Selina v. Selina

2014 BCSC 1185 Selina v. Selina

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Selina v. Selina, 2014 BCSC 1185 Date: 20140627 Docket: 00-5009 Registry: Victoria Between: Sandra Jean Selina Plaintiff And: Stephen Philip Selina Defendant Before: The Honourable Madam Justice Dorgan Reasons for Judgment Appearing in Person: S. J. Selina Appearing in Person: S. P. Selina Place and Date of Trial/Hearing: Victoria, B.C. November 1, 2013 and June 23, 2014 Place and Date of Judgment: Victoria, B.C. June 27, 2014 [1] In this family law action, Mr. Selina applies for a variation of the July 8, 2008, child support order and to abrogate all arrears of child support. The variation Mr. Selina seeks is that the child support order of $800 per month for two children be reduced to zero. The arrears as of September 23, 2013 are $16,516.19 (inclusive of interest) plus the Family Maintenance Enforcement Program ("FMEP") fees. [2] Mr. Selina contends that virtually since separation he has overpaid child and spousal support, that the shared parenting arrangement of the parties has not been taken into account in the determination of child support, that his support obligations for the last 10 years have been defined by his earnings of $112,000, an amount he has been unable to achieve, that his financial and professional circumstances have been compromised as a result of the marriage, its breakdown, the subsequent court orders

for support and, in particular, by Ms. Selina. [3] Ms. Selina opposes the application to abrogate arrears arguing that Mr. Selina's lifestyle choices and the lack of priority he has given to the payment of child support over the years, notwithstanding reasonable levels of income, are the primary reasons that Mr. Selina finds himself in what he describes as difficult, if not impossible, financial circumstances. Ms. Selina agrees that as of mid-March 2013 the parties' son (aged 19 years) moved from her home to Mr. Selina's where he now lives on a full-time basis. Accordingly, she agrees that the existing order should be varied to delete Mr. Selina's obligation to pay child support for that child. It follows that some arrears must be abrogated to take that fact into account. Ms. Selina submits that she has been the primary parent throughout, that Mr. Selina has not, since separation, consistently had the children over 40 per cent of the time as he contends, and that she (and more recently, together with her common law spouse) has been responsible to a significant degree for the ongoing expenses of raising the parties' children. Background [4] The parties were married on May 26, 1990. They separated on May 15, 2000. As may be seen, the litigation has been ongoing for over 13 years. There are two children of the marriage: a son born January 14, 1995, and a daughter born June 5,

1999; they were age five and one respectively at separation. [5] Mr. Selina is 51 years old, Ms. Selina is 49. Mr. Selina, throughout the times relevant to this application, has worked in the financial industry largely as an investment advisor. Ms. Selina is a dental hygienist with a 24-year work history until September 2011 when a diagnosis of a protruded or herniated disk has prevented her from practising her profession. She is without disability insurance, a fact about which Mr. Selina is critical. She responds that her lack of disability insurance is due in part to past financial constraints. [6] In any event, Ms. Selina is now faced with having to change occupations and is attempting to find suitable alternative employment. According to her 2012 tax return, her income from employment was $5,572.75; from Employment Insurance (which has now ended), $15,444. [7] In her financial statement sworn October 25, 2013, Ms. Selina shows rental income of $5,400, plus child support income as her only sources of income in 2013. I am satisfied on the evidence that her earning capacity is obviously in a state of flux and is legitimately and significantly compromised by her health. [8] Mr. Selina is working with Great West Life as a Gold Key Advisor which I take to mean, as a financial advisor in the insurance/investment field. He has held this position since January 2013. His 2012 gross

