Sherwood v. Pardo

2011 BCSC 1405 Sherwood v. Pardo

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sherwood v. Pardo, 2011 BCSC 1405 Date: 20111024 Docket: E073452 Registry: Vancouver Between: Megan Elizabeth Sherwood Claimant And Luis Eduardo Azmitia Pardo Respondent Before: The Honourable Mr. Justice Greyell Reasons for Judgment Counsel for the Claimant: Megan Ellis, Q.C. Appearing on his own behalf: Luis Pardo Place and Date of Hearing: Vancouver, B.C. August 5 and September 6, 2011 Place and Date of Judgment: Vancouver, B.C. October 24, 2011 [1] This is an application by the claimant to vary the terms of the respondent's access as set out in a consent order (the "Order") made December 4, 2008. The claimant also seeks an updated s. 15 report with the costs to be shared between the parties equally and orders that the respondent pay childcare costs and extraordinary expenses. [2] Mr. Pardo, the respondent, was self-represented. He disputes access should be varied, takes issue with the findings contained in the s. 15 report, suggests another psychologist be appointed to prepare an updated report, argues the claimant should pay the costs of such report, and takes issue with the payment of childcare costs and extraordinary expenses. Background [3] The parties met one another in1996, began cohabiting in May 1997 and married in April 2000. [4] The claimant told the respondent she wished to end the marriage in September 2007. [5]

The parties have two children of their marriage: Mateo born May 11, 2002 and Lucas born February 12, 2005. This fall Mateo entered grade 4 and Lucas entered grade 1. [6] The claimant is a physician, and completed her residency in psychiatry in 2003. She works in the Acute Care Psychiatry Department at St. Paul's Hospital. Until recently her working hours were between 8:30 a.m. and 12:00 noon, Monday to Friday. She is home by 3:00 p.m. when the children return home from school. [7] The respondent was born in Guatemala and came to Canada in 1993. His father came to Canada a year or two earlier. He met the claimant while he was working at a refugee centre. [8] The respondent completed his undergraduate education and then attended Capilano College and then Simon Fraser University where he completed a Masters degree in 2002. He now teaches at Coquitlam College where he works each week day except Friday, between the hours of 12:00 noon and between 4:00 and 6:00 p.m. in the afternoon, depending on the day of the week. [9] The respondent is also a soccer enthusiast and is active in refereeing soccer on the weekends. He is also active coaching his children in soccer. [10] The terms of the Order were agreed to by the parties following a settlement conference before Mr. Justice Cole. The Order contained detailed provisions regarding the settlement of various claims arising from

matrimonial proceedings. [11] The parties consented to a provision in the Order that "guardianship, custody and access may be reviewed any time after June 1, 2011". [12] The Order provided: · the parties were to have interim joint guardianship; · the claimant was to have interim sole custody; and · detailed terms of access which included the following: 4. The Defendant shall have access to the Children as follows: (a) Mondays, excepting holiday Mondays, Tuesdays, Wednesday and Thursday mornings from 7:45 a.m. until 11:00 a.m.; and (b) Commencing January 2, 2009, on four out of five Fridays from 7:45 a.m. until Saturday at noon; and (c) On holiday Mondays from 4:00 p.m. to 6:00 p.m. BY CONSENT.

5. Commencing September, 2009 the Defendant shall not have access to the Children on Tuesday mornings, but shall have access to the Children from 5:00 p.m. to 7:00 p.m.; BY CONSENT.

6. Not more than once every three calendar months the Plaintiff, on no less than 14 days notice to the Defendant, is permitted to interrupt the Defendant's access schedule to take the Children to visit their maternal grandparents in Victoria, B.C. for a consecutive period not exceeding 72 hours. Two of these four weekends per year must fall on a weekend on which the Defendant does not have access to the Children; BY CONSENT.

7. The Defendant shall have access to the Children from December 24 at 4:00 p.m. to December 25 at 8:30 a.m. If Christmas falls on a Friday or Saturday, paragraph 4(b) herein shall be suspended; BY CONSENT.

