Hellner v. Hellner

2007 BCSC 1509 Hellner v. Hellner IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hellner v. Hellner, 2007 BCSC 1509 Date: 20071010 Docket: E24839 Registry: New Westminster Between: Nancy Hellner Plaintiff And Andre Wallace Hellner Defendant Before: The Honourable Madam Justice Bruce Reasons for Judgment Counsel for Plaintiff D. Gradley Counsel for Defendant H. Chiu Date and Place of Trial/Hearing: September 24 - 28, 2007 October 1 - 3, 2007 New Westminster, B.C. INTRODUCTION [1] This is an action for divorce and corollary relief. The parties were married in 1991 and have three children. Benjamin, who was born on July 30, 1992, and the twins, Jonathan and James, who were born on December 15, 1996. The parties separated on November 26, 2005. Ms. MacDonald remained in the former matrimonial home located in the Fraser Heights area of Surrey with the three children. Throughout the separation the children have primarily resided with their mother and this issue is not in dispute. Mr. Hellner moved to a small basement suite nearby and had somewhat limited access to the children until an interim order was put in place in May 2007. [2] Before trial the parties secured interim orders with respect to child support, extra-ordinary expenses for the children, and access. There was also a joint guardianship order that required any disputed issue to be mediated before the parties resorted to legal action and did not allow either party to have a veto power. While the parties initially attempted to resolve the issues arising out of their marriage breakdown with the aid of a family justice counsellor, these efforts were not successful. [3] Ms. MacDonald testified in regard to the matters relevant to a divorce order and there is no dispute concerning her evidence. The pleadings are in order and a registrar's certificate has been filed. Accordingly, I grant the parties a divorce pursuant to s. 8 of the Divorce Act. Pursuant to s. 12 of the Act this divorce shall take effect 31 days from the date of this order. [4] The issues in dispute are as follows: 1. Whether there should be a custody order and if so whether it should be joint or sole custody. Access is also in dispute. 2. Whether the former matrimonial home should be sold and its proceeds divided equally. 3. The division of the chattels remaining in the former matrimonial home and division of other assets. 4. What, if any, expenses pursuant to s. 7 of the Guidelines should Mr. Hellner pay and what is his proportionate share? Should there be a retroactive order? 5. Whether the Joyce Model of joint guardianship should be imposed. 6. What is Mr. Hellner's guideline income for the purpose of determining child support? Should there be a retroactive order? 7. Is Ms. MacDonald entitled to spousal support and has she made reasonable efforts to become self sufficient? CUSTODY AND ACCESS [5] While the parties do not dispute that primary residence of the children should remain with Ms. MacDonald, they disagree about the form of any custody order and whether there should be an order for custody. Ms. MacDonald maintains that a custody order is not necessary because there is no concern about abduction, the children are not infants, and the parties are agreeable to cooperating in terms of travel abroad. If there is to be an order for custody, Ms. MacDonald argues it should be sole custody in her favour. Mr. Hellner argues joint custody will secure him a more significant role in the children's lives and facilitate a more equal parenting relationship. [6] I agree with Mr. Hellner's submission. The parties have agreed to joint guardianship and the only dispute is the mechanism for resolving conflicts. The evidence establishes that Mr. Hellner was an involved father during the marriage. Although he has a different parenting style from Ms. MacDonald, he spent time with the children and was an integral part of their lives. Since the separation, for a variety of reasons, that relationship has suffered. A joint custody order will help restore the father/son relationship if only in a psychological sense. There is no evidence that the relationship between the parties, although somewhat strained, renders joint custody contrary to the best interests of the children. Thus I order that the parties have joint custody of the three children of the marriage. [7] The question of access was hotly debated in evidence, but in submissions it became apparent that the parties are not too far apart. The parties agree Mr. Hellner should have alternating weekend access and mid week access. What is in dispute is whether Ben should have a choice to forgo time with his father, to what extent the mid-week access should take into account the children's homework and bed times, and whether Ms. MacDonald should share in the transportation of the children. [8] I find that mid-week access for the children must take into account their normal bed times. At age 10, these active children require the proper amount of sleep to function appropriately at school. The twins, in particular, require a good night's sleep to maintain focus at school because of their learning disabilities. Thus during the school year, mid week access with the twins should not be any later than 8 pm. During the holidays, mid week access should be no later than 9 pm or as agreed between the parties. It is not disputed that normally mid week access for the twins should take place on each Tuesday commencing at 4:30 pm. [9] The matter of homework is another issue in dispute. Ms. MacDonald emphasizes the importance of placing a priority on completing homework assignments over all other activities, including access visits with Mr. Hellner. Because of the twins' learning disabilities, they require additional time and assistance with their homework and it is very stressful for Jonathan, in particular, if he has not had time to do his school work or feels unprepared. Mr. Hellner argues that homework assignments are just an excuse to cancel an access visit and, in any event, he is capable of helping the twins with their assignments. [10] On my assessment of the evidence, it is unlikely Mr. Hellner is capable of providing the kind of assistance required to ensure the twins complete homework assignments. He only occasionally helped with homework during the marriage, at a time when the children were much younger, and he has not played a part in their educational development since the separation in November 2005. Jonathan admittedly has numerous and significant learning disabilities and the Hotz report dated July 31, 2007 confirms that James continues to have difficulties with focus and sustained attention, reading and written language skills, and math. I am also satisfied that Mr. Hellner's interests are more sports oriented rather than academic. He likes to engage in physical activities with the children and take them to movies. Thus it is unlikely that homework would get done during a mid-week access visit. [11] On the other hand, it is in the best interests of the children that they have meaningful time with both parents. The children have much to learn from both their parents who have unique and very positive attributes. To strike a balance between these two opposing concerns, I find it is appropriate to fix Tuesdays as the mid-week access day for the twins, but allow Ms. MacDonald to cancel the day on one hour's notice to Mr. Hellner solely on the ground that the twins require the time to complete homework due the following day. To ensure the access day is made up, Mr. Hellner shall be entitled to exercise the mid-week access for the twins on the Friday of the same week. In other words, if the Tuesday access is cancelled for homework, Mr. Hellner must have the Friday of the same week as a replacement day. If the Friday is unavailable to Mr. Hellner, or is already an access day, he shall be entitled to re-schedule the access day peremptorily and without the approval of Ms. MacDonald as to his choice. [12] The parties are in agreement that Mr. Hellner should have access on alternating week ends. Ms. MacDonald submits the existing order, which establishes a Saturday morning to Sunday evening schedule, should be continued because Mr. Hellner does not consistently exercise this much access in any event. Mr. Hellner argues the weekend access should begin on Friday afternoon at 4:30 pm and maintains he has picked the children up later on a Saturday only because the children's activities have conflicted with the normal pick up time. [13] I agree with Mr. Hellner's proposal with the exception of the time for drop off on Sunday nights. As the children mature, they become involved in more peer activities and organized sports. The weekends are generally the time when these activities occur. As a consequence, there are fewer and fewer opportunities for meaningful parenting time. Extending the access weekend to include Friday evening increases the opportunity for parenting time; the access parent has an opportunity to do more than drive the children to their activities. It also allows the access parent to take the children away for the weekend so that they can have some family time. However, I disagree with the 9 pm return on Sunday. If it is a school night, the children should be returned at 5 pm to give them an opportunity to do homework and prepare for school the next day. If the children are not in school, the access visit shall be extended to 9 pm or a time agreed between the parties. [14] Mr. Hellner also seeks a mid week access evening with Ben on his own. It is apparent that both Mr. Hellner and Ben desire time together apart from the twins because of their age difference. The issue is whether the access should be subject to Ben's wishes. Mr. Hellner argues that Ben's reluctance to visit with him is due to Ms. MacDonald's disapproval of their relationship. Mr. Hellner argues that Ms. MacDonald discourages any meaningful relationship between himself and Ben. Ms. MacDonald denies these accusations and argues that she has been very supportive of Ben's relationship with his father. She argues that Ben is old enough to have a say in whether he visits with his father and his busy schedule should take priority. [15] I am not satisfied the evidence supports a conclusion that Ms. MacDonald is alienating Ben from Mr. Hellner. However, for what ever reason, father and son have not had any contact for several weeks. Both