IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Crowe v. Crowe, |
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2011 BCSC 445 |
Date: 20110411
Docket: E042046
Registry: Vancouver
Between:
Maureen Carol Crowe
Claimant
And
Malcolm Bruce Crowe
Respondent
Corrected Judgment:
The text of the judgment was corrected
at paragraph [96] where changes were made on May 13, 2011
Before: The Honourable Mr. Justice Kelleher
Reasons for Judgment
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Counsel for the Claimant: |
A.L. Chapman-Fluker |
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Counsel for the Respondent: |
D.H. Murray |
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Place and Date of Hearing: |
Vancouver, B.C. September 17, 2010; and January 18 and 19, 2011 |
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Place and Date of Judgment: |
Vancouver,
B.C. |
[1] This decision addresses a number of applications. The hearing began in August, 2010, with an application by the claimant for orders of child support and spousal support. The hearing continued on September 17, 2010, and resumed on January 18, 2011. By that time, two further applications had been brought forward. The respondent sought an order that the claimant be “punished for contempt” of an order of Mr. Justice Shabbits dated August 5, 2005. He also sought an order for sole custody and guardianship of the parties’ 14 year old son Malcolm Scott Crowe. The claimant set down for hearing an application she made on March 3, 2010, seeking various orders including: (a) a “Views of the Child” report; (b) an update of an earlier s. 15 report; (c) sole custody; and (d) revised access terms.
[2] At the January hearings, the hearing of the claimant’s application for child and spousal support was completed. I went on to hear the other applications.
[3] This decision addresses all of the issues before the court.
[4] The claimant is now known as Maureen Carol Lockwood. The parties’ son is referred to as “Scott” in the Reasons for Judgment of Shabbits J., but he now goes by “Malcolm”.
[5] The claimant and respondent were married on May 26, 1984. They separated in March 2005, and were divorced in August 2005.
[6] The parties have three children: Heidi is 26, Chelsea is 24, and Malcolm is 14. The claim for child support is only with respect to Malcolm.
[7] The claimant was working as a graphic artist when the parties got married. The respondent was a chemical engineer. The claimant was a stay-at-home spouse who did not work outside the home for wages until 2003.
[8] The claimant and respondent met in Edmonton, but moved to Calgary when they married, which accommodated the respondent’s work. In 1992, the respondent was working for Chevron and accepted a transfer to Chevron’s research facility in southern California. The facility closed in 1999. The respondent had an option of relocating with Chevron to northern California or Texas. Instead, he decided to accept a severance package and to move to Vancouver. This was not the claimant’s wish, she deposes. She would have preferred that he remain working with Chevron.
[9] Mr. Justice Shabbits conducted an eight day trial in 2005. Custody of Malcolm was very much in issue. The trial judge concluded that the parties should have joint custody and joint guardianship. The details were described at paras. 45-53 of his reasons:
I order that the plaintiff and the defendant have joint custody of Scott, and that they be his joint guardians but on terms.
The plaintiff shall be considered the primary resident parent.
The terms of guardianship shall be as referred to at trial as being Master Joyce’s model. A copy of those terms was filed at trial.
I remind the plaintiff of the obligation of the primary resident parent to discuss matters affecting the child with the other parent.
The residency schedule that the parents agreed upon before trial shall be continued, with the plaintiff having Scott for eight days of every two week period of time, and with the defendant having him for six days.
Scott shall reside with his mother in July of each year after 2005, and with his father in August. The parent with whom Scott is not then with shall have reasonable access to Scott during the summer holidays. I do not propose to define access. Access may turn on trips away, and the like.
Christmas holidays shall be divided, with Scott being with his mother from the start of the school break until noon on boxing day in each odd numbered year, and with his father during that time period in even numbered years.
Scott shall alternate Spring breaks between his parents’ residences. He shall spend even numbered years with the plaintiff.
I make no order in respect of long week-ends or other school breaks. The parties may agree as to arrangements during those times, but failing agreement, the regular residency schedule shall apply.
[10] In making this decision, the learned trial judge had the benefit of a report under s. 15 of the Family Relations Act, from Dr. Nicole Aubé, as well as the evidence adduced at trial.
[11] The learned trial judge reached a number of conclusions about the parties and their parenting strengths and weaknesses. He said the following with respect to Mr. Crowe:
The defendant’s relationship with his two daughters has broken down. Sadly enough, it seems to me that the defendant’s position at trial amounted to an acceptance by him that his relationship with his two daughters is beyond repair.
The defendant submitted that Chelsey bullies Scott, and that Heidi has taught Scott to disobey his father. In my opinion, both of those accusations are unfounded. They reflect the defendant’s poor relationship with his daughters. They are not based on reality. I heard no evidence that Chelsey bullies Scott, only accusations and submissions that that is so. Heidi has not taught Scott to “disobey” their father. She has done no more than help Scott avoid the consequences of their father’s temper.
Heidi Crowe’s testimony at the trial was disturbing. She accused the defendant of having assaulted her.
Heidi and Chelsea and Scott all told Dr. Aubé that each of them, at times, feared their father. All of them reported that their father’s anger was of concern to them. Dr. Aubé said that Scott told her that Scott sees his father as always being angry at him, and that, at times, his father was strict and yelling at him.
The defendant denied responsibility for the breakdown of his relationship with his daughters and wife. He denied responsibility for the atmosphere in the family home, which he agreed had become “toxic”. The defendant gave evidence justifying his past conduct.
