J.M.I. v. B.G.I.

2022 BCSC 1097 J.M.I. v. B.G.I. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.M.I. v. B.G.I., 2022 BCSC 1097 Date: 20220629 Docket: E58496 Registry: New Westminster Between: J.M.I. Claimant And B.G.I. Respondent Before: The Honourable Mr. Justice Ball Reasons for Judgment Counsel for the Claimant: M.C. de Guzman The Respondent, appearing in person: B.G.I. Place and Dates of Trial: New Westminster, B.C. August 23-26, 2021 Place and Date of Judgment: New Westminster, B.C. June 29, 2022 Table of Contents Introduction.. 3 Background Evidence. 3 Overview of Parties' Positions. 16 Analysis of Issues. 17 Divorce. 17 Custody and Parenting. 17 "Separation Agreement" 17 Child Support 19 Section 7 Expenses. 24 Spousal Support 25 Division of Family Property. 30 Conclusions on Child and Spousal Support. 31 Further Financial Disclosure. 33 Summary of orders. 33 Costs. 34 Introduction [1] This is a family law claim. The parties were married in Las Vegas, Nevada, U.S.A. on October 6, 2012, and have been living separate and apart since June 1, 2017. There is a single child of the marriage, L.I., born in September 2016. Given the age of this child, I refer to the parties by their initials in these reasons to protect the child's privacy. [2] The claimant in this proceeding was represented by legal counsel at trial. Legal counsel represented the respondent from the commencement of this proceeding until May 15, 2021. The respondent was self represented at trial. [3] The issues before the Court are: a) Divorce; b) Custody and parenting; c) Child support; d) Spousal support; e) Division of family property; and f) Costs. Background Evidence [4] The parties first met in 2002 when the claimant was still a high school student. For a brief period of time due to conflicts in her own family, she moved into the respondent's parents' home. After graduation from high school and a period of time staying with her father in the state of Florida, U.S.A., the claimant returned to B.C. and began working as a receptionist in a hair salon. [5] The parties moved in together in 2006. At that time, the claimant was working for a hair salon, and thereafter she completed an apprenticeship and obtained a Red Seal certification in hairstyling. Her income in 2006 was based on a $12 per hour wage over a forty-hour week, or approximately $24,000 per annum. The respondent was working for an industrial tire dealer and earned approximately $55,000 per year. The annual difference between the incomes of the parties was approximately $30,000. [6] The claimant indicated that originally the parties each owned a Chevrolet Cavalier and a few household items. Neither party had significant savings or investments. During the relationship, the claimant contributed on a monthly basis to a Registered Retirement Savings Plan ("RRSP"). At the time of trial that plan had a value of approximately $5,446.64. The respondent also had a RRSP valued at approximately $43,712.17, which he withdrew in May 2018, as discussed further below. [7] The claimant testified that she left the hair salon in 2006 and went to work in another salon operated by a friend. She also took a job selling print advertising for a local newspaper, where she earned $2,000 per month for eight months. From the end of 2006 until 2008, the claimant moved to a sales position with a local radio station, earning income on a commission-only basis without any guaranteed income. In 2008, the claimant attended the University of Northern British Columbia to study commerce. The respondent did not support the claimant in this activity. [8] In 2009, the respondent moved to a position as an outside sales representative with a mechanical fastener company, earning about $55,000 annually. In a short time, the respondent was appointed as a sales manager for the same company. [9] In 2010, the claimant and a business partner opened a hair salon which they operated together for approximately one year. The hair salon was built into a former restaurant space which the claimant paid to renovate for the purposes of running a hair salon. The claimant and the respondent borrowed approximately $15,000 to invest in this business. The claimant earned approximately $35,000 in the first year. The claimant bought out her partner at the end of the first year and continued to operate with additional hair dressers in the second year. In the second year she earned approximately $48,000 but there was no potential of any additional income or bonuses. [10] During the early years of the relationship, the claimant testified that she was responsible for most household chores and cooking on a 70/30 ratio. She acknowledged that she did household laundry and the respondent laundered his own work clothes. They lived in homes which had capacity for additional tenants and they collected rent from those tenants. They hired the claimant's sister to help with the additional cleaning necessitated by the presence of tenants. [11] The claimant and the respondent split the rent and other household expenses equally despite the significant difference in their incomes. The respondent was working as a manager for the same mechanical fastener company, earning approximately $70,000 per annum with progressive increases annually. He also received a bonus. [12] In 2011, the respondent and his brother S.I. purchased a home in Prince George, B.C. for $247,000 and agreed to divide the mortgage. The claimant's name did not appear on title, although she paid the utility bills for the home. The claimant also arranged and paid for renovations to the kitchen of this home including installation of a dishwasher, countertops and a used but newer refrigerator. The claimant and respondent resided in the upper floor of the home and the brother had a suite downstairs. [13] The parties were married on October 6, 2012. In May 2013, the respondent moved to a take a promotion in the Lower Mainland with the same mechanical fastener company, with a sales management territory spanning the province. His annual income was $80,000, with bonuses in excess of $10,000. To follow her husband's change of employment, the claimant was required to sell her hair salon in Prince George. In a forced sale position, the sale proceeds were only $15,000. These proceeds were not segregated for the benefit of the claimant but were used for the parties' general family expenditures and to pay credit card debt. [14] Most of the claimant's extended family were residing in the Prince George area, including her mother and step-father as well as two sisters. The claimant had developed a significant group of regular customers in her hair styling business in Prince George which came to have little value when she moved away to follow her husband's much more lucrative career. It was clear that her husband's income was going to be significantly larger than the claimant's income might have become in Prince George. [15] The parties moved into a rented accommodation in Surrey, B.C. and the respondent's brother continued to live in the home in Prince George, where he rented the basement suite to tenants. [16] The claimant did not have sufficient notice of the change in her husband's position to obtain a new job in the Lower Mainland. Eventually, the claimant took a position as a sales representative for a beauty products seller. The parties were working approximately the same number of hours each in the Lower Mainland and as a result, their time spent on household tasks was equal. The