topic of adjusting the ongoing child support. I gather BAB’s “effective notice” coincided with her “formal notice.”

[113]     BAB alleges TPH engaged in blameworthy conduct as follows :

[114]     TPH denies tying BAB’s parenting time with LIH to her agreeing to a reduction in child support. He says he would not use her reluctance to deny her extra parenting time with LIH. I note that but for the $25,515.10 pension payout TPH received in 2017, he did earn less employment income in 2017 than he had in 2016.

[115]     On September 17, 2017, BAB told TPH (Exhibit 8, p. 2) she would need to know what he had earned that year and what he expected to earn. She did not offer to provide him with her financial information, and did not do so until September 21, 2018, even then she did not disclose her expenses, debts, or assets.

[116]     Both TPH and BAB provided updated Financial Statements containing all the requisite documents within a week of the hearing of this matter. In her June 11, 2019, Financial Statement, BAB disclosed her expenses, debts, and assets. Nevertheless, when she attended at the hearing, BAB was not forthright in her evidence as to her husband’s contribution to her household income.

[117]     Counsel for the parties have not provided submissions in this regard. Given their position on retroactivity, I assume they agree a retroactive award is appropriate in light of LIH’s past and present circumstances.

[118]     TPH has not strenuously argued a retroactive award would cause him or his other children hardship. I find this surprising given the history of these proceedings and his text messages to BAB comprising Exhibit 8. On June 21, 2019, I recalled this matter to confirm with counsel that both parties unequivocally agree to a retroactive award given neither specifically pled such.

[119]     I find TPH and BAB’s respective support obligations are governed by s. 9 of the Guidelines. I am satisfied a retroactive child support award is appropriate.

[120]     As to the retroactive date, TPH accepts the appropriate date for retroactive child support is November 1, 2016. The parties agree this is the date when the amount of child support should have increased even though Judge Jackson’s decision was barely three weeks old and there is no suggestion TPH’s September 28, 2016, Financial Statement did not include all his relevant and current financial information at the time. I do not infer from his agreement on retroactivity that TPH concedes he engaged in blameworthy conduct.

[121]     By the consent of the parties, I will determine TPH and BAB’s respective support obligations retroactive to November 1, 2016.

[122]     TPH seeks an order recalculating child support retroactive to November 1, 2016, using his actual income but imputing to BAB an annual Guideline income of alternatively $27,700, $30,000, $32,000, and $40,000. TPH submits $27,700 represents BAB’s annual income if she worked 40 hours per week, 50 weeks per year, at a minimum wage of $13.85 per hour. The $30,000 represents her annual income if BAB worked 40 hours per week for 50 weeks at $15 per hour; $32,000 assumes BAB worked 40 hours per week for 50 weeks at $16 per hour; and $40,000 assumes BAB worked 40 hours per week for 50 weeks at $20 per hour.

[123]     Section 16 of the Guidelines states:

[124]     Section 19 of the Guidelines permits the Court to depart from the methodology set out in s. 16 and “impute such amount of income to a spouse as it considers appropriate in the circumstances.” Although there are nine statutorily defined situations, it is not an exhaustive list and the section gives the Court a significant amount of discretion in imputing income.

[125]     Section 19(1)(a) of the Guidelines provides the court may impute income to a spouse who is intentionally underemployed, other than where the underemployment is required by the needs of the children. Section 19(1)(d) permits imputation of income where it appears it has been diverted.

[126]     Although TPH raised the spectre of BAB hiding or diverting income, there is scant evidence supporting this allegation. The only obvious anomaly in BAB’s business expenses is the fact TB pays the rent. BAB was not seriously challenged on her computation of income or the nature and amount of her business expenses. I therefore accept the business expenses are as stated in her CRA Statement of Business or Professional Activities.

[127]     TPH’s principal argument is that BAB is underemployed. In determining whether this is in fact the case, the Court need not find BAB was acting in bad faith. In Barker v. Barker, 2005 BCCA 177, Madam Justice Huddart had this to say in paras. 18 and 19, in part [Citations omitted]:

[128]     Citing Barker, Madam Justice D. Smith in Marquez v. Zapiola, 2013 BCCA 433 (CanLII) stated at para. 37 [Citations omitted]:

[129]     Each parent has a positive obligation to support a child. As stated by Justice Bruce in Warbinek v. Warbinek, 2006 BCSC 1728 (CanLII), at para. 19, “A parent is obliged to take reasonable steps to maximize their earnings to the extent consistent with their age, education, skills, health, and work history.” If a parent is intentionally under-employed or unemployed, the Court may impute income unless the parent establishes that he or she falls within an exception under s. 19(1)(a).