(paras. 24-28)
...
I have concluded that the defendant often became angry with all members of his immediate family, and that he has been violent to his daughters. I am satisfied that all three children of his children are, from time to time, fearful of him.
Notwithstanding the defendant’s protestations otherwise, in my opinion the evidence that the defendant, over the years, has been inappropriately angry or violent or disrespectful of the plaintiff and his children, and that he impetuously involved himself in stormy and occasional physical confrontations with them, is overwhelming.
One of the underlying currents involving the defendant’s approach to his children is that of “obedience”. The defendant places a premium on obedience. He expects unquestioning obedience, even from his daughters who are now 18 and 20 years of age. Much was said at the trial about the “four points” relating to Scott’s custody and access. The points were advanced by the defendant, and, apparently, reluctantly acceded to by the plaintiff. The points reflect the defendant’s view as to the appropriate approach to resolve issues of custody or access relating to Scott. Point 2 is that “the child shall be told by both parents what the schedule is”. Point 4 is that “Heidi and Chelsea will immediately defer to the parent”. In my view, the most striking feature of the four points is that no regard is given to the rights or views of any of the children. This might be somewhat understandable in respect of Scott, who was young and manipulating his parents, but it pays no regard to the rights or views of his daughters. Heidi was an adult young woman of 19 when the defendant insisted that she would “immediately defer to the parent”. This is not to say that Heidi should have been involved in deciding issues of custody and access involving her parents and Scott. But not involving Heidi in the making of a point that involves her and that requires her to immediately defer to him illustrates the defendant’s view that she owes him unquestioning obedience.
The plaintiff complains that the defendant was overly controlling. It is, in my opinion, a complaint that is borne out by the evidence.
(paras. 30-33)
[12] His Lordship said this about the claimant:
Dr. Aubé was of the view that the present preferred atmosphere for Scott is with his mother, rather than with his father. I am of the same opinion, and that is so even though I perceive that there are deficiencies with the mother’s care.
Dr. Aubé concluded that the plaintiff was non-assertive. I agree with that conclusion. Unfortunately, this has detracted from the plaintiff’s care of her son. She is a weak disciplinarian. Scott manipulates her to his advantage. Scott also manipulates his father, but less so than his mother.
I had the uneasy impression from the plaintiff’s evidence that she is not above protecting her son from what she perceives to be excessive demands upon him by his school teachers. This could be problematic, given that Scott can manipulate his mother.
The plaintiff has persisted in putting her son to sleep in an inappropriate fashion. She has persisted in that even when faced with the knowledge that her conduct would be advanced by the defendant in this trial as a drawback to her being Scott’s primary caregiver.
(at paras. 40-43)
[13] The trial judge went on to discuss issues of child support and spousal support.
[14] The claimant deposes that the parties led a comfortable lifestyle during the period they lived in southern California:
When the defendant and I were living in California we led a very comfortable lifestyle, we had gardeners, I had a cleaning lady come once a week after Malcolm was born and we took the children on trips. We went to Australia, we went back to Edmonton every year, and once back to Vancouver, we had annual passes for Disneyland, we went to San Francisco, the Grand Canyon, Arizona and Las Vegas. Bruce and I also went to France on our own. The defendant and I ate out often with the children and I would go for lunch with friends during the day. I bought clothes for myself and the children at Nordstrom’s. I believe the defendant was making about $200,000 per year at this time.
[15] When the respondent left Chevron, he made a decision to live off his assets. Mr. Justice Shabbits was the trial judge in 2005. At para. 59, he put it this way:
The defendant has had limited employment income since his relocation to British Columbia in 1999. This has been by choice. The defendant’s evidence is that he and the plaintiff had acquired sufficient assets by 1999 to permit him to abandon his former career path, and to permit him to do things that he enjoyed or that he found worthwhile, rather than working for the purpose of earning money. The defendant has maintained his membership as a professional engineer in Alberta. There was no reason advanced at trial why even now the defendant could not re-establish himself in lucrative employment in the petroleum industry, should he choose to pursue such employment elsewhere. Even on the lower mainland, the defendant has chosen to do little by way of paid employment. The defendant testified that he is content to live off his assets and that he is not driven by financial considerations.
[16] The trial judge found that the marriage resulted in the claimant giving up her career, and the break-up of the marriage left the claimant economically disadvantaged. On the other hand, he found that the marriage break-up has not economically disadvantaged the respondent. His career blossomed until 1999 and it was the respondent’s choice to become relatively inactive in employment after that.
[17] Mr. Justice Shabbits reached this conclusion about family assets:
In my opinion, an equal division of family assets would be unfair, having regard to the need of the plaintiff to become economically independent and self-sufficient.
order that the proceeds of the sale of the family home be reapportioned 60% to the plaintiff and 40% to the defendant. That reapportionment will permit the plaintiff to obtain reasonable accommodation for herself which should permit her, with employment training, to become and remain economically independent and self-sufficient. It should also leave the defendant with sufficient capital to acquire accommodation for himself.
(at paras. 65-66)
[18] The other family assets were divided equally.
[19] The trial judge said this about spousal maintenance:
The plaintiff seeks an order for lump sum maintenance. The plaintiff must retrain in order to become self-sufficient. The reapportionment of family assets will assist her in establishing herself economically, but the reapportionment will not accommodate retraining.