parties agree that counselling might be necessary to improve their relationship. Ms. MacDonald also agrees to participate in counselling if the counsellor feels it is appropriate. Mr. Hellner believes counselling is covered by his extended health plan and is willing to seek out this assistance with Ben. At age 15, however, Ben would have to be agreeable to counselling for it to have any positive impact. [16] The question is what can be done in the interim to restore access visits? Although I agree that a 15 year old boy should not normally be forced to spend time with his father if he is not willing to do so, long stretches of no contact is likely to worsen the father and son relationship. It is difficult to improve their relationship if Ben never sees Mr. Hellner. [17] On balance, I find a compromise should be struck between respect for Ben's wishes and restoration of the relationship between father and son which no one argues is contrary to Ben's best interests. Thus I am ordering that Ben and Mr. Hellner have a midweek access evening once per week on a day selected by agreement and failing agreement as designated by Mr. Hellner. This evening access period would not be optional for Ben. [18] The weekend access visits shall be at Ben's option. His wishes will govern what, if any, part of the weekend he will spend with Mr. Hellner. It may well be that counselling, commenced in a timely fashion, will improve the relationship to the point where Ben's participation in the access visits will no longer be a concern for Mr. Hellner. Ms. MacDonald's positive reinforcement of Ben's relationship with Mr. Hellner will also go a long way toward resolving this issue. [19] Finally, Mr. Hellner argues that Ms. MacDonald should share in the transportation to and from the access visits. Mr. Hellner maintains that if Ms. MacDonald has this responsibility it will show that she supports the father having time with the children and this will be a positive influence on their relationship with him. Ms. MacDonald argues that she has the boys the majority of the time and is constantly driving them to their activities and appointments. The time spent with their father is her free time. [20] I find that Mr. Hellner makes a good point about the children's visual perception of Ms. MacDonald's commitment to his parenting time. Although I find that sharing the driving during the mid week access is not workable, particularly because Ms. MacDonald works during the week days, the driving for the weekend access could be shared without over burdening Ms. MacDonald. Further, it will ensure the children are either picked up or brought back on time which is a concern for Ms. MacDonald. Accordingly, I order that for the alternating weekend access, the parties also alternate pick up and drop off between the two homes. If Mr. Hellner picks up then Ms. MacDonald will retrieve the children on Sunday at 5 pm and visa versa. [21] The parties agree that they will each have the children on the Father's day and the Mother's day every year even if these days fall on Mr. Hellner's normal access days. If Mother's day falls on a regular access day, Ms. MacDonald shall pick the children up at 10 am on Sunday. [22] There is also no dispute that the parties should alternate Easter Holiday time with the children. Ms. MacDonald shall have the children for the Easter Holiday in 2008 and in all succeeding even number years. Mr. Hellner shall have the children for the Easter Holiday in 2009 and all succeeding odd numbered years. Pick up and drop off arrangements will be made directly between the parties. [23] Mr. Hellner proposes that the parties also alternate Spring break vacation. The children are given two weeks holiday each year. Ms. MacDonald is opposed to this arrangement. She argues that if Mr. Hellner is working, the children will be more comfortable staying at her home during the Spring break. If Mr. Hellner plans to take the children away during Spring break, Ms. MacDonald is not opposed to his proposal. Whether Mr. Hellner is working, or plans to remain in town with the children over Spring break, should not determine his right to have additional parenting time with the children. Even if he is working, there is still the opportunity for time with the children during the evenings and the weekends. Depending on the child care arrangements, the children may wish to spend the days at Ms. MacDonald's home, but it would be on the understanding that they would return to Mr. Hellner's residence each evening after he finishes work. [24] In my view, the parties should share the Spring break holiday with each taking the children for one week. This arrangement will likely suit the children's needs better and provide the parties with an opportunity for relaxation time with the children even if no special vacation plans are made. The parties should also be given an opportunity to take the children for both weeks if they have a planned out of town vacation. To ensure no parent is deprived of his or her week unfairly, the opportunity to take the children for both weeks will alternate. Commencing Spring break 2008, Mr. Hellner shall have this opportunity in the even years and Ms. MacDonald shall have this opportunity in the odd years. [25] The parties agree that Mr. Hellner should have parenting time with the children during the summer months for two consecutive weeks. The dispute centres upon the date for determining these weeks. Ms. MacDonald proposes a date that is too early (February 28th) and Mr. Hellner proposes a date that is too late (June 15th). A compromise is appropriate. Mr. Hellner shall provide Ms. MacDonald with written notice of his choice of weeks by May 15th each year. This provides ample time for Ms. MacDonald to organize summer activities for the children and gives Mr. Hellner some flexibility to arrange holiday time with his employer. [26] Mr. Hellner is also prepared to give up Labour Day weekends even if they fall on his access weekend. He believes Ms. MacDonald requires this time to prepare the children for school. [27] The parties have not been able to resolve the matter of Christmas access. Mr. Hellner proposes the parties alternate Christmas Eve and Christmas Day with the children. Ms. MacDonald submits that it is traditional for Mr. Hellner's family to celebrate Christmas on December 24th rather than on Christmas Day. Thus she proposes that Mr. Hellner always have the children on Christmas Eve and she will have the children every Christmas Day. Ms. MacDonald also argues that this is a fair arrangement because she has no other family members to spend Christmas with and Mr. Hellner has a large extended family. [28] Christmas is a special time for many families and this family's Christian beliefs underline the importance of this holiday. Mr. Hellner admits that his family usually has a gathering on Christmas Eve, but he disputes Ms. MacDonald's evidence that Christmas Day is not a special occasion for his extended family. It is apparent that during the parties' marriage they celebrated Christmas Day with the children. Thus even if Mr. Hellner's extended family traditionally celebrate on Christmas Eve, December 25th has always been celebrated by his immediate family. It is only in the past two years that the children have spent Christmas Eve with their father rather than Christmas Day. This does not establish an historical pattern justifying a continuation of the practice. [29] Thus I find it is appropriate that the parties alternate Christmas Eve and Christmas Day with the children. Commencing 2007 Mr. Hellner shall have the children from 11:00 am on December 25th to 11:00 am December 26th in all subsequent odd numbered years. Commencing 2008 Mr. Hellner shall have the children from 11:00 am December 24th to 11:00 am December 25th in all subsequent even numbered years. [30] It does not appear the parties are opposed to alternating New Years' Eve and New Years' Day. Accordingly, commencing 2007 and for all subsequent odd numbered years, Mr. Hellner shall have the children from 4:30 pm on December 30th to 9:00 pm January 1st. Ms. MacDonald shall have this time with the children in the even numbered years. [31] The parties shall share the available time with the children during the balance of the Christmas vacation days equally, the days to be agreed upon no later than December 1st each year. [32] Finally, the parties agree that each parent should have generous telephone and email access to the children while they are with the other parent. To facilitate this contact, each party shall provide the other with a contact number that will ensure the other parent can reach the children both during the day and night time hours. GUARDIANSHIP [33] As discussed earlier, the parties are in agreement with joint guardianship along the Joyce model. Their dispute centres on the "veto power" exercised by the primary residence parent. At the present time the parties are subject to an interim guardianship order that requires mutual agreement on all issues with disputes resolved first by mediation and then by court application. [34] Mr. Hellner argues the status quo should be maintained because the parties have a good track record resolving disputes concerning the children, mutual decision-making fosters an equal parenting role for both parties, and in the past Ms. MacDonald has inappropriately made unilateral decisions about the children. [35] Ms. MacDonald argues that a requirement to mediate and attend court for every dispute about issues affecting the children is unworkable. Since the interim order was imposed the parties have had a great deal of difficulty resolving issues about the children and the family cannot afford to be in the courts each week. She also argues that during the marriage Mr. Hellner allowed her to make all the major decisions affecting the children and this practice has continued since their separation. [36] Both parties' submissions have some merit. Mediation and court applications are a costly and time consuming mechanism for resolving problems concerning the children's lives. Many decisions have to be made quickly and cannot await a considered decision by a trial court or even assistance from an independent mediator. Ms. MacDonald is the primary resident parent thus she is in the best position to determine the children's immediate needs. Further, Mr. Hellner admits that because Ms. MacDonald is a trained nurse, she