M.L.C.O. v. C.M.A.O., 2021 BCPC 149

Citation: M.L.C.O. v. C.M.A.O. 2021 BCPC 149 Date: 20210610 File No: 2057420 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.L.C.O. APPLICANT AND: C.M.A.O. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. DOULIS Counsel for the Applicant: E. Blanaru M. Chawla Appearing on his own behalf: C.M.A.O. Place of Hearing: Prince George , B.C. Dates of Hearing: March 5, May 21, 2021 Date of Judgment: June 10, 2021

Introduction [1] M.L.C.O. and C.M.A.O. were married on [omitted for publication] 2008, and separated on December 18, 2017. They are thebiological parents of three children: (

a) K.M.J.O., born [omitted for publication], 2008; (

b) K.A.L.O., born [omitted for publication],2009; and (

c) A.C.K.O., born [omitted for publication], 2014. M.L.C.O. is also the biological mother of A.T.P.S., born [omitted forpublication], 2004, a child from M.L.C.O.’s previous relationship; C.M.A.O. is A.T.P.S.’s stepfather. [2] Post-separation, C.M.A.O. moved out of the family home and M.L.C.O. became the children’s primary caregiver. C.M.A.O.paid to M.L.C.O. $300 in child support from December 2017 to October 2018. Since then, C.M.A.O. has paid no child support, althoughhe was working and receiving some government benefits.

Issues [3] The salient issues before me in this case are twofold: Issue #1: Should the court impute income to C.M.A.O.? Issue #2: What are C.M.A.O.’s prospective and retrospective child-support obligations? [4] The issue of child support, both prospectively and retrospectively, came before me for trial on March 5, 2021, and continued onMay 21, 2021. On May 21, 2021, I heard submissions of the parties and counsel for the applicant provided the court with the followingcase authorities: Hanson v. Hanson, (“Hanson”), Murphy v. Murphy, 2000 BCSC 974 (“Murphy”), and D.B.S. v.S.R.G. (“D.B.S.”); L.J.W. v.

T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. At the conclusion of the proceedings on May21, 2021, I reserved my decision. These are my reasons for judgment. Background Information [5] M.L.C.O. is 42-years-old, born [omitted for publication] 1979. She resides at [omitted for publication] Street, Prince George,BC, [omitted for publication]. She works as a commercial cleaner for [omitted for publication], a job she has held for many years. [6] C.M.A.O. is 35-years-old, born [omitted for publication], 1985.

C.M.A.O. resides at [omitted for publication] Street, PrinceGeorge, BC, [omitted for publication]. He resides with his new partner B.M.R. B.M.R. is the mother of a nine-year-old daughter. B.M.R.suffers from throat cancer. [7] C.M.A.O. has had a variety of low-paying jobs over the years. He has worked as a lube and oil technician, high ceiling rigger,and drywaller. In 2013 while working as a belt splitter, C.M.A.O. was injured when a 300-pound steel bar fell on him. He says his injuryremains unresolved. He cannot work for more than four-to-six hours per day without suffering excruciating pain.

At the time of theinjury, C.M.A.O. did not seek medical treatment. C.M.A.O. has not provided any medical reports or expert opinions corroborating hisinjury or its impact on his ability to work. [8] From the date of separation on December 18, 2017, until October 2018, C.M.A.O. paid M.L.C.O. child support in the amount of$300 per month. He paid no child support in 2019, 2020, or 2021. C.M.A.O. says M.L.C.O. has withheld his parenting time with thechildren so he has withheld paying her child support.

History of Proceedings [9] On February 13, 2020, M.L.C.O. filed with the Prince George Provincial Court Registry an Application to Obtain an Order forguardianship, parenting time, allocation of parenting responsibilities, spousal support, child support, a protection order and supervisedparenting time, Prince George Family Court File 2057420 (CEIS Document #1). She further asked for child support retroactive toDecember 1, 2017. Specifically, M.L.C.O. sought a protection order which would prohibit C.M.A.O. from having any contact withM.L.C.O. or the children except through a third party.