8. The Defendant shall have access to the Children on their birthdays from 5:00 p.m. to 7:00 p.m.; BY CONSENT.

9. The Defendant shall have telephone access to the Children each Sunday for up to 15 minutes between 4:00 p.m. and 5:00 p.m. by contacting the Plaintiff on her pager; BY CONSENT. [13] The claimant seeks to have the terms of the Order changed by replacing paragraphs 4 through 9 of the Order with provisions that would provide for no early morning access and no overnight access on Friday nights. She seeks terms such that the children would be returned to her by 8:00 p.m. Friday night but returned to the respondent for Saturday morning access from 9:00 a.m. to 12:00 noon. [14] The proposed changes sought by the claimant are: 4 The Respondent shall have access to the children Mateo David Azmitia-Sherwood born May 11, 2002 and Lucas Gabriel Azmitia-Sherwood born February 12, 2005 as follows; i. On four out of five Fridays from after school until 8:00 p.m., or on non-school Fridays from 9:00 a.m. until 8:00 p.m.; ii. On four out of five Saturdays from 9:00 a.m. to 12:00 noon; 5. The Claimant shall have the children the following holidays, during which time the Respondent will not have access, except telephone access every third day; a. One week during the Children's spring break; b. Two weeks during the Children's summer holidays; c. One week during the Children's Christmas holidays.

6. The Claimant must advise the Respondent of the dates of her holidays with the Children at least three months in advance.

7. The Claimant may take the Children out of Canada without the written consent of the Respondent.

8. The Claimant shall have access to the Children from December 24 at 4:00 p.m. to December 25 at 8:30 a.m. If Christmas falls on a Friday or Saturday, paragraph 4 herein shall be suspended. [15] The claimant's position is that there have been a number of changes in the circumstances since December 2008 which are having a negative impact on the children. Her concerns can be summarized as follows: · Lucas, the youngest child, was in pre-school at the time of the Order. He has now entered grade 1; · At the time, the respondent lived in the former matrimonial home. He is now residing in his own residence, a 10-minute drive away. She says he is often late in picking up the children at 7:45 a.m. His residence is also about a 10-minute drive to the children's school; · As a consequence of the respondent's lateness, the claimant hired a nanny to look after the children in the morning when she left for her work. The claimant was required to commence work at 8:30 a.m.; · Her hours of work have now changed and she no longer needs to be at work at 8:30 a.m. and is able to take the children to school herself. Hence it is no longer necessary for the respondent to pick up the children at 7:45 a.m.; · The children do not get regular breakfasts at the respondent's home. Further, they and the respondent practice soccer in the morning before school with the result they, particularly Lucas,

arrive at school tired, disorganized and cranky; · The respondent has not been reliable in exercising his access, suspending Tuesday evening access in order that he could teach a course and failing to attend at a scheduled time for Mateo's birthday; · The circumstances at the respondent's home are not appropriate for the children - they do not have their own bedroom and he places no limits on their bedtimes and computer use. She says they are overtired when they return home. The claimant says she has proposed a parenting co-ordinator to deal with the parties' parenting issues but that the respondent has refused to participate; and · Mateo is going to a counsellor "Due to difficulties with anger and some social problems" and, while the respondent initially participated in the counselling process he now refuses to do so. [16] Given the above concerns and a number of comments contained in the original s. 15 report, the claimant seeks an update to the report and that the parties share the cost equally. [17] The respondent denies these claims. He says that prior to the filing of the divorce action he had the primary care of the children while the claimant completed her education and there were no issues with his parenting. [18] The respondent says Dr. Mary Korpach's report is in error and that she is biased against him; that she has come under the influence of the claimant and as a

result has accepted the claimant's version of events over his. [19] Mr. Pardo says he has been misdiagnosed by Dr. Korpach. He is prepared to have another s. 15 report prepared but by another clinical psychologist, Dr. Elterman. In support of his position that he has been misdiagnosed he annexed several letters from attending physicians. I refer in particular to a letter from his family doctor, Dr. Kurdyak, dated June 19, 2011, in which Dr. Krudyak says he has been treating the respondent for some eight years and states: There has never been any indication of paranoia or delusional thinking. His mental health is currently very stable and it is my opinion that he is fit to parent his children. [20] The second letter, dated June 30, 2011, is from Dr. Burgmann, a psychiatrist who has treated the respondent on an ongoing basis. [21] Dr. Burgmann noted: My clinical experience with Mr. Eduardo Azmitia-Pardo dates back approximately ten years. I am a treating psychiatrist that helped manage Mr. Azmitia-Pardo through a clinical depression. He was treated with both psychotherapy as well as antidepressants. He ran a course of approximately one year of treatment, and then the medications were subsequently discontinued. He has remained symptom-free and without any problems with regards to his level of functioning. Over the years, he has checked in intermittently through my office to remain

