L.H. aka L.K. v. K.E. Date:, 2014 BCPC 295

Citation: L.H. aka L.K. v. K.E. Date: 20140430 2014 BCPC 0295 File No: 13119 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.H. aka, L. K. APPLICANT AND: K.E. RESPONDENT ORDER OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Applicant: V. Panchmatia Counsel for the Respondent: K. Russ Place of Hearing: Abbotsford , B.C.

Dates of Hearing: May 27, and September 17, 2013, January 14, 2014 Date of Order: April 30, 2014 [ 1 ] THE COURT : This is an application by stepparents for child and spousal support. There are several issues to be answered. Generally stated, they include these. What was the duration of the parties' common-law union? Given the provisions of s. 161 of the Family Law Act , is the stepmother entitled to support? Is there entitlement to child support by the respective stepparents?

If so, what might its quantum be, bearing in mind the legal obligation of others to pay and other considerations as set out in the Family Law Act , s. 147(5) and the Federal Child Support Guidelines s. 5? [ 2 ] The stepmother, L.K., is 49 years old, born (redacted) 1963. By a previous union she has three children, M.R., K.R. and A.R. She divorced from their biological father, G.R, on April 3rd, 2000. In 2005 she remarried to C.H. They separated in March 2006, and by February 2007 an order of child maintenance was made. A divorce order was granted on March the 11th, 2010.

A.R. is the subject of the child support application. She is currently 18 years old, born (redacted)1996. This child was diagnosed with chronic kidney disease in August 2006. Her condition is such that she will eventually require a transplant. [ 3 ] K.E., the stepfather, is 48 years old, born (redacted)1965. By an order dated April 20th, 2010, he has sole custody of his two children, R.E. and A.Q., respectively born 1998 and 1996. Both of these children are part of the cross-application by K.E. for their support.

Character of marriage-like relationship : [ 4 ] When the parties commenced living together in November 2006, K.E.'s two children, R.E. and A.E., then aged eight and ten, along with L.K.'s three children, A.R. K.R .and M.R., respectively aged ten, 14 and 16, were in the household. Due to conflict between A.E. and L.K., A.Q. returned to her mother's care in September 2007. She later returned to her father's care after separation from L.K. in March 2012. In 2008, M.R. left the family home. Examining the family's lifestyle, it included trips to K.E.'s family cabin at Sheridan Lake and to the U.S.

Christmas and holidays were joint functions. On occasion, K.E. would accompany A.R. to the hospital for the care of her kidney disease. L.K. took the children to school, the dentist for braces and parent-teacher meetings. She was, in between her part- time work, the stay-at-home mom to these children. [ 5 ] K.E.'s income was considerably higher than L.K's. Their economic lives were completely merged. They filed some joint tax returns as a common-law couple to take advantage of tax savings. From 2006 to 2012, they had joint banking accounts. All household expenses were paid from this account.

Tax-free savings accounts were set up where each party was named as the other's beneficiary. They had a joint line of credit. [ 6 ] K.E.'s evidence is guarded about the depth of their inter-relationship. He asserts there was an agreement that each parent care for their respective children. It is noted his relationship with A.E. was strained. There is some evidence to say that she identified him as a father figure. Nonetheless, it is fair to characterize their interaction as more negative than positive.

Furthermore, he disagrees with L.K.'s evidence that he did not want her to work full-time and instead stay at home to care for all of the children. [ 7 ] As I consider the overall weight of the evidence, it is clear the parties had comingled their financial matters. While the parties' interaction with some of their respective children was not without some friction, it was nonetheless a union that demonstrates they relied upon one another for mutual support, both economically and emotionally, as they dealt with the daily routines of their lives. I cannot conclude there was an agreement for L.K. to remain at home.

The evidence establishes that by their interaction, both parties had mutually adopted a lifestyle of co-dependency that allowed for part-time employment to prevail for a time. Duration of marriage-like relationship : [ 8 ] L.K. started dating K.E. in September 2006. By November, they were living together. There was a three-month separation commencing June 2009, after which they resumed their relationship. Their final separation was March 2012. The issue to be resolved is the duration of the marriage-like relationship.

