A.J.W. v. G.M.L. Date:, 2016 BCPC 229

Citation: A.J.W. v. G.M.L. Date: 20160722 2016 BCPC 229 File No: 15919 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.J.W. APPLICANT AND: G.M.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.I. SOLOMON Appearing in person: The Applicant

Appearing in person: The Respondent Place of Hearing: Abbotsford , B.C. Date of Hearing: July 6, 2016 Date of Judgment: July 22, 2016 [ 1 ] By application filed October 28, 2015 the applicant A.J.W. applies for a change to the order of this court dated August 6, 2015. He seeks a reduction to child and spousal support payable to the respondent G.M.L. to reflect his current income. His application also sought the reduction or cancellation of arrears; however, this was not pursued and stands withdrawn. [ 2 ] G.M.L. opposes the application.

Her position is that the applicant is capable of working and earning enough to pay current support obligations and, as such, there is no change in circumstances warranting a change to the August 6, 2015 order. G.M.L. also applies for an order prohibiting the applicant from making further applications without leave of the court. [ 3 ] Both parties were unrepresented on this hearing. I heard sworn evidence from both parties. [ 4 ] I am satisfied that there is a change in circumstances warranting a reconsideration of the amount of child and spousal support payable by the applicant to the respondent.

This change includes the applicant’s income for 2015 was less than projected in August 2015; the applicant filed for bankruptcy in October 2015 and will be discharged shortly; and the respondent has a plan for achieving economic self-sufficiency over the next few years that will require a return to University and will take her out of the job market for at least the next two years. [ 5 ] The parties commenced a relationship in 2001. They commenced residing together in 2002 and were married in 2005.

They separated in March 2012 but later resumed living in the same residence but separately until their final separation in April 2014. [ 6 ] At the time of final separation the parties had significant family debt and in or about October 2015 the applicant declared bankruptcy.

He will be discharged from bankruptcy shortly which will leave him debt-free except for outstanding arrears of child and spousal support that are presently in excess of $33,000. [ 7 ] The respondent has debt in the amount of approximately $24,000 and this costs her $700 per month to service as per an agreement with creditors. [ 8 ] There are two children of the marriage, C.W. born [omitted for publication] and A.W. born [omitted for publication]. [ 9 ] C.W. is a successful student and athlete; however, he suffers from attention deficit disorder and has a concerning motor coordination issue that needs to be monitored.

He is on medication for his medical issues and is presently in grade 4. [ 10 ] A.W. is an eight year old boy. He is presently under the care of a psychiatrist for a number of issues. He suffers from extreme anxiety related to fear of failure. G.M.L. says that this causes him to be paralyzed at times and to become physically ill. He also identifies as a girl, has strong indications of a learning disability, and selective mutism. [ 11 ] In his evidence A.J.W. attempted to downplay the concerns regarding his children. I have no hesitation in accepting G.M.L.’s assessment of the challenges facing both of them.

In general I found her to be a more straight forward and credible witness. She has been the primary caregiver for the children during their lives and A.J.W. has parenting time on weekends. This is pursuant to a previous court order. [ 12 ] As the primary caregiver and due to the concerns regarding both children G.M.L. has become actively involved in their school and she takes them to all medical appointments. The psychiatrist that A.W. is seeing is located in Vancouver while G.M.L. resides in Mission.

Due to the complex nature of A.W.'s issues he was referred to a specific specialist located in Vancouver. [ 13 ] Page 8 of G.M.L.’s financial statement filed July 6, 2016 sets out special or extraordinary expenses related to the children’s needs and this includes medication (over and above what is covered by A.J.W.’s work health care plan), tutors, transportation to and from medical appointments, and the cost of needed assessments for A.W. The total appears to be over $20,000 yearly.

Unfortunately the present economic situation of the parties cannot support this level of expenditure. [ 14 ] As indicated above A.J.W. applies to change the order of this court from August 6, 2015. This was an order made after a hearing in July 2015. In the ruling the court imputed income of $133,000 to A.J.W. which resulted in child support payments of $1656 per month and spousal support in the amount of $1200 per month. The spousal support order was made retroactive to August 1, 2014.

