R.B. v. L.M.L.

2014 BCSC 134 R.B. v. L.M.L. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.B. v. L.M.L., 2014 BCSC 134 Date: 20140128 Docket: 10-1322 Registry: Victoria Between: R.B. Claimant And: L.M.L. Respondent Before: The Honourable Mr. Justice Macaulay Reasons for Judgment (In Chambers) Counsel for the Claimant: B.C. McCutcheon Appearing on her own behalf: L.M.L. Place and Date of Hearing: Victoria, B.C. September 26, 2013; and December 6, 2013 Place and Date of Judgment: Victoria, B.C. January 28, 2014 [1] The parties are the parents of three children: a boy, D, age 14; and two girls, M, now age 12, and C, now age 9. The parties divorced in March 2011 (the "2011 order"). [2] By consent, the 2011 order also dealt extensively with the living and financial arrangements for the children. Paragraph 1 of the order provides for joint custody and joint guardianship of the children with their residence alternating weekly between the parties, "unless otherwise agreed by the parties in writing or otherwise ordered by the Court." The order specifies that the change-over day is Friday at 9:00 a.m. The order also requires the claimant to pay monthly child support of $1,820. [3] The claimant now seeks to vary the 2011 order, as follows: 1. Deleting the references in paragraph 1 to the residency of the children; 2. Continuing alternating weekly residency for the youngest child, C, with change-over to occur after school on school days and at 4:00 p.m. on non-school days rather than on Friday morning; 3. Continuing alternating weekly residency for M, with the change-over day and time to be flexible based on M's wishes; 4. Primary residence of D to be with the claimant; and 5. The respondent to have reasonable access to D. The claimant goes on to seek detailed orders respecting the financial implications of what he says have been the actual residencies of the children since the 2011 order. According to him, the financial implications include a recalculation of the amount of child support that he should be responsible for. Another implication, according to him, relates to which parent is entitled to claim the eligible dependent tax credit and the child tax credit for each child since 2011. [4] To the extent the evidence confirms that there have been actual changes in the residencies of the two older children since the 2011 order, there is no evidence that the court ordered any of those changes or that the parties ever agreed to them in writing. This raises a question whether the claimant is entitled to now raise such changes to seek, in effect, a retroactive variation of the 2011 order. In other words, there is a live issue whether the claimant has established a material change of circumstances arising out of the unsanctioned changes. Because the 2011 order expressly contemplated, and provided, mechanisms, including court application, for addressing future changes in residency, the application, insofar as it speaks to the future, does not raise the same question. [5] For the claimant, much of the hearing focused on his detailed analysis of the implications of actual changes in residency that he says reflect decisions that the two eldest children have made, either on their own or in consultation with him. The claimant deposed in an affidavit, sworn March 22, 2012, that since about November 2010, a time that obviously predates the 2011 order, D and M have chosen to spend more than half their time at his house. Further, according to the claimant, since September 2011, the two children have consistently spent at least 10 days out of every 14 at his home. According to the claimant's own tracking, D and M were spending, on average, 70 to 80 percent of their time with him. The claimant also deposed that the respondent "has continually refused to change the 2011 order to reflect the current parenting schedule." [6] In another affidavit sworn June 21, 2013, in support of the present application, the claimant deposed that, in March 2012, he filed an application to vary the parenting schedule and child support payable. He later adjourned the application generally and never proceeded with it. [7] The claimant further deposed that, from September 2011 to March 2012, D generally stayed with the respondent every second weekend and "the remainder of the time" with the claimant. According to the claimant, in January 2013, M "chose to return to dividing her time more equally" between her parents. [8] Finally, in a further affidavit sworn September 17, 2013, the claimant deposed that D "continues to reside primarily with me and has done so for over two years now." He also reiterated that, commencing in January 2013, M returned to "an approximately week on, week off schedule." [9] The respondent believes that the claimant has alienated the two older children - in particular, their son D - against her. It is apparent from the respondent's affidavit that she never agreed to any change in the children's residency, although she does not appear to contest that the actual changes in primary residence occurred as the claimant outlined. [10] The above recital suffices for me to address the question of whether the claimant is entitled to raise the changes in residency to seek a