symptom-free as well as to obtain some supportive psychotherapy. Throughout my entire contact with Mr. Azmitia-Pardo, there has been no indication of any psychotic symptomatology. To date, he remains symptom-free from any aspect of a mood disorder. His last visit to my office was on June 29, 2011. In review of symptoms at that point in time, he reported his mood as being stable. His affect was bright and reactive. His sleep pattern was intact. His energy level as appropriate. There is no difficulty with his concentration or memory. He was hopeful and optimistic. His mood remains stable despite having the challenges of going through a separation from his wife and the stress that this entails. At this point in time, I see no contraindications for Mr. Azmitia-Pardo having equal access to his children. Over the years, he has proven himself to be a thoughtful, kind, and caring father. [22] Mr. Pardo says the goal of the claimant is to alienate the children from him by reducing the time they spend with him. He refers to what he describes as the "huge" benefit he brings to the children in their learning of the Spanish language which is his native language. He says that should daily contact be reduced they will lose this critical exposure to him. [23] He also says that the children excel at soccer and that they both have a huge interest in developing their skills at the sport. He says

the children enjoy training with him in the morning and he has arranged for them to train at the school to mitigate the fact that Mateo was arriving to school tired. [24] The respondent also says the claimant is making false and misleading statements against him, asserting he is late to pick up the children when he is not late and that she has made numerous such allegations to try to make it appear his parenting is erratic and his judgment poor. [25] The respondent denies his new residence does not contain adequate sleeping accommodation for the children when they are with him, that he allows them to spend inappropriate amounts of time playing computer games, or that they stay up late. Dr. Korpach's Report [26] As noted earlier, the parties agreed in or about March 2008 that Dr. Mary Korpach, would prepare a s. 15 report. Dr. Korpach's 75-page report was submitted October 2, 2008. During the course of preparing her report she interviewed both parties, conducted psychological testing of both, observed both parties' interaction with the children and she interviewed the claimant's parents and the respondent's father. She also interviewed each child and spoke with the Director of the Spanish Arts School where Mateo was attending and Dr. Harvey, who appeared to have assisted the parties during co-parenting discussions. [27] Dr. Korpach's report, at page 71, contains the following

"Conclusions, Opinions and Recommendations": Mateo is a highly sensitive child who, in my opinion is emotionally burdened and experiencing interpersonal difficulties as a result of Mr. Azmitia Pardo's difficulty containing his sometimes paranoid ideation (i.e. imagines harm where it may not be present), and emotional reactions and opinions about Dr. Sherwood and her family. Mateo and Lucas maintain a primary and secure attachment with their mother and require the emotional freedom to view them positively and warmly. Each parent manifest concerns about the other. Dr. Sherwood is concerned that Mr. Azmitia Pardo does not consistently attend to the children's physical needs for safety, emotional needs, or other developmentally appropriate needs. She is concerned that he makes unilateral decisions particularly about activities, and does not consult with her regarding the need to coordinate the children's activities and planning. She is concerned that he lacks the ability for appropriate structure and routine, and this has affected the children with regard to bedtimes, meal schedules, and Mateo's ability to appropriately attend and socialize in school. She is concerned that Mr. Azmitia Pardo has significant difficulty caring for the children on his own and requires a second caregiver in the form of Neara, the nanny, or his father. Mr. Azmitia Pardo alleges that Dr. Sherwood and her

