R.G.B. v. J.G.S.

2024 BCSC 1607 R.G.B. v. J.G.S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.G.B. v. J.G.S., 2024 BCSC 1607 Date: 20240830 Docket: E193013 Registry: Vancouver Between: R.G.B. Claimant And J.G.S. Respondent Before: The Honourable Justice Kent Reasons for Judgment Counsel for the Claimant: M. Katsionis Counsel for the Respondent: M. Witzman Place and Dates of Hearing: Vancouver, B.C. August 30, 2023, December 18-21, 2023 and June 21, 2024 Place and Date of Judgment: Vancouver, B.C. August 30, 2024 Table of Contents Introduction and Overview.. 3 Conduct of the Hearing.. 7 Enforceability of the March 2018 Agreement. 8 Past and Future Child Support. 15 Applicable Legal Principles. 15 Child Support History. 18 Analysis (Retroactive Basic Child Support) 30 Section 7 Special and Extraordinary Expenses. 40 Parenting Time for the Father.. 45 Parenting History. 45 Analysis. 49 Summary and Conclusion.. 54 Introduction and Overview [1] These Reasons for Judgment relate to cross applications filed in this family law case by the claimant (the "Mother") on December 20, 2022 and by the respondent (the "Father") on August 25, 2023. [2] I have anonymized the names of the parties in these Reasons for Judgment so as to protect the privacy interests of their 14-year-old daughter who is referred to as either "H.S.S." or simply the "Child". [3] The parties were married in Toronto, Ontario on October 14, 2005. Their daughter

was born in August 2010. They separated in February 2012 and were divorced by an Order made December 17, 2013 following a trial before Mr. Justice Whitaker in the Superior Court of Ontario. [4] In February 2014, the Mother relocated with the Child to Calgary, Alberta and further family litigation ensued in the Court of Queen's Bench (now King's Bench) of that province where at least half a dozen orders were issued by at least six different judges in the ensuing five years. [5] In 2017 or 2018 (the date is disputed), the Mother moved to Vancouver again relocating the Child to this province where they have continued to live with the maternal grandmother in a house the Mother and grandmother own together in North Vancouver. Notwithstanding the move, the high conflict litigation between the parties has continued unabated. [6] The Mother filed her Notice of Family Claim in this court on November 8, 2019. Among other things, she sought orders under the Family Law Act, S.B.C. 2011, c. 25 ("FLA") declaring that this Court now has exclusive jurisdiction over matters relating to the child, declaring that the child was a habitual resident of British Columbia, and seeking to have the various orders of both the Superior Court of Ontario and the Court of Queen's Bench of Alberta recognized as orders of this court. She also sought enforcement and updating of various child support orders made

over the years. [7] On December 18, 2019, the Alberta court issued an order transferring the Alberta proceedings to this court. [8] The Father has always lived in Ontario and continued to live in that province following the 2013 Divorce Order. He has essentially had no meaningful parenting time with the Child in the ensuing 10 years. The last time he saw the Child in person was on one brief occasion in 2018. He blames the Mother for that state of affairs in addition to the financially crippling effect of a certain Child Support Order made by the Alberta Court in June 2015. The continued enforcement of that order in Ontario has resulted in more than half his income being garnisheed. [9] The Father claims that the parties reached an agreement in March 2018, as evidenced by a document signed by both parties and their counsel. Among other things, that agreement expunged all child support arrears in exchange for consent to relocation of the Child to British Columbia (and the setting aside of a December 2017 order of the Alberta court which had earlier prohibited such any relocation). The enforceability of this agreement is in dispute. [10] In August 2019, unbeknownst to the Mother, the Father obtained a without-notice Provisional Order from the Superior Court of Ontario cancelling all child support arrears owed by the Father and substituting a prospective child support order based

on the Father's 2018 Line 150 income of approximately $50,000. [11] In November 2020 a hearing was held before Mr. Justice G.C. Weatherill of this court respecting Confirmation of the Provisional Order granted by the Ontario Superior Court of Justice. The Mother opposed Confirmation. The Father was not involved in the hearing, however, as is customary in such proceedings, a lawyer representing the Ministry of the Attorney General did participate. [12] Justice Weatherill refused to confirm the Ontario order. In brief oral reasons, he expressed concern that the Ontario Court may have been misled regarding the history of the various proceedings and whether or not the Ontario court had jurisdiction to even make the provisional order it had issued. He directed that "if Mr. S wishes to proceed with an application to vary or cancel any arrears of support, that application must be brought in this proceeding in British Columbia". This is now one of the applications before me. [13] On December 20, 2022, the Mother filed the Notice of Application that is also now before me. Among other things, she seeks: · enforcement of two orders of the Ontario court made December 17, 2013 and February 21, 2014, and two orders of the Alberta court made June 14, 2015 and August 18, 2016; · findings of contempt against the Father for his violation of the said orders along with fines in "an amount no less

than $5,000 per order"; · further document disclosure from the Father; · an order for "retroactive basic child support" in the amount of $128,928 "payable forthwith"; · an order for retroactive and prospective proportionate sharing of various "section 7 expenses" (medical, dental, tuition, extracurricular activities) totaling some $192,279; · an order imputing income to the Father in the amount of $90,000 with monthly child support payments of $1,343.33; and, · special costs. [14] The Father has not always been represented by legal counsel throughout this decade of family law litigation. It is perhaps fair to say that he has not fared very well in the proceedings that have taken place since the original trial judgment in 2013. [15] The Father did not file a Response to Family Claim in the British Columbia court until April 26, 2023, some 3 and a half years after the Mother's Notice of Family Claim was first filed. [16] In his Response to Family Claim, the Father expressly pleads the terms of the alleged March 2018 agreement reached by the parties at or following the "Early Intervention Case Conference" held at the time before Justice Millar of the Alberta court. He also pleads that the Mother has persistently failed to facilitate the court ordered parenting time he was supposed to have had with the child over the past decade. [17] Shortly before the scheduled hearing of the

Mother's Application referred to above, the Father filed a cross application dated August 25, 2023 seeking the following orders: · formalization of a parenting time regime for the Father including a minimum of one weekend per month, two consecutive weeks during the summer holidays to be exercised in Ontario, and daily video-conferencing or other electronic communication for a minimum of 15 minutes each day; · retroactive cancellation of all child support arrears claimed under the Alberta Court's June 14, 2015 order; · a declaration that the March 8, 2018 written settlement agreement between the parties is binding pursuant to s. 6(3) of the FLA and an order retroactively imposing an annual child support obligation commencing April 1, 2018 based on certain specified annual incomes (ranging from a high of approximately $58,000 to a low of approximately $37,000) and "crediting" against all such child support obligation the amounts that have actually been paid as a result of the ongoing Ontario enforcement proceedings over the years; and, · in the event the March 2018 Agreement is not binding, then a fine to be levied against the Mother and payable to the Father in the amount of $5,000 for "wrongful denial" of the Father's parenting time mandated pursuant to the Alberta court Order pronounced December 8, 2017. Conduct of the Hearing [18] The two applications came on for hearing

before me on August 30, 2023. The materials were voluminous. The litigation history (which has by no means been fully recounted above) is confused and some of the related supporting affidavits and other documents were missing in the materials before me. And, as is almost always the case in these types of chambers proceedings, the allotted time for the hearing turned out to be wholly inadequate. [19] In the result I chose to seize myself of the applications and adjourned the matter to a four day chambers hearing to be heard on specified available dates in December 2023. In order to avoid the almost inevitable outcome of directing the matter to a full trial to resolve conflicting affidavit evidence on a more fulsome in-person testimonial record, I directed that the usual "trial in a box" process be supplemented by in-person cross examination of the affiant parties before the court. Directions were also given with respect to the content and exchange of written submissions [20] Regretfully, even the additional four day hearing proved to be insufficient to complete what in essence had become a hybrid summary trial process, and scheduling conflicts only permitted completion of the hearing on June 21, 2024. However, at the end of the four day hearing, the court issued an Interim Order designed to, · secure a "Views of the Child" report as soon as reasonably possible regarding further

parenting time with the Father; · have the Father provided with some immediate information regarding the Child's activities and also some minimum telephone parenting time over the Christmas holidays and into the new year; · impose a somewhat reduced arrears collection and ongoing child support regime in the aggregate amount of $1,200 per month, all on a "without prejudice basis" to a further re-adjustment pending the outcome of the outstanding applications before me. [21] The broad issues to be determined thus include: 1. enforceability of the March 2018 Agreement regarding cancellation of arears; 2. past and future child support; 3. details of any ongoing paternal parenting regime; and, 4. contempt, fines and ancillary conduct or enforcement orders. [22] I will address each issue separately. Enforceability of the March 2018 Agreement [23] On December 8, 2017 the Alberta court issued an order which, among other things, · required the Mother to facilitate the Father's parenting time, both electronic and in-person, including by bringing the Child to Toronto at her own cost in January and February 2018; · required the Mother to provide the Father with information regarding the Child's current school; · prohibited the Mother from "permanently removing all relocating with the Child" from the city of Calgary without a court order or written consent of the Father; · required the

parties to attend the next available mediation sessions with a Dispute Resolution Officer; and, · directed the matter to next proceed by way of an Early Intervention Case Conference [EICC] on March 8, 2018. [24] Both parties were represented by counsel at the time and the formal order was entered on December 14, 2017. [25] The Mother filed an appeal of the December 8, 2017 Order. In late January 2018 the Father agreed to "stay" the December 8, 2017 Order on the basis that he was "unable to afford [defending] the appeal". [26] It is unclear what information was put before the Alberta court in December 2017 regarding the residency of the Mother and the Child, and her intention to relocate to BC. The evidence in the Application Record before me suggests that the Mother was not forthright with the court in that regard. [27] In a later affidavit sworn November 27, 2019 in the Alberta proceedings, the maternal grandmother stated under oath that: · she (the grandmother) had moved from Calgary to Vancouver in 2016; · the Mother and the Child moved to Vancouver to live with her and they have lived together in the same residence in Vancouver since August 2017; · she (the grandmother) rented a house in West Vancouver pursuant to a written lease dated August 1, 2017 "concurrent with the time [the Mother] moved to BC" the lease agreement was signed by the grandmother in mid-July 2017 and

