L.W. v. R.P.B. Date:, 2012 BCPC 564

Citation: L.W. v. R.P.B. Date: 20120510 2012 BCPC 0564 File No: 093760 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: L. W. APPLICANT AND: R. P. B. RESPONDENT RULING CONCERNING CHILD SUPPORT (s. 9 Guidelines ) AND REVIEW OF ACCESS OF THE HONOURABLE JUDGE E. L. Bayliff Counsel for the Applicant: H. Zetzsche Appearing on his own behalf: RPB Place of Hearing: Williams Lake , B.C.

Date of Hearing: March 12, 2012 Date of Judgment: May 10, 2012 [ 1 ] LW and RPB seek a ruling on the proper amount of child support payable by RPB to LW for their two children, MCB born [omitted for publishing] and JPB born [omitted for publishing] . MCB is now 13 and JPB is now 6. They also seek a review of access. [ 2 ] This ruling follows my decision on January 5 th , 2012 which dealt with the residency of JPB, access and some other issues. Issues of child support and a review of the access plan set out in the January 9 th Interim Order were adjourned for hearing on March 12 th .

On that date I heard the evidence of LW and RPB and the submissions of each and reserved judgment until today. [ 3 ] I should add that I believe this ruling deals with the last of the issues raised by RPB’s Application filed April 21 st , 2010 (document # 6) and LW’s Amended Reply filed December 2 nd , 2010 (document # 18). [ 4 ] The two issues before me are: (1) child support, and (2) review of access. 1 . Child Support [ 5 ] LW and RPB find themselves in what has been termed a “hybrid” custody situation.

Their daughter MCB divides her time equally between her parents – “shared custody” as contemplated by s. 9 of the Federal Child Support Guidelines. Their son JPB is primarily resident with LW – the type of arrangement contemplated by s. 3 of the Guidelines . How are the Guidelines to be applied in this situation? [ 6 ] As many courts have commented, the Guidelines do not expressly cover a “hybrid” situation such as this: Sadkowski v.

Harrison-Sadkowski, 2008 ONCJ 115 at ¶ 22 . [ 7 ] The approach adopted by the court in Sadkowski was similar to that used in a case of “shared custody” (payer parent has the child more than 40% of the time) as set out in s. 9 of the Guidelines. [ 8 ] The first step in an s. 9 analysis is to calculate the set off between the amounts set out in the applicable tables for each of the spouses. [ 9 ] The Sadkowski decision (¶ 25 ), which has been followed by several decisions in British Columbia ( E.G.P. v. S.L.P., 2009 BCSC 1221 and Hilton v.

Hilton, 2011 BCSC 206 ), advocates an “economies of scale” approach rather than a “two stage” approach when it comes to calculating the set off in a case of “hybrid” custody, such as this. In the case at bar this means that my starting point must be to calculate the table amount payable by RPB for MCB and JPB set off against the table amount payable by LW for JPB. [ 10 ] RPB is a cook at a local hotel and his income as shown on his 2011 T4 is $47,137.80.

I do note that RPB is contesting his employer’s assertion that he received a taxable benefit of $720 for meals and that if he is successful his income will be reduced somewhat. I have decided that I will use the $47,137.80 figure because this is what is shown on his T4 slip.

If RPB is successful in disputing the taxable benefit issue he should advise LW and provide proof and she may well be prepared to agree to a re-calculation of child support based on his lower income. [ 11 ] The table amount of child support payable by RPB for two children at the income of $47,137.80 is $715/month. [ 12 ] LW is a receptionist/bookkeeper at a local car dealership and her income as shown on her 2011 T4 is $20,754.96. The table amount of child support payable by LW for one child at this income is $188/month. [ 13 ] The set off is $527/month ($715 - $188 = $527).

This is the starting point for calculating the proper amount of child support payable per month by RPB to LW. [ 14 ] Should this also be the ending point of the analysis? Or, should the court make some upward adjustment of this figure in order to properly take into account the increased costs of a shared custody arrangement and the “conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought”? (See s. 9(

c) of the Guidelines .) [ 15 ] RPB argues that the set off which produces the figure of $527/month should be the beginning and the end of the analysis. He currently pays $506/month and has been doing so since the Interim Order of August 24 th , 2010 and his position is that he should not have to pay anything much more than that.

He acknowledges that, on paper, LW makes a little less than one half of what he makes per year but when you factor in the Child Tax Benefit which she receives for both children (about $6,000/year), child support (currently about $6,000/year), and the fact that she lives in subsidized housing and receives a daycare subsidy she effectively brings in an income of about $45,000/year which is very close to his income. His point, I think, is that MCB and JPB have much the same standard of living in his household as they do in LW’s household despite the apparent disparity in income between their parents.

