A.M.W. v. D.F. Date:, 2013 BCPC 60

Citation: A.M.W. v. D.F. Date: 20130314 2013 BCPC 0060 File No: 15238 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: A. M. W. APPLICANT AND: D. F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. Morgan Counsel for the Applicant: Mr. B. Levine Counsel for the Respondent: Mr. B. Chudiak Place of Hearing: Quesnel , B.C.

Date of Hearing: February 4, 5 and 18, 2013 Date of Judgment: March 14, 2013 [ 1 ] The Court is asked to make a final determination on the issues of child and spousal maintenance. [ 2 ] The parties are the parents of two children aged ten and nine years old. They began living together approximately 14 years ago, and separated on December 19, 2011. After a two day hearing before me in June 2012, I provided a written decision dated June 18, 2012, regarding interim spousal and child support, pending a full hearing and final determination of the matter.

That hearing was held before me on February 4th, 5th and 18 th , 2013. Background: [ 3 ] The parties are both currently 33 years old. They began living together in 1999 when they were 19 years old. The mother has a grade 12 education and the father completed grade 8. They resided in Bonnyville, Alberta for approximately 6 years. Both their children were born while they resided in Alberta.

Prior to the birth of their first child in 2003, the mother worked at the following various jobs: [removed for posting] store employee, [removed for posting] grocery clerk, server at a golf course club house, motel chamber maid, liquor store employee, and janitor for an industrial cleaning company. [ 4 ] Initially, the father worked in the oil patch for [removed for posting]. After the birth of their first child, the mother, by agreement, became a stay-at-home parent.

The parties did not want to use daycare and felt they were in a financial position to live off of the father's income, which the mother recalls was, at that time, approximately $78,000. She recalls the father working up to 7 days per week and 10 to 12 hour days. The father says the understanding was that the mother would be a stay at home mom until the children were in school, then she would obtain employment. The mother disagrees there was this understanding. [ 5 ] Sometime prior to 2005, the father obtained employment with [removed for posting], and began working an 8 days on, 6 days off shift.

He was home every night and assisted with the care of the children. In 2005 the parties moved from Bonnyville to a small community near Red Deer, Alberta. A short time prior to the move, the father obtained a camp job with [removed for posting]. After living in the community near Red Deer for only three months, the mother and children moved to Quesnel. [ 6 ] The mother says it was not a unilateral move, but one that the parties had discussed. The father agrees they had discussed the move, but says they had not agreed on it.

He says he was in camp when he first heard the mother had moved with the children to Quesnel. When he talked with the mother about it, he recalls her telling him she did not want to live in Red Deer because it was too near his mother, but wanted to live in Quesnel near her parents so she could have support with the children and free up time to seek employment. The father says he wanted her to start working, so was okay with that plan.

The mother says the father would never have discouraged her from working, however says the discussion about her seeking employment never came up. [ 7 ] The family moved into a 1971 manufactured home owned by the father's mother that was situated on his mother's land in Kersley, BC, which is a small community located 15 kilometres south of Quesnel. They did not pay rent. The father added two small additions to the manufactured home, enlarging it from 960 square feet to 1200 square feet. The two children each had their own bedroom.

Notwithstanding the additions, the father describes the overall condition of the manufactured home as very poor. [ 8 ] The mother says the family enjoyed a comfortable lifestyle from the start of the father's job with [removed for posting] up until the separation in December 2011. They always had two vehicles, enjoyed outdoor activities such as fishing and hunting, and the children were enrolled in Tae Kwon Do classes. [ 9 ] The father worked his way up to the position of lead operator with [removed for posting]. His shifts were 2 weeks on and 2 weeks off.

He then accepted a promotion to assistant production foreman. That job required a shift change to 5 days on and 2 days off. After 8 months the father concluded he was spending too much time travelling back and forth from Quesnel to the camp located in Helmut, B.C., so went back to his previous position with the 2 week on, 2 week off schedule. [ 10 ] Helmut is located 200 KM north east of Fort Nelson, B.C. However the father drove only to Ft. St. John, where the company transported him into camp. The driving distance from Quesnel to Fort St.

John is 572 km with an estimated driving time from the government of B.C. distance calculator website of 6 hours and 43 minutes. [ 11 ] The father says that he had discussed with the mother prior to their separation the idea that he find a job in Quesnel. He says he did not like the long distance travel, especially in the winter. He also says he was missing out on much of the children's activities and special events, notwithstanding his 2 weeks off out of every 4 weeks.

It is also the father's belief his work at camp contributed to the dissolution of the relationship. [ 12 ] The mother denies the father ever talked to her about being concerned about the driving, or about wanting to spend more time with the children. She also does not believe the camp job contributed to the breakdown of their marriage. [ 13 ] The father continued to work for [removed for posting] from at least 2005 up until April 2012, when he quit. This was 4 months after the parties had separated.

The mother did not work after the birth of the oldest child (2003) except for some sporadic bartending for a friend’s parents’ bartending company. [ 14 ] Although the father’s 2011 income was over $100,000, he says it was unusually inflated due to various reasons, the primary

reason being he worked a lot of overtime. In the June 2012 hearing regarding interim spousal support, the father provided a letter from [removed for posting] that supported his contention that overtime was to be curtailed given falling natural gas revenues. However, he did agree with Mr. Levine, counsel for the mother, that he could reasonably expect to make an income of $90,000 per year with [removed for posting]. [ 15 ] Notwithstanding the father’s very good income, the parties did not acquire many assets. They had two vehicles, each one encumbered with a substantial loan that exceeded equity.

Although both blame the other for apparently squandering the income, the truth is most likely as per the mother’s testimony that, in her words: “they both pissed it away.” However I do not accept her apportioning a higher percentage of blame to the father any more than I accept the father blaming it all on the mother. They were economic partners.

After the December 19, 2011 Separation: [ 16 ] The separation involved some significant acrimony, the details of which are not relevant to the issues currently before the Court, but suffice it to say inform as to the parties’ ongoing unreasonable finance and income related decisions, poor behaviour in Court, and failure to respect Court Orders. [ 17 ] That said, it is important to emphasize that in matters unrelated to money, the parties are very reasonable people who demonstrate a mutual love and concern for their children, and have never made any negative comment in Court about the other’s lifestyle or parenting abilities.

