Sawyer v. Sawyer

2000 BCSC 1222 Citation: Sawyer v. Sawyer Date: 20001124 2000 BCSC 1222 Docket: D087283 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: KEVIN LLOYD M. SAWYER PETITIONER AND: SHELLEY MARIA SAWYER RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE MELNICK Counsel for Petitioner P. Daykin Appearing in Person S.M. Getz Date and Place of Hearing: November 6, 2000 Vancouver, BC [1] This is an application by the defendant, Shelley Maria Getz (formerly Sawyer) to vary an order for child support to conform with the Federal Child Support Guidelines, SOR/97-175. Mr. Sawyer resists the application saying that s. 9 of the Guidelines applies and that he has the child of the marriage in his care for not less than 40% of the time. I. BACKGROUND [2] On March 14, 1994, Mr. Justice Blair made a consent order that Ms. Getz and Mr. Sawyer share joint custody and joint guardianship of their child, Christina Anne Sawyer, born April 2, 1992. The order also provided for a sharing of day to day care in a way that divided the time the child spent with each parent so that each cared for Christina on his or her days off. If both were working, she was cared for by a day care worker. [3] There was a further consent order that Mr. Sawyer pay to Ms. Getz for the maintenance of Christina the sum of $300 a month to increase, from time to time, by a percentage related to the consumer price index for Greater Vancouver. That resulted in maintenance of $330 a month being paid by Mr. Sawyer at the time of this application. There are no arrears. [4] On May 30, 2000, Mr. Justice Holmes dealt with an application by Mr. Sawyer to amend the order of Mr. Justice Blair so that Mr. Sawyer and Ms. Getz would share the care and control of Christina on a week on/week off basis. [5] Mr. Justice Holmes stated that since a provincial court order in August 1992, the de facto custody or care and control arrangements were that Christina's prime residence was with Ms. Getz, with liberal access to Mr. Sawyer. [6] Mr. Justice Holmes observed that the consent order of March 1994 worked well until 1997 when Mr. Sawyer moved (for a time) to Victoria and Christina started attending kindergarten. He noted that the parties, however, were able to agree to a modification of the March 1994 order to accommodate the changed circumstances. He noted that, since early 1999, Mr. Sawyer has lived within walking distance of Ms. Getz's home, Christina's school, her day care provider and her maternal grandparents. [7] Mr. Justice Holmes further noted that, prior to appearing before him, the parties had agreed upon access for Mr. Sawyer on alternate weekends from after school Friday through Monday morning, weekly overnight access on Wednesday nights, and certain other defined holidays and special days. Mr. Sawyer was of the view that this arrangement was not working because Ms. Getz was not being sufficiently flexible. [8] Mr. Sawyer noted that the reality is that Christina is now part of two families and not just a child alternating in access between two separated parents. That is in part because Mr. Sawyer has remarried and he and his wife have two young children. Further, Ms. Getz has another daughter, age 10, and she and this child's father have lived together with Christina as a family for close to seven years. [9] Notably, although recognizing that the affidavit evidence before Mr. Justice Holmes contained numerous accusations and denials which were difficult to determine on the basis of affidavits, he was satisfied that Mr. Sawyer had not been motivated in that application by a desire to increase his access with the object of avoiding, or substantially reducing, his obligation to pay maintenance. Neither did he find that Ms. Getz was attempting to deliberately frustrate Mr. Sawyer's access by making arrangements difficult and unreasonable. He was complementary of both parties and their spouses and noted that their concerned and responsible co-parenting to that date had provided Christina with a stable and loving environment. [10] Ultimately, he concluded that it was in the best interests of Christina to continue with the "custody and access" arrangements the parties had worked out on their own (with the assistance of a mediator). [11] Ms. Getz now comes before the court noting that Mr. Sawyer's income is presently $64,000 a year which gives rise to an obligation under the Guidelines to pay maintenance of $528 a month. She also asks for nominal special expenses of $14.74 a month being what she submits is Mr. Sawyer's proportionate share of current special expenses of $24.23 a month. Mr. Sawyer takes issue with the extraordinary expenses and, more significantly, opposes any increase in the amount of child maintenance that he is paying because, pursuant to s. 9 of the Guidelines, he is essentially obligated to pay