Siroski v. Ross

2020 BCSC 2063 Siroski v. Ross

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Siroski v. Ross, 2020 BCSC 2063 Date: 20201224 Docket: E180962 Registry: Victoria Between: Shaleen Siroski Claimant And: John Ross Respondent Before: The Honourable Mr. Justice Johnston Reasons for Judgment Counsel for Claimant: M.S. Jakeman Counsel for Respondent: Z.C.I. Burrill Place and Date of Hearing: Victoria, B.C. November 19, 20 and 30, 2020 Place and Date of Judgment: Victoria, B.C. December 24, 2020 [1] These are cross-applications: Mr. Ross seeks an order permitting his oldest child, Graycie, born March 10, 2006, to relocate to live with him in Virden, Manitoba, commencing December 28, 2020, and a further order varying child and spousal support currently governed by an agreement. [2] Ms. Siroski opposes Mr. Ross's applications, and seeks her own orders confirming the parenting terms provided in their separation agreement. As well, Ms. Siroski seeks full financial disclosure from Mr. Ross, including three years information on a numbered Manitoba corporation, as well as a sworn financial statement from Mrs. Ross. Additionally, Ms. Siroski seeks enforcement of support provisions of an agreement varying a separation agreement, and in the alternative that income be imputed to Mr. Ross at no less than the income of $110,000 per year reflected in the variation agreement. [3] Ms. Siroski and Mr. Ross began to live together

in mid-1996, were married in mid-2006, and had three children, Graycie, John-Paul, and Hudson. [4] They separated February 1, 2013, and entered into a comprehensive separation agreement dated April 12, 2017 (the "Separation Agreement"). [5] They were divorced by an order granted by the Manitoba Court of Queen's Bench (Family Division) on April 3, 2019. [6] Mr. Ross has worked in the oil and gas industry, and his work has taken him to various places in Canada and elsewhere in the world. [7] At the time of the Separation Agreement Mr. Ross was working in China earning $300,000 year. [8] Ms. Siroski was living with the children in Victoria, working as a receptionist part-time, and earning $12,000 per year. [9] The Separation Agreement provided that Ms. Siroski and Mr. Ross agreed to retain joint custody of their children, Ms. Siroski was to be the primary care parent, and that their parenting schedule was to be flexible, with certain minimum blocks of time reserved for Mr. Ross, and liberal and generous contact beyond those minimums. [10] Based on their respective incomes, Mr. Ross agreed to pay child support of $5,500 per month, which included $779 per month as his share of special and extraordinary expenses. [11] In addition, Mr. Ross agreed to pay spousal support of $1,500 per month until December 31, 2025. [12] Mr. Ross's work in China came to an end, as did his $300,000

annual income, and so Mr. Ross and Ms. Siroski negotiated a variation agreement that they signed October 8, 2018 (the "Variation Agreement"). That Variation Agreement recited that Mr. Ross was then working in Virden, Manitoba, earning $110,000 per year and that Ms. Siroski continued to work as a receptionist earning $12,000 per year. Child support was varied to $2,000 per month plus an additional $250 per month as Mr. Ross's contribution to special and extraordinary expenses, plus he was to pay for hockey equipment in addition. Spousal support was varied to $550 per month. [13] The Variation Agreement also provided for a lump sum of $25,000 to be paid by Mr. Ross to Ms. Siroski as "a one-time, lump sum adjustment of support payable by John to Shaleen" on or before December 31, 2020. The Variation Agreement went on to state "the lump sum of $25,000.00 is wholly sufficient to adjust for any arrears of support which may have accumulated." Relocation [14] The children were supposed to visit Mr. Ross in Manitoba during their school break in March 2020, but that was not possible because of the COVID-19 pandemic. Ms. Siroski and Mr. Ross agreed that all three children should travel to Manitoba in May instead, and they did so on one-way tickets, with the understanding between the parents that they would return to Ms. Siroski toward the end of the summer. Ms. Siroski says this was the

