A.S.G. v. I.M.E., 2021 BCPC 323

Citation: A.S.G. v. I.M.E. 2021 BCPC 323 Date: 20211125 File No: 17552 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.S.G. APPLICANT AND: I.M.E. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. DOREY

Counsel for the Applicant: M. Sodagar, K. Hemmati Counsel for the Respondent: A. Paranagama Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: October 21, 22, 2021 Date of Judgment: November 25, 2021 (appearance by telephone) Introduction [ 1 ] THE COURT: The parties separated in July 2014 following a 10-year marriage and were divorced on October 1, 2021. They are both 41 years of age. The parties have two children of the marriage: N.G., age 11 years, and A.G., age eight years. [ 2 ] The parties have been embroiled in family proceedings in this court and in the Supreme Court over the past three years.

The current relationship between the parties is best described as strained. I.M.E. continues to experience a great deal of emotional distress arising from the circumstances surrounding the breakup of their marriage over seven years ago. This was obvious from her testimony during the hearing. This has, unfortunately, negatively impacted the parties' communications with each other in relation to the children.

More concerning from the testimony of the parties is that the bitterness I.M.E. harbours towards A.S.G. has interfered with and adversely impacted A.S.G.'s parenting time and relationship with his children. [ 3 ] The main issues in contention between them in this court relate to the issues of parenting time, the sharing of parental responsibilities, the management of their son's diabetes in relation to the issue of I.M.E.'s entitlement to ongoing spousal support and, as well, prospective child support.

The parenting issues were resolved on June 23, 2021 through a comprehensive interim consent order. [ 4 ] I.M.E. has been periodically represented by legal counsel throughout these proceedings; however, she was self-represented on June 23rd which was the application which resulted in the interim consent order. [ 5 ] The issues of ongoing child and spousal support were adjourned over from June 23rd to a two-day trial on October 21 and 22, 2021.

I.M.E. was represented by newly-appointed counsel for this hearing. [ 6 ] On the first day of this trial, I.M.E., through counsel, advised that she intended to seek a variation of the interim consent order to reduce A.S.G.'s overnight parenting time due to a change in circumstances in relation to A.G.'s diabetic management while in A.S.G.'s care. She also sought to seek a name change for the children. I note there was no formal application before the court to deal with these issues. [ 7 ] Counsel for A.S.G. advised the court that these issues were unknown to A.S.G. and objected to them proceeding.

At the end of the first day of trial, A.S.G. advised the court that he wished to deal with I.M.E.'s applications to vary the consent order. Although I allowed I.M.E. to proceed with her applications, I indicated that the support issues would be dealt with in priority to her applications as they were fully and properly before the court and had been scheduled to proceed for several months. [ 8 ] The first part of these reasons address the ongoing child and spousal support issues. The second part of these reasons deal with I.M.E.’s application. [ 9 ] The parties and counsel appeared by telephone for my decision.

A.S.G. was not present on the line for my decision on the support issues but appeared later on the line after the break. Background and Factual Chronology [ 10 ] By way of background, A.S.G. was born in Moscow, Russia and came to Canada as a teenager with his mother, younger brother and sister. He became a permanent resident in March 1997 and is now a Canadian citizen. [ 11 ] I.M.E. is a dual citizen of Canada and Mexico. I.M.E.'s parents originally came to Canada in 1986 for work and for studies. Her family returned to Mexico after the birth of I.M.E.'s younger sister in Vancouver.

In 1996, I.M.E. and her family returned to Vancouver as political refugees. In 2003 her parents' refugee claim was denied. I.M.E. and her parents returned to Mexico. Her sister remained in Vancouver as she was a Canadian citizen. [ 12 ] The parties met in high school in Burnaby where they began dating in their senior year. In the summer of 2003, A.S.G. travelled to Mexico to propose marriage to I.M.E.

On May 1, 2004, I.M.E. arrived in Vancouver and the parties commenced cohabitation and married three months later in August 2004. [ 13 ] A.S.G. sponsored I.M.E. under the Family Sponsorship category with Canadian Immigration authorities. In 2009, I.M.E. became a permanent resident in Canada. In 2005, A.S.G. purchased a two-bedroom condominium in Coquitlam which became the matrimonial home. [ 14 ] In 2007 A.S.G., at I.M.E.'s urging, made an application to sponsor I.M.E.'s parents to become residents of Canada under the Parental Family Sponsorship category.

The application was granted by Canadian Immigration authorities and I.M.E.'s parents landed and became permanent residents of Canada in April 2013. A.S.G. deposes that he has a 10-year sponsorship undertaking to I.M.E.'s parents which expires in April 2023. Pursuant to this undertaking, A.S.G. is ultimately financially responsible for I.M.E.'s parents in the event they require financial assistance.

A.S.G. financially supported I.M.E.'s parents during their first year in Canada. [ 15 ] I.M.E. worked as a cashier earning minimum wage at a Dollar Store from 2007 until 2008 before their first child, N.G., was born in July 2009. The plan between the parties is that she would return to the workforce once N.G. started school. I.M.E. remained a stay-at- home parent after A.G., their second child, was born three years later. [ 16 ] At age one, A.G. was diagnosed with juvenile diabetes. As a result of this diagnosis, A.G. is on continued blood sugar monitoring

and is given insulin shots several times a day according to his blood readings. Both parents received training at Children's Hospital in proper diabetic management and care. While at school, the school nurse and teachers' aides check on A.G. and I.M.E. visits A.G. during lunchtime each day. [ 17 ] A.S.G. moved out of the family home following their separation seven years ago. I.M.E.'s parents subsequently moved back into the condominium to assist I.M.E. with the running of the home, the care of the children, and to provide emotional support to I.M.E.

