J.C. v. B.D., 2021 BCPC 16

Citation: J.C. v. B.D. 2021 BCPC 16 Date: 20210120 File No: 109917 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.C. APPLICANT AND: B.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BURNETT Appearing on their own behalf: J.C. Counsel for the Respondent: L. Thomson Place of Hearing: Kelowna , B.C.

Dates of Hearing: October 7, 8, 9, 10, 18, 21, 22, November 1, 2019; January 31, February 13, 14, August 12, 13, October 5, 2020 Date of Judgment: January 20, 2021 Introduction [ 1 ] J.C. and B.D. were in a common law relationship from 2005 until its breakdown in 2015.

They have two children from the relationship: J.S.C. (“J.”) born [omitted for publication] and B.A.C. (“B.”) born [omitted for publication]. [ 2 ] J.C. initiated these proceedings by filing an Application to Obtain An Order on February 12, 2016 (the “Application”) within which he was seeking orders regarding guardianship, parenting time, allocation of parenting responsibilities, and other relief from the Court. [ 3 ] B.D. filed a Reply and Counterclaim on March 1, 2019 (the “Counterclaim”). In her Reply she opposed all the relief being sought by J.C.

In her Counterclaim she sought similar relief as J.C. had sought in the Application as well as additional relief by way of orders for retroactive and ongoing spousal support and child support. [ 4 ] J.C. filed a Reply on March 7, 2019 to the Counterclaim opposing all the relief sought by B.D.

He cross-counterclaimed (the Cross-Counterclaim”) for retroactive and ongoing child support. [ 5 ] The parties’ trial regarding the issues raised in the Application, the Counterclaim and Cross-Counterclaim commenced on October 7, 2019 and continued for 12 additional days over the course of many months concluding on October 5, 2020. [ 6 ] In August and September of 2020, the parties came to an agreement on many of the issues that were contested at the trial. On August 12, 13, and October 5, 2020 Consent Orders regarding the settled issues were spoken to.

Unfortunately, the parties were not able to agree on the financial issues of spousal and child support.

Issues [ 7 ] The issues remaining to be decided are: 1) What is the monthly quantum, if any, of spousal support B.D. is entitled too and if she is entitled to spousal support for how long? 2) Is B.D. entitled to an award of retroactive spousal support and if so what is the quantum? 3) Should B.D. pay child support to J.C. and if so what is the quantum? 4) Is J.C. entitled to an award of retroactive child support and if so what is the quantum? 5) Additionally, although not specifically plead in the Application or Cross-Counterclaim, J.C. has asked that I address how the costs of both the preparation of the 211 report of Dr.

Elterman and his attendance at trial should be apportioned. [ 8 ] I shall address the issues in the same order as I have outlined them above. Spousal Support [ 9 ] B.D. asks me to award her spousal support at the high end of the Spousal Support Advisory Guidelines (the “Spousal Guidelines”) for a total period of just over 10 years from the date of the parties’ separation. She says that she is entitled to both compensatory and non-compensatory support.

She submits that, after accounting for J.C.’s prior annual income, his anticipated annual income going forward, and imputing her ability to earn income based on minimum wage part time employment, she should receive a minimum of $1,000.00 per month until 2025. [ 10 ] J.C. says that he has paid a reasonable amount of spousal support to B.D. since their separation.

He argues that as B.D., had received funds both by way of salary from their joint bank account post separation and payments of spousal support of $1,000.00, he has paid her the equivalent of approximately eight years of spousal support in the mid range of the Spousal Guidelines.

Since their separation (after acknowledging the period between 2015 and 2016 when she was incapable, due to medical reasons, of working) he says she has failed to take any reasonable efforts to upgrade her skills or secure employment and as she is young and has the ability to become self- sufficient he asks that I make no order for spousal support. [ 11 ] Sections 161 and 162 of the Family Law Act set out the objectives of spousal support and the factors to consider when determining spousal support.