Two years is a reasonable length of time for the plaintiff to retrain and find employment that will leave her self-sufficient. In my opinion, $1,500 a month for two years is appropriate spousal maintenance, given the assistance the plaintiff will receive from the reapportionment of family assets, and considering the limited income the plaintiff will likely continue to earn from part-time employment while training. The defendant’s income is not sufficient to fund periodic maintenance. He has chosen to live off assets. In my opinion, it is for that very reason that lump sum maintenance, and not periodic maintenance, should be ordered. In my view, it is the defendant’s choice to largely withdraw from the workforce that justifies a lump sum maintenance order.
I order the defendant pay the plaintiff lump sum maintenance of $36,000. That sum shall be paid to her from the defendant’s share of the proceeds from the sale of the family home.
(at paras. 70-72)
[20] The trial judge then, at para. 73, made an order for future review of spousal maintenance:
The plaintiff has leave to apply after August 1, 2007, to have spousal maintenance reviewed. The plaintiff’s evidence at this trial was that with retraining she would be self-sufficient within two years. The defendant does not have income to pay spousal maintenance. It seems unlikely that a further spousal maintenance order will be made. Nevertheless, circumstances may change. [emphasis added]
[21] Child maintenance at trial was based on the imputing of $60,000 of annual income to the respondent. The claimant’s guideline income was set at $25,000. Child maintenance of $846 per month was ordered.
[22] Since the trial, the parties have been in this court on numerous occasions. This has arisen from two kinds of events: first, disputes over custody and access; and second, a claim for increased child support and spousal support. These latter claims came from Mr. Crowe’s decision to resume work. His income has risen dramatically since the trial.
[23] On September 9, 2009, Mr. Justice Cullen made an interim child maintenance order, increasing child support to $1,000 per month.
[24] The respondent has been complying with that order. The claimant notes, however, that from March 2006 to September 2009, the respondent paid $280 per month in child support. As will be seen, his income was increasing dramatically during those years.
[25] On April 5, 2007, Madam Justice Ross heard an application by the respondent for an order that Ms. Lockwood be found in contempt and that Mr. Crowe be awarded sole custody. The problem arose when Malcolm was visiting his father on February 22, 2007. He ignored his father’s instructions to stop watching television. Mr. Crowe picked him up by the back of the shirt and pants and marched him to his room. Malcolm complained to his mother. Ms. Lockwood decided to withhold access. She insisted on supervised access.
[26] Ross J. pointed out that the parties are obliged to obey orders of the court and that it was not open to Ms. Lockwood to ignore the order even if she felt that was in the best interest of the child. Her Ladyship decided not to make a finding of contempt. She also declined to change the custody arrangements. She concluded that a term of the order be that there be no physical discipline. She decided that what had happened on February 22, 2007, constituted physical discipline.
[27] The parties were again before Madam Justice Ross in June 2009. The contempt application was before the court once again. The circumstances are described in para. 4 of her reasons:
The matter is now back before me and, once again, Malcolm has not been seeing his father. The plaintiff alleges that is Malcolm’s wish. There are some other disturbing developments. Malcolm, since April 30, has refused to attend school and the plaintiff reports that he has been locking himself in his room refusing to go out, that he has made suicide threats, and that she has made appointments for him to see mental health professionals, but he has refused to get out of the car to go to the appointment. If this is all so, this is a child who is in significant distress. What is concerning to me is that it appears that these things have been happening without the consultation that is required by the order of joint guardianship. So it appears that the plaintiff has not been having the sort of discussions with the defendant that one would expect would be consistent with a joint guardianship order, particularly in circumstances as serious as these.
[28] The claimant sought to suspend access. This was refused. Her Ladyship expressed the view that Malcolm was “... approaching an age at which courts often consider that the child is in a position to, in effect, vote with his feet”. However, she said, since he was refusing to go to school and exhibiting other signs, the evidence suggested that he was not in a position to make such decisions. Her Ladyship directed the parties to discuss what should be done about Malcolm’s attendance at school.
[29] Madam Justice Ross heard the parties again on June 25, 2009. She sorted out some custody and travel issues for the summer of 2009. At para. 6, her Ladyship said this about counselling:
... I will simply say that with respect to the issue of counselling, it is my view that there are difficulties in the relationship of both parties and the child that have manifested−and their communication with each other that have produced the situation that we have here, and it is going to require all three of the parties to sort this out, to put relations back in a situation that is in the best interest of this young man.
[30] The next hearing was on November 9, 2009. The respondent applied to vary the order of Shabbits J. to grant him sole custody and delete the paragraph which provided that the respondent not use any form of physical discipline. Ms. Lockwood sought an order obtaining a “views of the child” report or alternatively an updated s. 15 report.
[31] Her Ladyship reached these conclusions:
I agree that the threshold for consideration of a variation in the custody order and parenting schedule has not been established. To my mind, the trial judge identified concerns with respect to Ms. Lockwood’s ability to discipline M.S. and her susceptibility to manipulation by him that foreshadow both Ms. Lockwood’s reaction to M.S.’s complaints and his current behaviour problems. In addition, Dr. Aubé’s report, which was before the trial judge, identifies maladaptive behaviours, manipulation, oppositional tendencies and a concern with respect to excessive dependency of M.S. upon his mother. The present situation does not represent a departure from the situation at trial, but rather a continuation of the dynamics of these parents and this child that formed the basis of Mr. Justice Shabbits’ order.