is better able to decide matters relating to the children's health. [37] On the other hand, Mr. Hellner has demonstrated a keen desire to be a part of the children's lives and play a significant parental role in their upbringing. Thus to effectively give Ms. MacDonald a veto power over any issue concerning the children would render his parental role illusory. [38] Again, a compromise is necessary to ensure the best interests of the children are respected. Ms. MacDonald should have the right to make decisions concerning the children's health and education subject to Mr. Hellner's right to apply to court for a determination of the issue if he feels strongly enough about the matter. Ms. MacDonald is primarily responsible for assisting the children with their school work and is in regular contact with their teachers. Thus she is in the best position to know their needs in this area. In addition, Mr. Hellner agrees that Ms. MacDonald is better able to assess the children's health issues. Any other matter concerning the children's upbringing shall be subject to the current dispute resolution mechanism. [39] In addition, any matter concerning the children which requires a financial contribution from the other parent must be subject to the mutual agreement of the parties with disputes resolved pursuant to the current mechanism. This provision does not apply to any items included in the categories of extra-ordinary expenses sanctioned or approved by the terms of this judgment which are hockey expenses, private school fees, child care, and health expenses. Ben's trip to China with the school is also excluded from the dispute resolution mechanism because this trip has already been the subject of a court order. [40] Both parties agree that they will cooperate in regard to the provision of passports for the children, letters of authorization to permit each parent to leave the country with the children, and in regard to out of town itineraries and contact information. DIVISION OF THE FORMER MATRIMONIAL HOME [41] Mr. Hellner argues that all of the family assets should be divided equally and the matrimonial home, in particular, sold immediately. He maintains that the length of the marriage, Ms. MacDonald's ability to become financially independent within a short time, and his need to provide a suitable residence for the children demand this result. If the former matrimonial home is not sold, or Ms. MacDonald does not buy out his interest in the home, Mr. Hellner argues he will be unable to sustain a lifestyle comparable to that enjoyed by Ms. MacDonald and the children. Mr. Hellner also points to the fact that his income is less than $90,000, that there are no other significant family assets, that he contributed to the purchase of the home during the marriage, and that his child support obligations are crippling him financially. Thus he is opposed to any postponement of the sale. [42] While Ms. MacDonald recognizes the sale of the home may be inevitable, she argues the sale should be postponed at least until the children are out of school. The children need stability at this time of their lives, the house is very close to their school, and there is well established relationship with neighbours and their children. The downstairs tenant not only assists with the household expenses, but offers safety and security for the children. [43] Ms. MacDonald also argues that the home's value should be reapportioned in her favour (70% to 30%), in addition to a lump sum spousal support, because the vast majority of the family assets were purchased with her inheritance money and savings in excess of $380,000, because until separation she had been out of the workforce for several years and thus suffered economically from the marriage breakdown, because she earns about one half of Mr. Hellner's income and will continue to be unable to match his income for the foreseeable future, and because she has primary care of the children. [44] The former matrimonial home is the parties' primary asset. There are some RRSP's and a small amount of savings; however, this is the only family asset of significant value. The home is now worth between $705,000 and $725,000 according to the appraisals obtained by the parties. It is encumbered by a line of credit taken out to pay for an investment made during the marriage. This line of credit is now about $83,000. It is a very large home at 4,500 sq. ft and it has a basement suite that nets between $5,000 and $6,000 per year on average. [45] Ms. MacDonald's current income is $45,563. Mr. Hellner's income varies, but for 2007 his income is projected to be $88,910, excluding a car allowance. His child support obligation, based on a guideline income of $88,910 is $1,692 per month. He has taken out two sizable lines of credit since separation. Money is clearly an issue for Mr. Hellner. Ms. MacDonald also has financial concerns. Although she has been able to manage her monthly expenses without going into debt, it is only because she has been frugal and adjusted her lifestyle to meet the new circumstances. [46] While there is some merit to Ms. MacDonald's argument that the children require stability in their lives and would be adversely affected should the home be sold at this time, I find there is no other solution to the family's financial problems. Mr. Hellner is obligated to pay child support and a proportionate share of the children's extraordinary expenses. His income does not allow him to buy a house or rent a suitable apartment after paying these expenses. He lives in a small basement suite which is not appropriate for four people. His lifestyle is not in any sense comparable to that of Ms. MacDonald who resides in the former matrimonial home. The children see that difference when they visit their father. Accordingly, it is not appropriate that the sale of the house be postponed for an extended period. [47] Ms. MacDonald should be given an opportunity to buy out Mr. Hellner's interest in the home. Taking an average of the two appraisals, the house should be valued at $715,000. If Ms. MacDonald is unable to buy out Mr. Hellner's interest in the home within 60 days of this judgment, it must be listed for sale on the terms set out below. [48] Ms. MacDonald will be allowed to remain in the home until the conclusion of the 2007/2008 school year to avoid any unnecessary disruption in the children's schedule until the summer. The house will be listed for sale no later than March 1, 2008 with a closing date no earlier than June 30, 2008. The parties shall have joint conduct of the sale and any accepted offer shall be subject to court approval absent an agreement of the parties in regard to an offer to purchase. [49] Turning to the division of the matrimonial home, there is a statutory presumption of an equal division of all family assets. This presumption may be rebutted where there is evidence that an equal division is unfair having regard the factors described in s. 65 of the Family Relations Act. In this case, the parties were married for about fourteen years, which is a considerable period of time. They pooled their money and assets at the commencement of their relationship. During the marriage both parties contributed to the maintenance and upkeep of the home. While Mr. Hellner was the primary income earner, sometimes holding down two jobs, and thus made a greater financial contribution toward the family finances during the marriage, Ms. MacDonald managed the household which included all the housekeeping, child care, and family meals. Without her assistance in the home, Mr. Hellner could not have maximized his income earning potential. Their lives were, in this respect, the product of a family partnership. [50] There are, however, a number of factors that suggest it would be more equitable to divide the house proceeds in Ms. MacDonald's favour. First, a large percentage of the purchase price for the home was derived from Ms. MacDonald's inheritance upon the death of her parents and her pre-marriage savings. When the parties married Ms. MacDonald resided in a home that was left to her by her parents. This house was sold soon after the parties were married and the proceeds of the sale, $285,000, as well as Ms. MacDonald's $62,000 in pre- marriage savings, were used to build a new house on a large lot in Surrey. When this second house was sold in 1994, the parties used the money to buy the home where Ms. MacDonald and the children currently reside. [51] Mr. Hellner had only his vehicle, a few items of furniture, and a small amount of savings and RRSP's when the parties were married. Thus he did not match Ms. MacDonald's contribution toward their joint finances and the purchase of their first home together. In addition, apart from the increased market value of the current family home ($410,000 as the purchase price to $715,000) the family did not accumulate many assets during the marriage and, indeed, incurred a relatively large amount of debt as a result of some unsuccessful investments. Thus the family's total asset position today is in large part due to the capital brought into the marriage by Ms. MacDonald. [52] Second, while Mr. and Ms. MacDonald both contributed to the maintenance and upkeep of the home during the marriage, after their separation in November 2005 Ms. MacDonald was forced to make extensive repairs to the basement suite as a result of flood damage. The cost of the repairs was approximately $9,500. This expense was not shared by Mr. Hellner. Thus it is apparent that Ms. MacDonald made a sizable contribution to the upkeep of the property that was not matched by Mr. Hellner's contribution. [53] Ms. MacDonald did receive the rents from the suite in the house from November 2005 onward. However, during this period she received no spousal support and paid all the taxes, utilities, insurance and necessary repairs for the home. This was particularly onerous because Mrs. MacDonald's income was only $21,000 for 2006. Because of the repairs to the basement suite, the net rental income for 2006 was minus $260.95. [54] Mr. Hellner also discontinued paying half of the line of credit interest in or about June 2006 but took a tax credit for all the payments, as well as the loss from the Opus Cranberry investment, from 2005 onward. Ms. MacDonald paid 100% of the interest payments on the line of credit after Mr. Hellner stopped paying his share and this was about $400 per