Counsel for the father says their separation in 2009 reset the calculation of time in which they lived together and, thus, this was a 30-month relationship. [ 9 ] From L.K.'s perspective, their separation was brief and should not be viewed as a factor that disrupts the overall time of their relationship of five years. An examination of the evidence in this time period establishes during June and July, in spite of their separation, they still interacted with one another and had sexual relations. K.E. paid for the rent during these two months.

Of other evidence, it is noted he had disputed he helped with the rent in January 2010; however, cross-examination of a cheque for rent of that month establishes otherwise. [ 10 ] L.K. identified the month of August as the time when their relationship was over. It was then their sexual relationship ended. Each person had other sexual partners. However, by September, the evidence confirms they were once again romantically involved with one another.

While they did not continuously live together until February 2010, which is the date when the new lease was signed by the parties, it is quite evident that their lives were intimately bound to one another. By October 2009 until February 2010, K.E. split his residence between that of L.K.'s or his parents' and another location.

The evidence establishes he was, for the most part, living with her by October. [ 11 ] As further evidence of the parties' intentions towards re-establishment of their relationship, L.K. had filed an application in Family Court for various relief, including spousal and child maintenance on June 25th, 2009, which application was withdrawn by October 22nd, 2009. [ 12 ] Section 3(1)(

b) of the Family Law Act defines a spouse as follows:

Has lived with one another in a marriage-like relationship and has done so for a continuous period of at least two years. Subsection (3) adds this: A relationship between spouses begins on the earlier of the following: (

a) the date on which they began to live together in a marriage-like relationship; (

b) the date of their marriage. [13] The decision of Pierce v. Pierce (BC SC), [1997] 29 BCLR (3d) 111, gives guidance on this question. Thefacts included a ten-year marriage, the last year of which there were two periods of separation. After divorce, the husband had arelationship with another woman. When that ended, the husband commenced cohabitation with his former spouse but they did not re-marry. The claim was for the entire 24-year relationship of which 20 months were spent apart from one another.

At paragraph 60, thesewords are noted: On reconciliation following the divorce I find that each of the parties returned to the relationship virtually everything with which he orshe had left. During the common-law period of the relationship, I find that each of the parties contributed everything he or she had -money, time, labour and emotional commitment - to the other and their children. To the extent that each benefitted the other, eachsuffered a corresponding deprivation. I also find there was no juristic reason for the benefit, the enrichment, which each received.

I findthat all of the assets each of the parties had at separation, except their respective pension and superannuation entitlements, were assets ofthe family enterprise to which each of the parties, in his or her own unique and valuable way within the family unit, contributed equallyin money or monies worth. It is evident a broad

interpretation was given to the parties' duration of their marriage-like relationship not simply when they stoppedresiding together. The analogy is similar to the question at hand. [14] As I considered the evidence, I found the parties had lived together in a marriage-like relationship for about five years. Whilethere was the separation, it was short-lived. L.K.'s expressions of termination of their relationship was contrary to the parties' conduct, asthey re-established their joint lives in relatively short order, bearing in mind the overall duration and nature of their relationship.

Loss of employment opportunity: [15] L.K. is a certified resident care aide worker. In November 2006 when the parties started their common-law relationship, shewas working full-time for a private client until he passed away in June 2007. Her next employment in the same field was casual work at(redacted) in September 2007. By November 2011, this evolved into full-time employment.

L.K. asserts that due to her staying at hometo care for the household and the children, she missed the opportunity to become a licensed practical nurse and, thus, she claims, she isentitled to a lump sum payment to finance her missed educational opportunity. [16] She relies on s. 161(

a) of the Family Law Act and takes the position that an economic disadvantage had occurred in thesecircumstances entitling her to relief. She describes that K.E. knew of her goals when they first started dating. Her objectives involved aprogram that was available without fees from employment through the Hospital Employees Union. In pursuit of that goal, she had tofulfil certain prerequisites which included 500 hours of work as a resident care aide worker plus completion of Biology 12. It is notedshe had to take the biology course three times before passing.

