Date: 19961004
                                               Docket: CA020838
                                            Registry: Vancouver


             COURT OF APPEAL FOR BRITISH COLUMBIA



ORAL REASONS FOR JUDGMENT:


Before:

The Honourable Madam Justice Rowles             October 4, 1996
The Honourable Mr. Justice Donald
The Honourable Madam Justice Huddart            Vancouver, B.C.



BETWEEN:


                    RONALD EDWIN GRIERSON

                                                      PLAINTIFF
                                                   (RESPONDENT)

AND:

              CAROL LEE WATTERS formerly known as
                      CAROL LEE GRIERSON

                                                      DEFENDANT
                                                    (APPELLANT)


K. Walker                           appearing for the Appellant
D. Paterson                        appearing for the Respondent


[1]  DONALD, J.A.:       This is an appeal by a mother of two
children ages 11 and 13 regarding their maintenance and medical
and dental care.  She alleges that in his judgment of 24 July
1995, the learned chambers judge set an inadequate figure for
the children's support and that he erred in refusing to order
the father to provide the children with insurance coverage and
to order that she has the authority to choose the children's
health care providers.  She further alleges that the trial
judge erred in altering his reasons for judgment by a
corrigendum which changed the effective date of the variation
of maintenance from 1 August 1994 to 1 August 1995 and thereby
deprived the order of any retroactive effect.

[2]  For reasons which follow I would allow the appeal by
increasing maintenance from $400 a month for each child, as
ordered by the chambers judge, to $500 per month and I would
order that the father ensure that the children are covered by
his extended health, dental and medical plans and that the
parties share any medical and dental expenses in excess of
insurance coverage on the ratio of 1/3rd to the mother and
2/3rd to the father.  This order makes it unnecessary to deal
with the mother's request for an order allowing her to choose
the health care givers for her children.  I would not disturb
the effective date of the variation, 1 August 1995.

[3]  The parties were married on 2 October 1982, separated on 3
July 1988, and divorced on 30 November 1989.  The children were
born on 26 March 1983 and 28 February 1985.  They have resided
with the mother since separation.

[4]  The history of child support begins with an interim order
in the divorce action made on 18 January 1989 obliging the
father to pay $100 per month for each child.  That amount was
increased to $250 per child in a consent order made 26 January
1993 in the Family Relations Act action (the divorce having
been completed by a desk order without reference to
maintenance).  The father's income improved dramatically when
he joined the Vancouver Fire Department in 1990.  He was
earning $18,000 per year when maintenance was originally set.
As a firefighter the father earned $39,618 in 1992, $46,058 in
1993 and $51,695 in 1994.  His earnings for the five months
prior to the hearing below indicate the same level of income
for 1995.

[5]  At that hearing the mother sought a further variation in
the amount of $750 per month for each child.  The father agreed
that the circumstances had changed; he proposed that the amount
be increased to $350 for each child.  The order under appeal
set the figure at $400.

[6]  Both parties have remarried.  The father's new spouse
earns $43,000 per year.  They have one child of their marriage.
The mother's new spouse earns $48,000 but he has support
obligations for one child of a previous marriage, the amount of
which is not in the record.  The father has a home on acreage
in Abbotsford with a large mortgage and a small equity.  The
mother lives in rental accommodation in Victoria.  She has a
$30,000 student loan incurred while acquiring an education
degree after separation and while she was in receipt of only
$200 a month child support.

[7]  The mother's first job as a teacher was in Port McNeil on
a part-time basis (0.6 full-time equivalent) for which she
earned approximately $25,000 in the 1993/94 school year.  She
moved with her husband to Victoria and did not resume work as a
teacher until she was enrolled on the substitute list in March,
1995.  The chambers judge found that she earned an average of
$1,300 per month in substitute teaching for the balance of that
school year.

[8]  In her property and financial statement the mother
estimated her children's expenses at $1,852.  This figure is
largely made up of family expenses allocated to the children on
a 50% basis.  It embraces such items as the cost of rent, food
and running an automobile.  Her monthly payment on the student
loan is $325; she allocated $216 or 2/3rds of that to the
children.

[9]  The standard of appellate review in maintenance cases was
recently restated in Willick v. Willick (1994) 6 R.F.L. (4th)
161 (S.C.C.) at 183, where Sopinka J. said:

... an appellate court should not intervene absent a
material error in principle, a significant misappre-
hension of the evidence, or an award which is clearly
wrong.

[10] The principles governing child maintenance under the
Family Relations Act are based on the responsibility placed on
both parents by s.56.1(1) which reads:

     56.1 (1)  Each parent of a child is responsible
and liable for the reasonable and necessary support
and maintenance of the child, taking into account the
     (a)  cost of reasonable residential
          accommodation, housekeeping, food,
          clothing, education, recreation and super-
          vision for the child;
     (b)  child's need for a stable and supportive
          environment; and
     (c)  financial circumstances and obligations of
          each person liable for the support and
          maintenance of the child.



[11] When a child is living separate from the parent against
whom an order is sought to be made, account may be taken of the
factors set down in s.61(2).  Included among those factors is
"(d) the obligation ... to support another person".

[12] With respect, I do not think the learned chambers judge
sufficiently recognized the difference in the parties' ability
to maintain the children.  I view this as an error in principle
which requires correction by this Court.  