To the parties’ credit, they have been able to agree to a shared parenting regime on a two-week rotating basis with the mother having the children for a portion of time in the middle of the father’s parenting weeks to assist the children with the transition. The mother and father both confirm the children are doing well and are used to the routine. [ 18 ] After the parties separated, the mother and two children moved out of the father's mother's manufactured home. Shortly after moving from the manufactured home, the mother and the two children moved in with her current common-law spouse, Mr.

A, and his two young children. They live in Mr. A's 4 bedroom house located in Kersley. The home is situated on 320 acres. The mother reports the parties' two children are happy there and get along well with Mr. A's two children. [ 19 ] Mr. A testified in the June 2012 hearing that he viewed his relationship with the mother as long-term and that it was his intent to add the parties’ two children to his benefits plan. He also stated it was his preference the mother not work, and that she stay at home to look after the four children.

He testified that he worked full-time at a local pulp mill in a secure Monday to Friday 8:00 AM to 4:30 PM job that paid him $74,000 in 2011. [ 20 ] The mother testified that she believed Mr. A's 2012 income was only $64,000. The otherwise unexplained reduction in income may be related to a neck injury she says Mr. A suffered in late 2012, resulting in him being at least temporarily unable to work. She states that his current income is a disability income from Blue Cross, and is $980 per week, which translates into about $51,000 per year.

She did not know whether that income was net or tax free. [ 21 ] Prior to the June 2012 hearing, an initial hearing was held before me on April 11, 2012. The Order made on that day was primarily by consent.

That Order included the following: - Setting out the father's specified parenting time during his two weeks off from his job with [removed for posting]; - child maintenance payable by the father, on a without prejudice basis, in the amount of $1,400 per month commencing April 15, 2012; - an Order that the father would pay outstanding amounts owing on the lease for the Jeep vehicle that was being used by the mother, and a requirement that he continue to make the regular payments as they came due; - an Order that both parties file Form 4 financial statements by April 24, 2012. [ 22 ] The matter was adjourned to June, 2012, for a hearing on the issue of interim spousal support. [ 23 ] Two days after the April 11, 2012, Order, a payment on the Jeep was made by way of an automatic withdrawal that had been previously set up on the father's bank account.

However, on April 16, 2012, the father's bank statement indicates - and the father confirms - that he cancelled the automatic payments. Future payments would have to be made directly by the father. [ 24 ] The father at first testified that he made a further two payments by electronic transfer, however when pressed, and with reference to his bank statement, conceded that he did not make any payments by electronic transfer nor did he ever make another payment on the Jeep.

Consequently, the Jeep driven by the mother was repossessed. [ 25 ] Very shortly after the April 11, 2012, hearing and subsequent Order, the father quit his job with [removed for posting]. [ 26 ] The hearing to determine the issue of interim spousal support was held before me on June 5th and 7th of 2012. It was at that hearing the father confirmed he had quit his job with [removed for posting].

In that hearing the father agreed with the mother’s lawyer that [removed for posting] valued him as an employee, would hire him back and that he could expect to earn $90,000 per year with them. [ 27 ] At the time of the June 2012 hearing, the father had obtained a new job as a truck driver and equipment operator with a local Quesnel company: [removed for posting]. He testified that the job was full-time but provided flexibility in work hours that would assist

him with child care and allow him to be home each night. He confirmed the job paid $25 per hour, which translates into $52,000 per year. The father testified then - as he does now - that the primary reasons for quitting his long time and well paying job with [removed for posting], was to allow him to spend more time with his children and to avoid the long distance commute from Quesnel to Fort St. John.

He also stated he believed that working in camp contributed to the deterioration of the parties’ relationship, and that he was in a new relationship and wanted the foster it. [ 28 ] In my June 18, 2012 decision on the issue of interim spousal support, I held, beginning at paragraph 32, as follows: [32] I have determined that in this particular case the question of whether the father's voluntary job change was reasonable in the circumstances is better left to the trial judge.

I come to this conclusion for the following reasons: the father's motivation for the job change appears primarily motivated by his view as to what is in the best interests of the children. He believes that being available to the children on a day-to-day basis, and being more involved in the activities in their lives offsets any detrimental effect related to a reduction in his income. The father has made clear his desire for an equally shared parenting regime. The mother has indicated an open mindedness to this proposal.

To the credit of both parties, they recognize the importance and benefit to their children of ensuring the children have lots of contact with both parents. [33] The impact on the children of the father's reduction in income will have to be assessed in light of their current living arrangements. A full ‘best interests’ analysis will have to be undertaken, which will include consideration of all the circumstances.

A decision on this interim application regarding the question of whether the father is under-employed may well have the effect of pre- determining other important issues that have not been fully considered by the parties and that are not before me. [34] Similarly, I find that it is better left to the trial judge to determine whether the mother is voluntarily under-employed. There was evidence provided that she has many skills that would make her eligible for many jobs in the current local job market.

It struck me that the mother does not fully appreciate that the obligation to provide financial support for the care of the children is a joint obligation. She has not looked into any employment prospects whatsoever, and stated at one point in the hearing that she viewed looking after the parties’ two school-aged children and Mr. A's two children as ‘her job’, thereby implying that there should be no expectation of her to look for work. If in fact it is her ultimate decision to remain a stay-at-home mom in part to look after Mr.

A's two children, and thereby reducing his child care costs, that will be a factor for the trial judge to consider. [35] However, it is early in the parties’ new lives as separated parents. There are many changes taking place in the children’s lives and the parties are in the process of sorting out parenting time and related arrangements. It is unreasonable to conclude at this early interim stage that the mother should be actively looking for employment.

The question of whether the mother should be considered at some point in the near future, under-employed, will be addressed by the trial judge. [ 29 ] Unfortunately, the father quit his job with [removed for posting] shortly after the June 2012 hearing. The Interim Order resulting from that hearing required the father to pay $780 per month for child maintenance and a further $1,190 per month for interim spousal support. The mother testified it was her belief he quit his job the day after the last Court date in June 2012. The father did not contradict her on this point.