They are as follows: 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and othercircumstances of each spouse, including the following: (

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. [12] It is common ground that the objectives set out in the FLA are the same as the objectives in the Divorce Act and, as such, caselaw interpreting the Divorce Act is applicable in cases under the FLA. [13] In Chutter v. Chutter 2008 BCCA 507 Justice Rowles, speaking for the Court, discussed in detail the focus of the Divorce Act,ss. 15.2 and both the compensatory and non-compensatory models of spousal support. Commencing at paragraph 45 she stated thefollowing: [45]

Section 15.2 of the Divorce Act is the main provision governing entitlement to spousal support. Subsection 15.2(6) provides that aspousal support order should meet the following objectives: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [46] In order to achieve a fair and equitable distribution of resources, all four of these objectives should be examined: Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 at 850-853, 43 R.F.L. (3d) 345. Having regard to these policy objectives, courts mustconsider the condition, means, needs and other circumstances of each spouse, including the factors set out in s. 15.2(4): (

a) The length of time the spouses cohabited; (

b) The functions performed by each spouse during cohabitation; and (

c) Any order, agreement or arrangement relating to support of either spouse. [47] Based on the statutory provisions and the case authorities, the Supreme Court of Canada has identified three grounds forentitlement to spousal support: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2)non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support (Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420 at paras. 15, 41-42, 44 R.F.L. (4th) 1). [48] The claim for spousal support in this case was advanced on compensatory and non-compensatory support principles. [49] Although the compensatory and non-compensatory grounds for spousal support are animated by different models of marriage, thecase authorities hold that there is no single basis of support or objective under the Divorce Act that supersedes the other, and that manyclaims involve aspects of both compensatory and non-compensatory principles (Bracklow, at para. 27; Moge, at 852).

A court is notcalled upon to decide on one basis for support to the exclusion of the other but rather to “[apply] the relevant factors and strik[e] thebalance that best achieves justice in the particular case” (Bracklow, at para. 32). Moreover, the doctrine of equitable sharing is theoverarching principle that must be borne in mind (Moge, at 864). (ii) Compensatory support [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriageor the conferral of an economic advantage upon the other spouse.

The compensatory support principles are rooted in the “independent”model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation forlosses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and householdresponsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, atpara. 39).

In Moge, the Supreme Court of Canada observed, at 867-868: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being.

In such situations, spousal support maybe a way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown,compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’sefforts.

As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdownunderlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse whomakes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added). [52] The Court in Moge discussed the relevance of the parties’ standards of living in the context of compensatory support at 870:

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of livingenjoyed during the marriage, this standard is far from irrelevant to support entitlement…. As marriage should be regarded as a jointendeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equalstandards of living upon its dissolution. [Emphasis added, internal citations omitted.] [53] In W. v. W., 2005 BCSC 1010, 19 R.F.L. (6th) 453, a frequently cited decision in trial decisions in British Columbia, JusticeMartinson made the following helpful observation about the

interpretation in this province of the emphasized portion in Moge: [11] In British Columbia this comment in Moge has been interpreted to mean that in long marriages the result will likely be a roughequivalency of standards of living. Doing so recognizes that the longer a marriage lasts, the more intertwined the economic and non-economic lives of the spouses become. [12] Throughout the marriage, each spouse makes decisions that accommodate the economic and non-economic needs of the other.

The decisions include the way in which child care and other family responsibilities will be handled and the way careers will develop. These decisions can have a significant impact upon the income earning ability of each at the time of separation. Yet it is not easy todetermine exactly the relationship between these decisions and the consequent benefits and detriments to each spouse. The roughequivalency of standard of living approach has operated as a workable substitute to assess compensatory claims. See for example,Dithurbide v. Dithurbide (1996), (BC SC), 23 R.F.L. (4th) 127 (B.C.S.C.); Rattenbury v.

Rattenbury, 2000 BCSC722; Rinfret v. Rinfret, [1999] B.C.J. No. 2945 (S.C.); O'Neill v. Wolfe (2001), 2001 BCSC 135 , 14 R.F.L. (5th) 155 (B.C.S.C.);Walton v. Walton, [1997] B.C.J. No. 1089 (S.C.); Ulrich v. Ulrich, 2003 BCSC 192; and Carr v. Carr (1993), (BCSC), 46 R.F.L. (3d) 326 (B.C.S.C.). [Emphasis added.] (iii) Non-compensatory support [54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, atpara. 43). Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as aninterdependent union.

