A.V.B. v. J.R.M., 2021 BCPC 197

Citation: A.V.B. v. J.R.M. 2021 BCPC 197 Date: 20210819 File No: 19588 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.V.B. APPLICANT AND: J.R.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: A. Lax The Respondent, appearing on his own behalf: J.R.M. Place of Hearing: Terrace, B.C.

Date of Hearing: June 14, 2021Date of Judgment: August 19, 2021 INTRODUCTION [1] A.V.B. and J.R.M. began cohabitating in an intimate relationship on October 1, 2002. They are the biological parents of threechildren, C.O.M. who is 16-years-old, C.J.M. who is 14, and G.M.M., soon to be 13. A.V.B. and J.R.M. separated on March 6, 2016.Since then, A.V.B. and J.R.M. have been litigating issues of parenting time, parental responsibilities, child support, spousal support anddivision of family assets in both the British Columbia Supreme and Provincial Courts.

The circumstances leading to their separation havemade compromise and cooperation difficult for A.V.B. and J.R.M. [2] On January 29, 2019, A.V.B. and J.R.M. entered into a comprehensive final consent order before Judge Struyk with respect toissues concerning guardianship, parenting responsibilities, parenting time, police enforcement, child support, spousal support andparental conduct: Court Electronic Information System (“CEIS”) 27. This agreement began to unravel from its inception, primarilybecause of the children’s choices as to parenting arrangements.

Its viability was further undermined because it was based on flawedassumptions as to the parties’ respective income. Moreover, the division of family assets remained unresolved. [3] On June 22, 2019, A.V.B. filed an Application to Obtain an Order seeking a protection order and enforcement of Judge Struyk’sJanuary 19, 2019 consent order: CEIS 30. On November 20, 2019, J.R.M. filed a reply opposing A.V.B.’s July 22, 2019 application andcounterclaimed for the termination of the January 29, 2019 order: CEIS 32.

He sought orders recognizing the existing parentingarrangements, changes to the allocation of parenting time and parenting responsibilities, child support, retroactive child support and thetermination or reduction of spousal support. [4] A.V.B.’s and J.R.M.’s reciprocating 2019 applications came before me for trial, which is ongoing. On March 3, 2020, after athree-day trial that proceeded over a five-month period, I made final orders with respect to parenting arrangements and child support:CEIS 34.

At the time I delivered my Reasons for Judgment, C.O.M. and C.J.M. lived primarily with J.R.M. and G.M.M. had equalparenting time with both parents. [5] The matter came before me again for trial on September 25, 2020, after G.M.M. too began living primarily with J.R.M. At itsconclusion, I made final orders with respect to parenting arrangements and child support, interim orders as to parental conduct and aninterim without prejudice order as to spousal support: CEIS 49.

I adjourned the issue of spousal support pending a determination of theparties’ family law proceedings in BC Supreme Court File 20083. [6] The Supreme Court proceedings concluded with a final consent order made at a judicial case conference before Master Harperon September 28, 2020. In a nutshell, J.R.M. paid A.V.B. $119,000 as an equalization payment for her interest in the former familyhome. The issue of spousal support came before me for hearing on June 14, 2021. At its conclusion, I reserved my decision. These aremy Reasons for Judgment. ISSUES [7] The primary issues this Court must determine are: A.

Is A.V.B. entitled to spousal support? B. If so, how much spousal support is J.R.M. obligated to pay to A.V.B. and for how long? C. What are the parties’ respective ongoing child-support obligations? [8] A secondary issue which arose at trial related to A.V.B.’s obligation to pay her proportionate share of special expenses relatingto C.O.M.’s orthodontics. In an effort to spare the parties further litigation, I have dealt with issues of child support in these Reasons forJudgment with leave to the parties to apply for a review.

BACKGROUND FACTS AND PROCEDURAL HISTORY [9] I have set down the background facts and procedural history in my Reasons for Judgment handed down on March 3, 2020, andindexed as A.M.V. v. J.R.M., 2020 BCPC 35 . I do not intend to reiterate them at length in this decision. [10] These Reasons for Judgment are with respect to A.V.B.’s and J.R.M.’s reciprocating applications filed on June 22, 2019 andNovember 20, 2019, on the issue of spousal support.

It is a continuation of the trial heard October 17, 2019, November 25, 2019,February 28, 2020, March 3, 2020 and September 25, 2020. [11] In determining the issue of spousal support, I have taken into consideration: a. The documents filed with this Court since August 2016, including all pleadings, motions, affidavits and financial statements recordedin the Court Electronic Information System (“CEIS”); b. All previous Reasons For Judgment and court orders; c. The exhibits filed at trial; d. Master Harper’s September 28, 2020 consent order; e. J.R.M.’s oral testimony at trial;

f. A.V.B.’s oral testimony at trial; g. J.R.M.’s submissions at trial; and h. The submissions of A.V.B. and her various counsel at trial, namely, Mr. S. Davidson, Ms. A. Penner, and Mr. A. Lax. [ 12 ] A.V.B. and J.R.M. cohabitated in a marriage-like relationship for approximately 13½ years. A.V.B. is now 48-years-old and J.R.M. is 50. Both before and after they separated, A.V.B. and J.R.M. resided in or around [Terrace], BC. [ 13 ] When she began dating J.R.M. in 2001, A.V.B. lived in Terrace, BC.

She worked full time for the Regional District of Kitimat- Stikine (“RDKS”) as a bylaw enforcement officer at the [omitted for publication]. This was a unionized position with a municipal pension plan. [ 14 ] J.R.M. lived in [omitted for publication], BC, and worked for his father’s logging company, [“MLL”]. J.R.M. has no financial interest in the company; he is, and has always been, just an employee. He has worked for MML for the past 30 years or so. At various times J.R.M. drives a logging truck or operates logging equipment or works in the mechanical shop.

These three positions attract a decreasing rate of pay. Hauling logs is the most profitable position, which pays $36 to $50 per hour depending on weight and trip time. He earns $32 per hour operating logging equipment in the bush and $20 per hour working in the mechanical shop repairing vehicles and equipment. It was not a unionized position and includes no benefits other than J.R.M.’s statutory entitlement to participate in the Canada Pension Plan (“CPP”) and Employment Insurance (“EI”). [ 15 ] J.R.M. and A.V.B. each have a high-school education.

Both have acquired additional skills, certifications and training necessary for or relevant to their employment. Both parties worked continuously throughout their relationship in their chosen occupation for the employer for whom they worked prior to commencing their relationship. [ 16 ] When J.R.M. and A.V.B. commenced cohabitating, J.R.M. had three minor dependent children from a previous marriage to W.M., namely: K.G.M. born [omitted for publication] 1992, J.S.M. and C.R.M. born [omitted for publication] 1994.

All three boys are now independent adults; however, J.R.M. was obligated to pay child support to their mother until November 1, 2014: see BCPC file 10255. [ 17 ] A.V.B. and J.R.M. are the biological parents of C.O.M. born [omitted for publication] 2005, C.J.M. born [omitted for publication] 2007, and G.M.M. born [omitted for publication] 2008. [ 18 ] Initially, A.V.B. moved into J.R.M.’s residence in [omitted for publication] and commuted to work at the RDKS’s [omitted for publication] Shelter.

At some point, A.V.B. and J.R.M. purchased the family home at [omitted for publication] on the outskirts of [omitted for publication] . J.R.M. continued to work for MML and commuted to work from [omitted for publication] to [omitted for publication] . [ 19 ] While together, J.R.M. and A.V.B. lived a modest lifestyle. A.V.B. took maternity leave from her position at RDKS when each child was born (2005, 2007 and 2008). At other times she worked reduced hours because of her childcare and household responsibilities.

She says she assumed a disproportionate share of the domestic responsibilities because J.R.M. worked long hours for MML in [omitted for publication]. [ 20 ] In my March 3, 2020 Reasons for Judgment, I found the parties separated on March 8, 2016, based on A.V.B.’s affidavit filed June 22, 2019: CEIS 29, para. 4. I note in the Supreme Court order of Master Harper made September 28, 2020, the parties agree they separated on March 6, 2016.

Little turns on the two-day discrepancy, however, for the purposes of this decision, I accept A.V.B. and J.R.M. separated on March 6, 2016, when A.V.B. left the relationship and the family home. J.R.M. remained behind with the three children. The children lived with J.R.M. until they entered into a consent order before Judge T. Wright on September 7, 2016, in which they agreed to share parenting time with the children on a week-on/week-off basis: CEIS 5. A.V.B.’s parenting time started at 3:00 p.m. on Sunday, September 18, 2016: CEIS 7.

J.R.M. maintained the family residence, including paying the mortgage, insurance, property taxes, line of credit, utilities and maintenance. A.V.B. obtained rental accommodations in [omitted for publication] . [ 21 ] The information before the court as to the parents’ respective work history is gleaned from their oral evidence and the financial statements and records filed in these proceedings at various times. A.V.B. filed financial statements with the court on March 20, 2017, September 18, 2020 and May 31, 2021: CEIS 11, 41 and 52.