family are essentially racist, and discouraging of the children's bi-cultural heritage. He strongly asserts that the children's first language is Spanish, and is critical of Dr. Sherwood's Spanish speaking abilities. He also believes that she does not have the capacity to encourage the children in sporting abilities, and does not understand some of the cultural nuances with regard to parenting and childrearing. This was not consistent with my observations or assessment. In my observations and assessment, Dr. Sherwood essentially presented in a quiet and child-centred manner. She has a good ability to attend to the children's needs primarily, and appears to exercise good judgement with regard to their physical, emotional, and academic needs. She appears to work well with other professionals, and in this manner is able to clearly understand and respond to the children's needs. It was my impression that she is committed to raising the children bi-culturally, and is respectful of their mixed heritage and culture. She is somewhat protective and cautious in her parenting of the children, although I do not see her as overly so, particularly considering Lucas' history of a major injury. It was my impression that the children are security attached with Dr. Sherwood, and more psychologically secure and content in her presence. The sibling relationship is substantially more positive in

her presence, and both children appear to thrive in her presence. ... Mr. Azmitia Pardo presented to the interview as being a passive, polite, and anxious man who appears to maintain hurt and anger about the separation and tends to react in a passive aggressive manner. He has difficulty containing his overwhelming emotions, which I suspect may be related to adverse childhood events, as well as cultural tendencies. It was my impression that he manifests a history of issues which contribute to ongoing difficulties with anxiety, mild depression, paranoid ideation (i.e. perceiving harm where it may not be present) and impaired judgement. He may also have difficulties with impulsivity, and tends to externalize blame for his difficulties. It was my impression that he parents primarily from his own emotional responses and paranoid tendencies and has difficulty consistently attending the children's ongoing needs for safety, structure, and emotional stability. His emotions are easily stimulated and at these times he appears to focus on his own needs and has significant difficulties considering the children's needs first. He tends to reverse parent-child roles with Mateo in particular, and appears to share inappropriate information with him. While I am aware that Mr. Azmitia Pardo is, at the time of this report, dealing with the potential loss of his father, it is my opinion that these

difficulties pre-date his father's illness, and tend to be more characterological in nature. It was my observation from the interviews and observation sessions that Mr. Azmitia Pardo promotes competition between the siblings in subtle ways, and has difficulty with problem solving and limit setting with the children. While I essentially support his approach regarding natural and logical consequences, it is my observation that these children in particular require greater guidance, structure, role modelling, and assistance in resolving conflicts and problem solving. I am concerned that Mr. Azmitia Pardo attributes his parenting deficits to cultural factors, rather than recognizing his own difficulties with assertiveness, conflict resolution, and psychological/emotional factors which affect his judgment with the children. While I accept his judgment may currently be clouded by grief associated with his father's illness, I remain concerned about his ability to exercise adequate judgment under any emotional stimulation, such as emergencies relating to the children. It was my impression that Mr. Azmitia Pardo loves his children very much, and has a great deal to offer them with regard to his Latino heritage and interest in sports. The children have also developed a relationship with Mr. Azmitia Pardo's father, who, I understand is critically ill. It will be important for the children

to grieve this loss, although in my opinion Dr. Sherwood has the greater skills in guiding the children through this loss. In my observations, the children, while they love their father and enjoy their time with him, are significantly more distressed in his presence. While I can attribute some of this distress to situational factors, such as the children just meeting me, and the children and Mr. Azmitia Pardo being asked to speak English, the difference between the children's behaviours, response, and interactions from their father's home to their mother's home was substantial. Overall, it was my impression that the children need both parents to be active and involved in their lives. However, it is my opinion that a joint custodial/guardianship arrangement, would lead to significant deterioration of the children. This is due to factors above, including Mr. Azmitia Pardo's psychological difficulties, reactive tendencies as above, his unresolved issues with Dr. Sherwood, and the degree of time and energy which Dr. Sherwood would have to devote to responding to these issues and soothing the children. It is my opinion that, over time, this will compromise Dr. Sherwood's ability to maintain the level of parental energy and involvement which the children currently enjoy. It is my opinion that the children's best interests would be served by continuing to reside primarily with Dr.

