M.N. v. J.J.G. Date:, 2010 BCPC 319

Citation: M.N. v. J.J.G. Date: 20101125 2010 BCPC 0319 File No: 0934253 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: M. N. APPLICANT AND: J. J. G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. J. BRECKNELL Counsel for the Applicant: F. Fatt Appearing on their own behalf: J. Gibb Place of Hearing: Prince George , B.C. Date of Judgment: November 25, 2010 [ 1 ] THE COURT: This is my decision on the matter of N. versus G., File Number 0934253. [ 2 ] By application made March 31st, 2009, M. A.

N. seeks to have J. J. G. pay Guideline maintenance for the benefit of their daughter, M. R. G., born [DOB. M. is 14. [ 3 ] Mr. G. opposes that application on three fronts, namely: (

a) that the parties have a separation agreement in which they agreed to joint custody, with Mr. G. paying $400 per month for M.’s benefit, plus all of her extended medical, dental, school, and activity expenses; (

b) he claims undue hardship pursuant to s. 10 of the Child Support Guidelines , such that the amount of maintenance he pays should be set below the Guideline amount; and (

c) he claims that he has care and custody of M. over 40 percent of the time, and as such s. 9 of the Child Support Guidelines should be applied and the reduced amount of maintenance paid. [ 4 ] Based on the evidence presented, I conclude that the Guideline incomes for the parties can be established. Mr. G. works in a pulp mill. His average income over the past three tax years for 2007, 2008, and 2009 was $106,000. From that he is entitled to deduct his union dues, leaving a Guideline income of $104,700.

His income for 2010 is likely to be over $100,000, but it may decrease in 2011 due to a job change at his place of employment. If that occurs, there may be reason for an application to vary the amount of maintenance payable based on that lower income.

[ 5 ] Based on a figure of $104,700, the Guideline maintenance amount for one child would be $944. [ 6 ] Ms. N. says that she has no income and that she has been out of work for some time. However, she gave no adequate explanation of her efforts to find work and why they have been unsuccessful. I conclude, utilizing s. 19 of the Child Support Guidelines , that she is intentionally under-employed and should have an income attributed to her of $16,000, being an amount similar to her earlier employment income from the service industry.

That amount would result in a maintenance order of $143 per month for one child. [ 7 ] MR. FATT: How much? [ 8 ] THE COURT: 143. The Separation Agreement [ 9 ] The parties resided in a common-law relationship which ended approximately 2000. They entered into a separation agreement which acknowledged that their incomes were Mr. G., 80,000, and Ms. N., 18,000, and that they would share joint custody of M., and that Mr. G. would pay $400 per month for her benefit, plus cover her extended medical, dental, school, and activity fees.

That separation agreement has been lost, although the parties both acknowledge that it was entered into. Furthermore, that separation agreement was never filed as an order of the court. [ 10 ] Mr. G. is up to date with his obligations under the terms of that agreement. Prior History [ 11 ] Prior to her relationship with Mr. G., Ms. N. was married and had three children, all of whom lived at one time or another with her and Mr. G. during their relationship. M. was born during their relationship. [ 12 ] Subsequent to the separation of the parties, Ms. N. entered into another marriage with a Mr.

N., separated from him, and is now divorcing him, and has entered into yet another new relationship. In her divorce proceedings with Mr. N. in the Supreme Court of British Columbia, that court has ordered that Mr. N. pay Guideline maintenance for M. and one of her siblings. [ 13 ] Ms. N., through her counsel, Mr. Fatt, made it clear to this court that part of the reason for pursuing Mr. G. now for Guideline maintenance is so that Ms. N. can be divorced from Mr. N., and that Mr. N. can be relieved of some or all of his maintenance obligations to Ms. N. for M., because Mr.

G. would be paying an appropriate amount of maintenance. [ 14 ] After the separation, Mr. G. entered into a new relationship. His spouse brought two children into that relationship. The father of those children has been ordered to pay maintenance, but is not meeting his obligations. Mr. G. and his spouse also have two children of their own. There are six people residing in his household, seven when M. is present. There are three or four people residing in Ms. N.'s household, one more when M. is present. Effect of the Separation Agreement [ 15 ] Ms.

