C.O. v. D.O. Date:, 2013 BCPC 422

Citation: C.O. v. D.O. Date: 20130806 2013 BCPC 0422 File No: 10504 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: CO APPLICANT AND: DO RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing on their own behalf: CO Appearing on their own behalf: DO Place of Hearing: Quesnel , B.C.

Dates of Hearing: May 16, 2013 & May 17, 2013 Date of Judgment: August 6, 2013 [ 1 ] CO applies for spousal support (see her Application filed February 14 th , 2013 # 24) from her estranged spouse, DO. DO, in a separate application, seeks a reduction in the amount of child support he is required to pay (see his Application filed May 17 th , 2013) and a reduction in child support arrears and he opposes the application for spousal support. Both parties are self represented.

I heard evidence from CO and DO on these issues on May 16 th and 17 th , 2013. [ 2 ] I will outline what I have decided and then explain my reasons. Child Support: 1. The Order made March 5 th , 2012 is varied as follows; 2. The court finds that DO’s income for the purposes of the Federal Child Support Guidelines is $28,900.00 for 2012 and 2013; 3. DO shall pay $600/month for the support of the children CO-1, SO and AO by way of bi-monthly payments of $300 commencing on August 1 st and August 15 th , 2013 and continuing on September 1 st and September 15 th , 2013. 4.

Commencing on October 1 st , 2013 (at which point only SO and AO will still meet the definition of “child” in the Federal Child Support Guidelines and Family Law Act) DO shall pay $446/month by way of bi-monthly payments of $223 on October 1 st and October 15 th , 2013 and continuing on the 1 st and 15 th day of November and December, 2013. 5. The court imputes to DO an average income for the purposes of the Federal Child Support Guidelines of $43,900.00 commencing in the year 2014 and thereafter. 6.

DO shall pay $668/month for the support of the children SO and AO by way of bi-monthly payments of $334 on January 1 st and January 15 th , 2014 and continuing on the 1 st and the 15 th day of each and every month thereafter until the children cease to meet the definition of “child” in the relevant legislation. Child Support Arrears: 7.

Arrears of child support accrued from January 1 st , 2012 to present are found to equal that sum which is the product of the following calculation: $600/month (3 children at an income of $28,900) x 19 months (January 2012 to July 2013, inclusive) less those sums already paid by DO as recorded by the Family Maintenance Enforcement Program (FMEP ) . This sum shall be referred to from this point on as “the re-calculated arrears of child support”. 8.

Arrears of child support accrued from January 1 st , 2012 to July, 2013, inclusive are hereby reduced pursuant to s. 174 Family Law Act to the re-calculated arrears of child support. Interest is reduced accordingly. Spousal Support 9. CO’s application for spousal support is dismissed.

Summary: Total Support Due Each Month 10. For greater clarity, DO shall pay CO child support as follows: August & September, 2013 $300 on 1 st and 15 th of each month October & December, 2013 $223 on 1 st and 15 th of each month January 2014 and forward $334 on 1 st and 15 th of each mont Financial Disclosure and Exchange of Addresses 11. DO shall provide CO with a copy of his Notice of Assessment or Re-assessment for the previous tax year each year starting on May 30 th , 2014 and continuing on May 30 th of each year thereafter. This is so that CO will have the information necessary to compare

what DO is paying for child support with what the Federal Child Support Guidelines require. 12. DO and CO shall ensure that each is immediately advised of their current addresses and phone numbers and that they shall immediately notify the other of any change in their address of phone number(s). [ 3 ] I will now explain my reasons for making this Order beginning with a determination of DO’s income. DO’s Guideline Income [ 4 ] On March 5 th , 2012 Judge Morgan made an Order about child support. He imputed to DO an income of $60,000 per year and calculated child support on that basis.

DO did not come to court on the day this Order was made. He had been properly served with CO’s Application but had failed to file a Reply or take steps to find out what was going on in court. Therefore the judge proceeded in his absence with what evidence was available to him. Judge Morgan looked at copies of DO’s Notices of Assessment from 2006 to 2009 and came up with the figure of $60,000 as an estimate of his income. Using the Federal Child Support Guidelines – British Columbia Table Judge Morgan ordered that DO pay $1,185 per month for the support of his three children, CO-1, SO and AO.

