C.A.M. v. T.C.H.

2016 BCSC 1756 C.A.M. v. T.C.H.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.A.M. v. T.C.H., 2016 BCSC 1756 Date: 20160926 Docket: E44580 Registry: New Westminster Between: C.A.M. Claimant And T.C.H. Respondent Before: The Honourable Mr. Justice Blok Reasons for Judgment Appearing on her own behalf: The Claimant, C.A.M. Appearing on his own behalf: The Respondent, T.C.H. Place and Dates of Trial: New Westminster, B.C. May 2, 3 and 4 and August 29, 2016 Place and Date of Judgment: New Westminster, B.C. September 26, 2016 I. Introduction [1] In this family matter the primary issues in dispute relate to child support, spousal support and parenting time. There are related issues concerning the incomes of each party, retroactive support, an alleged agreement as to arrears of support and the amount of arrears. II. Background [2] The parties commenced a relationship around 2005 but broke up the following year. They continued to see each other from time to time and renewed their relationship, and lived together, commencing October 2008. They did not marry. They separated on May 1, 2013. [3] Together, they have two children: a son X, who is seven years old and a daughter Y, who is five years old. [4] During their relationship the parties lived in a condominium that T.C.H. had purchased, with a friend, prior to their relationship. It was registered in the name of T.C.H. The condominium sold in July 2013 for

$244,000, garnering net proceeds of about $17,000. The proceeds were divided but the parties disagree on certain consequences of that division, as I will explain later. [5] On May 2, 2014 Master Keighley made an interim order for child and spousal support as well as prescribing parenting time for the parties. Specifically, T.C.H. was ordered to pay child support of $1,397 per month commencing April 1, 2014 and spousal support of $1,616 per month commencing May 1, 2014. Parenting time was divided between the parties with T.C.H. having the children from 8:00 a.m. on Mondays until 8:00 a.m. on Thursdays, with C.A.M. having the children the remainder of the time. That arrangement has continued to date. [6] Master Keighley based interim support on Guidelines income of $120,000 for T.C.H. He imputed Guidelines income of $21,320 to C.A.M. for the purposes of spousal support and the sharing of special and extraordinary expenses, also known as s. 7 expenses. [7] On June 4, 2015 Master Tokarek varied the earlier interim support order. Monthly child support was set at $1,137 and monthly spousal support at $1,152, both effective January 1, 2015. The order was made without prejudice to either party to claim a different amount at trial. [8] T.C.H. voluntarily paid $900 per month for support (not specified as to type) commencing July 2013 up to the date of the order of May 2, 2014. C.A.M.

seeks retroactive support representing the shortfall between the amount paid and the amount she says T.C.H. should have paid for both child and spousal support up to the date of the order. She also seeks reimbursement for daycare costs incurred by her during this time. [9] Both parties are unhappy with the income amounts attributed to them. C.A.M. says that income should not have been imputed to her. She also asserts that T.C.H. makes much more money than he declares. For his part, T.C.H. says that C.A.M. has failed to take proper steps to secure work as a licenced practical nurse in accordance with her LPN qualifications. As for his own income, he denies that there is any unreported income and says his income is as it is only because he is working two nearly full-time jobs. He expects his income from his primary job as a Shaw Cable employee to decrease due to industry changes. [10] The condominium proceeds were held in trust by agreement but paid out to the parties in September 2014. C.A.M. received $10,000 and T.C.H. received $7,167.78. T.C.H. says that the payout agreement included an agreement to settle outstanding support arrears to the end of August 2014. Ms. McCaw denies that she agreed to settle support arrears. [11] As to parenting time, T.C.H. is content with the parenting schedule ordered by Master Keighley, but C.A.M.'s initial position was that T.C.H. should have

the children Mondays and Tuesdays, she would have them Wednesday through Friday, and weekends would be alternated. She later changed her position on parenting time, as described below. [12] Although it seems the parties have differing parenting styles, neither party alleged the other to be a bad parent. For that reason, although both parties spent considerable time at trial reviewing various alleged misbehaviours of the other party, I find it unnecessary to review that evidence here because it is for the most part not relevant to the issues to be decided. III. Re-Opening of Trial [13] On August 29, 2016 C.A.M. applied to re-open the trial to address a child care amount and to argue for a different parenting arrangement. I allowed the application essentially because: (1) the well-being of the children was at issue; (2) as a self-represented litigant C.A.M. had demonstrated difficulties advancing her case at trial; (3) C.A.M. believed parenting time changes were necessary to address certain behavioural issues; (4) the issue with the child care expense arose after the trial; and (5) by happenstance, there was sufficient court time available for the purpose that very day, with both parties prepared to proceed, and so re-opening would not delay judgment. The additional evidence and submissions were completed in about an hour. [14] C.A.M. now proposes a week-on/week-off parenting

arrangement. IV. Evidence A. C.A.M. Employment and Education [15] C.A.M. is in her late 30s. She has had various jobs over the years, but since December 2015 has operated a laser and electrolysis salon. [16] C.A.M. reviewed her education and employment history. She left high school at age 15 and thereafter worked at a number of unskilled jobs. In her early 20s she took training in early childhood education at Capilano College but did not finish the program. In her mid-20s she attended a training program for veterinary office assistants. It appears she worked in that field for a brief period of time. In 2005 she completed high school equivalency courses because she wanted to become a nurse. She worked as a grocery store cashier at the time. In early 2007 she began LPN training, which she completed late that same year. She then obtained work in a long-term care home but this lasted just three months because the employer considered that her skills were not up to an appropriate standard. The employer suggested that she instead work as a care aide and so she did some casual work in that role. [17] By October 2008 she was living with T.C.H. and was pregnant, and could not find work. Their son X was born in June 2009; their daughter Y was born in December 2010. C.A.M. said she was out of the workforce from 2008 to 2012. During this time she was a stay-at-home mother. [18] The parties

