IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         M.M.L. and J.K.S. are the biological parents of two children, A.E.G.S., who is 15 years old and A.J.O.S., who is 13. M.M.L. and J.K.S. began cohabitating as intimate partners in April 2000, and separated on December 9, 2009. Since their separation they have shared equal parenting time with A.E.G.S. and A.J.O.S. They also shared equally various extra expenses relating to A.E.G.S. and A.J.O.S.’s education, recreation, and grooming. Neither paid the other child support and there are no court orders or written agreements to that effect. On July 29, 2019, M.M.L. filed an Application to Obtain an Order seeking, among other things, ongoing and retroactive child support, and reimbursement for special or extraordinary expenses. On September 23, 2019, J.K.S. filed a Reply disputing M.M.L.’s application. Since their separation, both parents have re-partnered and now have second families.

[2]         This matter came before me for trial on January 6, 2021, in the Prince George Provincial Court. M.M.L. was represented by legal counsel, Mr. K.W. Parker; J.K.S. was self-represented. At that time I heard oral evidence from M.M.L. and J.K.S. and submissions from J.K.S. and from Mr. Parker on M.M.L.’s behalf. M.M.L. tendered into evidence one binder of documents which was marked Exhibit 1, which included:

[3]         I also have the Court file which includes two s. 211 Views of the Child reports authored by Leanne Toews, with respect to A.E.G.S. and A.J.O.S. These reports were filed with the Prince George Provincial Court Registry on February 27, 2020, and entered into the Court Electronic Information System (“CEIS”) documents 14 and 15 respectively.

[4]         At the conclusion of the hearing, I reserved my decision. These are my written reasons for judgment.

[5]         M.M.L. is 41 years old, having been born on [omitted for publication].

[6]         J.K.S. is 37 years old, having been born on [omitted for publication].

[7]         M.M.L. and J.K.S. entered into an intimate relationship and began cohabitating in April 2000. They never married.

[8]         M.M.L. and J.K.S. are the biological parents of two children, A.E.G.S., born [omitted for publication] (age15) (“A.E.G.S.”) and A.J.O.S., born [omitted for publication] (age 13) (“A.J.O.S.” and collectively with A.E.G.S., the “L. & S. Children”).

[9]         I understand A.J.O.S. attends Grade 7 at [omitted for publication] and A.E.G.S., Grade 10 at [omitted for publication] in Prince George, BC.

[10]      Both A.E.G.S. and A.J.O.S. have been assessed with Attention Deficit Hyperactivity Disorder (“ADHD”), and take medication to manage their symptoms. Both L. & S. Children have the benefit of a psychoeducational assessment. A.E.G.S. suffers from Written Output Disorder and A.J.O.S. from Developmental Reading Disorder and Oppositional Defiant Disorder. A.J.O.S. is on an Individual Education Program at school. Dr. Elizabeth Rocha’s Psychoeducational Assessment of A.J.O.S. dated April 30, 2018, is attached to Leanne Toews’ February 27, 2020 s. 211: CEIS Document #15.

[11]      M.M.L. and J.K.S. separated permanently on December 9, 2009.

[12]      M.M.L. and J.K.S. have always enjoyed shared equal parenting time with and parental responsibilities for A.E.G.S. and A.J.O.S.

[13]      For some time after their separation J.K.S. resided with his mother who provided child care for A.E.G.S. and A.J.O.S. during J.K.S.’ parenting time while J.K.S. worked.

[14]      Ten years ago, J.K.S. re-partnered with his current spouse, C.S.  C.S. has three children from prior relationships, K.J., who is 16 years old, M.S., who is 13 and S.S. who is 12.

[15]      C.S. had worked part-time for two years at the [omitted for publication] Casino in Prince George, BC. Last spring, she lost her job as a result of the COVID-19 pandemic and is currently unemployed. C.S. receives some child support from her children’s biological fathers. J.K.S. has voluntarily assumed primary responsibility for supporting C.S. and her three children.

[16]      M.M.L. is the biological mother of a third child, F.W.J., born [omitted for publication], as a result of her relationship with F.W.J.’s biological father, F.W.S.  I understand M.M.L. and F.W.S. began cohabitating in 2010 and separated in February 2016. M.M.L. and F.W.S. have a shared parenting arrangement with F.W.J.

[17]      Four years ago M.M.L. formed an intimate relationship with B.S.W. Since 2018 M.M.L. and her three children have lived with B.S.W. in his residence in rural Prince George. B.S.W. is gainfully employed and has no children of his own, however, he does have significant financial obligations to his former spouse.

[18]      On January 17, 2013, J.K.S. filed an Application to Obtain an Order seeking custody and guardianship of A.E.G.S. and A.J.O.S. In this document he indicated the parents shared equal custody of the L. & S. Children: CEIS Document #1.

[19]      On January 30, 2013, M.M.L. filed a Reply to J.K.S.’ January 17, 2013 Application agreeing to the parents sharing joint custody and joint guardianship of A.E.G.S. and A.J.O.S.: CEIS Document #3.

[20]      On January 30, 2013, M.M.L. and J.K.S. entered into a Written Agreement pursuant to ss. 28 and 121 of the Family Relations Act, then in force. The agreement was one which M.M.L. and J.K.S.’ negotiated between themselves and formalized in a written agreement with the assistance of Mary Halpert, a Family Justice Counsellor in Prince George, BC. They only met with Ms. Halpert together on one occasion, at which time they discussed issues of child custody, guardianship and residency. The Family Justice Counsellor filed the Written Agreement with the Prince George Provincial Court Registry on February 12, 2013. The Written Agreement provided that M.M.L. and J.K.S. were joint guardians and custodians of A.E.G.S. and A.J.O.S. It did not address any other issues. Specifically the Written Agreement was silent on the issue of child support.

