E.M.C. v. T.C.K. Date:, 2016 BCPC 134

Citation: E.M.C. v. T.C.K. Date: 20160518 2016 BCPC 0134 File No: 15351 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.M.C. APPLICANT AND: T.C.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. Gillian Oliver

Counsel for the Respondent: Mr. Nathan Wahoski Place of Hearing: Kamloops , B.C. Date of Hearing: March 9, 2016 Date of Judgment: May 18, 2016 [ 1 ] This is an application to vary my order of June 1, 2015. At that time, income was imputed to T.C.K. based on his intentional underemployment. Since then, the biological father of his stepchild, N.E.C., has begun paying child support and T.C.K.’s income is less than it was imputed in June 2015. E.M.C. opposes the application because T.C.K. filed his application only three months after the order was made. E.M.C. believes he is attempting to get a different decision.

Ms. Oliver argued that when the court imputes income, there is an expectation that the person can earn that income. T.C.K. is now doing truck driving again. With respect to N.E.C.’s father, while there has been some significant funds received, he also owes significant arrears. His payments are unexpected and inconsistent without a sufficient period of time to demonstrate a change in circumstances. [ 2 ] T.C.K. testified that he is now a long haul truck driver working for [omitted for publication] in Salmon Arm. He commenced this employment in January 2016.

Because of the downturn in the oil industry, T.C.K. said that the expected rates and consequent pay have been lower than expected. [ 3 ] In acquiring this employment, T.C.K. said that he began submitting applications for various jobs in July 2015. He began talking to neighbours about the oil crash and matters becoming worse. He was applying for heavy equipment and truck driving jobs. He applied for “just about everything that would give me a rotation and not require me to move away”. He applied to well over 100 jobs, including logging jobs, truck driving, road building and other driving jobs.

In September, having reached no level of success with local jobs, he started applying for long haul positions. He submitted his applications to major trucking companies in British Columbia and Alberta. [ 4 ] T.C.K.’s employment involves an unpredictable work schedule. It takes him away from home two to three weeks at a time. When there is a breakdown, he can be away for even longer periods of time.

This has been made more complicated, he claims, by E.M.C.’s inflexibility with his schedule. [ 5 ] T.C.K. expects that earning $4,000 per month is a perfect month with no delays and no downtime due to lack of work or breakdowns in the vehicle. He does not intend to drive as much as he has previously because he requires time off to spend with his daughter.

He felt it was different when they were together because he would be home for a day or two at a time. [ 6 ] In cross-examination, T.C.K. acknowledged that he earned between $57,000 and $69,000 as a long haul driver while living with and co-parenting M.A.K., his daughter. His reason for not earning the imputed income he attributes to the oil industry. He also said he worked longer periods of time which he is not prepared to do given that he no longer resides with his daughter.

He has already missed his weekends with his daughter because of breakdowns and weather issues. [ 7 ] T.C.K. persists in wanting to end his obligation to support his stepson, N.E.C. Previously it was because he had no contact with N.E.C. after one half-hearted attempt to spend camping time with him. Now it is because E.M.C. has received some money from N.E.C.’s biological father. [ 8 ] E.M.C. has learned that her health issues will prevent her from working the physical hours required for horticulture, which had been her initial retraining goal.

She is undergoing medical testing to determine if she has lupus or fibromyalgia. Instead, she hopes to start a course once M.A.K. is in Kindergarten. The course is for work as a human resources and community support worker. This will be to work with physically and mentally disabled people of all ages. It will be an 18 month, part-time course. [ 9 ] She also testified that T.C.K. was, as of March 7, in arrears for $7,577.48 in child support and had not paid spousal support since August 2015. [ 10 ] As of May 2015, Mr. C., who is N.E.C.’s father, owed E.M.C. $66,000.

Payments have been received since then reducing his arrears to $56,652.81 as of February 2016. [ 11 ] E.M.C. confirmed that she had received significant funds from Mr. C. to reduce his arrears but did not know whether she could expect the same in 2015.

