K.M.H. v. P.S.W.

2018 BCSC 2022 K.M.H. v. P.S.W.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: K.M.H. v. P.S.W., 2018 BCSC 2022 Date: 20181116 Docket: E151710 Registry: Vancouver Between: K.M.H. Claimant And P.S.W. Respondent Before: The Honourable Mr. Justice Skolrood Reasons for Judgment The Claimant appearing on her own behalf: K.M.H. Counsel for the Respondent: K. Beazer Place and Date of Trial/Hearing: Vancouver, B.C. September 10-14, and October 11, 2018 Place and Date of Judgment: Vancouver, B.C. November 16, 2018 Introduction [1] The parties to this ongoing family dispute have cross-applications before the Court. [2] The respondent applies for a determination of the parties' respective incomes and a corresponding review of his spousal and child support obligations. He brings his application pursuant to the terms of a final consent order entered into by the parties on July 19, 2016 (the "Final Order"). [3] The claimant applies to vary or set aside certain terms of the Final Order, including the term authorizing the respondent's review application and various terms dealing with the division of family assets and debt. [4] In addition, there is an issue of outstanding s. 7 expenses. Background General Overview [5] The background to the parties' relationship and the facts underlying the family law litigation are set out in some detail in two previously reported decisions that can be found at 2017 BCSC 1284 and 2018

BCSC 1318. [6] Those decisions were concerned primarily with parenting issues whereas the current applications address largely financial matters. To the extent possible, I will limit my summary of the facts to what is relevant to these matters. [7] At the outset, it is useful to comment briefly on the materials filed in support of the two applications. The chambers record comprised ten binders, which included eleven affidavits of the claimant, five affidavits of the respondent and three sworn financial statements each. [8] Consistent with the history of this litigation, the parties' affidavits are lengthy and largely contradictory in terms of their descriptions of the circumstances surrounding the parties' marriage, the breakdown of that marriage and subsequent events. The affidavits are also replete with opinion, argument and hearsay, much of which is concerned with casting the other party in a negative light, and all of which renders it difficult to make findings of fact. [9] For that reason, I will not attempt to resolve many of the factual disputes between the parties, and I will base my analysis only on properly admissible evidence. [10] Returning to the relevant background facts, the parties were married in 1997 and separated on July 1, 2014. They were divorced pursuant to the Final Order. They have two children: CW, born May 20, 2004 and currently 14 years old, and MW,

born July 18, 2006 and currently 12 years old. [11] Both parties are highly educated. The claimant has a master's degree in counselling psychology. She commenced work on a Ph.D. before being diagnosed with breast cancer in 2012. She has been on medical leave from her Ph.D. studies since the time of her diagnosis and subsequent treatment. [12] In the past, she has worked as a high school teacher and a clinical counsellor, however she has not been employed in any capacity since September 2014. [13] The respondent is a psychiatrist. He derives the majority of his income through his professional corporation ("PW Inc."). [14] For much of the parties' marriage and at the time of the Final Order, he had a staff position at a major hospital in the lower mainland and earned a significant income. He has since left that position and changed the focus of his medical practice, which he claims has resulted in a significant decrease in his income. This is a major point of contention between the parties. [15] I will return to the parties' personal circumstances in greater detail when addressing their respective applications. The Final Order [16] As the Final Order is the principal focus of both applications, it is useful to set out its key terms dealing with financial matters. The Final Order was reached part way into a scheduled 10-day trial and purported to provide a comprehensive resolution

to all of the matters in dispute between the parties. [17] The terms of the Final Order relevant to the current applications include: a) Paragraphs 1-3 provided for the sale of the former family home and the equal division of the sale proceeds subject to certain payments including "the amount required to pay in full all taxes attributable to the shareholders' loan deficit of $170,054 owing to [PW Inc.] as at September 30, 2014". From the sale proceeds, $100,000 was placed in trust, and remains there, to cover this potential liability; b) Paragraph 4 provided that if PW Inc. was audited by the Canada Revenue Agency for any period prior to July 1, 2014, the claimant would indemnify the respondent for any taxes found owing; c) Paragraph 8 provided for the equal division of the respondent's pension plan pursuant to Part 6 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]; and d) Paragraph 12 provided for the equal division of funds held in RRSP and Spousal RRSP accounts administered by MD Management. [18] In addition, the following terms dealt with child and spousal support: a) Pursuant to paragraph 22, the respondent's income was set at $454,000 and the claimant's at zero, however, this was without prejudice to either party's position on a future determination of the respondent's income; b) Paragraphs 23 and 24 required the respondent to pay $5,938 per month in child support and

contribute to special and extraordinary expenses based on a 78/22 apportionment between him and the claimant; c) Paragraph 27 provided for the following spousal support payable by the respondent: i) On the first day of each month, $8,084 until the completion of the sale of the family home; ii) On the completion of the sale of the family home, a lump sum of $1,067 times the number of months from the month following the completion of the sale up to and including January 2018; and iii) On the first day of each month following the sale of the family home, $6,246 per month until January 1, 2018, "at which time spousal support will be reviewed". [19] The review contemplated in paragraph 27 is addressed in greater detail in paragraph 30 which states: BY CONSENT on the review of spousal support contemplated in paragraph 27 of this Order, unless otherwise agreed in writing, either party will be at liberty to apply to retroactively adjust the amount of child support and spousal support payable in the period between August 1, 2016 and the date of the review (the "Retro Review Period") on the following terms: a. A party will be entitled to seek retroactive adjustment of support where the Guideline Income of [the respondent] during the Retro Review Period is less than $445,000 or greater than $465,000; b. A party will be entitled to seek retroactive adjustment of support where [the

claimant's] Guideline Income exceeds $35,000 during the Retro Review Period; and c. Support will be recalculated for the Retro Review Period on the basis of the parties respective Guideline Incomes for that period. [20] Paragraphs 31 and 32 then set out the financial disclosure required of the respondent, including for the purposes of the contemplated review. The Claimant's Application [21] Given that the claimant seeks to set aside the review provision of the Final Order, pursuant to which the respondent brings his application, I will deal with her application first. [22] The claimant in fact filed three different notices of application, dated June 18, 2018, June 25, 2018, and June 27, 2018. All seek to vary the Final Order to some degree. At the hearing, she clarified that what she in fact is seeking is to vary the terms dealing with assets that have not yet been divided, including the parties' RRSP's, the respondent's pension, and the $100,000 held in trust to deal with any potential tax liability of the respondent. She also seeks to set aside the provision making her jointly liable in the event that the respondent is audited and required to pay additional taxes, as well as the provision providing for a review of spousal support. [23] The claimant provided extensive evidence about her health at the time of the parties' trial and the negotiations leading to the Final Order. She claims that these issues impaired her ability to make properly informed decisions. In her affidavit #13, sworn July 27, 2018, she states: 10. During the financial divorce negotiations in July 2016, I was unable to appreciate adequately the provisions or the implications of the contract by reason of extreme emotional distress, fear, depression and cognitive impairment.

