C.R. v. A.M. Date:, 2015 BCPC 434

Citation: C.R. v. A.M. Date: 20151109 2015 BCPC 0434 File No: 14-45703 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: C.R. APPLICANT AND: A.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.L. BAYLIFF Counsel for the Applicant: J. Nelson Counsel for the Respondent: J. Reed Place of Hearing: Prince George , B.C.

Date of Hearing: Oct 9, 2015 and Oct 28, 2015 Date of Judgment: November 9, 2015 [ 1 ] C.R. and A.M. are the parents of H.R.M.R., born [omitted for publishing]. H.R.M.R. is now 1 ½ years of age. [ 2 ] This is my ruling at the conclusion of a 1½ day hearing on child support that started October 9 th and continued on October 28 th . The relevant documents are A.M.’s Notice of Motion filed May 29 th , 2015 (#19) and C.R.’s Affidavit filed in response (#20). [ 3 ] The Order I intend to make in this matter is attached as Appendix A. [ 4 ] The issue at this hearing has been what income to assign to C.R.

Income, of course, determines the level of child support that is payable. In 2014 C.R. had a total income in the range of $131,800.00. This was the figure he properly reported in his Financial Statement filed May 29 th , 2015. This was the figure used by the Honourable Judge J.D. Cowling when he made an interim Order concerning child support on June 11 th of this year. [ 5 ] However, C.R. argues that his actual income for 2015 is turning out to be a good deal less than what it was in 2014 - about $36,000 less - he projects an income for 2015 of about $95,000.00. He attributes this to two things: (

a) a nationwide downturn in the oil and gas sector; and (

b) his choice to take jobs that allow him to stay closer to home so that he can play a more active role in parenting his daughter. He currently has parenting time with H.R.M.R. for 3 or 4 hours each Saturday and Sunday. [ 6 ] I have decided to largely accept C.R.’s position. It is the payor parent’s income in the current year that should be used to determine child support. See Fuzi v. Fuzi , BCSC, September 20 th , 1999 at para. 12.

If the income in the current year is similar to that in previous years then the payor’s total income as set out at line 150 of the preceding year’s income tax return will form a good basis for a child support order. But, where the evidence establishes a significant difference in income in the current year then calculation of child support should be based on the projected income of the payor parent in the current year. [ 7 ] I find that the projected income of C.R. for 2015 is approximately $95,000. This is based on his year-to-date income as shown on his paystubs from September, 2015.

See Exhibit 2. [ 8 ] A.M., through counsel, agrees that this is what the paystubs show. But, she challenges the $95,000 number as being the product of intentional underemployment. She bases her argument on the following points: 1. Collusion with Family to Reduce Income: [ 9 ] C.R. is employed by [omitted for publishing], a company that is owned and operated by his father and mother. A.M. argues that C.R. and his family have colluded to ensure that he has a reduced income so that he will be able to justify paying a lower amount of child support. It is argued that this collusion takes several forms.

Either the family company does not offer him work that he would otherwise have been offered, or, the company allows him to get away with turning down jobs that would result in him earning a higher income, of the levels we see in his T4’s from 2012 and 2014.

See Exhibit 1. [ 10 ] In further support of her position, counsel for A.M. points out that it is suspicious that the $900/month in child support C.R. had volunteered to pay happens to coincide with the table amount of support ($878/month) applicable at the reduced income of $95,000 which he now claims to have. [ 11 ] I agree that where there is a family relationship between employer and employee the possibility certainly exists for collusion of the sort described. However, I cannot find any actual evidence of collusion between C.R. and his family for the purpose of reducing his income.

I found both the father, R.R., and the son, C.R., to be credible witnesses. I accept their evidence that there has been a down turn in the oil and gas economy and that this has resulted in an overall reduction in the amount of work available to an industrial services company such as [omitted for publishing]. [ 12 ] The other reason offered for the drop in C.R.’s income in 2015 is that he is now choosing jobs that will allow him to be back in Prince George each weekend so that he can exercise his parenting time on Saturdays and Sundays with H.R.M.R. Mr. R.

Sr. testified that his employees tend to earn more when they take “out of town” jobs. I gather this is mainly because of the overtime pay. [ 13 ] Mr. R. Sr. admits to accommodating his son’s choice to work closer to home so that he can see H.R.M.R. on weekends. It is clear that he does not force his son to take out of town jobs on pain of being fired. However, I cannot find that this is done for the purpose of helping his son to reduce his income so he can get away with paying less child support. I accept Mr. R.

Sr.’s evidence that, in accommodating his son’s wishes to take jobs that allow him to be home weekends, he is not treating him any differently than he treats other men in his employ who seek to work closer to home because they are the fathers of young children. 2. Intentional Under-employment [ 14 ] It is argued that by choosing jobs that will allow him to be back in Prince George each weekend so that he can exercise his parenting time with H.R.M.R., C.R. is intentionally under-employed and the court should impute additional income to him pursuant to s. 19 of the Guidelines.

