Spotzl v. De Spotzl

2025 BCSC 885 Spotzl v. De Spotzl

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Spotzl v. De Spotzl, 2025 BCSC 885 Date: 20250514 Docket: E211590 Registry: Vancouver Between: Marcus Vincent Spotzl Claimant And Grissell Liseloc Nunez De Spotzl and Eduardo Rodriguez Respondents Before: Associate Judge Bilawich Reasons for Judgment Counsel for the Claimant: S. Simpson Counsel for Respondent Grissell Liseloc Nunez De Spotzl: N. Samiei No other appearances. Place and Date of Hearing: Vancouver, B.C. March 10-11, 2025 Place and Date of Judgment: Vancouver, B.C. May 14, 2025 Introduction [1] By application filed on July 11, 2024, the claimant applies for orders that: a) On an interim without prejudice basis, the parties' respective Guideline incomes for support purposes be set at: i. Claimant: $86,835; and ii. Respondent: $50,016; b) On an interim without prejudice basis, the respondent pay the claimant prospective child support of $781 per month, starting August 1, 2024, for the children D.E.R.N. ("D"), born [redacted], 2014 (age 10) and G.M.S. ("G"), born [redacted], 2019 (age 5) (collectively, the "Children"); c) On an interim and without prejudice basis, the respondent pay the claimant retroactive child support for D and G of [$781 x 35 months - $525 =] $26,810, for the period September 2021 to July 2024, in installments of $1,000 per month; d) The parties share special and extraordinary expenses for D and G,

pursuant to s. 7 of the Federal Child Support Guidelines (the "Guidelines"), including (without limitation) those relating to the claimant hiring a nanny for the Children for up to 3 hours per school day, martial arts classes, swimming lessons, basketball and various camps during the winter, spring and summer breaks; e) On an interim without prejudice basis, the parties share special and extraordinary expenses in proportion to their incomes [claimant: 64% and respondent: 36%] and various other terms regarding provision of supporting receipts to the other party and a requirement that they pay their proportionate share within 7 days; f) The respondent pay to the claimant: i. $367 for her share of D's braces, in accordance with the Order of Associate Judge Vos made December 16, 2022; and ii. $16,235.33, on an interim and without prejudice basis, representing the respondent's share of special and extraordinary expenses which the claimant incurred for D and G between August 2021 and July 2024. [2] By application filed on August 28, 2024 and amended February 25, 2025, the respondent applies for orders that: a) The claimant pay the respondent interim spousal support in the amount of $430 per month, starting on September 1, 2024; and b) The claimant be declared a step-parent of the respondent's children L.D.C.N. ("L"), born [redacted], 2012 (age 12) and E.E.R.N. ("E") born [redacted],

2009 (age 15) and pay her retroactive child support for them, starting June 23, 2021, pursuant to s. 147 of the FLA and the Guidelines; [3] The respondent had also applied for orders varying her interim parenting time with D and G and cancelling the requirement for supervision established by the Order of Associate Judge Vos made December 16, 2022. At the outset of the hearing, I raised a preliminary issue regarding whether an Associate Judge has jurisdiction to vary the terms of an interim order which was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). That issue arises from Janmohamed v. Janmohamed, 2014 BCSC 107. The respondent chose to adjourn those items generally. [4] The respondent had also applied for an order that the parties jointly retain an expert to prepare a s. 211 FLA report, with the cost shared by the parties in proportion to their Guideline incomes. During the hearing, it initially appeared that the parties agreed that a s. 211 report was appropriate. The issue was whether it would be a publicly funded report prepared by a Family Justice Counsellor, or a privately funded report and who would have to pay for it in the first instance. In the course of submissions, respondent's counsel opted to adjourn this item generally to allow her to consider other possible alternatives, such as seeking the appointment legal counsel for the children. Background [5]