The father confirms that he quit his job with [removed for posting] stating the reason he did so was because the company did not pay him ‘on time’. [ 30 ] Predictably, the father fell into arrears. The parties attended a Family Case Conference on July 24, 2012. The parties entered into a Consent Order on that date setting out shared summer parenting time with the children. The father also agreed to pay all the arrears arising from the June 18, 2012 Order by no later than 4:00 PM on July 25, 2012.

Unfortunately, contrary to the Order, the father did not pay all, or any, of the arrears. [ 31 ] The father is now in a common-law relationship with Ms. S. They live in a home situated on 220 acres adjacent to the Quesnel River. The land includes an indoor riding arena. The father does not pay rent. The land and home is owned by Ms. S’s father. He says the children enjoy coming to stay with him and enjoy outdoor activities with him such as riding skidoos. [ 32 ] On or about early September, 2012, the father obtained employment with [removed for posting] in Quesnel.

However, after earning a total of only $2,226, the father quit that job also. He testified the reason he quit was because the mother had registered the children in the [removed for posting] elementary school as opposed to the [removed for posting] elementary school and this required additional commuting time in the mornings when he was driving the children to school.

Although agreeing on cross-examination that dropping the children off at school as early as 7:30 AM was an option, and that his work did not commence until 8:30 AM, the father testified that he did not like to drop the children off at school that early, implying, but not explaining, a concern about the quality of the supervision. The father said that driving the children to school in [removed for posting] made it “nip and tuck” as to whether he could get to work on time. So he quit.

As a result of personally driving from Quesnel south past Kersley to Williams Lake on a very regular basis for Court, I am comfortable taking judicial notice of the fact that the [removed for posting] elementary school is a further 15 km of primarily highway travel from the turnoff to the [removed for posting] elementary school, and that the extra driving time one way at normal highway speeds would be approximately 10 to 15 minutes. [ 33 ] Although the parties agreed to table the school issue, I am compelled to make the following comment to put the father’s concern for his children in proper perspective, given the foregoing does not reflect favourably on him.

He says the mother unilaterally changed the children’s school from [removed for posting] to [removed for posting], without notice to him. When he discovered the change, he either brought an application, or indicated to the Court he was going to bring an application, to have the matter resolved.

However, in later recognition that, by the time the hearing could be concluded, if he was successful, it would mean changing the children’s school again mid-term, and thereby cause the children more disruption, he decided not to pursue the issue. [ 34 ] After quitting the [removed for posting] job, the father testified he went to work for [removed for posting]. [Removed for posting] is a company owned by his current common-law spouse’s father, Mr. S. However, the father confirms he made only $3,600 working for that company, explaining that work slowed down after Mr.

S suffered a heart attack in the late fall of 2012. I note that page 4 of the attachment to the father’s Financial Affidavit filed January 31, 2013 indicates he earned a total of only $3,094 from [removed for posting] from January 1, 2012 to January 30, 2013.

[ 35 ] The father testified he anticipates work with [removed for posting] will pick up because the company has obtained a contract with [removed for posting] to extend a logging road. The father says he can operate a CAT (bulldozer) and expects this project to last 5 to 6 months and pay $25 an hour with full benefits.

The father also says he obtained a Class I learner’s driving permit and expects to obtain his Class I driver’s license in two months time, which will allow him to drive low bed and logging trucks for [removed for posting]. [ 36 ] The father says he has attempted to find work in the local pulp mills and sawmills however his grade 8 education is a hindrance.

To address that, he testified that he has enrolled in an online upgrading course and hopes to have his GED diploma by the end of August, 2013. [ 37 ] The father confirms that since the April 11, 2012 Order (up to February 18, 2013) he has earned only approximately $6,000 income in total. [ 38 ] The father has not provided a fully complete Form 4 Financial Statement as he was ordered to do so on April 11, 2012. He says this is so because his last filing with the Canada Revenue Agency was in 2009. He estimates he owes [removed for posting] approximately $22,000 as at December 2012.

However, he says his income tax returns will be filed by the end of February 2013, the hold up being his ability to pay an $1,100 bill to the company that assisted him preparing his returns. [ 39 ] The father agreed on cross-examination that between January 1, 2012, and April 13, 2012, he received from his past employer, [removed for posting] $37,965.

He also confirms he received from April 11, 2012 to January 23, 2013, further amounts from other sources totalling approximately $55,000, which primarily includes a large loan from his mother. [ 40 ] The father confirms that from April 11, 2012 to January 23, 2013 he has paid only $6,057 in combined child and spousal maintenance. [ 41 ] However, the father did manage to make the required payments on the $39,000 bank debt for his 2011 Dodge Ram pick-up truck. The father confirms that he has paid more on truck payments (approximately $8,500) than he has for the Court ordered child and spousal support.

The father says that he ‘needs his truck’ but does not explain why he needs such an expensive vehicle. The father also testified he has paid $35,000 in legal fees for these proceedings, explaining that he felt compelled to because he believed the mother was “going for sole custody”. [ 42 ] The father confirms that he has many tickets and has taken many courses related to his former employment with [removed for posting], and that he would be considered a highly skilled employee for that company, and, I infer, the related industry.

He also confirms that he could get a job back with [removed for posting], and that there are other companies in the North doing similar work.

However, he states he has not looked to be re-employed with [removed for posting] despite his drastic financial situation, for the following reasons: he does not like the driving, emphasizing especially the winter driving through a stretch of the main highway called the Pine Pass, wants to spend more quality time with his children, and wants to avoid a possible negative impact he believes being away for two weeks out of four could have on his present relationship. [ 43 ] The mother, for her part, has not looked for any employment since my June 18, 2012 decision. Nor, I find, has she looked into any retraining.

She made some comments during her testimony about wanting to start looking for courses, but said that she was hindered because she was not receiving any spousal support from the father, and also because she had no vehicle. I find her testimony in this regard was self-serving and misleading.

For example, on the inability to drive because of a lack of vehicle, it was eventually confirmed on cross examination that her father had purchased her a vehicle, and although she initially provided a date she obtained this vehicle, that date did not coincide with her later testimony regarding for how long she had been driving Mr. A to and from his place of employment. She drove Mr. A to and from his work because he had been subject to a driving prohibition. The mother testified that although his prohibition ended in June, Mr. A has not taken any steps to get his license back.