first time the children had seen their father since the summer of 2019. [15] At some point during the summer, Graycie and John-Paul indicated a wish to move to Virden to live with Mr. Ross and his wife. Mrs. Ross has a large extended family in Manitoba and Graycie and John-Paul appear to have been enjoying spending time with this family. [16] John-Paul has since changed his mind about moving to Manitoba, and there is no longer an application to change his location. [17] Ms. Siroski says she and Mr. Ross agreed that she would pick the children up in Calgary on August 15, 2020. She agreed in mid-July to change this arrangement because Mr. and Mrs. Ross planned their wedding that same weekend. Instead, she says Mr. Ross agreed to fly the children to Victoria. [18] Ms. Siroski swears that on August 6, Graycie telephoned her to say that she wanted to live with Mr. Ross in Virden. Graycie told Ms. Siroski that her brother John-Paul also wanted to move to live with his father. Ms. Siroski suspected then, and still, that Mr. Ross had manipulated Graycie and John Paul into that decision, which Mr. Ross denies, and this denial is supported by Mrs. Ross. [19] Ms. Siroski says that Graycie told her that she and John-Paul wanted to move to live with their father a week after she and Mr. Ross had a heated discussion about child and spousal support, and about Mr. Ross withdrawing money from a

joint line of credit, to which she is a signatory, putting her at risk. [20] On August 24, 2020, Ms. Sherb, a counselor, interviewed Graycie and John-Paul to solicit their views on moving to Manitoba. This was at Mr. Ross's instigation. Ms. Sherb had spoken to Mr. Ross on the telephone on August 20, and she reported that she tried unsuccessfully to contact Ms. Siroski by email on August 25 and September 8. Ms. Sherb's report is dated September 9, 2020. [21] Graycie was 14 years-old when Ms. Sherb interviewed her. Ms. Sherb reported: Graycie stated that there is nothing wrong with her current living environment in Victoria, B.C., but rather would like to trial a new experience of living with dad and his wife, Brooke Graycie reported that she first spoke with her dad and step mom about living with same for a year and described their reactions as surprise and excitement. Graycie described hesitation about asking her mom about living in Virden as she did not want to hurt her mom's feelings. Graycie explained that if she was forced to return with mom, she felt same would negatively impact her relationship with her mom, Graycie became tearful when discussing the conversation with her mom and shared feeling "mad" that mom wasn't more supportive. Graycie stated several times, that ideally, her mom would relocate to Virden so there could be regular contact with both parents. [22] Ms.

Siroski arranged with Mr. Ross to see the children in Manitoba in late August. Mr. Ross agreed she could take the children for a four or five day visit. Mr. Ross alleges that Ms. Siroski assured him she would return Graycie and John-Paul to his care on August 30, but instead she took all three children back to Victoria. [23] Ms. Siroski and Mr. Ross discussed, through their lawyers, having a second report on the views of Graycie and John-Paul prepared by Dr. Elterman. His instructions were conveyed verbally, but his report, dated October 22, 2020, indicates he understood he was to focus on the views and preferences of the children and not to prepare a full Section 211 assessment. [24] Graycie told Dr. Elterman that she is generally happy with her life because she has friends and school is easy. While she enjoys being with her mother, she wants to live with her father, but does not want to make her mother sad. What she likes about her father's home is that Mrs. Ross's family is there and she has friends there. Graycie said it would be okay to wait, but she wants to see more of her father. She told Dr. Elterman that neither parent had tried to influence her, that she was not feeling pressure from Ms. Siroski to stay, and in general, she would like to try living with her father. Mobility - Statutory Regime [25] Ms. Siroski argues that the question of Graycie's relocation should be determined under ss. 65 to 71 of the Family Law Act, S.B.C. 2011, c.

25. Mr. Ross's application invokes s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [26] The original agreement provided in clause 54 that "[t]his Agreement shall be governed and construed according to the laws of the Province of British Columbia. The parties agree that at the execution of this Agreement, Shaleen is domiciled and resident in British Columbia and John is domiciled and resident in Manitoba and have been resident in Manitoba for a period in excess of one calendar year." [27] Nothing in the Variation Agreement changed this. [28] The proceeding in which both applications were filed was begun by way of filing a requisition attaching the separation agreement under Supreme Court Family ("SCFR") Rule 2-1, which, by operation of SCFR 3-1 (4.1), starts a family law case. SCFR 1-1 defines a "family law case" as a proceeding in which orders under either the Divorce Act or Family Law Act (the "FLA") are sought, and including a proceeding begun by filing a requisition under SCFR 3-1 (4.1). [29] Although this family law proceeding could be considered a corollary relief proceeding under s. 4(1) of the Divorce Act, as the parties have agreed to have their Separation Agreement governed by British Columbia law, issues surrounding where Graycie shall live will be determined by application of the FLA to the Separation Agreement. The choice of law provision in the Agreement