The claimant is 35 years of age. The respondent is 34 years. They met in December 2015 in Sosua, Puerto Plata, Dominican Republic. They married on July 27, 2016, in the Dominican Republic. [6] The respondent has three children from previous relationships. They include D (age 10), L I(age 12) and E (age 15). The respondent Eduardo Rodriguez is D's biological father. He lives in Dominican Republic. He was served with the notice of family claim but has not filed a response. [7] On September 22, 2018, the respondent and D immigrated to Canada. The claimant sponsored them. The claimant acknowledges that he stands in place of a parent with respect to D. He says he loves and cares for D as though he was his biological child. [8] G is the parties' only child together, born in 2019 (age 5) in Canada. [9] On June 23, 2021, the parties separated. The respondent left the former family home and moved into a transition home with D and G. The claimant initially did not know where they were and says he only saw the children infrequently. [10] On July 5, 2021, the claimant filed his notice of family claim. Amongst the relief claimed are parenting and child support orders relating to D (as step-child) and G. On July 19, 2021, he filed an amended notice of family claim, adding Mr. Rodriguez as a respondent. [11] On July 13, 2021, Associate Judge Dick granted an interim without prejudice order

that: a) Neither party remove D or G from BC without further order or written consent; b) Neither party apply for a passport for G until further order or written consent; c) The respondent surrender D's passport to her counsel; and d) The claimant have interim without prejudice parenting time with D and G starting on Friday at 4:00 pm to Monday at 4:00 pm, with exchanges taking place at Waterfront Station in Vancouver. [12] On August 10, 2021, Associate Judge Muir granted an order which included: a) The claimant have interim without prejudice parenting time with D and G starting on Friday from 4:00 pm to Monday at 7:30 am, and Wednesdays from 3:30 pm to 7:00 pm, and that D and G reside with the respondent all other times; b) Exchanges take place at Waterfront Station in Vancouver; c) The parties share decision-making responsibility for D and G; d) Non-removal of D and G from British Columbia without court order or written consent; e) The respondent was to surrender D's passport to claimant's counsel for safekeeping until further order; f) A prohibition from applying for a passport for G; and g) The respondent delete photographs of D and G from her GoFundMe.com profile and other websites and profiles and remove any disparaging or derogatory references, including those related to family violence; and h) Various conduct orders. [13] On August 13, 2021, the respondent filed a

counterclaim in which she claimed various relief, including parenting and support orders in relation to D (as the claimant's step-child) and G. [14] The claimant says that since August 2021, he has been the primary caregiver for D and G. Around that time, the respondent travelled to Dominican Republic for approximately a month to pick up E and L, who were immigrating to Canada. The claimant had originally co-sponsored them during the initial application process which started while the parties were still together. He withdrew his sponsorship after they separated. The respondent left D and G in the claimant's care while she was away. She returned on September 12, 2021, but was initially in quarantine and did not see D and G until September 27, 2021. [15] On October 1, 2021, the claimant filed an application with short leave, returnable on October 4, 2024, seeking orders regarding D and G being enrolled in Queen Mary Community Elementary School and Back to Basics Daycare. On October 4, 2021, Associate Judge Scarth adjourned the application to allow the respondent time to file responding materials. She made several interim without prejudice orders, including: a) Pending the hearing of the application, unless varied by agreement or court order, D and G would be in the sole care of the claimant; and b) Pending the hearing of the application, D would attend Queen Mary Community

Elementary School. [16] Attempts to have the October 1, 2021 application heard on October 14 and 25, 2021 were not successful. On the latter date, the respondent requested an adjournment so she could retain new legal counsel. [17] On December 22, 2021, Justice Blake ordered that Scarth AJ's order was temporarily suspended until January 1, 2022, and made an order regarding Christmas holiday parenting time with D and G. [18] On June 2, 2022, at a judicial case conference, Justice Ross made a consent order providing that D would attend counselling and for production of various financial records. [19] On November 30, 2022, Vos AJ made a consent order which included, without limitation, terms regarding D getting braces, the respondent producing various financial records, variation of the Order of Muir AJ to provide for the parties to exchange information regarding D and G and obliging them to discuss significant parenting decisions, providing that the claimant would have final decision making authority regarding the children if the parties could not agree, providing for D to attend counselling, allowing the claimant to secure childcare during his parenting time as necessary, setting out the school that D would attend and requiring the parties to ensure he attended for the entirety of regular school hours and setting out the daycare that G would be attending. [20] On December 16,

