IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The parties come before this court for determination of contested issues under the Family Law Act, S.B.C. 2011, c. 25 (“FLA”). Those contested issues relate to their biological son, who is about to turn [omitted for publication] years of age, and the biological daughter, of D.M. (the “Mother”) and is the step-child of T.E. (the “Father”), who is almost [omitted for publication] years old,

[2]         In broad terms, it has required this court to deal with the issues of: parenting arrangements for each child; parental responsibilities for each child; child support for both of the children, but having regard for the existence of changing and different parenting arrangements; the imputation of income for child support purposes for both parties, which income has varied very significantly for each; the treatment for child support purposes of a non-recurring severance payment; and an analysis of the business income and expenses of each party in determining child support obligations including consideration of tax free income and unreported income. All of this is against a background of high conflict and mistrust as between the parties.

[3]         The biological son is L.E., date of birth [omitted for publication], (“Child L”). The other child is M.M., date of birth [omitted for publication], (“Child M”) (collectively the “Children”).

[4]         T.E. and D.M. (collectively the “Parents”) initially dated and first entered into a relationship in 2007 when they were teenagers. They cohabited for a brief period, then separated and went their own ways. Their relationship rekindled in late 2016, and the parties resumed cohabitation on or around May 17, 2017; they thereby entered into a marriage-like relationship. The Father and the Mother have never married.

[5]         On or around August 1, 2021, their relationship came to an end (the “Date of Separation”) but the final separation (the “Separation”) was preceded by a significant number of strains, disagreements, and arguments during their time together. Immediately prior to the Separation, both Child L and Child M were living with the Parents.

[6]         In August 2021, the Mother made a report to the RCMP that she had been assaulted by the Father (the “Domestic Assault Allegation”). As I understand it, the Father was arrested and initially placed on restrictive bail conditions by way of a Form 10 Police Undertaking, which provided for no contact or communication with the Mother directly or indirectly and with a provision preventing the Father from attendance at any residence or work place of the Mother.

[7]         The existence of the Father’s bail conditions were referenced a number of times in course of the evidence of both the Mother and Father, but no supporting documentation was entered into evidence. I gather from the Mother’s evidence that the Mother frequently contacted Crown counsel to request a relaxation in the Father’s bail conditions. She requested that they could have contact and communication in a public place, with her consent, and to enable the Father to have contact and communication with Child L and Child M. I understand it, a Release Order granted in early September 2021 replaced the Form 10 Undertaking and it permitted that level of contact and communication. 

[8]         The Mother also testified that she continued to advocate with the Crown for further relaxation of the “no contact” and “no go” restrictions on the Father. As I understand it, further relaxations were approved by Crown and the relaxed conditions were implemented in the fall of 2021 by way of a variation of the first Release Order. It permitted contact and communication between the Mother and the Father, including in non-public locations, with the Mother’s consent. Assault charges were never laid against the Father but an allegation under section 810 of the Criminal Code was sworn. However, that information was eventually withdrawn by Crown apparently in mid-January of 2022. That ended the criminal proceedings against the Father on the Domestic Assault Allegation.

[9]         Shortly after the withdrawal of charges on the Domestic Assault Allegation, these proceedings were commenced in Family Court. Court proceedings under the Family Law Act were initiated on January 25, 2022, by the Father by the filing of an Application About a Family Law Matter, (the “Father’s FLA Application”) against the Mother. She filed a Reply to An Application About a Family Law Matter with a Counter Claim on February 23, 2022, (the “Mother’s Reply and Counter Claim”). There have been multiple appearances before this court, including no less than five appearances relating to Protection Orders being sought by the parties against each other. Multiple Interim Orders have been granted by this court in this matter.

[10]      This is a very high conflict case. The relationship between the Father and the Mother can easily be characterized as toxic.

[11]      The Father’s FLA Application makes a claim for relief for Child L only. In that application he seeks a declaration of guardianship, an order giving him all parental responsibilities for Child L, and equal parenting time with that of the Mother, on a week on week off basis for Child L. He asserts that since August 2021, he has been constantly denied “access” to Child L and that the Mother had put restrictions “on when, where, and how” he parented.

[12]      The Mother’s Reply and Counter Claim identifies Child L and Child M as being the subject matter of her Counter Claim Application and references them as “the children.” In her reply portion, the Mother disagrees with the Father’s claim for parental responsibilities for Child L, on the basis of the Father’s lack of prior involvement with or awareness of the Children’s needs. She asks that she be granted full parental responsibilities for “the children.” She also claims that the Children should reside with her on a full time basis since she has been their primary caregiver and states that the Father’s “parenting access” to both Children should be limited to every second weekend, between 10 AM and 7 PM on both Saturday and Sunday, but not overnight.

[13]      The Mother opposes “any application [the Father] may bring to be appointed a guardian” of Child M. It is noteworthy that the Father’s FLA Application does not make any such claim, nor any other claim in connection with Child M, including any claim for parenting time or contact with Child M.

[14]      In the reply contained in the Mother’s Reply and Counter Claim she claims child support against the Father for both Child L and Child M.

[15]      The Mother also claims spousal support from the Father. Parenthetically, I note that by consent of the Parties, the Mother’s claim for spousal support was adjourned generally at the outset of this hearing due to limited time to deal with the other issues. I understand from the parties that the Mother commenced an action in the Supreme Court of British Columbia in or around July of 2023 to deal with the division of family property and family debts, and the Father has replied and counterclaimed (the “Supreme Court Proceedings”). So far as I can determine, as of the dates of the hearing of this matter, no orders have been made in the Supreme Court Proceedings.

[16]      The Mother’s Reply and Counter Claim was filed after the January 27, 2022 Interim Order, as described below under the heading, Background of Court Proceedings. The Father has not filed a reply to the Mother’s Counter Claim but I understand he opposes much of it, including without limitation, the claim for him to pay child support for his stepdaughter, Child M.

[17]      As may be observed, a large number of court appearances occurred and some 19 Interim Court Orders have been made throughout 2022 and into 2023.

[18]      On February 7, 2023, the Father filed a further Application About a Family Law Matter (the “Father’s February 2023 FLA Application”) in which he references the August 24, 2022, Interim Order (as described below) and then applies to:

[19]      The basis for all of the relief claimed in the Father’s February 2023 FLA Application arises from what the Father alleges is the Mother’s insistence that he take both Children pursuant to the August 24, 2022 Interim Order, or no children at all. The Father also alleges untoward, negative, and disruptive behaviour on the part of Child M, which the Mother refuses to acknowledge or refuses to take steps to deal with it or to agree to counselling for Child M. The Father further alleges that Child L is being exposed to this behaviour on the part of Child M and such is not in Child L’s best interest.

[20]      On February 28, 2023, the Mother filed a Reply to an Application About a Family Law Matter (the “Mother’s February 2023 Reply”). In this Reply she opposes any changes in the parenting arrangement for both Child L and Child M, and further asserts that the 2-2-3 Parenting Schedule (described below) should be maintained for the benefit of both Children, as it had been in place for almost a year.

[21]      It was unclear in the Mother’s February 2023 Reply as to what the Mother’s position is with respect to parental responsibilities for either Child L or Child M. However, within Schedule1, Reply to an Application About Parenting Arrangements, Part 1, dealing with Parental Responsibilities, there is an extensive amount of information and numerous allegations made by the Mother.

[22]      In essence, the Mother alleges that the Father filed the Father’s February 2023 FLA Application “out of rage and whim,” and is using Child M as a pawn in the Parents’ ongoing dispute, leading Child M to believe that she was “disposable.” The Mother indicates that Child M’s behaviour was a “typical pre-teen dilemma,” but further says both Children have been exposed to the continuing unhealthy interactions between the Mother, the Father, and the Father’s new partner. In particular, mention is made that Child M has been inappropriately informed by the Father’s new partner about adult discussions and legal issues between the Mother and the Father. The Mother says all of this has negatively impacted Child M’s mental health and the Mother’s own mental health. There is no independent evidence in support of those allegations.

[23]      The following orders have been made in these proceedings:

[24]      The Without Notice Desk Order of Judge R.F.Cutler made on January 25, 2022, requiring the Mother to file her Reply to the Fathers FLA Application no later than February 7, 2022 ( the “January 25, 2022 Interim Order”).

[25]      The Interim Order of Regional Administrative Judge C. Rogers on January 27, 2022, made in connection with the Child M and the Child L and which granted the Father “parenting time” as follows:

[26]      A further Interim Order made by Judge Webb on February 9, 2022, arising out of the Family Management Conference of that date; it stated:

[27]      The next Interim Order was made by Judge T. Gouge at the March 9, 2022, Family Management Conference as follows:

[28]      In order to accommodate the closure of the summer child care facility for Child M and Child L a further Interim Order was made by me on May 5, 2022, such that:

[29]      Upon an application made by the Father, Judge W. Jackson made another Interim Order on June 15, 2022, such that the Father was to pay his 55% of child care costs directly to the child care provider (the “June 15, 2022 Interim Order”).

[30]      Arising from another Family Management Conference held on August 24, 2022, before Regional Administrative Judge C. Rogers, a further Interim Order was made (the “August 24, 2022 Interim Order”) that provided as follows:

[31]      At a further Family Management Conference held on December 23, 2022, in front of Judge D. M. D. Stewart, further Interim Orders were made:

[32]      On February 7, 2023, the Mother obtained a Protection Order against the Father on a without notice basis (the “February 7, 2023 Protection Order”) which was granted by Judge J. Saunders. The following information is relevant:

[33]      In a hearing before Judge T. Gouge on March 17, 2023, the following Interim Orders were made:

[34]      On April 5, 2023, Judge P. Janzen terminated the February 7, 2023 Protection Order, made by Judge J. Saunders.

[35]      On the same date, Judge Janzen granted a new Protection Order in the presence of both parties (the “April 5, 2023 Protection Order”) containing terms which were essentially the same as those contained in the February 7, 2023, Protection Order. The April 5, 2023, Protection Order was ordered to expire on October 5, 2023.

[36]      On May 15, 2023, the Father obtained from Judge R.F. Cutler a without notice Protection Order (the “May 15, 2023 Protection Order”) against the Mother for the benefit of Child L based on allegations that the Child L had been sexually molested by a child of the Mother’s then partner R.J. at that partner’s home on May 13, 2023. The terms of the May 15, 2023 Protection Order, were as follows:

[37]      On May 18, 2023, the matter was back before Judge Cutler at which time the May 15, 2023 Protection Order, was terminated.

[38]      On May 18, 2023, Judge R.F. Cutler made a further interim order (the “May 18, 2023 Interim Order”) which provided as follows:

[39]      On September 6, 2023, the matter was back before Judge R.F. Cutler at which time it was acknowledged that by way of an Interim Order that the Child M had been residing with the Mother since April 2023. Judge Cutler granted a further Interim Order (the “September 6, 2023 Interim Order”) on the following terms:

[40]      Judge Cutler made a further direction on September 6, 2023, that this matter was to be scheduled on the highest priority basis on the upcoming Duncan Family Assize list for a two-day trial.

[41]      On October 11, 2023, the Parties were both before Judge J. Saunders at 11:15 AM (apparently on a Duncan Family Remand day) who ordered (the “October 11, 2023 Family Remand Order”) as follows:

[42]      On the same day of October 11, 2023, at 2:15 PM in the Western Communities Courthouse, Judge T.Gouge made an Interim Without Notice Order (the “October 11, 2023 Without Notice Order”) in the presence of only the Mother, whereby:

[43]      It is further noteworthy that this matter thereafter proceeded, with the consent of both Parties, to the expedited hearing before me starting on November 6, 2023, but prior to the completion of the previously ordered full Section 211 Report and the ordered Section 211 Views of the Child report for Child M.

[44]      The Father and K.S. (hereinbefore referenced and hereinafter more particularly identified) testified on behalf of the Father. The Mother was her sole witness. Each witness provided viva voce evidence and all witnesses were cross-examined upon their viva voce evidence. An extensive number of documents have been filed as exhibits by the Parties, including Form 4 Sworn Financial Statements.

[45]      The Parties have both been self-represented throughout this hearing. In the past, each appears to have received some legal assistance and advice from time to time.

[46]      For the benefit of the Parties, it is important to understand the approach that I have followed in summarizing the evidence in these Reasons for Judgment. It is the same approach usefully and concisely set out by the Honourable Judge T.S. Woods (as he then was) in the decision of R. v. Connell, 2017 BCPC 123, at paragraphs 5 and 6 as follows:

[47]      I have used this approach and found it helpful in other similar lengthy and complicated family law matters, such as V.W. v. J. H., 2020 BCPC 13, T.L.C. v. K.J.H., 2021 BCPC 250 and more recently in T.A.G. v. D.C.P. 2022 BCPC 99.

[48]      At the outset of the hearing, the Parties agreed to a number of factual circumstances, which I have summarized below, along with undisputed factual matters that arose in the course of the evidence. This was of significant assistance because of the time restraints surrounding the hearing of this matter

[49]      There has been some conflict in the evidence that I have heard from the Father and K.S. on one hand, and the Mother on the other. Some of that conflict in evidence is material to the issues to be decided and some of it is immaterial.

[50]      Therefore, I have been required to perform the court's fact-finding role. That requires an assessment of the credibility (truthfulness/honesty) of witnesses and the reliability (accuracy) of their evidence. This requires consideration of many factors, which Madam Justice Ker summarized in Gill Tech Framing Ltd. v. Gill, 2012 BCSC 1913 at paras. 27-28. I also refer the parties to T.A.G. v. D.C.P., supra, at paragraphs 52 to 57 for the required analysis for this assessment, and which I have followed in this case.

[51]      My evidentiary findings with respect to any conflicting evidence are also set out below and where necessary I have referenced the evidentiary dispute that I have been required to resolve.

