MacLean v. Mio

2019 BCSC 375 MacLean v. Mio

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: MacLean v. Mio, 2019 BCSC 375 Date: 20190318 Docket: E061498 Registry: Vancouver Between: Alison Margaret MacLean Claimant And: John Mio a.k.a. John Peter Mio Respondent Before: The Honourable Madam Justice Horsman Reasons for Judgment Counsel for the Claimant: A. Huang Counsel for the Respondent: F.C. Lowther Place and Date of Hearing: Vancouver, B.C. January 18, 2019 Place and Date of Judgment: Vancouver, B.C. March 18, 2019 Table of Contents INTRODUCTION. 3 BACKGROUND. 4 The 2010 Orders of Mr. Justice Pearlman. 4 The access order 5 The trial order 5 Child support 5 Spousal support 6 The costs order 8 The respondent's unilateral variation of child and spousal support 8 ISSUES. 9 ANALYSIS. 10 Evidentiary issues. 10 Issue I: Child support for T. 11 The legal framework. 11 Application to the facts. 12 Conclusion on child support owed for T. 13 Issue II: Child support for S. 14 The parties' current Guidelines income. 15 Shared custody - the legal framework. 17 Application to the facts - is this a situation of shared custody?. 18 Issue III: Extraordinary expenses. 20 Issue IV: Spousal support 21 Review or variation?. 21 Should spousal support be retroactively terminated?. 22 When should spousal support terminate in the future?. 25 SUMMARY OF ORDERS. 25

INTRODUCTION [1] The respondent, John Mio, applies to vary Orders issued in 2010 following a trial of this family proceeding. The Orders relate to child support, spousal support and parenting arrangements. [2] The claimant, Alison MacLean, consents to a variation of the Order detailing arrangements for parenting time that was made in 2010. However, she opposes the application for variation in relation to child support and spousal support. [3] The claimant and the respondent were married in 1998, separated in September 2005, and divorced pursuant to an Order pronounced on August 1, 2007. The claimant is currently 59 years old and the respondent is 56. [4] The parties have two children. Their daughter "T." turned 19 years old on April 2, 2017. The parties agree that T. ceased to be a child of the marriage when she turned 19. Their son "S." is presently 18 years old and will graduate from high school this spring. [5] Beginning in January 2017, the respondent unilaterally stopped paying monthly spousal support that he was ordered to pay in 2010, and reduced his court-ordered child support payments. The respondent argues that his obligation to pay spousal support to the claimant terminated as of the end of 2016. [6] In relation to child support, the respondent asserts that T. withdrew from the care of her parents as of January 2017 and therefore the respondent does not owe child

support for T. as of January 1, 2017. The respondent acknowledges that the parties' youngest child, S., remains a child of the marriage, but the respondent says that he and the claimant share custody of S. thus reducing the respondent's child support obligations. The respondent also seeks to reduce his proportionate share of extraordinary child care expenses from 85% to 60%. [7] The parties' positions shifted during the course of the hearing, narrowing the issues in dispute. The respondent originally sought to recover past payments to the claimant for child support and spousal support prior to January 2017 but he did not press this form of relief at the hearing. The respondent limits the relief he seeks to orders terminating spousal support as of January 1, 2017, and reducing monthly child support as of the same date. [8] The claimant, for her part, initially opposed any alteration to the residency and parenting time arrangements for S. that were established by court order in 2010. However, the claimant modified this position during the hearing. She advised through counsel that she now consents to the variation to the parenting time ordered in 2010 that is sought by the respondent to give S. discretion in the time he spends with each parent. The claimant also agrees that there should be an end date to the respondent's obligation to pay spousal support, but says that the

termination date should be June 1, 2019 rather than January 1, 2017. [9] The claimant does not agree to the reduction in child support sought by the respondent. The claimant says that T. did not withdraw from her parents' charge prior to her 19th birthday on April 2, 2017, and therefore the respondent was wrong to unilaterally terminate child support for T. starting January 1, 2017. In relation to S., the claimant disputes that there is a situation of shared custody. She also disputes that there is any basis to reallocate the parties' proportionate share of extraordinary expenses.

BACKGROUND The 2010 Orders of Mr. Justice Pearlman [10] In order to resolve the respondent's application for a variation of his spousal and child support obligations, it is necessary to review the existing 2010 Orders of Mr. Justice Pearlman, and his underlying reasons for judgment. [11] This family law proceeding was tried before Mr. Justice Pearlman over 10 days in January and March of 2010. The issues in dispute were property division, child support and spousal support. At the time of trial, T. and S. were 11 and 9 years old, respectively. The access order [12] During the trial, the parties were able to settle joint custody and joint guardianship of T. and S. and to agree on terms for access. This agreement is reflected in Mr. Justice Pearlman's Order of March 15, 2010 (the "Access Order"), which was issued mid-trial. [13] The Access Order provides that until a further order of the Court or agreement in writing between the parties, the primary residence of the children is with the claimant. The Access Order generally provides that the respondent would have care of the children during the first three weekends of the month from after school on Friday until Monday morning. The Access Order contains detailed provisions to address the division of parenting time during vacations and special occasions, such as birthdays. [14] Term 7 of the Access Order provides that the time