contains a notation "rental is for daughter and granddaughter"; · one year later, at the beginning of September 2018, the family moved into the "family home" on Canyon Blvd., North Vancouver and have lived there ever since; · the family home is "co-owned" by the grandmother and the daughter, and both appear as joint owners/covenantors on the title to and the mortgage of the property. [28] The Mother swore an affidavit on December 6, 2017 in relation to the pending application in the Alberta court. In that affidavit she declared she was "of the city of Calgary in the province of Alberta". In the body of the affidavit she swears, · "[the Father] knows our current address. He has always known"; and, · "with notice, he can visit [the Child] in Calgary whenever he wishes". [29] In this affidavit, the Mother was clearly conveying a message that she and the Child were living in Calgary at an address already known by the Father. [30] In another affidavit in the Alberta proceeding, sworn on December 17, 2018, the Mother stated under oath: At the EICC the respondent and I entered into a With Prejudice Consent Agreement on March 8, 2018. This Agreement allowed the Child to remain in my care while I move to Vancouver, British Columbia based on the Agreement from the EICC, I then moved to Vancouver with [the Child] where we continue to reside. [31] Not surprisingly, the Mother was

confronted with this apparently false evidence during her cross-examination at the hearing before me. This time she testified that: · she was going back and forth with the Child between Vancouver and Calgary at the time; and, · "I got my dates confused I am very sorry". [32] In any event, the EICC proceeded as scheduled on March 8, 2018. No agreement was reached before the presiding judge, however negotiations continued later in the day which was memorialized in a handwritten document signed by both counsel and their respective clients. It reads as follows: Consent Terms with prejudice March 08 2018 - December 2017 order vacated - med/arb soonest date possible - jurisdiction Alberta - Vancouver - child stays - child arrears gone effective March 01, 2018 - to be filed March 09, 2018 [33] The affidavits in the Application Record describe the events that occurred following the March 8 EICC. One exhibit is a letter written in June 2018 by the Mother's former counsel to Justice Millar of the Alberta court explaining what occurred. He informed the court that the "written agreement" signed by the parties was executed at approximately 4:30 PM on March 8, 2018 which was too late to file an order the same day. He was the counsel tasked with drafting the order however he was unable to obtain consent from counsel for the Father to the draft order prepared. It appears the Father wished to

include in the order terms regarding parenting time with the Child, including in particular phone calls and Skype/FaceTime contact. The Mother refused and matters deteriorated quickly. [34] One letter sent by counsel for the Father to the Mother directly (she was no longer represented by counsel) at the end of March 2018 advised: · the Child's relocation to BC was a breach of the Ontario Order requiring residence in Calgary; · a transcript of the proceeding before Justice Campbell was being ordered so that the Mother's "misrepresentations" to the court regarding address and residency could be established for possible contempt and perjury proceedings; · unless the Mother agreed to "the clause for child telephone access", an application would be brought to have the Child "relocated back to Calgary and potential change of custody in the interim"; and, · a trial date would be secured for "change of custody, parenting time, and child support adjustment going forward and retroactively". [35] On April 9, 2018, the Alberta court issued a note to counsel for both parties: As the EICC has not resulted in a settlement, [counsel for the Father] may draft an Order setting the matter for a special [application] with appropriate dates for questioning, document production and issues. I will sign a properly drafted Order. [emphasis added] [36] Counsel for the Father sent a draft order to the

Alberta court on June 21, 2018 for signature by Justice Millar. The cover correspondence informed the court that one of the issues to be determined would be "child's illegal removal from the jurisdiction of Alberta, and therefore return to Alberta". [37] The draft order, as amended by Justice Millar, was signed on August 6, 2018, and was filed with the Alberta court on August 21, 2018. It issued directions regarding next steps in the litigation but also granted the Father leave to bring forward an application for the return of the Child to Alberta to be set at the date to be determined by a justice in chambers. [38] Counsel for the Father submits that the parties did indeed reach an agreement on March 8, 2018 pursuant to which the Father consented to the Child's relocation to Vancouver in exchange for cancellation of all Child support arrears accrued to March 1, 2018. Since the Mother invoked and relied upon that agreement to rationalize and justify her relocation of the child to Vancouver, he argues it is only fair to enforce the quid pro quo, namely cancellation of the arrears. [39] Counsel for the Mother submits that no agreement was actually finalized between the parties given the Father's refusal to consent to the contemplated order required to be filed March 9, 2018 and his insistence on additional terms regarding access to the Child (a term firmly rejected by the Mother

at the time). In the alternative, counsel submits that the Father's conduct amounted to a repudiation of any agreement reached the previous day. [40] This was in fact the second time the Mother has purported to bargain away child support in exchange for consent to a relocation. The first occurred before Justice Whitaker of the Ontario Court: during cross-examination at the hearing before me, the Mother agreed that she told Justice Whitaker that she would pay for the Child's schooling and that no child support would be required from the Father if he allowed her to move to Calgary with the Child. [41] I can certainly understand why the Father continues to rely on the March 8 EICC Agreement as a basis for cancelling child support arrears, at least to that particular date. The fundamental problem, however, is that the agreement is contrary to public policy respecting child support and is thus unenforceable as a matter of law. [42] As noted in the K.A.B. v. P.D.M., 2023 BCSC 1156: 43 A long line of cases from the Supreme Court of Canada has articulated certain fundamental principles of law applicable to all child support matters, including the following: 1. a parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to provide financial support for the child automatically arises at birth; 2. parents have a joint and ongoing legal

obligation to provide financial support for their children in a way that is commensurate to their income; 3. this obligation and the children's concomitant right to support exists independently of any statute or court order; 4. child support is the right of the child, not of the parents seeking the support on the child's behalf; 5. the child's right to receive child support survives the breakdown of the parents' relationship and cannot be bargained away by the parents; 6. both parents must put their children's interests ahead of their own in negotiating and litigating child support issues; 7. the amount of child support is determined in accordance with the Guidelines, and the goals, principles and provisions of these Guidelines govern all child support applications; 8. one such objective of the Guidelines is to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; 9. while children should be shielded from the economic consequences of their parent's relationship breakdown, the child support regime contemplates that the family as a whole -- including the children -- will share the rising and falling fortunes of their parents, just as they would have before the separation; 10. support payments are based on earning capacity, and not just on what a parent actually earns -- as a result,

parents have a legal obligation to earn as much as they are reasonably capable of earning so that the children receive an appropriate level of support; 11. a parent does not fulfil their obligation to their children if they do not increase child support payments when their income increases significantly; and 12. because child support is tied to income and income tends to fluctuate, a child support order or agreement reflects a snapshot in time and is never final. See e.g. D.B.S. v. S.R.G., 2006 SCC 37 at paras. 37-54; Kerr v. Baranow, 2011 SCC 10 at paras. 207-208; Michel v. Graydon, 2020 SCC 24 at paras. 10-17; Colucci v. Colucci, 2021 SCC 24 at paras. 28, 33-34. 44 In Chan-Henry v. Liu, 2018 BCSC 2140 at para. 178 [Chan-Henry BCSC], aff'd 2021 BCCA 318 (cross-appeal regarding income determination allowed) [Chan-Henry BCCA], the trial court held that an agreement by the parents to have child support paid in a fixed amount on an indefinite basis was "contrary to public policy and unenforceable at law". It continued: 178 ... This is also true of the agreement to exclude the possibility of child support variation based on events, which, at law, would clearly constitute a material change in circumstances, i.e. loss of employment, inability to work for medical reasons, et cetera. Such provisions fail to recognize and, indeed, breach the fundamental principles of law applicable to

child support matters referred to in para. [161] above. 179 For example, assume Mr. Chan-Henry's income doubles next year. The effect of the Settlement Agreement would be to deprive the children of the substantially increased support to which they would otherwise be entitled. 180 Similarly, assume an accident renders Mr. Chan-Henry unable to work. Even in such catastrophic circumstances, the Separation Agreement would oblige him to pay the fixed child support regardless of the fact that he no longer receives any employment income. 181 These examples illustrate the potential for injustice that has been woven into the revised child support regime agreed to by the parties. Paragraph 8 of the Consent Final Order must be set aside ... 45 So too in the present case, Final Order 2 regarding child support cannot be treated as truly "final". It must yield to any changing circumstances appropriately warranting an adjustment to the regime otherwise agreed to by the parties. 46 Although not cited in the Chan-Henry trial decision, the passages set out above are reinforced by Kopp v. Kopp, 2012 BCCA 140, where the Court stated at para. 37: A child's right to support cannot be bargained away by a parent (see i., 1999 BCCA 393 at para. 58), Dickson v. Dickson (1987), 21 B.C.L.R. (2d) 69 (C.A.)), and Parliament has set out clear standards in the Guidelines for determination of child support

obligations. The options available to parents to negotiate child support are limited, and while negotiated settlements in matrimonial matters are encouraged, courts have a separate responsibility to children to ensure their interests are upheld. Thus, the appropriate weight to be accorded an agreement for child support will be less than that accorded to an agreement for spousal support. [Emphasis added.] 47 See too, in Ateb v. Ateb, 2015 BCSC 2267 at paras. 36-43, where the Court relied, in part, on Kopp to set aside a consent order in which the claimant waived her entitlement to past and future child support and which also dismissed "[a]ll other claims sought by either the Claimant or Respondent". [43] In the circumstances, I am compelled to conclude that any agreement reached by the parties on March 8, 2018 to cancel all child support arrears up to March 1, 2018 is contrary to public policy and is thus unenforceable as a matter of law. Past and Future Child Support [44] As noted above, the Mother applies for an order from this Court enforcing the Father's obligation to pay child support including the arrears accumulated to date. [45] For his part, the Father applies for expungement of arrears effective March 1, 2018 and alternatively for a retroactive decrease in child support to the date of this summary trial application based on his historical annual income and a

determination of future support based on his current income. Applicable Legal Principles [46] The leading case governing retroactive reduction of child support (based on prior orders overestimating the payor's income) and also forgiveness of child support arrears (based on current/future inability to pay) is Colucci v. Colucci, 2021 SCC 24. [47] Mr. Colucci was an unsympathetic litigant. After a 13 year marriage, he and his spouse were divorced in 1996. The mother was granted sole custody of the parties' two daughters and Mr. Colucci was required to pay child support of $115 per week per child. His child support obligations ended in 2012. From 1998 to 2016 he made no voluntary child support payments and only limited sums were collected through enforcement mechanisms. During that period he left the country and was absent from his children's lives. In 2016, he reappeared on the scene and applied to retroactively reduce child support and to rescind accumulated arrears, however he provided minimal documentation or financial disclosure to support his claims. [48] The trial court retroactively decreased Mr. Colucci's historical child support obligations, effectively reducing arrears by $130,000 to $42,000. This variation was based on his guideline income which had dropped over the period in which the arrears were accrued. The Ontario Court of Appeal reversed that decision and ordered