respondent was earning more than double what the claimant was earning at the time. [17] In 2014, the claimant became pregnant. She continued to work until approximately 33 weeks of gestation and then stopped working on March 30, 2015 due to excessive swelling. Unfortunately, the fetus died in utero and was delivered by Caesarean section. The claimant became very ill with eclampsia and medical leave was necessary. [18] The claimant took approximately six months of combined medical and maternity leave, eventually returning to work in May 2015. The claimant found it very difficult to continue with her employment as she struggled to advise her 140 customers, who had been aware of her maternity leave, of the loss of the child. [19] Around the same time, the home in Prince George was sold in 2015 and the respondent and his brother received about $13,000 each. The parties used that money to pay credit card debt and to purchase furniture and other items for the new residence in Surrey. [20] The respondent continued working as a district manager for the mechanical fastener company, earning $112,846 in 2016. [21] In order to cope with the loss of the first child, the claimant began attending counselling. The claimant asked the respondent to participate with her in the counselling but the respondent refused. Following the loss of this child, the claimant began to work as a senior hairstylist, where she continued working through a second pregnancy until approximately 36 weeks of gestation in August 2016. Her annual income that year was slightly less than $30,000. [22] The claimant applied for employment with WestJet Airlines Ltd. ("WestJet") in March 2016, while still working as a hair stylist. She did not intend to hold two jobs and, if successful with the application at WestJet, she intended to resign from the hair styling position. In August 2016, the claimant was hired as a permanent part- time customer service agent at WestJet, earning $14.40 per hour or about $800 every other week. This was more reliable employment than hair dressing as the hours were steady and more regular, totalling approximately 25 hours per week. The claimant continued working at a hair salon at the same time that she was working at WestJet. [23] The claimant gave birth to a son, L.I., on September 21, 2016. The claimant continued to have post-partum medical issues which prevented her from working for some months but she remained the primary caregiver for the baby following his birth. The claimant was receiving Employment Insurance benefits while she was on maternity leave. Those benefits and the respondent's pay cheques were deposited into the same Toronto-Dominion bank account. Rent, utilities and other family bills were paid from that account. [24] After L.I. was born, the parties' relationship became less positive. L.I. experienced colic with great regularity, with frequent vomiting and stomach upset. For the first four and half months, the baby slept for only short periods of time of approximately 45 minutes, both day and night. He did not often sleep all night. As a result, the claimant did not get sufficient sleep, and was very tired. The claimant was on maternity leave and was not working during that leave. [25] The respondent would work a full day, usually from 7:30 or 8:00 am, and return home around 3:00 pm to get changed and attend a one-hour fitness class at 3:30 pm. He would return home for a brief dinner, then help bathe and put the baby to bed before 7:00 pm. He would leave the home again at least three evenings per week to play ice hockey or do other activities with his friends, including football and CrossFit. On several occasions, the respondent stayed away from the home all night without notice or explanation, which caused the claimant upset. [26] The claimant testified she tried to engage the respondent in conversations about their relationship in hope of restoring their relationship but the respondent did not participate and was only home when he had to be. He offered the explanation that staying busy was his way of grieving, but he was not prepared to change the time spent away from home. The respondent refused numerous offers by the claimant to take part in counselling. [27] The respondent testified that he found it very difficult to cope with the loss of the first child. He was frustrated that he had to return to work quickly after the death of the child. He also acknowledged that his then wife was grieving and "having a hard time". Their relationship became strained and "everything was very distant". The respondent testified that he felt that because the claimant was unable to return to work at the beauty products firm, she had put a lot of financial pressure on him. He testified he could not imagine how hard it would be for her to face some 140 customers but that the financial aspect fell on his shoulders. [28] During this time, the claimant did the majority of childcare, and approximately 70% of the household chores and cleaning. [29] The respondent spent more time away from the home and moved into the spare bedroom. The parties separated on June 1, 2017, when the claimant found out that the respondent was in another relationship. He then moved into a friend's home for about one month. [30] The rented Surrey home in which the parties had been residing then cost $1,400 per month and after separation, the claimant continued residing there with the child. The respondent paid that amount to the claimant for a period of time. The respondent also paid $400 per month for one-half of the childcare costs once the child was 11 months of age and was placed in childcare, which sum was paid directly to the childcare provider. Again, this was not a share proportional to the parties' incomes. At that time, the claimant did not qualify for government subsidies for daycare. [31] In the months following the separation, the baby went to daycare from 7:00 am to 5:30 pm on weekdays. When the claimant could not return home prior to the dinner hour due to flight times with WestJet, the respondent would pick up the baby, and take him to the claimant's home on those days to provide dinner. This situation persisted through September and October 2017. As the respondent spent more time in Prince George in November 2017, the claimant had to provide and at times pay for additional childcare. During those months, the respondent usually looked after the baby on one weekend night, usually Friday night until Saturday (one overnight) and perhaps once or twice a week when the regular babysitter was unable to attend for some reason. [32] In July 2017, the respondent had ended his employment with Fastenal. The respondent testified that from September 2018 to June 2019, he was employed by a safety equipment supply company, but overall including RRSP withdrawal earned $145,481 in 2018. While the respondent had sales responsibilities across northern B.C. in this position, he stayed principally in Prince George with his new partner. He was seeing the child less frequently; approximately every two weeks. [33] By July 2018, the respondent was living full time with his new partner in Prince George. The respondent did not consult with the claimant about his move from the Lower Mainland to Prince George. [34] The respondent requested that the claimant, with the advantage of discounted air fares available because of her employment with WestJet, fly with the baby to Prince George approximately once per month, returning on the same