much less than the $330 a month. He says, however, that he is prepared to continue paying at that level. II. DISCUSSION [12] Section 9 of the Guidelines provides as follows: Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [13] The formal order representing the decision of Mr. Justice Holmes is dated May 30, 2000. The order, which was approved as to form by solicitors for both parties, provided that the "access provisions" of the consent order of Mr. Justice Blair be varied according to the extensive formula set out therein. The provisions speak in terms of "care and control" as opposed to "access". For example, without attempting to list all 13 paragraphs dealing with the topic, the first four paragraphs of the order provide as follows: 1. the Plaintiff shall have the care and control of the child, Christina Anne Sawyer, born April 2, 1992 ("Christina") on alternate weekends from Friday afternoon until Monday morning; 2. the Plaintiff shall pick up Christina from school on each alternate Friday and deliver Christina to school on the following Monday; 3. the Plaintiff shall have the care and control of Christina overnight on Wednesday of each week, with Christina being picked up by the Plaintiff from school on Wednesday and delivered to school the next morning; 4. the Plaintiff and the Defendant shall equally share Christina's care and control for all school holidays, including statutory holidays and all non-instructional days and the parties agree to share equally the weekdays of the school Spring Break, with the changeover occurring Wednesday afternoon; [14] The order also provides for equal sharing of the care and control of Christina on a week on/week off basis during July and August, for care and control on certain specific days such as birthdays, and delineates the mechanics by way of which the child will be delivered from one parent to the other. [15] Mr. Sawyer calculates that, as a consequence, he has Christina in his care for 41.17% of the time using an hourly calculation and 41.3% using a calculation of days and nights in 2000/2001. His affidavit goes into considerable detail as to how he arrived at this calculation. However, it should be noted that, in order to arrive at his conclusion, he includes the day that Christina spends at school following his dropping her off at school as contributing to the time when he has care and control of the child. [16] It is Mr. Sawyer's position that what he and Ms. Getz have is, in spirit and reality, a "true joint and shared custodial regime". He points out that he attends parent/teacher meetings and school open houses, goes on school field trips with the child and has jointly cared for Christina with Ms. Getz at Children's Hospital on three occasions following dental surgery. [17] Apparently, since the parties separated in 1992, Mr. Sawyer has always maintained a complete wardrobe for Christina at his home as well as numerous toys and other personal possessions. It has been their established custom, he says, for Christina to arrive at his home in just the clothes that she has on and return to Ms. Getz's home in the same manner. Apparently, Christina transports certain sporting equipment between the homes. It is his position that Christina has a home with his family, not just a place to visit. [18] In any event, says Mr. Sawyer, his realistic income for 2000 will more probably be in the range of $58,000 as his income for the previous year contains some extraordinary items. Further, he says, Ms. Getz earns approximately $43,700 a year which should be taken into account in computing the maintenance he should properly be paying in light of the factors in s. 9 of the Guidelines. [19] According to Ms. Getz's financial statement, she is earning $41,200 a year. [20] Ms. Getz maintains that Mr. Sawyer's position that he effectively has the day to day care of Christina for more than 40% of the time is not supportable. She says this is because the order of Mr. Justice Holmes specifies that Mr. Sawyer has the care and control of Christina (for example) "on alternate weekends from Friday afternoon until Monday morning" and "overnight on Wednesday of each week". Thus, she argues, the language of that order makes it clear that she has care and control of Christina while Christina is in school. She also takes issue with Mr. Sawyer's calculations for the holidays and non-instructional school days. [21] I conclude that I do not have to engage in an in-depth analysis of the calculations of either party because it is clear to me that, based on the definition of the times Mr. Sawyer has the care and control of Christina contained in the order of Mr. Justice Holmes, that portion of time does not amount to 40%. These times are definitive. In saying that, I appreciate that in Cross v. Cross (22 July 1997), Nanaimo Registry 5920/10926 (B.C.S.C.), [1997] B.C.J. No. 1741 (Q.L.), Mr. Justice Meiklem noted (at para. 15) that: The costs associated with exercising overnight access preceding a school day generally include costs of grooming, providing a school lunch, and occasionally school supplies or charges or transportation expenses, so it would seem reasonable to be able to add the school attendance hours following overnight access into the computation of time for the purposes of applying Section 9 of the Guidelines. [22] I do not take issue with that proposition. However, given the specific wording of the order of Mr. Justice Holmes, Mr. Sawyer is not entitled to be "credited" with the additional time he is claiming in this respect. Therefore, Mr. Sawyer is not entitled to the benefit of a calculation for child maintenance based on s. 9 of the Guidelines. [23] Mr. Sawyer complains that Ms. Getz "has taken it upon herself to try to take advantage of the wording of the Order of May 2000 to try to force [his] custodial time to below the 40% threshold...". He has asked that I review the reasons for judgment of Mr. Justice Holmes (I have done that) and the material filed on this application (I have also done that) to come to the conclusion that the school hours be apportioned 50% to each of himself and Ms. Getz to represent the reality of the shared parenting that he says has always been in place since they were divorced in 1994. In response to that request, I can only say as follows. The parties were both represented by counsel before Mr. Justice Holmes, and Mr. Justice Holmes left it to the parties to place into the order wording with which they were mutually satisfied. The parties' counsel did that. It cannot be said that the issue of s. 9 of the Guidelines was one that was not in the contemplation of either party when this matter was argued before Mr. Justice Holmes in May of this year, nor when the order was drafted. I do not accept Mr. Sawyer's argument that to exclude school times from his calculations would have a negative impact on Christina because the style of shared parenting that he says is in place has been practised since Christina was a few months old. I fail to see how Christina will experience any difference in the shared parenting arrangement because somehow, for the purposes of a calculation under the Guidelines, the parent in whose care and control she happens to be during a number of days of the week while at school changes between Mr. Sawyer and Ms. Getz. The reality is, this discussion is about money and not about parenting. This discussion need have no impact whatsoever upon how either party parents Christina. [24] Mr. Sawyer maintains that Ms. Getz denies that she is part of a shared custody arrangement. For what it is worth, it is clear to me that the scheme envisioned by Mr. Justice Holmes, as reflected in the order that was filed, is a shared custody arrangement. However, it is shared on the basis of Mr. Justice Holmes' order, which was, itself, based on their earlier mediated agreement and drafted by their Counsel. [25] The Guidelines have come into effect since the original child maintenance order was made in this case. It has been recognized that that is a sufficient change in circumstances to merit a review of that maintenance. [26] This case was defended solely on the basis of s. 9 of the Guidelines. No argument was put before me by Mr. Sawyer grounded in the undue hardship provisions of s. 10 of the Guidelines. It may be that Mr. Sawyer can establish that an order that he pay the table amount required by the Guidelines will create undue hardship because of the cost to him of maintaining the agreed upon (if it indeed is agreed upon) regime of separate clothing, toys, et cetera in his home for Christina. That is for another day. III. CONCLUSION [27] Given my conclusion that Mr. Sawyer does not qualify to have child maintenance calculated under s. 9 of the Guidelines, it is my conclusion that he should pay to Ms. Getz child maintenance based on the Guidelines commencing December 1, 2000. For the purposes of that calculation I find that his income is $59,884 a year based on a 3 year average excluding exceptional RRSP income. That gives rise to a monthly obligation of $495. I accept Ms. Getz's income to be $41,200 a year. It is reasonable that he pay his proportionate share of the extraordinary expenses of $24.23 a month. I find his share to be $14.35. If the parties are able to agree that the maintenance should be paid at a time or times other than the first of each month, that may be included in the order. [28] Ms. Getz is entitled to her costs of this application on Scale 3. "T.J. Melnick, J." The Honourable Mr. Justice T.J. Melnick December 6, 2000 -- Memorandum to the Legal Publishers advising that the date of release of the Reasons for Judgment should read: "Date: 20001124"