Mr. Colucci to pay the full amount of accrued arrears. His further appeal to the Supreme Court of Canada was dismissed and that court took the opportunity to restate and clarify the law governing applications under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) ("DA") for retroactive reduction of child support and forgiveness of arrears. [49] Most of the Colucci judgment addresses retroactive decreases in child support where the prior order overestimates the payor's income (paras. 57-113). Fortunately for present purposes, the court summarized matters in para. 113 of the judgment as follows: (f) Summary [113] To summarize, where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies: (1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice. (2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available

documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation. (3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings. (4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor's conduct; (iii) the child's circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor's efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct. (5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines. [50] Paragraphs 133-142 of the Colucci judgment address

full or partial rescission of arrears under s. 17 of the DA where the prior order corresponds with the payor's actual income but where the applicant payor relies upon a current and ongoing inability to pay. Regrettably, the court did not provide a summary paragraph similar to the above, however the following may suffice for present purposes: · rescission applications normally arise when the request to retroactively decrease arrears is unsuccessful or results in only a partial reduction of the arrears (para. 133); · in such cases, the accumulated arrears are based on a prior child support order which accurately reflects the amount of support the payor should have paid under the guidelines, after all considerations, including any claim of hardship under s. 10, have been determined (para. 134); · the payor parent's claim for rescission is thus a form of "hardship" application in which there has been no past change in circumstances justifying a retroactive decrease in the support obligation and the payor's ongoing financial capacity is the only relevant factor to be considered (paras. 134, 135); · the payor must therefore provide sufficient reliable evidence to enable the court to assess their current and prospective financial circumstances, including their employment prospects and any assets, pensions, inheritances or other potential sources of future capacity to pay a failure to

provide complete and accurate disclosure of income and assets is fatal to any application to rescind arrears (paras. 135, 142); · the courts will take a highly restrictive approach to these types of applications and the discretion to grant relief is narrow. Indeed, there is a presumption against rescission of arrears which can only be rebutted where the payor parent establishes on a balance of probabilities that - even with a flexible payment plan - they cannot and will not ever be able to pay the arrears (paras. 136, 138); · even where proven payor hardship exists, the court must consider whether that hardship can be mitigated by ordering a temporary suspension, periodic payments or other creative payment options it is only where "blood cannot be drawn from a stone" i.e. where the payor is truly unable to make payments towards the arrears, that full or partial rescission of arrears based on current financial incapacity should be ordered, "a last resort in exceptional cases" (paras. 140, 141). Child Support History [51] The December 17, 2013 Order of the Ontario Court granting the divorce contained the following provisions regarding child support: 7. Child support shall be dealt with as follows: a. there shall be no retroactive payment of child support (table and/or s. 7 expenses) from the Husband to the Wife from the date of separation to the date of this order; b. there shall

be no prospective child support payable by the Husband (whether table and or contribution toward s. 7 expenses) if the child relocates to Calgary; 8. There shall be no spousal support payable by the Husband to the Wife, whether retroactively or prospectively; 9. The Husband shall provide extended medical, dental and healthcare benefits coverage to [the Child] to the extent it is available to him through his employer. Upon acquiring such benefits coverage the Husband shall immediately notify the Wife of same, and shall provide her with written confirmation of the policy and coverage within 30 days. [52] On February 21, 2014 the Ontario Court issued an Order awarding the Mother costs of the Ontario trial fixed in the amount of $75,000 inclusive of taxes and disbursements. [53] On May 9, 2014, the Father assigned himself into bankruptcy. At that time, he had secured creditors in the amount of approximately $28,000 and unsecured creditors in the amount of approximately $186,000. The secured creditor was Mercedes-Benz financial, the lessor of the Father's vehicle. The Mother was the most significant unsecured creditor (the costs award of $75,000), although approximately $100,000 was also outstanding on various credit cards. [54] The causes of the Father's bankruptcy were listed by the Trustee as follows: Marital breakup and divorce, high legal costs incurred in a child custody case,

reduction in income, accumulation of debts beyond ability to repay. [55] The available monthly income of the Father at the time of the bankruptcy was listed by the Trustee as $2,865. [56] The Father was discharged from bankruptcy two years later on May 13, 2016. Based on his payments to the trustee over the term of the bankruptcy, the sum of $9,868 was distributed to his creditors, including a payment to the Mother in the amount of $1,343. [57] I was not provided with the entire record of the litigation in the Alberta Court of Queen's Bench. It is not clear when the Mother first instituted those proceedings, but it appears to have happened shortly after she arrived in the province. [58] The first filed order of the Alberta court in the Application Record before me is dated November 21, 2014. The Application Record did not contain the pleadings or any of the Notices of Application or any Responses to Applications filed in the Alberta proceeding. Some, but by no means all, of the affidavits filed in the Alberta proceeding were included as exhibits in the materials before me. [59] The Application Record also did not contain any Reasons for Judgment from any of the Alberta justices who issued orders in the case. It appears no written Reasons were actually issued. [60] The November 21, 2014 order of the Alberta court was made ex parte and noted both the absence of the Father and the

fact that he had not retained counsel. That order required "both parties shall exchange complete financial disclosure within 45 days". The Mother was granted leave "to proceed to a Domestic Special Hearing at the first available date without input from the [Father]". She was also granted leave to effect service upon the Father via his email address. [61] The next order in the Alberta court is the critical child support order in this case. It was granted by Justice Rawlins on June 4, 2015. It appears the Father was given notice of the application but may not have filed any responding materials. He appears to have attended in person without legal counsel. Precisely what submissions were made on his behalf is not clear and, as with the other Alberta orders, there are no Reasons for Judgment. [62] The premises of the order provide some insight into the Court's reasoning. They read as follows: Upon this matter coming before the court by way of a Domestic Special Hearing; and upon having heard submissions from counsel to the Applicant; and upon this Court having read the filed materials of the Applicant; and upon this Court having heard from the Respondent (unrepresented); and upon this Court being satisfied that a change in circumstances has occurred since the Ontario 2013 Divorce Judgment was granted; and upon this Court noting that the Respondent has not provided disclosure

despite a 2014 Court order compelling same; and upon this Court noting that the child of the parties [name redacted] born August 16, 2010, remains in the care of the Applicant; and upon this Court noting that the Respondent's financial information rests with the Respondent's trustee in bankruptcy; and upon this Court being advised that the Respondent assents to surrender of such financial information held with his trustee; [63] The operative part of the order then reads as follows: It is hereby ordered that: 1. the Respondent father's income is hereby imputed $94,319 per annum retroactive to January 1, 2014; 2. the Respondent shall commence paying the applicant s. 3 child support, effective July 1, 2015 in the amount of $1,343.33 per month and he shall continue to do so until further Court order; 3. as of the date of this order, the Respondent is owing s. 3 support arrears to the Applicant in the amount of $24,179.94 calculated as follows: 18 months (January, 2014 - June, 2015) x $1,343.33 = $24,179.94 [all copies of the June 4, 2015 order in the Application Record before me do not contain the complete text of paragraph 4 of the order, only the following words on the top of page 2: " month, until such arrears are paid for in full";] 5. in the event the Respondent exercises child access in Calgary as per the 2013 Ontario Divorce Judgment, child support is set off and he is

entitled to a reduction of $1,000, so long as his support payments are up to date and so long as this order remains in effect; 6. the Respondent is not found to be in contempt of court; 7. the Respondent shall facilitate surrender of the Respondent's financial information currently held by the Respondent's bankruptcy trustee and the Respondent is to provide his disclosure by July 15, 2015; 8. the Applicant is entitled to costs in the amount of $5,000 which is enforceable through the office of Maintenance Enforcement (MEP); 9. the parties shall attend the first available mediation date with the dispute resolution officer (DRO) for the purposes of determining retroactive child support once the Respondent has furnished his full financial disclosure for 2014 and 2015 and the Respondent may revisit child support arrears in morning chambers; 14. each party shall provide the other party with a complete copy of his or her income tax return and any notices of assessment and reassessment issued to him or her by the Canada Customs and Revenue Agency on an annual basis, on or before June 30 of each and every year, as long as there is a child of the marriage is defined by the Divorce Act (Canada). In the event that a party has not filed an income tax return for the previous year, he or she shall provide the other party with copies of his or her T4, T4 A and other relevant tax slips and

statements disclosing any and all sources of income, including self-employment income. [64] In his affidavit sworn in this BC proceeding on April 26, 2023, the Father provided a detailed history of his employment and Line 150/15000 income for the 12 year period between 2010 and 2022. The latter information is as follows (some numbers slightly rounded): · 2010 - $77,162 (employment income of $54,707, non-eligible retiring allowance of $22,356); · 2011 - $60,831 (employment income of $57,372, business income of $4,250, commission income of $1,229); · 2012 - $98,640 ($89,000 employment income/commission, non-eligible retiring allowance of $8,424); · 2013 - $53,000 (employment income of $40,000, EI of $8,841, other income of $4,300); · 2014 - $20,390 (employment income of $13,900, EI of $6,500); · 2015 - $23,695 (employment income $16,900, EI of $1,540, business income of $5,250); · 2016 - $183 (no employment income); · 2017 - $3,470; · 2018 - $50,100 (no breakdown); · 2019 - $57,920 (no breakdown); · 2020 - $48,831 (no breakdown); · 2021 - $45,100 (employment income of $25,000, EI of $20,100); · 2022 - $36,633 (employment income of $21,408, EI of $15,225). [65] In his affidavit, the Father pointed out that in 2012 he was working two jobs (Medeco Locks, Diamond Estates) to support himself, the Child and "to pay legal fees". [66] In 2013, the Father says he was dismissed from his

