T.L.B. v. K.A.B. Date:, 2015 BCPC 245

Citation: T.L.B. v. K.A.B. Date: 20150903 2015 BCPC 0245 File No: 15715 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.L.B. APPLICANT AND: K.A.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. David Dundee

Appearing on their own behalf: K.A.B. Place of Hearing: Kamloops , B.C. Date of Hearing: July 13, 2015 Date of Judgment: September 3, 2015 [ 1 ] This is an application by T.L.B. for child and spousal support. [ 2 ] The parties met in 2002, began living together in 2003 when they moved to Kamloops and were married on August 7, 2004. They have two children of their marriage, J.M.B., born [omitted for posting] and H.H.B. born [omitted for posting]. [ 3 ] The parties separated when K.A.B. moved out of the family home on December 30, 2014. At that point, they had been having problems for a few months.

He had advised her in November, 2014 that he was not happy and they needed to make some changes. At the end of December, he said they needed some time apart. The house was put up for sale in January, 2015, selling in four days. T.L.B. moved out on February 28, 2015, having stayed in the home with their sons until the sale was completed. [ 4 ] On the sale of the home, T.L.B. purchased a three bedroom townhouse. She had just started a job in December, 2014 and so had a hard time getting a mortgage. Her mother had to co-sign for the mortgage. [ 5 ] K.A.B. has also purchased another home.

He lives in Chase and bought his new home also from the proceeds of the sale of the family home. [ 6 ] T.L.B. lives with J.M.B. and H.H.B. in her townhouse. K.A.B. lives in his house with his girlfriend and her three daughters. The boys visit on weekends. K.A.B.’s girlfriend is C.W., an occupational therapist who used to work with the B.s and J.M.B. for his autism. J.M.B. requires help at school for reading and writing but is getting better as he is getting older. [ 7 ] While T.L.B. was dating K.A.B., she was a hairdresser in Parksville.

She was paid either minimum wage at $7.25 an hour or on commission, whichever was higher. By the end of her employment, she was earning 55% commission or $8 per hour; and 10% of any retail she sold. This amounted to approximately $600 to $700 every two weeks net. [ 8 ] T.L.B.’s last formal education was Grade 12. She was trained as a hairdresser at the [omitted for posting]. It was a 10 month course. She obtained a job immediately after completing her course.

She then went back to school for her aesthetics course, which was 8 months. [ 9 ] T.L.B. stopped working in the hairstyling industry shortly after she met K.A.B. She intended to get out of that industry, preferring to be in aesthetics. When she and K.A.B. moved to Kamloops, she applied for jobs in the aesthetics industry. It took her a while to get work primarily because the industry is slow in January and February. She finally got work at the end of February, 2003. The work was part time for the first month or two, developing into full time.

She remained at that salon until she was on maternity leave with J.M.B. in September, 2005. She was paid $10 per hour when she started, and $11 per hour by the time she left. She stayed at home for the one full year of her maternity leave. The business had changed hands when she returned to work. She was reduced back to $10 per hour and down to four days a week from five. [ 10 ] T.L.B. stayed with that business for a year and a half. She left because J.M.B. was having issues at daycare. She and K.A.B. decided she should stay home with J.M.B. This was just five months before J.M.B. was diagnosed with autism.

T.L.B. was not sorry to leave the employment, stating that she did not care for the woman she was working for. [ 11 ] In cross examination, T.L.B. admitted that she received tips from her hairdressing as well. [ 12 ] When J.M.B. started Kindergarten, T.L.B. went back to work. K.A.B. had been laid off from his work. He had hoped the layoff would not be as long as it was and suggested she return to work. T.L.B. applied at the [omitted for posting] and obtained part time work in the baby department. K.A.B. stayed home with J.M.B. until he went back to work. Once he was back at work, T.L.B. worked nights.