A.J.W. has not complied with the order and as of the date of this hearing he has accumulated arrears in excess of $33,000. [ 15 ] G.M.L. enrolled in FMEP and they have garnished A.J.W.’s wages. In his affidavit of June 3, 2016 A.J.W. attached as exhibit “B” three pay sheets that confirm the garnishment of his wages. He says that based on the level of garnishment that is occurring on his reduced income in 2016 he is unable to meet his own obligations and in particular cannot continue to maintain a vehicle which is required for work purposes.

He seemed reluctant to admit that he has only been working part-time until recently due to a medical disability related to stress. [ 16 ] A.J.W. estimates that his 2016 income will be $78,333.60. It is unclear in his evidence if this estimate takes into consideration his recent return to full time work. Historically prior to the separation in 2014 his earnings were considerably higher. He has been employed since 2001 as a technician with Shaw cable. In his role as a technician he makes home visits to customers to deal with internet, phone and television technical issues.

He says that the decline in income is not intentional or strategic as alleged by G.M.L. but

mostly as a result of factors outside his control. [ 17 ] The factors that he refers to include that there is less work overall due to technological advances, and previously he was able to get more work than other workers due to his hard work ethic including a willingness to work long hours. He says that now the work is distributed via a new software program that divides work equally. However, the evidence indicates that this software program was implemented in 2012 and had no impact on his 2013 to 2015 income.

He added that he is paid a base salary of $2500 per month plus commission based on jobs completed. [ 18 ] A.J.W. also says that he cannot work as much as before which was over 60 hours per week as he needs to be available to exercise his parenting time. He has parenting time from Fridays at 4:30 PM to Sundays at 7 PM. He now works 40 hours per week or less. [ 19 ] A.J.W. also described his own health concerns.

He was on medical leave from work due to stress from April to June 2014 and then again from September 4, 2015 to December 15, 2015. (The September 4, 2015 date is obtained from the Unpaid Medical Leave Application Decision from his employer attached to his Affidavit of June 3, 2016.) [ 20 ] G.M.L. is suspicious of the timing of the stress leave taken by A.J.W. She believes it is for the purpose of reducing his income and thereby limiting the amount of financial support he would be required to pay.

She adds that the strategic timing of his stress leave can be determined from looking at the history of the proceedings. [ 21 ] The record of the family law proceeding reflects that the first application by G.M.L. for child and spousal support was filed in April 2014. This coincides with A.J.W.’s first stress leave from employment. The next period of stress leave commenced within a month of the August 6, 2015 ruling of this court.

The application to reduce child and spousal support was filed herein on October 28, 2015. [ 22 ] A.J.W. returned to part-time work in December or January 2016 and has recently returned to full-time work which A.J.W. says amounts to 40 hours per week that he is required to be available. [ 23 ] A.J.W. filed for bankruptcy in October 2015 and he will be discharged shortly.

After his discharge he will have no other debt except for the support arrears that as indicated above are now in excess of $33,000. [ 24 ] For the tax years 2011, 2012 and 2013 A.J.W. earned over $140,000 per year ($141,756; $144,543; and $140,944 respectively). In 2014 his income decreased to approximately $124,000 and in 2015 his income was approximately $97,000.

As discussed below in both 2014 and 2015 A.J.W. took 3 months of sick leave which I find was the most significant factor that caused the decline in his income. [ 25 ] The order of the court of August 6, 2015 imputed income of $133,000 to A.J.W. and determined that spousal support was warranted. At that time an interim order for child support had already been in place. The court gave oral reasons for decision.

The court noted that A.J.W. was in the process at that time of applying for bankruptcy to deal with $180,000 of family debt. [ 26 ] Based on the financial evidence before the court it was determined that A.J.W.’s estimated income for 2015 would be over $139,000. That level of income was not achieved as A.J.W. was off work from September 4 to December 15, 2015 due to medical leave.

