IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         J.L.L. and J.G.M. are the biological parents of two children, M.R.M. age 11 and R.J.M. age 10. They separated in early 2015 after a six-year relationship. Initially, J.L.L. and J.G.M. lived in Prince George and shared equal parenting time with their two children. On August 1, 2018, J.G.M. moved to Saskatchewan, after which M.R.M. and R.J.M. were primarily in the care of J.L.L. and J.G.M. had parenting time with them during the spring, summer and winter school breaks. On December 1, 2020, M.R.M. and R.J.M. began living primarily with J.G.M. and J.L.L. now has parenting time with them during the spring, summer and winter school breaks.

[2]         In order to transition M.R.M. and R.J.M. between the two households, J.L.L. picks up M.R.M. and R.J.M. in Saskatchewan and transports them to Prince George. When it is time for them to return to their father’s care, J.G.M. picks up the children in Prince George and transports them back to Saskatchewan. J.L.L. takes no issue with paying ongoing child support to J.G.M. based on her Guideline income; however, she seeks to offset the cost of transitioning the children from Saskatchewan to Prince George from her support payment. J.L.L. relies on s. 10(1)(b) of the Federal Child Support Guidelines which defines hardship to include unusually high expenses in relation to exercising access.

[3]         This matter came before me for a two-day trial commencing June 17, 2021, with respect to issues of parenting time, parenting responsibilities and child support, both prospective and retrospective. Due to lack of court time, the trial did not commence until June 18, 2021. J.L.L. attended trial in person and represented by Mr. J. Murphy. J.G.M. attended the trial remotely and represented by Mr. D. Lyons, who attended in person. In the course of the trial, J.L.L. and J.G.M. resolved many of their outstanding issues. These will be dealt with in a consent order. The contentious issue the court must still adjudicate is whether J.G.M. ought to compensate J.L.L. for the expense of transitioning M.R.M. and R.J.M. from Saskatchewan to Prince George in order for her to exercise parenting time.

[4]         At trial, I heard the oral testimony of J.L.L. and J.G.M. I reviewed and considered the documents filed and recorded in the Court Electronic Information System (“CEIS”) since the inception of these proceedings on June 7, 2016. The Court also received into evidence the following exhibits:

[5]         At the conclusion of the trial, I reserved my decision. These are my reasons for judgment.

[6]         J.L.L. (“J.L.L.”) was born on [omitted for publication], and is now is 35-years-old. J.G.M. (“J.G.M.”) was born on [omitted for publication], and is now 41.

[7]         J.L.L. and J.G.M. commenced an intimate relationship in 2009. Both parties have children from prior relationships. J.L.L. is the biological mother of D.L.M., born [omitted for publication], who is now 17 years old, and M.A.M., born [omitted for publication], who is 16. I understand from J.L.L.’s March 15, 2021 affidavit that D.L.M. and M.A.M. are in the primary care of their father J.M.

[8]         J.G.M. also has a child from a prior relationship with N.D. His daughter of that relationship, S.D., is now 15-years-old.

[9]         J.L.L. and J.G.M. are the biological parents of M.R.M., born [omitted for publication] 2009 (“M.R.M.”), and R.J.M. J.G.M., born [omitted for publication], 2011 (“R.J.M.” and together with M.R.M., “the children”).

[10]      J.L.L. and J.G.M. separated in 2015, when J.L.L. moved out of the family home: CEIS 3. J.L.L. says this occurred in February 2015 because her emotional needs were not being fulfilled: CEIS 3. J.G.M. says it occurred on April 1, 2015, when J.L.L. started a new relationship with D.G.: CEIS 38.

[11]      Both before and after their separation, J.L.L. and J.G.M. resided in Prince George, BC. At the time of their separation, J.L.L. and J.G.M. resided in the family residence at [omitted for publication] Street, Prince George, BC, which they had purchased in 2013: CEIS 3, para. 8. J.G.M. remained in the [omitted for publication] Street residence until he sold it in 2017 to pay off family debts: CEIS 38.

[12]      Before, during and after his cohabitation with J.L.L., J.G.M. worked as a lube technician for a [omitted for publication] franchise. J.L.L. says that when she commenced her relationship with him in 2009, J.G.M. earned $44,160 per year. At the time of their separation in 2015, J.G.M. was earning $120,000 per year: CEIS 3.

[13]      J.L.L. worked at various jobs over the years. Prior to commencing her relationship with J.G.M., J.L.L. worked for [omitted for publication] plant in Prince George. This ended when the plant burned to the ground in May 2008. In the past two or three years, J.L.L. has worked as an operations’ manager and aircraft refueller for [omitted for publication] and [omitted for publication]. She now works for [omitted for publication].

