J.L.K. v. L.M.K., 2022 BCPC 253

Citation: J.L.K. v. L.M.K. 2022 BCPC 253 Date: 20221018 File No: F19403 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.L.K. APPLICANT AND: L.M.K. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.A. HARRIS Counsel for the Applicant: K. Pacheco Appearing on their own behalf: L.M.K. Place of Hearing: Abbotsford , B.C. Date of Hearing: June 3, September 1-2, 2022 Date of Judgment: October 18, 2022

INTRODUCTION [ 1 ] Ms. K. filed an Application About a Family Law Matter on July 28, 2021 relating to parenting time, parental responsibilities, child support and spousal support. Mr. K., who says he is commonly known as L. of the K. family, appeared in these proceedings after acknowledging that he was the respondent on Ms. K.’s application. For sake of brevity and clarity, I will refer to him as Mr. K. in these reasons. [ 2 ] Ms. K. applies for the following final orders: 1. That she continue to have primary residence of the children; 2. That Mr.

K. has parenting time every weekend from after school on Friday to 8:00 pm Sunday. If the Friday attached to a weekend is a statutory holiday or Pro-D day, then Mr. K. would have parenting time from Thursday after school. If the Monday is a statutory holiday or Pro-D day, then Mr. K. would have parenting time to Monday at 8:00 pm; 3. The parties will use their best efforts to agree to an equal split of school holidays over Christmas, Spring Break and Summer Break; 4. Ms.

K. says the parties should share parental responsibilities but she seeks to be able to make a final determination where they cannot agree, with Mr. K. having the ability to seek a review of the Court; 5. Annual income imputed to Mr. K. in the amount of $104,000 and child support in the amount of $1575 per month and s. 7 expenses in proportionate shares; 6. An indefinite award for spousal support on a compensatory and non-compensatory basis in the mid-range of the Spousal Support Advisory Guidelines. [ 3 ] Mr. K. has filed a reply. In that reply he: 1. Agrees that Ms.

K. should continue to have primary residence of the children; 2. Agrees that he should continue to have parenting time; 3. Disagrees that Ms. K. should have final say with respect to parental responsibilities; 4. Disagrees with the amount of child support sought; 5. Disagrees that he should have to pay spousal support. BACKGROUND [ 4 ] The parties were married on [omitted for publication]. During the course of the marriage they had two children together: L.J.K. born [omitted for publication] and G.G.K. born [omitted for publication]. The parties separated in April 2019 after approximately 16 years of marriage.

In May 2019 Mr. K. began paying Ms. K. $2200 per month in child support pursuant to an informal agreement. He has continued to pay support since then although the amount has fluctuated. Most recently, pursuant to an interim order of this Court, he has been paying $1200 per month in child support. Mr. K. has been having parenting time approximately every second weekend as well as sharing school holidays with Ms. K. in an approximate fifty-fifty split. [ 5 ] Both parties testified at this trial and there was one additional witness called who knows both parties.

The parties were young when they married and had a difficult relationship. The evidence shows that they faced some interpersonal challenges early on in their marriage. As time went on, their personal beliefs began to diverge significantly. This resulted in an inability to agree on issues involving finances, health and the education of their children. [ 6 ] There have been some previous interim orders in this matter.

There are no final orders relating to the issues before the Court and I am not required to address the variation of any orders. [ 7 ] As will be discussed further below, the issues I must decide do not include whether I agree with the beliefs of either party or whether they should be prevented from holding or practicing those beliefs.

What I must resolve are issues relating to determination of income and support in accordance with the Family Law Act (“ FLA ”) and the Federal Child Support Guidelines as well as what I find to be in the best interests of the children with respect to parental responsibilities and parenting arrangements. ISSUES 1. What is the appropriate parenting time schedule? 2. What is the appropriate division of parental responsibilities? 3. What annual income should be attributed to each party? 4. What child support amount is payable pursuant to the Federal Child Support Guidelines ? 5.

Should an order for spousal support be made?

6. If spousal support is ordered what is the appropriate amount? ANALYSIS Parenting Time – What is the Appropriate Parenting Time Schedule? Position of the Parties [ 8 ] The parties agree that both Mr. and Ms. K. should be declared guardians. They further agree that the current parenting time

schedule has worked fairly well and is the

schedule that should be ordered. The disagreement around parenting time centers on how flexibility should be built into the parenting schedule. Ms. K. says that she and Mr. K. should only be able to change the parenting

schedule if they both agree. Mr. K. says that he should be able to unilaterally change the parenting

schedule and drop the children off late if that is what the children want. This would involve missing one or more days of school at the children’s discretion. Legal Test [ 9 ] In considering a parenting

schedule the court is required to determine what is in the best interests of the children.