arrangements for the care and parenting of the children, and the matter of their residence, shall be reviewable as of June 30, 2011. The parties were required to attempt to reach agreement through mediation before bringing any court application. Prior to the current application, neither party had sought a review of the parenting time arrangements in the Access Order. The trial order [15] Mr. Justice Pearlman rendered judgment on August 6, 2010 on the remaining issues in dispute between the parties (the "Trial Order"). I will review the judgment (indexed at 2010 BCSC 1109) as it relates to spousal support and child support. These are the matters of direct relevance to the present application. Child support [16] Mr. Justice Pearlman found that throughout the parties' marriage and since the separation, the respondent had generally worked as an assistant location manager in the film industry, with occasional assignments in the higher paid position of location manager and the lower paid positions of production assistant or production scout. In light of the fluctuations in earnings, Mr. Justice Pearlman concluded that the fairest approach was to determine the respondent's income by taking the average of his last three years' of earnings, which was $67,000. [17] At the time of trial, the claimant was working on a part-time basis as a self-employed television camera operator in the

production of short video documentaries. As recounted by Mr. Justice Pearlman in his reasons for judgment, the claimant sustained head, back and neck injuries in a serious motor vehicle accident that occurred in 1986. This has led the claimant to suffer chronic pain in her neck and back, as well as pain and numbness in her left shoulder and arm. Mr. Justice Pearlman also noted that the claimant suffers from arthritis in both knees and required knee replacement surgery in 2008. [18] In light of the claimant's physical disabilities, Mr. Justice Pearlman declined to impute an annual income to her of between $15,000 and $25,000 as urged by the respondent. He concluded: [118] The chronic neck, back and arm pain that the plaintiff endures, and the arthritis which affects both her knees severely limits the plaintiff's earning capacity and certainly restricts her ability to perform camera work. In the future, Ms. MacLean may well have to focus on writing and other less physical aspects of film production work. However, given her physical limitations and the likelihood that it will take the plaintiff some time to shift from camera work to less physically demanding work, it would be unrealistic at present to impute to her an annual income of more than $12,000. I therefore determine the plaintiff's Guidelines income to for 2010 to be $12,000. [19] Using the respondent's Federal Child

Support Guidelines, SOR/97-175 [Guidelines] income of $67,000, Mr. Justice Pearlman determined that he should pay the claimant basic child support in the amount of $1,010, commencing August 2010. The parties were to exchange their T1 General income tax returns and T4s on an annual basis. Spousal support [20] Mr. Justice Pearlman held that the claimant was entitled to spousal support from the respondent on compensatory and non-compensatory grounds. [21] With respect to compensatory support, Mr. Justice Pearlman found that the parties' marriage resulted in economic disadvantage to the claimant. The claimant gave up her video production business and clientele in Toronto to move to Vancouver with the respondent. She also assumed the primary care of the children throughout the marriage. Mr. Justice Pearlman concluded, at para. 127, that the demands of raising children and maintaining the household had constrained the claimant's opportunities to pursue career opportunities in Vancouver. [22] With respect to non-compensatory support, Mr. Justice Pearlman found that the claimant's physical limitations limited her earning capacity due to her inability to perform physically demanding work: [128] Ms. MacLean may have to shift the focus of her production work to less physically demanding tasks, such as writing, editing or marketing. She will need financial support while she finds and

develops a clientele for the services she is able to perform. [23] Mr. Justice Pearlman noted that the Spousal Support Advisory Guidelines ("SSAG") suggested a range of spousal support between $436 and $775 per month, with a minimum duration of four years and a maximum of nine years from the date of separation. He concluded, at para. 133, that the claimant's strong compensatory claim for spousal support combined with her need for financial support arising from her physical disabilities suggested an award at the higher end of the range "for both amount and duration". [24] Mr. Justice Pearlman set the amount of spousal support at $775 per month. He did not make a final order with respect to the duration of the award, but instead provided for the possibility of a review of spousal support after September 1, 2011. His reasons for the review term were as follows: [134] At this stage, it is not possible to predict the extent to which the plaintiff may succeed in enhancing her earning power while coping with her physical limitations, or how long it may take her to do so. Accordingly, rather than impose a time limit for the duration of spousal support, I order that the parties are at liberty to apply for a review of spousal support on or after September 1, 2011. [25] The entered Trial Order provides that the monthly child support ($1,010) and spousal support ($775) amounts are to be