N. maintains the existing regime under the separation agreement should be replaced by a court order for Guideline maintenance. Mr. G. maintains that there has been no change in circumstances since the separation agreement and that its provisions should be maintained. [ 16 ] Mr. G.'s argument in that regard must fail for two reasons: (

i) The law is clear that circumstances change over time and that over a decade the circumstances of both the parents and more particularly the child inevitably change, and as such, reconsideration of the parental obligations to that child is mandatory. (ii) This is not a case of varying a separation agreement, because it was never registered as a court order. It is open to the court to look at the matter as an originating application. However, in doing so, the court can take note of both the separation agreement, and if and how the parties have adhered to its terms during its currency. Undue Hardship [ 17 ]

Section 10 of the Child Support Guidelines says the following: 10.

(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (

a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (

b) the spouse has unusually high expenses in relation to exercising access to a child; (

c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (

i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (

e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if itis of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support underany of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of livingtest set out in

Schedule II. [18] The test set forward in s. 10 of the Child Support Guidelines is a two-part test. First, the court must determine whether or notthere is undue hardship. If the court is unable to determine that, then no further steps are taken. If the court concludes there is an unduehardship, then the standard of living test must be applied. [19] To obtain a finding of undue hardship, the applicant has a very high threshold to meet. The case law suggests that it must beexceptional, excessive or disproportionate. The applicant must prove those aspects.

The court will not assume that simply because anapplicant has a new family, that that new family will cause undue hardship. Those comments were made in the Court of Appeal in VanGool v. Van Gool, (1998), (BC CA), 44 R.F.L. (4th) 314. [20] In this case, Mr. G. has not provided even the most basic of necessary evidence in order for me to establish that he is sufferingfrom undue hardship. His application for relief in that area is dismissed. The 40 Percent Issue [21]

Section 9 of the Child Support Guidelines says: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over thecourse of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [22] The first step under s. 9 is for the court to conclude whether the threshold is met. If it is not, then there is no discretion andGuideline maintenance must be ordered. That was determined by the Supreme Court of British Columbia in Brougham v. Brougham,2009 BCSC 897. [23] If the threshold is met, the test to be applied is set out by the Supreme Court of Canada in the decision of Contino v.Leonelli-Contino, 2005 SCC 63. That case directs a trial court to consider all three factors set out in s. 9. Under subsection (

a) the firststep is to apply the set-off amount with discretion in the court to modify that figure if failing to do so would significantly vary the child'sstandard of living between the two households. Under subsection (

b) the court must examine the parents' respective budgets and actualexpenditures to address the needs of the child, and these expenses should be apportioned in relation to the parents' incomes. Undersubsection (

c) the court has broad discretion to consider "other circumstances" to order an amount below or indeed above the Guidelinefigure. The parties must present evidence to support any considerations under subsections (

b) or (c). The Evidence Regarding 40 Percent [24] Ms. N. did not keep records of the time M. has spent with her and Mr. G.'s family, except for four months between March andJune 2010. This is despite knowing that Mr. G. had put that very matter at issue as early as his reply filed April 24th, 2009. Instead,Ms. N. chose to criticize and disagree with Mr. G.'s calendar recordings by pointing to a couple of specific errors and then generalizing instatements about how she disagreed with how Mr. G. had calculated other days. [25] Mr. G. did not even keep records at all. He relied on his aunt, Ms.

S., at whose home M. spends the vast majority of her timewhen under Mr. G.'s authority. I accept Ms. S.’s evidence, given in a straightforward, fair, frank fashion, that she had tried her best tokeep accurate records of M.’s time with her or Mr. G., but that there may be a few errors in places. [26] In light of that evidence, the court is left to try to calculate how much time M. spends out of Ms. N.'s care. Utilizing the oralevidence given and the calendars presented as exhibits, I draw the following conclusions: (

a) During the 10 months of the school year, M. spends approximately 80 percent of her weekends away from Ms. N. In general, thoseweekends start after school Friday and extend until Sunday afternoon, or approximately 2.25 days, being one-half day on Friday, one dayon Saturday, and three-quarters of a day on Sunday. (

b) During the 10 months of the school year, M. spends approximately 80 percent of her holiday Mondays, Pro-D days, and other daysout of school away from Ms. N. This would include Labour Day, Thanksgiving, Remembrance Day, the Easter weekend, and VictoriaDay. (

c) During spring breaks and Christmas vacations, M. spends approximately 60 percent of her time away from Ms. N. (

d) The summer months, approximately 66 percent are spent away from Ms. N., because M. does not enjoy or participate in the outdoorpursuits enjoyed by Ms. N. and her family.