[21]      On February 12, 2013, J.K.S. and M.M.L. withdrew their respective application and counterclaim filed on January 17, 2013, and January 30, 2013: CEIS Document #5.

[22]      J.K.S. and M.M.L. have a shared parenting arrangement with respect to A.E.G.S. and A.J.O.S. The boys reside at each parent’s residence on an alternating weekly schedule with Friday as the transition day.

[23]      Neither parent paid child support to the other. However, M.M.L. and J.K.S. share equally expenses the L. & S. Children incur for various items, events and activities, including expenses relating to their medical, dental, educational needs, such as tutoring and the psychoeducational assessments. They also shared the cost of some recreational expenses, such as skiing, and some grooming expenses, such as haircuts. M.M.L.’s father also contributed to the cost of the L. & S. Children’s recreational activities.

[24]      M.M.L. and J.K.S. each claim 50% of the Child Care Benefit for Aston and A.J.O.S. based on the parents’ respective incomes. Their benefit entitlement is determined and administrated by the Canada Revenue Agency.

[25]      M.M.L. says that two or three years ago, she was engaged in family law litigation with F.W.S. regarding their son, F.W.J. It was in the context of those proceedings that M.M.L. learned child support is payable under the Child Support Guidelines (the “Guidelines”) even where the parents share equal parenting time. Initially, F.W.S. did not pay M.M.L. child support although he out-earned her. M.M.L. believed child support was not payable where the parents share equal parenting time with the child. I gather M.M.L. eventually discovered this was not in fact the case. F.W.S. now pays to M.M.L. $193 per month for child support for F.W.J. after calculating and setting off each of the parent’s applicable Guideline child support obligation.

[26]      In the spring of 2019, M.M.L. asked J.K.S. to meet with her and a Family Justice Worker to address the issue of child support for A.E.G.S. and A.J.O.S. M.M.L. and J.K.S. did meet with a Family Justice Counsellor, however, J.K.S. refused to pay to M.M.L. any child support for the L. & S. Children.

[27]      On July 29, 2019, M.M.L. filed an Application to Obtain an Order seeking, parenting time, allocation of parenting responsibilities and child support. Specifically she sought an order that A.E.G.S. and A.J.O.S.’s primary residence will be with her. She also sought ongoing child support for two children in accordance with the Guidelines and reimbursement for special or extraordinary expenses. M.M.L. stated she sought retroactive child support to February 1, 2013, “because the respondent has never provided to me his financial information to properly determine child support”: CEIS Document #6.

[28]      M.M.L.’s July 29, 2019 Application was personally served upon J.K.S. on August 30, 2019: CEIS Document #7.

[29]      On September 23, 2019, J.K.S. filed a Reply disagreeing with M.M.L.’s July 29, 2019 Application for parenting time, allocation of parenting responsibilities, child support: CEIS Document #8.

[30]      On October 11, 2019, J.K.S. filed a Form 4 Financial Statement with the attachments referred below: CEIS Document #10.

[31]      On October 17, 2019, M.M.L. and J.K.S. attended at the Prince George Provincial Court for a first appearance. At that time, the matter was adjourned to November 25, 2019, for a Family Case Conference. M.M.L. appeared in person and represented by Mr. K. Parker; J.K.S. appeared in person and was self-represented.

[32]      On November 7, 2019, M.M.L. filed her Form 4 Financial Statement, together with the attachments referenced below: CEIS Document #12.

[33]      On November 25, 2019, M.M.L. and J.K.S. attended a Family Case Conference before Judge Young in Prince George Provincial Court. M.M.L. appeared in person and represented by Mr. K. Parker. J.K.S. appeared in person and was self-represented. At that time, Judge Young ordered a privately funded Views of the Child report pursuant to s. 211 of the Family Law Act with the costs to be shared equally between the parties. The parents sought A.E.G.S.’s and A.J.O.S.’s views concerning the existing shared parenting time arrangement and whether they wished to remain at their father’s residence with their step-mother when J.K.S. was absent for work.

[34]      On February 27, 2020, Leanne Toews filed her Views of the Child reports with respect to A.E.G.S. and A.J.O.S. Both boys expressed the view that they would like to continue the existing shared parenting arrangement with M.M.L. and J.K.S. Also, they both confirmed they wanted to remain at J.K.S.’ residence with their step-mother and step-siblings during J.K.S.’ parenting time even when J.K.S. was working out-of-town.

[35]      On October 28, 2020, this matter came before me for a Family Case Conference at which I made the following final order, by consent:

[36]      M.M.L. has worked for [omitted for publication] in Prince George, BC for the past 16 years. She now works the night shift in the [omitted for publication] department (10 pm to 6 am) four days per week earning $25.25 per hour for regular time work and $37.88 for overtime.

[37]      M.M.L. says she has no health concerns and does not anticipate any change in her employment in the near future.

[38]      On November 7, 2019, M.M.L. filed her Form 4 Financial Statement in which she declared an annual Guideline income of $45,574.95 and annual expenses of $59,290.35. M.M.L. attached to her Financial Statement, the following documents:

[39]      On April 15, 2020, Canada Revenue Agency issued M.M.L. a Notice of Assessment for the 2019 taxation year showing a Line 150 income of $56,776.

[40]      M.M.L. provided a pay statement from [omitted for publication] showing that as December 26, 2020, her year to date earnings totalled $58,524.84. Extrapolating this sum to December 31, 2020, I gather M.M.L.’s 2020 income would total approximately $59,338.

[41]      If M.M.L. worked 40 hours per week for 52 weeks, inclusive of vacation, she would earn $53,040 per year ($25.50 x 40 hours per week x 52 weeks = $53,040). I understand M.M.L. does earn a premium for working night shift and extra for working overtime or on statutory holidays.

[42]      M.M.L. has a shared parenting arrangement with all three of her children and receives $218 per month from Canada Revenue Agency as the Child Care Benefit for those children.

