R.X.R. v. S.M.L., 2019 BCPC 396

Citation: R.X.R. v. S.M.L. 2019 BCPC 396 Date: 20191206 File No: 12519 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.X.R. APPLICANT AND: S.M.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. PHILLIPS Appearing on his own behalf: R.X.R. Counsel for the Respondent: S. Walter Place of Hearing: Kamloops , B.C. Date of Hearing: May 1, 2019 Date of Judgment: December 6, 2019

INTRODUCTION [ 1 ] This is an Application filed by R.X.R. seeking the following Orders: to vary child support retroactively to 2016; that the Respondent, S.M.L.’s income be imputed at $43,551 commencing September 1, 2018; that there be a 50/50 split on extraordinary expenses for the children; and further, that there was a change in circumstances given that all of his children are now living with him. The issues raised in this hearing are monetary in nature. ISSUES a. Whether there is a change in circumstances? b. What will be the proportional share of the parties regarding special and extra ordinary expenses?

THE CHILDREN [ 2 ] The children are J.P.R. born [omitted for publication] (“J.P.R.”) and H.M.R., born [omitted for publication] (“H.M.R.”). [ 3 ] J.P.R. moved in with R.X.R. in September of 2015. H.M.R. moved to R.X.R.’s residence on September 1, 2018. INCOMES AND EMPLOYMENT [ 4 ] R.X.R. is a [omitted for publication]. His 2016 income was $74,136. In 2017, the Applicant’s income, according to Line 150 of this tax return was $90,814. In 2018, the Applicant’s Line 150 income was $95,431. [ 5 ] S.M.L. is currently an [omitted for publication] for [omitted for publication].

She oversees a pre and after school program, teaches fitness classes, is the reporting secretary for [omitted for publication] that include duties of minute taking, catering, general clerical work, payroll backup and various other administrative functions. [ 6 ] S.M.L.’s income in 2016 was $35,778. In 2017, it was $30,975 and in 2018 was $33,788. [ 7 ] R.X.R. did not raise the imputation of the Respondent’s income during the hearing before Judge Harrison in December 2017.

At this December 2017 hearing, His Honour Judge Harrison ordered R.X.R. pay S.M.L. (aka S.M.P.) the sum of $707 per month in child support for H.M.R. commencing April 1, 2018. In the same Order, S.M.L. (aka S.M.P.) was ordered to pay R.X.R. the sum of $296 per month in child support for J.P.R. commencing April 1, 2018. [ 8 ] R.X.R. and S.M.L. stopped paying child support to the other as of September 2018. [ 9 ] S.M.L. sold her apartment in [omitted for publication].

In her 2018 tax return and upon the advice of her bookkeeper, S.M.L. claimed the apartment as a sale of a principal residence as opposed to a capital gain. The proceeds of the sale was $12,000. The strata bylaw for the apartment prohibited S.M.L. from renting the apartment. SPECIAL AND EXTRAORDINARY EXPENSES [ 10 ] In 2014, His Honour Judge Cleaveley ordered the parties to share extraordinary expenses equally as agreed upon . [emphasis mine]. [ 11 ] In the evidence before me, R.X.R. submitted a number of receipts to substantiate his claim for shared extraordinary expenses.

These receipts are as follows: $976.81 for J.P.R.’s tuition; $103 for tutoring J.P.R.; $475 for a three week summer music program for H.M.R.; $500 for summer music school for H.M.R.; $96 for H.M.R.’s piano lessons; $276 for H.M.R.’s piano lessons; $500 for G.R.’s tuition for Thompson Rivers University (TRU) in 2016; $2,423.04 for G.R.’s tuition in 2016; $442 tools for G.R.’s trade program in 2016; $358 for G.R.’s books in 2016; $2,480 in receipts for money paid to R.X.R’s sister – room and board for G.R. in 2016; $2,255 loan to J.P.R. to pay tuition; $152 for contact lenses for H.M.R.; and numerous other receipts for the period 2013 to 2016. [ 12 ] R.X.R. enrolled the children in activities and paid for them without first reaching an agreement with S.M.L. [ 13 ] In regards to the receipts for G.R.’s tuition, books, and room and board expenses, R.X.R. submitted the same receipts in the hearing before his Honour Judge Harrison.

However, R.X.R. stated on oath in that hearing that “Ms. P. is under the impression that with me providing receipts for all of this, that I want that money back from her but I have not asked for it and I’m not asking for it. I only provided it to document that I was supporting our son through his program.” THE LAW Material Change [ 14 ]

Section 14 of Federal Child Support Guidelines sets out the circumstances where a material change that gives to a variation in respect of a child support Order: 14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in

circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, enacted by

section 2 of

chapter 1 of the Statutes of Canada, (1997). Determinations of Income and Fluctuations in Income Federal Child Support Guidelines - 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. [ 15 ] In Reid v Reid, 2017 BCCA 73 , the court determined that in cases where non-recurring amounts inflate income in the particular year, the exercise of a courts discretion includes not only the ability to average income over a number of years, but also the ability to exclude income.