It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of thedisadvantaged spouse falls on his or her former partner, rather than the state (Bracklow at para. 23). Non-compensatory support aims tonarrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “meansand needs” approach to spousal support. [55] The concept of “needs” in the context of non-compensatory spousal support goes beyond basic necessities of life and variesaccording to the circumstances of the parties.

As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), (BCCA), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10: “Need” or “needs” are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as awhole. “Need” does not end when the spouse seeking support achieves a subsistence level of income or any level of income abovesubsistence. “Needs” is a flexible concept and is one of several considerations which a trial judge must take into account in decidingwhether any order for spousal support is warranted. [56] The Ontario Court of Appeal in Allaire v.

Allaire (2003), (ON CA), 170 O.A.C. 72, 35 R.F.L. (5th) 256, heldthat self-sufficiency, a spousal support objective primarily related to non-compensatory support (Bracklow, at paras. 41-42), was arelative concept informed by the standard of living previously enjoyed by the parties: [21] … self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by theparties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire’s income, it isinappropriate to consider Ms.

Allaire’s annual income of $68,000 as “sufficient” without considering whether Mr. Allaire can financiallyassist her to live a lifestyle closer to what they shared as a couple. [57] In Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 41, 48-49, 16 R.F.L. (6th) 430, Prowse J.A. referred to Myers and further heldthat in the context of a long-term marriage involving a sharing of resources, the concept of “need” should take into account the relativestandards of living of the spouses following the marriage breakdown.

In Yemchuk, the husband had appealed the decision of the trialjudge dismissing his claim for spousal support on the basis that he had not established any need. While Prowse J.A. found that thehusband was entitled to spousal support on compensatory grounds, she also went on to state that the trial judge’s treatment of thehusband’s need for support had been “unduly restrictive”: [41] I am also satisfied that the trial judge erred in viewing Mr. Yemchuk's “need” for support from too narrow a perspective. Hetreated “need” as solely a question of whether Mr.

Yemchuk could meet his stated expenses with the income available to him. Afterattributing $800-$1,000 per month to Mr. Yemchuk, the trial judge found that Mr. Yemchuk could meet his expenses and, therefore, wasnot entitled to support. [58] In Tedham v.

Tedham, 2005 BCCA 502, 20 R.F.L. (6th) 217, Prowse J.A. referred to Yemchuk as illustrative of the fact that thecourts, at least in longer marriages, are measuring need against the marital standard of living (para. 55), and followed Allaire in findingthat the objective of self-sufficiency must be viewed in the context of the marital standard of living (para. 60). [59] Non-compensatory support was also considered in Hodgkinson v. Hodgkinson, 2006 BCCA 158, 25 R.F.L. (6th) 235.

In thatcase, the parties divided assets of close to $7 million, and the wife was awarded time-limited spousal support on non-compensatorygrounds. The trial judge had found that the wife was not entitled to spousal support on either compensatory or non-compensatorygrounds: she was not financially disadvantaged by the marriage; she was both highly trained and capable of stepping back into the workforce; and she was able to earn investment income from her share of the capital assets. On appeal, Saunders J.A., for the court, held that

the trial judge’s analysis of the wife’s needs and means was “impermissibly narrow”; in part because it had not taken into account the marital standard of living or the husband’s post-separation standard of living: [68] However, the trial judge did not relate that capacity to earn income from her capital assets and from employment to the standard of living the parties enjoyed during marriage or to the standard of living of Mr. Hodgkinson after trial, or advert to the time lag that would be involved in earning income from a business if Mrs. Hodgkinson immediately resumed work as a chef or caterer.