renders authorities such as Nijjar v. Gill, 2017 BCSC 1362 and D.D.R. v. K.T.R., 2019 BCSC 1805 distinguishable. [30] The relocation provisions of the FLA are found in Division 6, starting at s. 65: Definition and application 65 (1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (a) a guardian, or (b) one or more other persons having a significant role in the child's life. (2) This Division applies if (a) a child's guardian plans to relocate himself or herself or the child, or both, and (b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Notice of relocation 66 (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of (a) the date of the relocation, and (b) the name of the proposed location. (2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that (a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or (b) there is no ongoing relationship between

the child and the other guardian or the person having contact with the child. (3) An application for an exemption under subsection (2) may be made in the absence of any other party. Resolving issues arising from relocation 67 (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation. (2) Nothing in subsection (1) prevents (a) a guardian from making an application under section 69 [orders respecting relocation], or (b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs. Child may be relocated unless guardian objects 68 If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the

relocation. Orders respecting relocation 69 (1) In this section, "relocating guardian" means a guardian who plans to relocate a child. (2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian. (3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section. (4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (a) the relocating guardian must satisfy the court that (i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. (5) If an application is made under this section and the relocating guardian and another guardian have substantially equal

parenting time with the child, the relocating guardian must satisfy the court (a) of the factors described in subsection (4)(a), and (b) that the relocation is in the best interests of the child. (6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (a) the reasons for the proposed relocation; (b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (c) whether notice was given under section 66 [notice of relocation]; (d) any restrictions on relocation contained in a written agreement or an order. (7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. If relocation permitted 70 (1) If the court makes an order under section 69 [orders respecting relocation] that permits a child's relocation, the court may make any of the following orders: (a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under section 45 [orders respecting

parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable; (b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following: (i) give security in any form the court directs; (ii) transfer specific property to a trustee named by the court. (2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order. Not a change in circumstances 71 The fact that an order is made that prohibits a child's relocation is not, in itself, a change in the child's circumstances for the purposes of section 47 [changing, suspending or terminating orders respecting parenting arrangements]. [31] These sections are largely guardian-centric, in that they speak to child relocation with or without a guardian, as well as impact of relocation on a guardian, although other people having significant roles in a child's life are to be considered; see s. 65(1)(b). [32] Section 39 of the FLA provides that, before and after separation, each of a child's parents is the child's guardian in the absence of a contrary agreement or order made after separation. [33] The Separation Agreement is silent on the matter of guardianship: it speaks to custody

only. The divorce order was confined to the divorce only, so there is no order under the Divorce Act affecting Graycie's guardianship. [34] Section 65(2) of the FLA says that the Division 6 relocation provisions apply because one guardian - Mr. Ross - plans through this application to relocate Graycie and there is a written agreement respecting parenting arrangements. [35] Section 66 of the FLA requires the guardian planning to relocate a child to give the other guardian at least 60 days' written notice of the date and location of the proposed relocation. That was not done in this case. The circumstances leading to the relocation application are relevant to the notice issue. [36] In this case, relocation appears to have been a spontaneous decision, initially taken by John-Paul, then adopted by Graycie. Initial notice was verbal, given over the telephone by Graycie. The section requires that it be given by Mr. Ross in writing, assuming his acceptance and support of Graycie's decision amounts to a "plan" on his part, requiring written notice. In any event, Graycie's telephone call to Ms. Siroski led to exchanges of email and text messages between her parents, then correspondence from and between lawyers. A letter from Mr. Ross's lawyer dated August 14 might satisfy the requirement for written notice, although it somewhat equivocally takes the position that Mr. Ross is exercising

summer access, not relocating any of the children. [37] In these circumstances, I find that any written notice required under s. 66 of the FLA was sufficiently given by August 14, 2020, and that Ms. Siroski objected to the relocation. Her application was filed November 10, outside the 30 days required by s. 68, but she had the children with her in Victoria by then, and it was apparent any application would have to be brought by Mr. Ross. [38] Section 69, which governs relocation orders, does not fit well with the circumstances here. Subsection (3) requires the Court to consider the factors set out in ss. (4)(a) in addition to the best interests of the child as mandated by s. 37(1). Subsection (4)(a) applies here because Mr. Ross, as the guardian seeking relocation, does not have substantially equal parenting time with Graycie. Under ss. (4)(a), if Mr. Ross satisfies the Court that the proposed relocation is made in good faith, and that he has proposed reasonable and workable arrangements to preserve the relationship between Graycie and Ms. Siroski, the proposed relocation must be considered to be in Graycie's best interests unless Ms. Siroski can satisfy the Court otherwise. [39] Section 69(6) sets out factors that must be considered in deciding whether a proposal to relocate a child is made in good faith. Dealing with them in the order listed, I find: a) the proposed