paid by the claimant in bi-monthly installments. Term 25(c) of the Trial Order provides that the respondent is to continue to make bi-monthly payments of child support as long as T. and S. remain children of the marriage, and to continue the bi-monthly payment of spousal support until further order of the court. [26] Prior to the present application, neither party sought to invoke the review provision of the Trial Order in relation to the payment of spousal support. The costs order [27] Mr. Justice Pearlman released a supplementary judgment on costs on February 8, 2011 (indexed at 2011 BCSC 148). He found that the claimant had been substantially successful in the action but exercised his discretion to reduce the amount of recoverable costs. He ordered that the respondent would pay the claimant's costs at scale B, less a 20% reduction of her total costs and disbursements (the "Costs Order"). [28] The claimant deposes that she subsequently reached an agreement with the respondent that set the quantum of recoverable costs at $48,816. However in December 2011 the respondent filed for bankruptcy. He was discharged from bankruptcy in 2014. The only creditors listed on the Report of Trustee on Bankrupt's Application for Discharge were the claimant and a credit card company who was owed $880. As a result of the respondent's bankruptcy, the claimant was unable to collect on the Costs

Order. She says this has caused her financial hardship. The respondent's unilateral variation of child and spousal support [29] The respondent made the spousal support and child support payments required by the Trial Order until December 2016. As of January 2017, the respondent unilaterally reduced his monthly child support payment to $400 and stopped paying any spousal support to the claimant. [30] The respondent deposes that he considers a payment of $400 per month towards the care of S. to be "reasonable and appropriate". He also deposes to his view that the claimant has the capability to earn income of at least $50,000 per year and that spousal support "should and could have been reduced long before now". He argues that the onus was on the claimant to take proactive steps to change what he repeatedly refers to as the "old orders" from 2010. [31] In January 2018, the claimant enrolled with the Family Maintenance Enforcement Program ("FMEP"). The claimant advised the FMEP that T. ceased to be a child of the marriage in April 2017. It appears, from the materials before me, that the respondent was motivated to bring the present application once the FMEP took steps to enforce the collection of support arrears. [32] On this application, the respondent seeks what amounts to a retroactive variation of the Trial Order to terminate his obligation to pay spousal support and reduce his obligation to pay child support as of January 1, 2017.

ISSUES [33] The claimant consents to a variation of the Access Order to replace the detailed parenting time provisions in that Order with a term providing that S.'s residence and parenting time with the claimant and the respondent will be at S.'s discretion. As I will address blow, the claimant's consent to this variation reflects her acknowledgment that detailed access provisions are unnecessary, and likely unrealistic, for an 18-year-old boy. The claimant does not agree that there has been substantial departure from the Access Order in terms of S.'s place of residence, as argued by the respondent. [34] This leaves the following issues for resolution: I. Does the respondent owe the claimant child support for T. for the months of January, February and March of 2017? II. What monthly child support does the respondent owe for S. as of April 2017? III. Should the respondent's proportionate share of extraordinary expenses be varied? IV. Did the respondent's obligation to pay spousal support to the claimant terminate on January 1, 2017, and if not, when should it terminate?

ANALYSIS Evidentiary issues [35] Before turning to the issues raised on this application, it is necessary to briefly comment on evidentiary issues arising from the affidavits filed by the respondent. [36] Rule 10-4(12) of the Supreme Court Family Rules, B.C. Reg. 169/2009, provides that an affidavit filed on an application must, subject to sub-rule (13), only state what a person swearing or affirming the affidavit would be permitted to state in evidence at trial. The exception in Rule 10-4(13) to permit statements based on information and belief to be included in affidavits in certain limited circumstances has no application in the present case where the respondent seeks a variation and termination of a final order. [37] Statements in an affidavit that are not admissible at trial include statements that: relate to facts not in the personal knowledge of the affiant, constitute hearsay, amount to legal argument, and consist of opinions that go beyond the limit scope of admissible lay opinion evidence: Foote v. Foote (1986), 6 B.C.L.R. (2d) 237 (S.C.); Jamal v. Jamal, 2016 BCSC 551 at para. 19; D.M.H.P. v. R.J.C.P., 2018 BCSC 1755 at para. 49; Elliston v. Elliston, 2014 BCSC 958 at paras. 42-43. [38] While I appreciate that it can sometimes be difficult in a family case to comply with the requirements of Rule 10-4(12) with full rigour, it is apparent to me that the respondent's

affidavits were prepared without regard to the appropriate boundaries of affidavit evidence. The respondent's affidavits are rife with argument, hearsay, speculative and inflammatory hypotheses about the claimant's conduct and motivation, and unsupported allegations of misconduct on the part of the claimant that include the deliberate withholding of financial information and the manufacturing of evidence. [39] I will disregard and give no weight to the respondent's affidavits to the extent that they contain such improper and inadmissible material. The respondent's inability to bring an objective perspective to the facts in issue also lead me to conclude that he is not a reliable witness to events. Where his evidence conflicts with that of the claimant, I generally prefer the evidence of the claimant. Issue I: Child support for T. [40] The Trial Order directs that the respondent pay $1,010 in monthly child support to the claimant as long as T. and S. remain children of the marriage. As I have noted, the claimant agrees that T. ceased being a child of the marriage when she turned 19 years old on April 2, 2017. The question is whether T. had withdrawn from the charge of her parents by January 2017, thus ending the respondent's child support obligations relating to T. at that earlier date. The legal framework [41] Section 1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) defines