[130]     Algner v Algner, 2008 SKQB 132 (CanLII), is an oft-cited decision of  Ryan-Froslie, J. (as she then was), in which she espoused (at para. 18) the following considerations and principles relevant to an application to impute income under s. 19(1)(a) of the Guidelines [Citations omitted]:

[131]     The question I must ask in this case is whether BAB was earning what she is capable of earning. To this end, I have attempted to try and figure out how much BAB actually worked over the past three years. She has provided a list of her appointments, income, and expenses for that period, except for 2019, where she has omitted her expenses. According to BAB’s own evidence, fulltime work for an esthetician is 40 hours per week. As there is 52 weeks in a year, this means fulltime employment would require BAB to work 2,080 hours per year. Of course, working 52 fulltime weeks per year is as unrealistic as it is unfair. Obviously, there would be days when BAB could not work for one reason or another. She is also entitled to holidays.

[132]     Unfortunately, BAB did not attempt to reconcile the hours she actually worked with her income tracking documentation. For example, she says she is available to work from Monday to Wednesday 9 a.m. to 3 p.m. and Thursday 9 a.m. to 2 p.m. She says she is also open Fridays and Saturdays, but did not specify her hours. When asked in cross-examination what hours she was open on weekdays, BAB replied, “I actually go by appointment, so I am not open all the time.”

[133]     I understand from her evidence that BAB’s hours of work are largely determined by the number and length of her appointments. BAB’s business records indicate she rarely worked an eight hour day or a 40 hour week. She steadfastly refuses to work Sundays given her involvement and commitment to her church, which is understandable and entirely justifiable. However, her records indicate she rarely works Wednesdays, for which she has offered no explanation. In addition there are many days when she has few or no appointments, including days when LIH would have been in TPH’s care.

[134]     Since she started her business in April 2016, BAB has earned substantially less than what she earned at her employment with [omitted for publication]. In fact, she earned substantially less than minimum wage for fulltime work. In British Columbia, pursuant to the Employment Standards Regulation, BC Reg 396/95, the minimum wage in April 2016 when BAB became self-employed was $10.45. It increased to (a) $10.85 on September 15, 2016; (b) $11.35 on September 15, 2017; (c) $12.65 on June 1, 2018; and (d) $13.85 on June 1, 2019.

[135]     In 2016 BAB earned $6,436.93 from self-employment in 8 months or 35 weeks. During this start-up period, BAB recorded a total of 174 appointments for an average of 21.75 appointments per month. This is not substantially less than in 2017 when she booked an average of 24.84 appointments per month or in 2018 when she booked an average of 23.50. If those 174 appointments averaged 1.5 hours each, BAB worked providing actual client services approximately 261 hours in 35 weeks. She earned on average a profit of $37 per appointment ($6,436.93 ÷ 174 = $37) or $24.67 per hour ($6,436.93 ÷ 261 = $24.67). Had she worked fulltime with two weeks off, BAB would have worked 1320 hours (40 hours x 33 weeks = 1320 hours). Instead, BAB only worked providing actual client services roughly 20% of a fulltime job (261/1320 x 100 = 19.78%).

[136]     I accept BAB would have had to invest some non-remunerative time in her business, but she provided no evidence as to what that might be and the Court is not obligated to guess. Had she worked fulltime (40 hours per week) for minimum wage for 33 weeks in 2016, BAB would have earned approximately $14,018 (19 weeks x 40 hours x $10.45 per hour = $7,942) + (14 weeks x 40 hours x $10.85 = $6,076) = $14,018). Had she continued with earning $15.00 per hour as she had with [omitted for publication], BAB would have earned $19,800 (33 weeks x 40 hours x $15.00 = $19,800).

