K.S. v. C.D. Date:, 2017 BCPC 399

Citation: K.S. v. C.D. Date: 20171221 2017 BCPC 399 File No: 16-29233 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.S. APPLICANT AND: C.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Applicant: A. Huang

Counsel for the Respondent: A. Silver Place of Hearing: Vancouver , B.C. Date of Hearing: August 1 & 2, 2017 Date of Judgment: December 21, 2017 INTRODUCTION [ 1 ] This matter involves the calculation of income, identifying the monthly child support obligation, establishing a payment

schedule for monies owing and the determination of the parties’ contributions to

section 7 expenses and to the cost of a

section 211 report. OVERVIEW [ 2 ] The parties had been together for a number years. They have one child, K., who was born on [omitted for publication]. The parties separated in May 2016 and since that time K. has lived with Ms. D. [ 3 ] An application was filed to address various issues and as a result the matter was set for a five day hearing. On the first day of the hearing and to the credit of the parties, they reached an agreement on all issues except for matters related to child support, extraordinary expenses and reimbursement for the cost of a

section 211 report. [ 4 ] As such, the following must be determined: 1. Identifying Mr. S.’s income commencing January 1, 2017. 2. A payment

schedule for the retroactive child support and

section 7 extraordinary expenses from June 1, 2016 until August 1, 2017. 3. Identify Mr. S.’s proportional contribution to

section 7 extraordinary expenses. 4. Determine if the cost of the

section 211 report is to be equally shared between the parties or paid proportionally. EVIDENCE Mr. S. [ 5 ] Mr. S. is 49 years old. He has a few years of general post-secondary education. The majority of Mr. S.’s job skills and experience were obtained through his work in the film industry. Through the film industry, Mr. S. has taken some courses including WHMIS, fall protection and aerial platform. Mr. S. has worked in the film industry for several years.

His experience is varied, and he has held various positions including; motion control, data wrangler, compositor, grip, senior laborer, and special effects supervisor. [ 6 ] According to Mr. S., work in the film industry is sporadic. There will be a number of months where he is employed and thereafter filming will stop with the result that he is unemployed for a period of months. During this period, Mr. S. typically collects employment insurance benefits until he is able to obtain a new position or until he finds work for a few days, in which case his income is deducted from his employment insurance.

As a consequence, Mr. S. is employed in various positions at differing pay levels, thereby resulting in a fluctuating income. [ 7 ] A contributing factor to the variability of Mr. S.’s wage is that he is employed as an independent, and as such, he seeks out and finds a position for employment. This means he relies on word of mouth. It also means he works for different production companies at various rates of pay. Mr. S. is also a member of the IATSE Union Local 891 and as such he would receive notices of local filming and employment opportunities.

He uses these notices when looking for employment. [ 8 ] As I understand Mr. S.’s evidence, some of his previous positions are becoming obsolete or the associated technology has advanced beyond his abilities. As such, the only way to continue with a somewhat regularized work

schedule is to take positions that would be a downgrade in pay and cause others in the industry to question why he was working at a lower position. Mr. S. testified that if the industry formed such an impression, then his ability to obtain work as a special effects supervisor would be impacted. [ 9 ] Mr. S. has been trained to work as a Grip; however, he finds this work and the work of a laborer to be physically demanding and hard for him. Mr. S. attributes these difficulties to issues he has with his right shoulder. In support, Mr.

S. filed a radiology note and a physiotherapy referral form confirming he has calcification and tendinitis of his right shoulder. The court has no information regarding a formalized treatment plan or the long-term prognosis. Despite the shoulder problem, Mr. S. does not suggest that he cannot work as a Grip, rather, he finds the work difficult. Mr. S.’s preferred position is that of special effects supervisor where he typically earns $50.00 per hour. [ 10 ] As for Mr. S.’s recent work history, he did not work on a full-time basis from the end of June 2016 until March 24, 2017.

During this period, he received employment insurance benefits and if he managed to work for a few days the amount earned was deducted from the benefits received. [ 11 ] Since March 24, 2017, Mr. S. has worked for a few weeks in July, August, and October. He has also worked the odd day in September. In October, Mr. S. earned $40.00 per hour and in September he earned $26.00 per hour. In total and as of November 9, 2017, it appears from the submissions of counsel that Mr. S. has earned approximately $42,643.00 thus far this calendrer year.