Section 37 of the Family Law Act sets out a non-exhaustive list of the factors I must consider in determining what is in the best interests of the children. Current Arrangement [ 10 ] The current Interim Order for parenting time states that Ms. K. has the children in her primary care and Mr. K. has parenting time with the children every second weekend at times agreed on between the parties. He may also have such further time as agreed to between the parents. I am told that generally the

schedule has been that on his weekends Mr. K. will pick the children up after school on Friday and return them home to Ms. K. by 8:00 pm on Sunday. If the adjacent Monday or Friday has been a statutory holiday or a Pro-D day, Mr. K. has had those days as parenting time as well. I am told that the parties have been making their best efforts to split school holidays equally. Best Interests of the Children [ 11 ] As will be set out below, Mr. K. and Ms. K. have different views around the necessity and benefit of school for their children. Ms.

K. believes the children, who are almost 10 and almost 15, should be at their schools full-time unless they are ill or there is some other pressing reason for them to be absent. Mr. K. finds school less useful. He indicated that he believes it is “worth a try” to attempt public school education but referred to high school as often “glorified babysitting” and described a full public school education as something that “conditions them to do things that they don’t want to do for most of the day”. Mr. K. says he encourages a sense of wonder in his children and educates them in and about nature. [ 12 ] While Mr.

K.’s views about schooling may be different than Ms. K.’s or many other parents, he is entitled to hold those views. What this court must decide in respect of the issue around parenting time is how flexibility can be built into the parenting

schedule in a way that is in the best interests of the children. In British Columbia all children between the ages of five and 16 must go to school. Both children currently fall within that age group. Additionally, allowing the children to make decisions about when to stay longer with a particular parent may cause scheduling issues for the parties who would likely be called on to adjust plans on short notice. Given their current ages, I cannot conclude that it would be in their best interest to allow the children to decide changes to the parenting schedule.

I find that the current requirement that the parties agree to additional parenting time remains appropriate. Conclusion [ 13 ] The current parenting time order remains appropriate. Parental Responsibilities - What is the Appropriate Division of Parental Responsibilities? Position of the Parties [ 14 ] The parties agree that they should share parental responsibilities for the children. They take different positions on who should get the final say where they disagree on the exercise of a particular parental responsibility. Ms.

K. seeks an order that she has the final decision on parental responsibilities and that Mr. K. can apply to the court for a review if he chooses. Mr. K. asks that he be given the final decision-making power and asks that Ms. K. gets the right to seek a review. Legal Test [ 15 ] As with decisions regarding parenting time, the primary consideration for the Court in determining parental responsibilities is what is in the best interests of the children.

I must take into account the ability of the guardians to exercise the responsibilities in the best interests of the children. [ 16 ] Section 42(2) of the FLA states that a guardian with parenting time has the right to exercise day-to-day decision making, care, control and supervision of the children during their respective parenting time unless there is an alternative agreement or court order. [ 17 ]

Section 43 of the FLA states that parental responsibilities must be exercised in the best interests of the children. [ 18 ] There is no presumption that parental responsibilities should be shared equally under the FLA or that one guardian is favoured over another when considering the best interests of the children (see M.F.W. v. M.A.H ., 2020 BCCA 284 at para. 13 ). Current Arrangement [ 19 ] There is no order regarding allocation of parental responsibilities between these parties. To date they have been trying to work

together to exercise parental responsibilities but this has been a source of friction given their significantly diverging views with respect to medical care, education, finances and culture. Best Interests of the Children Health and Emotional Well-Being [ 20 ] The first factor I must consider is the children’s health and emotional well-being. It is clear that both Mr. and Ms. K. love their children very much and want what they believe is best for them. However, as I have already stated, they have very different views on what the best decisions are with respect to the children’s health and emotional well-being.

Mr. K. testified that personal liberty is a value intrinsic to life. He was asked whether for the majority of his adult life he has chosen which laws to obey and which not to obey and his answer was “absolutely”. He was candid that he has rarely filed tax returns as required by law, and when he has he has not been truthful in disclosing his income. He does not have a bank account in his name and is generally paid cash or via e-transfer to his girlfriend for his carpentry work. [ 21 ] As far as medical care is concerned Mr. K. testified that he mistrusts physicians.