2022, after presiding over a long chambers application, Vos AJ issued reasons indexed as Spotzl v. De Spoltzl, 2022 BCSC 2204. He ordered that: a) D and G were to remain primarily in claimant's care; b) The respondent would have in-person parenting time with them for 6 hours each weekend on Saturday or Sunday and two nights per week on Tuesdays and Thursdays, from after school (or 3:00 pm) to 6:00 pm; c) Unless otherwise agreed or ordered, the respondent's parenting time was to be supervised by and take place at Westcoast Family Centres, that the respondent's child E was to have no contact with D and G and not be present during that parenting time, or if E was present, he was to be supervised at all times by an independent adult, not just the respondent; d) The parties were to share all costs related to supervision of the respondent's parenting time; e) If the parties agree to an arrangement whereby E would not be present during the respondent's parenting time, the respondent may exercise her parenting time without supervision and the respondent's child L may attend with her; f) Providing for virtual parenting time between the respondent and D and G and providing E not take part in the virtual contact; g) The parties share the cost of D's braces in proportion to their incomes, based on $91,101.47 for the claimant and $15,568 for the respondent; and h) Prohibiting the claimant

from relocating with the children to any location outside of Vancouver or North Vancouver. [21] The respondent indicated in her materials that she does not agree with the December 16, 2022 order, but she did not appeal it. [22] On December 4, 2024, the respondent filed an amended counterclaim in which she added a request for an order that the claimant be declared a step-parent to E and L and various consequential relief, including parenting orders and interim child support. [23] The parties have not yet set a trial date. Child Support - Parties' Incomes - Imputing Income Claimant [24] The claimant's income is straightforward. He is employed by Seaspan as a pipefitter. His income since 2021 has been as follows: Year Line 15000 Income Guideline Income 2021 $93,369 $88,337 2022 $79,570 $75,379 2023 $92,093 $86,835 Respondent [25] The respondent's financial history is complicated and largely in dispute. She graduated high school in Dominican Republic. English is her second language. During the marriage and before immigrating to Canada, she worked as a hairstylist / barber. After separation, she completed a barber training program at Blanche MacDonald. During the parties' relationship, she worked briefly as a dishwasher, in catering, waitressing, hairdressing from home and as a cleaner. [26] Her 2021 Notice of Assessment indicates she earned $7,248. The claimant notes there is an

undated letter from one of the respondent's friends which indicates she worked as a cleaner for that friend's company from 2:30 pm to 8:00 pm from Fridays to Mondays and was being paid $17 per hour. The respondent says the claimant paid her spousal support of $228 per month from June 2021 to December 2022, for a total of $4,332. It appears this was done without a formal agreement. [27] Her 2022 Notice of Assessment indicates she earned $16,056. On April 23, 2022, she swore an F8 Financial Statement in which she indicated her income for child support purposes was $15,568 and for spousal support purposes was $36,796. The latter figure included CCTB and BC Family Bonus. [28] The claimant tendered in evidence messages he exchanged with the respondent in which she indicated she was advertising a house cleaning business on Facebook Marketplace and subsequent messages in which she mentioned doing housecleaning work in January and February 2022. In May 2022, he suspected she might be working at a massage parlour. He retained a private investigator to follow her, who observed her coming and going from the premises. During their relationship, the respondent informed him she was working as a cleaner at a massage parlour for $30 per hour, but would not tell him the name of the business. He argues that someone working 40 hours per week at $30 per hour for 52 weeks would earn $62,400. He

notes that in her 2022 F8 Financial Statement she did not disclose any employment income. [29] The respondent's 2023 Notice of Assessment indicates she earned $30,091. The claimant says she did not provide evidence regarding what she did for work from January to June 2023. In June 2023, he had a text exchange with her in which she mentioned that she worked "until six on Monday, Tuesday, Thursday and Friday". [30] The respondent says she worked as a barber at Society Barbershop in Duncan, BC earning a commission-based salary. The claimant produced a copy of a Facebook post for the barbershop which announced that the respondent would start taking appointments on June 5, 2023. The respondent estimated that her hourly rate was $18, and that in August 2023 she had received $2,718.08. [31] The respondent says that for September and October 2023, she tried working as a barber out of her home, but did not disclose how much she earned from this. From October 1, 2023 to November 5, 2023, she worked at Walmart for $13 per hour, with gross income of $700 every 2 weeks. The claimant argues that if she was working 40 hours per week, her gross income would be $1,040 every 2 weeks; at 35 hours per week, it would be $910 every 2 weeks. He notes that minimum wage in BC between June 1, 2023 and May 31, 2024 was $16.75 per hour and suggests it is unlikely that Walmart would pay less than minimum