[15] It is H.R.M.R.’s right to have the best standard of living her parents are capable of providing to her. However, this generalrequirement must be tempered by reasonableness. A payor parent is not required to work every hour of overtime that is available. See F.et al v. G. et al, 2013 BCPC 56 , 2013 BCPC 0056 at para. 12. [16] In my view it is reasonable to consider, among other things, the effect of the parenting arrangements on the payor’s ability toearn income. In C.R.’s case his parenting time with his infant daughter is for 3 or 4 hours each Saturday and Sunday.

It is reasonable forhim to arrange his work such that he is back in Prince George each weekend to take advantage of this parenting time. As H.R.M.R.grows older it may be reasonable for A.M. and C.R. to come up with a different

schedule that would better accommodate him takinghigher paying, out of town work. For example, if a job required him to be 40 days “out” with 10 days “in”, the parenting arrangementsmight be 40 days with A.M. and 10 days with C.R. [17] In

summary on this point, I agree with counsel for A.M. that the reduction in C.R.’s income in 2015 is, to some extent, theproduct of intentional under-employment in that he is choosing work that allows him to be home weekends. However, I am not preparedto impute additional income to him because the evidence establishes that his reason is so that he can exercise his parenting time. Aswell, I am satisfied that even at the lower income of $95,000 ($878/mo support), C.R. is still making a very reasonable effort to provide agood standard of living for his daughter. 3.

Actual Income or Averaged Over 4 Years? [18] C.R.’s income has fluctuated over the past 4 years as follows: Year Total Income Document2012 $ 127,000.00[i] 2012 N/A* & Exh 2 PayrollSummary2013 $ 91,300.00[ii] 2013 N/A & “2014 $ 124,800.00[iii] 2014 N/A & “2015 $ 95,000.00 Projected, from YTD total of$77,194.63 as of Sept. 26/15 onExh. 2.Total $ 438,100.00/4 yrs = $ 109,525.00 average * N/A = Canada Revenue Agency Notice of Assessment [19] A.M. argues that if the court declines to impute to C.R. an income for 2015 similar to his income in 2014, then his incomeshould be averaged over the past 4 years - 2012 to 2015.

This would produce a figure of $109,525.00. [20] C.R. argues that averaging is not appropriate because the drop in his income in 2015 is due to a material change incircumstances and is not simply part of a routine pattern of fluctuation. [21] On the evidence before me I have decided in favour of C.R. on this issue.

The downturn in the oil and gas economy, and theparenting arrangements such that C.R. needs to be back in Prince George on weekends if he is to see his daughter, are real changes thathave occurred this year and which seem likely to continue to effect C.R.’s capacity to earn income for some time to come. 4. No Real Intention to Exercise Parenting Time [22] Although it was not precisely articulated before me either in evidence or submissions, it may be that A.M. believes C.R. has noreal intention to exercise parenting time with H.R.M.R.

She may feel that he is using the parenting arrangements as an excuse for turningdown out of town work so that his income is lower and he can get away with paying less child support. [23] It is clear that C.R. went through a 4 month period earlier this year, from the time of the couple’s second separation in Apriluntil the Family Case Conference in August, when he chose not to exercise parenting time with his daughter. He and A.M. even tried tobargain away H.R.M.R.’s rights (

a) to have a relationship with her father, and (

b) to receive the financial support of her father. Theirdiscussion was along the lines of: “C.R. will give up all contact with H.R.M.R. if A.M. gives up any claim to child support.” [24] I hope that both parents now realize that this plan was not only a dereliction of their duties under the law but was alsocompletely contrary to the best interests of H.R.M.R. [25] C.R. explains his actions by saying that he felt embittered by the circumstances of the second separation from A.M. and madethe choice to withdraw from her and from H.R.M.R. for a period of time.

He says he underwent a change of heart around the time of theFamily Case Conference in August and realized it was important to have a relationship with his daughter. [26] At this point there is no evidence to suggest C.R. is anything other than sincere in his stated intention to exercise parenting timewith H.R.M.R. I have therefore taken the parenting arrangements into account in determining C.R.’s ability to earn an income. Timewill tell whether my assessment of C.R.’s sincerity is accurate.

5. Retro-active Reduction in Child Support [ 27 ] This final issue was raised by counsel for C.R. [ 28 ] In accordance with the interim Order made June 11 th , 2015, C.R. has been paying $1,182.00 per month in child support for June through October, and, I assume, he has now also paid this sum for the month of November, 2015 - a total of 6 months. $1,182.00 is the table amount for one child at C.R.’s 2014 total income of $131,800. Since I have now concluded that C.R.’s income for this year, 2015, is actually the lower sum of $95,000, the table amount would be $878 per month.

The result is that C.R. has “over paid” by $304.00 per month over 6 months for a total over-payment of $1,824.00. Counsel for C.R. argues that I should “credit” this sum back to C.R. by reducing the ongoing monthly figure of $878 until he recoups the amount of the over-payment. [ 29 ] If the income I have projected for 2015 ($95,000) is subsequently confirmed by T4 and income tax information, it would appear that C.R. will have “over paid” child support in 2015 in the amount of $1,824.00.