business income (he has been and is an independent contractor at his place of employment) is $67,325.43; net of expenses it is $44,433.46. He reported gross rental income of $8,400; net of expenses, $535.12. His Line 150 income in his 2012 tax return is $44,928.11. His rental and business expenses, while CRA compliant, include expenses which have a personal component such as a portion of mortgage interest, insurance, property taxes, utilities, maintenance and repairs to Mr. Selina's home in which there is a rental suite, plus telephone and motor vehicle expenses. [9] Mr. Selina's 2013 (to November 1, 2013 date of hearing) year-to-date gross earnings from employment were confirmed on June 23, 2014 to be $51,618, plus rental income. [10] Mr. Selina has remarried; he has a five year old child from the second marriage. Over the last number of years Mr. Selina took on the sole responsibility for the support of his second family consisting of his wife, who was out of the paid labour force for a number of years, their now five-year-old child and Mrs. Selina's now 21-year-old child from a previous relationship. His evidence is that his wife, after a number of years of no paid employment, now earns $8,400 per year working on a part-time basis as an aesthetician. [11] Ms. Selina lives in a common-law relationship with a man who has had and has a steady annual income and a modest asset

base. I accept Ms. Selina's evidence that his ongoing earnings and their household's ability to live within their means have allowed her to contribute as she has to the support of the two children of this marriage. History of Court Orders to Date 1. On July 20, 2001 (one and one-half years post-separation) Master Barber made an interim order when each party was represented by counsel. By that order the parties consented to parenting arrangements, defined simply as joint custody and guardianship. Master Barber found that Mr. Selina's Guideline income was $112,000 per year and ordered Mr. Selina to pay Ms. Selina child support of $1,341 per month commencing August 1, 2001, plus spousal support of $2,250 per month commencing August 1, 2001, plus costs. Nothing in the order reflects that the parties agreed and/or acknowledged a shared parenting arrangement as Mr. Selina contends was the case since the marriage breakdown, although one would have expected it to do so if that was the case.

2. Mr. Selina appealed the Master's order and applied, in the alternative, to vary it. On September 20, 2001, the appeal and application to vary were dismissed. Both parties were represented by counsel.

3. On January 13, 2005, a divorce order was pronounced which included comprehensive provisions dealing with the corollary relief claims of the parties in the divorce action. All of the corollary relief went by consent. Both parties were represented by counsel. The consent corollary relief deals with such matters as parenting arrangements, child support, spousal support and division of property. The agreed parenting arrangements are defined as joint custody and guardianship, Ms. Selina to have primary care and Mr. Selina to have reasonable and generous access which is defined. The order neither describes nor reflects a shared parenting arrangement. The order must be accepted as correct. Mr. Selina was to pay child support for the two children of $2,000 per month on his agreed Guideline income of $112,000. By consent, Mr. Selina's spousal support obligations were varied considerably from that which was ordered in 2001 by Master Barber, namely, Mr. Selina would pay spousal support reduced from $2,250 per month to $400 per month for one year: January 1, 2005 to December 1, 2005; and thereafter, the spousal support was further reduced to $200 per month for one year commencing January 1, 2006 until December 1, 2006. The evidence confirms that Mr. Selina has not paid spousal support for seven years and has not been obligated to do so. The corollary relief includes a settlement of

property issues whereby the net sale proceeds of the family home ($6,844.04) were divided between the parties by agreement. While Mr. Selina contends (with no supporting evidence) he was saddled with $150,000 of family debt following separation, a contention Ms. Selina disputes, it is worth noting that in the comprehensive settlement of all issues as reflected in the January 13, 2005 order, there is no mention of this significant debt which fact argues against Mr. Selina's contention.

4. In 2008, Mr. Selina applied to vary the January 13, 2005 divorce order. The parties attended mediation; each was represented by counsel. The July 8, 2008 order which Mr. Selina now seeks to vary was the culmination of that mediation. It was made by consent. The July 8, 2008 order provides that Mr. Selina pay Ms. Selina $800 per month for the support of two children which payment "considers the shared parenting arrangements currently in place " (a reduction from $2,000 per month). The order deals with arrears of child support then owing by Mr. Selina and by agreement the arrears are fixed in the sum of $3,600 payable at $100 per month. The order provides further for cancellation of all FMEP default fees and interest owed by Mr. Selina to the FMEP and that Ms. Selina make best efforts to cause the Director of the FMEP to withdraw all notices of attachment. There is some evidence that the July 8, 2008 order was based on Guideline income of Mr. Selina of $100,000 per year. Mr. Selina's property and financial statement sworn May 27, 2008 does show income from employment of $96,370.38.