In explanation of the multiple failures, she identifies working part-time,caring for the children and household demands as the reasons for delay in its completion. The prerequisites were completed in 2010. [17] Meanwhile, due to a change in her union, the licensed practical nurse program, LPN, was eliminated. For these reasons, plusL.K.'s position that she remained at home at the behest of K.E. she asserts gives foundation to her position.

K.E. denies he neitherimpeded her educational opportunities nor insisted that she stay at home to care for the family. [18] From cross-examination of L.K., she acknowledged that, since separation, she has not pursued private funding for the LPNprogram. As I consider this evidence, and as previously discussed about the character of their marriage-like relationship, I find it was amutual decision for her to remain at home and work part-time.

An opportunity for career advancement was lost but it cannot be said itcame about as a result of some demands by K.E. to curtail her educational objectives for the sake of home and child care. [19] There is also a live question whether it can be said upon these particular facts that an economic disadvantage had occurred inany event. Her career opportunity was contingent upon her successful completion of the LPN course. That is a point which isuncertain.

It is noteworthy that she encountered struggles completing the Biology 12 prerequisite, albeit I am also mindful she hadundertaken the obligation of household and childcare duties in addition to preparing for her studies. Nonetheless, to simply say it was amissed opportunity without balancing the question of whether she would be successful in its completion makes the missed opportunity aspeculative conclusion which does not, in these circumstances, equate to an economic disadvantage. Furthermore, the missedopportunity came about as a result of a change in union benefits.

This is completely out of the control of either party. Requiring K.E. tocompensate her for such a course of study is not supported by the facts. This is not a situation where an economic disadvantage asenvisioned by the legislation had occurred. Income: [20] From her part-time employment, she earned between 20 to $25,000 per year. She has been working full-time since November2011. In 2011, her income was $38,218.21. For 2012, her notice of assessment states her income was $44,319. For 2013, her incomeappears to be $44,788.98.

For K.E., his income as a longshoreman is as follows: 2006 to 2007, $78,000; 2008 to 2009, $98,000; 2011,

$131,870; 2012, $139,979; 2013, $81,030. In describing his work history, he notes 2011 was a good year. He was working seven days per week on eight-hour shifts, including graveyards. He goes on to state that that year was unusual given the availability of work but since that time things have changed. [ 21 ] It is observed he was quite evasive about what he earned for 2012. He claimed he did not know or remember how much he earned. He also stated he did not know whether 2012 was a better year than 2013. He commented it could have been more.

In review of his January 14th, 2014 financial statement, it records income of $81,030. As the evidence evolved in this trial, he in fact made more in 2012 than he had in 2011. In explaining why his income had dropped by about $50,000 for 2013, he says that work was much more difficult to find. Furthermore, he wanted to spend more time at home caring for his two children. As I assess this evidence, I find it very difficult to imagine he would not know how much he earned in 2012.

Furthermore, upon examining his explanation for the dramatic income difference for 2013 being his desire to spend more time caring for his children fails to explain why he did not have the same objective in 2012, another banner year for income. [ 22 ] I note throughout his evidence he attempts to paint the most negative picture he could of their relationship. Overall, I find he is an evasive, self-serving and unreliable witness. As I consider his income for 2013, I conclude he had deliberately adopted a path of underemployment in order to reduce his exposure to maintenance obligations.

For the purposes of determining maintenance, his income shall be the average of what he earned from 2011 to 2013. This yields $117,626.33. Support obligations of biological parents versus stepparents : [ 23 ] The issue to be determined is what the appropriate amount of support might be having regard to any other parent's legal duty to support the children. L.K. was married to G.R. on (redacted) 1989. There were three children of this union: M.R., K.R. and A.R. They separated in 1999 and divorced on April 3rd, 2000. This latter order included supervised visits.

No order for maintenance against him has ever been sought. She was on Assistance from 1998 until 2001. In that time period, she described the Director of Maintenance refusing to pursue G. R. for an order of maintenance due to his violence and an outstanding restraining order. After she came off Assistance, she decided not to pursue him for maintenance due to his violence. The record was filed as an exhibit. It is very extensive and included unlawful confinement, assault causing bodily harm, various weapons offences, contempt of court and sexual assault.