[12] Mr. S.’s line 150 income for the years 2014, 2015, and 2016 are; $69,872.00, $103,100.00 and $83,929.00, respectively. Withrespect to the year 2015, Mr. S. testified that the amount earned was unusually high and he related it to a higher budget film and theposition he held at that time. [13] Finally and most troubling is, Mr. S. has not made any child support payments since June 2016. In making my observation, Iappreciate that Mr. S.’s yearly income had not been finalized; however, it is simply untenable that a parent in Mr. S.’s circumstanceswould fail to make some payments. Ms. D. [14] Ms.

D. is employed as a film assistant production coordinator. She has worked in this capacity for 13 years. Like Mr. S.,Ms. D.’s employment is sporadic and when not working she collects employment insurance benefits. [15] Ms. D. confirmed that she did not work between October 2016 and December 2016. During that time she supported herself byrelying on her line of credit. Her line 150 income for 2016 is $91,463.00. DECISION 1. Mr. S.’s 2017 income [16] Counsel for Ms. D. urges the court to impute an income which would be the average of Mr.

S.’s line 150 income for the years2014, 2015, and 2016, and that the amount should be approximately $85,000.00. [17] In her submissions, counsel acknowledged that working in the film industry produces a variable income, but counters that Mr. S.cannot simply rely on employment benefits as he did from June 2016 until March 2017. Rather, she asserts he has an obligation tosupport his child and therefore he must find work, and that he cannot be selective by simply focusing on the film industry.

In essence, hecannot simply only rely on the film industry and his obligations to his son dictates that he finds work in the interim. [18] Finally, counsel for Ms. D. cautions the court on simply accepting Mr. S.’s testimony. Specifically, she points out he hasprovided the court with minimal documents to confirm his evidence. In this regard she observes there is no documentary evidenceconfirming Mr. S.’s dates of employment, his job searches or letters of layoff. [19] Counsel for Mr. S. argues the court has sufficient information to identify Mr. S.’s income.

Further, counsel argues if the courtis going to impute an income to Mr. S. then it should be in the range of $55,000.00 to $60,000.00. [20] In considering the matter, I find an averaging of Mr. S.’s income over the last three years may culminate in an unfair result tohim. As such, I observe in 2016 and despite only having worked six months, Mr. S. earned $83,929.00 and thus far in 2017 he hasearned in excess of $40,000.00. In my view, it would be unfair to rely on Mr. S.’s 2017 income to establish his child support obligation. This is because, for a portion of 2017, Mr.

S. was not employed, a situation which is surprising given his skills, his age and his health. As such, I turn to the issue of imputing an income to Mr. S. [21] Madam Justice Fisher’s analysis in Chapple v. Sissons, 2008 BCSC 1740 provides guidance on the issue of imputing income. Specifically, at paragraphs 9 to 12 Madam Justice Fisher wrote: 1. Imputing income – s. 19 of the Guidelines [9] Section 19(1)(

a) of the Federal Child Support Guidelines permits this Court to impute income if a parent is intentionally under-employed. As Martinson J. stated in Hanson v. Hanson (BC SC), [1999] B.C.J. No. 2532 (S.C.): 8. Parents have a joint and ongoing legal obligation to support their children. In order to meet this legal obligation, a parent mustearn what the parent is capable of earning.

Section 26.1(2) of the Divorce Act says that the Guidelines "shall be based on the principlethat spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities tocontribute to the 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(1998), (BC CA), 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) [10] In order to impute income to Mr. Sissons, I must first find that he is intentionally under-employed. No bad faith is required. TheGuidelines are not designed to punish a parent who tries to avoid making child support payments.

They are designed to establish a fairstandard of support for children which ensures that they continue to benefit from the financial means of both parents after separation. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning and isintentionally unemployed if he or she chooses not to work when capable of earning an income: see Hanson at paras. 10-13. [11] Martinson J. set out the principles that apply when determining capacity to earn income (at para. 14): 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"no answer 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 earnincome is 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 as

availability 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 significantskills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at thelower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her childrensimply because the parent cannot obtain interesting or highly paid employment. 4.

Persistence in un-remunerative 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 careeraspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [12] An approach to determining and imputing income under s. 19 was described in Murphy v. Murphy, 2000 BCSC 974 ,[2000] B.C.J. No. 1253 (S.C.). To determine Mr.