While the breaches of the order which resulted in contempt applications in 2007 and 2009 are concerning, they are not continuing. M.S. has returned to school and by all accounts is performing well. Mr. Crowe seeks to take all the credit for this improved situation. To my mind that is as problematic as Ms. Lockwood’s attempt to blame him for all of M.S.’s misbehaviour. In addition, it completely overlooks any difficulties in his own relationship with M.S. Rather, it seems to me that the present promising situation is consistent with the trial judge’s view that, despite the concerns with respect to each of the parties, M.S. will benefit from the involvement of both parents with somewhat more time spent with his mother.
With respect to the application to remove the condition relating to physical discipline, Mr. Crowe submits that the condition is unnecessary. He states that he has no intention of using physical discipline. However, he submits that it is evident from the record, that the presence of the condition has complicated his interactions with his son, and created a stigma with the police and ministry authorities.
It seems to me that what is sought is in fact an indirect appeal of the trial judgment. The difficulties Mr. Crowe articulates do not amount to a material change in the condition, means, needs or circumstances of the child, or to the ability of the parents to meet the needs of the child. Nor are these difficulties something which could not have been foreseen by the trial judge. It is not appropriate to remove the condition.
(at paras. 45-48)
[32] On March 4, 2010 there was a further hearing. The respondent applied for an order finding the claimant in contempt. In dismissing the complaint, Madam Justice Ross said, at paras. 4‑6:
Here there is no question that the plaintiff was aware of the order. The complicating factor here is, in my view, the role of the child. It is the father’s position that the mother is entirely responsible for manipulating the situation such that the child was expressing an unwillingness to go, and uses as proof of that the fact that access has now been restored, as it has been on previous occasions in response to previous contempt citations.
However, I go back to the original Section 15 report, and the findings of the trial judge. We have here two parents, both of whom have features of behaviour that contribute to the difficulties that arise repeatedly with respect to this young child. We also have, in the child, pursuant to the findings of the Section 15 report, both oppositional tendencies, and tendencies to manipulate.
In the circumstances, and consistent with the principles that have been frequently articulated by the courts with respect to the way in which contempt proceedings are to be applied in the context of disputes with respect to custody, it is my conclusion that I am not satisfied beyond a reasonable doubt that contempt on the part of the plaintiff has been established here.
[33] There is no dispute that Heidi and Chelsea are no longer children of the marriage. Malcolm is the sole child.
[34] Section 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended, provides in relevant part:
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
...
(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.
[35] The claimant’s income for the last four years is as follows:
2006 $26,604
2007 $18,474
2008 $22,781
2009 $18,073
[36] The respondent’s income is:
2006 $114,258
2007 $205,007
2008 $209,790
2009 $229,000
[37] Child support in accordance with the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”), based on $229,000 is $1,918 per month. Child support based on the claimant’s income of $25,000 is $230. Therefore, the claimant submits that the child support in respect of Malcolm should be $1,688 per month.
[38] In addition, there are special and extraordinary expenses as follows: Malcolm requires orthodontic work, which will cost between $7,000 and $9,000; he is also receiving counselling, which costs $150 per session. The claimant asks that these expenses be declared special and extraordinary expenses and that they be shared in proportion to the income such that the respondent pay 90% and the claimant pay 10%.
[39] I have considered s. 10 of the Guidelines. There is no evidence that justifies deviation from the set off contemplated in s. 3 of the Guidelines. See: Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 (S.C.C.).
[40] The claimant also seeks retroactive child support. In support of that claim, she relies on the decision of the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. Specifically, the claimant refers to para. 54, where the Court stated:
In summary, then, parents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the children’s concomitant right to support, exists independent of any statute or court order. To the extent the federal regime has eschewed a purely need- based analysis, this free-standing obligation has come to imply that the total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, under the federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children...
[41] At paras. 94 to 106, the Court went on to say that the factors that will be considered in making a retroactive order are:
(a) the circumstances surrounding the delay;
(b) the conduct of the payor parent;
(c) the circumstances of the child; and
(d) any hardship caused by the retroactive award.
[42] The Supreme Court of Canada reaffirmed the legal principles expounded in D.B.S. v. S.R.G. in Kerr v. Baranow, 2011 SCC 10, at para. 208:
... A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support. Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100‑104 ...
[43] The respondent’s income began to rise dramatically in 2007. The claimant notified the respondent that she was seeking child support adjustments at the latest on August 10, 2010. Regarding delay in bringing an application for retroactive child support, the Court in D.B.S. v. S.R.G. said this at para. 101:
Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245....
[44] The claimant says that there are four reasons for the delay in bringing this application. First, she says that her previous counsel provided inadequate legal representation; he failed to communicate with her regarding correspondence from the respondent. Second, she was concerned about how it would affect the relationship with Malcolm. The claimant did not want to take steps that would worsen what was already a turbulent relationship between Malcolm and his father. Third, she lacked financial resources to engage counsel. Finally, there were ongoing disputes with the respondent regarding access to the child. She found these disputes to be time consuming and emotionally draining.
[45] It is noteworthy that the Supreme Court of Canada said at para. 106‑107 of D.B.S. v. S.G.R., that the court should take account of blameworthy conduct by a payor parent. It went on to say:
... I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support....
No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them...
[46] The Court of Appeal made the obligation of a payor parent clear in Hartshorne v. Hartshorne, 2010 BCCA 327 at para. 73:
The appellant takes the position that he had no legal obligation to increase child support where the respondent failed to obtain a court order that he do so. In my view, that position is misguided. Child support is for the benefit of the children. The appellant had an obligation to pay his proportionate share of the children’s support. The fact that he chose not to increase his child support in the absence of a court order when the respondent had given him notice in 2002 of her request for increased child support constitutes blameworthy conduct as characterized in S.(D.B.) v. G.(S.R.).
