J.B. v. V.B., 2021 BCPC 117

Citation: J.B. v. V.B. 2021 BCPC 117 Date: 20210309 File No: 124014 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.B. APPLICANT AND: V.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. TAM

Appearing on their own behalf: J. B. Counsel for the Respondent: B. CoynePlace of Hearing: Kelowna, B.C.Dates of Hearing: Feburary 1 & 2, 2021Date of Judgment: March 9, 2021 Introduction [1] V.B. and J.B. began a relationship in 2007. Together they have 4 children. Z. is 10, B. is 8, Z.A. is 7, and H. is 2, collectively the“Children”. V.B. and J.B. were separated in 2013, but reconciled in 2016. They finally separated again in the summer of 2018.

For thepurposes of these reasons, I am fixing the date of separation as of August 1, 2018. [2] At the time of their separation, the family lived in [omitted for publication] Manitoba. Currently, the children reside with J.B. inKelowna. V.B. now lives and works in Calgary. The current

schedule is one whereby V.B. drives to Kelowna one weekend out of everythree to exercise parenting time with the children. At this hearing, a comprehensive order was consented to dealing with the parentingschedule and parental responsibilities. V.B. also applied to cancel a previous order of this Court which bans J. (his current partner) frombeing present when V.B. exercises parenting time. I granted this application at the conclusion of the hearing on February 2, 2021. Therethen remains financial issues that are in dispute.

I reserved on the issues of child support, s. 7 expenses, and spousal support to today’sdate. This is that decision and the reasons therefore. V.B.’s Income [3] In order to deal with the remaining issues, it is necessary to review both parties’ income. V.B. filed his financial statement whichincludes tax documents from 2018, 2019, and 2020. He was cross-examined on them by J.B. Other than a clarification with respect tosome vehicle expenses, V.B.’s evidence was not seriously challenged with respect to his income. Accordingly, I accept what he had tosay in that regard.

At all relevant times, I find that V.B. was trying his best to provide for his family. At no point did he shirk, or even tryto shirk, his financial responsibilities. If anything, as will be evident below, he went above and beyond what this Court finds hisobligations actually were. Until an interim order made by Regional Administrative Judge Shaw on December 8, 2020, there was noprevious court order or agreement in place with respect to either child or spousal support. [4] V.B. is the general manager of [omitted for publication], a flooring distributor.

He initially joined the company in 2018 as asales manager and was promoted as the general manager after the first year. I find his income, for the purposes of calculating child andspousal support to be as follows: 2018 - $144,256 2019 - $123,382 2020 - $132,087 2021 - $132,087 (projected) J.B.’s Income [5] When the parties started a family 10 years ago, J.B. gave up her then career in kitchen design and dedicated her time to raisingthe family. She has not worked outside the home since. For the purposes of calculating s. 7 expenses and spousal support, V.B. asks thatI impute income to J.B. at $12,000 per year.

He says that this is a modest request and is supported even by her own evidence that she iscapable of earning $25,000 to $30,000 per year. Indeed, her Notice of Assessment from 2019 shows an income of $12,000 for that year. [6] A Court has discretion to impute income to a party where that party is not earning what s/he is capable. As Martinson J. said inEarle v. Earle, , at para. 14: The payment of maintenance is based on ability to pay. That means that it is based not only on what the parent does earn, but also whatthe parent can earn.

The result is that parents have a legal obligation to earn as much as they are capable of earning to meet theirobligation to support their children. [Emphasis in original.] [7] In this case, J.B. was pregnant with H. at the time of separation and about to give birth. She was also dealing with some serioushealth issues at the time. Since moving to Kelowna in September of 2018, she has been a single mother caring for the four children. Atpresent, H. is 2 years old. The other three children are 10 years old or younger.

Under all of these circumstances, it is not realistic toexpect J.B. to work outside the home for now. The income she is likely to make, at this point, will quickly be eclipsed by the day carecost that would be involved. [8] J.B. strikes me as a very capable woman. She represented herself in these proceedings and performed admirably. I find herarticulate, intelligent, and well organized. But for her present responsibilities vis-à-vis the children, I would have had no difficultyimputing income to her at $30,000 or more.

But until H. is old enough to participate in some form of day program, I am not prepared toimpute income to J.B. for the purposes of calculating support obligations. On the evidence before me, H. will be eligible for a program at[omitted for publication] in September of 2022. J.B. also indicated that she plans to return to the work force within 2 years. [9] Mr. Coyne submitted that it is appropriate for the Court to impute income to J.B. at $12,000 because that is what her 2019Notice of Assessment says.