However, I decline to make any order that would have the effect of crediting this sum back to him. [ 30 ] In reaching this conclusion I bear in mind that C.R. “under paid” during the couple’s first separation back in 2014 by paying $800/month over 4 months rather than the amount appropriate to his income which would have been $1,125/month. As well, I bear in mind that the income I have projected for 2015 of $95,000 is simply that - a projected income.

It may turn out that C.R.’s total income for 2015 is higher than $95,000. [ 31 ] I have considered the fact that C.R. continued to pay child support of $900/month during the couple’s reconciliation between January and April of this year and thus, may have “over paid” during that period.

However, there was insufficient evidence about the couple’s financial dealings with each other during the reconciliation for me to conclude that C.R. clearly “over paid” during that 4 month period. [ 32 ] Therefore, as it concerns the apparent over-payment of $1,800 since June, I am reluctant to deduct anything off the on-going child support which will now be reduced to $878 per month, down $300 from what A.M. has been used to receiving under the interim Order. A.M. is a full-time nursing student at a local college. She is living with her parents to save costs. She needs every penny she can get.

As well, she is about to give birth to the couple’s second child (conceived during their brief reconciliation earlier this year). The baby is due in late November. Conclusion [ 33 ] The evidence establishes that C.R.’s income for the current year, 2015, will be in the range of $95,000 rather than in the range of $130,000 as it was in 2014. The evidence establishes that the reasons for this decline in income are real and not the product of collusion with his parents, who are also his employers, nor the product of a routine pattern of fluctuation in income.

While C.R. is intentionally under-employed in the sense that he has chosen work that will allow him to be home on weekends when he has parenting time with the couple’s daughter, the court will not impute income to him since both his stated intention to exercise parenting time, and his efforts to support his daughter, albeit at a lower income than in 2012 and 2014, are reasonable. [ 34 ] Finally, despite the understandable desire of both A.M. and C.R. (and their respective families) to have a final order such that they do not have to keep coming back to court, I reluctantly conclude that there are still too many things changing in their lives at the present time for this Order to be a final one.

Those changing circumstances include: • the impending birth of their second child; and • the need to confirm C.R.’s projected income for 2015 of $95,000 with a T4 slip and a Notice of Assessment - neither of which is available until 2016. [ 35 ] I had understood that the parties had a Case Conference scheduled early in the New Year to discuss parenting arrangements but I have been unable to confirm this. I will therefore include a term in my order directing that a Family Case Conference be scheduled, preferably in February, 2016, to discuss the ongoing child support issues listed below.

Of course, the parties may also wish to discuss parenting arrangements: (

a) confirmation of 2015 income based on T4 and Payroll

Summary for 2015; (

b) projection of 2016 income; (

c) child support amount for two children, if applicable. [ 36 ] Finally, as noted at the beginning of my reasons, my draft interim Order is attached as Appendix A to these Reasons. __________________________

E. L. Bayliff Provincial Court Judge Appendix A Interim Order THIS MATTER coming on for trial on October 9 th and 28 th , 2015 and upon hearing the evidence and the submissions; AND UPON BEING ADVISED that the child of the parties is: H.R.M.R., born [omitted for publishing] THIS COURT ORDERS: 1. This Order replaces the interim Order of the Honourable Judge J. D. Cowling made the 11 th of June, 2015; 2. C.R. is found to have an annual income for Federal Child Support Guideline purposes of $95,000.00; 3.

C.R. shall pay the table amount of child support for the child H.R.M.R., born [omitted for publishing] (‘the child’) of $878/month commencing the 1 st day of December, 2015 and continuing on the first day of each and every month thereafter; 4. The parties are ordered to contact the Judicial Case Manager to

schedule a Family Case Conference (preferably for February, 2016) to discuss, among other things the following issues: (

a) confirmation of C.R.’s 2015 income based on T4 and Payroll

Summary for 2015; (

b) projection of 2016 income; (

c) child support amount for two children, if applicable. 5. Financial disclosure: (

a) By January 30 th , 2016 C.R. shall provide A.M. with his T4 slip (or other tax information slip) from any and all sources of income in 2015; (

b) By June 30 th of each year starting with June 30 th , 2016, the parties shall exchange a copy of their filed income tax return plus attachments (including T4 or other information slip from any and all sources of income), as well as the notice of assessment or re- assessment, for the preceding taxation year. The purpose of this provision is so that both parents can monitor the application of the Federal Child Support Guidelines to their child’s situation; and (

c) If either parent fails to provide this information by the deadline set out, the other parent shall be at liberty to apply to court for the imposition of a fine pursuant to s. 213(2)(d)(iii) of the Family Law Act of B.C.

6. By consent, and without prejudice, the issue of daycare costs shall be dealt with as per term # 2 of the Order of Judge Cowling until further agreement or Order of the court. [i] Pursuant to s. 16 of the Guidelines and

Schedule III, s. 1(

g) a deduction “concerning dues and other expenses of performing duties” would appear to be appropriate. Line 150 “total” income of $134,000 minus $7,000 union dues = $127,000 [ii] Line 150 “total” income of $ 96,300 minus $5,000 union dues = $ 91,300 [iii] Line 150 “total” income of $131,800 minus $7,000 union dues = $124,800