M.K. v. J.K.

2016 BCSC 311 M.K. v. J.K.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.K. v. J.K., 2016 BCSC 311 Date: 20160224 Docket: E132584 Registry: Vancouver Between: M.F. also known as M.K. Claimant And J.K. Respondent Corrected Judgment: The front page of the Judgment was corrected on March 3, 2016 Before: The Honourable Madam Justice Young Reasons for Judgment Counsel for Claimant: L. Kushner Respondent Acting on Own Behalf: J. K. Place and Date of Hearing: Vancouver, B.C. January 13, 2016 Place and Date of Judgment: Vancouver, B.C. February 24, 2016 [1] These parties met in Australia, married in Canada and have two children aged seven and nine. They separated when the children were very young and for the first year of their separation the respondent took the children to live Australia with the claimant's consent and parented them there. In 2012 the children returned to Canada with the claimant and since then the respondent has made his best efforts to exercise parenting time both in Canada and by taking the children to Australia for extended visits in the summer and at Christmas. [2] In the first few years the respondent sent what money he could to support the children and paid a mortgage on a home owned by the parties. It sold in 2013. [3] His access costs are very high and he earns only $48,000 a year. [4] The claimant is a mathematics PhD student and only declares income of $10,000 which is the

grant portion of her student loan financing yet she has enrolled the children in activities that cost more than her reported annual income. She is in a new marriage and her new partner, who is also a PhD student, declares income of $2,500. [5] The claimant expects the respondent to pay child support, 100% of his access costs and 75% of the expensive special and extraordinary expense. [6] These numbers simply don't add up and hence there is conflict over money. [7] The parties have resolved most of the parenting time dispute which needs a little tweaking and they have asked me to set some guidelines over what takes priority; the respondent's time with his daughters or their dance recitals. [8] The claimant has asked that I appoint a parenting co‑ordinator to assist the parties with ongoing scheduling of parenting time. There is no formal application for the appointment but both parties asked me to address it in my decision. [9] The parties have agreed to an amount for ongoing basic child support. [10] The claimant says there is in excess of $16,000 in arrears in child support but she has included what she says are legitimate Section 7 expenses. The Section 7 expenses are very much in issue. [11] The claimant says the respondent has filed false and misleading financial information and should be fined $5,000.

BACKGROUND FACTS [12] The claimant is 29 years old and is enrolled as PhD student in the field of mathematics at the University of British Columbia in Vancouver. She earns $10,000 per annum from grants and received about $30,000 in student loans. [13] The respondent is 41 years old and is a tradesperson carpet installer in Australia and earns $48,000 a year. He has worked as a stunt person in the movie industry, has taught jiu jitsu and paddle boarding but he says that these ventures have not been very remunerative in the past few years. The claimant thinks he is not being truthful. [14] The claimant and respondent were married on July 3, 2008 in Canmore, Alberta. [15] The children are M.F.K. born in 2005 in Banff, Alberta and N.K. born in 2008 also in Banff, Alberta (the "Children"). [16] The Children reside primarily with the claimant and her new husband in Vancouver B.C. The respondent lives in Australia. [17] There is a dispute about the date of separation. The claimant says that it was in April 2010. This is the date that is documented in the homemade separation agreement and in the consent order the parties entered into. The respondent says that they were still together until April 2011 and that the date of separation is when he returned to Australia with the Children. [18] For my purposes nothing rests on this date of separation. I will set out some of the parenting time

history which shows that both parties have been active parents since separation. [19] The respondent says that in 2010 the Children and the claimant relocated to Kelowna so that the claimant could further her studies and that he commuted every weekend from Canmore where he was working. [20] He says that on February 4, 2011 the claimant said she was having a breakdown and unable to care for the Children so the respondent took the Children to Canmore, Alberta and lived with the mother's parents. When it appeared that the marriage was over, he told the claimant that he wished to return to Australia to live. [21] The respondent says that with the claimant's consent he took the Children to live with him in Australia, departing April 20, 2011. Prior to his departure the claimant insisted that he sign a separation agreement prepared by her. He said he did so in order to be allowed to leave Canada with the Children. That separation agreement stated that the parties separated on April 1, 2010. [22] The claimant says the Children went to live in Australia temporarily but the agreement was that the Children would return to Canada once she secured financial means to support the Children. [23] The respondent denies this and says that he and the children went to live in Australia. He supported the Children in Australia. In February 2012 the claimant allegedly requested that the respondent