separated on May 1, 2013. C.A.M. alleges that T.C.H. had substance abuse issues and was removed from their home due to violence. [19] In answer to T.C.H.'s claim that she should be working as an LPN, C.A.M. said although she has kept up her LPN registration her skills have lapsed. C.A.M. said she cannot work as an LPN in any event because it involves shift work and she cannot get child care for shift work. She took some training as a foot care nurse, hoping to pursue a franchise opportunity in that area, but that did not pan out. C.A.M. then embarked on her salon business, which she feels offers the prospect of financial freedom while allowing her to manage her role as a parent. [20] C.A.M.'s line 150 income for 2013 was $3,843. For 2014 her income was $3,233, derived from child care benefits of $2,400 and support payments of $1,136, set off against self-employment losses of about $300. For 2015 her income was -$9,730, reflecting child care benefits of $3,240, support payments of about $7,400 and self-employment losses of about $20,400. The Condominium [21] C.A.M. said she invested $30,000 in the condominium through renovations and household purchases. She produced receipts for carpets, kitchen countertops, flooring, paint, light fixtures and appliances totalling about $29,400. [22] C.A.M. said T.C.H. told her she would get this money "off the top". [23] After separation, she

and the children stayed in the condominium. T.C.H. told her he would split the proceeds with her if she let a realtor into the premises, so she let the realtor in. C.A.M.'s plan was to stay in the condominium and pay rent of $750 per month, but T.C.H. sold the condominium and she only had 17 days to find alternate accommodation. She retained a lawyer and the lawyer filed a lien against the property on her behalf. [24] Ultimately, the net proceeds of about $17,000 were divided by agreement, with C.A.M. getting $10,000 and T.C.H. getting $7,000. Parenting Time [25] From the time of separation until May 2014 there was no fixed schedule for parenting time. C.A.M. said T.C.H. exercised very little parenting time during this period. [26] Master Keighley's order of May 2, 2014 set specific parenting times as outlined earlier. This has been the parenting schedule ever since. Because she has the children every weekend and because there is no suitable daycare available on weekends she is unable to open her salon on Saturdays or Sundays. She testified that her customers are requesting weekend appointments. [27] The children are now in school full-time. [28] C.A.M. said the parties are generally able to sort out between themselves parenting time for Christmas and other holidays. She noted that while T.C.H. says he is willing to trade days, he has not cooperated with suggested

trades. Arrears of Child Support [29] According to C.A.M., T.C.H. currently owes her $19,320.57 for support. She did not distinguish between child support and spousal support. On November 28, 2014 he obtained a reduction of arrears of $6,549.51 and, together with an "over-reporting" (by $800) by C.A.M. of support she had received, T.C.H. reduced his arrears by $10,349, which C.A.M. says is in error. [30] C.A.M. said this was reflected in an interim order made by Mr. Justice Verhoeven on November 28, 2014 which set "FMEP arrears" at $3,000 "without prejudice to any claims that C.A.M. may make". Her sense was that this reduction was more than $10,000, the sum she received from the condominium proceeds, which she felt effectively left her with no funds from the sale of the condominium. C.A.M. said arrears stood at $13,349 at the time that reduction was made. [31] C.A.M. had a difficult time explaining what was going on with these reductions, but said it was tied together with their discussions about dividing the proceeds of the condominium. She said the two of them went to the conveyancing lawyer's office, with T.C.H. proposing that she get $10,000 and he get $7,000. She said she believed they were splitting it in a way that gave them $7,000 each (for $14,000 in total) and the remainder would go towards child support. [32] C.A.M. also submits that for the period prior to Master

Keighley's order T.C.H. should pay the difference between the amount he was later ordered to pay (a total of $3,013 monthly for both child and spousal support) and the actual amount he paid during this time ($900 per month). This period begins on the date of separation and runs to April 1, 2014, the effective date of Master Keighley's order. [33] Finally, C.A.M. said the FMEP printout reflects an error in that it shows a payment of $3,800 on September 15, 2014, although it was not clear what she considered the correct figure to be. Daycare Expenses [34] C.A.M. produced daycare receipts totalling $3,540 from June 2013 to August 2014. She said T.C.H. has not paid any amount towards these expenses. Cross-Examination [35] In cross-examination C.A.M. said: a) the current parenting arrangements were put in place so T.C.H. could work on Saturdays. She feels T.C.H. could have his mother or brother look after the children on weekends; b) she agreed that she and T.C.H. had an extended exchange of text messages concerning the dividing of the condominium sale proceeds; c) she agreed that she sent an email to the conveyancing lawyer on September 9, 2014 which read as follows: [T.C.H.] and I ([C.A.M.]) have reached an agreement regarding the funds held in trust with Kearns and Company. The disbursement is as follows: $10,000.00 is for [C.A.M.] $ 7,167.78 is for [T.C.H.] We hope to have the

funds available to us at your earliest convenience. d) she agreed she signed a formal agreement dated September 10, 2014 which provided for the same disbursement of funds; e) she maintained that the funds were released without the two of them reaching an agreement, noting that she needed the money in order to pay a franchise fee that was due. She thought the idea was that each of them would get $7,000 and the rest would go to arrears. She also said the arrangement they made was not clear; f) she told FMEP that their arrangement should be reflected by way of a credit to T.C.H. of $3,800 but that number was wrong; g) she believes T.C.H. is masking the amount of money he earns by having workmates enter the work codes for work actually done by T.C.H. She acknowledged she does not have proof that this has occurred; h) she also believes T.C.H. works for cash, but again acknowledged she has no proof; i) when asked what she is doing to ensure the profitability of her business C.A.M. said she has a mentor or career coach and is following that person's advice; j) she expects to have annual business earnings of $120,000 in two to five years; and k) she would do LPN work if it did not involve shifts, although later she added that she is not presently qualified to work as an LPN. B. T.C.H. [36] T.C.H. is in his mid-30s. He agreed with much of the general background evidence given by