I.M.E.'s parents do not pay rent or contribute to the operating costs of the home but they contribute to the household by purchasing weekly groceries. [ 18 ] A.S.G. works in the field of information technology and management and his job allows him to work remotely from the home. He lives in a two-bedroom basement suite he rents within a three-minute drive or a 15-minute walk to the children's elementary school. He lives in close proximity to I.M.E.'s home. [ 19 ] I.M.E. has not worked outside the home since the relationship ended.

The principal reason she has not done so, she claims, is because she is needed to manage the diabetic care of their son during the school day. In 2019, I.M.E. returned to school to train to become an education assistant. She aspires to work as a teacher's aide in A.G.'s school and in this way, she testifies, she can continue to help manage his diabetic care. [ 20 ] I.M.E. completed her course work and one of two practicums prior to the start of the COVID-19 pandemic in March 2020.

According to I.M.E.'s testimony, she is qualified to work as a teacher's aide in the independent school system but requires completion of the second practicum to work as a teacher's aide in the public system in Coquitlam. [ 21 ] On October 1, 2021, the parties resolved their Supreme Court action when a final order was entered granting their divorce and resolving all issues in relation to property division. As a result of this order, the family debts were settled and I.M.E. bought out A.S.G.'s interest in the family home.

As part of the settlement which led to the consent order, I.M.E. agreed to forego her claim for retroactive support. Issues [ 22 ] The support issues before me on this application are: 1. What is A.S.G.'s Guideline income for the purposes of determining prospective child and spousal support? 2. What is the quantum of A.S.G.'s child support? 3. Is I.M.E. entitled to ongoing spousal support? A related issue is whether income should be imputed to I.M.E. due to her unemployment. 4. Should special expenses be allocated between the parties respectively?

Issues 1 and 2s [ 23 ] What is A.S.G.'s Guideline income for the purposes of determining prospective child and spousal support and what is the quantum of A.S.G.'s child support? Legal Principles [ 24 ] The Family Law Act SBC 2011 25, which I will refer to as FLA throughout these reasons, imposes a duty on a parent or a spouse to provide support for the child. The legal principles which apply to all child support applications, including applications to vary or change the support amounts or to cancel or reduce child support arrears, are discussed by Madam Justice Martinson in the seminal case of Earle v.

Earle , 1999 BCSC 283 . With regard to child support generally, those principles are: 1. Parents have a joint and ongoing legal obligation to support their children; 2. Child support is the right of the child, not the parent with custody; 3. Child support is based on ability to pay. Ability means not what a parent earns but what he or she can earn. This means that parents have a legal duty to earn as much as they are reasonably capable of earning to meet their support obligations to their children. ( Earle v. Earle paras. 16, 17, 18), ( P.L. v. J.D.L . , 2013 BCSC 1492 at para. 21 , citing G.S. v.

W.G. , 2006 BCSC 991 ). [ 25 ] In light of these principles, I remind the parties of the importance of what the court has had to say in Earle v. Earle as both parents have the legal duty to support their children. [ 26 ] The Federal Child Support Guidelines, (the “Guidelines”) were adopted in British Columbia by regulation under the Family Relations Act and in 2013 under the Family Law Act . The Guidelines provide parameters to determine income and child support, the sharing of special and extraordinary expenses, disclosure relating to income and penalties for non-disclosure of income.

The objectives of the Guidelines are set out in s. 1 and are fourfold: 1. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; 2. to reduce conflict and tension between spouses by making the calculation of child support orders more objective; 3. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

4. to ensure consistent treatment of spouses and children who are in similar circumstances. [ 27 ] Under the Guidelines, child support has two components: regular monthly support which is intended to be a contribution towards the basic costs of raising a child, and special or extraordinary expenses. The Guidelines look only at the payor parent's income and Table A support amounts for the province in which that parent lives, to determine that parent's contribution of child support.

The Guidelines do not require the court to consider the recipient parent's income or how that parent allocates the resources to the child's portion of household expenses. [ 28 ] The amount of child support is usually determined in accordance with the Guidelines and is calculated from the payor parent's annual total income from all sources as set out under the heading "Total Income" in the T1 General form and is adjusted in accordance with

Schedule 3. This is the Guidelines at s. 16. This is what we mean by the term "Guideline income". A.S.G.’s Income and Employment History [ 29 ] I now turn to a consideration of A.S.G.'s education and income employment history. [ 30 ] After completing high school, A.S.G. obtained a Business Administration and Computer Science Diploma from Capilano University and he holds various IT industry certifications. A.S.G. has worked variously in the field of information technology.

He began as an IT administrative consultant in 2014 and changed career direction when he transitioned to working as a consultant in system architecture which was much more remunerative. He has been employed with the same employer, [omitted for publication], now [omitted for publication], since 2015. His current base salary is $113,000 per annum plus bonuses. A.S.G.'s earnings have increased steadily post separation.

His employment earnings are summarized from his testimony and Notices of Assessment and are as follows: 2014, which is the year of separation, $65,182; 2015, $78,751; 2016, $104,286; 2017, $95,154; 2018, $127,596; 2019, $127,439; 2020, $130,030. [ 31 ] Because A.S.G. works entirely from a home office, he claims an office expense deduction on his T1 General Tax Return. A.S.G.'s annual rent is $14,400 and he claims a 50 percent office deduction or $7,200 per annum on his tax return.