While none of these factors is, by itself, a determinant of Mrs. Hodgkinson's entitlement to spousal support, their absence illustrates what I consider an impermissibly narrow approach to the issue of spousal support. [69] Both the question of hardship to Mrs. Hodgkinson ([15.2(6)(c)]) and her self-sufficiency ([15.2(6)(d)]) bear some relationship to the standard of living enjoyed by the parties during the marriage (tempered by the income available) and by the other spouse after the marriage. While Mrs.

Hodgkinson is not entitled to support at a level that would maintain the highly affluent lifestyle the parties shared, particularly as it appears to have been beyond the level of Mr. Hodgkinson's earnings, in these circumstances she is entitled to a degree of comfort well beyond “basic needs”. *** [74] It was an error, in my view, for the trial judge to fail to recognize these several aspects.

The arrangement between the parties during marriage as described by the trial judge, in my view, required consideration of spousal support from the perspective of the standard of living that is still reasonably available to them, although in two residences. While recognizing that Mrs. Hodgkinson is not necessarily entitled, step for step, to Mr.

Hodgkinson's standard of living, something closer is required. [60] The trial judge distinguished Hodgkinson on the basis that the wife had been awarded non-compensatory support for the time required to restore her career, whereas in this case the appellant had been continuously employed for many years. However, the factual differences between Hodgkinson and this case do not diminish the principle that an analysis of the support-seeking spouse’s “needs” under non-compensatory support, i.e., the objectives of ss. 15.2(6) (

c) and 15.2(6) (

d) of the Divorce Act , requires some consideration of the standard of living enjoyed by the parties during the marriage and by the other spouse after the marriage. [61] Finally, I note that in Fisher v. Fisher , 2008 ONCA 11 , 88 O.R. (3d) 241, the Ontario Court of Appeal recently reiterated the principle that self-sufficiency is a relative concept encompassing more than the ability to meet basic expenses: 53 Self-sufficiency, with its connotation of economic independence, is a relative concept.

It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. … Discussion [ 14 ] The parties are both 38 years old. Their relationship began in 2001 and in 2005 they commenced living together as a common law couple.

They initially lived in a condominium in Vancouver and moved to Kelowna in 2012 so that they could have a home with a yard. Both children were born when the parties lived in Vancouver. [ 15 ] When the parties first meet B.D.’s career goal was to become a member of the Royal Canadian Mounted Police (the “RCMP”). Unfortunately, due to educational upgrading she required and her becoming pregnant with J. in [omitted for publication] she was unable to pursue this. [ 16 ] J.C., from the time the parties commenced living together to the date of their separation, was the main income earner for the family.

He works in the technology industry designing and building computer applications for businesses. While they lived in Vancouver he ran his business, [omitted for publication], from the living room of their condominium and when they moved to Kelowna he did so from an office in their home. B.D. would assist him by doing secretarial work, proofreading documents, and testing the computer applications he had designed. [ 17 ] The parties do not dispute that B.D. was the parent who handled the majority of the child rearing and housekeeping responsibilities. Where they disagree is to what extent she did so.

B.D. says she took on 70% of these responsibilities whereas J.C. says it was only 60%. For the purposes of the issues I must consider I do not find the difference of 10% to be determinative. What is significant, and I find, is that B.D.’s focus while the children were young was on rearing them and managing the household while J.C.’s focus was on earning the finances to support the family.

I accept that J.C. was able to contribute more to raising the children than if he had worked outside of the home; however, I find that the parties nonetheless agreed and understood what their respective responsibilities in the family would be. The consequence being that B.D.’s desire to complete her education and become a member of the RCMP was put on hold. [ 18 ] Prior to their move to Kelowna B.D. learned that she may be suffering from a medical condition affecting her heart. In 2011 she visited the emergency room at St.

Paul’s hospital in Vancouver where she says she was diagnosed with postural tachycardia syndrome (“POTS”). J.C. testified that he was not aware in 2011 that she had been diagnosed with POTS although he did state that he recalled her going to the hospital. [ 19 ] When the parties moved to Kelowna, notwithstanding that the children were enrolled in school, their respective household roles did not change. It was not until 2014, when B.D.’s health issues regarding her heart began affecting her ability to carry out her parenting duties to the extent she previously had, did things begin change.

