R.J. v. J.H., 2023 BCPC 22

Citation: R.J. v. J.H. 2023 BCPC 22 Date: 20230201 File No: 16939 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.J. APPLICANT AND: J.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on her own behalf: R.J. Appearing on his own behalf: J. H. Place of Hearing: Kamloops , B.C. Date of Hearing: December 1, 2022 Date of Judgment: February 1, 2023

[ 1 ] This is an application by J.H. to vary his child support and spousal support obligations. A final order was entered with respect to same on June 4, 2019 at which time J.H. was found to be a resident of Alberta with a gross annual income of $85,780. Arrears were set based on the findings of his income. Reductions were made for travel because J.H. then lived in Alberta. Special or extraordinary expenses were set at 83% for J.H. and 17% for R.J. [ 2 ] J.H. was also ordered to pay R.J. $200 per month in spousal support until a review in September 2020.

This was based on R.J.’s income earning capacity, the needs of the children and the time required for R.J. to achieve self-sufficiency. [ 3 ] The parties were to exchange their income tax returns each year by June 1. [ 4 ] The order obligated the parties, upon exchanging their income tax returns and notices of assessment, to discuss any material change in circumstances that would warrant a change in the amount of child support payable. The parties were to consult with Family Justice before bringing an application to change the order.

They did not. [ 5 ] As I said, J.H. was working in Alberta in the oilfield at the time of this order. Subsequently, J.H. was laid off and the company he worked for, a family company, “went under”. As a result, J.H. moved back to British Columbia and was able to live in a temporary arrangement in [omitted for publication] near R.J. and his children. [ 6 ] J.H. had a new partner, D.; rentals in [omitted for publication] were very high; employment opportunities did not meet the expenses; so he moved in with her in Kamloops.

It became infeasible for him to travel to [omitted for publication] for work between the time and the fuel costs. He left the employment in [omitted for publication] and found employment in Kamloops. [ 7 ] R.J. also moved in with her new partner in Kamloops. She said that was to help J.H. fulfil his promise to assist her so that she could work more. However, there were multifaceted reasons for that move, not the least of which was to live with her partner.

In July 2022, the parenting arrangement became equally shared between J.H. and R.J. [ 8 ] In her Financial Statement, R.J. says that she is unemployed with an annual income of $41,742.36, which appears to be comprised of employment and employment insurance benefits. She also says that she and her partner have an agreed contribution scheme but that scheme does not impact J.H.’s obligations. [ 9 ] J.H.’s annual income in his Financial Statement is disclosed at $45,830. This is considerably less than he earned while working in the oilfields in Alberta, which is a common theme.

His overall income in 2020, including after he returned to British Columbia, was $60,223.08. In 2021, his gross income was $45,830, and in 2022 his gross income was approximately $53,654. There is no question that the move from Alberta, necessitated by the termination of J.H.’s employment, resulted in a much lower income than he previously enjoyed. [ 10 ] Had the parties exchanged their financial information as required by the court order, the parties would have to determine if there was a material change in circumstances warranting a variation in the child support.

I find that these circumstances are a material change. Child Support [ 11 ] J.H. filed evidence of his requests for R.J. to comply with the order that she provide her income on an annual basis. She has not done so. It is appropriate to adjust J.H.’s child support obligations back to 2020. [ 12 ] J.H.’s gross annual income for the purpose of child support for 2020 is $60,223.08, resulting an obligation to pay child support for two children in the sum of $931 per month commencing January 1, 2020.

His annual gross income for 2021 is $45,830, with an obligation to pay child support for two children in the sum of $709 commencing January 1, 2021. In 2022, J.H.’s gross annual income was approximately $53,654 resulting in a child support obligation for two children of $824 until and including June 1, 2022. [ 13 ] However, as of July 1, 2022, J.H.’s child support obligation is set off against R.J.’s child support obligations. R.J.’s annual income for 2022 is $44,900, which would have been a child support obligation of $693. This reduces J.H.’s child support obligation to an actual payment of $131.

The parties have a continued obligation to exchange their income tax returns and notices of assessment annually. I order that they do so by June 1 of each year and that the child support obligations be adjusted in accordance with those line 150 incomes as of July 1 each year commencing in 2023. The Recalculation Services shall conduct the calculations for the parties. The parties are cautioned that a failure to produce their financial information may lead to fines.

Special or Extraordinary Expenses [ 14 ] Similarly, the special or extraordinary expenses have been apportioned disproportionately since J.H.’s change of employment. R.J.’s income for 2020 was $28,697 and 2021 was $32,586. The appropriate apportionment of special or extraordinary expenses based on these income levels was 68% for J.H. and 32% for R.J. in 2020; and 58% for J.H. and 42% for R.J. in 2021. For 2022, the special or extraordinary expenses are apportioned 54% for J.H. and 46% for R.J. This will also be reviewed annually upon the exchange of their financial information.

The parties are reminded that there are financial consequences by way of penalties to be paid to the other party should either party not produce the financial information required. [ 15 ] I also note that the parties may not appreciate precisely what does constitute a special or extraordinary expense. There are certain ones enumerated in the Guidelines but there are also other activities and expenses such as clothing which the parties have disputed. It is for the payee to attend to the purchase of the necessary clothing and activities as well as school fees for the children.

If the payor chooses to pay or purchase something for the children, the payor cannot expect the payee to contribute to that expense or to deduct it from child support. If the parties agree that something will constitute a special or extraordinary expense, particularly if R.J. fulfils her obligation to

become self-sufficient, then those expenses may well be appropriately shared. Spousal Support [ 16 ] The purpose of setting the spousal support was to provide time for the parties’ youngest child to commence Kindergarten. That has now happened. Over that time, R.J. became self-sufficient to the extent that she was able to earn income almost as high as J.H.’s current income.

J.H. said the parties had agreed that the spousal support obligation would end when he returned to British Columbia. [ 17 ] The documentation provided to Family Maintenance in September 2020 confirms R.J.’s evidence that she was only prepared to forgive six spousal support payments of $92.30 each, amounting to a total forgiveness of $553.80 of arrears. J.H. continued to be obligated to pay spousal support until the review was concluded following the commencement of Kindergarten of the youngest child. [ 18 ] R.J. said that she requires more time to make herself self-sufficient.

However, she has been able to hold two positions of employment which also accommodated the children’s schedule. This was in part because she said she moved to Kamloops in order for J.H. to support her with childcare. She claimed that he did not do so. [ 19 ] R.J. was dismissed in the fall of 2022 as a result of a conflict with someone at work. This is entirely due to R.J.’s personal issue as opposed to her lack of self-sufficiency.

I find that she has become self-sufficient and that the self-sufficiency obligation came to being within one year of their youngest child commencing Kindergarten. [ 20 ] I find that there has been adequate time for R.J. to make herself sufficient now that the children are in school. I find that J.H.’s obligation to pay child support ended within a reasonable time of her being able to do so, which is September 30, 2021. Reconciliation [ 21 ] I appreciate that this has likely created an overpayment of child support and an underpayment of spousal support for J.H.

After the reconciliation has been completed by Family Maintenance Enforcement Program, any balance owing to J.H. will be set off against his ongoing obligations until that credit is paid in full. Any deficit owing by J.H. shall be paid at a rate of $100 per month until paid in full. Those arrears payments are to commence on March 1, 2023. ______________________________ The Honourable Judge S.D. Frame Provincial Court of British Columbia