Edgar v. Edgar, 2015 BCSC 1045

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Edgar v. Edgar, 2015 BCSC 1045 Date: 20150618 Docket: 1476 Registry: Courtney Between: Lisa Stephanie Anne Edgar Claimant And Steven George Edgar Respondent Before: The Honourable Mr. Justice Affleck Reasons for Judgment Counsel for the Claimant: G. White Counsel for the Respondent: C. Hay Place and Date of Trial/Hearing: Nanaimo, B.C. January 29, 2015 Written Submissions of the Respondent: May 1 and 19, 2015 Written Submissions of the Claimant: May 11, 2015 Place and Date of Judgment: Courtney, B.C.

June 18, 2015 Overview [ 1 ] The parties both apply in respect of child support. The parties have two children, a daughter born September 2, 1994, and a son born March 26, 1998. The children live with the claimant and have had no contact with the respondent for many years.

The daughter’s nineteenth birthday was in September 2013, and the respondent says that he should no longer be obliged to pay child support when his daughter is not a child of the marriage within the meaning of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). [ 2 ] The claimant submits the daughter remains a child of the marriage because of medical conditions from which she suffers, she is unable to withdraw from her parents’ “charge or to obtain the necessaries of life”. [ 3 ] The existing support obligations are pursuant to an order of this Court, dated February 1, 2006 (the “2006 Order”).

The Nature of the Applications [ 4 ] In an amended notice of application filed on March 19, 2014, the respondent applied for an order “changing and terminating an Order respecting child support”.

In part two of the amended notice of application the respondent stated that the daughter was no longer a child of the marriage and that the support he was paying for the son was “vastly in excess of the statutory required quantum”. [ 5 ] The respondent asserts that his annual income has been $12,638 plus a taxable annuity payable as a result of a structured settlement arising from injuries in a 1991 motor vehicle accident. He says his total annual income slightly exceeds $21,000.

Nevertheless since the 2006 Order, in which his annual income was set at $46,000 for purposes of the Federal Child Support Guidelines , SOR/97-175 (the “Guidelines”), he has been paying $644 per month. The respondent seeks an order terminating his obligation to pay support for his daughter as of March 19, 2014, and reducing the amount he is required to pay for his son. [ 6 ] In a notice of application filed on April 30, 2014, the claimant sought the following orders:

a) an increase in the child support, in respect of both children, payable by the respondent;

b) a declaration the daughter continue to be a child of the marriage;

c) disclosure of tax returns of the respondent and notices of assessment going back to 2006;

d) retroactive child support for the years 2006 through 2013;

e) that an annual income of $50,000 be imputed to the respondent; and

f) that the respondent pay his proportionate share of extraordinary expenses over recent years as well as future prescription costs for his son. [ 7 ] The claimant no longer seeks the orders outlined in a),

b) and

c) above. [ 8 ] On January 29, 2015, I heard the parties’ applications. Judgment was reserved. On considering the materials provided by the parties in chambers, I requested an amended joint application record be filed conforming with the Supreme Court Civil Rules , B.C. Reg. 168/2009, and correcting several errors. An amended joint application record was filed by the parties on April 20, 2015.

Position of the Respondent [ 9 ] The respondent's position is that he should be entitled to cease paying support for his daughter as of March 19, 2014; his support obligation for his son should be “set in accordance with his actual income retroactive” to that date, and his non-taxable income from his annuity ought not to be grossed up for tax purposes to determine his income for the purposes of the Guidelines . He submits that his annual income for guideline purposes is $21,091.

Accordingly, he submits that the appropriate amount of child support should be $175 monthly for the support of his son, plus a proportionate share of

section 7 extraordinary expenses. [ 10 ] The 2006 Order found that the respondent’s guideline annual income was $46,000 and the claimant’s was $24,000.

The 2006 Order required the respondent to pay $644 each month “on an interim basis” for the maintenance and support of the children, and that “either party shall have the liberty to review the amount of child maintenance as set forth in [the 2006 Order] based upon the actual income of the [respondent] should it differ from [$46,000]”. [ 11 ] The respondent acknowledges his daughter has been diagnosed on the “autism spectrum”, and receives disability benefits pursuant to the Employment and Assistance for Persons with Disabilities Act , S.B.C. 2002, c. 41.