By 2015 when B.D. experienced mental health issues that required hospitalization J.C. had become the parent shouldering the most responsibilities for managing the household and caring for the children. [ 20 ] After B.D. was discharged from the hospital in the summer of 2015 the parties separated. [ 21 ] Subsequent to the parties separation B.D. has had numerous incidents arising from her diagnosis of POTS that required her to

visit the hospital. She submitted hospital records from Kelowna General Hospital for the period January 1, 2016 to October 2019. A review of those records shows that she attended the hospital on four occasions in 2016, four occasions in 2018 and two occasions in 2019 for issues related to POTS. While I was not presented any expert evidence as to the long-term impact of a diagnosis of POTS or how it would limit her ability to earn an income I find that the evidence I was presented with establishes that there was and will continue to be a limit on B.D. abilities because of her condition.

Spousal Support [ 22 ] I find on a consideration of all of the evidence that B.D. has established an entitlement to spousal support on a compensatory basis. Upon the birth of J. her goal to become a police officer was halted. Both she and J.C. decided that she would look after J., the household, and shortly thereafter B., while he ensured the financial support for their growing family. As a result of this decision her ability to earn an income was curtailed while J.C.’s ability was expanded. This arrangement greatly benefitted the family as a whole.

Unfortunately, upon the breakdown of the parties’ relationship it left B.D. in a financially detrimental position. In order to address this inequity a compensatory award of spousal support is warranted. [ 23 ] I now turn to what the quantum of spousal support ought to be, for how long B.D. is entitled to receive it, and if there is any retroactive spousal support owing her. In considering the above, it is important to recognize that this was a relationship of moderate length – just over 10 years. B.D. is young and she still has the opportunity to become self-sufficient.

However, her ability to do so is circumscribed by her diagnosis of POTS and the impact that condition has on her physical wellbeing. Given her level of education and her health issues, it is unlikely that she will obtain any form of employment beyond minimum wage. Additionally it remains uncertain as to whether she will be able to ever work full time. I also am mindful of the fact that the parties respective standards of living post breakup are significantly different. J.C. remained in the family home and continues to reside there. B.D. has moved in with her parents.

She has had to rely on the generosity of her parents to provide her with a place to live. J.C. by virtue of his ability to earn a generous income has been able to remain in the family home as he can afford to maintain it. The parties’ disparate standards of living will continue for some time. [ 24 ] To determine the appropriate award of spousal support it is necessary to refer to the Spousal Guidelines.

The Spousal Guidelines produce a range of the quantum of spousal support payable from low to high based on the respective incomes of the parties and, if there are children of the relationship, whom the children reside with. [ 25 ] I was provided both documentary and viva voce evidence regarding what the parties’ historical income for 2016 to 2018 was as well as what their income was anticipated to be post trial. I was not provided any evidence regarding the parties’ respective incomes for 2015. No personal income tax returns for 2015 were filed with the Court at the trial.

Given the lack of evidence for 2015 and given that B.D. did receive a salary throughout 2015 from [omitted for publication] I decline to make any award for retroactive spousal support for 2015. [ 26 ] J.C.’s income is based on the earnings from [omitted for publication]. Its corporate tax returns for 2016 to 2018 and its financial statements for 2015 to 2018 were produced at the trial.

B.D. urges me to find that the income earned by J.C. for the three years from 2016 to 2018 should be based on an average of the management salaries claimed by [omitted for publication] over that period plus the average of the rental income expensed by the corporation over the same period. As the corporation operates out of J.C.’s residence the payment of rent to him is another source of income in addition to his management salary. I agree with B.D. that averaging these amounts is the most equitable basis for ascertaining J.C.’s income, not only historically, but also for 2019 and 2020.

The management salaries for 2016 to 2018 were $103,513.00 for 2016, $82,542.00 for 2017, and $90,172.00 for 2018. The average is $92,076.00. The rent paid by [omitted for publication] to J.C. for 2016 to 2018 was $5,344.00 for 2016, $5,243.00 for 2017 and $5,568.00 for 2018. The average for rent is $5,385.00. These two sums result in an average annual income of $97,420.00. [ 27 ] B.D. has remained unemployed since the parties’ separation. J.C. argues that I should impute a modest income to B.D. commencing in 2017.