day to her home. Depending on work schedules, 7 to 10 days later, the claimant would fly back to Prince George to pick up the baby and return to her home. Each return took the better part of a day, taking into account travel to the airport and check-in procedures prior to boarding a plane. [35] The time the claimant took off to fly back and forth to Prince George in a single day involved most of the hours in that day and as a result, each pair of trips involved two lost working days at the hair salon, when the claimant could not work there. This parenting schedule persisted until the beginning of September 2019. [36] In August 2019, the respondent then demanded that parenting time be changed from him having 7-10 days per month with the baby to a week-on week-off schedule. The claimant did not agree to that change. Then the respondent demanded to have parenting time with the child in the first week the child was scheduled to attend pre-school in the Lower Mainland. Missing the beginning of a school year would not be in the best interests of this or any child. Not surprisingly the claimant refused this request for parenting time that conflicted with the commencement of pre-school. [37] The respondent responded to this situation with some anger and stated he no longer had to pay the amount he had been paying to the claimant, and he was only going to pay the "government required amount" for child support. [38] In September 2019, the respondent stopped paying the $1,400 per month as well as $400 for daycare, and without providing any income information such as pay stubs, began to pay $822 per month, which the respondent testified was out of anger from the claimant not agreeing to his change in the parenting schedule. The respondent provided no additional funds for s. 7 expenses, such as childcare expenses for which he had previously paid $400 per month. The respondent did provide a single payment of $200 to the claimant when the claimant reported she was having difficulty paying living expenses. [39] As a result of this reduction in payments from the respondent, the claimant had great difficulty providing for her household expenses and received gratuitous care and other assistance from the child's regular caregiver. The child would sleep at the caregiver's home on the evening before the claimant was working an early morning shift. The caregiver would provide breakfast for the child and then look after the child in daycare. [40] Due to the claimant's strained financial circumstances following the respondent's significant reduction in support, on October 2019 the claimant filed the Notice of Family Claim in this proceeding. [41] The claimant obtained some financial relief for childcare when she obtained a government daycare subsidy and she paid the balance of $220 per month. In December of 2019, due to Covid-19 conditions, the daycare facility the child attended closed. [42] In January 2020, the claimant continued to work at two jobs, WestJet and a hair salon. On February 7, 2020 the claimant broke the bones in her knee. She was placed in a cast for four months. The claimant's mother moved in to assist with childcare and house cleaning for about the first six weeks following the injury. The claimant was in a leg immobilizer with non-weight bearing restrictions for two months. The claimant then moved to stay with a friend in Kamloops, who provided care until mid-May. The claimant's short-term goal was to be able to shop for groceries without crutches. A knee brace and crutches were required for the next six months. As a result of the injury, the claimant was unable to walk the 20km typically required for work at WestJet or to stand for the 10 hours per day required in the hair salon. The claimant received short-term disability payments for three months. Then the claimant received a layoff notice from WestJet; of 246 employees in the claimant's job category, WestJet retained only four employees in that category. The claimant had relatively little seniority and was near the bottom of WestJet's "return to work" list. [43] Once the claimant was unable to travel due to injury in 2020, the respondent began to drive from Prince George to the Lower Mainland to bring the child to Prince George and back again to exercise his parenting time, which would last 7-10 days or more with the child. The respondent testified that he was paying for childcare in Prince George, and seemed to imply that this justified his lack of contribution to the child's daycare costs when the child was with his mother. [44] In 2020, post-injury, the claimant could not return to the shift work at WestJet, nor work as a hair dresser due to the long periods of standing required. She also had difficulty being a "present mom" of a growing child, who had begun to take part in weekend sports. From February 2020 until December 2020, the child was home with the claimant until he began to attend a new daycare. For the first three months of 2020, the claimant received short-term disability payments and then Canada Emergency Response Benefit ("CERB") payments during the Covid-19 pandemic. She received no income from either WestJet or the hair dressing salon. [45] After August 2020, the claimant applied for more than 75 jobs but did not find work. Work hours that were compatible with daycare schedules were rare. The claimant continued to attempt to return to WestJet but was concerned with childcare needs with the daycare closed, particularly as the claimant was low on the priority list; the only shifts available were in the very early morning. During this period, the respondent was paying the claimant a total of $822 per month. [46] The claimant contacted Work BC to obtain retraining beginning in November 2020. Through Work BC, as the child was no longer in pre-school, the claimant was able to place the child in a five-day per week program called "Sports Flex" daycare, which was paid by a work subsidy and Work BC at the rate of $1,000.00 per month. The respondent made no contribution to this program. [47] The claimant could not perform hair styling as a reasonable employment alternative due to time required to develop clientele and problems standing all day. Jobs which involved walking or standing would have been physically problematic. [48] In addition to the retraining program, on or about June 23, 2021, the claimant obtained part-time administrative employment with a construction company working 14 days on and 14 days off (a two week cross-shift) where shifts were 4-5 hours in length at a rate of $30 per hour for an approximate income of $1,890 per month. This employment was cut short by the B.C. fire season. The claimant and other employees in that company were laid off. Work BC had been trying to place the claimant but although a position was anticipated, it had not been obtained by the time of the trial. The claimant's last day of work in this position was August 10, 2021. Also, as noted above, the complainant's rental expense continued at $1,400 per month for the same residence the claimant had occupied since 2017. The respondent continued to pay the claimant $822 per month; a figure which the respondent chose in 2019 without discussion or agreement with the claimant. Further, the respondent had provided no basis to the claimant for the calculation of the $822 sum. [49] The most recent Form F8 Financial Statement filed by the claimant was marked as Exhibit 10 at trial, contained in Book 1, Tab 36, from pgs. 293-360. There the