However, on closer inspection, the $12,000 was based on what J.B. claimed as spousal support payments onher tax return. It seems to me to be circular reasoning to base a spousal support calculation on an imputation of $12,000 of income, whenthat figure comes from spousal support payments themselves.

[ 10 ] For the above reasons, I am not inclined to impute any income to J.B. for any calculation in these reasons. It is not reasonable to expect J.B. to work outside the home until September 2022. Child Support [ 11 ] Since all 4 children live with J.B. in Kelowna, the calculation of child support under the Federal Child Support Guidelines is relatively straight forward.

They are as follows: 2018 - $2,690 per month (3 children for 3 months = $8,070) 2018 - $3,206 per month (4 children for 2 months = $6,412) 2019 - $2,784 per month (for 12 months = $33,408) 2020 - $2,963 per month (for 12 months = $35,556) 2021 - $2,963 per month (for 1 month = $2,963) [ 12 ] Between August 1, 2018 and January 31, 2021, his total child support obligation comes to $86,409 . [ 13 ] Prospectively, his child support obligation will remain at $2,963 per month.

Spousal Support [ 14 ] In light of my conclusion that an imputation of income to J.B. is not appropriate, it was necessary to redo the DivorceMate® calculations for the 3 respective years that V.B. submitted to the Court. I have appended these new calculations to these reasons for clarity. In 2018, I have also done a different calculation for August to October (before H. was born), than for November and December (after H. was born). [ 15 ] With respect to whether the low, medium or high figure provided by the Spousal Support Advisory Guidelines (SSAG) is appropriate, V.B. asked that I use the mid figure.

J.B., on the other hand, asked that I use the high figure on the basis that she is a single mother taking care of 4 children. Here, the evidence does not compel me to award the high figure for spousal support. The fact that there are four children is, to some degree, already factored into the child support formula. While the high figure could be justified, for example, on the basis of a particularly strong compensatory claim, I did not hear all that much about what J.B.’s career was like before she and V.B. started a family. What was her income as a kitchen designer? Was she working full time or part time?

What was her career trajectory in that field? Did she undertake any additional training to advance herself? I also take into account that the marriage was not a particularly long one at 10 years, during which the parties were separated for 3 of them. [ 16 ] In the result, for August 2018 to January 2021, I am awarding spousal support at the middle figure provided by the SSAG.

Those figures are as follows: 2018 (August – October): $1,736 per month for 3 months = $5,208 2018 (November – December): $1,053 per month for 2 months = $2,106 2019: $771 for 12 months = $9,252 2020: $811 for 12 months = $9,732 2021: $811 for 1 month = $811 [ 17 ] The total spousal support obligation for the relevant period is, therefore, $27,109 . [ 18 ] The combined spousal and child support obligations for August 2018 to January 2021 is, therefore, $113,518 . Previous Payments [ 19 ] Since their separation, V.B. has continued to provide financially for the family.

This made sense since J.B. was not able to work outside the home in light of her having to take care of the children. At the time of their separation, she was pregnant with H. H. is still only 2 years old at this time. On the uncontroverted evidence, V.B. made frequent cash payments to J.B. In addition, he made other payments to third parties post-separation, including but not limited to utility bills, rent, two speeding tickets, and relocation costs for the family to move to Kelowna.

J.B. also used V.B.’s credit card while on a trip to Hawaii with the children. [ 20 ] V.B. collated all of his expenses and counsel has organized them in a voluminous binder, along with charts that summarize the figures. For the most part, J.B. does not dispute that V.B. spent or provided her with this money. There are, however, a few line items that the parties do not agree on. $900 in rent [ 21 ] With respect to the August 2018 expenditures, J.B. disputes that $900 for rent was paid on her behalf. This is because she did not secure her residence in Kelowna until September.

V.B. conceded this point on cross-examination and, as a result, I find that the $900 incurred in August 2018 ought not to have been included in his calculation. $700 – interact e-transfer

[ 22 ] With respect to a $700 interact e-transfer on August 2, 2018, J.B. denied receiving it. I see that in V.B.’s material, there was a debit of $700 for an e-transfer from his Bank of Montreal account on August 2. Correspondingly, I see an e-transfer deposit of $700 to J.B.’s Royal Bank account on August 6. Taking judicial notice that sometimes an e-transfer is not received on the same day that it is sent, I conclude that J.B. did in fact receive the $700 V.B. said he sent on August 2.

