IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Burseth v. Burseth,

 

2017 BCSC 2076

Date: 20171116

Docket: E22283

Registry: Fort St. John

Between:

Rory Shannon Burseth

Claimant

And

Dusty Corinne Burseth

Respondent

Before: The Honourable Mr. Justice Marchand

Reasons for Judgment

Rory Shannon Burseth appeared on his own behalf:

 

Counsel for the Respondent:

N.R. Bauder

Place and Date of Trial:

Fort St. John, B.C.

September 27 - 29, 2017

Place and Date of Judgment:

Fort St. John, B.C.

November 16, 2017

INTRODUCTION

[1]             Shannon Burseth and Dusty Burseth, who I will refer to as Dusty Clarke, were married in 2001 and separated in 2014. They have two children: Cameron who is six and Collin who is four.

[2]             While together, the couple lived in the Pink Mountain area northwest of Fort St. John where they jointly operated a cattle ranch and where Mr. Burseth also had contract work as a gas plant and field operator for various oil and gas companies. The family did quite well financially.

[3]             Following their separation, Ms. Clarke moved with the children, first to Dawson Creek and then to Bessborough, a small community close to Dawson Creek. Ms. Clarke works part-time at a chiropractic office in Dawson Creek and part-time doing home inspections in the area. Mr. Burseth has remained in the Pink Mountain area. He lives on the former family property, which the parties sold to his parents after their separation. Mr. Burseth continues to work as a contract operator. The drive between Bessborough and where Mr. Burseth lives takes about three hours.

[4]             Under the terms of an order made at a Judicial Case Conference (“JCC”) on November 19, 2015, Mr. Burseth is to have parenting time with the children two weekends out of three. The parties exchange the children in Fort St. John.

[5]             Very soon after their separation, the parties successfully divided their family property and debt by selling their land, cattle and farm equipment and dividing the proceeds. Ms. Clarke received $190,000. Since then, the financial circumstances of both parties have declined.

[6]             Due to the downturn in the oil and gas industry, the housing market is very slow such that Ms. Clarke’s home inspection company has never turned a profit. As well, many wells and plants have been shut-in in the Pink Mountain area such that Mr. Burseth’s income has greatly decreased. Over time, Mr. Burseth’s support payments to Ms. Clarke have also decreased from $4,000 per month to $1,000 per month. Ms. Clarke currently supports herself and the children on annual income of approximately $16,000 per year plus Mr. Burseth’s support payments and the Canada Child Benefit.

[7]             The main issue before me is Ms. Clarke’s application under the Family Law Act (“FLA”) to relocate the children to Sorrento where she can live with her sister rent-free until she re-establishes herself. Ms. Clarke believes that she and the children will benefit from Ms. Clarke having greater employment opportunities in the Thompson-Shuswap-Okanagan region and also greater stability through having the reliable support of her sister. Mr. Burseth believes that the children’s best interests will be served by living with him in the Pink Mountain area. Mr. Burseth believes that any relocation to Sorrento will destroy his relationship with the children. If the children reside primarily with him, Mr. Burseth does not seek child support.

[8]             Regardless of where the children reside, the parties seek orders regarding parenting arrangements. There are also a number of financial issues. The parties both seek a divorce order and consent to an order changing Ms. Burseth’s name back to Clarke. Though not specifically addressed in submissions, the pleadings indicate that the parties agree to joint custody and/or guardianship of the children. Mr. Burseth does not dispute his arrears of spousal support.

[9]             The state of the pleadings and history of proceedings also leave me with some technical issues to address before dealing with the relief sought by the parties.

ISSUES

[10]         The issues are:

1.     Which legislation applies to the parenting and financial issues raised by the parties?

2.     Where should the children reside?

3.     Regardless of where the children reside, what parenting arrangements are in the children’s best interests?

4.     If the children reside primarily with Ms. Clarke, what child support should be paid by Mr. Burseth?

5.     What, if any, spousal support should be paid by Mr. Burseth?

6.     Is Ms. Clarke entitled to retroactive special expenses and, if so, in what amount?

7.     How should the parties share future special expenses?

8.     Given the financial state of flux that both parents are in, should the financial orders be subject to review?

9.     Should the successful party be awarded costs?

ANALYSIS

Which Legislation applies?

[11]         Mr. Burseth’s Notice of Family Claim seeks relief exclusively under the Divorce Act while Ms. Clarke’s counterclaim seeks relief under both the Divorce Act and FLA. Though Ms. Clarke did not amend her counterclaim to deal with her proposed relocation, she gave notice under the FLA and identified the issue in her trial brief. The parties came to trial prepared to deal with the primary issue of whether Ms. Clarke should be permitted to relocate the children to Sorrento.

[12]         In cases where both the Divorce Act and FLA are pled, the Divorce Act is “paramount” and, therefore the “preferred” legislation: Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at paras. 18-21. Nevertheless, in this case, the JCC Order dealt with “parenting time” which is an FLA concept, Ms. Clarke gave notice in accordance with the FLA and Mr. Burseth did not object to proceeding under the FLA. In the circumstances, I allowed Ms. Clarke to make an oral application to relocate the children under the FLA.

[13]         In the circumstances, I also consider it consistent, convenient and appropriate to deal with all parenting and financial issues under the FLA. I will, therefore, be recognizing that, by definition, the parties are guardians of the children under the FLA and will be making orders regarding their parenting time and parental responsibilities. I will not be making orders for custody and access under the Divorce Act.

[14]         Ms. Clarke’s counterclaim did not seek a name change but, in the circumstances, I also allowed Ms. Clarke to make an oral application to do so.

Where should the children reside?

The statutory scheme for relocation under the FLA

[15]         Applications by guardians to allow or prohibit the relocation of children are dealt with under Division 6 of Part 4 of the FLA. The relevant sections provide as follows:

Notice of relocation

66  (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of

            (a) the date of the relocation, and

            (b) the name of the proposed location.

Child may be relocated unless guardian objects

68  If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation.

Orders respecting relocation

69  (1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37(1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37(2), the factors set out in subsection (4)(a) of this section.

(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(a) the relocating guardian must satisfy the court that

(i)         the proposed relocation is made in good faith, and

(ii)              the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and

(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(c) whether notice was given under section 66 [notice of relocation];

(d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted.

If relocation permitted

70  (1) If the court makes an order under section 69 [orders respecting relocation] that permits a child's relocation, the court may make any of the following orders:

(a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable;

            …

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order.

[16]         Section 69 refers to s. 37 of the FLA which deals with the best interests of children. Section 37(1) provides, in part, that in making orders respecting guardianship or parenting arrangements, the court must consider the best interests of the child only. Section 37(2) requires the court to consider all of a “child's needs and circumstances”, including a non-exhaustive list of factors, to determine what is in the best interests of a child. Section 37(3) provides that an order “is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.”

Has Ms. Clarke proposed to relocate the children in good faith?

[17]         To determine whether a relocating guardian is acting in good faith, s. 69(6) sets out a non-exhaustive list of factors that the court must consider. Regarding factors (a) and (b), I will focus on Ms. Clarke’s subjective belief and whether that belief is objectively reasonable: R.(L.J.) v. R.(S.W.), 2013 BCSC 1344 at para. 71.

[18]         One or more of the s. 69(6) factors may be relevant to the question of what is in the best interests of the children but, at this stage, I am only determining whether Ms. Clarke is acting in good faith such that she can take advantage of the presumption in s. 69(4) that the proposed relocation is in the best interests of the children. I will consider the best interests of the children more broadly at a subsequent stage.

Factor (a): the reasons for the proposed relocation

[19]         Ms. Clarke loves the Peace River region, her employment and her home in Bessborough but wishes to relocate for two main reasons. Ms. Clarke believes she will have greater employment opportunities and greater support in Sorrento.

[20]         Ms. Clarke has a strong educational background. Between 1996 and 1998, Ms. Clarke completed two years of academic studies at Okanagan University College in Kelowna. Between 1998 and 2000, she completed a two-year diploma program in Recreation, Fish and Wildlife Technology at Selkirk College in Castlegar. In 2015, after her separation from Mr. Burseth, she obtained a Home Inspector Training Certificate.

[21]         Ms. Clarke also has a varied and strong employment history. In 2000 and 2001, she worked part of the year as a cook and trail guide in the Tuchodi Valley and part of the year as a Wildlife Technologist in Fort St. John. From 2003 to 2014, she co-owned and co-operated a commercial cattle operation with Mr. Burseth. From 2006 to 2014, Ms. Clarke provided administrative assistance to Mr. Burseth’s company through which he worked as a contract operator. Since 2016, Ms. Clarke has worked part-time in a largely administrative role at South Peace Chiropractic and part-time as a home inspector.