He says the evidence establishes that B.D. was capable of earning some income once her mental health improved and given the lack of any expert evidence supporting her diagnosis of POTS I should not accept that it limits her ability to secure some employment. He also argues that B.D. has not made a concerted effort to either upgrade her education or find work.

He accepts that B.D. was not capable of working for 2015 or 2016. [ 28 ] I do not agree with J.C.’s position regarding the limiting factor arising from B.D.’s heart condition; however, I do agree with his position regarding the lack of effort by B.D. to secure employment. B.D. said that since the parties separated and her mental health had improved she had obtained some income from looking after her sister’s children and providing care for her grandmother. Additionally she had started a business of raising ducks for pets. None of these activities resulted in her earning much.

She said that she had commenced some training in 2019 towards becoming a pharmacy assistant however she did not purse the next phase of the training. In early 2020 she applied for a position as a morgue technician but was not successful.

Her explanation for her inability to secure employment or complete educational upgrades is that she has to be mindful of her physical heath arising from her POTS and she cannot afford educational upgrading due to her limited finances. [ 29 ] While I am sympathetic to B.D. and I do not discount her concerns arising from her physical health I cannot accept that she could not have obtained some employment that would have provided her some income greater than what she earned from minding her sister’s children, caring for her grandmother, and the duck business.

I am of the view that she could have secured some part-time employment commencing in 2017. Likely, it would have been minimum wage employment only. The result being that I find it is appropriate to impute some income to her commencing in 2017. [ 30 ] The minimum wage in 2017 was $11.35 per hour. It has increased each year thereafter and in 2020 was $14.60 per hour. For 2017 thru to 2019 I find that B.D. could have worked approximately 15 to 20 hours per week.

This would result in a range of annual earnings (accounting for the increase each year in the minimum wage) of $8,853.00 to $11,804.00 for 2017, $9,867.00 to $13,156.00 for 2018, $10,803.00 to $14,404.00 for 2019 and $11,388.00 to $15,184.00 for 2020. The average for each of those years is $10,328.50 for 2017, $11,481.50 for 2018, $12,603.50 for 2019 and $13,286.00 for 2020. I impute the average income for each year commencing in 2017 up to and including 2020 to Ms. Davies.

[ 31 ] Although I was not provided with filed income tax returns for 2019 for either party or [omitted for publication] there was evidence that J.C.’s sole source of income continued to be his management salary and rental income from [omitted for publication]. B.D. remained unemployed. Imputing an income of $97,420.00 for 2019 to J.C. is reasonable given that was the average income I found he earned for the years 2016 to 2018.

There was no evidence that his income would have decreased in 2019. [ 32 ] In 2020 the COVID-19 pandemic proved detrimental to [omitted for publication] in that its sole client, commencing in March, effectively shuttered its operations and J.C. said [omitted for publication] stopped paying its invoices. He said he continued to do some work for them in the hope that the client would pay its overdue invoices.

Fortunately, in August of 2020 he secured new employment from which he expected to receive a salary of $118,000.00 annually. [ 33 ] I accept that the impact of [omitted for publication] losing its sole client in March of 2020 would have resulted in a decrease of annual income for J.C. His securing of new employment that pays him more than he previously earned offsets some of the lost income. [Omitted for publication] plus the rental income pre-pandemic provided him with an average monthly income of $8,084.00. His new employment provides him with and average monthly income of $9,833.00.

A difference of just under $1,800.00 more per month. Accounting for no monthly income being earned by [omitted for publication] after March of 2020 and J.C. starting his new employment in August of 2020 there are 4 months in 2020, April to July, when J.C. would not have had an income. This results in just over $32,000.00 in lost revenue. This sum is reduced by the 5 months of increased revenue for the balance of the year arising from his increased monthly income commencing in August.