month. Finally, Mr. Hellner does not claim nor is he entitled to claim occupational rent because he voluntarily left the matrimonial home. He was neither evicted nor otherwise forced out. [55] Third, Ms. MacDonald has been left in a position of economic disadvantage as a result of the marriage breakdown. During the marriage she was the children's primary caregiver and a stay at home mother in a traditional marriage relationship. While she worked a small number of part time hours at various periods during the marriage, these jobs were outside of her profession as a registered nurse and her earnings were limited ($7,299 in 2002, $8,914 in 2003 and $13,674 in 2004). Due to her long absence from the workplace, Ms. MacDonald lost her status as an RN and had to undergo retraining to restore those qualifications. As a consequence of being outside of the nursing field for over 13 years she has forgone seniority as an RN, must start again at the bottom of the wage scale, has lost the opportunity to obtain promotions, and to accrue pension credits. At the same time, Mr. Hellner was able to maximize his earnings and move ahead in his career, in large part because Ms. MacDonald took on the vast majority of the household and child care responsibilities. [56] Ms. MacDonald's income is currently about one half of Mr. Hellner's income and there is no evidence that her earning capacity will improve in the foreseeable future. The job she now has in a doctor's office is a one year contract. In March 2008 Ms. MacDonald's contract may not be renewed. If this occurs, her income will drop because, as discussed later on, working full time as a nurse in a hospital would be completely incompatible with her child care obligations. Ms. MacDonald has two young children who have significant learning disabilities. They require several hours of close supervision and assistance each night to complete homework. Ms. MacDonald cannot regularly work twelve hour shifts, including nights, at a hospital and still care for two ten year old boys and a young teen. [57] Based upon the evidence before me, it is apparent that Ms. MacDonald has proven an entitlement to spousal support based upon compensatory grounds. See, Moge v. Moge, [1992] 3 S.C.R. 813. It is equally apparent that Mr. Hellner's income is insufficient to pay additional monies to Ms. MacDonald in the form of monthly spousal support payments over and above his child support obligations and s. 7 expenses. Further, apart from the family home and a modest amount of RRSP funds, there are no other assets that could be a potential source of funds to assist Ms. MacDonald to become economically self sufficient. Thus the only feasible means by which Ms. MacDonald will be able to become and remain economically self sufficient is by awarding her a greater percentage share in the former matrimonial home. [58] Fourth, Ms. MacDonald has primary responsibility for the three children of the marriage. Her ability to meet these responsibilities is challenged because of her lower income and because she will be unable to work full time for some years into the future due to their age and circumstances. Thus Ms. MacDonald has a greater need for re-apportionment because of child care responsibilities. [59] I am cognizant that in principle the earlier in the marriage that an inheritance is used for a family purpose, the less influence it should have in justifying a re-apportionment of a family asset: Godding v. Godding (1981), 36 B.C.L.R. 145 (BCSC). However, in this case there are a constellation of relevant factors that, taken as a whole, warrant a re-apportionment of the matrimonial home. [60] For all of these reasons, I find that the net proceeds of sale from the former matrimonial home must be divided 70% in favour of Ms. MacDonald and 30% in favour of Mr. Hellner. If the house is sold on the market, from the gross sale proceeds will be deducted the full amount of the line of credit, real estate commission, legal and administrative costs, and any other costs agreed to by the parties. It is not disputed that the line of credit was a family debt incurred during the marriage. If Ms. MacDonald purchases Mr. Hellner's share of the home, each party's share shall be debited one half the value of the line of credit as at the date of the purchase. [61] Until the matrimonial home is sold or Ms. MacDonald buys out Mr. Hellner's share, Ms. MacDonald shall be responsible for paying the line of credit, the property insurance and property taxes. She is entitled to retain the rental income to offset these expenses. DIVISION OF OTHER FAMILY ASSETS [62] The parties have agreed that each will retain their respective automobiles without any set off in value. Further, the parties have been able to divide most of their household items and furniture. There are only a few items in dispute. These include a dining room suite, the master bedroom suite, a china set, the downstairs fridge, and a couch with matching chairs. Ms. MacDonald claims a sentimental attachment and a pre-existing right to the china and the couch and chair set. The china was given to her at age 16 by her grandmother. The chairs were also inherited by Ms. MacDonald and only re-covered during the marriage along with the purchase of a matching couch. Ms. MacDonald claims that an inheritance from her aunt in the amount of $32,000 was used to purchase both the bedroom set and the dining room suite. [63] Mr. Hellner argues that the aunt's inheritance monies were placed in their joint account and used for family purposes. As a consequence, the inheritance cannot be separated out and must be regarded as a family asset. He also argues that the furniture was purchased with his bonus and tax refund for 1993. In regard to the couch and chairs, Mr. Hellner argues the cost of recovering the chairs and having a couch made to match was $7,000 to $8,000. Thus they are family assets and cannot be regarded as a pre-marriage acquisition. Lastly, Mr. Hellner claims a sentimental attachment to the Royal Albert china and appreciates their beauty. [64] I agree with Mr. Hellner's submission that because Ms. MacDonald's inheritance monies were mingled with family money in the joint account, and spent for a family purpose, any resulting purchases must be considered family assets. Thus whether the furniture was purchased with the inheritance monies or Mr. Hellner's tax refund, they remain family assets. [65] It is apparent that Ms. MacDonald retained a majority of the household furniture. This result is not unfair having regard to the fact that she has primary care of the three children, and thus a demonstrated greater need, is less able to replace the items because of her lower income, and she brought into the marriage most of the furniture the parties enjoyed the use of throughout the 14 years they were together. [66] However, Mr. Hellner should have a share in the disputed items. The cost of the couch and re-covering the chairs, according to Mr. Hellner's evidence, was roughly comparable to the purchase price of both the bedroom set and the dining room suite combined, if value is attributed to the chairs themselves apart from the cost of the re-covering. All the furniture was purchased in the early 1990's and thus have likely depreciated in value in any event. Accordingly, I find that it is fair that Mr. Hellner take the couch and chair set and Ms. MacDonald shall have the bedroom set and the dining room suite as an equivalent offset. [67] The china was inherited by Ms. MacDonald before the marriage. Mr. Hellner may have used it during the marriage; however, it is Ms. MacDonald who has the sentimental connection to the china and it cannot be said to have been mingled with other family assets in the same manner as the inheritance monies. Thus Ms. MacDonald is entitled to retain the Royal Albert china set. [68] The fridge claimed by Mr. Hellner is used by the tenants in the basement suite. If the house is sold, Mr. Hellner will share in the value added to the residence by this appliance. If Ms. MacDonald buys out Mr. Hellner's interest in the home, the fridge will be evaluated and Mr. Hellner shall receive a credit for it. [69] There is no dispute that the parties' RRSP's should be divided equally as of the date of judgment by way of a spousal roll over. There is an RESP for the children held by Mr. Hellner in trust. He agrees to retain this fund for the children's education and to account to Ms. MacDonald annually with regard to the funds remaining in the account. [70] The parties' savings and chequing accounts were divided equally at the time of their separation with one exception. Ms. MacDonald retained an account in the Scotiabank which contained $2,693.99 at the time of separation. Because Ms. MacDonald paid 100% of the Terasen gas and BC Hydro adjustments for 2005, the cubs registration fee, the cost of a Summit trip for Ben, and the damage deposit for the rental suite, Mr. Hellner agrees she is entitled to keep the Scotia Bank account as an equivalent offset. Also included in the offset is the fact Mr. Hellner retained his car allowance for November 2005. [71] As set out earlier, the Toronto Dominion Bank line of credit used to purchase the Daley Resources joint venture investment will be shared equally and the parties agree to share equally the loan used to pay the balance of the Opus Cranberry investment which is $12,342.56. Lastly, the parties have an investment account with Odlum Brown which is to be divided equally. This investment is currently worth $5,105.24. [72] Finally, Mr. Hellner retained a tax refund for 2005 in the amount of $9,380.31. Ms. MacDonald argues that she is entitled to share this family asset equally. Mr. Hellner does not dispute that the refund is a family asset. He argues, however, that Ms. MacDonald's share should be offset by a master card debt that he paid in the amount of $5,000. While Mr. Hellner should be entitled to an offset for any family debt he paid after separation, he has not produced any records from Master Card to show the amount that was paid and what the money was used to purchase. Thus neither the amount of the debt nor whether it was related to family expenditures can be determined. Although I do not doubt Mr. Hellner's veracity, his recollection of money matters has not been consistently accurate. Thus I am unable to give him a credit for this account. Ms. MacDonald is entitled to a one half share of the