[22]         Ms. Clarke typically works 20 hours per week on Mondays through Wednesdays at South Peace Chiropractic. This is partly by design so that Ms. Clarke can be available to complete home inspections on Thursdays, Fridays and some Saturdays. As will be seen, Ms. Clarke is on track to earn approximately $17,000 in 2017 for purposes of the Federal Child Support Guidelines (the “Guidelines”).

[23]         At the time of her separation from Mr. Burseth, the housing market in the Peace River region was robust and a local home inspector was retiring. Getting into the home inspection field seemed like a good idea. Ms. Clarke had enjoyed the process of constructing a new family home with Mr. Burseth and felt she would enjoy and do well as a home inspector. Unfortunately, the housing market in the region has been hurt by the downturn in the oil and gas industry and her business prospects have been hurt by the arrival of new competition. Ms. Clarke’s home inspection business has never turned a profit.

[24]         Ms. Clarke has made diligent efforts to improve her financial circumstances in the north. Beyond her efforts to grow her business, she has applied for a great number of administrative, technologist, marketing and other positions, all without success. Other than occasionally filling in for others, there is no additional work available for her at South Peace Chiropractic.

[25]         While Ms. Clarke does not know the level of competition in the home inspection field in the Thompson-Shuswap-Okanagan region, she presented real estate data showing that there is an active real estate market in the area. She believes there is greater opportunity for her home inspection business if she lives in Sorrento. She has also made a fairly significant number of employment inquiries in the region, to date, without success. Ms. Clarke believes she will have greater success searching for employment once she has actually relocated and notes that the economy in the Thompson-Shuswap-Okanagan region of the province is much more diverse and has more job postings than the Peace River region. Ms. Clarke’s sister has offered her rent-free accommodation until she can re-establish herself.

[26]         In terms of support, Ms. Clarke has extended family in and around Fort St. John and Pink Mountain but there was no evidence that she is particularly close to these family members nor that they have been or would be in a position to provide much support to Ms. Clarke. As a result, Ms. Clarke has to have the children in full-time day care in order to maintain her employment and keep herself available for home inspection work.

[27]         If Ms. Clarke is permitted to relocate to Sorrento, her sister, brother-in-law and, at times, their adult children would be available to care for the children. This would give Ms. Clarke greater flexibility to build her business and/or pursue other employment. In addition, Ms. Clarke’s mother is likely to relocate from Quesnel to live closer to Ms. Clarke to provide additional support. Ms. Clarke mentioned in cross-examination that her mother may relocate to the Dawson Creek area if Ms. Clarke is not permitted to relocate the children to Sorrento, however, the level of support that Ms. Clarke’s mother would provide in either Sorrento or Bessborough was not explored in any detail. Ms. Clarke denied that her mother intends to be a full-time babysitter for the children and was clearly focussed on the level of support she will be receiving from her sister.

[28]         Ms. Clarke was candid that she decided to relocate this past spring because she has “had enough” in her current situation. She finds all of the back and forth with Mr. Burseth to be stressful and she is frustrated by Mr. Burseth regularly changing the parenting schedule to accommodate his employment. Being three hours away, Mr. Burseth and his family are unable to support Ms. Clarke, leaving her unable to work to her full potential. Ms. Clarke is finding it “hard to move forward”.

[29]         On the evidence, it is clear that Ms. Clarke has made sincere and diligent efforts to support herself and the children in the Peace River region but, partly due to the downturn in the economy and partly due to a lack of family support, has been unable to do so. I accept that there would be greater support and opportunity for her in the Thompson-Shuswap-Okanagan region which has a larger population base and more diverse economy and where she will have reliable family support. In short, I find that Ms. Clarke’s subjective reasons for the proposed relocation are objectively reasonable.

Factor (b): whether the proposed relocation is likely to enhance the general quality of life of the children and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities

[30]         The children currently enjoy a very good quality of life. They are healthy, inquisitive and energetic. They love the outdoors. When they are with their mother, they live in a modular home on a rural property with access to Ms. Clarke’s horses. They have excellent day care and attend a school and pre-school which meet their needs. When they are with their father, they live in an “off-grid” log cabin which is spacious and fully equipped with modern amenities. They spend time with their paternal grandparents, enjoy the outdoors and have exposure to the ranching way of life.

[31]         If they relocate to Sorrento, they will live with their mother, aunt and uncle on an acreage with animals. They will attend a good school and pre-school. They will have access to good day care when needed and be supported by their aunt, uncle and cousins. They will, of course, be a very long distance from their father and paternal grandparents but, with appropriate parenting arrangements, will maintain their connection to their father, his family and the ranching way of life. They will no longer have to travel regularly on weekends on highways in the north which can be treacherous, depending on the weather and presence of wildlife. Ms. Clarke has done a very good job as the primary parent and I am confident that she would ensure the children enjoy a very good quality of life in Sorrento.

[32]         Ms. Clarke’s subjective belief that the children’s quality of life will be enhanced is based mostly on her financial circumstances.

[33]         The truth is that both parties’ financial circumstances are deteriorating. Given the financial realities facing both parties, Ms. Clarke’s subjective belief that the children’s new life in Sorrento would be enhanced must be considered in relation to her financial prospects in Sorrento.

[34]         Both Mr. Burseth and Ms. Clarke say they are “broke”. Mr. Burseth’s income has declined such that he is falling into arrears on his current support payments to Ms. Clarke. His future support payments are going to be reduced. Ms. Clarke has depleted the money she received from the division of family assets and, going forward, will have to make ends meet with less support from Mr. Burseth. Neither parent is going to be able to maintain the lifestyle they enjoy in their current locations. It is conceivable that the parties would even have a hard time managing the travel costs of the current parenting time regime.

[35]         As already indicated, I accept that Ms. Clarke will have greater support and opportunity in the Thompson-Shuswap-Okanagan region. As such, Ms. Clarke’s subjective belief that her emotional and financial well-being will be enhanced by the proposed relocation is objectively reasonable. By extension, Ms. Clarke’s subjective belief that the children’s quality of life will also be enhanced by the proposed relocation is also objectively reasonable.

Factor (c): whether notice was given under section 66

[36]         By letter dated May 27, 2017, Ms. Clarke gave Mr. Burseth more than the required 60 days’ written notice that she proposed to relocate the children to Sorrento between August 7 and 15, 2017. Though not required, Ms. Clarke also gave written notice to Mr. Burseth’s parents.

[37]         Ms. Clarke has gone even further. Though the obligation was on Mr. Burseth under s. 68 of the FLA to make an application to prohibit the relocation, he failed to do so. To her credit, Ms. Clarke has sought court approval for her proposed relocation.

Factor (d): any restrictions on relocation contained in a written agreement or an order

[38]         There is no restriction on relocation contained in any written agreement or court order.

Conclusion on Good Faith

[39]         Though Ms. Clarke decided to relocate the children as a result of having “had enough” of the current parenting arrangements, I accept her testimony that she has not done so to harm Mr. Burseth and/or his relationship with the children. I accept her testimony that she wishes to relocate to have greater economic opportunity and greater support from her family, both of which will enhance her financial and emotional well-being. I accept her subjective belief that life will be better for the children and her in Sorrento is objectively reasonable. She has gone beyond providing the required written notice to Mr. Burseth and has sought court approval for her proposed relocation. Her proposed relocation does not run counter to any written agreement or court order.

[40]         On all of the evidence, I conclude that Ms. Clarke is pursuing her proposed relocation with the utmost good faith.

Has Ms. Clarke proposed reasonable and workable arrangements?

[41]         When Ms. Clarke delivered her written notice of relocation to Mr. Burseth, she also provided a written “Suggested Parenting Schedule”. Ms. Clarke suggested that Mr. Burseth have the children in his care on alternate Christmas and spring breaks as well as two weeks in the summer which would grow to a month as the children got older. Ms. Clarke suggested that the parties equally share travel costs. Finally, Ms. Clarke suggested that Mr. Burseth could have “regular communication and parenting time with the children in Sorrento”. Ms. Clarke invited input from Mr. Burseth regarding her proposal.

[42]         During submissions, Ms. Clarke expanded her proposed parenting arrangements to include terms similar to those I ordered in Cannon v. Cannon, 2017 BCSC 1462, which included one long weekend per month, half of the Christmas break, all of spring break, alternating two week periods in the summer, liberal and generous time in the children’s new location, liberal, and generous electronic communications and any other time the parties could agree.

[43]         Mr. Burseth raises understandable concerns with respect to both proposals.