retroactive, rather than prospective, variation of the 2011 order. Accordingly, it is not necessary that I address the exhaustive evidence that the parties put forward to justify their positions on the merits. None of that history is relevant to my conclusion on this legal point. [11] According to the claimant, the material change of circumstances justifying a variation of the residency provisions of the order is two-fold: D has primarily resided with the claimant since September 2011 and M primarily resided with the claimant from September 2011 to December 2012. [12] In my view, the claimant is not entitled to seek a retroactive variation because he failed to demonstrate a material change in circumstances. He is, however, entitled, under the terms of the 2011 order, to seek a prospective variation respecting D without having to first establish a material change in circumstances. [13] Section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), permits me to vary a custody order, prospectively or retroactively, but before doing so, I must be satisfied that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order (s. 17(5)). [14] The leading authority on material changes of circumstances is Willick v. Willick, [1994] 3 S.C.R. 670. A material change is one that, if known at the time of the order, would likely have resulted in different terms in the order. If the change was anticipated at the time, it cannot be relied on as the basis for a variation. The onus to demonstrate a material change is on the applicant, in this case, the claimant. [15] Poulter v. Poulter, 2005 BCCA 227, at para. 11, breaks down the above analysis into four steps that I summarize as follows: 1. The changes must be such that they were not known to the parties or the judge at the time when the first order was made; 2. The changes must be such that they could not reasonably have been in the contemplation of the parties or the judge; 3. If the changes had been known, that would have resulted in a different order than the one that the court made; and 4. The difference in the order would have been material and taken into account the change in that regard. The claimant has not met the onus on him to satisfy these tests. [16] The 2011 order was by consent. Both parties and the judge obviously contemplated that the future residency of the children would be fluid. The parties specifically agreed to the provision, "unless otherwise agreed by the parties in writing or otherwise ordered by the Court." Having failed to secure the written consent of the respondent, the claimant waited to proceed with an application for a court order until 2013. [17] The provision in the 2011 order was intended to facilitate a fair and reasonable way of ensuring that the future best interests of the children could be dealt with, either by written agreement of the parties or by court order. This case did, and continues to, involve a high level of conflict between the parties. A review of the evidence demonstrates that their communications, particularly those of the claimant, are often crude and disrespectful. It is likely that the requirement for written consent in the order was intended to discourage such bullying conduct. [18] The changes to the residency of D and M that the claimant relies on were either known or anticipated at the time of the 2011 order. The 2011 order provided an adequate mechanism for dealing with them and it is unlikely that the court would have provided a materially different one. The applications to retroactively vary the order to reflect the living arrangements for D and M are dismissed. [19] I also decline to amend the order by deleting the requirement for written consent or court order in the future. The 2011 order adequately protects the interests of both parents. It provides a complete and fair mechanism to deal with any disagreement between the parties. Having reviewed the history since the making of the order, I am firmly convinced that the provision is as necessary now as it was then. [20] There seems to be little doubt that D now chooses, for whatever reason, to live with his father. The provision in paragraph 1 of the 2011 order permits the claimant to apply for a prospective order respecting residency without first establishing a material change in circumstances. [21] D is now age 14. I see little point in attempting to impose a continuing shared residency regime on him if he does not accept that is in his best interests. Accordingly, I grant the application that D's primary residence be with the claimant. The respondent shall have reasonable and generous access. As M has now reverted to alternating weeks with each party as set out in the 2011 order, there is no need to make any further order respecting her. [22] I turn next to the issue of change-over times for M and C. I accept, on reviewing the claimant's evidence, that there have been practical problems associated with the change-over times. According to the claimant, change-overs at 9:00 a.m. on Fridays do not work well during holiday periods. The claimant typically registers the children in week-long camps during the summer. The change-over time results in the children losing the last day of camp activity and, as