wage. The respondent does not say what she earned in November 2023. She does say she began receiving EI benefits in December 2023, but not how much. [32] The claimant complains that the respondent says she was paying rent of $2,000 per month during at least October and November 2023, but corresponding bank statements she produced do not show withdrawals in that amount from her accounts. He says she has not yet produced 2023 statements for her TD Bank accounts. [33] The respondent states in her affidavit sworn August 27, 2024 that her income in 2024 was $25,698. In her F8 Financial Statement sworn March 8, 2025, she says her Guideline income for child support purposes is $32,045, based on employment income of $8,339 and Income Assistance of $23,705. Her income for spousal support purposes is $49,247.96, after adding Child Tax Benefit and BC Family Bonus of $17,202.98. The Notice of Assessment attached to her financial statement indicates that her 2024 income was $15,610 [34] She says she began working at Max Barar on April 28, 2024 for $18 per hour or 50% of commission at a higher rate of $45 per hour. She produced a letter from her employer dated June 14, 2024 which indicates she worked there full-time starting April 28, 2024. In her affidavit sworn March 5, 2025, she states she worked there from May to August 2024. The claimant says assuming 40 hours per week at $18 per hour

from April 28, 2024 to August 13, 2024, that would be $11,113.60. [35] The respondent says on August 1, 2024, her family doctor recommended that she be placed on a three-month leave from work and receive disability benefits. This was based on her having developed severe depression, anxiety and adjustment disorder from the parenting issues raised in this litigation. She alleges the claimant had abused her emotionally, financially and physically during the relationship and alleges "litigation abuse" post separation. She also says she suffered a brain aneurism in December 2023 due to the stress of the litigation and alleged parental alienation she has been subjected to. [36] On or about August 13, 2024, the respondent began receiving EI benefits of $612 every two weeks. The claimant projects that If this continued until the end of the year, this would total $6,120, making her total income from all known sources $17,223, rather than the $25,698 she admits receiving for the period January to September 2024. This means the respondent must have had other sources of income in 2024 which she has not properly disclosed. [37] The claimant also notes that the respondent has admitted to travelling to Cuba while she was off-work due to her alleged mental illness-related issues. She says this was paid for by Michelle Zimmerman and her boyfriend, Jonathan Brown. She did not specify travel

dates, but he believes it would have been in September 2024. He questions the veracity of her alleged disability considering the activities she was engaged in during her travels. [38] The respondent accepted as "Person With Disabilities" effective February 1, 2025. It is not entirely clear how this has impacted her income. At the hearing, her counsel produced a copy of her PWD Designation Application. The claimant did not object to it being before the court. The portion of the form which had been completed by her family physician sets out diagnoses which include severe depression since 2021, adjustment disorder with depressed mood and anxiety since 2021, hemorrhagic stroke with cerebral aneurisms which required surgery in December 2023 and anxiety disorder since 2021. Residual symptoms from the stroke include weakness, fatigue, poor concentration and memory loss. He says her conditions are compounded by chronic anemia and recurrent urinary tract infections which impact her energy levels and physical resilience. She has been under regular medical supervision and has been prescribed several medications to manage her complex and overlapping health issues. [39] During submissions, claimant's counsel went through several portions of the form which describe the respondent's limitations and suggested that many of these are 'over the top' and simply not credible. The claimant argues

that despite her alleged disability, she recently travelled to Mexico, which trip was paid for by her boyfriend. She did not disclose the travel dates, but he believes it would have been in January 2025. [40] In June 2024, the claimant searched online for job postings for barbers in Vancouver. He found 6 openings for full-time and part-time positions, ranging from $18 to $40.85 per hour. He also searched a Government of Canada website to determine what barbers in Vancouver typically earn. The website stated that, as of November 29, 2023, the average annual income for a barber in Vancouver was $50,106, based on $24 per hour. The average salary range was between $37,562 and $58,719. [41] The claimant also believes the respondent continued operating a cleaning business while she was supposedly disabled from working. On October 24, 2024, he learned she was advertising a cleaning service through her WhatsApp account. The advertisement remained posted until November 25, 2024. He believes she may also have also been receiving EI benefits during this period. He arranged to have one of his friends, Evan Morris, send an email inquiry to a home cleaning business which he believed belonged to the respondent. His friend received a response from a "Grissell Nunez" which provided him information regarding services and pricing. The proprietor indicated they only accepted payment by e-transfers