employment with Medeco. He attributes that dismissal to interference by the Mother. He then worked for a communications company for six months. [67] In 2014 he worked with Select Wines but was let go from employment when they lost 80% of their wine and spirits portfolio. [68] In 2015 the Father worked for several different wine agencies but his income was modest. He did not work at all in 2016, attributing this to stress, anxiety and the "deterioration of my health" (none of which has been corroborated by any medical evidence). [69] In the course of these proceedings, the Mother has accused the Father of hiding income and engaging in various business ventures for which there has been no disclosure. Part of the reason that I permitted cross-examination on affidavits in the hearing before me was to grant counsel for the Mother an opportunity to aggressively challenge the Father on his employment history, his efforts to secure alternate employment during periods when he was off work, and any other revenue producing undertakings. [70] The Father survived extensive cross examination relatively unscathed and I am satisfied that the employment and income history recounted above is accurate. I also accept his evidence and find as a fact that, except for the period 2015 - 2017, the Father has not been deliberately unemployed or underemployed and that, except for those years, he has been

diligent in attempting to find employment during periods of unemployment, including the years when the beverage and hospitality industry was decimated by COVID 19. [71] Before Justice Rawlins in June 2015, the Father had not made the "complete financial disclosure" (whatever that might mean) required by the earlier November 21, 2014 ex parte order of the Alberta court. In imputing the Father an annual income of $94,319 retroactive to January 1, 2014, I infer that Justice Rawlins relied upon his aggregate reported 2012 income of approximately $99,000, the year in which he worked two jobs and thereby generated income some $20,000 higher than his previous best year (2010: $77,000) and almost $40,000 higher than he has ever earned in his best year since (2019: $57,900). [72] It is likely that the Father attempted to explain to Justice Rawlins in June 2015 how he had since lost his 2012 employment and how his income was much reduced in the two years thereafter. However, I expect Justice Rawlins was not willing to accept such submissions without first being provided with more fulsome corroborating document disclosure. [73] Justice Rawlins clearly understood that the Father was in bankruptcy at the time of the application and that his 2013 and 2014 tax reporting was in the hands of his trustee in bankruptcy. It was very likely for this reason that she declined to find the Father in

contempt of the earlier disclosure order and instead required him to "facilitate surrender" of his financial information by the trustee. It is also very likely the same reason for Justice Rawlins expressly providing for a "retroactive child support determination once the [Father] has furnished his full financial disclosure for 2014 and 2015" and hence granting him permission to "revisit child support arrears" by way of a later Chambers application. [74] The absence of any Reasons for Judgment means I do not know the basis for Justice Rawlins' conclusion that there had been a "change in circumstances" in the one and a half year period following the December 2013 Ontario divorce judgment. That Judgment had expressly extinguished any child support obligation on the part of the Father if the Mother relocated to Alberta. The Mother did in fact move to Alberta in early 2014 and so the Father was not required to pay child support. [75] One possibly logical inference which might be drawn from the circumstances is as follows: · the Ontario trial judge recognized that relocation of the Child with the Mother to Alberta would trigger "unusually high" travel and related expenses for in-person parenting by the Father with the Child amounting to "undue hardship" of the sort contemplated by s. 10(2)(b) of the Guidelines; · the Father did not in fact travel to Calgary (or elsewhere) for any

in-person parenting time and therefore did not actually incur any related "unusually high expenses"; hence a retroactive and future child support order was considered appropriate (based on the only documented annual income available i.e. 2012), albeit with (1) a reduction mechanism if in-person parenting time actually occurred in Calgary in the future and (2) a further retroactive child support re-determination (including possible arrears rescission) after full financial disclosure for 2014 and 2015 is made. [76] The Father did not appeal the June 4, 2015 order of the Alberta court. Instead, after his formal discharge from bankruptcy the following year, he retained counsel in Alberta and filed an application to vary the June 4, 2015 order. The Mother filed a cross application, one which presumably included contempt remedies against the Father. I say "presumably", because once again I was not provided with the application materials and the only information I have is the August 18, 2016 order of the Alberta court granted by Justice Nixon which provided that: 1. the Father was "found to be in contempt of Court for failing to comply with Justice Rawlins' 2015 order"; 2. the Father's application was dismissed; 3. the Father was prohibited from filing any further applications "until such time as he is in compliance with clauses 7 and 9 of Justice Rawlins' 2015 order"; 4. the parties

were directed to "forthwith schedule and attend before a Dispute Resolutions Officer"; and, 5. the Mother's counsel was to "forthwith provide a list of outstanding disclosure". [77] Once again, full disclosure by the Father appears to have been problematic. [78] However, the Father says in his affidavit that by October 13, 2017 he had actually provided to the Mother the disclosure required by the June 4, 2015 order. He refers to correspondence on that date from the Mother's lawyer in Alberta confirming that the "lion share of disclosure" had been provided, although the Mother was apparently expressing the opinion there remained shortcomings in that regard. The Father also says in his affidavit that it was the Mother who refused to go through the required "Dispute Resolution" process and that he was at all times "willing to mediate" if she were to come to the table. [79] In any event, the Father filed an application for parenting time with the Child and it was this application which led to an order being pronounced by Justice Campbell of the Alberta court on December 8, 2017, a formal copy of which was signed by him and filed with the court on December 14, 2017. That order does not address child support but directs electronic and in-person parenting time for the Father along with certain conduct orders including the following terms: · the Mother was not to permanently remove or

relocate with the Child from the city of Calgary without subsequent Court Order or written consent of the Father; · the parties were to attend the next available mediation session with a Dispute Resolution Officer and if the Mother failed to do so, she was to be fined $500; and, · the matter was to "next proceed by way of an Early Intervention Case Conference on Thursday, March 8, 2018 at 1:30 p.m.". [80] As noted earlier in these Reasons, it was the March 8, 2018 EICC process which resulted in the written agreement between the parties whereby the Mother was permitted to further relocate with the Child to Vancouver in exchange for cancellation of all child support arrears to March 1, 2018. The subsequent breakdown in negotiations ultimately resulted in the August 26, 2018 order which included terms directing a half day Special Hearing for the Father's application respecting, among other things, child support. [81] None of the steps contemplated by the August 6, 2018 order were taken. And the contemplated Special Hearing regarding custody, parenting and child support did not occur. Each party blames the other in that regard. [82] In the meantime, in May 2016 the Mother registered the June 4, 2015 order of the Alberta court with the Family Responsibility Office ("FRO") in Ontario with a view to enforcement in that province of the Father's child support obligations. The FRO's

"Case Balanced Summary" as of November 1, 2023 was presented to me during the hearing indicating a "Case Net Balance" outstanding in the amount of $135,236.88. The accounting includes the accruing monthly child support obligations of $1,343.33 from January 1, 2014 to November 1, 2023, certain costs awards, "enforcement fees" and so on against which "diversion receipts" are credited. Such "diversion" (enforcement through garnishing) occurred sporadically in 2017 and 2018, and more regularly from 2021 onwards. [83] In May 2019 the FRO threatened suspension of the Father's driver's license. He applied for, and was granted, a "refraining order" but was required to enter into a child support payment plan and was also given a timeline to vary the support order. [84] In July 2019, the Father applied for a provisional order in the Ontario Superior Court of Justice seeking cancellation of child support arrears pursuant to the March 8, 2018 agreement between the parties. In that regard the Father swore an affidavit dated July 22, 2019 in which he purported to describe the history of litigation and to which he attached numerous exhibits including some (but not all) of the Alberta orders along with the handwritten March 8, 2018 agreement signed by the parties following the EICC on that date. [85] The Father's application was brought pursuant to s. 18.1 of the DA which allows such an

application to be brought on a without notice basis in the province in which the applicant resided i.e. Ontario. No notice of the application was given to either the Mother or her lawyer. [86] On August 23, 2019, Madam Justice Nakonechny of the Ontario Superior Court of Justice issued an order as follows: 1. The order of Justice Rawlins dated June 4, 2015 is varied as follows: a. the arrears of child support accrued pursuant to the order of Justice Rawlins from January 1, 2014 to and including March 1, 2018 in the amount of $72,923.67 are expunged; b. commencing April 1, 2018 and on the first day of each month thereafter, the [Father] shall pay child support to the [Mother] for [the Child] born August 16, 2010 in the amount of $462 per month based on his 2018 Line 150 income of $50,094; c. the Family Responsibility Office shall amend and recalculate its records accordingly and credit the [Father] for any payments made by him since April 1, 2018 2. this Court further orders that the above order is provisional only and has no legal effect until it is confirmed in a proceeding under s. 19 of the DA; 3. the Court further orders that a Support Deduction Order shall issue. The enforcement of the support deduction ordered by the Ramily Responsibility Office is hereby stayed until this order is confirmed in a proceeding under s. 19 of the DA. [87] A formal copy of the order was filed

in the Superior Court of Justice on September 4, 2019. It lists as a respondent the Mother at an "unknown" address in Vancouver, however also identifies the name and the address of her Vancouver counsel, upon whom the order was presumably served shortly thereafter. [88] The Mother filed her Notice of Family Claim in this court on November 8, 2019. In that pleading she specifically listed the (disputed) March 8, 2018 written agreement, the December 17, 2013 divorce judgment issued by the Superior Court of Ontario, six of the orders granted by the Alberta court during the period December 8, 2014 - December 18, 2019, and the provisional order issued by the Superior Court of Ontario on August 23, 2019. She sought an (non-specific) order for child support, including s. 7 expenses, "in accordance with the Guidelines" as well as orders under the FLA "recognizing" the Alberta and Ontario orders and also declaring that this court now has exclusive jurisdiction over matters relating to the Child (including guardianship and parenting time). [89] On November 23, 2020 the confirmation hearing respecting the Nakonechny order occurred before Mr. Justice G.C. Weatherill of this court. Counsel for the Mother attended along with counsel for the Ministry of Child and Family Development (presumably as agent for the Attorney General acting pursuant to ss. 18-19 of the DA). In accordance with s.