[14]      By the time J.G.M. and J.L.L. separated in 2015, they had accrued significant debt in order to purchase the [omitted for publication] Street residence, two pickup trucks and a snow machine. J.G.M. says that when J.L.L. left the relationship, he became solely responsible for servicing these debts. He was also solely responsible for paying their ongoing cellular phone bills, motor vehicle insurance, household and other family expenses: CEIS 38.

[15]      Although they had been separated for almost a year, in January 2016, J.G.M. co-signed a $59,000 loan so J.L.L. could obtain a new F-150 pickup truck. A year later it was repossessed because J.L.L. defaulted on the payments: CEIS 37, 38. J.G.M. was particularly incensed that J.L.L. used a $20,000 inheritance to purchase a motorcycle and allowed the F-150 to be repossessed thereby impairing his credit rating: CEIS 37.

[16]      Post-separation, J.L.L. and J.G.M. had many different incarnations of parenting arrangements. At various times M.R.M. and R.J.M. resided primarily with J.G.M., at others, with J.L.L., and sometimes equally with both parents.

[17]      J.L.L. initiated these proceedings with an Application to Obtain an Order filed in the Prince George Registry on July 7, 2016, seeking joint guardianship, parenting time, allocation of parental responsibilities, child support, spousal support and a protection order: CEIS 1, 2. She filed a Notice of Motion and supporting affidavit on July 7, 2016, seeking interim relief: CEIS 6, 3. J.G.M. filed his Reply and Counter Claim on August 18, 2016. He agreed with J.L.L.’s application for sharing joint guardianship, parenting time, allocation of parental responsibilities and child support, but disagreed with her application with respect to spousal support: CEIS 12.

[18]      In 2016, J.G.M. repartnered with his current spouse J.S.  J.L.L. did not approve of J.G.M.’s new spouse and J.G.M. and J.L.L.’s post-separation relationship unravelled: CEIS 37, 38. To date, there have been 111 documents filed with the Prince George Court Registry in these proceedings (excluding exhibits at trial), 38 court appearances and 17 court orders (excluding those made today). I have reviewed all of the documents and have referenced below those which pertain to the matters before me.

[19]      Over the past five years, the parties have filed eight Form 4 Financial Statements (“Financial Statements”) attaching copies of their T1 Income Tax and Benefit Returns (“Tax Returns”), Canada Revenue Service Notices of Assessments (“NOA”), and statements of earnings or benefits.

[20]      In her first Financial Statements filed August 4, 2016, J.L.L. attached copies of her NOAs from 2007 to 2015. These NOAs indicate she had lengthy periods of unemployment where her only source of income was government benefits: CEIS 10. From 2009 to 2015, she was a “stay at home mother” dependent on J.G.M. and government child-related benefits: CEIS 9. In her July 14 and August 4, 2016 affidavits, J.L.L. states that in the year preceding her separation from J.G.M., she worked for [omitted for publication] in Prince George, BC, from March 2015 until June 2015, earning $13 per hour: CEIS 3. On November 23, 2015, J.L.L. secured two jobs, one at [omitted for publication] and the other at [omitted for publication]. J.L.L.’s employment with [omitted for publication] ended after two months; however, her employment as a Youth Support Worker for [omitted for publication] persisted: CEIS 9.

[21]      In her Financial Statements filed July 14, 2016 and August 4, 2016, J.L.L. declared a Guideline income of $37,356.80 from her employment at [omitted for publication]: CEIS 4, 10. She estimated incurring expenses of $61,438.26 per year. Her assets included a Ford F-150 pickup with a market value of $37,000 securing a $45,000 loan, and a 2004 snow machine worth $11,500. She declared debts totalling $3,600.

[22]      On September 13, 2016, J.L.L. filed an Application to Obtain an Order, a Notice of Motion and a supporting affidavit seeking an ex parte protection order prohibiting J.G.M. and J.S. from having unsupervised parenting time or contact with M.R.M. and R.J.M.: CEIS 15, 16, 17, 18 and 19.

[23]      In his Financial Statement filed November 23, 2016, J.G.M. declared a Guideline income of $107,314 from his job with [omitted for publication]: CEIS 22, p. 3. J.G.M. attached: (a) 2012 NOA indicating a Guideline income of $98,808; (b) 2013 NOA indicating a Guideline income of $147,771; (c) 2014 NOA indicating a Guideline income of $111,370; (d) 2015 Tax Return indicating a Guideline income of $107,314. J.G.M. declared annual expenses of $112,333.89. His assets included: (a) the family home at [omitted for publication] Street, Prince George, BC., having a market value of $273,000 against which there was registered a mortgage of $196,000; (b) a 2015 Ford F-350 with a market value of $50,000 securing a $87,000 loan; (c) a 2015 Polaris snow machine with a market value of $7,500 securing a $15,000 loan. In addition to the secured debts, J.G.M. had a $5,100 credit-card debt and a $20,000 bank loan.