Sissons’ Guidelines income, I must first determine what he actually earns and thendetermine if income should be added on to the income he actually earns. To determine actual earnings, full financial disclosure isnecessary. I may look at income from each source over the past three years to compare with the predicted income for the current year. To impute income I must first assess Mr. Sissons’ earning capacity.

In this regard, I will examine a number of factors: • whether he is under-employed; • whether he unreasonably deducts expenses from income; • whether he is not using property reasonably to generate income; • whether the income he receives from his own companies fairly reflects all money available to him for payment of childsupport. [22] In the circumstances, Mr. S. is a healthy relatively young man who has a long work history and he is possessed with skillswhich are clearly transferable beyond the movie industry. I also observe there have been occasions where, and for the sake of perception,that Mr.

S. has deliberately not pursued lesser positions within the movie industry. He has done this despite being able and capable. [23] Mr. S.’s decision not to pursue lesser work has resulted in prolonged periods of unemployment. During these prolonged periodsMr. S. has voluntarily decided to solely pursue work within the film industry. He has done this to the exclusion to work outside themovie industry. [24] Finally, the change in Mr. S.’s work positions has resulted in his wage fluctuating between $26.00 per hour and $50.00 perhour. [25] When I consider Mr.

S.’s circumstances, his previous earning history and his pattern of only pursuing work in the film industry,I impute a 2017 guideline income to Mr. S. of $75,000.00. [26] Based on the above Mr. S.’s 2016 guideline monthly child support for an income of $83,929.00 is $770.00 per month. For 2017Mr. S.’s guideline child support based on an income of $75,000.00 is $701.00 per month up to December 1, 2017 at which point it is$716.00 per month. 2. Payment

schedule for retroactive child support and

section 7 extraordinary expenses from June 1, 2016 to August 1,2017. [27] Counsel agree the amount owing to Ms. D. for child support for the period June 1, 2016 to August 1, 2017 is $11,000.00. Withthis amount in mind and after considering all of the relevant factors, I order that commencing January 2, 2018, Mr. S. shall pay aminimum of $150.00 per month towards his arears and thereafter he shall pay a minimum of $150.00 on the 2nd of each month until thearrears have been paid in full. [28] Counsel agree the outstanding

section 7 extraordinary expenses owed to Ms. D. for the period of June 1, 2016 to August 1, 2017is $13,000.00. With this amount in mind and after considering all of the relevant factors, I order that commencing January 2, 2018,Mr. S. shall pay a minimum of $150.00 per month towards his arrears and thereafter he shall pay a minimum of $150.00 on the 2nd ofeach month until the arrears have been paid in full. 3. Mr. S.’s proportional

section 7 extraordinary expense obligations. [29] Ms. D. has an income of $91,463.00 and I have imputed a 2017 income to Mr. S. of $75,000.00. As such, Ms. D.’s income is17.9 percent greater. Therefore, the proportional obligations are: Ms. D. is to pay 68 percent of the

section 7 extraordinary expenses andMr. S. must pay 32 percent of the expenses. 4. The cost of the

section 211 report. [30] The parties ask this court to determine if the cost of the

section 211 report should be proportionally shared, or shared on a 50percent basis. [31] In June 2017, a

section 211 report was prepared and it was agreed that Ms. D. would pay for the report with Mr. S. reimbursingher on it being determined if the cost is to be shared proportionately or on a 50 percent basis. Ms. D. paid $10,710.00 for the report. [32] When I consider all of the materials and the submissions of counsel, I do not see any reason why the

section 211 report should

not be shared equally. My view is further entrenched when it is recognized that Mr. S. has not paid any child support thus far. I therefore order that Mr. S.’s share of the

section 211 report is $5,355.00 which is 50 percent of the associated expense. Conclusion [ 33 ] Mr. S.’s imputed income for 2017 is $75,000.00. [ 34 ] Mr. S.’s contribution to retroactive child support is $150.00 per month commencing January 2, 2018 and due on the 2nd of each month thereafter until the sum of $11,000.00 has been paid in full. [ 35 ] Mr. S.’s contribution to retroactive

section 7 extraordinary expenses is $150.00 per month commencing January 2, 2018 and due on the 2nd of each month thereafter until the sum of $13,000.00 has been paid in full. [ 36 ] Mr. S.’s obligation for the

section 211 report is $5,355.00. [ 37 ] I will leave it to counsel to draft the order. _________________________ The Honourable Judge R. Harris Provincial Court of British Columbia