Judge Morgan made the Order retroactive back to January 1 st , 2012. That Order is still in effect. [ 5 ] DO has paid very little under this Order. The Order is registered with Family Maintenance Enforcement Program (FMEP) but neither DO or CO had a recent account statement so I do not have a precise figure for what DO has paid. He testified in court that he paid about $3,775 in 2011 (before the Order was made) and about $2,000 in 2012 and nothing this year, 2013. I was shown a letter from FMEP saying that about $17,500 is now owing in arrears of child support under Judge Morgan’s Order.

I find that the FMEP has an accurate record of all payments that DO has made although, as I say, I do not have that information available to me. [ 6 ] DO has testified that his income over the last few years has actually been much less than the $60,000 Judge Morgan imputed to him. [ 7 ] The evidence about DO’s income over the past 3 years is not complete because he has not filed a tax return since 2009. However, he did provide some information slips for each year since.

The evidence about his income is summarized in this table: Year Income Source of Information 2006 $64,171 Notice of Assessment (N/A) shown to me in court by CO 2007 $48,577 As above. 2008 $58,340 As above. 2009 $46,133 As above. 2010 $41,003 Personal communication from H&R Block to DO and conveyed to the court, May 16 th , 2013. 2011 $13,572 $ 8,912 $22,484 T4 from EI ( Exhibit 2) T4 from [omitted for publishing] (attached to Financial Statement filed May 16, ’13) 2012 $20,450 $ 2,925 $23,375 T4 from [omitted for publishing] (attached to Financial Statement filed May 16, ’13) T4 from [omitted for publishing] (as above) 2013 $18,720 Estimate of money earned with [omitted for publishing] until laid off in early May (see cheque stub attached to Financial Statement).

Average 2006-12 inclusive = $43,927 ($43,900) Average 2010-12 inclusive = $28,954 ($28,900) [ 8 ] It is clear from this

summary that DO’s annual income has been declining since 2006, particularly in 2011 and 2012, when it dropped to between $20,000 and $25,000. [ 9 ] DO explains this drop in income by saying it is a combination of injury (he broke his hip in an ATV accident in the late summer

of 2009), drug addiction (he is addicted to cocaine and has missed work because of this, and because of taking time away to seek treatment) and also because he has been periodically laid off from trucking jobs due to lack of work. [ 10 ] I have decided that the fairest approach for determining a Guideline income (an income upon which the calculation of child support will be based) for DO for the years 2012 and 2013 is to take an average of his income for the years 2010 to 2012 which are the three most recent years for which I have information about his earnings.

That average is $28,954 as set out in paragraph 7, above. I impute to DO a Guideline income of $28,900 for 2012 and 2013. [ 11 ] The amount of child support for 3 children at that income is $600/month.

I find that this is the sum DO ought to have been paying CO each month for the support of CO-1, SO and AO from January 1 st , 2012 until present. [ 12 ] Arrears of child support will need to be re-calculated using this figure of $600/month (plus interest and fees) rather than the figure ($1,185/month) set out in the March 5 th , 2012 Order. [ 13 ] I order that arrears of child support be reduced to this recalculated figure ($600/month from January 1 st , 2012 to July 1 st , 2013 inclusive).

I will term this figure “the re-calculated arrears”. [ 14 ] I find that it would be grossly unfair not to reduce arrears of child support (plus accrued interest) pursuant to s. 174 of the Family Law Act down to the amount of the recalculated arrears, given that DO’s annual income during the past 3 or 4 years has been much lower than the $60,000/year he made in the years 2006 to 2008, which figure Judge Morgan relied on in making his Order in 2012. Regular Child Support [ 15 ] Looking forward, CO-1 will be turning 19 in September, 2013 and will no longer be eligible for child support.

Starting on October 1 st , DO will only need to worry about supporting his 2 younger children, SO and AO. The table amount for 2 kids at the income I have imputed to DO for 2012, 2013 ($28,900) is $446/month and I order that DO pay this sum to CO starting in October 1 st , 2013 and continuing on November 1 st and December 1 st , 2013 by way of bi-monthly payments of $223 each on the 1 st and 15 th of each month. [ 16 ] Looking forward a little further, to the year 2014 and thereafter, I have decided to impute to DO the higher income of $43,927/year.