The result being that his annual income for 2020 would have been approximately $73,500.00. [ 34 ] Commencing in 2021 his annual income will be $118,000.00. I have previously imputed income to B.D. and I expect that her ability to secure more work will increase; however, she will no doubt remain only capable of working part-time at minimum wage.

For 2021, I impute her income at $15,000.00, which is just over 20 hours per week at minimum wage. [ 35 ] Prior to the parties formally executing the agreement regarding parenting time on August 17, 2020 (the “Parenting Time Agreement”), the children resided primarily with J.C. The Parenting Time Agreement has the children residing with him approximately 68% of the time.

The result being that the primary residence of the children remains his. [ 36 ] The Spousal Guidelines, once the parties’ respective incomes and the primary residence of the children are applied, result in the following ranges from low too high for the years 2016 to 2021: a) 2016 the range is $848.00 to $1,130.00; b) 2017 the range is $713.00 to $950.00; c) 2018 the range is $704.00 to $939.00; d) 2019 the range is $701.00 to $934.00; e) 2020 the range is $530.00 to $707.00; and f) 2021 the range is $878.00 to $1171.00. [ 37 ] I find that awarding spousal support in an amount that exceeds the high end of the range for a period of 10 years post separation up to and including 2025 is appropriate.

I have arrived at this conclusion given the respective length of the relationship, the parties’ decision as to whom would assume what responsibilities in the relationship, and what their respective standards of living will be going forward. As I noted above J.C.’s standard of living will be far greater than B.D.’s will. This discrepancy will continue for many years. The gap between them will likely never significantly close. [ 38 ] An award of spousal support exceeding the high end of the range is the only way to equitably address the consequences of the parties decisions made early in the relationship.

Their choices as to who would assume different roles in supporting the family has affected their respective abilities to become self-sufficient upon the dissolution of the relationship. J.C. has achieved financial independence. He will continue to prosper. B.D. will not. [ 39 ] For 2016 to 2019, I award spousal support to B.D. in the sum of $1200.00 per month or $14,400.00 per year. This results in the sum of $57,600.00 for the four years. For 2020, as J.C.’s income decreased in that year, I award spousal support in the sum of $1000.00 per month. This totals $12,000.00.

Therefore, the total spousal support for 2016 to 2020 is $69,600.00. [ 40 ] For 2021 and each year thereafter up to and including 2025, I award spousal support in the sum of $1500.00 per month. [ 41 ] J.C. since September of 2017 has paid $1,000.00 per month as spousal support up to and including March of 2020. This totals $31,000.00. Prior to the fall of 2017 he says B.D. between 2015 and 2016 received the equivalent of spousal support in the amount of $27,660.00.

He says she received this amount by way of [omitted for publication] continuing to pay her a salary and by some of her other expenses being paid by withdrawals from their joint bank account. He also argues that I should attribute the payment of in excess of $3,000.00 by [omitted for publication] towards her cell phone bills from the date of their separation in July of 2015 to July of 2017 as payment towards spousal support. I accept that the sum of $27,660.00 she received in 2015 and 2016 as payment towards spousal support; however, I do not accept that the payment of the cell phone bills is.

I have come to this conclusion as B.D.’s continuing to receive an income from [omitted for publication] post separation is the equivalent of being paid spousal support by J.C. This is because the salary she was paid was not due to her actually providing services to the company but was paid to her for tax planning purposes to minimize the quantum of profit earned by [omitted for publication] and to reduce J.C.’s potential tax liability by means of income splitting. J.C. at any time post separation, if he so chose, could have stopped [omitted for publication] from paying the cell phone bill. He chose not to.

Waiting until a trial to claim it as a payment towards spousal support I find is not appropriate. The net result is that I find J.C. has paid the sum of $58,660.00 towards spousal support from the date of separation to and including March of 2020.

[ 42 ] After deducting the sum of $58,660.00 from $69,000.00 the balance owing of spousal support as at December 31, 2020 is $10,940.00. I order that J.C. pay to B.D. the sum of $10,940.00 as arrears of spousal support. [ 43 ] Commencing January 30, 2021 and continuing on the 30th day of each month thereafter until December 30, 2025 I order that J.C. pay to B.D. the sum of $1500.00 for spousal support. Child Support [ 44 ] The children have resided with J.C. for the majority of the time since the parties separated. The Parenting Time Agreement does not change this.

