Dosch v. Wimmer

2021 BCSC 2167 Dosch v. Wimmer

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dosch v. Wimmer, 2021 BCSC 2167 Date: 20211105 Docket: E48498 Registry: New Westminster Between: Heidi Jane Dosch aka Wimmer Claimant And Michael Wimmer Respondent Before: The Honourable Madam Justice Walkem Reasons for Judgment Counsel for the Claimant: B.D. McCarthy Counsel for the Respondent: G.W.D. Abrams Place and Date of Hearing: Abbotsford, B.C. May 4-5, 2021 Place and Date of Judgment: New Westminster, B.C. November 5, 2021 Introduction [1] The claimant applies to vary terms of a settlement agreement entered into between the parties regarding parenting and child support upon their divorce [2] The parties married in Canada in November 2013. The couple briefly lived in Germany where their daughter, S., was born in 2014. S. is now seven years old. Ms. Dosch has three children from a prior relationship. Mr. Wimmer has two adult children from a prior relationship. The marriage did not last long. Ms. Dosch returned to Canada with S. in October 2014. Shortly thereafter, Mr. Wimmer travelled to Canada to finalize a separation agreement on July 31, 2015 (the "Agreement"). The terms of the Agreement were entered into by a consent order on August 20, 2015. The Agreement was drafted by Ms. Dosch's lawyer. The Agreement is in English which is not Mr. Wimmer's first language. Mr. Wimmer had independent legal advice to review the

Agreement with him before signing. [3] Key provisions of the Agreement provided that the parties would share guardianship and custody of S. and that S. was to live with Ms. Dosch. Mr. Wimmer was to have liberal and generous access to S. via Skype. The parties contemplated that Mr. Wimmer would have periodic in-person visits with S. by either Ms. Dosch or Mr. Wimmer travelling to the country the other lived in with S., at their own expense, in alternating years. Mr. Wimmer was to pay Ms. Dosch a set amount in child support per month, plus a proportionate share of s. 7 expenses. The Agreement set out a process for the recalculation of child support based on the updated financial information between the parties, or by a party triggering a request for reconsideration. [4] The Agreement was in place for most of S.'s life. Visits were few. When Ms. Dosch visited Germany with S., the parties did not get along. [5] In 2021, Ms. Dosch made the unilateral decision to move to Kitchener-Waterloo, Ontario, where her eldest daughter, a teenager suffering with a drug addiction, lives. Ms. Dosch says that the move to Ontario was for educational and work opportunities and to support her teenage daughter in addressing her addiction issues. Ms. Dosch did not follow the Agreement or terms of the consent order and did not notify Mr. Wimmer in advance of the move. Ms. Dosch says she did not notify

Mr. Wimmer because of the conflict she was experiencing with her ex-partner at the time which caused her to fear for her safety. [6] Ms. Dosch claims correspondence between Mr. Wimmer and her ex-partner soured the relationship between Ms. Dosch and the ex-partner. As a result, Ms. Dosch was afraid of her ex-partner and ultimately moved to Ontario, in haste, without first notifying Mr. Wimmer as she was required to do. Evidence to support Ms. Dosch's allegations was based on hearsay and, even if believed, was far from conclusive. The evidence showed Ms. Dosch has a poor relationship with her ex-partner. Conflict between Ms. Dosch and her ex-partner (the father of some of her children) appears to exist quite apart from any correspondence Mr. Wimmer had with him. [7] In this application, Ms. Dosch seeks a broad set of changes. If granted, these amendments would practically replace the Agreement and existing consent order with the terms of the new order sought. The changes concern (1) parenting time and responsibilities, and (2) calculation of child support and s. 7 expenses, both retroactively and prospectively. [8] Ms. Dosch argues that the circumstances have changed since the time of the Agreement because S. is older now and there has been a lack of visits by Mr. Wimmer. She points to her move to Ontario with S. as a change in circumstances. Video calls with S's father have been

sparse. Ms. Dosch argues Mr. Wimmer has not been very involved in S's life. Together, Ms. Dosch argues these changes amount to significant or material changes in circumstances providing a basis for this Court to embark on a fresh examination of S.'s best interests. Ms. Dosch argues that these changed circumstances support variation of the existing Agreement and orders. [9] Ms. Dosch further accuses Mr. Wimmer of engaging in communications which are characterized in her application as a "barrage of insults, accusations and harassment", and further accuses Mr. Wimmer of having caused Ms. Dosch to "deal with foul correspondence from her former partner and his new partner." In total, Ms. Dosch argues that correspondence from Mr. Wimmer is "psychological and emotional abuse" which provides further grounds to vary the Agreement. [10] Ms. Dosch further cites some circumstances where Mr. Wimmer experienced mental health issues in the past. I note these circumstances existed before the Agreement and consent order were entered. [11] Mr. Wimmer argues that the Agreement between the parties is in S.'s best interests and should not be varied, as it was intended to keep him involved in parenting S. despite the distances involved. Further, Mr. Wimmer notes that the parties were living in separate countries when the Agreement was entered, and the Agreement was made in contemplation of that

