W.G.D. v. S.L. Date:, 2016 BCPC 194

Citation: W.G.D. v. S.L. Date: 20160615 2016 BCPC 194 File No: 14182 Registry: Lillooet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: W.G.D. APPLICANT AND: S.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: W.G.D.

Counsel for the Respondent: Ms. Linda Thomas Place of Hearing: Lillooet , B.C. Date of Hearing: May 12, 2016 Date of Judgment: June 15, 2016 [ 1 ] This is an application by S.L. for child support from October 2015, special and extraordinary expenses for 2015 and for a penalty to be assessed against W.G.D. There were also some submissions claiming arrears for child support dating back as much as nine years. However, that application is not properly before me because those arrears are not sought in the application or motion. [ 2 ] The child in issue is I.P.D. born [omitted for publication]. There have been a number of orders made from time to time as follows:

a) January 11, 2012 an order was made compelling S.L. to return the child to Kindergarten in Lillooet by January 13, 2012; for W.D. to have parenting time on a specified weekend; that the residence of I.P.D. not be changed from Lillooet; and that a family case conference be fixed.

b) January 18, 2012 an order following a hearing by Judge Harrison for parenting time and for non-removal of I.P.D. from the Province of British Columbia.

c) June 6, 2012 an order for production of records from the Ministry of Child and Family Services and from the Lillooet RCMP.

d) August 30, 2012 an order compelling I.P.D. to attend school at [omitted for publication] and for a s. 15 report to be prepared with respect to custody and access of I.P.D.

e) April 9, 2014 a consent order is made acknowledging that both parents are guardians of the child and setting out how they will exercise parental responsibilities. I.P.D.’s primary residence was to be with S.L. and W.G.D. was to have specified parenting time. There was also an order made that I.P.D. not remain in the care of J.H., W.G.D.’s partner, for more than two consecutive hours with both parties having the right of first refusal any time the other parent requires alternative care for the child during that parent’s parenting time. There were further conduct orders made with respect to parenting, discipline, smoking and communication.

f) November 9, 2015, following a family case conference, the parties consented to add further parenting time for W.G.D.

g) February 9, 2016, at a family case conference and by consent, the parties made no further variations with respect to parenting time but did consent to the order that W.G.D. file his financial statements and all necessary attached documents by March 31, 2016. [ 3 ] There are some orders that have never been prepared but which were clearly made from time to time on this file:

a) On February 11, 2014, Judge Marchand ordered that the parties exchange financial disclosure no later than March 21, 2014 in the prescribed forms with the prescribed attachments. The matter was then adjourned to March 12, 2014.

b) On March 12, 2014, orders were made with respect Witness Will Say statements but there are no notes with respect to whether financial disclosure was addressed.

c) On October 6, 2015, W.G.D. was again ordered to produce his financial statements complete with all attachments by November 4, 2015.

d) On November 10, 2015, W.G.D. was again ordered to produce his financial documents this time by January 15, 2016. At that time, an order was made to hold a maintenance hearing on the same day and time as the family case conference was to be heard on February 9, 2016.

e) On February 9, 2016, W.G.D. still had not completed his financial statements. A further order was given granting him time to March 31, 2016. [ 4 ] W.G.D. did not file his financial statement until about 4:00 p.m. on May 11, 2016, the day before this hearing. In addition to being well past all due dates given to him, it is also incomplete and inaccurate. In it, he claims that he has been unemployed since 2011, that he has attached every income tax notice of assessment or reassessment he has received for the three most recent taxation years; and that his annual income is only $10,500. In

Part 2 under his expenses, he lists a number of expenses that do not on their face appear to be outrageous but claims in the end that his total expenses are zero dollars. He also claimed to have no assets, but he drives a borrowed vehicle, has two motorcycles which are not on the road, and owes $7,800 for student loans. Even his income tax assessment is completed inaccurately. [ 5 ] At trial, W.G.D. tried to dismiss his failure to comply in any meaningful way with the orders to produce his financial statements.

He claimed that his wife’s vehicle (the one he said he borrowed) had burned with all of his documents in it. However, he was unsure when this vehicle burned. He was also “caught” having used that excuse twice in court. Finally, all of those documents, he conceded, are available online.