return to Canada with the children to attempt reconciliation. [24] The claimant says that she obtained funding and the Children returned to live with her in Canada on May 2, 2012. She does not agree that there was an attempt at reconciliation. [25] The respondent remained living in Australia and exercised parenting time in August 2012 and December 2012 by taking the Children back to Australia. [26] The respondent had the parenting time in August 2013 in Australia. While he had the Children in his care, he attempted to reach a parenting agreement with the claimant and when that did not go well, he refused to return them. This over‑holding apparently caused a great deal of stress for the Children, for which they have participated in counselling. [27] The claimant brought an application for their return. That is the application heard by Watchuk J. on August 26, 2013 which I will refer to below. The respondent did return the Children before the hearing and was present at the hearing. [28] The Children moved from Kelowna to Vancouver with the claimant in August 2013 so that she could pursue graduate studies in mathematics at UBC and live with her new partner. [29] The respondent did exercise his parenting time with the Children in Australia from December 12, 2014 to January 13, 2015. There were disagreements over the departure date. The claimant had enrolled the Children in various

activities including a Christmas recital with the choir and the strings program. The respondent was attempting to schedule flights at a time where he would receive significant savings. Scheduling flights right in the middle of the Christmas season results in much higher cost for the respondent. The Children don't have the activities scheduled over the Christmas holidays but often do have recitals and concerts at the end of school before the Christmas holidays.

PROCEDURAL HISTORY [30] Before I can determine what arrears in child support are owing, I will need to review the past agreements and proceedings: [31] On August 26, 2013, an application was heard by Watchuk J. in Kelowna. The claimant was represented and the respondent was self‑represented. Watchuk J. made an order that the parties were both guardians of the Children and that they shared parenting responsibilities for the Children. An order was made that the respondent have parenting time from December 4, 2013 to January 20, 2014 and from June 27, 2014 to August 26, 2014. A further order was made that during the respondent's parenting time that the Children were not to be removed from Australia without the claimant's written consent and during the claimant's parenting time, the Children were not to be removed from Canada without the respondent's written consent. Both parties were ordered to complete financial statements and the file was transferred to Vancouver for all purposes. No child support was ordered. [32] On July 4, 2014 the parties attended a Judicial Case Conference in front of Matsuhara J. and consented to the following order which I have taken from the court's records as neither party had a copy of this order: 1 JCC Complete. Parties are released from the JCC Program. 2 The August 26th, 2013 Order of Madam Justice Watchuk is varied to state that Mr. [K] will have

access to the Children from December 12th, 2014 to January 11th, 2015. 3 The parties will alternate Christmas and Spring Break access to the children each year. Dates and terms of the access are subject to change by consent of both parties. Consent must be provided in writing. Spring Break and Christmas access for the respondent will start one week prior to the school holiday and will end one week after the school holiday. 4 Ms. [F] will deliver the girls Australian citizenship papers to Mr. [K] within one week. 5 The issue of the children's Australian Passport Applications will be revisited by the parties in one year. 6 The parties agree to discuss in advance any proposed move of the children from their present residence in Vancouver. 7 INTERIM ORDER: Mr. [K] will be paying support to Ms. [F] in the amount of $600.00 per month starting July 2014. Support is payable each month WITHOUT PREDJUDICE [sic]. Support payments will be revisited in December 2014. 8 BY CONSENT: Mr. [K] waives his rights to parenting time with the children this summer. 9 Mr. [K] will return the children on July 14th, 2014 to Vancouver. The Children will be exchanged at Vancouver International Airport. [33] In September 2014 the parties executed a mutual agreement in the form of a consent order and sent it in for filing. The filing of the order was rejected for some technical reasons so it is not an order

of this court but it is a valid agreement between the parties. They each seek some changes to the consent order but I think it is important to review it as it sheds some light on the current dispute. I will refer to it as the "September 2014 Consent Order". Before the consent corollary relief, there is an uncontested order for divorce. I am paraphrasing the September 2014 Consent Order: [34] The following is all by consent: 1. The parties continue to share guardianship and parenting responsibilities.