The Family Maintenance Enforcement Program was collecting this money from him for her and she had no knowledge of what the source of income would be. [ 12 ] Since the last hearing, E.M.C.’s expenses have not changed, nor had her assets, other than some funds she had put into an RESP and N.E.C.’s bank account. [ 13 ] E.M.C. insists that she has accommodated T.C.K. having parenting time with M.A.K. She claims she has adjusted the

schedule to meet his needs. When his truck broke down in mid-January, he requested some alternative time which did not accommodate E.M.C. and N.E.C. She has offered him twice to have M.A.K. for an extra day, which has not been accepted. She has been unreasonable in some instances. She testified that when T.C.K. texted her the prior Friday to change his pick-up time to Saturday, she agreed so long as he returned M.A.K. at the usual time. He wanted to return her a day later and E.M.C. said she was not comfortable with that. That is nonsense. She should be accommodating those adjustments given the unpredictable

schedule and nature of his work. E.M.C. claimed that she was concerned T.C.K. was taking M.A.K. on the road and she was not comfortable with this. [ 14 ] Leaving aside the issues of insurance, liability and permission from the employer, there should be no reason that T.C.K. cannot exercise the common sense of any parent to determine whether it is safe to take M.A.K. with him. If E.M.C. persists in being this

intractable with respect to T.C.K.’s availability to spend quality parenting time with his child, she may well be facing an application to vary that parenting time. It is not relevant to the child support question. [ 15 ] Mr. Wahoski’s submissions were targeted toward challenging the rationale of the decision I made in June 2015. I am not prepared to revisit that decision.

The only issue before me is whether there has been a material change in circumstances that would warrant reducing T.C.K.’s child support obligations for M.A.K. and cancelling his child support obligations for N.E.C. [ 16 ] As of the date of this hearing, T.C.K. had only been employed as a long haul truck driver again for two months. That is not sufficient time to establish a material change in circumstances from a decision made only in June 2015, six months prior to him obtaining this work. The oil industry, which has reduced his income expectations as a long haul truck driver, may well resurrect itself.

It may also not resurrect itself. T.C.K. may continue to work long haul or he may continue to look for a local equipment operating job. There are many variables which may or may not impact his income. In the meantime, there has not been sufficient time to assess whether he will do any of these things or none of them. At this point, I am not satisfied there has been a material change in circumstances to warrant reducing his child support obligations. [ 17 ] Similarly, with respect to the payments received from Mr.

C., E.M.C. has no reasonable expectation that these child support payments will continue through 2016. However, she is not entitled to a windfall but to reasonable child support from the biological and stepfathers of N.E.C. A single year of successful activity from the Family Maintenance Enforcement Program will not establish a pattern adequate to constitute a material change in circumstances. Should payments continue in the significant sums as received in 2015, though, T.C.K.’s obligations for N.E.C. must be reduced. I caution that the reduction of arrears does not equate to ongoing obligations by Mr.

C. to child support for N.E.C. [ 18 ] There is a further change on the horizon for both parents of M.A.K. M.A.K. will be starting Kindergarten in the fall. T.C.K. expects to move to Chase when this happens. E.M.C. will also be starting school when this happens. At the end of her 18 month course, she will presumably have some form of employment. Further, since her school will be only part time, I expect that she will have employment to support herself during her schooling.

This will be made possible because M.A.K. will be in school. [ 19 ] All of this together with a more certain assessment of T.C.K.’s income earning ability as well as a proper investigation into Mr. C.’s source of income may well constitute the material change in circumstances that T.C.K. must establish before I am prepared to, or before any court should, vary my order. [ 20 ] As I said in my decision of June 1, 2015, the spousal support order is reviewable upon M.A.K. commencing school. By that time, E.M.C. must expect to have a very clear picture of what she will be doing and how she will be earning income.

She was to use the time between now and M.A.K. entering school to retrain and look for gainful employment. She can expect that T.C.K. will be relying upon that expectation to ensure the spousal support obligations are revisited. [ 21 ] T.C.K.’s application is dismissed with liberty to reapply not sooner than January 1, 2017. By that time, the economic picture for both parties will be clearer and more certain. _____________________________ S.D. Frame Provincial Court Judge