There is simply no excuse for him failing to make any effort at all to produce the financial statements. [ 6 ] I am satisfied on the evidence before me that it is appropriate to impose a penalty under s. 213 of the Family Law Act against W.G.D. for his deliberate, wilful and indifferent attitude toward producing of his financial records in accordance with orders of the court. The maximum penalty that may be imposed under s. 213 is $5,000. While W.G.D.’s conduct is not on the most egregious end of the scale, his indifference is not trifling.

Not only has he failed to make any disclosure in accordance with the court orders, but the disclosure

he has made has been incomplete and misleading. I order that W.G.D. pay to S.L. the sum of $1,000 pursuant to s. 213(2)(d)(2). [ 7 ] W.G.D. does not dispute that he has not paid child support to S.L. She filed her application in September 2015 and seeks child support commencing October 1, 2015. She claims that W.G.D. is underemployed. [ 8 ] S.L. also seeks contribution to the 2015 special and extraordinary expenses in the sum of $2,235.

S.L.’s income, according to her financial statements, has been as follows: a) 2012 - $12,368 b) 2013 - $11,658 c) 2014 - $3,894 d) 2015 - $13,541.61. [ 9 ] The special or extraordinary expenses are comprised of medical or dental insurance and health related expenses in the sum of $1,100, Brownies for $100, horseback lessons for $240, science camp for $165, skating for $270 and theatre for $360. [ 10 ] W.G.D. disclosed, as I have said, that he has not been employed since 2011. He has disclosed income as follows: a) 2013 - $12,646 b) 2014 - $10,750. [ 11 ] S.L. testified that she is a high school graduate.

She was in a common-law relationship with W.G.D. for over two years, separating in 2007. She has had the primary care of I.P.D. since they separated. He has parenting time which he does exercise. [ 12 ] In 2013, S.L. married T.D. They were in a relationship for two years and separated six months prior to the hearing date. He now resides in Vancouver and they have a good relationship. [ 13 ] S.L. now lives on [omitted for publication] with her mother in Lillooet. She pays the property taxes and utilities on a home owned by her mother.

S.L. is self-employed, owning the sewing shop disclosed in her financial statements. She opened the shop in January 2014. She has no other income at the moment. She has previously worked as a sous chef at the winery in town. She is not going to return to this work, which is seasonal, because she is working at the shop and starting another business. When she was a sous chef, she was paid $12 per hour but the hours varied depending on whether there were events and whether her help was needed. She will be starting a food truck with a partner in a few months.

She is starting this business because her sewing business has now slowed down. [ 14 ] It is unclear why S.L. claimed medical premiums for I.P.D. because her evidence is that she does not pay those premiums. [ 15 ] She has claimed for school supplies which are mandated by the school for each new grade. She has to either go to Vancouver or Kamloops to purchase those school supplies, which is an additional expense. [ 16 ] She does not have receipts for the horseback lessons or for the Brownies. She testified that the Brownie expense was for the uniform. She has a modest savings account she has accumulated for I.P.D.

None of the contributions to it come from W.G.D. [ 17 ] S.L. has a significant debt she owes to Revenue Canada for a debt incurred when her current husband immigrated. She is paying that off with $50 per month payments. She also owes her portion of a loan given by D.D. when T.D. was in an accident. It is unclear why she is the one making these payments but it is an obligation she is attempting to meet. [ 18 ] When T.D. was living with her, she was able to work more and consequently earn more money.

His income contributed to the household although it was not particularly high. [ 19 ] W.G.D.’s contributions to child support and expenses has been sporadic since they separated. [ 20 ] S.L. testified that W.G.D. is a ticketed welder, having achieved his ticket in 2005. He was in this employment earning about $18 to $20 per hour or $35,000 to $40,000 per annum when they met. She said that he did not do this for long after they were together. [ 21 ] Following the welding work, he began salvaging boats and doing rescue marine work. This work varied between hourly and base rate for the salvage.

She estimated he earned more than $15 per hour. It was dangerous work and he also had to have his First Aid certificate for it. [ 22 ] They also both worked for W.G.D.’s mother who owns a [omitted for publication] which is situated on her property on [omitted for publication]. He built the new office and was paid $20 or $25 per hour for that work. [ 23 ] W.G.D. also worked at a mechanic shop on [omitted for publication] for a while. Because he was not certified for this work, he only earned about $15 per hour. [ 24 ] Once the couple decided to move to Lillooet, W.G.D. began doing work building and roofing.

