R.L.G. v. N.E.M., 2022 BCPC 178

Citation: R.L.G. v. N.E.M. 2022 BCPC 178 Date: 20220906 File No: 18208 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.L.G. APPLICANT AND: N.E.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: A. Marr Counsel for the Respondent: A. Parhar Place of Hearing: Kamloops , B.C. Dates of Hearing: June 29 and July 21, 2022 Date of Judgment: September 6, 2022

[ 1 ] R.L.G. seeks support for the three children she has had with N.E.M. Those children are: C.R.M., born [omitted for publication]; C.T.M., born [omitted for publication]; and C.M.M., born [omitted for publication]. [ 2 ] The parties were in a common-law relationship commencing in 2013, but it is important to go back to N.E.M.’s origins. An agreed statement of facts sets out the history between the parties so I will not go into great detail. [ 3 ] R.L.G. seeks to have the court impute income to N.E.M. based on minimum wage in Manitoba where he now resides. That minimum wage is $11.95 per hour.

R.L.G. seeks an order that I impute gross annual income to N.E.M. of $24,856, resulting in a child- support obligation of $465 per month. [ 4 ] A.B. is N.E.M.’s mother. She testified that she and her then husband adopted N.E.M. when N.E.M. was three years old. From a young age the parents encouraged N.E.M. to do as much as he could, though he always struggled with daily tasks. His school education was minimal. A.B. assesses his reading and writing skills at a Grade 1 level. She claims he was socially passed through high school, including the three years that she home-schooled him.

There is no objective evidence to assess this conclusion, but it is clear her mostly uncontroverted evidence is fairly accurate. [ 5 ] There are text messages in evidence which belie somewhat N.E.M.’s reading and writing ability; however, A.B. said that he uses voice-to-text as a way of communicating and still cannot spell. She said that he has been assessed by Dr. Ike Nwankwor. The outcome of that report is that he has an IQ of 70.

I note that this report was not properly served nor the evidence tendered in the expected manner, but R.L.G. does not object to the court considering some of the content to assess N.E.M.’s abilities. [ 6 ] Dr. Nwankwor observed in the report that N.E.M. had a background diagnosis of Anti-Social Personality Disorder, Cannabis Use Disorder, and Substance Induced Psychosis. The referral to Dr. Nwankwor was to enable his family doctor to complete his disability form for disability assistance in Manitoba. The interview did not appear to go well and was largely inconclusive due to N.E.M.’s prevarication and anger.

Again, this doctor was not cross-examined and the report was not prepared observing the evidentiary requirements. [ 7 ] There was a former report prepared in 2014 which was itself an updated psychological assessment. That report labours under the same constrictions for evidence as does the report of Dr. Nwankwor. [ 8 ] In that report, the doctor observed N.E.M. had challenges across all areas of his inter and intrapersonal development, having particular difficulties maintaining employment. [ 9 ] It was observed that he is intellectually within the Extremely Low Range but had well-developed adaptive skills.

It was recommended that he take vocational rehabilitation and continue to see a doctor about his mental-health functioning. There is no evidence before me that N.E.M. did that. Compounding N.E.M.’s cognitive and mental-health challenges is his severe hearing loss which he has had most of his life. [ 10 ] When R.L.G. met N.E.M., he was living on social assistance, subsequently obtaining disability assistance in British Columbia. They began to live common law in 2013, approximately two years before their first child was born.

During their entire relationship up until 2018, R.L.G.’s evidence was that N.E.M. did have employment but could not keep a job. She said he bounced between jobs, quitting when he became frustrated or angry. She said that he was always willing to get a job and go to work but could not maintain his employment. [ 11 ] R.L.G. well-overstated N.E.M.’s abilities. She denied that he was ever terminated from employment, though N.E.M. concedes that he was fired from time to time. She described one full-time employment experience of two months as a mechanic.

In fact, he assisted a mechanic in oil changes and other simple maintenance. He was not in any respect a mechanic. [ 12 ] He also worked for Labour Ready, which is not full time or consistent, or even reliable employment. She overstated his intelligence, claiming he was smart enough when he tried.