She normally works from 5 p.m. until 9 p.m. If she was called in for other hours, T.L.B. would meet K.A.B.’s mother who would mind J.M.B. until one of the parents was able to get home. [ 13 ] T.L.B. testified that she did not return to hairdressing or aesthetics because she had been out of it for such a long time. Most places want applicants to have a full clientele. She had wanted to return to aesthetics but she no longer had clients. [ 14 ] T.L.B. went to work at the [omitted for posting] at the beginning of March in 2010. She continued there for 16 months.

She became pregnant with H.H.B. and continued to work at [omitted for posting] until her maternity leave in the beginning of July, 2011. As with J.M.B., T.L.B. took the full maternity year off. After that period ended, the B.s decided that the price of daycare was not worth having her return to work. They had in mind that T.L.B. would stay off work until H.H.B. started Kindergarten. [ 15 ] When T.L.B. first started working at [omitted for posting], she was paid $9 per hour. By the time of her maternity leave, her wage was $9.50 per hour for 20 to 25 hours per week. She returned to this work in December, 2014.

She and K.A.B. had decided she should try to find work. She had not really wanted to return to work but she was getting bored at home. She was able to arrange daycare. [ 16 ] This time, T.L.B. returned to work in the deli department. This was to accommodate getting more hours. She remains in that position today. In addition to the pay rate, T.L.B. prefers working at [omitted for posting] because it is a union job. She is provided with benefits and receives 10% off on her groceries. They are very accommodating with scheduling and she is able to work every weekend that she does not have the children.

When she has the boys, she works when J.M.B. is in school, reducing her daycare costs. Because the

daycare is provided by a friend, T.L.B. is unable to work nights. [omitted for posting] is able to accommodate the restriction on her hours. Her current rate is $10.75 per hour. The more hours she puts in, the more her pay goes up. She has dental coverage and prescriptions for herself but not for the children because she is only part time. Neither hairdressing or aesthetics provides benefits. [ 17 ] T.L.B. said that she has been applying to various salons. However, some of these have not responded to her and others are not suitable for her training.

She is not interested in work that is less flexible than she enjoys at [omitted for posting]. Her present position is more agreeable with part time hours, union and benefits. [ 18 ] T.L.B. testified that while they were in Parksville, K.A.B. was a log peeler earning $8 per hour. When they first came to Kamloops, he had no work for a few weeks and then started at [omitted for posting]. He started as a groundsman but now has his own crew. Initially, he worked part time and in various locations. He earned approximately $12 per hour. He receives full dental and other medical benefits and has a pension.

The children and she are covered on his benefits. [ 19 ] There have been some challenges with J.M.B.’s autism. As noted, he has an assistant at school. Getting him to try new foods is a task. He did not toilet train until he was nearly five. Now he is very independent about his dressing and snacking, but he requires reminding. Ms. W. was his behavioural therapist. She helped him with his talking, toilet training, reading, writing and speech. [ 20 ] H.H.B. has also had some developmental issues and costs related to them. He developed a flat head from lying on his back when he was first born.

At about the age of eight, he had to have a helmet fitted to reshape his head at a significant cost. K.A.B.’s benefits helped to pay for that but T.L.B. had to travel to Surrey once a month for six or seven months to have it refitted. He is fine now but his speech is delayed. The B.s arranged speech therapy for him in the beginning which K.A.B.’s benefits funded in part. This funding did not go far enough, however. The sessions were expensive and they could only do them for about two months.

In any event, H.H.B.’s speech has come a long way and there are no further special expenses associated with him. [ 21 ] H.H.B. was in swimming in January. He only went to two lessons and did not want to continue. T.L.B. also has him enrolled in a preschool for two days a week at $17.50 per day. She is unsure whether she would qualify for a subsidy for this daycare. [ 22 ] T.L.B. would like to put J.M.B. back in swimming because he really enjoyed it. She would also like to put H.H.B. in swimming in the fall. [ 23 ] The parties have signed a separation agreement. This is the starting point for me.

K.A.B. found a draft separation agreement on line. He wanted to have it in effect before he moved out of the family home. There were more than one draft of the agreement prepared. T.L.B. testified they had to print off “a bunch” because they had to get mortgages and needed the separation agreement for other purposes. For instance, the notary public required the separation agreement to split the proceeds from the sale of the house. T.L.B. did not see a lawyer before signing the agreement despite being urged to do so by family and friends. She did see duty counsel but found they were not helpful.