Amazon purchases [ 23 ] With respect to a number of purchases from Amazon totalling $655.90 in July 2018, J.B. denies receiving those items. V.B., on the other hand, said that these items were still in their boxes when they arrived at the home in [omitted for publication] and he put them all on the moving truck when J.B. moved to Kelowna. On this issue, I find that the purchases were made prior to their separation of August 1, 2018. Accordingly, their treatment falls more properly under a division of property analysis under

Part 5 of the Family Law Act , which is outside the jurisdiction of this Court. Consequently, V.B. is not entitled to reduce his support obligation by virtue of these purchases. I am deducting $656 from V.B.’s calculation. Relocation Expenses [ 24 ] Other than the above, J.B. does not dispute the fact that V.B. spent the money that he says he spent. However, J.B. takes issue with whether some of those expenses ought to be her responsibility. In other words, does V.B. get a credit against his support obligation by virtue of their expenditure?

Specifically, she says that the cost of moving the family to Kelowna, the purchase of furniture, and other travel costs V.B. incurred to help the family resettle ought not to be her responsibility and that V.B. is not entitled to deduct these expenses from his support obligation. [ 25 ] As a general principle, the payor of support cannot dictate the manner in which that money is spent. In other words, a payor of child support cannot choose to buy the child a gift (or even food), rather than giving money directly to the payee parent.

On that thinking, the relocation expenses V.B. incurred ought not to count toward his support obligation. [ 26 ] On the other hand, this was clearly J.B.’s decision to move to Kelowna. Although she had very good reasons for doing so, it was ultimately she who decided to move at the end of the day. The costs in question are clearly associated to that move, and the resettling of the family.

Although V.B. supported that move, I am satisfied that those costs came about as a result of J.B.’s request. [ 27 ] In the abundant jurisprudence dealing with relocation, I am not aware of cases dealing with the relocating parent seeking contribution from the non-relocating parent to cover the cost of the relocation. Nor am I aware of a non-relocating parent paying for the relocation and then asking that this be set off against support obligation. So this is a somewhat novel situation without any precedent that has been brought to my attention.

In light of the two compelling reasons that pull in opposite directions, I have concluded that it would be fair for J.B. and V.B. to share the cost of the move equally. Specifically, these are the relocation expenses which should be shared. August 2018 Ikea Furniture: $1,450.04 Moving trailer rental: $490.00 Fuel to move J.B.: $433.27 September 2018 Hotel to move J.B.: $164.51 Fuel to move J.B.: $1,036.24 Hotel to move J.B.: $370.50 [ 28 ] The above six items total $3,944.56. Accordingly, I am deducting $1,973 from V.B.’s calculation under this heading.

Adjustment to V.B.’s Tables [ 29 ] The other aspects of V.B.’s financial tables are not disputed and I am prepared to accept them as an accurate account of the money he paid to J.B. I am also satisfied that the bills he paid directly to third parties, such as utilities, insurance, internet, etc. ought to count toward his support obligation. These are clearly expenses J.B. would have had to pay had V.B. simply forwarded her the money rather than being the holder of the account. I also do not take J.B. to be objecting to that approach.

However, as a result of the above adjustments, I am deducting $900 (for rent), $656 (for Amazon purchases), and $1,973 (for relocating expenses). These total $3,529. [ 30 ] According to V.B.’s calculation, he has paid support (in one form or another) in the amount of $127,576.77 from August 2018 to January 2021 inclusive. Deducting $3,529 from that amount, I find that the amount with which he should be credited is actually $124,047.77 . [ 31 ] Earlier in these reasons, I found that V.B.’s total support obligation would have been $113,518. To date, he has paid $124,048 (rounded).

The difference, therefore, is $10,530. In other words, he has a “credit” of $10,530. Prospective Spousal Support [ 32 ] For reasons already expressed, I am not persuaded that an award for the high figure under the SSAG is appropriate. In fact, Mr. Coyne, on behalf of V.B. urged the Court to impose the low figure. This is because V.B. has “overpaid” his obligation since the separation.

At this hearing, although V.B. could simply ask for his “credit” to be counted toward future obligations, he recognizes doing so would cause significant hardship to J.B. and the children as they would not be receiving any payment for a few months. Quite reasonably, he is not taking that position. Since there is very little discretion that can be exercised with respect to the child support amount, the only other way to account for the overpayment is to award spousal support at the low end of the range. [ 33 ] I find this position to be reasonable.