[47] The respondent argues that retroactive child support should be denied because the claimant failed to provide timely financial disclosure.
[48] There is a sharp difference between the parties on this. The claimant deposes that she provided income tax returns. I accept that evidence. There was no reason for her to withhold this information. The tax returns were sufficient information for the respondent to increase child support.
[49] I am satisfied that the real explanation for the respondent’s failure to pay child support based on the Guidelines is found in his own evidence; he does not want to. He says in Affidavit #25:
I was willing to pay an increased amount but I did not want it used to fund the plaintiff’s contempt. I suggested paying money into trust for Malcolm (at para. 66).
If the plaintiff receives more child maintenance, I can expect more vexatious legal manoeuvres that are of no value to Malcolm (para. 93).
I would prefer to establish one for Malcolm or some sort of education trust, rather than give money to the plaintiff to use against me (para. 97).
[50] The claimant deposes that Malcolm does not benefit from his father’s significant income while in his mother’s care. She says he does not enjoy a lot of the sports that he would like to do. He does not attend birthday parties and trips, she does not take him on holidays, and she cannot buy him new clothes or sports equipment. The claimant has liquidated RRSPs and assumed debt to meet household expenses.
[51] The court in D.B.S. v. S.R.G. said this:
A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most. But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child -- as well as the past circumstances of the child - in deciding whether such an award is justified.
A child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. As I mentioned earlier, it is a core principle of child support that, after separation, a child’s standard of living should approximate as much as possible the standard (s)he enjoyed while his/her parents were together. Yet, this kind of entitlement is impossible to bestow retroactively. Accordingly, it becomes necessary to consider other factors in order to assess the propriety of a retroactive award. Put differently, because the child must always be the focus of a child support analysis, I see no reason to abstract from his/her present situation in determining if a retroactive award is appropriate.
(at paras. 110-111)
[52] The Supreme Court of Canada stated at para. 116 in D.B.S. v. S.R.G.:
I agree with Paperny J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimizes hardship ... Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two ... But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.
[53] The claimant argues that the respondent shows a net worth of $532,000 and a healthy income of $229,000. There is no inability to pay. The claim is approximately $42,000.
[54] In considering the factors above, I conclude that a retroactive award is appropriate in the circumstances. Malcolm deserves to have a quality of life that approximates the standard of living that he enjoyed when his parents were together. It is evident that he is deprived of some of the pleasures that he would otherwise have enjoyed. The respondent cannot decide, on his own accord, that he will not pay child support, as he has done here, because he thinks that the money will be directed to fund further litigation by the claimant. Child support is the right of Malcolm, not the right of the claimant or the respondent. The respondent enjoys a comfortable financial position; he would not be unduly burdened by this additional obligation.
[55] Although there is evidence that the claimant delayed in bringing this application, I accept the claimant’s reasons for why support was not sought earlier. Malcolm should not bear the consequences of the claimant’s decision to delay. In any event, it is not necessary that all the factors weigh in favour of the claimant in order for a retroactive order to be granted: D.B.S. v. S.R.G. at para. 99. See also: Swiderski v. Dussault, 2009 BCCA 461 at paras. 43-44.
[56] Child support of $1,618 is ordered. Special and extraordinary expenses shall be shared on a 90%-10% basis. The respondent is also directed to pay retroactive child support of $27,000.
[57] Pursuant to s. 15.2(4) of the Divorce Act, factors to consider in ordering spousal support include:
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[58] Section 15.2(6) of the Divorce Act provides that the objectives of the spousal support order are:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[59] Metzger J., in Kerman v. Kerman, 2008 BCSC 500 at para. 14, summarized the legal principles that apply to a review of a spousal support order as follows:
There is no obligation on the applicant at a review to establish a material change of circumstances: Schmidt v. Schmidt, 1999 BCCA 701; Rogers v. Rogers, 1999 BCCA 238; Tedham v. Tedham, 2005 BCCA 502. A review application as a hearing de novo requires an analysis pursuant to s. 15.2 of the Divorce Act: McEachern v. McEachern, 2006 BCCA 508. The Spousal Support Advisory Guidelines may be relevant on a review: McEachern. A review must also consider other developments post-dating the initial order, including “post-separation changes in the fortunes of either or both parties, their respective contributions to future gains or losses, and consideration of the effort of the recipient spouse toward increased self-sufficiency” and the court should keep in mind that as a general matter, “[t]he Spousal Support Advisory Guidelines are directed to an initial post-separation determination of spousal support, not a determination on review”: Bryant v. Gordon, 2007 BCSC 946, at para. 44. An insufficient effort by one spouse to become economically self-sufficient may result in the imputation of income rather than a disentitlement to future spousal support: McEachern.
[60] The claimant argues there is a significant compensatory and non-compensatory spousal support obligation that has never been met because of the circumstances of the respondent at the time of the trial. These circumstances, however, are unusual. The learned trial judge reapportioned the proceeds of the family home with 60% to the claimant and 40% to the respondent. The proceeds were approximately $600,000, of which the claimant received $360,000 and the respondent $240,000. The trial judge explained at para. 66:
I order that the proceeds of the sale of the family home be reapportioned 60% to the plaintiff and 40% to the defendant. That reapportionment will permit the plaintiff to obtain reasonable accommodation for herself which should permit her, with employment training, to become and remain economically independent and self-sufficient. It should also leave the defendant with sufficient capital to acquire accommodation for himself.
