B.G.I. v. J.C. Date:, 2017 BCPC 254

Citation: B.G.I. v. J.C. Date: 20170823 2017 BCPC 254 File No: 16688 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.G.I. APPLICANT AND: J.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. L. Scruton Counsel for the Respondent: Ms. J. Reed Place of Hearing: Kamloops , B.C.

Date of Hearing: August 2, 2017 Date of Judgment: August 23, 2017 [ 1 ] This commenced as an application for interim spousal support, fixing retroactive spousal support, an order for repayment of the retroactive spousal support and a production of certain probation records. The production of the probation records was already dealt with and a separate order made. [ 2 ] As Ms. Reed set out in her submissions, J.C. must establish that she has a prima facie case for spousal support.

Assuming that she satisfies that ground, the court must then determine the quantum of the spousal support, arrears, if any, and B.G.I.’s income for the purposes of calculating ongoing support. [ 3 ] Before embarking upon consideration of these outstanding issues, it is useful to revisit the parameters of an interim order. As the courts have stated many times and in many ways, interim orders are not intended to be determinative of the final issues. They are, at best, rough justice meant to carry the parties through to trial.

The court must be careful, therefore, not to delve into the merits of the case that will be tried at trial or to in any way tie the hands of the trial judge with findings of fact that have not been explored fully on all of the available evidence. [ 4 ] Consequently, it is not my role in determining what I should do with this interim order to make final findings with respect to whether J.C. is entitled to spousal support, or for how long. Nor is it my role to decide with any finality how B.G.I.’s obligation for either spousal support or child support should be calculated.

I must be particularly careful not to make any findings that would impair the trial judge in any way in determining whether there are arrears and how much those arrears are. [ 5 ] Dealing first then whether J.C. is entitled to spousal support. The standard on an interim application is whether she has established a prima facie case, not whether she has proved her claim. The issue here is when the true date of separation occurred. J.C. points to the reconciliation following separation in October 2014. She said the parties continued in that reconciled state until November 2015.

If that is the case, then J.C. would be within time for making her application. The parties were in a common-law relationship that commenced in March 2013. They have one child of that relationship, B.I., born [omitted for publication]. [ 6 ] B.G.I. said that the parties ended their relationship in October 2014. He points to J.C.’s move away from the family home into a family’s rental home. J.C. said that was because there was a no-contact order that had been imposed upon B.G.I.

J.C. also points to B.G.I.’s own evidence before Judge Church, as she then was, that they reconciled in June or July of 2015, sold the home in Quesnel in September 2015 and ultimately split in November 2015. [ 7 ] There is other evidence on the transcripts supporting this but also evidence that may ultimately lead the trial judge to the conclusion that the relationship ended earlier.

At this point, I am prepared to find that there is a prima facie case that the relationship ended in November 2015 entitling J.C. to bring this application. [ 8 ] I am not prepared, given the outstanding issues before the trial judge, to make any findings about what arrears may be owing. The evidence led before me is that there were payments made to J.C. by way of an account for which B.G.I. gave J.C. his bank card.

The parties were either in a relationship in which case J.C. was not entitled to spousal support or child support, or they were not in a relationship in which case B.G.I. may or may not have been paying adequate amounts into that account to cover both child support and spousal support. That is a matter for the trial judge to resolve. In any event, B.G.I. seized making those payments in May 2015 which coincides with his evidence before Judge Church that they reconciled in June 2015. He did not begin paying formal child support (although no order has yet ever been made) until December 2015.

While it is to his credit that he has paid child support in a reasonable amount since then, it also supports J.C.’s evidence that the separation was in November 2015. [ 9 ] I am satisfied on the balance of probabilities for the purposes of this interim order that the separation date was November 2015. [ 10 ] The next issue is the amount of B.G.I.’s income for the purposes of calculating spousal support. B.G.I. has enjoyed a fairly substantial income throughout the parties’ relationship.

Following the relationship, while he has paid child support appropriately based on an income of $116,000 per annum, he has paid nothing towards spousal support. His attitude toward this is not the legal and arguable one his counsel advanced but is much more vulgar, inappropriate and lacking in insight. This culminates in a fairly misogynistic comment “typical women can’t make a career for herself so got to freeload off their X ha ha”. [ 11 ] It is no wonder, then, that Mr. Cotter is suspicious of B.G.I.’s sudden drop in income to $64,010 in 2016.