11. At the time of negotiations, I was medically diagnosed with and suffering from the following conditions: a. Trauma expressed as Major Depressive Disorder with Anxious Distress b. ADHD diagnosis causing cognitive impairment, further exacerbated by divorce stress and conflict c. Cognitive impairment from cancer treatment 12. I was experiencing severe psycho-social stressors in the two years leading up to trial, and during the time of financial negotiations including: · high conflict interactions with the Respondent · I was the target of litigation mis-conduct perpetrated by the Respondent · stress from the pressure of trial preparation & trial cross examination · parenting stress as the full-time parent of highly distressed children · financial distress - mounting legal bills and the accumulation of significant debt 14. All of these conditions impaired my executive functioning skills. I found it difficult to reason, problem solve, make decisions, focus my attention and regulate my emotions. This impacted my ability to process the information that my lawyer was providing me and thus, my ability to make a fully informed decision.

17. During the subsequent negotiations, I was overwhelmed, emotional and experienced multiple panic attacks (shaking, heart palpitations, shortness of breath, chest pain). I was exhausted and emotionally numb as the negotiations continued. I felt that I did not have the emotional fortitude to return to court and feared the prospect of going back .I was overwhelmed and eventually shut down cognitively, unable to process the information I was provided by my lawyer and thus unable to make informed decisions and give informed instructions to my lawyer. [24] The claimant goes on to discuss the financial pressure she was under at the time and says at paragraph 22: 22. I am of the opinion that in light of the financial pressure on me due to this significant debt with no means to repay it (I had to wait 6 months for the proceeds from our family home) I had no real choice but to settle and take a deal with some significantly unfair provisions. [25] In support of her position that she was impaired by various medical conditions, the claimant relies on the medical reports of Dr. Anthony Ocana, a general practitioner with a particular focus on Attention Deficit Hyperactivity Disorder ("ADHD"), Dr. Diego Villa, a medical oncologist, and Dr. Robert Tarzwell, a psychiatrist. Dr. Tarzwell's report was the result of an independent medical examination ("IME") of the claimant commissioned by the

respondent. [26] None of these reports was tendered as an expert report in compliance with Rule 13-6 of the Supreme Court Family Rules and the physicians have not been subjected to cross-examination as would generally be the case in a conventional trial. The same is true for the medical reports relied on by the respondent. Some caution must therefore be exercised in terms of the weight to be attached to the reports. [27] In his report dated October 18, 2015, Dr. Ocana states that, based on a psychiatric evaluation, the claimant meets the diagnostic criteria for ADHD and major depressive disorder with anxious mood (severe). He describes her as having moderate to severe dysfunction. However, elsewhere in his report, he states that "her depression is in complete remission" and that she is "managing better than expected" in terms of the various stresses she was experiencing. [28] In an update dated February 5, 2018, Dr. Ocana provides a somewhat more pessimistic view, describing her as being "in crisis" with worsening depression, increased anxiety and decreased mood stability. [29] Dr. Tarzwell's IME report is dated July 6, 2016. He also diagnosed her with a major depressive disorder, which he characterized as mild, recurrent and in partial remission, as well as mild ADHD. Dr. Tarzwell noted some cognitive difficulties experienced by the claimant but was of the view that there was

"no convincing evidence of any diagnosable Cognitive Disorder". [30] Dr. Villa treated the claimant for her breast cancer and provided two reports dated June 29, 2016 and July 5, 2018. In the 2016 report, Dr. Villa noted that chemotherapy had left the claimant with a number of complications, including "fatigue, cognitive changes, and mood lability". He also noted that she was under a significant amount of stress due to her personal and family situation. [31] As noted, the Final Order is a consent order that was entered into based on negotiations between the parties with the assistance of their counsel. On its face, it was intended to provide a final resolution to all matters in dispute. [32] The Court has limited jurisdiction to vary or set aside such an order. While the claimant cites s. 93 of the FLA in her notice of application, which provides that a court may set aside agreements respecting property division in certain circumstances, that section does not apply to court orders: A.M. v. M.S., 2017 BCSC 2061 at para. 49. [33] In Shackleton v. Shackleton, 1999 BCCA 704, the Court of Appeal addressed the circumstances in which a consent order may be varied or set aside. The Court said at para. 12: [12] A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent order will operate as a

final judgment: Campbell v. Campbell (1954), 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract: McCowan v. McCowan (1995), 14 R.F.L. (4th) 325 (Ont. C.A.); Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C. (2d) 164 (Ont. C.A.); Huddersfield Banking Company Limited v. Henry Lister & Son Limited (1895), 2 Ch. 273 (C.A.); Dawe v. Dawe (1985), 45 R.F.L. (2d) 254 (B.C.S.C.); aff'd (1986), 2 R.F.L. (3d) 430 (B.C.C.A.); and T.(T.L.A.) v. T.(W.W.) (1996), 24 R.F.L. (4th) 51 which leaves unanswered the issue of reopening a consent order under s. 68 of the Family Relations Act. [Emphasis added.] [34] Similarly, in Pond v. Pond, 2017 BCCA 243, the Court of Appeal said at para. 2: [2] The kinds of grounds on which any contract may be set aside - fraud, undue influence, duress, coercion - are also required for setting aside a consent order in general. As stated in Racz v. Mission (District) (1988), 22 B.C.L.R. (2d) 70 (C.A.): A court... has inherent jurisdiction to set aside a judgment or order: a) which has been obtained by fraud, collusion or perjury; b) which constitutes