J.R.M. filed financial statements on March 30, 2017, March 16, 2020, September 2, 2020 and May 26, 2021: CEIS 12, 35, 38 and 51. In analysing these statements, the court has endeavoured to correct some of the mathematical errors. THE PARTIES’ FINANCIAL CIRCUMSTANCES: ASSETS AND DEBTS [ 22 ] The order of Master Harper made September 28, 2020, indicates that when they separated, J.R.M. and A.V.B. had few assets beyond their equity in the family home at [omitted for publication]. They had no savings. A.V.B. had an older vehicle with a net worth of $1,617; J.R.M. had a 2000 Silverado pickup worth $1,500.

The remaining assets were some recreational vehicles with a collective worth of $1,390; an old chainsaw, snow blower and garden shelter. [ 23 ] In his May 30, 2017 financial statement, J.R.M. states the equity in the family home was $154,227 ($272,300 market value - $118,073.45 Scotiabank mortgage = $154,227).

By September 28, 2020, the date when J.R.M. and A.V.B. divvied up their assets, A.V.B.’s and J.R.M.’s equity in the family home had increased to $242,687 ($347,000 market value - $104,313 Scotiabank mortgage = $242,687): see CEIS 41, pp. 84-89. [ 24 ] A.V.B.’s and J.R.M.’s debts totalled $110,108 and included $104,313 owing on their Scotiabank mortgage and $5,795 on their Scotiabank credit card. Neither A.V.B.’s debt to BMO nor J.R.M.’s debt on the Scotiabank line of credit was divided.

In late 2020, J.R.M. refinanced the mortgage on [the family home] to pay out A.V.B. and his debt to Scotiabank under his credit card and line of credit. As a result, J.R.M.’s equity in the former family home is only $77,000.

ASSESSING INCOME [25] Determining the parties’ respective income is central to both the child support and spousal support analyses. The Child SupportGuidelines (“Guidelines”) establish the framework for determining income for child-support purposes. The starting point for determiningincome for spousal support purposes and under the Spousal Support Advisory Guidelines (“SSAG”) is also the definition of “income”under the Guidelines: Lozinskis v. Lozinski, 2017 BCCA 280 , para. 38; Marquez v.

Zapiola, 2013 BCCA 433 . [26] Section 2(1) of the Guidelines defines “income” for child support purposes as the annual income determined under ss. 15 to 20.Section 15(1) of the Guidelines provides that subject to s. 15(2), a party’s annual income is determined by the court in accordance withss. 16 to 20 of the Guidelines. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the courtmay consider that amount to be the party’s income for the purposes of the Guidelines if the judge thinks that the amount is reasonable. [27]

Section 16 of the Guidelines provides that subject to s.17 to 20, a party’s annual income is determined using the sources ofincome set out under the heading “total income” (formerly line 150 now 15000) in the T1 General Form issued by the Canada RevenueAgency (“Guideline income”) and by then making the adjustments provided for in

Schedule III to the Guidelines. Federal child-relatedtax benefits and goods and services tax credits for children are not included in the calculation of income for the purposes of childsupport: Guidelines,

Schedule I, para. 6. Section 2(3) of the Guidelines directs the court to determine issues relating to income based onthe most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income ineach year for which the quantum of support is being determined and to make support decisions based on that income: V(L.R.) v.V(A.A.), 2006 BCCA 63 (BCCA); E.L. v M.L, 2021 BCSC 835 . [28] Although the Guidelines are the starting point for determining income for the purposes of spousal support under the SSAG, theyare not the endpoint.

The SSAG income calculation includes government child-related benefits and credits relating to children to whomthe parties have a support obligation: Professor Carol Rogerson and Professor Rollie Thompson, Spousal Support Advisory Guidelines:The Revised User’s Guide (Ottawa: Department of Justice Canada, 2016) (the “RUG”), pp. 18-19). [29] The federal benefits and credits include the Canada Child Benefit (“CCB”), which in July 2016, replaced the Canada Child TaxBenefit (“CCTB”), the National Child Benefit Supplement (NCBS), and the Universal Child Care Benefit (“UCCB”): s.122.6 ofthe Income Tax Act.

The Canada Child Benefit is a tax-free monthly payment made to eligible families to help with the cost of raisingchildren under 18 years of age. Another federal government benefit is the goods and services tax or the harmonized sales tax credit(“GST/HST”) given to families with a low or modest income to offset the GST or HST they pay. [30] The Province of British Columbia also has various benefits to families, including the BC Child Opportunity Benefit (“BCCOB”),which is a tax-free monthly payment to families with children under the age of 18.

In October 2020, the BCCOB replaced the BC EarlyChildhood Tax Benefit (“BCECTB”) which was a tax-free monthly payment made to eligible families to help with the cost of raisingyoung children under age six. Low-income families are also entitled to receive the BC Climate Action Tax Credit (“BCCATC”), whichis a tax-free payment to help offset the carbon taxes they pay: see Income Tax Act, RSBC 1996, c. 215, ss. 13.01 to 13.09. The provincialbenefits are often combined with the federal CCB into a single monthly payment.

A.V.B.’S PRE-SEPARATION INCOME [31] A.V.B.’s financial statements disclose the following pre-separation information: a. In 2012, A.V.B. earned $36,243 from her employment with RDKS: CEIS 11, CEIS 41, pp. 75-76; b. In 2013, A.V.B. earned $34,268 from her employment with RDKS. She also received $800 from Canada Revenue Agency (“CRA”)for the Universal Child Care Benefit (“UCCB”): CEIS 11, CEIS 11, pp. 73-74; c. In 2014, A.V.B. earned $29,160 from her employment with RDKS and received $800 from the CRA for the UCCB: CEIS 11, CEIS41, p. 68-71; and d.

A.V.B. did not provide the court with any CRA documentation with respect to her employment income with RDKS in 2015. I gatherfrom a document attached to her September 24, 2020 Affidavit (CEIS 42), she earned $29,719 in 2015. A.V.B.’S POST-SEPARATION INCOME 2016 [32] When A.V.B. separated from J.R.M. on March 6, 2016, she was still employed with RDKS as an animal control officer.

In eitherlate 2015 or early 2016, she went on medical leave as a result of a stressful event at work: CEIS 11. [33] The evidence before the court indicates that in 2016, A.V.B.: a. earned $26.28 per hour for a 40-hour work week from RDSK; b. quit her job with RDKS in October 2016, when she no longer qualified for long-term disability benefits; c. received $600 per month in child support from J.R.M.; d. received an eligible dependant tax credit of $11,474; e. received the following income in 2016: i. $18,181.37 from a combination of employment income and short-term disability;

ii. $2,978 in long-term disability benefits from British Columbia Life & Casualty Company; iii. $1,080 for the Universal Child Care Benefit: iv. $4,925.59 for the CCB, which was retroactively increased to $16,200; v. $1,001 for the GST/HST rebate; vi. $250 business income; and vii. $3,600 from A.V.B.’s untaxed self-employed house-cleaning business, based on A.V.B.’s representations in her March 20, 2017 financial statement that she earned $1,200 per month between September 30, 2016, to March 10, 2017, “doing odd jobs”; See CEIS 5, 11, 41, 42 and 52. [ 34 ] On October 10, 2016, after 17 years of employment, A.V.B. resigned from her position as the animal control officer at RDKS: CEIS 41, p. 65.

She says in her Financial Statement filed March 20, 2017 (CEIS 11) that her employment with the RDKS ended “due to the stress of working at the animal shelter.” She goes on to state: I have completed an online veterinarian assistance course. I was picking up work as and when I could and I was taking home about $1,200 a month doing odd jobs. I have recently obtained employment at PACC pay 40 hrs @14.50/hr. [ 35 ] I understand A.V.B. resigned from RDKS when a highly contentious court proceeding involving [omitted for publication] attracted a “public backlash”.

At trial on June 14, 2021, A.V.B. suggested her “2016 stress leave” was necessitated in part by her childcare and household responsibilities. In my view this is a re-envisioning of the events. I find her medical leave in 2016 was for the reasons she stated in her Financial Statement filed March 20, 2017 (CEIS 11), namely, the “stress of working at the [omitted for publication]”.

In reaching this conclusion, I have considered A.V.B.’s evidence at trial wherein she states: Q And now to have the [omitted for publication] control job that you had, do you have any particular qualifications for that or how do you get that job? A I took a course for bylaw enforcement level one and I also became certified to [omitted for publication]. Q And are you still working in that field? A No. Q All right, and do you have any intentions on going back to work in that field again? A No. Q And I guess could you talk a little bit about how or why that is? A It's a -- why -- it's the stress.

It's the constant when you're, well RCMP officers would know the same, you're trying to enforce a bylaw and you get people at you constantly. I got death threats. I got people driving by my house. I had people staking out [omitted for publication], waiting for me to leave.