a result, the claimant seeks to delay the change-over time to 4:00 p.m. on Fridays. On school days, M already changes over after school. [23] The respondent apparently does not agree that the change-over time has been problematic but did not directly respond to the claimant's evidence on this point. [24] On balance, I agree that the best practical resolution is as the claimant outlined in his application. Accordingly, the 2011 order is varied to provide for the change-over that the claimant seeks. [25] This leaves the financial matters respecting which the claimant seeks various orders. As with the residency issue, however, there has not been any material change of circumstances since the 2011 order. The consent order anticipated that there would be future changes in the respective incomes of the parties and provided a mechanism, consistent with the provisions in the Federal Child Support Guidelines, SOR197-175 (the "Guidelines"), for adjusting child support on an annual basis. [26] In this regard, the 2011 order, based on the claimant's Guidelines income of $124,031 and the respondent's Guidelines income of $19,032, required the claimant to pay $1,820 per month in child support. [27] The following provisions in the 2011 order addressed future changes: 13. Child support will be reviewed annually and adjusted in accordance with the Child Support Guidelines. 14. Each party will provide to the other, a full copy of his or her income tax returns and on or before May 15th each year commencing in 2012, and a copy of his or her Notice of Assessment within 14 days of receipt; 15. Child support will be adjusted effective June 1st of each year commencing June 1st, 2012, in accordance with the parties' previous year's income tax returns. Elsewhere in the 2011 order, there is a similar provision to annually adjust the parties' proportionate sharing of special or extraordinary expenses. Section 21 of the order entitles the respondent to retain all child tax benefits received by her to the date of the order and prohibits the claimant applying to rotate such benefits. [28] I observe, parenthetically, that the 2011 order also represents a complete resolution of all other claims for ancillary relief, including spousal support and property division. Overall, the order represents a comprehensive settlement of all claims as at the time of the divorce. [29] With that background in mind, I turn to the applications to vary child support on a retroactive and prospective basis. Section 17(4) of the Divorce Act applies: 17(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order Section 14(a) of the Guidelines provides that any change in circumstances that would result in a different child support order is a sufficient change of circumstances for the purposes of a variation. The provisions in the 2011 order that I have referred to effectively incorporate the changes to the table amount of child support to be paid in future years that may flow from any changes in the incomes of the parties and are sufficient for any past adjustments necessitated by changes in income. [30] The claimant seeks a variation of child support payable to the respondent retroactive to January 1, 2012. He relies on Zubek v. Nizol, 2011 BCSC 776, at para. 42, in that regard. Zubek is authority for the proposition that the presumptive date for a retroactive variation to a child support order is the date of effective notice to the payor which may be when the recipient first "broaches the subject." [31] Here, the claimant says that he provided effective notice to the respondent by letter to her counsel in January 2012 and therefore submits that the order should be retroactive to January 1, 2012. In his letter, the claimant stated, in part: I am writing to advise you of the change in parenting arrangements for [D] and [M] that has taken place. When calculated from August of 2011 to current, [D] and [M] have been living with me 72% of the time. Based on these changes I believe the new child support amount paid to Ms. [L] should be as follows in calculation 2 ($291): Later in the letter, he states that the change in parenting arrangements "should really not be a surprise to Ms. [L]" as the arrangement extended back before August 2011. [32] The circumstances in Zubek differed from the present in that the recipient was seeking a greater payment from the payor as opposed to the payor seeking to pay less to the recipient, as is the case here. Does that make any difference? In my view, it does. [33] In Zubek, the judge relied on D.B.S. v. S.R.G., T.A.R. v. L.J.W.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, at paras. 124-125, in reaching his decision. D.B.S. also involved the recipient seeking a greater contribution from the payor. At the same time, the court considered three other cases, each also involving the recipient of child support seeking a retroactive variation order. [34] In D.B.S., the majority considered the particular circumstances to be an important consideration in making a retroactive order. At paras. 