[52]      The Father is [omitted for publication] years of age. The Mother and the Father initially resided along with Child M in the former matrimonial home of the Father and his ex-wife. He and his brother are co-owners of some rural acreage property, which was inherited from a parent, and upon which was situated a 32-foot camping trailer. When the former matrimonial home sold in the course of Father’s divorce proceedings, the Mother and the Father, who were then in a marriage-like relationship, and Child M then moved into and resided in that camping trailer as their family home. Their plans were to acquire the brother’s interest, and to construct a permanent residential structure on the acreage. Those plans were delayed; hence, in August of 2018 the Mother and the Father moved into rental accommodation closer to Duncan (the “Family Rental Residence”) to facilitate their growing family with the addition of Child L. After the Separation, the Father left and returned to the camping trailer, but eventually was able to obtain his own rental accommodation (the “Father’s Rental Accommodation”) close to the Family Rental Residence then occupied by the Mother, Child M and Child L.

[53]      The Father is a Red Seal carpenter with some 18 years’ experience. As a carpenter, he initially worked as an employee of a construction contractor. In January of 2017, he started his own business, operating as a sole proprietor under the business name of [omitted for publication] until April of 2023 (the “Proprietorship”).

[54]      In April of 2023, he took a position as a general labourer and continues as a full time unionized employee with the [omitted for publication] (the “Municipal Employer”).

[55]      The Father was in the midst of his divorce proceedings from his first wife when he and the Mother entered into their relationship; those divorce proceedings continued for the first one and half years of the Mother and the Father’s relationship. As I understand it, there were no children as a result of the Father’s previous marriage.

[56]      The Father is presently in a new marriage-like-relationship, which commenced in or around October of 2021. He now lives in Duncan, BC, with K.S. That relationship started and has continued for the last 2 years. K.S. is the biological parent of a 13-year-old daughter (“Child A”) who is the subject of a shared parenting arrangement between her biological parents on a week on-week off basis. Child A lives with K.S. and with the Father in the Father’s Rental Accommodation at certain times during K.S.’ parenting time with Child A. K.S. also maintains accommodation in Nanaimo for which she pays $500 per month and is contractually bound to do so until April of 2024. Child A attends school in Nanaimo, BC, and is transported from Duncan by K.S. who works in Nanaimo.

[57]      K.S. is employed by a Provincial Health Authority as a mental health and addictions worker. She works 9:00AM to 4:30 PM, Tuesday to Saturday. She earns approximately $60,000 per annum and has a benefits package.

[58]      Child A has some anxiety issues for which she receives counselling at school and from outside professionals.

[59]      K.S. and the biological father of Child A are apparently before the courts relating to his child support obligations for Child A, and K.S. is presently not receiving nor paying child support for Child A. The Father in these proceedings does not directly contribute to the financial support of Child A.

[60]      The Mother is age 35. She now lives in rental accommodation suitable for herself and the Child L and Child M in Duncan (the “the Mother’s Rental Accommodation”). That has been since the Mother gave up possession of the Family Rental Residence in or around February of 2023.  Whereupon the Father ceased receiving monies from a sub-tenant and ceased making any payments to the Mother to cover family expenses. The Mother’s Rental Accommodation is located within about three blocks of the Father’s Rental Accommodation.

[61]      At present time, she is not in a romantic relationship but she has been so on two occasions since the Separation. The Mother says that she has had one serious relationship with R.J., whom she has known for years. As I understand it, the Mother and R.J. resided together for a relatively short period of time, but that relationship ended in the spring of 2023 after the events giving rise to the May 15, 2023 Protection Order. On or around March 9, 2022, the Mother was also dating an individual, who I will identify as R.K., and who was named in the March 9, 2022 Interim Order. The Mother is presently engaged in online dating.

[62]      As mentioned above, Child M is approximately [omitted for publication] years of age. She is completing her final year at elementary school and thereafter is scheduled to attend the local public high school. The elementary school is outside the catchment area for the Child M’s residence but it has both pre and post school care programs. There is no evidence of health concerns for Child M other than some behavioural concerns described below.

[63]      The Mother is the biological mother of Child M. The biological father of Child M has never been part of the lives of the Mother or Child M, since the birth of Child M; as I understand, the identity of her biological father is unknown to Child M. The biological father has never contributed financial support for Child M and it appears that he is likely drug entrenched and living without stable housing in an unknown location. Child M was solely under the care of the Mother prior to the Mother and the Father entering into their marriage-like-relationship. The Father immediately assumed responsibilities for and took on the role of a parent in the life of Child M. The Father never sought to adopt Child M.

[64]      The Father’s role and relationship continued on a positive basis with the Child M following the Separation, and continued for several months, even after the Father had entered into his relationship with K.S. The evidence suggests that Child M engaged in a positive way with the Father, K.S., and her daughter Child A when they were residing at the Father’s Rental Accommodation during the same periods.

[65]      However, that positive relationship began to deteriorate concurrently with the rising acrimony between the Mother and the Father, and with the alleged untoward behaviour of Child M described in the Father’s February 2023 FLA Application. Therein the Father alleges that the Child M was lying, stealing, arguing with the Father, and making inappropriate sexual gestures. This behaviour also included Child M making unfounded allegations to each Parent about emotional abuse suffered at the hands of the other Parent. It also included bullying behaviour at school, and the theft of one of the Father’s cell phones in or around January of 2023, and thereafter the making of a TikTok video that made fun of teachers and other students at her school. This resulted in Child M being suspended from school. The Father believes that Child M is in need of professional counselling.

[66]      The Mother minimizes that behaviour on the part of Child M as being more related to her age, the turmoil surrounding the Separation and thereafter, including the Father’s formation of his new relationship with K.S. The Mother rejects the necessity for Child M to receive the type of counselling being suggested by the Father, and advances her position that as the Child M’s sole guardian she should be making those decisions.

[67]      Child M’s situation and problematic behaviour was apparently referred to the MCFD Child and Youth Mental Health Services (CYMH). As I understand it, an intake clinician, Shana Ehlinger, MA, RCC, spoke with both Parents in or around January 2023. In a follow up email to both Parents, which was entered as Exhibit 6, Ms. Ehlinger confirmed that Child M would not be receiving services at CYMH because the services are provided to youth who are “identified to have chronic risk of suicide and self-harm as well as moderate to severe levels of mental health symptoms and dysfunction, at a minimum.” It was determined that Child M did not meet that criteria. Alternative counselling resources were identified, including school counselling. Ms. Ehlinger was not called as a witness.

[68]      The Mother apparently took steps in January 2023 to obtain school counselling for Child M. There is no evidence that any other counselling has been pursued through the other recommended resources.

[69]      My sense from the whole of the evidence is that each Parent places blame for any of Child M’s problems at the feet of the other, and specifically on the basis of the other Parent’s untoward behaviour both before and after the Separation, which was apparently observed by Child M.

[70]      One of the most destructive events appears to have been the Mother’s inappropriate disclosure to Child M that the Father had not made any claims for her in the Father’s FLA Application. That inappropriate disclosure was then significantly compounded by additional inappropriate disclosure made by K.S. to Child M about the purported reasons why the Father was reluctant to pursue any such FLA claims for her.

[71]      As I understand it, in response to questions from Child M, K.S. made Child M aware of the discussions that the Mother and Father had previously had in or around the time of the Separation. These discussions were recounted by the Father in his evidence. He had also shared these discussions with K.S in the early stages of their relationship. These discussions centred on a warning given by the Mother to the Father that she was “watching” the Father very carefully to make sure that his strong libido did not spill over into an inappropriate sexual relationship with Child M. That same concern was the subject matter of the Mother’s discussion with K.S. in October 2021, which the Mother characterized as a “warning” to K.S. from the Mother about the Father.

[72]      Hence Child M was told by K.S. that while it was correct that the Father had not made any FLA claims for her in his court applications, the reason was not to abandon her (being the implication attributed by the Mother), but rather to prevent the Father from being accused by the Mother of inappropriate sexual behaviour with Child M. It seems that the Father was also a party to these concerning disclosures to Child M.

[73]      All of these disclosures made to Child M by the Father, the Mother, and K.S. are, of course, completely inappropriate and contrary to the numerous conduct orders made in this matter.

[74]      In or around April of 2023, and following the inappropriate disclosures, Child M voiced her opposition to and ceased to attend and stay at the Father’s Rental Accommodation. Child M did not want the Father to drop her off at school nor pick her up. Child M’s rejection of her ongoing relationship with the Father, according to the Father’s evidence, flowed from the Father’s concerned responses to Child M’s behavioural issues, and was coincidental with the high level of ongoing tension and hostility as between the Mother and the Father. 

[75]      The Mother testified that she has and continues to promote the relationship between the Father and Child M. 

[76]      The Father testified that the Mother has actually intentionally undermined his relationship with Child M and taken active steps to block his communication with her.

[77]      There is some evidence from the Father that Child M still has positive feelings for him, as well as for K.S and Child A. This has been apparent to the Father on the 3 or 4 occasions that they have encountered each other and had incidental contact, all since April of 2023. These limited occasions are described by the Father as being emotional for Child M and himself and have occurred infrequently notwithstanding his unrequited attempts to reach out to her via text messaging.

[78]      In his evidence, the Father stated that he wishes to see Child M and have a parent-child relationship with her, since he has been a part of her life for greater than half of her chronological age, he sees her as a daughter, and wishes to be a “stable father figure” for Child M. He described it as “not being easy to have her stripped from [him].” He further stated that he believes he has made a positive impression in Child M’s life. He stated that he would “love to have guardianship” of Child M in order to get information about Child M’s school behaviour and to enable him to get her the type of care and counselling he thinks she needs, which is being denied by the Mother.

[79]      The Father testified that he is open to pursuing and continuing his relationship with her but only if Child M is prepared to do so. He conceded that based upon the Mother’s suggestions to him that Child M does not wish to see him and her significant restrictions on Child M seeing him, he has not pursued active visitation with Child M since April of 2023, other than messaging her. Child A has expressed an interest to see and speak to Child M but the Father has not made further attempts to facilitate those meetings.

[80]      At the outset of the hearing before me, the Mother and the Father came to an agreement about the ongoing parenting arrangements and the Father’s contact with Child M. Those are set out in the orders below.

[81]      As noted above, Child L is approximately [omitted for publication] years of age. The evidence of both the Mother and the Father suggests that he is a smart, healthy, and thriving child. He meets and exceeds milestones. He has a reoccurring issue with croup, which from time to time has required his hospitalization. There is some conflict in the evidence between the Mother and the Father about who has assumed a greater role in dealing with Child L’s intermittent health issues but there is agreement that both are caring and have responded appropriately and cooperatively to Child L’s health needs. The Father testified that he participates in health care decisions for Child L.

[82]      As previously noted, Child L is the Mother’s other biological child. The Mother was the primary care giver for Child L immediately following his birth while on extended maternity leave, and while her employment was interrupted due the COVID pandemic. These various leaves permitted the Mother to assume the role of a stay-at-home parent.

[83]      The evidence suggests that the Father was much less involved in the day-to-day care of Child L while the Mother and the Father cohabited. His focus was on his Proprietorship work and his activities with a volunteer fire department. That is not to say that the Father did not have some involvement with Child L in the earlier years, but it appears that he deferred to the Mother as the decision-maker in a number of matters relating to Child L.

[84]      Upon the Mother’s return to work, Child L has been in a subsidized day-care program. Agreed plans are in place between the Parents for both before and after school when Child L is scheduled to start kindergarten in the fall of 2024, which will be at the same elementary school where Child M presently attends. The Parents have given appropriate thought and planning to the question of pick-up and drop-off of Child L no matter what parenting time schedule is in place. The Father was in agreement with these plans as to school, and pre and post school care for Child L, but says he wants to be able to be in contact with the school and day-care providers, to receive information and to have decision-making responsibilities in his role as a guardian and parent. At one point the day care told the Father that he was not to attend at its location because of what I understand to be some abrasive behaviour on the part of the Father which caused concerns for the day care operators.

[85]      The Father testified about his concerns about Child L’s challenging behaviour, including swearing and “physical outbursts” which has been observed at the Father’s Rental Accommodation, and usually occurs on the day of transition from the Mother’s Rental Accommodation. The Father testified that Child L will do such things as “flipping his middle finger” and making inappropriate sounds of a sexual nature. When confronted by the Father, Child L explained this behaviour by indicating “mom says it’s okay.” This concerning behaviour has apparently been demonstrated by Child L in front of the Child L’s paternal grandparents as well as his day-care providers.

[86]      The Father says that Child L needs counselling for this behaviour and the Father has enrolled Child L in counselling and play therapy, which has been opposed by the Mother. Hence, the Father sought and obtained the October 11, 2023 Family Remand Order, in order to get Child L into counselling.

[87]      The Father attended an intake session on November 15, 2023, with Ladona Pinder, MACP, RSW, RCC, of Allius Service Inc., which provides counselling services. Ms. Pinder was not called to testify; however, her email to both the Mother and Father of November 15, 2023, was introduced into evidence as Exhibit Number 5. In that email, Ms. Pinder based her comments upon the information that she had received from the Father about his concerns for Child L and his behaviour. Ms. Pinder concluded that there were not any concerns that could not be addressed through “parent coaching on an as needed basis,” and specifically in relation to addressing Child L’s “emotion regulation and parenting strategies.” Some parent coaching apparently occurred during the Father’s session. Ms. Pinder offered to provide further support at the request of either Parent. Ms. Pinder went on to note that what stood out to her was the “ongoing conflict within [their] co-parenting relationship that has resulted in many court attendances and ongoing difficulties related to parental communication and decision-making.” In that regard, Ms. Pinder recommended that both Parents attend co-parent counselling together to work on improving communication and decision-making, and to increase cooperation between the Parents. As far as I can determine from the evidence, the Mother has not actively embraced this recommendation nor the offer for co-parent counselling. The Mother notes the cost of some $175 per session, which she says she cannot afford. She testified that she would be prepared to participate in co-parenting courses if the expense was not an issue.

[88]      The Mother seems to be of the view that both Parents should be approving the counselling services to be provided to Child L, and also agree on the counselling provider. To date there has been no further progress in that regard.