He is a proponent of chiropractic care and naturopathic care. He gave evidence that he has consumed borax diluted in water as an economical way to consume Boiron which he believes is a homeopathic remedy for arthritis. He believes in a “diet based holistic health system”. A healthy diet, naturopathic and chiropractic care are all recognized avenues for pursuing health care and wellness. However, it is conceivable that the children will need to engage in more traditional medical care at some point and I am concerned about whether Mr.

K. would exercise his parental responsibilities to ensure they get care from a qualified physician when they need it. [ 22 ] Multiple times Mr. K. referred to allowing the children to make their own choices about school, medical care and the law. He was asked whether he agreed that the children need to function and live within those systems in Canada and his response was that he believes that it is their personal choice. This suggests that Mr.

K. believes that his 9 and 14 year old children should be left to decide what medical care they seek, whether and when they attend school and what laws they will or will not abide by. [ 23 ] Ms. K. did not testify in great detail about her beliefs in these areas. She did give evidence that indicates that her view is the children should be attending school regularly as scheduled and that laws of this country should be complied with. She specifically referenced the COVID-19 mandates during the earlier stages of the pandemic and complying with the police in a traffic stop.

Children’s Views and Nature and Strength of Relationships [ 24 ] The information I have is that the children love both of their parents and enjoy spending time with both of them. I do not have information as to how aware they are of their parents’ beliefs or what they may think of those beliefs. They have a good relationship with each parent. History of the Children’s Care [ 25 ] Ms. K. was historically the stay-at-home parent. She has had the majority of the responsibility for their day-to-day care both pre and post separation.

She has primary residence of the children and the significant majority of the parenting time. She is most often going to be the adult responsible for registering the children for and getting the children to and from school and extra-curricular activities. She will most often be the one to tend to them when they are injured or unwell. [ 26 ] I accept that Ms. K. was not always the best housekeeper but there is no evidence that she has ever neglected the children or failed to properly care for them. I also accept that when the children are in Mr. K.’s care they are well cared for.

However, since separation, he has spent significantly less time with them in his care. Need for Stability [ 27 ] L.J.K. is a teenager and to a certain extent may cope better with changes in

schedule and be more equipped to have significant input into decisions affecting him. G.G.K. is 9. She will continue to benefit from stable and consistent decision making that grants her input where appropriate but does not leave decisions about significant issues like school and healthcare up to her. Ability of the Parents to Exercise Parental Responsibilities [ 28 ] Both parents are able to exercise their parental responsibilities. However, I find that Ms. K. is more willing to do so. Mr.

K. wants to have equal responsibilities and the final say, but his evidence and submissions demonstrate that he believes that it is appropriate for his 9-year-old daughter and 14-year-old son to make final determinations as to school, healthcare and other issues. Appropriateness of Requiring the Parents to Cooperate on Issues Affecting the Children [ 29 ] Mr. and Ms. K. have significantly diverging views on a number of important topics relevant to their children. There is evidence that they can work together and reach consensus on some things, but remain completely at odds on others.

It is appropriate to encourage them to work together for the good of their children, but it is unrealistic to expect them to be able to reach consensus on many of the parental responsibilities set out in the FLA . Family Violence [ 30 ] I find that in the past Ms. K. has been very angry with Mr. K. and made violent remarks to him and exhibited physical aggression towards him. However, I find that this was during a time or times when she was frustrated and under significant stress. There is no evidence that she has behaved this way toward or in the presence of the children.

It does not impact her ability to be a good parent or to make decisions that are in their best interests. I find that historically Mr. K. demonstrated controlling and demeaning language and behaviour towards Ms. K. This includes attempts to control what she ate and to limit her involvement in the family’s finances. However,

there is no evidence that he has behaved this way toward the children beyond restricting treats and sweets. Now that the parties are separated, I conclude that it does not impact his ability to be a good parent or make decisions he believes to be in their best interests. Conclusion [ 31 ] In considering all of the evidence, the test for what is in the best interests of the children and the other relevant sections of the FLA , I find that it is appropriate for Mr. and Ms. K. to share parental responsibilities equally. I find that it is in the best interests of the children that Ms.

K. has the final decision making power where the parties cannot agree. Child Support - What Annual Income Should be Attributed to Each Party? Position of the Parties [ 32 ] Ms. K. says that based on the evidence presented, I should impute income of $104,000 to Mr. K. and $23,000 to her. She says Mr. K. used to work in high-end carpentry and could be earning significantly more money but is choosing to under-employ. It was suggested that I calculate his income by 40 hours per week times 52 weeks for a total of 2080 hours at an hourly rate of $50 which results in an income of $104,000.