[43]      M.M.L. contributes to a Registered Educational Savings Plan (“RESP”) for A.E.G.S. and A.J.O.S. Each child now has approximately $20,000 in savings. J.K.S. does not contribute to these plans and does not have his own independent RESPs for A.E.G.S. and A.J.O.S.

[44]      B.S.W. is the assistant store manager at [omitted for publication]. In 2020, B.S.W. earned $84,000 from his position as assistant store manager. B.S.W. also has a small business selling [omitted for publication] at $225 per [omitted for publication]. He has owned and operated this business for approximately seven years. He sells approximately 80 to 100 [omitted for publication] per year and earns approximately $8,000 - $10,000 per year from this business.

[45]      B.S.W. does not have any children of his own, but is obligated to pay spousal support to his former spouse in the amount of $1,300 per month for four years. He has paid this sum now for the past three years has one more year left to pay.

[46]      B.S.W. owns his own home at [omitted for publication], which is in the [omitted for publication] area of rural Prince George. It is a 2000 square foot ranger with a two car garage situated on five acres of land. He says it has an assessed value of $535,000 to $645,000 with a $480,000 mortgage. He had to “repurchase” it after his divorce from his ex-spouse. He says he pays the mortgage, insurance and property taxes and electrical power. In her November 7, 2019 Financial Statement, M.M.L. claims to pay B.S.W. $9,600 per year as “rent”, $2,500 in property taxes, $700 in insurance and $3,900 for utilities (heat, electricity, telephone, cable TV and internet). B.S.W. says M.M.L. gives him $800 per month ($9,600 per year) as her contribution towards the television, internet, gas expenses, which he distributes. I prefer B.S.W.’s evidence in this regard over M.M.L.’s.

[47]      B.S.W. owns a 2011 F-350 pickup, two snow machines, an all-terrain vehicle and 22 feet 1978 travel trailer. He provides M.M.L.’s children with transport and gifts on special occasions. I glean from the s. 211 report the L. & S. Children enjoy participating in various outdoor activities with B.S.W. at his residence, including: snowmobiling, “quadding” and harvesting wood.

[48]      Until recently J.K.S. and C.S. lived at [omitted for publication].in Prince George, BC, which is near the [omitted for publication].elementary school, which A.J.O.S. attends. J.K.S. and C.S. moved to a larger more expensive home at [omitted for publication], in Prince George, which allows each of their five children to have their own bedroom. As a result of this move J.K.S. and C.S.’s rent increased from $13,000 per year to $24,000.

[49]      Although he works hard and consistently, J.K.S. has little in the way of assets. He would like to purchase his own home, but cannot afford to do so at present. He drives a 2003 Dodge Grand Caravan and owns a 1978 travel trailer in which he takes his family on holidays. He recently purchased a 2003 [omitted for publication] motorcycle with $2,500 he borrowed from a friend, who he has slowly paid back. J.K.S. has amassed $24,000 in credit card debt.

[50]      For the past six years, J.K.S. has worked full-time as a foreman for [omitted for publication] which is in the business of [omitted for publication] construction and maintenance. J.K.S.’ statement of earnings and deductions indicate that in 2019 he received $32 per hour for regular time work and $48 per hour for overtime.

[51]      J.K.S. says C.S. is healthy and capable of working. She worked part-time for two years at the [omitted for publication] in Prince George until its closure due to the COVID-19 pandemic. J.K.S. estimates C.S. earned $15,000 per year when employed and receives $400 per month from her children’s biological fathers for child support. She does not contribute to the rent, but does contribute to the cost of groceries and the cell phone bills. C.S. did not testify nor did J.K.S. provide any documentation verifying her income or expenses. I find it surprising C.S. receives only $400 per month for three children given she is receiving child support from two different fathers.

[52]      J.K.S. considers K.S., M.S. and S.S. as “his kids” who he is obligated to support. He says all three children require orthodontic work, which he will have to pay for because it is not insured under his employee dental plan. J.K.S. also pays for S.S. and K.J. to attend dance lessons. J.K.S. has not provided the Court with any corroborating evidence of these expenditures or any explanation as to why their biological mother and fathers cannot contribute to this expense. Having said that, it is apparent to me from Ms. Toews’ 211 report that C.S. does care for all five children while J.K.S. is working out-of-town. The s. 211 report also makes it clear A.E.G.S. and A.J.O.S. are attached to C.S. and she makes a significant contribution to their enjoying a stable and loving home with their father.

[53]      Because of J.K.S. and C.S.’s modest household income and accommodation expenses, they are limited in what they can offer A.E.G.S. and A.J.O.S. for recreation. J.K.S. has a 32 year old travel trailer which he uses to take the family on holidays from time-to-time in the Okanagan and Kootenays. His activities with the boys includes swimming, skiing, camping, movies and dining out.

[54]      On October 11, 2019, J.K.S. filed a Form 4 Financial Statement declaring he earned an annual guideline income of $71,246 and incurred annual expenses totaling $98,938. J.K.S. attached to his Financial Statement the following documents:

[55]      J.K.S. provided a Notice of Assessment for the 2019 taxation year issued April 20, 2020, indicating his total income for 2019 was $88,599. He did not provide M.M.L. nor the Court with a copy of his 2019 Individual Income Tax Return or final Statement of Earnings for 2020.

[56]      Counsel for M.M.L. asks the Court to impute income for J.K.S.’ 2020 and 2021 to be $88,599.

[57]      On his Financial Statement, J.K.S. estimates his annual expenses to be $98,938. He has a few luxuries (such as cigars and alcohol) and I accept C.S. contributes to some of the household expenses and some are embellished.