or cash. Prices started at $35 per hour. He argues that working 40 hours per week at $35 per hour for 52 weeks would generate income of $72,800. Applicable Law - Duty to Support Child and Imputing Income [42] Section 147(1) of the FLA provides that each parent has a duty to provide support for the child unless the child is a spouse or is under 19 years of age and has voluntarily withdrawn from his or her parents' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable. [43] Sub-section (3) provides that a guardian who is not the child's parent has a duty to provide support for that child, but that the guardian's duty is secondary to that of the child's parents. [44] Sub-sections (4) and (5) address a step-parent's duty to support a child: (4) A child's stepparent does not have a duty to provide support for the child unless (a) the stepparent contributed to the support of the child for at least one year, and (b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child. (5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty (a) is secondary to that of the child's parents and guardians, and (b) extends only as appropriate on

consideration of (i) the standard of living experienced by the child during the relationship between the stepparent and the stepparent's spouse, and (ii) the length of time during which the child lived with the stepparent. [45] Sections 149 and 150 provide that the court may make an order requiring a child's parent or guardian to pay child support to a designated person, and that the amount of support must be determined in accordance with the Guidelines. [46] Section 16 of the Guidelines provides that a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by Canada Revenue Agency and adjusted in accordance with Schedule III. [47] Section 19(1)(a) of the Guidelines provides that the court can impute such amount of income to a spouse as it considers appropriate in the circumstances, including where a spouse is intentionally under-employed or unemployed. [48] In Shapiro v. Simpson, 2016 BCSC 211 [Shapiro] at para. 173, the court noted that parents have a joint and ongoing obligation to provide reasonable and necessary support for children of the marriage: 173 Parents have a joint and ongoing legal obligation to provide reasonable and necessary support for children of the marriage. In order to meet his or her child support obligation, each parent must earn what that parent is capable of earning

within the specific context and circumstances of the family. See Shapiro No. 1, at para. 42 (citing Vlek v. Graff, 2013 BCSC 1906, at para. 34). [49] In Marquez v. Zapiola, 2013 BCCA 433 at paras. 36-38, the court of appeal summarized the principles applicable to imputation of income in cases involving intentional unemployment or under-employment: 36 For the purposes of both child and spousal support, there is a broad judicial discretion to impute income to either or both spouses. However, the party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis for such a finding. 37 The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to the parties' capacity to earn income in light of their age, education, health, work history and work availability. A spouse's capacity to earn income will include that person's ability to work or to be trained to work. 38 Although the legal foundation for awarding spousal support is different from that of child support , the test for imputing income for the purpose of fixing the quantum of support is similar. Again, the test is one of reasonableness, having regard to the same factors to be considered in imputing income for child support. However, the concept of "needs" for non-compensatory support also includes a consideration of the

marital standard of living: "Means" has been interpreted to include all capital and other sources of income [citations omitted] [50] In Shapiro at para. 176, the court summarized the principles applicable to imputing income: (a) there is a duty to seek employment where a parent is healthy and there is no reason why the parent cannot work; (b) when imputing income on the basis of intentional unemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work and other obligations; (c) a desire simply to stay home with a child is not sufficient to invoke the exception in s. 19(1)(a) of the Guidelines. A parent who chooses to work less than full-time must justify that choice by evidence of the needs of the children; (d) bad faith is not required, and a parent is intentionally under-employed if the parent chooses to earn less than he or she is capable of earning. [51] Significant disputes regarding imputation of income are often best left to be resolved at trial, where parties can fully canvas their respective earning capacities and contested evidence can better be assessed: Kouznetsova v. Kouznetsov, 2014 BCCA 160 at para 45. Analysis [52] The claimant seeks retroactive and prospective child support for D and G, based on the