[44]         The two-day drive between Pink Mountain and Sorrento would represent a substantial barrier to Mr. Burseth having regular parenting time with the children. While there are same day flights from Fort St. John to either Kamloops or Kelowna, these would still involve substantial driving time on either end of the flights plus significant expense. Mr. Burseth testified that he certainly would spend time with his children if he was in the south but there was no evidence to suggest that would ever happen with any regularity. Mr. Burseth says long weekends are unrealistic and that, under either proposal, he would not have adequate time with his children to preserve his relationship with them. Mr. Burseth also testified that his income is declining, which would make it difficult for him to afford all of the travel involved under either plan.

[45]         The legislation only asks whether the relocating guardian has proposed reasonable and workable arrangements to “preserve” the children’s relationship with the other guardian and other important people in the children’s lives. This does not mean that the arrangements must ensure that the relationship between the children and the other guardian remains the same.

[46]         That said, in my view, Ms. Clarke’s initial proposal does not go far enough to preserve the children’s close relationship with their father. Two periods of time totalling three or four weeks per year plus infrequent parenting time when Mr. Burseth is in the Sorrento area would not be adequate in the circumstances of this case.

[47]         As for the proposal made during submissions, I do not believe it is workable. With all due respect, it is unrealistic to think that Mr. Burseth would be able to exercise his parenting time with the children on any long weekends, given the distances involved. It would also be hard for the parties to afford the long and frequent exchanges.

[48]         Though the two proposals advanced are either not reasonable or not workable, it is apparent that Ms. Clarke understands the importance of preserving the children’s relationship with Mr. Burseth and that she is flexible with respect to making sure that occurs. In my view, there is a middle ground between Ms. Clarke’s two proposals which would be a reasonable and workable means to preserve the children’s relationship with Mr. Burseth. The middle ground would involve Mr. Burseth enjoying parenting time with the children for half the Christmas break, all of the spring break, one month during the summer, generous time in Sorrento, generous electronic communications, and any other time the parties could agree.

Conclusion on Onus

[49]         Having concluded that Ms. Clarke has proposed to relocate the children in good faith and that there are reasonable and workable arrangements to preserve the children’s important relationship with Mr. Burseth, under s. 69(4)(b), I must consider the proposed relocation to be in the children’s best interests unless Mr. Burseth satisfies me otherwise.

Is the proposed relocation in the best interests of the children?

[50]         I now move on to consider more broadly the best interests of the children. In particular, I must consider whether Mr. Burseth has satisfied me that the proposed relocation is not in the children’s best interests.

[51]         The legislation requires that I consider the factors in s. 69(4)(a) in addition to those found in s. 37(2). As I have already considered the factors in s. 69(4)(a), I will now consider the non-exhaustive list of factors in s. 37(2).

Factor (a): the children's health and emotional well-being

[52]         As mentioned, the children are healthy, inquisitive, energetic and love the outdoors. They are adored by and closely bonded to both of their parents. They are lucky that both of their parents provide them with plenty of opportunity to be outdoors and active.

[53]         The children have had some struggles since the separation and at transitions. Mr. Burseth and his witnesses say the children are perfectly happy when they are with him and are sad to leave at the end of his parenting time. Ms. Clarke says the children worry when Mr. Burseth does not exercise his regularly scheduled parenting time due to his work commitments. Ms. Clarke says that it “throws” the children not to have a consistent parenting time schedule. Ms. Clarke also says that the children have a hard time after Mr. Burseth’s parenting time. She says the children break down, cry, scream and have stomach problems after spending time with their father.

[54]         It is apparent that the children are aware of ongoing conflict between their parents. Their behaviours are consistent with being caught in the middle of a dispute they wish would end and not having a predictable parenting schedule. The order I will be making will help to deal with these issues. I also expect improvements as the children mature.

[55]         The real issue is whether the children’s health and emotional well-being will be better served by continuing to reside primarily with their mother or by moving to live with their father. In my view, the answer is clear. It will be best for the children’s health and emotional well-being to remain in their mother’s primary care.

[56]         Ms. Clarke has done an excellent job as the primary parent but she can no longer make ends meet in her current situation. There is a stark choice that needs to be made. Either the children will be living with their mother in Sorrento or their father in Pink Mountain. Given that there is a big move, one way or the other, in the children’s immediate future, the children’s health and emotional well-being will be best served by remaining with the person who has primarily cared for them since they were born.

[57]         A big move plus the loss of close contact with their primary parent would not be in the children’s best interests. This factor favours Ms. Clarke’s proposed relocation.

Factor (b): the children's views, unless it would be inappropriate to consider them

[58]         Cameron and Collin are too young to be informed of, let alone involved in, any decision regarding where they will be living. Unfortunately, they have become aware of the possibility of moving with their mother.

[59]         Both parties deny having spoken to the children about Ms. Clarke’s proposed relocation and blame the other for having done so. It may be that the children have inadvertently overheard adult conversations at one or both of their parents’ homes. Either way, only Cameron has expressed a view regarding the proposed move. He has indicated that he does not want to move because his father would be sad. He says he wants to live at “home”, meaning on the ranch in Pink Mountain.

[60]         Given his age, I am unable to give Cameron’s views much weight.

Factor (c): the nature and strength of the relationships between the children and significant persons in the children's lives

[61]         The two most important relationships in the children’s lives are clearly their relationships with their mother and their father. As indicated, Mr. Burseth and Ms. Clarke adore their children and are very closely bonded with them.

[62]         In terms of extended family, the evidence satisfies me that the children have a close bond with Mr. Burseth’s parents. Because of geography, the children are not as closely bonded to Ms. Clarke’s mother, sisters and her sisters’ families. The children have less critical bonds with a number of cousins on both sides of their family in the Peace River region.

[63]         If the children relocate with their mother, appropriate parenting arrangements can be made to preserve the children’s relationship with their father, their paternal grandparents, their other extended family in the Peace River region, and the ranching way of life. While the frequency and number of days of parenting time with Mr. Burseth will be reduced, the length and quality of their time with him, as well as their paternal grandparents and other extended family in the Peace River region, will increase. As well, the children will benefit from having greater contact with Ms. Clarke’s mother, sisters and her sisters’ families in and around Sorrento.

[64]         If the children move to live primarily with their father, they will not be able to adequately maintain their bond with their primary caregiver.

[65]         Given the choice that must be made, this factor favours allowing Ms. Clarke’s proposed relocation.

Factor (d): the history of the children's care

[66]         Both parties have been actively involved in the children’s care.

[67]         Since birth, Ms. Clarke has been the children’s primary caregiver. She breast-fed the children and, though she contributed to the running of the ranch, had a traditional role within the household. She has always been the person primarily responsible for such things as feeding, changing, bathing and disciplining the children and meeting their medical needs. Mr. Burseth acknowledges that Ms. Clarke has been a good mother.

[68]         When the family was together, Mr. Burseth worked hard as an operator and also on the ranch. He had a number of camp jobs which kept him away from home. The parties’ recollections of how much time Mr. Burseth spent at work and how much he contributed at home differ. I do not find it necessary to resolve the conflict in the evidence. I can simply say I am satisfied that Mr. Burseth helped out when he was home and, in particular, was involved in bathing, changing and disciplining the children while the couple was together.

[69]         When the parties separated, Collin was only ten months old and still breast-feeding. Immediately after the separation, Mr. Burseth exercised regular parenting time with Cameron but, because of his age and needs, not Collin. For the first year after separation, Mr. Burseth saw Collin at exchanges and had him for occasional short outings such as shopping. Since Collin turned two, Mr. Burseth has had both boys in his care for many weekends and for alternating weeks during the summer of 2016.

[70]         While the children have been in his care, Mr. Burseth has made some mistakes. For example, he gave one of the children an over-the-counter product to help with a stomach problem, despite that product not being suitable for children.

[71]         Ms. Clarke complains that Mr. Burseth often returns the children dirty, tired, and hungry. Ms. Clarke is concerned that Mr. Burseth allows the children to handle firearms, to be close to firearms that are being discharged without hearing protection, and to ride ATVs without helmets. Ms. Clarke is also concerned about Mr. Burseth’s child care arrangements. Ms. Clarke says that Mr. Burseth’s parents are not suitable caregivers because they have a problem with alcohol. Ms. Clarke also says Mr. Burseth does not inform her when he leaves the children in the care of others.

[72]         I accept Mr. Burseth’s testimony that he now understands the importance of giving the children medical-related products only in accordance with the product labels and that he ensures the children wear helmets when riding ATVs, and have hearing protection when they are close to firearms being discharged.