income tax refund. CHILD SUPPORT AND EXTRA-ORDINARY EXPENSES [73] The parties' dispute centres upon three issues. Whether the cost of hockey for Ben and James and should be regarded as an extra-ordinary expense within the meaning of s. 7 of the Child Support Guidelines, whether certain items should be regarded as included within the category of extra-ordinary expenses for private school and hockey, whether Mr. Hellner should have a right of first refusal for child care, and whether Ms. MacDonald should be regarded as underemployed for the purpose of calculating her share of the extra ordinary expenses. [74] At the present time Mr. Hellner pays child support and his proportionate share of the private school fees and the hockey costs pursuant to an interim order. Although Mr. Hellner was at first reluctant to keep all three boys in their current private school, he now recognizes that due to their learning disabilities, they require the additional learning assistance not available in the public school system. Thus he agrees to pay his proportionate share of the school fees but disputes the other related expenses that Ms. MacDonald claims. Ms. MacDonald agrees to pay 100% of the costs associated with all the children's sports except hockey and asks Mr. Hellner to share the cost of health care not covered by their plans and the cost of child care for the twins, primarily during the summer. Ms. MacDonald argues that once something is determined to be an extra-ordinary expense, all associated costs should be shared proportionately based on the parties' incomes. [75] Addressing first the issue of child support, there is no dispute as to Mr. Hellner's current income. Excluding his car allowance, Mr. Hellner's annual income for 2007 is $88,910. Further, there is no dispute that based on this Guideline income Mr. Hellner should be paying $1,692 in child support each month. Thus commencing November 1, 2007 Mr. Hellner shall pay $1,692 per month in child support, which will be payable in two equal instalments on the first and 15th of each month and continuing thereafter until further order of this court. Post dated cheques shall be provided by Mr. Hellner one year in advance. [76] Turning to the parties' proportionate share of the s. 7 expenses, Mr. Hellner argues that Ms. MacDonald could be working 100% of a full time job rather than her current 80% of a full time schedule. She now works four days per week in a doctor's office and one 12 hour shift per month at the hospital. Mr. Hellner maintains that any child care responsibilities arising out of the need to work night shifts or long hours during the week can be assumed by Ben who is now 15 years old and mature for his age. He is also willing to work fewer hours and help take care of the twins while Ms. MacDonald works at the hospital at night. Ms. MacDonald argues that Ben is not old enough to take on the additional responsibility of caring for his ten year old brothers on a regular and extended basis, that Mr. Hellner is neither reliable nor capable of handling all the children's needs, particularly because of the intensive supervision and help they need to complete homework, and that a full time job, particularly at a hospital, is unrealistic given the age and special needs of her three children. [77] I find that Ms. MacDonald has done all she can at this point in time to achieve economic self sufficiency. Further, I find she is not underemployed by working 80% of a full time job, plus an additional shift at the hospital, which amounts to 88% of full time job. The children are extremely dependent upon her for a number of reasons. The twins are only ten years old. They are not old enough to be left alone during the day or night and Ben, at 15 years old, cannot be expected to act as a substitute parent. It is also apparent that the twins, and to a lesser degree Ben, are highly dependent upon Ms. MacDonald for assistance with their school work. All three children have significant learning disabilities and Ms. MacDonald has traditionally spent many hours with them each evening and on weekends helping them to cope with homework and out of school assignments. The children are also very active in sports and other extra-curricular activities that require Ms. MacDonald to drive them to various locations several times per week. [78] The evidence also supports a conclusion that Mr. Hellner is not capable of providing the children with the support required to complete homework assignments. He has not helped with their homework since the parties' separation in November 2005 and during the marriage Mr. Hellner was only occasionally involved in this task because he worked long hours. Mr. Hellner is also not academically oriented, having only a Grade 10 education, and has no training or experience with learning disabled children. [79] I am also not satisfied that Mr. Hellner is capable of filling in for Ms. MacDonald while she works nights at a hospital. Since the commencement of the parties' relationship Mr. Hellner has been committed to his career. He has traditionally worked long hours and at times took on a second job. He also candidly admitted that Ms. MacDonald is better able to provide the children with the care and nurturing they need at this time in their lives. He expressed no desire to become the custodial parent at this time. [80] It is also important to consider that Ms. MacDonald has more than doubled her pre-separation income by re-qualifying as an RN. At substantial cost she took courses through long distance education while continuing to work and then carried out a three month hospital practicum from January to March this year without any additional financial assistance from Mr. Hellner. In her current job Ms. MacDonald has organized her hours of work to accommodate family responsibilities. She has given up breaks, commences work very early, and takes only twenty minutes for lunch. This allows her to be home for the children after school. For a person who has been out of the work force generally for many years, and out of the nursing profession for almost 13 years, the steps taken by Ms. MacDonald to become self sufficient in such a short period are nothing less than amazing. [81] Accordingly, for the purpose of calculating Ms. MacDonald's percentage share of the s. 7 expenses, her income is fixed at the current amount of $45,563, which includes the child tax credit and any net rental income received in 2007. This guideline income produces a sharing of the s. 7 expenses in the following ratio: Mr. Hellner shall pay 66% and Ms. MacDonald shall pay 34%. [82] Each year, commencing in 2008, the parties shall exchange their income tax returns, notices of assessment, and copies of all attachments prior to May 15th. The parties' income, as calculated pursuant to the terms of this order, shall be used to determine any adjustments to child support and the sharing ratios for s. 7 expenses for any succeeding year, commencing June 1st. For example, the parties' actual 2007 income shall be used to calculate child support and s. 7 expenses for 2008 and so forth. [83] Mr. Hellner has agreed to pay his proportionate share of the children's yearly school fees for Pacific Academy which is currently $918 per month. He objects to paying a share of the uniform costs and other ancillary items such as field trips and shoes. Mr. Hellner argues these costs are already included in the child support. Ms. MacDonald argues Mr. Hellner should pay a proportionate share of all these costs because they are part of the school policy or curriculum. [84] I find there are a number of expenses claimed by Ms. MacDonald that are quite properly regarded as included within the child support payment. If the children did not attend a private school, they would still require clothing and shoes, school supplies, and money for field trips and other incidentals. These types of expenses are to be paid from child support and are not extra-ordinary expenses. The fact the children attend a private school does not render these expenses extra-ordinary within the meaning of the Guidelines. While Ms. MacDonald must buy uniforms for the children, there is no evidence the cost is any greater than public school attire. On the other hand, the school fees include not only the monthly charge, but also the registration fees ($50 per child each year) and the Summit school ($450 for Ben). All these items are properly regarded as part of the s. 7 expense. [85] Accordingly, Mr. Hellner is ordered to pay his proportionate share of the Pacific Academy school fees for all three children, which includes $918 per month for tuition, $150 for registration fees annually, and $450 for Ben's summit school. The total payable for 2007 is $9,870 and Mr. Hellner's proportionate share is (66%), which is $6,454.80 annually or $537.90 per month. In subsequent years it will be up to the parties to address the children's participation in the summit program on an annual basis pursuant to the terms of the guardianship order. The parties have agreed that that they will share the income tax deduction for the private school fees in accordance with the proportion paid by each party. [86] Mr. Hellner objects to paying the hockey expenses on the ground that the family can no longer afford to keep the boys in hockey. While the family could afford this expense during the marriage, the additional costs of maintaining two households since the separation makes hockey inappropriate as an extra-ordinary expense. Neither of the boys, argues Mr. Hellner, has the capacity to play hockey professionally and there are other, less expensive sports open to them. Mr. Hellner also relies upon Earles v. Earles, 2007 BCSC 221 which suggests community sports registration is not an extra-ordinary expense. [87] Ms. MacDonald argues that hockey is a sport that both parties agreed was good for the children's development during the marriage and to cut them off now because of a money concern would be contrary to their best interests. Indeed, there is no dispute that it was Mr. Hellner who originally signed up the boys for hockey at a young age. Ms. MacDonald also argues the children are very active and require this physical outlet to succeed in school because it improves their concentration. [88] Given the special role hockey has played in the lives of the children during and after the marriage, the fact both parents agreed this sport was beneficial