124-125: 124. The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed that his/her child's support entitlement was being met. 125. The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing. In my view, that reasoning does not assist the claimant here. [35] There was no wrongdoing on the part of the recipient here; the respondent did not have material information that she was obligated to disclose so that the claimant would know the basis for his application. Rather, at all times, the claimant knew the basis for but delayed his application. [36] I also observe that the dismissal of the applications to retroactively change the residency of D and M removes much of the underpinning for the claimant's companion application to retroactively decrease the child support order. I dismiss the retroactive aspect of the claimant's application to adjust the child support order but grant the application for a prospective order to reflect the change from a full to partial shared custody arrangement that I have now ordered. [37] Section 9 of the Guidelines addresses shared custody and must still apply here as the parties share custody of M and C. The section lists the factors that the court must take into account in determining the amount of child support payable where a spouse exercises a right of access, or has physical custody of a child, for not less than 40 per cent of the time over the course of a year. The factors include the amounts set out in the tables for each of the spouses (s. 9(a)), the increased cost of shared custody arrangements (s. 9(b)) and the conditions, means, needs and circumstances of each spouse and any child for whom support is sought (s. 9(c)). [38] The original order was based on the shared custody of all three children. Calculating the parties' respective child support obligations for three children according to the tables in 2011, and setting one off against the other, resulted, at the time, in $1,858 payable by the claimant. This amount differs, although not significantly, from the payment of $1,821 per month that the 2011 order required. [39] Taking the difference into account, and keeping in mind that the order also addressed other issues such as spousal support and property division, it appears that the parties and the court took into account the additional factors under s. 9(b) and (c) at the time of the 2011 order. [40] The claimant says that the methodology for calculating child support changes as a result of D living primarily with the claimant. I agree that, going forward, the Guidelines require a change in the method of calculating child support. [41] As a result of the change in D's primary residence, the claimant is no longer obligated to pay child support for D. The parties continue, however, to share custody of the other two children. In the result, the claimant is obligated to pay child support for only two of the children and the respondent is obligated to pay for all three. [42] As a result, s. 8 of the Guidelines also applies. It reads: 8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. The section assists in determining the table amounts for each spouse as required by s. 9(a). In Contino v. Leonelli-Contino, 2005 SCC 63, at paras. 41 and 49, the majority approved the set-off approach under s. 8 as a "useful starting point" in considering the amounts set out in the applicable tables for each spouse under s. 9(a). [43] The claimant says that the combination of shared custody and principal residence is a "hybrid" parenting situation and that, as a result, I should apply the "economies of scale" approach in determining child support. This approach results in setting off the different orders that the circumstances engender. [44] The court has endorsed the "economies of scale" approach in similar circumstances in the past. In E.G.P. v. S.L.P., 2009 BCSC 1221, the court referred, with approval, to Sadkowski v. Harrison-Sadkowski, 2008 ONCJ 115, at paras. 19‑23: 19. In Sadkowski, the parents had agreed that they would share custody of the two girls, 19 and 18 years old, on an alternating-week rotation, and that the mother would pay $185 per month in child support. The elder girl then chose to live permanently with her father. The father argued that there had been a material change in circumstances in that he had maintained the elder girl's primary residence since 2006. The issue was the appropriate method to calculate support. 20. Mr. Sadkowski argued that he should receive the full amount of child support, based on the CSG, for the elder daughter. Therefore, the mother should be required to pay him in accordance with the CSG for one child and based on the mother's income. For the younger daughter, who split her time equally with both parents, the calculations would be for one child and then a set-off between the respective parents' incomes. 21. Ms. Harrison-Sadkowski argued that the support should be based on setting off two children in the father's care against one child in her care. 22. Zisman J. reviewed what she termed the father's proposed "two-stage approach" and the mother's suggested "economies of scale approach" and concluded that the approach contended for by the mother was to be preferred. 