[ 27 ] Using those parameters, I calculate M.’s time away from Ms. N. under the four categories to be as follows: (a) 80 days; (b) 10 days; (c) 10 days; (d) 46 days, for a total of 146 days or approximately 40 percent of the calendar year. [ 28 ] In my view, the threshold claim by Mr. G. has been met. Having come to that conclusion, the first step to be applied is the set-off as set out in the case law. Mr. G., if paying a full amount of maintenance, would pay $944 per month for M. Ms. N., if Mr. G. had custody, would be paying $143 a month for M.

The set-off figure is $801. [ 29 ] In deciding whether to modify that number, I have to consider that in doing so it would affect M.’s standard of living in each of the households. Obviously it would be much better for M.’s standard of living in Ms. N.'s household if she was to receive $801 over the $400 per month she is now receiving. [ 30 ] I cannot conclude that it would reduce M.’s standard of living while in Mr. G.'s care, because M. is very fortunate that through the generosity of her great aunt, Mrs. S., she wants for little, despite the fact that Mr.

G. makes very little in the way of direct financial contribution to Ms. S. [ 31 ] Where it could affect M.’s standard of living would be in the areas that Mr. G. does now provide funds: the extended medical, dental, sports, and school expenses. [ 32 ] Under s. 9(

b) I have to consider both parents' budgets and expenditures as set out in their respective financial statements. I find Ms. N.'s expenditures in many areas to be unrealistic for a person maintaining they have no income, particularly such discretionary expenditures like entertainment, alcohol, tobacco, and gifts. In a similar vein, many of Mr. G.'s expenses seem high, but I conclude that they, even though high, are more realistic, given the larger household he has to maintain. [ 33 ] Under s. 9(

c) I must consider as a special circumstance the benefits M. receives from her generous great aunt, a situation I am now convinced will continue, regardless of any outcome of this court case. [ 34 ] Taking all of those factors into account, I conclude there must be some further adjustment from the straightforward set-off calculation under s. 9(a), particularly in light of the fact that Mr. G. remains willing to maintain the additional expenses for M. [ 35 ] This matter commenced in March of 2009. The first trial date was scheduled for March 2010, but the matter has not concluded until today.

There are two main issues in contention and each party has been successful in one of them. Mr. G. has paid all the amounts due under the existing regime. I consider it to be fair to both the parties, but much more importantly to M., that the order I make today should commence as of January 1, 2010. [ 36 ] Therefore, I make the following orders: (

i) Mr. G. shall maintain M. on any medical, dental, extended medical, and pharmacy plans available to him through his employer, and he shall cover any excess fees or expenses arising from necessary medical or dental care for M. not covered by those plans. (ii) Mr. G. shall pay all the sport fees, uniform costs, and other ancillary expenses for M. for any activities she wishes to participate in, up to a maximum of $600 per year. Any costs over $600 must be borne equally between the parties. (iii) Mr.

G. shall pay all school fees, books and supplies, field trip, and other school-related expenses for M. up to a maximum of $600 per year. Any costs over $600 will be borne equally between Mr. G. and Ms. N. (iv) Commencing January 1, 2010, and payable on the 1st day of each and every month up to November 1st, 2010, Mr. G. shall pay child maintenance for M. to Ms. N. in the amount of $675 per month. The arrears arising from this order of $3,025, being the amount of $675 minus 400 per month, times 11 months, shall be paid in full to Ms. N. no later than December 31st, 2012. (

v) Commencing December 1, 2010, and payable on the 1st day of each and every month thereafter, Mr. G. shall pay child maintenance for M. to Ms. N. in the amount of $675 per month, payable in bi-weekly instalments of $311.55 if Mr. G. wishes to do so. [ 37 ] Anything further, Mr. Fatt? [ 38 ] MR. FATT: I wonder if I could -- that's all pretty quick. I know that Madam Clerk will let me look at her notes, but -- [ 39 ] THE COURT: I am ordering a transcript because I am sending it to the judicial database, in any event, Mr. Fatt, if you want to wait. [ 40 ] MR.

FATT: Okay, well, that's all I want really. [ 41 ] THE COURT: Sure, you can have access. [ 42 ] MR. FATT: Because -- because I -- and then I'd like -- I'd ask that Mr. N.'s [sic] approval as to form be waived. [ 43 ] THE COURT: No, Mr. G. can approve the order. He came here to contest the matter. You can send it to him. [ 44 ] I will add as a term of the order that Mr. G. is entitled to endorse the order. If he has not returned an endorsed order to you, Mr. Fatt, within 21 days of you mailing it to him, you can bring it before me for settlement. (REASONS CONCLUDED)