an abuse of process; c) on the ground that fresh evidence has been discovered; or d) which was obtained by consent on a ground which would invalidate a compromise not contained in a judgment or order. [35] While the claimant's evidence and submissions concerning the Final Order were extensive and wide-ranging, as I understand her position, she seeks to vary or set aside certain provisions of the Final Order on the following grounds: a) She lacked the capacity to understand fully the nature of what was being agreed to due to her psychological condition; b) She was under extreme stress at the time of the Final Order; c) Certain provisions of the Final Order are substantially unfair to her; and d) The respondent has engaged in litigation misconduct, including failing to disclose relevant financial information. [36] In E.J.M. v. W.V.T., 2003 BCSC 918, the court considered a similar application to set aside a consent order on the basis of one party's alleged stress and anxiety. Mr. Justice Maczko cited Shackleton and then said the following at paras. 12, 40 and 42: [12] once an agreement is incorporated in a court order, the scope for setting aside or varying the provisions is very limited. The authorities of this court are quite clear that the effect of such an order is to render the matter res judicata, subject to the common law defences. [40] The plaintiff also alleges that she

was suffering from a mental condition and was under psychiatric care at the time she negotiated the agreement. She says that she was suffering from stress and anxiety, which induced her into reaching an unfair settlement. It can always be alleged that a person going through a divorce will be suffering from stress and anxiety. It would not be unusual for people going through divorce to suffer from stress and anxiety. As stated in [Miglin v. Miglin, 2003 SCC 24] at [para.] 82: Recognition of the emotional stress of separation or divorce should not be taken as giving rise to a presumption that parties in such circumstances are incapable of assenting to a binding agreement. [42] As well, the plaintiff was well represented by experienced and competent counsel, Ms. Kathryn Sainty. Preston J. addressed the concept of independent legal advice in [Schlenker v. Schlenker, 72 B.C.L.R. (3d) 203 (S.C.)]. He said at [para.] 9: Independent legal advice acts as a strong counterweight to the otherwise unequal bargaining positions that often result from marriage and its breakdown. A person who is properly advised of his or her legal rights and of the significance of a contemplated agreement is less likely to be a victim of duress and undue influence or to enter into an unfair bargain [citations omitted]. And at [para.] 10: If an unfair agreement is entered into after both parties have obtained

independent legal advice, it becomes difficult for one of the parties to allege duress, undue influence, unconscionability, etc. [37] See as well: R.L.S. v. D.C.M., 2002 BCSC 1794 at para. 86. [38] I do not doubt that the claimant was under considerable stress at the time the Final Order was reached. As noted by Justice Maczko in E.J.M., marital breakdown is an inherently stressful process, particularly when it results in litigation. It also places significant financial stress on the parties, both in the form of legal fees and the demands of supporting two households instead of one. [39] I also accept the claimant's evidence, and the supporting medical evidence, that she has been diagnosed with ADHD and depression. However, she has not established that either the degree of stress she was experiencing or her medical conditions rendered her incapable of understanding and freely consenting to the terms of the Final Order. [40] While there is some reference in the medical evidence to cognitive difficulties relating to her condition, it does not go so far as to indicate incapacity on her part. Nor is there any evidence that issues of capacity were ever raised with the respondent or his counsel. [41] Both parties were represented throughout the trial and settlement negotiations by experienced and competent counsel. There is no evidence from the claimant's then counsel indicating any

concerns about the claimant's capacity to understand the issues or to issue instructions. [42] There is also the fact that the claimant only seeks to set aside certain terms of the Final Order rather than the Order in its entirety. I do not accept that the terms that she does not challenge, for example dealing with parenting, were easier to understand than the financial terms with which she now takes issue. [43] Lastly, it is apparent on the evidence that both parties were experiencing financial stress at the time of the Final Order, including the stress of significant legal fees. However, rather than supporting an order setting aside or varying aspects of the Final Order, this underscores why it was in the parties' best interests to reach a comprehensive settlement. [44] I therefore decline to set aside any terms of the Final Order on the basis of the claimant's alleged incapacity. [45] Similarly, I do not accept that the terms in issue should be set aside as being unconscionable or substantially unfair to the claimant. Again, these terms were agreed to as part of a negotiation leading to a comprehensive settlement, which was achieved with the assistance of counsel. As noted by Justice Preston in Schlenker, referred to in E.J.M., independent legal advice serves as a strong counterweight to allegations of unconscionability and undue influence. [46] Further, while unfairness is

not a ground identified by the courts as a basis for setting aside a consent order (Pond at para. 2), I am not in any event satisfied that the impugned terms of the Final Order are in fact unfair to the claimant. [47] On its face, there is nothing unfair or untoward in the division of the family RRSP's and the respondent's university pension. However, the claimant submits that the respondent's 50% share of those assets should be re-allocated to her as special costs or to compensate her for what she characterizes as the respondent's litigation misconduct. I will return to this point below. [48] The claimant does raise a fair point that the respondent cashed in over $90,000 of RRSP's after separation without her consent and in breach of the Final Order. However, the respondent acknowledges that this amount will have to be accounted for in any final reconciliation, something that is dealt with expressly in paragraph 12 of the Final Order. [49] The claimant further submits that the term of the Final Order requiring $100,000 to be held in trust for any potential liability of the respondent on a shareholder loan deficit in PW Inc., and the term making the claimant 50% liable for any additional taxes or penalties in the event that the respondent is subjected to a tax audit, are both unfair to her. Specifically, she submits that she should not be held responsible for any actions over

which she had no knowledge or involvement. With respect to any potential tax audit, the claimant says that any such audit would result from the respondent's "fraudulent" expense claims over which she had no control. [50] I do not accept that these terms are unfair to the claimant. Again, they are part of a comprehensive settlement achieved with the assistance of counsel. Moreover, it is not possible to separate or unravel these specific terms from the entirety of the parties' financial circumstances, both during their marriage and as part of their settlement. For example, to the extent that the respondent was "aggressive" in claiming business expenses through his professional corporation, this no doubt worked to the benefit of the family during the marriage, including the claimant, in that there was more money available to go towards family expenses. It is not obviously unfair that the claimant then be required to contribute to any resulting liability, although it should be noted that there is no evidence that a tax audit is imminent or even likely. [51] The claimant also takes issue with the review provisions of the Final Order, pursuant to which the respondent brings his application. She says that she never would have agreed to such a review if she knew that very shortly after the date of the Final Order, the respondent would quit his high paying position and reduce his