Sherwood, and that she be primarily response for major decision making, although with Mr. Azmitia Pardo's input, as per the Joyce model. It was my observation and impression that she provides the children with a significantly greater sense of stability, structure, consistency, and emotional guidance, and that the children require this regularly in order to be able to develop normally. It is my opinion that Dr. Sherwood manifests the greater ability of the two parents to exercise appropriate judgment in making major decisions regarding the children and promoting their well being, and that Mr. Azmitia Pardo has difficulties in these areas which negatively affect the children. [28] Some three years have passed since Dr. Korpach's November 2008 report. The circumstances of the parties and the children have changed. The claimant's hours of work have changed. The respondent has changed his residence and the youngest child, Lucas, has now started school. Mateo is taking counselling for "anger" and other issues. The children are going through significant years in their growth and development. It is important the children maintain as equal a contact as possible with both their parents as is consistent with their best interests. [29] It is obvious from the material filed the parties are at odds on many issues relating to the children. The respondent is of the view the claimant is trying

to alienate him from the children. The claimant is of the view that the respondent is unreliable, he does not meet his commitments to the children, and he does not, at times, see them or phone them when they expect to hear from him, leading to disappointment. [30] It is clear from the affidavits filed by each party that each cares a great deal about the children and how they are raised. The respondent is passionate about the children learning advanced soccer skills and excelling at the sport and that they continue to be exposed to the Spanish language and participate in their Latino heritage. He maintains the claimant is forcing her will on the children and the counsellors they have attended. [31] The claimant is concerned with the children's development and for their general emotional well being. She is of the view the present access arrangements are having a negative effect on the children. [32] The court's primary concern is with the welfare of the children. Section 24(1) of the Family Relations Act, R.S.B.C. 1996, c. 128, mandates: 24 (1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (a) the health and emotional well being of the

child including any special needs for care and treatment; (b) if appropriate, the views of the child; (c) the love, affection and similar ties that exist between the child and other persons; (d) education and training for the child; (e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. [33] Section 15 of the Family Relations Act provides: Expert witnesses in family matters 15 (1) In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who (a) has had no previous connection with the parties to the proceeding or to whom each party consents, and (b) is a family counsellor, social worker or other person approved by the court for the purpose. (2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs. (3) A person must not report to a court the result of an investigation under subsection (1) unless, at least 30 days before the report is to be given to the court, the person serves a copy of the report on every party to the proceeding. (4) If satisfied that circumstances warrant, the court may grant an exemption from subsection (3). [34] I am unable to resolve the

differences between the parties as outlined in the affidavits on the hearing of an application such as this. The place for resolution of those issues is at trial. [35] However, given the changes that have occurred and after consideration of the issues raised by Mr. Pardo it is my view that it is appropriate to order an updated s. 15 report be prepared by Dr. Korpach. Such update may assist the parties work through to achieve an agreement resolving the issues as they did following the first report. [36] This is one of those cases where it is appropriate to remind the parties of the role of the expert hired to conduct a s.15 report or an update to such report. I refer to the comments contained in S.M.M. v. J.P.H., 2011 BCSC 287, quoting Goudie v. Goudie, [1993] B.C.J. No. 1049: [37] In order to resolve these applications, the object and purpose of an order under s. 15 of the FRA must be considered. This theme has been the subject matter of much judicial comment, with the following excerpt from Goudie v. Goudie, [1993] B.C.J. No. 1049 often cited: 33 In family law cases generally, and in custody and access cases in particular the issues are often obscured by the emotional overtones of such proceedings. In such circumstances, the courts power to order an investigation by an independent person with specialized training is an invaluable tool. The procedure anticipated by s. 15 is one

in which the investigator interviews the people involved, observes the relationship and interaction between the spouses and the children and reports those observations, facts and impressions to the court. In the truest sense these individuals act as the courts eyes and ears in what are all too frequently highly emotional areas of conflict. The safeguards built into the process include the early delivery of the investigation reports, the opportunity to call the investigator to the witness stand and the opportunity to respond to the report generally by other evidence. [37] Mr. Pardo does not object to an updated report. He says that if one is ordered it should not be done by Dr. Korpach as she is biased against him. He says it is unfair that an updated report be done by someone who has "an erroneous" view of his personality. It is for that reason he submitted the two reports from his attending physicians. Mr. Pardo points out that he has lodged a complaint against Dr. Korpach with the College of Physicians and Surgeons over her assessment of him. He says she is likely to be biased against him as a result. [38] Mr. Pardo says that if a report is to be done, such report should be done by another psychologist. Mr. Pardo also says that, given the disparity in their respective incomes, the claimant should pay for the cost of such report. [39] In my view Dr. Korpach is the appropriate