19(2) of the DA, the hearing occurred without notice to and in the absence of the Father. [90] It is not clear from the Application Record exactly what materials and submissions were presented to Justice Weatherill on November 23, 2020. However, in a brief oral judgment immediately following the hearing, he refused confirmation of the Nakonechny order on the basis that "the Ontario Court was misled, not deliberately, but in terms of the history of this matter and whether or not the Ontario Court had the jurisdiction to make the provisional order it made". He also directed that any application for child support arrears variation/cancellation must be brought in British Columbia. [91] It is not clear precisely how the Ontario court was misled regarding the earlier litigation or jurisdiction matters. I have read the materials that the Father submitted to the Ontario court in pursuit of the provisional order. I do note that, while his affidavit expressly referred to the March 8, 2018 agreement to extinguish child support arrears, he made no mention of the subsequent August 6, 2018 order of the Alberta court directing a further application regarding child support, nor of the disagreements between the parties that preceded the making of that order. [92] And so it is that the parties eventually came to have an exclusive hearing before me and what turned out to be essentially a summary

trial respecting the enforceability of the March 8, 2018 agreement and the appropriateness of any retroactive decrease in child support. Analysis (Retroactive Basic Child Support) [93] I start first with the relief sought by the Mother in her Notice of Application filed December 20, 2022. [94] Subsequent events have overtaken some of the relief requested. For example, she sought disclosure from the Father of tax returns, bank account records, employment application documents, rental agreements and so on. This information was presumably sought in support of her claim for imputing a Guideline income to the Father in the amount of $90,000 and an ongoing child support obligation of $1,343.33 each month. [95] The Mother was also seeking an order requiring the Father to pay $128,928 in retroactive basic child support (presumably the outstanding arrears under the June 2015 order to December 2022). She was also seeking, for the first time, an order that the parties should share s. 7 expenses proportionate to their incomes, both retroactively and prospectively and, in particular, she claimed reimbursement by the Father of 65% of alleged s. 7 expenses in the aggregate amount of approximately $192,000. [96] The summary trial has now occurred on the Application Record placed before me as well as the further testimony adduced during the hearing. Further disclosure by the Father of past

income or lifestyle documentation is now moot. So too are the requested findings for contempt and fines for past violation of the Alberta orders. [97] The Mother's application for affirmation of the July 2015 Alberta child support order and for ongoing child support payments in the same amount will be addressed as part of the Father's application for a retroactive decrease in his child support obligations. So too will ongoing child support including any responsibility for past and future s. 7 expenses. [98] I have already made findings of fact regarding the Father's employment history and income for the years 2010 through 2022. Counsel for the Father points out that the 2015 child support order was based on the Father working two jobs ("an unsustainable situation") and that the overarching unfairness of the past nine years lies in the fact that the Father has been expected to pay child support not only on income that he did not in fact earn over the years, but on income that would have unreasonably required him to work two or even more jobs. This, he submits, is a fundamental misalignment that should be adjusted simply as a matter of fairness, a proposition with which I am inclined to agree. [99] Counsel has very usefully prepared a chart which illustrates (1) the Father's actual Line 150/15,000 income from 2014 to the December 2023 court hearing, (2) the amount of child

support payable each year based on the income numbers, and (3) the amount of child support actually paid. He included in the chart, again for illustration purposes, the amount of child support that would have been payable throughout those same years based on imputed incomes of $40,000, $50,000, $60,000 and $70,000 respectively. He has added these last columns in tacit recognition that the Father might be found to have been underemployed in the years 2014 through 2017 and that income will likely be imputed by the court for at least those years and possibly more. [100] The chart is as follows: Actual Income Actual Income/CS Owed Imputed $40k/CS Owed Imputed $50k/CS Owed Imputed $60k/CS Owed Imputed $70k/CS Owed Actual Paid 2014 $20,389 $1,956 $4,308 $5,532 $6,672 $7,848 $0 2015 $23,695 $2,268 $4,308 $5,532 $6,672 $7,848 $0 2016 $183 $0 $4,308 $5,532 $6,672 $7,848 $159 2017 $3,470 $0 $4,308 $5,532 $6,672 $7,848 $896 2018 $50,094 $5,532 $4,308 $5,532 $6,672 $7,848 $1,135 2019 $57,919 $6,420 $4,308 $5,532 $6,672 $7,848 $71 2020 $48,831 $5,400 $4,308 $5,532 $6,672 $7,848 $0 2021 $45,077 $5,016 $4,308 $5,532 $6,672 $7,848 $16,199 2022 $36,632 $3,852 $4,308 $5,532 $6,672 $7,848 $7,027 2023 (est) $50,000 $5,532 $4,308 $5,532 $6,672 $7,848 $9,540

TOTAL $35,976 $43,080 $55,320 $66,720 $78,480 $35,007 [101] In his first affidavit sworn April 26, 2023, the Father testified that he was "currently unemployed" although he had been applying for various jobs and was hoping to receive an offer in the near future. In his fourth affidavit sworn on November 30, 2023, the Father confirmed he was employed for less than three months that year by a company called Roar Communications but he had thereafter obtained a job with and is currently employed as a general manager with Dymon Wine Cellars at an annual salary of approximately $70,000. At that time, his actual income for the year 2023 was unknown and hence the $50,000 estimate that appears in the above chart. [102] Counsel for the Father notes that even if the March 8, 2018 agreement is found to be invalid, the child support arrears owed as of November 1, 2023 based on the Father's actual income, would be less than $1,000 ($35,976 - $35,007 = $969). [103] Counsel strenuously argues that the Father's 2012 income was anomalous and cannot possibly be the relevant or fair benchmark for the Father's earning capacity in the years 2014-2023. [104] The Father does not have a university degree. Since 2014, his employment has generally been in the field of wine and liquor distribution to restaurants and other businesses. Over the years he has worked for various agencies including Select

Wines, Vintage Trade, Abcon Wines, DaCapo Wines, Sylvestre Wines and more recently Dymon Wine Cellars. He found himself unemployed on various occasions over the years, hence the Employment Insurance income appearing in his income tax returns. He was steadily employed by Sylvestre Wines in 2018-2020, however that employment was ultimately terminated after COVID 19 "destroyed the restaurant industry in Ontario and there was 100% closure making it impossible to sell wines and liquor". [105] He attempted to find employment outside his usual field in 2021 and 2022 but those jobs ended in termination (one he states was the result of the Mother's calling the employer multiple times, and the other because the business was sold to a competitor). His current employment with Dymon Wine Cellars is hoped to be more permanent and thus far has seen half of his net salary being "diverted" by the FRO for child support purposes. [106] The Father submits he was working the full capacity in the years 2018, 2019 and 2023 and that for the period 2020-2022 it is reasonable to recognize reduced income because of the COVID 19 impact on the restaurant industry. Using actual income in those years and imputing income of $40,000 for each years 2014-2017 results in the following chart presented by counsel: Imputed/Actual Income CS Owed CS Paid 2014 $40,000 $4,308 $0 2015 $40,000 $4,308 $0 2016 $40,000 $4,308 $159 2017 $40,000 $4,308 $896 2018 $50,094 $5,532 $1,135 2019 $57,919 $6,420 $71 2020 $48,831 $5,400 $0 2021 $45,077 $5,016 $16,199 2022 $36,632 $3,852 $7,027 2023 (est) $50,000 $5,532 $9,540

TOTAL $48,984 $35,007 [107] Employing this approach would mean that the Father's child support arrears would be only approximately $14,000 as of November 2023, a very substantial reduction of the FRO "Case Net Balance" outstanding under the 2015 Alberta order. [108] The question that must first be answered, however, is whether on the applicable law and the facts of this case, it is even appropriate for a retroactive reassessment/reduction in child support to be made. [109] As noted earlier, the Colucci case is now the seminal decision governing applications to vary child support orders by retroactively decreasing the amount of support previously ordered by the court. The court observed: · child support under the DA is determined in accordance with the Guidelines, which are legally binding as subordinate legislation enacted pursuant to s. 26.1 of the DA (para. 33); · section 3 of the Guidelines provides that the amount of child support is presumptively determined in accordance with the applicable table in Schedule I the tables generally allow parents and courts to calculate the amount of child support owing based on just two numbers: the payor's income, and the number of children to be supported. Except in unusual cases, the amount of child support is not based on the child's needs (para. 34); · the premise underlying the Guidelines is that the child support obligation

fluctuates with the payor parent's income, hence accurate and timely disclosure of income information by the payor is the essential linchpin on which a fair child support regime depends. It is for this reason that the courts usually impose mandatory annual disclosure obligations in child support orders (paras. 48-54). · "there must be a fair balancing of certainty and flexibility to reach a just result in light of fluctuations in pay or income and the particular circumstances of each case" (para. 55); and, · this includes situations where the payor has experienced a material drop in income, "an all too common and unfortunate reality for many families" (para. 57). [110] This is a highly unusual case: · the 2013 Ontario trial judgment stipulated that no child support would be paid at all, a marked departure from the standard Guideline regime and one that was not explained in any reasons for judgment; · for the past decade, the parties had been living in different provinces, thousands of kilometres apart. The Father has had virtually no parenting time with the Child during that period; · the Mother initiated family law proceedings against the Father in Alberta in 2014 shortly after relocating to that province. She sought a variation of the Ontario "no child support" order. This ultimately resulted in a June 4, 2015 order from the Alberta court imputing income of $94,319 per annum

to the Father retroactive to June 1, 2014 and imposing a retroactive and future child support obligation in the amount of $1,343.33 per month. This order thus effectively created immediate child support arrears in excess of $24,000; · the Father was in bankruptcy for a period of two years commencing May 2014 (i.e. before the Alberta litigation was even started) and could not afford to hire a lawyer to represent him in the Alberta litigation. His efforts at self-representation were wholly ineffective; · the 2015 child support order was based on an imputed income derived from the Father working two jobs in 2012, an employment scenario which was terminated in 2013. His income in 2013 was only $53,000 and was just $20,000 in 2014 (the year of the bankruptcy). His actual annual income in the ensuing eight years never exceeded $58,000 (highest point); · the Alberta court in 2015 seems to have understood the Father submissions that his actual income was far below $94,000 per annum and thus expressly provided for a retroactive child-support review/readjustment mechanism upon proper further disclosure. The Father subsequently and unsuccessfully attempted several times to trigger that review in the Alberta court, hence the Mother was on notice and was well aware that the Father was objecting to and wanted to reduce the existing child support order throughout the Alberta litigation; · the