[24]      On November 24, 2016, the parties entered into a final consent order before the Regional Administrative Judge Brecknell, agreeing to a shared parenting arrangement for M.R.M. and R.J.M.: CEIS 25.

[25]      Between February 1, 2017 and March 15, 2017, J.G.M. and J.L.L. filed four Notices of Motion, each seeking an interim order for primary care of M.R.M. and R.J.M.: CEIS 23, 24, 26, 28, and 29.

[26]      On November 20, 2017, the parties appeared before Judge Gray and entered into an interim consent order, which included the following financial terms: (a) J.L.L. had a gross annual income of $32,311; (b) J.G.M. had a gross annual income of $99,584; (c) J.G.M. would pay J.L.L. $975 per month for child support for M.R.M. and R.J.M. commencing December 17, 2017; (d) J.G.M. and J.L.L. would share the cost of extraordinary expenses proportional to their income; and (e) J.G.M. would maintain the children on his medical and dental coverage: CEIS 33.

[27]      On May 11, 2018, J.G.M. filed a new Application to Obtain an Order, a Notice of Motion and supporting affidavits seeking a protection order and primary parenting time with M.R.M. and R.J.M.: CEIS 38, 39, 42, 43, 44 and 45. On May 15, 2018, J.L.L. filed a reply, opposing the orders sought: CEIS 46.

[28]      In early 2018, J.L.L. sustained a workplace injury and received WorkSafe BC benefits between January 6, 2018, and November 25, 2018: CEIS 52.

[29]      On or about August 1, 2018, J.G.M. moved to [omitted for publication], Saskatchewan, to manage the [omitted for publication] franchise in Moose Jaw. (omitted for publication). T.W., on behalf of [the business owner], confirms that because this franchise was much smaller than the Prince George operation, J.G.M.’s salary was reduced to $80,000: CEIS 53, 69, 72. J.G.M. stated in his affidavit filed November 19, 2019, he was not aware of the drastic reduction in his salary prior to relocating to Saskatchewan: CEIS 77. It was not until November 2018, T.W. notified him of his decreased pay.

[30]      With J.G.M.’s move to Saskatchewan, the parties’ shared parenting-time arrangement with M.R.M. and R.J.M. came to an end.

[31]      On September 26, 2018, the parties appeared before Judge Gray, who suspended RAJ Brecknell’s November 24, 2016 order on the basis that J.G.M. was now residing in Saskatchewan: CEIS 57. The court ordered on an interim without prejudice the following:

[32]      After his relocation to Saskatchewan, J.G.M. repeatedly sought the court’s assistant to obtain parenting-time orders for M.R.M. and R.J.M.: CEIS 54, 55, 56.

[33]      On November 27, 2018, the parties attended before Judge Gray, at which time the court ordered after a hearing [CEIS 58]:

[34]      On March 8, 2019, [the business owner] suspended without notice all its employees working in the Moose Jaw [omitted for publication] franchise. It subsequently sold the franchise to T.M. The new owner offered J.G.M. the position of manager of business operations for a bi-weekly salary of $2,140: CEIS 69, 72. This effectively reduced J.G.M.’s salary to $55,640 ($2,140 x 26 weeks = $55,640).

[35]      On July 26, 2019, J.G.M. filed an Application Respecting Existing Orders or Agreements seeking to terminate Judge Gray’s November 27, 2018 order and giving J.G.M. primary care of M.R.M. and R.J.M.: CEIS 60, 61 and 62. Also on July 26, 2019, J.G.M. filed an Application Respecting Existing Orders or Agreements to recalculate his child-support obligation given his new employment and salary: CEIS 62.

[36]      On August 22, 2019, J.L.L. filed a reply and affidavit opposing J.G.M.’s July 26, 2019 application: CEIS 66, 67. She also counterclaimed for ongoing and retroactive child support for M.R.M. and R.J.M.

