IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         This case concerns child support for six-year-old L.P. Since March of 2022, the father, T.S.P, and the mother, J.R.S. have shared care of L.P., but Ms. S. was the primary caregiver prior to that date.

[2]         Mr. P. sought a change in child support and parenting arrangements in his application filed November 21, 2019. In her reply and counterclaim filed December 14, 2021, Ms. S. was seeking a change in child support based on financial disclosure.

[3]         The issues in this case are:

[4]         The parties lived in a marriage-like relationship since November of 2015. They have one child of the relationship, L.P., born [omitted for publication]. L.P. is now six years old. According to Ms. S., L.P. has behavioural issues, and there is some supporting documentation in that regard, although Mr. P. is skeptical.

[5]         Ms. S. alleges that the parties separated in November of 2017, whereas Mr. P. asserts they separated in February of 2018. I note that in Ms. S.’s own reply filed January 16, 2019, she asserts that the separation was on or around January 20, 2018, so I am considering the separation to be in February of 2018.

[6]         Pursuant to the Interim Consent Order granted December 21, 2018, unless Mr. P. was travelling to work for more than seven consecutive days, his parenting time was every other Wednesday to Sunday. During his seasonal employment, his usual parenting time was suspended and he had FaceTime visits. Based on a declared income of $50,000, Mr. P. was ordered to pay $500 per month in child support, commencing January 1, 2019. Several other orders were made, including conduct orders.

[7]         The December 21, 2018, child support order was made in open court but was interim and without prejudice. No financial disclosure was provided, and it was based on a declared income of $50,000. I listened to the digital audio recording, and although duty counsel indicated Mr. P. was suggesting an income of $50,000 per year, he was willing to pay a little more than the Federal Child Support Guideline amount based on $50,000. It turns out that Mr. P.’s line 150 income for 2018 was actually $73,361.

[8]         Mr. P. was ordered to provide financial disclosure as early as March 5, 2019.

[9]         On September 5, 2019, a consent order was made at a Family Case Conference regarding guardianship of L.P. An interim consent order was also made requiring Mr. P. to pay $700 per month in child support commencing October 1, 2019. No income was declared in the order.

[10]      From my review of the file, Mr. P. did not file a financial statement until November 14, 2019, and he wrote in an income of $73,361 based on his 2018 tax return. However, some information about Mr. P.’s income for 2016, 2017 and 2018 may have been exchanged between previous counsel prior to the September 5, 2019 order being made. This point may go to a diminishment of blameworthiness, but the fact remains that the order had no declared income and the child support may require retroactive adjustment, depending on the analysis below. I note that $73,361 in income does result in $700 per month in child support.

[11]      On March 16, 2020, a court order set Mr. P.’s child support arrears at $2,265, repayable at the rate of $200 per month commencing April 1, 2020. Those arrears were paid. Mr. P. filed a second financial statement on November 29, 2021 and a third one on May 10, 2022.

[12]      Mr. P. stopped paying child support altogether in October of 2021, a month in which he paid $100. Under the court order, he is in arrears $4,100.

[13]      On March 4, 2022, an interim and without prejudice order provided for shared parenting time on an alternating weekly schedule, commencing March 7, 2022. Child support was suspended and financial disclosure was ordered. It is clear that Ms. S. was L.P.’s primary caregiver until March 7, 2022, at which time the parties shared care of L.P. and Section 9 of the Federal Child Support Guidelines then applied.

[14]      Prior to L.P.’s birth, Ms. S. worked at [omitted for publication] as a hostess when she was 19, then at [omitted for publication], and then at [omitted for publication]. Ms. S. was dismissed from [omitted for publication] shortly before L.P. was born in [omitted for publication]. Her 2016 line 150 income was $27,115, of which $14,956 was employment income and $11,308 was employment insurance.

[15]      Ms. S. was initially dismissed from [omitted for publication], but she negotiated a severance package which allowed her to claim Employment Insurance maternity benefits. Mr. P. asserts Ms. S. was dismissed for stealing, and he worked seven days a week to make up for lost income. He submits that Ms. S. has the capability to be a store manager in charge of inventory and work schedules because that is what she did at [omitted for publication].

[16]      Following L.P.’s birth, Ms. S. tried selling essential oils, but this venture was unsuccessful. Ms. S. maintains that the failure was largely because of her childcare responsibilities, but Mr. P. asserts she was socializing too often.