person to prepare the updated report. I note the Order was agreed to following the first report; Mr. Pardo was prepared to accept Dr. Korpach's report at that time. To the extent he disagrees with her conclusions, Dr. Korpach will have access to the two medical reports filed by Mr. Pardo and will consult with his physicians. [40] I also note that to the extent Mr. Pardo's physicians have opined on his ability to parent, such opinion is based on information Mr. Pardo has provided to his physicians and accordingly can be given little weight in these proceedings. Dr. Korpach will however be able to take the opinions of those physicians into account in preparing her updated report. [41] However, to be clear, the focus of Dr. Korpach in preparing the update will not be to revisit findings she made in her earlier report. Rather the focus will be on the changed circumstances of the parties and their children since the first report. The report will focus on the continued viability of joint custody and access as agreed to by the parties and as modified by the court in these proceedings. [42] I am not unmindful of Mr. Pardo's concern over the contents of Dr. Korpach's report. That concern can be addressed by Mr. Pardo when Dr. Korpach produces an updated report. As discussed above he will be entitled to cross-examine her on the content of the updated report and/or to call evidence,

perhaps from his own attending physicians, after giving appropriate notice that he intends to do so. [43] I order the cost of the update will be shared by the parties equally. [44] I am also of the view that even without the benefit of an updated report it is appropriate for the court to make certain of the orders requested by the claimant. The circumstances of the parties have changed significantly since the Order was entered. [45] Dr. Sherwood has moved into a different position and is now able to deliver the children to school without the assistance of the respondent. There is no necessity for Mr. Pardo to pick the children up at 7:45 a.m. If the claimant is of the view the children (or either of them) can attend soccer practice with Mr. Pardo in the morning before school then that will be a matter for her to decide on a day-to-day basis. In such circumstances she is to provide Mr. Pardo with sufficient advance notice. [46] It is important the children continue in soccer and excel at that sport if that is their interest. However, it is, in my view, more important at this stage in their lives they attend at school well rested and attentive. [47] I am also of the view overnight access should cease until such time as the updated report is completed. It is important for Dr. Korpach to view the circumstances of Mr. Pardo's residence and the circumstances in which he resides. [48]

Mr. Pardo's access after school and on weekends will continue as outlined in the Order. [49] The claimant's requests for a period of uninterrupted vacation time during Christmas, spring break and the summer holiday appear to be reasonable. However it may also be reasonable that, absent any findings to the contrary in the updated report, the respondent is to have similar uninterrupted time with the children during these periods. This matter was not sufficiently explored at the hearing and should await the report and an opportunity for the parties to resolve this matter without the court's intervention. [50] The claimant's request to permit her to take the children out of Canada without the respondent's consent is a reasonable one. The claimant's residence and job are within the jurisdiction of the court and there is no concern about her not returning to this province. The respondent shall be given at least two months' notice of her intent to do so along with an itinerary setting out particulars of where she will be, a method of contacting the children and the date of return. [51] I am not prepared to make the order requested as to access on Christmas Day. The claimant's request would reverse the terms of the present Order. There is no apparent reason to make such a change. Extraordinary expenses [52] The claimant seeks orders the respondent owes $4,874.28 in arrears of childcare

costs for the period September 28, 2009 to March 27, 2011 and $418.15 in extraordinary expenses from January 1 to March 31, 2011. [53] The Order provides: 18. The Defendant shall pay to the Plaintiff 27% of childcare and extraordinary expenses for the Children. The Plaintiff shall provide the Defendant with the receipts for extraordinary expenses, on the 1st day of May, 2009 and every three months thereafter, and the Defendant shall pay his proportionate share within 14 days; BY CONSENT.

19. Each party shall consult with the other prior to incurring extraordinary expenses for the Children. If the parties are unable to reach an agreement the Plaintiff may make a decision concerning the proposed extraordinary expense and the Defendant shall have the right to apply to have the decision reviewed by the Court pursuant to section 32 of the Family Relations Act or by a parenting co-ordinator, and the provisions of paragraph 2(g) herein shall apply; BY CONSENT. [54] The Order also provides the parties are to exchange income tax returns by July 1st of each year. [55] The material filed by the claimant establishes that she has regularly reminded the respondent of accumulating arrears for childcare costs on a monthly basis since September 2009. The principal amount for such cost is the cost of the nanny for the children. [56] The respondent takes the position the intent of the provisions in the Order was that he would pay his proportionate share of costs associated with direct care for the children; not for costs associated with "house chores and errands for the claimant". He has asked the claimant for a breakdown of the amounts paid to the nanny but she has not provided the number of hours the nanny spends taking care of the children as opposed to "other chores". [57] In an e-mail to the claimant of November 1, 2009 he wrote: I do not see it as necessary to have Neara at

