D.W.I. v L.A.P. Date:, 2015 BCPC 184

Citation: D.W.I. v L.A.P. Date: 20150619 2015 BCPC 0184 File No: 16911 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.W.I. APPLICANT AND: L.A.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BIRNIE Counsel for the Applicant: I. Lawson Counsel for the Respondent: self-represented Place of Hearing: Smithers , B.C.

Date of Hearing: June 5, 2015 Date of Judgment: June 19, 2015 [ 1 ] The issues on this hearing are:

a) what payment schedule, (periodic or lump sum) should be imposed for D.W.I. to pay the existing arrears of child support,

b) what amount of child support if any should be payable by D.W.I. to L.A.P. going forward from March 1, 2015.

c) whether any income should be imputed to L.A.P. over and above her current earnings. [ 2 ] These issues arise from L.A.P.’s application for retroactive and ongoing child support from D.W.I. which I heard and resolved in

part in a decision rendered on February 20 th of this year. That decision also related to D.W.I.’s application for parenting time and parenting responsibilities for the parties’ two children J.I. and M.I. The children are now 12 and 9 years of age. [ 3 ] In the decision of February 20 th I set out a parenting time regime by which the children spend six days with their father (D.W.I.) and 8 days with their mother (L.A.P.) every two weeks.

During the Christmas, Spring and Summer school breaks the children spend equal time with each parent as arranged from time to time between the parties. [ 4 ] In relation to child support I found that an annual income of $57,887.80 should be imputed to D.W.I. and held that he should pay retroactive child support in the amount of $4,994.00 for the period up to and including February 2015.

I ordered that he would pay these arrears in increments of $150 per month commencing March 1, 2015 and the first of each month thereafter until further court order but provided that either party could apply within 30 days of my decision to have this payment

schedule reviewed. [ 5 ] L.A.P. has filed an application to review this payment

schedule and asks that the arrears be payable immediately in one lump sum. [ 6 ] I did not make an order regarding the amount of child support payable by D.W.I. from March 1, 2015 onward as I had not been presented with the information required in s. 9 (

b) and (

c) of the Federal Child Support Guidelines regarding:

a) the increased cost of shared custody arrangements, and

b) the conditions, means, needs and other circumstances of each spouse and the children. Such information is required in order to make a child support order in a shared custody situation. I invited the parties to set the matter down for further evidence on these points. D.W.I. has done so and L.A.P. has responded. It is in the context of this further hearing that D.W.I. has raised the issue of income being imputed to L.A.P. [ 7 ] The parties have both filed affidavits and they were both cross examined on those affidavits at the hearing.

Based on those affidavits and the oral evidence of the parties I make the findings of fact set out below. I note that in relation to other background facts this decision should be read together with my decision of Feb. 20, 2015. Facts: [ 8 ] As of March 1 st the shared parenting has been 44/55, i.e. D.W.I. has the children 44.5 % of the time and L.A.P. has them 55.5% of the time. I have arrived at this calculation on the basis that the parties share the school breaks equally and that there are 12 weeks of school breaks during the year: three at Christmas, one over Spring break and nine weeks in the summer.

I then factored in the remaining weeks during the year on a 6/8 split every two weeks and assumed that the one day left over is shared equally. [ 9 ] The children are healthy and active. They have both taken music lessons and are also involved in other extra-curricular activities such a figure skating, band and downhill skiing. Both parents set out that they spend money on activities for the children - $1,200 for the father and $1,300 for the mother and it appears they are splitting the “extraordinary expenses” for the children. [ 10 ] L.A.P. works .8 of a fulltime job as a school teacher.

She gave evidence that this is on the advice of her doctor. She has been diagnosed with Seasonal Affective Disorder. She manages this with anti- depressants, exercise and SAD lights. The one day she does not work during the school week allows her to manage her home, family and work obligations in the context of this diagnosis. The last year that she worked full time was prior to the birth of the youngest child. This was in 2006. [ 11 ] The average of her last three years earnings from 2011 - 2014 is $58,643.

She earned less in 2014 - just under $53,000 as the result of the BC Teachers’ job action in the late spring and fall of that year. I find that the “salary indemnity plan” referred to on her pay stub does not result in greater earnings to her over and above the amount declared to Revenue Canada on her income tax returns. [ 12 ] She lives with the two children and her common law partner in a home on which she is currently paying a mortgage of approximately $180,000. Her living expenses with the children total about $2,000 less than her income.

The only “frills” in her expense sheet are annual vacation, pet care and charitable donations and meals outside the home - totalling all together $5,100.00). The expenses she attributes specifically to the children amount to $3,400 per year - $500 of which is for activities and $1,000 of which is for gifts. She spends $350 per year on their clothing and shops at consignment or second hand stores where possible. [ 13 ] Her common law partner with whom she has been living for approximately 3 years is retired and has a pension income of

$39,360 which will be reduced to $33,360 per year by 2019. He is the sole caregiver for his elderly mother who draws the old agepension and lives below the poverty line.