2. The claimant is to have day-to-day custody and control of the Children.

3. The parties will be equally entitled to third-party information regarding the Children.

4. The respondent when in Canada will have reasonable parenting time upon reasonable notice.

5. In addition, the respondent was to have parenting time with the children from December 12, 2014 to January 11, 2015 and thereafter the claimant and respondent shall alternate Christmas and spring breaks with the Children (allowing the respondent four weeks of uninterrupted parenting time) 6. The alternating is to begin with the claimant having parenting time with the Children during the spring break of 2015 and Christmas 2015.

7. The respondent shall have additional parenting time for seven weeks during the Children's summer school holidays.

8. The start date and end date for the respondent's parenting time may be varied by consent of the claimant and by written agreement between them based on the Children's schedules, school commitments and needs as well as availability of affordable flights.

9. The respondent shall make arrangements to have the Children reside at his mother's residence during his parenting time with them in Australia. Should he change this plan he is to notify the claimant and provide an address and details of his new living arrangements.

10. The claimant and respondent are to provide the other with written notice of any plans to travel with the Children of the marriage outside Canada.

11. The respondent shall provide the claimant with an itinerary, contact information and telephone access to the children should he decide to take them on trips away from his mother's residence while exercising his parenting time in Australia.

12. The claimant will notify and discuss with the respondent any plans she may have to move the Children from Vancouver, British Columbia.

13. Pursuant to the Federal Child Support Guidelines, as the respondent's annual guideline income is $48,000 the respondent shall pay the claimant $800 per month by way of basic child support for the ongoing support and maintenance of the children of the marriage. Payments shall be made on first of each month and shall continue each and every month thereafter unless varied by written agreement or further court order, except that for each month that the Children are in the care of the respondent in Australia the amount payable shall be $400 per month.

14. Child support will be reviewed by the claimant and the respondent no later than September 2015 and will be reviewed by them annually thereafter.

15. The claimant and respondent shall exchange copies of income tax returns and notices of assessment or reassessment no later than the last day of November each year.

16. The respondent will cover the costs associated with the exercise of his parenting time with the children of the marriage either in Canada or Australia or elsewhere.

17. The respondent shall pay the costs of ongoing dental services for the children by way of his contribution toward their special expenses given the extraordinary expense associated with his exercising parenting time with them; this represents a reasonable and mutually agreed upon departure from the normal application of the Federal Child Support Guidelines.

18. There shall be no spousal support payable by the claimant or the respondent to the other either now or in future.

19. The claimant and respondent acknowledge owing the claimant's parents approximately the amount of $21,000. This amount will be paid back at the rate of $1000 per month using the proceeds from third party payments available to them.

20. The respondent will continue to hold the children's Australian citizenship documents and will not apply for Australian passports on their behalf until after July 4, 2015. The claimant will hold the children's Canadian passports as well as their Australian passports once issued.

21. The claimant and the respondent have divided all other matrimonial assets and liabilities as well as their personal and household possessions to their mutual satisfaction.

22. The claimant and respondent shall retain the right to apply against the other's Canada Pension Plan Credits accruing from the date of the marriage, July 3, 2008 through to the date of separation, April 1, 2010.

23. This final order replaces the interim orders of August 26, 2013 and July 4, 2014. [35] Both parties signed this order. Its filing was rejected because it misstated the date of separation and the child support affidavit did not address arrears in child support. Rather than address these two minor issues and enter this final order the claimant filed a new notice of application which is the one before me today. [36] On May 29, 2015 the claimant filed a notice of application seeking orders with respect to exercising parenting time, ongoing child maintenance, exchange of income tax returns and for an order pursuant to s. 213 of the Family Law Act, S.B.C. 2011, c. 25 imposing a penalty of $5,000 on the respondent for providing incomplete false or misleading financial information and for an order for divorce and costs. This is the application before me today. [37] The May 29, 2015 the notice of application first came before Josephson J. on August 6, 2015. Josephson J. granted an order for divorce and a consent order that, based on a guideline income of $48,000, the respondent will continue to pay the claimant $800 per month in child maintenance for the maintenance of two children and for an order that the respondent produces one form F8 financial statement by no later than November 15, 2015. [38] Josephson J. also granted a consent order for parenting time over the Christmas