income dramatically. [52] I agree with the claimant that there are issues surrounding the respondent's employment, including the circumstances under which he took a leave from Fraser Health Authority ("FHA") and his current claimed income level. However, these issues are best dealt with when considering how much income to impute to the respondent for support purposes and they do not, in and of themselves, render the review provisions unfair. [53] Finally, much of the claimant's evidence and submissions were directed at what she characterizes as the respondent's litigation misconduct. She submits that such conduct constitutes family violence under the FLA, and as noted, she seeks a re-apportionment of family assets and an award of special costs based on this conduct. [54] The specific conduct complained about by the claimant includes delay in making financial disclosure, "character assassination" including maintaining allegations of parental alienation, financial mismanagement, manipulation of mental health professionals, lying and a general failure to act in good faith. [55] The claimant cites M.W.B. v. A.R.B., 2013 BCSC 885, which dealt with numerous issues arising after a two week trial that resulted in a final order. As found by Mr. Justice N. Brown, the subsequent matters were caused by misconduct on the part of the respondent wife. Justice Brown described the context at

paras. 10-12 as follows: [10] The high-conflict divorce trial took place about two and a half years ago in Cranbrook, BC in August 2011. The parties represented themselves. The orders made following the trial were aimed at stabilizing the parties' finances, reducing conflict, regularizing parental access and, over all, to help the parties move forward. Those objectives were not realized as the Respondent's conduct worsened the parties' financial circumstances and conflict continued. [11] Following trial, the parties engaged the Court in four additional proceedings, all driven by the Respondent's refusal to settle orders and costs in a reasonable way, her interference with the Claimant's access and her obstruction of the sale of the commercial property. [12] The resulting litigation-related stress generated by the Respondent has caused the Claimant time, trouble and expense that in turn have contributed to a significant medical issue. [56] After reviewing the respondent's conduct in detail, Justice Brown considered whether it constituted family violence at paras. 199-200, 204-206 and 208-209: [199] I find the Claimant's litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence. [200] The Respondent's conduct and

needless litigation has forced the Claimant to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources. [204] The best interests of children suffer when abusive oppositional behaviour and litigation fomented by one parent's conduct harms the health and financial well-being of the other parent. This in turn harms the children's economic safety and security. [205] Further, the Respondent's reckless and oppositional behaviour connected with the commercial property has damaged the children's safety, and economic security. It effectively deprived them of receiving any benefit from [the] sale of the property, endangered the Claimant's capacity to support the children and consumed money the Claimant could have used for a greater number of parent time visits. The Respondent knew her delaying and oppositional conduct harmed the Claimant's capacity to pay the cost of access visits. [206] If a parent's abusive conduct harms the well-being of the other parent to the extent they may have to go on stress leave, this negatively impacts the child's economic security. [208] The Respondent knew or ought to have known the impact her conduct was having on the Claimant's financial situation; the Claimant made it clear to her. From this, I

infer the Respondent is prepared to let her anger at the Claimant influence her to act in a way that indirectly harms the best interests of the children. I find the Claimant will not conduct himself in that way; the litigation history proves otherwise. [209] In summary, I find that the Respondent has directed violence at the Claimant that has indirectly harmed the children's psychological and emotional well-being and economic security . [57] Similarly, in C.L.M. v. M.J.S., 2017 BCSC 799, Madam Justice Donegan found that the claimant's approach to the litigation constituted family violence. She said at para. 392: [392] I find that the claimant's litigation conduct is also a form of emotional abuse and harassment that constitutes family violence. As I have extensively detailed, the claimant did not cooperate with most aspects of this litigation. She did not cooperate with any aspect of the sale of the family residence. Multiple court applications were required. The claimant did not abide by many Orders, did not respond to correspondence, took matters into her own hands by breaking into the family residence, did not attend court, never did provide full financial disclosure, and was generally obstructionist throughout the litigation. Her attitude about Court Orders was well demonstrated on the day she accused the respondent of "hiding behind an order like a coward". The claimant's

conduct and needless litigation has forced the respondent to incur litigation expenses, damaging his financial well-being and creating undue stress. The litigation has consumed much of his emotional resources, impacting his parenting time with the Child. His damaged emotional state as a result of these things was very evident throughout the course of this trial. [58] Without going into detail about the underlying facts in C.L.M. and M.W.B., the conduct at issue in those cases that attracted the censure of the court was far more extreme than anything that has occurred in this case. For example, the claimant in C.L.M. refused to comply with numerous court orders and she was described as "obstructionist" throughout. In M.W.B., Justice Brown characterized the claimant's behaviour as "reckless and oppositional" (para. 205) and intended to harm the health and financial well-being of the respondent. [59] In the present case, there is no doubt that the litigation has been lengthy and difficult and characterized by a high degree of mistrust and acrimony on the part of both the claimant and the respondent. Each largely blames the other for this unfortunate state of affairs. However, it is not possible, nor would it be fair, to place the blame solely on one of the parties, particularly given the state of the evidentiary record as described in paras. 7-8 above. Both are responsible. [60]

It is worth noting that both parties acknowledge that the ongoing stress associated with this litigation is a contributing factor to their respective mental health issues, yet neither seems capable of "stepping back from the fray". [61] A central element of the claimant's misconduct claim is her allegation that the respondent has consistently failed to provide full financial disclosure. I do not agree. [62] While at times the respondent has been slow in producing requested financial information, which he acknowledges, he has not breached any order for production and, in fact, there has been extensive financial disclosure on his part. The claimant's position on this point is driven more by her mistrust of the respondent than by any misconduct on his part. [63] As discussed in Shackleton and similar cases, final orders are intended to provide parties to a family law dispute with certainty and finality on the issues that divide them. It is for this reason that the courts have made it clear that such orders will be interfered with only in exceptional circumstances. While the concept of finality has proven illusory in this case, the claimant has not established grounds that support an order varying or setting aside any terms of the Final Order. The claimant's application is therefore dismissed, apart from the s. 7 expense issue which is dealt with below. The Respondent's

Application [64] As noted, the respondent brings his application pursuant to paragraphs 27(c) and 30 of the Final Order which provide for a review as of January 1, 2018. [65] Central to the respondent's position on his application is his contention that he is no longer able to work at the same level as he was during the marriage, due to his own compromised health, and that accordingly, he was not and is not capable of earning the same income that was used to determine child and spousal support in the Final Order. [66] The respondent describes his health issues and his professional circumstances as follows in his affidavit #14 sworn June 7, 2018: 11. During only the latter few years of our marriage, I did not have a high paying position, I simply worked at an extraordinarily high level. Over a period of approximately three years, I made extreme efforts to earn income, for which I suffered mentally and physically. In 2012/2013, I was working approximately 85 hours per week. In 2014-2016 I was working approximately 80 hours per week.