He has two adult children, one of whom has a mental illness and may require financial supportin the future and the other whom he hopes to help financially with a down payment on a home. [14] I infer that L.A.P.’s partner contributes to household expenses in some form and I consider it a reasonable inference that hewould pay his share of food, utilities, household repairs, and contribute to the mortgage and house insurance in the form of rent if notdirectly. I consider it reasonable to infer that he would contribute one third of these monthly costs - i.e. $8,270 per year.

From hisperspective this is a very reasonable amount of money to pay over a year for accommodation and food. [15] I accept that there would be some expenses for D.W.I. to earn the income I have imputed to him. If he were working at nearestthe airport in Smithers he would have transportation costs of getting back and forth to work - 140 km round trip. He has set out in hisaffidavit of March 27, 2015 that this would cost him $8,000 per year. I think this is somewhat high but accept that his fuel costs wouldbe about $6,000 per year.

He also says he would have childcare expenses for four hours per day if he were earning the income I imputedto him. I am not sure what his four hour a day estimate is based on or why the children could not go with the mother after school wherehe could pick them up if necessary. I accept that there might well be child care expenses in the morning and that this could cost himsome amount but in the absence of any explanation I have difficulty seeing why that would be for 2 hours each day.

I infer he wouldhave childcare costs totalling $2,000 per year. [16] The father also has a mortgage in the amount of approximately $68,000. I note the home he owns is valued at $75,000. He hasa debt in the amount of $5,500 with Revenue Canada as a result of his claim for one of the children under the “equivalent to spouse”being denied by Revenue Canada. He is in the process of appealing this assessment. This assessment has resulted from L.A.P. claimingboth children as dependents for the “under 18” credit for the years 2012- 2014. The under 18 credit is not available after 2014.

There isno issue that she is not entitled to claim this, but that by claiming it for both children D.W.I. is prevented from making any claim for oneof the children. [17] Both parties owe money in relation to lawyer’s fees. [18] The father’s expense statement shows him living about $2,000 under the income I have imputed to him and this would be about$6,000 over his imputed income if I add the notional fuel costs and childcare costs assuming he was working in Smithers at the airport.

This figure includes the retroactive child support which is ongoing only until it is paid off, and the full amount of his debt payments($7,500) which are also not ongoing expenses. I note his debt total as set out on his financial statement does not include an additional$5,000 which he expects to pay in legal fees. [19] The only “frills” in his expenses are charitable donations, pet care and alcohol totalling $2,660 per year. I note that his annualfood expense is somewhat high at $700 per month for himself and two children who are with him just less than ½ the time.

He claimsexpenses of $6,800 per year for the children $2,500 of which is for gifts and $2,400 for clothing. [20] D.W.I. owns a second vehicle - a 1969 El Camino which he has owned since he was 18 when he restored it. I accept hisevidence as to the current state of this vehicle as referred to in his affidavit of April 21, 2015. I also accept his estimate that the marketvalue of this vehicle is between $8,000 and $10,000 dollars. D.W.I. also owns an older Zodiac and trailer with an approximate marketvalue of $3,000. [21] He expects to inherit about $35,000 from his late brother’s estate sometime this year.

The only asset of value in his brother’sestate was a family home in Prince Rupert which has now sold for $157,000. After real estate and probate fees there will be $140,000remaining of which $70,000 will come off the top to go to his brother’s partner to reimburse her for income tax she was required to payon her receipt of an RRSP from his brother. Of the remaining $70,000 he will inherit one half. [22] L.A.P. has argued I should impute an inheritance to D.W.I. of $70,000. I am not prepared to do so.

I do not see that there is anyreason to disbelieve his accounting of his brother’s estate and I am prepared to accept his evidence without the provision of a copy of thewill. L.A.P.’s Income: [23] L.A.P.’s decision to work 4 days a week is related to her own health situation and is based on a diagnosis with seasonal affectivedisorder, for which she is under a doctor’s care. This decision is based on legitimate health needs and her 80% workload is not a basis toimpute income to her as if she were working full time. s. 9 - Child Support Guidelines: The Law: [24]

Section 9 of the Federal Child Support Guidelines requires flexibility and fairness to ensure the economic realities of bothfamilies situations are accounted for. There is no presumption in favour of the guideline amount for support or in favour of reducing thatamount. I must consider the actual sharing of child-related expenses as between the parties. Where each party is making an effectivecontribution I must consider how that contribution compares to the amount of table support for each of them as payor parents. Any claimfor hardship is not considered separately under s. 10 but as part of the s. 9 analysis.

Contino v. Leonelli-Contino, 2005 SCC 63 , [2005] 3 S.C.R. 217 [25] The starting point for the analysis in shared custody situations is the set off amount, i.e. how much would each parent pay theother if they were paying child support? In this situation L.A.P. would pay to D.W.I. a monthly amount of $889.00 if she were paying afull amount of support. D.W.I. would pay to L.A.P. the amount of $878.00. This set off amount is $11.00 per month. [26] The parenting time as between the parties overlaps to some extent. L.A.P. has one or more of the children with her on 8 full

days and two ½ days every two weeks. D.W.I. has one or more of the children with him on 6 full days and two half days. One way to reflect this is to look at the amount of maintenance each would pay the other if the table amount were adjusted in accordance with the amount of time each parent has with the children. In this case that would result in D.W.I. paying 55. 5% of $878 ($487.29) to L.A.P. and L.A.P. paying 44.5% of $889, ($395.60) to D.W.I.