for the children during their marriage, and considering the combined income of the parties, as well as their other financial commitments in respect of the children, I find hockey is appropriately regarded as an extra-ordinary expense. Both James and Ben have played hockey from an early age and they are more than adequate players. Mr. Hellner introduced all three boys to the sport when they were quite young and throughout the marriage strenuously encouraged them to be committed members of their teams. The parties also recognized that their children were extremely active and required a physical outlet to allow them to focus on school work. The cost of the boy's hockey is high and thus cannot be regarded in the same manner as less expensive community based sports; however, based upon my calculations below, it is not an unreasonable expense having regard to a combined family income of about $135,000 per year. [89] I am not satisfied, however, that all the expenses claimed by Ms. MacDonald can be regarded as within the purview of s. 7. Many of the expenses claimed relate to costs she would have incurred in any event as the primary resident parent and thus should be covered by the monthly child support payments. This would include expenses for additional ice time, skate sharpening, living expenses during out of town tournaments, as well as miscellaneous items such as hockey tape and socks. In my view, items of this nature are not properly regarded as extra-ordinary expenses. On the other hand, the registration fees for hockey, including rep team card and try out costs, training camp registration fees, special levies for tournaments, transportation to out of town tournaments, and replacement hockey gear are properly regarded as s. 7 expenses to be shared by the parties in proportion to their respective incomes. [90] Based upon Ms. MacDonald's figures, which are not disputed, hockey registration for Ben and James this year was $1,035, the try out fee for the rep team was $115, and the hockey school for James was $595. Thus excluding tournament fees and mileage for out of town tournaments, the total allowable s. 7 expenses under this heading would be about $2,045 per year. On a monthly basis this represents a cost to Mr. Hellner of about $112.48 ($2045/ 12 x 66%). [91] Because the expenses allowed under this heading are easily identified, I find that commencing the date of this order, the expenses should be shared on the basis of their actual cost. Ms. MacDonald shall submit receipts or cancelled cheques to Mr. Hellner and he shall pay his proportionate share within 7 days of receiving proof of payment. It is also understood that if Mr. Hellner takes the children to an out of town or in town hockey tournament, he will be solely responsible for his and their living expenses, over and above the tournament fees and travel costs. In addition, the parties shall share any tax deductions for the hockey expenses in accordance with their respective contributions. [92] The parties agree that the health related costs for the children that are incurred over and above those covered by the extended health and dental plans are properly regarded as s.7 expenses. These costs will be shared in proportion to their respective incomes. The parties agree that Ms. MacDonald's summary of these charges is accurate. Thus I order Mr. Hellner to pay his proportionate share of these costs which is $463.06 (66% of $701.60). Expenses in this category incurred after the compilation of Ms. MacDonald's list (at p. 161 Exhibit 6) shall be shared on the basis of the actual cost and Ms. MacDonald shall submit proof of payment to Mr. Hellner in regard to these expenses. Mr. Hellner shall pay his share of these costs within 7 days of receiving proof of payment. [93] Further, Mr. Hellner agrees to maintain the children on his extended health and dental plans. He also agrees to maintain Ms. MacDonald on these plans provided his employer approves. [94] Mr. Hellner agrees that child care expenses are properly considered extra ordinary under s. 7, but submits that he should be given a right of first refusal before he is obligated to pay his proportionate share. When Ms. MacDonald requires child care for the purpose of covering during her work hours, she is entitled to expect a contribution for these costs from Mr. Hellner because child care for this purpose is properly regarded as a s. 7 expense. Further, I believe it is unworkable to ask Ms. MacDonald to contact Mr. Hellner every time she requires child care for the twins. Sometimes it will be convenient to ask Mr. Hellner for assistance, and sometimes it will not, for a variety of reasons. [95] In particular, it is neither feasible nor appropriate for Mr. Hellner to stay overnight at the family home to supervise the children when Ms. MacDonald works the night shift at the hospital. It is also impractical to place the onus on Ms. MacDonald to locate Mr. Hellner and determine his availability if the child care need arises on short notice. Thus I find that it is only where practicable that Ms. MacDonald should be obliged to contact Mr. Hellner to care for the children when she is at work. "Where practicable" is necessarily a subjective assessment based on the circumstances at the time and cannot realistically be defined with more precision. Mr. Hellner, in turn, must ensure Ms. MacDonald has a contact number and his available dates and times to ensure child care is organized expeditiously. If it is obvious Mr. Hellner is not available, there is no reason for Ms. MacDonald to make a call. Hopefully, both parties can be reasonable in how they meet this expectation. [96] Accordingly, Mr. Hellner is ordered to pay his proportionate share of the child care costs incurred by Ms. MacDonald to date and as outlined at p. 156 of Exhibit 6, which includes babysitting ($175), Circle Square ranch ($657.20), Pacific Academy Super Camp ($182), soccer camp ($75), and vacation bible school ($100). The total cost is $1,189.20 and Mr. Hellner's proportionate share is 66% or $784.87. From and after the date of this order, Mr. Hellner shall pay his proportionate share of the child care costs within seven days of receiving proof of payment from Ms. MacDonald. Where babysitters are paid in cash, Ms. MacDonald should obtain a receipt that may be passed on to Mr. Hellner. RETROACTIVE CHILD SUPPORT AND SECTION 7 EXPENSES [97] Ms. MacDonald argues that Mr. Hellner should pay retroactive child support and s. 7 expenses from December 1, 2005 to July 2005 when he was ordered to pay interim child support and certain s. 7 expenses based on a guideline income of $83,000. While he paid child support and s. 7 expenses during this period, it was less than it should have been according to his guideline income and Ms. MacDonald's income. Ms. MacDonald argues the delay in determining his guideline income arose out of Mr. Hellner's failure to provide complete financial disclosure until shortly before the interim application was filed in May 2006. Mr. Hellner has had notice of the claim since February 2006 and there was a demonstrated need for the money. The order will not create a hardship because the money can be paid out as part of the division of the family home. Ms. MacDonald relies upon the decision of D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231, 2006 SCC 37. [98] Mr. Hellner argues against a retroactive award. Although he agrees there was a delay in the production of his financial statement and income tax returns, he argues Ms. MacDonald was fully aware of his income and bonus structure because she handled all the finances during their marriage. Mr. Hellner also argues that he paid child support and the full amount of the school fees on the bona fide understanding that the parties had agreed to these amounts in mediation with the family justice counsellor. Mr. Hellner also maintains the children have not suffered from a decline in their lifestyle as a result of the child support he paid and thus there is no evidence the children will benefit from the retroactive award. Lastly, a retroactive award would be an economic hardship to Mr. Hellner because he will lose a share of the family assets and has gone into debt to survive economically. Mr. Hellner relies upon Wetmore v. Wetmore, 2007 BCSC 1177. [99] In D.B.S. the Supreme Court discusses four factors that should play a role in deciding when to order retroactive child support. These factors include the reasons for the delay in bringing an application for child support, whether there has been any blameworthy conduct on the part of the payor spouse, whether the children suffered any hardship because of the failure to pay the proper amount of support, and whether the payor spouse will suffer any hardship as a result of the retroactive award. [100] None of these factors is determinative; that is, the absence of one factor does not automatically foreclose a retroactive award. Instead, D.B.S. advocates an holistic approach and directs trial courts to decide the issue based upon the particular context of the facts before her. (see, para. 99) [101] In this case, there is no evidence that the children's lives were disrupted in any substantial way by the failure to pay the appropriate amount of child support. While this was in part due to Ms. MacDonald's frugal ways, it cannot be ignored as a factor tending to support Mr. Hellner's position. The remaining factors, in my view, support Ms. MacDonald's position. Mr. Hellner engaged in blameworthy conduct when he ignored counsel's requests for financial disclosure without any explanation. The delay in producing evidence of his current income, in turn, led to the delay in bringing the application for child support. Although Ms. MacDonald may have been aware of the family finances during the marriage, there is no evidence she had full disclosure of Mr. Hellner's finances after the separation. [102] Finally, Mr. Hellner will not suffer a hardship because of any retroactive award. His income has not declined such that he will be paying more child support based upon a lower guideline income. He has not acquired additional family obligations such that the retroactive award would affect the lives of other children he has responsibility for. While Mr. Hellner took out two lines of credit in 2007, he has provided documentation for only one line of credit which was secured in April. At present this line of credit has a