[137]     In 2017, BAB earned $11,967 from self-employment from January 1 to December 31, 2017. During this 52 week period, BAB recorded a total of 298 appointments. Assigning an average time of 1.5 hours per appointment, BAB worked approximately 447 hours. This is an average of 24.84 appointments per month for an average profit of $40.16 per appointment. If BAB worked a fulltime job at 40 hours per week for 50 weeks she would have worked 2,000 hours. Instead, she provided client services at 22.35% of a fulltime job. If she worked for minimum wage at $10.85 until September 15, 2017, and $11.35 thereafter, BAB would have earned approximately $21,980 (36 weeks x 40 hours x $10.85 = $15,624) + (14 weeks x 40 x $11.35 = $6,356) = $21,980). Her actual earnings were roughly 54% what she would have earned working fulltime at minimum wage. If she had worked fulltime at $15 per hour, BAB would have earned $30,000 (50 x 40 x $15 = $30,000).

[138]     In 2018, BAB earned $14,056.34 from self-employment from January 1 to December 31, 2018. During this period she recorded a total of 282 appointments earning an average profit of $49.85 per appointment. Assigning an average of 1.5 hours per appointment, BAB provided client services for 423 hours or 21% of a fulltime job working 40 hours per week, 50 weeks per year. If BAB worked fulltime at minimum wage in 2018, she would have earned $24,208 (21 weeks x 40 hours x $11.35 = $9,534) + (29 weeks x 40 hours x $12.65 = $14,674) = $24,208). BAB’s 2018 income is roughly 58.06% of the income she would earn working 50 weeks at minimum wage ($14,056.34 ÷ 24,208 x 100 = 58.06%).

[139]     In 2019, BAB recorded a total of 212 appointments from January 1 to May 31, 2019, during which time she earned a gross income net of GST of $14,640. This is an average of 42.40 appointments per month realizing a gross income of $72.51 per appointment netting $42 to $69.06 profit. Had she worked fulltime at minimum wage during this five month period, BAB would have earned $11,132 (21 weeks x 40 hours x $12.65 = $10,626). If she worked for the entire year at minimum wage, BAB would have earned $11,132 + (29 weeks x 40 x $13.85 = $16,066) = $26,692. As indicated elsewhere in this decision, BAB can be expected to earn between $20,378.88 and $23,892.48 in 2019, which is more than she has earned in the past but still less than minimum wage. Instead, BAB provided client services for 318 hours in the first 5 months of 2019 which is only 38% of fulltime work (21 weeks x 40 hours = 840 hours). Even so, she considers her business “fully booked” and is not seeking to increase her hours, appointments, or profits.

[140]     BAB has explained she restricts her hours of work Monday to Thursday in order to maximize her time with LIH when he is not in school or with his father. She has not offered any explanation as to why she works by appointment only or why she has restricted her services to eye lash extensions and facial waxing or why she accepts payment only in cash. She has offered no explanation for the many days she does not work at all, which includes most Wednesdays and some Fridays and Saturdays as well as during school breaks when LIH is not in her care.

[141]     In 2015, when he was much younger, LIH went to daycare after school at the [omitted for publication] in [omitted for publication]. BAB testified she believed the rates were $30 per day and she paid $500 to $600 per month in daycare. She admits, however, LIH was in daycare for only a couple of hours after school and she received a subsidy for her daycare costs but does not recall the amount. I note none of BAB’s tax returns indicate a Line 214 expense for child care costs. Although [omitted for publication] is no longer operating, I assume there are other child care options available locally for working parents.

[142]     When determining TPH and BAB’s respective child support obligations under s. 9 of the Guidelines, each parent is a “payor” parent when applying the set-off formula. The BC Court of Appeal held in Llewellyn v. Llewellyn, 2002 BCCA 182 (CanLII), that a parent's desire to be available for children before and after school is not a sufficient reason to justify under-employment in the absence of a child's special needs. More recently, in McCaffrey v. Paleolog, 2011 BCCA 378 (CanLII), the Court of Appeal reaffirmed a parent’s desire to stay home with a child will not trigger the exceptions in s. 19(1)(a) of the Guidelines. The Court requires evidence that the needs of the children render the parent unavailable for employment they are otherwise able to pursue: S.J.L. v J.A.R., 2019 BCSC 534 (CanLII), at para. 250, citing McCaffrey and Koch v. Koch, 2012 BCCA 378 (CanLII).

[143]     Counsel for BAB argues it makes no sense for her to earn a slightly increased income which would require her to pay income tax. This is a not a position supported in law. He further argues it is disingenuous for TPH to criticize BAB for underemployment when he accepted a managerial position for less money because it required him to work 40 rather than 55 or 60 hours per week. In Fong, at para. 85, the BC Supreme Court held a parent’s duty to support a child does not require the parent to work more than fulltime. BAB works substantially less than fulltime which forces TPH to pay more child support than he would if she worked fulltime. Including LIH, TPH has six children to support. BAB has only one child. I do not find TPH’s position unfair or unreasonable.