respondent being imputed as having a Guideline income of $50,016 per annum. The period for which retroactive support is sought is September 2021 to July 2024. Prospective support is sought for August 2024, which was the first month after the claimant filed his application, onward. The claimant essentially says the respondent has been intentionally under-employed or unemployed during the relevant period and/or she has failed to disclose her actual total income from all sources during the relevant periods. Income should be imputed to her based on what she was and is capable of earning, if she was working full time as a barber in the Vancouver area. The level of income proposed is from the Government of Canada website which sets out average incomes for barbers in the Vancouver area. The claimant did not tender expert evidence on this issue. [53] As can readily be seen from the background set out above, the parties have extensive disagreements regarding what the respondent was doing and what she was capable of doing and earning during the relevant periods. The claimant argues the respondent could and should have been working full time and earning at least the "average" level of income for a position she had the capacity to perform. He also offers various projections and scenarios based on assumptions he asks the court to make regarding available hours of work and rates of pay for

various positions the respondent held from time to time. He produced account statements which show receipts into the respondent's account and argues these should be treated as income. [54] The respondent, on the other hand, emphasizes that she is a recent immigrant to Canada, that English is her second language and she has no extended family support available. She did work as a barber/ hairstylist in Dominican Republic before she immigrated, and she received further training post-separation. She alleges she was exposed to various forms of family violence during the parties' relationship. This prompted her to leave the family home with D and G and move into a transition home. She has had a large number of changes of address post-separation, so her living arrangements appear to have been somewhat unsettled. [55] The respondent says she received income assistance from June 2021 to July 1, 2023. She was trained as a barber at Blanche MacDonald, which was funded by Work Safe BC. She started to work as a barber from July to September 2023 when she was briefly in Duncan, BC. From June 2021 to December 2022, she received support from the claimant of $228 per month. She says she has been suffering from severe depression, adjustment disorder and anxiety disorder since 2021, as well as the after-effects of a stroke suffered in December 2023. She had surgery for the latter condition. This

has negatively impacted her ability to work. Since the Order of December 16, 2022, she has been obliged to arrange for a professional supervisor when she has parenting time with D and G. She complains the claimant has interpreted that order in a way which allows him to insist on supervision even when her child E is not present during that parenting time. She has only been able to afford 5 visits with D and G since the supervision requirement was imposed. She has also been responsible for L and E during the relevant period. [56] As noted, the claimant disputes the respondent's claims of disability, points to evidence suggesting she may have been working at various points in time and not disclosed income from that, including when she was claiming to be disabled from working. Counsel also argued that a number of the limitations set out in her Persons With Disabilities application were simply not credible on their face. [57] I am not in a position to make determinations regarding disputed evidence on this application. The respondent has tendered evidence confirming her family doctor recommended she take at least three months off work, starting around August 1, 2024. He provided a contemporaneous letter describing her difficulties. He also supported her application to be designated a Person with Disabilities. The Ministry of Social Development and Poverty Reduction approved her

application, effective February 1, 2025. [58] It would not be appropriate nor is it possible to make the necessary findings of fact required in order to determine whether income ought to be imputed to the respondent for the relevant periods. For the same reason, it would also not be appropriate or possible to determine the appropriate levels of retroactive child support which may be due to the claimant for D and G. These issues will have to be addressed at an eventual trial, where the presiding judge will have the benefit of a more fulsome evidentiary record and cross-examination of witnesses. [59] For the purposes of the application for prospective child support, based on the claimant's Guideline income being $86,835 and the respondent's being $32,045 (as set out in her F8 Financial Statement dated March 4, 2025), and based on the claimant having the majority of the parenting time with D and G, the DivorceMate calculation which the claimant provided indicates that the table amount of child support payable by the respondent to the claimant for D and G is the sum of $516 per month. [60] With respect to special and extraordinary expenses for D and G, based on the incomes set out above, the proportions would be 73% to the claimant and 27% to the respondent. [61] The ongoing special and extraordinary expense categories the claimant is seeking include for a nanny he has had to

arrange to help get the children to school in the morning. His work starts at 6:00 am on Monday-Friday. The nanny helps the children get out of bed at about 7:00 am, gets them ready for school/daycare on time. I agree this expense should be shared proportionally. [62] He also seeks to include health-related expenses which exceed insurance reimbursement by at least $100 annually, including D's orthotics. I agree this should be shared proportionally. [63] For the other expenses he has identified as special or extraordinary, I am concerned that the amounts can vary dramatically from one year to the next and am concerned that this could end up being beyond the respondent's means to contribute, given her level of income and obligation to support E and L. I am not inclined to include the other proposed sub-categories of special and extraordinary expenses at this time. [64] The start date for prospective child support will be January 1, 2025, for purposes of basic support and special and extraordinary expenses. This is without prejudice to the claimant's ability to pursue a claim at trial for basic support and special and extraordinary expenses for the period prior to January 1, 2025. Spousal Support [65] The respondent seeks interim spousal support from the claimant for the period September 1, 2024 and onward. She argues that she is entitled to support on both a compensatory and