B.G.I. attempted to explain his reduction in income on four fronts at the hearing. One was that he was spending more time with his son given the parenting time arrangements that had been reached and therefore he was unable to take as many contracts. He used to work seven days a week and now only works when he does not have his son. He also claimed that he took a reduction in his share of the income from a jointly owned business with a friend, at North Pro Contracting Ltd. because he was no longer putting equal effort into the work for that company.

That may be an equitable arrangement he reaches with his business partner but is not one he ought to have reached in the uncertain period following separation where his financial obligations were bound to be sorted. He also claimed that the reduced income was a result of having to pay deferred taxes. This explanation defies logic. There is no internal consistency in that explanation. Perhaps that evidence will be more fully explored at trial. Perhaps not. It appears, in any event, that he has deducted his deferred taxes from his actual income.

While that may be a legitimate tax filing, it is unlikely to be the one used by the trial judge. In any event, in his financial statements sworn March 24, 2017, he said he did not anticipate that this deferral would cause his income to decrease in 2017. In other words, this should be a one-time occurrence. [ 12 ] That being said, it is inappropriate to consider these “bumps” in the road when assessing appropriate support. In such cases, it is appropriate to average the prior three years of income. That average is $101,652. [ 13 ] B.G.I. argued that J.C. is also under employed.

She has training as a welder and worked in that field. Both parties agreed that

she could no longer be a welder if she was going to be parenting their child. She also has training as a care aide but, due to scoliosis and incomplete spina bifida, as well as knee surgery, she is no longer able to do that work. [ 14 ] He also paid for her to take a nail esthetician’s course. However, she did not pursue this work. Finally, he also paid for a photography course and she has not pursued work in this field.

There is no evidence yet before the court that these two isolated courses would have led to meaningful employment or better income. [ 15 ] There is no question that J.C. is expected in the time that she is receiving spousal support to upgrade herself and obtain employment that will be meaningful and supportive of her. She will have to establish to the satisfaction of the court that she has taken the necessary steps to do so. Her only source of income at this point has been waitressing for her parents’ business which does not seem, on its surface, to be adequate. That is a matter for the trial judge to determine.

For the purposes of the interim application, I can satisfy myself that if she had pursued any of these fields, she would still be far below the income enjoyed by B.G.I. In the meantime, I am satisfied that the appropriate income for J.C. is the proposed amount of $25,000. [ 16 ] Counsel has calculated the appropriate low, mid and high range Spousal Support Advisory Guideline calculations based on B.G.I.’s average income of $101,652 and J.C.’s income of $25,000.

The low range amount for spousal support would be $961, assuming child support of $935; the mid-range would be $1,313, assuming child support of $935; and the high range would be $1,669, assuming child support of $935. [ 17 ] In circumstances such as this where spousal support has not been paid since the date of separation, it may be appropriate to consider the mid or high range. B.G.I. argued, however, that J.C. received the benefit of 50% of the equity of the Quesnel home when it was sold.

He said that both of them contributed a down payment but he was responsible for all of the mortgage payments and renovations thereafter. [ 18 ] Division of assets is not a matter for the Provincial Court. Had he paid J.C. more than 50% of the equity in the home when it was sold, I would take that into consideration on this interim application. However, they owned the home together and received 50% each of the net proceeds after it was sold.

Any other credit to be granted to B.G.I. in this regard must be left for the trial judge or, perhaps more appropriately, to Supreme Court proceedings where division of assets must be resolved. For the purposes of the interim order, I view the payment to J.C. of her equity in that property to be precisely that: her entitlement. [ 19 ] In all other cases, it is appropriate to use the low range for an interim order pending the final hearing.

That is the range I am going to use in this case but assuming that B.G.I. is continuing to pay his child support at $1,035 per month, not reducing it to $935 to reflect the three year average. Child support is not before me and I make no order on it. If B.G.I. reduces his child support unilaterally, then the appropriate amount of spousal support would be the mid-range of$1,313. I order that B.G.I. pay to J.C. the sum of $961 per month in spousal support commencing August 1, 2017. [ 20 ] To be clear, this is an interim order only.

Both parties have liberty to address the appropriate spousal support and entitlement issues before the trial judge. ________________________________ S.D. Frame Provincial Court Judge