your place by 7:45, since she will not be taking care of the childrené She told me that she will be working on house chores. You will have to cover the payment for these hours. [58] On January 17, 2010 he wrote the claimant's counsel: 2. I am in agreement in covering the costs of childcare, but it is not my responsibility to cover for the expenses associated with the cleaning, cooking and grocery shopping for your client. Your client informed me that the child-care costs would decrease dramatically after Lucas started school. Please kindly let me know the number of hours per week that the "nanny" is actually taking care of the children since September 2010 (sic this must be 2009). I have no problem in covering the proportion of those costs. ... ... ... I can not squander limited resources by subsidizing the house-chore costs of your client. [59] This matter is governed by s. 7 of the Federal Child Support Guidelines, S.O.R./97-175 (the "Guidelines") which provides: 7. (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior

to the separation: (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; ... (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. Definition of "extraordinary expenses" (1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs

and activities, and (v) any other similar factor that the court considers relevant. [60] While the respondent registered an objection to the payment of the full extent of the nanny's expenses in November 2009 and again in January 2010, in my view his objection was ill-founded. As long as the nanny was performing functions and the claimant incurring expenses which were "...incurred as a result of the custodial parent's employment ...", they are permissible expenses under s. 7(1) of the Guidelines. In the absence of evidence to the contrary I do not accept the respondent's position he is not responsible for his share of such expenses. The fact she was performing "house chores" is not relevant. [61] It may be that under the new arrangement with the claimant taking the children to school in the morning the requirement for the nanny to work the same hours will be reduced. [62] It is to be noted the respondent agreed to pay his proportionate share of 27% of the cost of the nanny as a childcare expense and did so up to September 2009. Other than making the objections set out above he took no steps under the Order or otherwise to have this issue resolved notwithstanding regular monthly reminders from the claimant the amounts remained outstanding, were accumulating, and that she looked to him for payment of his portion of the expense. [63] As there is no evidence before me which would

enable me to make a determination that the expense incurred for the nanny is for any other purpose than to enable the claimant to earn her livelihood as a psychiatrist, I find that the claimant is entitled to recover the sum of $4,874.28 from the respondent, being his 27% share of the cost of the nanny as child care expenses. Extraordinary Expenses [64] The claimant seeks an order requiring the respondent to pay $418.15 being his portion of extraordinary expenses incurred in registering the two children in various summer camps. [65] As noted, the Order requires the parties to consult with one another prior to incurring extraordinary expenses. Failing agreement either party has the right to a dispute resolution process. The parties exchanged e-mails in April 2011 in which they discussed in some detail which summer camps the children would be registered in and when they were to attend. [66] On April 8, 2011 the claimant wrote: Hello Eduardo, With respect to summer activities and your various emails, Mateo and Lucas have picked their favourites from a large variety of camps, and their summer camp schedule is as follows: July 4-8 Whitecaps camp at Kensington Park from 9-11am July 11-15 Pedalheads Camp at Jericho 9:30 am noon July 18-22 RBL Basketball via Douglas Park Community Centre (actual site Talmud Torah behind Safeway) 9am-10:15am for Lucas; 10:30 am to noon Mateo July 25-29

No camps scheduled August 2-5 UBC camps (History of Flight for Mateo, Mechanical Wonders for Lucas) 9am-noon August 29-Sept. 2 No scheduled camps Weekend of August 3-5 Lecole bilingue, Evans Lake camp (occurs on a fifth weekend) 1. I agree that trying different activities is a good idea. I had offered gymnastics to both kids, but there was a misprint on the schedule, and in fact the schedule didnt work out for this year. Instead, Mateo and Lucas have agreed to try a week of basketball. I recall that you were in support of this in the past.

2. If Hillcrest has space, both kids would likely continue with swimming over the summer, but I dont expect that would interfere with your access time.