She also sought that visits C.M.A.O. had with the children be supervised. [10] On February 13, 2020, M.L.C.O. filed a Notice of Motion returnable February 14, 2020, seeking an order: (

a) prohibiting anyperson removing the children from the Prince George area; (

b) prohibiting anyone from relocating the children; and (

c) a protectionorder (CEIS Document #3). Also on February 13, 2020, M.L.C.O. filed an affidavit in support of her Notice of Motion (CEIS Document#2). [11] M.S. served M.L.C.O.’s February 13, 2020 application, Notice of Motion and affidavit (CEIS Documents #1, 2 and 3) onC.M.A.O. on February 13, 2020 (See CEIS Document #6). [12] On February 14, 2020, M.L.C.O.’s February 13, 2020 Notice of Motion came before Judge Keyes. M.L.C.O. and C.M.A.O.attended in person. M.L.C.O. was assisted by duty counsel F. Stevens-Guille; C.M.A.O. was self-represented.

On that day, Judge Keyesadjourned the matter to March 13, 2020, at 9:30 a.m. for a subsequent appearance. [13] On February 19, 2020, M.L.C.O. filed with the Prince George Provincial Court Registry a second Application to Obtain an Orderin Prince George Family Court, File 2057420, seeking a protection order (CEIS Document #7). She sought an order prohibitingC.M.A.O. from: (

a) having contact with her except through a third party; (

b) having contact with the children except through a thirdparty; (

c) having visits with the children unless they were supervised through a third party; and (

d) contacting M.L.C.O.’s immediatefamily (F.C. and L.C.); and (

e) any persons known to C.M.A.O. driving past M.L.C.O.’s residence. [14] Also on February 19, 2020, M.L.C.O. filed a Notice of Motion seeking a protection order (CEIS Document #10) prohibitingC.M.A.O. from having direct contact with her or the children, her father L.C., or her brother F.C. She asked that any visits the children

had with C.M.A.O. be supervised. M.L.C.O. also filed an affidavit in support of her February 19, 2020 application for a protection order (See CEIS Document #8). [ 15 ] On February 20, 2020, T.S. served C.M.A.O. with M.L.C.O.’s February 19, 2020 application, Notice of Motion and affidavit (See CEIS Document #11). [ 16 ] M.L.C.O.’s February 19, 2020 Notice of Motion (CEIS Document #10) came before Judge Gray on February 20, 2020. Both M.L.C.O. and C.M.A.O. attended court in person. M.L.C.O. was represented by duty counsel F. Stevens-Guille; C.M.A.O. was self- represented.

At that time, the matter was adjourned to March 13, 2020. [ 17 ] On March 12, 2020, C.M.A.O. filed with the Prince George Provincial Court Registry a Reply and Counterclaim to M.L.C.O.’s February 13 and 19, 2020 applications (CEIS Document #12). C.M.A.O. agreed to M.L.C.O.’s application for guardianship and parenting time with the children and an order that C.M.A.O. have contact with M.L.C.O. through a third party.

He states, “I wish to have 50/50 guardianship and parenting time – I would like to have my children from Saturday nights at 7 p.m. to Wednesday mornings at 7 a.m.” C.M.A.O. disagreed with M.L.C.O.’s application for spousal support, child support and a protection order. He states: MCFD took the 3 children from M.L.C.O. due to her brother [F.C.]. I am not a violent person – She (M.L.C.O.) has been withholding our children from me since Jan 13 th /2020 – character reference letters are attached with exhibit. [ 18 ] C.M.A.O. counterclaimed for guardianship, parenting time and contact time with the children.

C.M.A.O. indicated his address for service was [omitted for publication] Street, Prince George, BC, [omitted for publication]. [ 19 ] M.L.C.O.’s February 13, 2020 Notice of Motion (CEIS Document #3) and February 19, 2020 Notice of Motion (CEIS Document #10) came before Judge Brecknell on March 13, 2020. M.L.C.O. and C.M.A.O. appeared in person. M.L.C.O. was represented by legal counsel P. Leblanc; C.M.A.O. was self-represented.

At that time, Judge Brecknell adjourned the two motions to April 14, 2020, at 10:45 a.m. for a Family Case Conference. [ 20 ] On March 13, 2020, the Prince George court registry mailed to M.L.C.O. and C.M.A.O. a Notice of Hearing or Conference advising them to attend court on June 9, 2020, at 3:15 p.m. for a Family Case Conference (CEIS Document #14).

The court registry sent the notice to M.L.C.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication] and to C.M.A.O. at [omitted for publication], Prince George, BC, [omitted for publication]. [ 21 ] The court registry sent a notice to M.L.C.O. and C.M.A.O. that the April 14, 2020 Family Case Conference was cancelled due to the COVID-19 pandemic. On March 23, 2020, the court registry sent out a Notice of Hearing or Conference advising M.L.C.O. and C.M.A.O. the next court appearance would be June 9, 2020, at 3:15 p.m.