[17]      In the summer of 2017, she worked briefly as a hostess at [omitted for publication]. She received tips, which she estimated at $25 to $50 per month. Due to childcare responsibilities, she could not schedule a lot of shifts. Her line 150 income in 2017 was $20,764, which was largely Employment Insurance (maternity). Mr. P. concedes that in 2016-2017, Ms. S. was either pregnant or caring for a baby, so her work opportunities were very limited.

[18]      In mid-June of 2018, Ms. S. began working at [omitted for publication], known as [omitted for publication]. She worked five to six hour shifts, due to the fact that she lived in Langley; L.P.’s daycare was in Surrey and [omitted for publication] was in Abbotsford. She testified she earned no tips other than small ones when hand delivering products, but her texts do refer to some cash received from [omitted for publication]. Mr. P. maintains that much of her income was cash under the table, and because of daycare, she could work 40 hours per week. Based on her tax return, she earned $18,043 in 2018.

[19]      Ms. S. then worked for a series of companies in a variety of capacities. She got a job at [omitted for publication] by being introduced to one of the business owners, D.H. She worked at [omitted for publication] for four to five months, and then that company was rebranded as a door sales business called [omitted for publication]. Her 2019 line 150 income was $27,881, and her 2020 income was $25,119.

[20]      Near the end of 2020, the door sales business transitioned into selling e-bikes under the business [omitted for publication] and then [omitted for publication]. During the restructuring period, Ms. S. was asked by D.H. to perform various tasks in February and March of 2021, and she claimed she was paid cash. An affidavit from D.H. suggests Ms. S. was not paid cash except for one reimbursement, but I place no weight on this affidavit as it was submitted after the evidence was concluded and there was no opportunity for cross-examination. Ms. S. earned a line 150 income of $29,166 in 2021 which included $3,299.94 in Income Assistance (housing subsidy), $19,272 employment income ([omitted for publication]), and $6,594.61 net self-employment income.

[21]      Ms. S.’s self-employment business income in 2021 came from gaming online through [omitted for publication]. She earned $14,359.77 gross, but that figure was reduced by subcontracts of $1,266 to $13,093.63. Her net income after expenses was only $6,594.61.

[22]      At present, Ms. S. works for [omitted for publication] six hours per day, five days per week, earning $24 per hour. She works these shifts starting at 9:15 am and ending at 3:30 pm, so she can drop L.P. off at school and later pick him up from daycare. The estimated employment income for Ms. S. for 2022 on that basis is $37,440.

[23]      Later in the day, she does online streaming of her video game. Her streaming income is paid to her by [omitted for publication] streaming service. On occasion, some viewers may gift her items from her Amazon wish list. She puts in about 180 hours per month streaming. Again, her net income from that business in 2021 was about $6,600.

[24]      Mr. P. feels Ms. S. can work a forty-hour week, as there is morning daycare at the school. He believes she can earn $50,000 per year based on $24 per hour, 40 hours per week. He also wonders how she can go to Disneyland and Toronto on her purported income.

[25]      In 2016, the year of L.P.’s birth, Mr. P. worked at [omitted for publication], [omitted for publication], and he sold water filtration systems online as self-employment. He claims he got the second job at [omitted for publication] when Ms. S. lost her job at [omitted for publication]. His line 150 income was $67,460.64 comprised of $65,018.14 in employment income and $2,442.50 in net self-employment income. He was often working seven days a week to make up for lost family income, after Ms. S. was dismissed from [omitted for publication].

[26]      From January to May of 2017, Mr. P, worked full time at [omitted for publication]. From May 4, 2017, onwards, he worked as a sales manager on the road with [omitted for publication], selling home security. His work took him on the road in Alberta and western Canada.

[27]      The summer sales season is from May to September, but Mr. P. asserts that the off-season from September onwards is critical for recruiting which leads to future earnings and a long-term incentive plan. In subsequent years, he trained recruits before the summer on-season as well as recruited after the summer. He says a [omitted for publication] sales manager is a year round job.

[28]      Without the off-season recruiting work, Mr. P. says he would never have received the long-term incentive plan income of $30,000 in 2020. Counsel for Ms. S. takes the position that Mr. P. was underemployed for the off-season period from September 4 to December 31, 2017.