[37]      On September 5, 2019, J.G.M. filed a Financial Statement declaring a Guideline income of $51,360 and expenses of $56,722 (net of compulsory deductions): CEIS 69 and 71. J.G.M. indicates his support obligations to N.D. for his daughter S.D. totalled $5,400 per year. On Schedule 2, J.G.M. pleads hardship arising from expenses incurred in commuting from his home in Saskatchewan to Prince George. He says it cost him $850 for fuel per one-way trip and four days of missed work. J.G.M. also says he incurred $2,000 in expenses for clothes and beds for the children. He acknowledged J.S. earned $30,720 per year.

[38]      J.G.M. attached to his Financial Statement filed September 5, 2019, statements of earnings from his Moose Jaw employers. J.G.M. states his only asset was a 2015 F-350 pickup, with a market value of $45,000 securing a $63,000 loan. He claims he owed $20,723.78 as a result of his consolidation of debts accrued pre-separation and for legal fees.

[39]      On October 28, 2019, J.G.M. filed an Application to Obtain an Order for child support for M.R.M. and R.J.M. retroactive to April 1, 2015: CEIS 74, 75. He claims that between April 1, 2015 and November 24, 2016, he was the children’s primary caregiver. During that period he received no child support from J.L.L. and was burdened with all of the family debt and expenses: CEIS 74, 75.

[40]      On October 29, 2019, the parties attended for a Family Case Conference before Judge Malfair: CEIS 76. At that court appearance, Judge Malfair ordered on an interim without prejudice basis:

[41]      On November 19, 2019, J.G.M. filed a lengthy affidavit in support of his application for primary care of M.R.M. and R.J.M.: CEIS 77, 78.

[42]      On December 5, 2019, J.L.L. filed a Financial Statement declaring a Guideline income of $35,826.40: CEIS 82. She also indicates she received child support for M.R.M. and R.J.M. in the amount of $18,192.72 and incurred $65,805.28 in expenses. At that time she worked for [omitted for publication], with a temporary assignment for the [omitted for publication]: CEIS 82. J.L.L. declared her only asset to be a 2012 Dodge Dart, against which was owing $12,000.

[43]      On December 10, 2019, J.G.M. and J.L.L. attended before Judge Gray, at which time he ordered [CEIS 85]:

[44]      On February 12, 2020, J.L.L. filed an affidavit in response to J.G.M.’s November 19, 2019 affidavits: CEIS 84.

[45]      On July 20, 2020, J.L.L. filed a Financial Statement indicating that in 2019, she worked as an aircraft refueller for [omitted for publication], earning $49,125 per year: CEIS 87. Her estimated annual expenses totalled $68,428. J.L.L. attached to her Financial Statement a 2020 NOA indicating a Guideline income of $49,125. Her only asset was a 2019 Dodge Ram, with a market value of $60,000 securing a $52,000 loan.

[46]      On July 23, 2020, J.G.M. filed: (a) an Application to Obtain an Order seeking retroactive child support and a protection order: CEIS 88, 91; (b) a supporting affidavit: CEIS 90. On September 18, 2020, J.L.L. filed a reply disagreeing with J.G.M.’s application for child support and retroactive child support and counterclaimed for child support retroactive to January 1, 2019: CEIS 97.

[47]      On July 1, 2020, J.G.M. and J.S. moved from [omitted for publication] to Saskatoon, Saskatchewan: CEIS 89.

[48]      On September 20, 2020, Nancy Callan, Family Justice Counsellor, filed her “Views of the Child Report” under s. 211 of the Family Law Act. Both M.R.M. and R.J.M. expressed a desire to reside with their father in Saskatoon: CEIS 94.

[49]      On October 10, 2020, J.G.M. filed: (a) an Application to Obtain a Protection Order against J.L.L. on behalf of M.R.M. and R.J.M.: CEIS 98; (b) a Notice of Motion returnable November 5, 2020; and (c) a supporting affidavit: CEIS 99, 100, 104.

[50]      On November 2, 2020, J.L.L. filed: (a) a reply disagreeing with J.G.M.’s October 10, 2020 application, and (b) a responding affidavit: CEIS 102.

[51]      On November 27, 2020, J.L.L. and J.G.M. entered into an interim consent order before RAJ Brecknell, which included the following terms [CEIS 105]:

[52]      On February 11, 2021, J.L.L. filed a Financial Statement in which she declared her Guideline income from her employment as an operations’ manager for [omitted for publication] to be $60,000. She estimated expenses of $62,751.66. Her assets included a 2019 Dodge Ram, with a market value of $40,000 securing a $47,945.43 loan: CEIS 107. She attached to the Financial Statement her: (a) 2017 NOA indicating total annual income of $35,209; (b) 2018 NOA indicating a total annual income of $30,542; (c) 2019 NOA indicating a total annual income of $49,125. On Schedule 2 (page 9) of Financial Statement, J.L.L. indicates she incurs: (a) expenses of $3,000 in order to travel to Saskatchewan to exercise parenting time; (b) $500 in child support for D.L.M.; and (c) $500 in child support for M.A.M.