[89]      The Father is interested in eventually enrolling Child L into extracurricular activities such as baseball and soccer, which he says should be on a shared financial basis with the Mother. The Mother does not disagree about the benefits of these type of extracurricular activities, but she raises her financial concerns about the cost of these extracurricular activities and her ability to contribute. She opposes any suggestion that if she is not able to make a financial contribution then she should be precluded from participating in or attending these activities of Child L as an observer. This was described as a “pay to play” approach.

[90]      The Father says that the parenting time schedule should accommodate periods of time for travel, camping activities, and interaction with members of the extended family, all of which he views as being important in the development of Child L.

[91]      The evidence suggests that Child L has a relationship with the paternal grandparents including a step-grandfather. The Father suggests that this relationship is closer than with the maternal side of the family citing the fact that the maternal grandmother has moved to Saskatchewan and that the maternal great-grandparents are “snowbirds” who are away from home some six months a year.

[92]      The sheer number of court appearances and the plethora of resulting interim orders and protection orders demonstrates the very negative state of the relationship between the Mother and the Father.

[93]      Problems in the relationship between the Mother and the Father had surfaced by 2020. They underwent counselling regarding the communication issues between them; the counselling apparently did not resolve those problems. The Mother suggested that her approach of trying to get the Father involved with the family as a means of resolving their issues caused the Father to “shut down.” She asserts that he was never home to participate in family life and spent unnecessary time with his friends, his volunteer firefighting activities, or the business affairs of the Proprietorship, notwithstanding that in her view they were actually in a reasonable financial position. The Father’s evidence was that these outside activities were his way of coping with the disharmony in their personal relationship. He contends that his focus on the affairs of the Proprietorship was necessary and for the benefit of the family.

[94]      The Father indicated in his evidence that he thought the Mother was a good mother to the Children but took great exception about her behaviour towards him following the Separation. Specifically, he references her use of the Children, and her attempts to impose restrictions on his ability to see the Children, as being a weapon she uses in their interpersonal problems.

[95]      The Mother was somewhat more reserved in her assessment of the Father’s ability as a father. She indicated that he is a good parent but has historically been absent from day-to-day involvement with the Children. Furthermore, his past behaviour pre-dating this hearing has caused her to lose trust in him as a parent. She places the cause of their interpersonal problems in the Father’s lap, and suggests that these problems have then spilled over into their disputes about Children. She also blames the involvement of K.S. as a disruptive force in the Parents’ co-parenting regime.

[96]      Notwithstanding the conduct orders that have been made, there is clear evidence that on numerous occasions the communication between the Mother and the Father, and in their exchanges via the Our Family Wizard program have been provocative and insulting and have failed to meet the requirements set out in various interim conduct orders. In the course of the hearing, I specifically mentioned to the Parties that as a rule I do not find compendious hard copies of electronic exchanges as between parents to be particularly relevant or useful. Often they simply highlight the depths to which the relationship of the parties has sunk and reasonable civility has disappeared. At the end of the day, I have concluded that there has been a continuing lack of effective and respectful communication between these Parents.

[97]      On the whole of the evidence, it is clear that there were multiple examples whereby both the Father and the Mother demonstrated a lack of accommodation or cooperation with each other when it came to matters relating to the Children. I need not particularize those. It ranged from disputes over the Children’s birthday celebrations and vacations to accommodating necessary, relatively minor changes in scheduling for the benefit of a parent or one or both of the Children.

[98]      The Father’s numerous allegations about the unreasonable restrictions that the Mother placed on his ability to see the Children is refuted by the Mother. She indicated that any restrictions were of the Father’s own doing, so far as his actions towards her that got him arrested by the RCMP and placed upon restrictive no contact bail conditions.

[99]      Once the restrictive no contact bail conditions were relaxed to permit contact with the Mother’s consent, the Mother suggests that the Parents were working in a cooperative fashion as it related to the Children such that by October of 2021 they had arranged a workable schedule for the Father’s time with the Children and time together for family celebrations and Christmas. The Father did not necessarily reject that suggestion and admitted that he was often at the family home assisting the Mother with the Children and that he was given extra parenting time, but says the Mother controlled that extra time and would often shut it down on him. He acknowledged that the Mother was granted that control by virtue of the bail orders, but testified that the Mother would “ramp” him up such that he would “get into a fluster in front of the kids.” I take this to mean when he got into a “fluster,” the Mother would then withdraw her consent for him to be present and to continue to have visitation with the Children. However, the Parents both agree that during the period from October to December of 2021, they were both making efforts to work in a collaborative fashion with respect to the Children and that just the four of them were doing things together as a family.

[100]   The Mother also suggests that following the Separation the Father did not have any suitable accommodation to exercise any time with the Children at the camping trailer or initially at the new Father’s Rental Accommodation that he procured, because the Children’s bedrooms were not completed until sometime later in 2021. The Father dismisses that as a suitable reason for what he perceived as excessive restrictions imposed by the Mother on his time with the Children.

[101]   The Mother further suggested that in the period between October and December of 2021 the Father was not “emotionally ready” to assume the responsibilities of overnight care of the Children in part because of the death of his own father in November 2021, and his resulting grief and highly emotional response to the Separation.

[102]   It is quite apparent that any semblance of civility between the Mother and the Father was completely eroded once the Father entered into his new relationship with K.S., and the Mother started to form new relationships with people such as R.J.

[103]   The evidence suggests that these new partners became active participants in the hostilities between the Mother and the Father, rather than being a supportive buffer for their partner.

[104]   The Father testified that between October and December of 2021, he had taken 6 sessions of parenting counselling.

[105]   The evidence indicates that there were differences in the parenting styles of both the Mother and the Father. Both have household parental rules for the Children, but the application, enforcement, and consistency of those rules was different for each. I have concluded that the Father’s rules and his enforcement of those rules was more structured.

[106]   Those differences have created tensions between the Parents and the Children when the Children were transitioning between the two households. Those differences became another source of conflict between the Mother and the Father.

[107]   The Father denies that there have ever been any physical altercations between the Mother and the Father in the presence of or witnessed by the Children. However, he does concede that the Children have witnessed heated arguments between them. He denied that a physical altercation between them occurred on August 1, 2021, which gave rise to the Mother’s Domestic Assault Allegations reported to the police.

[108]   The whole of the evidence before me and the nature of and the number of the Interim Conduct Orders and Without Notice Protection Orders supports the conclusion that there have been significant non-physical and mutually unpleasant exchanges between the Mother and the Father; furthermore that the Children have been exposed both directly and indirectly to that untoward behaviour on the part of both Parents.

[109]   I have also concluded that the Parents must share responsibility for that type of untoward behaviour. However, it is not necessary for the purposes of the issues before this court to allocate the shares of that responsibility between the Mother and the Father.

[110]   Below, I have considered as to whether this behaviour amounts to family violence within the meaning of section 1 of the FLA.

[111]   K.S. and the Father met in late September 2021. They did not publically acknowledge their relationship until November of 2021. However, the Father alleges that the Mother hacked into his social media accounts and learned of the emerging relationship between the Father and K.S. This resulted in frequent online communications between K.S. and the Mother.

[112]   On or about October 10, 2021, the Mother took it upon herself to telephone K.S. and in the course of doing so expressed her concerns to K.S. about the Father’s strong libido and her “10% concern” about the Father having an inappropriate relationship with Child M. This of course was disquieting for K.S. whose Child A was approximately the same age and she and the Father were in the early stages of their relationship. K.S. immediately reported these discussions to the Father.

[113]   The Mother explained that she contacted K.S. because she wanted to make sure K.S. “knew what she was getting into” by pursuing her relationship with the Father. It appears that the Father and K.S. interpreted this call as an attempt by the Mother to sabotage their formative relationship and to portray the Father as “not the best father figure.”

[114]   A number of unhappy incidents occurred between the Mother and the Father, with involvement by K.S. This included such things as K.S. seeking to serve the Mother with the Father’s FLA Application at Child L’s day-care. Another was the Mother’s very negative reaction to Child’s L nickname for K.S. being “Momma K.”

[115]   Thereafter the relationship between the Mother and K.S. became particularly vitriolic and public as each of them turned to social media to publically criticize and insult the other, and to thereby further stoke the discord between the Mother and the Father.

[116]   In her evidence, K.S. was complimentary about the Mother calling her a “great mother.” As would be expected, she described the Father as an “amazing father to Child M and Child L.” She testified that from the outset she and the Father sought to build a blended family including Child A, Child M, and Child L. She said that she and the Father do a great job supporting a co-parenting arrangement for Child L and for Child M with the Mother, notwithstanding the Mother’s lack of cooperation and especially when it comes to K.S. and the Father wishing to do things with Child L.

[117]   In K.S.’s view, Child L has adapted well to the co-parenting arrangement between the Mother and the Father, but of course she supports the Father’s position about changing the schedule to week on week off for each Parent from the present 2-2-3 Parenting Schedule.

[118]   The Ministry of Children and Family Development (“MCFD”) has had some involvement with the Parents and the Children. As I understand it, their involvement started following the circumstances surrounding the Domestic Assault Allegation, reported to the RCMP by the Mother and the subsequent arrest of the Father and his release on bail conditions.

[119]   Thereafter MCFD also made investigations about the alleged circumstances that gave rise to the May 15, 2023 Protection Order.

[120]   At various times, there have been discussions between the parents and MCFD about safety planning for the Children.

[121]   As far as I can determine, as of the date of this hearing MCFD has not made any child protection court applications, has completed all necessary investigations, and does not have any active files with respect to the Mother, the Father, and the Children.

[122]   The Parents have made frequent complaint reports to the local RCMP detachment about the behaviour of the other Parent. Some of these reports were about significant matters such the Domestic Assault Allegation. Other reports have occurred after heated exchanges between the Parents - and sometimes involving K.S - and a number of those have occurred at the Mother’s various residences. On some occasions, the police have arrived and on other occasions, the police have not arrived very quickly nor at all.

[123]   In the Father’s evidence in chief he stated that the 2-2-3 Parenting Schedule as set out in the August 24, 2022 Interim Order, was implemented at the insistence of the Mother. However, in cross-examination and having been referred to copies of electronic communications between the Parents, he had to concede that the 2-2-3 Parenting Schedule was actually proposed by him. He then tried to submit in his evidence that he only suggested and agreed to that particular parenting schedule in order to permit him to achieve a shared parenting arrangement. I am not persuaded by that submission.

[124]   The Father testified that one of his primary concerns about the 2-2-3 Parenting Schedule is the behavioural issues of Child L, which he says occur upon transition between the Parents’ homes and stem from the differences in household rules and the enforcement of those rules. He says these concerns can be ameliorated by reducing the number of transitions between the Parents’ homes and hence he seeks to go to a week on week off parenting schedule. His suggestion is that the week on-week off arrangement provides more stability in Child L’s life. He further suggests that this new arrangement be put into place several months in advance of Child L starting school.

[125]   He also suggested that that a week on week off arrangement will permit greater time for extended family activities such as camping and longer trips with Child L. He cites the Mother’s lack of cooperation in changing or varying the existing 2-2-3 Parenting Schedule as an impediment to such activities. He suggests that Child L could maintain contact with the Mother by providing him with the “option” to call the Mother while on the proposed longer trips.

[126]   The Father also suggests in his testimony that if a Parent could not exercise their parenting time for any reason then the other Parent should have a right of first refusal to have additional parenting time with Child L.

[127]   The Mother testified that she opposes any change to the 2-2-3 Parenting Schedule. She says that it is working although she concedes that there are problems that need to be addressed cooperatively between the Parents.

[128]   In her evidence, she suggests that the Parents acting in a less confrontational manner and seeking to do a better job about cooperating with each other can best mitigate any of the issues relating to the transition of Child L. She characterizes it as “shoving the emotion and drama down.” In that regard, she suggests that the both the Mother and the Father can and have done this in the past. She then goes on to suggest that involvement of third parties, such as K.S., contributes to hostilities and tensions in parenting arrangements for Child L, which in turn then contributes to stresses for Child L. Thus, she says issues relating to Child L should be resolved by the Parents without any outside interference by those third parties.

[129]   Based upon the whole of her evidence, I understand that the Mother disputes that any change to the 2-2-3 Parenting Schedule in itself will provide an increased in stability for Child L.

[130]   A further reason for her opposing any change in the 2-2-3 Parenting Schedule is that the Mother has built her working schedule around it with the Mother’s New Employer (infra). Her present working schedule is Monday to Fridays 8:45 AM to 4:15 PM and the schedule of other employees whom she supervises is then built around her work schedule. She suggests that if Child L becomes ill then the resulting care of Child L is more equitably distributed as between the parents on the 2-2-3 Parenting Schedule. If Child L were to become ill during her week of parenting time on the proposed week on week off parenting arrangement, then she would be required to take unpaid time away from work, which would provide a financial hardship for her and negatively impact her ability to meet her financial obligations for Child L. In response to the Father’s suggestion that his family members could care for Child L in such a scenario, she notes that when she has made such a request in the past it has often been accompanied by insistence from the Father that there be further changes to the parenting schedule as a quid pro quo for providing that assistance. The Mother suggests in her evidence those accompanying requests are often unreasonable or inconvenient.

[131]   This Court must decide whether or not to make the proposed changes sought by the Father to the 2-2-1 Parenting Schedule for Child L. The applicable provisions of the Family Law Act that bear on this issue or are important for contextual purposes are as follows:

[132]   Notwithstanding the high level of conflict between the Parents, I have concluded that the existing 2-2-3 Parenting Schedule has worked reasonably well. Therefore, I must consider whether that existing parenting schedule or another parenting schedule, such as the proposed week on week off schedule is in the best interests of Child L.

[133]   Now I turn to the required consideration of the Child L’s best interests and a consideration of all of Child L’s needs and circumstances. I will specifically deal with the section 37(2) factors in this assessment, mindful of course that the section 37(2) factors are not exhaustive.

[134]   In considering this factor, I am relying to a great extent upon the evidence and findings contained above under the heading: “The Child L’s Circumstances Personal Background and Circumstances.” The evidence satisfies me that Child L is healthy and happy; he is emotionally supported by each parent. Child L has apparently adapted reasonably well to the existing 2-2-3 Parenting Schedule. I am mindful of his behavioural issues but in doing so, I agree with the counselling comments, observations, and suggestions of Ms. Pinder which are noted above.