[73]         I accept that, when the children have been returned to Ms. Clarke dirty, hungry, and/or tired, it is primarily because of the timing of the exchanges and activities the children engage in with family and friends on their way from Pink Mountain to the exchanges. I also note that Ms. Clarke has seen some recent improvement in the condition of the children when she gets them back from Mr. Burseth.

[74]         I accept the testimony of Mr. Burseth and his witnesses that firearms are a necessary part of life in the Pink Mountain area and that Mr. Burseth takes firearms safety seriously.

[75]         Finally, I accept the testimony of Mr. Burseth and his witnesses that Mr. Burseth’s parents are responsible caregivers who do not indulge when they are caring for the children.

[76]         Regarding others providing child care to the children, I do not share Ms. Clarke’s concerns. I am confident that Mr. Burseth only leaves the children in the care of appropriate caregivers. I will, however, make a conduct order to ensure Mr. Burseth informs Ms. Clarke of any caregivers who are providing overnight care for her children. Given Ms. Clarke’s concerns about Mr. Burseth’s use of alcohol and both parties’ concerns about the alcohol use of the other’s family, I will also make a conduct order to ensure the children are always in the care of a sober adult.

[77]         In my view, Mr. Burseth has demonstrated that he can meet the needs of the children during his parenting time on weekends and holidays. As I look into the future, however, only Ms. Clarke has a workable plan to meet the children’s broader needs and, in particular, their educational needs.

[78]         Ms. Clarke has demonstrated that she can work and get the children to school and/or pre-school. She has and will continue to live in a community that has good schools and pre-schools as well as readily available day care. In Sorrento, she will be living with her sister and family who can provide any required help with the children to enable Ms. Clarke to find and maintain good employment.

[79]         On the other hand, there is no school close to Mr. Burseth’s remote location. The closest school is in Wonowon which is an hour’s drive away with good weather and road conditions. There is no school bus from where Mr. Burseth lives to Wonowon. Mr. Burseth is smart but only has a partial grade six education. He does not have internet access and is not in a position to homeschool the children. In fact, Mr. Burseth did not even suggest homeschooling as an option. Rather, Mr. Burseth’s original plan was to board the children in Wonowon during the week. He subsequently suggested that he would live with the children in Wonowon while the children are in school. Mr. Burseth did not provide any specifics and it is not clear to me how Mr. Burseth could both live in Wonowon with the children and either continue his work as an operator or go back to ranching as he has proposed.

[80]         I do not question Mr. Burseth’s sincere belief that it would be best for the children to live with him in Pink Mountain but he does not have a realistic plan to meet all of the children’s needs.

[81]         This factor heavily favours Ms. Clarke’s proposed relocation.

Factor (e): the children's need for stability, given the children's ages and stage of development

[82]         Children of all ages need stability in order to feel secure and thrive. In this case, Cameron has struggled with anxiety and has a heightened need for stability compared to most children his age.

[83]         There is about to be a big change for the children, one way or the other, so some short-term instability in their living and parenting time arrangements is unavoidable. In my view, it will be critical to minimize the disruption by maintaining the children’s connection to their primary caregiver. Ms. Clarke is the one person who is in the best position to help the children make the transition to a new living situation.

[84]         In addition, if I approve the relocation, Mr. Burseth would not have as many days with his children but his parenting time would involve longer periods of time, would be entirely predictable, and would involve far fewer transitions. I would not expect Mr. Burseth to ask for many, if any, changes to his future parenting time. I expect the future parenting time arrangements would be very stable.

[85]         This factor favours allowing Ms. Clarke’s proposed relocation.

Factor (f): the ability of each guardian to exercise his or her responsibilities

[86]         I have already found that both parties are capable of meeting their children’s basic needs. I will now focus on their ability to exercise their parental responsibilities.

[87]         Section 41 of the FLA sets out a list of parental responsibilities that may be allocated between a child’s guardians. The items in the list focus on the decision-making of guardians that is necessary to nurture a child’s development.

[88]         The parties seek an order for joint guardianship under the FLA. In order to exercise their parental responsibilities effectively, Mr. Burseth and Ms. Clarke will have to communicate with each other regularly, politely and cooperatively. Unfortunately, to this point, they have not always been able to do so.

[89]         Ms. Clarke complains that Mr. Burseth does not communicate with her enough and discounts the concerns she raises by saying “Quit trying to build a case against me.” On the other hand, Mr. Burseth wishes Ms. Clarke would not question his parenting as he does not question hers.

[90]         With appropriate conduct orders, I consider that both parties will be able to exercise their parental responsibilities appropriately. This factor is, therefore, neutral.

Factor (g): the impact of any family violence on the children's safety, security or well-being, whether the family violence is directed toward the children or another family member

[91]         Ms. Clarke raises family violence concerns.

[92]         Ms. Clarke says she decided to leave Mr. Burseth because she found him to be intimidating and she became fearful of him. Ms. Clarke recounted that, just prior to their separation, Mr. Burseth was drinking heavily and holding his firearms after she had gone to bed. She says he told her more than once to “get the fuck out of the house” and also that only he would be raising the children. She took the latter comment to be a threat and left to live with her sister in Sorrento.

[93]         More recently, Ms. Clarke says that Mr. Burseth gets into “dark moods” which affects her ability to talk with him about the children. During one such mood, Ms. Clarke says Mr. Burseth texted her to say he had shot two of their dogs and sent her a photograph of a puppy.

[94]         Ms. Clarke also testified that Mr. Burseth slapped one of the boys on one occasion.

[95]         Mr. Burseth mostly denies Ms. Clarke’s allegations. Mr. Burseth points out that Ms. Clarke returned with the children from Sorrento to live with him for about a month after she says she was so fearful of him. He also says that he had to put down two of the family’s dogs and did so in the way that is customary on a ranch. He then informed Ms. Clarke and sent her a photograph of the new puppy he got for the boys.

[96]         Both Ms. Clarke and Mr. Burseth testified with apparent sincerity and I found them to generally be credible and reliable witnesses. I was impressed that, at times, each gave the other credit and, at times, both made admissions that were contrary to their own interests. For the most part, I consider the differences in their testimony to be due to their different perspectives, the frailties of human memory, their natural desire to remember things in a favourable light, and their fears about what is going on in the other’s home when they are not there.

[97]         Fortunately, to this point in my analysis, nothing much has turned on the differences in the testimony between the parties. On the important topic of family violence, however, I consider it necessary and important to make specific findings.

[98]         I accept Ms. Clarke’s testimony about Mr. Burseth’s words and conduct before they separated. She provided believable details which did not appear to be exaggerated in any way. Ms. Clarke has a strong case without raising family violence concerns and had little to gain by sharing the details. She explained that she returned to live with Mr. Burseth only after things “cooled off”. I also find that Mr. Burseth was under stress due to the breakdown in the relationship and was drinking to the point of not remembering the things he said and did.

[99]         With respect to Mr. Burseth’s “dark moods” and texts, I accept Mr. Burseth’s testimony. No texts were produced for me to see for myself whether any “dark mood” was apparent and Mr. Burseth gave a rational explanation regarding the fact that he had to put two of the family’s dogs down. Mr. Burseth reasonably believed that Ms. Clarke wanted to receive this information.

[100]     Mr. Burseth did not deny having slapped one of his children. I accept that he has improved his parenting and now understands that resort to corporal punishment is unnecessary and inappropriate.

[101]     At this point, there is ongoing conflict between the parties, which is not uncommon given the circumstances. Despite this conflict, on all of the evidence, I am satisfied that any family violence is firmly in the past, and there are no current family violence issues that affect the children’s safety, security and well-being.

[102]     This factor is neutral.

Factor (h): whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the children and meet the children's needs

[103]     Fortunately, there are no current family violence concerns. Neither party’s ability to care for the children is impaired. This factor is neutral.

Factor (i): the appropriateness of an arrangement that would require the children's guardians to cooperate on issues affecting the children, including whether requiring cooperation would increase any risks to the safety, security or well-being of the children or other family members

[104]     Though some conflict remains between the parties, progress has been made. I do not believe any meaningful risks to the safety, security or well-being of the children or other family members will arise out of the children’s guardians having to cooperate in the future. In fact, both seek to do so and conduct orders can address any concerns regarding how the parties interact with each other.

[105]     This factor is neutral.

Factor (j): any civil or criminal proceeding relevant to the children's safety, security or well-being

[106]     There are no civil or criminal proceedings relevant to the children's safety, security or well-being. This factor is neutral.