[29]      In 2017, Mr. P. had employment income of $13,781.23, and he earned $56,316.18 in gross business income and a net of $45,407.58. His deductions included $6,739.80 in motor vehicle expense, which is questioned by mother’s counsel as it was claimed in relation to a 2011 Jaguar not actually used for employment.

[30]      The total 2017 line 150 income was $74,188, which also included a RRSP withdrawal of $15,000. Mr. P. says this RRSP income was a one-time withdrawal and should be excluded from his 2017 income. He says he used that RRSP money for family expenses, and the RRSP was contributed to prior to the relationship.

[31]      In 2018, Mr. P. worked in direct sales for [omitted for publication] in the on-season between April 1 and August 31, 2018. In the off-season, he went to four or five career fairs and he held an information booth for prospective recruits once per week.

[32]      In 2018, Mr. P. had $1,519.26 in employment income, $5,354.13 in another RRSP withdrawal, and $84,864.44 in gross business income with a net of $66,488.59. He says he cashed in the RRSP to build his sales force. His business expenses included a vehicle expense of $13,967.01 and meals and entertainment of $1,180.12. The total line 150 income was $73,361. Counsel for Ms. S. again questions the deductions and alleges underemployment for the first three months and the final four months of the year.

[33]      Mr. P. counters that 2018 was the year of separation and he was responsible for much of the family debt. He also alleges certain child support payments and RESP contributions, but that is largely irrelevant as I am only analyzing child support back to the December 2018 order, based on my comments below.

[34]      In 2019, Mr. P. again worked in direct sales with [omitted for publication] from April 1 to August 31. His gross business income was $97,782.39 with a net of $76,794.41 as shown on line 150. Again, he claimed deductions for meals and entertainment ($1,426.91), travel to Thailand ($951.45), utilities ($1,401.61), motor vehicle ($12,224.29), capital cost allowance ($1,670.13 relating to a new phone), and office expenses ($1,779.74). Counsel for Ms. S. again seeks to add back the business expenses for child support purposes and to impute income for the seven month off-season period.

[35]      Mr. P. incorporated [omitted for publication] at the end of 2019 as his sales force was projected to earn over $100,000 in 2020. Of course, the pandemic changed everything.

[36]      In 2020, the COVID-19 pandemic seriously affected the door-to-door sales business regarding home security. Mr. P. had to pivot to another country with a different business model. After some initial negotiations with another alarm company, Mr. P. was paid $30,000 in equity from [omitted for publication], and he secured visas for his sales team so the team could hopefully operate in the US for a period while door sales were still allowed. Unfortunately, the US no longer allowed visas due to COVID, and there was a shutdown. Mr. P. moved his sales team to Saskatchewan where Health Canada said knocking on doors was still permissible, but that too was shut down. Mr. P.’s sales team went on to look for other work, but when he went to North Dakota to knock on doors, that was shut down on entry. He then went to Indiana for three weeks before shutdown. Finally, for about two months he went to Texas for door-to-door sales before returning to Canada.

[37]      Mr. P. said sales were very slow in Canada and the US. People did not want you in their house during a pandemic and they were not spending money. The business model for alarm sales was changing, and Telus was entering the market in a big way.

[38]      Mr. P. did declare a line 150 income in 2020 of $74,296, comprising of $7,739.92 in US income, $12,000 CERB income, $60,950 dividend income from [omitted for publication] (from the $30,000 equity payout, residuals and a holdback), and a business loss of $6,393.52. The loss relates to a motor vehicle expense and capital cost allowance.

[39]      The 2020 corporate T2 return of [omitted for publication] revealed a gross revenue of $80,928 less expenses such as meals and entertainment ($1,765), rent ($2,400), and motor vehicle ($12,488). The net corporate income for 2020 was $60,308 and this appears to be paid out as part of a dividend. Counsel for Ms. S. seeks to reverse the expenses, both for the net business loss and those related to the company.

[40]      In 2021, the pandemic continued. [omitted for publication] sold off their accounts to a company that did not run a door-to-door program, and Telus bought out ADT which ultimately ended the door-to-door sales. Mr. Petitpas worked in direct sales for [omitted for publication] from April 1 to the end of July, and then switched to Telus. He worked for Telus very briefly, selling alarms, but that contract was pulled. After July of 2021, Mr. P. decided to get out of the alarm sales business, and he chose to go into glazing, which he had already started in the earlier off-season.