[58]      J.K.S. says [omitted for publication] shuts down its operations in the winter. During this dormancy, J.K.S. aggressively pursues whatever extra shifts or work may be available. I gather this often requires him to travel out of town to follow the work. J.K.S. says extra work is not guaranteed nor always available. His income in 2019 is not necessarily what he will earn in 2020. Unfortunately, J.K.S. did not provide the court with documentation from [omitted for publication] confirming his annual salary for 2020 or how much of it is derived from overtime or out-of-town work. Generally the Court does not require a person to work more than one full-time job to satisfy their duty to support their children: Fong v. Fong, 2011 BCSC 42 (CanLII), para. 85.

[59]      If J.K.S. received $32 per hour for regular time work for 52 weeks, inclusive of holidays, he would earn $66,560 per year ($32 x 40 hour per week x 52 weeks = $66,560). In order to earn $88,599, as he did in 2019, J.K.S. would have had to receive a significant raise or work a significant amount of overtime or statutory holidays or both ($88,599 - $66,560 = $22,039 ÷ $48 = 460 hours at time and one-half). Therefore, evidence that J.K.S. is working substantially more than 40 hours per week is relevant to the s. 9 Guideline analysis. For example, ordering J.K.S. to pay prospective child support on an income he can only earn if he consistently works 60 hours per week may be unfair and not in the best interest his sons who want and need parenting time with their father. Having said that I cannot guess at how much J.K.S. earned or how much overtime he worked in 2020.

[60]      Section 147 the Family Law Act 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.

[61]      Section 148 of the Family Law Act governs agreements respecting child support. It states:

[62]      Section 150(1) of the Family Law Act states the amount of child support must be determined in accordance with the Child Support Guidelines (s. 150(1) Family Law Act). Pursuant to the Family Law Act and Part 4 of the Family Law Act Regulation, BC Reg 347/2012, the Child Support Guidelines means the Federal Child Support Guidelines (the “Guidelines”) established under s. 26.1 of the Divorce Act (Canada).

[63]      When making an order respecting child support, s. 150 of the Family Law Act requires 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: see s. 150(2).

[64]      Since they separated in December 2009, M.M.L. and J.K.S. have shared equally parenting time and parenting responsibilities for A.E.G.S. and A.J.O.S. They agreed to each bear their own costs of child care and to share equally certain extra expenses, such as dental treatment, medical reports, school fees, tutoring, haircuts, recreation equipment and ski passes. This oral agreement does not comply with the Guidelines as required under s. 150 of the Family Law Act. I accept that at the time M.M.L. and J.K.S. agreed to this child support arrangement, they were not aware of the law governing payment of child support in shared parenting regimes.

[65]      In Peck v. Peck, 2010 BCSC 1397 (CanLII), Justice Wilson found ignorance of the law in family law matters, as in criminal matters, is not an excuse. He writes:

[66]      In J.A.S. v. A.C.S., 2016 BCPC 433 (CanLII), Judge Bayliff states:

[67]      The principles on which child support is based as espoused Earle v. Earle, 1999 CanLII 6914 (BCSC), are as follows:

[68]      The Guidelines objectives are:

[69]      M.M.L. and J.K.S. have a shared custody regime, which is governed by s. 9 of the Guidelines:

[70]      Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII) is the leading case on the interpretation and application of s. 9 of the Guidelines. In G.J.L. v. M.J.L., 2017 BCSC 688. Justice Schultes cites with approval Professor D.A. Rollie Thompson’s distillation of the essential principles Contino establishes:

[71]      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.

[72]      In K.A.C. v J.D.E.C, 2020 BCSC 1373 (CanLII), Justice Milman discusses the extent to which the income provided by a new spouse of one of the parents is to be taken into account under s. 9 of the Guidelines. He cites B.P.E. v. A.E., 2016 BCCA 335, in which Willcock J. summarized the correct approach to the issue of a re-partnered spouse’s “household income”:

[73]      As set out above, s.148(3) of the Family Law Act empowers the court to set aside or replace with an order all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150.

[74]      Recently, in Sidhu v Chima, 2020 BCSC 768 (CanLII), Justice Jenkins canvassed the authorities on the application of s. 148(3). He states at para. 42:

[75]      In Contino, at para. 82, Bastarache J., for the majority stated:

[76]      I do not see how the Court can expect self-represented parents to determine with any precision their respective child support obligations it in a share parenting arrangement without some legal assistance.

[77]      Mr. Parker submits the Court ought to resolve the issue of child support with the application of a simple set-off of each parent’s table amounts using their most current Line 150 income. On an imputed annual Guideline income of $88,500, J.K.S.’ child support obligation for two children according to the Guidelines is $1,368 per month. On an annual Guideline income of $59,290.35, M.M.L.’s child support obligation for two children according to the Guidelines is $920. Setting off these two amounts, J.K.S. would be obligated to pay child support to M.M.L. in the amount of $448 per month.

[78]      There is no doubt the bare application of the set-off formula is attractive for its simplicity. Generally, a simple solution to a complex question is wrong. I accept that in some cases of shared parenting arrangements, it may be appropriate. I do not believe this is one such case for number of reasons, including:

[79]      J.K.S.’s income increased from $71,246 in 2018 to $88,599 in 2019. J.K.S.’ testified this increase is largely attributable to the amount of overtime he worked in 2019. The last financial document J.K.S. disclosed to the Court was his 2019 Notice of Assessment, so I have no way of verifying his 2020 income or the amount of overtime he worked last year. I understand J.K.S. provided his most recent Statement of Earnings to M.M.L.’s counsel at the Family Case Conference on October 28, 2020, but these records were never placed before the Court.

[80]      M.M.L.’s income increased from $48,565 in 2018 to $56,776 in 2019 to $59,338 in 2020. I note her hourly wage in 2019 was $24.90 and in 2020 it was $25.50. Her December 31, 2020 paycheque for the week of December 20 to 26, 2020, records M.M.L. worked one hour earning $37.87. I am left with the impression M.M.L. does not regularly work a significant amount of overtime.

