A.R.A. v. J.S.

2003BCSC1245

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.R.A. v. J.S., 2003 BCSC 1245 Date: 20030826 Docket: E36575 Registry: Nanaimo Between: A.R.A. Plaintiff And J.S. Defendant Before: The Honourable Mr. Justice Taylor Reasons for Judgment Counsel for the Plaintiff: K.M.J. Rongve Counsel for Defendant: Alix Reid Date and Place of Hearing: July 28, 2003 Nanaimo, B.C. [1] The plaintiff (mother) applies for support for herself and four children of the marriage. The defendant (father) opposes this on the basis of an order made in Ontario and that there has been no change of circumstances since then. [2] The children have resided with their mother since the parents separated in 1999. At that time the parents lived in the greater Toronto area. The father had access to the children. [3] The parents settled all the outstanding issues between themselves by way of an agreement dated February 21, 2001. That agreement defined the father's access and provided for child support in the amount of $894. [4] The agreement also required the mother to have the children reside in the greater Toronto area and that neither parent could move outside of that area without giving the other three months notice. [5] On March 9, 2001, the mother informed the father that she wished to move to British Columbia to marry her present husband. The letter from her former solicitor of the same date stated in

part, This letter will serve as notice pursuant to [paragraph 9 of the separation agreement] that Mrs. A.R.S. intends to move with the children to Vancouver Island, British Columbia, effective July 1, 2001. Mrs. A.R.S. has entered into a new relationship. They will be married in August, 2001, in British Columbia. Mrs. A.R.S. has been offered a position with a computer company and will be accepting it. It is an opportunity for greater career advancement and increased salary. Her parents will be moving with her so she will have their support as she did here. [6] The father, given the timing of the separation agreement and the notice, harbours suspicions that the move was being considered by February 21, 2001. [7] The date and circumstances of the job offer are in conflict. The mother has at various times stated that the offer came before March 9, 2001, then that it came at some point prior to May 25, 2001, and that before she moved to British Columbia she was aware she did not have a job with the computer firm and subsequently, that after she moved to British Columbia the computer firm advised her in late August or early September that they were not opening the job. The computer firm was her future husband's employer; the job was reported to pay $28,000 per annum. [8] The father in response to this notice made application to the Ontario High Court to restrain the move. After a

case conference before a judge of that court, an agreement was reached which was incorporated into an amended separation agreement and a consent order. [9] The agreement and order permitted the mother to move to British Columbia, defined periods of personal access being three times a year in addition to telephone and email access and then provided as follows at paragraph 2: 2. Paragraph 10 to 15 of the Agreement is amended and shall read as follows: (a) The parties acknowledge that after the execution of the Agreement, the wife has requested the right to relocate her residence to Vancouver Island. (b) The parties acknowledge that in consideration of the requested relocation and in accordance with Her Honour Justice Katarynvch's recommendations, the husband be relieved of any and all child support obligations including special and extraordinary expenses. (c) The husband will be solely responsible for the financial cost of transporting the children from Vancouver Island and the cost of any additional expenses related to the required accommodation. . . . [10] The order, which incorporated those terms, was dated April 22, 2002. [11] Both the order and the agreement were silent on any economic comparison of access costs and child support beyond reference to the child support in the earlier agreement that set child support in the amount of $894 per month. [12] The mother moved in

August, 2001. The promised job with the computer firm did not materialize. The mother subsequently obtained employment in Victoria even though she resided in Chemainus. She then became pregnant. She remained at the Victoria job for one month and then deposes that as a result of discussions with her employer it was mutually agreed that she would quit that job. [13] She did not find other work until January, 2002, when she began to work part time, working 11.5 hours per week for $11.50 per hour until she went on maternity leave in July, 2002. She delivered a child [ ], 2002. [14] She has not worked since and following the completion of her maternity leave has sought other employment in a plethora of places without success. Her history of employment prior to departure from Toronto is not one of any particular success. At best she has held a number of short-term jobs, either quitting them for other jobs or being laid off. [15] The father has exercised access in British Columbia as follows: October, 2001, December, 2001, July, 2002, December, 2002, and July, 2003. [16] At the time of this application, he was visiting the children in British Columbia. Where he exercises access is a matter of choice for the father and so far he has chosen to exercise access in British Columbia rather than have his four children travel to Ontario. The children's ages preclude unescorted flights across