[53]      On March 15, 2021, J.L.L. filed an affidavit in which she states on February 23, 2021, she began a new job with Carrier Lumber earning $31.55 per hour, or $60,000 per year: CEIS 108. J.L.L. attaches as Exhibit “B” to her affidavit a 2020 NOA indicating she had an annual Guideline income of $46,623. J.L.L. also sets out the facts supporting her claim of undue hardship:

[54]      The evidence contained in the court file and tendered at trial indicates:

[55]      The parties agree:

[56]      The parties do not agree who should bear the expense of transitioning M.R.M. and R.J.M. from Saskatoon to Prince George in order for J.L.L. to exercise her parenting time. J.G.M. does not agree to meeting J.L.L. at some halfway point to transition the children between households.

[57]      J.L.L. is not asking for an ongoing reduction in her monthly child-support obligations; rather, she seeks an order requiring J.G.M. to reimburse her costs of transporting the children to Prince George from Saskatoon in order to exercise her parenting time.

[58]      The parties agree the driving time between Prince George and Saskatoon is approximately 13 hours. According to Google Maps, the distance between these two cities is 1,255 kilometres. I gather the 13 hours is premised on nonstop driving time. I imagine few people would drive nonstop for 13 hours. J.G.M. says it takes him 15-to-16 hours to drive from Saskatoon to Prince George. His ability to drive this distance without spending the night in a hotel along the way depends on a number of factors including: (a) whether he is alone or has the children on board; (b) his own physical condition (a degenerative shoulder condition); (c) the season and road conditions. When he is in Prince George, J.G.M. is sometimes able to stay with family or friends. When he returns with the children, he has to overnight in a hotel along the way.

[59]      J.L.L. says that because of the debilitating impact of multiple sclerosis, it will take her four days to transition the children from Saskatoon to Prince George. Her symptoms of multiple sclerosis include brain fog, fatigue, weakness, muscle cramps and numbness. She has to take a break from driving at least once per hour and cannot drive more than six hours per day. J.L.L. estimates her transportation costs to and from Saskatoon will total $1,480 per trip, allocated as follows: (a) $600 for three nights of hotel rooms; (b) $520 for fuel; and (c) $360 for meals. In addition to those expenses, she will also incur an unspecified expense for boarding her animals and suffer the loss of two-to-four days in wages. J.L.L. has not quantified that loss for the court, however, it is easily calculated. As set out in her March 15, 2021 affidavit, J.L.L. earns $31.35 per hour working eight hours per day. If she was absent four days from work, her wage loss would be $1,003.20 ($31.35 per hour x 8 hours x 4 days = $1,003.20). If she was absent for two days, it would be half that amount ($501.60).

[60]      J.G.M. opposes J.L.L.’s application on the basis that he has already agreed to transport the children from Prince George to Saskatchewan at the end of J.L.L.’s parenting time. He submits that both parties should bear their own costs for transitioning the children between households. J.G.M. submits J.L.L. has embellished her costs of the trip to pick up the children.

[61]      Because the children are under 12, they cannot fly on their own. The airlines do provide an attendant service for unaccompanied minors, providing the flight is nonstop. J.L.L. says there are no nonstop flights between Prince George and Saskatoon. M.R.M. will turn 12 on November 1, 2021; R.J.M. will turn 12 on March 23, 2023. It seems that for the next two years or so, motor vehicle transport is the best option for transitioning the children between households.

[62]      I accept that for J.L.L., travelling to Saskatoon to pick up the children and transporting them to Prince George is a four-day trip. I accept that for J.G.M., travelling to Prince George to pick up the children and return them to Saskatoon is a three-day trip. J.G.M.’s accommodation expense includes one or two nights’ stay in a hotel and J.L.L.’s includes three nights in a hotel. The parties’ costs for fuel, food and incidentals would be roughly equal. Both parties would have to take time off work if they travelled outside of their paid holidays or regular days off. In sum, I accept J.L.L.’s expense for transitioning the children from Saskatoon to Prince George is slightly more than J.G.M.’s expense for transitioning the children from Prince George back to Saskatoon.

[63]      Asking the court to order the custodial parent to reimburse the non-custodial parent for access costs is akin to seeking a reduction in child support. The court typically deals with applications for attribution of access costs under s. 10 of the Child Support Guidelines: Greene v. Greene, 2010 BCCA 595; Kelly v. Kelly, 2011 BCCA 173; L.C.T. v. R.K., 2017 BCCA 64 (CanLII).