It just became a volatile place and I could no longer do that anymore. 2017 [ 36 ] Her March 20, 2017 financial statements and evidence at trial indicate that in 2017, A.V.B. received: a. $24,873 from PACC for her employment at its [omitted for publication] facility; b. $3,600 or so cleaning houses between January 1, 2017 and March 10, 2017; c. $1,200 - $1,600 per month in non-taxed income from her cleaning jobs while working 40 hours per week at PACC (March 10, 2017 to December 31, 2017); d. $16,200 for the CCB ($1,350 per month); e. $1,301 for the combined GST/HST and BCCATC; f. $7,200 in child support from J.R.M.; and g. $8,740 as an eligible dependant tax credit; See CEIS 11, pp.4-5, CEIS 41, pp. 60-61; CEIS 52, pp. 14-16; 29-30, 37-38. [ 37 ] At trial, A.V.B. testified that in addition to working full time at PACC, she also continued cleaning houses in 2017 and 2018, 15- to-20 hours per week.

A.V.B. did not disclose to the court or CRA how much she earned from this self-employment. J.R.M. testified A.V.B. charged $20 per hour, which I accept is a reasonable rate for this service. The evidence indicates A.V.B. earned $1,200 to $1,600 per month in untaxed self-employment income, which would be “grossed up” under the SSAG . [ 38 ] It is impossible to ascertain A.V.B.’s precise income for 2017 without knowing what she earned from self-employment. If she

worked for $20 per hour 15-to-20 hours per week cleaning from April 1 to December 31, 2017, she would have earned $11,700 to$14,400 in untaxed income (39 weeks x 15 hours x $20 = $11,700; 39 weeks x 20 hours x $20 = $15,600). To be clear, I do not find thatA.V.B. actually worked 15-to-20 hours each week cleaning in 2017. I assume she worked these hours intermittently.

Nevertheless, Icannot guess what she did earn from self-employment in 2017. 2018 [39] Her financial statements and evidence at trial indicate that in 2018 A.V.B. received: a. $43,054 in employment income from PACC; b. $364 per month in spousal support from J.R.M.s from October 1, 2018 to December 31, 2018, for a total of $1,092; c. $16,321.50 from the CCB; d. $1,301 in the combined GST/HST and BCCATC; e. Unquantified and undeclared earnings from self-employment; f. Ongoing and retroactive child support from J.R.M.; and g. $8,915 as an eligible dependant tax credit.

See CEIS 41, pp. 17-19, 31-32, 39-40. [40] On October 1, 2018, PACC promoted A.V.B. into a managerial position at PACC. Her base salary was raised to $46,000 and shebecame eligible to participate in the PACC employee incentive plan: CEIS 41, p. 113. [41] As is the case for 2017, I cannot determine A.V.B.’s income for 2018 because I do not know her income from self-employment. Iam mindful that generally the court does not require a person to work more than one full-time job to satisfy their duty to support theirchildren: Fong v. Fong, 2011 BCSC 42 , para. 85.

However, it would be unfair to simply disregard this secondary income forA.V.B. while taking into consideration J.R.M.’s overtime pay when calculating his income. 2019 [42] Her financial statements indicate that in 2019, A.V.B. received: a. $59,581.23 from her employment with PACC; b. $2,041 in spousal-support payments; c. $6,788 in child-support payments; d. $17,530.65 from the CRA for the combined CCB and GST/HST; and e. $9,147 as an eligible dependant tax credit.

CEIS 41, pp. 10-14; CEIS 52, pp. 20-22, 33-34, 39-44. [43] A.V.B. testified that she stopped working as a cleaner because it was too physically demanding, but did not say when. I assume itwas sometime in 2019, because it was in this year that A.V.B. underwent two significant surgeries.

She was absent from work at PACCfrom September 24, 2019 to the beginning of November 2019, for [omitted for publication] surgery and again for most of December2019, for knee surgery. 2020 [44] In 2020, A.V.B. received: a. $56,001.78 from her employment with PACC, inclusive of a $10,000 sales bonus; b. $3,482.10 from her employment with TPL (I note that in her 2020 Income Tax Return A.V.B. does not declare any tips or gratuitiesfrom her waitressing job); c. $1,884 in spousal support; and d. $13,762.32 from CRA for the CCB, GST/HSTC and BCCATC benefits.

See CEIS 52, pp.45-68; CEIS 42. [45] On September 28, 2020, A.V.B. and J.R.M. finalized their division of family assets in a judicial case conference in the BCSupreme Court. The resulting consent order provided, among other things, that J.R.M. take title to and possession of the former familyhome and pay A.V.B. an equalization payment in the amount of $119,088, less the amount required to pay the outstanding balance onthe BMO MasterCard Judgment registered against the residence. I understand J.R.M. paid A.V.B. the equalization payment in January2021.

She used some of these funds to pay her outstanding debts and purchase a Polaris ATV for herself and a used dirt bike for C.O.M. [46] A.V.B. received a notice from CRA that as of October 28, 2020, her account balance was $2,863.95 for the CCB and $169.99 for

the BCCOB, for a total of $3,033.94. A.V.B. paid this sum to CRA on February 2, 2021: CEIS 52, pp. 84-86. [ 47 ] On December 4, 2020, the CRA notified A.V.B. she no longer qualified for BCCATC for October 2020 to April 2021 because her net family income was more than $44,447. She was asked to repay $13.32: CEIS 52, pp. 82-83. 2021 [ 48 ] In 2021, A.V.B. continues to work full time for PACC. Her Statement of Earnings from PACC dated May 14, 2021, indicates a year-to-date gross income of $25,375.12, inclusive of $6,392 in sale bonuses.

Extrapolating this sum to December 31, 2021, A.V.B.’s employment income from PACC for 2021 will likely exceed her earnings for 2020. In 2021, A.V.B. also earned $327.50 from her part- time waitressing job with TPL and $1,429.04 from her part-time waitressing job with NMI. I assume she also earned gratuities from her waitressing job; however, she has not disclosed these sums. [ 49 ] A.V.B. states her 2021 employment income will be $46,000. She claims she has been unable to work her serving job at the NMI since March 2021.

She took three weeks off for surgery on her leg and is now unable to work at her waitressing job due to COVID-19 restrictions. Her Statement of Earnings dated April 21, 2021, states A.V.B. worked at NML for the period from April 1 to April 14, 2021: CEIS 52, p. 147. A.V.B.’s Statement of Earnings from PACC indicates she was absent from work from April 25, 2021 to May 8, 2021 (two weeks). She did not provide her Statement of Earnings for any pay periods after May 8, 2021. [ 50 ] A.V.B. also testified she expected to be absent from work for six weeks in 2021 due to knee surgery.

She did not provide any medical evidence in this regard and does not yet have a scheduled surgery date. A.V.B. anticipates her income from PACC will be reduced as a result of her medical absence, but does not say to what degree. I note she is entitled to medical-leave benefits through her employer: CEIS 52, p. 135; CEIS 41, p. 113.

Moreover, her bonuses are assessed in three-month increments and based on the store’s profits, not on A.V.B.’s personal performance. [ 51 ] A.V.B.’s Financial Statement filed May 31, 2021, indicates: a. she estimates her income for 2021 will be $46,000, which is her base pay with PACC without any sales bonus (even though her attached Statement of Earnings for 2021 clearly indicate she had already received a bonus of $6,392 as of May 8, 2021); b. she received spousal support in the amount of $1,884.

Government Child-related Benefits [ 52 ] After they separated, A.V.B. and J.R.M. shared guardianship and parenting responsibilities for the children. Over the ensuing years, they had various parenting arrangements according to their children’s wishes. For the first nine weeks of 2016, all three children resided with both parents. After March 6, 2016, the three children resided with J.R.M. for approximately six months. In mid-September 2016, A.V.B. and J.R.M. began sharing equal parenting time with the children.

On about April 1, 2018, C.O.M. went to live primarily with A.V.B., and J.R.M. and A.V.B. had equal parenting time with C.J.M. and G.M.M. This changed again on January 25, 2019, when C.J.M. went to live primarily with J.R.M. C.O.M. remained living primarily with A.V.B. and the parents had equal parenting time with G.M.M. On June 25, 2019, C.O.M. began to live with J.R.M. full time. For the next year, J.R.M. had primary care of C.O.M. and C.J.M. and shared equal parenting time with G.M.M.

On or about July 1, 2020, G.M.M. went to live with J.R.M. full time with the result that all three children now live primarily with J.R.M. A.V.B. has some parenting time with C.O.M., subject to C.O.M.’s wishes. A.V.B. has very little parenting time with C.J.M. and G.M.M. [ 53 ] At no time post-separation did A.V.B. have primary parenting time of all three children. Nevertheless, A.V.B. received the government child-related benefits for all three children as though they were residing primarily with her since separation for 2016, 2017, 2018, 2019 and 2020.

At some point in 2020, CRA learned that A.V.B. no longer qualified for the child-related benefits she had been receiving and required her to repay $3,033.94: CEIS 52, p. 84-85. [ 54 ] A.V.B. has appended to her Financial Statement various CRA records indicating notices of her entitlement to benefits for the UCBB, CCB, BCCOB, BCECTB, GST/HST, BCCATC for C.O.M., C.J.M. and G.M.M. Specifically, CRA records show: a. From July 2016 to June 2017 inclusive, A.V.B. received from CRA the CCB in the amount of $4,925.59 and UCCB of $1,080: CEIS 42.

She also provided a Notice of Reassessment indicating the CCB was increased to $16,200. A.V.B. also received a BCCATC benefit and GST/HST rebate of $1,001, based on a 2016 family net income of $19,640; b. From July 2017 to June 2018 inclusive, A.V.B. received from CRA the CCB in the amount of $1,350 per month for a total of $16,200 for C.O.M., C.J.M. and G.M.M.: CEIS 42. During this same period she received $1,301 in the combined GST/HST and BCCATC rebates: CEIS 41, pp. 60-61, 67; c.

From July 2018 to June 2019 inclusive, A.V.B. received from CRA the CCB in the amount of $1,370.25 per month for a total of $16,443 for C.O.M., C.J.M. and G.M.M., based on a 2017 family net income of $24,873: CEIS 42; d. From July 20, 2019 to June 2020 inclusive, A.V.B. received from the CRA the CCB in the amount of $15,438.54 for C.O.M., C.J.M. and G.M.M.: CEIS 41, pp. 44-45. This benefit was based on a 2018 family net income of $43,054: She also received GST/HST rebate of $1,814.75: CEIS 42, pp. 41-43; and e.

From July 2020 to June 2021 inclusive, A.V.B. received from the CRA for the CCB, BCCOB and BCECTB in the total amount of $12,986.11 for C.O.M., C.J.M. and G.M.M., based on a 2019 family net income of $61,542. It includes three payments of $954.66 each for BCCOB, and nine payments of $1,024.65 for the CCB. From this sum she was required to repay $3,033.94: CEIS 52, pp. 84-86. During this period she also received the GST/HST and BCCATC credits of $504.78, from which she had to repay $13.32: CEIS 41, pp. 34-38; CEIS 52, pp. 82-83.

[ 55 ] A.V.B. states in her Financial Statement filed September 18, 2020, that she has to repay to CRA the CCB she received in 2020- 2021. At the September 25, 2020 trial, counsel for A.V.B. told the court that with respect to the CCB: [A.V.B.] is receiving the CCB right now, because obviously J.R.M. has not applied for it. And until he applies for it, she's going to get it.

Once he applies for it, she is going to have to repay [the CCB] to the tune of about $1,100 per month. [ 56 ] The only documentation placed before the court addressing A.V.B.’s obligation to repay any portion of the government child- related benefits were the notices from CRA dated November 20, 2020 and December 4, 2020. The November 20, 2020 notice states that as of October 28, 2020, A.V.B.’s account balance was: CCB/CCBTB, $2,863.95; and for the BCCOB, $169.99, for a total of $3,033.94. A.V.B. repaid this sum to CRA on February 2, 2021: CEIS 52, pp. 84-86.

The December 4, 2020 notice asked for a repayment of $13.32 for the BCCATC. I find, therefore, that in 2020, A.V.B. received from the CRA child-related benefits of $10,443.63 ($12,986.11 CCB - $3,033.94 repayment = $9,952.17) + ($504.78 BCCATC - $13.32 = $491.46) = $10,443.63. [ 57 ] My attempt to assess the impact of government child benefits on spousal support is complicated by a number of factors including: a. In 2016, the year the parties separated, the federal government replaced its former government child-related benefit schemes (i.e. UCCB) with the CCB; b.

The parties’ constantly shifting parenting-time arrangements with the three children; c. The parties’ fluctuating income since they separated on March 6, 2016; d. The government child-related benefits are determined on the preceding year’s taxable income; e. The government child-related benefits are determined for a 12-month period from July to June. In other words, they straddle two calendar years; f. A.V.B.’s income tax was often reassessed, which impacted her entitlement to government child-related benefits; g. A.V.B.’s undisclosed and untaxed income from self-employment; h.

The disparity in J.R.M.’s and A.V.B.’s respective income; i. A.V.B. receiving all the government child-related benefits for children who were not in her primary care; j. J.R.M. not receiving any government child-related benefits for the children who were primarily in his care; and k. There is no CRA evidence before the court indicating J.R.M. applied for or received the CCB for any of the three children since he separated from A.V.B. [ 58 ] Clearly, the presence or absence of these government child-related benefits have an impact on the parties’ income for the purposes of assessing spousal support.

Neither party provided the court with submissions in this regard. ANALYSIS OF A.V.B.’SFINANCES Post-separation Income [ 59 ] Throughout this trial, A.V.B. has repeatedly understated her income. On February 28, 2020, she claimed she had not yet received her 2019 T4 Statement from PACC but expected her 2019 and 2020 income would be $45,000 as it was in 2018: CEIS 33, para. 198. This was not even her base pay. In her Financial Statement filed September 18, 2020, A.V.B. stated her annual salary is $46,000 plus benefits and bonuses and that 2020 has not been a good year for bonuses.

She says that perhaps she would receive another $1,000. On September 25, 2020, A.V.B. stated that business in 2020 was not “good” for PACC. She testified: Because of COVID, and we had to close our doors to the public. And I got a wage decrease for the time that we were closed, and had to lay off my two staff. And, yeah, this year is not going to be good.

On June 14, 2021, she claimed she would not receive a bonus comparable to that which she earned in 2020, because the renovation boom caused by COVID-19 is spent. [ 60 ] Counsel for A.V.B. provided the court with two DivorceMate calculations premised on A.V.B. having a Guideline income of $46,000. A.V.B.’s May 14, 2021 Statement of Earnings from PACC indicate she received $25,375.12 for the first 129 days of 2021: CEIS 52, p. 135. Extrapolating this sum to December 31, 2021, suggests A.V.B. may earn $71,798 this year ($25,375.12 ÷ 129 x 365 days = $71,798).

However, I accept this exercise will not accurately project her 2021 income. [ 61 ] In 2019, A.V.B. earned $59,581 from PACC, of which $46,000 was for her base salary and $13,000 was a sales’ bonus. In 2020, A.V.B. earned $56,001, of which $46,000 was her base salary and $10,000 was a bonus. If I were to impute to A.V.B. an income of $71,798 from PACC in 2021, she would have to receive a raise in her base salary or a sale bonus of $25,798, which I find unlikely.

However, given she has already received a $6,392 bonus in the first 129 days of 2021, I find it reasonable to assume she will earn a bonus equal to or greater than that which she received in 2020. [ 62 ] A.V.B. earned an income of $59,483.88 in 2020 (from PACC and TPL collectively), together with a net of $9,952.17 in CCB payments (total $69,436.05), plus whatever she earned in tips from her waitressing jobs. I accept she will not receive the CCB in 2021. I will impute to A.V.B. a 2021 income of $60,000 from all income sources.

A.V.B.’s Expenses [ 63 ] A.V.B. has filed three financial statements setting out her estimated expenses at various times.

In her March 20, 2017 financial statement, A.V.B. claims expenses totalling $62,138 allocated as follows: (a) $15,000 for rent; (b) $8,580 for utilities (heat, electricity, telephone, cable television and cell phone); (c) $14,600 for household expenses (food, household supplies, meals outside the home, and furnishings and equipment);(d) $7,420 for transportation (gas and oil, car insurance, repairs and maintenance) (e) $2,400 for health (MSP premiums, although her attached invoice indicates she pays $75 per month); (f) $3,400 for personal items (clothing, hair care, toiletries, entertainment/recreation); (g) $4,030 for children (clothing, hair care, school fees and supplies, entertainment/recreation; (h) $5,868 for debt payments (TD Auto Finance loan and BMO MasterCard); and (i) $840 for pet care. [ 64 ] In her September 18, 2020 financial statement, A.V.B. claimed expenses of $6,387.21 per month or $76,646.52 annually; none of which are directly attributable to the children.

She attributes roughly half of her monthly and annual expenses to compulsory deductions for CPP, EI premiums, income tax and medical/ dental insurance. Specifically, A.V.B. claims statutory deductions of $3,169.32 per month comprising: (i) $241.50 for CPP; (ii) $71.36 for EI; (iii) $2,749.26 for income tax; and (iv) $107.20 for medical and dental insurance. She multiples this monthly sum by 12 to arrive at a yearly total of $38,031.84 in compulsory deductions for 2020.

On a $46,000 income this would mean A.V.B.’s income was taxed at an implausible 72%. [ 65 ] In her September 18, 2020 financial statement, A.V.B. stated she paid: (a) $15,000 per year for housing ($1,250 monthly, rental accommodations); (b) $4,624.56 per year ($385.38 monthly) for utilities; (c) $4,800 per year ($400 monthly) for food and meals outside the home; (d) $11,214.12 per year ($934.51 monthly) for transportation expenses, comprising $517.83 per month for the TD Auto Finance loan on her 2011 Chevrolet Silverado, $300 per month for fuel, and $116.68 for car insurance; (e) $ 240 per year ($20 monthly) for medications; (f) $336 ($28 per month) on personal expenses (g) $2,400 per year ($200 per month) for pet care; and (h) $0 for children expenses). [ 66 ] In her May 31, 2021 Financial Statement, A.V.B. declared her income for the purposes of calculating spousal support of $46,000.

She claims her expenses for compulsory deductions totalled $13,955.76 ($8,712.03 income tax + $2,892.35 CPP, $911.38 EI, and $1,440 RRP = $13,955.76). These sums are obviously calculated on her 2020 income of $59,483.88, not on her declared income of $46,000: CEIS 52, p. 65. [ 67 ] In her May 31, 2021 Financial Statement, A.V.B. states she pays: a. Housing expenses comprising $7,800 for rent, and $5,145 for utilities, for a total of $12,945. A.V.B. has taken on a roommate who pays half the rent and utilities.

It is difficult to understand, therefore, why her utilities in 2021 ($5,145) are greater then they were in 2020 ($4,624.56), when she had no roommate to share the cost; b. Nothing for household expenses (food, household supplies, meals outside the home, furnishing and equipment), even though the receipt from Walmart included in her attachment shows she does purchase household goods: CEIS: 52, p. 80-81; c. Transportation expenses of $11,555, comprising $2,500 for gas, $2,055 for insurance and $7,000 in repairs and maintenance.

These expenses are more than what she declared as transportation expenses in 2020, when still paying $239.22 biweekly on her TD Auto Finance loan. Moreover, they are not supported by her invoices which indicate she spent $1,299.68 on insurance (CEIS 52, p. 104), and $270.61 on vehicle repairs and maintenance (CEIS 52, p. 101-103); d. Children’s expenses of $7,237. Her invoices for children’s expenses included $112.91 (clothing for G.M.M.); $500.70 for an X-Box for G.M.M. (which A.V.B. subsequently sold for $400).

A.V.B. says she also spent $2,200 on a dirt bike for C.O.M., for which she did not provide a receipt; e. Extended health benefits, health care and drugs totalling $1,542.47, and $1,673 for eye care net of coverage (the receipts show a one time expense of $1,118) for a progressive plastic mid-index lens and frame and $607.80 for eye exams and glasses for the children in April 2021: CEIS: 52, p. 70-81; f. Personal expenses of $3,876; g. Pet care expenses totalling $2,500; h.

Child support in the amount of $14,580 per year for which she is $5,761 in arrears. [ 68 ] J.R.M. disputes A.V.B. paid $7,000 for repairs and maintenance of her vehicle. In cross-examination, A.V.B. admits to spending some unspecified sum on a “lift kit” for her pickup, a feature she agreed was purely cosmetic. [ 69 ] J.R.M. also disputes A.V.B.’s claim to pay $7,237 on the children’s expenses. I concur, because this sum is inconsistent with A.V.B.’s spending patterns: see March 3, 2020 Reasons for Judgment. In particular: a.

In her financial statement filed September 18, 2020, A.V.B. claims no child-related expenses; b. Neither G.M.M. nor C.J.M. spend any appreciable time with A.V.B.; c. C.O.M. began working when she was 14-years-old. She uses her own earnings to cover many of her personal expenses; d. C.O.M. has complained in the past that A.V.B. spent little money on food and clothing even when the children were living under her roof in a shared parenting arrangement; e.

J.R.M. says the only children’s clothing he is aware of A.V.B. purchasing in the past year are the outfits for G.M.M. she purchased in the 2021 school spring break ($112.91) and $200 she gave to C.O.M. to spend on clothes when she went on a shopping trip to Prince

George; f. J.R.M. testified that he is not aware of any gifts A.V.B. purchased for the children that would amount to $1,500 as claimed in her financial statement; g. A.V.B. only produced receipts for $613.61, comprising $112.91 for G.M.M.’s clothing and $500.70 for the X-Box for G.M.M. As she sold the X-Box for $400 upon G.M.M.’s departure, A.V.B.’s receipted expenses total $213.61; h. A.V.B. says she paid $2,200 for a used dirt bike for C.O.M., for which she provided no receipt. Like G.M.M.’s X-Box, the dirt bike must remain at A.V.B.’s home.

It is not clear to me whether this dirt bike is something C.O.M. is entitled to keep or simply use when she is at her mother’s home; i. A.V.B. does not explain why she has a receipt for some fairly inexpensive clothing items for G.M.M., but none for a major expenditure such as the dirt bike; and j. A.V.B. refuses to pay her proportional share of special expenses for C.O.M.’s orthodontics because in her view they are “cosmetic” and she did not agree to them.

A.V.B.’s Assets [ 70 ] In her March 20, 2017 and September 18, 2020 Financial Statements, A.V.B. declared her equity in the family home and pickup as her principle assets. In her May 31, 2021 Financial Statement, A.V.B. declared her assets consisted of her 2011 Chevrolet Silverado Pickup which she valued at $14,000 and a recently acquired Polaris 450 Sportsman quad, valued at $10,000. She did not disclose on her Financial Statement filed May 31, 2021 the monies she had saved from her equalization payment. At trial she admitted to having $60,000 left from the $119,088 she received in January 2021.

I note her record of payment to CRA of $3,033.94 on February 2, 2021, indicates she was left with a balance in her bank account of $85,798.70: CEIS 52, pp. 84-86. A.V.B.’s Indebtedness [ 71 ] When A.V.B. separated from J.R.M., she had a BMO MasterCard which had been “maxed out”. She owed $12,850.15, which was $850.15 over her $12,000 credit limit. On June 25, 2017, A.V.B. defaulted on her payments. The following year, Bank of Montreal commenced a small claims action against A.V.B. in Robson Provincial Court F-1963618, indicating the balance owing as of October 29, 2018, was $17,761.18.

On July 10, 2019, the Bank of Montreal filed a Certificate of Judgment against A.V.B.’s interest in the family home in the amount of $19, 280.73: CEIS 41, p. 78-79. Between August 13, 2019 and July 6, 2020, BMO garnished $13,610.63 from A.V.B.’s salary. On July 17, 2020, A.V.B. made a Voluntary Wage Assignment to BMO in the amount of $300 bi-weekly on the outstanding principal sum of $6,598.71: CEIS 41, pp. 80-83.

On September 28, 2020, in Supreme Court proceedings 2085, the parties agreed that J.R.M. was entitled to pay the outstanding balance on the BMO MasterCard from the equalization payment and have BMO’s Certificate of Judgment removed from the title to the family residence. BMO MasterCard filed an Acknowledgement of Payment with the Provincial Court (Robson Square) in Small Claims File ROB-P-C-1963618 on November 12, 2020, confirming A.V.B.’s debt of $18,200.90 was now paid in full. [ 72 ] J.R.M. paid a portion of A.V.B.’s debt owing to BMO which accrued pre-separation.

He says he was unaware that A.V.B. had stopped making payments on the credit card and that it fell into default. [ 73 ] Undoubtedly, A.V.B.’s post-separation financial straits are attributable in part to her taking on significant ongoing financial commitments shortly before quitting her job with the RDSK. Specifically: a. On September 9, 2016, A.V.B. entered into a residential tenancy agreement with B.B. to rent [omitted for publication] for $1,250 per month commencing October 1, 2016: CEIS 41, pp. 99- 111. This is a four bedroom residence in [omitted for publication] BC.

In her May 20, 2017 financial statement, A.V.B. estimated the cost of heat and electricity was $400 per month. In other words, A.V.B.’s accommodation costs were $19,800 per year; and b. On September 16, 2016, A.V.B. purchased a 2011 Chevrolet Silverado 1500 pickup truck from Coast Mountain GM in Smithers, BC, for a total cost of $28,626.04. She traded in her van and financed the remainder through TD Auto Finance. Her existing vehicle was valued at $11,595, which was subject to a $9,979.22 lien. Hence, the principal sum financed under the TD loan was $27,010.26, subject to 5.69% interest: CEIS 41, pp. 90-96.

The loan was to be repaid in 129 biweekly payments of $239.22 each by September 16, 2021: CEIS 41, pp. 90-96. [ 74 ] A.V.B. also accrued a significant debt for legal fees. I understand she repaid all her debts upon receipt of the equalization payment from J.R.M. and is now debt free. J.R.M.’SPRE-SEPARATION INCOME [ 75 ] J.R.M.’s income is fairly straightforward as it consists solely of employment income from one employer for which he receives Statement of Earnings and T4 slips. There is no evidence of J.R.M. working a second job or receiving unreported or untaxed income.

His Notices of Assessment indicate that: a. In 2013, J.R.M. earned a total income (Line 150) of $104,133 from his employment with MML: CEIS 12; b. In 2014, J.R.M. earned a total income (Line 150) of $85,976 from his employment with MML: CEIS 12; and c. In 2015, J.R.M. earned a total income (Line 150) of $79,083 from his employment with MML and $537 in Employment Insurance benefits: CEIS 12.

[ 76 ] J.R.M. testified the financial apex of his logging career was from 2010 - 2012. While working in camp in the Meziadan, he earned $112,000. Since then his income has steadily decreased, initially because of the vagaries of the logging industry and more recently, because of his increased childcare responsibilities.

J.R.M.’S POST-SEPARATION INCOME 2016 [ 77 ] His T4 Statement of Remuneration Paid indicates that in 2016, J.R.M. earned a total income of $85,112.21, from his employment with MML and his T4E Statement indicates he earned $537 in Employment Insurance benefits: CEIS 12. 2017 [ 78 ] In his Financial Statement filed May 30, 2017 (CEIS 12), J.R.M. declares a Guideline income of $85,112.21. However, J.R.M.’s Notice of Assessment indicates his 2017 Line 150 income was $78,165. 2018 [ 79 ] His Notice of Assessment indicates that in 2018, J.R.M. earned a total income of $83,388: CEIS 38.

