P.A.B.H. v. C.A.B. Date:, 2015 BCPC 348

Citation: P.A.B.H. v. C.A.B. Date: 20151117 2015 BCPC 0348 File No: 15636 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: P.A.B.H. APPLICANT AND: C.A.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Ms. H .

Appearing in person: Mr. B . Place of Hearing: Victoria , B.C. Date of Hearing: November 2, 2015 Date of Judgment: November 17, 2015 The Issue [ 1 ] In this case, the parents have agreed that each will have equal parenting time and that neither will be liable to pay child support. On this application, one parent seeks an order that the other pay child support. [ 2 ] As will become apparent: a. the existing agreement is not determinative of the obligations of the parents; b. the child support tables contained in the Federal Child Support Guidelines SOR 97-175 are relevant to, but not determinative of, the application; c.

section 150 of the Family Law Act SBC 2011, c 25 requires me to exercise a discretion as to whether the Guidelines ought to be applied in these circumstances; d. if I conclude that the Guidelines ought to apply in this case,

section 9 of the Guidelines requires me to exercise a discretion as to whether and how to make use of the child support tables. e. the primary factors in the exercise of the discretion are: (

i) to ensure, so far as possible, that the child’s standard of living is roughly equivalent in the home of each parent; and (ii) to reach a result which is fair to both parents. The Circumstances [ 3 ] Ms. H. and Mr. B. are the parents of one child, B., now age 14. Ms. H. applies for an order for child support. [ 4 ] Ms. H. and Mr. B. married in 2002, separated in 2005 and are now divorced. On January 17, 2007, they executed a separation agreement, which included the following terms: a. Mr. B. and Ms. H. would be B.’s joint guardians; b. B. would reside with Mr. B., and Ms.

H. would have “liberal and generous access” to B.; c. “The parties shall share all of [B.’s] costs equally including special or extraordinary expenses such as daycare.” [ 5 ] Ms. H. and Mr. B. have succeeded where many parents have failed. Although their relationship ended in divorce, they have cooperated admirably in caring for B. In recent years, matters have evolved to the point where B. plans to reside with each parent in alternating weeks, with the result that he will spend approximately half of his time with each parent.

Until quite recently, circumstances prevented the full implementation of that plan, but it is likely to be fully implemented from this point forward. [ 6 ] Over the years, each parent has incurred expenses to care for B. Until Ms. H. filed her application on April 7, 2015, neither parent sought any contribution to those expenses from the other. Because B. lived exclusively with Mr. B. in the early years after separation, and primarily with Mr. B. until quite recently, it is likely that Mr. B.’s expenditures for his care were substantially higher than those of Ms.

H. [ 7 ] In 2007, the parents’ incomes were roughly equal. [ 8 ] Ms. H. has been on parental leave since December, 2014. She will return to work in December, 2015. When she is working, she works 24 – 32 hours per week, at $16 per hour, as a cashier in a grocery store. Her annual income in that capacity was $27,411 in 2013 and $25,012 in 2014. She has applied for a full-time position with her current employer, but has not yet been awarded that position. [ 9 ] Mr. B. now earns about $57,000 per year as a deputy sheriff. [ 10 ] Each of Ms. H. and Mr. B. has a new life-partner. Ms.

H.’s partner is a letter carrier, who earns about $52,000 per year. Ms. H. gave birth to their first child in December, 2014. Mr. B.’s wife is enrolled in the first year of a 3-year degree program at the University of Victoria law school. They have no children. [ 11 ] Neither Ms. H. nor Mr. B. has any substantial assets. Ms. H.’s family lives in a rented apartment, for which they pay $1250 per month. Mr. B. and his wife live in a house which they rent from her parents for $1700 per month. Mr. B. agrees that market rent for that house would probably be somewhat higher.

Jurisdiction [ 12 ] Section 148(3) of the Family Law Act provides: On application by a party, the court may set aside or replace with an order … all or part of an agreement respecting child support if the

court would make a different order on consideration of the matters set out in

section 150…. I discuss

section 150 below. [13] Section 148(3) enacts a significant change in the law. The Family Relations Act (the predecessor to the Family Law Act) did notempower the courts to vary child support agreements: Pooley vs Johnston [1999] BCJ No. 1247; Ward vs Ward [2002] BCJ No. 400;2002 BCSC 252. [14] It also useful to note that the statutory conditions precedent to jurisdiction to vary an existing order for child support undersection 152(2) do not apply to an application to vary an existing agreement for child support under section 148(3).