The roofing company was doing well. He had this work in or around 2013. His accident ended that employment. [ 25 ] W.G.D. has spent the last few years working on a house that he is building on property owned by his mother. S.L. believes that W.G.D.’s mother is paying him for this work. She bases this on what W.G.D. represented to the court the last time he was in attendance. [ 26 ] W.G.D.’s current partner is a [omitted for publication]. They built a [omitted for publication] for her in town. S.L. believed he

worked in that [omitted for publication] as well. They have not been running that business for a couple of years now. [ 27 ] While S.L. is not personally aware of W.G.D. working the prior year, she said that I.P.D. tells her he is working all the time now. I.P.D. has told her that he is out working all day. [ 28 ] W.G.D. and his partner J.H. live in the home that he has been building. S.L. described it as a “big beautiful house”.

It has four bedrooms, a deck, indoor plumbing, unlimited water, solar heating, and about 12 acres of land. [ 29 ] Also residing with them half time is J.H.’s daughter from a prior partner. Her daughter is also nine. [ 30 ] In cross examination, S.L. acknowledged that she had previously worked for a cleaning business over a year prior. She only made $3,000 from that income. It ended when the owner died. [ 31 ] In short, S.L. has not been gainfully employed at any significant point in time in the years that she has known W.G.D.

Despite her lack of post-secondary education or professional education, she has endeavoured to make her own living through various business ventures. She has spent some time on disability and some time on social assistance. She has, though, also worked at various low paying occupations throughout. She now has an ambitious intention of growing not only her sewing business but her food truck business. [ 32 ] W.G.D. testified that about five years prior he had a bad motorcycle accident that almost caused him to lose his arm.

He was bedridden for six months, followed by a year of physiotherapy and then another two and half years before he was able to begin to work again. He produced no medical documentation to confirm this disability or for the length of time he was unable to work. Nor did he disclose any information about whether he had income from social assistance or medical employment insurance or otherwise. [ 33 ] He also testified that, until the last 12 months, he has not been very strong.

Instead of finding work, he has felt that it was a good way to spend his time to build the house on the property S.L. had testified about. [ 34 ] W.G.D. acknowledged that J.H. had a [omitted for publication] and that he worked in it for free. He said he mostly took care of the children. Considering that I.P.D. was primarily with her mother and J.H.’s daughter lived half the time with her father, this is not a good explanation for how he has spent his time.

It also defies logic how he can work in the [omitted for publication] for free when he has a financial obligation to support his daughter. [ 35 ] In any event, he testified that the business only made about $6,000 or $7,000 by the end of that year. He brought no financial documentation to support this. He said that J.H. had contracted pneumonia which went undiagnosed for six months. This left her with respiratory issues two years ago. His description of her illness was quite dramatic but again he brought no medical documentation to support her disability.

He used her ongoing medical condition as an excuse for him not to work. He said that he might have to take her to the hospital at any time. [ 36 ] He now has a daughter with J.H. He said he was afraid to leave his daughter alone with J.H. in the first year of her life because the attacks J.H. suffers could be sudden. J.H. is now getting stronger. In the next few months he will be finishing the work on the house.

At that point, he intends to earn his Class 3 or Class 1 driver’s license and actively begin looking for work. [ 37 ] W.G.D. testified that he has to pay his mother back for the house he has been building. He says his mother owns the land but he has been building the house. His mother has been purchasing the supplies, and he has been providing the labour. He did not call his mother, Ms. P., to give evidence about the agreement between them. He also produced no documents to substantiate this agreement.

He kept no records or receipts nor produced any other means by which he tracks what it is he will have to pay his mother when he eventually finds work. I do not believe W.G.D. I do not believe he owes his mother for this house. [ 38 ] W.G.D. has a Grade 12 education and some trades education. He has a Level C welding ticket but no other formal education in any other trades. He has at times carried a Level 3 OFA first aid ticket, but it has expired. [ 39 ] W.G.D. said that he did not work in welding for very long. He did not give any explanation why he did not continue in that work.

He said he was in the marine salvage business briefly as well but it was “hit and miss”. He has done some “spotty carpentry work” before the accident. He thought that was starting to look like good income but then he had his accident. [ 40 ] His income, he said, for 2010 to 2012 was zero dollars. He was bedridden and then stayed home to care for the children. Again, he produced no documentation, particularly not any income tax assessments, for those years. [ 41 ] W.G.D. said that he and J.H. lived in her trailer on a hop farm. He had no money so he was staying with her.