That is more likely a reflection of his adaptive skills which really ought to have been observable in the five years they were together. [ 13 ] When asked why R.L.G. waited 18 months to start her proceedings for child support, she said that N.E.M. constantly threatened to involve Child and Family Services and would become angry when asked basic questions. He was not cross-examined about this, although some of his text messages certainly show inappropriate responses.

It is not sufficient evidence on the law, even if entirely accepted, to account for the delay or for retroactive support. [ 14 ] R.L.G. also disagreed that N.E.M. had trouble doing the most basic tasks. This was one of the observations that his mother made about him. Similarly, he was terminated from his employment when he was unable to follow simple instructions while his boss was away for a week. Between 2015 and 2018, R.L.G. concedes that the maximum amount N.E.M. ever worked in any of those years was two to three months.

It was against this backdrop that R.L.G. and N.E.M. had their first child and then their twins. It was no surprise to R.L.G. that N.E.M. did not work most of the time, was on disability at some point, and did not stay employed when he did have work. [ 15 ] A.B. said that she and her husband supported the family as much as they could. She said approximately 80% of her income went to N.E.M. R.L.G. claimed he spent this on marihuana, which struck me as spiteful. This is particularly so since N.E.M. was not cross- examined on this either. [ 16 ] N.E.M. now has a new partner and a new child.

He is living with this partner and she is collecting Employment Insurance based on take home income for a couple. Consequently, he is not eligible to collect benefits in Manitoba. [ 17 ] N.E.M. does have some vocational training such as his CPR, flagging and fire safety. A.B. testified that in all cases that was because people read the information to him and quizzed him. However, this did not lead to long-term employment.

[18] N.E.M. is now on medication and is seeing a counsellor. He is not employed. I have no medical reports explaining themedication, his condition or his ability to work. [19] N.E.M. believes that he does not work and was on disability previously due to his hearing loss. He is obviously not identifyinghis mental health or cognitive challenges. He claims that he does want to work right now but finds it is “just hard”. A lot of employers donot have the capacity to sit down and tell him more than once what he needs to do.

He says they have to tell him things a hundred or 300times over and they do not have time to work with him. [20] N.E.M.’s biggest concern is that he will lose his driver’s licence or go to jail for not paying any child support that may beordered. Losing his license is, to him, the biggest thing. [21] N.E.M. said that he has not been employed since December 2020 but has been looking every day since he has been in Manitoba.One example he gave is that in the summer of 2021, he applied to be a pizza delivery driver. He dropped off his resume and went innumerous times to see if they had looked at it.

They never got back to him. He is also trying to apply for a job as a taxi driver, has triedfor employment at the mine, “looked at Dominoe’s” and all of the fast-food places. He even tried Walmart and Canadian Tire. Hedescribed it as “a good chunk of places”. [22] N.E.M. also thinks that he is on medication for a split-personality. He takes his prescription every night and it has really helped.It is unclear to me what he is actually being treated for or what he is taking. [23] R.L.G. seeks retroactive child support to the date of separation in June 2018, to today’s date and prospective child support.

Thereis an existing order that N.E.M. pay R.L.G. $160 per month for the support of the children commencing November 1, 2021. N.E.M.made five payments pursuant to that order since then. [24] N.E.M. provided notices of assessment for the years 2015 to 2018, demonstrating his income in the years that the parties wereliving common law. In 2015, N.E.M.’s total income was $17,207 of which $7,841.30 was social assistance. In 2016, his total income was$19,463 of which $16,738.08 was social assistance. In 2017, his income was $21,797, of which $15,579.12 was social assistance.

In2018, his total income was $16,446, of which $14,020.04 was social assistance. Much of this social assistance was disability socialassistance. His income since then has ranged from $13,000 to less than $15,000. [25] It is clear that N.E.M. has never been a consistent income earner and has relied mostly upon social assistance, whether it wasdisability or otherwise for his support. He has also relied on his parents, but they have no obligation to support him in this equation. [26] The burden lies with the party seeking to have the income imputed to establish an evidentiary basis for such a finding.