Conclusion on Ms. Clarke’s Proposed Relocation

[107]     In reaching my conclusion on Ms. Clarke’s proposed relocation, I am keenly aware of the prohibition in s. 69(7) of the FLA against considering whether Ms. Clarke would still relocate even if her application is dismissed. This prohibition is intended to avoid the “double bind” that our Court of Appeal described in Fotsch v. Begin, 2015 BCCA 403 at para. 80, as follows:

[80]      …The “double-bind” is flawed reasoning that adopts a status quo disposition as being in the best interests of the child by assuming that the relocating parent will not move if not permitted to do so with the child or the non-relocating parent will move if the relocation application is granted, thereby avoiding a comprehensive analysis of the factors relevant to determining what parenting arrangement is best for that child. This classic double-bind was described in Spencer v. Spencer, 2005 ABCA 262 at para. 18: “[i]f a judge mistakenly relies on a parent’s willingness to stay behind ‘for the sake of the children,’ the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents.” The concern with the “double-bind” and its potential for reliance on a factual assumption in determining the best interests of a child has been extended in the jurisprudence to both relocating and non-relocating parents. See S.S.L. at paras. 28-33; Stav at paras. 62-65; and T.K. v. R.J.H.A. at paras. 58-67. Each of these decisions have underscored that a parent’s response to the double-bind question (whether the relocating parent will stay if the application is denied or the non-relocating parent will move if the application is granted) must not be relied upon as factual assumption that then permits a presumptive disposition, either against or in favour of the proposed move, as being in the best interests of the child.

[108]     The double bind does not really arise in this case. The evidence was clear that Ms. Clarke loves the Peace River region and made diligent efforts to find work that would enable her to stay. There is no evidence that Ms. Clarke is proposing to relocate the children to hurt Mr. Burseth and Mr. Burseth did not ask Ms. Clarke any questions to cast doubt on her financial motivation for moving. The entire case was advanced by both Mr. Burseth and Ms. Clarke on the basis that I would have to choose between the children relocating with Ms. Clarke to Sorrento or living with Mr. Burseth in Pink Mountain.

[109]     There is no outcome that will make both parties happy. The financial realities facing the parties leave me with the most painful of decisions. After carefully assessing all of the circumstances and, in particular, the factors listed in s. 37(2) and 69(4)(a) of the FLA, I allow Ms. Clarke’s application to relocate the children with her to Sorrento.

[110]     Both parties are able to meet the basic daily needs of their children but only Ms. Clarke has a realistic plan to meet the children’s educational needs. Given that the children will also be undergoing a significant change, one way or the other, it is best for the children’s health and emotional well-being to remain in the stable and reliable care of their primary caregiver, Ms. Clarke. Parenting time arrangements can be made to give Mr. Burseth several periods of extended time with the children each year to preserve the children’s important relationship with him, his family, and the ranching way of life.

What parenting arrangements are in the children’s best interests?

[111]     Given the long distance between the children’s new residence in Sorrento and Pink Mountain, it is critical to serve the children’s best interests by establishing workable parenting arrangements. I will start with parenting time and will then deal with parental responsibilities and conduct orders.

[112]     The most significant time I will be awarding Mr. Burseth will be one month in the summer starting the Friday after the Canada Day long weekend in July through to the Friday following the B.C. Day long weekend in August. This will allow the children to unwind with their mother after finishing their school years before travelling north to spend time with their father. It will allow for the children to re-establish their regular routine well before school resumes in the fall. A full month on the ranch will allow the children plenty of time to truly live within the routine of that way of life, and also to spend meaningful time with their grandparents and other relatives in the area.

[113]     I will also be awarding Mr. Burseth half of the Christmas school breaks, all of the school spring breaks, regular telephone or other form of electronic communication, additional parenting time in Sorrento, and any other time the parties can agree. The parenting time arrangements will be predictable and will enable Mr. Burseth to make whatever work and/or child care arrangements are needed well in advance. Overall, there will be far less travel for Mr. Burseth and the children and the parenting time will have the flexibility necessary to meet the children’s needs.

[114]     In terms of parental responsibilities, the parties have agreed to an equal sharing. Over time, I expect their communications with each other to improve. In the event that the parties cannot agree on an important parenting decision, it will be in the children’s best interests for Ms. Clarke, as the primary parent, to make the decision with Mr. Burseth having the right to return to court to challenge any decision he disagrees with.

[115]     In my view, the history of conflict between the parties has been harmful to Cameron and Collin. I will, therefore, be making conduct orders to ensure that future conflict is minimized. The terms will be set out at the end of my judgment.

What child support should be paid by Mr. Burseth?

[116]     Under s. 147 of the FLA, both parties have a duty to financially support their children. Section 150(1) of the FLA requires that child support orders be made in accordance with the Guidelines.

[117]     In cases such as this where there is a primary parent who has the clear majority of the parenting time, the Guidelines set out the monthly amount of child support that must be paid by the non-primary parent based only on the number of children, the non-primary parent’s income, and the province within which the non-primary parent earns income. In this way, the Guidelines achieve the objectives set out in s. 1 of the Guidelines, namely:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[118]     In this case, difficulty arises in determining Mr. Burseth’s income.

[119]     Mr. Burseth contracts as an operator with a number of oil and gas companies through his numbered company. When times were good in the oil and gas industry, Mr. Burseth’s company paid he and Ms. Clarke wages and/or dividends, and still had sufficient income after expenses to retain substantial earnings. It appears that some of the retained earnings were used to payout Ms. Clarke on the division of family assets.

[120]     Since the separation, there has been a downturn in the oil and gas industry and the gross income earned by Mr. Burseth’s company has declined quite sharply. Mr. Burseth has drawn down the retained earnings within the company to maintain higher personal income, in part, to make support payments to Ms. Clarke. Mr. Burseth’s last corporate financial statement shows that the retained earnings in the company were almost fully depleted by the end of 2016. It is quite likely that the company has no, or almost no, further retained earnings to draw on in the future.

[121]     Further complicating matters, many expenses claimed by Mr. Burseth’s company provide a personal benefit to Mr. Burseth and, as a result of being “gassed” by hydrogen sulphide (colloquially called “sour gas”), Mr. Burseth says he can no longer work on sour gas wells or in sour gas facilities. Another wrinkle is that Mr. Burseth works for his parents on their ranch in return for rent-free accommodation. In the future, Mr. Burseth says he intends to return to earning income from ranching. Unfortunately, Mr. Burseth did not provide any evidence regarding how much he can expect to earn in the ranching industry.

[122]     Ms. Clarke says that I should impute income to Mr. Burseth in line with his historic earnings. Despite his poor education, Ms. Clarke says Mr. Burseth has valuable experience and skills which he has an obligation to put to use. Ms. Clarke submits, without adducing evidence, that there is plenty of work in the Peace River region for people with Mr. Burseth’s skills. Ms. Clarke also questions Mr. Burseth’s claims that, for health reasons, he is unable to work in a sour gas environment in the future.

Framework for calculating income under the Guidelines

[123]     Sections 15 to 19 of the Guidelines set out the framework for calculating a parent’s income for purposes of determining child support. These sections provide, in part, as follows:

Determination of annual income

15 (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.

16 Subject to sections 17 to 20, 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 the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Pattern of income

17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

Shareholder, director or officer

18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include

(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

Adjustment to corporation’s pre-tax income

(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax…

Reasonableness of expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[124]     In order to determine an appropriate amount of income for Mr. Burseth for child support purposes, I will first calculate Mr. Burseth’s current income. I will then consider whether to impute a higher income to Mr. Burseth.

Calculation of Mr. Burseth’s current income

[125]     In this case, Mr. Burseth’s primary source of income is through his numbered company. Mr. Burseth wholly controls the company and is the only person who derives income from it. The company has no demonstrated need to retain capital to sustain the company as a viable enterprise. In these circumstances, it is appropriate to rely on the pre-tax income of the company to determine Mr. Burseth’s income for child support purposes as contemplated by s. 18 of the Guidelines. This approach ensures that income findings fairly reflect all of the money available for the payment of child support: Kowalewich v. Kowalewich, 2001 BCCA 450 at paras. 41-50; Hausmann v. Klukas, 2009 BCCA 32 at paras. 50 and 51; and Teja v. Dhanda, 2009 BCCA 198 at paras. 9-15.

[126]     In addition, in cases where a parent derives a personal financial benefit from business expenses and from performing services in exchange for items of value, s. 19 of the Guidelines empowers the court to include the pre-tax value of these personal financial benefits. The intention is to ensure that children receive the appropriate level of child support regardless of how their parents support themselves.