ANALYSIS [ 16 ] R.X.R. views the move of the child, H.M.R. from S.M.L.’s home to his as a material change in circumstances as the move triggered a change in the child support obligations of the parties. [ 17 ] Presently, none of the children reside with S.M.L. All three children are now living with R.X.R. The oldest son, G.R., no longer meets the definition of a child. J.P.R. turns 19 on [omitted for publication]. H.M.R. remains a child. Given this, S.M.L. is required to pay child support for J.P.R. and H.M.R. until they no longer meet the definition of a child for child support purposes.

This hearing is about financial matters.

When factoring in the recalculations of income, child support, set off and arrears, there is a change in circumstances, however the change is marginal. [ 18 ] I find that R.X.R. has demonstrated a change in circumstances sufficiently enough to require an adjustment to existing court Orders as they relate to the financial obligations of the parties. [ 19 ] In keeping with the Reid decision , I find that the sale of the [omitted for publication] apartment constitutes a non-recurring amount that inflated S.M.L.’s income in that year and exercise the court’s discretion to exclude the sale proceeds from her income for the purposes of child support calculation.

In making this determination, I am cognizant of the $100,000 loan S.M.L. repaid on behalf of the parties. The loan was a personal loan granted to the parties by S.M.L.’s parents and was subject to bankruptcy proceedings of R.X.R.

CONCLUSION [ 20 ] There has been a material change in circumstances warranting a variation of the March 13, 2018 Order of His Honour Judge Harrison. [ 21 ] R.X.R.’s income for the period 2016 to 2018 is: 2016: $74,136; 2017: $90,814; and 2018: $95,431. [ 22 ] S.M.L.’s income for the period 2016 to 2018 is: 2016: $35,778; 2017: $30,975; and 2018: $33,788. [ 23 ] Given the disparity in incomes between the parties, I find that a 50/50 split of special and extraordinary expenses would be unfair. A fair approach in the circumstances is for the parties to pay expenses in proportion to their respective incomes.

Accordingly, the respective proportional shares of the special and extraordinary expenses are S.M.L. (26%) and R.X.R. (74%). [ 24 ] The movement of children from S.M.L.’s residence to R.X.R.’s residence, the decision by the parties to stop paying child support, the passage of time, the changes in relative incomes, one child turning 19 years all add a level of complexity in settling the financial issues for the parties. It is appropriate and necessary in my view to set out my findings on child support and payment of arrears in the form of a table that factors in the passage of time and the ages of the children.

I have attached a table for this purpose to these reasons as Appendix A. [ 25 ] I am satisfied that my findings on the financial obligations of the parties set out in the table attached as Appendix A to this decision are fair, reflects the financial obligations of the parties from 2016 to the date of hearing and does not create an undue burden on the parties. The Order that I make is as follows: 1. The Order of the Honourable Judge Harrison made March 5, 2018 is varied in accordance with the terms of this Order.

2. The Order of the Honourable Judge Cleaveley made June 24, 2014 is set aside. 3. The style of cause of this file in the Kamloops Registry be changed to R.X.R. (Applicant) and “S.M.P.” (Respondent). 4. R.X.R. is found to be a resident of British Columbia and is found to have a gross annual income of $95,431. 5. S.M.L. is found to be a resident of British Columbia and is found to have gross annual income of $33,788. 6. The child support arrears owing from R.X.R. to S.M.L. as of August 31, 2018 are $5,675 including principal and interest (the “arrears”). 7.

S.M.L. will pay to R.X.R. the sum of $542 per month for the support of the children, commencing September 1, 2018 and continuing on the first day of each and every month thereafter until December 1, 2019, or until further agreement or court Order, at which point J.P.R. will turn 19 years. 8. S.M.L. is entitled to deduct her child support from the arrears until such a time as R.X.R. has paid the arrears in full. 9.

S.M.L. will pay to R.X.R. the sum of $316 per month for the support H.M.R., born [omitted for publication], and continuing on the first day of each and every month thereafter, for as long as H.M.R. is eligible for support under the Family Law Act or until further court Order. 10. R.X.R.’s application for special and extraordinary expenses prior to the date of this Order is dismissed. 11. Commencing from the date of this Order, S.M.L. will pay to R.X.R. her proportional share of the children’s special or extraordinary expenses. The parties respective proportional shares are S.M.L. (26%) and R.X.R. (74%).

The following expenses will be special or extraordinary expenses: a. Dental expenses that exceed the insurance reimbursement. If no insurance or benefit plan is available, then each parent pays his or her proportional share. b. Medical expenses that exceed the insurance reimbursement. If no insurance or benefit plan is available, then each parent pays his or her proportional share; c. Secondary school fees for H.M.R.; and d. Eyeglasses or contact lenses for H.M.R. and J.P.R. until each child reaches 19 years of age. 12.