distance. Ms. Dosch's unilateral decision to move S. across Canada does not constitute a significant or material change in circumstances, as the Agreement and consent order were made in contemplation of international parenting arrangements. [12] Mr. Wimmer points out that the COVID-19 pandemic has impacted his ability to travel internationally to visit S. He also claims COVID-19 has made passport signings or making court filings more difficult. [13] There is an ongoing issue with the Skype calls. Mr. Wimmer has requested that Ms. Dosch allow Skype on specific times on Saturdays to account for his work schedule and availability, his parents' (S.'s grandparents') availability, and the time difference. Ms. Dosch claims that the Saturday Skype calls are too disruptive to her, and has often refused to facilitate them. The end result is that Skype calls are fewer than Mr. Wimmer would like. Current Application [14] In this application, Ms. Dosch is seeking extensive changes to the Agreement and subsequent consent order that was made. The changes sought by the claimant are significant (see Appendix A). A summary of the changes sought include: · Mr. Wimmer to have in-person parenting time, as agreed between the parties. This provision would replace the agreement where each party travelled to the country where the other resides, on alternate years. · The liberal and generous access by

Skype or telephone be at days and times agreed to by both parties, until such time as S. is old enough to decide when and if she wants to participate in these forms of communication. · Ms. Dosch may apply for or renew a Canadian passport for S. without Mr. Wimmer needing to sign the renewal or application documents. · Ms. Dosch does not need the written authorization of Mr. Wimmer to travel internationally with S. Ms. Dosch claims she wants to be able to go back and forth across the Canada-U.S.A. border without Mr. Wimmer's agreement in each instance for shopping and other routine trips. She claims her move to Kitchener-Waterloo makes this a desirable activity. · A reconsideration of child support and s. 7 expenses both retroactively and prospectively. [15] Ms. Dosch argued several possible grounds for variation, under the Family Law Act, S.B.C. 2011, c. 25 [FLA] and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [DA]. She sought to vary: 1. provisions of the Agreement, primarily regarding parenting time and parenting decisions; 2. provisions of the consent order entered to give effect to the Agreement (primarily made under the FLA); and 3. the consent order made under the DA that the parties rely on to share custody. [16] In a few areas, Mr. Wimmer consented to the orders sought. For example, Ms. Dosch sought an order granting permission to move S. to Ontario. This move had

already occurred. Though Mr. Wimmer did not agree that moving S. from B.C. to Ontario where she would be in close proximity to her sister struggling with addiction was in S.'s best interests, he conceded he had no legal basis for challenging it, and so gave his post-facto consent. In addition to the move to Ontario, the parties jointly consented that neither party will change the residence of S. from within Canada (as opposed to British Columbia), without the express written consent of both parties or a court order. Mr. Wimmer also agreed that Ms. Dosch's last name could be added to S.'s. Issues [17] There are two overarching issues in the current case, parenting arrangements and child support.

1. Parenting a. Should the parenting arrangements for S. as recorded in the settlement agreement and the consent order under the FLA and the consent orders under the DA regarding shared custody be varied?

2. Child Support a. Did Mr. Wimmer misrepresent his income resulting in amounts of child support being set too low? If so, what, if any, adjustment should be made? b. What is the appropriate amount of child support Mr. Wimmer should pay to Ms. Dosch from now, moving forward? c. Has there been an overpayment of s. 7 expenses? If so, how should any overpayment be addressed? The Law of Variation [18] An order must be varied under the legislation it was made under. [19] Madam Justice Harris, in Leiding v. Leiding, 2016 BCSC 2567 at para. 16 [Leiding], reviewed the different legislative provisions regarding varying parenting orders or agreements: It is well-established in family law jurisprudence under the Divorce Act, R.S.C. 1985, c. 3 (2d. Supp.) and the Family Relations Act, R.S.B.C. 1996, c.128, s. 22(1) that in order to vary an order of the court regarding custody, support and parenting arrangements for children, there must be a material change in circumstance which has altered the children's needs or the parents' ability to meet those needs in a material way. [20] In Williamson v. Williamson, 2016 BCCA 87, the Court outlined the appropriate process for consideration of a material change in circumstances, as follows: [32] The first step in the analysis set out in Gordon v. Goertz is to "determine whether there has been a material change in circumstances since the making of the prior order": Boychuck at para.