"child of the marriage" as follows: child of the marriage means a child of two spouses or former spouses who, at the material time, a) is under the age of majority and who has not withdrawn from their charge, or b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [Emphasis added.] [42] The age of majority in British Columbia is 19: Age of Majority Act, R.S.B.C. 1996, c. 7. [43] A child who is under the age of majority but who has withdrawn from the charge of their parents is no longer a child of the marriage. A parent has no obligation to pay support for a person who is no longer a child of the marriage. [44] The onus is on the payor spouse to prove that the child has withdrawn from the charge of their parents. The test is an onerous one. There must be evidence that the child has in fact moved out of the home, is living away from the parent, and receives no financial support from the parent. It must be shown that the child has sufficient income to meet her own basic needs. See: Del Puppo v. Del Puppo, [1999] B.C.J. No. 1721 (S.C.) at paras. 5-6; K.A.M.R. v. W.H.G., 2014 BCSC 103 at para.

72. Application to the facts [45] In his Affidavit #17, signed on May 9, 2018, the respondent deposes to his "understanding" that T. began to work immediately upon graduating from high school in June 2016 and that her earnings in 2017 were $63,144. The respondent does not identify the source of his understanding and no income records from T. are attached to the respondent's affidavit. [46] The respondent's understanding is contradicted by the direct evidence of T. In an affidavit that T. affirmed on September 16, 2018, T. deposes that she worked full-time from July 5 to October 16, 2016, earning $24,682, and from January 25 to May 27, 2017, earning $24,195. The records of employment relating to these jobs are attached to T.'s affidavit. T. says that she did not work in between these periods of employment. In the time before she turned 19 in April 2017, T. says she lived with, and was financially dependent on, the claimant. [47] T. says that she has continued to live with her mother even after turning 19. She says that the claimant has covered all the household expenses and has not charged T. rent. T. pays for her personal expenses and occasionally buys groceries. Since January of 2018, T. has been working consistently and hopes to be able to save enough money to pursue post-secondary studies and to move out on her own. [48] T.'s evidence is consistent with the claimant's

evidence in her Affidavit #2a, affirmed on September 19, 2018. The claimant confirms that T. remained living with the claimant after high school, and that the claimant covered the cost of T.'s housing and food, and other household necessities. [49] One might have expected that, in the face of T.'s direct evidence as to her earnings and living arrangements prior to her 19th birthday, the respondent might have reconsidered his assertion that T. had withdrawn from her parents' charge. Instead, the respondent attempted to rebut T.'s evidence through his Affidavit #20, signed on January 12, 2019, without having sought to cross-examine either T. or the claimant. [50] The respondent's Affidavit #20 contains no direct evidence of relevance to the question of whether T. had withdrawn from the charge of her parents by January 2017. Instead, respondent presents his theory that T.'s affidavit is false and was crafted by the claimant to support the claimant's legal argument. The respondent posits that it is "likely" that T. was pressured by the claimant to provide the affidavit on the threat that T. would have to leave the claimant's home if she refused. [51] There is absolutely no evidence to support the speculative theories advanced by the respondent in his Affidavit #20. The fact that the respondent did not seek to cross-examine either T. or the claimant on their affidavits makes his

advancement of unfounded allegations of misconduct all the more concerning. It was improper for the respondent to make such serious allegations of misconduct against the claimant in his affidavit when such an allegation rests on speculation rather than evidence. I disregard his theories entirely. Conclusion on child support owed for T. [52] The evidence persuades me that up to the time that T. turned 19 on April 2, 2017, she resided with, and remained financially dependent on, the claimant. T. did not withdraw from her parents' charge prior to her 19th birthday. Accordingly, the respondent must pay the child support for T. that was withheld from the claimant by the respondent between January 1 and April 2, 2017. The total support owing over this three-month period is the difference between what the respondent owed the claimant each month under the Trial Order and what he actually paid. Issue II: Child support for S. [53] The respondent acknowledges that S. remains a child of the marriage, but argues that his obligation for child support is reduced due to changed circumstances. The respondent says that since at least January 2017, the respondent has had care of S. for more than 40% of the time. As such, he says that this is a case of shared custody and therefore child support ought to be determined in accordance with s. 9 of the Guidelines. The respondent is of the view that

