C.E. v. G.C., 2023 BCPC 254

Citation: C.E. v. G.C. 2023 BCPC 254 Date: 20231206 File No: F-3803 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.E. APPLICANT AND: G.C. and M.C. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: K. Benloulou, D. Kroker and Laura Hayward Counsel for the Respondent, G.C.: B.A. MacLeod Counsel for the Respondent, M.C.: P. Scotland Place of Hearing: Colwood , B.C. Dates of Hearing: July 24 - 25, December 4, 2023 Date of Judgment: December 6, 2023 Overview

Overview [ 1 ] M.C., now age 23, is the daughter of C.E. and G.C. M.C. suffered a brain haemorrhage in utero , and now suffers from cerebral palsy and related disorders. She has an IQ of 70. She lacks the use of the fingers on her left hand. She has graduated high school and completed some post-secondary courses at a community college. [ 2 ] C.E. and G.C. separated in February, 2012, and M.C. has lived with her mother since separation. [ 3 ] M.C. now has the opportunity to move to a homeshare facility for people with disabilities, funded by the Province of British Columbia. Ms.

Scotland informs me that M.C. will make a decision about whether and when to move to the homeshare “… after learning the decision in this case and how her move might impact her mother’s housing situation and finances …”. [ 4 ] M.C. became eligible for “Persons With Disability” (“PWD”) benefits of $1,450.50 per month on her 19 th birthday, in March 2020. She contributes $900 per month to C.E.’s household expenses. M.C. says that her PWD benefits are sufficient for her needs, whether she remains in C.E’s home or moves to a homeshare facility, and that she does not seek an order for ongoing child support.

She requires orthodontic care. The parties have agreed that G.C. will pay 67% of her orthodontic expenses and that C.E. will pay 33% of them. [ 5 ] G.C. alleges that he overpaid child support in relation to M.C. since her 19 th birthday, and seeks a refund of the overpayment from C.E. (to whom the support payments were made). C.E. opposes that claim. She seeks a retroactive increase in spousal support from G.C., and continuing child support for M.C. The Facts [ 6 ] C.E. and G.C. married on September 12, 1988 and separated in February, 2012. They have not divorced. They have five children, of whom M.C. is one.

C.E. home-schooled the children for most of their school years. G.C. worked as a manager in the retail food store industry. He attempted several business ventures in that industry, but they were not successful. C.E. worked occasionally in those ventures, but otherwise was a stay-at-home mom. G.C. says that C.E. decided not to pursue a career, although he urged her to do so. C.E. says that G.C. and their church both encouraged her to stay at home.

For the reasons given below (paragraph 18), I do not find it necessary to decide that issue of credibility. [ 7 ] G.C. and C.E. married shortly after C.E. graduated high school. Although C.E. has worked occasionally in G.C.’s various business ventures, she has never had employment in the conventional sense. She has no work history to present to a prospective employer. [ 8 ] When C.E. and G.C. separated, M.C. remained in the care of C.E. and the other four children went to live with G.C. [ 9 ] G.C.’s income since has increased significantly since 2015, as a result of a change in his career.

In 2015, he left his managerial role in the retail food sector to become the leader of an innovative new line of business for a seafood company, manufacturing pet food from seafood products. The business has become very successful, and his salary has increased in recognition of his contribution to that success. [ 10 ] C.E. is now 55 years of age. She suffers from diabetes, a herniated disc in her spine, and scoliosis in her lower back. She has kidney stones. She has polycystic ovarian syndrome, which leads to insulin resistance and hence to metabolic challenges which cause weight gain.

Her orthopaedic challenges make it difficult to exercise or to perform routine housework. She has received PWD benefits, commencing in 2012. Her present PWD benefit is $1,450.50 per month. If she is awarded spousal support, she will cease to be eligible for PWD benefits. [ 11 ] G.C. is now 60 years of age. [ 12 ] During the period 2012 – 2023, G.C. made payments to C.E. on account of his child and spousal support obligations. Some of those were “in kind” payments; i.e.

G.C. paid for such items as C.E’.s cell phone bill and auto lease payments, on the understanding that such payments would be credited against his child and spousal support obligations. The amount of his payments were negotiated and agreed between G.C. and C.E. from time to time, and were understood by both to be blended payments of child and spousal support. a. From October, 2013 to June, 2017, G.C. made monthly payments of $500. b. From July, 2017 to October, 2018, he made monthly payments of $420. c. From November, 2018 to April, 2019, he made monthly payments of $620. d.