C.A.M. [37] T.C.H. said the two of them fought a lot and that their relationship was volatile. The event that signalled their final breakup resulted in an assault charge against him, but that charge was dropped when C.A.M. wrote to the Crown and told them the alleged assault did not happen. T.C.H. answered C.A.M.'s allegations concerning substance abuse and levelled assertions of his own against her, none of which I find necessary to detail here. [38] T.C.H. said the two of them still have a poor relationship and do not communicate well. [39] T.C.H. outlined his work history. Early on, he worked both as a bartender and for his father's insulation business. Later he was introduced to cable installation work by a friend and he found work with a Shaw Cable contractor. Shaw Cable later took the work in-house, so he now works for Shaw Cable as an employee. His work week is Tuesday to Saturday. [40] In 2015 T.C.H. took a second job because of financial pressures. He works as a bartender at a pub/restaurant every Friday and Saturday, although occasionally he also works on Thursdays and Sundays. He said he is working 70 hours per week at present. [41] His normal hours at Shaw Cable are 8 a.m. to 4 p.m., but he can start work at 9 a.m. if he has to. He has had to start later at times due to daycare problems involving X, who has demonstrated some behavioural difficulties serious enough

that the after-school care centre would not accept X any more. [42] Every fifth week at Shaw Cable T.C.H.'s schedule changes to an "evening" shift, which is noon to 8 p.m., for four days. In those weeks his mother helps him out with child care. [43] He said there is no dispute over the sharing of daycare expenses, aside from the incomes of the parties, but he said there was one daycare charge incurred by C.A.M. for an appointment she made and he does not feel he should have to share that particular expense. Parenting Time [44] T.C.H. said that C.A.M.'s proposal for alternating weekends is not workable for him because he works on Saturdays at both of his jobs. He has asked for weekends off at Shaw Cable but has been told these are not available. He sees the possibility of alternating Sundays with C.A.M. but notes he does not get home from his Saturday night bartending work until 3:30 a.m. and so some accommodation would have to be made for that by way of a later start to the day. [45] T.C.H. said he would also like to pursue a sideline business he started with a friend but which is currently dormant. He has kept his company in good standing by making the required filings but he earns no income from that source. Income [46] T.C.H. reviewed and explained his income tax returns. He noted that Master Keighley accepted his 2013 income was $120,000. His declared income in 2013, 2014

and 2015 is as follows: Year Total Income RRSP Income Employment Income Union Dues Allowable Expenses 2013 $150,499 $21,935 $128,564 $1,925 $12,192 2014 $123,346 $13,545 $109,802 $1,674 $11,102 2015 $130,435 $9,754 $120,681 $1,654 $11,987 [47] T.C.H. said "allowable expenses" relate primarily to vehicle costs as he is required to supply his own vehicle for work purposes. These costs include the cost of leasing a vehicle, insurance, maintenance and so on. [48] T.C.H. feels his long-term employment with Shaw Cable is not secure because: (1) with the advent of digital cable there is a reduced need for personal attendances by Shaw Cable installers; and (2) customers are tending to move away from cable service in favour of web-based services. He expects his 2016 income to be just $80,000 based on his year-to-date earnings up to the end of March 2016, which are just 73% of his earnings for the same period in 2015. [49] T.C.H. denied earning any income "under the table". He acknowledged that such a thing was theoretically possible, but said "no one would do it". His employer has a team that checks the work done, and if a person falsely logged jobs actually performed by T.C.H. then the other person would be unable to answer any audit team questions about the work. He also noted that his reported income is on par with the incomes of other Shaw Cable employees doing the same

work. Condominium Proceeds [50] T.C.H. said he purchased the condominium with a co-worker named Travis in the mid-2000s. They lived in it for several years. The purchase price was $265,000. They paid $15,000 down and the monthly payment, including strata fees, was $1,600. [51] C.A.M. moved in after she became pregnant. Travis lived with the two of them until X was born. T.C.H. bought out Travis's interest in October 2008 for $15,000. He said the condominium had not increased in value from the time of purchase to the time he bought Travis's interest. [52] T.C.H. said C.A.M. received an inheritance, at some point, in the range of $100,000 to $120,000 and wanted to spend money on the condominium. He was not opposed to this spending, but said the condominium was fine as it was. [53] T.C.H. said he and C.A.M. exchanged text messages on the subject of dividing the condominium proceeds. He said the exchange of texts shows they reached a deal whereby $10,000 went to C.A.M., about $7,000 would go to him, he was to pay the law firm's fee of $100 and all arrears would be considered resolved up to and including August 2014. C.A.M.'s Employment [54] T.C.H. produced various internet searches showing job vacancies for LPNs with salaries ranging from $44,000 to $60,000, which he said would be as much as $73,000 if the value of benefits was taken into account. He finds it difficult to believe

that there are no LPN jobs available that have a flexible work schedule that would accommodate C.A.M.'s needs. [55] He considers C.A.M.'s decision to embark on a new business, with no experience in business generally or in salon work specifically, to be imprudent and risky. He also noted that this has caused her to be involved in two lawsuits, one brought by a franchisor and the other by a contractor who did work for her. Cross-Examination [56] In cross-examination T.C.H. said: a) he acknowledged he did not pay support for July 2015 but said he was struggling financially; b) although his workday is scheduled to end at 4 p.m., typically he finishes his assigned work by 2:30 p.m. and on some days he might even finish before noon. Sometimes, however, he has to work after 4 p.m.; c) he worked longer hours when the parties were together but business has slowed since then; d) he has times during the work day when he is able to pick up the children, though these times are not predictable; e) he noted that C.A.M. made no effort to seek work during the time that the children were in full-time daycare; f) X's problems at daycare did not arise in the time soon after separation, but arose much later. He acknowledged that X has ongoing issues; g) he agreed X's behaviour has improved since he was removed from daycare; h) although he agreed C.A.M. had to be at least somewhat flexible in her

employment because of child care responsibilities, he did not feel that the flexibility had to be such that C.A.M. did not work at all; i) his mother helps out with child care on occasion, but she works full-time; and j) he agreed that he told her she would get the money she put into the condo "off the top" but said it was not the $30,000 C.A.M. maintains she put in. [57] In response to a question from the bench T.C.H. said in the first three months of 2016 he had taken time off work, using sick days and vacation days, in order to attend court, although he might have used up all his sick days at some point. I mention this because it might have accounted for his somewhat reduced year-to-date earnings at the time of trial. V. Evidence at Re-Opened Trial A. C.A.M. [58] At the re-opened trial C.A.M. testified that she has received a letter dated May 16, 2016 from the Ministry of Children and Family Development (MCFD) asking that she re-pay $2,117.75 due to a child care subsidy overpayment. Evidently she was given a subsidy from November 2013 to August 2014 based on the children being with her full-time whereas the children were dividing their time between the two parents. She feels this sum should be shared in the proportions ordered by Master Keighley (68%-32%), thus meaning T.C.H. should be responsible for $1,440.07. [59] The other issue addressed on the re-opened trial was