balance owing of $33,112.80. The purpose for this line of credit is not clear. Had Mr. Hellner gone into debt to pay for living expenses during 2005 and 2006, one would expect that the line of credit would have been taken out much sooner. The draws on the line of credit are also for large sums, which does not suggest he is using the money for monthly overdrafts. Absent a more specific explanation as to the purpose for the lines of credit, I find there is insufficient evidence to show that a retroactive award would cause hardship to Mr. Hellner in the manner contemplated by D.B.S. [103] On balance, I find a retroactive award is warranted. Mr. Hellner should not be allowed to profit from his delay in providing financial disclosure at the expense of the children. His conduct is something that the court should discourage by a retroactive award which removes any incentive to hide or delay full disclosure of financial information. While he is currently in debt, it is unclear that the money was used for living expenses as opposed to a business venture or legal fees. Thus it is hard to conclude a retroactive award would cause hardship. [104] The date for the retroactive order is also in the court's discretion. The most significant factor is when Mr. Hellner received notice that Ms. MacDonald was seeking a reconsideration of the matter of child support. I accept Mr. Hellner's evidence that until he received counsel's letter in February 2006 he was unaware that Ms. MacDonald was dissatisfied with the draft agreement negotiated with the assistance of the family justice counsellor. Her counsel's letter put him on notice that further financial disclosure was being sought to review the issue of child support. Thus the retroactive order will be effective as of February 1, 2006 and shall extend until July 1, 2006 which coincides the date of the interim order for child support. The parties are to determine the difference between the amounts of child support and s. 7 expenses paid during this period compared to the amount that should have been paid and I will remain seized of any dispute arising out of this issue. SPOUSAL SUPPORT [105] As discussed earlier in this judgment, Ms. MacDonald has demonstrated an entitlement to spousal support based upon the compensatory model. Ms. MacDonald's career as a registered nurse was put on hold during the marriage so that she could stay at home with the children. The parties agreed to this arrangement. As a consequence, Ms. MacDonald is now at a substantial disadvantage in terms of earning an income comparable to Mr. Hellner's and her pre-marital circumstances. While the divorcemate calculations submitted in evidence are not accurate because the incorrect income figures have been used, the parties agree that Mr. Hellner's income does not support the payment of monthly spousal support due to the cost of the s. 7 expenses. Instead, Ms. MacDonald is seeking a lump sum award of $60,000 based upon a conservative estimate of the loss in earnings suffered as a result of a family decision that she stay home with the children. [106] Mr. Hellner argues against a lump sum award based upon his inability to pay, the fact that Ms. MacDonald was unlikely to have pursued a career in nursing to maximize her earnings had there been no children, that her income loss cannot be calculated based upon the present wages paid to nurses under their collective agreements, and because when she works full time there is no substantial difference between her income and that of Mr. Hellner's. [107] The purpose of an award of spousal support under the compensatory model is, to the greatest extent possible, to remove the economic disadvantages suffered by the recipient spouse because of decisions made during the marriage concerning work and family responsibilities. The award is made where necessary to allow the spouse to become and remain economically self sufficient, and in long term marriages like this one, to roughly equate the parties' post separation standards of living. In calculating the amount of support, regard is had to the age and circumstances of the parties, the relative income disparity between the spouses, the extent to which each spouse has assumed responsibility for the children, the existence of other family assets, and any reapportionment in favour of the recipient spouse. A lump sum award should also take into account the tax consequences for both parties. [108] In this case, Ms. MacDonald acted quickly to re-qualify as a registered nurse. She took courses and finished up with a three month practicum. The cost of her retraining and the lost wages during the three month practicum should be incorporated as part of a lump sum spousal award. At the time she was earning about $21,000 per year or $1,750 per month and the cost of retraining was $3,800. By investing this money in retraining, Ms. MacDonald more than doubled her income thereby substantially reducing her need for spousal support and decreasing Mr. Hellner's proportionate share of the s. 7 expenses. Accordingly, the total amount of these costs $9,050 (3 x $1,750 + $3,800) are payable as lump sum spousal support. [109] Any further order for spousal support must be weighed against the fact that Ms. MacDonald has already been awarded 70% of the value of the family home, which is the parties' major asset. While her income is half of Mr. Hellner's, the additional monies from the house will go a long way to assisting her to become economically self sufficient. On the other hand, as indicated earlier, Ms. MacDonald will be unable to maximize her earnings as a nurse until the children are older and more self sufficient. This could be as long as four or five years because of the twins' learning disabilities and their current age (now 10). Thus Ms. MacDonald will likely be in her early 50's before she is able to maximize her income. [110] Bearing all these factors in mind, I find a lump sum spousal award, in addition to the cost of retraining, should be ordered in the amount of $10,000. This results in a total award for spousal support in the amount of $19,050. [111] Each party should bear their own costs given the divided success at trial. SUMMARY OF THE ORDERS Divorce [112] The parties are hereby granted a divorce pursuant to s. 8 of the Divorce Act. Pursuant to s. 12 of the Act, this divorce shall take effect 31 days from the date of this order. Custody, Guardianship and Access [113] The parties shall have joint custody and joint guardianship of the three children of the marriage and the children's primary residence will be with Ms. MacDonald. [114] The parties shall have joint guardianship as follows: (a) In the event of the death of either parent, the surviving parent will be the sole guardian of the children. The parents are joint guardians of the estate of the children. (b) The parties have a mutual obligation to advise each other of any matter of a significant nature affecting the children. (c) The parties are obliged to discuss any issue of significance involving the children, including those related to health (except emergencies), education, religion, and general welfare and to try to reach an agreement concerning any decision on such issues. (d) If the parties cannot reach an agreement on an issue affecting the children's health or education, Ms. MacDonald will have the right to make the decision, subject to Mr. Hellner's right to apply for a review of the decision pursuant to s. 32 of the Family Relations Act. (e) Subject to any other term of this order, for all other matters, as well as for any decision requiring a contribution from the other party, the parties shall first attempt to mediate the matter and, failing mediation, either party is at liberty to apply to the courts for a determination of the disputed issue. (f) Both parents shall have a right to obtain information concerning the children directly from third parties, including teachers, counsellors, medical professionals, and third party caregivers. [115] The parties shall cooperate fully in regard to obtaining the children's passports and other necessary travel documents. Each party shall provide the other with a notarized letter authorizing the other parent to leave Canada with the children for any travel that has been agreed upon by the parties. This letter shall be provided at least seven days prior to departure. When travelling with the children, each party shall provide the other with advance notice of their itinerary, contact telephone numbers, and the dates of travel. [116] The following access schedule and conditions is ordered: (a) Mr. Hellner shall have the twins (James and Jonathan) each Tuesday from 4:30 pm until 8:00 pm unless the Tuesday falls during a school holiday in which case the time shall be extended to 9:00 pm or to a time agreed upon between the parties. Ms. MacDonald shall have the right to cancel the Tuesday parenting time for the sole reason that the twins have homework due the following day that must be completed and provided one hour's advance notice of the cancellation is given to Mr. Hellner. If the Tuesday access is cancelled, Mr. Hellner is entitled to the Friday of the same week as a replacement day and the time shall be 4:30 pm to 9:00 pm. If that Friday is a regular access day for Mr. Hellner, or he is unavailable for any reason, he shall have the sole authority to designate a replacement day. (b) Mr. Hellner shall have one day each week with Ben and the day shall be chosen by agreement between Ben and Mr. Hellner. If no agreement is reached, Mr. Hellner shall have the sole authority to designate the day. This access day is not optional for Ben. (c) Mr. Hellner shall have all three children on alternate weekends, commencing October 12, 2007, from 4:30 pm Friday until 5:00 pm Sunday. If the children are not in school on the Monday following the access weekend, Mr. Hellner's parenting time is extended to 9 pm Sunday or to a time agreed upon between the parties. The parties shall share the transportation for the access weekends. If Mr. Hellner picks up the children on Friday, Ms. MacDonald shall pick up the children on Sunday. If Ms. MacDonald drops off the children on Friday, then Mr. Hellner shall drop off the children on Sunday. Unless the parties give notice of a change in the pick up and drop off locations, it is presumed to be their respective homes. Ben shall not be forced to accompany the twins on the alternating