She described his abusive and assaultive conduct towards herself and the multiple injuries she received. She had been sexually assaulted by him and his friends. As a result, she suffered from PTSD and has had counselling services for many years from the violence she endured. G.R. has spent many years in jail. He rarely sees his children. The last time his daughter, M.R. saw him was ten years ago. A.R. has not seen him since she was two. L.K. has essentially lost touch with him. As far as she knew, he was last living out of his vehicle. [ 24 ] She started living with C.H. in February 2004 and married him in 2005.

They separated in March 2006. January 9th, 2007, she obtained an order for sole custody of the three children. On February 6th, 2007, a default order of child maintenance of $1,089 per month was made based on imputed income of $55,000. They divorced on March the 11th, 2010. She enrolled in the FMEP but nothing has been paid. His whereabouts are unknown. As of May 23rd, 2013, there are arrears of $78,231. [ 25 ] I find with regard to G.R. that the decision not to pursue maintenance claims against him is reasonable.

It appears he is unable to pay and, as a violent man who has caused harm to L.K. physically and emotionally, there is a reasonable foundation to believe that he might again do so, given the violent nature of his record. Furthermore, he has had very little contact with her or the children for many years. [ 26 ] As for C.H., the efforts she has made towards his obligation to pay has been sufficiently met through her enrolment in the Family Maintenance Enforcement Program.

While she could have utilized her own efforts, it is reasonable to state that the enforcement program is a very efficient and effective tool in pursuing those who have maintenance obligations. [ 27 ] For K.E., a maintenance order against the mother, K.Q., was made on February 2nd, 2012, based on imputed income of $14,393 for the child, R.E. which yielded the sum of $125 per month. As for A.E., maintenance for her was adjourned to a hearing date which was never set. He notes he has not enrolled in the FME Program as the mother is on welfare.

Furthermore, he explains they have not had any discussions as to payment and adds she does not have any funds in any event. I find his efforts towards ensuring maintenance obligations are met are marginal. He should at least have enrolled in the FME Program. It is acknowledged, given her welfare status, that the prospects of enforcement of maintenance obligations are difficult. Nonetheless, better efforts could have been made in pursuit of her obligation and support of both children. Discussion and conclusions : [ 28 ]

Section 161 of the Family Law Act states this: 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 the 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. [ 29 ] I have already determined no economic disadvantage had occurred from the missed opportunity to take a licensed practical

nurse program. Furthermore, L.K. has been working full-time since 2011 in the same type of employment she had prior to their union and now earns more than she had in the past. There is no evidence to say she is not economically self-sufficient. Nonetheless, the legislation requires other factors to be balance and, in that regard, I note s. 161(

a) and (c). From the evidence, I find that after separation, L.K. did not cohabit with another person. As a result of a change from a joint to a single-income family, an economic disadvantage had occurred. Furthermore, relief is required as an economic hardship has arisen which relates to the change of her income situation following separation. I conclude by finding she is entitled to spousal support. [ 30 ] For child maintenance, with regard to A.Q., pursuant to s. 147(4) (

a) of the Family Law Act , the evidence establishes that L.K. had not contributed to the support of that child for the statutory requirement of at least one year. The claim of support for that child is dismissed. [ 31 ] As for the other children, A.R. and R.E., the obligation for child support is guided by these statutory provisions.

Section 5 of the Federal Child Support Guidelines states: Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is in respect of that spouse such amount as the court considers appropriate having regard to these Guidelines and any other parent's legal duty to support the child. Section 147(5) of the Family Law Act provides this: If a stepparent has a duty to provide support for a child under s. 4, the stepparent's duty: (

a) is secondary to that of the child's parents and guardians; and, (

b) extends only as appropriate on consideration of: (

i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse; and, (ii) the length of time during which the child lived with the stepparent. [ 32 ] In consideration of s. 147(5) (a), with regard to the respective parties' pursuit of others who are legally bound to provide support to the children, I reiterate my earlier conclusions.

