L.M.P. v. R.J.P. Date:, 2015 BCPC 319

[Citation: L.M.P. v. R.J.P. Date: 20151118 2015 BCPC 0319 File No: 1241462 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L. M. P. APPLICANT AND: R. J. P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Applicant: H. Zetzsche Appearing on their own behalf: R. P. Place of Hearing: Prince George , B.C.

Date of Hearing: April 17, 2015 Date of Judgment: November 18, 2015 [ 1 ] This is my decision regarding Mr. P.’s Application to review spousal support ordered under the Family Law Act . As it turns out, the relief that Mr. P. is seeking is cancellation of arrears of spousal support and to have the quantum of spousal support adjusted due to a change in circumstance. [ 2 ] R. P. and L. P. were married April 14, 1990 (although they lived together for a couple of years before that) and separated February 7, 2012.

They have two children, both of whom are now adults, although their daughter K. has returned to the care of her mother because she has been unable to support herself. [ 3 ] By Order of the Honourable Judge Callan dated May 24, 2013, Mr. P. was ordered to pay spousal support to L. P. in the amount of $1,375.00 per month commencing April 15, 2015 until April 15, 2016. He made that determination on the basis that Mrs. P.’s income earning capacity was substantially lower than Mr. P.’s; that she provided assistance to Mr.

P. in his early days which enabled him to qualify as a diesel mechanic; and that some of the delay in her return to the work force had to do with seeking employment long distance due to her new relationship. He also noted that Mr. P. had shouldered many of the family expenses after the breakup and was required to pay a greater share than Mrs. P. to the Trustee in Bankruptcy (which occurred subsequent to and apparently as a consequence of the breakup of their marriage). He also noted, however, that Mr.

P. had chosen to keep his pickup truck and his boat and continue making payments on them rather than return them to the vendor as he could have done. [ 4 ] By Notice of Motion filed March 18, 2015, Mr. P. applied for a review of the spousal support that was ordered by Judge Callan. Such applications are governed by s.168 of the Family Law Act (“ FLA ”). For ease of reference, I have reproduced that

section of the FLA as follows: Review of spousal support 168

(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for (

a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred, (

b) the type of family dispute resolution by which the review will take place, (

c) the grounds on which a review will be permitted, and (

d) the matters to be considered for the purposes of a review.

(2) On review, a court, on application, may do one or more of the following: (

a) confirm an agreement or order respecting spousal support; (

b) set aside all or part of an agreement, or terminate an order, respecting spousal support; (

c) make an order under

section 165 [orders respecting spousal support] .

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support] . [ 5 ] I note that this

section applies only to orders (or agreements) which provide for a review of the order to be made - whether after a specified time of upon the occurrence of a specified event. That is not the case here. Judge Callan’s Order made no provision for a review. [ 6 ] Accordingly, Mr. P.’s Application is governed by s. 167 of the FLA , which I reproduce as follows: Changing, suspending or terminating orders respecting spousal support 167

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that

(

a) the order is necessary to relieve economic hardship that (

i) arises from a change described in subsection (2) (a), and (ii) is related to the relationship between the spouses, and (

b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order. [ 7 ] Mr. P. has presented evidence that his circumstances have substantially changed since the Order of Judge Callan was made. In particular, his health and employment circumstances have changed. At the time of the hearing before Judge Callan, Mr. P. had been working at [omitted for publication] for some time and anticipated that he may be promoted to a management position at [omitted for publication].

His income at the time of the hearing was found to be approximately $63,000 annually and his obligation to pay spousal support was based upon that income. However, his 2013 income was actually $70,105. Despite that change in his circumstances, Mr. P. is not seeking to increase his spousal support obligations to Mrs. P. for 2013. [ 8 ] In December 2013, after the hearing before Judge Callan, Mr. P. was in fact promoted to management at [omitted for publication]. However, Mr. P. developed anxiety and arthritis problems in 2014, such that he was unable to continue working at [omitted for publication].

He said that he was obliged to quit his work there rather than take sick leave. In 2014 he earned only $11,585 from [omitted for publication]. However, he obtained other work at [omitted for publication] and he earned $48,368 from [omitted for publication] in 2014, for a total income of $59,953. This income, I find, is only slightly lower than the $63,000 income upon which Judge Callan’s Order was based. This change in circumstance would not justify any change to Judge Callan’s Order. [ 9 ] In his Financial Statement filed January 14, 2015, Mr. P. anticipated that his income for 2015 would be $49,000.

However, in February 2015 Mr. P. was laid off from [omitted for publication] and was on Employment Insurance for a period of time. He has since obtained work at [omitted for publication], earning $21.54/hr full time. Since then he anticipates that his income for 2015 will be $41,581. Thus the change in circumstance relied on by Mr. P. to support his Application to reduce spousal support must be only on his anticipated drop in income for 2015 of approximately $20,000. [ 10 ] Mr.

P. says that his ability to work at [omitted for publication] is not affected by his arthritic condition and he does not anticipate further diminution in his ability to earn an income. He says that although he earned some overtime at the beginning of his work for [omitted for publication], he will not earn overtime regularly. While I accept that his income in 2015 has been reduced somewhat because he was unemployed for a period of time, I am not satisfied that his income for 2016 will be as low as $41,000.