14. The Court in Gordon explained what is necessary to establish a material change in circumstances: [11] The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued.... [12] What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way ...The question is whether the previous order might have been different had the circumstances now existing prevailed earlier...Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. [Emphasis in original.] [33] At para. 13, the Court summarized what the applicant must establish before proceeding on the merits of the application: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet

the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [34] Absent a material change in the needs or circumstances of the child, the inquiry can go no further. It is only after this threshold is met that the judge on the new application can embark on a fresh inquiry into the best interest of the children. [21] Parenting agreements included in agreements by the parties are binding by virtue of s. 6(3) of the FLA. However, the court may vary an agreement pursuant to s. 44 of the FLA on the application by a party if it is in the best interests of the child as described in s. 37 of the FLA. An agreement can be varied by setting aside or replacing all or part of the agreement. [22] In Leiding, at para. 29, Justice Harris noted a degree of deference for the agreement parties negotiate and enter: While I accept that the Family Law Act does not expressly incorporate the "material change in circumstance test" for variations of an agreement regarding parenting arrangements, in my view, it does not follow that the courts have an unbridled authority to vary such agreements at the request of one party. In Miglin v. Miglin, [2003] 1 S.C.R. 303, and subsequent jurisprudence, the courts have emphasized that separation agreements, even in the unique

circumstances of separation and divorce, are nonetheless contracts and should be given effect to: the courts should set aside the wishes of the parties as expressed in an agreement only where it is shown that the agreement fails to be in substantial compliance with the applicable legislative scheme. Although Miglin was decided in the context of spousal support, the principles expressed therein indicate that there must be compelling circumstances for overriding what the parties agreed to. [23] Section 44 of the FLA contemplates that written agreements regarding parenting time and parenting responsibilities are enforceable under the FLA if they were made by an order of this Court. Per s. 44(4), a court must vary "all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child." Under s. 214(1), where "an order is made to set aside part of an agreement, the part is deemed to be severed from the remainder of the agreement." In sum, a court can make an order that replaces part of the agreement, but the remainder of the Agreement stays in place. Variation of Agreements made under the FLA [24] Ms. Dosch acknowledged that this Court can only set aside parts of the Agreement and make an order replacing sections of the Agreement per s. 214 of the FLA if it is in the best interests of a child. [25] I do not find that

it is in S.'s best interests to impose the changes to the Agreement or consent order as Ms. Dosch proposes. In fact, the changes sought may be harmful to S. as they would have the impact of further limiting her father's parental involvement beyond what distance and the tense relationship between her parents has already done. Variation of Consent Orders made under the FLA [26] In this case, main provisions of the Agreement were entered into as a consent order. The variation of orders is contemplated under ss. 47 and 214 of the FLA. Orders can be varied where the court is satisfied that a material change in circumstances has occurred. The primary orders regarding parenting were made under the FLA. On its face, the parenting order refers to ss. 39(1), 41, and 49 of the FLA. [27] Ms. Dosch argues that there have been changes in circumstances which meet the test for variation of orders set out in Williamson. [28] Though a change in a child's location may be a material change in circumstances in some cases (per s. 17(5.2) of the FLA), I find that it is not a material change in the present circumstances. The Agreement and subsequent order were made with the two parties living in different countries, on different continents. It contemplated how each would parent S. despite the distance. COVID-19 has undoubtedly impacted the ability of Mr. Wimmer to parent as international travel has

been severely restricted. But, in the overall scheme of things, these restrictions are temporary and do not justify the significant variation of the order and Agreement sought by Ms. Dosch. [29] Ms. Dosch argues that the material change in circumstances include S.'s age and the fact that "[S.] hardly knows or remembers [Mr. Wimmer], except for some relatively brief video calls approximately two to three times per month." Mr. Wimmer claims that the COVID-19 pandemic has impacted his ability to visit. Mr. Wimmer further claims Ms. Dosch has limited his Skype visits with S., claiming that times when he, or S.'s paternal grandparents, are available are not convenient for her. [30] Ms. Dosch alleges family violence. The best interests of a child must guide this court's considerations, per s. 37(2) or s. 38 of the FLA in the case of family violence. Here, the suggestion is that violence occurs by communication in the form of "psychological and emotional abuse the claimant must endure when making simple requests of the respondent which indirectly negatively impacts [S.]." I do not find this allegation of family violence is made out on the evidence provided. [31] Mr. Wimmer argues that there has been no material change in circumstances of the parties since the Agreement and consequential consent orders were made. Therefore, he claims the parties' Agreement continues to set out a