5. On January 3, 2012, Mr. Selina filed a notice of application seeking to vary the July 8, 2008 order as follows: a. To reduce child support to zero from $800 per month; and b. To abrogate all arrears. It would appear that this application came before Johnston J. on January 31, 2012. At that time Mr. Selina was acting on his own behalf. Ms. Selina had counsel. As I cannot find an entered order in the file, I have listened to the audio recording of the appearance before Johnston J. I am satisfied that Justice Johnston adjourned the application to vary to give Mr. Selina time to put material together (that is, to satisfy his disclosure obligations) and return to the court; with costs thrown away to Ms. Selina. Mr. Selina took no further steps in regard to his variation application until September 2013 when he moved to set the November 2013 hearing date. [12] In support of his view that Ms. Selina is the sole cause of his present financial circumstances, Mr. Selina contends that she caused him to lose his job at ScotiaMcLeod in January 2011 because a Notice of Attachment was served on the employer by the Director of FMEP. [13] There is evidence that Mr. Selina has periodically told the children that "your mother made me lose my job" or words to that effect. In considering the evidence before me, I am satisfied that Mr. Selina's assertion is unfair and inaccurate. Mr. Selina was

hired by ScotiaMcLeod on December 1, 2010. What the evidence shows is that within a week or so of being hired by ScotiaMcLeod, as a "wealth advisor", Mr. Selina was required to complete a personal and securities application in which all personal financial circumstances had to be disclosed. There is no independent evidence that the employer's request was beyond the routine or was caused solely by service of the Notice of Attachment by the Director (not by Ms. Selina who had no control of it). In January 2011, after consideration was given to the personal affairs disclosure, the employer let Mr. Selina go; on Mr. Selina's evidence, to give him time to get his financial affairs in order in a manner consistent with the employer's expectation of an employee advising customers about finances. [14] While it is most unfortunate that Mr. Selina lost his position with ScotiaMcLeod, on the evidence before this court, it is clear that his financial circumstances as a whole, including the fact that he had a number of outstanding debts which were in arrears, as well as arrears of child support owing pursuant to an order of this court, led to his dismissal. It is Ms. Selina's view that, unfortunately, statements to the children such as "your mother made me lose my job", and that Mr. Selina's circumstances are "Ms. Selina's fault" have adversely affected the children and have impacted their

relationship with her. In this regard, she refers to the present situation where the parties' son has little or no contact with her. [15] Mr. Selina contends that his obligations to pay spousal and child support have been defined by attributing annual earnings of $112,000 to him for the past 10 years which earnings he has not attained. This assertion is not borne out by the evidence, nor is it reflected by the various orders that have been made in this court in respect of child support and spousal support. [16] Mr. Selina asserts that the Director of FMEP has been unreasonable and has virtually harassed him over the years; in his words, he has endured "almost weekly contact" from the Director. The evidence does not support that assertion. The evidence is that very early on, while Mr. Selina was in arrears, Ms. Selina registered with FMEP. Some collection steps were taken by the Director. Ms. Selina, at Mr. Selina's request, then withdrew from the program on his promise to keep the child support current. In fact, he did not, and by August 2009, Ms. Selina once again enrolled with FMEP, as she was entitled to, given Mr. Selina's non-compliance with the consent order of this court. Once enrolled, the recipient parent has no control over the Director's approach to enforcement of a court order. [17] When Ms. Selina enrolled in August 2009, the arrears of child support were $4,100.