[81]      The parties have enjoyed equal parenting since December 9, 2009, when they first separated. The L. & S. Children have been established in each parent’s home for more than eleven years. The parents have re-partnered and now have more than just A.E.G.S. and A.J.O.S. to support. It is difficult to assess the increased costs of shared parenting arrangement in the circumstances and impossible with the dearth of evidence before me on this point. I understand from J.K.S. that in December 2020, his rent doubled because he moved his family into a larger home to accommodate five children. On the other hand, for the past two years, M.M.L. and her three children have resided with B.S.W. in his home which make her accommodation costs much less than those of J.K.S.’.

[82]      Both M.M.L. and J.K.S. have second families. M.M.L.’s second family consists of two fully employed healthy adults and three dependent children. M.M.L. is the biological mother of all three children. She has no step-children. J.K.S. has a second family consisting of one fully employed healthy adult, one unemployed or partially employed adult, and five children, two of whom are J.K.S.’ biological children.

[83]      Mr. Parker, counsel for M.M.L., argues that J.K.S.’ obligations towards his step-children are secondary to his obligations to his biological children from his relationship with M.M.L. This what is often referred to as the “first-family-first principle.” Essentially this principle provides a payor's obligations to the first family take priority over any subsequent obligations to the second family.

[84]      In Fisher v. Fisher, 2008 ONCA 11, the Ontario Court of Appeal held that a payor’s obligations to a second family can be a relevant factor in considering entitlement to and quantum of support. The Ontario Court of Appeal addressed the thorny issue of supporting multiple families in Fisher v. Fisher:

[85]      In Fisher, the appellate Court refused to reduce the payor’s support obligations to his first family, on the basis he had voluntarily assumed significant responsibility for his second family, including his new step-children, while knowing of his pre-existing obligations. In that case, the payor’s new spouse had chosen not to work, and the payor had no legal obligation to support her or her children. Lang J.A. went on to note in Fisher the lack of evidence the payor’s obligations to his first family would impoverish his second family. In these circumstances the payor’s endorsement of his second wife's preference to remain at home could not be relied upon to reduce his support obligation to his first family.

[86]      In A.K. v. S.D.Y., 2011 BCSC 1567 (CanLII), Justice Fitzpatrick recognized (at para. 200) the “first family first concept is not absolute. In Kershaw v. Kershaw, 2015 BCSC 925 (CanLII), Justice Fitzpatrick, notes (at para. 21):

[87]      In Section 9 and Second Families, 2015 93-1 Can. Bar Rev. 39, 2015 CanLIIDocs 138, authors Elliot S. Birnboim and Daniella Murynka, state on page 41:

[88]      In this case, as in Fisher, J.K.S. voluntarily assumed responsibility for C.S. and her three children. J.K.S. knew, or ought to have known, of his pre-existing obligation to his first family. His second family had other sources of income, including child support from the step-children’s biological fathers and C.S.’s own employment income. Even in the face of this proceedings, J.K.S. has increased his financial obligations to his second family for accommodation and orthodontics.

[89]      The financial circumstances of each household, including those of a new spouse are relevant to a proper calculation of the parties’ respective child support obligations after taking account of each party’s income for child support purposes and after a set-off calculation: H.A.B.v. C.L.B., 2019 BCCA 349. I do not have before me any reliable information as to C.S.’s financial contribution to J.K.S.’ second family. The evidence suggests J.K.S. supports C.S.’s preference to remain unemployed or underemployed. I have no satisfactory explanation as to why C.S. is not contributing more to the support of her own children.

[90]      Beyond setting out his estimated household expenses in his October 11, 2019 Financial Statement, J.K.S. has not provided cogent evidence to establish his financial obligations to his first family would impoverish his second family. Without robust evidence as to J.K.S.’ household income and expenses, I cannot say his ability to pay child support is significantly diminished due to the financial obligations he voluntarily undertook for his second family.

[91]      I have set out below J.K.S. and M.M.L.’s respective incomes for the 2016 to 2019 taxation years, their respective Guideline support obligations for two children based on that income, and the set off between these two table amounts.

[92]      The financial information indicates that: (a) in 2016, M.M.L.’s Guideline income was 35% less than J.K.S.’; (b) in 2017, M.M.L.’s Guideline income was 40% less than J.K.S.’; (c) in 2018, M.M.L.’s Guideline income was 32% less than J.K.S.’; (d) in 2019, M.M.L.’s Guideline income was 36% less than J.K.S.’ (e) in 2020, M.M.L.’s Guideline income was 33% less than J.K.S.’ imputed Guideline income. In sum, in the past four years (2016 to 2020), M.M.L.’s annual Guideline income was on average 35% less than J.K.S.’ Guideline income.

[93]      Since 2010, J.K.S. has had a second family and is the main income earner for a household of seven. During this same 10 year period, M.M.L. cohabitated with F.W.S. until they separated in February 2016. I gather M.M.L. was the sole income earner for a household of four from the time she separated from F.W.S. until she began cohabitating with B.S.W. two or three years ago. Since then M.M.L. has had the benefit of sharing household expenses with B.S.W., who earns 30% more than she does, before factoring in his income from his wood harvesting business.

[94]      As I indicted previously, the evidence suggests that over the years, it was M.M.L. has taken the initiative to procure and pay for special and extraordinary expenses for A.E.G.S. and A.J.O.S. Upon her request, J.K.S. reimbursed M.M.L. for half of those expenses. These included Dr. Rocha’s psychoeducational evaluation and A.E.G.S. and A.J.O.S.’s school fees and tutoring. These expenses are not fixed or ongoing so they cannot be factored into a monthly child support payment.