The mother either would not, or could not, explain why. [ 44 ] My conclusion after the June 2012 hearings that the mother’s preference is to not work but to stay at home and look after her children when they are not in school or with their father, and also look after Mr. A’s two children, (see par. 15 June 18, 2012 Decision) has not changed. The mother agreed on cross-examination that she told the father she was raising Mr. A’s children and did not need to work. She also confirmed on cross that it was her and Mr. A’s plan for her to stay at home and look after Mr.

A’s and the parties’ children. [ 45 ] The mother agreed that she and the father both have a financial responsibility towards the children, and at one point said: “I would [work] if I wasn’t with anyone but the situation I am in does not ... put it on me...I have support from Mr. A.” I took that to mean her current situation leaves it open for her to choose not to work. [ 46 ] The mother agreed she was “quite capable of working” and had no mental or physical disability preventing her from working.

She also agreed she had taken the food safe course, and had experience in bartending and some accounting, and knew how to run farm equipment. She agreed her capability to work now is the same as it was prior to the birth of the parties’ children. [ 47 ] In her direct testimony the mother said she did have plans to go back to work “eventually”. When she does, she would like a job in book keeping or accounting.

She said in her direct testimony she was going to use her spousal support money to look for and take some financial courses. [ 48 ] A number of specific jobs currently advertised for Quesnel on the Workbc.ca website were put to the mother, including but not limited to: RBC Customer Service Representative, Safeway store clerk (3 positions), City of Quesnel Meter Reader, Wal-Mart Stockroom Supervisor, Hotel Front Desk Clerk (4 positions), and Cash Store Financial Services Customer Service Representative. She confirmed she believes she is capable of doing those, but says she will not work for minimum wage.

Minimum wage in B.C. is currently $10.25 per hour. Of the jobs she was referred to, several were minimum wage jobs, several did not have the wage posted but the responsibilities would indicate more than minimum wage would be paid (for example the Wal-mart Stockroom Supervisor job entailed supervising associates). The Book and Magazine merchandiser job paid $12.50 per hour, and the City of Quesnel Meter Reader was a

piece rate job wherein remuneration was stated to be up to $20.00 per hour. [49] What the mother says she wants is spousal support to allow her to take some bookkeeping, accounting and related computercourses to qualify her for a related job. She thinks it would take 6 months to retrain with these courses. She said: “I do not want to go toschool for 2 or 3 years before [getting out in the job market]”. [50] In regards to the shared parenting arrangement, the mother testified that she would be willing to go to a full two-week on twoweek off

schedule without a break in the middle of the father’s parenting time provided the father could ensure the children would notunnecessarily miss any school. I take from this that the original concern about transitioning the children has been dealt with and that thechildren are now comfortable going back and forth between the parents. [51] The mother said she would be willing to adjust the two week parenting regime to coincide with the father’s work scheduleshould he go back to his camp job with [removed for posting]. Specific issues to be determined: 1.

Is the mother entitled to spousal support, and if so, on what basis? 2. Is the father under-employed? 3. Is the mother under-employed? 4. What amount of child maintenance is payable? 5. If the mother is entitled to spousal support, what amount is appropriate? 6. If the mother is entitled to spousal support, what duration is appropriate? Entitlement: [52] The directive set out in s. 89 of the Family Relations Act reads as follows: 89 (1) a spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (

a) the role of each spouse in their family; (

b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (

c) custodial obligations respecting the child; (

d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (

e) economic circumstances. (2) except as provided in subsection (1), a spouse or former spouse is required to be self-sufficient in relation to the other spouse orformer spouse. [53] Madam Justice Ballance, in Wetmore v. Wetmore, 2007 BCSC 1177, reviewed the leading cases regarding the conceptualmodels for determining entitlement to spousal support, beginning at paragraph 52: 52 The Supreme Court of Canada has articulated the conceptual models for determining entitlement to spousal support in the leadingdecisions of Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, (SCC), [1999] 1S.C.R. 420.

The analyses in those decisions apply both to the Divorce Act and the B.C. Family Relations Act. In Moge the Courtemphasized that the current Divorce Act represented a shift away from the needs and means test embodied in its predecessor as theexclusive criterion to determine spousal support. The current legislation contains a much broader spectrum of considerations. 53 All of the objectives set out in s. 15.2(6) are to be taken into account by the Court. The question of Ms. Wetmore's self-sufficiencywas a major issue at trial.

The self-sufficiency of a spouse is a goal to the extent that it is practicable in the unique and particularcircumstances. In determining what might be practicable in promoting self-sufficiency for a particular spouse, the Court is to conduct anindividualized enquiry and consider all of that spouse's circumstances including age, gender, skills, education, opportunity for retrainingand the realistic prospect that he or she will find a job enabling him or her to become self-sufficient: Tedham v.

Tedham 2005 BCCA502. 54 In Moge the Court introduced the notion of entitlement to spousal support based on compensatory principles. It stated that thepurpose of spousal support is to relieve the economic hardship that results from a marriage or its breakdown. Compensatory support ismeant to recognize that when a marriage is over, the spouses are entitled to be compensated for contributions to it and for losses incurredon its breakdown.

An underlying premise is that the financial cost of one spouse's lost economic opportunity resulting from a jointdecision for the spouse to remain at home and raise children, ought to be borne evenly by the spouses when the marriage breaks down. InMoge the Court acknowledged the reality that curtailing outside employment has a significant and adverse impact on a spouse's futureearning capacity. 55 If the Court finds a spouse is entitled to compensatory support, then the future prospects of that spouse do not affect the award:Borgstrom v. Borgstrom, 2004 BCSC 605; Tedham, supra.

In Tedham, the Court observed that a compensatory award should continue

until compensation has been achieved even where the recipient spouse has attained a degree of self-sufficiency. 56 The Court in Bracklow expanded the conceptual basis of support to encompass non-compensatory or needs based and contractual principles. Need alone of one spouse may be enough to establish entitlement to support, although it does not inevitably follow that the quantum or duration of spousal support must fully address those needs: Bracklow, supra; Pedersen v. Pedersen, 2004 BCSC 1627 .