weekend access periods. (d) Mr. Hellner shall have the children on Father's day from 10:00 am until 8:00 pm and Ms. MacDonald shall have the children on Mother's day each year even if these days fall on Mr. Hellner's normal access days. If Mother's day falls on a regular access day, Ms. MacDonald shall pick the children up at 10 am on Sunday. (e) The parties shall alternate Easter. Ms. MacDonald shall have the children for the Easter Holiday in 2008 and in all succeeding even numbered years. Mr. Hellner shall have the children for the Easter Holiday in 2009 and all succeeding odd numbered years. Pick up and drop off arrangements will be made directly between the parties. (f) The parties shall share the Spring break holiday with each parent taking the children for one week. The parties shall have an opportunity to take the children for both weeks if they have a planned out of town vacation. The opportunity to take the children for both weeks will alternate. Commencing Spring break 2008, Mr. Hellner shall have this opportunity in the even years and Ms. MacDonald shall have this opportunity in the odd years. (g) Mr. Hellner shall have parenting time with the children during the summer months for two consecutive weeks. Mr. Hellner shall provide Ms. MacDonald with written notice of his choice of weeks by May 15th each year. (h) The parties shall alternate Christmas Eve and Christmas Day with the children. Commencing 2007 Mr. Hellner shall have the children from 11:00 am on December 25th to 11:00 am December 26th and in all odd numbered years. Commencing 2008 Mr. Hellner shall have the children from 11:00 am December 24th to 11:00 am December 25th in all even numbered years. The balance of the Christmas vacation shall be shared equally, with agreement to be reached by December 1st each year. If one parent plans a Christmas vacation out of town, it shall not include December 24 to 26th unless there is agreement between the parties. Notice of Christmas vacation dates shall be provided to the other party no later than November 15th each year. (i) Commencing 2007 and for all subsequent odd numbered years, Mr. Hellner shall have the children from 4:30 pm on December 30th to 9:00 pm January 1st. Ms. MacDonald shall have the children during the same period for all even numbered years commencing 2008. (j) Each parent should have generous telephone and email access to the children while they are with the other parent. To facilitate this contact, each party shall provide the other with a contact number that will ensure the other parent can reach the children both during the day and night time hours. Child Support and Extra-Ordinary Expenses [117] Mr. Hellner is found to have a guideline income of $88,910. Commencing November 1, 2007 Mr. Hellner shall pay $1,692 per month in child support for the three children of the marriage: Benjamin Andrew Hellner (born July 30, 1992), Jonathan Mark Hellner (born December 15, 1996) and James MacDonald Hellner (born December 15, 1996). The child support shall be payable in two equal instalments on the first and 15th of each month and continuing thereafter until further order of this court. Each year post dated cheques shall be provided by Mr. Hellner one year in advance. [118] Mr. Hellner shall pay retroactive child support for the period February 1, 2006 to July 1, 2006. The amount is to be determined by the parties and, failing agreement, I remain seized of the matter. [119] Mr. Hellner shall pay 66% of the following extra-ordinary expenses: (a) Pacific Academy tuition fees and registration fees; as well as summit school fees if agreed upon in advance and in accordance with the Guardianship provisions. These expenses shall be paid monthly based upon the published fee and tuition schedule for the school unless the parties agree to anther method of payment. The parties shall share the income tax deduction for the school fees in proportionate to the amounts paid by each. (b) Hockey registration fees, including rep team card and try out costs, training camp registration fees, additional levies for tournaments, transportation to and from out of town tournaments, and replacement hockey gear. Ms. MacDonald shall submit receipts to Mr. Hellner showing the amounts paid and he shall pay his share within 7 days of receiving proof of payment. Mileage claims will not require a receipt and shall be based upon the number of kilometres traveled (if by car) and at the rate of .45 per kilometre. Mr. Hellner shall be solely responsible for costs associated with out of town tournaments that he attends with the children, apart from transportation and tournament fees. The parties agree to share any tax deduction for hockey expenses in proportion to the amounts paid by each. (c) Health care costs for the children over and above those covered by the medical and dental plans. Ms. MacDonald shall submit receipts to Mr. Hellner and he shall pay his share within 7 days of receiving proof of payment. Mr. Hellner is ordered to pay his share of the outstanding health care costs ($463.06) within 7 days of this judgment. Mr. Hellner shall maintain the children on his extended health care plans and his dental plans and, if approved by his employer, he shall maintain Ms. MacDonald on these plans. (d) Child care required by Ms. MacDonald during work days. Ms. MacDonald shall provide receipts to Mr. Hellner and he shall pay his share within 7 days of receiving proof of payment. Babysitters' payments in cash should be accompanied by a receipt. Provided Mr. Hellner has given Ms. MacDonald a contact telephone number that is current, and at which he can be reached 24 hours per day, Ms. MacDonald shall give Mr. Hellner an opportunity to care for the children where ever practicable. Mr. Hellner shall pay his share of the current outstanding child care costs ($784.87) within 7 days of this judgment. [120] Mr. Hellner shall pay retroactive extra-ordinary expenses for the period February 1, 2006 to July 1, 2006. The amounts to be agreed upon by the parties, and, failing agreement, I remained seized of the matter. [121] By May 15th each year the parties shall exchange income tax returns and supporting documentation. Child support and the parties' respective proportionate share of extra-ordinary expenses shall be readjusted effective June 1st each year to reflect any change in their incomes as evidenced by their income tax returns. Division of the Matrimonial Home [122] The former matrimonial home shall be divided 70% in favour of Ms. MacDonald and 30% in favour of Mr. Hellner. The home is fixed at a value of $715,000 for the purpose of any buy out by Ms. MacDonald. If Ms. MacDonald does not arrange to buy out Mr. Hellner's interest in the home within 60 days of this judgment, it shall be sold in accordance with the following terms. Ms. MacDonald will be allowed to remain in the home until the conclusion of the 2007/2008 school year to avoid any unnecessary disruption in the children's schedule until the summer. The house will be listed for sale no later than March 1, 2008 with a closing date no earlier than June 30, 2008. The parties shall have joint conduct of the sale and any accepted offer shall be subject to court approval absent agreement of the parties in regard to an offer. [123] If the house is sold on the market, from the gross sale proceeds will be deducted the full amount of the TD joint line of credit (approx. $83,000), any real estate commission, legal and administrative costs, and any other costs agreed to by the parties. If Ms. MacDonald purchases Mr. Hellner's share of the home, each party's share shall be debited one half the value of the TD line of credit as at the date of the purchase. [124] Ms. MacDonald shall be responsible for the insurance, taxes, and the TD line of credit until the home is sold or she buys out Mr. Hellner's interest. Ms. MacDonald is entitled to retain all of the rents from the suite to offset these costs without any accounting to Mr. Hellner. Division of Other Assets and Liabilities [125] The parties shall share equally the RRSP's in their respective names and the equalization shall be accomplished by a spousal rollover pursuant to the Income Tax Act. The valuation of the RRSP's shall be made as of the date of this judgment with the transfers to occur within 60 days of this judgment. If the transfers do not occur within this time frame, the offending party shall pay interest at the current bank rate on all outstanding monies until the transfer is completed. [126] Ms. MacDonald shall retain the monies contained in her Scotiabank account without offset to Mr. Hellner. [127] Mr. Hellner shall retain the RESP currently held in his name for the benefit of the children of the marriage and shall not dispose of this asset without the consent of Ms. MacDonald and then only for purposes related to the children's education. Mr. Hellner shall provide annual statements for the RESP fund to Ms. MacDonald. [128] The parties shall retain all the furniture and house hold items now in their possession except that Mr. Hellner shall receive the outstanding agreed upon items listed in Exb 6 pp. 107 to 114, as well as the recovered chairs and matching couch. Mr. Hellner shall arrange to pick up these items within the next 30 days. If Ms. MacDonald buys out Mr. Hellner's interest in the home, the fridge will be evaluated and Mr. Hellner shall receive a credit for it. Each party shall share the cost of the evaluation equally. [129] The parties shall retain their current automobiles without offset to either party. [130] The parties shall share equally the TD line of credit (approx $83,000) and the debt incurred for Opus Cranberry (approx. $12,400). [131] Mr. Hellner shall pay one half of his 2005 income tax refund to Ms. MacDonald. Her one half share is calculated as $4,690.15. [132] The parties shall share equally the Odlum Brown investment account currently valued at $5,105.24. Spousal Support [133] Mr. Hellner shall pay to Ms. MacDonald the sum of $19,050 as lump sum spousal support. If Ms. MacDonald is able to buy out Mr. Hellner's interest in the matrimonial home, the lump sum spousal support shall be deducted from his share of the home's value. If the home is sold, the lump sum spousal support shall be deducted from Mr. Hellner's share of the net sale proceeds and paid out to Ms. MacDonald. Costs [134] Each party shall bear their own costs. "The Honourable Madam Justice Bruce"