He also makes the point that LW does not work full time (she works about 30 hours a week – full time work is usually considered to be about 40 hours a week) and he argues that she should work longer hours in order to do her part to support the family. Finally, he argues that her figure for food ($400/month or $4,800/year: Exhibit 1 ) is inflated. He points out that it is double what she estimated in her Financial Statement filed on June 10 th , 2010. He questions whether she is including the cost of feeding Mr.

L, her partner. [ 16 ] LW’s position is that the set off amount of $527/month should be the starting point but not the ending point in determining a proper and fair amount of child support for MCB and JPB. She argues that the court should settle on some higher figure than $527/month. She reminds the court and RPB that if both children were primarily resident with her the Guidelines would say that RPB should pay her $715/month in child support. $527/month is almost $200/month less than that. Yet, she argues, her fixed costs such as

housing (a three bedroom townhouse in a subsidized housing complex for which she currently pays $453/month in rent) and transportation (a used, 2006 car, upon which she is making payments) remain exactly the same whether both children are primarily resident with her or whether they divide their time between their parents as is the case with MCB.

She has itemized her “Yearly Expenses 2011-2012” for the children ( Exhibit 1) and argues that she ends up spending almost the same amount of money on things like clothes, extra-curricular activities and even on food for the children as she would if they were both primarily resident with her.

Put simply, the fact that MCB spends half her time at her father’s house saves LW very little money. [ 17 ] As for RPB’s argument that she receives various subsidies and benefits which result in her having a standard of living quite comparable to his, LW points out that it is very much to the whole family’s advantage that she is so careful with her money and that she has managed to obtain subsidized housing and a daycare subsidy.

On the point that she should get a second job in order to work more hours and earn more money, LW responds by saying that she has carefully considered this and made the decision to stay where she is even though her hours are less than full time. She is making about the same amount of money as she was in earlier years when she was working full time but she now has more time to spend with the children. This also results in her using day care less for JPB.

When the needs of the children are considered along with the need for income, LW argues that her decision to remain with this employer at 30 hours a week is the best decision in the circumstances. Finally, as it concerns the food cost of $400/month or $4,800/year set out in Exhibit 1, LW position is simply that she believes she underestimated the cost of buying food for herself and the children when she prepared her 2010 Financial Statement. She insists that Mr.

L pays his own way by contributing groceries and other things to her household and further that he only stays at her place for a few days each week. [ 18 ] I agree with LW that it is very much to the family’s advantage that she qualifies for subsidized housing and daycare. I also agree with RPB that, thanks to these programs, together with the Child Tax Benefit, LW is able to maintain a better standard of living for herself and MCB and JPB than she would otherwise be able to do on an income of just over $20,000 per year.

I would add that I also agree with RPB that the fact he lives in, and owns, the former matrimonial home on [omitted for publishing] in Williams Lake whereas LW rents is not as clear an indication as one might think that he has a higher standard of living than her because LW owns a home back in the [omitted for publishing] , her country of origin. [ 19 ] As it concerns the Child Tax Benefit, I gather, from RPB’s cross examination of LW, that she receives about $500/month from this source or about $6,000/year.

RPB is correct in arguing that the Child Tax Benefit can be considered as part of LW’s overall “means” in this s. 9(

c) analysis. (See L.R.C. v. J.M.C., 2008 BCSC 408 ). [ 20 ] However, I find that this increase in “means” is effectively nullified by RPB’s potential to earn almost the same amount of additional income from renting out a suite in his house. In his August, 2010 Financial Statement, p. 3, he showed a net income of $5,800/year from this source. When he testified on March 12 th of this year he said, on cross examination, that he no longer had the suite rented out.

It seems to me though that the potential still exists for additional income from this source for RPB. [ 21 ] Given the similarity in amounts ($6,000 from Child Tax Benefit coming to LW, $5,800 in net rental income potentially coming to RPB) I have decided that these two additional sources of income cancel each other out and I should make my calculations concerning child support on the total income figures for RPB ($47,137) and LW ($20,754) earlier noted. [ 22 ] On the question of whether LW ought to be working full time rather than 30 hours a week I find that is not a “circumstance” that will effect my decision on child support because, as she testified, her income is actually considerably higher than it was in 2008 and 2009, even at these reduced hours. (See attachments to Financial Statement filed June 10 th , 2010.) I cannot find that LW is deliberately under-employed in order to position herself to get more child support.