[135]   As recently noted by the Honourable Judge J. Doulis in L.E.V. v. K.V., 2021, BCPC 216 at paragraph 51, another important consideration under the factor of “health and emotional well-being” is the “maximum contact principle.” In that regard, reliance is placed upon the decision of Justice N. Brown in K.L.G. v. D.J.T, 2013 BCSC 1684 at paragraph 104 where it is stated that maximum contact with both parents is consistent and harmonious with promoting the children’s emotional well-being in section 37(2)(a) of the FLA and maximum contact should also include sufficient regularity.

[136]   In my view, any decision of this court regarding parenting time must ensure that Child L enjoys maximum and sufficient regular contact with each Parent.

[137]   The Parents must be reflective about how their own interpersonal conflict and communications are impacting Child L, and must therefore take appropriate steps to remove those as contributing factors to any negative impact on the his health and emotional well-being.

[138]   The evidence does not satisfy me that Child L’s emotional and behavioural issues are such that ceasing regular transitions between the Parents’ respective residences for parenting time is necessary or desirable.

[139]   The young age of Child L makes the views of Child L inappropriate to consider. That is not to say that the availability of the ordered Section 211 Report may not have been of some benefit to the Court.

[140]   I accept that Child L has a loving and caring relationship with each of his Parents. I also accept that K.S. has a close relationship with Child L. K.S. has on occasion provided Child L with care and support, and has facilitated the transitioning of Child L for parenting time.

[141]   Child L also has a close and an important relationship with Child M, which must be preserved. Similarly, Child L has an important relationship with both the extended paternal and maternal families.

[142]   I further accept that both of the Parents have been present for Child L and attentive to Child L’s physical and emotional needs.

[143]   All of these relationships must continue to be fostered and promoted by the Parents for the benefit of each other and for Child L., as any decision of this court must ensure. Interpersonal conflict between the Parents will not accomplish this goal.

[144]   As noted below, I have concluded that the ordering of the 2-2-3 Parenting Schedule created a shared custody arrangement for Child L within the meaning of section 9 of the Guidelines and that there is substantially equal parenting time. Accordingly, I can also conclude from the evidence that since the August 24, 2022 Interim Order, which implemented the 2-2-3 Parent Schedule, both Parents have been actively involved in the care of Child L. The evidence further establishes that both of the Parents have dealt appropriately with various important aspects of Child L’s life since the implementation of the 2-2-3 Parenting Schedule. The notable exception is Child L’s exposure to the Parents’ interpersonal conflict.

[145]   I accept that prior to the 2-2-3 Parenting Schedule being in place and prior to the Separation, the Father devoted a great deal of his time to the business operations of the Proprietorship and to his volunteer fire fighting duties, thereby placing a greater historical burden on the Mother. However, the Father has remedied that and his present work schedule with the Municipal Employer has and will enable the necessary sharing of parental responsibilities by him with the Mother, for Child L.

[146]   I have concluded that both the Mother and the Father want to be responsible for the care of Child L in a very meaningful way.

[147]   In the absence of coordination and cooperation between the Parents there is a great risk that any existing or any proposed new child care arrangement may be adversely impacted and result in disharmony and have negative consequences upon Child L. That disharmony and resulting negative consequences are not in the best interests of Child L. The parenting arrangements need to be such that any disharmony or negative consequences will be mitigated. In my view, changing the 2-2-3 Parenting Schedule in itself will not provide the required mitigation. It will require extra effort on the part of both Parents.

[148]   I accept that given Child L’s present age and stage of development it is important and in Child L’s best interest to have a stable and supportive home environment. Overall, the evidence allows me to conclude that Child L enjoys both of those at present time in the respective homes of each Parent. Given the present type of parenting arrangements, I cannot conclude that there will be less stability or less support or greater stability and greater support with a change in the 2-2-3 Parenting Schedule.

[149]   Again, what may destabilize Child L’s situation is an absence of coordination and cooperation between the Parents in the implementation of any parenting arrangement they may agree to or that may be ordered by the court.

[150]   As noted above, each Parent is a good, loving and caring parent. The evidence does not raise any specific concerns about the ability of either to exercise his or her responsibilities for Child L. Both Parents have the ability and the desire to fulfil those responsibilities. There is no discernible differences between them based upon the evidence before the court.

[151]   I have some evidence before me, which indicates that the Parents have different parenting styles. I cannot find that either of these parenting styles meets a threshold of not being in the best interests of Child L. The evidence that I accept does not raise any significant safety or health risks for Child L.

[152]   Clearly, there is some disagreement about the need for and nature of counselling for Child L. In that regard, Ms. Pinder’s recommendation that both Parents attend co-parent counselling together to work on improving communication and decision-making and to increase cooperation between them would be beneficial for Child L. However, given the financial implications I will not make that an order of this court but I have made an order regarding on going counselling for Child L with Ms. Pinder.

[153]   Family violence is defined under section 1 of the FLA as follows:

[154]   Section 38 of the FLA provides guidance on the assessment of family violence as follows:

[155]   As noted above in the Introduction and with reference to the Domestic Assault Allegation, the Mother made concerning criminal allegations and a report to the RCMP against the Father, in which she accused the Father of assaulting her. The Father denies these allegations. Crown did not approve any criminal charges for assault, but did approve an allegation under section 810 of the Criminal Code alleging that there were sufficient grounds for a statutory peace bond. I infer that the failure to approve the assault charges was on the basis of Crown’s charge approval standard of a “substantial likelihood of conviction and in the public interest.” Criminal convictions are based upon the criminal standard of proof beyond a reasonable doubt. In this matter, I need only concern myself with a civil standard of proof, that being on a balance of probabilities. That said there is insufficient evidence before me in this matter for me to come to any reasonable conclusion about these assault allegations.

[156]   Each of the Parents seems to suggest that they have been subjected to a form of emotional or psychological abuse by the other, both in their heated verbal exchanges and as I take it their unpleasant electronic communications.

[157]   In S.M. v. R.M., 2015 BCSC 1344, the court held that “mutually unpleasant exchanges separated parties sometime engage in” and in particular through email and texting messages, must be distinguished from the act of family violence. Mere incivility does not attract a protection order (see: paragraphs 24 and 25).

[158]   I note that the protection orders that have been granted in this case were for the most part granted on a without notice basis. The exception is the April 5, 2023 Protection Order, of Judge Janzen, which replaced February 7, 2023 Protection Order, made on a without notice basis. The April 5, 2023 Protection Order, appears to have been granted to maintain the status quo until what was anticipated to be an early trial date to hear the adjourned application to set aside or vary the terms of the Protection Order.

[159]   I am mindful that volatile, toxic, and dysfunctional relationship between parents even without any physical violence may amount to family violence [see: L.D.M. v. R.H. M., 2014 BCPC 98 (reversed on another issue: 2014 BCSC 1673).

[160]   On the whole of the evidence that I accept, I have concluded that both Child L and Child M have been exposed to untoward behaviour on the part of both Parents which certainly has had an impact on both Children. However, I cannot conclude that these Parents have crossed the line of the very concerning behaviour that was considered in L.D.M. v. R.H.M and which was found to amount to family violence. That said, these Parents should be aware that they have both approached perilously close to that line.

[161]   Therefore, although these types of allegations are very concerning, on balance and notwithstanding my conclusion that this relationship is indeed toxic, the evidence before this court does not support a conclusion that this relationship and the Children have been impacted by any “family violence” as defined in the FLA.

[162]   Specifically there is insufficient evidence before me about the impact (if any) of family violence on Child L’s well-being and specifically there is no evidence to suggest that Child L has been the subject of or has been materially affected by family violence. However, Child L has, in my view, been impacted by the high level of conflict in the Parents’ relationship. In this regard, I concur with the apparent conclusions of Ms. Pinder.

[163]   I have concluded that based upon the evidence before me, each of the Parents must bear a measure of responsibility for the continuation of this concerning aspect of their relationship. Each also bears a mutual responsibility for their own behaviour and for finding proper means to address this concerning circumstance. Again, the Parents should take particular note of the recommendations of Ms. Pinder, which have been canvassed above.

[164]   Given my conclusions under section 37(2) (g) above, no further consideration of this factor under Section 37(2)(h) needs to be completed by this court. 

[165]   I will say that on balance I have concluded that the level of impairment that may flow from the behaviour of each of the parents is not of such a level that it results in either being unable to care for and meet Child L’s needs. However, I have concluded that to contain that impairment which arises from the Parents negative interactions then specific orders of the court will be necessary. I have addressed those in my conclusions and orders below.

[166]   These Parents are statutorily presumed under s. 39(1) of the FLA to both be guardians of Child L, and the Parties agree that they should both be guardians. The arrangements that this Court intends to order with respect to the Child L's parenting time will require a reasonable measure of ongoing communication and cooperation by the Parents.

[167]   There is no doubt that there is presently a very significant strain in the relationship between the Parents, and particularly as it relates to the matters at issue in this hearing.

[168]   At present time this is not one of those very unfortunate cases where the transitioning of children occurs at the local police detachment or by means of third parties with imposed large "bubble zones" placed upon parental parties.

[169]   Our Court of Appeal in Robinson v. Filyk, 1996 CanLii 3310 (BCCA) rejected the presumption that joint custody and joint guardianship under the then applicable Family Relations Act is appropriate only when both parents are excellent parents, there is a history of cooperation with respect to parenting of the child, and there is no valid reason to exclude a parent from having a significant input into raising of the child.

[170]   More recently our Court of Appeal in N.R.G. v. G.R.G., 2017 BCCA 407, directs that as the presiding judge, I must not give less than full and generous consideration of the best interests of the Child L by instead focusing on the ongoing attitudes and behaviour of the Parents.

[171]   While there have been some notable problems here with cooperation in the recent past, I am not satisfied that there is any risk to the safety and security of the Child L nor to any other family member that arises from a parenting arrangement for Child L which requires interaction, contact, and communication between the Parents, provided that such communication is child focussed and civil. It is evident to me that both Parents must seek to utilize appropriate means of achieving cooperation and consensus when it relates to decisions that pertain to the Child L now and in the future.

[172]   Having reached the conclusions about risks to safety, security or well-being, I further conclude there is no reason for any intervention by this Court which would significantly deprive Child L from the benefits of both Parents being actively engaged in the Child L's life and from the opportunity for them to work cooperatively in the best interests of the Child L.

[173]   In the meantime, it is in the Child L’s best interests to maintain a parenting regime that respects his health, emotional well-being, family supports, structures, safety and routines.

[174]   It is my view that both of the Parents can learn and grow from their past and recent experiences, and the issues that are the subject matters of these proceedings. I am hopeful the arrangements ordered by this Court will be an opportunity for the Parents to do all they can to make all aspects of the Child L's future experiences positive, enjoyable, and rewarding, as well as free from unnecessary stress or anxiety.

[175]   The evidence does not disclose any civil or criminal proceedings relevant to the safety, security or well-being of Child L.

[176]   While, as noted above, there have been problems here with parental cooperation and communication in the recent past, I have concluded that there are not any risks to the safety and security of Child L or Child M or any other family member that arises from the existing parenting arrangement or any other parenting arrangements that I am contemplating and may order.

[177]   However, it is clear to me that both Parents must seek to utilize appropriate means of achieving cooperation and consensus when it relates to decisions that pertain to Child L. They will be interacting with each other and will be a part of each other's lives for a number of years because of their love and devotion to Child L and because of the orders that I intend to make.

[178]   I am not entirely satisfied from the evidence and from their submissions that the Parents realize that both the focus and the contents of their direct and indirect communication with each other must be both appropriate and civil, such as to produce effective communication between them. This will be a necessary requirement for them to parent Child L in a much preferred cooperative manner and on a consensus based foundation.

[179]   Their goal needs to be implementation of efficient and respectful communication with each other. It must replace what is apparently the existing default position of difficult and strained communications, with its overlay of significant continuing personal conflict and animosity. The implementation and adherence to efficient and respectful communication will be in the best interests of Child L now and for many years to come. Accordingly, I will be making an order to provide the Parents with further guidance in their ongoing communications.

[180]   Based upon my consideration of all of the FLA s. 37 factors, and based upon the whole of the evidence, I am satisfied that it is in the best interests of Child L for him to continue to receive the benefits of a co-parenting arrangement such that the Child L will reside equally with the Mother and the Father on the existing 2-2-3 Parenting Schedule. There will be some exceptions to that in order to address concerns raised about scheduled time to accommodate family trips and recreational events.

[181]   I am further satisfied on the whole of the evidence that the parental responsibilities for Child L should be shared equally between the Mother and the Father.

[182]   Both Parents suggest that to help mitigate the significant tensions between them with respect to Child L it is necessary to have a number of comprehensive orders from this court relating to parenting time and parental responsibilities. Based on all of the foregoing, I make the following final orders (“ Final Order Number 1”):

[183]   As noted above, the Parents came to an agreement at the outset of the hearing about the parenting arrangements for Child M, having regard to the huge strains in the relationship between the Father and Child M. That agreement also took into account that the Father has no active application before the court for guardianship of his step-daughter, Child M.

[184]   In essence, it is agreed that the Mother will be declared Child M’s guardian, and that the Father will be entitled to reasonable contact with Child M, as agreed to by the Father and the Mother and having regards to the expressed wishes of Child M.

[185]   Consent orders regarding parenting arrangements must still take into account the best interests of the child.

[186]   Accordingly, I have considered the factors set out in section 37(2) of the FLA as they relate to Child M. Most of the conclusions I reached with respect to the best interests of Child L also apply to Child M.

[187]   In considering this factor, I am again relying to a great extent upon the evidence and findings contained above under the heading “Child M’s Personal Background and Circumstances.”

[188]   In this situation, the behaviour of Child M in the early part 2023 is of concern to this court. I am of the view that the Mother is overly minimizing that behaviour and the emotional impact of the Separation and the behaviour of the Parents on Child M. I am of the view that accessing professional help by way of counselling would be of significant benefit to Child M. However, at this juncture, I am not prepared to formalize that by way of a court order.