The court registry sent the notice to M.L.C.O. and C.M.A.O.’s address for service on file, namely, to M.L.C.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication] and to C.M.A.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication]. [ 22 ] On June 4, 2020, staff of the Prince George registry contacted the parties by telephone to confirm the date and time of the court appearance and to obtain telephone numbers.

The court registry was given the number [omitted for publication] for M.L.C.O. [ 23 ] On June 9, 2020, M.L.C.O. attended the Family Case Conference before Judge Keyes, represented by legal counsel Ms. Morgan Chawla. C.M.A.O. did not attend the Family Case Conference in person, or by legal counsel or agent.

At that time, Judge Keyes made the following interim order: With notice to C.M.A.O., but not appearing the court makes the following order: Upon the Court being advised that the name and birth date of each child is as follows: A.T.P.S. born [omitted for publication] 2004, K.M.J.O. born [omitted for publication], 2008, K.A.L.O. born [omitted for publication], 2009, and A.C.K. born [omitted for publication], 2014. The Court is satisfied that C.M.A.O. and M.L.C.O. are the guardian(

s) of the children K.M.J.O. born [omitted for publication], 2008, K.A.L.O. born [omitted for publication], 2009, and A.C.K.O. born [omitted for publication], 2014, under s. 39(1) of the Family Law Act . C.M.A.O. will have parenting time at the discretion of M.L.C.O. at dates and times as agreed by the parties, provided that no third parties will be present during C.M.A.O.'s parenting time except, the children's grandfather M.O. M.L.C.O. will have all other parenting time. C.M.A.O. may have contact time with the child A.T.P.S. at her wish and at dates and times as arranged between them.

Communication between the parties will occur only in writing or by email and only about the children. C.M.A.O. will complete, file with the Registry of this Court, and deliver to M.L.C.O. at her address for service, a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules , including all attachments listed on page 2 of that Form by August 10, 2020. [ 24 ] On June 30, 2020, C.M.A.O. filed a Notice of Change of Address indicating that as of June 15, 2020, he resided at [omitted for publication] Street, Prince George, BC, [omitted for publication].

His telephone number was [omitted for publication] and his email [omitted for publication] (CEIS Document #17). [ 25 ] On October 6, 2020, M.L.C.O.’s legal counsel M. Chawla filed a requisition seeking an appearance on M.L.C.O.’s February 13, 2020 application (CEIS Document #1) in relation to child and spousal support (CEIS Document #19). [ 26 ] On October 20, 2020, the Prince George Provincial Court Registry sent to M.L.C.O. and C.M.A.O. a Notice of Hearing or Conference that M.L.C.O.’s February 13, 2020 application would be heard on November 19, 2020, by MS Teams (CEIS #20). The

notice was sent to M.L.C.O. in care of her legal counsel Morgan Chawla and to C.M.A.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication]. [ 27 ] On November 19, 2020, M.L.C.O.’s February 13, 2020 application (CEIS Document #1) came before Judge Brecknell. M.L.C.O. and C.M.A.O. attended by MS Teams. M.L.C.O. was represented by M. Chawla; C.M.A.O. was self-represented.

At that time, Judge Brecknell ordered C.M.A.O. to complete, file with the registry of this Court, and deliver electronically to M.L.C.O.’s legal counsel Morgan Chawla a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules , including all attachments listed on page 2 of that Form, by December 4, 2020. [ 28 ] On November 20, 2020, C.M.A.O. filed a Notice of Change of Address indicating his new address as [omitted for publication] Street, Prince George, BC, [omitted for publication] (CEIS Document #22). [ 29 ] On November 30, 2020, C.M.A.O. filed a Form 4 Financial Statement which attached his 2017 and 2018 income tax returns, as well as his current statement of Entitlement to Employment Insurance Benefits.

He did not produce his income tax returns for 2019. [ 30 ] C.M.A.O.’s motion for child support, both ongoing and retrospectively, came before me on March 5, 2021. M.L.C.O. attended in person represented by legal counsel Ms. M. Chawla; C.M.A.O. attended in person and self-represented. At that time, C.M.A.O. made it clear he wanted to address issues of guardianship, parenting time and parenting responsibilities. [ 31 ] I proceeded with the hearing of M.L.C.O.’s application for child support (CEIS Documents #1 and 18). I heard evidence from M.L.C.O. and C.M.A.O.