[144]     In the spring of 2016, BAB quit her fulltime job as an esthetician in which she earned $15 per hour plus gratuities in favour of self-employment. BAB said she did so because she “wanted to stay in [omitted for publication]” and she had “a really good opportunity to start [her] own business and accommodate [her] hours around her son.” In Hanson v. Hanson, 1999 CanLII 6307 (cited in Fong), Justice Martinson states:

[145]     In April 2016, BAB was working fulltime at [omitted for publication] in [omitted for publication], BC. She did not suggest her job was in jeopardy. Still, there is nothing unreasonable about BAB seizing an opportunity to start her own business. Her records show that when she works, BAB makes a decent profit on her labour. TPH’s pressing concern is that BAB has unreasonably circumscribed her income by reducing the hours she works, by limiting the nature and manner of services she provides, and accepting payment only in cash. She admitted in cross-examination that she has turned down appointments and not sought to supplement her income through other employment opportunities. Moreover, BAB advertises on her Facebook page that she is fully booked and cannot take any more clients.

[146]     The law is clear, the party seeking to impute income bears the onus proving what, if any, income should be imputed on a rational and evidentiary basis: Fong citing Vincenti v. Vincenti, 2010 BCSC 1283 (CanLII). I am satisfied TPH has met this onus and I find BAB is intentionally underemployed. I understand BAB does not want to work when LIH is not in school, however, that is her preference and not a necessity. Moreover, her records do not indicate that she makes up for lost time on those days when LIH is in his father’s care. As Justice Scarth commented in R.M.E. v. R.A.E., 2003 BCSC 2 (CanLII), parents have a joint and continuing legal obligation to support their children. It is the children who have a legal right to support. “Child support is not spousal support in disguise.”

[147]     BAB is young and healthy. She is trained and experienced in the spectrum of esthetic services. Her only dependent is a healthy nine year old boy who regularly attends school. She has an able-bodied husband who is steadily employed and helps support her. BAB earned $15 per hour plus gratuities when she was working for [omitted for publication] in 2015-2016. Exhibit 6 indicates that $15 per hour is a realistic wage for an esthetician working for a third party. Clearly, BAB is capable of earning far more per hour through self-employment.

[148]     BAB submits that if this Court is to impute income to her, then it should not exceed $24,000 per annum because that is the most she had ever earned in one year to date. I find this argument contrary to jurisprudence which requires a parent to “take reasonable steps to maximize their earnings to the extent consistent with their age, education, skills, health and work history.” With these factors in mind, I find it reasonable to impute to BAB an annual income based on a 40 hour work week earning $15 per hour for 49 weeks per year in 2016, $17 in 2017, $18 in 2018, and $19 in 2019. BAB’s imputed Guideline income for 2016 is $29,400 per annum, $33,320 in 2017, $35,280 in 2018, and $37,240 in 2019.

[149]     Because they have a shared parenting arrangement, the parties’ respective child support obligations are governed by s. 9 of the Guidelines. Under the principles espoused in Contino there is no presumption of the table amount of support payable. Section 9 explicitly creates a separate and different method to determine support in shared custody cases (Continuo, paras. 22-29). Generally, this determination begins and sometimes ends with the application of a simple set-off formula.

[150]     I have already set out my findings with respect to BAB’s imputed income. TPH’s Guideline income is a little more straightforward than BAB’s because most of it derives from his longstanding employment with CFP. A complicating factor, however, is TPH’s pension payout of $25,515.10 in 2017 when he transitioned from a [omitted for publication] to [omitted for publication] supervisor. His 2016 Income Tax Return also includes under “Total Income”, rental income of $810.11 and RRSP income of $643.42.

[151]     Section 16 of the Guidelines requires the Court to determine a spouse’s annual income from Line 150 on the T1 General income tax form. By operation of s. 3, the UCCB is not to be taken into account when determining a spouse’s total income. As to Schedule III, the only provision applicable to TPH is s. 1(g) which permits him to deduct the union dues he paid in 2016.

[152]     Section 17 of the Guidelines permits a court to depart from the income determination made under s. 16 where it is satisfied that would not be the fairest determination of income. In such a case, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable "in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years."

