A.R. v. C.E. Date:, 2015 BCPC 380

Citation: A.R. v. C.E. Date: 20151223 2015 BCPC 0380 File No: 14-4639 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.R . APPLICANT AND: C.E . RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Appearing on their own behalf: A.R . Counsel for the Respondent: J. Rempel Place of Hearing: Williams Lake , B.C.

Date of Hearing: January 30 and May 12, 2015 Date of Judgment: December 23, 2015 [ 1 ] On January 30, 2015 and May 12, 2015 a hearing occurred regarding a Notice of Motion filed by A.R. on September 17, 2014 seeking interim child support and interim spousal support (and/or an order under S. 226 of the Family Law Act (the “FLA”)) and a Notice of Motion filed by A.R. on January 21, 2015 seeking a hair follicle test and an order that C.E. provide the address where he takes the parties’ child during his parenting time. [ 2 ] At the hearing, evidence was presented and these issues were fully argued by both parties, on the assumption, obviously, that all relief had been pleaded in the application filed by A.R. on July 2, 2014.

However, during the course of my deliberations, I discovered that spousal support was not sought in her application. Accordingly, I arranged for counsel to provide submissions to address this issue. [ 3 ] When this matter was spoken to on December 23, Mr. Komori for A.R. advised he was no longer acting for A.R. A.R. informed me that she had reached an agreement with C.E. regarding spousal support in conjunction with a division of property and sought to withdraw her claim for spousal support. A.R. and Mr.

Rempel (for C.E.) confirmed that the parties had reached an agreement regarding spousal support and that the only issues remaining for decision were child support, extraordinary expenses and drug testing. This is my decision. Background: [ 4 ] The parties began living together in December 2004 and were married in 2005. Their daughter, C D E , was born [omitted for publishing], so she is now 8 years old. The parties separated on June 5, 2014. The parties own a home, a truck and a travel trailer, some RRSPs and an interest in a time share vacation property.

The parties accumulated significant debt during their relationship, which is secured against their home, the truck and the travel trailer. At the time of separation, virtually all of their joint income was required to meet their living expenses and debts. When they separated, C.D.E. and A.R. remained in the family home and C.E. moved out. For the first several weeks after their separation, C.E. paid A.R. the sum of $1,206 bi weekly. AR says that payment was to cover child support and as a contribution towards the family debts, but C.E. maintained it was simply for child support.

In September 2014 C.E. reduced his payments to A.R. to only $350 as child support in September and then began paying child support of $626 per month based on an income of $67,200 reported in his financial statement filed September 24, 2014. [ 5 ] C.E. is an equipment operator. C.E. normally lives and works at camp during the week, returning to Williams Lake on weekends, and he is normally laid off and in receipt of Employment Insurance during “spring breakup”, a 2 month period between the end of March and the end of May each year. His annual income reflects that fact.

Until he changed employers in late 2014, C.E. was also in receipt of a living out allowance of $10,000 per year, non-taxable, if he chose to provide his own accommodation instead of choosing to live in camp. The parties purchased the travel trailer for C.E. to live in instead of living in camp and he received a living out allowance from his employer for the use of it, and has paid some expenses, like pad rental, in connection with his use of it. Since he has changed employers, he no longer used it for living out, but used it for storage.

However, since the separation, he has not contributed anything towards the debt payments secured against it, which included the purchase price of the trailer itself. Since the hearing in January, A.R. has repossessed the trailer and I was not informed what became of it. Since the separation, A.R. has had the use of the 2007 Toyota truck against which some of the debts were secured. [ 6 ] This year, C.E. was, as usual, laid off for spring breakup on March 11, 2015, but on April 8, 2015 he had a fall and suffered a broken right wrist.

He had surgery to repair the damage and at the time of the hearing in May, his arm was splinted. Although he was able to drive to court, he testified that he would be unable to operate machinery with his arm in that condition. He said he had no feeling in his pinkie and ring finger at that time. He planned to attend a doctor’s appointment on May 27, 2015 to assess the healing process. He said his doctor told him his recovery and return to work from this injury could take 3 to 6 months, or to put it another way, the earliest recovery would be June 8, the latest Sept 8, 2015.