Even if entitlement to support is based on need, it may be unfair to order support to fully meet that need for an indefinite period: Kripps v. Kripps , [1999] B.C.J. No. 1343 (S.C.) . In assessing need, if the financial means are available, then the appropriate standard of living to look at is a reasonable standard bearing in mind the standard of living enjoyed during the marriage. 57 In Bracklow the Court held that all of the factors and objectives of spousal support, not merely the means and needs of the spouses, must be considered in assessing quantum.

Earlier in Moge , the Court had expressed the notion that the spouses should be placed in a position close as possible that they enjoyed before the marriage breakdown. The longer the marriage, the greater will be the presumptive claim for equal standards of living on marriage dissolution.

The lack of accumulated assets will also be an important factor. 58 The bases of entitlement for spousal support namely, contractual, compensatory or needs based, or a combination, will influence the quantum and duration of a support award. [ 54 ] I confirm my earlier finding in the June 2012 hearing for interim spousal support, that the parties agreed, either expressly or impliedly, that the mother would stay at home to look after the children and the father would be the sole wage earner. The mother was out of the workforce for the eight years from the birth of their first child to the date of separation.

Both parties are now 33 years old. During those eight years, the father did an excellent job supporting the family financially and at the same time furthered his career. He agrees he now has the ability to earn an income of approximately $90,000 per year, if working for his past employer, [removed for posting]. During the time that he was working and furthering his career he had the comfort of knowing the children were well looked after.

However, while undoubtedly enjoying the challenges of day-to-day childcare, the mother gave up the opportunity during those years to establish a career for herself. [ 55 ] I am cognizant of the fact that when the parties met, the father was already working in the oil industry and making a good wage while the mother’s work history and experience was limited to a series of relatively low-paying entry-level jobs of short duration. However, given the couples’ young age at the time they got together, this is understandable.

Although the parties are the same age, the father had been out of school, and in the workforce, for more years than the mother, given he has only a grade 8 education and she graduated grade 12.

Given the mother had only approximately 4 years in the workforce after graduation before the birth of the couple’s first child, comparing the father’s career success obtained at a young age to the mother’s lack of career traction prior to her becoming a stay at home parent does not lead to a conclusion her career future would have been limited in any event. [ 56 ] I confirm my earlier finding that the mother suffered an economic disadvantage as a result of the parties’ agreement that she be a stay at home parent for their two children.

As a consequence, the mother is entitled to spousal support on a compensatory basis. [ 57 ] However, I do not find that she is entitled to spousal support on a non-compensatory (needs) basis. I come to this conclusion in consideration of my finding below that the mother is voluntarily unemployed and also on the basis that she is being supported by her current common-law spouse, Mr. A. [ 58 ] In the June 2012 hearing Mr. A confirmed that he viewed his relationship with the mother as long term. The mother confirms this as well. Mr.

A stated he was in the process of putting the parties’ children on his work health benefit plans. The mother confirmed in the present hearing that the parties’ children are now registered on Mr. A's plan. [ 59 ] I recognize that it is often the case that the willingness of a new spouse to assist financially does not automatically remove the obligation of a payor spouse’s obligation under

section 89. However in this case, Mr. A has been receiving a significant benefit from the mother through her care of his children as opposed to having to pay for day-care. The mother and Mr. A both state this is their ongoing plan. Consequently, taking into consideration his income and willingness to assist the mother financially is appropriate. I find the mother's standard of living is at least on par with what it was when she resided with the father.

She is no longer residing in a 1971 manufactured home owned by the father’s mother, but is residing in a 3400 square-foot four-bedroom home with a shop on a significant acreage. Consequently, she is not entitled to spousal support on a ‘needs’ basis. [ 60 ] It is possible, given the relative newness of her approximately 1 year relationship with Mr. A, that the relationship may not evolve into the long term relationship Mr. A and the mother hope and predict that it will.

If it does not, the mother’s entitlement to spousal support could then very likely be on a non-compensatory (needs) basis as well as the compensatory basis. [ 61 ] However, the quantum and duration of spousal support in this case will be such that a needs-based award will be subsumed in the compensatory based award. [ 62 ] I come to that conclusion given the parties young age of 33, (32 at the time of separation), the short duration of their common law relationship, and even shorter amount of time the mother was out of the workforce for the purpose of looking after the children (8 years up to the date of separation).

I also take into consideration the parties’ standard of living while together. Although the mother properly describes it as comfortable, and they enjoyed outdoor activities together, their standard of living was far from lavish. They lived in a very dated mobile home, had few assets, and had significant vehicle debts. The mother says they were both very poor money managers. The pre-separation standard of living will certainly be re-attainable for the mother within the time frame captured by a compensation based award.

A factor I consider in this regard is that the parties are now sharing child caring responsibilities for their school aged children equally on a 2 week rotating basis. Is the father and / or mother under-employed? [ 63 ] In determining whether the father and / or the mother are earning to an appropriate capacity, I am guided by Madam Justice

Martinson’s very helpful and oft-cited decision in Hanson v. Hanson, (BCSC), which I reproduce in significant partas follows: LEGAL PRINCIPLES - IMPUTING INCOME Statutory Provisions [7] Section 19(1) of the Guidelines allows the Court to impute such amount of income to a parent as it considers appropriate in thecircumstances. One of the circumstances is that the parent is intentionally under-employed or unemployed. (s. 19(1)(a)) The Concept of Imputing Income [8] Parents have a joint and ongoing legal obligation to support their children. In order to meet this legal obligation, a parent must earnwhat the parent is capable of earning.

Section 26.1(2) of the Divorce Act says that the Guidelines "shall be based on the principle thatspouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute tothe performance of that obligation." [9] Imputing income is the way in which the Court gives effect to the legal requirement that a parent must earn what the parent iscapable of earning. The British Columbia Court of Appeal in Van Gool v.