Her evidence in this regard was somewhat confused. [ 24 ] One of the complaints T.L.B. has about the separation agreement is that it does not state what they were each earning; only what K.A.B. is prepared to pay for child support. His wage was $33 per hour, earning between $900 and $1,000 per week. T.L.B. earned about $350 every two weeks. The amount of child support set out in the separation agreement was based on what K.A.B. said he thought was fair. He decided to pay her $1,300 per month for spousal and child support together. $900 per month of that was for child support.

He said he would be paying her once a week but the payments got later and later. This, of course, is not at all in accordance with the separation agreement. The parties have therefore not conducted themselves as though the agreement was valid as between them, as opposed to useful for third parties. This is an important factor in this case. [ 25 ] T.L.B. said that she was flabbergasted by everything that was happening and just agreed to what his suggestions were.

She conceded there were negotiations later on, but K.A.B. said he was only paying that amount and that was the end of the matter. [ 26 ] The true purpose of this separation agreement was not to be so much a separation agreement to resolve liabilities as between the parties as it was a document used to persuade third parties that the financial issues between the parties had been resolved. Particularly, K.A.B. printed a different version of the separation agreement that said he did not pay child support. He used this to persuade his bank to grant him a mortgage.

Similarly, T.L.B. used the version of the separation agreement stating K.A.B. was paying child support in order to persuade her bank to grant her a mortgage. It would be unseemly in those circumstances for the court to enforce such an ill-gotten agreement as a binding one between the parties. [ 27 ] That the separation agreement was thrown together rapidly for these purposes is clear in its inconsistencies. For instance, paragraph 9 of the agreement specifies the children will live primarily with their mother. Paragraph 10 specifies that they will share the time equally.

The reality is that they spend not quite 40% of the time with their father - a situation not reflected in the agreement. [ 28 ] The parties also agreed to split the special and extra-ordinary expenses. T.L.B. thought this meant that K.A.B. would help pay for daycare as well as swimming. T.L.B. paid for H.H.B. to go to swimming and K.A.B. paid for J.M.B. to do so. They had a joint account until the end of February, 2015 from which she took daycare expenses. Since March 1, 2015, K.A.B. has paid nothing for the daycare. T.L.B. has asked him for a contribution and sent him a bill but has received no money.

Since then, she has received a subsidy but it does not cover all of the daycare expenses. She concedes that the subsidy was credited back for January and February resulting in a credit of $140 toward July daycare. The parties are, subject to an agreement between them, obligated to pay their proportionate share for daycare net of all subsidies. T.L.B. is obligated to apply for all subsidies she may be entitled to receive. [ 29 ] There was also a controversy over soccer. J.M.B. was enrolled in a camp which resulted in a dispute. The ultimate outcome was much ado about nothing.

It seemed to be primarily an opportunity to disagree. Essentially, K.A.B. wanted J.M.B. in a camp being run by his partner, Ms. W. In the end result, T.L.B. never asked K.A.B. to help her with the cost and was prepared to pay it herself. [ 30 ] K.A.B. said that T.L.B.’s lack of employment was a constant argument between them. This is recasting history. It became a constant argument in 2014.

[ 31 ] He testified that in 2013, he worked 50 hours a week with barely any time off. The result was that he hurt tendons in his elbow which began an ongoing injury. He has been diagnosed with tendonitis and possible carpal tunnel syndrome. [ 32 ] K.A.B. claimed his income decreased in 2014 to $76,000 as a result of the same injury. This is net of benefits and is not the appropriate figure to use. He was only working 45 to 46 hours a week that year. He began taking cortisone shots on December 1, 2014. After the cortisone, he ended up in the hospital in pain. He was registered with WCB to process a claim.