Based on the parties’ current respective incomes, the low and mid SSAG numbers for 2021

are $454 and $727 respectively. The difference of $273 per month is a reasonable way to “amortize”, so to speak, the repayment of V.B.’s credit without causing any immediate cash flow difficulty for the family. [ 34 ] I was also moved to impose the low SSAG figure for one additional reason, which is that V.B. has some ongoing travel cost to exercise his parenting time. Every three weeks, he drives from Calgary to Kelowna which costs one tank of gas each way in his truck. Fortunately, he has family in Kelowna with whom he can stay while he is here.

But he is not otherwise asking J.B. to contribute to the gas, nor is he asking for an adjustment on the child support amount. In my view, the low SSAG number could also be justified on account of this travel cost. [ 35 ] For the above reasons, I am awarding prospective spousal support at the low figure for 2021, which is $454 per month. Here, I do not mean to say that spousal support will be automatically changed to something else once V.B.’s notional “credit” is exhausted. Ultimately, the duration and quantum of spousal support will need to be revisited.

Review [ 36 ] In my view, the appropriate time for a review of spousal support is when H. is engaged in some form of a day program and when J.B. has had an opportunity to look for work. Since H. is expected to start a program in September 2022, I am going to order that either party may apply for a review after January 1, 2023. This also dovetails with J.B.’s evidence that she intends to find employment outside the home within 2 years. Accordingly, I am not setting any duration of spousal support. I leave it to the parties to re-assess the situation closer to the January 1, 2023 mark.

But until further order of the Court, spousal support is payable at $454 per month.

Section 7 Special or Extraordinary Expenses [ 37 ] J.B. asks that V.B. contribute to the s. 7 expenses of the children. Rather than sharing them in proportion to their income, as is traditionally done, she asks for a contribution of $1,000 per child per year. This, she says, represents a significantly lower proportion than what V.B. would have been required to pay. According to the 2021 DivorceMate® calculation, V.B. would be responsible for 96% and J.B. would be responsible for 4% (based on the SSAG low figure). [ 38 ] Z. and B. play hockey and take guitar lessons. Z.A. takes dance and piano lessons.

All 4 children take swimming lessons. Those costs are summarized in J.B.’s material. Other than Z.’s vision therapy (which I will address later), the total cost is estimated to be $6,297.60 annually. I also heard that the family got ski passes this year, although I do not understand J.B. to be asking for a contribution for that. [ 39 ] V.B., on the other hand, would prefer that s. 7 expenses be shared in proportion to their incomes in the traditional way. However, he is seeking input and involvement in the decision of those expenses.

Otherwise, J.B. would simply have control over what activities the children engage in and the $1,000 would simply meld with his regular child support obligations. [ 40 ] In my view, there is a presumption that the payor of s. 7 expenses be consulted and be involved in the decision making of these expenses ( see, Reggelsen v. Reggelsen, 2009 BCSC 1790 ). This is to ensure that the expenditures remain appropriate, necessary, and within the means of the combined income of both parents. It also allows the payor parent to remain involved with the children’s lives in a context that fosters a closer relationship.

All of the B. children are still very young. No doubt their interests and aptitudes will continually change as they grow. Ordering V.B. to write a cheque for $4,000 a year for extra-curricular activities, rather than being consulted as the needs arise, is likely to remove him to some degree in the children’s development. That, in my view, is not good for the children. [ 41 ] Accordingly, although V.B. will end up shouldering a higher percentage of these costs, I find his proposal to be more reasonable. The parties shall share s. 7 expenses in proportion to their income.

Specifically, I order V.B. to pay 96% and J.B. to pay 4%. I am also ordering the consent mechanism Mr. Coyne proposed in his draft order, which conditions I will specify at the end of these reasons. But to be clear, I am not, in this order, declaring that any particular activity is a proper s. 7 expense, other than what I am setting out below. Z.’s Vision Therapy [ 42 ] Both parties acknowledge that Z. has a condition whereby his left eye is not coordinating with his right eye, resulting in a vision problem. V.B. had a similar condition as a child and suspects this to be hereditary.

J.B. has consulted with a specialist and has found treatment available for Z. at the cost of $3,600. Unfortunately, this therapy is not covered under the extended medical plan that is available through V.B.’s work. [ 43 ] V.B. does not dispute that Z. has this issue, but testified that the family has already spent in excess of $10,000 trying to correct it. In addition, I sense some skepticism on the part of V.B. about the efficacy of the treatment since it is not recognized under his extended medical plan. He said that he had the problem as a child but it resolved when he got older.