Canada. [17] His costs of access are as deposed to as follows: Date Flight Hotel Vehicle October, 2001 $600.27 $687.46 $285.25 December, 2001 Not stated $287.50 $756.52 July, 2002 $743.12 $1614.33 $1634.13 December, 2002 Not stated $801.61 $655.76 [18] Two of these trips do not include the cost of flights. No explanation is given why that is not so. On the information available I calculated flights to cost an approximately average of $650.00. [19] Whether these two trips involved non-cost flights i.e. on points is of no relevance. There is in fact a flight each time and therefore a cost for such a flight must be paid whether paid for in cash or paid for by points which would otherwise be used for other purposes. [20] With the exception of the summer access, each trip has cost an average of $1,800. The summer trip cost $4,000. Thus for the three annual visits, exclusive of costs for meals and entertainment that would be incurred wherever access might be exercised, the average cost is $7,600 per annum. [21] Cost of access in Ontario would be cheaper in terms of hotel and vehicle rentals but more expensive in terms of air travel. [22] The parties are agreed that the father's guideline income is $42,704 and the amount of child support pursuant to the guidelines would be $927 per month or $11,124 per annum based upon the Ontario Child Support Guidelines. [23] Thus based on the

present access schedule the father "underpays" child support in the amount of $3,524 per annum if travel costs form a part of child support. [24] The mother says that a change in circumstances has occurred in that her job fortunes have materially altered from those that she contemplated at the time of the agreement being reached in Ontario and by which she was permitted to move to British Columbia. She no longer has a job outside of the home and additionally, she had a fifth child in [ ], 2002. [25] The mother also says that there is a material change caused by the fact that the father does not expend for access funds close to or equivalent to that which he would have otherwise paid in child support had the mother remained in Ontario. She argues that the amending agreement presumes that for there to be no support payable that access costs either approximate or exceed that which would otherwise be paid in child support. [26] In my view, either of these two circumstances constitute a change in circumstances from those existing or capable of contemplation at the time the amending agreement was concluded. [27] As to the first, while her contemplated employment was not referred to in the agreement, by the time the agreement was reached through the process of the case conference before a judge in Ontario it was known that the mother had employment in British Columbia and thus

implicitly that was a factor taken into account when she made her agreements to amend the original separation agreement. [28] Events that have lead to that both in terms of loss of jobs regardless of how they may have come about and her pregnancy and birth of her fifth child are, in my view, material changes in circumstances. [29] I do not find her present unemployment to be wilful given the responsibilities for five children, four of whom are not those of her present husband. While she may have wished for work with four children, the addition of a fifth child, in my view, altered her situation in a substantial manner given the responsibilities for such children. [30] The second change in circumstances, in my view, occurred when the father exercising access expended less funds than he would have paid in child support. I find that there was an implicit trade off of these two when the agreement was concluded in Ontario. To conclude otherwise makes no economic sense and such an agreement should be examined in a sensible context. [31] The father argued that if there is a change of circumstance then he should be relieved in whole or in part of his obligation to pay child support on the basis of undue hardship by reason of the substantial access costs he incurs to visit his children on the limited basis that he does. [32] The mother did not oppose this submission on the basis the

father could clearly demonstrate that under s.10(2) that he has a "unusually high expense in relation to exercising access" and thus an examination of the standard of living of each parent's families should be undertaken pursuant to s.10(3). [33] In this comparison of standard of living, there is little disagreement on the incomes of the father or the mother's husband. [34] What is in dispute is (a) whether such payments such as the Child Tax Credit and GST rebates should be included in such a calculation as part of her family's income, and (b) whether income should be imputed to the mother on the basis of her anticipated employment at the time of the move and her subsequent failure to secure employment. [35] The mother argues that such payments should not be taken into account as they are not forms of income under the Income Tax Act. [36] In Ironstand v. Ironstand (1999) RFL (5th) 159 Gerein J. at 161 noted: There is not basis in sections 15 to 20 to include the child tax credits as income. In particular, s.16 reads this way.