The hearing of the child-support issue did not conclude because of the paucity of current financial information from C.M.A.O. I adjourned M.L.C.O.’s and C.M.A.O.’s reciprocating applications, replies and counterclaims to the judicial case manager to

schedule a three-day trial on all outstanding issues. I also ordered: 1. M.L.C.O. and C.M.A.O. exchange their list of witnesses and will-say statements at least 45 days prior to the first day of trial; 2. M.L.C.O. and C.M.A.O. exchange a copy of all documents they intend to rely on at trial at least 45 days prior to the first day of trial; 3. M.L.C.O. and C.M.A.O. will exchange the résumé and opinion of any expert witness they intend of calling at trial at least 45 days prior to the first .day of trial; 4. The judicial case manager will

schedule a pre-trial conference at least 40 days prior to the .first day of trial; 5. C.M.A.O. will file with court and provide M.L.C.O. with a copy of his income tax returns for 2019 and 2020, including all attachments; 6.

C.M.A.O. will file with the court and provide M.L.C.O. with medical documentation describing his injury which restricts his ability to work full-time. [ 32 ] On March 16, 2021, the Prince George Court Registry sent a notice to the parties advising them “The application filed on March 12, 2020, February 13, 2020 will be heard on MAY 21, 2021 AT 9:00 AM IN PERSON ATTENDANCE.” The notice was sent to M.L.C.O. in care of her legal counsel, Morgan Chawla, and to C.M.A.O. at his address at [omitted for publication] Street, Prince George, BC, [omitted for publication], and his email address at [omitted for publication]. [ 33 ] On May 21, 2021, M.L.C.O. filed a Notice of Change of address indicating she was now represented by Elle Blanaru of PGS Law, #450 -625 Agnes Street, New Westminster, BC, V3M 5Y4. [ 34 ] On May 21, 2021, M.L.C.O. attended court in person, represented by her new legal counsel Ms.

E. Blanaru; C.M.A.O. attended self-represented. On May 21, 2021, Ms. Blanaru advised the court that the matter proceeding that day for 2.5 hours was M.L.C.O.’s application for child support. The trial on the parenting arrangements had not yet been scheduled. [ 35 ] C.M.A.O. had not complied with my order to file with the court his 2019 and 2020 income tax returns. He did have a copy of his 2020 income tax return on his cellular phone, which he showed to the court and to Ms. Blaranu.

He testified he believed his total Guideline Income for 2019 was approximately $32,000. [ 36 ] C.M.A.O.’s financial documents indicate his income has varied over the years.

Specifically: Year Income Comments 2013 C.M.A.O. was injured at work 2014 $11,886 C.M.A.O. had limited employability because of his 2013 workplace injury. 2015 $12,540 C.M.A.O. had limited employability because of his 2013 workplace injury. 2016 $ 9,948 C.M.A.O. had limited employability because of his 2013 workplace injury. 2017 $24,301 C.M.A.O. earned $21,821 from working with M.L.C.O.’s janitorial business and $2, 480 from employment insurance. 2018 $39,164 At some point in 2018 C.M.A.O. obtained full time employment at W.W.

In 2018 C.M.A.O. received $34,035 in employment income and $5,129 from employment insurance. He also paid $959 in union dues. 2019 $32,000 C.M.A.O. continued to be employed full time at W.W. as an oil and lube technician. 2020 $29,090 C.M.A.O.’s employment with W.W. ended in the Spring of 2020, and C.M.A.O. began receiving Canadian Emergency Response Benefit (“CERB”) and/or employment insurance. 2021 Unknown C.M.A.O. is receiving employment insurance benefits which will expire in September 2021. Parental duty to support a child

[ 37 ] Section 147(1) of the Family Law Act , S.B.C. 2011, c. 25 (“ FLA ”) stipulates that each parent and guardian of a child has a duty to provide support. [ 38 ] In Michel v. Graydon , 2020 SCC 24 , para. 10 , the Supreme Court of Canada restated the principles governing child support articulated in D.