His Notice of Reassessment indicates his 2019 income (Line 15000) totalled $78,515: CEIS 51. 2019 [ 80 ] In his Financial Statement filed March 16, 2020 (CEIS 35), J.R.M. declared a Guideline income of $78,515.26 and acknowledged receiving $2,243 in child support from A.V.B. On September 2, 2020, J.R.M. filed a further Financial Statement (CEIS 38) in which he declared a Guideline income of $78,515.26, and $6,000 in Canada Emergency Response Benefit (“CERB”) $2,000 per month for March, April and May 2020).

J.R.M.’s 2019 notice of assessment indicates a Line 15000 income of $78,515. 2020 [ 81 ] J.R.M.’s Income Tax Return indicates that in 2020, J.R.M. earned $70,501, comprising $64,501 in employment income from MML and $6,000 from the CERB : CEIS 38. 2021 [ 82 ] J.R.M.’s Statement of Earnings from MML indicates that as of May 15, 2021, he earned employment income of $25,564.02. If he continues to be employed full time and earn income at the same rate, J.R.M. could be expected to earn $68,170.72 in 2021 ($25,564.02 ÷ 4.5 months x 12 months = $68,170.72).

The logging truck J.R.M. ordinarily drives has been unavailable for the past five months because it requires a new motor. At the June 14, 2021 trial date, J.R.M. says he had been working off and on in the mechanical shop for the past two months, trying make the [omitted for publication] logging trucks roadworthy in compliance with CVSE regulations. As J.R.M. worked in the mechanical shop during the 2021 spring breakup, he does not anticipate earning any Employment Insurance this year. [ 83 ] J.R.M. ’s income with MML has declined in the past few years.

He anticipates his 2021 employment income will decrease even further. MML is facing economic turmoil as a result of environmental protests against logging old growth forests in the [omitted for publication] Valley. In an effort to curtail logging these regions, the [omitted for publication] First Nation have erected blockades to restrict access to their traditional territory. The BC government is currently negotiating with the [omitted for publication] First Nations to remove their blockades. The outcome of these negotiations is anything but certain. There is a chance that MML will have to cease its operations.

Other available timber lots are prohibitively expensive to harvest because of the high stumpage fees. If the BC government cannot resolve the dispute with the [omitted for publication], MML may not have any affordable options for harvesting timber. [ 84 ] J.R.M.’s ability to work overtime is also curtailed now that he is the primary caregiver for all three children.

He has not re- partnered and cannot leave the children unattended for significant periods of time. [ 85 ] Pursuant to my order made September 25, 2020, J.R.M. is entitled to receive child support from A.V.B. for the three children in the amount of $1,215 per month commencing the first day of July 2020. [ 86 ] In his Form 4 Financial Statement filed pursuant to Rule 25(1)(

c) on May 26, 2021, J.R.M. declares Guideline income of $70,501 and monthly expenses of $5,788 and yearly expenses totalling $69,457. I note the new Form 4 Financial statement J.R.M. filed on May 26, 2021, does not ask the affiant to account for compulsory deductions.

J.R.M.’s Expenses [ 87 ] In his May 30, 2017 financial statement, J.R.M. estimated total expenses of $95,515.34 which include: (a) $22,009.04 for compulsory deductions; (b) $13,536 in housing costs; (c) $3,060 for utilities; (d) $12,500 for household expenses; (e) $5,340 for transportation; (f) $1,800 for health-related costs; (g) $3,200 in personal expenses; (i) $7,280 for children’s expenses; (j) $900 for an RESP; (k) $7,200 in child support; (l) $500 for pet care; and (

m) vacations $2,500; (n) $15,600 in debt payments comprising (i) $4,800 Scotiabank Visa; (ii) $6,000 on a Scotiabank line-of-credit used to purchase a travel trailer, and (iii) $4,800 on a monies borrowed to pay legal fees.

This means his yearly expenses total $95,515.34. [ 88 ] In his Financial Statement filed March 17, 2020 (CEIS 35), J.R.M. estimated yearly expenses of $86,559.22, comprising (a) $19,009 for compulsory deductions; (b) $16,046 for housing costs; (c) $5,340 for utilities (inclusive of two cell phones); (d) $15,900 for household expenses; (e) $7,540 for transportation costs; (f) $1,100 for health costs; (g) $2,800 for personal expenses; (h) $4,600 for children’s expenses; (i) $900 of RESP; (j) $4,980 for child support; (k) $1,884 for spousal support; (

l) pet care of $500; (

m) vacations $1,500, and (n) $12,000 in debt payments, comprising: (i) $3,600 on Scotiabank VISA; (ii) $3,600 on his Scotiabank line-of-credit; and

(iii) and $4,800 for legal fees. [ 89 ] On September 2, 2020, J.R.M. filed a Financial Statement (CEIS 38) in which he estimated annual expenses totalling $96,085, comprising (a) $19,009 for compulsory deductions; (b) $14,606 for housing costs; (c) $6,280 for utilities (inclusive of two cell phones); (d) $19,100 for household expenses; (e) $6,440 for transportation expenses; (f) $3,400 for health-related expenses, $3,000 of which was for C.O.M.’s dental care; (g) $2,200 for personal expenses; (i) $5,100 for children’s expenses; (j) $900 for a RESP; (k) $750 in pet care; (m) $2,500 for vacations, and (n) $15,800 in debt payments comprising: (i) $1,800 for his Scotiabank VISA; (ii) $3,000 for his Scotiabank line-of-credit; and (iii) $11,000 for legal fees. [ 90 ] J.R.M. indicates he had accrued $2,500 in savings for “C.O.M.’s braces”.

He paid $1,884 in spousal support (Line 22215) ($157 x 12 = $1,884), which he said CRA declined as a deduction without a receipt from A.V.B. [ 91 ] In his Form 4 Financial Statement filed pursuant to Rule 25(1)(

c) on May 26, 2021, J.R.M. declares monthly expenses of and yearly expenses, as follows: i. Housing expenses totalling $2,171.33 monthly or $26,056 yearly. These include expenses for mortgage, property taxes, utilities (electricity, gas, water, home phone, internet, etc.), homeowner’s insurance, home maintenance and repair; ii. Household expenses totalling $1,665 monthly or $19,980 yearly. This includes expenses for groceries, eating out, cleaning supplies, household supplies; iii. Transportation expenses totalling $520 monthly or $6,240 yearly.

This includes car insurance, car loan payments, fuel, maintenance and repairs, public transit, taxis and parking; iv. Clothing and self-care for J.R.M. and the children totalling $210 monthly or $2,520 yearly. This includes clothing, hair dresser/barber and cosmetics; v. Health and medical expenses for J.R.M. and the children totalling $290 monthly or $3,480 yearly. This includes regular dental care, orthodontics, medicine, eye glasses or contact lenses; vi. Children-related expenses totalling $50 monthly or $600 yearly.

This includes school activities, extracurricular activities, tuition/school fees, camps, babysitting, allowances and daycare; vii. Miscellaneous expenses totalling $777 monthly or $9,324 yearly. This includes gifts and donations, alcohol, tobacco & cannabis, entertainment & recreation, cellphone, cable, subscription services, pet expenses and vacations; viii. He has not declared any expenses of premiums, contributions or debt repayment. This category includes life or term insurance premiums, RRSP or other contributions, debt repayment; ix.

He has not included any expenses for other items, however he indicates he owes: (i) $270,000 to the Bank of Nova Scotia on his mortgage; (ii) $6,500 for legal fees, and (iii) $3,700 to Park Dental for C.O.M.’s braces. J.R.M.’s Assets [ 92 ] In all his financial statements, J.R.M. declares his equity in [the family home] as his principal asset. His Chevrolet Silverado pickup is 21-years-old and of little value. He has $12,500 in various recreational vehicles.

In his latest financial statement filed May 26, 2021, J.R.M. estimates he has assets of $368,233, comprising of: (a) $347,000, being the market value of his residence; (b) $12,500 for his work and recreational vehicles; (c) $8,833 in savings he has earmarked for renovations to the children’s bedrooms. J.R.M.’s Indebtedness [ 93 ] J.R.M. has significant debts as a result of buying out A.V.B.’s share of the family home. He owes $270,000 to Scotiabank for the mortgage on [the family home]. His equity in the home is $77,000.

He indicates he owes $6,500 on a loan for legal fees and $3,700 to [omitted for publication] Dental for C.O.M.’s braces. J.R.M.’s total indebtedness is $280,200. ISSUE A: IS A.V.B. ENTITLED TO SPOUSAL SUPPORT? [ 94 ] Spousal support is governed by s. 160 to 162 of the Family Law Act .

Section 160 sets out the duty to provide spousal support where entitlement is established.

Section 161 deals with determining entitlement to spousal support and s. 162 deals with determining its amount and duration: 160 If, after considering the objectives set out in

section 161 [objectives of spousal support] , a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with

section 162 [determining spousal support] . 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

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.