[41]      Mr. P. submits that sales jobs are not linear, and the door-to-door home security sales business was lucrative but niche. That industry collapsed. He can apply his sales experience to glazing. He hopes to open his own glazing business in the future.

[42]      In 2021, Mr. P. had $16,598.40 in employment income, $39,675 in dividends from [omitted for publication], and a gross business income of $6,685 with a net of $4,490. His line 150 income was $60,763, and he claimed utilities and motor vehicle expenses. On the 2021 corporate return for [omitted for publication], the total income was only $32,448 and the company claimed meals and entertainment, rent and motor vehicle expenses, for a net income of $20,063. Counsel for Ms. S. submits that Mr. P. was underemployed for the first three months of 2021, as well from August 1 onwards.

[43]      For 2022, Mr. P. projected that his glazing jobs would earn him between $45,000 and $50,000 in that year. He earned $25 per hour increasing to $26 per hour but did not always work a forty-hour week. His income will increase to $36 per hour after apprenticeship. He says he is earning more than his old full-time job with [omitted for publication], and he now has shared care of L.P.

[44]      Mr. P. filed a consumer proposal on September 17, 2021 which calls for payments of $500 per month for 60 months. Mr. P. testified that he owed over $70,000 in income tax, as he was covering family bills on separation.

[45]      Much of the law on a retroactive child support claim is set out in the seminal case of D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), [2006] S.C.J. No. 37. It is important to remember that child support is the right of the child not the parent.

[46]      The four factors to consider in determining retroactive child support are:

[47]      I should also point out that a retroactive order may be limited to three years from when effective notice of the application is given, unless there is blameworthy conduct or if there has been no unwarranted delay to make the application (see para. 125 of D.B.S.).

[48]      As to delay in seeking child support, Ms. S. filed a reply and counterclaim on December 14, 2021, seeking a change to the existing child support order based on Mr. P.’s financial statement. There really was no delay in seeking child support because she had sought child support earlier, and the first child support order of December 21, 2018, was made without financial disclosure and on a without prejudice basis. The $50,000 declared income for Mr. P. was too low.

[49]      The second child support order of September 5, 2019, may have been made with some disclosure between counsel, but it was interim without a declared income, and no financial statement had been filed. However, I again note that Mr. P.’s 2018 line 150 income of $73,361 produces exactly $700 per month in child support.

[50]      I cannot find Mr. P. guilty of blameworthy conduct. The September 5, 2019, order appears to be based on his 2018 line 150 income. He should have filed his financial statement earlier, but it appears there was some awareness of his 2018 income without taking into account imputation arguments. The December 21, 2018 order was based on $50,000 in income which was too low, but I note that the line 150 income from 2017 of $74,188 included a $15,000 RRSP withdrawal, so it could be argued the order was not obviously wrong. I realize there are again imputation arguments to be made and disclosure was not timely.

[51]      As to the child’s circumstances, Ms. S. was undoubtedly struggling when she was L.P.’s primary caregiver. Since 2016, her declared income was always below $30,000 and she even required housing subsidy in 2021. That said, Mr. P. was not awash in money, as demonstrated by the fact that he was required to make RRSP withdrawals in the recent past, his sales business could not cope with the pandemic, and he entered into a consumer proposal in 2021. I will consider undue hardship but also the child’s circumstances when calculating retroactive support.

[52]      In summary, there are reasons to consider a retroactive child support award, but I am going back no further than three years from Ms. S.’s reply filed in December of 2021. This means I will consider appropriate child support from the time of the first child support order in December of 2018 which sets out child support from January 2019 onwards. Mr. P. has not been guilty of the sort of blameworthy conduct such that earlier periods should be considered. He also alleged child support payments and support in kind in that earlier period.

[53]      I do agree that this trial is likely the first time the court embarked on a fulsome determination of Mr. P.’s income, in particular imputation of income arguments. I also agree that Mr. P. ought not to have stopped paying child support in October of 2021. He was required to pay until March of 2022.

[54]      Mr. P. should understand that even if his business tax deductions are legitimate for tax purposes, they may be added back in whole or part for the purposes of determining his Guideline Income. Section 19(2) of the Federal Child Support Guidelines states that the reasonableness of a tax deduction is not solely governed by whether the deduction is permitted under the Income Tax Act. Section 19(1)(g) allows the court to consider unreasonable expense deductions from income.