In May, 2019, he made a payment of $1,620. e. From June, 2019 to March, 2020, he made monthly payments of $700. f. Between July 15 and December 31, 2020, he paid $2,800. g. In 2021, he paid $24,877. h. In 2022, he paid $34,799. i. In the first 11 months of 2023, he paid $30,784. [ 13 ] G.C. asserts that, because he was caring for four children, and C.E. for only one, her child support obligation should be offset against his, depending on the amount of her income each year. Because her income consisted solely of PWD benefits, the amount of the

offset would be relatively small. [14] The table below sets out G.C.’s taxable income and the corresponding figure for child support (as established by the tableannexed to the Federal Child Support Guidelines) in each year in issue: YEAR INCOME (ROUNDED) CHILD SUPPORT OBLIGATION(ANNUAL)2012 $52,000 $5,8562013 $32,000 $3,5882014 $73,000 $8,3522015 $74,000 $8,4722016 $87,000 $9,6362017 $81,000 $9,2882018 $81,000 $9,2882019 $95,000 $10,8602020 $114,000 $12,7442021 $122,000 $13,5482022 $145,000 $15,804 [15] It will be apparent from paragraphs 13 and 14 that, if one views the payments made by G.C. as made as solely on account ofchild support: a. he overpaid in some years; b. he underpaid in some other years, c. in total, over the span of 14 years, he overpaid by a significant amount.

However, if: a. one views the payments as blended payments on account of child and spousal support; and b. an appropriate figure for spousal support would have been $20,000 per year, he underpaid over the 14-year period in issue. Ongoing Child Support [16] All parties agree that, by reason of her various challenges, M.C. continues to be a “child of the marriage” for the purposes ofentitlement to child support. As I explained in my earlier decision in this case (C.E. v. G.C. 2022 BCPC 65; [2022] BCJ No. 641), M.C.,and only M.C., has the right to pursue a claim for ongoing child support.

M.C. has declined to pursue that claim. She asks that theagreement of the parties to pay her orthodontic expenses be enforced, but seeks no other child support. C.E.’s claim for ongoing childsupport must be dismissed because she has no standing to advance it. M.C. has not made a claim for ongoing child support. In theresult, G.C. has no further obligation to pay child support (except, of course, for his agreed share of M.C.’s orthodontic expenses). [17] M.C. does not wish to participate further in these proceedings, and asks that I remove her as a party of record.

Ongoing Spousal Support [18] G.C. says that C.E. should not receive spousal support because she is capable of earning an income, and should be encouraged todo so. He says that her physical disabilities are the result of poor choices which she has made about diet and exercise, and that her lackof employment experience is the result of her choice to be a stay-at-home mom. I do not accept either submission. The simple fact isthat C.E.is now unemployable. She suffers from a number of medical conditions which significantly impair her physical ability to workor to exercise.

She has no work history or skills to offer a prospective employer. Even if her decision to be a stay-at-home mom wasinitiated by her, as G.C. alleges, it was a decision in which he acquiesced. I acknowledge that it is in the public interest and in the interestof fairness to encourage recipients of spousal support to strive for financial independence. However, there is no reasonable prospect ofattaining that goal in this case. I respectfully agree with the following comments of Justice Proudfoot in Story v.

Story (BC CA), [1989] BCJ No. 2238; 42 BCLR (2d) 21; 65 DLR (4th) 549: There may be cases where self-sufficiency is never possible due to the age of the spouse at the marriage breakdown. It is often, in myopinion, totally unrealistic to expect that a 45 or 50 year old spouse who has not been in the job market for many, many years to beretrained and to compete for employment in a job market where younger women have difficulty becoming employed. Employment andself-sufficiency are simply not achievable. In those cases, the obligation to support must surely be considered to be permanent.