suitable basis for care and support of S. Mr. Wimmer claims that he has been as involved as he can be despite living in a different country, and that the COVID-19 pandemic has had a significant impact on his ability to travel and exercise parenting time. [32] Regarding her application to be able to travel across the Canada-U.S.A. border without Mr. Wimmer's permission, Ms. Dosch argued her move to Kitchener-Waterloo was a material change in circumstances. Ms. Dosch moved from the Lower Mainland of British Columbia, which is within close proximity to the Canada-U.S.A. border, to another location with relatively similar border proximity. The border proximity is relatively unchanged between the two locations. [33] Ms. Dosch relies on Kooner v. Kooner, 2015 BCSC 1880 [Kooner] to support her argument. In Kooner, an order was made that the mother have unrestricted authority to travel with the child without the need to obtain the consent of the father. However, in this case the father did not have custody or guardianship of the child, and the unrestricted travel was uncontested: Kooner, at para. 2. [34] Here, Ms. Dosch changed the residence of S. without involving or even notifying Mr. Wimmer first. She now seeks to be able to take S. across the international Canada-U.S.A. border without Mr. Wimmer's knowledge or consent. Given Ms. Dosch's past actions of unilaterally moving S. across

Canada and only notifying Mr. Wimmer after the fact, I am not satisfied such a change is in S.'s best interests. [35] I am not satisfied that a material or significant change in circumstances exists from when the consent order was made that would justify this court varying the order, or embarking on a new examination of the best interests of the child, S. Variation of the Consent Order for Custody made under the DA [36] The test for variation under the DA is set out in Gordon v. Goertz (1996), [1996] 2 SCR 27, 134 D.L.R. (4th) 321, and requires a material change in circumstances. This is the test that would apply to Ms. Dosch's request to change the custody agreement made under the DA and entered in the consent order. [37] Parenting time and responsibilities, as well as custody, were subject to a joint agreement between the parties. Absent changes which impact the material circumstances of the child, or, changes that make adherence to those terms contrary to a child's best interests, the Agreement should be honoured. Nothing presented by Ms. Dosch is a material or significant change in circumstances which justifies the variation of the Agreement or companion order. The changes Ms. Dosch proposes will have the impact of limiting and further curtailing Mr. Wimmer's parenting of S. [38] The Agreement contains paragraph 77, in which the parties agreed that the Agreement would only

be varied "by a written agreement executed in the same manner as this Agreement." Where parties work hard to reach agreements, they should be honoured. Here, Mr. Wimmer agreed to several changes Ms. Dosch asked for. Outside of those consented changes, I do not agree that the conditions required to vary the Agreement, or order, exist. The parties contemplated a process to vary their Agreement. It should be followed. [39] Distance, or shuttle, mediation or other negotiation could perhaps be useful in allowing the parties to create an updated agreement workable for both parents and especially S., regarding things such as a set Skype schedule, and how parenting time should occur. Child Support [40] Regarding child support, the parties agree to a recalculation, though they disagree on how that recalculation should occur. [41] Based on information provided by Mr. Wimmer, his actual annual income in 2015 was - $101,881; in 2016 - $104,289; in 2017 - $113,578; in 2018 - $110,719; in 2019 - $110,536; and in 2020 - $99,148. [42] Three areas are in issue regarding child support: (a) the retroactive variation of past child support; (b) the calculation of amounts due now; and (c) s. 7 expenses. Each of these is addressed below. (a) Retroactive Child Support [43] Mr. Wimmer agrees to a recalculation of child support based on his current income, as contemplated by the Agreement. The parties

disagree about whether a retroactive variation should occur and for which dates. Mr. Wimmer consents to a variation of child support in accordance with paragraphs 53 and 54 of the Agreement, to be effective from July 2020. Ms. Dosch argues the recalculation should occur from the date the Agreement was entered. [44] Ms. Dosch claims that child support should be recalculated, based on updated financial information provided by Mr. Wimmer from the date of the decision. [45] Ms. Dosch argues a retroactive adjustment of child support is necessary given that child support calculations were not based on Mr. Wimmer's actual income when the Agreement was entered. Ms. Dosch argues that Mr. Wimmer's failure to disclose his actual income amounts to blameworthy conduct that merits a correction by this court to the time when the Agreement was entered per the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 at paras. 105-109 [D.B.S.]. [46] When the Agreement was entered, amounts imputed to the parties were $50,000 per year for Ms. Dosch and $59,589 (Canadian dollars reflecting a conversion of €42,000) for Mr. Wimmer for the purposes of a Guideline calculation. Based on that, child support payable from Mr. Wimmer to Ms. Dosch was set at $552 per month, plus 55% of s. 7 expenses. [47] Mr. Wimmer argues that amounts in the original Agreement were provided by Ms. Dosch and, in any case,