The account statement from FMEP reflects that ongoing payments were voluntarily paid by Mr. Selina between August and December 2009, such that at the end of 2009, the arrears stood at $3,834.29. The evidence shows that as the arrears grew in 2010 and 2011, the Director was in touch with Mr. Selina and various arrangements were made regarding payment on account of the arrears in return for the Director's forbearance in enforcement. However, when the arrears continued to grow, the Director did take steps in the fall of 2010, for example, by putting Mr. Selina's passport on hold. As a consequence, a payment was made on account of the arrears as at that time, Mr. Selina wished to travel to the United States in order to make arrangements for his proposed wedding in Las Vegas. [18] Furthermore, in 2010, when the arrears had grown to $6,422.27, the Director attached Mr. Selina's income tax refund. In 2012, when the arrears stood at $6,492.69, the Director seized Mr. Selina's motorcycle and sold it at auction. In addition, there is evidence that in early 2012, notices of attachment were issued by the Director by which relatively small amounts were collected from Mr. Selina's bank accounts. And finally, I am told that as the arrears grew and in 2013, the Director initiated committal hearings in the Provincial Court. It must be remembered that the arrears referred to arise from court

orders; court orders made by consent when the parties were represented by counsel in 2005 and again in 2008 -- court orders which Mr. Selina did not comply with and which were twice varied at his instigation. [19] The latest statement in evidence shows arrears at September 23, 2013 of $16,516.19, with a total of $1,600 paid in the year 2013 to that date. [20] The FMEP statements show that the total amount of child support paid in the year 2009, August to December, was $3,500; in 2010, $9,537.31; in 2011, $8,447.48; in 2012, $4,385.55. [21] Some of the payments have been made voluntarily; the larger payments on account are due to the execution proceedings undertaken by the Director over the last four and one-half years. Considering all of the circumstances, I am satisfied the steps taken by the Director, considering the Director's mandate, cannot be described as overly zealous or excessively aggressive. [22] Mr. Selina argues that Ms. Selina's financial circumstances are far more comfortable than his. Presumably, he considers that what follows from that assertion is that his obligations regarding child support should cease or diminish. [23] It is worth noting that this application is not one brought under the hardship provisions of the Federal Child Support Guidelines. Furthermore, Ms. Selina's evidence is that over the past several years, the steady income of her common-law

spouse has been of great assistance in providing for her and for the Selina children. In the context of this application, the fact that Ms. Selina presently lives in somewhat stable financial circumstances or at least that her household lives within its means, is not determinative and is of marginal relevance in law to the issue of whether or not Mr. Selina's obligations to contribute to the support of the parties' children ought to be varied. In law, the support of the Selina children is to be borne by Mr. and Ms. Selina and not by the parties' respective partners. And Mr. Selina, as is Ms. Selina, is responsible for his/her circumstances and choices. [24] Mr. Selina's overall assertion that he has somehow been taken advantage of as a result of his marriage to Ms. Selina and the consequences of the breakdown of that marriage is simply not credible. His assertion must be considered in light of the evidence. Except for the first order made by Master Barber in 2001 (which Mr. Selina unsuccessfully appealed), the subsequent orders defining the parties' obligations to one another and to their children have been made by consent when each of the parties was represented by counsel. The consent corollary relief in the divorce order of January 13, 2005 defined Mr. Selina's obligations to pay spousal support by reducing that obligation significantly from that defined in the 2001 order

and provided that his obligation to pay spousal support ended permanently as of December 2006; a significant fact. Furthermore, the order Mr. Selina seeks to vary, the July 8, 2008 order, is a consent order made following a mediation between the parties when each was represented by counsel. On its face, that order did take a shared parenting arrangement into account. [25] All consent orders must be considered in light of the further reality that Mr. Selina's professional life is employment in the financial industry; he cannot be taken to be unsophisticated in matters financial. [26] Furthermore, the July 8, 2008 order which Mr. Selina seeks to vary fixed the amount of arrears then owing and the parties themselves agreed on a schedule of payments on arrears, by which agreement, any steps to enforce the arrears, provided the order was complied with, would not be taken. [27] The July 8, 2008 order which Mr. Selina seeks to vary further provides that Ms. Selina would be responsible for the purchase of the children's clothes and other ordinary expenses. The consent order reached by the parties is silent as to what contribution, if any, Mr. Selina was to make to the children's extraordinary (s. 7) expenses. [28] It would appear that the July 8, 2008 order, while silent on the definition of the parties' then Guideline incomes, was predicated on Mr. Selina's earnings of approximately