[95]      Special or extraordinary expenses are set out in s. 7 of the Guidelines. I have reproduced that section below for ease of reference:

[96]      In Clarke v. Clarke, 2014 BCSC 824 (CanLII), Mr. Justice Baird states (at para. 51) the list set out in s. 7 is exhaustive. If the expense does not fit into any of the enumerated categories, it cannot be a special or extraordinary expense. Still, what is and is not an extraordinary expense is not always straightforward. Section 7.1 provides some guidance, which states:

[97]      In Clarke, (at para. 54) Justice Baird provided a summary of activities which did not qualify as a special or extraordinary expense. These include expenses such as entertainment, pets, vacations, school fees, school supplies, children’s allowances, meals outside the home, personal grooming, and clothing, a home computer and other technologies. Recreational sports and other similar extracurricular activities, such as dance lessons, community sports leagues, ski trips, are generally considered “ordinary.” The question is whether the participation goes beyond that of the “average child”: D.L.C. v. F.M.C., 2010 BCSC 1312 at para. 67.

[98]      In Bodine-Shah v. Shah, 2014 BCCA 191, the Court of Appeal distinguished between special expenses, as listed in in ss. 7(1)(a)-(c) and (e) from extraordinary expenses referred to in ss. 7(1)(d) and (f). Justice D. Smith for the appellate court explains in para. 66:

[99]      In L.A.M. v S.C.M, 2020 BCSC 67 (CanLII), Justice Weatherill, canvassed the law on what constitutes an “extraordinary” expense. He states, at para. 30:

[100]   In the past M.M.L. and J.K.S. have split the costs of A.E.G.S. and A.J.O.S.’s ski passes and haircuts; however, I would not consider these items as special or extraordinary expenses.

[101]   As indicate previously, I am reluctant to impose child support obligations in a shared parenting arrangement predicated on the payor parent having to work significant amounts of overtime. Considering those factors set out in s. 9 (a), (b) and (c) of the Guidelines, I concluded:

[102]   If J.K.S. and M.M.L. cannot agree on what qualifies as an extra or extraordinary expense, either can apply to the Court for a determination of the issue on reasonable notice to the other.

[103]   M.M.L. seeks retroactive support back to August 1, 2016, which is roughly three years prior to her Application to Obtain an Order filed July 29, 2019, and 4.5 years before the date of this judgment.

[104]   Section 152 of the Family Law Act gives the Court jurisdiction to change, suspend, or terminate a child support order, and to do it either prospectively or retroactively as it sees fit. In this case, there was no court orders or written agreements, only a simple understanding between M.M.L. and J.K.S. that, given their shared parenting arrangement, neither parent would pay the other ongoing child support. This understanding is best characterized as an “oral agreement” that was never reduced to writing. I do not know M.M.L. and J.K.S.’ financial circumstances at the time of separation. They had no agreement to share updated financial information or revisit child support if either of their financial circumstances changed.

[105]   As set out above, s. 148(3) of the Family Law Act authorizes the court to set aside or replace all or part of an agreement respecting child support if it deems appropriate. The threshold question is whether this Court has jurisdiction to do so retroactively.

[106]   The BC Supreme Court in to R.M. v. N.M., 2014 BCSC 1755 and Chutter v. Chutter, 2016 BCSC 2407 held s.148(3) of the Family Law Act does not authorize the court to retroactively vary a child support agreement absent a final court order. Mr. Justice Weatherill in Isacson v. Isacson, 2014 BCSC 2351 (CanLII) and Mr. Justice Fitch in Megson v. Megson, 2014 BCSC 2467 (CanLII) found differently and make retroactive variations to child support payable under a separation agreement. In G.J.L. v. M.J.L., 2017 BCSC 688 (CanLII), Justice Schultes found the court does have authority under s. 148(3) of the Family Law Act to vary child support payable under an agreement with retroactive effect. Justice Schultes adopted Judge Keyes’ decision in T.L.A. v. M.R., 2015 BCPC 151 (CanLII) as did Judge J.P. MacCarthy in S.J.D. v. S.A.G., 2015 BCPC 370 (CanLII). Justice Schultes and Judge Keyes determined that because he concluded the claimant R.M. had not met the burden of justifying a variation pursuant to s. 148(3), Justice Armstrong’s additional conclusion that s. 148(3) could not operate retroactively was obiter dicta.

[107]   More recently the Provincial Court in M.E.L. v. S.D.L., 2018 BCPC 156 (CanLII), C.A.O. v. P.J.O. 2017 BCPC 361, H.G. v. M.K., 2019 BCPC 216 (CanLII) and LEH v YMT, 2019 BCPC 146 (CanLII), determined the Court does have authority to vary a separation agreement retroactively.

[108]   In Galpin v. Galpin, 2018 BCSC 1572, Justice Riley considered an appeal from a Provincial Court Judge’s order for child support on the basis it failed to take into consideration the parties’ shared parenting agreement that neither was obliged to pay child support. Justice Riley states:

[109]   In Michel v. Graydon, 2020 SCC 24 (CanLII) (“Michel”) the Supreme Court of Canada confirmed and amplified the following core principles and policy objectives governing child support espoused in D.B.S.:

[110]   In D.B.S. v. S.R.G., the Supreme Court set out the factors a Court should consider in dealing with retroactive applications:

[111]   None of these factors take precedence or is determinative. “At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix”: D.B.S., para. 99. In Michel, Supreme Court confirmed (at para. 108) that once judges must first determine if there is an outstanding debt for child support, and then consider what would be a fair award under the D.B.S. factors.

[112]   In D.B.S. (at para. 125) the Supreme Court of Canada decided that as a general rule, and subject to blameworthy behaviour on the part of the payor spouse, “it usually will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given.” In Michel, the Supreme Court characterized child support as a valid debt owed from the moment it ought to have accrued - a debt owed to the child that must be paid, similar to any other financial obligation: para. 78. Payor parents cannot escape their child support obligations on technicalities or narrowly construed interpretation of provincial legislation.