financial situation of the claimant was described, supported by the evidence given at trial. That evidence described the claimant's participation in a Computerized Accounting/Office program in 2021 at Brighton College. Her $7,500 in tuition was paid by the province, with an advance of funds for books and other fees in the amount of $2,577.76. The claimant also paid $777.24 for books and fees from her limited resources. She received a diploma from that program in early August 2021. [50] The claimant had no employment going into 2021, and her Employment Insurance payments expired in February 2021. Work BC then provided payments to the claimant of $625 every two weeks until her graduation in August 2021. Work BC also paid her a subsidy for daycare, which left her paying $450 per month for daycare. [51] In Exhibit 10, the claimant displayed an RRSP which at the time of trial had a total value of $5,446.64, all of which is a family asset, which will be rationalized at the end of these reasons. [52] As mentioned, the respondent also had an RRSP during the parties' relationship, but in or about May 2018, the respondent withdrew approximately $45,000 from the RRSP in his name. Although this sum was a family asset to be divided with the claimant pursuant to family law legislation, the respondent did not offer the claimant any interest in that fund, which the claimant could have received as a tax-free rollover. Instead, the respondent was obliged to pay tax on the entire amount at his marginal income tax rate; a much higher rate than the claimant would have been obliged to pay in her circumstances. The respondent testified that he used the funds remaining to pay debts, but offered no detailed evidence of the alleged payments. With respect to the balance of the monies drawn from the RRSP, approximately $38,000, the respondent testified that he used that balance to pay his living expenses. [53] The respondent did give $5,000 of these funds to the claimant, but there was a difference in the understanding of the advance of $5,000 by the respondent to the claimant. The respondent described the payment as in part for payment of vehicle expenses and in part for payment of a debt due from the couple to the Medical Services Plan of B.C. ("MSP") in the approximate amount of $7,500. The claimant was without resources at the time, and she used most of that sum to pay for ongoing living expenses and paid $500 on the MSP debt. The MSP debt remains a family debt. [54] I note that while the respondent testified that the parties had agreed to split everything 50/50 and they were partners in all they did, this statement rang hollow in light of the respondent's lack of timely or complete disclosure of income or assets, including his lack of disclosure the aforementioned withdrawal and use of his RRSP in 2018 until 2021. [55] The claimant testified that she owned a 2013 Chevy Equinox which was purchased for $42,000 in January 2013 subject to a loan which required payments of $628 per month. The claimant drove this vehicle to get to work and kept it after separation. The respondent made no contribution to these payments after September 2017. This car loan has been repaid in full. At the time of trial, the vehicle presently needed repair; at a cost estimated at $3,000 but the claimant had no funds available to pay for this repair. This vehicle therefore has no value except as scrap. [56] Following the layoff of the claimant by WestJet, the claimant could no longer travel on deeply discounted tickets with WestJet and no longer was covered by the extended health plan with that company which ceased to cover the claimant and the child in the summer of 2018. The child was then covered for extended health benefits by the respondent's health plan. [57] In Exhibit 15, Document Book 5, Tab 29, pg. 229, the claimant submitted the parties' incomes. I have reproduced this table below, but reduced the claimant's estimated 2006 income as it is the court's view that it is unreasonable to assume that any individual works 52 weeks per year. Where the number provided was based on the party's notice of assessment ("NOA"), I have marked NOA in the table below. [58] The respondent did not provide a NOA for 2021. The respondent forwarded an unexecuted copy of an undated Form F8 Financial Statement to counsel for the claimant on August 16, 2021. None of the documents referred to on pg. 3 of the Form F-8 under the heading "Documentation Supplied" were attached to the copy. No pay stubs referred to in the document were included in the document. In its unexecuted, undated, and incomplete form, this document has little evidentiary value of the respondent's 2021 income. The claimant argued that the respondent's 2021 income should be fixed as the average of the respondent's income for the three prior years, 2018, 2019 and 2020, at an amount of $117,291. Because the respondent cashed out his RRSP in 2018 and thus earned a significantly higher income in 2018 than in other years, I have instead accepted the claimant's proposed alternative number of $110,000 to approximate the respondent's income for 2021. Year The claimant The respondent Difference 2006 $24,000 $55,000 $31,000 2007 $25,000 $55,000 $30,000 2008 $25,000 $55,000 $30,000 2009 $25,000 $55,000 $30,000 2010 $35,000 $55,000 $20,000 2011 $55,000 $55,000 $0 2012 $29,942 (NOA) $76,105 (NOA) $46,163 2013 $39,074 (NOA) $95,040 (NOA) $55,966 2014 $43,840 (NOA) $104,286 (NOA) $60,446 2015 $28,853 (NOA) $107,327 (NOA) $78,474 2016 $26,327 (NOA) $112,846 (NOA) $86,519 2017 $23,341 (NOA) $96,566 (NOA) $73,225 2018 $36,132 (NOA) $145,481 (NOA) $109,349 2019 $37,035 (NOA) $95,076 (NOA) $58,041 2020 $26,161 (NOA) $111,316 (NOA) $85,155 2021 $18,832.80 $110,000 $91,167.2 Overview of Parties' Positions [59] The claimant sought both retroactive and prospective child support. She also sought retroactive spousal support in a lump sum amount to avoid further litigation expense. The claimant also claimed an equal apportionment of other family property and debt, and payment of an income-related division of s. 7 expenses. [60] The respondent submitted that, notwithstanding an ongoing failure of financial disclosure to the claimant, he had provided adequate support for the child and the claimant since separation. [61] He submitted that he had continued to work for longer periods than the claimant at higher paying jobs, and was therefore under more financial pressure than the claimant. He argued the claimant should follow his example and quickly become self-sufficient. The respondent asserted that the claimant could build a clientele in the hair industry again, and that he had originally paid $1,400 a month to help the claimant focus on her career. No factual basis was provided by the respondent for the ability of the claimant to obtain self-sufficiency, within a particular time. Analysis of Issues [62] I now analyze the issues at trial. Divorce [63] The claimant led the evidence necessary for the granting of an order for divorce. A certificate of pleadings was filed as Exhibit 2, and a marriage certificate was filed as Exhibit 3. The evidence was clear that the parties separated on June 1, 2017 and have not lived together at any time since that date. There was no collusion nor condonation. There is no hope of reconciliation. The divorce order was granted during the trial. Custody and Parenting [64] Pre-trial, the parties entered into a consent order dealing with parenting and guardianship, parenting