It is reasonable to assume that C.E.’s income for 2015 will, as a result of this injury, be somewhat lower than his income would have been otherwise. [ 7 ] A.R. is a [omitted for publishing] and earns approximately $40,000 annually. She also earns extra money as a property manager and through a small business she runs. From those sources she earns an additional $1,200 annually. [ 8 ] C.D.E. resides primarily with her mother, although C.E. has parenting time on weekends when he is home from camp.

POSITION OF THE PARTIES : A.R.: [ 9 ] Because C.E. stopped paying anything towards the family debts in September 2014, A.R. has been obliged to do her best to cover all of those debts from her income alone, despite the fact that her income is approximately half of C.E.’s income. Her income does not come anywhere near what is required to meet her living expenses and the family debt. She seeks child support commensurate with C.E.’s actual income, including additional non-declared and non-taxable living out allowance he received in 2014.

She seeks an order that C.E. undergo drug testing because she believes he is using cocaine or other illicit drugs and she seeks an order requiring C.E. to inform her of the location where he is exercising parenting time with C.D.E.. C.E.: [ 10 ] C.E. claims that he does not have the means to pay anything beyond the child support he is paying at present, although until his layoff in March 2015 his income was larger than it has ever been.

He stated baldly in his testimony that he was unwilling to contribute to the payment of the joint debts incurred by the parties during their relationship and that he feels no responsibility for any of them. He argues that the living out allowance should not be included in his income. He consents to the drug testing application, but he does not

wish to pay for any drug testing. He says that the results will be positive because he admits using cocaine, but claims that both parties used cocaine recreationally during the marriage. INCOME FOR CHILD SUPPORT CALCULATION A.R.’s income: [ 11 ] A.R. earns a living of approximately $40,000 per year as a [omitted for publishing]. Before obtaining employment as a [omitted for publishing], she worked at a [omitted for publishing] for 13 years. She also earns approximately $1,200 per year as a property manager and a negligible income from her small business selling hair clips and other ladies accessories.

She has a grade 12 education and several certificates from Thompson River University. In 2013 her line 150 income was $31,276 which included income attributed to her from cashing in a $5,000 RRSP and the universal child care benefit; in 2012 it was $49,955 which included income attributed to her from cashing in a $2,000 RRSP and the universal child care benefit. Her 2011 income shows as $79,327 but A.R. explained that was the result of a severance package from the [omitted for publishing] which was added to her annual income for that year. I find her income for child support purposes is $41,200 annually.

I decline to impute any income to her in excess of that amount. C.E.’s income: [ 12 ] C.E. provided a financial statement filed September 24, 2014 in which he understated his income; he declared a total income of $67,200 for 2014 when in fact his line 150 income for 2014 was $76, 868. He says he did not know that he ought to have included his Employment Insurance income as part of his income.

Given that C.E. has been in receipt of E.I. every year for many years, as a regular part of his annual income, and that he was represented by counsel when the financial statement was prepared, I find this explanation to be incredible.

Also problematic is the fact that the income he declared is below his previous 2 years’ incomes even though he was in fact earning more than previously; I find it to be inconceivable that he did not know that his income was greater in 2014 than it was before. (His income for 2013 was $72,189 and his 2012 income was $74, 219.) I find that C.E. deliberately understated his income in his sworn financial statement. [ 13 ] It is common ground that C.E. was in receipt, in 2014, of a living out allowance of $10,000 annually, which was not included as part of his declared income for tax or other purposes.

I accept that he expended some of those funds to maintain himself while living in the parties’ trailer and working at camp during the week. However, the parties incurred a debt in order to obtain that trailer, but after separation, C.E. did not use any portion of his living out allowance to service that debt. He simply retained the income. C.E. claimed no living expenses in his financial statement, and gave no evidence about paying any household or living expenses except as noted below, aside from those incurred in [omitted for publishing], where he worked and lived in the trailer.

The fact that C.E. did not claim any living expenses whatsoever in his financial statement is perhaps not surprising if all of his living expenses were met from the living out allowance. It is clear that he did not maintain more than one household after the separation of the parties. [ 14 ] However, C.E. now claims that he owes board money to his mother and sister for those weekends that he was in town after separation until he moved in with his girlfriend in October 2014, and that he has been paying $500 bi-weekly (a rate of $13,000 annually) to his girlfriend D. towards the rent of her residence since then.