B.S. : [10] … - Child support is the right of the child , which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents …; - Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together …; - The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” …; - Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income …; - Retroactive awards are not confined to “exceptional circumstances” or “rare cases” …; and - In determining whether to make a retroactive award, the payor parent’s interest in certainty in his/her obligations must be balanced with the need for “fairness and. . . flexibility”.

A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail … Amount of child support [ 39 ] Pursuant to s. 150(1) of the Family Law Act , the amount of child support must be determined in accordance with the Child Support Guidelines .

Section 1 of the Family Law Act and

Part 4 of the Family Law Act Regulation , BC Reg 347/2012, define the Child Support Guidelines to mean the Federal Child Support Guidelines under s. 26.1 of the Divorce Act (Canada) .

Section 150(2) does allow the court to make a child-support order in an amount different from that required by the Guidelines if the parties have an agreement for some other amount and the court is satisfied that reasonable arrangements have been made for the support of the child. [ 40 ] Section 3(1) of the Guidelines sets out the presumptive rule that child support for children under the age of 19 is payable in the amount set out in the applicable child-support table scheduled to the Guidelines . This amount is set according to the annual income of the payor parent.

There are exceptions to the presumptive rule contained in s. 3(1) of the Guidelines , none of which apply in this case. [ 41 ] The objectives of the Guidelines are set out in s.1 : 1. … (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (

b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of spouses and children who are in similar circumstances. Calculating income [ 42 ] The first step in determining the payor parent’s child-support obligation is to calculate their income. In order to do this fairly and accurately, the Federal Child Support Guidelines and the Provincial Court (Family) Rules , BC Reg 417/98 require applicants and respondents to disclose to the court and each other information relevant to the child-support proceedings.

Section 21 of the Guidelines requires the payor parent to provide the following financial documentation: 21(1) … (

a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years; (

b) copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years; (

c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration; … (h) … where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.

[43] Section 21(2) requires a respondent to an application for a child support order and whose income information is necessary todetermine the amount of the order, must, within 30 days after the application is served, provide the court as well as the applicant with thedocuments referred to above. [44] In this case, C.M.A.O. has filed a Form 4 Financial Statement, albeit over nine months after M.L.C.O. filed her February 13,2021 application. Even then he did not provide all the required supporting documentation.

He was specifically ordered to provide thisinformation by this Court on June 9, 2020, November 19, 2020, and March 5, 2021. [45] Typically, the court determines the parents’ respective Guideline income from Line 150 of their most recent income tax return.For this reason, the court generally calculates the parents’ child-support obligations based on the previous year’s income of each spouse:J.(K.M.) v. N.(J.H.D.), 2014 BCSC 1895, at para. 114. [46] Section 2(3) of the Guidelines hold: 2(1) …

(3) Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most currentinformation must be used. [47] This suggests the court can calculate the parents’ income based on their most recent statements of earnings where their incomestream is relatively certain. In this case, C.M.A.O.’s income is anything but certain. Therefore, the court ought to calculate C.M.A.O.’sincome for 2020 based on his 2019 earnings. [48]

Section 16 of the Guidelines states: 16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Totalincome” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. [49] Section 17(1) of the Guidelines allows the court to consider income patterns or fluctuations to arrive at a fair amount. It states: Pattern of income: 17

(1) If the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairestdetermination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that isfair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. Imputing income [50]

Section 19 of the Guidelines permits the court to depart from the methodology set out in s. 16 and “impute such amount ofincome to a spouse as it considers appropriate in the circumstances”. Although there are nine statutorily defined situations, it is not anexhaustive list and the

section gives the court a significant amount of discretion in imputing income.

Section 19 states: Imputing income 19

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

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

b) the spouse is exempt from paying federal or provincial income tax; (

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the spouse’s property is not reasonably utilized to generate income; (

f) the spouse has failed to provide income information when under a legal obligation to do so; (

g) the spouse unreasonably deducts expenses from income; (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate thanemployment or business income or that are exempt from tax; and (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. Reasonableness of expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction ispermitted under the Income Tax Act. [51] The onus is on the person seeking to impute income to show an evidentiary basis. The onus then shifts to the other party to provethat the deductions are reasonable: Harris v. Visser, 2019 BCSC 2438 , at para. 40 citing M.(C.) v. M.(V.), 2016 BCSC 2144).There must be an evidentiary basis on which to impute income. The court must find that the parent is realistically capable of earning the

income that is sought to be imputed (Marquez v. Zapiola, 2013 BCCA 433; Shen v. Tong, 2013 BCCA 519). A party’s capacity to workmust be measured against their actual education, not what the other party had hoped it would be (Herron v. Herron, 2016 BCSC 1508). Assessing capacity to earn income [52] The proper approach to assessing a parent’s capacity to earn income engages the following principles: a. The parents of a child have a joint and ongoing obligation to support their children.