parenting time. C.A.M. now believes a week-on/week-off schedule would be best for X because X is acting out, has anger outbursts and has "suicidal thoughts". She feels X's feelings are "bottled up" after visits with T.C.H. and more consecutive days with her would make him more stable. She indicated she was better able to observe these trends over the summer than she was at the time of trial because the children were out of school. [60] C.A.M. believes the parenting styles of the parties are completely different. C.A.M. said she hears from X that he is belittled, threatened and coaxed with treats at his father's house, whereas she does none of those things. [61] C.A.M. also noted that a week-on/week-off schedule would allow her to operate her business on weekends. [62] In cross-examination C.A.M.: a) disagreed that a week-on/week-off schedule would result in income loss to T.C.H. due to loss of work on Fridays and Saturdays, with a consequential reduction in the amount of support she would get. She said T.C.H. could have his mother babysit on those days; and b) agreed that X has anger that is directed towards her. B. T.C.H. [63] T.C.H. said he does not disagree with sharing the repayment of the child care subsidy, but said it should be shared in proportion to the incomes as found in the current proceedings. [64] As to parenting time, he emphasized that he works Tuesday to

Saturday at Shaw Cable and Thursday to Saturday at the restaurant/pub. He needs to work two jobs because C.A.M. is essentially unemployed. A week-on/week-off arrangement would eliminate evening work and his Saturday work at Shaw. [65] He expects that a week-on/week-off arrangement would reduce his income to $67,000. In the event he is successful in his argument that C.A.M. should be earning LPN income of about $45,000 then child support would reduce to $300 per month, and C.A.M. could not survive on that amount. He said it is not in anyone's best interests to have the collective incomes of the parties reduced in this way. [66] T.C.H. said his mother has her own life and he does not feel comfortable with an arrangement that imposes substantial child-minding duties on her. He feels that the amount of time his mother spends with the children should be up to her. [67] T.C.H. agreed that X has a tendency to act out. It has been suggested by a counsellor that X may have ADHD, but there has been no formal diagnosis of this yet. Rather than change the parenting schedule as C.A.M. proposes, T.C.H. says that they should each get counselling so that they can "get on the same page" in terms of parenting. [68] T.C.H. said he does not experience the difficulties with X that C.A.M. does. He noted that C.A.M. tends to shout at X, which sets X off, whereas T.C.H. is able to deal with X's bad

behaviours through physical activity. [69] In cross-examination T.C.H. said: a) there is no one in his type of position at Shaw Cable who is given a Monday to Friday work schedule; and b) he does not have other relatives who could provide child care. VI. Positions of the Parties A. C.A.M. [70] Parenting time: C.A.M. submits that a week-on/week-off arrangement would better address X's behaviour difficulties because it would offer more consecutive days with her and would provide consistency. It would also allow her to open her salon on alternating weekends. [71] Ongoing support: C.A.M. submits that ongoing child and spousal support should be based on an income of $120,000 for T.C.H. and zero income for her. [72] Retroactive support: C.A.M. says this should be set at $22,343 for the period starting at separation and ending on May 2, 2014, the date of Master Keighley's order, based on the difference between the amount ordered and the amount T.C.H. paid. C.A.M. also submits that arrears should be set at $54,019.57 (rather than the amount of $19,320.57 calculated by FMEP) for the period from May 2, 2014 to trial. In this regard I note that C.A.M. did not provide an underlying calculation for this figure, although I have presumed it is based on the same income figures she advanced on the issue of ongoing support. [73] Daycare expenses: C.A.M. says T.C.H. should pay $1,636.76, which is

68% of daycare costs she incurred prior to May 2 ($2,407), plus $1,440.07, which is 68% of the child subsidy overpayment of $2,117.75. [74] Property division: C.A.M. seeks judgment for $29,000 plus interest for her interest in the condominium. She said she did not want the condominium sold and it was sold for less than market value. [75] Other orders: C.A.M. said T.C.H. should be ordered to undergo drug testing every three months given his admission that he has consumed drugs in the past. B. T.C.H. [76] Parenting time: T.C.H. said he wants to keep the same parenting arrangement for financial reasons and to maintain consistency. A week-on/week-off arrangement would result in his losing his Saturday income from Shaw Cable and losing his second income entirely. He said C.A.M. had little to say about what the actual benefits of a week-on/week-off schedule would be. If behavioural issues are the problem, then it would be better to deal with those issues through joint counselling than by substantially reducing his income. [77] Incomes of the parties: T.C.H. submits that C.A.M.'s income should be imputed between $45,000 and $60,000, which are the earnings of an LPN. He notes he has held down two jobs while C.A.M. has not had any remunerative employment at all. He argued spousal support should be set at the low end of the range to reflect the relatively short relationship of the

parties. [78] Retroactive spousal support: T.C.H. urged the Court not to order retroactive spousal support. He noted that the rules applicable to spousal support are less strict and in any event he has no ability to pay. He also noted that if C.A.M. had obtained employment as an LPN no spousal support would be necessary. [79] Property division: T.C.H. submits that the parties made a deal for the distribution of the proceeds and the cancelling of arrears and this deal should be enforced. [80] Daycare expenses: T.C.H. does not disagree with his responsibility for a fair share of these expenses, but says this should not include extraordinary daycare expenses incurred due to the fault of one of the parties. [81] Other orders: T.C.H. opposed any order requiring him to undergo drug testing. Any issue is long past and C.A.M. has never had any issue with T.C.H. having care of the children. On another point, T.C.H. submits that there should be an order that neither party make disparaging remarks about the other in the presence of the children. VII. Discussion [82] I will address the issues under the headings that follow. A. Parenting Time [83] C.A.M. says a change to the parenting arrangement is needed in order to help X with some of his behavioral difficulties. It is clear she feels that X's time with his father is causing these difficulties, but there is no objective evidence and

certainly no professional opinion evidence to support that. By contrast, T.C.H. said that X does not exhibit the same sort of troublesome behaviour described by C.A.M. when he is with him. He attributes X's troubles either to possible ADHD or to C.A.M.'s own manner of interacting with X. [84] So each side has their own views about the benefit or detriment X gets from his time with the other parent, but both views are in direct conflict and, in any event, they are a scant basis on which to make a parenting change. X's behavioural issues may have something to do with the way one, the other or both parents interact with him, or they may have nothing to do with those interactions at all. I cannot come to any conclusion on this issue in the absence of any opinion evidence from a qualified professional or other evidence that would point one way or the other. [85] In short, I am not satisfied that there is any proper basis to make a change to the parenting arrangements in order to address X's behavioural issues. I also do not see a logical reason why the parenting arrangements should be changed to a week-on/week-off schedule, as this would substantially reduce the amount of money available to both parties. In this regard I was not at all persuaded that T.C.H. could − or should − foist the children off on his mother for babysitting each Saturday so that he could work Saturdays. [86] I