12. I am no longer capable of working to these extreme levels. It is not a sustainable practice or lifestyle. Working 80 plus hours per week is nearly double that of an average psychiatrist.

13. As a result of pushing myself to these extremes, I began to become less productive in my work and increasingly stressed. Even prior to my separation from the claimant I was having increasing difficulty in maintaining this very high intensity and style of work. This was also a factor in my experience of caretaker burnout, during the time the claimant was dealing with cancer and during our marital breakdown. Ultimately, I realized my mental health was suffering. I was experiencing depression and emotional incontinence at work and elsewhere . [67] The respondent goes on to describe the high intensity nature of his work during that period which, combined with the contentious nature of his separation from the claimant, exacerbated his mental health issues. He describes a number of circumstances that led him in September 2016 to request a transfer to a lower intensity and more flexible position. However, that request was denied. Accordingly, he and his employer "mutually agreed that I would discontinue my work at BGH and that they would hire someone else to take on the various roles". [68] According to the respondent, he effectively took a two year leave of absence which was to be reviewed in the fall of 2018, but there was no evidence at the hearing about the status of any such review. [69] The respondent then describes his new practice focus: 27. One of the areas of outpatient care that I was previously planning to develop and continue to focus on is providing online treatment to clients. It was for this purpose that I incorporated [a numbered company]. A major benefit of this role is that it provides both myself and the patient with significant flexibility in their treatment schedule and in my work-life balance and my family responsibilities.

28. I am also actively engaged in building and maintaining an independent medical examination ("IME") practice. This similarly provides increased flexibility of work schedule due to the preponderance of hours spent reviewing and writing reports rather than direct patient care at set hours.

29. One challenge with building and maintaining an outpatient private practice is that the flow of patients is not automatic. My income from this is based entirely on the clients and work that I am able to attract and maintain. It requires goodwill and investment. It takes both time and resources to continue to drive the clientele to support a practice and it means I am not able to bill every hour of the time I am "working". [70] In January 2017, the respondent fell and suffered a concussion. He states that he is continuing to suffer post-concussive symptoms. He states: 39. My capacity for specific types of work and the manner in which I am able to perform my work is directly impacted by the injury and concussion I sustained in January 2017, and has required significant adaptation on my part. I continue to have difficulty working at a productive level for a full day. I experience headaches and fatigue and cognitive issues that impact and these affect my work and ability to focus. In an effort to cope with this, I focus my work hours on periods of time when I have maximal productivity, which is typically in the mornings. Essentially, I now work seven days a week, year round in order to maximize my income and meet my financial obligations to the best of my ability [71] The respondent relies on medical reports prepared by his treating psychiatrist, Dr. Grant Chernick. Again, these

reports are subject to the caution referred to in para. 26 above. [72] Dr. Chernick wrote a letter to the respondent's counsel dated October 16, 2015, in which he stated that he had first assessed the respondent in April 2015 and that he had diagnosed the respondent with a major depressive disorder. According to Dr. Chernick, in September 2015 he recommended that the respondent reduce his work hours given his psychological condition. [73] Dr. Chernick provided a more comprehensive medical-legal report dated February 13, 2018. As of the date of that report, Dr. Chernick diagnosed the respondent with: a) Major depressive disorder, recurrent in remission; and b) Mild neurocognitive disorder due to traumatic brain injury, in partial remission. [74] Dr. Chernick states in his report: At present, [the respondent] is working; however, his level of functioning and employment capacity is reduced [the respondent] reported limitations in his ability to work as many hours as he used to ever since his separation in July 2014. His capacity to work was reduced when he had his first episode of major depressive disorder. He was in remission by July 2015 with treatment however, by January 12, 2016 he reported that he could not work at the same pace as in the past with the stressors he was facing related to his divorce proceedings. All throughout 2017, [the respondent] has been limited by

post-concussive headaches, fatigue and this manifested in a greatly reduced work capacity, especially in the afternoons. In addition, there have been ongoing stressors with court proceedings dealing with custody issues. Presently, [the respondent] continues to have headaches daily from his traumatic brain injury. There are ongoing stressors from his court issues. These are significant stressors which interfere with [the respondent's] capacity to work . [The respondent] faces challenges in his ability to continue to work because of ongoing psychosocial stressors which risk exacerbating his mood disorder [75] As this is an application for review of support, the respondent need not establish a material change in circumstances as would be necessary if he was seeking to vary an order. This point was confirmed by the Court of Appeal in Morck v. Morck, 2013 BCCA 186, where Madam Justice Neilsen said at paras. 17-18: [17] By contrast, on an application to review an earlier order of spousal support, the applicant need not establish a material change in circumstances. Instead, the review is a hearing de novo, and treated as an initial application for support under s. 15.2 of the Divorce Act. This permits the court to adjust support in a manner that takes into account changes that may have been contemplated by the parties at the time the order was made, but were nevertheless uncertain.