$400 per month is an appropriate level of support for him to provide to the claimant for S. This is the amount he has unilaterally decided to pay to the claimant for the support of S. since January 1, 2017. [54] The claimant disputes that the respondent has the care of S. for more than 40% of the time. The claimant says that the parties have generally followed the parenting arrangements in the Access Order, and that any deviation from the Access Order has been of a temporary nature. The claimant says that child support for S. should be determined as of April 1, 2017 using the respondent's current income. The claimant disputes that an annual income of $50,000 should be imputed to her for the purpose of calculating child support. [55] Accordingly both parties seek a variation of the Trial Order as it relates to child support for S. starting April 1, 2017. The claimant seeks to have a new determination of the respondent's obligation to pay support for S. after T. ceased to be a child of the marriage, and she says this determination must be based on respondent's current income. The respondent says that child support should be re-determined on a shared custody basis, using an imputed annual income for the claimant of $50,000. [56] There is no dispute between the parties as to the general legal principles that governs an application for variation of a child support order. Section

17(1) of the Divorce Act provides that a court of competent jurisdiction may make an order "varying, rescinding or suspending, prospectively or retroactively" an order for child support or spousal support. Before making a variation order in respect of a child support order, the court must be satisfied that a material change in circumstances has occurred since the making of the child support order: Divorce Act, s. 17(4). The onus is on the applicant to establish a material change in circumstances: G.M.W. v. D.P.W., 2014 BCCA 282, at paras. 30-34. [57] There are two questions that arise for determination, both of which involve contested issues of fact: (i) what income should be used for each party for the purpose of re-determining the quantum of child support for S.?; and (ii) has S. been in the care and control of the respondent for at least 40% of the time since January 1, 2017? I will address each issue in turn. The parties' current Guidelines income [58] Both parties swore updated Form F8 Financial Statements appending their recent tax records. The claimant attached additional tax records to her Affidavit #2a. [59] The respondent has limited his disclosure of tax records to the years 2015, 2016 and 2017. The respondent's total (line 150) income in those years was $91,594 (2015), $107,650 (2016), and $110,786 (2017). The respondent says that this income must be adjusted to

reflect the deduction of applicable employment expenses under Schedule III of the Guidelines. The respondent suggests that if his employment income over these years was averaged, which is the approach adopted by Mr. Justice Pearlman at trial, his Guidelines income is $94,000. I understood the claimant to accept this analysis for the purpose of the present application. Both parties used an annual income of $94,000 for the respondent in their calculations of child support. [60] The claimant's total (line 150) income between 2011 and 2017 is as follows: 2011: $14,055 2012: $7,705 2013: $8,574 2014: $22,299 2015: $26,928 2016: -$1,510 2017: $38,510 [61] The respondent says that the claimant has intentionally remained underemployed and that an annual income of $50,000 ought to be imputed to her under s. 19 of the Guidelines. The claimant, for her part, acknowledges that her income should be set at a level above $12,000, but she does not agree that $50,000 is an appropriate or realistic level at which to impute income. The claimant says that she has made efforts to secure contracts, that some years have been better than others, and that she has prospects for further improvement in income. As of February 2017, the claimant is in receipt of disability benefits. In all the circumstances, the claimant says that it would be appropriate to impute an annual income to her of $30,000. [62] I

have already reviewed Mr. Justice Pearlman's findings at trial as they relate to the claimant's chronic health issues. The claimant deposes that she has undergone further surgeries on her knees since trial, most recently in June 2018. The claimant says that she attends physiotherapy weekly and that since 2017 she has received weekly spinal injections that provide some temporary relief. The claimant has provided corroborative hospital and medical records. The claimant has also described her efforts to find alternative employment in the field of communications and the difficulty she faces in securing employment due to her inability to commit to a regular work day as a result of her disabilities. [63] The respondent complains that the evidence that the claimant has provided is insufficient to establish that she is disabled from working. I do not understand the claimant to make such an argument. The claimant does not say she cannot work, simply that she faces physical challenges in securing remunerative employment as a result of her physical disabilities. The evidence clearly establishes that the claimant suffers from the physical impairments she describes. The chronic nature of her physical impairments were the subject of findings at the 2010 trial. [64] In the face of this evidence, I do not consider it fair or appropriate to impute an annual income to the claimant that is almost

double what she has been able to earn in a single year in over a decade. The claimant's position that an income of $30,000 may be imputed is a reasonable compromise that is consistent with the evidence of the claimant's physical condition and level of income since trial. I therefore find that the claimant's annual income for the purpose of the Guidelines is $30,000. [65] If this is not a situation of shared custody, the monthly amount owed by the respondent for the support of S., based on the respondent's income of $94,000, is $870 between April and November 2017 (under the 2011 Federal Child Support Tables) and $895 after November 2017 (under the 2017 Federal Child Support Tables). The respondent's position that his support obligation to S. is limited to $400 per month is dependent on the success of his argument that he shares custody of S. with the claimant. I therefore turn to the issue of shared custody. Shared custody - the legal framework [66] A material change in circumstances may be established where the parties have moved to a situation of shared custody since the making of the original order. In a shared custody arrangement, each spouse has physical custody of the children for at least 40% of the time over the course of a year. Section 9 of the Guidelines provides that where a shared custody arrangement exists, the amount of child support must be determined by taking