[55]      I have little doubt that the expenses claimed under both Mr. P.’s personal tax return and his company’s corporate return were legitimate tax deductions. Motor vehicle and meal expenses related to his sales work. He worked extensively on the road, travelling in Western Canada and elsewhere. His accountant prepared T2125 forms for the business vehicle expenses taking into account fuel, maintenance and eligible interest. Indeed, because there is accounting for eligible interest there, I scrutinize any capital cost allowance as outlined below.

[56]      I am not overly concerned that the motor vehicle expenses referenced the Jaguar when that vehicle was not always the one used for business. Mr. P. testified that he owned other vehicles, such as a minivan, which were for either personal or business use. Again, all his sales work was on the road in other provinces. Canada Revenue Agency has not reassessed or audited Mr. P. on these deductions.

[57]      However, some of these expenses also have a personal benefit. For example, Mr. P. had to eat regardless of his sales business, even though the cost would be higher on the road. I realize only a portion of meals is actually claimed as a business tax deduction. Later rent and utility claims are problematic because they relate to office expenses in the personal home, and [omitted for publication] provided a housing budget while Mr. P. was on the road.

[58]      As alluded to above, capital cost allowance is not necessarily fully deducted for child support purposes. In A. A. v. C.A., 2012 BCSC 1419, the court found that the capital cost allowance on a truck and computer artificially reduced income for child support purposes, as the payor required a personal truck and computer in any event. More importantly, I am concerned that capital cost allowance is often a notional expense rather than an actual expense incurred each year.

[59]      As well, I must be wary of deductions that may be duplicated in the personal and corporate returns.

[60]      However, overall, I agree with Mr. P. that it is not unreasonable to have business expenses which are just under 26% of the gross business income.

[61]      I am modestly adjusting Mr. P.’s income in relation to business tax deductions as follows:

[62]      I am also of the view that Ms. S.’s expenses for her gaming business in 2021 should be modestly adjusted. Her total business expenses totalled $7,794.61 ($7,194.61 plus $600) which were over half of her gross business income of $14,359.77. That is a high expense to profit ratio. Her office and competition expenses were explained. However, I note she claimed $698 in utilities when she had no office outside the home, and she claimed business use of home expenses of $600. At the very least, those two expenses totalling $1,298 should be added back to her 2021 income.

[63]      Section 19 of the Federal Child Support Guidelines allows the court to impute income to a spouse, for circumstances such as intentional underemployment, diversion of income, and dividends taxed at a lower rate.

[64]      Each parent here is alleging that the other parent should be imputed income above that shown on tax returns. Ms. S. asserts that Mr. P. was underemployed for various periods, and I note he has dividend income. Mr. P. submits that Ms. S. is currently underemployed and she earns cash not recorded.

[65]      Regarding Mr. P.’s 2017 declared income of $74,188, he did have an off-season with [omitted for publication] from September to the end of the year. However, I agree that his off-season recruiting and fair work was necessary to gain the benefit of future long-term incentives and residuals, such as the $30,000 in 2020. I also note he was not separated at this time, and Ms. S. had to be aware of the off-season situation. I find that Mr. P. could have pursued only limited side work in the off-season.

[66]      When considering whether Mr. P. could pursue employment such as [omitted for publication] in future off-seasons, I also note that he only did this type of work before he was a [omitted for publication] sales manager. He said that a sales manager is a full-time job notwithstanding slower off-seasons where recruiting occurred.

[67]      Mr. P. also had a $15,000 RRSP withdrawal in 2017, and there are no clear rules about inclusion of RRSPs in Guideline Income. The court has discretion on this issue (McKenzie v. Perestrelo, 2014 BCCA 161). Regular RRSP withdrawals are more likely to be included. Mr. P.’s withdrawal was a one-time event, although another RRSP withdrawal was made one later year. Taking into account the RRSP withdrawal but also the off-season period, I am prepared to deduct $10,000 of the $15,000 RRSP from Mr. P.’s 2017 income. Adding back $633.29 in discounted business expenses but deducting $10,000 of the RRSP results in a 2017 imputed income of $64,821.29. The 2017 income is only relevant to show a pattern of income, as I am only considering a retroactive claim to the order of December of 2018.

