G.B. v. B.B., 2023 BCPC 156

Citation: G.B. v. B.B. 2023 BCPC 156 Date: 20230707 File No: 10890 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.B. APPLICANT AND: G.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Applicant: A. Huang Counsel for the Respondent: G. Grewal Place of Hearing: Prince Rupert , B.C. Dates of Hearing: January 6, May 26, June 9, 2023 Date of Judgment: July 7, 2023

I. INTRODUCTION [ 1 ] G.B. and B.B. are both 39 years of age . They grew up in Prince Rupert, British Columbia, attended grade school together, and started dating in August of 2001 when they were 17. In December 2009, they began living together and married on August 25, 2012. They have three children: L.B. (age 11), O.B. (age 10), and E.B. (age 6). The children have lived their entire lives in Prince Rupert.

The Mother and the Father are both guardians of the children under s. 39 of the Family Law Act. [ 2 ] The Mother and Father separated in September 2018, although they lived in the family home with the children until December 2018. They sold the family home in December 2018 and split the sale proceeds. Each parent subsequently purchased a new home in Prince Rupert. [ 3 ] After a contested hearing, I decided on August 16, 2022, where the children would reside and parenting time: see B.B. and G.B. , 2022 BCPC 162 .

Unfortunately, the parents continue to disagree on spousal support, child support and special or extraordinary expenses. Accordingly, this is my decision determining spousal support, child support and special or extraordinary expenses. [ 4 ] In making my decision, I have considered the following: i. The materials within the Court file; ii. The evidence presented during the first hearing on November 1 and 2, 2021, June 28 and 29, 2022, July 5 and 7, 2022 and August 11, 2022; iii. The evidence presented during the second hearing on January 6, 2023, May 26, 2023, and June 9, 2023; and iv.

The submissions of Counsel, including the case law referred to by Counsel. Issues [ 5 ] The significant issues to be decided are: 1. What income did the parents have post-separation? To determine income, should the Court impute an income to the Mother higher than what she actually earned and reported to the Canada Revenue Agency? 2. Is the Mother entitled to spousal support from the Father? If yes, on what basis: compensatory, non-compensatory, or contractual? 3. What, if any, are the child support arrears owed by the Father to the Mother? 4. Is the Mother entitled to child support from today’s date and onwards?

If yes, what amount? 5. B ased on the conditions, means, needs and other circumstances of the parents and children, how should the special or extraordinary expenses be split between the parents? Relevant Legislation [ 6 ] As the August 16, 2022 court order already sets out the parenting schedule, in determining the issues,

Part 7 of the Family Law Act (the “ FLA ”) governs, with assistance from the Federal Spousal Support Advisory Guidelines (“ SSAG ”) and the Federal Child Support Guidelines (“ CSG ”). Furthermore, s. 37 of the FLA is relevant to the dispute in the present case.

Summary of Decision [ 7 ] For the reasons that follow, I find that: 1. The Mother and Father separated in September 2018 but remained in the family home until December 2018. Based upon the realities of the Mother and Father’s lives, I have determined that this is not an appropriate case to impute an income to the Mother. Accordingly, to calculate spousal support and child support, I have used the following incomes: I. Based on her current employment, the Mother’s income for 2023 is $65,887. Based on his current employment, the Father’s income for 2023 is $150,822. II. The Mother’s income for 2022 was $63,318.

The Father’s income for 2022 was $142,856. III. The Mother’s income for 2021 was $36,704. The Father’s income for 2021 was $150,965. IV. The Mother’s income for 2020 was $35,228. The Father’s income for 2020 was $108,565. V. The Mother’s income for 2019 was $24,596. The Father’s income for 2019 was $99,999. 2. Accounting for the spousal support of $1,600 in 2019 and $1,400 in 2020 that the Mother received, I agree with the Mother that she is entitled to compensatory spousal support of an additional $60,000 in full and final payment of spousal support owed by the Father to the Mother.

The compensatory spousal support will be paid by the Father to the Mother as follows: a) $23,000 lump sum, by way of a transfer within a Retirement Savings Plan (RSP), by no later than August 31, 2023. b) $37,000 through 36 monthly payments of $1,141.61 ($1,000 plus 6.95% interest as per the current Government of Canada Prime Interest Rate) on the first day of each month, beginning August 1, 2023. The total paid will be not more than $41,097.85, which includes

$37,000 plus $4,097.85 in interest. Nothing in this judgment prevents the Father from paying the compensatory spousal support to the Mother sooner than the

schedule set out herein. The interest owed on the compensatory spousal support shall be adjusted accordingly if the Father pays the compensatory spousal to the Mother in advance of the payment

schedule set out herein. 3. The Mother is not entitled to non-compensatory or contractual spousal support. 4. As I set out on August 16, 2022, in paragraphs 30 to 38 of B.B. and G.B. , the Father has had substantially equal parenting time with the children since the date of separation.