Because the issues on review are similar to those on an initial application, the Spousal Support Advisory Guidelines may be used for guidance: Domirti v. Domirti, 2010 BCCA 472 at paras. 32-36, 10 B.C.L.R. (5th) 281; and Tedham v. Tedham, 2005 BCCA 502 at paras. 22, 47 B.C.L.R. (4th) 254. [18] Sections 15.2(4) and (6) of the Divorce Act address the factors to be considered on a review: (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. ... (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse

within a reasonable period of time. [76] The key threshold question in respect of spousal support is whether or not the party seeking a support order is entitled to it. Only if entitlement to spousal support is established must the court move on to consider the quantum and duration of that support: R.A.C. v. V.L.C., 2009 BCSC 825 at para. 283; Yemchuk v. Yemchuk, 2005 BCCA 406 at para. 20. [77] I do not intend to dwell on this issue as the respondent does not take issue with the claimant's entitlement to spousal support and, in any event, I am satisfied that she has a strong claim for support on both compensatory and non-compensatory grounds. Rather, the central question to be determined is the respective incomes of the parties. [78] As set out in paragraph 22 of the Final Order, for the purposes of determining child and spousal support at that time, the respondent's income was set at $454,000 and the claimant's income at zero. [79] In accordance with paragraph 30 of the Final Order, the respondent seeks to review and retroactively adjust child and spousal support of the period of August 1, 2016 to the date of the review, which is defined in the Final Order as the "Retro Review Period", and then he seeks to establish a new support amount going forward based on current incomes. [80] As reflected in his evidence summarized above, the respondent takes the position that his income

has been significantly reduced. In his written submission, he submits that for the fiscal year September 30, 2016 to September 29, 2017, which coincides in part with the Retro Review Period, his income was $400,000 and that for the fiscal year running from September 30, 2017 to the date of the review, his income was $96,528. He says that spousal support should be calculated using this figure. He also seeks to impute income to the claimant of no less than $25,000. [81] As a starting point, it is useful to review the respondent's income history. Again, he derives the bulk of his income through PW Inc. For the years ending September 30, 2012 through 2017, PW Inc. reported the following amounts in gross income (in the form of professional fees) and net income before taxes (i.e after deduction of business expenses): Year Gross Income Expenses Net Income 2012 $601,403 $348,522 $252,881 2013 $519,624 $322,403 $197,221 2014 $449,797 $284,330 $165,467 2015 $445,952 $273,136 $172,816 2016 $404,334 $288,159 $116,175 2017 $259,418 $323,187 $($63,769) [82] On his personal tax returns, which use a December 31 year end, the respondent reported the following line 150 income: 2012 $190,046 2013 $233,769 2014 $158,564 2015 $257,564 2016 $345,153 2017 $147,995 [83] The respondent's personal income in these years was comprised principally of employment income paid to him by PW Inc. as well as

dividends paid out by PW Inc. In addition, in 2016 and 2017, he claimed RRSP income. [84] As can be seen from the above, the respondent has consistently claimed significant business expenses within PW Inc. The claimant takes issue with many of these expenses. She submits that for most of these years, the respondent was a staff physician at a hospital and, as such, had minimal overhead. I will return to the question of the respondent's expenses below. [85] The first issue on this review is whether there should be a retroactive adjustment for the Retro Review Period. While paragraph 30 of the Final Order permits a party to seek such an adjustment, it does not require that the adjustment be made. [86] I accept the respondent's position that for the first part of the Retro Review Period, from October 1, 2016 to September 30, 2017, it is reasonable to use the figure of $400,000 based on his 2016 earnings. However, I decline to retroactively adjust spousal support for this period. [87] Under paragraph 27 of the Final Order, leaving aside the initial payments required by subparagraphs (a) and (b), spousal support was set at $6,246 per month. However, under the Spousal Support Advisory Guidelines ("SSAG"), an income of $454,000, which was used for the purposes of the Final Order, results in spousal support well above $10,000 (keeping in mind that the SSAG do not necessarily apply when

the payor's income exceeds $350,000). [88] When questioned why spousal support was set well below the SSAG amount, counsel responded that it was part of the negotiated deal and that the respondent had agreed to an income that he knew he was not capable of making so as to maximize his child support. [89] While that may be the case, there is a strong argument to be made that the claimant has been underpaid spousal support, including for the period of October 1, 2016 to September 30, 2017, and there is certainly no basis for a retroactive adjustment downward for that period. [90] The real issue is whether there should be an adjustment from October 1, 2017, based on the respondent's claimed income of $96,528 in the fiscal year ending September 30, 2017. [91] That figure is derived from the income statement for PW Inc. for that fiscal year. As set out in paragraph 81 above, PW Inc. reported professional fees of $259,418 that year which were offset by $323,187 in expenses, resulting in a net loss of $63,769. The largest expense claimed is $160,298 in "management salaries". According to the respondent, this is the salary that he drew from PW Inc. for that year. The respondent then takes that figure and applies the $63,769 net loss in the company, resulting in his claimed income for support purposes of $96,528. [92] In considering the respondent's position, the following provisions of

the Federal Child Support Guidelines (the "Guidelines") are relevant (which apply as well to the determination of income for spousal support purposes): 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. Shareholder, director or officer 18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse's annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse's annual income to include (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation's pre-tax income. Adjustment to corporation's pre-tax income (2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other

payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm's length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances. 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: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (g) the spouse unreasonably deducts expenses from income; Reasonableness of expenses (2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act. [93] Applying these provisions, it is apparent that the respondent's calculation of his income is flawed in at least three ways: a) He relies on the net income of PW Inc. without first determining what his personal income is as determined under s. 16 of the Guidelines; b) He has unreasonably deducted excessive expenses from his income; and c) The professional fees claimed by the respondent for the fiscal year ending September 30, 2017, are the result of under-employment

and do not fairly represent his income earning capacity. [94] With respect to the first of these points, s. 16 of the Guidelines requires that the Court first look to the total income reported by a payor on his or her income tax return. In the respondent's 2017 return, his line 150 income was reported to be $147,994.85. This differs somewhat from the $160,298 in reported management salaries set out in the September 30, 2017 income statement for PW Inc., which is likely due to the different fiscal and tax year ends. [95] The $147,994.85 figure is then the starting point for determining the respondent's income. Given that he earns his income through PW Inc., s. 18 is then engaged and the Court must consider whether this figure "fairly reflect[s] all the money available to the spouse for the payment of support". This in turn requires an assessment of the reasonableness of the expenses claimed. In doing so, as set out in s. 19(2) of the Guidelines, an expense permitted for tax purposes is not necessarily a reasonable expense for the purpose of calculating income. See also Marquez v. Zapiola, 2013 BCCA 433 at para. 49. [96] I agree with the claimant that the expenses claimed by the respondent are excessive. [97] I do not intend to engage in a forensic accounting exercise, however I will touch on some of the more obvious problem areas: a) Next to management salaries, the largest