3. Please be aware that the UBC camps (run out of the swim camps program, same as last year) are on available in the morning, as is the RBL basketball program at Douglas Park for that week.

4. I am agreeing to a week of Roman Tullis soccer camp, since it is being offered at Douglas park, and in the spirit of compromise. This is assuming that you confirm the booking within two weeks and list my contact information in addition to yours. Please be aware, however, that although you are booking the camp, that we share these and other extraordinary expenses.

5. Please also be aware that, as you know, Nearas employment ends in mid-September. In future summers, we will be relying on full day camps for summer childcare. Please let me know immediately if you have any concerns about the summer plans. [67] On the same date the respondent replied: Thank you. I just need clarification. The kids told me that you already booked the Tulis camp and that you have paid for it. Please kindly clarify. I just want to avoid confusion. The camps fill up fast. Should I book and pay for it or you have already done it? This is for you to be aware. The kids are not really keen on the basketball camp. They would prefer to do something else, but I think that they do not feel comfortable telling you (it sees that they feel forced) Is there another thing that they can do? Alternatively, if it is in the morning I can take care of them. [68] On May 14, over a month later, the respondent wrote in an e-mail: 1. This is to reiterate that you are invited to adress any concerns with the counsellors of Family Services of Greater Vancouver. Please keep the email communication for factual and regular day to day issues regarding the activities of the children.

2. I want to reitarate that I have limited income this year and that I can not afford the unexpected expenses of the summer camps. I did not budget for them because this has not been our pattern and my understanding of the original agreement is that those costs would not be included on the "extra-curicular" costs. This has been our pattern and our understading of the issue. AS it was our pattern in the past, I am covering the expenses of the camps/activities in which I enrol the children. In this case, the Roman Tulis School. I have included in my budget those expenses You will need to cover the expenses of the other camps as in the past. I also want to reitarate that I am not in agreement with the children enrolled in camps during their access time with me when they could be easily enrolled during your access time. It is really unfortunate that you are trying to increase costs unexpectedly when I have been communicating regularly to you and your lawyer that this year I have a very limited net income.

3. Below is the confirmation of the Roman Tulis enrolment. I am only attach the email for Mateo. The email for Lucas is identical. [69] By the time the respondent wrote the May 14 e-mail, the expenses had been incurred as the registration fees had to be paid. [70] In my view the respondent tacitly agreed to the claimant registering the children in the summer programs listed in the exchange of e-mails in April 2011 and he is liable for his proportionate share of those expenses. [71] I note the parties' income has changed from that reflected in the Order. There is no application before me to vary the proportionate share of childcare or extraordinary expenses and accordingly I do not do so. That is a matter the parties may wish to address in the future. Summary [72] To summarize, the Order of Mr. Justice Cole be varied by the order such that the respondent's access at 7:45 a.m. on school mornings will cease and by those provisions of the Order which provide for overnight access. [73] Pursuant to s. 15 of the Family Relations Act, Dr. Korpach will prepare a report further to the custody and access report already prepared in this matter updating her earlier report and making recommendations to the court in regards to custody access and the upbringing of the children. [74] The parties shall cooperate fully with Dr. Korpach in the preparation of the report update. [75] Neither party

will initiate contact with Dr. Korpach without further order of the court. Counsel for the claimant will provide Dr. Korpach with a copy of these reasons for judgment and will provide Mr. Pardo with a copy of the letter sent to Dr. Korpach forwarding these reasons. [76] Dr. Korpach will advise both parties jointly in writing of any request for additional information necessary to conduct her updated report. [77] If either party is unwilling to comply with a request for additional information, the willing party has liberty to apply, on short leave if necessary, for an order directing provision of that information to Dr. Korpach. [78] Dr. Korpach will consult with Mr. Pardo's attending physicians during the course of preparing the update. [79] Dr. Korpach will deliver her report as soon as is possible. She will provide each party with a copy of the report. [80] The parties will share the cost of the updated report to be paid as required by Dr. Korpach. The decision as to which party will bear the ultimate cost of the updated report will be determined by the trial judge. [81] The respondent is responsible to pay $4,874.28 plus any additional reasonable costs incurred to the date of these reasons for the nanny and $418.15 for the children's summer programs. [82] The claimant will recover her costs of this application. "GREYELL J."