Alberta court dealt only summarily with the various applications before it and provided no reasons for judgment responding to the Father's submissions and explaining the various orders made (including at least one instance of contempt); · while there have been shortcomings in the Father's production of financial information over the years, adequate disclosure was made by late 2017. However variation of the child support order became moot on March 8, 2018 when the Mother expressly agreed with the Father to expunge child support arrears in exchange for consent to her relocation with the child to Vancouver; · the continued FRO enforcement of child support arrears in Ontario caused the Father to obtain a provisional order in the Ontario Superior Court of Justice in August 2019 cancelling the child support arrears pursuant to the March 8, 2018 agreement and substantially reducing his ongoing child support obligations; · when served with the Ontario order, the Mother commenced the present action in this court to, among other things, oppose confirmation/enforcement of the Ontario order, a strategy that ultimately succeeded in November 2020, thereby in effect affirming the FRO's ability to continue enforcement, subject to the Father's further application in this court for retroactive variation of his child support obligations. [111] There was no evidence before me of any hardship being

experienced by the Child. To the contrary, the Child seems to be enjoying a relatively high standard of living, residing in a nice home in North Vancouver jointly owned by the Mother and grandmother, going to an expensive private school, and enjoying a wide variety of extracurricular activities (including competitive hockey which the Child particularly enjoys). The Mother has not worked outside the home here in BC, apparently devoting all of her time to looking after the Child, and all costs of living have been and continue to be funded through the generosity of the grandmother. [112] While the Mother has attempted on this summary trial application to demonstrate that the Father enjoys a standard of living far beyond his disclosed level of income, this has not been established on the evidence and I find as a fact that this has not occurred. I accept the Father's evidence regarding his past and current financial circumstances. He lives primarily with his parents in their home and drives a vehicle loaned by them. While he has a girlfriend who has children of her own and with whom he spends time, I accept her affidavit evidence describing their financial relationship. The simple fact of the matter is that both she and the Father's parents have been required to provide some financial support to him in addition to his net employment income available after FRO diversion. [113]

Several times in the Colucci judgment, the Supreme Court of Canada emphasized the importance of "fair balancing" and "just outcomes" in the operation of the statutory child support regime under the DA. In this particular case, the outcomes for the payor parent have been harsh. The amount of child support imposed by the Alberta court in 2015 did not reflect his actual income, whether at the time or in any of the subsequent years. The 2015 order was essentially interim in nature and expressly contemplated retroactive variation upon further disclosure, a process that has not occurred until the hearing before me. [114] In my view, it is fair and appropriate in all the circumstances for the court to reassess the Father's child support obligations from day one and adjust the accumulated arrears based on his actual or fairly imputed income as the case may be. [115] I recognized that the court in Colucci has endorsed the four "D.B.S. factors", albeit adapted to suit the retroactive decrease context. In this case, it is certainly arguable that the Father's delay in seeking more timely relief from the courts, his failure to voluntarily pay child support in the past, and the shortcomings in past disclosure all militate against retroactive adjustment, whether for any presumptive three year period before formal notice or, indeed, at all. The Father's behaviour over the years has not been

praiseworthy although much the same might also be said of the Mother who has a history of noncompliance with her own financial disclosure obligations and, possibly more importantly, has essentially deprived the Father of any meaningful parenting time with the Child. [116] I completely agree with the Colucci direction that any exercise of judicial discretion under s. 17 of the DA must in no way reward those who have improperly withheld financial information they ought to have shared (para. 54). In this case, however, retroactively adjusting child support to accord with the Father's actual or fairly imputed income is not a "reward". It is instead, at least in this particular judge's opinion, a fair and appropriate outcome in all the circumstances. [117] This leaves the question whether the Father should be imputed additional income over and above his actual income in any of the years of 2014-2023. [118] Counsel has tacitly conceded that the Father was underemployed in the years 2014-2017 and proposes that he be imputed income of $40,000 for child support purposes in each of those years. I agree that imputing additional income is appropriate but I consider $40,000 to be too modest an amount. There is little evidence before the court to make any thorough assessment of the Father's full employment opportunities in those years and so I will arbitrarily adopt $50,000 in that regard.

It is close to the amount earned by the Father in 2013, being the year that he lost one of the two jobs he was formerly working. [119] I do agree with counsel, however, that it is reasonable to use the Father's actual income for the years 2018 through 2023 as I am satisfied the Father was earnestly attempting to work at full capacity in challenging times. [120] As well, I conclude that any retroactive adjustment of child support must reflect the fact that the Father did not exercise his parenting time with the Child in Alberta (or Vancouver) and thus did not incur any "unusually high" travel and related expenses of the sort contemplated by s. 10(2)(b) of the Guidelines. As such, he did not meet either the implied expectation of the Ontario 2013 divorce judgment or the child-access-adjustment provision in the June 4, 2015 Alberta order. There being no other basis at law for the "no-child-support" order of the Ontario Court, and having regard to the fundamental principles of child support obligations referred to earlier in these Reasons, I conclude it is appropriate for any retroactively adjusted child support to commence on January 1, 2014. [121] In the result, I make the following order: 1. The June 4, 2015 child support order of the Court of Queen's Bench of Alberta and all arrears accumulated under that order are varied as set out below.

2. The Father's imputed and actual income for child support purposes is in the following amounts for the following years: · 2014 -$50,000 · 2015 - $50,000 · 2016 - $50,000 · 2017 - $50,000 · 2018 - $50,094 · 2019 - $57,919 · 2020 - $48,831 · 2021 - $45,007 · 2022 - $36,632 · 2023 - such amount as appears in Line 15,000 of the Father's 2023 income tax return.

3. For the purposes of 2024 child support, the Father's guideline income is set at $70,000.

4. Counsel are directed to determine the appropriate amount of monthly child support for 2024 in accordance with the Guidelines and the formal order entered following this Judgment must stipulate payment by the Father of that amount.

5. Counsel are also directed to recalculate all arrears outstanding to the date of this Judgment based on the child support payable in accordance with the imputed/actual guideline income above and crediting all amounts paid toward child support, whether by means of enforcement proceedings by the FRO in Ontario or otherwise. The formal judgment entered following these Reasons must stipulate the amount of all such arrears outstanding to the date of Judgment.

6. In the event the parties are unable to agree on the calculations required above, the matter will be referred to the registrar of this court for determination.

7. The parties will serve upon the FRO of Ontario a copy of the entered order following this Judgment and its records and ongoing enforcement procedures must be amended accordingly.

8. No later than June 1st of every year hereafter, the parties must exchange all respective income information and related tax returns and earnings statements, as required by the Guidelines, and the child support payable by the Father shall be adjusted as required by the Guidelines based on his Line 15,000 income for that previous year, which adjustment is to be effective July 1st of each year. Section 7 Special and Extraordinary Expenses [122] In her Notice of Family Claim, the Mother makes a claim for proportional sharing of special and extraordinary expenses pursuant to s. 7 of the Guidelines. The claim is also particularised in her Notice of Application filed December 20, 2022. In the latter document, the expenses were described as follows: a. $2,273 for prescriptions, medical and dental expenses; b. $9,213 for orthodontic out-of-pocket expenses; c. $52,593 for extracurricular activities; and, d. $128,200 for tuition. In her second affidavit sworn December 15, 2022, the Mother attested to the expenses she claimed and attached as exhibits various medical/dental receipts, the Mulgrave School record of fees to date, and a spreadsheet summarizing the cost of the Child's extracurricular activities from 2014 to the date of that affidavit. [123] In her first affidavit sworn October 8, 2020, the Mother stated under the heading "financial hardship": · "it has been extremely

difficult to continually have to expend time and financial resources to address the various issues in this matter, especially support. The litigation on its own has been financially draining, mentally exhausting and emotionally challenging"; · "the Child a great support network, including my mother, who has helped raise her and has been economically supportive"; and, · "both retroactive and prospective child support would go a long way in supporting the Child, who is very active, and would take less financial stress off of me (sic) and would require less support from my mother". [124] Nowhere in her affidavits does the Mother actually say that she was the one who paid for all of the expenses for which she now claims contribution from the Father. In her Financial Statement sworn January 20, 2023, the Mother lists her employment income as zero but identifies as "other income" the rent received from the legal rental suite in their home in the amount of approximately $20,000. In that financial statement she swears, · "[my mother] has been helping me take care of [the Child] for over 10 years now. She assists with the costs associated with her that I am unable to pay"; · "[my mother] is very generous and allows me to collect the rent from the legal apartment in the house (hence my "income") to help cover my expenses and to take care of [the Child]. I pay for as much as I can

(transportation, food, extracurriculars, medical, dental, etc.). She helps me with the bigger costs such as housing and tuition". [125] Attached to the Mother's Financial Statement is a document prepared by Oakwyn Realty directed to the Mother and the grandmother as owners of the house on Canyon Boulevard in North Vancouver. Rental income for the calendar year 2022 was $21,755.20, admin/management fees were $1,635.75 and net income to the owners was $20,119.45. [126] As noted earlier, the mother also stated in her Financial Statement that the grandmother had purchased the Canyon Boulevard home and that she (the Mother) was put on title for "estate planning purposes". She did not list the home among her assets disclosed on the statement, just a 2022 BMW X3 motor vehicle acquired for $45,000. On the most recent income tax return attached to her Financial Statement (2020) the Mother claimed gross rental income from the Canyon Boulevard property in the amount of $19,956 and expenses of $12,844 resulting in net income of $7,112 (before further deducting capital cost allowance for tax purposes). [127] The Mother does not work and has no employment income. According to her, the grandmother is the "real" owner of the house and the grandmother gives her an "allowance" in the amount of the rental monies received from the property management firm. In reality, it is the grandmother who has

been paying all of the Child's expenses throughout the years. [128] On the final day of argument on June 21, 2024, counsel for the Mother informed the court that the grandmother was indeed paying for the Child's tuition expenses and thus that particular expense was no longer being claimed as a s. 7 special or extraordinary expense for the purposes of retroactive and future contribution by the Father. He also informed the court that, · the remaining listed expenses were still being claimed for proportional sharing with the Father; and, · for the purposes of proportionate contribution calculations, it would be appropriate to impute up to $50,000 to the Mother as employment income (based on full-time minimum wage and the net rental income). [129] Counsel also pointed out that the Father himself claims a $200,000 debt to his parents, being the cumulative financial assistance they have provided in the years since the divorce. [130] Counsel argues that, if the Mother's income tax or imputed income is to be increased on account of financial gifts from the maternal grandmother, then so too with the financial assistance provided to the Father by his parents. [131] For his part, the Father resists all contribution to past s. 7 expenses. [132] First, he challenges whether the expenses even qualify as "special or extraordinary" within the meaning of s. 7 of the Guidelines. He notes that in