I understand that RPB is frustrated that LW has not done more to, in his words, “better yourself”, but it seems to me that LW is doing a reasonable job of supporting herself and contributing to the support of the children given her situation. [ 23 ] As it concerns LW’s food costs I note that RPB estimated $350/month ($4,200/year) in his 2010 Financial Statement so it does not seem to me that her estimate of $400/month is unreasonable given that she does have the children with her for somewhat more time overall than RPB does. [ 24 ] I will now turn to a comparison between the amount of child support as calculated using the set off ($527/month) and RPB’s proportionate share of total child related expenses as those expenses have been established on the evidence.

The purpose of drawing this comparison is to obtain some further indication of whether the set off amount is the proper and fair amount of child support in MCB and JPB’ situation or whether some additional sum is appropriate. In taking this approach I am guided by Contino v. Leonelli-Contino, 2005 SCC 63 , Hilton v. Hilton , 2011 BCSC 206 , E.G.P. v. S.L.P. , 2009 BCSC 1221 and Greene v. Lundrigan, 2011 NLTD(F) 55, cases helpfully cited by counsel for LW. [ 25 ] In Appendix A I have calculated the total child related expenses of RPB and LW. I come up with the figure of $10,599/year.

I have not taken the housing expenses of either parent into account as it seems to me those are fixed costs that would be borne by each even if they only had limited access to their children. As for the food costs, I have used only two-thirds of the total food costs in order to take into account the fact that part (I have estimated one-third) of the food costs are attributable to the parents – RPB and LW – rather than to the children. [ 26 ] As Appendix A indicates, RPB’s proportion of the total family income is .694 and LW’s proportion is .306.

RPB’s proportion of the total child related expenses works out to $7,355.71 which is $1,031.71 more than what he would pay if child support were calculated using the simple set off. Calculated monthly, his proportionate share of the family’s total child related expenses would be $612/month ($7,355.71/12 months = $612/month). [ 27 ] In thinking about this figure it may be helpful to bear in mind that it is $85/month more than the amount calculated using the set off which was $527/month and $106/month more than the $506/month RPB is currently paying.

Looked at the other way, $612/month is $103/month less than the table amount for two children ($715/month) which is what RPB would have to pay if his children were primarily resident with their mother.

[ 28 ] In my view the simple set off figure of $527/month is not a sufficient level of child support in this case bearing in mind the factors set out in s. 9 of the Guidelines. [ 29 ] It is true that LW has managed to achieve a decent standard of living for MCB and JPB despite her rather low annual income. I also accept that RPB is very hard working and that he tries to take care of his children’s needs. I accept that he has many debts including some major debts for legal fees incurred back in 2010 because of events flowing from the break up of his relationship with LW.

I did listen and I have thought carefully about RPB’s comment that he feels quite “beaten down” by debt and by all the circumstances of this case including his feeling that it is unfair that LW has somehow ended up with legal counsel whereas he has not. [ 30 ] However, the evidence indicates that LW is currently bearing a larger share of the child related expenses than RPB is and that is not right given that he has the higher income and spends somewhat less time overall with the children. [ 31 ] What I have decided to do – and I realize this is difficult to justify on any other basis than that I feel sympathy for RPB and a desire that he feel like he has been heard and been treated fairly – is to order that RPB pay child support in the round sum of $600/month commencing on June 1 st , 2012.

I should probably order the higher figure of $612/month but have decided not to do so. In choosing this intermediate figure I am also thinking about the fact that: (

a) LW has been managing for nearly 2 years with the sum of $506/month, thus, the “cliff effect” spoken of in the Contino case does not apply here with quite the same force that we see in other cases – she will actually receive an increase in child support despite the shared or hybrid custody arrangement; and (

b) RPB has been paying $506/month for nearly 2 years and so the increase to $600/month will require a substantial adjustment on his

part in order to meet this additional sum. [ 32 ] In

summary, on the child support issue, I order that RPB pay the sum of $600/month to LW for the support of the children, MCB and JPB, commencing June 1 st , 2012 and continuing on the first day of each and every month thereafter. I also order that RPB and LW exchange filed Income Tax Returns and Notices of Assessment or Re-assessment not later than May 31 st each year starting in 2013 for the purpose of monitoring the application of the Guidelines to their family’s situation. 2 . Review of Access [ 33 ] On January 9 th , 2012 I made an Interim Order concerning RPB’s access to JPB.

The goal of my Order was to increase access to something close to 40%. A review was scheduled for March 12 th of this year when I was also dealing with the child support issue. [ 34 ] LW had several complaints about access, see Exhibit 2. RPB had missed several of the Wednesday visits and on one occasion he had failed to notify LW in advance that he would be unable to pick up JPB from school on a Friday. She only found this out the night before. Understandably, LW finds these problems extremely stressful since she is never quite sure if RPB is going to pick up JPB or whether she needs to make alternate plans.