did not represent any malfeasance or attempt to mislead on his part. Mr. Wimmer has provided documents showing his income. The documents were provided through his lawyer and are in German. [48] The parties referred to a number of cases which discuss child support, particularly D.B.S. and Michel v. Graydon, 2020 SCC 24 [Graydon]. [49] In Graydon, the Court found the payor parent had significantly understated his income and correspondingly significantly underpaid child support. A key question in Graydon was whether a retroactive variation could be made even though the child had grown to adulthood and was no longer a child of the marriage when the application was made. The Supreme Court of Canada reiterated that child support is the right of a child, and that the obligation existed prior to the child reaching adulthood: Graydon, at para. 28. [50] Here, S. is only seven years old. The question is whether retroactive variation should be ordered in the circumstances, and for what time period. [51] Ms. Dosch claims Mr. Wimmer misrepresented his income when the Agreement was signed (she posits a difference of $42,292). Ms. Dosch claims this misrepresentation should result in the Agreement being opened, and varied. Mr. Wimmer says he did not draft the Agreement or provide the numbers used in it, that the Agreement was drafted by Ms. Dosch's lawyer, and based on income tax information

which Mr. Wimmer says Ms. Dosch took with her when she left Germany. [52] Ms. Dosch claims that Mr. Wimmer has been deliberately underpaying child support. This finding is not borne out on the facts before me. I do not make a finding that the amounts imputed to Mr. Wimmer when the Agreement was entered into were provided fraudulently or with an intent to mislead. Mr. Wimmer's evidence was that he was presented with the Agreement, drafted by Ms. Dosch's lawyer, and he signed it. Overall, I accept the explanation offered by Mr. Wimmer. He did not provide the initial figures. I find no malfeasance or intent to mislead on the part of Mr. Wimmer. He intended to care for S. financially, and has done so. [53] This does not mean, however, that the amount should not be recalculated. [54] In D.B.S., the Supreme Court of Canada listed factors a court should consider before awarding retroactive child support. Factors include a reasonable excuse for why support was not sought earlier, the conduct of the payor parent, the circumstances of the child, and a hardship occasioned by a retroactive award: D.B.S., at paras. 100-114. These factors, along with the circumstances of the particular case, are determinative of the time limitation on how far back a child support order can be retroactively varied. [55] The date from which retroactive child support is ordered will presumptively be a maximum of three years back from the effective notice of a parent's intention to seek or vary child support: Moscovich v. Moscovich, 2013 BCSC 2242 at para.

37. The Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24 has clarified that the date from which child support can be varied will depend on the particular circumstances of the case. Retroactive support orders can reach further back when there is non-disclosure of a financial increase or other blameworthy conduct by the payor parent that, along with the factors of the case, warrant the retroactive support order reaching past the three-year limitation. [56] The Supreme Court of Canada in D.B.S. identified two guiding principles for determining retroactive support. The first is maintaining certainty in child support obligations of the payor parent. This is especially important where there is no blameworthy conduct on the part of the payor parent and the delay is attributable to the recipient parent. The second is discouraging delay in seeking the appropriate amount of support so that the child may benefit from the support: D.B.S., at paras. 102-103. [57] Here, Ms. Dosch did not delay bringing her application, and I have found no blameworthy conduct on the part of Mr. Wimmer. I find that child support should be varied for three years prior to the date of Ms. Dosch's application of February 2021, from February 2018. [58] Amounts Mr. Wimmer owed for child support from February 2018 should be calculated per the Guidelines based on his imputed income as

follows: 2018: $110,719 2019: $110,536 2020: $99,148 [59] Mr. Wimmer further argues his income for Guidelines purposes should be subject to a discount to account for differing tax rates in Germany and Canada. International tax differences in variation [60] The Guidelines contemplate that low income should be imputed appropriate to where the payor is located in a jurisdiction where the taxes are significantly different than those in Canada. Sections 19 and 20 of the Guidelines deal with non-resident payors and differing tax rates: Imputing income 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; Non-resident 20(1) Subject to subsection (2), where a spouse is a non-resident of Canada, the spouse's annual income is determined as though the spouse were a resident of Canada. Non-resident taxed at higher rates (2) If a spouse is a non-resident of Canada and resides in a country that has effective rates of income tax that are significantly higher than those applicable