order to qualify, the expenses must be necessary in relation to the children's best interests and reasonable having regard to the means of the spouses. He says he simply cannot afford to pay for private school and the extracurricular activities required by that school. [133] The Father also says he was never advised and did not receive notice from the Mother that she intended to enroll the child in any of the activities for which she now seeks retroactive contribution. He suggests that this failure to consult beforehand should disqualify contribution. [134] I again find myself generally in agreement with the submissions made on behalf of the Father. [135] First, I note and I find as a fact that all of the expenses claimed by the Mother have not been paid by her but rather by the grandmother. The latter has been extraordinarily generous over the years, gifting to the Mother vacation travel, an expensive car, private school tuition and related extracurricular activities, and a 50% interest in a home in a nice neighbourhood of North Vancouver, a property on which the mortgage is quite small and the equity is very substantial. [136] The grandmother obviously has had substantial wealth at her disposal but, even though she has been a member of the Mother's household for many years, there has been no disclosure of her financial information (although so too regarding the means of the

paternal grandparents). [137] Second, I accept that private schooling and related extracurricular activities are currently beyond the means of the father, who is still struggling to survive financially while also paying child support, both the arrears and also on a continuing basis. [138] Third, I agree it is inappropriate to seek contribution for expenses incurred without prior consultation with the proposed payor parent. This is particularly true of medical/dental expenses which may have been recoverable under any extended insurance benefits program available to the father through his employment. Accessing such coverage was actually one of the terms of the 2013 Ontario divorce judgment, although I acknowledge that the Father was required to inform the Mother of the availability of such coverage, apparently another obligation he has casually disregarded over the years. [139] I do agree, however, that a re-set is appropriate with respect to s. 7 expenses and that from this point forward, the Child's medical and dental expenses will ordinarily qualify for proportional sharing by both parents to the extent they exceed any available reimbursement other either parents benefits plan and/or any Canada Dental Benefit Plan. As per s. 7(1)(b), that portion of either parent's medical and dental insurance premiums attributable to the child would also qualify as a special expense subject to proportionate proportional sharing. [140] I therefore make the following order regarding s. 7 expenses: 1. The Mother's claim for retroactive contribution towards past special or extraordinary expenses is denied.

2. Going forward, each parent must include as part of their required annual disclosure for child support adjustment purposes, the details of any medical and dental insurance programs that may be available to them, whether through employment or otherwise.

3. The following expenses qualify as future s. 7 special expenses that must be paid by the parties in proportion to their respective actual or imputed income (currently $70,000 per annum for the Father and $50,000 imputed income for the Mother): · that portion of either parent's respective medical and dental insurance premiums attributable to the child; and, · all reasonable medical and dental expenses for the Child (including prescription drug and regular dental check-ups, cleaning and care) after deducting the amount covered by the parent's extended health and dental care plans and/or the Canada Dental Benefits Program.

4. The Father must fill out any necessary forms or provide any necessary permissions to allow the mother to seek reimbursement directly through any such benefit provider available to him.

5. The Mother will submit the receipts to the benefit providers (whether directly or through the Father) and will notify the Father of any amounts not covered, whereupon the Father will then pay to the Mother his proportionate share of any costs which are not reimbursed.

6. Any additional special or extraordinary expenses of the sort contemplated by s. 7 of the Guidelines are also to be payable by the parents on a proportionate basis provided they first consult each other and agree in writing beforehand to the expense being incurred. Parenting Time for the Father Parenting History [141] These parents have been involved in high conflict family litigation for well over a decade. Their affidavits are filled with (mostly inadmissible) accusations against each other and their ongoing mutual antipathy was very evident during their oral testimony to the court. [142] The Father strenuously asserts that the Mother is responsible for severing his relationship with the Child and that her conduct has led to, and continues to, perpetuate his estrangement from the Child. [143] For her part, the Mother says she has not interfered with the Father's contact with the Child and that she has "left the door open for years" for him to become involved, something he has simply failed to do. She says the Father's expectations for parenting time "are not rooted in the reality of the situation". That is probably an accurate observation. [144] According to the Mother, the "reality" is that the Child does not want to have much, if any, contact with the Father. She says she has asked the Child to speak with the Father and she would herself encourage further contact between

the two however "it is not my decision and she (the Child) does not want to engage". [145] The Mother recounted the last time she witnessed a phone call between the Father and the Child. The Child came into the Mother's car for that conversation over Bluetooth, however her friends were waiting for her in the driveway and she wanted to get the call over with quickly. The Mother says the Father stated "I am your father, much more important than your friends " whereupon the Child hung up the phone. [146] The December 2013 Ontario divorce judgment granted the Father access to the Child on alternate weekends each month, one visit in Toronto, the other visit in Calgary. The Mother was to pay the expense of the visit to Toronto. The visit in Calgary was to be at the Father's expense. [147] The order provided that upon the Child attending grade one in September 2016, the Father would have alternate weekend access with the Child in Calgary from Friday after school until Monday drop off at school. All costs of access, including accommodation and travel, were to be borne by the Father. [148] Detailed schedules were also prescribed for the Father's access with the Child during holidays and the summer time. The order also permitted the Father to communicate electronically with the Child on a daily basis in Calgary and the Mother was required to "cooperate to facilitate such contact". [149]

The June 4, 2015 Alberta order reaffirmed the Father's ability to exercise child access in Calgary as per the 2013 Ontario divorce judgment and indeed included a term reducing the child support payable in the event such access occurred. [150] The December 8, 2017 Alberta order dealt primarily with the Father's parenting access. It required the Mother to provide a list of a minimum three evenings each week when the Father could telephone and Skype with the Child. It also required the Mother to bring the Child to Toronto at specified times in January and February 2018, at the Mother's own cost, so that the Father might have overnight access. [151] None of these orders were complied with by either parent. The Father did not travel to Calgary or Vancouver to visit the Child and the Mother has not taken the Child to Toronto for visits with the Father. The Father has only seen the Child on a couple of occasions (coinciding with travel or litigation attendance). Rather remarkably, he says he has been calling the Mother's phone every night for years in the hope of speaking with the Child. He does not seem to recognize the possibly negative implications such persistent intrusion might have for the Child. [152] The Mother acknowledges that the Father calls regularly, however she "does not pick up the phone". She says the Child can also pick up the phone, however she does not do so

because she does not want to speak with the Father. [153] This is perhaps a hopeless situation for the Father. The simple fact of the matter is that the Mother has had sole custody for many years and the parties have been living thousands of kilometres apart with virtually zero in-person contact. The antipathy between the parent remains very high and their 14-year-old daughter finds herself caught in the middle and inevitably has come to align herself with her Mother. [154] During her cross-examination, the Mother was asked whether she would be willing to engage in some form of family reunification counselling so that a relationship might be rebuilt between father and daughter. She replied that she "needed to make sure [the Child] is willing" but "right now, she is not". [155] The Mother also questions whether the Father's intentions regarding future parenting are genuine: "why was not he here over the past four days (of trial)?", she asks. She firmly believes that if the Father's intention had been generally genuine throughout the years, he would have somehow set aside the time and money to come out to visit the Child in Vancouver. The Father's response, in addition to lack of money because of excessive FRO arrears enforcement, is that the Mother would invariably find some way to prevent the visit by organizing other activities for the Child elsewhere at the relevant time.

This complete lack of trust between the parents does not bode well for positive paternal parenting outcomes in the future. [156] At the expiry of the allotted hearing time on December 21, 2023, I made an interim order with a view to promoting some positive developments on the paternal parenting front. Among other things, that order provided: 1. The parties will forthwith jointly retain a licensed psychologist to conduct an evaluative "Views of the Child" assessment and report as soon as reasonably possible regarding the Child's views on further parenting time with the respondent, if the Child is amendable to parenting time with the respondent, and what the frequency and format of such parenting time the Child prefers. The psychologist will evaluate and provide an opinion on further contact with her father and if she is amenable to contact, what the frequency and format for such contact she would prefer and whether the Child's stated views align with her wishes. The cost of this report will be shared equally by the parties.

2. Within 24 hours, the Claimant will send the respondent an email including: a. Recent photographs of the Child; b. The Child's most recent school report card; and c. As brief a summary as the Claimant wishes to make, if any, of what is presently going on in the Child's life; 3. The Claimant will facilitate, at a minimum, telephone parenting time, preferably via videocall or videoconference, between the Child and the Respondent to occur in privacy for a maximum of 10 minutes as follows: a. On December 25, 2023, at the time to be agreed upon between the parties. If an agreement cannot be reached, then the call shall occur midday, Pacific Time; and b. On January 1, 2024, if the Child is willing to do so at a time to be agreed upon between the parties and if no agreement as to time of the call, then at midday Pacific Time.