[127]     In E.G.P. v. S.L.P., 2009 BCSC 685, the defendant earned income from a martial arts business. Hinkson J. (as he then was) determined the defendant’s income based on the wage a person like the defendant would earn as the manager of a similar business plus the personal value of expenses written off as business expenses plus the value of services performed by the defendant or his staff in exchange for services the defendant would otherwise have had to pay for. In my view, it is appropriate in this case to follow the same approach. I will, therefore, add the personal value of various business expenses and the value of Mr. Burseth’s work for his parents to the pre-tax income of Mr. Burseth’s company to determine Mr. Burseth’s income for child support purposes.

[128]     In 2014, the year the parties separated, Mr. Burseth’s company’s financial statements show that the company entered the year with retained earnings of $100,423.36. In 2014, the company had gross income of $147,618.32 and net income of $70,868.94. The company paid dividends of $100,431.88 and wages and benefits of $28,373.23. The company also paid the following business expenses which I find had some personal benefit to Mr. Burseth: gas, oil and grease of $14,207.28; machinery and truck expenses of $12,359.84; telecommunications of $2,958.61; and meals and entertainment of $1,028.88. The company ended the year with retained earnings of $64,977.76.

[129]     In 2015, the year of the downturn in the oil and gas industry, Mr. Burseth’s company’s financial statements show that the company’s gross income declined to $92,098.98 and the net income to $56,435.30. The company paid dividends of $67,000 and wages and benefits of $209.73. The company also paid the following business expenses which I find had some personal benefit to Mr. Burseth: gas, oil and grease of $11,109.51; machinery and truck expenses of $15,172.35; telecommunications of $1,109.56; and meals and entertainment of $174.36. The company ended the year with retained earnings of $32,932.73.

[130]     In 2016, Mr. Burseth’s company’s financial statements show that the company’s gross income further declined to $77,060.00 and the net income to $50,770.77. The company paid dividends of $66,000 but no wages and benefits. The company also paid the following business expenses which I find had some personal benefit to Mr. Burseth: gas, oil and grease of $12,430.37; machinery and truck expenses of $3,870.31; and telecommunications of $686.93. There were no meals and entertainment expenses. The company ended the year with retained earnings of $10,180.50.

[131]     There appear to be some discrepancies in the retained earnings reported in the financial statements. Looking through the financial statements as a lay person, I am not sure why. I do not, however, consider the discrepancies to detract from my overall view of the circumstances or to have an impact on my calculations. The trend is clear: the income from Mr. Burseth’s oil and gas contract work is declining and he has, or has nearly, depleted all of his company’s retained earnings.

[132]     In the current year, I understood Mr. Burseth’s testimony to be that his company’s gross income will be less than half of his income from 2016. Though Mr. Burseth did not produce any accounting documents to support his testimony, for the reasons that follow, I largely believe him.

[133]     Mr. Burseth disclosed all of his company’s financial statements, ledgers and income tax returns as well as his 2016 personal notice of assessment and various bank statements. The company records clearly demonstrate the downward trend in the company’s gross earnings. The bank statements include information on his line of credit which currently has an outstanding balance of over $20,000. Comparatively, Mr. Burseth’s bank records from 2014 and 2015 show that he was carrying a very healthy positive balance of over $20,000 in his personal bank account, even after paying Ms. Clarke $160,000 towards the division of assets.

[134]     To his credit, Mr. Burseth gave testimony that was contrary to his financial interests when he corrected Ms. Clarke on his past support payments. Ms. Clarke had testified that Mr. Burseth had initially paid her $4,500 per month in support but Mr. Burseth testified that he, in fact, had initially only paid Ms. Clarke $4,000 per month.

[135]     Mr. Burseth provided believable details regarding the health consequences of having been “gassed”. His testimony was supported, albeit to a very limited degree, by a brief note from his doctor dated July 22, 2014. The doctor’s note indicated that Mr. Burseth “has experienced quite a few health problems in the last year and it is advisable that he must change his occupation and do something different...” 

[136]     Mr. Burseth also provided believable details regarding how little he is currently working. Further, Mr. Burseth’s testimony is consistent with the well-known downturn in the oil and gas industry and Ms. Clarke’s own testimony regarding her motivation for pursuing her relocation.

[137]     In the absence of current year financial documents, I am prepared to accept that Mr. Burseth’s gross and net incomes from his company will fall from their 2016 levels, but not by more than half. Doing the best I can on the information before me, I find that Mr. Burseth’s company’s net income before tax in 2017 will fall to $35,000. I also find that the business expenses with a personal benefit will decline along with the decline in Mr. Burseth’s business activities. Specifically, I find that these expenses will decline to $12,000 and that one quarter of this amount, or $3,000, will be of personal benefit to Mr. Burseth. This amount ($3,000) must be added to the pre-tax net income of the company for child support purposes. The current annual amount of income available to Mr. Burseth from his company for child support purposes is, accordingly $38,000.

[138]     Turning to the value of Mr. Burseth’s work for his parents, I have no evidence regarding the market rental rate for a 2,000 square foot home on a quarter section of land in the Pink Mountain area. I also do not have specific evidence about how many hours Mr. Burseth works for his parents. I suspect that there is not much of a rental market in the Pink Mountain area but I do note that the property was valued by the parties at $550,000 in the consent order they entered on June 12, 2015 to divide their family assets. Again, doing the best I can on the evidence before me, I find that the value of Mr. Burseth’s work for his parents is $1,500 per month or $18,000 per year.

[139]     Putting all of this together, I find Mr. Burseth’s current income for child support purposes to be $56,000 per year.

Imputing income to Mr. Burseth

[140]     In the context of this case, there are a number of principles that I must consider in determining whether to impute a higher income to Mr. Burseth. These include:

1.     The onus is on the party seeking to impute income to demonstrate that income should be imputed: Windle v. Windle, 2010 BCSC 18 at para. 88;

2.     Imputing income is a judicial exercise that requires a rational and evidentiary basis: Windle at para. 88;

3.     Imputing income does not require a finding that a parent was intentionally evading or minimizing his child support or that he was intentionally underemployed. The court only has to determine what the parent was capable of earning: Beissner v. Matheusik, 2015 BCCA 308 at para. 44, citing Barker v. Barker, 2005 BCCA 177;

4.     The parent has a duty to seek employment in a case where she is healthy and there is no reason why she cannot work: Beissner at para. 44, citing Donovan v. Donovan (2000), 190 D.L.R. (4th) 696 at para. 16;

5.     When imputing income on the basis of intentional under-employment, the court must consider what is reasonable in the circumstances. Factors include the age, education, experience, skills and health of the parent as well as the availability of work, freedom to relocate and other obligations: Beissner at para. 44, citing Donovan at para. 16;

6.     A parent cannot escape his child support obligations in furtherance of unrealistic or unproductive career aspirations: Beissner at para. 44, citing Donovan at para. 16; and

7.     Generally, a parent cannot avoid child support obligations by a self-induced reduction of income: Beissner at para. 44, citing Donovan at para. 16.

[141]     After carefully considering these principles and all of the evidence, I decline to impute a higher income to Mr. Burseth.

[142]     Mr. Burseth has a limited education and a skill set that is specific to the oil and gas industry. Mr. Burseth’s high earnings coincide with a time when the oil and gas industry was booming and his reduced earnings coincide with the downturn in the industry that began in 2015. Mr. Burseth lives in a remote location where he helps his parents with their ranching operation. Mr. Burseth is 45 so his parents, who attended court with Mr. Burseth, must be in their sixties. Mr. Burseth was exposed to sour gas which has caused him some health problems and limits his ability to work in an environment where he may be exposed to sour gas in the future. Ms. Clarke adduced no evidence concerning the availability of other work that would be suitable for Mr. Burseth and from which Mr. Burseth would earn in excess of what I have calculated. Ms. Clarke is relocating precisely because she herself is unable to find remunerative work in the Peace River region.

[143]     This is not a case where Mr. Burseth is intentionally seeking to reduce his financial obligations to Ms. Clarke. He paid her a fairly generous amount of support to help her through her training and transition following the parties’ separation. After a consent order reduced his support obligations, he did not apply to reduce his obligations further, even though he experienced a decline in his income. In fact, Mr. Burseth has drawn down his company’s retained earnings to make support payments to Ms. Clarke. Though Mr. Burseth was not able to keep up with his required support payments, he has not disputed or sought to reduce or cancel his arrears.

[144]     While Mr. Burseth has earned a very good income in the past, that reflects a fortunate confluence of circumstances that, on the evidence before me, cannot be easily replicated.

Conclusion on child support

[145]     Based on my income finding of $56,000, under the new Guidelines tables that become effective on November 22, 2017, I order Mr. Burseth to pay Ms. Clarke child support of $869 per month effective December 1, 2017.

What spousal, if any, support should be paid by Mr. Burseth?