into account: (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [67] Section 9 of the Guidelines requires a two-part determination: first, establishing that the 40% threshold has been met; and second, where it has been met, determining the appropriate amount of support: Contino v. Leonelli-Contino, 2005 SCC 63 at para. 37 [Contino]. [68] A simple set-off of the table amounts for each spouse serves as a useful starting point for determining support under s. 9 of the Guidelines. However, a simple set-off has no presumptive value in the s. 9 analysis; full consideration must be given to all relevant factors: Contino at para. 49. [69] While a court must make a finding of fact as to whether the 40% threshold is met in a case where the payor spouse claims shared custody, this does not necessarily require a detailed accounting. As stated by Madam Justice Saunders writing for the majority of the Court of Appeal in Berry v. Hart, 2003 BCCA 659: [10] In my view the issue is a matter of judgment not amenable to simply a time accounting exercise. I consider that in determining whether the threshold level for application of s. 9 is met the question is whether the paying parent spends such a

sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level is achieved. It follows, in my view, that a court may assess child-parent time as meeting the s. 9 criteria without a tight accounting. That assessment should be made by considering the broader context of the parenting arrangement. It perhaps bears mentioning, further, that simply finding that a parental regime comes within s. 9 does not compel an automatic reduction in child support. That determination must be made considering all of the criteria in ss. (a) to (c) of s. 9. [70] See also: Cooke v. Cooke, 2011 BCCA 444, at paras. 23-26. [71] The relevant time period is the time that the children are in the care and control of the parent, not whether they are physically with him or her. The onus is on the payor spouse to establish that the situation is one of shared custody: Crofton v. Sturko, [1998] B.C.J. No. 38 at para. 17 (S.C. [In Chambers]); C.M.C. v. J.F.M., 2015 BCSC 757 at para. 50; Collier v. Campbell, 2013 BCSC 825 at para.

81. Application to the facts - is this a situation of shared custody? [72] The respondent deposes to his belief that S. has been in his care at least 40% of the time since 2016. [73] The respondent has attached to his affidavits blank calendars for the years 2017 and 2018, on which the respondent records a handwritten "S" for time the respondent says S. was with him for either a day or night. The respondent has then totalled the number of days or nights on which an "S" is recorded to estimate that S. was in the respondent's care for 46% of the time in 2017 and 49% in 2018. [74] The claimant disputes the respondent's evidence as to the extent of time that S. is with the respondent. The claimant says that, with limited exception, the parties have followed the regular parenting schedule set out in the Access Order since the Order was issued in 2010. The claimant has provided calculations to show that S. is with the respondent 30% of the time under the provisions of the Access Order. The claimant says that S. has had extra time with the respondent on a few occasions, either overnight or during the day, to facilitate S.'s participation in school activities. The respondent lives closer to S.'s school than the claimant and it is occasionally more convenient for S. to stay at his father's house. [75] The claimant acknowledges that the summer of 2018 was an anomaly in that S. resided

with the respondent during weekdays from the end of June to the first week of August. The claimant says this situation arose because she could not drive for several weeks due to her knee surgery and therefore could not transport S. to a summer course he had enrolled in at his school. Other than this period of time, the claimant says that the parties have consistently followed the parenting arrangements in the Access Order. [76] As noted, the claimant does consent to a variation of the Access Order to replace the detailed parenting time arrangements with a provision that provides S. with discretion as to how much time to spend with each parent. The claimant considers that such a term is appropriate given S.'s age and the fact that he is about to graduate from high school. However, the claimant does not anticipate that the variation of the Access Order will change the fact S. resides primarily with her. [77] The evidence tendered by the respondent does not persuade me that this is a situation of shared custody. I accept the claimant's evidence that the parties have generally followed the parenting arrangements set out in the Access Order with limited exceptions that are situation-specific. I further accept that the parenting time set out in the Access Order does not establish a situation of shared custody. While the respondent argues that the parties have not been following the