The Federal Child Support Guideline amount for two children at that income would be $1575 per month. Ms. K. says that she is employed as an educational assistant and even at full-time hours, she is only likely to earn between $22,000 and $24,000. She suggests I impute the mid-point of these two amounts. [ 33 ] Mr. K. said I could impute income of $22,000 to Ms. K., which is the low end of the range suggested by Ms. K.. But he did point out that she has time off at Christmas, Spring Break and Summer Break and she does not work during those times.

He says that she could get part-time work then and could also choose different employment that might pay more, such as working in construction as a flagger but respects her right to choose. He says that he should also have the right to choose what work he does and how much he does. With respect to his income he argues that based on the evidence before me, I should impute an annual income of $63,000 to him. He says that based on his calculations using those incomes, the Federal Child Support Guideline amount for two children is $960. However, he said he would be willing to pay $1100 per month.

Current Arrangement [ 34 ] Pursuant to an Interim Order dated January 20, 2022, Mr. K. currently pays Ms. K. $1200 dollars per month in child support, payable in instalments of $600 on the 1 st and 15 th of every month. In addition, Exhibit 13 set out the previous support arrangements. The parties are in agreement that Mr. K. paid Ms. K. $2200 per month in support from May 2019 to April 2021. Mr. K. testified that this amount was paid while Ms.

K. was going to school and it was clear to me that it was intended to encompass child support and spousal support. [ 35 ] In April and May 2021 that amount was reduced to $1300 to reflect payments for child support only. There is no evidence before me that Ms. K. abandoned her right to seek spousal support, only that Mr. K. stopped making payments that would be reflective of spousal support. [ 36 ] In June 2021 the child support amount was further reduced to $1100 per month. Mr. K. stated this reduction was to offset his travel costs to and from [omitted for publication] when exercising his parenting time.

He continued to pay that amount until the January 2022 Order. [ 37 ] In addition to those support payments it is agreed between the parties that in 2019 Mr. K. also assisted Ms. K. with expenses totalling $7165 including rent, car insurance, dental insurance, cell phone bills and snow tires. Determining Income Mr. K. [ 38 ] Mr. K. is self-employed as a carpenter. Mr. K.’s evidence is that his invoices for carpentry work in 2021 totalled $66,445. He suggests that after considering expenses I should reduce that amount to an imputed income of $63,000. Mr.

K. has previously sent e- mails to people regarding his services indicating that he generally charged between $45 and $55 per hour in 2021. Dividing the total amount of the invoices he has provided by $45 per hour equals 1477 hours of work in 2021. That is 603 hours less than a 40-hour work week every week for 52 weeks. Dividing the total amount of invoices by $55 equals 1208 hours of work which is 872 hours less than a 40-hour work week every week for 52 weeks. [ 39 ] I will take this opportunity to again point out that Mr. K. does not report this income on tax returns and does not regularly file tax returns.

When he has filed he has not indicated income anywhere near the amount of his actual earnings. I point this out because it is evidence that he is not making CPP contributions which I should consider in deciding whether to impute an income to him for the purposes of considering support payments. [ 40 ] Mr. K. says that to impute an income based on 40 hours per week for 52 weeks a year would amount to “indentured servitude”. He says that he could work in the Lower Mainland and “rake in the cash” but that he has chosen not to live his life that way.

He says $65,000 is a reasonable wage (although elsewhere referred to $63,000) and imputing income against anyone who makes under a certain amount is “putting a shine on slavery.” [ 41 ] Mr. K. has some valid expenses that need to be accounted for under s. 19(1)(

g) of the FLA . He contracts for carpentry work but there is evidence that, at least on some projects, he buys the material for the project and then invoices for it. He did not provide me with detailed evidence regarding the cost of materials he purchased in 2021. In an email to [omitted for publication] dated January 5, 2022 he set out business expenses for 2022 including fuel, ferry, phone, Internet, car insurance, chiropractor and life insurance totalling $16,850. There was no amount listed for materials.

I was not given any viva voce evidence or explanation about these expenses such as which vehicle and who owned it, invoices for fuel and what trips the fuel was used for or invoices showing the cell phone and Internet was in

Mr. K.’s name. [ 42 ] The onus is on Ms. K. to show on a balance of probabilities that income should be imputed to Mr. K. on a rational, evidentiary basis. Here the Form 4 Financial Statement is incomplete. It includes income tax returns from 2018 to 2020 but Mr. K. candidly admits that he was not truthful in reporting his income in those years. There is no income tax return for 2021. Ms. K. has given evidence of what he used to make as a carpenter, has conducted some searches for rates of pay for carpenters in the Lower Mainland area, and points to Mr.