Van Gool (BC CA), (1998), 166 D.L.R.(4th) 528, pointed out that the income imputing provisions in the Guidelines are similar to pre-Guidelines tests based on capacity. Thatis, the Court must consider not only the amount of income a spouse actually earns, but "the amount of income a spouse could earn ifworking to capacity." (at para. 28) Meaning of "Intentionally" in section 19(1)(

a) of the Guidelines [10] Section 19(1)(

a) of the Guidelines requires that before income can be imputed, the Court must find that the person is intentionallyunder-employed or intentionally unemployed. There has been some judicial debate about the meaning of the word "intentionally." Isbad faith required? That is, is a specific intent to evade child support obligations required? [11] No such requirement is found in s. 19 itself. The Court of Appeal's conclusion in Van Gool that the obligation to pay child supportis based on capacity to earn, supports the view that bad faith is not required.

To reach a conclusion that it is required would be tomisconstrue the purpose of the Guidelines. [12] They are not designed to punish parents who try to avoid child support payments. Instead, the Guidelines are designed to establisha fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. (s. 1(a)) [13] Therefore, bad faith is not required. The parent required to pay is intentionally under-employed if that parent chooses to earn lessthan he or she is capable of earning.

The parent required to pay is intentionally unemployed if he or she chooses not to work whencapable of earning an income. General Principles Relating to Capacity to Earn Income [14] The following principles apply when determining capacity to earn an income. (See Dr. Julien D. Payne, Imputing Income,"Determination of Income; Disclosure of Income", Child Support in Canada, Danrab Inc., August 3, 1999.) 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work.

It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor." (Van Gool at para 30.) 2. When imputing income on the basis of intentional under-employment, a Court must consider what is reasonable under thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. 3.

A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower endof the wage scale, Courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simplybecause the parent cannot obtain interesting or highly paid employment. [Emphasis added] 4. Persistence in unremunerative employment may entitle the Court to impute income. 5.

A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.[Emphasis added] 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [Emphasis added] [15] Professor James G.

McLeod has commented on the concept of attributing income when a parent changes jobs or a career. (SeeAnnotation, 1999 ABQB 221 , 45 R.F.L. (4th) 1.) In his opinion, Courts have been too willing to attribute income withoutregard to whether a parent can actually earn money within the immediate future. [16] He suggests that a Court should attribute income following a career/job change only if the change was unreasonable in thecircumstances or undertaken to defeat support. He argues that in attributing income, Courts expose a paying parent to quasi-criminalsanctions if he or she cannot make the payments.

He says that a Court should not expose a person to such sanctions without some

evidence that he or she has acted improperly or at least unreasonably. [17] I agree that income should not be imputed when a change was reasonable in the circumstances. Reasonableness must be assessed in light of the joint obligation of parents to maintain their children and the requirement that a parent must earn to his or her ability. The general principles relating to income earning capacity, set out above, must be applied. [Emphasis added] [18] Professor McLeod focuses on fairness to the paying parent and the detrimental consequences that the attribution of income can have for that parent.

The failure of a parent to earn to the parent's ability can also operate unfairly, with significant detrimental consequences for children. [Emphasis added] Deciding Whether a Person is Working to His or Her Capacity [19] How does the Court decide whether a person is earning to his or her capacity? The Court should be provided with information about the parent's capacity to earn and the parent's present income earning situation. The two can then be compared. [20] There are two aspects to a parent's capacity to earn.

The first is what the parent is capable of earning based age, education, experience, skills and health. The second is the job opportunities that are realistically available. The Father’s employment: [ 64 ] In this case I am forced to conclude the father’s decision to leave his $90,000 plus per year job with [removed for posting] has not proven reasonable in the circumstances. His reasons for doing so do not justify the dire financial impact his decision has had on both himself and the mother that will continue to have a negative impact on the best interests of the children.

An early example of the negative impact on the children was the repossession of the mother’s Jeep. The parties deemed it necessary for both to have a vehicle when they were together. It is reasonable that it is at least as equally important they both have access to a vehicle now that they are separated. Because of the father’s under employment and failure to pay Court-ordered support, the mother's parents were required to purchase her a vehicle.

The father’s self-induced significant underemployment has resulted in he being unable to even support himself. [ 65 ] The father’s actions subsequent to my June 18, 2012 Decision, which includes rendering himself primarily unemployed, not following Court Orders, and indicating to the Court that to obtain reasonable local employment he needs to re-train by obtaining his grade 12 and/or by getting his class I drivers license, amounts to self- sabotage of the opportunity to show leaving his camp job with [removed for posting] to obtain local employment was reasonable in the circumstances. [ 66 ] The reasons provided by the father for leaving his job with [removed for posting]: avoidance of winter driving, spend more time with the children, avoidance of possible detrimental impact on future relationships, do not in themselves justify the reduction in income even if the father had remained employed with [removed for posting]. [ 67 ] I note, of the three reasons given, only one is directly related to the best interests of the children.

Now that the parents have agreed upon an equal shared parenting regime, the children will have the benefit of their father’s parenting for approximately 50% of their time. The father has properly not suggested that the children would be better off spending more than 50% of their time with him, with the consequent reduction in the time they spend with their mother. The parenting

schedule happens to coincide with the father’s work

schedule should he return to work with [removed for posting]. He conceded that any parent-teacher interviews scheduled during his working time could likely be rescheduled. Given the separation, the parties are going to be forced to make adjustments to share special days and holidays with the children. [ 68 ] In regards to the father's concern about winter driving, I note winter driving is a fact of life for all residents living in northern BC. I also find his concern about driving the Pine Pass, which is located on the main Highway heading north of Prince George, is overstated.

Many persons, including judges in the Cariboo Northeast Judicial District of the BC Provincial Court, drive through the Pine Pass in the winter regularly. The father's work

schedule with [removed for posting] had him driving the stretch of highway that includes the Pine Pass approximately 2 times each month. The father's concern about winter driving did not justify his decision to leave his long term, secure, high-paying employment with [removed for posting]. [ 69 ] Similarly, the father's concern about a possible negative impact working away in camp for two weeks out of four may have on future relationships does not justify quitting his job. When adults decide to become parents, some sacrifice in personal interests are properly expected for the benefit of the children.

British Columbia is a resource-based province with a long history of remote employment locations requiring employees to live in camps while working. A significant reduction in income as in this case, especially coming at a time of significant and emotional transition in the children's lives, cannot be justified on speculative concerns about a possible negative impact on future relationships. [ 70 ] I impute the father’s income to be $90,000. I find this amount is fair given this was a figure suggested to him by Mr.