in the province in which the other spouse habitually resides, the spouse's annual income is the amount that the court determines to be appropriate taking those rates into consideration. [61] Section 20(2) of the Guidelines specifically provides the court discretion to adjust a payor's Guidelines income if the payor pays income tax at a significantly higher rate. The approach in British Columbia is best summarized by the Court of Appeal in Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448 at para. 36: When a non-resident payor's tax rate is significantly different than Canadian tax rates, the usual practice under ss. 19(1)(c) and 20 of the Guidelines is to convert his or her gross foreign income to Canadian dollars at a fair exchange rate, then look to the evidence of the applicable foreign tax rate to calculate his net income, and then determine what gross income would be required to yield the same net income at Canadian tax rates. Finally, it may be necessary to examine the "bundle of services" that both governments provide in exchange for the tax dollars paid. These matters are often the subject of expert evidence [62] In Pousette v. Janssen, 2021 BCSC 786 at paras. 6-10, the payee sought a variation of support through application of this framework. [63] In G.W.M. v. W.C.M., 2017 BCSC 177, the Court held that the starting point under ss. 19(1)(c) and 20 is to convert gross

foreign income to Canadian dollars at a fair exchange rate. Then the Court must look to the evidence of the applicable foreign tax rate to calculate net income, and determine what gross income would be required to yield the same net income at Canadian tax rates. It may be necessary to examine the "bundle of services" that both governments provide in exchange for the tax dollars paid: Pousette, at paras. 9-10. [64] Master Muir, in Erasmus v. Singh, 2018 BCSC 1195, considered a situation where the payor alleged a higher tax rate on his income from the U.K. and that this higher tax rate should be reflected in lower child support payments. Master Muir found no significant difference in the tax rates between the U.K. and Canada and set child support based on a calculation of what the payor parent's income would be in Canadian dollars, per the Guidelines without applying a deduction for U.K. tax rates. Though she found some difference in health insurance rates (the payor paid approximately $4,000 more per year than he would in Canada), she did not find this rose to an "undue hardship" per s. 10 of the Guidelines if he was required to pay the table amount: Erasmus v. Singh, at paras. 46-54. [65] Mr. Wimmer argued that his tax rate was significantly higher than he would pay in Canada and argued that this court should correspondingly impute his income at a lower amount. No evidence of

differing services was provided, or how these services should be accounted for. Much of the documentation provided was in German, or was excerpts from web searches. Mr. Wimmer submitted he was taxed at a 45% tax rate, and was not eligible to tax discounts other German parents enjoyed (because S. did not live in Germany). Mr. Wimmer's income, in the range of $100,000 to $110,000, would be subject to a similar (combined federal/provincial) tax rate of around 38.29% in Canada. In the circumstances, based on the limited information before me, I am not prepared to impute Mr. Wimmer's income lower to account for any potentially increased tax burden he has in Germany. [66] Based on the information provided, child support should be calculated per the Guidelines based on Mr. Wimmer's disclosed income with no offset to account for any differential tax burden. The amount of child support owed by Mr. Wimmer may be varied for three years retroactively based on Mr. Wimmer's income for Guidelines purposes being imputed at 2018 - $110,719; 2019 - $110,536; and, 2020 - $99,148. [67] The amount of child support Mr. Wimmer owes is retroactively varied for a three-year period, per the Guidelines, as follows: a) From February 2018 and for the rest of that year Mr. Wimmer owes child support based on his imputed income of $110,719, $1,037 per month. $11,407 for the year. b) For the year of 2019 based

on an imputed income of $110,53, $1,035 per month in child support. $12,420 for the year. c) For the year of 2020 based on an imputed income of $99,148, $939 per month. $11,268 for the year. (b) Calculation of child support owing from July 2020 onward [68] Provisions of the Agreement dealing with amendments to child support provide as follows: 52. [Ms. Dosch] and [Mr. Wimmer] will review Child Support and, if necessary, revise it to ensure that it accords with the requirements of the Federal Child Support Guidelines (Canada) by July 1st of every year from the making of this Agreement, with the first review to be completed by July 1st, 2016.

53. If [Ms. Dosch] and [Mr. Wimmer] do not review the Child Support as provided above, or review the Child Support and do not vary it in writing, both parties deemed to consider that the Child Support continues to satisfy the requirements of the Federal Child Support Guidelines.