16. Subject to sections 17 to 20, 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 Revenue Canada and is adjusted in accordance with Schedule III. Sections 17 to 20 have no application here and a review of the T1 General form discloses that the child tax credit is not included as income. Accordingly, it should not be included in the comparison. [37] But then at page 162 he held: However, I do not believe the calculations accurately reflect reality in this instance. They simply ignore too much income. No account is taken of the child tax credit of almost $7,000.00 or the fact that additional monies are received from Social Services for the three children. In the circumstances of this case these are significant considerations. A comparison of disposable income presents a different picture even absent the money paid on behalf of the children, the amount of which is unknown to me. [38] This view was reiterated in William v. Smith (2001) 15 RFL 206 at 213. [39] In British Columbia Master Nitikman in Reiter v. Reiter (1997) 36 RFL (4th) at 102, made this observation at paragraph 18. Child tax benefits and credits are not heads of income under sections 15 to 20 of the Guidelines and therefore are not taken into account for purposes of this calculation [a comparison under Schedule II]. [40] The

Master did not have benefit of observations made in the two subsequent authorities to which I have referred, nor does it appear that this issue was canvassed in any argument before her. [41] In my view, to ignore such payments on the basis of not being "income" as defined in sections 15 to 20 of the Guidelines is to ignore a fundamental reality when one is considering the standards of living where regardless of nomenclature such payments form an important aspect in establishing the standard of living enjoyed by the recipient family. [42] In this case, it is agreed the payments amount to some $12,230, almost one-third of the amount available to the mother's home if there is no imputation of the income made to herself. [43] I am, therefore, of the view that they should be included in this comparison of the standard of living. [44] What then of the comparison of standard of living taking into account such funds as the Child Tax Benefit and GST payments in a comparison of standard of livings pursuant to Schedule II. Mother's Family: Husband's Income $31,569.00 Child Tax Benefit 11,487.00 GST Credit 743.00

TOTAL INCOME $43,800.00 Add Child Support 11,124.00 Less Husband's Income Tax 3,276.00

TOTAL INCOME $51,647.00 Low Income measure for two adults and five children $29,070. Standard of living 1.77. Husband's Family income: Income $42,704.48 Less Taxes 7,740.00 Less Access Costs (average) 7,600.00 Less Child Support $11,124.00

TOTAL INCOME $16,240.48 Low income measure one person $10,382. Standard of living 1.52. [45] I do not impute income to the mother. I find that she has made reasonable efforts to find work commensurate with her responsibilities for a one-year old, and four other children whose ages range from five to fifteen. Such responsibilities, in my view, substantially limit the economic opportunities available to her. [46] However, if the mother were able to find employment commensurate with those responsibilities she had before the birth of her youngest child, she can no longer call upon her parents to care for the children or child. They have now moved into a retirement home. She would have to engage daycare for the fourth and fifth youngest children. This would occur for at least one year for both and then thereafter for the youngest child as the second youngest child would be attending school for the better part of the day. [47] The cost of daycare, as determined by the mother, would be $1,050 per month for the two children. It is suggested in the father's material that there was another alternative of $22 per day per child in a Boys and Girls Club. In my view, that is not a reasonable proposal given the concerns of the mother in respect of the nature of care provided by the two respective operations. [48] Having found that the father enjoys a lower standard of living in the

calculations that I have made, the issue is then at what level should he pay child support if other than that mandated by the Child Support Guidelines (i.e. $927 per month). [49] In my view, in fairness to each parent would be to require the father to pay child support in the amount of the difference between travel costs (averaged at $7,600 as I have calculated) and what he would otherwise be required to pay $11,124 or $3,524 per annum or $295 per month. [50] Accordingly, the father shall pay the mother child support in the amount of $295 commencing September 1, 2003. [51] In order to provide a framework for future years when the cost of access may vary, the father shall pay child support based on the amount of child support that he would otherwise pay, which is to be calculated upon the previous year's line 150 as reflected in his notice of assessment from Canada Customs and Revenue Agency, less the amount of reasonable paid travel expenses for the period of September 1, 2003, to August 31, 2004, and likewise in succeeding years. [52] Because of the variation of air travel fares and that the father so far has had an incentive to obtain the lowest possible fare he could, an incentive that may not continue under the child support regime that I have ordered, the father prior to August of each year shall provide to the mother the invoices and receipts for his access costs which the mother may apply to have reviewed by this court as to their reasonableness. Access costs shall be: 1. travel costs; 2. accommodation costs; 3. vehicle costs net of fuel costs. so long as the father travels to British Columbia. [53] The mother is entitled to her costs of this application on Scale 3. "J.D. Taylor, J." The Honourable Mr. Justice J.D. Taylor