[113]   In Michel, Supreme Court Justice Martin set out in her concurring judgment (at para. 85) a host of reasons courts have accepted as justifying a delayed application for child support. This include (a) fear of reprisal or family violence from the payor parent; (b) prohibitive costs of litigation or fear of protracted litigation; (c) lack of information or misinformation over the payor’s income; (d) fear of counter-application for custody; (e) the payor leaving the jurisdiction or recipient unable to contact the payor; (f) illness/disability of a child or the custodian; (g) lack of emotional means; (h) wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement; (i) ongoing discussions in view of reconciliation, settlement negotiations, or mediation; (j) and the deliberate delay of the application or the trial by the payor.

[114]   Justice Martin goes on to say at paras. 86 and 87, in part:

[115]   At para. 111, Martin J. states, “the focus should be on whether the reason provided is understandable” rather than whether the support recipient had a “reasonable excuse” for the delay. In paragraph 113, she writes:

[116]   M.M.L. testified she first broached the issue of child support with J.K.S. approximately three months prior to filing her July 29, 2019 Application. She says that it was not until she became embroiled in family law proceedings with F.W.S., she became aware that child support was payable even in a shared parenting arrangement. Although M.M.L.’s excuse does not fall into any of those categories referred to in D.B.S., I do not consider her ignorance of the law blameworthy or arbitrary or unreasonable.

[117]   What is unclear to me is when M.M.L. actually learned of a parent’s obligation to pay child support in shared parenting arrangement. I do know when M.M.L.’s legal proceedings against F.W.S. commenced and whether she had legal counsel. I do not know if the cost and stress of two legal proceedings against two different fathers was a factor in her reluctance to pursue J.K.S. for child support earlier. M.M.L. states in her application J.K.S. had never provided to her with his financial information to properly determine child support.” I understand from her evidence at trial, M.M.L. first asked him for this information in the late spring of 2019.

[118]   A generous appreciation of the social context leads me to conclude M.M.L.’s reason for not pursuing child support sooner is “understandable” and therefore, not unreasonable.

[119]   In D.B.S., the Supreme Court purposely provided an expansive definition of “blameworthy conduct” to mean, “anything that privileges the payor parent’s own interests over [their] children’s right to an appropriate amount of support (D.B.S., para.106).

[120]   In Michel, at para. 34, the Supreme Court held that a payor’s failure to disclose actual income of which they have knowledge is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. In assessing blameworthiness, the primary focus is not on the payor’s intent, but on payor’s actions and their consequences. Martin J. states, at para. 118, “Today, the payor’s subjective intention is rarely relevant — the real question is whether the payor’s conduct had the effect  of privileging [their] interests over the child’s right to support” . . .

[121]   In Michel, the Supreme Court emphasizes at para. 119 that blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Blameworthy conduct, if present, weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award.

[122]   In the circumstances of this case, where the parties shared equal parenting time with their children and shared equally the cost of “extras”, I cannot say J.K.S. engaged in blameworthy conduct. I do not know whether M.M.L. and J.K.S.’ incomes were similar when they first separated, and if so, when they became so disparate. I do know that M.M.L. has been working at [omitted for publication] for 16 years and J.K.S. has worked for [omitted for publication] for seven or eight years and has been a foreman for the past six years.

[123]   I conclude J.K.S.’ conduct only became blameworthy when he refused M.M.L.’s request to revisit the issue of child support with the Family Justice Counsellor three months prior to filing her July 29, 2019 Application.

[124]   In Michel, at para. 120, Martin J., comments that the Guidelines “heralded a shift from the conception of need as the primary motivator for child support to an understanding of support as the child’s entitlement . . . ” Nevertheless, a child’s needs may still be relevant in awarding and calculating retroactive child support. Where the child has suffered deprivation or hardship or needs funds at the time of the hearing, this weighs in favour not only of an award but also of extending the temporal reach of the award.

[125]   The s. 211 report indicates both A.E.G.S. and A.J.O.S. suffer from ADHD. I Ms. Toews’ s. 211 report does not suggest A.E.G.S. and A.J.O.S.’s standard of living at M.M.L.’s residence is lower than their standard of living at J.K.S.’ residence. If anything, the converse is true, because of B.S.W.’s higher income and stable of recreational vehicles, A.E.G.S. and A.J.O.S. have outdoor recreation opportunities at their mother’s residence they do not have at their father’s residence. I suspect, however, the L. & S. Children’s living standard at their father’s residence is impacted by J.K.S.’ voluntary financial commitments to C.S. and her three children.

[126]   In Michel, at para. 123, Martin J. points out it is the recipient parent who absorbs the hardship created by the dearth of child support [citations omitted]:

[127]   The evidence before me indicates that if M.M.L. believes A.E.G.S. or A.J.O.S. are in need of an “extra”, she arranges it, procures it, and seeks reimbursement from J.K.S. for half the cost. Thus, M.M.L. and J.K.S. share equally the costs of raising A.E.G.S. and A.J.O.S., but M.M.L. must do so from an income which is 35% less than that which J.K.S. enjoys.

[128]   In my view if J.K.S. had paid M.M.L. the child support to which she was entitled, then she would have used those moneys for the A.E.G.S. and A.J.O.S.’s benefit.

[129]   In Michel, Martin J. discussed the hardship factor at para. 124 [citations omitted:

[130]   The Supreme Court went on to say at para. 125, that in claims for retroactive or historical support, the court can take into account the benefit to the payor of unpaid child support for the full-time in which it was unpaid:

[131]   The hardship caused to the child and the recipient parent from non-payment is a crucial part of the equation. If children have gone without the appropriate level of support it often means that the recipient parent has been forced to go into debt themselves or spend all their monies on the child: Michel, para. 126.