There are various stages that had to be passed but WCB has accepted his claim. [ 33 ] After a difficult period of time, in November 2014, he decided he “had enough”. He remained in the home until December and moved out on January 1. He paid the expenses related to the house until February 26, as well as for the rental he was living in. He used all of his savings and income to pay for both houses. [ 34 ] K.A.B. said that they both mutually agreed on the separation terms to keep the issues out of court. I find that his testimony is not compelling in this regard.

While I accept that the parties agreed to sign their respective separation agreements, it was not so much to facilitate an end to their financial conflict but to facilitate the purchases of their homes. [ 35 ] K.A.B. believes he has had the children at least half of the time since he moved out. He said that he has no further money to give to T.L.B. He had to move out to Chase because the housing was more affordable. He asked Ms. W. and her daughters to move in with him to help the costs and their relationship continued on from there.

He believes T.L.B. is revisiting the separation agreement because she found out he was living with Ms. W. [ 36 ] K.A.B. said that with the WCB claim there is a great chance he will have to retrain and will not be able to continue doing his job. He is going to see a hand and arm specialist following which they will do some carpal tunnel testing. The WCB time off is approved already and he anticipates that the funds he will receive on that benefit will be about $46,900 for the year. In fact, the evidence now shows his interim benefit is $51,010.

If he remains on the benefit, it will increase to $53,835 per annum. [ 37 ] K.A.B. is looking forward to completing some re-training to take him out of his current field. Between the healing time and the re-training time, he expects he will be off work for a minimum of six months. He anticipates when he does return in a new field, it will be at lesser pay. None of these factors are “known” as this time and are speculation. [ 38 ] K.A.B. conceded that there has been no prognosis yet that will tend to support his belief that he cannot continue in his work.

He was anticipating some tests and diagnosis toward the end of July. There is nothing, at present, that supports this assertion that this is a permanent disability. That may be the ultimate outcome, or he may return to work and earn the income he had been enjoying up until his injury. This will have to be revisited by the parties. [ 39 ] K.A.B. also struggled to understand what his gross income amounted to. He seemed to be under the belief that it was his net pay that was to be considered. In fact, with benefits, his income is $81,465 per annum.

It is this amount that will be used by WCB to assess any rate he will be paid. It is also this amount that is considered to determine child and spousal support. [ 40 ] K.A.B. prefers to leave the work he is doing presently and take up arboriculture. That is what he is currently doing his training for. This may be his preference but he is obligated to maintain his income at a level similar to or better than he had during the relationship. There are exceptions such as disability but those must be fully supported by evidence. [ 41 ]

Section 148 of the Family Law Act provides: 148

(1) An agreement respecting child support is binding only if the agreement is made (

a) after separation, or (

b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division 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 [determining child support] . [ 42 ]

Section 164 of the Family Law Act provides as follows: 164

(1) This

section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (

a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement ; (

b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress; ;

(

c) a spouse did not understand the nature or consequences of the agreement; (

d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement.

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: (

a) the length of time that has passed since the agreement was made; (

b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse; (

c) the intention of the spouses, in making the agreement, to achieve certainty; (

d) the degree to which the spouses relied on the terms of the agreement; (

e) the degree to which the agreement meets the objectives set out in

section 161 [objectives of spousal support] .

(6) Despite subsection (1), the court may apply this

section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances. [ 43 ] There is no question that the court would have made a different decision under s. 148(3) than the terms set out in the separation agreement. It is a low threshold to meet and should be reviewed when the parent fails to provide for adequate child support pursuant to the Guidelines . The child support K.A.B. decided to pay was wholly inadequate and insupportable. [ 44 ] The spousal support is more problematic.

T.L.B. claims that she was unaware of significant aspects of her rights because she did not have legal counsel. However, she was urged by family and friends to seek that counsel and had opportunity to do so. K.A.B. and T.L.B. were both under some financial strain and required a completed separation agreement not only for the sale of their home but to obtain mortgages for the purchases of their new homes. T.L.B.’s circumstances were more urgent given the swift turnaround time on her own purchase.