The amount of child support is based not only onthe parents’ earnings, but also on what the parent can earn: Hanson, para. 8; Murphy, para. 9; b. Imputing income for intentional unemployment or under-employment does not require a finding of bad faith on the part of the payor,only that the payor is not earning to capacity: Hanson, paras. 10-12; Barker v. Barker, 2005 BCCA 177; Koch v. Koch, 2012 BCCA 378; c. parents who are healthy and can work have a duty to seek employment Hanson, para. 14(1), citing Van Gool v.

Van Gool, (BCCA) supplementary judgment 1999 BCCA 188); d. a parent’s reasonable income-earning capacity will be based on consideration of a parent’s age, education, experience, skills, health,and on-the-job opportunities that are reasonably available: Hanson, para.14(2) e. limited experience and skills do not justify a failure to pursue employment: Hanson, para.14(3); f. persistence in un-remunerative employment or unrealistic career aspirations will not be an excuse: Hanson, para.14(4) and (5); g. self-induced reduction in income will not justify the avoidance of child support obligations: Hanson, para.14(6); Watts v.

Willie, 2004BCCA 600; h. A payor who chooses to work less than a regular work week must justify the choice based on the children’s needs or risk havingincome imputed. The desire to simply stay at home to care for children is insufficient to invoke the exception in s. 19(1)(a): Barker v.Barker, 2005 BCCA 177, para. 18; McCaffrey v. Paleolog, 2011 BCCA 378, Koch v. Koch, 2012 BCCA 378 , paras. 34 – 40;and i. A payor parent cannot impose the costs of a career adjustment onto the recipient parent: Harris v Visser, 2019 BCSC 2438, para. 40, citing Pierce v. Pierce, 2004 BCSC 245.

Issue #1: Should the court impute income to C.M.A.O.? [53] M.L.C.O. submits the court ought to impute income to C.M.A.O. pursuant to s. 19(1)(

a) and (

f) of the Guidelines. She saysC.M.A.O. is intentionally underemployed and he has failed to provide income information when under a legal obligation to do so.Specifically, she asks the court to impute a Guideline income to C.M.A.O. in the amount of $39,164 for 2019, 2020 and 2021. [54] In 2018, C.M.A.O. earned approximately $39,164, which consisted of $34,035 in employment income and $5,129 fromemployment insurance. I assume the employment insurance benefits relate to a period in 2018 before C.M.A.O. began working at W.W.

Ido not know how much he would have earned at W.W. if he had been employed for all 12 months of 2018. C.M.A.O. was employed atW.W. full time for all of 2019. C.M.A.O. has not provided M.L.C.O. or the court with a copy of any of his 2019 financial information,including his 2019 Income Tax Return, Notices of Assessments or Reassessments, T4 tax slip (Statement of Remuneration Paid) or T4Etax slips (Statement of Employment Insurance and Other Benefits). He has not provided any of this documentation for 2020.

At best, hepermitted the court and the applicant’s counsel an opportunity to review an electronic copy of his 2020 Income Tax on his cellularphone. Analysis [55] C.M.A.O. left his employment with W.W. in the Spring of 2020. C.M.A.O. claims he lost his employment as of a result ofprotective measures he believed necessary because of the COVID-19 pandemic. C.M.A.O. says his union refused to assist him or grievehis termination. C.M.A.O. has provided no documentation nor called any witnesses to corroberate his evidence.

It is highly unusual for aunion to refuse to challenge a wrongful termination of a worker’s employment. When asked in cross-examination what efforts he made tohave the union challenge his termination, C.M.A.O. testified he called the union three or four times. His shop steward told him there wasnothing the union could do.

C.M.A.O. does not claim to have filed any grievance with respect to his termination, nor taken any actionagainst the union for unfair representation. [56] M.L.C.O. acknowledges that C.M.A.O. was injured in 2013; however, she does not agree that C.M.A.O. suffers from asignificant lingering disability as a result of that injury. C.M.A.O. never sought medical treatment or received Workers’ CompensationBenefits as a result of that workplace accident.