non-compensatory basis. She relies on ss. 160-162 of the FLA. [66] In Robles v. Kuhn, 2009 BCSC 1163 at para. 12, Master Keighley summarized principles applicable to an interim spousal support application: 12 On interim support applications, the application of these provisions must be qualified by certain established considerations: 1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance: Gibb v. Gibb, [2005] B.C.J. No. 2730 (S.C.); 2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.); 3. On interim support applications the court does not embark on an in- depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best: Randhawa v. Randhawa, [1999] B.C.J. No. 1082; Newson v. Newson, [1998] B.C.J. No. 2906, 65 B.C.L.R. (3d) 22 (C.A.); 4. The courts should not unduly emphasize any one of the statutory considerations above others; 5. On interim applications the need to achieve economic self-sufficiency is often of less significance; 6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate

otherwise: Ladd v. Ladd, [2006 B.C.J. No. 1930, 2006 BCSC 1280 (S.C.); 7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out: L.G.B. v. M.A.C.M., [2005] B.C.J. No. 2966, 2005 BCSC 1786 (S.C.); 8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support: L.G.B. [67] In I.F. v. R.J.R., 2015 BCSC 793 at paras 122-126, Justice Ballance discussed the purpose for an interim order: 122 The main purpose of an interim order for spousal support is to bridge the period between when the action is commenced and the trial at which time the court will be in a position to make a decision on the merits: D.R.M. v. R.B.M., 2006 BCSC 1921; Goriuk v Turton, 2011 BCSC 652. 123 Because interim orders are summary in nature and temporary, they provide a rough justice at best: Newson v. Newson, 65 B.C.L.R. (3rd) 22 (C.A.) at para.

11. The "rough justice" approach underlying the temporary order implicitly recognizes that the evidence before the chambers judge on the interim application is often insufficient to permit an in-depth analysis of the wide array of factors relevant to entitlement and quantum of support: R.C.G. v. C.L.G., 2010 BCSC 1596, para. 11; Johnson v Johnson, [1993] B.C.J. No. 2140 at 16. 124 The legal test governing interim support is not necessarily the same as the test applicable in reaching the final order: Goriuk. This is because the full picture of many of the considerations under the applicable legislation will not be known until a fulsome inquiry on the merits is embarked upon a trial. 125 Relying on Newson, Goriuk confirmed that where the marriage is admitted and need is proved interim support should be ordered without adjudicating the issues, unless the action is frivolous or vexatious. 126 While the other relevant factors that inform the issue of spousal support are to be considered to the extent possible, the respective needs and means of the parties are ordinarily the central factors, if not the most prominent, on an interim application. The corollary is that considerations such as compensatory factors and the need to achieve self-sufficiency often hold less significance: R.C.J. v. C.L.G., 2010 BCSC 1596 at para. 11; Goriuk at para. 33. [68] The respondent argues that the

claimant originally committed via a spousal sponsorship undertaking to be financially responsible for her when she immigrated to Canada. That involved a three-year commitment, which expired shortly after the parties separated. The claimant says he was required to make a payment to reimburse several months of post-separation benefits which had been paid out to the respondent. Respondent's counsel referred to Charan v. Charan, 2018 BCSC 1537. I note that at para. 92 et seq, the court commented that sponsorship undertakings may be relevant when determining entitlement, but they cannot impose obligations greater than those imposed by family law and general principles applicable to spousal support. [69] The claimant argues the respondent is not entitled to compensatory support because she did not forego any career opportunities for the sake of the relationship. Any entitlement would be limited to non-compensatory support. He also argues that a disparity in income alone is not sufficient reason to award her spousal support, given that she has made minimal effort since separation to find and maintain consistent and reliable employment. He says she has been less than forthcoming about her actual income. He also notes that his own financial statement indicates that he earns just enough to meet his own expenses, he has minimal savings and owes significant debt to his parents. He also