The set off amount is then $91.69 payable by D.W.I. [ 27 ] The aim of this exercise is to ensure the children have a reasonably equivalent standard of living in both homes. I must approach this on the basis of the income I have imputed to D.W.I. and not his actual income. I must consider his reasonable expenses rather than his actual expenses.

I also consider the fact that there would be some additional expenses for him to earn the income I have imputed to him and that he has not been able to claim the equivalent to spousal deduction for one child on his income tax. [ 28 ] I consider the gift and clothing amounts he spends on the children and his food expenses to be quite high. I am therefore adjusting the amount he spends on gifts for the children to $1,000 which reflects the amount spent by L.A.P. I am also adjusting his food expense to $7,000 per year from $8,400 - again to reflect the amount spent by L.A.P.

I adjust the amount he spends on clothing for the children to $1,000 per year. While this is about three times what L.A.P. spends ($350), I do not consider a total amount of $700 per year for clothing for two growing children to be realistic. For the purpose of getting a sense of his actual expenses before child support I am also subtracting the $1,416.00 he has included as an expense in this regard. Thus a total of $5,716.00 as a reduction in his claimed expenses. [ 29 ] I note that I do not consider his ownership of the Zodiac and trailer to be unreasonable nor his retention of the El Camino.

The Zodiac is used in part to take the children on excursions and I note D.W.I. has made no claim for any vacation related expenses. [ 30 ] To his total expenses I am adding $8,000 to reflect a notional amount for fuel and child expenses if he were to be earning the income I have imputed to him by travelling to the nearest airport location in Smithers. I am also adding an additional $5,000 to reflect his actual anticipated legal expenses, which he says will be about $7,000 rather than the $2,000 set out on his financial statement.

Thus: $55,426.24 minus $5,716.00 plus $13,000. [ 31 ] These adjustments result in a total income to D.W.I. at $57,887 and total expenses in the amount of $ $61,710.24. Once his debts are paid off, including his debt for retroactive support the total expenses will be reduced by $14,300 to $47,410.34. [ 32 ] For L.A.P. I subtract from her expenses the contribution for basic living expenses I have attributed to her partner, i.e. $8,270.

This leaves her with $47,105.45 in expenses once she has paid off her current debts of $4,800.00. [ 33 ] The tax credit issue raised by D.W.I. and the debt he has incurred in relation to that is with respect to the tax years 2012 - 2014 during which time L.A.P. was the primary caregiver for the children and during which time D.W.I. was not paying child support to her. It is not an issue going forward as the under 18 tax credit is not available after 2014.

I do not think this potential debt obligation - given the parenting time realities during the time it relates to are a proper basis to reduce or adjust any future child support obligation. [ 34 ] In this case I find that the parties effective contribution is equal based on their actual reasonable expenses specifically for the children though D.W.I. pays slightly more for childcare. If L.A.P. were paying support that amount would equal $889 per month or $10,668 per year.

To calculate what she is actually contributing over and above her specific child-related expenses I consider that 1/3 of housing, household, utility and pet expenses are attributable to the children (keeping in mind my inference that her common law partner contributes 1/3 to these expenses as well). I consider that half of her transportation expenses are attributable to the children. This results in her effective dollar contribution per year as $11,481. [ 35 ] If D.W.I. were paying support he would pay $878 per month or $10,536 per year.

To calculate his effective contribution I consider half of his housing, utility, household expense, pet and transportation costs to be attributable to the children. This results in his effective dollar contribution at $13,593. [ 36 ] The parties’ actual incomes and expenses are roughly equal. Their contributions to specific child-related expenses are roughly equal.

D.W.I.’s effective contribution to support for the children is about $2,000 higher than L.A.P.’s over a year, though if the fact he has the children with him about 44% of the time is factored in this is again roughly equal. [ 37 ] I appreciate that this is not a strict mathematical exercise but considering all of the factors in this case I find that the result which recognises the economic realities and respective contributions of each party is that neither party should pay child support to the other. Payment of arrears : [ 38 ] L.A.P. argues that D.W.I. should pay the arrears immediately in one lump sum.

He argues that the current payment

schedule of $150 per month should be maintained. It is not realistic for D.W.I. to pay the maintenance arrears currently owing in a lump sum. He simply does not have the money. However, he will have the resources to do so once he receives his inheritance later this year. His obligation for child support must take precedence over his other debts.

He will continue to pay $150 per month toward the arrears of child support as set out in my order of February 20, 2015 but must pay the balance owing within 30 days of his receipt of his inheritance and in any event no later than December 31, 2015. [ 39 ] Since D.W.I. has been partially successful on this application I expect his counsel will draft the Order. _______________________ C. Birnie

Provincial Court Judge