[189]   It would have been very helpful to this court to have the ordered Section 211 Report and the Section 211 Views of the Child M before the court, but those reports were not available prior to the commencement of the hearing.

[190]   Both the Mother and the Father testified as to their belief about the views of Child M as it related to various parenting arrangements and the causes of Child M’s reluctance to continue with the Father’s visitation with her.

[191]   I have concluded that the views of Child M are appropriate to be considered in this matter. However, those views are only before this court on the basis of the testimony of the Parents, which has been filtered through the emotional lens of their own mutual disharmony. Again, this emphasizes the potential value of the Section 211 Reports. 

[192]   As of the dates of the hearing of this matter, I have concluded that the relationship between the Father and Child M is in need of some significant remedial steps on behalf of the Father and Child M, with the support of the Mother, in order to repair the relationship. However, I have concluded that the continuation of the relationship with the Father is in the best interests of Child M.

[193]   I have further concluded that there is no benefit and it is not in the best interest of Child M to attempt to force her to have that relationship with the Father and accordingly there will be no order to that effect.

[194]   The evidence supports the conclusion that the growing strains within the relationship of the Mother and the Father negatively impacted Child M’s relationship with each of them.

[195]   For a considerable period of time the Father had a very positive relationship with Child M and he was very supportive of her.

[196]   There appears to be a strong relationship between Child M and Child L, which the Parents should continue to foster and particularly when the parenting arrangements will not permit them to be together as much.

[197]   The same conclusions can be reached about Child M, the history of her care, and for the various reasons stated above when I considered this factor as it related to Child L. In my view, the Father would be more than capable of caring for Child M should regular contact be instituted between the two of them.

[198]   There is nothing other than the Mother’s unsettling speculation and unsubstantiated concerns about the Father posing a sexual risk to the Child M, which would lead me to believe that the Father’s contact with Child M should be restricted. I reject that speculation on the part of the Mother.

[199]   I accept that given the Child M’s present age and stage of development it is important and in Child M’s best interest to have a stable and supportive home environment. The Mother is providing that to her, but it could be enhanced by the resurrection of the relationship between the Father and Child M with the support of the Mother.

[200]   As it relates to Child M, I have concluded that historically both the Mother and the Father have been good, loving, and caring parents for Child M. I have no concerns about the parenting abilities of either of them, nor any concerns that any future scheduled contact between the Father and Child M would not be in the best interests of Child M.

[201]   I have reached the same conclusions with respect to Child M regarding family violence considerations as I did with respect to Child L and as described in my analysis under this same heading above relating to Child L.

[202]   Although the context is different with respect to Child M, I have reached the same conclusions under the consideration of the need of the Parents to cooperate on issues affecting Child M, in considering the best interests of Child M, as I did with respect to Child L.

[203]   Based upon all of the above there will be the following final orders with respect to Child M (“Final Order Number 2”):

[204]   Section 147 (1) of the FLA imposes the duty upon each parent and guardian of a child to pay child support; thus parents have a joint and ongoing obligation to support their children. The amount of child support is based not only on the parents’ earnings, but also on what they can earn. For this reason, the Federal Child Support Guidelines (the “Guidelines”) empower the court to impute income for a payor parent who is intentionally unemployed or under-employed. This does not require a finding of bad faith on the part of the payor, only that the payor is not earning to capacity. (see: Barker v. Barker, 2005 BCCA 177 at para. 19, cited with approval in Koch v. Koch, 2012 BCCA 378 at para. 3)

[205]   Section 150(1) of the FLA requires that a child support order must be determined in accordance with the Guidelines. Despite subsection (1) and pursuant to the provisions of subsection (2) “a court may order child support in an amount different from that required by the Guidelines if the parties consent to an order being made under section 219 of the FLA… or have an agreement respecting child support [see section 148] and the court is satisfied that reasonable arrangements have been made for the support of the child.” Under subsection 3, “the court must consider the Guidelines for the purposes of subsection 2, but must not consider the arrangements made for child support to be unreasonable only because the amount required under the Guidelines differs from those arrangements.”

[206]   Furthermore, despite subsection 150(1) of the FLA , a court may, pursuant to subsection 4(a) and (b), order child support in an amount different from that required by the Guidelines if the court is satisfied that “an agreement or order respecting the financial duties of the parents or guardians or the division or transfer property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and applying the Guidelines would be inequitable on consideration of the agreement, order or special provisions. “

[207]   Section 150(5) directs that a court must give reasons for doing so if it makes an order respecting child support in an amount different from that required under the Guidelines.

[208]   Under section 148 (2):

[209]   Under section 148(3) on the application by a party, the court may set aside or replace with an order made under Part 7, Division 2 of the FLA 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 determining child support under section 150.

[210]   Section 152(1) of the FLA permits the court to “change, suspend or terminate an order respecting child support both prospectively or retroactively.” Before making such an order, the court must be satisfied that a change in circumstances as provided for in the Guidelines has occurred, there is evidence of a substantial nature not available during the previous hearing that has become available, or there is evidence of a lack of financial disclosure by a party that was discovered after the last order was made.

[211]   Section 1 (a) to (d) of the Guidelines states that their objectives are:

[212]   The presumptive rule under section 3 of the Guidelines is that the amount of child support for a child under the age majority is the amount of the payor’s guideline income set out in the applicable tables of the Guideline; and the amount, if any determined to be, the special or ordinary expenses as set out in section 7 of the Guidelines.

[213]   Under section 6 of the Guidelines the court may order medical or dental insurance coverage to be acquired or continued for a Child where it is available to a spouse through their employment or otherwise at a reasonable rate.

[214]   Section 8 of the Guidelines deals with split parenting time arrangements whereby:

[215]   Section 9 of the Guidelines deals with shared parenting time arrangements whereby:

[216]   Sections 10 (1) of the Guidelines permits the court upon application of either parent to award support that is different than the amount of support determined under sections 3 to 5, and 8 or 9 of the Guidelines if the court finds that the spouse making the request would otherwise suffer undue hardship. The circumstances that cause undue hardship may include those that are set out in section 10 (2). If the court finds that undue hardship exists under section 10(1) then the court must compare the household standards of living of the two parents under sections 10 (3) and (4).

[217]   Section 14 of the Guidelines sets out any one or more of the things that give rise to a change of circumstances and may give rise to the making of a variation of a child support order, including a change in a level of support in accordance with an applicable Guidelines table.

[218]   Pursuant to section 15 of the Guidelines and subject to subsection 15 (2) a spouse’s annual income is determined by the court in accordance with sections 16 to 20. Pursuant to section 15(2) of the Guidelines, spouses can agree in writing to the annual income of a parent for the purposes of the Guidelines. The court can use this amount where the court determines that the amount is reasonable having regard to the income information provided by the payor parent under section 21 of the Guidelines.

[219]   Pursuant to section 16 of the Guidelines, a spouse’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General Form issued by Canada Revenue Agency. It is adjusted in accordance with Schedule III of the Guidelines. Schedule III sets out adjustments to income for: employment expenses, child support, spousal support, and universal child care benefits for the purposes of calculating income for special or extraordinary expenses, for social assistance that is not attributable to that spouse, for the treatment of dividends from taxable Canadian corporations, for capital gains and losses, for business investment losses, carrying charges, net self-employment income, capital cost allowance for property, partnership or sole proprietor income, stock options received as an employee benefit, and for split-pension amounts.

[220]   Under section 17, the court may have regard for a spouse’s income over the last three years and determine an amount that is fair and reasonable in light of a pattern of income, fluctuation in income or receipt of a non-reoccurring amount during those years. Such discretion may be exercised if the determination of income under section 16 would not be the fairest determination of that spouse’s income.

[221]   The court may impute income under sections 16 to 21 of the Guidelines. 

[222]   Pursuant to section 19 of the Guidelines the court may impute such amount of income to a spouse as it considers appropriated in the circumstances, which include amongst other: under ss (a) where the spouse is intentionally under-employed or unemployed, but subject to some exceptions; under ss (b) where a spouse is exempt from paying federal or provincial income tax; under ss (d) where it appears that income has been diverted which would affect the level of child support to be determined under the Guidelines; and under ss.(g) where the spouse unreasonably deducts expenses from income

[223]   Specifically under section 23, income can be imputed in the situation where there has been a failure to comply with the parents obligation set out under section 21 to provide income information as detailed there in.

[224]   In January of 2017, the Father started his own business, operating as a sole proprietor under the business name of [omitted for publication], which continued in operation until April of 2023 (the “Proprietorship”).

[225]   In April of 2023, he took a position as a general labourer and continues as a full time unionized employee with the [omitted for publication] (the “Municipal Employer”).

[226]   In the course of these Provincial Court Proceedings the Father filed one Form 4 Financial Statement on April 22, 2022, (the “Father’s Financial Statement”) which was entered as Exhibit 12. Thereafter he filed additional affidavits with updated information regarding his income derived from both the Proprietorship and from the Municipal Employer, but did not provide updated information regarding other matters set out in the Father’s Financial Statement, such as his Assets and Debts.

[227]   The Father’s Financial Statement is somewhat complete. It appears it was prepared without the assistance of legal counsel. Of note, he states that his “Total Income before adjustments” is $61,919.48. His annual expenses total $58,941, which includes the annual rent, utilities, and insurance for the Father’s Rental Accommodation totalling $34,100, with annual rent shown to be $22,800 and “property taxes and strata fees” being shown at $1,500 and utilities at $9,800. Annual Food and Household Supplies totalling $9,000; annual Transportation expense of $8,481; annual Clothing and Self-care expenses of $2,700; annual Heath & medical expense of $600, annual Children expenses shown to be a nil amount; annual Miscellaneous and Other Expenses of $2,400 and annual Premiums, Contributions and Debt Repayment expenses of $1,660.

[228]   In the Father’s Financial Statement under Debts, he discloses outstanding income tax obligations for 2021 of $15,674.48, and for 2020 of $17,080.37, and GST due of $3,287.29 for 2021, and $5,731.13 for 2020. The total indebtedness for these unpaid taxes total $41,773.27. The Assets include his one half interest in the Father’s property inherited from his own mother (with an undetermined marked value) with the other half interest owned by his brother; a full interest in the camping trailer with a value of $10,000; a 2001 pickup truck which was used in the business operations of the Proprietorship valued at $10,000; and a 1991 Harley Davidson motorcycle valued at $6,000. There is no disclosure of any interest in or the value of the Proprietorship.  

[229]   The Father’s Financial Statement discloses bank accounts as follows:

[230]   There is also disclosed what is characterized as a “former joint savings account” with the Mother with a balance of $23,610.36. It is not entirely clear as to whether the Father has actual control over or access to that account, or whether it is in the possession and control of the Mother. The Father’s evidence suggests that this amount was withdrawn by her in July of 2021 and has been kept by her. Therefore as of November 24, 2023, there was no money in that former joint account. 

[231]   The Father testified that he prepared the Father’s Financial Statement before he and K.S. started to cohabitate. He testified that he now pays for all of the rent for the Father’s Rental Accommodation without contribution from K.S. because she has the ongoing expense of the Nanaimo rent. He testified that K.S. pays the utilities, but he also indicated that the Proprietorship has historically claimed the home utilities as a business expense. He testified that he pays 70% of the Food and Household supplies, including dining out expenses and K.S. pays 30%. They apparently pay their own Transportation expenses. The Father’s annual fuel expense has decreased from $5,600 to approximately $3,600 since he took his position with the Municipal Employer.

[232]   The Father further testified on November 24, 2023, that since the preparation of the Father’s Financial Statement, there have been other changes. All of the Father’s debts have been paid from the inheritance that he received from his own father. He now has $30,000 in his chequing account and $26,000 in his savings account. The Proprietorship bank account has a balance of $1,000.

[233]   As previously noted, the Father earned his income from January of 2017 to March of 2023 through the operations of the Proprietorship. He testified that he is no longer earning income through the activities of the Proprietorship.

[234]   The Father’s T1 Income Tax and Benefit Returns for each of 2019, 2020, 2021, and 2022 contain a Statement of Business or Professional Activities (the “SBPA”) for the Proprietorship.

[235]   In taxation years 2019, 2020, and 2022, the Father was a volunteer fire fighter and therefore was apparently eligible for a tax exempt volunteer firefighters’ amount (“VFA”) or tax exempt income for emergency services volunteers of $1,000. He reported the latter on his 2019, 2020, and 2022, Income Tax and Benefits Return. It appears that the Father also earned employment income from his volunteer fire fighting work of between $2,500 and $2,900 per annum. In each year, there is shown to be RRSP income and some “other” not specified income.

[236]   Based upon the Father’s T1 Income Tax and Benefits Plan return filed for 2019 he had a combination of $2,602 of employment income, RRSP income of $1,666, other income of $346 and Net Business income of $99,756. Thus, his Line 150 income was $104,371 (rounded). His Gross Business Income net of GST and Provincial sales tax was $220,876; deducted from that were the costs of purchases, subcontracts and other costs for a total of $95,839 leaving a gross profit of $125,037. His claimed business expenses totalled $21,146 including utilities of $2,918, motor vehicle expenses of $10,650, and a capital cost allowance of $2,144. The calculation of business use of home expenses showed total expenses of $33,070, less the personal use part of $28,936 for a claimed deduction amount of $4,134. When expenses were deducted the Net Business income equalled $99,756. He reported $1,000 of tax exempt VFA income which was not included in his Line 150 income. The return was for the most part assessed by CRA as filed, but the Notice of Re-assessment showed a final debit amount for the previous account balance. The Father testified that he was working long hours, sometimes 12 hours per day and 6 days per week during that taxation year.