holidays for 2015. [39] The balance of relief set out in the May 29, 2015 notice of application was adjourned to December 14, 2015. [40] On December 14, 2015, the respondent had not yet sworn and filed his affidavits in response and so the application was further adjourned. january 13, 2016 hearing [41] I heard the application on January 13, 2016 but had not been given the binder in advance to review the affidavit material and therefore I reserved my decision until I had the opportunity to read the material in full. I have now done that. [42] On January 13, 2016 the respondent filed a notice of application which is basically a cross‑application to the May 29, 2015 notice of application. [43] Based on an agreement that the respondent's income is $48,000 per year, the parties consent to an order that the respondent will pay basic child‑support in the amount of $800 Canadian funds per month for the support of N.K. and M.F.K. commencing February 1, 2016 and continuing on the first day of each and every month thereafter. [44] The parties have also agreed to a parenting time schedule. [45] They will alternate Spring break and Christmas vacation parenting time each year so that in 2016, the claimant will have the Children with her for Spring break and Christmas and the respondent will have the Children for Spring break 2017 and Christmas 2017. [46] The respondent will continue to have parenting time with the Children during the summer school breaks each year for seven weeks during the children's 2016 summer school holidays. [47] The respondent will apply for and obtain Australian passports for the Children and the passport will travel with the Children.

ISSUES [48] What remains in issue is: 1. The calculation of arrears of child support; 2. Section 7 expenses; 3. Whether or not the Children's parenting time with the respondent should be given priority over activities and events scheduled by the claimant; 4. Although not included in the notices of application, the parties wish to speak to an order appointing a parenting coordinator to help with the ongoing parenting time negotiations; and 5. An order that the respondent be charged a penalty for providing misleading financial disclosure. arrears in child support [49] The claimant says that since the September 2014 consent order, the respondent is in arrears $16,908.01. She calculates this amount by saying that she had the Children 33 months in her care and the respondent had the Children three months in his care. This is a three year period so she is clearly going back prior to the September 2014 consent order. [50] The first time there was a written agreement that the respondent will pay the claimant child support was July 4, 2014 in Matsuhara J.'s order where the respondent agreed to pay $600 a month. In the September 2014 consent order he agreed to pay $800 when the Children were with the claimant and $400 a month when they were with him. [51] The starting date for calculation of arrears should be July 2014 when there was a clear agreement between the parties. Prior to that,

the respondent was sending money for the Children's support and to pay a mortgage on a jointly owned property. I cannot sort out how much of the money sent was for the Children nor do I intend to attempt that venture. I find that up until July 2014, the parties were content with their arrangement and after July 2014 there were court orders and the consent order setting out their obligations. [52] The September 2014 consent order is a comprehensive all-inclusive settlement of all issues. It is unfortunate that it was bounced for technical reasons but it still forms evidence of what the parties consented to at that time they made no reference to arrears of child support. [53] I find that there are no arrears of child support up to September 2014. [54] The respondent says the reason child support arrears is not included in the order was because the matter had long been settled between them. There was no reference to child support in the original separation certificate of 2011 or in the order made by Watchuck J. on August 26, 2013 or the interim order before Matsuhara J. on July 4, 2014. [55] Between July and August 2014, the respondent was to pay $600 a month for two months and between September 2014 and November 2015, a further $12,000 for basic child support for a total basic child support of $13,200. [56] The respondent's bank records show the following transfers into a bank account in Canada for the Children from which the claimant withdraws child support in Canadian funds: $825 August 2014 $975 September 2014 $875 October 2014 $1,038 November 2014 $1,219 December 2014 $1,399.79 March 2015 $1,000 May 2015 $930 June 2015 $935 July 2015 $1,270 August 2015 $938 October 2015 $935 November 2015 $12,339.79