The learned trial judge also awarded $36,000 ($1,500 per month for 24 months) as spousal support. He said that was reasonable in light of the need for the claimant to retrain. He said the amount was appropriate in light of the reapportionment, claimant’s limited income while training, and insufficiency of the respondent’s income for funding periodic maintenance.
[61] The review of spousal support ordered by Shabbits J. must be informed by the fact that the claimant has elected not to take retraining to become self-sufficient, and the dramatic change in the defendant’s income. The other relevant factors are: the parties’ lifestyle after the move to Vancouver in 1999 was more frugal than what they enjoyed in Southern California, the claimant’s receipt of a reallocation of the house proceeds, the claimant’s receipt of 24 months’ maintenance totalling $36,000, and the fact that the marriage was of approximately 21 years’ duration.
[62] The claimant argues that the respondent was giving misleading or even false evidence when he told the trial judge that he was not driven by financial considerations. I make no such finding. It is just as possible that the views of the respondent changed and that employment opportunities presented themselves, which he decided to avail himself of. In any event, I am satisfied that an analysis should now be done in light of the present circumstances.
[63] With respect to compensatory support, the claimant relies on Moge v. Moge, [1992] 3 S.C.R. 813 at 57, where the Supreme Court of Canada said:
The curtailment of outside employment capacity obviously has a significant impact on future earning capacity. According to some studies, the earning capacity of a woman who stays at home atrophies by 1.5% for each year she is out of the labour force ... and for women whose labour force interruptions have lasted 10 years or longer, the cumulative present value of post-re-entry earning losses will typically exceed $80,000 over and above any loss incurred during the interruption itself.
[64] The following comments by the Court of Appeal in Chutter v. Chutter, 2008 BCCA 507, paras. 50‑53, are also relevant:
Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the “independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868:
The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being. In such situations, spousal support may be a way to compensate such economic disadvantage.
In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added).
The Court in Moge discussed the relevance of the parties’ standards of living in the context of compensatory support at 870:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement…. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution. [Internal citations omitted.]
In W. v. W., 2005 BCSC 1010, 19 R.F.L. (6th) 453, a frequently cited decision in trial decisions in British Columbia, Justice Martinson made the following helpful observation about the interpretation in this province of the emphasized portion in Moge:
[11] In British Columbia this comment in Moge has been interpreted to mean that in long marriages the result will likely be a rough equivalency of standards of living. Doing so recognizes that the longer a marriage lasts, the more intertwined the economic and non-economic lives of the spouses become.
[12] Throughout the marriage, each spouse makes decisions that accommodate the economic and non-economic needs of the other. The decisions include the way in which child care and other family responsibilities will be handled and the way careers will develop. These decisions can have a significant impact upon the income earning ability of each at the time of separation. Yet it is not easy to determine exactly the relationship between these decisions and the consequent benefits and detriments to each spouse. The rough equivalency of standard of living approach has operated as a workable substitute to assess compensatory claims. See for example, Dithurbide v. Dithurbide (1996), 23 R.F.L. (4th) 127 (B.C.S.C.); Rattenbury v. Rattenbury, 2000 BCSC 722; Rinfret v. Rinfret, [1999] B.C.J. No. 2945 (S.C.); O’Neill v. Wolfe (2001), 14 R.F.L. (5th) 155 (B.C.S.C.); Walton v. Walton, [1997] B.C.J. No. 1089 (S.C.); Ulrich v. Ulrich, 2003 BCSC 192; and Carr v. Carr (1993), 46 R.F.L. (3d) 326 (B.C.S.C.).
[Emphasis original to Chutter.]
[65] In Chutter v. Chutter, the Court of Appeal discussed non-compensatory support:
Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, at para. 43). Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “means and needs” approach to spousal support.
The concept of “needs” in the context of non-compensatory spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties. As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), 17 R.F.L (4th) 298, 65 B.C.A.C. 226, at para. 10:
“Need” or “needs” are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. “Need” does not end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence. “Needs” is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted.
The Ontario Court of Appeal in Allaire v. Allaire (2003), 170 O.A.C. 72, 35 R.F.L. (5th) 256, held that self-sufficiency, a spousal support objective primarily related to non-compensatory support (Bracklow, at paras. 41-42), was a relative concept informed by the standard of living previously enjoyed by the parties:
[21] ... self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire’s income, it is inappropriate to consider Ms. Allaire’s annual income of $68,000 as “sufficient” without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared as a couple.
In Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 41, 48-49, 16 R.F.L. (6th) 430, Prowse J.A. referred to Myers and further held that in the context of a long-term marriage involving a sharing of resources, the concept of “need” should take into account the relative standards of living of the spouses following the marriage breakdown. In Yemchuk, the husband had appealed the decision of the trial judge dismissing his claim for spousal support on the basis that he had not established any need. While Prowse J.A. found that the husband was entitled to spousal support on compensatory grounds, she also went on to state that the trial judge’s treatment of the husband’s need for support had been “unduly restrictive”:
[41] I am also satisfied that the trial judge erred in viewing Mr. Yemchuk’s “need” for support from too narrow a perspective. He treated “need” as solely a question of whether Mr. Yemchuk could meet his stated expenses with the income available to him. After attributing $800-$1,000 per month to Mr. Yemchuk, the trial judge found that Mr. Yemchuk could meet his expenses and, therefore, was not entitled to support.