So, for example, onan application under section 148(3), it is not necessary to demonstrate a material change in circumstances; it is only necessary to considerwhether the agreement provides “… reasonable arrangements for the support of the child.”: section 150(2). [15] The difference between an application under section 148(3) and an application under section 152(2) derives from two distinctlegal principles: a. “[C]hild support is the right of the child and as a result, a parent cannot barter away the child's right to support in a settlement agreement.”: DBS vs SRG 2005 ABCA 2 , [2005] AJ 2; 2005 ABCA 2; 249 DLR (4th) 72; 7 RFL (6th) 373 @ paragraph 18; affirmed @ 2006 SCC 37 , [2006] 2 SCR 231; 2004 BCSC 792 , 7 RFL (6th) 1. b. “When a question is litigated, the judgment of the Court is a final determination as between the parties ….

Any right, question,or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery … cannot be re-tried ina subsequent suit between the same parties ….

The right, question, or fact, once determined, must, as between them, be taken to beconclusively established so long as the judgment remains.”: CIBC vs Holloway [1979] BCJ No. 932; (BC SC), 16BCLR 231 @ paragraph 9, quoting McIntosh vs Parent (ON CA), [1924] OJ No. 59; [1924] 4 DLR 420. [16] So, when considering an application to vary an agreement in relation to child support, the question is whether the agreementadequately provides for the support to which the child is entitled.

However, when considering an application to vary an order for childsupport, the question is whether grounds have been established to justify the court in revisiting an issue which has already been decided. [17] This difference between the principles governing variation of child support agreements and those governing variation of childsupport orders often gives rise to anomalies. Consent orders for child support are often made without any adjudication on the merits, andmore closely resemble agreements for child support than orders made after a contested hearing.

Despite that, the court has no power tovary them unless the evidence establishes a material change in circumstances: E.A.H. vs C.R.H. [2015] BCJ No. 178; 2015 BCPC 13; 2011 ONSC 3915 , 6 RFL (7th) 492; Spender vs Spender (BC SC), [1999] BCJ No. 910. Governing Provisions of the Family Law Act [18]

Section 150 of the Family Law Act provides: a. in subsection 1, that child support is to be determined in accordance with the Guidelines (see the Family Law Act RegulationBC Reg 42/103,

section 8); b. in subsection 2, that the court may order child support in an amount different from that mandated by the Guidelines if there isan existing agreement for child support which provides reasonable arrangements for the support of the child; c. in subsection 3, that, when considering whether the arrangements provided by the agreement are reasonable, the court mustconsider the amount mandated by the Guidelines. So, I must first consider whether the separation agreement in this case provides reasonable support for B. If so, I need not order supportin the amount mandated by the Guidelines.

In addressing that question, I must consider the amount mandated by the Guidelines, and somust determine that amount. Child Support Under the Guidelines [19]

Section 9 of the Guidelines provides that, where the parents have approximately equal parenting time, “… the amount of thechild support order must be determined by taking into account: a. the amounts set out in the applicable tables for each spouse; b. the increased cost of shared custody arrangements; c. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.” [20] In Contino vs Leonelli-Contino 2005 SCC 63 , [2005] 3 SCR 217, Justice Bastarache rejected the suggestion that childsupport obligations in shared-custody situations could be determined by a mathematical formula.

He said at paragraph 27 (underliningadded): The three factors [set out in subsections 9(a)–(

c) of the Guidelines] structure the exercise of the discretion. These criteria are conjunctive:none of them should prevail …. Consideration should be given to the overall situation of shared custody and the costs related to thearrangement while paying attention to the needs, resources and situation of parents and any child. This will allow sufficient flexibility toensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair levelof child support.

At paragraph 49, he said that it is the duty of the trial judge to consider each of the three factors in turn. The First Factor: Incomes and Table Amounts [21] Mr. B.’s annual income is about $57,000. The Guideline figure for support of one child at an income of $57,000 is $527 permonth. Ms. H.’s annual income is about $27,000. The Guideline figure for support of one child at an income of $27,000 is $239 permonth. If one were to apply the “simple set-off” approach described by Justice Bastarache in Contino at paragraphs 43 – 46, Mr. Bought to pay $288 per month in child support.