[64]      Section 10(1) of the Guidelines permits the court to reduce the amount of child support where the payor spouse would otherwise suffer undue hardship. Section 10(2) sets out a non-exhaustive list of circumstances which may give rise to a finding of undue hardship. It states:

[65]      Section 10(3) states:

[66]      In considering the application before me, I am mindful of the objectives of the Guidelines set out in s. 1:

[67]      In light of these objectives, s. 10 of the Guidelines is a high threshold to meet. Mere economic difficulty in meeting the burden does not suffice. The hardship must be severe, extreme, improper, unreasonable, or unjustified. If J.L.L. satisfies this heavy burden, she must then demonstrate her household will have a lower standard of living than J.G.M.’s home unless the amount of support is reduced.

[68]      Mr. Murphy, J.L.L.’s legal counsel, provided the court with three case authorities: (a) Petrocco v. von Michalofski, 1998 CanLII 29659 (ON SC), 36 R.F.L. (4th) 278 (Ont. Gen. Div.), appeal dismissed (1998), 43 R.F.L. (4^th) 372 (Ont. Div. Ct.) (b); Dixon v. Fleming, 2000 CanLll 22575 (ONSC); and (c) S.V.R. v. I.H., 2006 BCPC 233 (CanLII). Although persuasive, Petrocco and Dixon are binding on this court. Petrocco predates by over a decade decisions of the B.C. Court of Appeal, which are binding upon me. I am bound by the principles of judicial comity to consider Judge Brecknell’s judgment in S.V.R. as it is a decision of this Court: Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC).   

[69]      In Petrocco, the custodial father sought Guideline child support from the non-custodial mother. She earned $40,000 per year and he earned $300,000. Métivier J. for the Ontario Court of Justice held that undue hardship could be found in the fact that the mother expended unusually high access costs in attempting to offer the children a reasonable level of activity and comforts on their access visits that was comparable to that enjoyed in the luxury of their primary residence. Justice Métivier recognized the statutorily defined circumstances of hardship set out in s. 10(2) of the Guidelines are not exhaustive. She acknowledged that a significant discrepancy in household incomes does not in and of itself necessarily constitute a hardship to the person with the lower household income, but went on to say at para. 19:

[70]      Petrocco was relied upon by Justice Heeney in Dixon, wherein an impecunious disabled father of two was asked to pay child support to a mother who significantly out earned him. He received a disability pension of $876 per month. The mother had gross annual earnings of $58,814 and a total family income of approximately $84,000. The father’s one indulgence was to spend $500 at Christmas on presents for his children. His Guideline child-support payments were $133 per month. Justice Heeney ordered Mr. Dixon to pay child support in the amount of $20 month. He states:

[71]      S.V.R. is a 2006 decision of Judge Brecknell of the BC Provincial Court. In that case the mother, who had primary care of the parties’ only child, lived in Ontario, and the father, in Vanderhoof. The father had an annual Guideline Income of $67,800 and a child-support obligation of $553 per month. He claimed it cost him $2,800 in airfare to facilitate his son’s access visit. Because his son suffered from type 1 diabetes, I.H. had to travel to Toronto and accompany the child on the journey. I.H. was the sole supporter of his disabled wife and stepdaughter. Judge Brecknell commented that I.H.’s claim of undue hardship under section 10(2)(b) was an attempt to shift all of his access costs on to S.V.R. Judge Brecknell concluded I.H.’s expense for travelling to Ontario three times in one year to visit his child or to bring the child to British Columbia for a visit was “not exceptional, excessive or disproportionate in light of his income or the other expenses he incurs for his present family.” Having dismissed I.H.’s claim of undue hardship under ss. 10(2)(b), (d) and (e), Judge Brecknell concluded (at para. 61) there was no need to enter into the standard of living calculation provided in Schedule II of the Guidelines.

[72]      In S.V.R., Judge Brecknell relied on the BC Court of Appeal case of Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51, which has since been followed in Kelly v. Kelly, 2011 BCCA 173, and L.C.T. v. R.K., 2017 BCCA 64 (CanLII). 