says he voluntarily paid the respondent $11,486 since the date of separation, for which he did not receive the benefit of an income tax deduction. He points to the Spousal Support Advisory Guidelines ("SSAG"), which indicate that for a relationship of this duration, spousal support would normally only be paid for 2.25 to 5 years from the date of separation. [70] I have concluded that it would not be appropriate at this time to attempt to assess whether the respondent is entitled to compensatory spousal support. I cannot resolve conflicts in the affidavit evidence presented for this application. I am satisfied that the respondent has made out a prima facie case for entitlement to non-compensatory support based on her financial need and that it is appropriate to order the claimant to pay the respondent interim spousal support. Based on the Divorcemate calculation provided during argument and the income figures set out above, the SSAG mid-range amount is $162 per month. For the same reasons as set out above, the start date will be January 1, 2025. This is without prejudice to the respondent's right to pursue a claim at trial for spousal support for the period prior to January 1, 2025. Braces [71] The claimant seeks an order that the respondent pay him $367 for her share of D's braces, in accordance with the Order of December 16, 2022. The order provides at para. 6 that the parties

will share the cost of D's braces (dental) in proportion to their incomes as declared in their Form F8 Financial Statements, which was $91,101.47 for the claimant and $15,568 for the respondent. This means 85% is allocated to the claimant and 15% (rounded) to the respondent. [72] On June 27, 2024, the claimant sent the respondent an email attaching a dental receipt for D's braces and asking her to pay her 15% portion, namely $367.50. She has not paid this to date. I order the respondent to pay the claimant $367.50 for this expense, further to para. 6 of the Order of December 16, 2022. Step-Parent Declaration and Child Support for - E and L [73] The respondent seeks a declaration that the claimant is a step-parent to E and L, and an order that he pay her interim child support for them, starting from the date of separation (June 23, 2021). She relies on s. 147(4) of the FLA. Sub-sections (4) and (5) are set out earlier in these reasons. [74] The respondent says the claimant acted as a step-parent to them and provided financial support for them starting back when the parties were living in Dominican Republic. After they relocated to Canada, the respondent initially left E and L in the care of her father in Dominican Republic. She says that from 2018 to 2021, the claimant sent money back to Dominican Republic to help support of these children. She also argues that the children felt

like they were part of the claimant's extended family, noting that in 2020, they would have conversations with the claimant's mother in which she would promise to send them money and presents for Christmas. They immigrated to Canada in order to be a family with the claimant, albeit he had withdrawn his sponsorship of them before they arrived. [75] The claimant says E and L never lived with the parties when they were together and he has never provided any form of financial or regular care for them. The respondent occasionally sent money to the Dominican Republic for them using funds she earned from hair dressing and CCB she received for D and G. They did not arrive in Canada until after the parties had separated. He denies ever standing in the place of a parent for E and L. [76] The claimant referred to Chartier v. Chartier, [1999] 1 S.C.R. 242 at paras. 36 and 39: 36 It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parental relationship under s. 2(2)(b) of the Divorce Act must however be determined as of the time the family functioned as a unit. 39 Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent.

The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to

be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act. [77] An alternative argument he makes is that even if the court was inclined to conclude there is evidence indicating he was a step-parent to E and L, the respondent's claim for step-parent support was brought outside the applicable limitation period. Section 147(4) of the FLA requires that the proceeding seeking an order against the step-parent must be started within one year from when they last contributed to the support of the child. The respondent filed her amended counterclaim adding the claim for child support for E and L on December 12, 2024. This was more than 3 years after the parties separated, which would be the latest possible date that the respondent could theoretically allege he contributed to them financially. Her claim was accordingly brought out of time. [78] The respondent argues that the meaning of the word "proceeding" in s. 147(4) the FLA refers to the proceeding generally, not when a claim for a step-parent to pay child support was added. She

cited no authority in support of this proposition. [79] I am not persuaded that the respondent has made out a prima facie case for the claimant being a step-parent to E and L for purposes determining whether he ought to pay interim child support for them. I am also concerned that the one-year period under s. 147(4) for the respondent to advance such a claim appears to have expired before she amended her counterclaim to add that claim. It would not be appropriate in the circumstances to make the declaration sought or to impose an interim order for child support in relation to E and L. This item is dismissed, without prejudice to the respondent's ability to pursue this relief at trial. Costs [80] The parties have had mixed success. Each party will bear their own costs of these applications. "Associate Judge Bilawich"