In Tedham v. Tedham, [supra], Prowse J.A. referred to Yemchuk as illustrative of the fact that the courts, at least in longer marriages, are measuring need against the marital standard of living (para. 55), and followed Allaire in finding that the objective of self-sufficiency must be viewed in the context of the marital standard of living (para. 60).
(at paras. 54-58)
...
Finally, I note that in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, the Ontario Court of Appeal recently reiterated the principle that self- sufficiency is a relative concept encompassing more than the ability to meet basic expenses:
53 Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation....
(at para. 61)
[66] It is noteworthy that the Court of Appeal in Yemchuk v. Yemchuk, 2005 BCCA 406, indicated that after a long-term marriage equalizing a standard of living may be necessary. As noted at para. 50:
While equalization of the standards of living of the parties is not a stated objective of spousal support, in long-term marriages in which the parties have approached their roles as a partnership where each contributed their various resources, both economic and non-economic, to the relationship, equality of standard of living (which is not the same as equality of income) may well be the just result. (I leave aside those cases in which the parties, or one of them, are wealthy, since other considerations may apply.)
[67] Finally, in Story v. Story (1989), 65 D.L.R. (4th) 549, 42 B.C.L.R. (2d) 21 (C.A.), the Court said at the final page of its judgment:
... There may be cases where self-sufficiency is never possible due to the age of the spouse at the marriage breakdown. It is often, in my opinion, totally unrealistic to expect that a 45 or 50 year old spouse who has not been in the job market for many, many years to be retrained and to compete for employment in a job market where younger women have difficulty becoming employed. Employment and self-sufficiency are simply not achievable. In those cases, the obligation to support must surely be considered to be permanent. That obligation must flow from the marriage relationship and the expectations the parties had when they married.
[68] Here, the claimant is 52 years old. The parties were married or cohabiting for some 22 years and the marriage was one where the claimant stayed home and cared for the home and children. The break-up of the marriage has obviously been to the claimant’s disadvantage. She has a limited skill set because her training as a graphic designer is no longer current due to technological change in the industry. She is not earning enough money to make ends meet. She has been required to liquidate RRSPs to supplement her income and has taken out a line of credit secured against her home. The claimant has not succeeded in becoming self-sufficient, and it is unlikely that she will ever be able to do so.
[69] The claimant argues that she is entitled to retroactive spousal support.
[70] The considerations that govern an award of retroactive spousal support were set out by Masuhara J., in Harder v. Harder, 2010 BCSC 585 at para. 42. They include:
... (i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor’s ability to pay; (ii) the underlying basis for the ongoing support obligation; (iii) the requirement that there be a reason for awarding retroactive support; (iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; (v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; (vi) notice of an intention to seek support and negotiations to that end; (vii) delay in proceeding and any explanation for the delay; and (viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued: Bremer v. Bremer (2005), 13 R.F.L. (6th) 89, [2005] O.J. No. 608 (C.A.).
[71] In Kerr v. Baranow, at para. 206, the Supreme Court of Canada affirmed that, in the context of an application for retroactive spousal support, the factors to be considered are similar to be considered for retroactive child support. Cromwell J., for the Court, wrote at para. 207:
While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively.
[72] Regarding the weight to be given to each factor in deciding if a retroactive spousal support order is appropriate, at para. 208, Cromwell J. said this:
Spousal support has a different legal foundation than child support... there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see, for example, M.L. Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and 291-92.
[73] Regarding delay, Cromwell J. wrote, at para. 209:
Where, as here, the payor’s complaint is that support could have been sought earlier, but was not, there are two underlying interests at stake. The first relates to the certainty of the payor’s legal obligations; the possibility of an order that reaches back into the past makes it more difficult to plan one’s affairs and a sizeable “retroactive” award for which the payor did not plan may impose financial hardship. The second concerns placing proper incentives on the applicant to proceed with his or her claims promptly (see D.B.S., at paras. 100-103).
[74] He continued at para. 212:
Other relevant considerations noted in D.B.S. include the conduct of the payor, the circumstances of the child (or in the case of spousal support, the spouse seeking support), and any hardship occasioned by the award. The focus of concern about conduct must be on conduct broadly relevant to the support obligation, for example concealing assets or failing to make appropriate disclosure: D.B.S., at para. 106. Consideration of the circumstances of the spouse seeking support, by analogy to the D.B.S. analysis, will relate to the needs of the spouse both at the time the support should have been paid and at present. The comments of Bastarache J. at para. 113 of D.B.S. may be easily adapted to the situation of the spouse seeking support: “A [spouse] who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive [spousal] support will be less convincing where the [spouse] already enjoyed all the advantages (s)he would have received [from that support]”. As for hardship, there is the risk that a retroactive award will not be fashioned having regard to what the payor can currently afford and may disrupt the payor’s ability to manage his or her finances. However, it is also critical to note that this Court in D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support.
[75] The decision to order retroactive spousal support is “the product of the exercise of judicial discretion in light of the particular circumstances”: Kerr v. Baranow at para. 211. In my opinion, given the overall circumstances, this is an instance where a retroactive support order is appropriate.
