R.K. v. J.K., 2021 BCPC 32

Citation: R.K. v. J.K. 2021 BCPC 32 Date: 20210202 File No: 10433 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.K. APPLICANT AND: J.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Appearing in person: The Applicant Counsel for the Respondent: Parinder Sahota

Place of Hearing: New Westminster , B.C. Dates of Hearing: September 4, December 5, 2019, January 7, November 20 and December 1, 23, 2020 Date of Judgment: February 2, 2021 A Corrigendum was released by the Court on March 4, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] This case involves the end of a relatively short-term marriage of 4 ½ years. There was one child, a now 8 year old son.

The parties had previously reached an equal and shared Parenting Arrangement, which includes Joint Guardianship, Shared Parenting Responsibilities and equal Parenting Time. [ 2 ] Therefore, this hearing, which unfortunately stretched over several months primarily because of the Covid-19 pandemic and extensive efforts to resolve, related exclusively to the issues of Spousal and Child Support, including

section 7 Special or Extraordinary Expenses. [ 3 ] The wife, R.K., in the end sought a relatively brief duration of Spousal Support in recognition of her eventual employment in a day care.

The husband, J.K., maintains that her efforts to pursue employment and/or training to achieve self-sufficiency were inadequate, and argues that no Spousal Support should be paid for even that brief period. [ 4 ] As for Child Support, there is no dispute that during the initial period after the separation and when the son was primarily in R.K.’s care, she was entitled to Child Support based on J.K.’s declared income. [ 5 ] However, in late 2016, J.K.’s declared income substantially reduced when he says a back condition caused him to be off work entirely and then give up trucking and become a taxi (and now “Uber”) driver.

R.K. says that his income as a taxi driver was not accurately declared, or he was intentionally underemployed, and that his achievable income should be imputed to the former income as a truck driver. That would entitle her to Child Support based on that difference in their incomes. R.K. also says J.K. should pay

section 7 expenses based on that difference. [ 6 ] Although the declared income of R.K. actually exceeds that of J.K. for the last three years, he does not seek Child Support from her. He says no Child Support should be payable by either party beyond the period when Parenting Time became equal. He also says that

section 7 expenses should be shared equally, except for child care costs, which should be the responsibility of the parent having care of the child when those costs are incurred. [ 7 ] Therefore, the primary issues are:

(1) Whether the circumstances of this marriage and separation give rise to R.K.’s entitlement to Spousal Support?;

(2) If so, what is the appropriate quantum and duration?;

(3) Should J.K.’s income be imputed, such that R.K. is entitled to Child Support after the shared Parenting Arrangement?;

(4) How should

section 7 expenses be shared? EVIDENCE [ 8 ] J.K. emigrated to Canada from India. He then returned to India in 2010, met and then married R.K. in December 2011. She was 23 and he was 30. She got pregnant soon after and their son was born [omitted for publication]. J.K. had returned to Canada soon after the marriage and then sponsored R.K. and their son to come here as well.

J.K. had some post secondary education in India, but had taken up driving a truck in Canada. [ 9 ] R.K. had achieved a Bachelor of Nursing Science degree in India, and had some practical experience; but was not working at the time of the baby’s birth or soon after. She lived with both her family and J.K.’s family for periods before the sponsorship finally went through and she arrived in Canada in April, 2014. The child was then 20 months old. [ 10 ] The parties lived initially in Winnipeg and then moved to Edmonton 2 ½ months later for J.K.’s improved job opportunities.

They then remained in Edmonton from June, 2014 until December, 2015. In 2015, J.K.’s declared income as a truck driver was $52,000. [ 11 ] R.K. says she was initially adjusting to the change of culture and looked after their son, while J.K. worked long hours. She says that there was no expectation that she would find employment, at least during that first year. J.K. essentially agreed.

He admitted that the cost of day care for the child was such that her employment at likely a low wage rate would not make much sense. [ 12 ] However, R.K. had begun to look into retraining and took a Care Aid course from June to October 2015, and did some volunteer work at a psychiatric ward. She hoped that would work into a job. Care Aid work was clearly not her first choice, but she believed that qualifying as a nurse in Canada would be too difficult. She was assisted by the arrival of J.K.’s parents on a visitors’ visa in 2015, who could provide care for the child.

She also did some brief work at a McDonald’s restaurant. Her declared income for 2015 was just $7,000. [ 13 ] But once again they re-located, this time to Vancouver in December, 2015, similarly for J.K.’s job opportunities. His parents followed. [ 14 ] Then in May 2016, after what R.K. alleges was some violence by J.K. that resulted in charges and eventually a Peace Bond, R.K. left the family home with the son. The parties separated. The primary care of the child continued with R.K. until October 2016, when they agreed to share Parenting Time.

R.K. also found some part-time work as a daycare worker late in the year. For 2016, R.K.’s declared income was $15,725, while J.K.’s was $53,916. [ 15 ] In December 2016, J.K., who had some back problems as early as 2014, went off work and remained off until July, 2017. He received Employment Insurance for that period. A doctor’s letter filed in this matter referred to both back and mental health problems

resulting in this time off work. [ 16 ] J.K. says that his back problems make climbing in and out of a truck too painful and that he is better able to get into a car and operates from home to go out on calls as a taxi driver and rests in between calls. He does not own his taxi and so pays both gas and a leasing fee to various owners, which shows on his income tax return as an allowable deduction. He says that change of work has resulted in the large reduction in his declared income.