The home office expense reduces his income for the purpose of determining his Guideline income for quantifying child and spousal support under the Guidelines. It is undisputed that pursuant to s. 3 of the Federal Child Support Guidelines the home office expense may be deducted from the payor parent's income. Based on A.S.G.'s pattern of earning, counsel submits that his gross income is in the range of $115,000 to $120,000 after accounting for the home offence expense.

A.S.G.'s Expenses and Support Payments [ 32 ] Since separation, A.S.G. voluntarily paid $1,200 per month in child support and all of the expenses related to the condominium, including the mortgage payments, insurance strata fees and property taxes and utilities to ensure that I.M.E. and the children had a home to live in. This arrangement was eventually formalized in an interim without prejudice order of Judge Brown on May 25th, 2020. This order was made so as to permit A.S.G. to claim the spousal support payments as a deduction on his income tax return.

Canada Revenue Agency would not allow A.S.G. to deduct voluntary spousal payments. Until this order was made, I.M.E. received the child support payments tax free. [ 33 ] According to A.S.G.'s 2021 financial statement, he paid more than $1,400 per month to service the mortgage and household expenses as ordered by Judge Brown's order. In reality, these expenses total $1,636 per month, including $100 per month for utilities.

A.S.G. paid these expenses monthly until the condominium was transferred to I.M.E. further to the Supreme Court order granted in October 2021. [ 34 ] A.S.G. also paid $475 per month to service a home line of credit with RBC. He explained in his testimony that he incurred the line of credit to make ends meet as he was supporting two households on his income as I.M.E. was not working and her parents were not contributing to the condominium expenses.

This debt grew to $172,017 as of July 13, 2021 and was cleared as part of the settlement the parties reached on property division in the Supreme Court action. [ 35 ] As touched on above, A.S.G.'s annual rent is $14,400. He pays approximately $6,800 per annum to own and operate his car. His annual living expenses for food, clothing and entertainment total approximately $13,000. A.S.G. also pays $360 per month, or $4,320 per annum, for tutoring both children with Kumon, and $1,500 per annum for non-covered medical expenses for A.S.G. for his diabetic supplies.

Child Support [ 36 ] For the purposes of determining child and spousal support the parties were in agreement during submissions to fix A.S.G.'s Guideline income at $120,000. Using this income and Table A from the Guidelines, A.S.G.'s monthly child support amount is $1,781 for the support of two children. [ 37 ] Accordingly, I order A.S.G. to pay I.M.E. monthly child support for the children in the sum of $1,781 commencing December 1, 2021 and continuing on the first day of each month thereafter until further order of this court or upon a further agreement of the parties.

Issue 3 [ 38 ] Is I.M.E. entitled to ongoing spousal support? If so, is I.M.E. intentionally unemployed or under-employed and should income be imputed to I.M.E.? I.M.E.'s Income and Expenses [ 39 ] I.M.E.'s 2020 and 2021 income from all sources consists of $17,400 spousal support, $14,400 child support, and $13,229 in Canada Child Benefits. These benefits cover the added costs of a parent caring for a child with complex health needs. When combined,

I.M.E.'s total income from these sources is $45,029 per annum. She also receives a contribution of $665 per month from her father towards household groceries, according to her financial statement. [ 40 ] I.M.E. has special expenses totalling less than $500 per annum for school supplies and non-insured medical costs for A.S.G. in light of her testimony in cross-examination. [ 41 ] As stated earlier, I.M.E.'s parents live with her and the children. I.M.E. reports on her financial statement that her father, Mr. D., has annual income of $43,296. Her mother, Ms.

D., is a fulltime homemaker. [ 42 ] The parties agreed in the property settlement that I.M.E. would buy out A.S.G.'s one-half interest in the condominium which, at the time of settlement, was assessed at $398,700. Pursuant to this agreement the parties agreed that A.S.G. would assume the greater portion of the family debt than I.M.E.

The portion of this debt totalled $90,000. [ 43 ] After clearing the family debts and mortgage, including the debt of $90,000, A.S.G. received $66,168 from I.M.E. for her share of the mortgage, family, and personal debts. [ 44 ] In exchange for A.S.G. assuming the greater portion of the family debt, I.M.E. agreed to forego her claim for retroactive spousal support in the Supreme Court order. In her evidence in chief, I.M.E. disclosed that she borrowed $342,000 from a private lender to buy out A.S.G.'s portion of the condominium and to pay off her share of the mortgage and family debts.

She has monthly mortgage payments of $1,888. [ 45 ] She testified that her lender gave her a one-year mortgage as an incentive for her to find a job in her chosen field. She explains that she relies on the monthly spousal support payment to make her mortgage payments. She also reports an $18,000 student loan to attend the Education Assistant course in 2019 which was rolled into her mortgage. I.M.E.'s Education, Employment History and Income [ 46 ] I.M.E. completed high school in Burnaby. She worked in retail as a cashier until shortly before N.G.'s birth.

She has not returned to the workforce since the separation in 2014. She has not looked for any employment, even part- time work when the children are in A.S.G.'s care, nor did she seek summer employment when the children were out of school. Instead, she volunteers fulltime at her children's school. She has done so since A.G. started kindergarten.