$100,000 and Ms. Selina's of $50,000. Mr. Selina agreed to these terms in mediation while represented by counsel, although he now contends that in fact his earnings were $69,506, not $100,000. It remains a mystery why he would agree to an obligation based on such erroneous income evidence. Furthermore, his property and financial statement sworn May 27, 2008 shows income for Guideline purposes of $96,000. [29] As noted earlier, Mr. Selina asks this court to look at the history of his payments of child and spousal support dating back to 2001 when considering his application to vary the July 8, 2008 order. [30] I have concluded that the history between 2001 and 2008 is of limited value and note the following: 1. While Mr. Selina asserts that the court orders have required him to overpay, the evidence does not support that contention.

2. The 2001 order was superseded by two subsequent orders, namely January 13, 2005 and July 8, 2008, each of which were made by consent when the parties were represented by counsel. Those orders must be taken to be correct based on the then circumstances and history. [31] In regard to child support obligations, parties cannot expect the court to undertake a retroactive audit year by year over a period of 13-plus years of each of their circumstances on an application to vary. Overall, I am satisfied that the history in this matter shows that while in some years the court orders reflected that Mr. Selina's obligation was lower than the Guidelines provided, in others it was higher. In either case, the swings are not dramatic and have nothing to do with the validity of the July 8, 2008 order which Mr. Selina now seeks to vary. In all years, Mr. Selina was consistently in arrears. And finally, it is not accurate to say, as he does, that Mr. Selina's obligations regarding child support have been defined for the last decade on the basis of his earnings of $112,000. The Law [32] The principles relating to the parental obligation to support children, rights of the children to a fair standard of support, allowing the children to benefit from the financial means of the parents after separation, and an ability to pay, together with the basic principles of variation and abrogation of

arrears are succinctly set out in Earle v. Earle, [1999] B.C.J. No. 383, a case which has been followed consistently by our courts. [33] The basic principles are summarized at para. 46 of Earle as follows: 1. Child Support Generally: a) Parents have a joint and ongoing legal obligation to support their children; b) It is the child, not the other recipient parent, who has the right to maintenance; c) The payment of maintenance is based on not just what a parent does earn, but what a parent can earn.

2. Variation of an Existing Order: a) The applicant must show there has to be a material change of circumstances; a change that is significant and long-lasting; b) A change to the Guideline income of the payor parent (or the recipient for that matter) does not automatically lead to a variation of the amount of child support.

3. Arrears: Basic Principles a) There is a heavy onus on the person seeking a reduction or a cancellation of arrears, to show that there has been a significant and long-lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so (my emphasis added); b) If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away.

4. In applying the Basic Principles relating to arrears, the court must consider that: a) Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future; b) A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made: (i) the change was significant and long-lasting; (ii) the change was real and not one of choice; and (iii) every effort was made to earn money (or more money) during the time in question, and those efforts were not successful; c) Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family; d) Courts will not cancel arrears solely because the children were looked after in spite of the non-payment; e) An agreement between parents that child support does not have to be paid or the amount changed will not be considered determinative of the issues. Application to Vary [34] Has Mr. Selina met the onus to show changed circumstances from those on July 8, 2008 of a significant and long-lasting nature? The following facts going to that issue are: 1. In mid-March 2013, the parties' son moved to live full-time in Mr. Selina's home.

2. In September 2011, Ms. Selina was no longer able to work as a dental hygienist and has not earned significant income since that date. The evidence does not support a finding of deliberate under-employment.