He did admit that he does not generally work nights or Fridays and Saturdays, when a greater income can be made. [ 17 ] J.K.’s income for 2017-2019 has therefore been declared at just $14,905, $23,518, and $19,637, respectively. I note that by legislation, a taxi driver’s wage cannot be less than the lease cost, plus minimum wage. [ 18 ] R.K.’s evidence shows that she has continued employment in daycare.

Her relatively modest income from employment from 2017-2019 is $21,751.26, $27,999.82, and $37,307.00. [ 19 ] As stated, the parties have shared Parenting Time equally on a week on/week off basis after October 2016. They have involved their son in some activities and have required child care and incurred some medical expenses.

SPOUSAL SUPPORT Entitlement [ 20 ] Although this was a marriage of relatively short duration at just 4 ½ years, the circumstances of the marriage in India and early pregnancy, followed by J.K.’s return to Canada soon after, required R.K. to give up her educational gains and care for the child.

Her pregnancy and period of care of the child without J.K. was over two years, followed by the adjustments to a new country and continued care of their son. [ 21 ] Although much time in this hearing was spent suggesting R.K. did not make reasonable efforts to get re-trained or employed here in Canada, I did not find that to be the case.

R.K., like J.K., had the unfortunate common experience of new immigrants, who are challenged in their ability to have their qualifications from their home country recognized in their new country. [ 22 ] I found she took a realistic approach and made reasonable efforts to retrain as a care aid, taking into account her nursing background, and that she had intentions to get employed. Indeed, it appeared to be the second move from Edmonton to Vancouver, in order to again benefit J.K.’s employment, that forced her to reconsider her employment goals.

She is now an Early Childhood Education Assistant, which in my view applies portions of her training in nursing and care aid. [ 23 ] As for the separation itself, while I was not satisfied that J.K. addressed the allegation of violence directly in his evidence and am therefore satisfied that there was such an incident triggering the separation, I also do not find that incident, or violence generally, was the catalyst for the separation. The catalyst was R.K.’s general unhappiness in the marriage. [ 24 ] Further, I did not find, as R.K. initially alleged, that J.K. was emotionally and financially controlling.

The documentary evidence, including the admitted use by her of the bank accounts and credit cards, showed that was not the case and contradicted R.K.’s evidence on a number of occasions. For that reason, I found R.K. was not entirely credible and I did not accept all of her evidence. I did, for the most part, accept J.K.’s evidence that he was generally supportive of her attempts to retrain and get employed, and that he did not control her during the marriage. [ 25 ] In the end, it is my view that there is a basis for entitlement to compensatory Spousal Support, but for a short duration only.

Amount and Duration [ 26 ] The Spousal Support guidelines (as produced by J.K.’s counsel), which take into account the length of marriage (4.5 years), ages of parties (39 and 32) and child (8), and respective earnings of the parties ($52,000 and $5,006 respectively), suggest at the low end of the range a duration of 2.25 years. But R.K. seeks only 6 months. [ 27 ] Unlike Child Support, which is the right of the child, Spousal Support is the right of the spouse. I was satisfied that R.K., who was earlier represented by counsel (but not at the hearing), took her position willingly.

I would also add that the Spousal Support in these circumstances, particularly where the payer spouse now shows a reduced income as a result of a medical condition, would not have reached that low end duration range, even if R.K. took a different position. [ 28 ] However, I am also of the view that the particularly short duration entitles R.K. to the higher end of the range suggested in those same guidelines.

For that reason, I order that J.K. pay Spousal Support in the amount of $849.00 per month for the period from May to October, 2016 (6 months), for a total of $5,049. [ 29 ] I reject the argument that because J.K., as a sponsor to R.K.’s immigration to Canada, was responsible to repay the government when she received income assistance during the initial separation, that amount should be deducted from the Spousal Support payment. Counsel for J.K. produced no authority for such a proposition. It seems to me that obligation by way of indemnity to the government has no relationship to the issue of Spousal Support.

CHILD SUPPORT Child in primary care of R.K. [ 30 ] As stated, there is no dispute that R.K. is entitled to child support for the period she had primary care of their son, which was from May through October, 2016. That amount, based upon J.K.’s earnings of $52,000 for 2015, according to the Federal Child Support Guidelines (2015-16), is $478 per month, and for a period of 6 months. Therefore, I order that J.K. pay R.K. the sum of $2868 for arrears

of Child Support. After Equal Parenting Time arrangement [ 31 ] R.K. seeks an imputed income for J.K., and seeks Child Support based on the difference in incomes. She suggested his former declared income from truck driving would be appropriate. [ 32 ] J.K. says no Child Support should be payable by either party, in that there was no evidence produced by R.K. to dispute the income tax declarations of J.K., which now show him making less declared income than her.