responsibilities, and parenting time, including specified parenting time during long weekends, professional development days, statutory holidays, Mother's Day, Father's Day, the child's birthday, and extended parenting time during Christmas break, spring break, and the summer break. The consent order also provided for specified use of the child's passport for travel outside of Canada, and arrangements for such travel. "Separation Agreement" [65] In July 2019, the respondent requested that the claimant sign a document entitled "Separation Agreement". There had been no prior discussion nor negotiation of the terms of the Separation Agreement between the parties. The respondent told the claimant that the Separation Agreement was for the purposes of assisting the respondent and his partner to obtain bank financing for a new home. That Separation Agreement was apparently for bank purposes only and was not accurate in a number of respects which I will outline. [66] At the request of the respondent, the claimant signed the document but was of the view the Separation Agreement was not enforceable because among other things the "Background" referred to therein was untrue to the extent that it represented that the parties had "made complete, fair and accurate disclosure of all financial matters reflected in this Agreement". The claimant testified that there had been no such disclosure and she was unfamiliar with the financial situation of the respondent and his partner. The respondent did not provide evidence contrary to the testimony of the claimant in any way in relation to the Separation Agreement. [67] The Separation Agreement provided: a) the respondent would have parenting time with the child ten days out of every month; b) the respondent would pay child support in the amount of $1,400 per month commencing on July 1, 2017 and each month thereafter; c) the parties would pay special and extraordinary expenses, "such as Daycare, sports, lessons, in proportion to their respective incomes as long as the child is a child of the marriage; d) child support payments, contributions to uninsured health care costs, childcare costs, additional costs and the maintenance of health insurance will continue as long as the child is a child of the marriage; e) neither party claims entitlement to spousal support at this time although neither Party is expressly waiving his or her right to spousal support in the future; and f) that the parties had agreed on a division of all assets owned or possessed by them, as marital property or separate property and that neither party makes a claim to any assets in possession of the other. [68] The respondent's conduct indicates the parties did not intend to be bound by the terms of this "Separation Agreement". [69] Contrary to (a) above, in the month of August 2019, approximately four weeks after the Separation Agreement was signed, the respondent demanded that the claimant agree to a two-week-on, two-week-off parenting schedule. The claimant refused this demand. [70] Contrary to (b), the respondent reduced the $1,400 monthly child support payment to $822, without any financial disclosure to the claimant, two months after the Separation Agreement was signed. [71] With respect to (c) above, the respondent had never paid s. 7 expenses in proportion to his income. The respondent had been paying 50% of the child's s. 7 expenses, notwithstanding his income was substantially above the income of complainant. In September 2019, he stopped paying any portion of the child's s. 7 expenses. [72] With respect to (e) above, the parties had not discussed spousal support nor the waiver thereof at all. This paragraph suggests the contrary and that suggestion is untrue based on the evidence of the complainant, which was not challenged by the respondent. [73] With respect to (f) above, the respondent had not disclosed his RRSP assets or that he had withdrawn RRSP assets as noted above. This paragraph simply has no support in the evidence. The withdrawal of the respondent's RRSP was not disclosed until the respondent filed a Form F8 Financial Statement in 2021, shortly before trial. [74] Whatever the purpose of the Separation Agreement, it is not a document which is reliable as any statement of fact in relation to the conduct of the parties. I find that this Separation Agreement is not legally binding and of no legal effect. Child Support [75] The respondent's obligation to pay child support pursuant to the Federal Child Support Guidelines, SOR/97-175 [Guidelines] in keeping with his current income, from time to time, is not a contentious issue. The respondent asserted that he would have difficulty paying the table amount under the Guidelines but provided no evidence nor argument pursuant to s. 10 of the Guidelines that the table amount was unsuitable. For the year 2021, based on the averaged income of the respondent of $110,000, the table amount from the Guidelines is $1,031 monthly, payable forthwith. [76] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) [Divorce Act] and the Family Law Act, S.B.C. 2011, c. 25 [FLA] provide for the payment of child support. Section 15.1 of the Divorce Act states: Child support order 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). Guidelines apply (3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. Terms and conditions (4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. Court may take agreement, etc., into account (5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. Reasons (6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so. Consent orders (7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. Reasonable arrangements (8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. [77] Section 147 of the FLA states: 147 (1) Each parent and guardian of a child has a duty to provide support for the child, unless the child (a) is a spouse, or (b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable. [78] Section 150 of the FLA provides: 150 (1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines. (2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if (a) the parties consent under section 219 [persons may consent to order being made] or have an agreement respecting child support, and (b) the court is satisfied that reasonable arrangements have been made for the support of the child. [79] In the case at bar, there has been no agreement nor payment of child support by the respondent which has been calculated with reference to the Guidelines. Hence, this court must consider retroactive child support. The leading authority in relation to retroactive child support orders is D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.], which establishes that there is a free-standing obligation of the payor parent to pay child support commensurate with the payor parent's income. Thus under that scheme for parental support, payor parents who do not increase their child support payments to correspond to their incomes will not have fulfilled their obligations to a child of the marriage. The child also has a right to support in accordance with the Guidelines, which is a right of the child which exists independent of any court action taken: D.B.S. at para. 60. The Guidelines were established to simplify - for both parents and courts - the quantification of child support obligations to "take the mystery out" of child support calculations, so that there are "only two numbers relevant in computing the amount of child support owed: the number of children being supported and the income of the payor parent": D.B.S. at paras. 