Nevertheless he submits the burden is on the claimant to demonstrate their daughter is unable to withdraw from the care or charge of her parents or obtain the necessaries of life. He says this burden has not been met. [ 12 ] The claimant provided reports and other materials in support of her position that the daughter remains a child of the marriage. However, the respondent points out that these reports are dated and therefore he submits they are unreliable measures of the daughter’s present abilities to contribute to her own support through employment.

The respondent also submits the evidence discloses the daughter can competently use computers, and has worked in a laundry and video store.

He further submits there is little evidence the claimant has been assisting the daughter to obtain employment, and even though the evidence indicates there are resources available to assist persons on the autism spectrum to find employment, that little effort has been made to obtain access to those resources. [ 13 ] In the alternative, the respondent submits that if the court finds the daughter remains a child of the marriage, the parties should each contribute pro rata based on their respective actual incomes for purposes of the Guidelines , and that any support order should be reviewed every six months “to see what efforts [the daughter] has been making” to become employed. [ 14 ] The respondent receives a non-taxable annuity payment from a structured settlement arising out of injuries in a car accident in 1991.

He began to receive $16,498 annually from that source in 1997. He also receives $10,765 per annum in Canada Pension Plan disability benefits because of a degenerative spinal condition, which prevents him from obtaining work in his previous occupation as a mechanic.

He earns another $1,000 approximately in cash each year by helping an elderly uncle with various chores. [ 15 ] The respondent submits the portion of the structured settlement annuity which ought to be attributed to non-pecuniary general damages included within the settlement amount should not be treated as part of his income for purposes of the Guidelines . The evidence does not assist me in determining the amount of non-pecuniary general damages to which the respondent's submission could be applied.

Nevertheless the respondent submits his annual income for guideline purposes should be calculated at $21,014, which is based on about one-half his annuity income derived from non-pecuniary general damages.

This is said to be justified because although the respondent suffered a serious brain injury, which left him in a coma for several days, as well as other injuries, he returned to work not long after the accident suggesting that the income loss portion of his claim was not substantial. [ 16 ] Further the respondent submits he has for many years paid child support well beyond the appropriate guideline amount as if his annual income has been $46,000 where it has actually been much less. Position of the Claimant [ 17 ] The claimant submits her daughter remains a child of the marriage.

The daughter suffers from an anxiety disorder and attention deficit hyperactivity disorder (ADHD). She receives a “persons with disabilities” pension from the province in the sum of $906.42 per month. The most recent assessment of the daughter's condition is an “Autism Diagnostic Assessment” dated May 31, 2013. It was prepared by a psychologist. The daughter’s anxiety is described as “quite severe”, which presents a significant barrier to education and employment. The claimant submits she is unable to pay for the supports from which her daughter could benefit.

As she is now 19 years old, she is no longer eligible for certain services. [ 18 ] The claimant points out that the respondent's evidence about his structured settlement relating to the motor vehicle accident is vague. The claimant’s evidence is that the settlement totalled $644,000, comprised of $394,000 in cash, less legal fees, and $250,000 to be paid into a structure to provide an annuity which was intended for income replacement. When the parties separated in 2006 the $394,000 in cash had been spent.

[ 19 ] The claimant submits the respondent has provided no medical evidence that he is incapable of earning income in some capacity. She submits that the only evidence is that he cannot work as a mechanic. She also submits he has provided no evidence of efforts to retrain for some other occupation and she submits that the “nominal sum” of $5,000 to $10,000 per annum ought to be imputed to the respondent as employment income based on his voluntary underemployment or unemployment, pursuant to s. 19(1) (

a) of the Guidelines . [ 20 ] The claimant also submits the non-taxable annuity payments made to the respondent ought to be grossed up for tax purposes. She relies on McKenzie v. Perestrelo , 2014 BCCA 161 . [ 21 ] The claimant submits that once the tax gross up is made and $5,000 in employment income imputed to the respondent, his annual income for purposes of the Guidelines ought to be $37,917.

The claimant submits the evidence shows that the daughter's monthly expenses are $1,576 and once her “persons with disabilities” pension is taken into account the monthly shortfall is $670. [ 22 ] I am told the claimant’s income for purposes of the Guidelines is $51,848. The claimant submits the monthly child support for her son payable by the respondent ought to be $346. She submits that 40% of the shortfall in support for her daughter, of $268, ought to be paid by the respondent. Thus, there would be a total child support payment of $614 for the children.