expense claim is for "rent and office" in the amount of $102,086. That amount includes expenses for rent, insurance premiums, office and administrative expenses and health services. With respect to rent, the respondent claims $29,504 which covers both the rent on his West Broadway office and 50% of the rent for his "live/work space" i.e. his home. While I accept the validity of the deduction for the medical office, the respondent does not adequately explain why he needs both spaces and, moreover, he does not provide any breakdown that would justify writing off fully 50% of his home expenses. Also included in this category is $37,406 in expenses under his health services plan, which includes costs incurred for family therapy related to the litigation. These are not business expenses that are properly deducted from the income of PW Inc. b) Vehicle expenses total $11,806, which is based on claiming 55% of his total vehicle costs as a business expense. The respondent justifies this on the basis that he uses his vehicle to travel to meetings with current and prospective clients. His explanation of these expenses is vague and does not provide a clear breakdown between personal and business use. In my view, allocating 55% of this expense to the business is excessive. c) The respondent claims $16,729 in accounting and legal fees however he has only produced one cheque in the amount of

$8,925 and provides no clear explanation of why these expenses are significantly higher than in previous years. [98] While the claimant takes issue with many of the other expenses claimed, for example advertising and promotion which includes meals and the respondent's Whitecaps soccer tickets, these are relatively small items. [99] Taking account of the major items I have touched on, it is reasonable in the circumstances to add back at least $50,000 in improperly claimed expenses. If that amount is added to his line 150 income in the respondent's 2017 tax return of $147,995, his 2017 income for Guidelines purposes is $197,995. If it is added to the $160,298 amount recorded as management salaries paid by PW Inc. in the year ending September 30, 2017, the income figure is $210,298. [100] This is before any consideration is given to the issue of the respondent's under-employment. As set out in s. 19 of the Guidelines, the court may impute income where it considers that a spouse is intentionally under-employed. Imputation is a mechanism available to the court to ensure that a spouse meets his or her support obligations: Hanson v. Hanson, 1999 CarswellBC 2545 at para. 8 (S.C.); English v. English, 2011 BCSC 90 at para. 42. [101] In the present case, the respondent claims that he is no longer capable of working the long hours that produced a high income in the years preceding

separation. He says that he has ongoing mental health issues as well as lingering problems caused by his concussion, all of which limit his earning capacity. Again, his evidence in this regard is summarized in paragraphs 65-74 above. [102] For her part, the claimant submits that the respondent has not adequately explained why he left his previous position with FHA and why he cannot currently earn income similar to what he did in the past. She submits further that many of the problems claimed by the respondent, such as the concussion symptoms and the stress associated with this litigation, are temporary and do not justify the dramatic decrease in income clamed by the respondent. The claimant's position is that the respondent should return to his former position and that he should be imputed income equivalent to what he used to earn and what is reflected in the Final Order. [103] The Court has no ability to order the respondent to return to his former position. Moreover, there is no evidence about whether that position is still available to him. [104] That said, I agree with the claimant that the respondent's evidence about why he left the position is vague. He refers to a "mutual agreement" with his employer but there is minimal detail provided about the reasons leading to that decision. Nor does the respondent explain why he signed a new sessional contract with FHA on September

7, 2016, which is right around the time of the "mutual decision" that he leave his position. As previously noted, there is also no evidence about whether the two year review of his position contemplated for September 2018 has occurred. [105] There is however considerable evidence about the respondent's psychological and medical condition sufficient to establish that it is not reasonable, at least at the present time, to expect that he can earn income in excess of $400,000 like he was doing five years ago. While the law does require that he work to his capacity to meet his support obligations, it does not go so far as to require him to take heroic measures or to work to an extent that jeopardizes his mental or physical health. [106] I am satisfied that on the evidence, his capacity to earn income is diminished, although not to the extent he alleges. I note that in his most recent report dated February 13, 2018, Dr. Chernick describes the respondent's level of functioning and employment capacity as "reduced". He also describes the respondent, with respect to his "home functioning", as having "the capacity to completely function at present including regular activities of daily living including travel". On the issue of travel, the claimant points to the fact that the respondent has continued to travel regularly despite the problems he complains of. For example, on his most recent

financial statement sworn May 22, 2018, he claims expenses for travel and "vacation gifts" of over $22,000 per year. In calendar year 2017 alone, he incurred $42,327.65 in travel costs. I agree with the claimant that this pattern is inconsistent with the respondent's alleged degree of incapacity. [107] For these reasons, I do not accept that the respondent's claimed income, even as adjusted in paragraph 99 above, accurately reflects his earning capacity. [108] What then is a reasonable income to impute to the respondent? One of the challenges is that despite the existence of the Final Order, the parties are still in transition. For example, on his own evidence, the respondent is continuing to work on developing his online counselling and his IME practice. Both parties also attribute much of their psychological difficulties to the stress of this litigation which hopefully will start to diminish soon. The claimant too is in transition in that she acknowledges the need to return to work but is just now taking steps in that direction. [109] In the circumstances and taking account of the respondent's training and experience, his past and present practice and his current medical condition, I find that a reasonable income to impute to him for Guideline purposes is $250,000. [110] With respect to the claimant, I agree with the respondent that given her education and her history, she is

capable of earning a reasonable income. The claimant acknowledges this, but submits that it will take some time for her to fully re-integrate into paid employment. As she notes, and as is well documented in the evidence, the claimant has a long history of medical issues that have impaired her ability to work. [111] Both parties agree however that for present purposes, it is reasonable to impute income to the claimant of $25,000. The respondent submits that this is merely a starting point and that her income should increase over time whereas the claimant proposes more of a "wait and see" approach. [112] In my view, given the circumstances of both parties, a review of their respective incomes in two years makes sense. [113] Using income figures of $250,000 for the respondent and $25,000 for the claimant results in a child support amount of $3,130 based on the current situation in which CW lives with the claimant and MW shares her time equally with the parties. Under the SSAG, the range of spousal support is $4,179-$4,798-$5,434. The claimant submits that support should be at the high end of the range whereas the respondent submits it should be in the low to mid-range. [114] Use of the high range would result in a significant difference in the parties' net disposable incomes ("NDI"). While this factor is not determinative, such a split would in my view be unfair to the respondent.