As he is the parent that maintains the primary residence for the children, he is entitled to child support from B.D. so long as her income exceeds the minimum threshold level in the Federal Child Support Guidelines (the “Child Guidelines”). The amount of income I have imputed to B.D. does not reach the minimum threshold level to trigger child support until 2019 when her imputed income is $12,603.50. The Child Guidelines require that she pay the sum of $66.00 per month for two children as child support on that income. This totals $792.00 in arrears for 2019.

In 2020, her imputed income of $13,286.00 requires that she pay the sum of $121.00 per month for two children as child support. This totals $1,452.00 in arrears for 2020. I order that B.D. pay the sum of $2,244.00, being the total arrears for 2019 and 2020, to J.C. as arrears of child support. [ 45 ] As I have concluded that B.D. should be able to earn approximately $15,000.00 per year commencing in 2021 the Child Guidelines require her to pay to J.C. $183.00 per month as child support.

Accordingly I order that she pay the sum of $183.00 commencing January 30, 2021 and on the 30th of each month thereafter for so long as the children are eligible for support under the Family Law Act (the “ FLA ”) or until further Court order. [ 46 ] I anticipate that B.D.’s ability to earn income may increase in subsequent years and the parties may change the parenting time arrangements. Either occurrence may impact the quantum of child support.

To address that potential occurrence I order that the parties, on June 1st of each year commencing in 2022, exchange copies of their filed T1 Income Tax returns, and within 30 days of receiving them their Notice of Assessments or Reassessments from Canada Revenue Agency. This shall continue for so long as the children remain children as defined by the FLA . Costs of the 211 Report [ 47 ] J.C. asks that I apportion the costs associated with the preparation by Dr. Elterman of the 211 report (the “Report”) and his attendance at trial between the parties.

He says the order of Judge McParland, dated August 6, 2019, (the “McParland Order”) which stipulates he must bear the costs of the preparation of the Report and the attendance of Dr. Elterman at the trial, was granted only after a brief hearing without the parties being able to make full submissions to the court. Additionally he says that given that the parties have now agreed to all of the issues that would have necessitated a 211 report I should re-visit the costs issue. [ 48 ] I am not prepared to do so for the following reasons.

Firstly, the McParland Order is clear as to who was to incur the cost of the Report and the attendance of Dr. Elterman at trial. It did not provide for an apportionment of costs by the trial judge at a later point in time in the proceedings. To now embark on a reconsideration of her order at the conclusion of the trial would be inappropriate. Secondly, it was open to the parties to agree to apportion some or all of the costs of the preparation of the Report and the attendance of its author at trial as part of their settlement discussions however they chose not to do so.

Summary 1) I award spousal support to B.D. for a period of 10 years commencing January 2016 and concluding December 2025. 2) J.C. shall pay to B.D. arrears of spousal support in the sum of $10,940.00. 3) J.C. shall pay to B.D. for her support the sum of $1500.00 per month commencing on January 30, 2021 and continuing on the 30 th day of each month thereafter until December 30, 2025, at which time spousal support will be terminated. 4) B.D. shall pay to J.C. arrears of child support in the sum of $2,244.00 5) B.D. shall pay to J.C. the sum of $183.00 per month for the support of J. and B. commencing January 30, 2021 and on the 30th of each month thereafter for so long as the children are eligible for support under the FLA or until further Court order. 6) Commencing in 2022, for so long as the children are eligible to receive child support, the parties will exchange:

a) copies of their respective income tax returns for the previous year, including all attachments, not later than June 1st each year; and

b) copies of their Notice of Assessment or Reassessment within 30 days of receiving them from Canada Revenue Agency. 7) I decline to vary the McParland Order regarding the costs associated with the preparation of the Report and Dr. Elterman’s attendance at trial. __________________________ The Honourable C. Burnett Provincial Court Judge