I further observe that other court-ordered obligations of C.H. and K.Q. creates the potential of the piling on of Guideline amounts and the subsequent prospect of an economic windfall in assessing the respective parties' obligation to pay. It is a factor that is kept in mind when considering quantum given the secondary obligations of stepparents to pay. Section 147(5) (

b) identifies two factors in the determination of quantum. First, an examination of the standard of living while parties were together, and, second, the duration of the relationship. Depending on the conclusions reached, these legislative words must be kept in mind in assessing quantum: The stepparent's duty to support extends only as appropriate.

The extent of what is appropriate will flow from the circumstances. [ 33 ] Considering the standard of living experienced by the children during the parties' relationship compared to their current situation, there has been a significant change due to the loss of dual incomes. As for the duration of this relationship, this was a relatively short union. While the parties were together, it is noteworthy the parental bonding between A.R. and K.E. was rather guarded. Since separation, there have been a variety of explanations of an absence of interaction between these children and their respective stepparents.

The fact of the matter is that the parties have moved in new directions in their lives. [ 34 ] From DivorceMate, counsel have provided me with a variety of calculations of possible maintenance orders. Given the various findings of facts which I have made, I have recalculated the range. In that regard, I have filed those DivorceMate calculations. In the circumstances, as discussed, it is appropriate that the low end of the formula is determinative of the issue with some variation of its duration. The "with a child" calculation was used.

Two children are part of the formula: one currently aged 14 years old and the other 18, plus a five-year period of cohabitation. K.E.'s average income over the past three years yields $117,626. For L.K., her income for calculation purposes was $44,788. [ 35 ] The order for spousal maintenance is set at $933 per month. For child maintenance, it is $657 per month. The maintenance to be paid is limited to two years and shall be retroactive to April 1st, 2012 and payable on the first day of each and every month thereafter.

The commencement date reflects the date shortly after the filing of the application on March 23rd, 2012. [ 36 ] MR. RUSS: Your Honour, can I ask one clarification -- or a couple of clarification questions? The 657 for child support, I take it, it's based on the setoff model for one child in each household. [ 37 ] THE COURT: That's correct. [ 38 ] MR. RUSS: Given the fact that R.E. is 14 and A.R. is 18, I take it the term should read that child support payable by Mr.

K.E. is until the child, A.R., is defined as a child under the Family Law Act because this is a Family Law Act , correct, which is 19? [ 39 ] THE COURT: It is.

[ 40 ] MR. RUSS: And then when she turns 19, arguably, then at which point the amount of -- bear with me for one moment, Your Honour -- so based on Your Honour's calculations of $44,788 for Ms. L.K., the child support payable would be 409 for a single child so it would be for -- that's what I get. So what I'm driving at is that -- I've forgotten when A.R.'s birthday is, sorry, January -- [ 41 ] THE COURT: So let me just -- maybe I can help you in that regard. [ 42 ] MR.

RUSS: Yeah. [ 43 ] THE COURT: Because my intention was that this is a two-year order for both spousal and child maintenance and that relates to both of these children. [ 44 ] MR. RUSS: That's -- okay. [ 45 ] THE COURT: That is the clarification point, so it is two years. [ 46 ] MR. RUSS: So 24 months. [ 47 ] THE COURT: Right. [ 48 ] MR. RUSS: Now, on the commencement date of April 1st, 2012, is this court creating instant arrears? [ 49 ] THE COURT: Yes, it has that effect. [ 50 ] MR. RUSS: So can there be some time given to Mr.

K.E. to organize his affairs so he can make arrangements to get those arrears dealt with because I think -- [ 51 ] THE COURT: Well, I deliberately left that question open so that you can discuss that with counsel. [SUBMISSIONS] THE COURT: Okay, thank you. With respect to that aspect of it, I decline to allow for any relief. I note while it creates instant arrears, I have made some determinations of fact where he was underemployed and other aspects of his employment history which, quite frankly, creates the hardship he delivered upon himself today. There is as well the Family Maintenance Enforcement Program.

And as he winds his way through that process, they will make determinations of what his orderly repayment of that debt might be given his employment situation. The Honourable Judge B.G. HOY