[237]   Based upon the Father’s T1 Income Tax and Benefits Plan return filed for 2020 he had a combination of $2,949 of employment income, no RRSP income, no miscellaneous income and Net Business income of $63,953. Thus, his Line 150 income was $66,903. However, that return was reassessed by CRA and his line 150 income was determined at $68,568 (rounded). There are insufficient details to determine the reason for the reassessment. In the filed return, his Gross Business Income net of GST and Provincial sales tax was $151,689. From that was deducted the costs of purchases, subcontracts and other cost for a total of $51,013 leaving a gross profit of $100,675 (rounded). His claimed business expenses totalled $36,722, including $6,539 for office stationary and supplies, $8,000 for rent (which he said was 1/3 of the total rent for the Father’s Rental Accommodation), $2,918 for utilities, $11,657 for motor vehicle expenses and capital cost allowance of $1,501. No business use of home expenses were claimed. After all deductions the Net Business income equalled $63,953. He reported $1,000 of tax exempt VFA income, which is not included in his Line 150 income. He conceded in his testimony there may have been a “few thousand dollars” of unreported income by way of cash jobs but noted that he was incentivized to have a high reported income to qualify for a mortgage. The business income was obviously down from 2019 but it is noteworthy that this was also the year of the COVID pandemic and the year of the birth of Child L, which according to the Father both reduced his available working time, and permitted him to devote more time to his family.

[238]   Based upon the Father’s T1 Income Tax and Benefits Plan return filed for 2021 he had no employment income, RRSP income of $1,667, other unspecified income of $122 and Net Business income of $60,119. Thus, his Line 150 income was $61,919 (rounded). His Gross Business Income net of GST and Provincial sales tax was $190,425, deducted from that were the costs of purchases, subcontracts, and other costs for a total of $101, 293, leaving a gross profit of $89,131. His claimed business expenses totalled $29,112 including utilities of $3,786, office stationary and supplies totalling $6,497, motor vehicle expenses of $7,977, a capital cost allowance of $1,050, and an unexplained reduced entry for rent expense of $4,281. There was no claim for business use of home expenses or the personal use part. When the claimed expenses were deducted, the Net Business income equalled $60,119. He did not report any VFA tax exempt income. The return was assessed by CRA as filed. This tax year covered the year of the Separation. The Father says he was not able to work as much or the same long hours as he had in 2019 and he arranged to take more time off. The Father testified that he was dealing with his own father’s illness and eventual death towards the end of 2021, the stresses within his own family, and the Separation in August of that year. He also testified about his own depression, for which he sought counselling. The Father produced no medical or other confirming evidence about his depression and its impact upon his ability to work, but I understand that Mother does not dispute that the Father was suffering from depression. The extent of that depression is unclear.

[239]   Based upon the Father’s T1 Income Tax and Benefits Plan return filed for 2022 he had a combination of $1,784 of employment income, RRSP income of $1,667, other income of $350 and Net Business income of $8,006, thus, his Line 150 income was $11,807. His Gross Business Income net of GST and Provincial sales tax was $136,003, from that was deducted the costs of purchases, subcontracts, and other costs for a total of $99,989 leaving a gross profit of $36,014. His claimed business expenses totalling $28,008 including rent of $4,750, utilities of $3,939, motor vehicle expenses of $10,883, and capital cost allowance of $735. There was no claim for or calculation of business use of home expenses. When all expenses were deducted, the Net Business income equalled $8,006. He reported $1,000 of tax exempt income for the VFA which is not reflected in his Line 150 income. No CRA Notice of Assessment was submitted for the 2022 return. The Father testified that during this taxation year he had reduced his working day to 7 or 8 hours per day, usually five days per week from the 12-hour days and longer weeks he previously put into the Proprietorship’s business. He cited an overall decline in his work and the type of work, noting things such as the huge increase in the cost of materials and an increased amount of subcontracting on his projects. He further mentioned that the time spent in court dealing with the family issues interfered with his available time for work. It is unclear how the Father was dealing with the ongoing expenses set out in the Father’s Financial Statement. The very significant decline in the Father’s income is not fully, nor in the very least, adequately explained by him. Thus, it raises the question as to whether the Father was intentionally under-employed in 2022 or relying on non-reported income from “cash jobs”. He certainly did not have the same incentive to put in longer working hours, pursue new business and to report all of his income as he did in 2019 when he and the Mother were seeking to qualify for a mortgage. I will deal with the intentionally underemployed issue more fully below.

[240]   The Father’s 2023 estimated income is based upon his projected employment income from the Municipal Employer, starting from April of 2023 to December 31, 2023, and utilizing projected numbers based upon his pay record for the period ending October 23, 2023, which results in an estimated employment income of $41,337 for a nine month period. In cross-examination, the Father conceded that he took a minimum of one week of unpaid leave for travel and to attend court in these proceedings. He further conceded and accepted the Mother’s suggestion that not including any overtime or call out time, his expectant annual wages with the Municipal Employer will be at least $58,695. The Father has not disclosed any other income for 2023 from other sources such as the VFA or employment income from his volunteer firefighting activities or from an RRSP. I understand from his evidence that he intends to resume his volunteer fire fighting duties shortly.

[241]   He has disclosed some 2023 business income from the Proprietorship by way of two paid invoices namely Invoice 23-001 and Invoice 23-002 both rendered to the same customer. The Father has not provided anything in the nature of the information contained in the SBPA for the 2023 operations period of the Proprietorship that actually appear in his prior T-1 Income Tax and Benefits returns, which have been entered into evidence. He testified that his gross business income shown on Invoice 23-001, based upon his general labour charges of $6,630 (charged at $65 per hour) and the Proprietorship’s 15% mark-up charge on an electrical sub contract invoice totalled $7,554, all before any deductions for expense. His gross business income on Invoice 23-002 based upon his general labour charges of $7,215 (again charged at $65 per hour) and the Proprietorship’s 15% mark-up charge on a plumbing sub contract invoice and an electrical sub contract invoice totalled $8,610 before any deductions for expenses. These two amounts of gross business income total $16,164.

[242]   The information regarding the filed T1 Income Tax and Benefits described above and the estimated income for 2023 can be summarized in Table 1 below. The unreported income for 2019, 2020, 2021 and 2022, and the tax exempt VFA amounts from the volunteer fire fighting activities are not included in Table 1.

[243]   I have reached the conclusion that based upon all of the information summarized above, this is a situation in which merely relying on the Line 150 income of the Father will not accurately reflect his income that should be used for child support calculations.

[244]   In my view, the following factors must be considered:

[245]   The Father’s VFA tax exempt income, while exempt from income tax calculations, can be considered when determining what amount should be used to calculate child support, pursuant to 19(1)(b) of the Child Support Guidelines. In my view it should be included like other tax exempt income derived from services which have a significant community benefit, such as foster care ( see: Cole v. Cole, 2010 BCSC 1330) or services to disabled individuals (see: L.L.M. v. T.R.M., 2022 BCPC 95). I estimate that the $1,000 tax-exempt  income amount grossed would equal $1,300 for each of the taxation years 2019, 2020, and 2022.

[246]   The Father admitted to receiving non-reported income from “cash jobs” within a range of $2,000 to $3,000 in certain years but did not specifically deny that it was a common pattern during the operations of the Proprietorship. I must take all of that into account and add an amount to the Father’s disclosed income as permitted by s.19(1) (d) of the Guidelines.

[247]   The percentage of claimed business expenses in relation to gross profits of the Proprietorship in each year is very telling and may be summarized as follows in Table 2.

[248]   The Father testified that the SBPA schedule used to set out the Proprietorship’s business expenses in each income tax return was based upon information provided by him to his accountant. He asserted that there were receipts to support the various expenses, but none were produced during the hearing nor did he produce any working papers or details to assist in a review of the reasonableness of those expense. The Father’s recall of some specifics as to what was included in certain categories of claimed expenses, such as those for office expenses and office stationary and supplies, was somewhat lacking.

[249]   I am of the view that when child support is at issue, there is a high onus on a payor party to inform themselves about their business expenses and their own financial circumstances as they relate to that business and to ensure that they have an adequate understanding about their available income to pay child support. I previously adopted this approach in connection with the financial operations of a corporation controlled by a payor party in S.M.K. v. S.T.K., 2019 BCPC 4 at paragraph 125. In my view this high onus applies equally to any proprietorships or partnerships operated by such a payor parent. I have concluded that the Father has not adequately discharged that onus. Hence, I may rely on section 19(1) (g) of the Guidelines in determining how much income should be imputed to the Father.

[250]   Several of the expenses claimed as business expenses have a significant personal use aspect to them, such as rental of the home, utilities and the automotive expenses and must be viewed in that context. As noted by Justice N. Smith in Code v. McLeod, 2023 BCSC 1686, at paragraph 61, relying upon M.T. v. J.S., 2023 BCCA 64 at paragraph 15:

[251]   I am of the view that business deductions of the Proprietorship must be examined through this same lens and that approach is to be followed in this case.

[252]   However, there is little utility or necessity for the court to conduct a line-by-line assessment or analysis of each expense item. The court should not be placed in the position of completing something in the nature of its own forensic audit. A broader brush approach is reasonable, rational and practical. [See: H.E.D. v. B.W.P. 2017 BCPC 292 at paragraph 385]. As recommended in Riemersma v. Riemersma, 2013 BCSC 474, a “common sense approach” to analysing financial information and in assessing income is entirely warranted in this matter.

[253]   It is very clear from Table 2 that there is absolutely no correlation between the Proprietorship’s total of the claimed BEUHE on one hand and the amount of the Proprietorship’s Gross Profit Before Expenses on the other. The years 2019 and 2022 shown in Table 2 are illustrative of that conclusion.

[254]   In my view, the combined Proprietorship’s claimed business expenses and business use of home expenses (i.e. BEUHE) for 2019, but with an adjustment for the personal use component, are the best determiner of the Proprietorship’s actual allowable expenses when dealing with the issue of child support. I would reduce the BEUHE to $20,000 from the claimed amount of $25,379 thus producing additional Gross Business Income Net of GST & PST of $5,379 for a total of $130,416. That means that the percentage of those adjusted business expenses to the adjusted Gross Business Income for 2019 equals approximately 15%.

[255]   Accordingly, I would allow $20,000 for the Proprietorship’s business expenses for each year in 2020, 2021 and 2022. I have used a different approach for 2023 as described below.

[256]   Based upon the foregoing, I have concluded that for child support purposes the Father’s income for the relevant years in question needs to be imputed on the basis described below.

[257]         The year 2020 is relevant for the required overall analysis and comparison purposes. For that year I have concluded that the BEUHE of $36,772 is to be reduced by $16,772 ($36,772- $20,000= $16,772). That amount of the difference together with other amounts are to be added to the Line 150 income together with other adjustments described above as follows for a 2020 imputed income of $88,640:

[258]   The year 2021 is relevant as a basis of calculating child support following the Separation. For that year, I have concluded that the BEUHE of $29,112 is to be reduced by $9,112 ($29,112 - $20,000=$9,112). That amount of the difference together with other amounts are to be added to the Line 150 income together with other adjustments describe above as follows, for a 2021 imputed income of $73,031:

[259]   The year 2022 is relevant as a basis of calculating child support. For that year I have concluded that the BEUHE of $28,008 is to be reduced by $8,008 ($28,008 - $20,000 = $8,008). That amount of the difference together with other amounts are to be added to the Line 150 income together with other adjustments describe above as follows, for an initial imputed income of $23,115 calculated below, but that 2022 imputed amount requires some further adjustment:

[260]   It is noteworthy that for 2022 the Proprietorship’s Gross Profits before Taxes of $36,149, (before any further adjustments) is very low having regard for those amounts in the Proprietorship’s prior years of 2020 and 2021 and even the first two months of income in 2023. Given the variation in the levels of Gross Profit and the net income, I must now deal with the issue of whether or not the Father was intentionally underemployed in 2022 as contemplated by section 19(1) of the Guidelines.

[261]   As noted above, Section 19(1) of the Guidelines allows the court to impute income where

[262]   Generally speaking, bad faith is not required to prove intentional unemployment for the purposes of section 19(1)(a) of the Guidelines: see Hanson v Hanson, 1999 CanLll 6307 (BCSC) at paras 10-13. I accept that as a principle when determining intentional under-employment.

[263]   In the seminal child support decision of Earle v. Earle 1999 CanLII 6914 (BCSC) Madam Justice Martinson says as follows:

[264]   Based upon all of the evidence before me that I accept, I find that the Father was intentionally under employed during 2022. Therefore, I impute his income for child support for the year 2022 to be the amount of $68,000.

[265]   The analysis and determination of the Father’s 2023 income for child support purposes presents other challenges. There is both employment income and Proprietorship Income to consider. The Father’s employment income from the Municipal Employer based upon the pay slips presented does not clearly show the amount of voluntary time the Father took off during the year and the financial cost to him. In addition, it is not entirely clear on the Father’s evidence why he did not take up further work as a volunteer firefighter during the year, which would have provided him with both the VFA and some other employment income. He has not disclosed other historical sources of income that he has received. The calculation of his net income from the operations of the Proprietorship is unclear because of a complete lack of information about business expenses for 2023. Thus, I would allow as reasonable business expenses of 15% of the estimated Gross Business Income Net of GST & PST which has been estimated at $16,164 on the basis of the two invoices presented. Therefore, that 15% percentage equals $2,424 for the Proprietorship’s allowable expenses for that period and produces a net amount of $13,740. He has not disclosed any unreported income for this period. There is nothing to suggest that he is not permitted by his Municipal Employer to use his skills to do some side work, such as smaller renovations, during his time off.

[266]   As a first step to imputing the Father’s income for 2023, I would estimate it to equal $55,077 as calculated below, but which amount requires further adjustment:

[267]   Taking into account the voluntary time taken off from his employment without pay from the Municipal Employer for travel and to permit his attendance in court, his delay in pursuing employment as a volunteer firefighter and an apparent lack of pursuit of part time work as a carpenter, and the reasonable possibility of unreported Proprietorship income, I would impute the Father’s income for child support for 2023 to be a further adjusted amount of $65,000.

[268]   I do not find that the Father’s decision to take up employment with the Municipal Employer, given that it is steady employment with benefits, to be in the nature of the Father being intentionally under-employed.

[269]   Based upon the above, the Father’s imputed income for child support purposes for the above noted years is summarized in Table 3 below.