In M.L.C.O.’s view, C.M.A.O. is deliberately underemployed as a strategy to avoidpaying child support. [57] What records C.M.A.O. has produced indicate that he earned little in the last four years of his relationship with M.L.C.O. (2014-2017). It was not until he began working for W.W. in 2018 that C.M.A.O. began to earn even a modest income. It is not clear to me whenin 2018 C.M.A.O. began working. He would have worked full time for all of 2019, but he has not produced his income tax returns forthat year.

C.M.A.O. testified that he “thinks” he may have earned $32,000 in 2019 while working full time for W.W. as an oil and lubetechnician. [58] I find that C.M.A.O. has been very cavalier in complying with his disclosure obligations. He has not provided all requisitefinancial documentation even in the face of multiple court orders. He has not produced medical documentation to support his claims hecan only work four-to-six hours per day and even then in a limited capacity. He has not provided any corroborating evidence as to howhe came to lose his employment with W.W. in the Spring of 2020.

I am not prepared to accept C.M.A.O.’s of-the-cuff excuses for non-

compliance. [59] As M.L.C.O. is seeking child support retroactive February 1, 2020, C.M.A.O.’s income for 2019 is relevant. Ordinarily, I wouldbe prepared to impute to C.M.A.O. an income for 2019, 2020 and 2021, at least equal to that which he earned in 2018, namely, $39,164. Icannot, however, simply ignore the fact that on March 18, 2020, the Province of British Columbia declared a State of Emergency inrelation to the COVID-19 pandemic.

Fairness dictates the court take into consideration that even if C.M.A.O. were gainfully employed in2020 and 2021, he may not have earned what he did in 2018. [60] On the evidence before me, I find C.M.A.O. is underemployed and has failed to provide information required under theGuidelines. Accordingly, I find it appropriate to impute income to C.M.A.O. pursuant to s. 19(1)(

a) and (

f) of the Guidelines. In suchcircumstances, however, the court is forced to impute an income in an amount which is somewhat arbitrary. This is the risk C.M.A.O.assumes as a result of his non-compliance with his disclosure obligations: Lessard v. Mahoney, 2007 BCSC 562, para. 59; Collier v.Campbell, 2013 BCSC 825 .

Issue #2: What are C.M.A.O.’s prospective and retrospective child support obligations? [61] I am of the view the court ought to impute C.M.A.O. a Guideline income for 2020 and 2021 in the amount of $33,500. [62] I am also of the view that C.M.A.O. ought to pay child support on a Guideline income retroactive to February 1, 2020.

Disposition [63] C.M.A.O. is found to be a resident of British Columbia and is imputed to have a Guideline annual income of $33,500 for 2020and 2021. [64] C.M.A.O. shall pay to M.L.C.O. the sum of $718 per month for the support of: K.M.J.O., born [omitted for publication], 2008;K.A.L.O., born [omitted for publication], 2009; and A.C.K.O., born [omitted for publication], 2014, (Collectively, “the Children”)retroactive to February 1, 2020. [65] The arrears of child support payable by C.M.A.O. to M.L.C.O. accrued between February1, 2020 and June 1, 2021, inclusive, arefixed as of June 1, 2021, in the amount of $12,206 inclusive of statutory interest if any ($718 x 17 = $12,206). [66] C.M.A.O. will pay M.L.C.O. ongoing child support of $718 per month for the support of the Children commencing July 1, 2021,and continuing on the first day of each and every month thereafter, for as long as the Children are eligible for support under the FamilyLaw Act or until further court order. [67] C.M.A.O. shall pay to M.L.C.O. towards the arrears in child support and in addition to the regular monthly maintenancepayments, the minimum sum of $150 per month starting July 1, 2021, and continuing on the first day of each month thereafter until thearrears are paid in full or further order of the court. [68] For greater clarity C.M.A.O.’s total child support payment to M.L.C.O. commencing July 1, 2021 is $868 per month ($718ongoing child support + $150 arrears in child support = $858). [69] For as long as the Children are eligible to receive child support, C.M.A.O. shall provide to M.L.C.O. (

a) copies of his income taxreturn for the previous year, including all attachments, not later than June 1 each year; and (

b) copies of any Notice of Assessment orReassessment provided by the Canada Revenue Agency, immediately upon receipt. __________________________ The Honourable Judge J. Doulis Provincial Court of British Columbia