Access Order since at least 2016, the claimant disputes this. I note that the respondent did not seek a review of the parenting time as permitted by term 7 of the Access Order. [78] I have already stated my reasons for finding the respondent to be an unreliable witness. Where his evidence as to his parenting time with S. differs from the claimant's, I accept the claimant's evidence. [79] I therefore find that the respondent was obliged to pay the respondent $870 per month for the support of S. from April 2017 to November 2017, and thereafter to pay $895 per month. For this past period, the respondent owes the claimant the difference between what he owed and what he actually paid. The respondent's obligation to pay the claimant $895 per month for the support of S. shall continue until S. ceases to be a child of the marriage or until a further order of the court. [80] Finally, I note that even if I had concluded that this was a case of shared custody, it does not follow that $400 is the appropriate level of child support. Even if a straight set-off approach was adopted, the respondent's support obligation would be $616 monthly ($895, less the $279 owed by the claimant on a Guidelines income of $30,000). Given the significant disparity in the parties' income, this is a case in which a straight set-off may not be appropriate in light of the broader criteria listed in s. 9 of the

Guidelines. As I have found that this is not a case of shared custody, it is unnecessary for me to reach a final conclusion on this point. Issue III: Extraordinary expenses [81] Mr. Justice Pearlman ordered that the claimant and the respondent must share special or extraordinary expenses for the children under s. 7 of the Guidelines in proportionate share to their income. Based on their income at the time, Mr. Justice Pearlman determined, at para. 120, that the claimant's proportionate share was 15% and the respondent's was 85%. [82] It is apparent that Justice Pearlman anticipated that the parties' respective contributions to extraordinary expenses may fluctuate depending on fluctuations in their income. The fact that this has not occurred to date appears to have primarily benefitted the respondent given that his income increased over time while the claimant's remained largely static, at least in the first few years after trial. In any event, the parties current Guidelines incomes have now been established at $94,000 (for the respondent) and $30,000 (for the claimant), and their proportionate share of s. 7 expenses should be adjusted accordingly. [83] I therefore order that the shares of the respondent and the claimant for the special or extraordinary expenses of S. are, respectively, 75% and 25%. Issue IV: Spousal support [84] The respondent seeks a retroactive variation of

the Trial Order to terminate his obligation to pay the claimant spousal support as of January 1, 2017. The respondent did not apply for a review of spousal support as permitted by Term 24 of the Trial Order. The respondent simply stopped paying. In light of the respondent's frequent references to the "old order", it must be emphasized that the Trial Order remains in effect until such time as it is varied. The respondent's complaints that the claimant has acted unreasonably in seeking the assistance of the FMEP to collect arrears must be assessed in light of his own failure to seek a review of spousal support at an earlier date. [85] The claimant does not argue that spousal support should continue indefinitely; she argues that spousal support should terminate in June 2019. She does resist cancellation of arrears, which is essentially what the respondent seeks. Review or variation? [86] Before turning to the issues in dispute in this application, I will address the question of whether the respondent's application is properly conceived of as a review or variation application. [87] Term 24 of the Trial Order provided that the claimant and the respondent "each shall be at liberty to apply for a review of spousal support on or after September 1, 2011". Mr. Justice Pearlman's reasons for judgment, at para. 134, suggest that the review power was intended to address the difficulty in

predicting the extent to which the claimant could enhance her earning power despite her physical limitations and how long this would take. [88] On a review of spousal support, the applicant is not required to establish a material change in circumstances since the making of the review order. This distinguishes a review application from a variation application. The focus of a review hearing is a reconsideration of the claimant's entitlement to, and the quantum of, spousal support having regard to the criteria in s. 15.2 of the Divorce Act: Leskun v. Leskun, 2006 SCC 25 at paras. 35-41; Schmidt v. Schmidt, 1999 BCCA 701 at para. 9; Domirti v. Domirti, 2010 BCCA 472 at para. 39. [89] The respondent framed his application as an application for review of spousal support pursuant to Term 24 of the Trial Order, or alternatively an application for variation under s. 17 of the Divorce Act. [90] In my view the respondent's application, at least in respect of its retroactive component, is properly characterized as an application for retroactive variation of the Trial Order pursuant to s. 17(1) of the Divorce Act. The respondent is not simply seeking a review of the appropriate level of spousal support in light of more certain information about the claimant's earning capacity, which is what the Trial Order anticipated. Instead, the respondent seeks to retroactively terminate his spousal

support obligation to the claimant and to cancel arrears that have accrued since January 2017 due to the respondent's failure to comply with the Trial Order. Should spousal support be retroactively terminated? [91] A party who applies for a retroactive variation of a support order that would have the effect of cancelling arrears must establish not only a material change in circumstance but also that it would be "grossly unfair" not to cancel the arrears. Although the language of gross unfairness found in s.174 of the Family Law Act, S.B.C. 2011, c. 25, the same test has been found to apply to a variation application under s. 17 of the Divorce Act: Earle v. Earle, 1999 BCSC 283 at para. 23; S.A.R. v. L.G.R., 2011 BCSC 712 at para. 45; Jacobs v. Jacobs, 2015 BCSC 94 at paras. 29-30, application to extend time to appeal refused 2015 BCCA 173. [92] The policy underlying the onerous test for cancelling arrears is that parties who are ordered by the court to pay support should not be encouraged to disobey the order over an extended period of time, allowing arrears to accumulate, and then seek to have the court condone the non-compliance: Holstrom v. Holstrom, 2014 BCSC 545 at paras. 40-44. [93] I find that the respondent has not established either that there has been a material change in circumstances since the Trial Order that would warrant a retroactive variation of the order for