54. Any adjustment to Child Support under this clause will not apply retroactively, but will be in effect from the date of review. [69] The financial documents provided by Mr. Wimmer are in German. Mr. Wimmer claims that they represent the equivalent of his T-4s and income tax returns in Germany. [70] Mr. Dosch was required to provide updated income information for July 1, 2021. Amounts Mr. Wimmer owes to Ms. Dosch in child support will be calculated from July 2021 moving forward based on those new figures. Up until that time, from January to June 2021 the amount he owes in child support will be based on $939 per month. (c) Section 7 Expenses [71] Jelly Bean Daycare, which provided daycare before and after school for S. was the primary s. 7 expense for several years. Periodically, Ms. Dosch would notify Mr. Wimmer that s. 7 expenses had gone up for daycare costs and he would increase the payments. [72] Mr. Wimmer began to have questions about the amount of s. 7 daycare expenses. Mr. Wimmer contacted Ms. Dosch's ex-partner (father of S.'s brothers, and with whom S.'s brothers live) who advised Mr. Wimmer that S. had been picked up from school each day by Ms. Dosch and was not attending the afterschool care program. Mr. Wimmer followed up with Jelly Bean Daycare, who informed him that S. had not attended the daycare for over a year. Mr. Wimmer included Ms. Dosch's ex-partner on

his communication with the daycare. Mr. Wimmer's correspondence with Ms. Dosch's ex-partner caused animosity between the parties, as described above. [73] S. stopped attending Jelly Bean Daycare from August 2019 onwards. Mr. Wimmer had been paying a monthly amount to cover his portion of s. 7 daycare expenses for a daycare that S. was not attending. [74] For a period of months, Mr. Wimmer cut back and only paid the amount of child support he thought he owed, of $550, and not the s. 7 expenses claimed by Ms. Dosch. After four months, he returned to the amount he had been paying. Mr. Wimmer then returned to paying a larger amount per month of $1,500. [75] Section 7 expenses, if any, are to be determined according to the Agreement and applicable legislation. [76] Going forward, until further calculations of incomes, s. 7 expenses should be split as follows: 65% for Mr. Wimmer and 35% for Ms. Dosch. Summary of Amounts owed [77] I am of the opinion that the proper way to deal with this situation is to determine how much Mr. Wimmer owed in child support and s. 7 expenses for the period from February 2018 to the present. Section 7 expenses should be calculated according to the Agreement between the parties and applicable legislation. He should be credited with all amounts that he paid. This includes all payments that he thought were going to child care when S. had not been attending

child care. At the end of that calculation, the parties can determine how much Mr. Wimmer still owes in child support and s. 7 expenses. If there is an amount outstanding, he will pay the outstanding amount within 120 days and may do so in several instalments. On the other hand, if the calculation shows Mr. Wimmer has overpaid child support and s. 7 expenses, he will not have to pay any amounts until that credit is used up. Costs [78] As neither party was completely successful, each party is to bear their own costs in this matter. "A. Walkem J." WALKEM J. Appendix A This appendix sets out the current agreement and Ms. Dosch's proposed changes. Current Agreement: Sections proposed to be varied or cancelled as follows: Paragraphs 5 (c) & (e), 6 (except regarding Mr. W's status as a guardian), 7(c), 8, and 9 (except regarding Mr. W's status as a guardian) and 10. Paragraph 5 Each party will (c) Exchange information about the well-being of [S.], including progress in school, extracurricular activities, and any illnesses or injuries of [S.] while in the care of the other parent; (e) Consult with the other about important questions of W.'s upbringing, such as: (1) Religious upbringing and activities, (2) Education, (3) Social environment, (4) Recreational activities, and (5) (unless there is an emergency) health care. Paragraph 6 [Ms. Dosch and Mr. Wimmer] remain the guardians of

[S.] pursuant to s. 39(1) of the Family Law Act (British Columbia) with parental responsibilities and parenting time as specified in this Agreement. Paragraph 7 [Ms. Dosch and Mr. Wimmer] both have the following rights: (c) to receive from the other guardian copies of all Report Cards and Notices from teachers regarding [S.'s] school performance, Paragraph 8 Unless otherwise specified under this Agreement .the parties are deemed to have joint custody. Paragraph 9 For greater certainty, the above reference to custody does not affect or diminish either party's status as guardian, nor the rights and obligations of the parties, under provincial law as otherwise specified under this Agreement with respect to [S.]. Paragraph 10 The parental responsibilities of the guardians, to be exercised in the best interest of [S.], are: (a) making day-to-day decisions affecting the child and having day-to-day care, control, and supervision of the child, (b) making decisions respecting where the child will reside, (c) making decisions respecting with whom the child will reside and associate, (d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent, and location, (e) making decisions respecting the child's cultural, linguistic, religious, and spiritual upbringing and heritage, (f) subject to section 17 of the Infants Act