[68]      Regarding Mr. P.’s 2018 declared income of $73,361, he did have a considerable off-season with [omitted for publication]. I realize the off-season recruiting and fairs lead to future earnings and the long-term incentive plan, but I find that Mr. P. was less busy in the seven months outside of the summer sales season. Mr. P. had a stronger business income in 2018 than 2017, and some of that is attributable to his off-season work. Looking at the successful on-season but bearing in mind the longer off-season, I decline to deduct anything for the RRSP withdrawal in 2018 of $5,354.13. I realize he could earn $5,400 per month in 2016, but that was based on a seven-day work week which is unsustainable and too onerous. Mr. P. said that a sales manager was a year round job. Adding back $590.06 in discounted business expenses, the 2018 imputed income is $73,951.06. Again, this 2018 income is only relevant to show a pattern of income.

[69]      Regarding Mr. P.’s 2019 income of $76,794.41, he again had a considerable off-season with [omitted for publication]. Again, the off-season work led to future earnings, and the gross business income increased from the year before. Mr. P. incorporated on the premise he would soon be earning in the $100,000 range. It is difficult to require him to work elsewhere in these circumstances, especially when he maintains that a sales manager is a full-time job even with long off-seasons. I would only add $5,000 for possible side work he could pick up in the off-season. Adding back $3,785.19 in discounted business expenses plus the $5,000 additional income results in a 2019 imputed income of $85,579.60.

[70]      Regarding Mr. P.’s 2020 income of $74,296, I can only say he made valiant efforts in this pandemic year to earn an income. He went all over North America pursuing sales work while being chased by COVID lockdowns. His dividend income in 2020 demonstrates the value of his past work, both on-season and off. Although I heard no submissions on the point, the dividend income has more favourable tax treatment than salary. I agree with Mr. P. that this 2020 income was unique, as it included incentive bonuses, and a holdback. Even though there could be a modest dividend gross up, when I look at this pandemic year in general, I am not prepared to impute any extra income, except for the discounted business expenses of $3,636.77, resulting in a 2020 imputed income of $77,932.77.

[71]      Regarding Mr. P.’s 2021 income of $60,763, his sales business was still struggling due to the pandemic and then it basically shut down completely. His largest source of income was the $39,675 dividend earned from prior years with [omitted for publication]. It was understandable that there would be a transition period as his sales business disappeared and he embarked on a new career in glazing. Again, I cannot presume he could earn $5,400 per month as he did in 2016, because the provincial economy was still stalled by the pandemic and Mr. P. was not expected to work seven days per week. I appreciate his income was very low after July of 2021, and I expect he would have found more glazing jobs or other work if he were the one having to put food on the table for his child. I am prepared to impute an extra $10,000 of income for that reason and for a modest dividend gross up. Adding back $1,974 in discounted business expenses plus the $10,000 additional income results in a 2021 imputed income of $72,737.

[72]      Regarding Mr. P.’s 2022 income, it is a guesstimate as tax returns have not yet been prepared, and Mr. P. is still new to the glazing business. He also now cares for L.P. half the time. Further financial disclosure will be required. Nevertheless, I accept an imputed income of $50,000 for 2022. This is more or less based on full-time work at $25 per hour, with some down time. Again, Mr. P. is not expected to work seven days a week and he has greater child care responsibilities. I note he is not prospering, as exemplified by the consumer proposal.

[73]      However, for 2023, Mr. P.’s imputed income is $54,080, based on $26 per hour full time. He will likely have further wage increases.

[74]      Regarding Ms. S.’s 2021 income of $29,166, I add back discounted business expenses of $1,298, resulting in a 2021 imputed income of at least $30,464. Her income for that year is not directly relevant as she was L.P.’s primary caregiver, but it shows a pattern of income. I will address her work hours and imputation of income more fully for her 2022 year.

[75]      Regarding Ms. S.’s 2022 income, I again do not have a tax return as it is early in the year. Since 2016, her declared income has always been under $30,000. She was L.P.’s primary caregiver and still takes him to school during her week. I find that a $37,440 employment salary is reasonable, based on $24 per hour in a 30-hour work week. Ms. S. has been a hands-on mother and it will take time for her to be able to work 40 hours per week. Her income earning potential was limited by the fact that she was pregnant and an at-home mother in 2016-2017, but she now has more free time due to the shared parenting arrangement.

[76]      I realize Mr. P. seeks to impute to Ms. S. income from cash under the table, but the cash payments from [omitted for publication] and the e-bike business appear historical. Any current alleged cash payments have not been proven on a balance of probabilities.