He said he can provide a receipt from her if that is required. In my view a payment of $500 bi weekly is unusually high rent for shared accommodation, particularly when one considers that the accommodation in question was only for weekends until C.E. was laid off in March. When I take into account that the mortgage payment for the entire house owned by the parties is $12,548, I find that C.E.’s claim of paying rent in excess of that for shared weekend accommodation is simply not believable. I find that he has either grossly exaggerated the rent he is paying, or his evidence about paying rent is simply fabricated.

Living out allowance : [ 15 ] In 2014, in addition to employment income and EI benefits, C.E. also received a non-taxable living out allowance of $10,000; the period from separation in June 2014 to the time he left that employer was approximately 6 months, so I attribute $6,000 of that allowance to him after separation (although I note that no living out allowance would have been paid during the 2 months of unemployment for spring breakup, so most of the living out allowance was actually paid in the latter half of the year).

Some of that living out allowance was legitimately used for some of his living out expenses, such as pad rent for the trailer and groceries. [ 16 ] On this issue, Mr. Rempel argued for C.E., on the basis of Briggeman v. Briggeman 2000 BCSC 900 that a living out allowance is simply not regarded as income. In that case, Mr. Justice McEwan accepted, without any analysis, the holding to that effect in Paynter v. Sackville , (1998), 162 Sask.R.319, a the decision of the Saskatchewan Court of Queen’s Bench. With respect, I am of the view that the decision in Briggeman has been overtaken by Webster v.

Webster [2014] BCSC 730, in which the court attributed one half of a living out allowance to the party receiving it on the basis that he had not, in fact, had to spend the all of the allowance on “living out expenses” - in that case the party was living with his girlfriend near the work site, and not maintaining a second residence in addition to his home. [ 17 ] One of the living out expenses C.E. ought to have been paying from the living out allowance was the cost of his accommodation - in the trailer purchased for that purpose by the parties - but he did not do that; instead, he refused to pay anything toward the monthly debt servicing on the trailer and retained the balance of the living out allowance for his own purposes, while leaving A.R. to pay the cost of his accommodation.

That being the case I find that it is proper to attribute a portion of the living out allowance back to C.E. as income for child support purposes. I attribute one half of the living out allowance, the sum of $3,000, back to C.E. as income for child support purposes. C.E.’s 2014 income for child support purposes: [ 18 ] I find that C.E.’s income at line 150 of his 2014 Income Tax return was $76,868. However, $2,214 was clawed back from his EI benefits, so I find that his 2014 income (aside from the living out allowance) for child support purposes was $74,654.

Adding $3,000 for the living out allowance not used for that purpose, his 2014 income for child support purposes is $77,654. C.E.’s 2015 income for child support purposes:

[ 19 ] In 2015, C.E.’s rate of pay and monthly income increased. His income for the first 2 months of 2015 was $17,329 (or $8,664 per month). C.E. testified that this was his standard pay. Thus, if he earned at this same rate throughout the year his income would be approximately $103,974. However, I recognise that the pattern of C.E.’s employment has been that he is laid off for 2 months for spring breakup each year, and collects EI during that time. Taking those factors into account, aside from the effect of his recent injury, I find that C.E. would have earned approximately $90,000 in 2015.

However, he was injured. He was expected to return to work at the earliest in June, and latest in September. I will assume that he was able to return to work in July, given he was at least healed sufficiently to drive himself to Court for the hearing in May. His employment income will then be 8 months at $8,664/month, totalling $69,312. [ 20 ] I must also take into account that he has been receiving EI while off work. In 2014 his income from EI was $7,761 less a clawback (at 30%) of $2,214, for a net EI income of $5,547 for 2 months off work.

C.E. did not give evidence as to his current income on EI, but based upon the 2014 numbers, I estimate that C.E. will gross $15,552 on EI for 4 months, with a clawback of $4,656 (30%) for a net EI income of $10,896. Thus, I find that C.E.’s total income for child support purposes in 2015 will be ($10,896 + $69,312) the sum of $80,208. [ 21 ] I take note of C.E.’s testimony and the position he took at the hearing, to the effect that he is impecunious and has in fact spent more than his income. I infer that he is making a claim for hardship of some kind.