162 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. [ 95 ]

Section 173 of the Family Law Act requires the court to give priority to child support over spousal support: Priority of child support 173

(1) In making an agreement or order respecting spousal support, the parties to the agreement and the court must give priority to any duty to pay child support.

(2) If, as a result of giving priority to a duty to pay child support, the parties do not make an agreement respecting spousal support or make an agreement respecting spousal support in an amount that is less than it otherwise would have been, (

a) the agreement must indicate that the circumstances referred to in this subsection apply, and (

b) if child support is subsequently reduced or terminated, (

i) the reduction or termination is a change in circumstances, and (ii) the court may make an order under

section 165 [orders respecting spousal support] .

(3) If, as a result of giving priority to a duty to pay child support, a court is unable to make an order respecting spousal support or makes an order respecting spousal support in an amount that is less than it otherwise would have been, (

a) the court must give reasons for doing so, and (

b) if child support is subsequently reduced or terminated, (

i) the reduction or termination is a change in circumstances, and (ii) the court may make an order under

section 165 or 167 [changing, suspending or terminating orders respecting spousal support] , as applicable. [ 96 ]

Section 167 of the Family Law Act empowers the court to change, suspend, or terminate an order respecting spousal support prospectively or retroactively. The application’s judge must be satisfied that since the last order respecting spousal support was made, there has been a change in circumstances, there is available substantial evidence that was previously unavailable at the hearing, or that evidence of a lack of financial disclosure by a party has been discovered. [ 97 ] On January 29, 2019, J.R.M. and A.V.B. consented to the following prospective terms: 18.

J.R.M. will pay on going spousal support to A.V.B. in the amount of $157 per month commencing January 1, 2019, and continuing to September 30, 2026; 19.

Commencing in April 2020, spousal support will be reviewed and payable at the high end of the Spousal Support Advisory Guidelines with consideration of the [sic] A.V.B. and J.R.M.’s respective incomes from the year before and the amounts of child support being paid, with the updated payment to begin being paid on April 1; [ 98 ] In my Reasons for Judgment, I stated at para. 206: J.R.M. asks the court to terminate spousal support or, in the alternative, order it be payable at the low or moderate end of the Spousal Support Advisory Guidelines . J.R.M. says A.V.B. had worked much of their relationship.

The only reason the January 29, 2019 order stated spousal support would be reviewed and payable at the high end of the SSAG was because if it were calculated at the lower or mid- range, A.V.B. would not be entitled to any spousal support. J.R.M. says he did not agree to this term. Be that as it may , I cannot go behind the terms of the order. [ 99 ] When I made the March 3, 2020 order, I accepted at face value A.V.B.’s representation that in 2019 and 2020 she would earn $45,000 per year in employment income.

The court subsequently learned that this figure does not even accurately reflect her base pay, let alone her bonuses. [ 100 ] On March 3, 2020, I found J.R.M. had established a material change of circumstances and terminated the January 29, 2019 order in its entirety.

I adjourned the issue of spousal support and ordered J.R.M. pay A.V.B. $157 per month spousal support on an interim without prejudice basis to either party. [ 101 ] As a result of the court imputing to J.R.M. an income more than he earned and imputing to A.V.B. an income substantially less than she earned, J.R.M. paid A.V.B. more in interim spousal support and child support than he otherwise would.

He also received less child support from A.V.B. than she was required to pay under the Guidelines . [ 102 ] J.R.M. now seeks to terminate spousal support effective May 1, 2020, or in the alternative, order it payable at the low end of the Spousal Support Advisory Guidelines (“ SSAG ”). A.V.B. opposes J.R.M.’s application on the basis she is entitled to indefinite spousal

support on both a compensatory and non-compensatory basis, payable at the high end of the SSAG. [103] There has been a significant change in circumstances since J.R.M. and A.V.B. consented to the January 2019 order, including: a. J.R.M. did not earn $85,000 in 2019 as was imputed to him. He earned $78,515. A.V.B. did not earn $45,000 in 2019 as imputed toher, but rather $59,483.88; b. J.R.M.’s income is declining because of the instability of the logging industry; c. A.V.B.’s income has been steadily increasing; d.

Over the past two years, incrementally, all three children came to reside primarily with J.R.M. on their own accord; e. On September 28, 2020, the parties finalized their division of family debts and assets in a judicial case conference in Supreme Court.The consent order provides, among other things, that J.R.M. would take title to and possession of the former family home and payA.V.B. an equalization payment in the amount of $119,088, less the amount required to pay the outstanding balance on the BMOMasterCard Judgment registered against the residence; and f.

C.O.M. needs expensive orthodontics for which A.V.B. refuses to contribute because she considers them to be cosmetic. PRINCIPLES OF SPOUSAL SUPPORT [104] The conceptual bases for entitlement to spousal support are compensatory support, non-compensatory support (needs based) andcontractual support: Zilic v. Zilic, 2021 BCCA 107 , citing Parton v. Parton, 2018 BCCA 273 at para. 23. [105] The underlying goals of compensatory spousal support is the equitable sharing of the economic consequences of a marriage or itsbreakdown.

Compensatory support provides redress for economic disadvantage arising from the marriage, such as diminished earningcapacity and sacrificed career opportunities to take on childcare responsibilities, or the conferral of an economic advantage upon theother spouse, such as contributions to enhanced career development: Chutter v. Chutter, 2008 BCCA 507, leave to appeal to SCCrefused, [2009] S.C.C.A.

No. 41. [106] The underlying goals of non-compensatory spousal support is narrowing the gap between the needs and means of the spouses.Need is generally measured against the marital standard of living: Chutter, paras. 50-61. In Vidican v. Dinu, 2020 BCSC 178, JusticeSchultes states at para. 86 [citations omitted]: [86] When considering the needs of a spouse for the purposes of non-compensatory support, the question goes beyond their ability tomeet expenses.

One must consider the marital standard of living and that spouse’s post-separation standard: … It is important to notehowever, that a mere disparity in the spouse’s incomes is not sufficient to create entitlement. … Instead “there must at least be someevidence of how the applicant's lifestyle has been diminished and, even then, other factors may have to be considered”: … [107] In Zacharias v.

Zacharias, 2015 BCCA 376, Groberman J.A. held the ideological foundation for the spousal support is theintention to share the economic benefits and burdens of marriage and dissolution: [54] Where entitlement to compensatory support is established, and the marriage has been a long one, the marital standard of living isoften a reasonable measure of appropriate compensation.

It represents the standard that the parties themselves established as a result ofeach individual’s sacrifices and advantages during the union, and will often represent the standard that they could have expected tomaintain if the marriage had not broken down. [55] In saying this, I do not imply that this measure will always be determinative of the amount of spousal support. All of the factors setout in s. 17(7) [of the Divorce Act] must be considered by a judge in fixing appropriate spousal support.

As was said in Moge at 866-67: The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in the Act in order to achieveequitable sharing of the economic consequences of marriage or marriage breakdown.

This implies a broad approach with a view torecognizing and incorporating any significant features of the marriage or its termination which adversely affect the economic prospects ofthe disadvantaged spouse. [56] It should be remembered, as well, the payee spouse, no less than the payor, is entitled, if possible, to maintain a standard of livingsimilar to that enjoyed during a long marriage.

Where the resources of the parties are not sufficient to allow both to enjoy that standard, itwill usually be reasonable to equalize the deficit and allocate resources so as to allow each party to enjoy a similar standard of living. [57] That said, there is no specific formula that can be applied to these cases, and specific factors unique to individual cases may justifyother measures of support. [108] I do not have a lot of information about A.V.B. and J.R.M.’s standard of living while they were together. I conclude they lived amodest lifestyle which has not changed significantly since they separated.

I say that because: a. When A.V.B. and J.R.M. separated, they were both working in the same jobs and for the same employer as they did prior tocohabitating; b. While together, A.V.B. and J.R.M. lived “pay cheque to pay cheque”; c. For most of A.V.B. and J.R.M.’s cohabitation, J.R.M. had significant support obligations to his former wife (W.M.) and their threechildren; d. While together, A.V.B. and J.R.M.’s leisure activity was based on localized outdoor recreation such as camping, boating, fishing,

kayaking and snowmobiling; e. Pre-separation, A.V.B. and J.R.M. had few assets beyond their equity in [the family home]. Their vehicles and other items ofpersonal property were old and of little value; f. Both A.V.B. and J.R.M. had accrued significant post-separation debts; and g. C.O.M. began working in 2019 when she was 14-years-old so she could afford some personal luxuries. She continues to work parttime while attending high school full time.

COMPENSATORY SPOUSAL SUPPORT [109] Common markers of compensatory claims include being home with children full time, having primary care of children afterseparation and moving forward the payor’s career: RUG, at p. 5. [110] I have no evidence as to either A.V.B.’s or J.R.M.’s income in 2002 when they began cohabitating. All I know is when theyseparated on March 6, 2016, there was a significant disparity in their employment incomes. I would presume A.V.B.’s rate of pay withthe RDKS did not decrease over the years, given she worked in a municipal government unionized job.

Her total income of course wouldfluctuate according to her hours of work. [111] I have little evidence of A.V.B. giving up job opportunities as a result of her relationship with J.R.M.