43-44. [80] At para. 80 of D.B.S., the Court describes the situation like that in the case at bar where there has been no prior order by a court for the payment of child support. The factors to be considered in relation to an award of retroactive child support are set out at paras. 100-116 and include: a) any delay by the recipient parent in seeking retroactive support; b) the payor's conduct; c) the child's circumstances; and d) the hardship entailed by a retroactive award. [81] While an award of retroactive child support may produce a degree of unpredictability, in D.B.S., the Supreme Court of Canada at para. 97 noted that such unpredictability is "often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself" by failing to take appropriate action at the time that the obligation to pay an increased amount of support first arose. [82] Based on the facts found above on the uncontested evidence, chiefly of the claimant, there is a basis for retroactive child support to be awarded in this case. [83] Next, the date of retroactivity is based on the consideration of four choices: (1) the date when an application is made to the court; (2) the date when formal notice was given to the payor parent; (3) the date when effective notice was given to the payor parent; and (4) the date when the amount of child support should have been increased: D.B.S. at para. 118. The Court adopted the date of effective notice as a general rule at para. 118. The Court also concluded that as a general rule, retroactive awards should extend no further than three years before the date that formal notice was given by the recipient parent: D.B.S. at para. 123. [84] D.B.S. has been followed in subsequent Supreme Court of Canada cases including Michel v. Graydon, 2020 SCC 24 [Michel], which considered the date of retroactivity as it applied after the child ceased to be a child of the marriage. The Court determined that the FLA authorized a court to vary a child support order irrespective of whether the beneficiary is a "child of the marriage" at the time of the application. The Court expressed the view that regarding the date to which child support should be retroactive, the date of retroactivity should correspond to the date when the support ought to have been paid, and effective notice goes will beyond actual knowledge of a filed variation application: Michel at paras. 130-131. [85] D.B.S. was also followed in Colucci v. Colucci, 2021 SCC 24, a further case which considered obligations to pay arrears of child support, in this case over $170,000, reduced on appeal to $41,642. The Court noted that an allegation of hardship in paying arrears will not automatically justify a departure from the presumed date of retroactivity, particularly where the arrears were caused by the payor's unreasonable failure to make proper disclosure to the receiving party: at para. 108. [86] In the case at bar, the respondent made no disclosure to the claimant respecting his income from time to time. The hardship in the case at bar fell on the claimant and the child, and was caused by the respondent in failing to disclose his income on an annual basis since separation. [87] In this case, the claimant filed a Notice of Family Claim in October 2019, after the respondent reduced monthly support payments from $1,400 to $822, unilaterally and without any financial disclosure or consultation. His sworn F8 Financial Statement was unfiled when provided in December 2019. A further F8 Financial Statement, which was unsworn and without required attachments, was provided on August 18, 2021, shortly before the trial. [88] Even after the claimant told the respondent that she was having difficulty staying afloat financially, the respondent only made a single payment of $200. [89] It is accepted law that an award of child support may include three years of retroactive support from the date of notice to the payor, which in the present case occurred not later than the date the claimant filed the Notice of Family Claim. [90] Because the respondent had paid the claimant $1,400 and then $822 per month without reference to the Guidelines or any indication of what amount was for child support or spousal support, I will calculate the impact of these payments on the respondent's overall child and spousal support obligations below in my conclusions, after I have considered s. 7 expenses and spousal support. Section 7 Expenses [91] With respect to payments for the support of the child participating in recreational activities and sports, the respondent had some hesitation in paying the expense but agreed he would attempt to pay for these s. 7 expenses provided he had sufficient notice and agreed to the activity. [92] Evidence was presented in Exhibit 19 of the child's lacrosse expenses in 2021 for the amount of $369.67, together with lacrosse registration fees of $150 shown in Exhibit 20. The child's rugby cleats cost $36.74 and registration for rugby cost $65.00. [93] The claimant confirmed she intends to enroll the child in hockey and soccer and the respondent confirmed he was encouraging the child to play both sports. [94] As the claimant was unemployed and taking retraining, the claimant's health plan ended but at present the child is enrolled in the respondent's medical health plan. [95] With respect to childcare, the respondent initially paid $400 per month towards the child's daycare costs. The daycare cost was actually $800 and without legal advice, the parties had agreed to split that cost on a 50/50 basis when the respondent was earning 72% of the family income, and the respondent should have contributed at that rate. The daycare expense was a s. 7 expense which was agreed to by the parties. The respondent then stopped paying his contribution to this expense without agreement of the claimant. [96] The claimant presented an agreed amount for s. 7 expenses payable by the respondent in the amount of $4,014. That amount will be awarded herein to the claimant. There was no calculation presented by the claimant or the respondent for the actual costs of childcare, daycare or pre-school paid by the parties. Therefore, the court is not in a position to make any order with respect to costs related to childcare in favour of or against either party. [97] The parties are reminded that the "guiding principle" set out in s. 7(2) of the Guidelines is that parents contribute to special and extraordinary expenses in proportion to their respective incomes. The respondent was receptive and supportive of the child's extracurricular activities, about which he and the claimant agree in advance. I order that they each contribute to s. 7 expenses in proportion to the parties' incomes. Spousal Support [98] The claimant sought retroactive spousal support payable in a lump sum. The relevant considerations for spousal support in the case at bar include the need for both compensatory and non-compensatory support. Those categories of support are summarized in M.S. v. E.J.S., 2017 BCSC 564 at paras. 