do see a basis to alter the parenting arrangements somewhat in order to allow C.A.M. to have weekend appointments available for her salon customers. T.C.H. works at two jobs on Saturdays, so Saturdays are not an option, but Sundays could be made available by alternating Sundays between the parents. [87] I conclude that there should be no change to the existing parenting arrangements, save that Sundays will now alternate between the parents. On T.C.H.'s Sundays his parenting time will start at 11 a.m. I leave it to the parties to work out any other consequential details. If they cannot work out these details then they may re-attend before me and I will make further orders, if need be. [88] In her pleadings C.A.M. sought an order making both parties guardians of the children. I note that they are guardians already by virtue of s. 39 of the Family Law Act, S.B.C. 2011, c. 25, so there is no need to make an order to that effect. B. The Alleged Property and Arrears Settlement [89] I have reviewed closely the exchange of text messages and the documents relating to this issue. The text messages show that in September 2014 the parties were discussing how to divide the condominium sale proceeds. On September 2 C.A.M. invited T.C.H. to make another offer. After an intervening dialogue only generally touching on the topic, T.C.H. responded on September 5 by saying: What if you take 10,000

and I take the remaining money and we call it even and continue with the 2800/month? [90] When asked by C.A.M. for clarification of the "it" in "call it even", T.C.H. responded by referring to the support arrears (the "debt") accruing from "April til now". C.A.M. asked how much was in trust (T.C.H.: "I think $18,000") and how much he owed in arrears (T.C.H.: "I think about $7,000"). C.A.M. then suggested T.C.H. include tickets to a comedy show "into the deal" and T.C.H. responded, "Sure, if that avoids court and lawyer nonsense, you got it"). [91] The discussion continued the following day (September 6): T.C.H.: So Did we reach an agreement? C.A.M.: Thought you were checking how much is owing. T.C.H.: Oh.. Okay. I'll add it up Monday and if you agree we can hopefully get it Monday [ ] [92] On September 8 (which was a Monday) T.C.H. sent a message to C.A.M. indicating he had spoken to the lawyer who was holding the money in trust: T.C.H.: [He] Said all we need to do is each send an email telling them how to divide the money and we can get cheques tomorrow. [93] T.C.H. then informed C.A.M. that the lawyer told him there was "only 16000 and change, not 17 and change" and so he proposed a revised split of $9,500 to C.A.M. and $6,500 to himself. In separate messages C.A.M. asked T.C.H. to draft an authorizing email for her and then asked T.C.H. what the $9,500 was for. He then

said: T.C.H.: 9500 to make us even.. Basically we'd be starting from 0 for September and payments continue as court ordered [ ] C.A.M.: So I would be taking a pretty big hit right. Then payments would be 2800/month? And how do we get that confirmed without court? T.C.H.: Court said we only need to go through them if we can't agree. [ ] But yes, 2800/month is the new amount. [94] T.C.H. sent to C.A.M. a draft of the email that she was to send to the lawyer. They then had a dialogue over the new figures ($9,500 and $6,500). T.C.H. then said: T.C.H.: [ ] Hopefully [the lawyer] gets back to us today and hopefully it is 17,000 or more [then] we can do the initial 10000 deal. [95] On September 9 C.A.M. sent a text message to T.C.H. telling him that the amount in trust was $17,167.78 and that she had copied T.C.H. with the email she had just sent to the lawyer. [96] The email she sent to the lawyer said: [T.C.H.] and I ([C.A.M.]) have reached an agreement regarding the funds held in trust with Kearns and Company. The disbursement is as follows: $10,000.00 is for [C.A.M.] $ 7,167.78 is for [T.C.H.] We hope to have the funds available to us at your earliest convenience. [97] It is apparent that T.C.H. sent a similar email to the lawyer. The lawyer replied to both: Thank you [C.A.M.] and [T.C.H.], I have reviewed the documents that were sent to me by [C.A.M.]'s lawyer at the time we

closed the sale and the CPL was released. We were instructed not to release the funds until there was a court order directing us to do so, a written agreement between the parties, or upon direction of both family lawyers. So in addition to the emailed direction I've received from both [of] you, we will still need a simple agreement signed by both of you indicating how the funds are to be disbursed. [98] Both parties then executed an agreement dated September 10, 2014 for the disbursement of the trust funds as set out in the emails, plus $112 to the law firm for administering the funds. Both parties declared they fully understood the nature and effect of the agreement, were executing the agreement voluntarily and waived their right to independent legal advice. The monies were then paid out to the parties. [99] By September 14 the parties were bickering over payments due in September. C.A.M. told T.C.H. she needed money despite her receipt of $10,000 from the condominium proceeds because she had paid that entire sum to a franchisor of a business in which she was interested. By September 18 they were completely at odds about the nature of the agreement they had reached for the sharing of the condominium sale proceeds. [100] There are other text messages touching on the subject, particularly after the dispute arose, but I have reproduced the most relevant ones. [101] From my review

of these messages and the related documents I conclude that the parties reached an agreement to settle support arrears that had accrued to the end of August 2014 and to divide the condominium sale proceeds. In several messages T.C.H. made it clear that the proposal was for the support arrears to be considered paid to the end of August 2014 ("we call it even", ["it" being] "the debt from April til now", and "9500 [which later reverted to $10,000] to make us even .. Basically we'd be starting from 0 for September"). Although C.A.M. does not expressly state in her text messages that she agrees, her conduct in sending an email to the lawyer ("[T.C.H.] and I [ ] have reached an agreement") and in executing the agreement drafted by the lawyer unequivocally conveyed the message that she accepted T.C.H.'s proposal. [102] The arrears of support captured by this agreement are those that had accrued pursuant to court order to the end of August 2014, as reflected in the FMEP statements. This does not include the additional retroactive support presently claimed by C.A.M., which I will address later. C. Incomes of the Parties [103] The incomes of both parties are at issue. I begin with T.C.H.'s income. T.C.H.'s Income [104] C.A.M. submits that T.C.H.'s income should be based on the "total income" figures in his income tax returns. She also says T.C.H. makes more money than he reports. She

offered no proof of the latter and so I conclude that this assertion has not been proven. [105] T.C.H. says that there should be adjustments to his "total income" figures to reflect income derived from RRSP withdrawals, union dues paid and employment expenses that he is entitled to deduct for tax purposes. The evidence led by T.C.H. satisfies me that he pays union dues to maintain his employment and that he is also required to supply a vehicle for work purposes. [106] Union dues and vehicle costs are dealt with in Schedule III of the Guidelines, which deals with adjustments to income: 1. Where the spouse is an employee, the spouse's applicable employment expenses described in the following provisions of the Income Tax Act are deducted: (g) paragraph 8(1)(i) concerning dues and other expenses of performing duties; (h) paragraph 8(l)(j) concerning motor vehicle and aircraft costs; [107] Accordingly, the union dues and automobile expenses T.C.H. has incurred are properly deducted from his total income in order to arrive at his income for support purposes. Because he leases a vehicle it is not necessary to delve into non-cash expense allowances such as depreciation or capital cost allowance, which are sometimes the subject of debate in these types of cases. [108] Income derived from RRSP withdrawals is more complicated as there is no clear rule about including those withdrawals in

income. As was explained in McKenzie v. Perestrelo, 2014 BCCA 161: [81] The relevant statutory provisions as to the calculation of income are found in the Federal Child Support Guidelines: Calculation of annual income 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 the Canada Revenue Agency and is adjusted in accordance with Schedule III. Pattern of income 17. (1) If the court is of the opinion that the determination of a spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [82] There is no clear rule about the inclusion of RRSP withdrawals in a payor's Guideline income; this is left to the discretion of the judge hearing the case: Burzminski v. Burzminski, 2010 SKCA 16 at para.

11. However, there are some guiding principles from the case law that may be summarized as follows: · RRSP income is presumptively part of a spouse's income for child support purposes because it forms part of a person's total income on a tax return and it is not listed as an exemption in Schedule III of the CSG. The spouse seeking to exclude the RRSP amount bears the burden of demonstrating that treating his or her RRSP withdrawal as income would not lead to the fairest determination of income: Fraser v. Fraser, 2013 ONCA 715 at paras. 97-99. · Where RRSP withdrawals are regular and a spouse's only source of income they are more likely to be included as income for the purpose of determining support: for example, see Edgar v. Edgar, 2012 ONCA 646. · On the other hand, there is no presumption that "non-recurring withdrawals from RRSPs should be automatically excluded from income for child support purposes": Fraser v. Fraser, 2013 ONCA 715 at para. 105. · Where a spouse has contributed to an RRSP and withdrawn that amount in the same year, it may be unfair to include both the contribution and withdrawal in the Guideline income: Dillon v. Dillon, 2005 NSCA 166 at paras. 28-29. · The court will consider the reason for the withdrawal. For instance, RRSP withdrawals have not been included as income where: o The amount has already been accounted for in the division of assets and was

used to fund legal fees: de Bruijn v. de Bruijn, 2011 BCSC 1546 at para. 34. o The amount has been used to repay a debt incurred by the other spouse in their joint names: K.A.M. v. P.K.M., 2008 BCSC 93 at para. 51. [83] Thus it seems clear from the jurisprudence that there is a presumption that RRSP withdrawals should be included in income for the purpose of calculating child support and, depending on the decision with respect to the division of that asset, in the calculation of spousal support. The presumption may be displaced by an array of circumstances. [Emphasis added.] [109] The evidence satisfies me that T.C.H.'s RRSP withdrawals were non-recurring and were not a regular form of income for him. T.C.H. also testified that he was struggling financially because he was burdened by debts arising as a result of their relationship, the implication being that this was the reason for his RRSP withdrawals. [110] In these circumstances I conclude that T.C.H. has displaced the presumption that RRSP withdrawals are to be included in income. In some measure at least, the withdrawals were made in order to service or repay debts incurred by both parties and, to that extent, have benefitted both parties. [111] Based on those conclusions, I find T.C.H.'s income for child support purposes to be as follows: 2013 $114,447 2014 $97,026 2015 $107,040 [112] T.C.H. said he expects his Shaw Cable

income to decrease in future. I note he made the same argument before Master Keighley in May 2014, and yet his income increased the following year. In any event, any material fluctuation in income may be dealt with, for child support purposes, through the process of exchanging income tax returns and assessments each year, and in the case of spousal support, through a review mechanism that I will address later. C.A.M.'s Income [113] Master Keighley imputed C.A.M.'s income at minimum-wage level, which C.A.M. submits should not have been done. She argues that her income should be set at zero. T.C.H. submits that C.A.M.'s income should be imputed at a level commensurate with the earnings of an LPN, which he says is in the $45,000 to $60,000 range. [114] I conclude that neither position is reasonable. C.A.M. only worked as an LPN for a very brief period of time, and that was years ago. Even then, her employers found her nursing skills to be sub-par despite her very recent training at that time. Given these circumstances it is not reasonable to expect her to obtain employment in this field. She would need significant upgrading and even with upgrading it seems to be an open question whether she would be capable of performing LPN work at an acceptable level. [115] Similarly, it is not reasonable for C.A.M. to be earning nothing. The children are now in school full-time and formerly

they were in full-time daycare. While her child responsibilities during her parenting times somewhat constrain her ability to secure work and may limit the sort of work she can do, they do not eliminate it entirely. I also conclude C.A.M.'s efforts at obtaining remunerative work that did not involve a risky business start-up were far from convincing. I had the sense that she did not try very hard or, at least, not nearly as hard as she should have. [116] For these reasons I conclude that C.A.M. is capable of earning income but she has chosen a path that does not garner her any income at all, although it may at some point. She is, of course, free to do what she wants, but the law will impute income to her because she is intentionally under-employed. [117] This brings me to the question of amount. As already noted, C.A.M. has some constraints due to parenting duties but I conclude she could at least work part-time, perhaps 30 hours per week. She has sufficient work experience and at least some training that should enable her to do somewhat better than minimum wage. [118] On the basis of all the evidence on the subject I conclude that income should be imputed to C.A.M. at $22,500 for 2014 and 2015 and for the latter part of 2013. For 2013 I conclude that income should not be imputed to her until October 1, 2013 in order to allow her time to have secured employment following

separation. D. Child Support [119] The general child support approach where there is shared parenting is to begin with the amounts attributable to each party as set out in the Guidelines and then, to take this case, to set off T.C.H.'s support obligation against the amount payable by C.A.M. at her imputed income level. This is shown as follows: Year TH Income Support CM Income Support Set-Off 2013* $114,447 $1,662 $0 $0 $1,662 2013** $114,447 $1,662 $22,500 $357 $1,305 2014 $97,026 $1,438 $22,500 $357 $1,081 2015 $107,040 $1,568 $22,500 $357 $1,211 * From May 1, 2013 to September 30, 2013 ** From October 1, 2013 to December 31, 2013 [120] Section 9 of the Guidelines requires that the Court not only consider the table amounts of child support payable by each of the parties but also any increased costs of the shared custody arrangement as well as the needs and other circumstances of the children and recipient spouse. There was very little evidence on these matters. On the available evidence I am satisfied that both parties have increased costs due to the shared parenting arrangement. The parties share, and will continue to share, s. 7 expenses on an income-proportionate basis. As to other circumstances, on their respective financial statements each party shows a substantial shortfall between monthly income and monthly expenses, and both are burdened with substantial debts. While

C.A.M. suggested T.C.H. enjoys a better standard of living, that circumstance could well be attributable to the fact that, due to her own choice, she is not employed in work that earns her any income. [121] In summary, there was nothing in the evidence at trial that persuades me that there should be any adjustment to the amount of child support that results from the Guidelines amounts being set off against one another. [122] I am satisfied that the child support obligation should commence on the date of separation (May 1, 2013) and, since no income is imputed to C.A.M. until October 1, 2013, is payable by T.C.H. without any set-off, that is, at $1,662 per month up to and including September 2013. For October, November and December 2013 child support is payable at $1,305 per month. [123] In 2014, the net amount after set-off ($1,081) is payable by T.C.H. only from January 1 to March 31 and from September 1 to December 31 because the amounts accruing between April 1 and August 31 were either paid in part by monthly payments or, to the extent they were not paid in this way, were settled in the property settlement. [124] As indicated in the table, the monthly child support payable by T.C.H. for 2015 is $1,211 and this obligation will continue in that amount unless the parties consent, in writing, to a change or it is changed by court order. [125] In similar fashion to Master

Keighley's order, I order that the parties exchange copies of their income tax returns and notices of assessment by June 1 of each year in order to assess whether any change to child support ought to be made. [126] The sharing of special and extraordinary expenses, also called s. 7 expenses, is to be done in proportion to the incomes of the parties, although s. 3.1 of Schedule III of the Guidelines provides for additional adjustments to incomes to determine those proportions, including an adjustment for spousal support. I will therefore address this in a later section of these reasons. E. Spousal Support [127] Spousal support stands on a different footing than child support. A claimant must first establish entitlement and if entitlement is established the amount and duration of support is set with guidance from the Spousal Support Advisory Guidelines [SSAG]. [128] Although neither party addressed the question of entitlement I am satisfied that entitlement has been made out given the circumstances here. C.A.M. was out of the workforce from 2008 to 2012 following the birth of both children and was therefore economically disadvantaged as a result of that. I appreciate that T.C.H. feels C.A.M. should have returned to some form of employment earlier than she did but nonetheless C.A.M. was unable to obtain employment or advance in any employment field for several years. She is

therefore entitled to spousal support on what is termed the compensatory basis in order to compensate her for this disadvantage. [129] I conclude that C.A.M. is also entitled to spousal support on the basis of need (which is termed the non-compensatory basis for spousal support) because even with income imputed to her she is in need of support in order to maintain an adequate standard of living. [130] T.C.H. argued that retroactive spousal support ought not to be ordered. He did not develop this argument to any great extent other than to assert there is more discretion in this area than there is for child support, although he also emphasized he has no ability to pay retroactive support. [131] I am satisfied that spousal support should have been paid sometime after the parties separated and thus retroactive support should be payable. T.C.H. was put on notice of a spousal support claim shortly after separation by reason of C.A.M.'s notice of family claim filed on July 23, 2013 and so he cannot argue that this is news to him. [132] I accept that T.C.H. probably has no present ability to pay any substantial retroactive support award but he has substantial earning capacity and I am satisfied he has the ability to retire any award over time. [133] I conclude that spousal support ought to have commenced on July 1, 2013, and not the date of separation, as C.A.M. remained in the

condominium until that date and was thus supported by T.C.H. to that extent. [134] Using the ages of the parties and the children, the child support payable, the duration of the spousal relationship (four years and seven months), the date of separation and the incomes as I have found them, resort to SSAG reveals differing spousal support figures for each of 2013 (which itself has two differing time periods), 2014 and 2015. For the period up to September 30, 2013, SSAG indicates a low of $1,922, a mid-range figure of $2,480 and a high of $2,771, with a minimum duration of four years and a maximum duration of 16 years from the date of separation. For the last three months of 2013, in light of the imputed income attributed to C.A.M., the respective figures are $1,426, $1,796 and $2,147. [135] For 2014 the figures are $1,010, $1,316 and $1,632, and for 2015 the figures are $1,270, $1,624 and $1,966. The range for the overall duration is, of course, the same. [136] I conclude that the spousal support amount should be set at the lower end of the range because: (1) C.A.M.'s compensatory claim to spousal support, though clearly established, is not particularly strong as she was disadvantaged for a few years only; (2) T.C.H. works substantially more than full-time and his income is higher as a result; and (3) I conclude C.A.M. should have continuing incentives to secure remunerative

employment given that she has earned virtually nothing in the three years after separation. [137] Accordingly, for the period from July 1, 2013 to September 30, 2013 T.C.H.'s spousal support obligation is set at $1,922 per month. For October, November and December 2013 his spousal support obligation is $1,426 per month. [138] From January 1, 2014 to March 31, 2014 and from September 1, 2014 to December 31, 2014 his spousal support obligation is $1,010 per month. As I have found, support in the intervening months was settled between the parties. For 2015 and continuing to the present, T.C.H.'s spousal support obligation is set at $1,270 per month. [139] I also order that there be a review of spousal support at any point after January 1, 2018. Although that review will address all of the circumstances of the parties, my purpose in ordering a review is to assess C.A.M.'s income and her efforts to become self-sufficient. In short, she should know by that point whether or not her business is going to succeed, and if it has, to what extent, and if it has not, what other efforts she has made to become self-sufficient. [140] I have not attempted to determine the actual amounts owing net of amounts paid and leave it to the parties, perhaps with the assistance of FMEP, to work that out. I grant leave (or permission) to the parties to re-attend before me if they are unable to work this

out on their own. [141] If, as appears likely, the calculations reveal an amount owing by T.C.H. for unpaid support then it is my intention that he be allowed to retire that sum by monthly payments. If the parties cannot agree on an appropriate monthly payment then they have leave to re-attend before me to address that issue. F. Section 7 Expenses [142] Section 7 expenses, both past and future, will be shared by the parties in proportion to their incomes. As noted earlier, incomes for s. 7 purposes are somewhat different than incomes for the purposes of calculating basic child support because payment and receipt of spousal support are taken into account for the payor and recipient respectively, and child care benefits are included in the income of the recipient. [143] The precise calculations are somewhat complicated because there are three differing periods in 2013, reflecting a two-month period when no spousal support is payable and no income is imputed to C.A.M., a three-month period when spousal support is payable but no income is imputed to C.A.M. and a three-month period when spousal support is payable and income is imputed to C.A.M., all where C.A.M. received child care benefits throughout. The following year is also complicated because of the property and support settlement, but I have used the amounts ordered for spousal support, and for the period April 1 to August 31

(the settlement period) I have used the spousal support amount ordered by Master Keighley as this was the sum retired in the settlement. [144] In the result, I make the following orders for s. 7 expenses: a) T.C.H. shall pay 100% of s. 7 expenses for May and June 2013; b) for the period July 1, 2013 to December 31, 2013, s. 7 expenses will be shared as follows: T.C.H. 75% − 25% C.A.M. This percentage reflects an average of the income proportions during that time; and c) for the years 2014 and 2015, and on a continuing basis, s. 7 expenses will be shared as follows: T.C.H. 68% − 32% C.A.M. This is an average of the percentages for those two years. [145] The s. 7 expenses to be shared shall include the repayment of the subsidy that is owed to MCFD. Any daycare or other s.7 expenses incurred due to the fault or for the convenience of only one party shall be borne by that party alone. [146] Again, if the parties are unable to agree on the appropriate figures for s. 7 expenses they have leave to re-attend in order to resolve those issues. G. Other Orders [147] The evidence indicates that each party has denigrated the other in the presence of the children. Both agree they should refrain from that sort of behaviour and neither party opposed an order to that effect. I will make that order. [148] C.A.M. wanted T.C.H. to undergo mandatory drug testing. I decline to make that order. The

evidence indicates that there is no present issue with substance abuse, a conclusion confirmed by the fact that C.A.M. did not assert T.C.H. was any sort of hazard to the children and, in fact, wanted him to have the children in his care more than he does at present. VIII. Summary [149] I make the following orders: a) with one change, the existing parenting arrangement will remain in place, that is, T.C.H. will have the children from 8:00 a.m. on Mondays until 8:00 a.m. on Thursdays, with C.A.M. having the children the remainder of the time. Henceforth the parties will alternate Sundays, with T.C.H.'s Sunday parenting time to begin at 11:00 a.m.; b) the parties are free to alter the parenting schedule by agreement between themselves; c) there will be a declaration that that the parties reached an agreement to divide the condominium sale proceeds and to settle all support arrears that had accrued pursuant to court order up to August 31, 2014; d) based on a finding of T.C.H.'s Guidelines income for 2013 at $114,447, for 2014 at $97,026 and for 2015 at 107,040, and on imputed income of C.A.M. of $22,500 effective October 1, 2013, T.C.H. shall pay monthly child support to C.A.M. on the first day of each month, as follows: i. from May 1, 2013 to September 30, 2013 he shall pay the sum of $1,662; ii. from October 1, 2013 to December 31, 2013 he shall pay the sum of $1,305; iii. from

January 1, 2014 to March 31, 2014 and from September 1, 2014 to December 31, 2014 he shall pay $1,081; iv. for 2015 and following he shall pay the sum of $1,211; e) T.C.H.'s child support obligation shall continue in the monthly amount of $1,211 unless the parties consent in writing to a change or the court otherwise orders; f) s. 7 expenses, also known as special and extraordinary expenses, shall be shared by the parties as follows: i. T.C.H. shall pay 100% of s. 7 expenses for May and June 2013; ii. for the period July 1, 2013 to December 31, 2013, s. 7 expenses shall be shared as follows: T.C.H. 75% − 25% C.A.M.; iii. for the years 2014 and 2015, and on a continuing basis, s. 7 expenses shall be shared as follows: T.C.H. 68% − 32% C.A.M.; g) the s. 7 expenses to be shared shall include the repayment of the child care subsidy that is owed to the Ministry of Children and Family Development; h) any daycare or other s.7 expenses incurred due to the fault or for the convenience of only one party shall be borne by that party alone; i) the parties shall exchange copies of their income tax returns and notices of assessment by June 1 of each year in order to assess whether any change to child support ought to be made; j) T.C.H. shall pay C.A.M. monthly spousal support on the first day of each month, as follows: i. for the period from July 1, 2013 to September 30, 2013 he shall pay

$1,922; ii. for October, November and December 2013 he shall pay $1,426; iii. from January 1, 2014 to March 31, 2014 and from September 1, 2014 to December 31, 2014 he shall pay $1,010; iv. for 2015 and continuing indefinitely, he shall pay $1,270; k) either party may apply to review spousal support at any point after January 1, 2018; l) the parties have leave to re-attend before me to address the following in the event they cannot come to an agreement: i. any details associated with the revised parenting arrangement; ii. the determination of arrears of support; iii. the amount of past s. 7 expenses; and iv. a payment schedule for any amounts T.C.H. owes to C.A.M.; m) neither party shall make any disparaging remarks about the other in the presence of the children; and n) all other claims of the parties are dismissed. [150] On the matter of costs, I am presently inclined to the view that success has been mixed and so each party should bear their own costs. Nonetheless, if either party wishes to make submissions on costs they should initiate that process within 30 days of the date of these reasons. "Blok J."