His counsel says he is not seeking Child Support based on that declared difference, but that could change in the future. [ 33 ] I reach the same conclusion as counsel for J.K. has in regard to Child Support, that it is not payable by either party, but on a different basis. [ 34 ] I have reviewed the authorities provided by J.K.’s counsel (Homzi v. Zaya, 2009 ONCA 322 ; K.S.R. v. P.K.R. 2003 BCSC 1393 ; Bains v. Bains 2008 ABQB 271 ; Mohammed v. Sahi, 2012 ONCJ 515 ; S.P. v. B.M. 2013 BCSC 1825 ; Nadim v. Hakim, 2018 BCSC 1999 ; and L.S.M.K. v.

J.W.K. 2019 BCSC 2025 ), which were helpful, particularly as they applied to taxi drivers, their expense deductions and the onus on the party challenging the income tax returns to show there are unreasonable deductions or undeclared income. [ 35 ] I also agree that R.K. was unable to provide an evidentiary basis to challenge J.K.’s income tax declarations, beyond that he would not seem capable of managing even his limited expenses if he were earning so little. [ 36 ] While I would have preferred a much more detailed documentation of his work shifts and earnings and expenses than was provided, I did not find an evidentiary basis for a finding of undeclared income. [ 37 ] I also did not find that there was evidence of unreasonable deductions.

In particular, the leasing and fuel costs are certainly accepted as appropriate deductions from a taxi driver’s earnings. There is no basis to add back. [ 38 ] But I now turn to J.K.’s decision to change from a truck driver to that of a taxi driver, resulting in substantially less declared income. The onus to justify that decision through evidence, in my view, rests on J.K. I found that evidence to be wanting. [ 39 ] Specifically, the letter from the doctor concerning the time off work in 2017 simply referred to a back and mental health problem, with no other evidence or explanation concerning the latter.

There was no formal opinion of his condition, or that the motion of getting in or driving a truck, rather than a taxi, was more damaging to that condition. [ 40 ] Therefore, I am left with evidence that does not fully satisfy me that J.K.’s decision to change his profession was entirely justified, or at least that he could not be making more than he currently is.

That, in combination with his own admission that he does not work the highest income shifts, leads me to conclude that some imputation of income is appropriate. [ 41 ] However, the extent of that imputation does not equal what R.K. seeks, that being the income J.K. earned before he went on medical leave in late 2016. Rather I find that a modest income of $30,000 per year is appropriate. [ 42 ] I accept that J.K. was indeed off work for medical reasons from December 2016 until July 2017, and that no Child Support would have been payable by him.

After that, I have considered the period of July-December, 2017, and impute an income to J.K. of $15,000, January–December, 2018 at $30,000, and January–December, 2019 at $30,000, for a total of $75,000. [ 43 ] Over those same periods, R.K. had a declared income of $10,878, $27,999.82, and $37,307, totalling $76,184.82. [ 44 ] The most recent income statements for 2020 also show relatively close incomes for J.K. and R.K. [ 45 ] On the basis of those relatively equal incomes over that time, I find that no Child Support is payable by either party from November, 2016 to present, nor do I make a Child Support order going forward.

Section 7 Expenses [ 46 ] On the basis of the relatively equal incomes of the parties, I agree with the submission that

section 7 expenses should be shared equally between the parties, or at least for all those incurred after the shared parenting arrangement. I have reviewed the expenses submitted with the financial statements and found those expenses are appropriately claimed, including child care, swimming, and medical and dental expenses. [ 47 ] As for the submission that each party should be responsible for their own child care costs while the child is in their care, I do not agree, particularly when J.K. has more flexibility in his work schedule, and R.K. requires that child care to maintain her employment.

ORDER [ 48 ] The payment of arrears of Spousal Support by J.K. to R.K. in the total amount of $5,049 will be no less than $200 per month, beginning March 1, 2021 and continuing on the first of each month thereafter until all the arrears are paid. [ 49 ] The payment of arrears of Child Support by J.K. to R.K. in the total amount of $2868, will be, by consent, no less than $100 per month beginning July 1, 2021 and continuing on the first of each month thereafter until all the arrears are paid. [ 50 ]

Section 7 expenses are to be shared 50/50. I leave to the parties the calculation and sharing of all of those

section 7 expenses, and if no agreement can be reached, they must seek the assistance of a Family Court Counsellor before returning to court.

ANCILLARY ORDERS [ 51 ] Since the parties have earlier settled all Parental Arrangements and have conduct orders in place, the only additional orders will be as follows: • That the parties will share all financial information by June of each year, to include J.K.’s detailed time sheets and fare information from the previous year, as well as receipts for any claimed expenses. • The parties will not incur any additional

section 7 expenses besides those of child care and medical/dental expenses, without the consent of the other party. _______________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia CORRIGENDUM - Released March 4, 2021 In the Reasons for Judgment dated February 2, 2021, the following changes have been made: [1] The dates of hearing in the style of cause should read: Dates of Hearing: September 4, December 5, 2019, January 7, November 20 and December 1, 23, 2020. _______________________________ The Honourable Judge D. Sudeyko Provincial Court of British Columbia