My reasons for imputing a higher income to DO for next year and subsequent years after that are, firstly, because I find that DO is, to some degree, under-employed at this point in his life. That is to say, he has made a deliberate choice to put other things ahead of earning an income. [ 17 ] I reach this conclusion because he had a job with [omitted for publishing] earlier this year (2013) which, had he continued with the job, would have resulted in an annual income in the $50,000 to $60,000 range.

But, DO chose to quit this job in early May of this year and was working instead for no income for his partner’s brother on a remote ranch in the Chilcotin. This was the situation when we were in court in mid May. In late 2012, DO had quit a job which he had had for a couple of years with a company called [omitted for publishing] . In each case DO said he quit because he was getting less and less hours. However, he also said that he didn’t like the maintenance standards at [omitted for publishing] and this was another factor in him quitting.

DO also spoke about the pressure he was under because of CO’s claim for spousal support in addition to child support, and because of the mounting bill for arrears of child support arising from the 2009 Order. So, my conclusion from his evidence was that, to a large extent, it was by DO’s choice that he had such a low income this year. [ 18 ] DO is a skilled professional driver with many years of experience. Prior to 2010 he always earned in excess of $45,000/year. The law says that children are entitled to benefit from what each of their parents is capable of providing to them.

DO is not rich but he is capable of providing much better for his family than he has done in the last few years. [ 19 ] On the other hand, I must be realistic and recognize that DO has a serious addiction which, as of the days we were in court in mid-May, 2013, was only barely under control. It may be that working less hours and at lower pressure jobs will be important for DO’s mental and physical well-being and will assist him to maintain a drug free life.

This would be a very good thing for him, and for his children, who care about him and would like to have a relationship with him. [ 20 ] I have decided that the best way to balance these competing concerns is to impute to DO an annual income of $43,900 starting in 2014.

This figure is his average income over a 7 year period (2006-2012 inclusive) and thus, I believe, strikes a balance between DO’s ability in earlier years to earn a good income, against his struggles in recent years which have resulted in a much lower income. [ 21 ] I hope that basing child support on the lower income of $28,900 for the remainder of 2013 and then increasing, at the start of next year (2014), to child support based on the higher (but still modest) income of $43,900 will allow DO a period during which to make plans to transition back to better paying work.

If, over time, DO discovers that he is simply unable, after making genuine best efforts, to earn an income in the $43,900 range then he will have to bring the matter back to court (or work through the Family Justice Counsellors to reach a consent with CO) to reduce his child support obligation. [ 22 ] Child support will continue to be payable based on a Guideline income of $43,900 ($668/month for 2 children) from the 1 st of January, 2014 until SO and AO each cease to be “children” within the meaning of the Federal Child Support Guidelines and the Family Law Act. [ 23 ] Finally, as it concerns child support I will order that DO and CO immediately inform each other of their current address and phone number and not change their address or phone number without informing each other. [ 24 ] There is one further issue concerning child support which I do wish to touch upon.

The evidence was that AO, DO and CO’s

youngest child, has actually been living with his grandparents for some period of time and only SO is living with CO. Unfortunately there has been some sort of argument between CO and her mother which has resulted in CO being subject to a bail order or a peace bond to stay away from her mother and from the home where her mother and AO are residing which is actually the former family home. DO raised the issue of whether child support for AO should be paid to AO’s grandmother rather than to CO.

This is a valid concern but one I cannot do a great deal about in the current proceeding given that I have no application before me from AO’s grandmother. DO should make all his payments through the FMEP so that there is a clear record of what he has paid. If AO’s grandmother asks him for money to help with AO’s care his only option is to suggest that she file an application in court for the temporary care of AO and for child support. Alternatively, CO may wish to authorize the FMEP to direct part of the child support to AO’s grandmother.

Spousal Support [ 25 ] CO claims spousal support from DO and I find that CO has established entitlement pursuant to s. 161 of the Family Law Act . I find that she was a stay at home parent most of the time during their marriage. Unfortunately, this was to some extent due to mental illness ( Exhibit 3) rather than because DO always wished her to stay home. Since the separation in March, 2011 CO has been approved for the “Persons With Disabilities” designation by the Ministry of Social Development because of mental illness and she receives social assistance in accordance with that program.