The test isset out in many cases including Marquez v. Zapiola, 2013 BCCA 433, at paragraph 37: [37] The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to theparties’ capacity to earn income in light of their age, education, health, work history and work availability. A spouse’s capacity to earnincome will include that person’s ability to work or to be trained to work. See Van Gool v. Van Gool (1998), (BC CA), 113 B.C.A.C. 200, 44 R.F.L. (4th) 314 at paras. 28-31, Barker v. Barker, 2005 BCCA 177, 45 B.C.L.R. (4th) 43 at para. 19, and McCaffrey v.

Paleolog, 2011 BCCA 378, 24 B.C.L.R. (5th) 62 at para. 46. [27] Mr. Marr highlighted that Van Gool v. Van Gool, , at para. 34, imposes an obligation on parents “to takereasonable steps to obtain employment commensurate with such factors as their age, state of health, education, skills and work history”. [28] If I take into consideration N.E.M.’s cognitive skills, his mental-health disorder, his lack of skills or fulsome work history, aswell as his hearing disability, the bar will be quite low for him. His ability to work or be trained to work is quite low.

As much as hewishes to get work and wants to support his two families, he has never been able to do so. [29] In the face of that, even with the qualifications that intention is not a bad-faith test, it cannot be said that N.E.M. is intentionallyunemployed or underemployed. Nor can it be said that he is intentionally on a bad-faith venture, unemployed or underemployed. EvenR.L.G. described serial attempts at work. N.E.M. has said he wants to work. [30] On that point, Mr. Parhar provided me with the decision of S.M.R. v E.L.M., 2019 BCPC 236, where the court said at paragraph81: [81] While Mr.

M. had an obligation to support his child upon becoming a father, he did not have a corresponding obligation todramatically transform into someone else. The law expects Mr. M. to earn an income and support his child at a level which realistically[emphasis added] reflects his education, work history, skills, age and health conditions. . . . [31] N.E.M. had all of the challenges fully entrenched in his person when he and R.L.G. became partners. He had his mental-healthchallenges, he had his cognitive challenges, he had his hearing disability, and he had his unstable work history.

Nothing ever changedthroughout their relationship except his sometimes work opportunities. The reality is that N.E.M. is simply incapable at this point - withhis challenges - of meaningful employment. [32] However, there have been some promising advances with his medication which may assist with his Anti-Social PersonalityDisorder. He may also be able to qualify for some vocational rehabilitation.

With some direction to obtain counselling, obtain a propermedical opinion regarding his mental health and cognitive challenges, and some vocational rehabilitation geared toward his challenges,N.E.M. may yet be able to obtain some employment. [33] I dismiss R.L.G.’s application for retroactive child support. I make no order for current child support obligations. In other words,his obligation going forward is $0 per month. Nor am I going to cancel his arrears based on the existing order, but I do terminate thatorder effective July1, 2022. However, I do require N.E.M. to make some efforts in the following areas:

1. N.E.M. will obtain a proper medical diagnosis for his mental-health challenges, particularly in relation to how they impact his ability to be employed. 2. N.E.M. will explore other disability income sources other than the Manitoba social assistance programs to determine whether he is eligible for such disability and whether that disability can include his obligations to his four children. 3.

If N.E.M. does not qualify for any disability income, or receives insufficient disability income to support his children, N.E.M. shall investigate whether he is qualified for vocational rehabilitation or training for employment that meets his various challenges. [ 34 ] N.E.M. shall advise R.L.G. when he has met each of these requirements. He shall advise her of his ongoing efforts to find employment and will advise her immediately if he does obtain employment. This is not an opportunity for the parties to engage in any dialogue respecting whether N.E.M. is meeting these obligations.

It is an order for providing information only. [ 35 ] R.L.G. has leave to apply for a review of this child-support order not less than one year from today’s date. That gives N.E.M. a year to comply with the above. Mr. Parhar shall draft the order. _____________________________ The Honourable Judge S.D. Frame Provincial Court of British Columbia