Accordingly, based on shared parenting time and the parties’ incomes since the date of separation, the Mother is entitled to receive ongoing child support from the Father as of August 1, 2023, of $1,474 per month and continuing each month after that for as long as all three children are eligible for support under the Family Law Act or until further Court Order. 5. The Father shall pay a 65% share of any special or extraordinary expenses incurred by or on behalf of the children until their nineteenth birthday or as long as they are eligible for support under the Family Law Act or until further Court Order.

The Mother shall pay the remaining 35% share of any special or extraordinary expenses incurred by or on behalf of the children. II. INCOME OF THE PARTIES [ 8 ] According to the filed Financial Statements and other evidence before the Court, I find that the parties had the following incomes for spousal support and child support purposes: i. Based on her current employment, the Mother’s income for 2023 is $65,887. Based on his current employment, the Father’s income for 2023 is $150,822. ii. The Mother’s income for 2022 was $63,318. The Father’s income for 2022 was $142,856. iii.

The Mother’s income for 2021 was $36,704. The Father’s income for 2021 was $150,965. iv. The Mother’s income for 2020 was $35,228. The Father’s income for 2020 was $108,565. v. The Mother’s income for 2019 was $24,596. The Father’s income for 2019 was $99,999. III.

SPOUSAL SUPPORT [ 9 ] On June 20, 2019, Judge Seidemann III made an Interim Order by consent that included in paragraph 22 a clause that the Father pay $200 per month in spousal support, commencing May 1, 2019, and continuing monthly, subject to review as to entitlement, quantum and duration, and without prejudice to any arguments in respect of underemployment or attribution of income. For reasons still unclear in the evidence, the Father paid $1,600 in 2019 and $1,400 in 2020, then stopped paying spousal support. As of today, the Father has paid the Mother $3,000 in spousal support.

Compensatory Spousal Support [ 10 ] Whether spousal support is payable depends on how long the parties are married, whether they have children, and what the income of each party is. [ 11 ] Compensatory spousal support addresses economic disadvantages suffered by the spouse who will receive spousal support and economic advantages enjoyed by the spouse who will pay spousal support.

The concept of compensatory spousal support is rooted in the fact that the most significant economic consequence of marriage or marriage breakdown usually arises from the birth of children, requiring one partner to cut back on their paid employment to care for the children, which jeopardizes their ability to ensure income security and independent economic well-being. In such situations, spousal support compensates for economic disadvantage.

It acknowledges that the disadvantage of one spouse has conferred an economic advantage on the other spouse, who was able to focus on building a career. [ 12 ] Based on the evidence in the present case, the Mother is entitled to compensatory spousal support. Why? Because during the time the Mother and Father lived together, the Mother had primary responsibility for the children and her employment suffered while the Father’s blossomed.

The parties had agreed – implicitly, if not expressly – that the Mother would initially leave the workforce while each of their children was born while the Father continued his full-time employment. Looking at it another way, the parties agreed the Mother should stay at home to advance their interests as a family unit, and the parties made a measured decision to help advance the Father’s career.

As a result, the Mother’s employment played a secondary role to the Father’s. [ 13 ] So while the Mother worked at various times and jobs before the parties’ separation, the reality of their relationship was, as described by the Mother, that it was a “pink and blue” relationship. She took upon herself traditional housekeeping and child-rearing responsibilities, while the Father sought the best employment opportunities for himself and was the primary money maker for the family. From the evidence, I cannot find that the Mother deliberately chose not to be employed.

Quite the opposite: she lost career opportunities due to being a stay-at-home mom to their children. [ 14 ] In light of the income disparity between the parties, which was a direct result of the Mother leaving the workforce to concentrate on rearing their children, I award $60,000 in compensatory spousal support, having considered the conditions, means, needs and other circumstances of each party, including the following: a. The length of time the Mother and Father lived together; b. The functions performed by each party during the period they lived together; and c.

The parties agreed that the Mother would be the primary caregiver for the children.

[ 15 ] I have considered the current financial position of the parties, including the reality that the Father is not currently in a financial position to make the entire lump sum payment of $60,000 to the Mother.

Accordingly, the compensatory spousal support will be paid by the Father to the Mother as follows: a. $23,000 lump sum, by way of a transfer within a Retirement Savings Plan (RSP), by no later than August 31, 2023. b. $37,000 through 36 monthly payments of $1,141.61 ($1,000 plus 6.95% interest as per the current Government of Canada Prime Interest Rate) on the first day of each month, beginning August 1, 2023. The total paid will be not more than $41,097.85, which includes $37,000 plus $4,097.85 in interest.

Nothing in this judgment prevents the Father from paying the compensatory spousal support to the Mother sooner than the

schedule set out herein. The interest owed on the compensatory spousal support shall be adjusted accordingly if the Father pays the compensatory spousal to the Mother in advance of the payment

schedule set out herein. Non -compensatory Spousal Support [ 16 ] Non -compensatory spousal support addresses need and is grounded in the “social obligation model” of marriage, which is considered an interdependent union. Non -compensatory spousal support embraces the idea that upon dissolution of a marriage or marriage- like relationship, the primary burden of meeting the needs of the disadvantaged party falls on their former partner rather than the state.