Levine, legal counsel for the mother, at the June 2012 hearing, and the father agreed he could reasonably expect to earn this from [removed for posting]. The father also agreed at both hearings that he could return to work for [removed for posting]. [ 71 ] This imputation of income will not be retroactive. The mother is not asking for retroactive imputation but is only asking that the father adhere to the June 18, 2012 Interim Order pending this decision. The father for his

part is properly not asking for a reduction in the accumulated child and spousal support arrears. The Mother’s Unemployment: [ 72 ] The facts as set out earlier lead to the inescapable conclusion the mother is intentionally unemployed. She confirms she has

work skills that qualify her for most of the jobs that were suggested to her by Mr. Chudiak during cross-examination. Those jobs weretaken from job postings for the Quesnel area and therefore are reasonably available. [73] A separated payor spouse cannot avoid his or her financial obligations for the reasonable and necessary support of children ofthe first relationship on the sole basis of electing to move in with another person who has young children. See McCaffrey v. Paleolog,2011 BCCA 378, where, at paragraph 49, Mr. Justice Chiasson, for the Court, stated: 49.

This Court has concluded that a desire simply to stay home with children is not sufficient to invoke the exception in section 19(1)(a) [Child Support Guidelines]. There must be evidence of the needs of a child which require the parent remain home and unavailable foremployment. [74] In regards to ‘the needs of the child’ that would justify a payor parent staying at home and not working, Mr. Justice Chiassonsaid the following, at paragraph 47: 47. In Llewellyn, this Court, following Van Gool, made it clear that a payor parent must establish that the needs of the child requirethe parent to stay home.

In para. 31, Madam Justice Huddart stated: I have been unable to find a case where this factual situation has come before this Court. However, I find guidance in the reasons of Madam Justice Prowse in Van Gool v. Van Gool CA023712, 30 October 1998 (1999), 1999 BCCA 188 , 44 R.F.L. (4th) 331.She considered s. 19(1)(

a) in the context of the analysis Courts have long undertaken in considering the liability of parents for supportunder the pre-Guidelines statutory provisions before concluding that a mother's desire to be “available” for her son before and afterschool was not sufficient reason to justify under-employment, in the absence of evidence of a child's special need. She projected anappropriate income at $19,000 annually and ordered the mother to pay child support for two other children in their father's custody at thetable amount for that income of $282 monthly. I would impute income of $18,000 to Ms.

McCrae in the absence of any evidence ofspecial need on the part of any of the children. ... [Emphasis added]. [75] In the case before me there is no evidence that the children have special needs that would justify the mother’s under-employment. [76] I find that the mother is capable of obtaining reasonably available full-time employment at a rate of $13.00 per hour. Consequently, I impute employment income to mother in the amount of $27,040 per year.

Child Maintenance: [77] Using a simple set off method where the father's income is $90,000 per year, resulting in a Child Support Guidelines obligationfor two children at $1,345 per month, and the mother's income is $27,040 per year, resulting in a Child Support Guidelines obligation fortwo children at $420.49 per month, the father will pay to the mother the amount of $925 in monthly child support commencing March 1,2013, and payable on the first of each month thereafter. Spousal Maintenance: [78] Regarding the application of the Spousal Support Advisory Guidelines , Madam Justice Prowse, in McEachern v.

McEachern(above), stated at paragraph 60 for the following: 64. As has been stated by this Court on prior occasions, the Advisory Guidelines are simply guidelines; they are not law. The formulasneed not be so lavishly adhered to by judges, who must always have regard to the particular facts before them. Those facts may disclosevalid reasons why the Advisory Guidelines are not of particular assistance in a given case, or why an award may justifiably be greater orless than that set out in the applicable formula.

But, it is fair to say that the Advisory Guidelines have been accepted by this Court, and bythe trial Courts, as a useful tool in determining the appropriate range of awards in most cases. In Redpath v. Redpath, [2006] B.C.J. No.1550, 2006 BCCA 338, this Court went so far as to indicate that an order of spousal support which falls substantially above or below thesuggested range could give rise to an error in law, unless a reasonable explanation was provided for the discrepancy. This isunderstandable since, as stated by this Court in Yemchuk v. Yemchuk, [2005] B.C.J.

No. 1748, 2005 BCCA 406 (at para. 64): “... theAdvisory Guidelines are intended to reflect the current law, rather than to change it.” At this stage in their development, the AdvisoryGuidelines are not a substitute for relevant authorities, but a supplement to them. [79] In the case of Kelly v. Kelly, 2007 BCSC 227, Justice Barrow dealt with cross applications to vary spousal support. The payor,Mr. Kelly, wanted to terminate spousal support on the basis of the remarriage of the recipient, Ms. Kelly. Justice Barrow found that theGuidelines offered little assistance in the circumstances of remarriage.

At paragraph 54 he noted the following: 54. The Guidelines similarly offer limited assistance when a variation is sought based on the remarriage of the recipient spouse. At c.10.7 the authors note: The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much andwhen and why are less certain. There is little consensus in the decided cases. Remarriage does not mean automatic termination of spousalsupport, but support is often reduced or suspended or sometimes even terminated.

Compensatory support is often treated differently fromnon-compensatory support. Much depends on the standard of living in the recipient's new household. The length of the first marriageseems to make a difference, consistent with the concepts of merger overtime. The age of the recipient spouse also influences outcomes. In particular fact situations, usually at the extremes of these sorts of factors, we can predict outcomes. For example, after a short tomedium first marriage, where the recipient spouse is younger and the support is non-compensatory and for transitional purposes,

remarriage by the recipient is likely to result in termination of support. At the other extreme, were spousal support is being paid to an older spouse after a long traditional marriage, remarriage is unlikely to terminate spousal support, although the amount may be reduced. An ability to predict in some cases, however, is not sufficient to underpin a formula for adjustment to the new spouse’s or partner’s income. Ideally a formula would provide a means of incorporating some amount of gross income from the new spouse or partner, to reduce the income disparity under either formula.

Any such incorporation could increase with each year of the new marriage or relationship. Where the recipient remarries or re-partners with someone who has a similar or higher income than the previous spouse, eventually - faster or slower, depending upon the formula adopted - spousal support would be extinguished. Where the recipient remarries or re-partners with a lower income spouse, support may continue under such a formula until a maximum durational limit, unless terminated earlier.