96-98, in part, as follows: [96] Compensatory support, which relates to the first two objectives, is intended to provide redress for economic disadvantage arising from the marriage or the conferral of an economic advantage on the other spouse. [97] The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge v. Moge, [1992] 3 S.C.R. 813 at 861-863; Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 39). [98] Non-compensatory support, which relates to the last two objectives, aims to narrow the gap between the needs and means of the spouses on marital breakdown [99] As referenced in those passages, together, compensatory support and non-compensatory support encompass the objectives of spousal support set out in s. 161 of the FLA. All of the objectives must be considered; no single objective is paramount: Moge v. Moge, [1992] 3 S.C.R. 813 at 852. [100] The facts in this case are that the respondent throughout the marriage had the more significant income. The claimant and respondent had two children, the first stillborn and the second, a healthy child. The claimant has of necessity had her career slowed by the two pregnancies and illnesses, including depression that followed the stillbirth. The claimant has had primary care of the second child and has been a strong supporter of that child having a positive relationship with his father, including facilitating regular flights from Vancouver to Prince George for the father's parenting time in that city. As noted, each return trip to Prince George by WestJet flight took two working days from the commission income that the claimant was then earning. [101] The claimant had begun a hair dressing business in 2010 in Prince George with a business partner. She contributed physical labour and the proceeds of a loan to create a hair salon in a former restaurant space. After buying out her business partner after the first year, the claimant's income was increasing to between $30,000 and $40,000. The claimant's career sacrifice for her marriage was emphasized when she sold her developing hairdressing business in 2013 when the respondent moved to the Lower Mainland, with total proceeds of $15,000. The clientele her salon had developed from 2010 to 2013 was a significant business asset that the claimant lost as she moved to the Lower Mainland to allow her husband to obtain more lucrative employment. [102] The claimant's position at WestJet came to an end, post-injury, with the layoff notice described above. [103] The claimant also suffered broken bones in her knee, which made walking and standing uncomfortable. As a result, the claimant sought an administrative position; however, the Covid-19 pandemic reduced available work in that field [104] It is clear that entitlement to spousal support must be considered in this case. Section 162 of the FLA sets out the types of factors which the court must consider in determining spousal support as follows: 162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following: (a) the length of time the spouses lived together; (b) the functions performed by each spouse during the period they lived together; (c) an agreement between the spouses, or an order, relating to the support of either spouse. [105] Applying these considerations to the case at bar, the period of time the parties lived together is significant, being more than 11 years. In terms of the functions each party performed when they lived together, the claimant testified that she was principally responsible for household tasks including: cooking, cleaning laundry groceries and bill payments, assuming up to approximately 70% of the total responsibility for these tasks. While the parties signed a document entitled "Separation Agreement", the claimant only signed this document for the purpose of assisting the respondent and his partner in the purchase of a home, and as I have discussed, it did not reflect a legally binding separation agreement on the parties. The claimant also experienced two pregnancies, both of which involved postpartum illness and the claimant became the principal caregiver for the second child. [106] The objectives of a spousal support order are set out in s. 15.2(6) of the Divorce Act: (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [107] In the case of Kerr v. Baranow, 2011 SCC 10 at para. 207, Justice Cromwell, writing for the Court, recognized that similar considerations to those identified in D.B.S. in relation to child support are relevant to deciding the suitability of a retroactive award of spousal support. These are the needs of the recipient, the conduct of the payor, the reason for delay in seeking support, and any hardship the award may occasion the payor. However, the factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal support. The Court explained those differences and, in a passage quoted by the judge, identified the interests at stake when an application for spousal support is delayed: [209] Where, as here, the payor's complaint is that support could have been sought earlier, but was not, there are two underlying interests at stake. The first relates to the certainty of the payor's legal obligations; the possibility of an order that reaches back into the past makes it more difficult to plan one's affairs and a sizeable "retroactive" award for which the payor did not plan may impose financial hardship. The second concerns placing proper incentives on the applicant to proceed with his or her claims promptly (see D.B.S., at paras. 100-103). [108] In the case at bar, there was no delay in the claimant advancing her claim for spousal support, as the respondent was paying a total of $1,800 per month, which was comprised of an unspecified sum of $1,400 plus $400 per month for daycare expenses. [109] The standard of living of the parties relative to their marital standard of living is another factor to consider: Chutter v. Chutter, 2008 BCCA 507 at paras. 57-61. The respondent now lives in a home with multiple bedrooms, which is far superior to the claimant's rented basement suite, which she struggles to afford. Clearly the respondent has a much higher standard of living than the claimant. In Exhibit 18, the home occupied by the respondent acquired in August 2019 is said to be valued at $688,000 (assumed to be assessed value), subject to a mortgage of $483,144.66 for an equity of $204,855.66. The claimant has no equity in any real property. Her struggle to stay afloat financially following the parties' separation places her standard of living far below that which she enjoyed during that parties' marriage, and below the respondent's current standard of living. [110] The claimant's activities during the marriage also provided an economic benefit to the respondent as the claimant took on most child-minding duties and paid for or provided childcare, with little assistance from the respondent. [111] The respondent has not paid any amount for spousal support since separation, and when he was making submissions seemed to assert "hardship". No evidence was called by the respondent that demonstrated hardship. That said, I am satisfied that the claimant has proven entitlement to spousal support on both compensatory and non-compensatory basis. [112] As mentioned above, the respondent did not provide sufficient evidence of his 2021 income. I have accepted the claimant's suggestion that a 2021 income of $110,000 be attributed to the respondent in the calculation of child and spousal support. I also have declined to calculate spousal support based solely on the claimant's 2021 because the claimant was on disability and did not receive her usual income from her employment. I have instead averaged the claimant's income from 2017-2021, at $28,300 to calculate spousal support. [113] In an attempt to avoid the need for further litigation between these parties which they can ill afford, a lump sum award of spousal support is appropriate. Based on