23. I have concluded that I should employ a similar approach in this case. There are arguments that favour each of the plaintiff and the defendant, under the rubric of the factors set out for shared custody in s. 9(c) of the CSG: "the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought." However, the overall objectives of the CSG are "to establish fair levels of support for children from both parents upon marriage breakdown, in a predictable and consistent manner": Francis v. Baker, [1999] 3 S.C.R. 250, 50 R.F.L. (4th) 228 at para. 39. [45] Other cases adopting the "economies of scale" approach include Hilton v. Hilton, 2011 BCSC 206 and Johal v. Johal, 2013 BCSC 1592. In Johal, for example, one child lived with the respondent and three children were shared equally. [46] I observe that all of these decisions reject the more rigid "two-stage" or "two-step" approach as inadequate. The two-step approach is discussed in Sadkowski at para. 11: [T]he first step is to calculate the support for the child(ren) living full time with one parent as a sole custody calculation. The second step is to calculate the support for the child(ren) living in a shared custody situation. The number of children living in the shared arrangement will be the same number of children used for the calculation (for example, if two children share their time equally with both parents, then the two-children table is used for the calculation). The amount that each parent would owe the other parent if they have full custody of the shared custody child(ren) will then be set-off against one another. The court would then consider the increased cost of shared custody and the conditions, means, needs and other circumstances of the parties and the children. Finally, the difference from this calculation is then added to the sole custody calculation from step one to produce the total amount owing to the parent with full custody. The "economies of scale" approach differs. It recognizes the economies of having more than one child in a residence but retains the flexibility to examine the actual financial circumstances of both parties and all of the children (Sadkowski at para. 27). It also permits consideration of the factors set out in s. 9(b) and (c). [47] The starting point for the "economies of scale" approach, according to the claimant, is that he should pay the table amount for two children ($1,849) based on his current Guidelines income of $129,096, less the respondent's table amount for three children ($809). The claimant contends that I should impute an income of $39,955 to the respondent for that purpose. This would result in a set-off amount of $1,040. [48] Even if I were to impute income as the claimant suggests, a simple set-off is not presumptive but only a starting point. This is because, in any given case, it may not adequately take into account the factors in s. 9(b) and (c). [49] As pointed out in Johal, at para. 37, s. 9(b) and (c) afford the court an additional discretion to order an amount that differs from the set-off. The evidence and submissions of the parties did not fully address these considerations, although there is some applicable evidence in the respective financial statements of the parties. I will return to this after I determine the respondent's current Guidelines income and the appropriate set-off amount. [50] As to imputing income, until January 15, 2013, the respondent was employed as a hydro meter reader. In 2012, she earned $39,955 in that position. That employment ended due to lack of continuing work. The respondent deposed that she is hopeful that she will be rehired as BC Hydro has created a new position offering field support for smart meters for which she is qualified. [51] In the interim, the respondent has enrolled in a one-year business certificate program at Camosun College. Successful completion will permit her to enter a further academic program that she anticipates will help her become self-sufficient. In the result, the respondent's annual income for 2013 is limited to employment insurance benefits and minimal other income totalling $17,483. [52] The claimant stated in his most recent affidavit that he believes the respondent could find alternate employment paying similar to what she earned in 2012. He says that is because she earned about $35,000 per year in the retail field more than ten years ago. At that time, they were living in a different province. [53] Section 19(1)(a) of the Guidelines permits the imputing of income where the payor is under-employed or unemployed, subject to certain exceptions, including where the under-employment or unemployment is required by the reasonable educational needs of the payor. The claimant relied on Hanson v. Hanson, [1999] B.C.J. No. 2532 (S.C.), in support of his position, but that case did not involve a payor pursuing an educational plan. In essence, the claimant contends that it is unreasonable for the respondent to pursue her educational plan because she has earned a reasonable income elsewhere in the past without additional educational qualifications. [54] The claimant also relied on Formenti v. Formenti, 2000 BCSC 730, but in that case it appears that the payor, a trained dental hygienist, capable of earning about $20,000 per year, chose to change occupation and established a driving school business that had not generated any net income, instead of carrying on as a hygienist