For the moment, however, we have been unable to construct a formula with sufficient consensus or flexibility to adjust to the situations. This is a fertile area for further discussion in the next stage of the project, especially as people become comfortable with the basic concepts of the advisory guidelines.

For now, we have to leave the issues surrounding the recipient’s remarriage or re-partnering to individual case-by-case negotiation and decision-making. [ 80 ] In the present case, the parties’ – and in particular the mother’s – recent re-partnering is a factor more relevant to duration, given the compensatory nature of the entitlement. I proceed using the Spousal Support Advisory Guidelines basic ‘with children’ formula for shared custody (See SSAG s. 8.6). [ 81 ] The detailed information regarding deduction rates for the father is not available given his failure to file income taxes.

Similarly, this information is not available for the mother whose income is wholly imputed. Mid-trial the parties agreed to a Consent Order that the mother would receive the Child Tax Benefit. However, the amount will have to be estimated consistent with her imputed income. [ 82 ] I proceed using a deduction rate for the father of 25%.

This rate was determined by using the CRA net income calculator and takes into consideration a 30% rate prior to CPP and EI being paid in full and a 23% rate after CPP and EI are paid up to the limits. [ 83 ] For the mother’s $27,040 imputed income I use a 17% deduction rate obtained from the CRA net income calculator for pre CPP and EI limit deductions. [ 84 ] Given the parties are sharing parenting on an approximate 50 / 50 basis, it is appropriate to use the full table amount of child support for purposes of determining the Individual Net Disposable Incomes for spousal support purposes (See SSAG 8.6). [ 85 ] The father’s INDI : (individual net disposable income) for purposes of spousal support is calculated as follows: - Annual income of $90,000 less deductions at 25% ($22,500) = $67,500 net disp. income. - $67,500 - annual full table amount of child support of $16,140 ($1,345 x 12) = $51,360 . [ 86 ] The mother’s INDI : - Annual income of $27,040 less deductions at 17% ($4,597) = $22,443 net disp. income. - $22,443 – notional full table amount of child support of $5,046 ($420.49 x 12) = $17,397. - $17,397 plus est.

Child Tax Benefit* $6,912 ($576 month x 12) = $24,309 *The Child Tax Benefit is an estimate obtained from the CRA website calculator based on a separated BC recipient with the income imputed to the mother. [ 87 ] Calculations of High and Low Range: Combined INDIs: $51,360 + $24,309 = $75,669 Low Range: 40% of combined INDIs: (.4 x $75,669) = $30,268 $30,268- $24,309 (mother’s INDI) = $5,959/yr = $496.58 /month High Range: 46% of combined INDIs: (.46 x $75,669) = $34,808 $34,808-$24,309 (mother’s INDI) = $10,499/yr = $875.00 / month Amount and Duration: [ 88 ] I have decided it is inappropriate at this stage to set a fixed duration.

There is too much uncertainty in the parties’ lives to be able to do so. That uncertainty relates both to their employment and the stability of the new re-partnering arrangements they have both

entered into. However, it is appropriate to make some comments about the general expected range of duration given the compensatory basis for the spousal support award set out below. [ 89 ] As stated earlier, it would be an error to conclude that because the mother had not obtained any career traction prior to becoming a stay at home parent, her long term employment prospects would have in any event been limited.

However, the mother’s lack of career prior to the birth of the parties’ first child is a factor to appropriately consider. [ 90 ] It would be an error to wholly relate the compensatory nature of this claim to the difference between the mother’s current earning capabilities and the father’s. The father had established a career working in the oil patch prior to the parties’ decision to cohabitate. It was the mother's recollection that the father earned approximately $76,000 on or about the time they were living together prior to having children. I have imputed the father’s current earning capability to be $90,000.

Although he has gained experience and skills that will make it easier for him to obtain employment in the gas and oil industry, the amount his income has increased over the years has not been dramatic. [ 91 ] Although I conclude that the mother suffered an economic loss as a result of the parties’ mutual decision that she be the stay-at- home parent, the above mentioned factors have the effect of pushing the award toward the lower end of the range. [ 92 ] However, I also conclude that the durational range - given the mother’s apparently modest career aspirations, her personal retraining plan, the fact that the children are already attending school, the shared parenting regime, and also given the young age of the parties themselves, in particular the mother, – would, even in the absence of re-partnering, most likely be at the low end of the ranges contemplated by the ‘soft tests’ referred to in the Spousal Support Advisory Guidelines (see SSAG s. 8.5.1) If the mother’s current re- partnering proves, as both she and Mr.

A expect, to be secure and long-term, then, barring a significant change in circumstances, a reasonable review date to consider the appropriateness of termination would be in approximately 40 months from the date of this decision, resulting in an approximate overall duration including the period covered by the Interim Order, of about 4 years.

The relatively short anticipated duration of the award has the effect of pushing the amount up towards the higher end of the range, given the compensatory basis for the award. [ 93 ] In consideration of all of the above, I have concluded the appropriate amount for monthly spousal support should be $675 per month. [ 94 ] This support order is subject to variation only upon a material change in circumstances.

Material circumstances would not include non-significant adjustments in the monetary assumptions I have been forced to make as a result of the lack of evidence presented, including the estimate of the Child Tax Benefit. Given the compensatory basis for the award, a material change in circumstances would not include non-drastic increases or decreases in the father’s or mother’s incomes as imputed.

Summary of Order: [ 95 ] The Interim Order dated June 18, 2012 is replaced with the following Final Order: - Based upon the father’s imputed annual income of $90,000, and the mother’s imputed annual income of $27,040, and by way of simple set off, the father will pay to the mother for the support of the two children, the sum of $925 commencing March 1, 2013 and payable on the first of each month thereafter. - The father will pay spousal support to the mother in the amount of $675 commencing March 1, 2013, and payable on the first of each month thereafter. - The mother will receive the Canada Child Tax Benefit. [ 96 ] Mr.

Levine, counsel for the mother, will draft the Order, with the appropriate usual references to the parties and their children. ___________________________________ R. D. Morgan Provincial Court Judge