K.’s evidence regarding hourly rate and the fact that he could work more if he wished to. Generally healthy, employable parents have a duty to seek employment; capacity to work will be based on the parent’s personal circumstances and job opportunities that are reasonably available; persistence in un-remunerative work and self-induced reduction in income will not be excused (see Fong v. Fong, 2011 BCSC 42 ). [ 43 ] In reviewing s. 19 of the Federal Child Support Guidelines , I find that the discretion to impute income to Mr. K. comes from (

a) his intentional underemployment and (

f) he has not disclosed income information as required. His own evidence is that he moved to [omitted for publication] as a lifestyle choice. This has led to a purposeful reduction in work hours as well as occasional non-cash remuneration such as free rent. Mr. K. is quite right that he is free make the choice to live on [omitted for publication] and work where, how, and when he chooses. However, child support is the right of the child. His personal choice to reduce his work hours and income do not absolve him of his child support obligations. [ 44 ] I do not agree that Mr.

K. should be required to work 40 hours per week for 52 weeks each year. Under the Employment Standards Act employees are entitled to a 30 minute meal break in a five-hour shift and at least two to three weeks of annual vacation. I find that the proper way to calculate imputed income is to take $50 per hour, which is the midpoint of the hourly rate set out in Mr. K.’s communications with clients, and multiply that by 35 hours per week; allowing him one hour per eight-hour day for breaks. This equals gross earnings of $1750 per week. I find that it is appropriate for Mr. K. to have one month of vacation every year.

He is not an employee and that vacation would not be paid vacation. Therefore I take the $1750 weekly earnings and multiply them by 48 weeks which equals $84,000. [ 45 ] Once it is determined that income should be imputed the onus shifts to the payor spouse to demonstrate that reductions from their income are reasonable. As set out above, Mr. K. did not give me any details of properly incurred expenses in 2021. There is an indication that for one project in 2020 where the invoices for his work amounted to $27,906.25 he incurred costs for materials of $809.

Additionally, although there is no detailed evidence about fuel, vehicles, cell phone etc., there is some evidence that he incurs those costs in the course of his work. [ 46 ] Given the lack of evidence that the expenses set out in Exhibit 7 were strictly for work, I find that allocating 50% of those allowable expenses would be fair in the circumstances. I say allowable because I find that the fuel, cell phone, Internet and car insurance would be allowable business expenses but not the chiropractor and life insurance.

The only evidence I have regarding trips on the ferry relate to exercise of parenting time and I do not find that an allowable business expense. Accordingly, based on Exhibits 6 and 7, I am prepared to find annual expenses of $4370 for car and communication related expenses and $2520 for materials (based on the percentage of cost of business materials being three percent of the project in Exhibit 6) for a total deduction from income of $6890. I find that the appropriate imputed income for each year from 2019 to present is $84,000 earnings less $6890 deductions or $77,110. Ms.

K. [ 47 ] Based on her Financial Statement in Form 4 and the submissions of the parties, I find that the fair thing to do is to impute income of $23,000 to Ms. K. which is the mid-point of the projected range of income she is likely to earn as an educational assistant. I will not impute additional income to her on school breaks as I find that she remains the children’s primary caregiver for half of that time and would not be in a position to find employment for the short time period during which the children are with Mr. K.

I am also satisfied that she collects unemployment insurance during the summer to supplement her income. Conclusion on Income [ 48 ] Income from 2019 to present will be imputed to Mr. K. in the amount of $77,110 per year. [ 49 ] Income for 2022 will be imputed to Ms. K. in the amount of $23,000. Child Support - What Child Support Amount is Payable Pursuant to the Federal Child Support Guidelines ? Guideline Amounts [ 50 ] Based on a payor parent’s income of $77,110 the monthly Federal Child Support Guideline amount for two children with a recipient who is a primary parent is $1197.

Conclusion on Amount Payable [ 51 ] Beginning November 1, 2022 Mr. K. shall pay to Ms. K. $1197 per month for the support of the children. Special and

Section 7 Expenses [ 52 ] Based on the incomes set out above I find that the parties shall split any s. 7 expenses in accordance with their respective incomes. Mr. K. will be responsible for 77% or any such expenses and Ms. K. will be responsible for 23%. Spousal Support - Should an Order for Spousal Support be made? Position of the Parties

[53] Ms. K. says that this was a 16-year marriage with two children. She did not work during most of the marriage and when she didit was a minimal amount of part-time work. She says that she is entitled to an indefinite order for spousal support on a compensatory andnon-compensatory basis in the mid-range. She suggested that the appropriate amount would be $513 per month but that was based onMr. K. having a $104,000 income, not the $77,110 I have imputed. [54] Mr. K. says that he should not be required to pay spousal support. He points to the fact that he paid a higher amount of supportto Ms.