She still owns that trailer and they pay the pad rent of $250 per month. They are not renting it out to cover its costs, but have not yet decided what they wish to do with it. This seems an irresponsible decision given the financial obligation he has to support his daughter as well as his claim that he and J.H. are both unable to earn meaningful income. I note that he also testified that J.H. purchased the groceries and he paid the costs of living in the home. However, he said that he did not receive any money from his parents in this time.

It is unclear what income he was using to pay these expenses. [ 42 ] In 2012 or 2013 - he was unclear which - he had income of about $10,000 doing odd jobs. In that year, he took both his daughter and J.H.’s daughter to Kamloops for school supplies. He said that he has, from 2014 to present, contributed at least something every year toward the school supplies.

He has no receipts for the school supplies or clothing that he says he has purchased from 2013 to 2016, all while he evidently had no or very little income. [ 43 ] W.G.D. concedes he does not have a good reason for not filing his financial statements and I find that his explanations for failing to produce any other documentation to support his evidence also lacks any valid explanation. [ 44 ] W.G.D. described the lot on which he has built the house as being about 40 acres. He does not know the address or lot number. He does not know the value of it or the house he has built on the lot.

He estimates the square footage to be about 1,800, including the

shop he has built in the basement. He estimates it to be approximately $150,000. [ 45 ] W.G.D. has been building this house despite his physical disability. Some of the work he has been doing, including framing, insulation and drywall, he concedes is very physical work. In addition, he is doing wildfire management, weeding and tilling as odd jobs for his neighbours, which comprises his income. He is paid in cash and has not tracked this work in any way. [ 46 ] W.G.D. said that he pays half of the taxes on the property by arrangement with his mother. His half is $400.

He said that she has shown him the tax assessment, but cannot remember the value of the property. He did not bring a copy of that assessment or any assessment with him. [ 47 ] W.G.D. explained that although he has solar panels, he has no electricity. Consequently, he has to run a generator which is the $1,500 in gas and oil expenses claimed. He also pays J.H. $1,000 a year for the privilege of using her vehicle. This is primarily for repairs and maintenance that have to be done on the vehicle. He has premium assistance because of his low income.

He pays about $100 per month on tobacco. [ 48 ] W.G.D.’s evidence regarding his assets is confusing and internally inconsistent. He said that the accident he had five years prior was when he was riding his motorcycle and a deer ran into it. He said the motorcycle was undamaged. However, he places no value on the motorcycle because it is evidently lying in pieces. Similarly, his other motorcycle is also lying in pieces.

He claims neither of them could be sold for any amount of money. [ 49 ] W.G.D. was questioned about various deductions reflected in his documentation but he was unable to explain what they related to. I find that he made no effort to prepare for this hearing and no effort to inform himself about his own finances. [ 50 ] I am satisfied that W.G.D. is, pursuant to s. 19 of the Federal Child Support Guidelines , intentionally underemployed or unemployed. He is young and skilled.

Rather than finding work that would provide an income, as he is obligated to do to support his child, he has elected to care for children who do not live with him full time and to build a home which will evidently benefit his mother rather than his daughter. I am satisfied that it is appropriate that I impute income to W.G.D. As I have said, S.L. filed her application in September 2015. The order I make will commence October 1, 2015.

She is at liberty to file a proper application for arrears of child support dating back before October 1, 2015. [ 51 ] I find that W.G.D. is qualified to look for and obtain work in the field in which he is certified as a welder. While it has been some years since he worked in that field, I am satisfied that it is appropriate to use the income he earned at that time of $35,000 per annum. His child support obligation for one child at $35,000 per annum is $318 per month. [ 52 ] W.G.D.’s arrears as of June 1, 2016 are $2,862.

W.G.D. shall pay those arrears in addition to his ongoing child support in the sum of $50 per month. Commencing July 1, 2016, W.G.D. shall pay the sum of $368 per month, representing his arrears and ongoing child support obligation. [ 53 ] W.G.D. shall further provide to S.L. not later than June 1 st of each year commencing June 1, 2017 his income tax return and notice of assessment for each taxation year.