[153]     Schedule III to the Guidelines, which provides some special rules for adjustments to income for child support purposes in certain cases, does not make any special provision for RRSP income or pension payouts. Section 21(1)(g) of the Guidelines, however, does compel disclosure of income received from a pension.

[154]     In Reid v. Reid, 2017 BCCA 73 (CanLII) at para. 120, the BC Court of Appeal rejected the argument only the salary portion of a payor’s Income Tax Return is taken into account when calculating Guideline income. In that case, Justice Groberman discusses the application of s. 17 to non-recurring income. He concludes (at para. 122) that although s. 17 offers the Court broad discretion to average income over a period of years, this is generally used to smooth out fluctuating incomes rather than to account for extraordinary gains in a single year. Section 17 is sufficiently broad to permit the Court to exclude income, this discretion is not to be exercised arbitrarily. He cites the following passage from the BC Court of Appeal decision in Brown v. Brown, 2014 BCCA 152 (CanLII), this Court said:

[155]     In McKenzie v. Perestrelo, 2014 BCCA 161 (CanLII), the BC Court of Appeal held non-taxable disability benefits and severance pay are included in a payor’s Guideline income because they are a substitute for employment income. The fact these payments are non-reoccurring on their own is insufficient reason to deny a child the benefit of the income. Madam Justice Kirkpatrick for the Court stated at paras. 82 and 83, in part [Citations omitted]

[156]     I conclude TPH 2017 pension payout and 2016 RRSP income ought to be included in his Guideline income for the year in which they were received. The RRSP income in 2016 is minimal and reoccurring in light of TPH’s earlier tax returns. More significantly, if I were to average TPH’s $25,515.10 pension payout over the three previous years (2015, 2016, and 2017), it would increase his Guideline income for 2015 and 2016 and impact Judge Jackson’s October 11, 2016 decision as to the parties’ respective child support obligations for those years.

[157]     I conclude TPH’s Guideline income is that set out on Line 150 of his T1 General Tax Return less UCCB and union dues paid in 2016. Both counsel appear to have based their calculations in the appendices using TPH’s net income set out in Line 236 of his Income Tax Return for 2016 and 2017. I see no reason to do so.

[158]     I have set out below the parties’ respective child support payments pursuant to s. 3 of the Guidelines for the taxation years from 2016 to 2019 inclusive. I have used the December 31, 2011 Guideline Tables for 2016 and 2017 and the November 11, 2017, Tables for 2018 and 2019.

[159]     As Contino makes clear, the set-off formula is the start. The Court must also take into the consideration ss. 9(b) and (c). All three factors in ss. 9(a), (b), and (c) of the Guidelines must be given equal weight. To do so the Court must have before it appropriate evidence to enable the trial judge to consider ss. 9(b) and 9(c).

[160]     Although I had some evidence as to the conditions, means, and needs of TPH, BAB and LIH, I do not have a complete picture of their circumstances. This is particularly true for BAB who has been somewhat vague as to her husband’s earnings and contributions. I can assume there are some increased costs associated with the parties’ shared custody of LIH, but I gather they are not significant. For example, neither party argued but for the shared custody, he or she would have had significantly different expenses for housing or transportation or utilities or childcare.

[161]     Clearly, TPH has far greater demands on his time and income than BAB. He works fulltime supporting a family of eight. He has six children, the oldest of who is 12. Although KH receives the UCCB and assistance from her parents, it is clear TPH is the main bread winner. BAB’s household includes two working adults and one child for whom BAB receives child support.

[162]     TPH submits the evidence supports a conclusion that both parties enjoy a comparable living standard. BAB does not assert there is a significant difference in LIH’s standard of living as he moves between her and TPH’s homes. Both parties invited me to determine child support by applying the set-off. Neither has argued I should depart from that amount by increasing or decreasing the set-off amount on the basis of ss. 9(b) and (c) of the Guidelines.

[163]     I am satisfied it is not inappropriate or unfair for child support to be determined by way of straight set-off retroactive to November 1, 2016, and I will accede to the parties’ request in this regard. Accordingly, I find TPH is obligated to pay to KH child support for LIH in the following amounts: (a) $973 per month from November 1, 2016, to December 31, 2016; (b) $998 per month from January 1, 2017, to December 31, 2017; (c) $848 per month commencing January 1, 2018, and ongoing until further order of this Court.