the DivorceMate calculator mid-range "with child support formula", the net present value of the spousal support in this case is $93,480. However, some of the respondent's previous $1,400 payments to the claimant exceeded his child support obligations and will be applied towards his child support obligations, as discussed below. Division of Family Property [114] As the undisputed facts came forward at trial, in or about May 2018, the respondent, without notice to the claimant, cashed out a RRSP in his name containing $43,712.71. The respondent testified he received these monies after paying required income tax. Had this RRSP been divided equally between the parties, as the RRSP as a family asset is mandated to be divided, the claimant would have been entitled to one-half of that sum by way of tax-free spousal rollover, and would have received $21,856.35. She is entitled to that sum as a family asset. [115] The claimant testified at trial to holding an RRSP in her name, which is also a family asset, and as of June 2021 was valued at $5,446.64 as shown in Exhibit 10, pg. 9. [116] In order to reduce the paperwork required by the parties, one-half of the value of the claimant's RRSP or $2,723.32 will be awarded to the respondent and deducted from the $21,856.35 owing by the respondent to the claimant. This results in an award of $19,133.03 payable by the respondent to the claimant. [117] The family debt referred to in the evidence which remained at the date of trial was a debt due to the MSP in the amount of $5,127.37. That debt is equally apportioned between the parties. [118] The respondent testified that he gave $5,000 from his RRSP to the claimant for the purpose of paying family debt. The claimant admitted that she received these funds from the respondent but she did not know, and was not told, the source of these funds. She testified she paid $500 to reduce the MSP debt and used $4,500 to pay ongoing family expenses. In order to avoid double counting of support, the claimant will credit the respondent with half the amount of the $4,500 that she did not use to pay down MSP debt, which amounts to $2,250. This will be drawn from the $19,133.03 owed to the claimant for the division of the RRSPs, resulting in an overall award of $16,883.03 payable from the respondent to the claimant. [119] The remaining MSP debt shall be divided equally between the parties. Conclusions on Child and Spousal Support [120] The respondent paid monthly amounts between 2017 and 2021 which were not designated as either child or spousal support. The table below is an overview of the amounts the respondent paid, the amount of child support due, and any excess or deficit in payments beyond the Guidelines amount of child support that was payable. This is based on the presumption that the respondent's payments are first applied to child support. Year Amount respondent paid Amount of Child Support Owed Amount in Excess of Child Support Obligations Amount Short of Child Support Obligations Four months of 2017 Amount paid during last four months of 2017= $5,600 $916.64 x 4= $3,666.56 $1,933.44 N/A 2018 12 x $1,400=$16,800 12 x $1,320.85 = $15,850.20 $949.80 N/A 2019 8 x $1,400= $11,200 4 x $822= $3,288 Total: $14,488 12 x $903.67= $10,844.04 $3,643.96 N/A 2020 12 x $822= $9,864 12 x $1,041.59= $12,499.08 N/A $2,635.08 2021 (January to trial date) 8 x $822=$6,576 8 x $1,031= $8,248 N/A $1,672 Total amount in excess: $6,527.20 Total shortfall: $4,307.08 = The respondent's payments exceeded his child support obligations by $2,220.12. [121] The respondent's $1,400 combined payments, applied first to child support, resulted in the obligations to pay child support overall being met, with $2,220.12 in payments beyond the child support obligations. I will apply that surplus of $2,220.12 to his spousal support obligations. I note that I have not considered the respondent's initial $400 monthly payments for the child's daycare costs, as the parties agreed to resolve their s. 7 expenses, including child care expenses, by consent. [122] Based on the DivorceMate calculations for spousal support provided by the claimant, which use the mid-range "with child support" formula where the parties were living in a marriage-like relationship for 11.5 years, the amount of spousal support payable on a lump sum basis, based on the Net Present Value Assumptions set out therein, is $93,480. This is based on a salary of $110,000, proposed by the claimant to approximate his income, and an income of $28,300 attributed to the claimant, which is the average of her incomes from 2017-2021. From this sum, the sum of $2,220.12 should be deducted resulting in a balance of compensatory and non-compensatory spousal support due to the claimant of $91,259.88. As noted above, this sum of spousal support shall be paid in the next four years beginning at the trial date herein. Upon payment of the said sum, no further payment of spousal support shall be required from the respondent. [123] It should be noted that based on the employment experience of the claimant, in which she has certainly not been under-employed or not otherwise working to her capacity. The claimant was clearly a hard worker who for some time occupied two jobs devoting considerable time to ensure that the respondent was able to have regular time parenting time with the child until broken bones brought that work and travel to an end. Imputing income to the claimant therefore would not be appropriate. Further Financial Disclosure [124] The parties will exchange complete copies of their filed personal income tax returns and notices of assessment by June 15 each year commencing on June 15, 2022 for the 2021 tax year and every year thereafter for so long as the child is a "child of the marriage". Summary of orders [125] The following orders have been made above: a) the respondent shall forthwith pay $16,883.03 to the claimant for division of family property; b) the respondent shall pay a lump sum of $91,259.88 to be paid in four equal annual installments of $22,814.97 in each of this year (2022) and the following three years to the claimant for spousal support. The entirety of spousal support shall be paid in full on or before August 26, 2025; c) the respondent shall continue to pay the Guidelines amount of child support each month to the claimant, with an exchange of tax returns and notices of assessment each year by June 15 for the purpose of calculating the table amount; d) the respondent shall pay $4,014 to the claimant for s. 7 expenses; and e) family debts are set off against one another except for the MSP debt which remains outstanding and is to be divided equally by the parties. Costs [126] Claimant's counsel requested that costs be addressed once the contents of the judgment were published. Based on the reasons above, the claimant has been substantially successful (75% or better as defined in Fotheringham v. Fotheringham, 2001 BCSC 1321). Unless further submissions and a further order is made, the claimant should be entitled to her costs pursuant to the Supreme Court Family Rules as a matter of ordinary difficulty on a three-day trial. I have decided that, although the parties appeared on four days, three days of trial is an appropriate measure as the last two days in this trial were both short days. [127] If the parties wish to make submissions on costs, their submissions shall be made within 30 days in writing in a document of not more than ten pages in length, double spaced. "Ball J."