Nevertheless, he is prepared to contribute 50% toward its cost. [ 44 ] In this case, I am satisfied that the vision therapy is a proper s. 7 expense. Z. clearly needs some form of treatment. The fact that it is not recognized by the extended medical plan is not an argument against allowing it as an expense. Otherwise, this

section of the Federal Child Support Guidelines would turn into somewhat of a “catch 22” if only medical expenses that are covered by a medical plan would count as a s. 7 expense. When I consider the other activities the children are involved in, vision therapy ranks higher in priority than some of the others (skiing or hockey, e.g.). Further, I see no basis to order that this expense be shared equally. I am ordering that the cost of the vision therapy be shared like the other s. 7 expenses. [ 45 ] The program has a 6-month payment plan and a 12-month payment plan.

Unfortunately, this was not communicated to V.B. when J.B. first raised the issue. Since V.B. will be paying the lion’s share of the expense, I will allow V.B. to decide which of the payment schedules would work best for him.

Summary and Orders

[ 46 ] V.B. is a resident of Alberta and his current annual income is $132,087. Commencing February 1, 2021, he shall pay monthly child support to J.B. for the Children in the amount of $2,963. Child support shall be paid on the first of the month and will continue for so long as the Child remains eligible for child support or until further order of the Court. [ 47 ] For as long as the Children are eligible to receive child support, the parties shall exchange: a. Copies of their respective income tax returns for the previous year, including all attachments, no later than June 1 of each year; and b. Copies of any Notice(

s) of Assessment or Re-Assessment provided to them by Canada Revenue Agency immediately upon receipt. [ 48 ] I find J.B. to be a resident of British Columbia and I find her annual income to be $0. [ 49 ] Until further order of the Court, V.B. shall be responsible for 96% of any special or extraordinary expenses and J.B. shall be responsible for 4%. [ 50 ] The parties shall agree in writing as to what constitutes a s. 7 special or extraordinary expense. Neither party shall incur any s. 7 expense without the prior written consent of the other party.

To the extent that a party incurs a s. 7 expense without obtaining prior written consent of the other party, the claiming party shall be responsible for that expense entirely. [ 51 ] All s. 7 expenses as agreed upon by the parties shall be reconciled on a monthly basis and conditional upon the claiming party providing proof of such expenses, including receipts. The owing party shall make payment within 14 days of such proof being provided. [ 52 ] Vision Therapy for Z. at [omitted for publication] Optometry shall be considered a s. 7 expense up to a one-time cost of $3,600 (beyond what has already been spent).

V.B. may choose the payment

schedule of this expense. [ 53 ] V.B. shall maintain extended health and medical benefits for the Children as may be offered through his employer, and V.B. shall pay the full costs of the premiums under this plan. The parties shall split any amounts not covered under V.B.’s benefits in proportion to their income. [ 54 ] Mr. Coyne, at para. 37 of his draft order, asks that any expense incurred above V.B.’s maximum allowable annual coverage be split equally. I see no basis to treat these expenses differently than the other s. 7 expenses.

With the consent mechanism in place, I leave it to the parties to discuss any expense that would fall under that category. But anything agreed to shall be shared in proportion to their incomes. [ 55 ] This Court finds V.B.’s historical spousal support obligation as follows: 2018 - $7,314 2019 - $9,252 2020 - $9,732 2021 - $811 (January only) [ 56 ] Commencing February 1, 2021, V.B. shall pay spousal support to J.B. in the amount of $454 per month. Spousal support is due on the 1st of each month and shall continue until further order of the Court.

Either party may apply for a review of spousal support, including quantum and duration, after January 1, 2023. Before such an application, the applying party must consult with a Family Justice Counsellor. [ 57 ] Mr. Coyne asks that I order any spousal support paid by V.B. to be tax-deductible in his hands, and taxable in the hands of J.B. It may well be that Mr. Coyne’s position is correct in law. But in my view, the tax treatment of these payments falls under the purview of the Income Tax Act , and is outside the scope of the Family Law Act for me to make such an order.

For that reason, that particular application is dismissed. [ 58 ] Mr. Coyne shall draft the order and J.B.’s signature approving the form of the Order is hereby dispensed with. _______________________ The Honourable A. Tam Provincial Court Judge