TOTAL [57] Therefore the respondent is in arrears of basic child support in the amount of $860.21 [58] The respondent agreed to pay the cost of ongoing dental services for the Children. The claimant says that he had done this. I do not see evidence of any separate payment being made directly to an orthodontist, so I suspect that the payments were to include $135 for orthodontic work. [59] In the claimant's affidavit #4 she agrees that the respondent has paid the dental bills. She attaches as exhibits from pages 123 to 130, totally illegible copies of bills which are of no use to me whatsoever. I have no idea how much the respondent owes for dental costs. [60] In the claimant's exhibit Q on page 2, she says that the respondent owes $520 in dental bills as of November 17, 2014. [61] It appears to me that although it isn't said, the $135 for orthodontic costs started in December 2014 and continues every month. I don't know for how long. [62] I am assuming from the evidence before me, that the respondent owes $135 a month for orthodontics from the first time it was mentioned December 2014 to the present and that there was a further $520 in dental costs for 2014. That means he should have paid dental and orthodontic costs of $2,005 between December 2014 and November 2015. [63] Since my records go to November 2015, that is when I will fix arrears. I fix arrears in child support,

dental costs and 11 months of orthodontic costs at $2,865.21. I will not back date an order for other Section 7 expenses. They were never agreed to and were not ordered. [64] The respondent may have made additional payments since November 2015 or the Children may have incurred additional dental costs since November 2015 not captured in the affidavits. The parties will have to make those adjustment on their own. Section 7 expenses [65] I will start with a definition of what these expenses are. In Clarke v Clarke, 2014 BCSC 824 at paras. 47-53, Baird J. provided an excellent summary of what the phrase "special or extraordinary expense" in the Federal Child Support Guidelines ("Guidelines") means. He cited MacDonald v. Pink, 2011 NSSC 421 at para. 55; DMCT v LKS 2008 NSCA 61 at para 25; and McLaughlin v. McLaughlin (1998,) 167 DLR (4th) 39 (BCCA), [66] Starting with the Guidelines, for an expense to be special or extraordinary it must fit into a category listed under Section 7 of the Guidelines which says: (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling

provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. [67] However, even if the expense fits into one of the categories that does not necessarily mean that the court will order the sharing of that expense. The Guidelines say that the expense must be both necessary as defined in relation to the child's best interest and reasonable as measured against the combined financial means of the parents as well as the family's spending pattern prior to separation. [68] The basic table amounts of child support are designed to cover all the "ordinary" costs of raising a child: D.M.C.T. at para.

25. Food, shelter, clothing and other necessities are all ordinary, as are many educational, extracurricular and recreational expenses. [69] In addition if the expense is one listed under subsection (d) or (f) - educational programs or extracurricular activities - the party claiming the expense must prove that they are "extraordinary." [70] At paragraph 81, the B.C. Court of Appeal says in McLaughlin: In the result, I conclude that, in deciding whether an expense, or the totality of expenses claimed on behalf of children under s. 7(1)(f) are extraordinary, the court should take into consideration the combined income of the parties, as well as the nature and amount of the individual expense, the nature and number of the activities, any special needs or talents of the children, and the overall cost of the activities. This list is not intended to be exhaustive, as considerations may arise in other cases which may also be relevant. I note that in the only other decision of this Court dealing with s. 7(1)(f), Cochrane v. Zarins (1998), 36 R.F.L. (4th) 434, the Court concluded that a particular child's talents are a relevant factor in determining whether an expense for an extracurricular activity is extraordinary. [71] Section 7.1, recently added to the Guidelines, requires a proportionality inquiry, looking at the nature and number of activities, any special needs or talents of the child, the overall cost of the activities, and any other similar relevant factors: see D.M.C.T. at para. 32. [72] Recreational sports and other similar extracurricular activities - dance lessons, community sports leagues, ski trips, etc. - are generally considered "ordinary." The question is whether the participation goes beyond that of the "average child": DLC v. FMC, 2010 BCSC 1312 at para.

67. The children are all involved in extracurricular activities, but none are participating beyond the average child. In other words, none will be professional athletes or musicians. Analysis [73] The combined income of the parties is $58,000 per year. Dental and Orthodontic Costs [74] The first expense is dental and orthodontic expenses. The claimant says at para. 90 of her third affidavit that special expenses for the Children include childcare, piano lessons, medical and dental insurance premiums and overhead costs, orthodontics and competitive dance. These amounts total approximately $9,065.62 annually. She provides a breakdown of what orthodontic costs have been; $135 per month. She does not give an estimate of dental costs. The respondent has agreed to pay dental costs and has been paying the orthodontic cost. I will allow a claim for dental and orthodontic costs as a Section 7 expense. Child Care Costs [75] The next expense is child care costs which are usually allowed as a Section 7 expense. The claimant says the respondent pays $430 per month per child. She receives Ministry support which varies by application cycle. She is not clear whether the $430 per month per child is before or after Ministry support. [76] In the claimant's material there is no evidence whatsoever about the necessity of child care costs. The claimant and her husband are both PhD students at the