4. Commencing February 1, 2024, and continuing on the 1st day of each and every month thereafter until further order or written agreement of the parties, the Claimant will facilitate a call, preferably by videocall or videoconference, between the Child and the Respondent, at least once per month, for a maximum of 10-15 minutes or with such other frequency or duration as the Child agrees. [157] Regrettably the required psychological consultation did not occur. Instead, when the hearing resumed on June 21, 2024, I was provided with a "Supplemental Application Record" containing two paralegal/legal assistant affidavits and a further affidavit from the Mother. The former two affidavits simply attached correspondence between counsel squabbling over the choice of the psychologist who was to conduct the Views of the Child report. The Mother's fifth affidavit includes inadmissible speculation regarding the Father's income and attaches recent text messages between herself and the Father. One example reads: Mother: I am aware yesterday was May 1. Should have sent you a message for that I am at fault. [the Child] had a very long day yesterday that started at 5:15 a.m. with a 6:30 a.m. hockey practice and ended at 8:30 p.m. with another activity. There was not sufficient space or time to have her call. I am sure I am sure you understand and appreciate how busy and involves she is in things

she loves to do. She has free time tonight. Thank you for your understanding. Father: thank you for showing that once again, anything you or [the Child] do is monumentally more important than [the Child] speaking or corresponding with me. You have ripped her from my life, we are in court with me battling for time, any time with her, and you are fighting me on this. And all you want is money, when you have made zero attempt to even get a job. Nice role model. This is just one more to add to the 1000's of times I have been alienated. And stop making these claims about abuse. Read the messages you send me, you're unreal Analysis [158] By his Notice of Application filed August 25, 2023, the Father seeks parenting time as follows: 1. An order that the Respondent Jeremy Graeme Stewart have parenting time with [the Child], born August 16, 2010 (the "Child") as follows: a. A minimum of one weekend per month, from Friday after school (or, if there is no school on the Friday, 3:00 p.m.) to Monday when the Child begins school (or, if there is no school on the Monday, 10:00 a.m.), with the Respondent to provide a minimum 14 days' notice of the commencement date of this parenting time; b. Two consecutive weeks during the Child's 2023 summer holiday, to be exercised in Ontario or such other place as the Respondent may elect, with the Respondent to provide a minimum 60 days' notice of the

commencement date of this parenting time, and with an increase of one further consecutive week in each subsequent year until the parties are sharing equally the Child's summer holiday parenting time; c. Daily telephone, Skype, Facetime, or other virtual or teleconferencing parenting time, for a minimum of 15 minutes per day, to take place at 9:00 p.m. EST or such other time as the parties may agree in writing; and d. Such further parenting time as the parties may agree in writing; [159] The requested regime is a slightly different version of what was ordered by both the Ontario court in 2013 and the Alberta court in 2015/2017. Those orders were simply ignored by one or both of the parents over the years and there is no sense in simply re-imposing such a regime after all this time. [160] Based on the evidence before me, it appears that the Child is indeed estranged from her Father and is resisting contact with him. The Mother appears to have a "permissive" style of parenting and is only prepared to facilitate contact with the Father if and when the Child wishes it. In such circumstances, there is very little that the court can do, particularly given the necessity for expert evidence on how reunification of this family might be possible and how it is best approached. [161] I have written in the past on the judicial and practical constraints that the courts confront in high

conflict cases involving allegations of alienation: see L.C.T. v. R.K., 2018 BCSC 1016 at paras. 53 - 74. I will not repeat all of that material here but, suffice it to say most of those constraints apply in this case. [162] When making parenting orders, the law requires that the court must consider only the best interests of the child and also requires the court to give primary consideration to the child's physical, emotional and psychological safety, security and well-being. [163] In this case, s. 16 of the DA applies. It provides as follows: Best interests of child 16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Primary consideration (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being. Factors to be considered (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (a) the child's needs, given the child's age and stage of development, such as the child's need for stability; (b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's

life; (c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse; (d) the history of care of the child; (e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained; (f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child's care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Past conduct (5) In determining what is in the best interests of the child, the court shall not take into consideration the past

conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. Maximum parenting time (6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. Parenting order and contact order (7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order. [164] In this case, the Child has had very little contact with the Father during her lifetime. She is now a 14-year-old teenager whose views and preferences must be given some weight. It is unwise and inappropriate to force such a teenager into some sort of parenting regime that she does not want. [165] The Father in this case has a forceful personality. He is deeply wounded by the absence of any relationship with his daughter and is prone to intemperate and accusatory language in the communications that do occur with the Mother. He would benefit from professional assistance with communication styles and strategies that would best improve the prospects of fostering a relationship with his daughter. He has not done the necessary

"homework" in that regard. [166] The court also needs to be informed of the Child's views and preferences. It was for this reason that the court earlier ordered that a Views of the Child report be prepared. I am not satisfied that the Mother is accurately reporting the Child's preferences and I would much prefer for this information to be conveyed to the court by a professional assessor with expertise in this field. [167] Counsel for the Father first proposed to counsel for the Mother using Dr. Bolgar for the Views of the Child report at her quoted cost of $4,200. The Mother rejected Dr. Bolgar without stating any reasons for that objection and proposed instead the use of Dr. Koopman who initially quoted a fee of $5,000, then increased it to $10,000, and thereafter reduced it to $5,000 at the request of the parties. [168] The parties simply do not have the money for a professional s. 211 report under the FLA. The best that might be achieved in the current circumstances is this Views of the Child report. I have seen Dr. Bolgar's reports and have received her testimony it in the past. I am satisfied she is well-qualified to undertake the task of personally interviewing the Child in this case. [169] In the result I make the following order with respect to parenting issues: 1. The Father's application for a revised paternal parenting regime is adjourned.

2. The parties will forthwith jointly retain Dr. Bolgar to personally interview the Child and provide a Views of the Child assessment and report as required by para. 1 of my interim order issued December 21, 2023. The cost of this report is to be shared equally by the parties.

3. The video call/videoconference parenting time provided in para. 4 of the December 21, 2023 order will continue and the Mother must take all necessary steps to ensure such calls occur as scheduled. If the parties are unable to agree on the timing of the call(s), it shall occur at 6:00 p.m. Vancouver time.

4. At least once a month (the last week of that month), the Mother will email to the Father a report on the Child's school, recreational and social activities over the previous month and will include at least one recent photograph of the child and copies of any written communications the mother may have received regarding the child from the school, her physician(s) and coach(es) and the like. [170] As indicated, I am not prepared to force the Child at this stage of her life to have more contact with the Father than what is being required above. Matters can be revisited with the court once the Views of the Child Report has been received and some of the required communications between the Father and the Child/Mother have occurred. [171] The Father would be well advised to obtain professional counselling regarding the manner in which he communicates with his daughter and seek assistance with strategies that might promote more positive engagement in that regard. [172] The parties are at liberty to reset an application before the court once the Views of the Child report has been received and will have the opportunity to make further submissions regarding the continuation and/or expansion of any paternal parenting time regime. I am not necessarily seized of the matter and, if I am unavailable for a timely hearing, it may be sought before any other member of this court. [173] I

recognize the likely futility of any judicial exhortation regarding communication between the parties. Nevertheless, I would simply observe that it would likely be in the longer term best interests of the Child for her to develop some sort of positive relationship with her Father. The current environment of mutual antipathy will have to be set aside if this is to occur and I strongly advise the parties to put the past behind them and try to create a more positive and co-operative relationship for the benefit of the Child. Summary and Conclusion [174] In summary I make the following orders: Child Support 1. The June 4, 2015 child support order of the Court of Queen's Bench of Alberta and all arrears accumulated under that order are varied as set out below.

2. The Father's imputed and actual income for child support purposes is in the following amounts for the following years: · 2014 -$50,000 · 2015 - $50,000 · 2016 - $50,000 · 2017 - $50,000 · 2018 - $50,094 · 2019 - $57,919 · 2020 - $48,831 · 2021 - $45,007 · 2022 - $36,632 · 2023 - such amount as appears in Line 15,000 of the Father's 2023 income tax return.

3. For the purposes of 2024 child support, the Father's guideline income is set at $70,000.

4. Counsel are directed to determine the appropriate amount of monthly child support for 2024 in accordance with the Guidelines and the formal order entered following this Judgment must stipulate payment by the Father of that amount.

5. Counsel are also directed to recalculate all arrears outstanding to the date of this Judgment based on the child support payable in accordance with the imputed/actual guideline income above and crediting all amounts paid toward child support, whether by means of enforcement proceedings by the FRO in Ontario or otherwise. The formal judgment entered following these Reasons must stipulate the amount of all such arrears outstanding to the date of Judgment.

6. In the event the parties are unable to agree on the calculations required above, the matter will be referred to the registrar of this court for determination.

7. The parties will serve upon the FRO of Ontario a copy of the entered order following this Judgment and its records and ongoing enforcement procedures must be amended accordingly.

8. No later than June 1st of every year hereafter, the parties must exchange all respective income information and related tax returns and earnings statements, as required by the Guidelines, and the child support payable by the Father shall be adjusted as required by the Guidelines based on his Line 15,000 income for that previous year, which adjustment is to be effective July 1st of each year.

9. The Mother's claim for retroactive contribution towards past special or extraordinary expenses is denied.

10. Going forward, each parent must include as part of their required annual disclosure for child support adjustment purposes, the details of any medical and dental insurance programs that may be available to them, whether through employment or otherwise.

11. The following expenses qualify as future s. 7 special expenses that must be paid by the parties in proportion to their respective actual or imputed income (currently $70,000 per annum for the Father and $50,000 imputed income for the Mother): · that portion of either parent's respective medical and dental insurance premiums attributable to the child; and, · all reasonable medical and dental expenses for the Child (including prescription drug and regular dental check-ups, cleaning and care) after deducting the amount covered by the parent's extended health and dental care plans and/or the Canada Dental Benefits Program.

12. The Father must fill out any necessary forms or provide any necessary permissions to allow the mother to seek reimbursement directly through any such benefit provider available to him.

13. The Mother will submit the receipts to the benefit providers (whether directly or through the Father) and will notify the Father of any amounts not covered, whereupon the Father will then pay to the Mother his proportionate share of any costs which are not reimbursed.

14. Any additional special or extraordinary expenses of the sort contemplated by s. 7 of the Guidelines are also to be payable by the parents on a proportionate basis provided they first consult each other and agree in writing beforehand to the expense being incurred. Paternal Parenting 15. The Father's application for a revised paternal parenting regime is adjourned.

16. The parties will forthwith jointly retain Dr. Bolgar to personally interview the Child and provide a Views of the Child assessment and report as required by para. 1 of my interim order issued December 21, 2023. The cost of this report is to be shared equally by the parties.

17. The video call/videoconference parenting time provided in para. 4 of the December 21, 2023 order will continue and the Mother must take all necessary steps to ensure such calls occur as scheduled. If the parties are unable to agree on the timing of the call(s), it shall occur at 6:00 p.m. Vancouver time.

18. At least once a month (in the last week of that month), the Mother will email to the Father a report on the Child's school, recreational and social activities over the previous month and will include at least one recent photograph of the child and copies of any written communications the mother may have received regarding the child from the school, her physician(s) and coach(es) and the like.

19. The parties are at liberty to reset an application before the court once the Views of the Child report has been received and will have the opportunity to make further submissions regarding the continuation and/or expansion of any paternal parenting time regime.

20. Justice Kent is not necessarily seized of the matter and, if he is unavailable for a timely hearing, it may be sought before any other member of this court. [175] The parties are at liberty to address costs of these applications at or following the conclusion of the parenting determination referred to above. "Kent J."