relocation was instigated originally by John-Paul, who has since changed his mind, and adopted by Graycie. The weight of the evidence supports the conclusion that Graycie enjoyed her summer in Manitoba with Mr. and Mrs. Ross, and Mrs. Ross's family, and the suggestion that she relocate was hers; b) the proposed relocation has not been shown to enhance the quality of life of either Graycie or Mr. Ross, except to the extent that each will enjoy spending more time with the other. That might improve Mr. Ross's emotional well-being, but any positive impact on Graycie's emotional well-being will be offset by separation from her brothers; I have not been shown any evidence that relocation would increase financial or educational opportunities; c) I have found that notice was given; and d) after stating that the children shall live with Ms. Siroski and that their ordinary place of residence will be in Victoria, the relocation provisions of the agreement are confined to the possibility that Ms. Siroski might want to move with the children. [40] As to the second factor under s. 69(4)(a)(ii), Mr. Ross has proposed to fly Graycie to Victoria to see her mother for half of the Christmas break, and all of the spring break at his expense; that she could also visit on long weekends, although he cannot offer to pay the costs of these visits; and that Graycie have a month with her mother every

summer, again without saying who would pay for her transportation. [41] Mr. Ross is an undischarged bankrupt whose income presently is either paid by a corporation controlled by Mrs. Ross, or is paid by way of wages from an unrelated company, or both. Ms. Siroski argues that Mr. Ross has not made adequate disclosure of his finances, and in her second affidavit, which is more argument than evidence, she questions Mr. Ross's willingness and ability to pay for Graycie to travel as he has proposed. [42] In spite of Ms. Siroski's doubts, I find that Mr. Ross has satisfied the requirements of s. 69(4)(a)(ii). [43] The problem with s. 69(4) in this case is that it reverses the onus of showing what is or is not in Graycie's best interests, putting it on Ms. Siroski if Mr. Ross, as the relocating guardian, satisfies the requirements of showing good faith and that there are reasonable and workable arrangements to preserve the relationship between Graycie and Ms. Siroski. This is in spite of the fact that Ms. Siroski has been Graycie's primary parent all her life. The anomaly is further heightened when one considers ss. (5) where, if parenting were substantially equal, Mr. Ross would bear the burden of showing relocation to be in Graycie's best interests. [44] Section 37(2) sets out a non-exhaustive list of needs and circumstances to be considered in determining what is in a child's best

interests. Some involve family violence, which is not present here. As to the others, I find: a) Graycie's health and emotional well-being will be better served if she remains with Ms. Siroski. She has deeper roots in Victoria, with friends, schoolmates, and, most important, her two brothers. b) Graycie's views have been solicited twice. It is fair to summarize them by saying that she has a real desire to have greater contact with her father, there is nothing in her current living situation that she finds unacceptable, and, most important to this consideration, she would like to try living with her father. She told Ms. Sherb that she would like to try it for a year, and Dr. Elterman that it would be okay to wait but she would like to try living with Mr. Ross. This is somewhat equivocal in that, while I accept that Graycie is genuine in her feelings, they are both tentative and somewhat conflicted. c) Graycie's relationship with her mother is a good one, and of long standing, while her relationship with Mr. Ross has been somewhat sporadic because of the distances separating them, and Mr. Ross's work requirements. I accept that when they are physically separated, Graycie and Mr. Ross have been able to maintain contact electronically. d) Graycie has been in Ms. Siroski's primary care all her life. e) Graycie is 14 years old, and although she might be mature beyond those years, she

is still young and needs stability that remaining with Ms. Siroski will provide her. f) Both Mr. Ross and Ms. Siroski appear well able to exercise parenting responsibilities. Both work outside their homes, pandemic permitting. g) Not applicable. h) Not applicable. i) In spite of offensive language from Mr. Ross directed at Ms. Siroski, I do not believe that requiring them to cooperate in raising Graycie to increase risks to anyone's safety, security or well-being. j) Not applicable. [45] Not on the list, but relevant to this issue is that Mr. Ross and Ms. Siroski agreed that Ms. Siroski would be the primary parent in their April 2017 Separation Agreement, and did not deal with the matter when renegotiating child support in October 2018. The somewhat tentative nature of Graycie's wish to live with Mr. Ross is not a material change in circumstances warranting variation of the agreement, [46] I find that Ms. Siroski has established that Graycie's best interests are better served if she remains with Ms. Siroski. The application to relocate Graycie is dismissed. Support [47] Mr. Ross seeks prospective and retroactive variation of child and spousal support to January 1, 2020, to reflect true incomes of himself and Ms. Siroski. Ms. Siroski resists on the basis that Mr. Ross's current income is not readily apparent, as he has not fully disclosed his financial circumstances. [48] The