or dental assistant. The circumstances in the present case are quite different. [55] I am satisfied that the respondent's plan is reasonable. Her educational plan is relatively short-term, offers a reasonable skill upgrade, and also takes into account that she might obtain another position at BC Hydro. All of that is in the best interests of the respondent and, ultimately, the children. [56] I am not persuaded that I should impute an income to the respondent that is greater than her actual earnings. I find that the respondent's current Guidelines income is $17,480. With that in mind, I turn back to the set-off approach and its application here. [57] Using the set-off approach as the first step in the present circumstances requires calculating the claimant's obligation to pay the table amount for two children ($1,849) based on his current Guidelines income of $129,096, less the respondent's table amount for three children ($330) based on her current Guidelines income of $17,480. This results in a set-off of $1,519. [58] Section 9(b) requires me to also consider any increased costs of shared custody arrangements. In Contino, the majority also stated, at para. 41: The set-off amount must therefore be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. As mentioned by numerous commentators, this is a problem in many cases where there is a great discrepancy in the incomes of the parents. It is also a problem in cases where one parent actually incurs a higher share of the costs than the other (taking responsibility for clothing or activities for instance). As a result, s. 9(b) "recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody" (emphasis in original) and, as a result, all of the payor parent's costs should be considered (para. 52). Generally, the court is required to examine the budgets and expenditures of both parents in addressing the needs of the children in order to determine whether the global costs have increased. [59] Neither party directly addressed any changes to their costs associated with shared custody under the 2011 order or as a result of the change in D's residency. Both filed financial statements in July 2013. Both parties own a house and pay mortgages. It does not appear that there are any housing costs associated with D's change in primary residence as the claimant deposed that it occurred, for the most part, before the 2011 order. The claimant's overall monthly expenses are $11,700, including a mortgage expense of $1,688. The respondent's monthly expenses are $4,424, including a mortgage expense of $1,110. [60] As to variable ongoing expenses relating to the children, the claimant spends $950 per month (about 8 per cent of his total expenses) and the respondent spends $308 per month (about 7 per cent of her total expenses). Given the disparity of incomes, however, the respondent contributes a disproportionate percentage of her income to the expenses relating to the children. It is not possible, on the limited evidence, to determine whether the global costs have in any way increased as a result of the change in D's primary residence. [61] Section 9(c) relates to the conditions, means, needs and other circumstances of each spouse and of any child. As pointed out in Contino, at para. 54, not every dollar that a payor expends in the circumstances results in a dollar saved by the recipient and, as a result, in cases where there is a significant disparity in income between the parents, a reduction in basic child support may undermine the ability of the lower-income parent to make adequate provision for the child and also exacerbate the differences in standard of living between the two homes. Accordingly, also at para. 54: it is possible to presume, in the absence of evidence to the contrary, that the recipient parent's fixed costs have remained unchanged and that his or her variable costs have been reduced only modestly by the increased access. Thus, when no evidence is adduced, the court should recognize the status quo regarding the recipient parent. It is appropriate to consider the ratio of income between the parties at this juncture in terms of their respective ability to absorb the total variable expenses relating to the children (para. 77). [62] By my calculation, the income ratio between the parties is 88:12. If the claimant were to pay 88 per cent of the total monthly variable child-related expenses of about $1,260, he would pay $1,109, rather than his actual expenditure of $950. [63] A comparison of the respective net worths of the parties might ordinarily be helpful but is not here. The respondent deposed to a net worth of about $588,000 and the claimant deposed that his net worth is about $508,000. In each case, most of the net worth stems from home and pension values. [64] The difficulty is that the claimant lives with a partner in respect of whom he claims to owe an unsecured debt of $137,500. I am unable to find any evidence with respect to this debt and am not willing to assume that it legitimately reduces the claimant's net worth. [65] I also take into account that, as of July 2013, the Family Maintenance Enforcement Program records show the claimant slightly in arrears at about $425. This arises from the