[73]      In Kelly, the non-custodial parent sought an order reducing her child-support obligation of $447 per month pursuant to s. 10 of the Guidelines. She argued the debt she had incurred since separation and her access costs constituted undue hardship. The custodial father resided in the Lower Mainland and a non-custodial mother resided in Kamloops. In order to transition the children between households, each parent drove partway from their own residences to a transfer point. The custodial father travelled 688 km per access visit and the non-custodial mother travelled 718 km per access visit. As a result of the access schedule before the Court of Appeal, the access costs to the non-custodial parent were between $300 and $645 every five weeks. The Court of Appeal was not convinced this expense represented “unusually” high access costs and held the trial judge erred in finding otherwise. Justice Neilson, writing for the appellant court, states:

[74]      In L.C.T. v. R.K., the BC Court of Appeal held the trial judge erred in reducing the respondent child-support obligations because of his costs of exercising parenting time. The father was found to have an annual income of $50,000 CDN. He incurred $200 per month in expenses to travel from Washington to West Vancouver in order to exercise parenting time. The trial judge reduced the child support by $200 per month to compensate the father for his increased costs associated with exercising parenting time. Garson J.A. held that the trial judge erred in granting an undue hardship claim because he failed to adequately recognize the high threshold required for such a finding. The Court of Appeal increased the child support to the Guideline amount.

[75]      In Philibert v. Webber, 2011 BCSC 623 (CanLII), the BC Court of Appeal held that even where the payor parent’s net income after paying child support was $1,278/month and there were “access” costs of $350 incurred three or four times a year, that the hardship was not undue. Justice Wilson stated:

[76]      Effectively, J.L.L. wants J.G.M. to bear the full costs of transitioning the children to and from Prince George to Saskatoon. In her March15, 2021 affidavit, J.L.L. claims her expenses for transitioning the children between households is $3,000 per trip. At trial, she says her expenses total $1,480 per trip, which includes three nights of hotel accommodation. She did not explain the difference in these two estimates.

[77]      Although somewhat arbitrarily, I find J.L.L.’s costs of transitioning M.R.M. and R.J.M. between households is $1,480 per trip, or $4,440 per year: $1,480 x 3 = $4,440. I find J.G.M.’s costs are $1,000 per trip, or $3,000 per year.

[78]      J.L.L. began working as a labourer for Carrier Lumber on February 23, 2021, earning $60,000 per year. I understand she also earns some undeclared and untaxed sum from self-employment (“[omitted for publication]”). According to her February 11, 2021 Financial Statement, J.L.L. pays $11,230.18 in compulsory deductions ($7,203.04 income tax + 947.96 EI + $3,079.18 CPP = $11,230.18). This leaves her with $48,769.82 in after-tax income. From this sum J.L.L. must pay a total of $23,172 in child support for D.L.M., M.A.M., M.R.M. and R.J.M. ($11,172 to J.G.M. + $12,000 to J.M. = $23,172) leaving her with $25,597.82 or $2,133.15 per month.

[79]      In her February 11, 2021 Financial Statement, J.L.L. states her assets comprise: (a) her 2019 Dodge Ram pickup with a market value of $40,000 which secures a loan of $47,945.42; and (b) a 2009 Harley motorcycle she values at $4,900.

[80]      J.L.L. admits to no other debt other than the loan of $47,945.42 used to finance her vehicle. In her February 11, 2021 Financial Statement, J.L.L. estimates she incurs annual expenses of $62,751.66, exclusive of her child-support payments. She does not disclose any corresponding debt to indicate how it is she spends $85,923.66 ($62,751.66 + $23,172 child support = $85,923.66) from a gross annual income of $60,000.

[81]      J.L.L. bears the burden of proving the expense of transitioning the children between households three times or more per year would cause her undue hardship. In her oral testimony, J.L.L. did not explain why she could not rearrange her financial affairs to manage this expense. I do not accept her household expenses set out in her most recent Financial Statement are immutable.

[82]      I conclude that J.L.L. has not demonstrated to the court’s satisfaction paying her share of the costs associated with transitioning the children to Prince George from Saskatoon would cause her undue hardship. My decision in this regard may have been different if J.G.M. refused to transition the children from Prince George back to Saskatoon at his own expense.

[83]      If I am wrong and bearing the expense of transitioning the children from Saskatoon to Prince George will cause J.L.L. undue hardship, I will go on to consider the evidence before the court of the standard of living in the parties’ respective households.

[84]      Schedule II of the Guidelines sets out an optional test for conducting a standards-of-living comparison for the purposes of determining undue hardship. This test requires: (a) a calculation of the income of every member of the parties’ households; (b) adjustment to each person’s income according to the rules set out in the Guidelines; and (c) a calculation of the household income ratio.

[85]      The positive adjustments to payor’s Guideline income include:

[86]      The negative adjustments include deductions for:

[87]      In this case the exercise is difficult because of the dearth of evidence of J.L.L.’s and J.G.M.’s current standards of living.