The court imputed income at $133,000 taking consideration a deduction for nondiscretionary work expenses such as union dues. [ 27 ] A.J.W. says that the court should deduct union dues and other nondiscretionary expenses such as his vehicle and cell phone costs since he is required to supply these out of his own pocket for work purposes. He says that the total deductions from gross income should be approximately $9600 for nondiscretionary expenses.

It appears that the court in August 2015 considered that a $7000 deduction was appropriate, and this seems to be a reasonable level of deduction since A.J.W. also uses the same vehicle for pleasure. [ 28 ] The court also ruled in August 2015 that G.M.L. has an obligation to seek employment and imputed to her annual income at the minimum wage rate in the amount of $21,320. The court then went on to note that the spousal support guidelines suggested a range of $1448-$2365 per month, but support was reduced to $1200 per month to account for the family debt the majority of which was being addressed by A.J.W.

Spousal support was ordered to commence on August 1, 2014.

This accounts for some of the arrears presently owed by A.J.W. to G.M.L. [ 29 ] Attached to his financial statement filed April 13, 2015 (that would have been before the court in the July 2015 hearing) is a letter of explanation from A.J.W. explaining that since 2012 Shaw cable introduced new software that impacted the distribution of work, resulting in decreased work for him, and this would account for $20,000 loss of income from 2012 and 2013, to 2014. [ 30 ] However, A.J.W. omits in this analysis that he was off work on medical leave for three months in 2014 so that fact alone is the most likely explanation for the decrease of $20,000 in his gross income.

A.J.W. continues to rely on that same evidence to partially explain the further decrease in his income in 2015 and 2016. I am not satisfied by the evidence on this hearing that this is a valid explanation for the decrease in A.J.W.’s gross income. [ 31 ] A.J.W. filed an affidavit on March 29, 2016. It sets out the basis of his application before the court for reduction of support payments. He testified to some of the same matters on this hearing. A.J.W. emphasized that he has not left any work undone and completed all shifts assigned to him.

He attached the supporting documents as Exhibit “H” to the affidavit and these are described as “daily work routes”. [ 32 ] The difficulty in determining whether A.J.W. has underemployed himself or not, is that there is no independent evidence from a manager or supervisor at Shaw Cable as to average incomes for experienced Shaw cable technicians.

In short, there is no independent evidence as to how much a technician working 40 hours per week could or should earn, or whether more work is available. [ 33 ] Based on the evidence available at this hearing, the only conclusion I can reach is that A.J.W.’s decline in income is related to

medical leave, which I have no hesitation in finding is at least partially strategic due to its timing, and the voluntary reduction in his commitment to working that has seen him going from working 60 hours per work to 40 hours per week. [ 34 ] G.M.L. has a Bachelor of Arts degree in psychology from UBC. Prior to the birth of the two children she was working as a manager of a Spence Diamonds location. After C.W. was born in 2005 the parties decided that G.M.L. should resign her work position and become a stay-at-home mom.

They both felt it best for her to be there for the children and the applicant was earning sufficient income to support the family. [ 35 ] I find that G.M.L. has suffered significant economic disadvantage and financial hardship due to the breakdown of the marriage. She is the primary caregiver for the two children. As indicated above both children have developmental challenges and are on medication.

G.M.L. did not receive any financial support from A.J.W. after the order of August 6, 2015 until the garnishment of his wages by FMEP. [ 36 ] G.M.L. continues to carry some significant debt that costs her approximate $700 per month to service. Some of this is family debt that she has assumed. G.M.L. is very frustrated by A.J.W.’s periods of stress leave that have impacted his level of income and is rightly suspicious of the dramatic decline in his income over the last year. [ 37 ] G.M.L. has presented a reasonable plan to become economically self-sufficient.

She testified to consulting with an occupation advisor and it was determined that her best course of action for self-sufficiency is to return to school and obtain a Masters degree in psychology. With this degree she will be able to practice as a psychologist and have flexible work hours so she could continue to attend to the needs of the children as their primary caregiver. [ 38 ] G.M.L. made plans to return to school in the fall of 2015 subsequent to the order of this court in August 2015. However, that plan was contingent on the child and spousal support been paid as ordered.