In this way she can manage his medical needs. [ 47 ] I.M.E. has received child and spousal support for the past seven years. [ 48 ] I.M.E.'s reason for not looking for work for the period 2014 until 2018 was because she was caring for two young children, including a child with complex medical needs. In 2019 through 2021, I.M.E. explained the main reasons for not finding employment in her testimony were fourfold: [ 49 ] First, she returned to school in 2019 to train as an education assistant through Vancouver Career College. This was a one-year program that was to be followed by two practicums.

Second, she became sick with the COVID-19 virus in March 2021 and could not complete a second practicum, due to her illness, for the balance of the school year. She was, however, cleared medically in April 2021. Third, she found the litigation in this court and in the Supreme Court highly stressful and wanted to wait for the outcome of this hearing before she finds a job in earnest.

Finally, and most importantly, she strongly believes that she was needed to manage A.G.'s medical care at the school and thus she has volunteered in the school since A.G. began kindergarten. [ 50 ] As touched on earlier in these reasons, I.M.E. completed her course work and the first of two practicums but contracted the COVID-19 virus and became sick in the spring of 2021. Because of her illness, she missed out on the opportunity for the second practicum in that school year. I.M.E. testified that she is now qualified to work in the private school system with only having completed her first practicum.

She explained that the public school system requires the completion of the second practicum. [ 51 ] She has not sought out another placement for the 2021/2022 school year as she strongly believes she is still needed in A.G.'s school to attend to his medical needs and is consequently holding out for a practicum position at his school. The reason, she explained in her evidence in chief, is because decisions are made frequently about administering insulin and that she needs to be in the school setting with her son to monitor his blood glucose levels after the insulin is administered.

This is why she volunteers at A.G.'s school and she views this as a segue to finding a practicum placement in that school. [ 52 ] In cross-examination, I.M.E. testified that she is now willing to find employment as an education assistant in the independent school system to secure a starting position and now proposes to have A.S.G. step in her place to administer insulin to A.G., if needed, at school. [ 53 ] A.S.G. has, according to his testimony, expressed his willingness to assist with A.G.'s diabetic management in the school so as to allow I.M.E. to enter the workplace. [ 54 ] I.M.E. has no issues involving childcare as her children are school aged and her parents live with her and the children.

Legal Principles Relating to Spousal Support (

a) Spousal Support [ 55 ] The obligation to pay spousal support is set out in s. 160 of the Family Law Act .

Section 161 of the Family Law Act requires the court to consider the following objectives in determining entitlement to spousal support: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 56 ]

Section 162 of the Family Law Act sets out criteria for determining the amount and duration of spousal support. That

section reads: The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following: (

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. [ 57 ] The threshold question to be answered in deciding on spousal support is whether I.M.E. is entitled to receive it prospectively. It is only if I.M.E. has established an ongoing entitlement to spousal support that the appropriate amount and duration of the support order is considered.

There are three conceptual models upon which a spouse can establish entitlement: namely, compensatory, non-compensatory and contractual support. [ 58 ] The three models of spousal support are helpfully summarized by Dardi, J. in M.C.V. v. F.V. , 2018 BCSC 96 , at paragraphs 199 - 204 : [199] The fundamental underpinning for an order of spousal support is the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown. [200] The parties agree that Ms. C. has an entitlement to spousal support on both compensatory and non-compensatory grounds.

Given the differing positions of the parties as to the appropriate quantum and duration of support, it is necessary to assess each ground. [201] The objective of compensatory support is to provide redress to the recipient spouse for his or her efforts which conferred an economic benefit or advantage on the other spouse and for his or her economic disadvantage arising from the marriage or its breakdown. [202] Taking into account the factors and objectives in the Divorce Act and applying the governing legal principles, I conclude that Ms.

C. has established an entitlement to compensatory support... [203] I also find that Ms. C. is entitled to non-compensatory spousal support or "needs-based support" as it is sometimes described. The concept of “need” is flexible, contextual, and varies according to the circumstances of the parties. In Chutter , the Court of Appeal expressed the objective of non-compensatory support at para. 54: ...

Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the "means and needs" approach to spousal support. [ 59 ] At paragraph 204 of the M.C.V. decision, Dardi, J. further states: The assessment of the recipient’s needs should be informed by the standard of living enjoyed by the parties prior to separation. In McEachern v.

McEachern , 2006 BCCA 508 , the Court of Appeal affirmed at para. 47 that, while the doctrine of spousal support does not guarantee to either party the standard of living enjoyed during the marriage, consideration of the marital standard of living is a relevant factor in assessing the “needs” of the recipient spouse. This factor should be weighed in light of the length of the marriage. [ 60 ] Both parties recognize that I.M.E. is entitled to ongoing spousal support. [ 61 ] The key issue is whether and to what degree I.M.E. has suffered an economic disadvantage from the marriage.

A.S.G. submits that I.M.E. has not been economically disadvantaged and that she is fully capable of returning to the workforce fulltime as an education assistant in the private school system or in the retail and service sector but has deliberately chosen not to do so and that income should be imputed to her when determining spousal support. (

b) Imputation of Income [ 62 ] Judges have a broad discretion to impute income to either or both spouses for the purposes of determining both child and spousal support, Marquez v. Zapiola , 2013 BCCA 433 , at para. 36 . Imputation is a judicial exercise that requires a rational and evidentiary basis: Windle v. Windle , 2010 BCSC 18 . The onus is on the party seeking to impute income to establish the evidentiary foundation for the court to make their finding. [ 63 ] The main circumstances sought for imputation of income to a spouse in the jurisprudence involves intentional underemployment or unemployment.