spousal support, nor that it would be grossly unfair not to cancel arrears. [94] The claimant's income did not increase significantly in the years following trial. The claimant's earnings history since 2010 is consistent with Mr. Justice Pearlman's assumptions that the claimant's physical impairments, combined with the economic disadvantage she suffered due to the marriage, would constrain her future earning capacity. The claimant has suffered further economic disadvantage after trial in her inability to collect on the Costs Order. The claimant has been unable to repay a loan from her aunt that facilitated the claimant's purchase of a townhouse in Surrey with her share of the proceeds of the sale of the family home. [95] In contrast, the respondent's income has increased significantly since trial. While the respondent's affidavits only attach tax records from 2015-2017, those records evidence that the respondent's annual income is $94,000, even accepting his averaging approach and the legitimacy of his claimed employment expenses. As the claimant notes, if a review of spousal support had been sought by either party at an earlier date, it is likely that the amount of spousal support would have increased to align with the respondent's higher income. The claimant does not seek to increase spousal support, she simply seeks to recover what the court has ordered the respondent to

pay. [96] In short, there is no material change in circumstance apparent to me on the evidence that would warrant the cancellation of spousal support arrears. [97] There is also no gross unfairness to the respondent if arrears are not cancelled. The respondent does not claim financial hardship, nor could he reasonably make such a claim given his income growth over time. The respondent's case rests primarily on the assertion that spousal support has gone on long enough, and that the claimant should be encouraged to become self-sufficient. I do not understand this to be a proper basis in law upon which to cancel arrears. [98] I must comment again on the inappropriateness of much of the material included in the respondents' affidavits as it pertains to spousal support. In his affidavits, the respondent complains at length about the claimant's refusal to "officially change" the "old orders" by consent, and expresses his opinion that the claimant has the ability and capability to earn $50,000. The respondent opines that the claimant is exaggerating her physical impairments, that she has chosen to remain under-employed because she is "stubborn", and that the claimant is "just trying to get money from John Mio for as long as she can". These are a few limited examples of improper statements that appear throughout the respondent's affidavits. [99] I have already noted (at paras. 37-38)

the boundaries of appropriate material that may be included in an affidavit. Again, I have disregarded the respondent's evidence to the extent that it consists of his personal criticisms of the claimant's motivations and conduct. [100] For these reasons, I decline to cancel any of the outstanding spousal support arrears owed to the claimant by the respondent. The respondent must pay the claimant the monthly amount of $775 that he owed to her from January 2017 up to the date of this judgment. When should spousal support terminate in the future? [101] I have already noted the claimant's agreement that spousal support should end on June 1, 2019. I consider this to be a reasonable period of time for the claimant to organize her financial affairs in anticipation of spousal support terminating. [102] I therefore order that the respondent shall continue to pay the claimant monthly spousal support in the amount of $775 up until May 2019, after which time his obligation to pay spousal support to the claimant shall end.

SUMMARY OF ORDERS [103] By consent of the parties, I order that the Access Order is varied to the extent of providing that the parenting time arrangements in the Access Order are replaced with the following term: S. shall reside and have parenting time with the claimant and the respondent at such times as S., in his discretion, wishes to have. [104] In relation to the Trial Order, I issue the following declarations and Orders: a) The parties' daughter T. ceased to be a child of the marriage on April 2, 2017 when she turned 19 years old; b) The respondent owes the claimant child support for T. and S. in the amount of $1,010 per month in January, February and March of 2017, and shall pay her any difference between this amount and the amount he in fact paid; c) The respondent owes the claimant child support for S. in the amount of $870 per month between April and November 2017, and shall pay her any difference between this amount and the amount he in fact paid; d) The respondent owes the claimant child support for S. in the amount of $895 per month starting in December 2017 and continuing until S. ceases to be a child of the marriage, and shall pay her any difference between this amount and the amount he in fact paid in the pre-judgment period; e) The parties' proportionate share of the special and extraordinary expenses for S. shall be varied so that the claimant's share is 25%

and the respondent's share is 75%; f) The respondent's application for a retroactive variation to the Trial Order to terminate spousal support and cancel arrears is dismissed; g) The respondent shall pay the claimant any arrears in spousal support that are currently outstanding; h) The respondent's obligation to pay spousal support to the claimant will terminate as of June 1, 2019. [105] The claimant has been substantially successful on this application. Unless there are considerations of which I am unaware, she should recover her costs of this application from the respondent. If either party seeks to make further submissions on costs they are at liberty to do so by directing a request to Supreme Court scheduling within 30 days of the date of this judgment. "Horsman J."