The Legislation and the Spousal Support Advisory Guidelines

[146]     Ms. Clarke seeks prospective spousal support under Division 4 of Part 7 of the FLA. The relevant sections provide as follows:

Duty to provide support for entitled spouse

160  If, after considering the objectives set out in section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with section 162 [determining spousal support].

Objectives of spousal support

161  In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;

(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Determining spousal support

162  The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:

(a) the length of time the spouses lived together;

(b) the functions performed by each spouse during the period they lived together;

(c) an agreement between the spouses, or an order, relating to the support of either spouse.

[147]     The Spousal Support Advisory Guidelines (the “SSAG”) generate ranges for spousal support based on the age of the parties, the length of their marriage, and their incomes. The SSAG also set out a number of factors to assist the court in determining where within the range an award of spousal support should be made. Though not mandatory, the SSAG have long been recognized as providing useful guidance to courts in determining fair spousal support awards: Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 62-64; Redpath v. Redpath, 2006 BCCA 338 at para. 42 and Chutter v. Chutter, 2008 BCCA 507 at paras. 100-101.

[148]     At s. 6.1, the SSAG expressly state that “(t)he starting point for the determination of income under the (SSAG) is the definition of income under the Guidelines (meaning the Federal Child Support Guidelines).

[149]     I have already set out the relevant provisions of the Guidelines and made certain findings regarding Mr. Burseth’s income. I will now move on to make findings regarding Ms. Clarke’s income.

Ms. Clarke’s Guidelines income

[150]     Ms. Clarke’s income for 2017 is relatively easy to determine. Her gross pay plus vacation pay earned at South Peace Chiropractic to June 30, 2017 was $8,009.96. Extrapolating for a full year, I find Ms. Clarke’s employment income for 2017 to be $16,019.92.

[151]     Though Ms. Clarke has no net income from her home inspection business, she has incurred business expenses that I find have a personal benefit. In 2016, these were: fuel of $1,477.33; repairs and maintenance of $1,072.27; telephone of $657.30; and utilities of $699.80. Taking one quarter of these expenses to represent the personal value of the expenses results in additional income for Ms. Clarke for Guidelines purposes of a little less than $1,000. Using round numbers, I find Ms. Clarke’s 2017 income to be $17,000.

[152]     Looking into the future, it will take Ms. Clarke some time to find work and start earning income in Sorrento. I am prepared to find that her income will be approximately the same in 2018 as in 2017 and substantially higher after that. After all, the whole point of Ms. Clarke’s relocation is to improve her financial health and self-sufficiency. I expect Ms. Clarke’s income to at least double after 2018.

Application of the SSAG

[153]     There is both a compensatory and non-compensatory basis for awarding spousal support to Ms. Clarke.

[154]     Though she developed skills and was compensated for her contribution to the running of Mr. Burseth’s company and the couple’s ranch, Ms. Clarke gave up her fledgling career as a Wildlife Technician and also had a traditional role within the home. Ms. Clarke’s role within the home enabled Mr. Burseth to develop his business as a contract operator and earn substantial income.

[155]     The separation has also had a disproportionality negative impact on Ms. Clarke. Ms. Clarke has had primary responsibility for the children which has limited her ability to work, including when Mr. Burseth has made last minute changes to his parenting time because of his own work commitments. Meanwhile, Mr. Burseth has largely been able to continue with his work. Mr. Burseth’s declining financial health has to do mostly with the downturn in the oil and gas industry and not the breakdown of the marriage.

[156]     Finally, though Ms. Clarke has already gone through one transition period in an effort to remain in the Peace River region, that has not panned out and she requires ongoing support to make a further transition to achieve economic self-sufficiency.

[157]     Given that Ms. Clarke has received spousal support for the past three years, the SSAG produce the following range of outcomes for future spousal based on the income findings I have made:

·       Low - zero

·       Mid - zero

·       High - $111 per month for 3 to 11 more years.

[158]     There are a number of factors within the SSAG that would suggest that Ms. Clarke should receive an award that is lower in the range. These include the fact that she received a large settlement through the division of family assets and relatively generous support during her training and transition period following the separation. Maintaining an incentive for Ms. Clarke to achieve self-sufficiency would also tend to drive the award to the lower end of the range.

[159]     The strength of Ms. Clarke’s compensatory claim would support an award near the mid-point of the range. Ms. Clarke worked for and earned income from Mr. Burseth’s company and the ranch throughout the parties’ relationship. The children arrived only in the last three years of the relationship. Accordingly, while Ms. Clarke gave up her career and carried a disproportionate share of the household duties, she also developed skills and earned income during the parties’ relationship. In my view, Ms. Clarke’s compensatory claim is of mid-range strength.

[160]     The one factor that would support an award in the higher end of the range is Ms. Clarke’s level of need. Despite her best efforts, Ms. Clarke’s was unable to achieve self-sufficiency in the Peace River region and she is now in need as she enters a further period of transition.

[161]     In all of the circumstances, I consider Ms. Clarke’s current level of need to support an award of spousal support above the high end of the range provided by the SSAG but only for a relatively brief duration until Ms. Clarke has time to re-establish herself. Specifically, I order that Mr. Burseth pay Ms. Clarke spousal support of $131 per month commencing December 1, 2017 through to the end of 2018.

Is Ms. Clarke entitled to retroactive special expenses?

[162]     Section 7 of the Guidelines empowers the court to provide for one parent to pay the other an amount to cover various “special” or “extraordinary” expenses. The only special expenses that Ms. Clarke seeks in her counterclaim, relate to child care expenses she incurred as a result of her training and employment, retroactive to August 1, 2015.

[163]     Ms. Clarke’s records indicate that she has paid the following amounts, net of subsidies, for day care from August 1, 2015 to the end of September, 2017:

·       2015 - $2,190.00

·       2016 - $8,296.66

·       2017 - $7,379.05

·       Total - $17,865.71

[164]     Under s. 7(2) of the Guidelines, the “guiding principle” is that parents share special and extraordinary expenses in proportion to their incomes. The court, however, has the discretion to divide special expenses other than in proportion to the parents’ incomes in order to do justice between them in the circumstances of the case: A. v. B., 2013 BCSC 60 at paras. 41 to 84.

[165]     The leading case on retroactive child support, including retroactive special expenses, is D.B.S. v. S.R.G., 2006 SCC 37.

[166]     In D.B.S., the Supreme Court of Canada held that in determining whether to make a retroactive award, a trial court should take a holistic view and decide each case on the basis of its particular facts, balancing the payor parent’s interest in certainty with the need for fairness to the children and for flexibility. In doing this, the court should consider following factors:

1.     the reason for the recipient parent’s delay in seeking child support;

2.     the conduct of the payor parent;

3.     the past and present circumstances of the children, including the children’s needs at the time the support should have been paid; and

4.     whether the retroactive award might entail hardship.

[167]     The Court also held that once a trial court determines that a retroactive child support award will be made, the award should generally be retroactive to the date the recipient parent gave notice to the payor parent, but to no more than three years in the past.

[168]     In this case, Mr. Burseth has been aware of Ms. Clarke’s claim for child care expenses since no later than his receipt of Ms. Clarke’s counterclaim in September 2015. Ms. Clarke obtained an interim order for child support of $1,000 per month and spousal support of $700 per month on November 19, 2015. She did not seek the interim payment of child care expenses from Mr. Burseth at the same time because she thought it would be easier to simply deal with child and spousal support. In the circumstances of this case, that was not a good reason.

[169]     Mr. Burseth has not been able to keep up with his ordered child and spousal support and has fallen into arrears but that is not indicative of any misconduct on his part. He did not apply to reduce his support obligations as soon as his income dropped, has not contested his arrears, and has made full and transparent financial disclosure.

[170]     Ms. Clarke has done a good job of meeting the children’s needs, despite having to cover all of the day care costs. I recognize that she has done so by utilizing the proceeds from the division of family assets.

[171]     Finally, a retroactive award will be very difficult for Mr. Burseth to pay. He is certainly not in a position to pay any retroactive award right now and will have to make some changes in order to catch up on the arrears of support that have already accumulated.

[172]     Based on their incomes from 2015 to the present, Mr. Burseth would have to pay in the order of 80% of the retroactive child care expenses but in all of the circumstances I consider it appropriate to award Ms. Clarke 50% of her retroactive child care expenses. That is the best way, in my view, to balance all of the factors and do justice between the parties. I will set out the terms of repayment of all arrears at the end of my judgment.