I have accordingly looked at the means and needs of the parties and the burden imposed upon them with respect family debt and child rearing responsibilities. I recognise that A.R. has had the benefit of residing in the family home, and C.E. has not, but she has in fact shouldered the responsibility for paying all of the family debts since the separation, as well as childcare and extracurricular expenses for C.D.E., and C.E. has not paid anything towards those debts or expenses.

I also take into consideration that unlike A.R., C.E. does not have to pay any living expenses (such as food or accommodation) during the week when he is working, because when he began work with his new employer, he began living in camp when working and his room and board is taken care of by his employer. I find that as far as hardship is concerned, that hardship has all been on A.R.’s side of the ledger. I find that C.E. has not met his burden to establish hardship, so there is no reason to depart from guideline child support.

Guideline child support: [ 22 ] C.E. does not dispute his obligation to pay child support (although at the time of the hearing in May, he was 2 months behind in his payments). In October, 2014, he was ordered to pay child support in the amount of $626 per month based upon a declared income of $67,200. As I found earlier, C.E. deliberately under reported his income. I have found that his income for child support purposes for 2014 was $77,654. The child support payable for one child based upon that income is $726/m.

I therefore order that the child support payable by C.E. to A.R. for the support of C.D.E. is $726 per month, commencing October 1, 2014 until January 1, 2015. [ 23 ] Commencing January 1, 2015, C.E.’s income increased. After taking into account the reduction of his income due to his injury, I have found that his income will nevertheless be greater than 2014. As I found earlier, his income for 2015 will be imputed to be $80,208, so his child support obligation will increase to $750 per month, commencing January 1, 2015.

Any amounts already paid by C.E. pursuant to the previous Court order are, naturally, to be credited to him. Special and extraordinary expenses: [ 24 ] A.R. testified that she wished to register C.D.E. for after school care, dance, skating and other activities. C.E. testified that he wants C.D.E. to engage in extracurricular activities such as Tai Kwan Do, dance and other lessons. I find that expenses for these activities and for childcare are reasonable and necessary expenses under S. 7 of the Federal Child Support Guidelines. Such expenses are to be shared between the parties proportionate to their incomes.

Hair follicle test: [ 25 ] At the hearing in May 2015, C.E. admitted the use of cocaine, within three months prior to the hearing, although paradoxically he says that he spent none of his income on drugs. [ 26 ] I have examined the bank records provided by C.E. and while it is apparent that he has, in fact, spent all of his income and more, the bank statements show almost nothing for anything resembling necessary household expenses. What stands out about C.E.’s bank statements, however, is the number of cash withdrawals, often several times per day.

C.E. explained that he paid for Christmas gifts and for a ski vacation (costing approximately $1,500) he took for himself in December. Aside from that he does not explain what he did with the enormous amounts of cash he withdrew from his account. [ 27 ] C.E. has admitted cocaine use during the marriage but denied spending any money on it since the breakup. I am mindful of A.R.’s concerns that C.E. has returned to his addiction to crack cocaine.

I find that his pattern of spending since the separation supports the inference that he has been spending substantial sums of cash for no legitimate purpose; he certainly provided no satisfactory explanation of his spending in his testimony. I find that spending pattern is consistent with substantial drug use. Such drug use may have an impact on his parenting ability. I therefore order that C.E. undergo hair follicle drug testing and that he must pay for the testing. [ 28 ] A.R. also sought an order that C.E. provide her with the address where he is exercising parenting time with the child.

She gave evidence that her concerns were based, in part, on the fact that she was contacted by police because C.E.’s girlfriend had contacted the police to report him missing. With the help of information provided by A.R., C.E. was located shortly thereafter. It appears that C.E.’s living arrangements settled down considerably after that, and I was informed during submissions in May that C.E. has been seeing C.D.E. more regularly since the hearing commenced in January, so it may be that this order is no longer necessary to allay A.R.’s concern for C.D.E.’s safety.

However, it seems to me that it is only common sense that each parent keeps the other informed of the address at which parenting time primarily occurs, and I make that order.

____________________________ S.K. Keyes Provincial Court Judge