LW was also very upset that RPB failed to take JPB to an event with the Whitecaps soccer players which was held on a Saturday while RPB had JPB in his care. [ 35 ] RPB acknowledges that it is sometimes hard for him to take JPB on Wednesdays because of his responsibilities at work (he is a manager and often has to fill in if other employees are away). As for the Whitecaps situation, I gather RPB was busy or already had other plans that day.

The result was that JPB did not get to go to this event. [ 36 ] Regarding the Wednesday visits – which are supposed to happen every second week – it may be best to go to a system whereby the Wednesday visits only happen if RPB calls LW to say that he is able to take JPB. And, although it would add to the daycare cost, pick up for Wednesday visits and on Fridays could be from the day care provider’s home rather than at the school.

That way, the day care provider would be the one to pick up JPB from school and there would never be a risk of JPB waiting at school and nobody showing up to get him. [ 37 ] I am reluctant to impose these changes to the access

schedule on RPB and LW until I am sure that they are really necessary. I am also reluctant to ask RPB and LW to return to court. What I would suggest is that they try their best to follow the existing Order (January 9 th , 2012) until the end of July, 2012 and then re-assess. By then about 10 “access Wednesdays” will have gone by since we were in court on March 12 th .

If there were problems with RPB exercising access to JPB on four Wednesdays, or more – about 1/3 rd of the time or more - over the period of March 12 th to July 31 st then I can tell RPB and LW that if the matter were brought back to court I would change the access order in the ways that I have indicated: I would cancel the alternating Wednesday access and replace it with the following term: “from after school on the Wednesday afternoon immediately prior to RPB’s weekend to 7:30 pm that evening, provided that RPB first provides notice to LW no later than 8 pm the night before [or, if LW agrees – by 12 noon on the Wednesday] that he is able to exercise such access .” And, I would specify that pick up of JPB on Fridays and Wednesdays shall take place at the day care providers (or LW home) rather than at JPB’ school. [ 38 ] Knowing this, I hope that if RPB continues to have problems getting time off work so that he can spend time with JPB on Wednesdays, or if he is having trouble getting to the school on time to pick up JPB on Wednesdays or Fridays, that RPB and LW will be able to just agree to a change in the January 9 th Order along the lines I have indicated.

There are forms available at the Court Registry to write up a consent, or the Family Justice Counsellor could also help with documenting a consent.

____________________ E. L.

Bayliff Provincial Court Judge Appendix A Total Child Related Costs Annual child related costs of mother (LW): $13,311.00 See Exhibit 1 . - $ 5,436.00 Rent (fixed cost) $ 7,875.00 - $ 1,600.00 Mother’s 1/3 rd share of food cost of $4,800 $ 6,275.00 Child related costs of Mother Annual child related costs of father (RPB): $ 300.00 Clothing (see Financial Statement, Aug. 24, 2010) $ 150.00 School fees and supplies $ 150.00 Entertainment and recreation $ 700.00 Activities and lessons $ 1,300.00 + $ 224.00 RPB’s share of MCB’s cell phone cost (8 months x $28/month = $224/year) $ 1,524.00 + $ 2,800.00 Food cost at Father’s house less Father’s 1/3 rd share ($4,200 - 1/3 rd = $2,800/year) $ 4,324.00 Child related costs of Father. + $ 6,275.00 Child related costs to Mother. $10,599.00 Total annual child related costs.

Ratio of Father’s Income and Mother’s Income to Total Income

$47,137.00 Father’s income (2011) + $20,754.00 Mother’s income (2011) $67,891.00 Total family income (2011) $47,137.00 = .694 = ratio of Father’s income to total. $67,891.00 $20,754.00 = .306 = ratio of Mother’s income to total. $67,891.00 Each Parent’s Proportionate Share of Total Annual Child Related Expenses $10,599.00 x .694 = $7,355.71 = Father’s proportionate share. $10,599.00 x .306 = $3,243.29 = Mother’s proportionate share.

Difference Between Father’s Proportionate Share and Father’s Contribution (Using Set Off Calculation) $ 7,355.71 Father’s proportionate share - $ 6,324.00 Father’s contribution using Set Off calculation ($527/month x 12 months - $6,324) $ 1,031.71 Additional amount of child support payable by Father per year to achieve proportionate share of total child related expenses. Calculated monthly: $1,031.71/12 = $85/month.

Total Amount of Child Support Payable $ 6,324.00 Set Off amount ($527/month) + $ 1,031.71 Additional sum to achieve proportionate share of expenses $ 7,355.71 Total annual amount of child support payable Calculated monthly: $7,355.71/12 = $612.00/month. (Note: If both children were primarily resident with the mother the Table amount payable would be $715/month.)