She also receives the child tax benefit for the three children. And, she does some part time work. However, without her disability benefit income she would certainly be unable to support herself. As I say, I find that CO has established entitlement to spousal support. [ 26 ] The more difficult question is to determine the amount and duration of spousal support pursuant to s. 162 of the Family Law Act. [ 27 ] CO did a calculation using the MySupportCalculator.ca website assuming DO had a $60,000 income as found in Judge Morgan’s 2012 Order. See Exhibit 1.

I cannot use this calculation since I have concluded that DO’s income was, at all relevant times, considerably lower than $60,000. See paragraphs 6 to 10 and 16 to 20, above. I have found that his income in 2012 and 2013 was, and is, $28,900 and I have imputed to him an average income for 2014, and the years beyond that, of $43,900. [ 28 ] The calculation worked out by CO is also problematic because of the income of approximately $5,000 which she used for herself.

I have concluded that the Spousal Support Advisory Guidelines require that I find a higher income for CO than that. [ 29 ] CO filed a Financial Statement on February 14 th , 2013 with income tax summaries for 2010 and 2011 attached. In 2010 she declared a total income of $14,250 from social assistance payments plus child tax benefit of $9,900 for a total income from benefits of $24,219.

In 2011 she declared a total income of $11,236 from social assistance payments plus the child tax benefit of $7,746 for a total of $18,900 in benefit income. [ 30 ] There are a number of issues involved in determining CO’s income for spousal support purposes. One concerns her income from the Ministry of Social Development. If it is properly described as “social assistance” – then the Spousal Support Advisory Guidelines appear to say that it should not be considered as part of “income”. See

section 6.2 of the SSAG. However, it is my view that the type of government funded assistance CO currently receives under the Persons With Disabilities legislation is actually more in the nature of a “benefit” and therefore falls under

section 6.3 and should be considered part of “income” along with the Child Tax Benefit. CO was also receiving income from some part time employment as a clerk at [omitted for publishing] during 2013. The only pay stub I have is dated in January, 2013 and discloses a year-to-date income of just $303.

However, in May, just prior to the hearing CO used the figure of $5,013 for her “employment income” when using the MySupportCalculator tool. [ 31 ] Considering all of this evidence I have decided to impute to CO an income of $18,000 for the purposes of calculating spousal support. [ 32 ] A second issue that arises concerning CO’s situation where spousal support is concerned, is whether her financial situation will actually be bettered by receiving spousal support.

It is my understanding that when a person is receiving social assistance any monies they receive from any other source (such as spousal support) must be deducted dollar for dollar from their next social assistance cheque. I raised this issue with CO and she did not seem to feel it would be a problem. She seemed to feel that she would be able to keep any and all spousal support paid to her by DO along with her full, monthly disability benefit. She may be correct, but I would feel more comfortable hearing this directly from the people that administer CO’s benefit program.

Given that this is not a wealthy family and, at best, DO can only afford a small sum in the way of spousal support, if he is also to meet his child support obligations (which will last for at least another 6 years until AO turns 19), I question the utility of such a payment if it is simply going to result in a reduction in the amount of benefit income received by CO.

Such a payment would not improve CO’s life one iota but it would be a financial cost of some significance to DO. [ 33 ] Using the incomes which I have imputed to DO ($43,900 as of January 1 st , 2014) and CO ($18,000) I have performed a new calculation using the MySupportCalculator website. I will file this calculation as the final numbered exhibit in this proceeding, Exhibit 4.

It indicates a range of between $0 and $38 per month with a midpoint of $0 per month payable over a period of 8.5 to 17 years. [ 34 ] Given this range and this midpoint I decline to make an order of spousal support in this case despite the fact that CO has established entitlement. In my view, the limited resources of this family need to be directed towards child support rather than towards a minimal payment of spousal support that will do little to improve CO’s life even if I were to order a payment at the highest end of this range. Conclusion

My Order is as set out in paragraph 2 above. _______________________________ E. L. Bayliff Provincial Court Judge