However, Justice Bastarache said at paragraph 49 (italics in the original): … the simple set-off serves as the starting point, but it cannot be the end of the inquiry. It has no presumptive value.

Its true value is inbringing the court to focus first on the fact that both parents must make a contribution and that fixed and variable costs of each of themhave to be measured before making adjustments to take into account increased costs attributable to joint custody and further adjustmentsneeded to ensure that the final outcome is fair in light of the conditions, means, needs and other circumstances of each spouse and childfor whom support is sought. Full consideration must be given to these last two factors ….

The Second Factor: Incremental Costs [22] In this case, there is no evidence of incremental costs arising from the shared-custody arrangement. [23] It appears that neither parent’s fixed costs will be affected by the proposed change in B.’s residential arrangements. Forexample, there is no reason to think that either parent would live in a different house or apartment if B. lived full-time with one parent. Mr. B. and Ms. H. live some distance apart, but B. makes use of public transit to travel between their homes and to commute to hisschool. He would need a transit pass if he continued to live full-time with Mr.

B., and will need the same transit pass if he residesalternate weeks with each parent. Like most teenagers, he is quite mobile and accustomed to carrying his possessions with him. [24] No doubt, Mr. B.’s variable costs of parenting will be somewhat reduced, and Ms. H.’s somewhat increased, by the newarrangements. For example, it is more expensive to cook for four than for three. The evidence does not allow me to quantify this factor. It is less significant in this case than in some others because B. has no special needs or challenges.

The only special or extraordinaryexpense for him identified in the evidence is his transit pass. [25] Under

section 7 of the Guidelines, Mr. B. and Ms. H. are responsible to share the cost of B.’s transit pass in proportion to theirincomes. Rounding off the calculation, Mr. B.’s income is a little more than double that of Ms. H. I think it appropriate to order thatMr. B. pay 2/3 of the cost of the transit pass and Ms. H. 1/3.

The Third Factor: Means, Needs & Circumstances [26] One objective of child support in shared custody situations is to arrange matters so that the child’s standard of living is roughlycomparable in each household: SRM vs NGTM 2014 BCSC 442; [2014] BCJ No. 466 @ paragraph 130; Thompson vs Thompson 2013 ONSC 5500 , [2013] OJ No. 4001; 2013 ONSC 5500 @ paragraph 42; Dovey vs Golden [2002] OJ No. 743; 55 RFL(6th) 32. That is important for several reasons. Children need consistency and stability as they learn to navigate a complex world.

That needbecomes more acute when the child’s world has been disrupted by conflict between the parents. If things are available in the home ofone parent and unavailable in the home of the other, the child’s sense of security and predictability is undermined. In many high conflictrelationships, parents compete for the affection of the children. The competition itself is unhealthy, and adversely affects the child’sconfidence in affection as something freely given.

Where material goods are offered to the child as part of the competition, the childlearns to make an unhealthy connection between parental affection and material goods. Finally, there is a question of simple fairness. Sofar as possible, each parent’s home should be equally attractive and welcoming to the child. [27] In this case, Mr. B. has a household income of about $57,000 for two adults and one child (who is resident on alternate weeks). Ms. H. has a household income of about $77,000 for a household of two adults and two children (one of whom is resident on alternateweeks). Mr.

B. enjoys the advantage of lower than market rent. If I refuse an order for child support, B.’s standard of living in Ms. H.’shousehold will be slightly higher than that in Mr. B.’s household. Any award of child support in favour of Ms. H. would only exacerbatethat undesirable disparity. [28] In considering the question of fairness, I think that I should take into account the fact that, during the first 14 years of B.’s life,Mr. B. incurred much greater child-care costs for B. than Ms. H., and that Mr. B. received no contribution from Ms. H. to those costs.

Conclusion Under the Guidelines [29] If I were to consider this case solely by reference to

section 9 of the Guidelines, I would make no order for child support. Conclusion Under

Section 150 of the Family Law Act [30] By all accounts, B. is flourishing under the present arrangements. Each of his parents can afford to provide him with anappropriate standard of living, and has done so. It follows that the arrangements provided by the separation agreement, as amended bythe parties, make reasonable provision for B.’s care. Disposition [31] Ms. H.’s application for child support is dismissed. [32] Mr. B. will be responsible to purchase B.’s monthly transit pass. Ms. H. will reimburse Mr. B. for 1/3 of the cost of that passeach month. November 17, 2015

____________________________ T. Gouge, PCJ