[173]     Moving forward, there is no reason to depart from the usual rule that the parties share special expenses in proportion to their incomes. Rounding to the nearest 5%, I order that Mr. Burseth pay 75% of all future special expenses. Regarding extraordinary expenses for extracurricular activities, Mr. Burseth will only be required to contribute his proportionate share of the cost of such activities if he agrees to the expense in advance or is ordered by the court to do so. I will spell out the details in the terms of my order.

Should there be a review of spousal support?

[174]     Section 168(1) of the FLA empowers the court to order a review of spousal support. The subsection provides, in part, as follows:

Review of spousal support

168  (1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for

(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,

(b) the type of family dispute resolution by which the review will take place,

(c) the grounds on which a review will be permitted, and

(d) the matters to be considered for the purposes of a review.

[175]     I will be ordering the parties to make financial disclosure to each other on an annual basis so that they can make adjustments to the child support being paid by Mr. Burseth and also his proportionate contribution to special and extraordinary expenses. The parties can also apply to vary my orders regarding child support and special and extraordinary expenses if the circumstances warrant. The same approach is not, however, adequate regarding my spousal support order in the circumstances of this case.

[176]     The Supreme Court of Canada dealt with the issue of whether to make a spousal support order subject to review in Leskun v. Leskun, 2006 SCC 25 at paras. 36-38 as follows:

[36]      Review orders under s. 15.2 have a useful but very limited role. As the amicus curiae pointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment. In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3) of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order. This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act.

[37]      Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances:  Choquette v. Choquette (1998), 39 R.F.L. (4th) 384 (Ont. C.A.). Otherwise, as the amicus curiae fairly points out, the applicant may have his or her application dismissed on the basis that the circumstances at the time of the variation application were contemplated at the time of the original order and, therefore, that there had been no change in circumstances. The test for variation is a strict one:  Willick v. Willick, [1994] 3 S.C.R. 670, at pp. 688-90.

[38]      Here the review order was justified by serious doubt at the time of trial as to the true financial situation and prospects of the wife and what level of support would actually be needed…

[177]     In my view, there are so many genuine uncertainties in this case that the parties should be permitted to request a review of ongoing spousal support any time after July 1, 2018. Any requested review will focus on the efforts of each parent to maximize their earnings as well as their actual financial circumstances. Higher incomes may be imputed to either party if the court is not satisfied with their efforts, which could result in a cancellation of or increase to my spousal support award.

Should the successful party be awarded costs?

[178]     Ordinarily, costs are awarded to the successful party. Doing so serves a number of important purposes, including encouraging parties to act reasonably in litigation and to settle disputes before trial.

[179]     Relocation cases are, however, different. It is completely understandable why many relocation cases proceed to trial. Given the stakes, it is often hard for parties to compromise and settlement is often difficult to achieve. In this case, Mr. Burseth cannot be faulted for opposing Ms. Clarke’s move to Sorrento.

[180]     Regarding the financial issues, there has been divided success.

[181]     In the circumstances of this case, I consider it fair and appropriate that the parties bear their own costs.

ORDER

[182]     In conclusion, I make the following orders:

1.     Subject to s. 12 of the Divorce Act (Canada), the claimant, Rory Shannon Burseth, and the respondent, Dusty Corinne Burseth, who were married at Pink Mountain, British Columbia on September 15, 2001, are divorced from each other. The divorce will take effect on the 31st day after the date of this order.

2.     Under s. 5 of the Name Act, the respondent’s name shall be changed from Dusty Corrine Burseth to Dusty Corrine Clarke, by consent.

3.     Mr. Burseth and Ms. Clarke are the guardians of the children under s. 39(1) of the Family Law Act.

4.     Mr. Burseth and Ms. Clarke shall share equally all of the s. 41 parental responsibilities for the children under s. 40(2) of the Family Law Act, as follows:

a.     In the event of the death of a guardian, the surviving guardian will be the only guardian of the children;

b.     Each guardian has the obligation to advise the other guardian of any matters of a significant nature affecting the children;

c.     Each guardian has the obligation to discuss with the other guardian any significant decisions that have to be made concerning the children, including significant decisions about their health (except emergency decisions), education, religious instruction and general welfare;

d.     Each guardian has the obligation to discuss significant decisions with the other and the obligation to try to reach agreement on those decisions;

e.     In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the guardian with the majority of parenting time with the children will be entitled to make those decisions and the other guardian will have the right to apply for directions on any decision the guardian considers contrary to the best interests of the children, under s. 49 of the Family Law Act; and

f.       Each guardian will have the right to obtain information concerning the children directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.

5.     Under s. 69 of the Family Law Act, Ms. Clarke may relocate the children to Sorrento, British Columbia.

6.     The children shall reside primarily with Ms. Clarke.

7.     Mr. Burseth shall have the following parenting time with the children:

a.     one month each summer starting on the Friday after the Canada Day long weekend through to the Friday after the B.C. Day long weekend;

b.     the first half of the children’s Christmas holiday in odd years and the second half of the children’s Christmas holiday in even years;

c.     all of the children’s spring break;

d.     liberal and generous parenting time with the children, including overnights, in the Sorrento area;

e.     liberal and generous telephone and/or electronic communications with the children; and

f.       any other parenting time that the parties agree.

8.     Ms. Clarke shall have reasonable telephone and/or electronic communication with the children while they are in the care of Mr. Burseth.

9.     Exchanges of the children shall occur in Prince George.

10. Mr. Burseth and Ms. Clarke will:

a.     put the best interests of the children before their own interests;

b.     encourage the children to have a good relationship with the other and speak to the children about the other and the other’s family in a positive and respectful manner; and

c.     make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children.

11. The parties will not discuss with the children any inappropriate adult, court or legal matters.

12. The parties will ensure that the children are always in the care of a sober adult.

13. Mr. Burseth shall ensure the children are always equipped with appropriate safety equipment, including properly fitted helmets when riding on bicycles, ATVs and the like, and hearing protection when close to the discharge of firearms.

14. Mr. Burseth is found to be a resident of British Columbia and is found to have a gross annual income of $56,000.

15. Ms. Clarke is found to be a resident of British Columbia and is found to have a gross annual income of $17,000.

16. Mr. Burseth shall pay to Ms. Clarke $869 per month for the support of the children, commencing on December 1, 2017 and continuing on the 1st day of each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until further agreement of the parties or Court order.

17. Commencing October 1, 2017, Mr. Burseth shall pay to Ms. Clarke his proportionate share for the children’s special or extraordinary expenses. Unless the parties agree or the court orders otherwise, the parties’ respective proportionate shares are 75% for Mr. Burseth and 25% for Ms. Clarke.

18. The following expenses shall be special or extraordinary expenses:

a.     child care expenses incurred as a result of Ms. Clarke’s employment, illness, disability, or education or training for employment;

b.     the portion of any medical and dental insurance premiums that are attributable to the children;

c.     health-related expenses that exceed insurance reimbursement by at least $100 annually; and

d.     extraordinary expenses for extracurricular activities as agreed to in advance in writing by Mr. Burseth or as ordered by the court.

19. For as long as the children are eligible to receive child support, the parties will exchange: 

a.     copies of their respective personal and corporate income tax returns for the previous year, including all attachments, not later than June 1st each year;

b.     copies of their respective corporate annual financial statements, including the supporting ledgers; and

c.     copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency regarding their personal and corporate income tax returns, immediately upon receipt.

20. Under s. 160 of the Family Law Act, Mr. Burseth shall pay to Ms. Clark spousal support of $131 per month, commencing on December 1, 2017 and continuing on the 1st day of each and every month thereafter until December 31, 2018, at which time spousal support will be terminated, unless the parties agree or the court orders otherwise.

21. Either party may request a review of spousal support after July 1, 2018. At the review, the court will consider the parties’ efforts to maximize their earnings, their financial circumstances, whether to impute income to either or both parties, and whether to adjust spousal support.

22. Mr. Burseth shall pay Ms. Clarke retroactive special expenses of $8,932.86 for the period ending September 30, 2017.

23. The arrears of spousal support owing from Mr. Burseth to Ms. Clarke as of September 30, 2017 are $11,185.50, including principal and interest.

24. Mr. Burseth will pay to Ms. Clarke a minimum of $100 per month towards the retroactive special expenses and arrears of spousal support, in addition to regular monthly child and spousal support payments, commencing on December 1, 2017 and continuing on the 1st day of each month thereafter until January 1, 2019 when the minimum payment will increase to $200 per month until the retroactive special expenses and the arrears of spousal support are paid in full or until further agreement of the parties or court order.

25. The parties shall bear their own costs.

[183]     I thank the parties for their respectful conduct of the trial and wish them both, and especially Cameron and Collin, the very best.

“L.S. Marchand J.”

MARCHAND J.