What is most compelling is that she took the separation agreement no more seriously than she did the sham agreement K.A.B. needed to obtain his mortgage. If K.A.B. expected to rely upon it he did so by deceiving T.L.B. [ 45 ] Under (5), I must set aside the agreement if it is significantly unfair on consideration of the various factors.

I find that not only is the spousal support inadequate but the agreement was made for purposes not related to the family law proceedings but for an improper purpose with their respective financial institutions and as a matter of convenience and expediency for the notary public. [ 46 ] Because of the uncertainty with respect to whether K.A.B. is going to be off work for any significant period of time, or off permanently requiring re-training, this order can only be interim. T.L.B. is prepared to concede, for the purposes of this interim application, that custody is shared.

The separation agreement and the established pattern falls just short of 40% of shared custody. However, there are enough occasions when K.A.B. has the children for longer periods that it is more akin to 40%. For these reasons, T.L.B. is prepared to concede a shared parenting arrangement, but only on an interim basis. [ 47 ] Mr. Dundee agreed at the conclusion of the hearing that if K.A.B. wanted to submit further written submissions, he could do so. I did receive further evidence from K.A.B. which is not the same as submissions. However, it is primarily useful to show the WCB compensation he will receive.

To that extent, I have permitted the evidence on this hearing. [ 48 ] Based upon what is now known to be K.A.B.’s expected interim WCB benefit of $51,010, K.A.B.’s obligation to T.L.B. for child support for two children is $773 per month. T.L.B.’s obligation to K.A.B. based on her income of $11,012 per annum is $72 per month. K.A.B. shall pay to T.L.B. the net sum of $701 per month commencing January 1, 2015. His child support obligation to July 1, 2015 would ordinarily be based on his actual income of $81,465. Child support for two children net of T.L.B.’s income is $1,142 per month.

I set this out so that if K.A.B. returns to his employment following his disability, he clearly understands his obligations. [ 49 ] Using the current WCB rate, each party shall pay their proportionate share of expenses for daycare, soccer, swimming and all other agreed extra-curricular activities as well as all other medical costs of the children after K.A.B.’s coverage has paid its maximums on the basis of 82% by K.A.B. and 18% by T.L.B.

This proportionate share will alter as K.A.B.’s income changes and will alter again once H.H.B. starts school. [ 50 ] The appropriate mid-range spousal support under the Spousal Support Guidelines based upon the interim WCB benefit is $438 per month. If it were based on his employment income, the mid-range spousal support ought to have been an additional $1,144 per month. The mid-range figures are the appropriate ones for an interim order, particularly where the separation is so recent and there remain so many outstanding issues. [ 51 ] K.A.B. will only be drawing this benefit for 10 weeks.

His obligations continue based on his actual income. Until his WCB payments engage, his child support and spousal support should be based on his income from employment. However, given that the injury had resurfaced just prior to separation, I am prepared to make this interim order effective January 1, 2015. [ 52 ] At the end of the 10 week period, K.A.B. will either be required to return to work, have his benefits increased to $53,835, or be required to go into re-training. All of these are uncertainties that may not be determined for some time.

Child support, proportionate special and extraordinary expenses and spousal support must be adjusted as K.A.B.’s circumstances change.

[ 53 ] Similarly, the parties had agreed that T.L.B. would return to work when H.H.B. commenced Kindergarten. It is entirely reasonable that T.L.B. is working part time to facilitate not only a child with special needs but a child not yet in school. She may well be able to obtain full time minimum wage work but the cost of daycare would be prohibitive. K.A.B. fails to grasp the financial realities of income earners on the lower end of the scale. While in some cases it would be appropriate to impute at least minimum wage full time income to T.L.B., it is not appropriate to do so in this case.

She will be expected to pursue more hours of work or more gainful employment once H.H.B. starts school and barring any other compelling factors. [ 54 ] The orders I made July 13, 2015 with respect to disclosure of ongoing financial information remain in effect. I further order that K.A.B. disclose any reassessment of his benefits immediately upon receiving same. _______________________________ S.D. Frame Provincial Court Judge