J.V. v. F.R., 2018 BCPC 178

Citation: J.V. v. F.R. 2018 BCPC 178 Date: 20180611 File No: 15165 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.V. APPLICANT AND: F.R. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Appearing as Amicus Curiae by teleconference: J. Kahan Appearing in person: F.R. Place of Hearing: Victoria , B.C.

Date of Hearing: June 11, 2018 Date of Judgment: June 11, 2018 [ 1 ] THE COURT: This is an application, then, by J.V., and it is brought through the ISO Act . J.V. does reside in Ontario but the order for child support was made in British Columbia. That is the order dated May 3rd of 2012, in which J.V. was found to have an income in the amount of 51,600 and ordered to pay child support for the child of the parties in the amount of $474 a month. [ 2 ] As I understand the submissions today, J.V. is the mother of A.R., born [omitted for publication].

She is also the mother of two children, Z.B. and M.B. [phonetic], the first born [omitted for publication], and the other child born [omitted for publication]. This is, before me at least, the second of J.V.'s ISO applications to vary the order of Judge Wishart dated May the 3rd of 2012, on the grounds of a material change in circumstances, namely that J.V.’s income is well below the income imputed to her or found to have been her income, by Judge Wishart, in 2012. [ 3 ] F.R., father of A.R., is here today to oppose J.V.'s application on several grounds.

Fundamentally, as I understand the submissions, in the hearing before Judge Rogers in which an order was made, on August 21st of 2015, J.V. had made a similar application to vary and to effectively reduce arrears owing on child support payments, on the grounds that her income was reduced, relative to that found by Judge Wishart. In that order, Judge Rogers, first of all, did reduce the arrears by the amount of $5,688, but dismissed the remainder of the application to reduce or vary her child support obligations, with no reasons.

F.R. submits today that the reason was fundamentally because Judge Rogers formed the impression, based on the materials provided in that application, that J.V. was intentionally underemployed and was certainly in a position to make, easily, as much income as she was found to have made or been able to make in 2012. [ 4 ] In making that submission, both counsel for the ISO Director, as well as F.R., pointed to some anomalies in the application before me, particularly the information provided at pages 12 and 13 of the application, which are effectively pay stubs.

Those pay stubs are certainly lacking in detail, but the detail they provide would indicate, among other things, that at present J.V. makes nearly as much, if not in fact appreciably more, than she was making in 2012. Both parties, speculating on holiday time and/or working part-time or full- time, calculated that J.V. could be making, based on those pay stubs, an income as high as $59,560, possibly $58,000, possibly $50,794, and possibly as little as $43,175.34. In

summary, the information is not terribly accurate. [ 5 ] There is, in addition, information not provided with respect to J.V.'s schooling. Initially, it was proposed by the ISO Director, that I could require that J.V. provide additional information, with respect to her schooling.

F.R. takes the position that that information will be provided, and once it is provided, he will once again be required to return to court to address the issue that he has addressed today, in any event, and that is, firstly, that no matter how things are viewed, it does appear that J.V. is intentionally underemployed. [ 6 ] She has trained as a civil engineer.

F.R. was able to provide information that J.V.'s current employer paid labourers at the rate of $25 an hour, so that even if J.V. did not have a job in her chosen profession, she would certainly be able to earn in excess of the amount of income that was attributed to her in 2012.

In addition, F.R. pointed out that J.V., after the order of Judge Rogers, undertook to return to school to take training for a position she already held, as it was submitted, potentially an attempt to avoid making an income, and thus avoiding her child support obligations. [ 7 ] F.R. also pointed out that in the years 2014, 2015, and 2016, J.V.'s common-law partner appears to have earned an income far in excess of incomes earned in previous years.

During that time, even despite being in school, and even despite the materials provided to Judge Rogers in the first application for a variation of child support payments, which was denied, it looks as if J.V. was nonetheless able to make child support payments on a monthly basis, in the amount required.

The submission there by F.R., is that that income is available through the household, through no hardship. [ 8 ] I do not have a hardship application before me, nor do I have an application by F.R. for an increase in child support, based on information which would suggest that J.V., in fact, makes a greater income than was attributed to her in 2012.

Rather, F.R.’ s position is, bearing in mind Judge Rogers' previous views, which were expressed at the last hearing to the effect that J.V. was intentionally underemployed, and bearing in mind the information provided here today, which satisfies me that that does, in fact, appear to be the case, F.R. submits that it is unfair and a burden on his family to require him to continue to return to court and attend these matters in person, all the while, while J.V. is able to bring this application from afar, with the assistance of the ISO Director. That is no criticism of the ISO Director.

I understand why that individual is here today, and the courts are grateful for the assistance of the ISO Director. I would say that the ISO Director, in this and any other ISO hearing application I have heard, have been scrupulously fair and presented the material as objectively as possible, and that is certainly the case here. [ 9 ] In any event, I am satisfied, having listened to F.R. and considered the materials, that J.V. has not made a case for a material change in circumstances.

I am also satisfied that, to the extent that J.V. was not making an appreciable income, relative to the child support payments she was obligated to pay between the months of January 2016 to May of 2017, that that was an intentional act on the part of J.V., and that that was unnecessary and inconsistent with her obligations to continue to support her child in this jurisdiction. [ 10 ] For those reasons, I am going to dismiss the application for a variation of the child support order. [ 11 ] MS.

KAHAN (via teleconference): And Your Honour, if I could dispense with F.R.’s signature, I will draft up the order. [ 12 ] THE COURT: Okay. Thanks very much. I appreciate that, Ms. Kahan. Thank you. [ 13 ] MS. KAHAN: Thank you. [ 14 ] THE COURT: Thank you.

(REASONS CONCLUDED)