K. when they separated until she was able to complete her schooling and become employable. He argues that she has chosen theline of work she is in and he should not be responsible for augmenting that at this point. Entitlement to Spousal Support [55] Ms. K. is a “spouse” as defined in s. 3 of the FLA and has filed her application for spousal support within the required time limit. The first issue for me to decide is whether she is entitled to support. [56]

Section 161 of the FLA sets out the objectives of spousal support which I must consider. Those are: (

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

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide supportfor 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. [57] Spouses can be entitled to support on a compensatory basis, which focusses on objectives (

a) and (

b) above. Spouses can also beentitled to support on a non-compensatory (or needs) basis, which focusses on objectives (

c) and (

d) above. Finally, spouses can beentitled to support on a contractual (agreement between the parties) basis. In this case Ms. K. asserts that she is entitled on both acompensatory or non-compensatory basis. Entitlement can be made out on one basis or on a combination of them. Compensatory Support [58] The purpose of compensatory support is “to provide redress to the recipient spouse for economic disadvantage arising from themarriage or the conferral of an economic advantage upon the other spouse” (see Chutter v. Chutter, 2008 BCCA 507 at para. 50).

Thisbasis of relief recognizes that spouses who assume primary childcare and household responsibilities often have lower earning potentialand fewer prospects for financial success. It also seeks to account for economic advantages conferred on the other spouse who remainsable to pursue financial or career goals as a result of the other’s sacrifices (see Moge v. Moge, (SCC), [1992] 3 S.C.R.813). [59] Ms. K. testified that in the early stages of the marriage there was a joint bank account but Mr. K. paid the bills as he was the onlyone earning an income.

They discussed bigger purchases, and for smaller purchases like groceries she would just go and buy them. However, they got into debt and Mr. K. decided it would be better if they had separate accounts. From that point on he would transferher a $2000 monthly allowance for clothes, food, entertainment for the children and anything else she and the children needed. [60] From the time the children were born she stated that Mr. K. worked during the day doing high end carpentry, then came home inthe evening and spent time with the family and did “parenting stuff”.

She also described him as an engaged parent on the weekends. Shesaid that the couple’s standard of living at the time of separation was good. To her knowledge they did not have any significant financialissues and did not have trouble making the rent on the farmhouse they were living in. She stated she was not at all involved in thefinances and had no knowledge of what was going on with their money. [61] On cross-examination Mr. K. asked her if it was possible her feeling of not being short of money was due to him insulating herfrom financial reality.

She replied yes, adding that he had total control of the finances and believed she was not good with money and itwas his business. He also asked her if they had agreed on a division of labour where she would stay home and care for the children andhe would go to work and she agreed with that statement. He questioned her about her performance as a homemaker and showed her thephotos that are marked as Exhibit 3. She agreed with him that when she was younger she did not do a good job but at this point her skillsand the environment have changed. [62] Mr.

K. testified that they were together for four and a half years before having children. He said Ms. K. worked a few temporaryjobs here and there but that he “provided her immediate physical needs” and confirmed that he worked and she did not. He says heencouraged her to use the “gift of time” to pursue her interests such as a career or education but that she did not do so. He testified toliving in “squalor” stating that at one point they were evicted from their first home because the landlords observed the state of thebasement suite and were “appalled”.

Later in the marriage he said, and she agreed, she worked part time hosting Karaoke. He alsotestified that the family was regularly relying on overdrafts and in financial turmoil including Ms. K. failing to pay her credit card billthat resulted in their joint account being shut down and Mr. K. having to borrow money from family. [63] The parties agreed that they were both actively involved in community theatre in addition to their other obligations. [64] Mr. K. may have encouraged Ms. K. to pursue work or a career or an education and he did support her in her involvement incommunity theatre.

However, the evidence shows that the parties agreed very early on that Ms. K. did not have to work and that shewould stay home and be the primary caregiver to the children after they were born. There is no evidence that Mr. K. would have beenagreeable to her working full time and the children attending daycare or before and after school programs. The fact that she was not anexcellent housekeeper does not detract from this agreement.

