Barnard v. Barnard

2016 BCSC 1710 Barnard v. Barnard

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Barnard v. Barnard, 2016 BCSC 1710 Date: 20160919 Docket: E30955 Registry: New Westminster Between: Mark Frederick Barnard Claimant And Beverly Joyce Barnard aka Beverly Joyce Chwiendacz Respondent Before: The Honourable Mr. Justice Armstrong Supplementary Reasons to Barnard v. Barnard, 2016 BCSC 735. Supplementary Reasons for Judgment Counsel for the Claimant: R. Davison Counsel for the Respondent: S. Bobb Date of Written Submissions: July 13, 2016 Place and Date of Supplementary Reasons: New Westminster, B.C. September 19, 2016 Introduction [1] These reasons are supplementary reasons for judgment given in this family law case on April 26, 2016 in Barnard v. Barnard, indexed as 2016 BCSC 735. [2] The parties have asked the Court to address clarification of the order respecting parenting time, ongoing child support, and a consent order concerning special and extraordinary expenses and the annual exchange of information. Parenting time [3] In my reasons for judgment I set out a schedule for the claimant's parenting time with the parties' daughter. That schedule was as follows at para. 46: [46] For the reasons that follow, I conclude that the parenting arrangements that will best meet the needs of L.B. will be adjusted from the current schedule and will include the following: a. L.B. will be in the care of the claimant will on

alternating two week patterns as follows i. during week one she will be in the claimant's care from 3 p.m. Friday until 8 a.m. Tuesday; ii. during week two she will be in the care of the claimant from pickup after school on Wednesday until pickup from school on Friday; iii. during the months of July and August L.B. will be in the care of the claimant for 30 days; iv. the 30 days referred to above will include at least one period of two consecutive weeks and two single week blocks, subject to a written agreements to vary this term; v. except as provided below, on alternating years, L.B. will be in the care of the claimant for one half of Christmas and spring vacations. The claimant will care for L.B. commencing the first half of Christmas vacations in 2016 and the second half of spring break and 2017; vi. for Christmas day, L.B. will be in the care of the one party, beginning with the respondent, from 8 p.m. December 24 to 1 p.m. December 25 on alternating years and in the care of the other party from 1 p.m. December 25 until 10 a.m. December 26, the parties switching who is in care of L.B. on Christmas morning in alternating years; vii. L.B. will be in the care of each party on her alternating birthday's commencing 2017, with the respondent having care that year, and the parties will share equally other significant events or celebrations scheduled by agreement provided that if

agreement cannot be achieved then the parties have liberty to make application to alter these terms; and viii. The parties will have leave to seek further directions from the court as to the implementation or adjustments necessary for the parenting schedules set out. [4] According to this schedule, L.B. will be in the care of the claimant for 5.5 days every two weeks. That time coupled with the other provisions for parenting result in the claimant caring for L.B. 145 days per year. Thus, he will have a responsibility for L.B. for 39.7% of the days in each year. [5] Without the benefit of argument, I estimated the claimant's parenting time at 40%. The actual calculation is illustrative of the difficulty in applying s. 9 of the Guidelines in purely an arithmetic manner. [6] The claimant contends that he will have the child 40% of the time and contends that his support obligations should be set-off in accordance with the Guidelines. He submits that the overarching concern with regard to child support is to ensure the amount payable is fair and that each household should enjoy an equal standard of living to ensure that the child receives the same benefits in each parent's home. [7] He argues that the respondent lives in the former matrimonial home and is supported by a partner whose income exceeds $100,000 per year. He contrasts that standard of living to his own circumstances

where he lives in a renovated motel room. [8] The respondent argued that the claimant vastly underpaid support in the years before the trial resulting in a lower standard of living and a reduction of the portion of special expenses that should have been paid by him. The claimant contends that no there is no evidence to support the respondent's allegation that L.B. had a reduced standard of living. [9] The respondent argued that the claimant's parenting time was only 27% of the maximum parenting time available. He contends that the claimant has not met the threshold under s. 9 of the Guidelines. Alternatively if he has reached the 40% threshold then he is not entitled to the presumption that table support should be reduced to reflect the set-off. See: Contino v. Leonelli-Contino, 2005 SCC 63 [Contino]. [10] The claimant's Guideline income is $77,930 and the respondent's Guideline income is $30,000. If the set-off provisions in s. 9 of the Guidelines apply, table support payable by the father would be $728 and by the mother $269. [11] The respondent contends that no evidence was called to demonstrate either that the claimant's costs of caring for L.B. had increased nor that her costs had decreased as a result of the change in parenting arrangements. [12] The respondent contends that in assessing the financial circumstances of both parties, before support payments are considered,

he receives 72.2% of their gross incomes and the respondent receives 27.8%. If the claimant pays child support of $728 per month, his gross income is reduced to $69,195 or 64% of the parties' gross incomes. The respondent's share of gross income is 36% if the set-off is not engaged. [13] In the result, the respondent contends there should be no set-off in the claimant's favour. Analysis [14] Section 9 the Guidelines addresses the practical difficulty of funding to homes for children sharing substantial time with each parent. It provides: 9. 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. [15] In Contino, the Supreme Court of Canada dealt with s. 9 of the Guidelines. Bastarache J. stressed the importance of flexibility and fairness in shared custody circumstances. He wrote: 39 The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount in shared custody arrangement

calls for the acknowledgment of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s. 9 will vary according to the particular facts of each case. I will now consider each of the three s. 9 factors. [16] Section 9 does not automatically result in deviating from the Guidelines when assessing what amounts should be payable for child support. [17] The factors listed in s. 9 should be weighed differently according to the specific facts of each case: Contino at para. 39. [18] The set-off amount is a useful starting point but it has no presumptive value; a court will depart from it or make adjustments to it if it is inappropriate in light of the factors considered under ss. 9(b) and (c): Contino at para.