[132]   In this case, the parents have a shared parenting arrangement and they each support A.E.G.S. and A.J.O.S.’s day-to-day needs while in their care. They also share equally extra expenses as previously discussed. I do not have concrete evidence of the hardship J.K.S. might endure if this court made an award for retroactive support. I do not have concrete evidence of the hardship M.M.L. suffered as a result of not receiving child support for the past four years. I assume, however, she did make sacrifices as a result of the lack of support for A.E.G.S. and A.J.O.S. I recognize a retroactive award may require J.K.S. to seek a greater financial contribution from C.S. to their household expenses. I have also concluded that requiring J.K.S. to pay child support on a simple application of the set-off formula based on his 2019 income would likely exacerbate what is already a disparity in M.M.L.’s favour in the L. & S. Children’s standards of living in the two homes.

[133]   In D.B.S., the Supreme Court held that where ordered, an award should generally be retroactive to the date when effective notice was given to the payor. This his date represents a compromise between the date of the recipient’s application for child support and the date the amount of child support ought to have increased: Michel, paras. 118 and 121. An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given. Martin J. states at para. 128:

[134]   In Michel, Supreme Court also revisited its decision in D.B.S. which “established a soft limit or rough guideline of three years’ recovery: para. 127. The Supreme Court addressed (at para. 129) the “inequality of information” inherent in these types of cases. Typically, the payor has the knowledge required to determine when a reduction of support should be sought, but that the recipient does not have the knowledge required to determine when an increase of support should be sought. The Court states:

[135]   Effective notice is any indication by the recipient that child support should be paid, or if it already is, that the current amount needs to be renegotiated. As Martin J. states in Michel, “Effective notice is a broad concept which goes well beyond actual knowledge of a filed variation application. All that is required is for the subject to be broached, once that has been done, the payor can no longer assume that the status quo is fair”: D.B.S., para. 121.

[136]   It bears reiteration that M.M.L. and J.K.S.’ share equal parenting time with A.E.G.S. and A.J.O.S. as well the costs of “extras”. J.K.S. has been self-represented throughout these proceedings. I cannot say he ought to embarked on the multifaceted analysis under s. 9 of the Guidelines to determine whether child support was payable and if so, in what amount. This section requires comprehensive disclosure by both parents to calculate the set-off table amount, the increased costs of shared custody arrangements; and the conditions, means, needs and other circumstances of J.K.S., M.M.L., A.E.G.S. and A.J.O.S.

[137]   I have considered the entire situation in deciding whether to award M.M.L. retroactive child support. This includes why she waited to ask for the support, the behaviour of J.K.S., the parent who was supposed to pay, A.E.G.S. and A.J.O.S.’s circumstances, and whether it would cause J.K.S. hardship. I have concluded J.K.S. ought to pay retroactive child support from May 1, 2019, the day he had effective notice that M.M.L. wished to review the existing child support arrangement.

[138]   In K.A.M.R. v. W.H.G., 2014 BCSC 103 at para. 18, Mr. Justice Punnett said that retroactive child support “should be based on the retroactive year’s claimed incomes”. J.K.S.’ Line 150 Income in 2019 is $88,599. He has not provided evidence of his 2020 income, so I have no choice but to impute it to be the same as his 2019 income. M.M.L.’s income was $56,776 in 2019 and $59,338 in 2020.

[139]   Accordingly, I find M.M.L. is entitled to a retroactive award of child support in the amount of $400 per month from May 1, 2019 to and including February 28, 2021, a total of 22 months.

[140]   J.K.S. is a resident of British Columbia with an annual Guideline income of (a) $77,756 in 2016; (b) $78,191 in 2017; (c) $71,246 in 2018; (d) $88,599 in 2019; and (e) an imputed Guideline income of $88,599 in 2020.

[141]   M.M.L. is a resident of British Columbia, with an annual Guideline income of (a) $50,454 in 2016; (b) $47,002 in 2017; (c) $48,565 in 2018; (d) $56,776 in 2019; and (e) $59,338 in 2020.

[142]   J.K.S. will pay to M.M.L. the sum of $400 per month for ongoing child support for A.E.G.S. and A.J.O.S. commencing March 1, 2021, and continuing on the first day of each and every month thereafter so long as A.E.G.S. and A.J.O.S. are eligible for support under the Family Law Act or by further Court order.

[143]   M.M.L. is entitled to retroactive child support for A.E.G.S. and A.J.O.S. in the amount of $400 per month commencing May 1, 2019, and continuing on the first day of each every month thereafter to and including February 1, 2021.

[144]   J.K.S. is in arrears of child support as of February 2, 2021, in the amount of $8,800 (22 months x $400 = $8,800). There are no statutory interest or default fees accrued payable.

[145]   In addition to regular monthly support payments, J.K.S. will pay to M.M.L. a minimum of $150 per month toward the arrears of child support commencing April 1, 2021, and continuing on the 1^st day of each month thereafter until the arrears are paid in full or until further Court order.

[146]   Commencing March 1, 2021, M.M.L. and J.K.S. will share equally A.E.G.S. and A.J.O.S.’s special or extraordinary expenses as those terms are defined in the Guidelines.

[147]   For as long as A.E.G.S. and A.J.O.S. are 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.

[148]   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 child support payable. Any agreement to change the support payable will be set out in a Consent Order and filed with the Court in accordance with Provincial Court (Family) Rules.

[149]    Either M.M.L. or J.K.S. can seek to vary this Order upon reasonable notice to the other and upon providing the Court and the other party with the following documentation and information:

[150]   If either M.M.L. or J.K.S. receives an application to vary this Order, the responding party must file in addition to a Reply:

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

[152]   Mr. Parker, legal counsel for M.M.L. will draft the order and the requirement to obtain J.K.S.’ signature approving the form of this Order is not required.