[88]      A cursory review of the parties’ financial circumstances do not suggest a significant difference in the parties’ standard of living, taking into consideration the following circumstances:

[89]      I gather from her March 15, 2021 affidavit, J.L.L. now shares her residence at [omitted for publication] Road, Prince George, BC with her father. In her March 15, 2021 affidavit, J.L.L. suggests her father will not make any financial contribution to their household expenses. Absence corroboration, I do not accept J.L.L.’s father has no income whatsoever, be it from savings, pensions, disability insurance, or social assistance. Moreover, J.L.L. does not explain why she is solely responsible for her father’s financial support and this burden is not shared by other family members or the state.

[90]      The court was not provided with any information as to J.G.M.’s financial circumstances for 2021. From J.G.M.’s 2020 Tax Return, September 10, 2019 Financial Statement and oral evidence at trial, I gleaned the following:

[91]      As set out above, J.L.L.’s after-tax income is $48,769.82. Upon deducting her support obligations for her four children leaves J.L.L. with $25,597.82. From this sum she must pay $4,440 per year in child access expenses.

[92]      Applying the comparative household standards-of-living test in Schedule II:

[93]      After applying the low-income measures amount of $10,382 for J.L.L.’s household of one adult and $20,764 for J.G.M.’s household of two adults and two children, the parties’ respective income ratio is as follow:

[94]      As set out above, I was not satisfied it will cause J.L.L. undue hardship to pay for transitioning the children from Saskatoon to Prince George, given J.G.M. was paying for transitioning the children from Prince George back to Saskatoon. Despite the paucity of evidence, it does not appear that J.L.L. would not have a higher standard of living than J.G.M. if the court were to order J.G.M. to pay a portion of her expense of transitioning M.R.M. and R.J.M. between Saskatoon and Prince George. For this reason, I would permit the parties to review this issue in a year or so when their financial circumstances become clearer.

[95]      This court makes the following final orders by consent and after a trial:

[96]      The court is satisfied that J.L.L. and J.G.M. are the guardians of M.R.M., born [omitted for publication] 2009, and R.J.M., born [omitted for publication] 2011 (together the “Children”) under s. 39(1) of the Family Law Act;

[97]      Pursuant to s. 40(3)(a) of the Family Law Act, J.G.M. will solely have all of the parental responsibilities for the Children as set out in s. 41 of the Family Law Act;

[98]      J.G.M. and J.L.L. shall have the obligation to advise each other of any matters of a significant nature affecting the Children;

[99]      J.G.M. and J.L.L. shall consult each other about any important decisions that must be made about the Children and shall try to reach agreement concerning these important issues;

[100]   From January 1, 2018, to July 31, 2018, child support will be retroactively adjusted as follows:

[101]   From August 1, 2018, to December 31, 2018, child support will be retroactively adjusted as follows:

[102]   From January 1, 2019, until December 31, 2019, child support will be retroactively adjusted as follows:

[103]   From January 1, 2020, until November 30, 2020, child support will be retroactively adjusted as follows:

[104]   From December 1, 2020, until December 31, 2020, child support will be retroactively adjusted as follows:

[105]   From January 1, 2021, until February 28, 2021, child support will be retroactively adjusted as follows:

[106]   From March 1, 2021, and ongoing:

[107]   Commencing in 2022, for as long as the Children are eligible to receive child support, J.L.L. will provide to J.G.M.: (a) copies of her income tax returns for the previous year, including all attachments, not later than July 1 each year; and (b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency, immediately upon receipt;

[108]   J.G.M. will have all parenting time with M.R.M. and R.J.M. except as set out in this court order;

[109]   J.G.M. will ensure that his father G.M. is not in the presence of the children during his parenting time;

[110]   J.L.L. will have reasonable parenting time with the Children during: (a) the school spring break; (b) the school summer break; and (c) the school winter break, provided she gives notice of her intention to exercise such parenting time at least seven days in advance;

[111]   J.L.L.’s summer parenting time with M.R.M. and R.J.M. will commence at 3:00 p.m. on the last day of school and continue until August 31, preceding the children’s return to school;

[112]   J.L.L. will transition M.R.M. and R.J.M. for her parenting time from Saskatoon, Saskatchewan, to Prince George, British Columbia, at her own expense;

[113]   J.G.M. will transition M.R.M. and R.J.M. at the end of J.L.L.’s parenting time from Prince George, British Columbia, to Saskatoon, Saskatchewan, at his own expense; and

[114]   Either party is at liberty to apply to the court to review the allocation of transitioning costs after August 15, 2022, upon reasonable notice to the other.