University of British Columbia. At that level of education I'm certain they're not attending lectures all day and I'm unaware of what their schedules are or whether they are required to be in the lab or university office eight hours a day. [77] I am uncertain whether any child care costs are actually necessary as a result of the custodial parent's employment, illness, disability or education or training for employment. Extracurricular Activities [78] At exhibit "Q" in her third affidavit, the claimant provides a breakdown of what she has spent for activities and dental expenses (although the time period is not clear to me). This exhibit was created to calculate the arrears in support she says is owing and not to justify the expense. [79] At page 170 of the exhibits in her third affidavit, the claimant provides a special expense breakdown for 2014 - 2015. [80] In her third affidavit, the claimant says the Children are involved in a number of extra‑curricular activities including choir, piano, cello, gymnastics and dance. [81] The claimant announced in her third affidavit at para. 37 that beginning September 2015, N.K. will be dancing for 90 minutes per week and will be participating in regional competitions. [82] Further, the claimant states at para. 38 that starting in September 2015, M.F.K.'s participation in dance will increase as she is been invited to join a competitive

group. Her weekly commitment will increase to over eight hours per week, not including additional coaching lessons before competition, timing competition, at‑home practice or dress rehearsal. She could be asked to leave the competition team if she misses more than four scheduled lessons per season. She attaches as exhibit "G", a copy of the Children's 2015 dance schedule as well as their Competition Team Expectations Agreement. [83] The claimant did not consult with the respondent before entering into such an extensive dance program for the Children. The agreement she signed on behalf of the Children which is attached at exhibit "G" says the following: Students in the competitive/performance classes are expected to put their dance classes and rehearsals first before other activities. Outside events include (but are not limited to): ● Family holidays, other sports or extra‑curricula's (sic) ● Optional school field trips* ● Social events with friends, etc. No excuse other than extreme illness is acceptable to miss any class or rehearsal. EVERY member is important to the team! Any missed class/ rehearsals must be cleared with the instructor and ahead of the day (except extreme illness). If you're going to be out of town for a rehearsal, you must let the instructor know ahead of time. [84] As a joint guardian the claimant did not have the authority to make such a commitment for the

Children or to expect financial contribution from the respondent without consulting with him. This agreement may place the Children's dance activities in priority to maintaining their contact the respondent. [85] The letter from the director, B.C. says the Children are excelling in both the technique and performance aspects of their dance. The claimant also says that M.F.K. excelled in dance and therefore it is in her best interest to remain on the dance team. I don't doubt the claimant's judgment as to what is in her child's best interest. My only concern is the cost of this activity. [86] There is no explanation for why the costs of dance jumped from $2,000 a year to $8,000 a year. Page 170 of the claimant's third affidavit says that M.F.K.'s dance lessons cost $2,210 a year and N.K.'s dance classes costs $575 a year. When requesting further detail, the claimant filed her fourth affidavit in which she now claims dance expenses of $8,066 annually. [87] In her fourth affidavit, the justification given by the claimant for this expense is that it's the only significant activity that M.F.K. participates in. This is inconsistent with her third affidavit which says: ● the Children are enrolled in French immersion school; ● M.F.K. takes part in a Ministry program for gifted children and attends the Challenge Centre; and ● the Children are involved in a number of extra‑curricular

activities including choir, piano, cello, gymnastics and dance. [88] That affidavit was sworn May 28, 2015. Her fourth affidavit was sworn on January 8, 2016. [89] It is not clear to me whether M.F.K. is no longer enrolled in the gifted program and that the girls are no longer participating in choir, piano, cello and gymnastics. [90] Certainly on the combined income of the parties and expenses of over $8,000, it is an extraordinary expense. [91] If I look at the nature of the expense and the special needs or talents of the Children, it appears to me that these Children have many strengths and talents. I am not satisfied that the Children's dance talent exceeds that of an average child or that they are destined for careers in dance. The time commitment the claimant has enrolled them in certainly exceeds the ordinary but that does not address the issue of whether or not these Children have a special talent. It is possible that the reason for the commitment is that W. Dance Centre is very good at marketing. [92] If the Children are still involved in all the other activities listed in affidavit #3, then I think it is reasonable for the respondent to question whether it is in their best interest to also be involved in such an extensive dance program. [93] Deference needs to be given to the claimant who knows what these Children can handle. It is understandable that she has taken