The analysis of compensatory spousal support focusses on what she gave upin terms of the ability to earn an income and the idea that being the stay-at-home parent put her at a disadvantage at the time of the

marital breakdown. [ 65 ] I find that, in the early stages of the marriage, the parties agreed that Ms. K. could stay home and would be supported by Mr. K. Although he says he encouraged her to pursue an interest he was always willing to be the sole income earner and paid her an allowance. Later when the children were born she was, by agreement, the stay-at-home parent and primary caregiver. Taking into consideration all of the evidence and the factors relating to an award for spousal support on a compensatory basis, I find that Ms. K. has a strong claim to spousal support on a compensatory basis.

Non-Compensatory Support [ 66 ] Non-compensatory support is needs based. It is based on the idea that marriage is an “interdependent union” and that “upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state”. The aim of this type of support is to “narrow the gap between the needs and means of the spouses on marital breakdown” (see Chutte r at para. 54 ). [ 67 ] Ms. K. testified that upon the marital breakdown Mr. K. went to stay with his parents while she and the children remained in the rented farmhouse.

A couple of months later she and the children moved to a basement suite in Abbotsford and Mr. K. returned to the farmhouse. She described that she and the children lived in that basement suite through 2019 and into 2020, including during COVID-19 lockdowns, while she and the children were doing school at home as she had already begun to seek qualification to work as an Educational Assistant. In December of 2020 she moved to the house she has been renting more recently; however, her lease is up this December and the house is for sale so they will likely be required to move again. Her current rent is $2100.

Her father lives with her and pays “his share of the rent”. She says that she currently has no money left over at the end of the month and expects that a new similar residence will cost more than her current rent and she is not sure how she will afford that. She also spoke of driving the children to and from school and the cost of that. [ 68 ] Mr. K. testified that in early 2020 he renovated a cabin on [omitted for publication] for free so that he could have a place to have his children. Then in April 2020 he renovated another “unlivable cabin” and he now lives in a 650 square foot home with his girlfriend.

He says that this allows him to keep his rent low to support Ms. K. and also have quality of life that does not revolve around work. He is currently working on an outbuilding for his son that can serve as a space for him when he visits as he currently shares a room in the home with his younger sister. As indicated above, I have determined that, while he is entitled to do so, Mr. K. is intentionally underemployed and he could have a larger home and more material possessions or money if he chose to. [ 69 ] I am satisfied that Ms. K. had a marked decline in her standard of living immediately upon marital breakdown.

I am satisfied that the decline in standard of living was not as a result of purposeful non-employment, in fact she swiftly moved to get an education that would allow her predictable work on a

schedule that would still allow her to be available to her children when they were not in school. It can be said that to some extent, Mr. K.’s standard of living has also declined; however, as I have set out above, he has made the choice to relocate to [omitted for publication] and work less than full-time to create art and is “happier doing that” than he would be “making a bunch of money and not having the time or energy to enjoy it”. Conclusion on Entitlement [ 70 ] Between May 2019 and April 2021, Mr. K. recognized Ms.

K. needed to gain skills and employment in order to become self- sufficient and paid her $2200 per month for her support and support of the children. He lowered this amount to $1300 solely for the support of the children after she began working. She was not asked questions about whether she agreed to no longer receiving some form of spousal support. In a series of texts from April 4, 2021 Ms. K. does appear to agree to the change in payments. In a text she wrote at 12:33:20 she confirmed that she started working right before the end of March so the April payments would be $1300.

Her application for spousal support was filed four months later. On the whole of the evidence it has not been established that she agreed to give up any and all rights to a claim for spousal support after April 2021. [ 71 ] I find that Ms. K. has established entitlement to spousal support on a compensatory basis and, to a lesser extent, on a non- compensatory basis. Spousal Support - If Spousal Support is Ordered what is the Appropriate Amount? Factors to Consider [ 72 ]

Section 162 of the FLA sets out criteria for determining the amount and duration of spousal support. That

section requires the Court to consider the means, needs, and other circumstances of each spouse including length of cohabitation, the functions performed by the spouses during the marriage and any order, agreement or arrangement relating to the support of either spouse. [ 73 ] In this case, there is a significant difference between imputed incomes. Ms. K. is earning approximately one third of the income I have imputed to Mr. K. The parties were married for 16 years. During those 16 years Ms. K. was always a homemaker or stay-at-home mother and only occasionally worked on a part-time basis.