3. Mr. Selina was employed by HSBC for two years to November 15, 2010 when he was let go. He accepted a severance package of $27,597. He was then in arrears $3,975.44. No payment on account of arrears was made.

4. Two years post-order (see 2009, 2010 tax returns), Mr. Selina's income was over that contemplated by the parties at the time of July 8, 2008 order and consequently, the child support order is lower than the Guideline amount. Still, and as noted earlier, by December 31, 2009, Mr. Selina was in arrears $3,834.29 and by December 31, 2010, $3,983.50.

5. By December 1, 2010, he was hired by ScotiaMcLeod at $50,000 per year plus bonus/commission which he contends would have roughly replicated his earnings at HSBC.

6. Mr. Selina's 2011 and 2012 income tax returns show income lower than contemplated at the time of the July 8, 2008 order and consequently, if he had complied with it, he would have overpaid child support according to the Guidelines.

7. The fact that Mr. Selina is in arrears is not a change in circumstances, but rather is consistent with a long history.

8. Mr. Selina has a second family and more dependents.

9. Ms. Selina has a common-law partner who is steadily employed.

10. Since the July 8, 2008 order, the parties' incomes have fluctuated and especially in the years 2011, 2012 and 2013. The change in the parties' income has been material, especially when considered against the weight of the evidence which shows the order was predicated on earnings of Mr. Selina of $100,000 and Ms. Selina of $50,000. The evidence shows the parties' respective Line 150 incomes in their tax returns as follows: 2009 - Mr. Selina, $121,858; Ms. Selina, $55,702.03 2010 - Mr. Selina, $133,085; Ms. Selina, $58,050.15 2011 - Mr. Selina, $40,585.63; Ms. Selina, $59,019.50 2012 - Mr. Selina, $44,928.11; Ms. Selina, $21,873.67 The evidence of income for 2013, while not complete, shows Mr. Selina's gross income from employment before expenses to be approximately $51,600 plus rental income of $8,400 per year. While the court cannot undertake an audit, the court can take into account generally that Mr. Selina in the past has had significant business and rental expenses accepted by CRA to claim against his gross income. I have considered those expenses, many of which give Mr. Selina some personal benefits and I have considered his approximate tax rate over the years. I am satisfied that it is appropriate to fix his Guideline income for the year 2013 at $40,000. The evidence shows that Ms. Selina's Guideline income for 2013 is $5,400 and is limited to rental income only as she has no paid employment.

11. Since the July 8, 2008 order was made, Mr. Selina took on the obligation of a second family. On the evidence, he was, for a number of years, the sole support of his second wife, their child and his second wife's child from a previous marriage. [35] On these findings, I am satisfied that Mr. Selina has met the onus upon him to show the requisite change in circumstances. Abrogation of Arrears [36] Has Mr. Selina met the significant onus upon him to show that the abrogation of all arrears arises from a significant and long-lasting change in circumstances and that it would be grossly unfair not to abrogate arrears? [37] On the finding that the evidence shows there is a change in circumstances since the order of July 8, 2008, I move onto a consideration of whether it would be grossly unfair not to abrogate arrears. In considering that question, I have considered the evidence of earnings. As earlier noted, Mr. Selina's 2009 Line 150 income was $121,858. His 2010 Line 150 income was $133,085. During those years, I am satisfied that Mr. Selina was well able to meet his obligations under the July 8, 2008 court order regarding child support. [38] As earlier noted, Mr. Selina's income in the years 2011 and 2012 declined significantly and no doubt, compliance with the court order was more problematic. Yet, the evidence shows that in those years, while obligated to pay child support and