(British Columbia), giving, refusing, or withdrawing consent to medical, dental, and other health-related treatments for the child, (g) applying for a passport, licence, permit, benefit, privilege, or other thing for the child, (h) giving, refusing, or withdrawing consent for the child, if consent is required, (i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive, (j) requesting and receiving from third parties health, education, or other information respecting the child, (k) subject to any applicable legislation, (1) starting, defending, compromising, or settling any proceeding relating to the child, and (2) identifying, advancing, and protecting the child's legal and financial interests, (l) exercising any other responsibilities reasonably necessary to nurture the child's development. Ms. Dosch to have sole custody of S. Mr. Wimmer to remain a guardian of [S.] Claimant will have sole parental responsibilities outlined in Paragraph 10(a)-(l) Mr. Wimmer to have shared parental responsibilities as set out in s. 41(a), (i), (j) and (l) of the Family Law Act: 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (a)making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (i) receiving and responding to any notice that a

parent or guardian is entitled or required by law to receive; (j) requesting and receiving from third parties health, education or other information respecting the child; (l) exercising any other responsibilities reasonably necessary to nurture the child's development. Paragraph 14 Both guardians must consult about any important decisions that must be made and try to reach agreement concerning these important decisions but if they disagree [Ms. Dosch] has final decision-making power with respect to [S.] Ms. Dosch to have final decision-making authority with respect to [S.] and will notify Mr. Wimmer of any matters of a significant nature related to [S.] Paragraph 17 [Mr. Wimmer] will have parenting time with [S.] at least twice a year for a period of no less than two weeks on each occasion, on dates to be agreed between the parties. Paragraph 17 to be varied or cancelled to provide Mr. Wimmer with in-person parenting time, as agreed between the parties. Paragraph 18 At least once every four years [Mr. Wimmer's] parenting time will occur on dates that include Christmas. Cancelled. Paragraph 19 One period of parenting time each year will be exercised in British Columbia, Canada and the other period will be exercised in Germany. Cancelled or varied such that Mr. W's parenting time can only be exercised within Canada, unless otherwise agreed by the parties. Paragraph 22 [Ms. Dosch]

will travel with [S.] when [Mr. Wimmer] is exercising parenting time in Germany, but she will be responsible for her own travel costs. Cancelled. Paragraph 27 In addition to parenting time each parent will provide the other with liberal and generous access by Skype or telephone while [S.] is in the other parent's care. Varied or cancelled such that the liberal and generous access by Skype or telephone at days and times agreed to by both parties, until such time as [S.] is old enough to decide when and if she wants to participate in these forms of communication. Paragraph 30 [Ms. Dosch] may apply for or renew a Canadian passport for [S.] and [Mr. Wimmer] will co-operate in any application or renewal. Varied to read: Ms. Dosch may apply for or renew a Canadian passport for S. Paragraph 31 [Mr. Wimmer] may apply for or renew a German passport for [S.] and [Ms. Dosch] will co-operate in any application or renewal. Varied to read: Either party may apply for or renew a German passport for S. and the other party will co-operate in any application or renewal. Paragraph 33 Upon request each parent will provide the other with a notarized letter setting out the dates on which the other parent is allowed to travel with [S.] and the countries to which [S.] may be taken. Ms. Dosch proposes the cancellation of Paragraph 33. Paragraphs 39-44 39. [Ms. Dosch]'s Guideline income will be fixed at $50,000 per year based on her anticipated gross income from retraining as a paralegal, and this income will be used for determining [Ms. Dosch]'s share of Special or Extraordinary Expenses. 40. [Mr. Wimmer]'s Guideline income of $59,589.00 as stated in the recitals will be used for determining the Table Amount as well as his share of Special and Extraordinary Expenses.

41. At the time of this Agreement [Mr. Wimmer]'s Table Amount is $522.00 per month. 42. [Ms. Dosch and Mr. Wimmer] will share the costs of Special and Extraordinary Expenses in proportion to their respective Guideline incomes.

43. At the time of this Agreement [Mr. Wimmer] will be responsible for 55% of [S.]'s Special or Extraordinary Expenses and [Ms. Dosch] will be responsible for 45%.

44. At the time of this Agreement the Special and Extraordinary Expenses for [S.] are $500 per month for child-care payable by [Ms. Dosch], meaning that [Mr. Wimmer] will reimburse [Ms. Dosch] 275 per month for the Special and Extraordinary Expenses. Varied to be based on review of actual amounts. Paragraph 46 [Mr. Wimmer] is not required to pay [Ms. Dosch] retroactive Child Support for the period of time before January 1st 2016. No retroactive.