Section 19(1) of the Spousal Support Advisory Guidelines (“SSAG”) sets out the non-exhaustive set of circumstances where a court may impute income to a spouse, and states: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by

the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [ 64 ] The test for imputing income is that of reasonableness, having regard to factors set out in Marquez v. Zapiola , supra , and also Hsieh v. Lui , 2017 BCCA 51 , at paragraph 48 . [ 65 ] In Jendruck v.

Jendruck , 2014 BCCA 320 , the Court of Appeal, observed at paragraph 16, that imputation of income can be used by the court to address situations where a spouse's efforts to contribute to his or her support are inadequate: Consistently, the courts have affirmed and applied the objective in the Divorce Act of striving for economic self-sufficiency, while recognizing that attainment of full economic self-sufficiency may not be practicable.

To the degree effort could be made by a party to contribute to his or her own support in the circumstances, and effort has not been made, the courts have said the consequences of that party’s choice falls on them. The courts do not, and cannot, say a person must take up any particular employment. It is a free society in which people may choose how to spend their hours.

However, where the effort to contribute to one’s own support is deemed insufficient in all the circumstances, the court will place the consequence of the inadequate effort on the person whose choice it is, and may do so by the vehicle of imputing income for under-employment . [ 66 ] Although the Jendruck decision involves a claim for spousal support under the Divorce Act , the principles discussed in that case are consistent with the objectives of spousal support found in s. 161 of the Family Law Act . (

c) Discussion [ 67 ] In this case, the parties had a 10-year marriage. They are both 41 years of age. I.M.E. assumed the primary responsibility for the children during the marriage following separation. She has foregone earlier opportunities to return to the workforce during the marriage to manage A.G.'s complex medical needs and to run the household. Accordingly, I accept that I.M.E. has a claim for compensatory support.

However, I find on careful consideration of the evidence that I.M.E.'s explanation for her lack of return to the workforce to be that of a matter of choice that she volunteers at A.G.'s school. [ 68 ] Turning to the specific facts, I.M.E. stayed at home to care for the children until they were school age with the goal that she would eventually return to the workforce. She did take steps to retrain in 2019 to become an education assistant but has not completed a second practicum although this is not required to pursue employment in the independent school system.

The main reason, as I have touched on in the evidence, is because she feels compelled to manage her son's diabetic care and volunteer at his school in order to do so. [ 69 ] I have concluded from the evidence that this decision is made as a matter of choice rather than necessity. The reason I have reached that conclusion is that I.M.E. has not adduced any evidence from the school administration that she is needed fulltime in the classroom setting or at the school to look after her son's medical needs.

I accept A.S.G.'s evidence that the education assistants assigned to work with A.G. at school are fully trained and capable of monitoring A.G.'s glucose levels and can and in fact do administer insulin injections as required. [ 70 ] As I.M.E. now expressed a willingness in cross-examination to accept A.S.G.'s offer to assist during the school day, that puts an end to the issue and she should be seeking fulltime work now in the independent school system as an education assistant. [ 71 ] I also note on I.M.E.'s testimony that she had no difficulty meeting the fulltime demands of her three-month practicum from January to March 2021 which was at a different school than the school that A.G. attends.

She acknowledged that during her practicum the education assistants at A.G.'s school were able to look after her son's medical needs during the school day and there were no issues with his diabetic management care during that time. Further, I.M.E. testified that A.G. is older now and is capable of checking and monitoring his blood glucose levels to a certain degree. [ 72 ] Further, as the parties have an alternating

schedule for weekend parenting time as well as holiday parenting time, I.M.E. could have but has not found part-time work in the retail sector, stating in her evidence that she is waiting for the outcome of this case before she finds work. [ 73 ] It is for these reasons I find that I.M.E.'s efforts to find employment and to contribute to her own support to be wholly inadequate in the circumstances. [ 74 ] I.M.E. has marketable skills to work in the independent school sector as an education assistant.

According to her testimony, the education assistant position in an independent school is based on a 30-hour work week. That is considered to be fulltime. There are jobs, according to her testimony, in her field and she can expect to earn between $19 to $21 per hour in the private system.

Once she has further work experience, I.M.E. can apply to the public school system in Coquitlam where she can expect to earn an annual income ranging between $50,000 and $54,000, according to the wage rate data in evidence. [ 75 ] Additionally, I.M.E. will need to supplement her income with a part-time job in the retail or service sector as a cashier on evenings or on weekends during A.S.G.'s parenting time to bring her work week up to 40 plus hours. She could reasonably expect to earn at least $15.20 per hour which is the current minimum wage in British Columbia.

I note that the fulltime minimum wage annual rate is $32,000 currently in British Columbia. [ 76 ] There are no childcare issues for I.M.E. on the home front as her parents currently live with her and are capable of looking after the children before and after school during the school week, presumably while I.M.E. is working, or on weekends during her parenting time if she has other employment. Her parents are also capable of pitching in to help with household tasks while I.M.E. is working. [ 77 ] Accordingly, I impute $44,000 per annum to I.M.E.

This will be her Guideline income for the purposes of calculating spousal support and special expenses for the children. [ 78 ] I.M.E.'s parents have had the benefit of living rent-free in the condominium for the past seven years since the parties' separation

as A.S.G. paid the entirety of the mortgage and the condominium expenses. Mr. D., I.M.E.'s father, currently earns approximately $43,000 per annum according to I.M.E.'s financial statement. As the circumstances have changed with I.M.E. taking over the condominium, I assume that her parents will be making a contribution to the mortgage by paying some form of rent. I have factored in a contribution towards rent in quantifying I.M.E.'s income at $44,000. [ 79 ] Additionally, I.M.E. will continue to receive the Canada Child Benefit due to A.G.'s medical needs. That amount is $13,290 per annum currently.

She will also receive monthly child support of $1,781 from A.G. which is $21,372 per annum. Thus, I.M.E. will have total annual income from all sources of $78,662. [ 80 ] It is also important to recognize that I.M.E. received a greater share of the property settlement by A.S.G.'s decision to fully assume $90,000 of the parties' combined post-separation debt. I find that I.M.E. has thus received a benefit of $45,000 which would have been her share of this debt and thus she received a greater share from the net proceeds of the condominium when she bought out A.S.G.'s interest in the former matrimonial home.

This arrangement has largely compensated I.M.E. for the financial consequences from the role she assumed in the marriage. [ 81 ] In this case, taking into account the marital standard of living and her current circumstances, the income I have imputed to her, and the expenses of both parties, I.M.E. has not established a claim for non-compensatory support. [ 82 ] I have further concluded from my review of the income and expenses of both parties, that the standards of living of both parties in both households are relatively equal and, in fact, I.M.E.'s living standards are slightly better than A.S.G.'s. [ 83 ] I have concluded from my review that I.M.E. has met the threshold requirement for entitlement to prospective spousal support on the compensatory model.

What then is the amount that I.M.E. should receive for spousal support and what is the duration of that support? [ 84 ] I have incorporated the methodology from the SSAG for defining income as a starting point for this analysis. The SSAG recommend that the determination of the parties' income for spousal support purposes be the same as income attributed to the parties for child support. This approach has achieved jurisprudential support in the case of Aelbers v.

Aelbers , 2010 BCSC 1574 , at para. 12 . [ 85 ] In M.C.V. , supra , Dardi, J. explains, at paragraph 211, the reason why the SSAG are often used by judges to assess the duration and quantum of support awards: In Yemchuk v. Yemchuk, the Court of Appeal accepted the SSAG as a useful tool to assist judges in assessing quantum and duration in spousal support. In subsequent decisions, the Court has restated the utility of the SSAG in establishing the appropriate range of spousal support in order to ensure "a pattern of predictable awards”.

However, the appellate authorities have also repeatedly cautioned that while the SSAG are a significant consideration, they are not to be slavishly applied without regard to all the circumstances of a particular case. [Citations omitted] Accordingly, for the purposes of assessing prospective spousal support, I find A.S.G.'s income to be $120,000 and I.M.E.'s income to be $44,000. [ 86 ] I have undertaken calculations for spousal support using the "with child" formula in the SSAG for a payor earning $120,000 and the recipient earning $44,000 after a 10-year relationship. Two calculations were undertaken.

The first calculation included the Canada Disability Benefit of $13,578 and Mr. D.'s income of $43,000 because I.M.E.'s parents are contributing members of the household. The second calculation excludes Mr. D.’s income. [ 87 ] Both calculations account for the incomes, taxes and deductions, tax benefits and credits, the amount of child support paid and received. Taking the midpoint of these calculations, I.M.E. has 54.8 percent of the net disposable income in her household and A.S.G. has 45.2 percent of the net disposable income in his household.

Thus, I find on these calculations that I.M.E. is slightly better off than A.S.G. in light of her combined sources of income. [ 88 ] The spousal support quantum for the low, middle and high support ranges, are identical for both calculations based on the SSAG.

The following range for spousal support is suggested: the low range is “zero”, the mid-range is $99 and the high range is $607 per month. [ 89 ] Using these calculations, and assuming the high range figure of $607 is awarded for monthly spousal support, then that would increase I.M.E.'s living standard as measured by the percentage of her net disposable income to 57 percent.

This would correspondingly reduce A.S.G.'s living standard to 43 percent of his net disposable income on these calculations. [ 90 ] The SSAG suggest a minimum duration of five years and a maximum duration of 10 years of spousal support given I.M.E.’s age and 10 years of marriage.

I note that I.M.E. has been receiving spousal and child support for seven years post separation which is within the upper middle of this recommended range. [ 91 ] A.S.G. submits that the quantum of spousal support be fixed at the midpoint range, which is $99 per month, for a maximum period of 12 months and be terminated without further review.

I.M.E., on the other hand, recommends that her spousal support should be quantified at the high end of the range, or $607 per month, and that it be reviewed in 12 months' time so she has a reasonable opportunity to transition into fulltime employment in her chosen field. [ 92 ] Taking into account the age of the parties, the duration of the marriage, the seven years in which I.M.E. has received spousal support and coupled with the fact that she has not yet started to look for work, I find that I.M.E. will require a three-month transition period to find and settle into fulltime employment.

At the very least, she should be able to quickly find fulltime hours in a minimum wage job in the retail sector as a cashier in a retail store or a grocery store or warehouse outlet while she continues her search for an education assistant position. I take judicial notice that British Columbia currently has a labour shortage in the service and retail sectors and that I.M.E. should be able to find employment very quickly.