[77]      Ms. S. also has [omitted for publication] streaming income, and this is earned in the evenings. It is difficult to estimate that income, and Ms. S. is not required to work full evenings, although she can make up her reduced day income then, especially in the weeks she does not have L.P. She netted over $7,000 in 2021, when discounting some expenses, so I find she can earn at least that in 2022.

[78]      Ms. S.’s imputed income for 2022 onwards is $37,440 in salary plus $7,000 in streaming, which equals $44,440. This is higher than she has earned in the past six years.

[79]      As indicated above, I am only considering retroactive child support back to the order of December of 2018. Ms. S. was L.P.’s primary caregiver until March of 2022. The retroactive child support calculations for that period are as follows.

[80]      The December 21, 2018 order set out child support for the period January to September of 2019 at $500 per month based on a $50,000 income to Mr. P. Mr. P. actually paid those amounts totalling $4,500. However, his imputed income for 2019 is $85,579.60 producing Guideline child support of $818 per month, or $7,362 for nine months. The difference owing is $2,862.

[81]      The September 5, 2019 order set out child support for October of 2019 to March of 2022 at $700 per month without declaring an income for Mr. P. Mr. P. ultimately paid the $700 per month for the last three months of 2019 totalling $2,100. However, his imputed income for 2019 is $85,579.60 requiring child support of $818 per month, or $2,454 for three months. The difference owing is $354.

[82]      The court ordered child support for 2020 was $700 per month or $8,400 for the year, and Mr. P. ultimately paid that sum. However, his imputed income for 2020 is $77,932.77 requiring child support of $745 per month, or $8,940 for the year. The difference owing is $540.

[83]      The court ordered child support for 2021 was also $8,400. Mr. P. only paid child support to September, amounting to $6,300 plus one payment of $100 in October, totalling $6,400. His imputed income for that year is $72,737 requiring child support of $693 per month, or $8,316 for the year. The difference owing is $1,916.

[84]      The court ordered child support for the first three months of 2022, before shared care of L.P. was ordered, was $2,100. Mr. P. paid no child support. His imputed income for 2022 is $50,000 requiring child support of $470 per month, or $1,410 for the three months. The amount owing is $1,410 rather than $2,100.

[85]      In summary, the total retroactive child support owing by Mr. P. to Ms. S. for the period January 1, 2019 to and including March 1, 2022, is $7,082. Mr. P. will owe further child support when the parties shared care of L.P., as described below.

[86]      This figure of $7,082 is only a fraction of what Ms. S. was seeking even on the low end of her imputation arguments. While my calculations do impute higher incomes to Mr. P., they also take into account the struggles his sales business had with COVID lockdowns, the reasonableness of his business expenses, his off-season work, and his complete career change necessitated by circumstances largely out of his control. I also note he recently filed a consumer proposal and he has few assets.

[87]      On the other hand, Ms. S. required child support and Mr. P. did not meet his obligations in that regard, especially when he stopped paying after October of 2021. She has required a housing subsidy in the past, and she too has little in the way of assets. She has a student loan and a car loan.

[88]      As of March 4, 2022, the parties shared care of L.P. on a week on/week off basis. That means Section 9 of the Federal Child Support Guidelines now applies. I am required to take into account the amounts in the applicable tables for each parent, the increased cost of shared parenting, and the conditions, means, needs, and other circumstances of the parents and the child. I am simply using a set-off formula in this case, taking into account all factors under s. 9.

[89]      From April to December of 2022, the parents shared care of L.P. Mr. P. has an imputed income of $50,000 for that year, and Ms. S. has an imputed income of $44,440. Mr. P.’s child support is $470 per month whereas Ms. S.’s child support $418 is per month. The difference is $52 per month or $468 for nine months, and this amount will be added to the retroactive support owing by Mr. P., so that the grand total is $7,550.

[90]      For 2023 onwards, Mr. P. has an imputed income of $54,080 resulting in child support of $508 per month, and Ms. S.’s imputed income remains at $44,440 resulting in child support of $418 per month. Mr. P. shall pay the difference of $90 each month in 2023. Even though his child support obligation has greatly decreased under a shared parenting arrangement, this order recognizes his historical greater earning power while acknowledging that Ms. S. has greater opportunity for full-time employment. Ongoing financial disclosure will be required, and I expect Mr. P. will be earning a considerably higher income once his apprenticeship is completed.

[91]      As a result of the above analysis, this is my final order:

[92]      Paragraph 91 should read: