C.C.B. v. A.V.B.

2022 BCSC 1453 C.C.B. v. A.V.B.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.C.B. v. A.V.B., 2022 BCSC 1453 Date: 20220314 Docket: E211600 Registry: Vancouver Between: C.C.B., also known as C.C.F. Claimant And A.V.B. Respondent Before: The Honourable Mr. Justice Elwood Oral Reasons for Judgment In Chambers Counsel for the Claimant, appearing via videoconference: T.S. Brayer Counsel for the Respondent, appearing via videoconference: J. Dhanju Place and Dates of Hearing: Vancouver, B.C. March 9-10, 2022 Place and Date of Judgment: Vancouver, B.C. March 14, 2022 [1] THE COURT: The claimant, C.C.F., applies for interim spousal and child support, including s. 7 special or extraordinary expenses for the parties' child, O. A. Ms. F.'s Income [2] Ms. F. works at Vancouver General Hospital. She is trained as a nurse. She presently works as an executive assistant to several doctors. She has worked in her current position for around 12 years with a break for maternity leave after O. was born. [3] Ms. F. works Monday to Thursday with Friday as a flex day where she could work from home if required. Monday to Thursday, she leaves home around 7:00 a.m. and gets back home at around 4:30 p.m. [4] Ms. F.'s income in 2021, following her return from maternity leave, was $79,860. She expects that her income will remain at this level, provided that she can continue to work Monday to Thursday. B. Section 7 Expenses [5] Ms.

F. was able to return to work because the parties, before they separated, secured childcare for O. In the early summer of 2020, the parties hired N.A. to watch O. on a nanny‑share, which is where a caregiver has two or more families as clients instead of just one. [6] Ms. A. charges on a two‑week period. In 2020, her fee was $980 every two weeks. Since 2021, her current fee is $1,080 per two weeks, plus $100 per month to cover her bus pass. [7] After the parties separated and before Ms. F. filed the notice of civil claim, Mr. B. provided some funds to Ms. F. in the amount of $950, which was credited towards Mr. B.'s share of Ms. A.'s fees. [8] As I understand it, Mr. B. agrees to contribute to daycare for O., but not Ms. A.'s nanny fees, which he regards as too expensive. [9] Section 7 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines] provides that: 7 (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as a result of the [custodial parent's] employment,

illness, disability or education or training for employment. . . . . . (f) extraordinary expenses for extracurricular activities. [10] In Hsieh v. Lui, 2017 BCCA 51, the Court of Appeal explained, beginning at para. 65: An order for contribution to special and extraordinary s. 7 expenses is discretionary. The court may order payment of an enumerated expense taking into account its necessity relative to the child's best interests and the reasonableness of the expense relative to the means of the spouses and the family's pre-separation spending pattern: Bodine‑Shah at para. 66. . . [11] In Hsieh, the court found the evidence did not support a conclusion that the cost of a nanny, who also provided housekeeping, was an expense within s. 7 of the Guidelines. There was no evidence that the claimant incurred the nanny expense for childcare purposes as a result of her employment, illness, disability, or education. The claimant did not suffer from an illness or disability and did not work outside the home. Therefore, the court said, she did not require childcare for the purposes of employment, nor could the nanny/housekeeper services be characterized as extraordinary expenses for extracurricular activities. [12] In the present case, Ms. F. has and will continue to incur Ms. A.'s fees as a direct result of employment. Unlike some of the cases referred to by Mr. B., Ms. A.'s fees are for

childcare only, and not for housekeeping that might be characterized as a benefit for Ms. F. [13] Moreover, continuing with Ms. A. as a caregiver is in O.'s best interests. There is evidence that O. is bonded with Ms. A. and that Ms. A. is warm and friendly and takes good care of O. Ms. A. is like an aunt to O. She can help provide stability for O. in this uncertain time following her parents' separation. A change in caregivers for O. or a transition to daycare is not in O.'s best interests at this time. [14] There is no evidence that Ms. A.'s fees are unreasonable in relation to the means of the parties and their spending patterns prior to separation. [15] For these reasons, I would allow Ms. A.'s fees as a s. 7 expense, but not the cost of her bus pass. [16] As I understand it, there are no receipts for Ms. A.'s fees. However, Ms. A. has sworn an affidavit setting out her fees and payments to mid‑January. [17] O. also has three extracurricular activities: soccer, gymnastics, and ballet. Her participation in soccer predates the separation. It appears that Mr. B. agrees that he was consulted on soccer. [18] The other two activities are more recent and began after the parties stopped communicating. There is some dispute whether receipts have been provided to Mr. B. However, Mr. B. appears to agree that these activities qualify as extraordinary expenses for extracurricular

activities within the meaning of s. 1(f) of the Guidelines. He opposes the order sought by Ms. F. that she not be required to consult with him with respect to special and extraordinary expenses. [19] I will make an order that Mr. B. pay his share of these extracurricular expenses upon presentation of receipts. I would not make an order relieving Ms. F. of the obligation to consult with Mr. B. on any new extracurricular activities or other special or extraordinary expenses under s.

7. C. Mr. B.'s Income [20] The biggest issue on this application is Mr. B.'s income. Mr. B. works for the Teamsters Union in Vancouver as an organizer. His line 1500 income for the past few years has been: a) 2018, $99,917.65, composed of employment income; b) 2019, $120,368.59, composed of employment income; c) 2020, $142,246.61, composed of approximately 120,000 of employment income, approximately $11,000 of RSP withdrawal income, and approximately $10,000 of other income; and d) for 2021, Mr. B. has not yet disclosed his employment income, but confirms in his affidavits that he made a RRSP withdrawal in 2021 of just under $11,000. [21] In November 2021, Mr. B. began voluntarily paying child support of $1,129 on an income of approximately $120,000. This was not by agreement, because Ms. F. takes the position that Mr. B.'s true Guideline income is much higher. [22] Mr. B. did not pay basic child support from the asserted date of separation on September 24, 2020, to November 1, 2021, when he began paying the monthly sum of $1,129. [23] Ms. F. seeks to impute to Mr. B. an additional $40,000 as business income for growing and selling marihuana. She says that at some point in the relationship, Mr. B. built a grow op in the garage of his mother's house in Abbotsford and that he has been selling whole plants and processed product. Ms. F. deposes that: a) Mr. B. told her about the

business; b) she saw the grow op; and c) Mr. B. has asked her repeatedly to help him with the business, including asking her to ask her friends and contacts if they want to purchase product. [24] In 2009, Mr. B. was charged with illegally growing marihuana. He received a nine‑month conditional sentence. [25] Mr. B. deposes in numerous places in his affidavit that he has not grown marihuana for sale since 2009 and has not sold marihuana to anyone and does not have any additional cash income from selling marihuana. He says that the marihuana plants Ms. F. may have seen at his mother's house were for the purpose of, and permitted by, his mother's medical marihuana licence. [26] As stated, Ms. F. seeks to impute income on a going‑forward basis for the alleged business of selling marihuana. I am not comfortable imputing ongoing income to Mr. B. that will require him to participate in an illegal and potentially dangerous activity: see B.G.M.S. v. J.E.B., 2018 BCSC 1628 at para. 202 for the public interest objection to such an order. [27] As to past undisclosed income from selling marihuana as a basis for retroactive support, my view is that issue should be adjourned to the trial. Mr. B.'s repeated denials that he has made money selling marihuana are clear and unequivocal. The evidence on which Ms. F. relies to attribute a marihuana business to Mr. B. is more equivocal. The evidence

may be consistent with Mr. B.'s version that he has only assisted Ms. F. with connecting her friends to people who could sell them marihuana. The decision on this issue should be made on a fuller evidentiary basis. [28] I note that in B.G.M.S., where the Court of Appeal considered past income from an illegal drug trade, the decision was made after a trial. Imputing income from illegal activity is a serious matter that should not be decided on conflicting affidavit materials. [29] Turning to other sources of income in Mr. B.'s line 1500 report. Ms. F. argues that Mr. B.'s RSP withdrawals are income for the purpose of calculating his child support obligation. [30] The law on whether RSP withdrawals will be included in income was explained by the Court of Appeal in McKenzie v. Perestrelo, 2014 BCCA 161 at para. 82, which reads in relevant part: [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 [citations omitted]. . . some . . . principles [are] . . . · 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 [income] bears the burden of demonstrating that treating his or her RRSP

withdrawal as income would not lead to the fairest determination of income [citation omitted]. . . . · 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. . . . · 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. [31] McKenzie further establishes that whether to include RRSP income for spousal support purposes may depend on how the RRSP assets are divided, which is a decision that is normally made after a trial. [32] In McKenzie, the respondent cashed approximately $55,000 in RRSP investments in a one‑year period to pay for legal fees. The trial judge declined to include the RRSP income in the respondent's income for the purposes of determining child support,

citing J.P.G. v. V.S.G., 2012 BCSC 946: This is not a case where income from an RRSP is a recurring part of income used . . . for ordinary living expenses. It is not a case [for example] where an RRSP is used . . . to fund a party's lifestyle. [33] The Court of Appeal upheld this decision, noting that it was entitled to deference: see paras. 84 to 87 of McKenzie. [34] Mr. B. deposes that he used his RRSP withdrawals in 2020 to pay for fertility treatments. He deposes that the cost of the fertility treatments was 8,000 USD. The withdrawal was over 10,000 CAD. Mr. B. has not provided any documentation of the fertility payments or what, if there were any remaining funds from the withdrawal, those funds were used for. [35] Mr. B. further deposes that he used RRSP withdrawals in 2021 to pay for the cost of this litigation. Again, he has not provided any documentation of the use of the funds. [36] I am told that Mr. B. has not fully disclosed his RRSP holdings or his recent contributions. However, it appears to me that Mr. B. has, in recent years, been regularly withdrawing some amount of RRSPs each year. At least some of the withdrawals constitute a reoccurring part of his income to pay expenses. In my view, Mr. B. has failed to fully discharge the burden of establishing that the RRSP income should not be included in his income. [37] While some of it, for example the fertility