Non-compensatory support aims to narrow the gap between the needs and means of the parties upon marital breakdown; as such, it is often referred to as the “means and needs” approach to spousal support. [ 17 ] In looking at the Mother’s need for ongoing spousal support and in keeping with the long-standing principle that the separated parties have a responsibility to take action to become economically self-sufficient, I do not accept that the Mother is entitled to non- compensatory spousal support in the present case. She has exciting employment prospects ahead of her, owns her own home, and can support herself.

Her lifestyle and means are equal to that of the Father. While neither party is financially where they would have been if they had not separated, the Mother does not require ongoing spousal support. Making the Father pay ongoing spousal support over and above the compensatory spousal support awarded to the Mother would put her in a far better financial situation than the Father. Contractual Spousal Support [ 18 ] Contractual spousal support arises when the parties have made a private agreement allowing one to receive spousal support from the other.

Contractual spousal support usually arises when the parties have signed a pre-nuptial or co-habitation agreement or included in their Separation Agreement that one party would pay spousal support. As there is no agreement between the parties, there is no contractual spousal support in the present case. Spousal Support Arrears [ 19 ] The Father owes no arrears of spousal support to the Mother. IV. CHILD SUPPORT [ 20 ] On January 9, 2019, Judge Stewart made an Interim Order by consent of the parties that the Father pay $924 every two weeks in child support.

There are 52 weeks in a year, so Judge Stewart’s Order requires 26 payments in a calendar year. Nine hundred and twenty- four dollars x 26 equals $24,024. When divided by 12, the monthly child support payment is $2,002. [ 21 ] The Interim Order by consent made by Judge Seidemann III on June 20, 2019, included: i. In paragraph 13, a dismissal of all claims for retroactive child support by the Mother; and ii. In paragraph 19, a clause that child support is reviewable upon the request of either party, subject to certain limitations.

Of significance, the amount of child support payable by the Father to the Mother did not change. [ 22 ] On May 3, 2021, Judge Struyk made an Interim Order by consent, recognizing that the Father owed arrears of child support to the Mother.

In paragraph 4, Judge Struyk ordered that beginning May 4, 2021, and every second Friday after that, the Father pay the Mother “the sum of $800 for ongoing child support and towards child support arrears….” Of significance, there was no mention of the actual amount of child support arrears owing as of May 3, 2021. [ 23 ] In determining the appropriate monthly child support to be paid by the Father, I have considered the parties’ incomes in 2019, 2020, 2021, 2022 and 2023. I have also based my calculations on shared parenting time between the parties.

My determinations are as follows: • 2023 - $1,474 per month payable by the Father to the Mother ($10,318 as of July 31, 2023). • 2022 - $1,401 per month payable by the Father to the Mother ($16,812). • 2021 - $2,036 per month payable by the Father to the Mother ($24,432). • 2020 - $1,375 per month payable by the Father to the Mother ($16,500). • 2019 - $1,457 per month payable by the Father to the Mother ($17,484). [ 24 ] The evidence shows that as of May 31, 2023, the Father paid $87,019.20 in child support. His child support obligation to the Mother as of July 31, 2023, is $85,546.

Accordingly, as of July 31, 2023, the Father overpaid child support by $1,473.20, and no child support arrears are owed.

[ 25 ] As we advance, the Father will pay $1,474 per month to the Mother for the support of the children, commencing on August 1, 2023, and continuing on the 1 st day of each and every month after that, for as long as the children are eligible for support under the Family Law Act or until further court order. V. SPECIAL AND EXTRAORDINARY EXPENSES [ 26 ] The Mother is not seeking a retroactive order concerning special or extraordinary expenses.

Still, the Father has argued that in making my determinations as to spousal support and child support, there may have to be a set-off of special or extraordinary expenses, as the Father has been paying the children’s private school tuition.

Given my determinations above concerning spousal support and child support, I decline to make an order retroactively concerning special or extraordinary expenses or to make a set-off. [ 27 ] In the future, in light of the parties’ incomes, the Father shall pay a 65% share of any special or extraordinary expenses incurred by or on behalf of the children until their nineteenth birthday or as long as they are eligible for support under the Family Law Act or until further Court Order.

The Mother shall pay the remaining 35% share of any special or extraordinary expenses incurred by or on behalf of the children, including school tuition fees. VI. CONCLUSION [ 28 ] For as long as one or more of the children are eligible to receive child support or extraordinary expenses, the parties shall exchange: a. Copies of their respective income tax returns for the previous year, including all attachments, not later than June 1 each year; and b.

Copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency immediately upon receipt. [ 29 ] Upon exchange of their income tax returns and Notices of Assessment or Reassessment, the parties shall discuss any material change in circumstances which may warrant a change in the amount or date of child support or extraordinary expenses payable. If the parents agree to change the child support or extraordinary expenses payable, the change will be set out in a consent order and filed with the Court as set out in Rule 81.

Any changes to child support or extraordinary expenses will commence on April 1 of the year following the taxation year. [ 30 ] All of which is ordered this 7 th day of July, 2023. ______________________________ The Honourable Judge D. Patterson Province of British Columbia