As indicated above that support was not forthcoming as A.J.W. went on stress leave from September to December 2015 and did not meet his obligations to his family. [ 39 ] In my view G.M.L.’s economic self-sufficiency plan is reasonable and should be encouraged. In the event that A.J.W. complies with the child and spousal support order that will be made herein it is expected that G.M.L. should be able to complete her Masters degree and move towards self-sufficiency. Accordingly, at this time there will be no income imputed to her.

G.M.L. will have the opportunity to focus on her Masters degree and being the primary caregiver for the children who have unique needs. [ 40 ] After considering the evidence of the parties I am not satisfied that A.J.W.’s claim of projected gross income of $78,406 is a fair basis for determining guideline income. He has reduced his income by taking medical leave and generally reduced his work hours or workloads.

I do not accept that he has presented a true picture of his income earning potential in a regular work week at this hearing. [ 41 ] However, I do accept, and both parties gave similar evidence on this point, that A.J.W. worked in excess of 60 hours per week during the marriage. In my view this court cannot impose that level of work commitment on him.

It seems that A.J.W. has decided to now work regular work hours and support his children and his wife less than he has in the past. [ 42 ] It is in the best interests of all concerned parties for G.M.L. to be able to return to school and obtain a degree that will assist her in becoming economically independent. The ball is in A.J.W.’s court in determining whether G.M.L. will have the opportunity to succeed.

Hopefully, he will reconsider his approach to addressing his support obligations. [ 43 ] With the above in mind it is difficult to assess what the appropriate income number is for determining guideline child and spousal support orders. In my view the starting point is to take the $140,000 income amount that was earned in the 3 years prior to the final separation of the parties in 2014 and reduce it by 30% to reflect a reduction from 60 hours per week to 40 hours per week, which leaves $98,000. From this amount will be deducted $8000 to reflect non-discretionary expenses.

This results in a guideline amount for child support of $1345. Regarding spousal support there is a range of $1235 to $1628 as per the spousal support guidelines. I fix spousal support payable at $1350 per month. [ 44 ] The next item to address is special or extraordinary expenses. I accept G.M.L.’s evidence that there are special or extraordinary expenses as outlined above. At this time, due to the net economic position of both parties as a result of the child and spousal support orders it is appropriate to order A.J.W. pay to G.M.L. a nominal amount of $100 per month for those expenses.

This amount was factored into the spousal support guideline range. [ 45 ] The last item to address is G.M.L.’s application to prohibit A.J.W. from bringing further applications re support except with leave of the court. In my view, the number of applications has not yet reached that stage. However, I will remain seized of all applications for the next two years so that will add an element of expediency and convenience in dealing with these matters.

Orders [ 46 ] A.J.W.is found to be a resident of British Columbia and is imputed to have a gross annual income of $90,000. [ 47 ] A.J.W. will pay to G.M.L. the sum of $1345 per month for the support of the children, commencing on January 1, 2016 and continuing on the 1 st day of each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until further Court order. [ 48 ] A.J.W. will pay to G.M.L. the sum of $100 per month, commencing on January 1, 2016 and continuing on the 1 st day of each month thereafter for the children’s special or extraordinary expenses. [ 49 ] A.J.W. will pay to G.M.L. for her support the sum of $1350 per month, commencing on January 1, 2016 and continuing on the 1 st day of each and every month thereafter until further order of the court or agreement of the parties. [ 50 ] For as long as the children are eligible to receive child support, the parties will exchange: (

a) copies of their respective income

tax returns for the previous year, including all attachments, not later than June 1, each year; and, (

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt. A.J.W. will also provide to G.M.L. by the last day of each and every month all pay sheets he has received from Shaw Cable or other employers. [ 51 ] The application by A.J.W. for reduction or cancellation of arrears is withdrawn. [ 52 ] The application by G.M.L. for an order prohibiting A.J.W. from making further applications to change child or spousal support without leave of the court is dismissed. [ 53 ] I will remain seized of all applications regarding these parties for the next two years. Jay I. Solomon, P.C.J. PROVINCIAL COURT JUDGE