There is no previous order relating to spousal support. There has been a previous agreement that Mr. K. would pay some support to Ms. K. until she became employed, which he honored. Based on the text messages in Exhibit 4, I find that there is some evidence that Ms. K. at least acquiesced to that and may have indirectly expressed agreement to that. However, I do not find that she has ever given up her legal right to seek an order for spousal support. Ms.

K. has greater financial demands on her by virtue of residing in the Lower Mainland which is necessary as the children are both still enrolled in school and will be for quite some time. DivorceMate Calculations [ 74 ] The parties have provided support calculations and I have reviewed them. However, I have determined that the parties’ incomes differ from those calculations. When the imputed incomes of $77,110 for Mr. K. and $23,000 for Ms. K. are entered in the with children formula for a 16-year marriage, the formula results in a range of support of $0 to $6 per month for an indefinite duration with a minimum

duration of eight years and a maximum duration of 16 years from the date of separation. [ 75 ] Accordingly, I find that Ms. K. would be entitled to an indefinite award for spousal support. I find that an amount roughly in the middle of the range would be appropriate and based on the parties imputed incomes and parenting time arrangements the current amount of that award is $1 per month.

FINAL ORDERS [ 76 ] On Application of J.L.K. and L.M.K. [ 77 ] After being satisfied that the names and dates of birth of the children are as follows: L.J.K. born [omitted for publication]; G.G.K. born [omitted for publication] [ 78 ] This Court orders: 1. The Interim Order of the Honourable Judge G.J. Brown dated January 20, 2022 is cancelled and replaced with the following order. 2. The court is satisfied that J.L.K. born [omitted for publication] and L.M.K. born [omitted for publication] are the guardians of the children under s. 39(1) of the Family Law Act . 3.

J.L.K. will have primary residence of the children. 4. L.M.K. will have parenting time with the children every second weekend from after school on Friday until 8:00 pm on Sunday. If the Friday adjacent to one of Mr. K.’s parenting time weekends is a statutory holiday or a school Pro-D day, Mr. K. will have parenting time for the weekend starting from after school pick up on Thursday. If the Monday following Mr. K.’s parenting time weekend is a statutory holiday or school Pro-D day, Mr. K.’s parenting time will end at 8:00 pm on Monday. Mr. K. may also have such further times as agreed to between the parties. 5.

L.M.K. shall pick up and drop off the children at the beginning and end of his parenting time. 6. The parties will make their best efforts to share parenting time equally during school holidays including Winter Break, Spring Break and Summer Break. 7. J.L.K. is entitled to all other parenting time. 8. Pursuant to s. 40(2) of the Family Law Act , J.L.K. and L.M.K. will share equally all parental responsibilities for the children as set out in s. 41 of the Family Law Act .

Pursuant to s. 49 of the Family Law Act , if J.L.K. and L.M.K. cannot agree on a parental responsibility, J.L.K. may make the decision and L.M.K. may apply for a review of that decision. 9. L.M.K. is found to be a resident of British Columbia and is imputed to have a guideline income of $77,110. 10. J.L.K. is found to be a resident of British Columbia and is imputed to have a guideline income of $23,000. 11.

L.M.K. shall pay to J.L.K. child support of $1197 per month payable in two equal installments on the 1 st and 15 th day of each month commencing November 1, 2022 and continuing in a like manner each month thereafter, for as long as the children are eligible for support under the Family Law Act or until further order of this court. 12. L.M.K. shall pay to J.L.K. as spousal support the sum of $1 per month, commencing on November 1, 2022 and continuing on the 1 st day of each and every month thereafter.

Either party may apply pursuant to s. 168 of the Family Law Act to review the spousal support payable after January 1, 2024, but spousal support will continue to be payable at the rate of $1 per month until further order of this court. The review will be permitted on the following grounds: a change in either or both of the parties incomes, one or more of the children ceases to be a child of the marriage, or a change in parenting arrangements.

The following matters will be considered for the purposes of a review: whether J.L.K. continues to be entitled to an award of spousal support, and if so what is the appropriate amount. 13. Until further order of this court, the parties shall exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than June 30 each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency immediately upon receipt; and (

c) Mr. K. shall provide Ms. K. with any and all invoices and receipts for revenue or income earned no later than June 30 of each year. 14. J.L.K. shall provide L.M.K. with a copy of the receipt or proof of payment for any special or extraordinary expenses and L.M.K. shall pay to J.L.K. his proportional share of those expenses within 30 days. The parties respective proportional shares are L.M.K. 77% and J.L.K. 23%. ____________________________

The Honourable Judge J.A. Harris Provincial Court of British Columbia