[164]     TPH tendered as Exhibit 2 his calculations as to the amount of child support he had paid since November 1, 2016. Because some payments were made from KH’ bank account, TPH acknowledged having difficulty providing the Court with a precise accounting. In her closing submissions, Ms. Sutherland advised the Court TPH now accepts as accurate BAB’s calculations as to the amount of child support paid under Judge Jackson’s October 11, 2016 Order. The parties’ respective position as to the quantum of arrears are set out in Appendices “A” and “B”.

[165]     BAB acknowledges she agreed TPH did not have to pay child support for the month of August 2017: Exhibit 5. I have used Exhibit 9 to calculate TPH’s arrears of child support since November 1, 2016 below. I have distinguished between that portion of TPH’s payment for ongoing child support from that paid toward the $15,582 arrears Judge Jackson found owing on October 11, 2016. Generally, I have applied the first $628 of TPH’s payments to ongoing support and any excess to the arrears. I have then deducted monies paid for ongoing child support portion from the sum I found payable retroactively.

[166]     By my calculations, TPH is in arrears of $11,559 for child support from November 1, 2016, to and including May 31, 2019. He has paid $1,722 towards the $15,582 arrears Judge Jackson ordered on October 11, 2016, leaving him $13,860 outstanding under that Order.

[167]     The Court is satisfied that TPH and BAB are the guardians of LIH, born [omitted for publication] under s. 39(1) of the Family Law Act, SBC 2011, c 25.

[168]     Under s. 40(2) of the Family Law Act TPH and BAB will share all parental responsibilities for LIH.

[169]     BAB and TPH have a shared parenting arrangement with respect to LIH as defined in s. 9 of the Federal Child Support Guidelines.

[170]     Except as otherwise provided in this order, LIH will ordinarily reside with BAB during the school year on all instructional school days.

[171]     Except as otherwise provided in this order, LIH will ordinarily reside with TPH during the school year on all weekends and non-instructional school days.

[172]     While school is in session, except in December and the month of the school spring break:

[173]     BAB and TPH will share parenting time with LIH on the Christmas and spring school break on dates and times as they may agree.

[174]     Except as otherwise provided in this Order, TPH will have parenting time with LIH the entire school summer break.

[175]     Each year, BAB will have parenting time with LIH for five consecutive days in July and five consecutive days in August on dates and times as she and TPH may agree.

[176]     BAB and TPH will have such other parenting time on dates and times as they may agree.

[177]     BAB and TPH will transition LIH between their respective homes for parenting time on dates and times and in such manner they may agree.

[178]     BAB and TPH are free to vary the parenting time schedule by written consent and I encourage them to do so when it is in LIH’s best interests.

[179]     This Court finds TPH to be a resident of British Columbia with an annual Guideline income of (a) $138,749.85 in 2016 commencing November 1, 2016; (b) $142,018.50 in 2017; (c) $123,300 in 2018; and (d) $123,300 in 2019.

[180]     This Court finds BAB to be a resident of British Columbia, and is imputed to have an annual Guideline income of (a) $29,400 in 2016, commencing November 1, 2016; (b) $33,320 in 2017; (c) $35,280 in 2018; and (d) $37,240 in 2019.

[181]     Judge Jackson’s October 11, 2016 Order with respect to ongoing child support is varied as follows:

[182]     The arrears TPH owes to BAB for child support from November 1, 2016 to and including May 31, 2019, is $11,559 (the “Current Arrears”) inclusive of principle and interest.

[183]     In addition to regular monthly support payments, TPH will pay to BAB a minimum of $125 per month toward the Current Arrears commencing June 1, 2019, and continuing on the 1^st day of each month thereafter until the arrears are paid in full or until further Court order.

[184]     The total arrears TPH owes to BAB pursuant to Judge Jackson’s October 11, 2016 Order with respect to the period from March 1, 2015, to August 31, 2016 is $13,860 as of May 31, 2019.

[185]     Any statutory default fees or statutory interest accrued on the Current Arrears or pursuant to Judge Jackson’s October 11, 2016 Order prior to July 31, 2019, are cancelled.

[186]     For as long as LIH 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, no later than June 30 each year; and (b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt.

[187]     Under s.222 of the Family Law Act, upon exchange of their Income Tax Returns and Notices of Assessment, the parties are required to discuss any material change in circumstances which warrant a change in the amount of support payable.

[188]     For clarity’s sake:

[189]     Either party can apply to this Court to settle the terms of this Order upon reasonable notice to the other party.