Even if he has no wage increases, by my calculation ($21.54x 8.5 hr/day x 5d/week x 52 weeks/year = $47,603.40) his full time employment there should produce an income of approximately $47,000. [ 11 ] Mrs. P.’s income, conversely, has improved, such that she now earns approximately $35,000 from her employment income. On the other hand, the effect of the breakup of the marriage and the related bankruptcy has had longer lasting effects on her than on Mr. P. Because of his higher income earing ability, Mr.

P. was able to maintain his credit rating by continuing to make payments on certain assets he retained, such as his truck and boat. Mrs. P. entirely lost her credit rating as a result of the bankruptcy, which has had adverse effects on her ability to purchase a home with her new partner. Mrs. P. is also of the view that she might not have been dragged into the bankruptcy had Mr.

P. not induced her to co-sign the loan on his truck only four days before she discovered his affair with the woman who is now his partner. [ 12 ] Judge Callan said that an overriding factor in considering spousal support in this case was the assistance Mrs. P. provided to Mr. P. in his early days in obtaining his qualifications to be a mechanic. The spousal support Order was made, therefore, at least in part to be compensatory in recognition of the benefit conferred upon Mr. P. that increased his income earing ability in the long term, while reducing Mrs.

P.’s income earning ability. [ 13 ] When Judge Callan made his decision, he also considered the prospects of the parties. He took into account that Mrs. P. was intelligent and self-motivated and anticipated that she had income earning potential. His decision to make spousal support time limited was obviously in the expectation that after three years Mrs. P.’s income earning ability would have improved sufficiently that she would be self- sufficient and no longer disadvantaged by the relationship. Despite the fact that Mr. P.’s income has been reduced, and hers increased, to this day he still earns more than Mrs.

P. [ 14 ] Clearly it was the intention of Judge Callan to compensate the loss of opportunity suffered by Mrs. P. (and the advancement enjoyed by Mr. P.) during this lengthy marriage by ordering the time limited spousal support Order he made on the higher side of the range based upon the income of the parties as it existed at the time. [ 15 ] On the other hand, it does appear that Mr.

P.’s income earning ability has been adversely affected by an arthritic condition that appears to permanently impair his ability to earn a living as a mechanic or in any occupation that requires physical strength in the hands. [ 16 ] I am satisfied that Mr. P. has established a change in circumstance which justifies a change in the spousal support ordered by Judge Callan.

Had the parties’ incomes been then what they are now, I expect that would have made a difference in the Order made at the time. [ 17 ] I have considered the Spousal Support Advisory Guidelines and the range provided on the incomes of $35,000 and $47,000 respectively. Based upon those incomes, the Spousal Support Advisory Guideline range is between $ 375 and $ 462 per month (with a midpoint of $ 438 per month). However, I also take into account the compensatory aspect of the Order made and the fact that the effect of the bankruptcy on the ability to be self-sufficient has been harder on Mrs. P. than on Mr. P.

In my view those considerations warrant a spousal support amount slightly above the high end of the range. The spousal support will be reduced to $500 per month commencing May 15, 2015. Cancellation of arrears:

[ 18 ] Mr. P. also seeks to cancel a portion of the arrears of $4,331.29 that accumulated up to December 17, 2014. Mr. P. wishes to cancel $2,750.00 of the arrears that accumulated because Judge Callan’s Order was retroactive to April 15, 2013 (from May 24, 2013). He did not appeal the Order of Judge Callan and the adverse change in his circumstances had not occurred at that time nor did it occur for approximately another year. Thus, this Application is really in the nature of an appeal, which cannot be done in this forum.

In other words, I cannot change the Order of another Provincial Court Judge just because the applicant disagrees with the judge who made it. Any such application must be made to a higher court. [ 19 ] Even if I consider Mr. P.’s Application to cancel arrears on the merits, that is, on whether he has met the burden required by law for such an application, Mr. P. has failed to meet the test in either of the applicable sections of the FLA . Under s. 167, Mr.

P. would have to satisfy me that for the period in question he suffered a change in circumstance, that evidence of a substantial nature that was not available at the time of the hearing has come to light, or that the other party failed to make financial disclosure. Given that in 2013 Mr. P.’s earnings increased by $10,000 over the earnings upon which the spousal support order was based, Mr.

P. has not established a change in circumstance justifying a cancellation of the arrears of spousal support, since the only change in circumstance relevant to that time period was an increase, not a decrease, in income. [ 20 ] Under s. 174 of the FLA Mr. P. would have to establish that it would be grossly unfair for the court NOT to cancel the arrears, on the basis that the failure to pay was due to a long standing or permanent impairment in his ability to pay. Given that the arrears accumulated during a period of higher income earning ability, and that Mr. P. continues to be able to earn an income, Mr.

P. has not met that test either. Mr. P.’s Application to cancel $2,750 of the arrears is therefore dismissed. ____________________ S. K. Keyes Provincial Court Judge Province of British Columbia