over decisions for activity planning since the respondent lives out of the country and has fairly limited parenting time, but she must respect the respondent's right to be consulted as a joint guardian. She does not appear to do that on this material. She sends him bills and she appears to give the Children's activities priority over their time with the respondent. [94] The overall cost of the activity far exceeds what this family can afford. It is clear that the claimant must be using her student loan money to fund such an activity. I emphasize the word loan because this is not income. She quite rightly does not include the student loan money in her income because she will have to pay the Government of Canada and the Province of British Columbia that money back. These funds are earmarked for the claimant's education. [95] If the claimant chooses to spend her education funding this way then she is free to do so. What she is not free to do is charge this expense to the respondent who earns $48,000 and spends up to $10,000 exercising access to his children plus another $11,220 in child support and dental expenses. Decision on Extracurricular Expenses [96] I find that the claim for special extraordinary expenses for extracurricular activities is not reasonable as measured against the combined financial means of the parents. On my application of Section 7.1 these activities do not

pass the proportionality inquiry looking at the nature and number of activities, any special needs or talents of the child, the overall cost of the activities, and any other similar relevant factors: see D.M.C.T. at para. 32. [97] It is difficult to compare this spending to the family's spending pattern prior to separation because the Children were so young at the time of separation and the respondent's income was higher and the claimant had no income at the time separation. [98] I order that the respondent contribute a lump sum of $200 per month toward the Children's special and extra‑ordinary expenses which will include all the categories included in Section 7 of the Guidelines. This lump sum figure for special and extraordinary expenses can be reviewed annually with the exchange of the parties' financial disclosure. The reason I am providing a lump sum is to try to reduce conflict between the parties and to put a cap on the claimant's expectations. There is no endless well of money to draw from. I am also ordering the respondent to contribute something to the Children's activities so he won't be perceived as the miserly parent who says no to all extra‑curricular activities. He is contributing a reasonable amount within his budget which does not prevent him from exercising his parenting time and engaging in some of his own activities with the Children. [99] To be clear, the

$200 a month does include the orthodontic and dental costs which the respondent already agreed to pay plus any and all other expenses that might fall under Section 7 of the Guidelines. [100] This payment commences December 1, 2015. His monthly payments will change from $800 a month plus dental and orthodontic costs to $1,000 a month, all‑inclusive. It will no longer be necessary for the claimant to provide invoices and receipts for Section 7 expenses. This $200 per month can be spent on the Children's expenses however she sees fit. [101] I have backdated the commencement of the lump sum payment to December 2015 to give some clarity to what is to occur from the date that I fixed the arrears to the date of the release of this decision. Whether or not the Children's parenting time with the respondent should be given priority over activities and events scheduled by the claimant? [102] The Children's parenting time with the respondent should be given priority over activities and events. That means that when the respondent has scheduled parenting time, no activities should conflict. The wording of para. 8 of the September 2014 Consent Order created problems for these parties. [103] When enrolling the Children in activities, the claimant must advise the coach or instructor of the situation and must inform the respondent of her intention to enroll the Children in activities. If the

activity conflicts with the respondent's parenting time then she must obtain his consent in writing first before enrolling the Children. [104] This may sound harsh to the claimant, however, I expect that the situations where there will be conflict will be few and far between. The respondent only has parenting time now every summer and every other Christmas and Spring break. His next Christmas and Spring break parenting time will not be until 2017 and so the claimant knows this in advance of registering the Children for any dance team participation in September 2017. She cannot sign a Dance Participation Agreement in 2017 without the respondent's consent in writing. Parenting Coordinator [105] I am not appointing a parenting coordinator to help with ongoing parenting time negotiations. I value the services provided by parenting coordinators not only in resolving disputes but in providing tools for parents to use in their ongoing future negotiations but in this case there are limited funds and for that reason the respondent cannot consent to the use of a parenting coordinator. [106] Instead, I will create some firm structure to the parenting time so that it will reduce the need for negotiation. The firm parenting time coupled with my statement that the respondent's time with the Children should be given priority over activities will hopefully assist the parties in resolving