Thatobligation must flow from the marriage relationship and the expectations the parties had when they married. [19] Because G.C. is no longer obliged to pay child support, the applicable provisions of the Spousal Support Advisory Guidelines(“the SSAG”) are those set out in

section 7. Because: (

i) G.C. and C.E. cohabited for more than 20 years; and (ii) the total of their agesexceeds 65 years, the duration of G.C.’s spousal support obligation is “indefinite”; i.e. his spousal support obligation continues for solong as the difference between his income and that of C.E. justifies an award of spousal support. [20] Under

section 7 of the SSAG, the quantum of spousal support payable is 1.5% to 2% of the difference between the incomes of thetwo spouses, multiplied by the number of years during which they cohabited. C.E. and G.C. cohabited for 23 ½ years, so the appropriate

quantum of spousal support would be 35.25% to 47% of the difference between their gross incomes. If she receives the spousal support, to which she is entitled, C.E. will not receive PWD benefits. It follows that G.C.’s spousal support obligation is 35.25% to 47% of his gross income. [ 21 ] G.C. says that the income figure to be used in assessing spousal support is that which he earned in his previous career as a manager of retail grocery stores.

That submission is consistent with one of the objectives of spousal support, which is to provide the recipient spouse with a standard of living comparable to that enjoyed by both spouses when they lived together. I agree with G.C. on that point. After he and C.E. separated, he took on-line courses to develop new job skills. Those, in turn, enabled him to start a new career as a manager of industrial processes. That initiative enables him to earn much more than he would have done had he continued his previous career.

C.E. should not share in the proceeds of that initiative. [ 22 ] G.C.’s ongoing spousal support obligation should be assessed by reference to his salary in 2014 (the last year of his career in retail grocery), adjusted for intervening inflation. His salary in 2014 was $73,000. Allowing for 25% inflation in the ensuing nine years, a competitive salary in that position today would be of the order of $91,000, and I use that figure as a proxy for his current income. 35% of $91,000 is $31,850. 47% of $91,000 is $42,770.

Spousal support of $3,000 per month would be mid-range, and I assess G.C.’s ongoing spousal support obligation in that amount.

G.C.’s Claim for Overpayment of Child Support and C.E.’s Claim for Retroactive Spousal Support [ 23 ] I dismiss G.C.’s claim for past overpayments of child support because: a. the common understanding of C.E. and G.C. was that the payments which he made were blended payments of child and spousal support; b. his spousal support obligation was of the order of $30,000 per year c. in each of the years in question, the amount which he paid was less than the total of his spousal and child support obligations. [ 24 ] I dismiss C.E.’s claim for retroactive child support because: a. the right to child support belongs to the child, not to the parent. b. the authority of a parent to pursue a claim for child support on behalf of a child is conferred by

section 41 (

k) of the Family Law Act SBC 2011 c. 25 . c.

section 41 of the FLA is in

Part 4 of the statute. d.

section 1 of the FLA defines a “child” as a person under the age of 19, except for the purposes of Parts 3 and 7 of the statute. e. a person over age 19 is therefore not a “child” for the purposes of

Part 4 of the statute, and

section 41 does not authorize a parent to bring a proceeding for child support on behalf of a person, like M.C., who is over age 19. f. if a “child” over the age of 19 years is not competent to manage his or her affairs, an application for child support may be made by a committee appointed under the Patients Property Act RSBC 1996, c 349 .

However, such a committee may be appointed only by the Supreme Court. [ 25 ] I dismiss C.E.’s claim for retroactive spousal support because: a. throughout the period in question, she was receiving PWD benefits of $1,450 per month. b. if G.C. had been paying spousal support, the amount so paid would have been deducted from C.E.’s PWD benefits.

As a result, C.E. would have been ineligible for PWD benefits. c. the objective of a retroactive award of spousal support is to put the recipient spouse in the financial position which she would have occupied if the spousal support had been paid as and when it should have been. d. throughout most of the period in question, the result of the following calculation would have been greater than zero. Take the amount which G.C. paid each year and add the amount of C.E.’s PWD benefits, then deduct the amount of spousal and child support which he ought to have paid.

That being so, the amount received by C.E. during most of the period in question exceeded that which she would have received if G.C. had made regular cash payments of spousal support and C.E.’s PWD benefits had been “clawed back” in consequence.

Disposition [ 26 ] G.C.’s child support obligation is terminated, effective November 30, 2023. [ 27 ] M.C. is at liberty to apply for child support if she chooses to do so. [ 28 ] M.C. is no longer a party to this proceeding. [ 29 ] G.C.’s application in relation to the alleged overpayment of child support is dismissed. [ 30 ] G.C.’s spousal support obligation is assessed at $3,000 per month, effective November 30, 2023. [ 31 ] C.E.’s application for retroactive child and spousal support is dismissed.

[ 32 ] G.C. is responsible to pay 63% of M.C.’s orthodontic expenses, and C.E.is responsible to pay 37% of them. _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia