H.J.R.H. v. J.C.D., 2020 BCPC 182

Citation: H.J.R.H. v. J.C.D. 2020 BCPC 182 Date: 20200930 File No: 18-30331 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.J.R.H. APPLICANT AND: J.C.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE

Appearing on their own behalf: H. R. J., via MS Teams Appearing on their own behalf: J. D., via MS Teams Place of Hearing: Vancouver , B.C. Date of Hearing: September 29, 2020 Date of Judgment: September 30, 2020 INTRODUCTION [ 1 ] On March 11, 2020, the World Health Organization classified COVID-19 as a pandemic. [ 2 ] On March 17, 2020, BC Provincial Health Officer Dr. Bonnie Henry issued an order declaring a state of emergency pursuant to s. 52(5) of the Public Health Act in relation to the COVID-19 pandemic.

This declaration has been extended a number of times and remains in effect. [ 3 ] As a result of COVID-19, the Government of British Columbia put into effect a number of measures to protect people and ensure the health care system could respond to the virus. This was known as Phase 1 of the BC Government’s plan to deal with COVID- 19. Mass gatherings of over 50 people were banned. Dine-in services at bars and restaurants stopped. Essential services could still operate but some non-essential services were closed. [ 4 ] At the same time, the Federal Government put into place certain travel bans and restrictions.

Starting in late March 2020, the Federal Government initiated a number of programs to assist Canadians during the pandemic. These included the following:

a) The Canada Emergency Response Benefit (“CERB”)

b) Canada Emergency Wage Subsidy

c) Increased Canada Child Benefit

d) Temporary Salary Top-Up for essential services workers

e) Canada Emergency Student Benefit [ 5 ] Phase 1 of the COVID-19 response ended May 18, 2020. Phase 2 saw many businesses re-open and physical distancing measures were encouraged. Phase 2 ended June 23, 2020 and British Columbia is currently in Phase 3. Phase 3 continues a gradual re- opening of the economy, including schools, churches and other places where the public may gather. [ 6 ] This Court has recognized that some persons obligated to pay support pursuant to a Court order or agreement may have lost their source of income or had their income reduced.

In response, the Court issued a Family Matter Practice Direction FAM 08 , called the “ Early Resolution Process and Expedited Court Process to Change or Suspend Child or Spousal Support Due to COVID-19. ” [ 7 ] This Practice Direction creates an expedited process for an application to change a support order due to a change in circumstances occurring since January 2020 because of the COVID-19 pandemic.

This Court created an informal process to hear these applications because in many cases there is some urgency given how quickly many people have suffered a change in circumstances or a loss of income. [ 8 ] These expedited hearings will deal mainly with requests for temporary or time-limited changes to final support orders. They are not intended to bring about a final change in an order given that a full hearing is not being conducted. [ 9 ] Where there is an interim support order in place, the order resulting from an expedited hearing may be somewhat different.

An interim support order is intended to be temporary only until a hearing is held for a final court order. Where there is an expedited hearing to vary an interim support order, the court may make a temporary change in the interim order and then set the matter down for a hearing to determine a final support order. DISCUSSION [ 10 ] At a Family Case Conference held January 21, 2020 before the Honourable Judge Raven, the parties consented to an interim order that H.J.R.H., who I will refer to as Mr. R., pay child support to Ms. D. for the benefit of L.M.R.D., born [omitted for publication].

This was based on an income of $47,950, resulting in child support of $450 a month commencing February 1, 2020, paid biweekly at the rate of $225 on the first and $225 and the 15 th day of each month until further court order. [ 11 ] Aside from his employment income, Mr. R.’s tax information showed that in the years 2016 to 2018, he received rental income as follows: 2018 $3,978 2017 $4,200 2016 $2,962 [ 12 ] Mr. R.’s Financial Statement filed January 17, 2020 stated that he received income thru AirBnB but the amount listed was only $100. [ 13 ] Mr.

R. now says that he has lost his employment as a direct result of the COVID-19 pandemic. Accordingly, on July 31, 2020,

Mr. R. filed the following: 1. Application Respecting Existing Orders or Agreements to change the January 21, 2020 order so that he pays $205 a month for child support in instalments of $55 and then $150 each month, and to cancel any arrears. 2. Notice of Intention to Change Existing Child or Spousal Support Due to COVID-19 Income Change 3. Financial Statement in Form 4 4. Financial Statement COVID-19 Addendum [ 14 ] Ms. D. filed a Reply opposing the application. [ 15 ] The January 21, 2020 support order is an interim consent order. In order to vary an interim order, subsections 216(3) and (4) of the Family Law Act applies. The relevant subsections of s. 216 read as follows:

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists: (

a) a change in circumstances has occurred since the interim order was made;

(4) In making an order under subsection (3), the court must take into account all of the following: (

a) the change in circumstances or the evidence, or both, referred to in subsection (3); (

b) the length of time that has passed since the interim order was made; (

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (

i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [ 16 ] I also refer to the Child Support Guidelines , s. 14(a), which states: (

a) If there is a support order made pursuant to the CSG tables, then is there any change in circumstances that would result in a different child support order or any provision thereof; [ 17 ] The evidence of Mr. R. was that he was laid off from his job at [omitted for publication] operating a sightseeing bus, with his last day of work being March 17, 2020, which coincides with the date British Columbia declared a state of emergency. [ 18 ] Mr. R. applied for Employment Insurance Benefits. He said that for three months he received $2,056 a month.

He is now receiving the Canada Emergency Response Benefit of $2,000 a month. When that ends, he expects to receive Employment Insurance Benefits of $2,056 a month for 36 weeks. [ 19 ] In terms of job search efforts, Mr. R. submitted an application for a dispatcher job in April and then again in May 2020 but received no response. [ 20 ] Mr. R. was able to work for three weekends for [omitted for publication]. This was from Thursday to Saturday for three weekends starting July 20, 2020. He said he was paid $390 for each weekend but did not file any financial records to show this. [ 21 ] According to Mr.

R., in August 2020 [omitted for publication] changed the work to a Friday to Sunday shift. Under the current parenting time order, Mr. R. has the child L. from Sunday morning to Monday evening and from Thursday morning to Friday morning. Mr. R. says he asked Ms. D. to change his parenting time

schedule so that he can work the Friday to Sunday shift but Ms. D. refused. As such, Mr. R. says he was unable to do further work with [omitted for publication]. [ 22 ] Parenting time remains an issue between the parties and is to be determined by way of a hearing that is yet to be scheduled. [ 23 ] The [omitted for publication] job was only available until September 13, 2020 and Mr. R. advised that [omitted for publication] has since closed for the season. [ 24 ] Mr. R. has also applied to the [omitted for publication].

He had his second interview the day of the hearing and expects a call back on September 30, 2020. [ 25 ] Mr. R. has been invited by [omitted for publication] to apply for employment. In the past, Mr. R. has worked for them as a snowboard instructor. [ 26 ] Mr. R. has applied to work at [omitted for publication] as a snowboard instructor. He has a second interview scheduled for October.

[ 27 ] Mr. R. turned down a job at [omitted for publication] as a sales host. The job paid minimum wage and Mr. R. did not know if the position was part-time or full-time. Mr. R. expressed concerns that he would have to travel to [omitted for publication] for the work although he did not express the same concern when discussing the snowboard instructor job at [omitted for publication]. [ 28 ] Mr. R. submits that the child support should be set at $200 a month based on income of $24,000. [ 29 ] Mr.

D. submits that child support should be set at $500 a month but did not provide justification for an increased amount of support payable. In order to be required to pay child support for one child under the Federal Child Support Guidelines , Mr. R. would need an income of $53,200. His income history shows that he has never received this level of income. In my view, setting child support at $500 is not justified without further evidence of the ability to earn that level of income. [ 30 ] Given Mr.

R.’s loss of employment, I am satisfied that there has been a material change in circumstances since January 21, 2020, the date of the interim support order. The main question I must address is what order I should put into place pending a hearing to determine a final order. Mr. R.’s financial circumstances are in a state of flux. He is waiting to hear back from at least two employment applications. [ 31 ] I am concerned though that Mr. R.’s efforts to seek replacement employment have been limited.

His focus primarily on tourism- related jobs is not reasonable given the effect COVID-19 has had on tourism and international travel. Mr. R. has also made minimal efforts at applying for work. Mr. R. is under a duty to maximize his income and the Court may impute income to him based on his ability to earn income: see Schmidt v. Sucke , 2013 BCSC 1489 starting at para. 44 . [ 32 ] During the expedited hearing, Mr. R. made comments that suggested he was tying the amount of child support payable by him to the amount of parenting time he receives.

However, this case does not involve shared custody under s. 9 of the Child Support Guidelines, which may be a basis to depart from the Guidelines . [ 33 ] I am satisfied that following Mr. R.’s loss of employment, his income was $2,056 a month from Employment Insurance Benefits. This is equivalent to annual income of $24,672. Based on the Child Support Guidelines , the amount of support payable is $206 a month. [ 34 ] I find that Mr. R.’s efforts to seek alternative employment have been limited and unreasonable given his duty to pay child support. Mr.

R. is capable of earning more than what he is currently receiving by way of CERB benefits or what he will receive from Employment Insurance. [ 35 ] The current minimum wage in BC is $14.60. Working 40 hours a week, Mr. R. would earn over 52 weeks the sum of $30,368. I find that by July 1, 2020, Mr. R. should have been capable of earning this level of income after taking into account the gradual re- opening of the economy and a reasonable time needed to seek employment. Based on the Child Support Guidelines , the child support amount payable is $283 per month. [ 36 ] Mr.

R.’s Financial Statement filed January 17, 2020 also showed minimal rental income although in previous years it was a few thousand dollars a year. There is no reference to rental income in his most recent financial documents. I will not attribute to Mr. R. any rental income but I will require disclosure of any such income in future. [ 37 ] This will be an interim order only. There will be a hearing to set a final support order, and the amount set by the court at that time may be the same, higher or lower than the amount I am setting today. I will also require further financial disclosure from Mr.

R. along with a continuing requirement to show his job search efforts if employment is not found. ORDER [ 38 ] On an interim basis, I order as follows: 1. The Order of The Honourable Judge Raven, made January 21, 2020, is changed as follows. 2. As of March 17, 2020, H.J.R.H. is found to be a resident of British Columbia and is found to have a guideline annual income of $24,672. 3. H.J.R.H. will pay to J.C.D. the sum of $206.00 per month for the support of the child, L.M.R.D., born [omitted for publication], commencing on April 1, 2020 and continuing on May 1, 2020 and June 1, 2020. 4.

As of July 1, 2020, H.J.R.H. is found to be a resident of British Columbia and is imputed to have a guideline annual income of $30,368. 5. H.J.R.H. will pay to J.C.D. the sum of $283.00 per month for the support of the child, L.M.R.D., born [omitted for publication], commencing on July 1, 2020 and continuing on the 1 st day of each and every month thereafter, for as long as the child is eligible for support under the Family Law Act or until further Court order. 6. H.J.R.H. will complete, file with the Registry of this Court, and deliver to J.C.D. the following documents by November 16, 2020: a.

An updated Financial Statement in Form 4; b. A copy of his income tax return for the 2019 taxation year and the related notice of assessment or reassessment; c. A copy of all pay stubs and income statements received in the year 2020 up to and including October 31, 2020;

d. A copy of all bank statements and credit card statements received in the year 2020 up to and including October 31, 2020; e. A copy of all employment applications and written confirmation of the results of all employment applications made during the period April 1, 2020 up to and including October 31; and f. Records of all rental income received during the period April 1, 2020 and October 31, 2020. 7. Within 7 days of obtaining any employment, H.J.R.H. will provide to J.C.D. the name and address of the employer, a description of the employment and the rate of pay on an hourly and monthly basis. 8.

This matter is adjourned to the judicial case manager to set a one-day hearing to determine a final order for child support, to be set for a date after November 30, 2020. 9. If the child support trial is set for a date after January 29, 2021, then H.J.R.H. will provide to J.C.D. the following: a. A copy of all employment applications made within 7 days of making the application for employment; b. Written confirmation of the results of any employment application within 7 days of receiving the results; c.

No later than 30 days prior to the trial, records of all rental income received during the period from November 1, 2020 to 45 days prior to the trial; d. No later than 30 days prior to the trial, a copy of all pay stubs and income statements received from November 1, 2020 to 45 days prior to the trial; and e. No later than 30 days prior to the trial, a copy of all bank statements and credit card statements received from November 1, 2020 to 45 days prior to the trial. [ 39 ] The Registry will prepare the order, which the parties are not required to sign. _____________________________ The Honourable Judge W.

Lee Provincial Court of British Columbia