[76] The facts that applied in the context of an award for prospective support are equally applicable in the present assessment. The evidence does not demonstrate misconduct on the part of either party. The delay in bringing the application is not a significant detriment to the claimant’s case; the concerns that might arise due to a delay in applying for support, which were highlighted by the in Kerr v. Baranow at para. 209, arise here. Since 2007, the claimant has not been able to achieve self-sufficiency. She struggled to make ends meet, even with the support contributions from the respondent. Her standard of living post-separation is starkly different to the lifestyle that she enjoyed during the marriage. The respondent has depleted her capital and incurred debt. The evidence clearly demonstrates a past need on the part of the claimant, as well as a need for ongoing support.
[77] In contrast, the respondent’s financial circumstances have dramatically improved since the support order was made in 2007. The respondent’s support obligations during that time period were not commensurate to his rise in income. He can comfortably afford to pay retroactive support.
[78] Bastarache J.’s comment at para. 113 of D.B.S. v. S.R.G., which the Court in Kerr v. Baranow adapted to fit the spousal support context at para. 212, is applicable here: “[the claimant] who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award.” This is not a case where the claimant already enjoyed the advantages that an increased level of support would have allowed.
[79] Having in mind the unusual circumstances of this case, I am satisfied that there is an entitlement to spousal support both on compensatory and non-compensatory grounds. The amount must take into account the factors listed above, as well as the Spousal Support Advisory Guidelines: Beninger v. Beninger, 2007 BCCA 619. See also: J.M. v. L.M., 2008 BCSC 1235. In the circumstances, the appropriate spousal support award is $1,500 per month for a further five years.
[80] In consideration of the need of the claimant, the parties’ respective incomes, the current and prospective financial position of the respondent, the circumstances surrounding their marriage and the events following the separation, retroactive support of $24,000 is ordered. This is based on $1,500 per month for 16 months. This amount is not a hardship to the respondent.
[81] The respondent’s case is based on the events since the last hearing before Madam Justice Ross. The allegations of the respondent are that since September 2010, the claimant has “refused to comply” with the order of Shabbits J. The respondent’s evidence is that he had not seen Malcolm since September 17, 2010. He has tried to speak to him on the telephone, and has been unsuccessful in making contact.
[82] Malcolm’s grades have suffered in the meantime. His December 2010 report card disclosed a “fail” in one course and an “incomplete” in two other courses. The respondent alleges that this is a result of the extended separation from his father.
[83] The respondent also points to the fact that the claimant travelled to California in the fall of 2010 and that Malcolm missed “almost a week of school” as a result.
[84] Finally, the respondent says that the claimant typically does not disclose difficulties Malcolm is having until Court proceedings have commenced.
[85] Ms. Lockwood deposes that Malcolm refuses to visit the respondent. He has told his mother that Mr. Crowe yells at him and does not listen to him or recognize his feelings. She said she has done what is within her power to have Malcolm visit Mr. Crowe.
[86] She deposed that in May and June 2010, the respondent asked her to keep Malcolm during access periods and that she complied with this. She further deposed that in September 2010, she told Malcolm that he needed to continue to visit with his father. She said in her affidavit, and I accept:
It is my wish that the respondent and I co‑parent our children as a team. The endless litigation is damaging to our children.
I have spoken to Malcolm several times about visiting the respondent. I wanted him to visit with him at Christmas and I wanted the respondent to come in and talk to him when he dropped by with Christmas gifts for the children. I have told Malcolm that he needs to resume visits with his father, and he said he will go visit him this weekend for an hour or two. I suggested to Malcolm that they could go test drive cars or do something fun. I will call the respondent and try my best to arrange a short visit for the weekend.
[87] Ms. Lockwood denies that she fails to keep Mr. Crowe up to date, as the joint guardianship requires. On October 1, 2010, she forwarded an email from Malcolm’s grade 9 teacher. There are other exchanges between the claimant and the respondent concerning the need for tutoring.
[88] Ms. Lockwood agrees that Malcolm was absent due to illness. This occurred when the claimant was visiting friends in California. She left Malcolm in the care of his 25‑year old sister, Heidi.
[89] The evidence falls far short of establishing a breach of the order of Mr. Justice Shabbits.
[90] I am satisfied that Ms. Lockwood agrees that it is in the best interests of Malcolm that he see his father regularly, and have a good relationship with him. She has not been successful in bringing this about. Any shortcomings on her part in this regard do not amount to contempt.
[91] Should there be a change in custody? The position of the respondent is that Malcolm’s difficulties are all a result of the poor parenting on the part of the claimant. The respondent argues that if custody were with him, Malcolm’s difficulties would come to an end.
[92] The evidence does not establish that. Malcolm is a troubled child. No doubt the endless litigation between his parents has complicated his situation. But I am not satisfied that there is any reason to place Malcolm in the respondent’s custody.
[93] The claimant argued that there ought to be a new s. 15 report from Dr. Aubé or a “Views of the Child” report. In the absence of agreement between the parties, I am not prepared to make such an order.
[94] Finally, the claimant argued that the respondent and Malcolm ought to proceed to engage in counselling. The respondent agreed with that suggestion and it is so ordered.
[95] To summarize:
(a) child support in the amount of $1,618 is ordered. Special and extraordinary expenses shall be shared on a 90%-10% basis. The respondent is also directed to pay retroactive child support of $27,000;
(b) spousal support of $1,500 per month for 60 months is ordered. There will be retroactive spousal support of $24,000;
(c) the application for a finding of contempt is dismissed;
(d) there is no change in the custody order;
(e) the respondent is directed to engage in counselling with Malcolm.
[96] The claimant is entitled to costs at Scale B.
“Kelleher J.”