41. The set-off amount must therefore be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child: Contino at paras. 41, 49. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parties, it would lead to a significant variation in the standard of living experienced by the child as between the two households, "something which Parliament did not intend": Contino at para. 51. [19] Section 9(b) reflects that shared custody may increase the combined costs of raising children because there is often duplication of costs: Contino at para. 52. [20] Under s. 9(c) the court is given "a broad discretion for conducting an analysis of the resources and needs of both the parents and the children": and the objectives of the Guidelines require "a fair standard of support for the child and fair contributions from both parents": Contino at para. 68. [21] The court will be especially concerned with the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain appropriate standards of living in the circumstances: Contino at para.

68. Financial statements or budgets are necessary for this purpose. [22] In this case, the claimant has reached the 40% of parenting time allowing for a rounding up of his to 39.7%. At some level, it is unhelpful to consider a significant change in support obligations based on something less than 1% of the time a child may be in each home. Nonetheless, s. 9 sets out 40% as of the trigger for this reconsideration. [23] Because of the result I reach, I will deal answer the question posed by the parties as if the claimant has achieved the 40% of parenting time mandated in s. 9. [24] Sections 9(b) and 9(c) set out the factors that may result in the set-off being inappropriate. The overarching consideration is the financial circumstances of the parties and whether a significant variation in the standards of living are experienced as the child moves from one home to another. [25] In this trial no evidence was tendered to indicate the increased expenses the claimant may incur as a result of his increased parenting time. Conversely, there was no evidence of any reduction in the respondent's costs necessary to provide for the child. I accept that there were likely some marginal increases to the claimant and decreases to the respondent. In Contino, the court said that the set-off is a starting point for a reasonable solution and takes into account the separate financial contributions from each parent. [26] In Contino, the court also highlighted the importance of having all of the financial information when considering an application of s.

9. The court also said that when no evidence is adduced it is possible to presume that the recipient parent's fixed costs have remained unchanged and that the variable costs may have been reduced modestly: Contino, para. 54. [27] In this case, the only evidence concerning the parties' expenses and financial circumstances was contained in the two Form F8 Financial Statements. [28] The respondent's total monthly expenses were $4,319 of which $1,918 represented housing costs. Specific child expenses were $155 per month. [29] In the claimant's May 2014 Financial Statement he disclosed monthly expenses of $5,624 of which $828 represented housing expenses. He calculated direct children's expenses at $244 per month. Both these statements were prepared without considering the possibility that the claimant would have increased parenting time. [30] In the circumstances of this case, and in the absence of evidence I presume that the respondent's costs have remained substantially unchanged except for a modest reduction in the variable cost. [31] Next, looking to s. 9(c) I will review the condition, means, needs and other circumstances of each spouse and the child. Again, there was a paucity of evidence available to assist in this analysis. When examining the Financial Statements it is apparent the claimant's net income after paying child support at the Guidelines amount, but without a

set-off, is $69,195. That represents 64% of the total income earned by both parties; including child support the respondent receives. She has 36% of the total income. [32] There was insufficient evidence at the trial to assess what contributions if any were made by the respondent's spouse to her living expenses, other than the respondent's evidence that her current spouse earns $100,000 per year. There was no evidence about the management or merger of their finances. [33] In any event, I am satisfied that the claimant continues to enjoy a much higher standard of living than is available to the respondent based on a comparison of each parties resources. [34] After taking into account the division of assets and family debts during the trial, I conclude neither party is endowed with significant assets. [35] After considering the criteria described in s. 9(c) I am satisfied that the claimant's income and standard of living remain substantially higher than the respondent and that it would not be unfair for him to contribute child support without applying the set-off. [36] In the circumstances of this case it would not be appropriate to consider a set-off of child support under s. 9 in favour of the claimant. It is conceivable that his incremental costs associated with caring for their child will increase and, in the circumstances, I am satisfied that he is in a much stronger

financial position. It is important that child support payable to the respondent remain unchanged to ensure L.B. has an adequate standard of living when in her mother's home. Retroactive Support October 2015 to April 2016 [37] The respondent seeks additional child support from October 2015 to the present. The claimant has paid $605 per month in support. He was obligated to pay $728 and the difference is $861. The claimant says that he has been paying child support at the Guideline amount; if the claimant is paying $728 per month since October 2015, nothing is owed by him. If on the other hand he pays $605 per month since that date, he will pay the additional $861 to the date of the order in this proceeding. Consent Orders [38] In the respondent's written submissions, she set out a series of orders that she would like made by consent. The claimant consents to an annual exchange of financial information. He also agrees to the other consent orders proposed except that he seeks an additional term that extraordinary expenses for primary or secondary school or other educational programs should be revisited once L.B. is over 19 years of age to determine what expenses he ought to pay. The respondent consents to this term being included in the final order. [39] The claimant contends that extraordinary expenses for extracurricular activities should be agreed upon before he is required to

contribute to those costs. The respondent objects to this condition because she fears the claimant will refuse to pay for any extraordinary expenses. [40] In my view, the only order that can be made is to permit the respondent to enrol L.B. in activities that she deems appropriate but if the claimant has not agreed, then her right to recover those expenses will be dependent on making a further application to court. This is an unreasonable and impractical result; however if the parties are unable to agree on appropriate extraordinary expenses, the court will be required to and decide that issue. "The Honourable Mr. Justice Armstrong"