Separation Agreement treats variation of child support and spousal support similarly. Child support is governed by clauses 11 - 13: 11. John and Shaleen agree that during the term set out in Paragraph 10 [July 1, 2016 to June 30, 2021] herein there shall be no variation of the quantum of child support or contribution to s. 7 expenses payable by John to Shaleen save and except in the following circumstances: (a) The children or any of them cease to reside with Shaleen on a primary basis; (b) John suffers job loss or a change in employment and/or income related to circumstances outside of his control including but not limited to health problems and other such conditions and circumstances that adversely impact upon his ability to work overseas, the termination of his contract by his current employer and factors impacting upon the oil and gas industry including natural disasters, work stoppages, lack of work or other industry-related disruption.

12. John and Shaleen agree that neither of them shall be entitled to make any request for or file any court application to seek a variation of child support payments save and except in the case of any of the circumstances contemplated in paragraph 11. But for such circumstances there shall be a complete moratorium on variation proceedings and financial disclosure during the term of July 1, 2016 to June 30, 2021. Both parties acknowledge that they are expressly prohibited, barred and estopped from advancing any claim for an adjustment of child support, including a retroactive calculation of support during this term.

13. As of July 1, 2021 John and/or Shaleen are at liberty to obtain financial disclosure from the other and to seek a variation of the quantum of child support payable. For greater clarity, the parties agree that on or before July 31, 2021 they shall exchange financial disclosure which will include the preceding year's full T-1 income tax return together with all schedules and attachments and a current pay statement showing the income in the 2021 year to date. [49] Clauses 17 - 20 deal with spousal support: 17. For the term commencing January 1, 2016 up to and ending December 31, 2025 John shall pay spousal support to Shaleen in the amount of $1,500.00 per month, payable on the 1st day of each month and thereafter, spousal support shall terminate absolutely, regardless of any changes to the circumstances of either John or Shaleen. It is acknowledged that sections 56.1(3) and 60.1(3) of The Income Tax Act shall apply, so that all payments made to Shaleen by John during this term or any portion thereof shall be taxable to Shaleen and deductible to John.

18. John and Shaleen agree that during the term set out in Paragraph 17 herein there shall be no variation of the quantum of spousal support paid to Shaleen by John save and except that spousal support shall terminate in advance of December 31, 2025 in the event that Shaleen remarries or cohabits in a common law relationship for a consecutive period of three years or greater. For greater clarity, cohabitation shall not be considered to be at an end or otherwise disrupted by deducting out any periods that Shaleen or her partner stay at a location outside of their mutual residence for the purpose of maintaining employment or vacation periods. Shaleen shall be obligated to advise John as to any change in her marital or common law status and failure to notify shall be construed as a breach of the terms of this Agreement and shall permit John to apply to court to seek a variation or termination of spousal support.

19. It is further agreed that John is entitled to apply for a variation or termination of spousal support, in the event that John suffers job loss or a change in employment and/or income related to circumstances outside of his control including but not limited to health problems and other such conditions and circumstances that adversely impact upon his ability to work overseas, the termination of his contract by his current employer and factors impacting upon the oil and gas industry including natural disasters, work stoppages, lack of work or other industry-related disruption.

20. John and Shaleen agree that neither of them shall be entitled to make any request for or file any court application to seek a variation of spousal support payments save except in the case of any of the circumstances contemplated in Paragraphs 18 and 19 and there shall be no extension to the term in which spousal support is payable. But for such circumstances as set out in Paragraphs 18 and 19 there shall be a complete moratorium on variation proceedings and financial disclosure during the term of January 1, 2016 to December 31, 2025. Both parties acknowledge that they are expressly prohibited, barred and estopped from advancing any claim for an adjustment of spousal support, including a retroactive calculation of spousal support during this term. [50] The circumstances affecting variation in clauses 11(b) (child support) and 19 (spousal support) are identically worded. [51] When the original Separation Agreement was signed, Mr. Ross earned $300,000 a year working in China on a month on/month off rotation. His contract ended, and he began working in Canada for $110,000 per year. That led to the Variation Agreement. [52] Mr. Ross is a consultant, and construction supervisor in the oil and gas industry. At present, he is employed by 7317884 Manitoba Ltd. ("884 Manitoba"), a corporation wholly owned by Mrs. Ross. [53] Mr. Ross has sworn that his income in 2020 is significantly