I find A.V.B. left her jobwith RDKS in October 2016 for reasons unrelated to her relationship with J.R.M. or her parental responsibilities. [112] At some point after they began living together, J.R.M. and A.V.B. moved from [omitted for publication] to [omitted forpublication], where A.V.B. worked and J.R.M. commuted to [omitted for publication] where he worked. [113] There is no evidence A.V.B. assisted J.R.M. in obtaining any credentials or education to enhance his career. Before, during andafter his cohabitation with A.V.B., J.R.M. worked for his father’s logging company.

I accept he will likely continue to do so as long as heis able. [114] At the time of separation, as a result of quitting her job with the RDKS, A.V.B. earned less than half of J.R.M.’s wage. This gaphas diminished over the past five years as A.V.B.’s employment income has increased and J.R.M.’s has decreased.

A.V.B.’s income wassignificantly augmented in the first four years post-separation due to her applying for and receiving the CCB for all three children asthough they lived primarily with her. [115] In this case, I accept that for a number of years during the relationship, A.V.B. took on a disproportionate share of childcareresponsibilities while J.R.M. devoted long hours to his job with MML. Nevertheless, A.V.B. worked 17 years for the RDKS and fouryears for PACC. However, prior to separation, A.V.B. was a secondary wage earner. [116] A.V.B. did not have primary care of the children after separation.

At various times after separation, J.R.M. and A.V.B. sharedchild-rearing responsibilities in various parenting arrangements: a. Immediately following their separation, from March 6, 2016 until September 18, 2016, the children resided primarily with J.R.M.; b. From September 7, 2016 until March 2018, J.R.M. and A.V.B. shared equal parenting time with all three children (with A.V.B.’sparenting time commencing September 18, 2016); c. From March 2018 until January 2019, J.R.M. and A.V.B. shared equal parenting time with C.J.M., and G.M.M. and C.O.M. livedprimarily with A.V.B.; d.

From January 25, 2019 to June 25, 2019, C.J.M. lived primarily with J.R.M., C.O.M. lived primarily with A.V.B., and G.M.M. hadequal time with both parents; e. After June 25, 2019, C.J.M. and C.O.M. lived primarily with J.R.M. and G.M.M. shared equal parenting time with both parents; and f. As of July 1, 2020, all three children have lived primarily with J.R.M. [117] In the past two years, J.R.M. has assumed a disproportionate share of the parenting responsibilities.

As a result in this change inparenting arrangements, J.R.M. has to curtail overtime work. [118] Post-separation, A.V.B. has taken on work cleaning houses and waitressing in addition to her full-time employment. She did nottestify as to what career aspirations she has or had. It is apparent that she has an interest in animal care and protection. She spends $2,400per year on her own pets.

She obtained certification as a veterinarian assistant, but I am not aware of her working in this capacity. [119] I do not find that J.R.M. enjoyed significant advantages as a result of the relationship for which he should compensate A.V.B.Having said that, I accept the nature of the relationship while A.V.B. and J.R.M. cohabitated likely had some adverse impact of A.V.B.'spost-separation financial situation and her career prospects. On that basis, I find that at the time of separation, A.V.B. was entitled tosome compensatory spousal support.

NON-COMPENSATORY SPOUSAL SUPPORT [120] A non-compensatory spousal-support award seeks to narrow the disparity between the financial circumstances of each spouse:Bracklow v. Bracklow, (SCC). I have considered the standard of living A.V.B. and J.R.M. enjoyed while together andfollowing separation. I am mindful that if possible, “the spouses should have approximately the same standard of living upon separationwithout unreasonably encroaching on capital, at least until retirement”: McKenzie v. McKenzie, 2014 BCCA 381, at para 108. In this

case, I do not see how the parties can replicate the standard of living they enjoyed while together without encroachment: see: Yemchuk v. Yemchuk , 2005 BCCA 406 , at para 49 . [ 121 ] Although there is still a disparity between A.V.B.’s and J.R.M.’s incomes, that gap is narrowing. Income disparity post-separation does not mean a recipient spouse is automatically entitled to spousal support based on need: Lee v. Lee , 2014 BCCA 383 , at para. 40 .

The analysis of need must also take into consideration the ability of recipient spouses to support themselves, having regard for their income, reasonable expenses, assets and liabilities. As the British Columbia Court of Appeal stated in Lee v. Lee , 2014 BCCA 383 (CA), marriage does not engage an automatic “tool of redistribution.” [ 122 ] As set out above, the parties only substantive asset at the time of separation was the equity in the family home. They had a couple of older vehicles, but no savings.

A.V.B. was entitled to a pension from her employment with the RDSK, which the parties divided on September 28, 2020: CEIS 41, p. 66. There is no evidence of J.R.M. having any retirement savings. [ 123 ] When they divided up their family assets and liabilities on September 28, 2021 before Master Harper, J.R.M. and A.V.B. were each entitled to $119,088. Both had accrued significant post-separation debts, although J.R.M.’s indebtedness was greater than A.V.B.’s. J.R.M. used his equity in [the family home] to buy out A.V.B.’s interest and repay his existing debts to the Bank of Nova Scotia.

He was left with $77,000 equity on a $347,000 home. [ 124 ] A.V.B. opted to sell her share of the equity in the family home to J.R.M. and use some of the proceeds to pay off her debts. Although she testified as to the nature of the debts she repaid from the equalization payment, she did not disclose the amount. A.V.B. testified: a. She had to repay CRA for government-related benefits she received for the overpayment of CCB. The evidence before the court indicates this debt was $3,033.94 and paid in full on February 2, 2021: CEIS 52, p. 86. b.

She repaid her outstanding lawyer fees, which she says were between $15,000 - $16,000, but provided no invoice or receipt; c. She had to repay an unspecified balance owing under the BMO credit card. I understood from the court record her debt to BMO on Court File: [omitted for publication] was paid off by November 12, 2020, and all that remained was the expense of removing the judgment registered against the title to the family home. The Voluntary Wage Assignment (CEIS #41, p.80) indicates that on July 31, 2020, A.V.B. was to make biweekly payments of $300 on the balance of $6,498.71.

The last of these payments was indicated on her November 27, 2020 pay cheque for the pay period between November 8, 2020 and November 21, 2020: CEIS 52, p. 123-124; and d. She also paid out the unspecified balance on her TD Auto Finance loan. As that loan was scheduled to be repaid in full on November 12, 2021, and I assume there were only 20 payments of $239.22 each, inclusive of interest: CEIS 42, pp. 90-91.

I gather she would have paid less than $4,784.40 ($239.22 x 20 = $4,784.40). [ 125 ] A.V.B. says she cannot enjoy the same standard of living as J.R.M. because he was able to qualify for a mortgage sufficient to acquire the former family home and she does not qualify for a mortgage because of the amount of child support she is obligated to pay to J.R.M. She has not provided the court with any evidence as to what property or mortgage she has sought to acquire. She did not provide the court with any precise information of the funds she had available for a down payment for purchasing property.

The evidence set out above suggests that A.V.B.’s debts were less than $25,000, which would have left her with $94,000 or so for a down payment for a residence if that is how she chose to spend it. [ 126 ] A.V.B. vaguely asserts she has to dip into her savings from the equalization payment in order to cover her monthly expenses. She says she only has $60,000 remaining from the $119,088. In other words, A.V.B. spent $59,000 from the equalization payment since receiving it in January 2021.

In addition to repaying her debts as referenced above, A.V.B. also purchased a Polaris ATV, which she says is worth $10,000, a dirt bike for C.O.M. which she paid $2,200 and a “lift kit” for her pickup. It is not clear to me the effect of these expenditures on her ability to finance the purchase of a home. J.R.M. suggests that part of A.V.B.’s difficulties in securing a mortgage is due to her poor credit rating arising from her failure to repay her credit-card debt to the Bank of Montreal.

A.V.B. says it is because of the amount of child support she is obligated to pay to J.R.M. [ 127 ] A.V.B. says she is no longer able to work at her second job as a server because of medical issues with her knee. I gather from her Patient Medical Expense report of May 25, 2021, A.V.B. also suffers from some degree of anxiety and depression for which she receives prescription: CEIS 52, pp. 78-79. She has not provided any medical reports indicating she is unable to work because of any disability.

I find that although she has some physical- and mental-health issues, A.V.B. is not generally medically precluded from working. I accept she may need some time off work if she receives a knee operation; however, I am unable to determine when that may be or its impact on her income. [ 128 ] J.R.M. says he suffers from high blood pressure, but does not suggest this impairs his ability to work.

If he cannot work as long of hours as he did in the past, it is attributable to the decreased opportunities for overtime with his employer and his childcare responsibilities for three children. [ 129 ] A.V.B.’s Statement of Earnings from PACC dated May 14, 2021, indicates a year-to-date gross income of $25,375.12. J.R.M.’s Statement of Earnings from MML indicate that as of May 15, 2021, he earned employment income of $25,564.02. These documents suggest their income is now almost equal. Nevertheless, I have imputed an income of $60,000 to A.V.B. for 2021 and an income of $68,170.72 for J.R.M.

Still, this is not a significant disparity. [ 130 ] There is no obvious or startling difference in the parties’ respective l

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