[ 93 ] Accordingly, I fix I.M.E.'s spousal support at $607 per month for a period of three months, retroactive to November 1, 2021 and ending January 1, 2022. Thereafter, I.M.E.'s spousal support payment will be reduced to $300 per month for a period of three months commencing on January 1, 2022 and ending on March 1, 2022. I.M.E.'s spousal support then will be reduced to $99 per month commencing on March 1, 2022 and ending on December 1, 2022. In my opinion this transition period will allow I.M.E. to obtain employment as an education assistant and part-time employment in the retail or service sector.

She will no doubt be motivated to find remunerative employment in her chosen field as this is a condition of her mortgage financing when it is up for renewal in the fall of 2022. It is expected that she will achieve financial self-sufficiency by the end of 2022. Accordingly, I.M.E.'s spousal support will terminate after December 1, 2022. Issue 4 - Special Expenses [ 94 ] The children's special and extraordinary expenses will be shared in proportion to the parties' incomes.

Commencing November 1, 2021 and continuing thereafter until further order of the court or agreement of the parties, I order that these expenses be allocated 75 percent to A.S.G. and 25 percent to I.M.E. [ 95 ] I will hear submissions from the parties before I put on the record the orders that I will be granting further to these reasons. [ 96 ] CNSL M. SODAGAR: Your Honour, I don't have any submissions at this time [ 97 ] CNSL A.

PARANAGAMA: Your Honour, I don't have any submissions with respect to the [indiscernible] Orders [ 98 ] THE COURT: I make the following orders: A.S.G. shall pay to I.M.E. monthly child support for the support of the children in the sum of $1781 commencing on December 1, 2021 and continuing on the first day of each month thereafter until further order of this court or upon a further agreement of the parties. [ 99 ] CNSL M.

SODAGAR: Your Honour, if I may ask, the existing order indicates that he make his payments through instalments on the 1st and the 15th to coincide with [indiscernible] payroll. [ 100 ] THE COURT: All right. I will make a variation of that order. That order will be payable in two equal instalments on the 1st and 15th of the month to coincide with A.G.'s pay periods commencing December 1, 2021. [ 101 ] A.S.G. will pay spousal support to I.M.E. commencing November 1, 2021 and ending January 1, 2022 in the sum of $607 per month. This payment may be divided into two equal payments to coincide with his pay periods.

A.S.G. shall then pay I.M.E. $300 per month for spousal support for a period of three months commencing February 1, 2022 and ending April 1, 2022. Thereafter, A.S.G. shall pay I.M.E. spousal support at the reduced sum of $99 per month commencing May 1, 2022 and ending November 1, 2022.

I.M.E.'s monthly child support will terminate after December 1, 2022. [ 102 ] Commencing November 1, 2021 and continuing thereafter until further order of this court or agreement of the parties, I order that the parties share agreed-upon special or extraordinary expenses under the following formula: A.S.G. will pay 70 percent of the agreed- upon expenses and I.M.E. will pay 25 percent of the agreed-upon special or extraordinary expenses. [ 103 ] I think those are the orders that I need to implement the reasons on the spousal support application. [ 104 ] CNSL M.

SODAGAR: Yes, Your Honour, if I can just clarify, so November 1st, December 1st, January 1st, $607? [ 105 ] THE COURT: Yes. [ 106 ] CNSL M. SODAGAR: Your Honour also ordered then again $300 on January 1st -- [ 107 ] THE COURT: Oh, I'm sorry. It should have been February. February, March, April, I'm out by one, April, and then May and then commencing -- [ 108 ] CNSL M. SODAGAR: And then May until November 1st -- [ 109 ] THE COURT: November 1. Yes, I'm out by one month on my math.

Thank you. [ 110 ] THE CLERK: Your Honour, so November 1st to February 1st and then -- [ 111 ] THE COURT: Yes, so it would be November 1 to February 1, March 1 -- [ 112 ] CNSL M. SODAGAR: No, that would be November to January 1, so that's the three months, if I'm not mistaken. [ 113 ] THE COURT: Yes, and then February to -- [ 114 ] CNSL M. SODAGAR: And then February 1st -- [ 115 ] THE COURT: -- April, and then May to December. [ 116 ] CNSL M. SODAGAR: May to November. [ 117 ] THE COURT: May to November. [ 118 ] CNSL M.

SODAGAR: And then Your Honour, I note, and perhaps I misheard, the agreed-upon s. 7 expenses is as of November

1st, 2021, not 2022. [ 119 ] THE COURT: That's correct. [ 120 ] CNSL M. SODAGAR: Thank you. [ 121 ] THE COURT: It's been a bit long without a break. All right.

And then the other order, for greater clarity, is that I.M.E.'s spousal support will terminate on December 1, 2022. [PROCEEDINGS] I.M.E.’s Application to Vary the Interim Consent Order [ 122 ] THE COURT: I am going to repeat some of what I stated at the outset of my reasons in respect of the support orders and I will repeat them for the benefit of I.M.E. who is now on the line. [ 123 ] The parties have been embroiled in family proceedings in this court and in the Supreme Court over the past three years. The current relationship between the parties is best described as strained.

I.M.E. continues to experience a great deal of emotional distress arising from the circumstances surrounding the breakup of their marriage. This was obvious from her testimony during the hearing. This has, unfortunately, negatively impacted the parties' communications with each other in relation to the children.

More concerning from the testimony of the parties is that the bitterness I.M.E. harbours towards A.S.G. has interfered with and adversely impacted his parenting time and relationship with the children. [ 124 ] I.M.E. did not give any advance notice that she was bringing an application to seek a variation of the Interim Consent order, nor did she articulate the reasons why she was bringing the application at the outset of trial. [ 125 ] The parties entered into a very lengthy consent order on June 23, 2021 which covered off parenting time and it also set out how they were to exercise their guardianship and parental responsibilities.

This order embraces the following conditions: that the parties exercising their parenting time will have the authority to exercise day-to-day decisions for the children during that parenting time; that each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning the other children; the guardians will also have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions, and in the event that they cannot reach agreement on significant decisions despite their best efforts, the parties will consult a family justice counsellor. [ 126 ] This consent order was the result of a series of applications and challenges that A.S.G. had in terms of his dealings with I.M.E. to try to parent and to see his children.

It is a consent order with multiple terms that also included several conditions and counselling conditions. [ 127 ] The parties have only just recently engaged family justice services and I have heard submissions that it was A.S.G. who initiated the services. The order also provides a term for the parties to each seek individual counselling in order to improve their communications with the children and with each other to facilitate greater co-parenting between the parties.

It is unclear whether either party has availed themselves of individual counselling in respect of their own circumstances. [ 128 ] I.M.E. is now seeking to vary the consent order. The evidence that she relies on falls far short of coming anywhere close to warranting a variation of this order. In my opinion, I.M.E. has not led one scintilla of cogent evidence that would support the conclusion that A.S.G. cannot manage A.G.’s diabetic care and that consent order needs to be changed in the best interests of the children. [ 129 ] I.M.E. has longstanding issues with A.S.G.

Unfortunately, those issues have clouded her ability to deal with the children and the way she communicates with the children in respect of A.S.G.

She needs to comply with the counselling conditions that are made in that order so that she can carry on and hopefully develop a better relationship with A.S.G. for the purposes of parenting the children. [ 130 ] Both parents have to act in the best interests of the children and, frankly, I have concluded from hearing the testimony of both parties and upon a review of all of the affidavits that I.M.E.'s behaviour has fallen far short of meeting this duty. [ 131 ] She has been micromanaging A.S.G.'s parenting time from the outset of their separation. She does not consult with A.S.G.

She makes unilateral decisions, including her unilateral decision to home school their children after children returned to the classroom during the COVID-19 pandemic. [ 132 ] Further, I.M.E. has repeatedly interfered with A.S.G.'s exercise of parenting time by refusing to let him see the children or have overnight parenting time during the COVID-19 pandemic. The reason given was because of a fear of risk that the children would be exposed to the virus. A.S.G. was forced to bring a court application to reinstate his parenting time and was successful.

I.M.E. was fined by Judge McQuillan for her behaviour in withholding the parenting time. It is certainly ironic that it was I.M.E. who was the one who contracted the COVID virus, notwithstanding her fears that the children would be exposed to the virus in A. S.G. 's care. [ 133 ] Additionally, I.M.E. recently refused to let A.S.G. take the children on a camping trip, or even to the beach while exercising summer parenting time, yet she had no difficulty in taking the kids on her own on a camping trip. [ 134 ] I.M.E. has informally changed the children's name at their school without consultation with A.S.G.

They are now referred to in the classroom as [omitted for publication]. [ 135 ] I do agree with the submissions of counsel for A.S.G. that the conduct that I.M.E. has been engaging in is not only mean-spirited but it is starting to truly undermine A.S.G.'s relationship with the children. There is no evidence before the court that would lead me to the conclusion that A.S.G. is anything but a loving, caring and dedicated parent.

By the same token, I would also find that I.M.E. is also a loving, caring and dedicated parent; however, her feelings and animosity that she harbours towards A.S.G. are clouding her judgment

and the way she conducts her parental responsibilities. [ 136 ] In my opinion, it is in the best interests of the children that the consent order remain in place and that I.M.E. follow the terms of the order, embrace the counselling resources that I have made, that she work to improve her relationship with A.S.G., and that she refer to A.S.G. in civil terms in the presence of the children.

She needs to keep separate her relationship issues with A.S.G. from the kids; these are adult matters that have no place to be discussed in front of the children. [ 137 ] I am, therefore, dismissing this application and I would ask that, since I.M.E. was the party moving this application, I am going to request that counsel for I.M.E. prepare the form of order. [ 138 ] I am going to allow A.S.G.’s submission to make the interim order of June 23, 2021 a final order.

Since it is going to be a final order, I am going to ask Counsel for A.S.G. to prepare the form of order, and I will agree to be seized of any further applications of the parties for the next 12 months. [PROCEEDINGS] [ 139 ] THE COURT: I will add a further term to the Order. This is actually dealt with under the exercising parental responsibilities in paragraph 5(d). The parties have an obligation to discuss significant decisions with each other and an obligation to try to reach agreement on those decisions. Term (

e) is in the event the guardians cannot reach an agreement on a significant decision despite their best efforts, the parties will consult a family justice counsellor if they cannot agree on a decision or may apply to court for a determination. [ 140 ] Accordingly, I will grant an additional order that the parties exercise their best efforts to exchange their positions with regards to A.S.G.'s recommendation that A.G. be monitored by a glucose monitor and that they provide their positions to each other within seven days from today's date.

Failing agreement on the issue, the parties shall refer the matter to a family justice counsellor and failing that, they may make application before me for a determination on the issue. (ORAL REASONS FOR JUDGMENT CONCLUDED)