Use of the mid-range also results in the claimant having a higher NDI percentage, but this can be justified on the basis that she has higher living and childcare expenses. I therefore set spousal support at the mid-range amount of $4,798. [115] The next question is whether spousal and child support should be adjusted retroactive to October 1, 2017. For the same reason I declined to adjust retroactively for the earlier period, namely that the claimant was arguably underpaid spousal support in the past, I decline to retroactively adjust support for this part of the Retro Review Period. Instead, the adjustment will occur effective November 1, 2018. Again, the parties' incomes may be reviewed in two years time, as of November 1, 2020. Section 7 Expenses [116] The parties also addressed the issue of outstanding s. 7 expenses. [117] Pursuant to paragraph 24 of the Final Order, special or extraordinary expenses for the children are to be paid 78% by the respondent and 22% by the claimant. Paragraph 25 identifies a number of items that were agreed to constitute special or extraordinary expenses. Paragraph 25(g) of the Final Order provides: Expenses arising in the future that the parties agree in advance qualify as a special or extraordinary expense, or, failing agreement, are determined to qualify as such within the meaning of the [Guidelines]. [118] The parties agree on a number of

items but there are some specific points of contention, each of which I will address in turn. [119] The most significant item in dispute is $8,695.05 in claimed s. 7 expenses that pre-date the Final Order. The claimant alleges that these expenses were validly incurred and that the respondent has never paid his share. The respondent submits that this claim was extinguished by operation of paragraph 44 of the Final Order which states: BY CONSENT all other claims and counterclaims except for those arising from the Parenting Plan Order pronounced July 14, 2016, will be dismissed as though after a trial on the merits and without costs to either party. [120] I agree with the respondent. The Final Order was meant to be a comprehensive settlement of all outstanding issues between the parties. It included a number of provisions dealing specifically with s. 7 expenses. The clear intent was to extinguish all other claims. On a proper reading of the Final Order, the claim for previous s. 7 expenses cannot survive. [121] The claimant helpfully provided a chart setting out her claimed expenses, the amounts agreed to by the respondent and the disputed amounts. The chart is divided into "February 2017 expenses", "May 2018 expenses", and "new expenses". [122] Under February 2017 expenses, there is a small dispute about payments for the rental of a cello. The claimant seeks repayment of $906.80

however, as the respondent points out, some of those expenses pre-date the Final Order. He is prepared to pay his share of the expenses properly incurred which I calculate to be $305.76. [123] A main point of contention between the parties concerns the children's cell phones. While the respondent agrees to pay some of the expenses, he has refused to pay the total amount claimed by the claimant on the basis that there was no agreement about these expenses as required under paragraph 25(c) of the Final Order. His view is that the claimant purchased unnecessarily extravagant phones and cell plans for the children without consulting him. [124] I have no doubt that there was a lack of communication between the parties on this and many other issues as that situation defines the relationship between the parties. That said, I am satisfied that the claimant incurred the expenses in issue and it was clearly the intent of the Final Order that cell phone expenses are an agreed s. 7 expense. I therefore accept the claimant's position on these expenses. However, when the children's cell contracts are up for renewal, the parties must agree on a suitable plan going forward. [125] The respondent has refused to pay expenses related to MW attending a summer camp and CW attending a school camp and an exchange trip to Quebec. According to the respondent, he did not agree to these camps and they are

not legitimate s. 7 expenses. [126] With respect to the Quebec trip, the therapeutic team had recommended that CW consult the respondent about this trip. This was apparently viewed as an opportunity for CW and the respondent to speak and hopefully to start bridging the divide that exists between them. That did not occur and accordingly the respondent did not give his consent. [127] While I understand the respondent's frustration and disappointment that CW failed to follow the recommendation and to consult with him about the trip, for the respondent to now take the position that these outings were not necessary and that the expenses are unjustified is, quite frankly, petty. I accept the claimant's evidence that MW has regularly attended the summer camp with the respondent's blessing. I also accept her evidence that the school camp and the Quebec trip, if not absolutely mandatory, were a significant part of CW's school year. I find that these are valid s. 7 expenses. [128] The respondent takes issue with the claimant's purchase of an Apple laptop for CW. Again he considers this an extravagant and unnecessary expenditure, however I accept the claimant's evidence that it is necessary for CW's school. [129] There is a small dispute about MSP payments. The respondent has agreed to pay $292.50 but the claimant seeks a further $262.50. It is not at all clear on the evidence how she

arrives as this figure so I am not prepared to endorse it. [130] Using the claimant's chart and based on my assessment of the expenses as set out above, I find that the respondent owes the claimant $4,290.96 for this period. [131] The parties agree about the majority of items set out in the claimant's chart under the heading May 2018 expenses. The respondent does disagree with the claim for cell phone expenses but again, on this point, I find in favour of the claimant. The total owing for this period is therefore $12,433.10. [132] Under new expenses, there was an issue about outstanding Kumon expenses but that has been resolved. The remaining amounts are for cell phone expenses and prescription drugs and I accept the claimant's calculations, which total $646.97. [133] Based on the above, I find that the respondent owes the claimant $17,371.03 in outstanding s. 7 expenses. [134] The claimant took the position that given the difficulties the parties have in communicating and consequent difficulty in agreeing on s. 7 expenses, she should be given sole responsibility for determining expenses on behalf of the children. [135] I decline to make such an order. The Final Order requires agreement for expenses other than those stipulated in the Order. While the parties obviously have communication issues, it is their responsibility as parents to find ways to cooperate and communicate in

respect of the children. Conclusion [136] In summary, I make the following orders: a) The claimant's application to vary the Final Order is dismissed; b) Based on Guideline income for the respondent of $250,000 and for the claimant of $25,000, effective November 1, 2018, the respondent will pay spousal support in the amount of $4,798 per month and child support in the amount of $3,130 per month; c) The parties' respective incomes may be reviewed as of November 1, 2020; and d) The respondent will pay the claimant $17,371.03 for outstanding s. 7 expenses. [137] While both parties addressed the issue of costs to some degree, I am prepared to hear further submissions based upon the outcome set out in these Reasons. Arrangements may therefore be made with Supreme Court Scheduling to speak to the issue. The parties will exchange written submissions of no more than five pages double spaced and will provide the submissions to the Court at least three days in advance of the hearing. "Skolrood J."