claimant's unilateral decision to change the amounts payable under the 2011 order rather than first proceeding with this application. [66] The claimant says that if I am inclined to order payment of more than the set-off amount, I should take one further factor into account. According to the claimant, the respondent received all eligible dependent credits and child tax credits for 2012, even though two of the children were living with him. He contends that some of the credits were properly available to him in the circumstances but the respondent refused to agree to share the benefits with him and that, as a result, he paid more income tax than necessary. The respondent says, based on information received from the Canada Revenue Agency, that the claimant would not have been entitled to the credits as they are not available to a person living in a common-law relationship, as he was at the material time. [67] The 2011 order entitled the respondent to retain all child tax benefits "received by her to date" and prohibited the claimant from applying "to rotate such benefits." The respondent interprets the order as entitling her to continue claiming the credits. [68] In my view, the wording of the parties' agreement and the 2011 order is somewhat ambivalent. It does not clearly state whether the prohibition applies only to the respondent's past claims for credits or prospectively. It also does not define benefits as including tax credits, although that interpretation may be reasonable. I am not persuaded that it is necessary for me to determine these questions here. [69] If the claimant is lawfully entitled to claim any of the credits, that is between him and the Canada Revenue Agency. If, on the other hand, the respondent's agreement is somehow required, it is clear that she has not agreed. [70] In all the circumstances, I am persuaded that the set-off approach yields the appropriate child support order in the circumstances. Taking all of the above into account, including the claimant's obligation to pay the table amount for two children ($1,849) based on his current Guidelines income of $129,096, less the respondent's table amount for three children ($330) based on her current Guidelines income of $17,480, the claimant shall pay, commencing February 1, 2014, and continuing on the 1st day of each month thereafter, child support of $1,500. There will also be a corresponding change to the parties' contributions to special or extraordinary expenses to reflect the 88:12 ratio set out above. [71] The reduced child support order will impact the respondent's means and circumstances. Any retroactive order would create a credit balance in favour of the claimant and likely result in the respondent not receiving any child support for a period of time. That, in turn, would have a negative impact on the children. For this reason, the revised child support order shall only be effective February 1, 2014, and continue on the first day of each month thereafter. [72] Costs normally follow the event and are awarded to the successful party on an application. Success is divided here. On the one hand, the claimant succeeded on some applications but was unsuccessful on others. On balance, the latter applications were the more time-consuming. Further, the main focus of the applications was to undo the terms of the 2011 order that the claimant consented to. In the circumstances, I would decline to order costs in his favour. On the other hand, the respondent did not successfully resist all applications. I would also decline to order costs in her favour. [73] In the event of any formal offer to settle under the Supreme Court Family Rules, I grant leave to speak to costs before entry of the final order. Otherwise, both parties shall pay their own costs. [74] Except as to costs, I summarize my orders as follows: 1. Replace paragraph 1 of the order made March 7, 2011 (the "2011 order"), as follows: 1.1 The parties will have joint custody and guardianship of the children of the marriage. 1.2 Unless otherwise agreed by the parties or otherwise ordered by the Court: (a) The primary residence of D shall be with the Claimant. (b) The residence of M and C shall alternate weekly between the parties. 1.3 The Respondent will have reasonable and generous access to D. 2. Replace paragraph 2 of the 2011 order as follows: 2.1 The change-over day for M and C will be on Fridays after school on school days or at 4:00 p.m. on non-school days. 3. The court finds that the Claimant's Guidelines income is $129,096 and the Respondent's Guidelines income is $17,480. 4. Replace paragraph 12 of the 2011 order as follows: 12. The Claimant will pay to the Respondent child support in the amount of $1,500 per month commencing February 1st, 2014, and continuing on the first day of each month thereafter for so long as the children are children of the marriage as defined by the Divorce Act. 5. Replace the proportionate sharing of special or extraordinary expenses in paragraph 17 of the order, as follows: (a) Claimant's proportion is increased from 77.7% to 88%. (b) Respondent's proportion is reduced from 22.3% to 12%. 6. All other applications are dismissed. "M.D. Macaulay, J." The Honourable Mr. Justice Macaulay