reduced due to the combined effects of a downturn in the oil and gas industry and the COVID-19 pandemic. He says as well that the pandemic has interfered with his ability to travel into Saskatchewan to work. [54] Mr. Ross swears that he has supplemented his income by working for his father-in-law, for which 884 Manitoba renders invoices and receives income. As of October 3, 2020, when his first affidavit was sworn, 884 Manitoba had earned $22,525 in gross revenue, but had paid him $45,500 in wages. He explains that 884 Manitoba has been able to pay him more than it has earned because it borrowed $40,000 from the Canadian Emergency Business Account ("CEBA"). [55] Mr. Ross's Form F8 sworn September 14, 2020, shows a $40,000 CEBA loan as his personal debt, and 884 Manitoba as his employer. [56] Counsel have invited me to consider 884 Manitoba as Mr. Ross's company, and its net income as his income, but if I do, counsel says I must also consider corporate liabilities. That is difficult with a company that has no financial statements. [57] Mr. Ross swore a Form F8 financial statement in September 2020 where he estimates his 2020 income to be $60,000 based on what he had earned till then. He shows 884 Manitoba as his employer and attaches a payroll statement and monthly statements that show 884 Manitoba has paid him $44,500 to August 31, 2020. Annualized, the $44,500 would give Mr.

Ross an income from 884 Manitoba of $66,750. [58] Mr. Ross's tax returns show Line 150 income of $290,000 for 2017, $111,538 in 2018, and $100,446 in 2019 [59] Mr. Ross has attached tax returns for 884 Manitoba to his Form F8. They show income of $10,640 for the year ending July 31, 2017, $125,980 for the year ending July 31, 2018, $136,200 for the year ending July 31, 2019. [60] In his third affidavit, Mr. Ross swore that, since his first affidavit, 884 Manitoba had no more revenue, but he had done seasonal work for Frontier Petroleum Solutions, which ended in early November. He attached a pay stub that shows that Frontier Petroleum had paid him $17,828 year to date. [61] The income Mr. Ross disclosed from 884 Manitoba and the arm's length company, Frontier Petroleum Solutions, total $62,328 up to November 6, 2020. Annualized, that would show an income of just under $75,000 for 2020. His counsel has suggested that his Guidelines income should be set at $70,000 or $80,000. [62] Ms. Siroski complains that Mrs. Ross's numbered company has not provided its financial statements, to which Mr. Ross has replied that the company has none. Instead, the company has provided its corporate tax returns referred to earlier and its general ledger. The latter is not particularly helpful. [63] Whether Mr. Ross is currently underemployed must be considered. That COVID-19 has disrupted the

economy is sufficiently notorious that I can take judicial notice of that fact, and I do. Whether there is a downturn in the oil and gas industry beyond the impact of COVID-19 is not so notorious. The only evidence of general downturn comes from Mr. Ross. Similarly, Mr. Ross has sworn that COVID-19 has restricted his ability to travel to Saskatchewan, thus further reducing his opportunities for work. I would need more and better evidence of such restrictions before inferring that COVID-19 has reduced Mr. Ross's job opportunities in Saskatchewan or Alberta. [64] Mr. Ross's evidence on this suffers from its generality; there is no real evidence of a reasonable search for employment on his part. [65] Mr. Ross has not satisfied me that his current financial circumstances are outside his control, and his application to vary child and spousal support is dismissed. [66] Although there is no separate application with respect to the $25,000 lump sum payable by December 31, 2020, I disagree with Mr. Ross's characterization of this amount as something other than a lump sum settlement of Ms. Siroski's claim for arrears to the date of the variation agreement. In my view, the wording of clause 7, "she acknowledges that the sum of $25,000 is wholly sufficient to adjust for any arrears of support which may have accumulated" makes clear that this payment is a settlement of arrears. [67]

Finally, the parties shall each pay half of the cost of Dr. Elterman's interview and report. [68] As to costs, this matter was reasonably brought in response to Graycie's expressed desire to try living with Mr. and Mrs. Ross. The mobility question was decided at least in part, and a large part, on the tentative nature of Graycie's wish to move. [69] My view, which is open to submissions, is that the parties should each bear their own costs of these applications. If either party wishes to argue otherwise, they should set the matter down for further submissions, oral or written, before January 15, 2021. R.T.C. Johnston J. The Honourable Mr. Justice Johnston