[270]   In the course of these Provincial Court Proceedings the Mother filed two Form 4 Financial Statements (the “Mother’s Financial Statements”):

[271]   The Mother’s 2022 Financial Statement was substantially complete. It appears that it may have been prepared with the assistance of legal counsel. Of note, she states that her “Total Income before adjustments” is $50,750. Her annual expenses total $48,220, which includes the annual rent, utilities and insurance (possibly for the Family Rental Residence to which the Father had made contributions and not the Mother’s Rental Accommodation which she alone paid) totalling $13,600, and annual Food and Household Supplies totalling $11,100. Her annual Transportation expense of $10,800, annual Clothing and Self-care expenses of $2,400, annual Health & medical expense of $600, annual Children expenses of $6,000, annual Miscellaneous and Other Expenses of $1,800 and annual Premiums, Contributions and Debt Repayment expenses of $1,920.

[272]   In the Mother’s 2022 Financial Statement she discloses a vehicle loan owing of $10,241.96 as a Debt. The Assets include a claim for a one half interest in the Father’s property inherited from his own mother (with an undetermined marked value), a half interest in the camping trailer being of a value of $14,000, the motor vehicle subject of the loan valued at $15,999, an RRSP of $3,000, the Hobby Businesses (infra) valued at $5,000 and a half interest in the Proprietorship (with an undetermined value). The combination of her savings and personal chequing account total $36,284.

[273]   The Mother’s 2023 Financial Statement does not appear to have been prepared with the assistance of a lawyer. It is incomplete in a number of ways.

[274]   In the Mother’s 2023 Financial Statement, her “Total income before adjustments” reflects her change of employment, as described below, and it is stated to be $31,200 based upon 30 hour per week at $20 per hour. Her annual expenses total $56,900. That includes the annual rent, utilities, and insurance presumably for the Mother’s Rental Accommodation totalling $32,588; annual Food and Household Supplies totalling $8,400; annual Transportation expense of $10,212 including car loan repayments totalling $5,232 per annum; annual Clothing and Self-care expenses of a nil amount; annual Heath & medical expense of $300; annual Children expenses of $4,200, which appear to be attributable only to day care expenses; annual Miscellaneous and Other Expenses of $1,200; and annual Premiums, Contributions and Debt Repayment expenses shown as a nil amount.

[275]   The significant differences and especially the increase in Housing expenses were not adequately explained in the evidence by the Mother, nor subject to cross-examination. But as I understand, it resulted from the Mother moving out of the Family Rental Residence that she and the Father occupied at the time of the Separation and into the Mother’s Rental Accommodation. As mentioned above, there is some evidence that the Father was contributing to the Mother’s household expenses and rent immediately after the Separation up to and including January of 2024 being in or around the time that the Mother departed from the Family Rental Residence. There is also some suggestion that R.J. may have been sharing some of the Housing expenses when he was residing with the Mother in the Family Rental Residence or possibly the Mother’s Rental Accommodation. These contributions may account for the lower amounts attributed to Housing in the Mother’s 2022 Financial Statement.

[276]   No mention is made in the Mother’s 2023 Financial Statement of any assets except for a combined savings and chequing account balance of $55,000, of which $46,000 was the balance of the Severance Payment. The Mother further discloses a change in her debts, with a larger car loan of $34,000 with a different bank and a credit card balance of $2,000. No vehicle is disclosed as an asset.

[277]   The Mother had a fourteen year career from December 2008 to November 2022 with an entertainment and regulating gambling business (the “Mother’s Former Employer”). She held managerial positions with that organization. As I understand from both her evidence and based upon the documentary evidence, she was earning approximately $4,276 per month which is on an annualized basis is approximately $51,313.00.

[278]   In September 2018, she was required to take medical leave due to her pregnancy with Child L. She was on Employment Insurance for one year of her 18-month maternity leave. The business operations of the Mother’s Former Employer were interrupted by the COVID pandemic and hence only reopened in July 2021. During the COVID closure the Mother received CERB income replacement benefits of $2,000 per month for a total of $14,000. As I understand it, she returned to work with the Mother’s Former Employer in or around July 2021.

[279]   Based upon the Mother’s T1 Income Tax and Benefits Plan return filed for 2018 she had a combination of employment income, Employment Insurance and some interest income to comprise her Line 150 income of $47,056.45. That filed return submitted into evidence does not disclose a Canada Child Benefit (“CCB”) calculation or confirm the amount of receipts for CCB. The return was assessed by CRA as filed.

[280]   Based upon the Mother’s T1 Income Tax and Benefits Plan return filed for 2019 she had a combination of a small amount of employment income, Employment Insurance and some interest income to comprise her Line 150 income of $28,044.43. The return was assessed by CRA as filed. That filed return submitted into evidence contains a CCB for the period from July 2020 to June 2021 for two children namely Child L under the age of 6 and being in “shared custody” and Child M not being in shared custody with total payments for that period anticipated to be $217.08 per month totalling $2,604.97, all subject to CRA confirmation. No “Hobby Business Income” as herein defined has been disclosed or included in this return.

[281]   Based upon the Mother’s T1 Income Tax and Benefits Plan return filed for 2020 she had a combination of a small amount of employment income, Employment Insurance, a CERB receipt and some interest income to comprise her Line 150 income of $15,724.19. The return was assessed to show Line 150 income at $15,723. That filed return submitted into evidence contains a CCB worksheet calculation for the period from July 2021 to June 2022 for two children namely Child L under the age of 6 and being in “shared custody” and Child M not being in shared custody with total payment for that period anticipated to be $408.24 per month for 10 months, and $558.24 per month for 2 months (July 2021 and October 2021) totalling $5,198.87, all subject to CRA confirmation. No “Hobby Business Income” as herein defined has been disclosed or included in this return.

[282]   Based upon the Mother’s T1 Income Tax and Benefits Plan return filed for 2021 she had employment income to comprise her Line 150 income of $22,899.36. So far as I can determine, no Notice of Assessment for this return has been submitted into evidence. Her filed T1 contains a CCB worksheet calculation for the period from July 2022 to June 2023 for one child namely Child L under the age of 6 as being an eligible child (but not being in “shared custody”) and Child M as being an eligible child (but not being in shared custody) with total payment for that period anticipated to be $1,075 per month for 12 months, totalling $12,900, all subject to CRA confirmation. No “Hobby Business Income” as herein defined has been disclosed or included in this return.

[283]   Based upon the Mother’s T1 Income Tax and Benefits Plan return filed for 2022 she had employment income to comprise her Line 150 income of $47,763. It is very noteworthy that in November 2022, her employment with the Mother’s Former Employer was terminated and she received 14-months severance in a gross amount of $60,688.51 (the “Severance Payment”). That amount is included on Line 13000 as “Other income” in the return. An amount of $178 is disclosed as interest income. The Mother’s total Line 150 income totalled $108,631. No “Hobby Business Income” as herein defined has been disclosed or included in this return. So far as I can determine, no Notice of Assessment for this return has been submitted into evidence.

[284]   Although termination for cause was not alleged, the Mother says that significant challenges in her personal life including the collapse of her relationship with the Father, the ensuing Separation, their on-going disputes, and the subsequent Court proceedings appearances negatively impacted on her mental and emotional health and her ability to perform her employment duties. No independent evidence was adduced. She says that after withheld income tax she netted $45,567 from the Severance. To date she has used approximately $27,000 of the Severance Payment to financially support herself and the Children.

[285]   The Mother found replacement employment starting apparently in or around the 15^th day of January of 2023 with in a local family owned, franchised location of a healthy, fast food - alternative business (the “Mother’s New Employer”). She started at $20.00 per hour. She has become the assistant manager, but is required to perform frontline service duties as well as supervisory and managerial functions in the absence of the owner-manager. She now earns an hourly wage of $25.00, and she receives income from gratuities, which she has not yet declared on her income tax returns. Other employees earn $16 to $19 per hour. She does not receive, nor expect to receive any bonuses in her present position. The Mother receives no additional employee benefits for herself or the Children. She anticipates her income from the Mother’s New Employer will be in the gross amount of $35,000 to $36,000 per annum, not including gratuities.

[286]   The amount of her gratuities is extremely variable and can vary on a monthly basis from $200 to $900 throughout the year. She has observed that her gratuities have been declining since the summer and continuing into the late fall, such that she anticipates to receive around $500 for the month of November and hopefully a similar amount for December of 2023. She expects that the gratuities will not start increasing until after February of 2024. She receives the gratuities from Mother’s New Employer in the following month by way of a separate cheque from which no income tax is withheld by her New Employer. She does not have to share gratuities with the other employees. From January 2023 to November 24, 2023, she says that she has earned $8,215 in gratuities and she is hopeful that by end of December of 2023, all going well, she may receive a total of $9,215 but emphasises that is still speculative. She testified that she intends report the gratuities on 2023 Income Tax Return.

[287]   She is of the belief that at present time this is the best employment she can obtain locally without returning to school, which will be difficult for her.

[288]   The Mother has two other part-time jobs both before and after the Separation which were described in her evidence as “hobby businesses.” She characterizes them as much the same as the Father’s interest in volunteer fire fighting activities for which he receives some nominal compensation and the VFA. In these reasons, I will describe the income derived by the Mother from both of these businesses (the “Hobby Businesses”) as the “Hobby Business Income”.

[289]   One of the Hobby Businesses involves photography, which she has conducted for some 12 years (the “Hobby Photography Business”). She has purchased a significant amount of equipment for use in that endeavour. She maintains a Facebook page to attract customers, but states that a lot of her engagements are for friends and family. If she receives $1,000 for a number of sittings she says might net out $200 after all of her costs. As I understand from her evidence, she usually charges a rate of $150 per sitting but provides a reduced rate of $75 per sitting for friends and family, which is a substantial portion of her work. She notes that following the Separation she “put her camera down” for approximately one year but thereafter her interest in photography has been rekindled and she has again continued her Hobby Photography Business pursuits and has recently invested between $200 and $300 dollars into new backdrops.

[290]   More recently, during her maternity leave and the COVID extension of her unemployment she has created a crafting business in or around 2019. It produces and sells stickers, window decals and signs (the “Hobby Crafting Business”). 

[291]   However, as I understand her evidence, she has put all of her revenue derived from the Hobby Crafting Business back into that business. As I understand her evidence, her expenditures for the Hobby Crafting Business may have totalled around $15,000. Again she stopped doing the Hobby Crafting Business upon the Separation occurring. My sense from her evidence is that she intends to continue with this Hobby Crafting Business, but does not believe that she can financially support herself and the Children from it on a full time basis.

[292]   She testified that prior to the Separation, the Father refused to provide child-care in order for her to be able to pursue these Hobby Business activities as much as she wished to, and in fact, the Father berated her for the time she spent or sought to expend on the Hobby Crafting Business.

[293]   The Mother has neither declared the income from these Hobby Businesses nor claimed the expenses. From what I gather, she has not kept records of the income from and expenses for these Hobby Businesses.

[294]   As I understand it, she estimates that she might have a net income each year derived of between $1,500 to $2,500 per annum from these Hobby Businesses.

[295]   The Mother has also done some “gig work” including child minding/baby-sitting work charging customers only $20 per day to look after two toddlers. She noted that much of the income derived from child minding goes back to purchase toys for the toddlers. 

[296]   She has also done a small amount of “gig work” for an online-based restaurant home food delivery service, sometimes taking Child M with her as a job experience and a “teaching moment.” In 2023, she worked in April, May, June, and August, and did one shift in November. She earned $1,617 gross before any expenses such as fuel and other motor vehicle expenses. She stopped doing this “gig work” because of the critical messages she received from the Father “chewing her out,” and criticizing her for using “child labour.”

[297]   Again, the income derived from these gig jobs has not yet been declared by the Mother on her income tax returns nor has she claimed the expenses; hence this income has not been taken into account in Table 4 below.

[298]   The Mother reported Line 150 Income and one year of estimated income for 2023, without any adjustments may be summarized in Table 4 below.

[299]   I am of the view that to determine the reasonable amount of the Mother’s income that should be used in calculating child support requires a two-step process of imputing income as such imputation is permitted by sections 17 and 19 (1) of the Guidelines.

[300]   The first step is to impute income by including annual amounts for the net Hobby Businesses Income which historically not been declared, and for the “gig work” which the Mother has pursued in 2023 because of financial pressures.

[301]   The second step is to then make a determination of how to treat the large, non-recurring Severance Payment, which of course should be included in determining her income for child support purposes. However, it clearly skews the historical pattern of the Mother’s income, which in itself has fluctuated significantly between 2018 and 2023. The Nova Scotia Supreme Court grappled with that problem in Rondeau v. Kirby, 2003 NSSF 49, at paras. 15 to 19. That decision canvasses different approaches that may be used in dealing with a lump sum severance for child support purposes. There the court concluded that it should undertake averaging over a period of four years rather than just three years. 

[302]   In completing the first step here, I would add the amount of $1,500 per annum for each of the years 2019 to 2023 inclusive as the imputed Net Hobby Business Income. For 2023, I would add an additional imputed amount of $1000 being the estimate of the Gig Work Income, net of an estimate of reasonable expenses.

[303]   To summarize the Mother’s imputed income at the completion of the first step results in the following determination of the Mother’s imputed income as set out in Table 5:

[304]   In completing the second step, I find that this is a case whereby I should exercise my discretion under section 17 of the Guidelines and average the Mother’s income over a number of years. In doing so, I am of the view that this is one of those rare cases where the averaging of the income should be over a longer period than three years. Therefore, I will average the Mother’s First Step Imputed income over a five-year period for the years 2022 to 2026 inclusive. The use of this approach is supported by the British Columbia Court of Appeal decision in Harras v. Lhotka, 2016 BCCA 246 at paragraphs 32 to 37 inclusive.

[305]   When completing the averaging calculation, I determine the Mother’s average imputed income to be as follows:

[306]   It is noteworthy that the resulting average is fairly close to the Mother’s imputed income for 2023 of $45,500 once adjustments have been made for Home Business Income and the “gig work” as set out in Table 5.