while he had taken on three new dependents, he also purchased a motorcycle (which was eventually seized by the Director and sold on February 23, 2012). I note there is nothing in the evidence to show that this purchase was essential for Mr. Selina to maintain his employment. Indeed the evidence shows that each of Mr. Selina and his second wife had and have vehicles. [39] Furthermore and in 2011, Mr. Selina continued to participate in the group purchase of Vancouver Canucks Ice Pack Tickets. In emails with the group in July and August 2011, Mr. Selina notes he was able to purchase better seats, i.e. more expensive seats, than had been the case for the 10 prior years. This evidence is simply noted by the court in support of my conclusion that Mr. Selina has not consistently given the requisite priority to orders of this court which, by consent, have defined his obligations to contribute to the support of his children. It has a bearing on whether or not it would be grossly unfair not to abrogate all of the arrears as is requested. [40] And finally, the evidence shows and I find that over the years Ms. Selina has paid the vast majority of s. 7 expenses incurred for the children. Conclusion [41] I have considered the current parenting arrangement which commenced about mid-March 2013, that is, a split custody arrangement with one child living in each of the parties' households. I

have taken into account and applied Mr. Selina's assertion, notwithstanding it is contradicted by Ms. Selina's evidence, that the parties' daughter who lives in her mother's home is with her father approximately 40% of the time. These facts impact the consideration of what the appropriate child support should be as of April 1, 2013 when the split custody arrangement was clearly in place. [42] In a split custody and shared custody arrangement, ss. 8 and 9 of the Guidelines come into play. In my view, the evidence supports a finding that this is a "hybrid" custody case as discussed in the case of Johal v. Johal, 2013 BCSC 1592, which provides a possible approach in calculating child support in such circumstances. That case approves the application of the "economies of scale" approach rather than a strict two step involving the calculation of a set-off in fixing the amount of child support in these circumstances. It engages the court's discretion. In the subsequent case of R.B. v. L.M.L., 2014 BCSC 134, the economies of scale approach was accepted and applied. [43] In this case, in the exercise of discretion, it is important to consider that Ms. Selina's uncontradicted evidence is that she has made some contributions to the parties' son's post-secondary education; one significant contribution is she set up and paid into an RESP for each of the parties' children which the parties'

son is now able to take advantage of. Ms. Selina has been the sole contributor to these plans since inception. And finally, in the exercise of discretion, the court takes into account Mr. Selina's contention that the parties' son is able to pay some of his expenses himself. Otherwise, the circumstances relating to this young man are simply not in evidence before the court. [44] In the result, I am satisfied that the July 8, 2008 order ought to be varied. I am satisfied that some of the arrears pursuant to that order ought to be abrogated. [45] I find the appropriate date for variation is April 1, 2013 when the changed living arrangements of the parties' children became clear. I have taken into account the significantly changed financial circumstances and incomes of the parties (changed from July 8, 2008), particularly reflected in their 2012 income tax returns and the evidence of their 2013 earnings. I have considered the child support obligations on the basis of the economies of scale approach earlier referred to. I have, on the noted findings, exercised my discretion in accordance with s. 9 of the Guidelines and I conclude that: a) Mr. Selina has a legal obligation to continue contributing to the support of the parties' daughter. Commencing April 1, 2013, Mr. Selina will pay child support to Ms. Selina for the parties' daughter the sum of $400 per month on the first day of

each and every month and $0 support for the parties' son as at the same date; b) It is simply not appropriate for the existing arrears of support to be abrogated entirely. At the same time, it would be grossly unfair to abrogate no arrears. On the findings I have made, the arrears must reflect that Mr. Selina's obligation to pay child support for the parties' son ceased as of April 1, 2013 and his obligation then became $400 per month for the parties' daughter. I expect the Director will be able to do the precise calculations reflecting that from April 1, 2013 onward, arrears of $400 per month will be abrogated; and c) To further reflect the changed circumstances as outlined, I have concluded that additional arrears in the sum of $6,000 be abrogated. [46] In the circumstances, I find it appropriate to abrogate all FMEP fees and interest on arrears to date. [47] Each party will bear his or her own costs. "J. L. Dorgan, J." The Honourable Madam Justice Dorgan