W.G.D. needs to understand that the $1,000 penalty I have imposed today will be the starting point for any court considering an application for penalty by S.L. for W.G.D.’s ongoing failure to provide financial information in a manner and by the time directed by this court. [ 54 ] With respect to the special or extraordinary expenses, assessing the percentage attributable to each parent is a simpler exercise than determining what expenses constitutes special or extraordinary. I have imputed W.G.D.’s income at $35,000 per annum.

It will presumably increase once he has trained for his Class 3 or Class 1 driver’s license. Since he has been told there is a lot of work in this area, I fully expect that he will pursue that employment aggressively. In the meantime, his income is imputed at $35,000 per annum. S.L. has averaged an income of $10,365.40 over the last four years from various sources. I fix her income at $10,400.

I fix her proportionate special or extraordinary expenses at 30% and W.G.D.’s at 70%. [ 55 ] The next question is which of these special or extraordinary expenses are appropriate. [ 56 ] Under s. 7 of the Federal Child Support Guidelines , I must first take into account the necessity of the expense in the relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents and the family’s spending pattern prior to separation. Since the child was only about one year old when they separated, there is no such pattern for comparison purposes.

This then leaves a consideration of I.P.D.’s best interests and reasonableness of the expense in relation to the means of both W.G.D. and S.L. In addition, I may consider the portion of medical and dental insurance premiums attributable to the child. In this case, S.L. testified that she does not pay any. As a consequence, they are not relevant at this stage of the child’s life. [ 57 ] I may also consider health-related expenses that exceed insurance reimbursement (and in this case there is none) by at least $100 annually.

I have been provided no documentation that relates to the $1,000 claim for health-related expenses claimed in S.L.’s

Schedule 1 of her financial statement. I do not allow a claim for it. [ 58 ] This leaves extraordinary expenses for extracurricular activities.

Extraordinary expenses are defined in s. 7(1.1) of the Federal Child Support Guidelines as expenses that exceed those that the claiming parent can reasonably cover, taking into account her income and the amount that she would receive under the applicable table; the nature and number of the educational programs and extracurricular activities; special needs and talents of the child; the overall cost of the programs and activities; and any other similar factor that I consider relevant. [ 59 ] There are no special needs or interests on the evidence before me that would make it appropriate to consider Brownies, horseback lessons, science camp, skating or theatre to be an extraordinary expense.

These are ordinary activities that every child, in a perfect world, would be entitled to engage in. While it may seem this is a great number of activities, they do not run all year. However, for a family of such limited means, the expenses are high.

[ 60 ] School fees and supplies and these extra-curricular activities and sports, are not, in the usual course, extraordinary. Given what ought to be W.G.D.’s income and what is S.L.’s income, those activities that I.P.D. can engage in will be much more modest given the means of her parents. [ 61 ] That does not mean to say that the parents cannot register I.P.D. in these activities. Absent an agreement between the parties, registering her in extra-curricular activities is something the parents do by choice and cannot expect the other parent to contribute.

However, that does not mean to say that I.P.D. cannot engage in any extra-curricular activity. Given her mother’s means, there is little disposable income to register I.P.D. in anything. Considering those means, it is appropriate that W.G.D. contributes 70% to a modest amount for extra-curricular activities over and above anything that S.L. registers I.P.D. for.

Rather than choosing which of those activities I.P.D. may engage in and apportioning W.G.D.’s contribution, I am capping his contribution at $500 per annum. [ 62 ] S.L. shall provide to W.G.D. receipts for any extra-curricular activities and related equipment or clothing, and W.G.D. shall pay 70% of those expenses up to a maximum of $500 per annum for so long as his income is $35,000 per annum, whether actual or imputed. This does not prevent W.G.D. agreeing to contribute more toward his child’s activities. It is simply capping the amount that he must contribute.

It also does not prevent S.L. registering I.P.D. in further activities, but she cannot seek more than the cap from W.G.D. for so long as his income is set at the imputed amount. [ 63 ] S.L. has liberty to apply to increase W.G.D.’s child support obligation as of July 1 each year commencing July 1, 2017 in accordance with his actual income; and W.G.D. accordingly has liberty to apply for a review of his child support which, in any event, shall not be less than his obligation based on an income of $35,000 per annum.

The proportionate share of special or extraordinary expenses may also accordingly be adjusted on July 1 each year commencing July 1, 2017, based upon the actual income of W.G.D. and S.L., so long as W.G.D.’s income is not fixed at less than $35,000 per annum. _________________________ S.D. Frame Provincial Court Judge