treatments, are non‑reoccurring, in my view $5,000 of RRSP income should be included in both 2020 and 2021 for child support purposes. [38] Mr. B. identifies the $9,639 listed under "other income" in 2020 as his Waste Management Connections Sun Life balance, which he describes as a profit‑sharing payment. This payment was a one‑time payout, as I understand it, when Mr. B. left his former employment. However, Mr. B. has not provided any reason why the payment would not be included in his income for support purposes and averaged over three years. [39] For all of these reasons, I determine under s. 17 of the Child Support Guidelines that a fair Guideline income for interim child support purposes for Mr. B. is $130,000, and a fair Guideline income for Mr. B. for spousal support purposes is $125,000. Spousal Support [40] Assuming their respective incomes generate spousal support payable, Ms. F. is entitled to interim spousal support based on a compensatory claim for having put her career on hold to give birth to O. and stay home with the child in the first part of her life. [41] Ms. F. argues that Mr. B. should be required to pay spousal support from the date of separation. The date of separation is in issue. Although the evidence on this application generally points to a September 2020 separation, retroactive spousal support prior to the date on which Ms. F. served the notice of

family claim on Mr. B. should, in my view, be adjourned to trial. [42] However, I see no reason why Mr. B. should not pay child support from the date that he acknowledges he left the family home, which was September 24, 2020. Conclusion and Order 1) The names of the parties and their child will be anonymized and referred to by initials in any reasons for judgment or other publications in these proceedings.

2) On an interim basis, Ms. F.'s Guideline income is $79,860. Mr. B.'s Guideline income is $130,000 for child support purposes and his proportionate share of s. 7 expenses, and $125,000 for spousal support purposes.

3) Spousal support, if any, is to be paid by Mr. B. from July 2021 and going forward on the 1st of each month until further order of the court or agreement of the parties.

4) Mr. B. must pay child support to Ms. F. from September 24, 2020, and going forward on the 1st of each month until further order of the court or agreement of the parties.

5) Counsel are directed to confer on the appropriate amounts of child and spousal support under this order. They may ask to appear before me at 9:00 a.m. on any mutually available day to resolve any disagreements on the amounts payable.

6) Mr. B. will contribute to Ms. A.'s biweekly nanny fee of $1,080 in proportion to his income for child support purposes, which is to say 62 percent.

7) Ms. F. will inform Mr. B. of any changes with respect to the childcare arrangements with Ms. A. forthwith upon notice of any change.

8) Mr. B. will contribute 62 percent to O.'s medical and dental coverage, net of any benefits coverage, soccer, dance, and gymnastics upon receipt of any invoices for the same.

9) Ms. F.'s application for a fine against Mr. B. under the Family Law Act, S.B.C. 2011, c. 25 was not spoken to on the application and is adjourned. [43] Counsel, are there any questions about the terms of the order or submissions on costs? [44] MR. DHANJU: No questions, Mr. Justice. I believe there is divided success on this application, so costs in the cause or each party bear their own costs. [45] MR. BRAYER: Justice, I had a few questions. Mr. B. is to pay child support from September 24th, so would the first payment be October 1st or September 24th? [46] THE COURT: Maybe you should confer with your friend and get instructions. I do not know what would work best for the parties. [47] MR. BRAYER: Okay. And then would the special expenses going back to September 24th, 2020, also be payable now? For example, Ms. A.'s fees. [48] THE COURT: Well, there has got to be some credit. Credits were referred to in the materials, but not really worked out in terms of what has been paid and what still might be owing. I think what I would ask is for counsel to confer on whether there should be payment for past special expenses. If you cannot come to an agreement, you may ask to appear before me and we can resolve it. I do not feel I am well enough informed to work that out right now. [49] MR. BRAYER: Thank you. For Ms. A., it would not be necessary to present invoices, right? [50] THE

COURT: You mean on a going forward basis? [51] MR. BRAYER: That's correct. [52] THE COURT: Is there a reason why she doesn't provide invoices? [53] MR. BRAYER: I don't ‑- I don't know, but I guess right now, it ‑- the way things are, we don't have invoices to provide [indiscernible/videoconference] ‑- [54] THE COURT: All right, and I appreciate that. You did say that and I mentioned that, I believe, in the reasons. Her affidavit and her chart are sufficient for the expenses that have been incurred. But on a going‑forward basis, I think it would be best if we say that Mr. B. will pay the 62 percent of the babysitter's biweekly fee upon presentation of a receipt. If that is going to be a barrier to employing Ms. A. for some reason or there is some reason that I cannot think of that it is not practical to provide receipts, then first speak to your friend and, if necessary, you could ask to resolve it with me. [Submissions on costs] [55] THE COURT: In my view, on this application, I agree with Mr. Brayer that the application was necessary and that the claimant was substantially successful. She was not completely successful, but complete success is not necessary for an order of costs in the cause. So the claimant is entitled to the usual order of costs in the cause. "Elwood J."