future disputes. [107] In order to avoid future conflict, I believe parenting time dates should be set now so there is certainty. That will enable the respondent to book his flights well in advance and obtain more favourable rates for flights. [108] I make the following orders: [109] The respondent will have parenting time for seven weeks of summer holiday which will commence on July 4th and continue until August 22th each year unless the parties agree in writing to other dates. [110] The respondent's parenting time for Christmas 2017 and alternating Christmases thereafter will commence on December 12th, and conclude January 11th, (allowing the respondent four weeks of uninterrupted parenting time) unless the parties agree in writing to other dates [111] The respondent's parenting time for Spring break 2017 and alternating Spring breaks thereafter will commence on the last day of school before Spring break commences and will conclude on the Saturday before Spring break concludes unless the parties agree in writing to other dates. An order that the respondent be charged a penalty for providing misleading financial disclosure. [112] If the respondent has provided misleading financial disclosure then the claimant certainly hasn't proven that to me. She has speculated that he has other sources of income. He has provided what I found to be a reasonable explanation for the questions

that she has raised. She has not satisfied me that he is misleading the court. There will be no penalty ordered. Costs [113] The parties have applied for costs. The respondent has been the successful party in this application however the claimant has no ability to pay his costs. I find that an order of costs would create hardship for her so I will order that each party shall bear his or her own costs of these cross‑applications. Summary of Orders Parenting [114] The parties retain their guardianship of the Children. The Children will primarily reside with the claimant in Vancouver, British Columbia and she will have day‑to‑day care of the Children. [115] The respondent will have parenting time for seven weeks of summer holiday every year which will commence on July 4th and end on August 22nd each year unless the parties agree in writing to other dates. [116] The parties agree to alternate Spring break and Christmas parenting time each year and in 2016, the claimant will have the Children with her for Spring break and Christmas and every other year thereafter. [117] The respondent will have Spring break and Christmas parenting time commencing in 2017 and alternating every other year thereafter. [118] The respondent's parenting time for Christmas will commence December 15th and conclude January 11th, allowing the respondent four weeks of uninterrupted parenting time, unless the

parties agree in writing to other dates. [119] The respondent's parenting time at Spring break will commence on the last day of school before Spring break commences and will conclude on the Saturday before Spring break concludes unless the parties agree in writing to other dates. Passports [120] The respondent will apply for and obtain Australian passports for the Children and the passports will travel with the Children. Child Support [121] Based on an agreement that the respondent's income is $48,000 per year, the respondent will pay child support in the amount of $800 Canadian funds per month for the support of N.K. born in 2008 and M.F.K. born in 2005 commencing February 1, 2016 and continuing on the first day of each and every month thereafter. [122] The parties will exchange proof of income annually by providing a copy of their filed income tax return and notice of assessment to the other by September 30th each year and child support will be adjusted according to the Guidelines' table for British Columbia by December 1st of each year. Section 7 Special and Extraordinary Expenses [123] The claimant is to consult with the respondent before enrolling the Children in activities. [124] Commencing December 1, 2015, the respondent is ordered to pay a lump sum of $200 per month to the claimant toward all of the Children's special and extraordinary expenses which included all

categories set out in Section 7 of the Guidelines. The claimant is not obliged to provide any receipts for expenses. [125] The lump sum contribution is reviewable annually with the exchange of the parties' financial disclosure. Arrears of Child Support and Section 7 Expenses [126] No arrears are owing prior to September 2014. [127] Arrears of child support and dental and orthodontic costs is fixed at $2,865.21 as at November 30, 2015. Priorities [128] The respondent's parenting time should be given priority over the Children's activities and events. When enrolling the Children in activities the claimant must advise the coach or instructor of the situation and must inform the respondent of her intention to enroll the Children in activities. If the activity conflicts with the respondent's parenting time then she must obtain his consent in writing first before enrolling the Children in any activity that conflicts with his parenting time. Penalty [129] The claimant's application for a $5,000 penalty against the respondent is dismissed.

COSTS [130] Each party shall bear his or her own costs of this application. "Young J."