[13] The award of $800 per month for the two children does not
reflect the disparity in the parties' earnings.  The chambers
judge did not make any specific finding regarding the level of
child expenses nor did he determine the mother's earning
capacity.  Rather than send the matter back, I think we should
reach a conclusion on this dispute.  I work out the arithmetic
in this way:

Ä    the mother's estimate of child expenses is higher than is
     justified because of the allocation made on some expenses
     and the inclusion of others such as the mother's visa and
     chiropractor bills.  The figure of $1,500 per month is
     supportable on the evidence;

Ä    the father earns $52,000 per year;

Ä    the mother's demonstrated earning capacity is in the
     region of $25,000;

Ä    the incomes earned by the spouses of the parties are
     roughly equal making it unnecessary to consider them in
     this reckoning.

On these figures the result of the order in question is that
the father pays only slightly more than 1/2 the child costs on
an income twice that of the mother.  An order obliging the
father to pay $500 per month for each child would properly
represent the relative abilities of the parties to contribute
to the support of the children.  He would pay $1,000 a month,
2/3rds of the total cost.

[14] This division of responsibility would recognize the
father's obligation to support the child of his new marriage,
his direct contribution to the children's health care, and the
costs he incurs in exercising access between Abbotsford and
Victoria.

[15] The mother also sought an order requiring the father to
place the children on his medical, dental and extended health
plans with the Vancouver Fire Department.  The father has been
looking after the children's expenses for eyeglasses and dental
work but he organized the dental coverage in a complicated and
somewhat dubious scheme involving his present spouse's dental
plan.  On that plan, only family members residing with the
insured are eligible for benefits and so in order to obtain
benefits both from his plan and his wife's plan, the father
insisted on taking the children to dentists in his community.
This would make it less likely that the insurer would discover
that the children were living with their mother in Victoria.
By this means the father was able to top up the dental benefits
from his firefighters' plan with the benefits from his wife's
plan with the result that 100% of the dental expenses were
recovered.

[16] The mother disliked this arrangement for two reasons.
First, it meant that she could not choose the children's
dentist nor take them to a dentist closer to home.  She is
concerned about dealing with emergencies and her ability to
manage their care as the custodial parent.  Second, she felt
that the present arrangement has an element of dishonesty to it
and should no longer continue.  She has been told that both
children require orthodontic treatment.  For obvious reasons,
this should be given closer to their home.  The cost will
exceed the maximum allowable benefits under the father's plan.
The question arises how to distribute the burden of the excess
cost.

[17] The learned chambers judge found that the medical and
dental arrangements had worked smoothly.  He saw no reason to
disturb them and refused the order sought by the mother.  With
respect, the arrangements are not satisfactory for the reasons
advanced on behalf of the mother.  The father does not oppose
an order that he continue to cover the children for extended
health and dental benefits and he is prepared to place them on
his medical plan.  The problem remains what to do about costs
which exceed coverage, especially having regard to the
anticipated orthodontic fees.  In my view, the appropriate
order is to split the cost between the parties on the same
ratio as I have earlier discussed; that is on a 1/3rd-2/3rds
basis with the father paying the larger share.

[18] Since the use of the present Mrs.  Grierson's dental plan
will now cease and consequently there is no need for the
children to see dentists in the father's community there is no
need to make an order declaring the mother's right to choose
the children's health care providers.

[19] The final ground of appeal relates to the effective date
of the variation ordered by the learned chambers judge.  In his
reasons for judgment he said that the change should take place
as of 1 August 1994.  He published a corrigendum on 5 September
1995 in which he said:

     In my Reasons for Judgment filed July 28th, 1995
the final paragraph on page 6 refers to child
maintenance of $400.00 per month per child commencing
on the 1st day of August, 1994 and continuing as
therein provided.  This was clearly a typographical
error.  At the hearing, no argument was presented as
to retroactive variation of the maintenance.  I
clearly intended the maintenance at $400.00 per month
per child to commence on August 1, 1995.

     I accordingly amend by Reasons to provide that
the maintenance at the $400.00 per month per child
rate commence on August 1st, 1995.

[20] The mother's argument on appeal is that she was not given
an opportunity to be heard before the reasons for judgment were
amended and since the amendment deprived her of a retroactive
benefit she was entitled to make submissions.

[21] There is no merit in this contention.  The notice of
motion requesting a variance made no mention of retroactivity
nor was it a topic of discussion before the learned chambers
judge.  All that happened was the correction of a typographical
error.  It was never the learned chambers judge's intention to
make the variation retroactive.

[22] For these reasons, I would allow the appeal and vary the
order below by increasing maintenance to $500 per month for
each child, effective 1 August 1995, and by making an order
that the father provide medical, dental and extended health
insurance coverage for his children, and to pay 2/3rds of the
expenses in excess of the coverage.

[23] ROWLES, J.A.:  I agree.

[24] HUDDART, J.A.:      I agree.

[25] ROWLES, J.A.:  The appeal is allowed.  The order of the
trial judge will be set aside and an order for $500 per month
per child substituted to commence August 1, 1995.  There will
also be an order that the father include the two children on
his extended health care medical and dental insurance plans.
Any costs which exceed the coverage will be paid by the parents
in a one-third/two-thirds ratio with the father paying the
greater share.




                         "The Honourable Madam Justice Rowles"




                         "The Honourable Mr. Justice Donald"