[307]   Therefore, this Average Imputed Income figure will be used as the basis of the Mother’s child support calculations for the years 2022 and for 2023, and thereafter prospectively for 2024, 2025, and 2026. However, there will be an exception for the years 2024, 2025 and 2026. The exception will be if the Mother’s reported Line 150 income, which has been adjusted to include other net income from the Hobby Businesses and her Gig Work Employment, exceeds the Mother’s Averaged Imputed Income figure of $45,360 for any one of those years. In that case, the higher annual figure will be used for that year for child support calculations.

[308]   In the Father’s evidence, he spoke in positive terms about the strong relationship that he enjoyed with Child M for a significant portion of her life, starting in approximately May 2017 when the Parties started to cohabitate. Child M was then approximately six years of age. As I understand the evidence, Child M’s biological father has never been part of her life nor has he ever provided her with any financial support. That situation was known to the Father from the outset of his relationship with the Mother. The evidence supports the conclusion that the Father readily adopted the father role and fulfilled all facets of it including emotional and financial support of Child M, until approximately the end of March of 2023. The evidence also supports the conclusion that the Father is the only father figure the Child M as ever known. The Father still wishes to be part of Child M’s life but in his view that relationship is being undermined by the Mother.

[309]   Notwithstanding all of this, the Father argues that he should not have an obligation for paying child support for Child M.

[310]   The following definitions are found under section 146 of the FLA:

[311]   Section 147 of the FLA provides as follows:

[312]   I find that the Father meets the definition of a stepparent of Child M. I have also concluded that the requirements for the Father’s duty to support Child M as set out in subsection 4 (a) and (b) are satisfied.

[313]   I reject the Father’s submission that he can avail himself of the exemption provisions of section 147 (1) (b) and that I should conclude that Child M has voluntarily withdrawn from his charge. On the whole of the evidence, I conclude that the relationship between the Father and Child M was undermined by the collective untoward actions of the Father, K.S., and the Mother including the breaches of the conduct orders. It is the collective actions of these adults that have made Child M’s circumstances objectively intolerable. It is presently unclear how long the existing estrangement will continue as between the Father and Child M.

[314]   I now turn to the question of determining the extent of the Father’s support obligation as a stepparent. In doing so, I am mindful that the Mother has not aggressively pursued child support for Child M and may be inclined to attempt to waive Child M’s child support. However, I must again instruct myself that support is the right of the child. Furthermore, the first objective of the Guidelines is to “establish a fair standard of support for the children that ensures that they continue to benefit from the financial means of both spouses after separation” (see: s. 1(a)).

[315]   Section 5 of the Guidelines provides as follows:

[316]   In the recent decision of Code v. McLeod, 2023 BCSC 1686, Justice N. Smith at paragraph 70 states that although the Guidelines must be considered, based upon section 5 of the Guidelines, the court does not necessarily order the full table amount in case of the stepparent. That is consistent with section 147(5)(a) of the FLA which makes the stepparent’s obligation secondary to that of a natural parent.

[317]   At paragraph 71 of Code, Justice N. Smith says as follows:

[318]   Based on the available evidence before me, I can reasonably infer that neither the Mother nor the Father seemed to believe that it was practical for the Mother to pursue the biological father for child support. There is nothing to suggest that the Father ever pressed the Mother to do so. The suggestion that the Mother should have pursued the biological father only came up in his final submissions.

[319]   At the very least, the Father has apparently acquiesced in the Mother’s decision in not pursuing child support from the biological father, since the time that the Father and Mother’s commenced cohabitation many years ago. However, the Mother herself has a continuing responsibility to financially support Child M in addition to that of the Father as Child M’s stepparent.

[320]   I find that there is no reason to depart from the Guidelines in setting the amount of child support that the Father must pay to his step-daughter having regard to the best interests of Child M, the length of the marriage-like relationship between the Mother and the Father, the age of Child M during that relationship, the historical strength of the relationship between the Father and Child M, the standard of living that the Father has provided for Child M and the absence of support from the biological father. In reaching that conclusion, I still must determine to what extent the Father’s contribution will be, having regard to the Mother’s continuing support obligation. Based upon the analysis set out below, I have determined that notwithstanding the fact that Child M ceased to be in a shared parenting arrangement by April of 2023, the most equitable method of determining the Father’s child support obligations for Child M is on a shared parenting basis, rather than requiring the either the Father or the Mother to bear the sole responsibility for the support of Child M.

[321]   Based upon the evidence that I accept, I find in 2021 that both Child L and Child M were with the Mother such that she had all the parenting time from the Date of Separation being August 1, 2021, through to and including December 31, 2021.

[322]   Based upon the evidence that I accept and having regard to the January 27, 2022 Interim Order, the February 9, 2022 Interim Order, and the March 9 2022 Interim Order, I find that in 2022 both Children were principally with the Mother, and she had the vast majority of parenting time for the period from January 1, 2022, until the August 24, 2022 Interim Order, was made.

[323]   Immediately thereafter and effective for the period the September 2022 until December 31, 2022, the Parents were in a shared parenting arrangement for both Child L and with Child M pursuant to the 2-2-3 Parenting Schedule made in the August 24, 2022 Interim Order.

[324]   The evidence that I accept leads me to conclude that the shared parenting arrangement continued in 2023 from January 1 until the end of March of 2023 for both Child L and Child M. By April 2023 the relationship between the Father and Child M had deteriorated to the extent that she refused to stay with him during the Father’s parenting time under the 2-2-3 Parenting Schedule and remained with the Mother on a fulltime basis.

[325]   Therefore, from April 1, 2023, to present date Child L is in a shared parenting arrangement. However, from that date, Child M was with the Mother almost exclusively and has had limited communication with the Father.

[326]   That said, for child support purposes, and as noted above, I am ordering the Father to pay child support for Child M to the Mother based upon a shared parenting basis.

[327]   Having made these determinations regarding the parenting arrangements, that is not the end of the matter. The determination of child support requires analysis under section 9 of the Guidelines.

[328]   As noted in Lozinski v. Lozinski, 2017 BCCA 289, at para 39, shared parenting arrangements constitute a complete and separate child support regime under the Guidelines. It is governed by section 9 and the presumptive rule in section 3 does not apply.

[329]   Simply finding that parental regime comes within section 9 does not compel an automatic reduction in child support. That determination must be made in considering all of the criteria set out in subsections (a) to (c) of section 9. [see Berry v. Hart, 2003 BCCA 659 at para 10]

[330]   I am required to undertake a Contino analysis as set out in Contino v. Leonelli-Contino, 2005 SCC 63 (“Contino”), at paragraph 27. Under this analysis, the court determines the amount of child support taking into account all of the factors set forth under section 9.

[331]   Contino establishes that once the 40% threshold of parenting time for each parent is met:

[332]   Using the Contino analysis and as noted below I am inclined to apply the simple set off to the Father’s child support obligation amount for both Child L and also for Child M. This conclusion is based in part because of the fact that I have determined that the Father will be responsible for continuing to pay child support for Child M as a stepparent. In my view, using a set off approach regarding both Child L’s and Child M’s child support will not likely lead to a significant adverse discrepancy in Child L’s standard of living when moving between the Father’s residence and the Mother’s residence, nor will it lead to a significant adverse discrepancy in Child M’s standard of living so long as she continues to reside with the Mother.

[333]   It is necessary to conduct an analysis regarding a determination of the amount of child support having regard to the different applicable time periods when each type of parenting arrangement was in place as well as the significant variation in the income figures that must be utilized for child support purposes.

[334]   The Father is responsible for child support from the Date of Separation on August 1, 2021, to the period ending December 31, 2021, and thereafter from January 1, 2022, to August 31, 2022. 

[335]   The March 9, 2022, Interim Order required the Father to be paying child support of $960 per month effective March 1, 2022, but subject to being assessed to determine retroactively the Father’s child support amount at trial. As noted above, the figure of $960 per month for two children appears to be based on a guideline income of approximately $62,000 per annum. The September 6, 2023, Order reduced the Father’s monthly child support payments, by consent on a without prejudice basis, to $200 per month to reflect the fact that Child M was no longer residing with the Father during his parenting time, effective April of 2023. A copy of the BC Family Maintenance Agency payment summary presented in court on November 24, 2023, shows that the outstanding account balance owed by the Father was $7,251.47. The actual details of charges and payments was not contained in the summary nor presented to the court.

[336]   Given my determination of the Father’s imputed annual income for both 2021 and 2022, it is clear that the Father has not been paying the correct amount of child support for the periods from August 1, 2021, to December 31, 2021, and thereafter from January 1, 2022, to August 31, 2022. 

[337]   The Father’s child support obligations for those periods may be summarized in Table 6 as follows:

[338]   The August 24, 2022 Interim Order, created the shared parenting arrangement for both Children.

[339]   Having conducted my Contino analysis for the shared parenting periods from September 1, 2022, to December 31, 2022, and for the periods from January 1, 2023, to April 30, 2023, I am satisfied that a simple set-off of child support for the two Children should be applied.

[340]   The Father’s income that will be used to determine child support for this shared parenting periods will be:

[341]   The Father’s child support obligation for two children for each of those periods before setoff will be:

[342]   The Mother’s annual child support income amount for the 2022 and 2023, and specifically for the same two periods, will be both based on the Mother’s Averaged Imputed Income figure of $45,360 per annum and thus the Mother’s child support obligation for the calculation of the set off amount will be:

[343]   Table 7 summarizes the amounts of child support payable by the Father for those shared parenting periods after the required set-off.

[344]   Effective May 1, 2023, Child M commenced residing full time with the Mother. Child L continued to be the subject of the shared parenting arrangement. In the usual course that may result in a change to child support obligations of the parties. It is arguable that the Father is not required to pay any child support for Child M or may be required to pay child support for Child M on a one child basis, without any set-off, which would be in the range of some $616 per month.   

[345]   However, as noted above I have concluded that the Father shall continue to be responsible for child support for Child M but that will be on a set-off basis, such that he will pay child support for both Child L and Child M on a two child basis. Thus, there needs to be a further calculation of child support for that period commencing May 1, 2023 and continuing thereafter.

[346]   Again, the Father’s child support obligation will be calculated on the basis of an income of $65,000 per annum and the Mother’s child support obligation will be calculated on the basis of an income of $45,360 per annum.

[347]   Therefore, the Father’s monthly child support amount payable to the Mother commencing May 1, 2023, and continuing on the first day of each month thereafter, on a set off basis, is $ 295 per month for Child L and Child M, for so long as each of the Children are eligible for support under the Family Law Act, or until further order of the court, or agreement of the Parents, and subject always to the Child Support Review Process set out in these orders.

[348]   There will be orders accordingly.

[349]   The amount of the Guideline Income of the payor and payee is relevant in determining the sharing of special and extraordinary expenses, which under section 7 of the Guidelines are to be shared by the parents in proportion to their incomes, after deducting the child’s contribution, if any (see section 7(2)).

[350]   The principles relating to special or extraordinary expenses are set out in section 7 of the Guidelines as follows:

[351]   As noted by Baird J. in Clarke v. Clarke, 2014 BCSC 824, to qualify as a special or extraordinary expense it must fit within one of the categories of expenses listed in section 7 of the Guidelines. That list is exhaustive and accordingly if the claimed expense does not fit into any of those categories it cannot be a special or extraordinary expense (see: paragraphs 50 and 51). 

[352]   It is established law that the court retains discretion to divide the parents’ obligations other than in proportion to their incomes taking into account certain factors (see: for example A. v. B., 2013 BCSC 60).

[353]   On the whole of the evidence, before and after the imputation of income for the Parents and taking into account the Contino factors, I have concluded that the fairest method for sharing of section 7 expenses for both Child L and Child M, starting effective from the Date of Separation of August 1, 2021, will be on an estimated proportionate basis using the imputed incomes determined herein for each of the Father and the Mother. Therefore, on this basis the Father’s proportionate share will be 60% and the Mother’s proportionate share will be 40% (the “Proportionate Shares”)

[354]   The Section 7 expenses for both Child L and Child M are to be shared proportionately by the parties (in accordance with their Proportionate Shares) will be those as set out in section 7 (1) (a) to (f) of the Guidelines and other extraordinary expenses agreed to by the parties in writing. Provided, however, that the extraordinary expenses for extra-curricular activities as contemplated by section 7 (f) for Child L and for Child M will be those that the parties agree to in writing. In the absence of such an agreement, then the Parent enrolling either Child L or Child M in an extra-curricular activity will be solely responsible for those expenses. The absence of financial contribution to the expenses of such an extra-curricular activity will not prevent the non-contributing parent from attending the extra-curricular activity as an observer.

[355]   Provided further, the expenses of Child L’s Counselling with Ladona Pinder which are not covered by the Father’s benefits plan will be shared by the Parties in accordance with their Proportionate Shares, provided that the Mother’s share will be capped at the amount of $250 per annum.

[356]   Each Party incurring a special or extraordinary expense will provide the other party with a copy of the receipt or proof of payment for any special or extraordinary expense that has been incurred and the other party will pay his or her Proportionate Share of the expense to the party who has incurred the expense within fourteen days of receipt or proof of payment. All amounts payable will be net of any available subsidies.

[357]   All payments henceforth will be made through FMEP, but subject otherwise to written agreement of the parties which is to be filed with FMEP.

[358]   Within fourteen days of the date of these Reasons for Judgment, the parties will provide each other with a statement setting out what they say are the amounts due to them up to the date of these Reasons for Judgment for section 7 special or extraordinary expenses together with any supporting receipts. The parties will reconcile the amount as between themselves within 21 days of the date of these Reasons for Judgment. The agreed reconciliation will be filed with the FMEP. In the event that the parties are unable to agree to the required reconciliation then the matter may be scheduled on a priority basis before the Honourable Judge J. P. MacCarthy and such hearing will be scheduled for thirty minutes and will take place on or before April 30 , 2024.

[359]   The following is a summary of the findings made by this court and the resulting orders made by this court after hearing evidence about child support, child support, special expenses and other related matters (“Final Order Number 3”):

[360]   Judge J.P. MacCarthy will not be seized of any further matters in connection with these proceedings, except for the matters specifically set out in these Final Orders Numbers 1, 2 and 3, which permit referral back to him.  There will be an order accordingly.