Other special and extraordinary expenses must be agreed to, in advance and in writing, between the parties, before the expense is incurred, in order to obtain proportional reimbursement of that expense from the other party. 13. Under

section 222 of the Family Law Act , neither party shall bring further application to this court without the express written agreement between the parties or a determination from this court that there has been a material change in circumstances. _______________________________ The Honourable Judge R.D. Phillips Provincial Court of British Columbia APPENDIX A Court File: 12519 Court Location: Kamloops In the case between: S.M.L. (aka S.M.P.)

And R.X.R. RETROACTIVE CHILD SUPPORT CALCULATION OCTOBER 2015 – PRESENT Month Year S.M.P.’s Income R.X.R.’s Income Guidelines Amount – R.X.R. Guide-lines Amount – S.M.P. Child Support to be paid by R.X.R. (retroactive numbers in parenthesis) R.X.R.’s Total October 2015 Support Payable of $1,242.00 November 2015 R.X.R. paid $2,250.00 (page 7 of Reasons for Judgment) December 2015 R.X.R. paying for support of two children, and S.M.P. paying for one January 2016 $31,725.00 ($35,778.00) $74,136.00 ($same) $1,122.00 ($1,122.00) $286.00 ($324.00) $837.00

(798.00) February 2016 March 2016 April 2016 May 2016

June 2016 July 2016 August 2016 $ 6,696.00 ($6,384.00) As of September 1, 2016, G.R. was no longer in financial care of either party, and was independent, R.X.R. now only paying for the support of one child, rather than two in care of S.M.P. September 2016 $31,725.00 ($35,778.00) $74,136.00 ($same) $693.00 ($693.00) $286.00 ($324.00) $407.00 ($369.00) October 2016 November 2016 December 2016 $1,628.00 ($1,476.00) Parenting Arrangement continues until new Child Support Guidelines, with J.P.R. residing with R.X.R. and H.M.R. residing with S.M.P.

January 2017 $31,725.00 ($30,975.00) $74,136.00 ($90,814.00) $693.00 (843.00) $286.00 ($278.00 $407.00 ($565.00) February 2017 March 2017 April 2017 May 2017 June 2017 August 2017 September 2017 October 2017 November 2017 $4,477.00 ($6,215.00) New Child Support Guidelines come into force on November 22, 2017 – same parenting arrangement December 2017 $31,725.00 ($30,975.00) $74,136.00 ($90,814.00) $707.00 ($867.00) $296.00 ($288.00) $411.00 (579.00) $411.00 ($579.00) January 2018 $31,725.00 ($33,788.00) $74,136.00 ($95,431.00) $707.00 ($907.00) $296.00 ($316.00) $411.00 ($591.00) February 2018 March 2018 April 2018 May 2018 June 2018 July 2018 August 2018 $3,288.00 ($4,728.00)

Support Paid by R.X.R. $2,250 + $6,000 + $3,000 + $411 + ($411 x 8 = $3,288) = $14,949.00 (October 2015 – August 2018) Amounts Payable by R.X.R. $1,242 + $6,384 + $1,476 + $6,215 + $579 + $4,728 = $20,624.00 (October 2015 – August 2018) $5,675, up to the end of August, 2018 (Arrears) September 1, 2018, H.M.R., born [omitted for publication] (14 years old) Transitions from S.M.P.’s (S.M.L.) Home and primarily resides with R.X.R.

Month Year S.M.P.’s Income R.X.R.’s Income Amounts that need to be paid Child Support Paid to Date (by S.M.P.) R.X.R. (from $5,675.00) September 2018 $33,788.00 $95,431.00 $542.00/month for support of 2 children nil $5,133.00 October 2018 $33,788.00 $95,431.00 nil $4,591.00 November 2018 $33,788.00 $95,431.00 nil $4,049.00 December 2018 $33,788.00 $95,431.00 nil $3,507.00 January 2019 $33,788.00 $95,431.00 nil $2,965.00 February 2019 $33,788.00 $95,431.00 nil $2,423.00 March 2019 $33,788.00 $95,431.00 nil $1,881.00 April 2019 $33,788.00 $95,431.00 nil $1,339.00 May 2019 $33,788.00 $95,431.00 nil $797.00 June 2019 $33,788.00 $95,431.00 nil $255.00 July 2019 $33,788.00 $95,431.00 $287.00 ($287.00) August 2019 $33,788.00 $95,431.00 $542.00 ($829.00) September 2019 $33,788.00 $95,431.00 $542.00 ($1,371.00) October 2019 $33,788.00 $95,431.00 $542.00 ($1,913.00) November 2019 $33,788.00 $95,431.00 $542.00 ($2,455.00) December 2019 $33,788.00 $95,431.00 $542.00 ($2,997.00) December 11, 2019, J.P.R., born [omitted for publication] (currently 18 years old), will attain the age of 19 years January, 2020 $33,788.00 $90,814.00 $316.00/month for support of one child