Analysis [ 23 ] I agree with the respondent that the evidence on the present circumstances of the daughter is not satisfactory. I am doubtful that she is incapable of earning any income at all, and I am concerned that little is being done to allow her to become engaged in the work force in some capacity. Nevertheless, I am persuaded that she suffers from serious difficulties in obtaining employment. I do not fault the claimant for putting somewhat dated assessments of the daughter's condition and limited earning capacity into evidence. I believe they reflect the daughter’s long term difficulties.

I accept she remains a “child of the marriage” within the meaning of the Divorce Act , s. 2(1) (b). [ 24 ] I am not prepared to impute income to the respondent. The evidence does not persuade me he is voluntarily declining to seek employment. Taken as a whole the evidence suggests to me that the respondent has serious health problems, which greatly limit his capacity to obtain employment. He would not be an attractive applicant to most employers seeking a man with the capacity to engage in physical work.

It is unlikely the respondent could be retrained at the age of 49 without great expense which he could not afford. [ 25 ] I accept the respondent’s non-taxable income ought to be grossed up. Taking into account the various uncertainties on the evidence I conclude that the respondent’s income for purposes of the Guidelines ought to be set at $28,000 per annum. On that income he will pay $249 for the support of his son. [ 26 ] Out of the daughter's “persons with disability” monthly payment she pays her mother $375 per month in rent and an additional $120 for her portion of telephone and utilities.

My order is that the respondent will pay an additional $200 towards the support of his daughter. [ 27 ] The claimant seeks a contribution to past and future extraordinary expenses. Given the modest incomes of both parties, in my view, the extraordinary expenses cannot be visited on the respondent. This is particularly so given that he has never been consulted about them. The claimant says she has not done so because she is fearful of the respondent.

There is no evidence of that, except the claimant’s assertion. [ 28 ] A letter from the respondent to the claimant, which the claimant deposes was received in July 2013, speaks of the respondent's inability to have contact with his children for many years, because of what he says is the claimant's “hostile nature” towards him. He complains that requests to see his daughter “even under independent supervision” have been refused. There is evidence that the claimant has denied the respondent any significant contact with his son.

The respondent's evidence is that he has always hoped to re-establish a relationship with his children, which has been thwarted. I accept that is accurate. [ 29 ] The extraordinary expenses claimed from the respondent include graduation costs for the daughter of $208.37 and orthodontic and dental costs of $10,047.85. The claimant also seeks reimbursement of the cost of hockey and lacrosse for their son over the years 2009 to 2014 inclusive. She deposes that she paid $14,541.95 for those expenses, of which 40% would be $5,816.78.

The claimant recognizes the respondent cannot pay those expenses from his income, but submits it can come from his savings, which the evidence suggests might be somewhat more than $14,000. [ 30 ] The claimant also seeks an order that the respondent pay towards the cost of his son’s lacrosse on an annual basis until he graduates from high school in June 2016. The claimant estimates the annual cost for registration, tournaments and travel is $5,000 to $6,000 of which she says the respondent should pay 40%.

The claimant also seeks an order for 40% of her son's prescription costs not covered by PharmaCare. [ 31 ] I conclude the claimant made decisions many years ago that the respondent would play no role in his children's lives. The claimant has conducted herself as if she was the sole parent, except for receiving support payments from the respondent. The payments have been beyond the amount required by the Guidelines .

By my calculation the respondent has paid in excess of $22,000 beyond the guideline amount since February 1, 2006. [ 32 ] The claimant has excluded the respondent completely from his children's lives, while incurring very substantial extraordinary expenses without any consultation. In my opinion, the claimant is not entitled to ask this Court to order the respondent to pay many thousands of dollars both retroactively and in the future, which cannot come from his modest income.

I decline to order the respondent to pay for the extraordinary hockey and lacrosse costs expenses claimed either retroactively or in the future. [ 33 ] On the question of the daughter's orthodontic and dental expenses I have no basis in which to determine they are necessary. I make no order in respect of those expenses. In doing so, I do not preclude the claimant from making a further application in respect to the

dental and orthodontic expenses if there is evidence to support their necessity. The respondent will make the contribution requested in respect of the daughter's high school graduation expenses. [ 34 ] I make no order about the periodic review of the child support payments. [ 35 ] Success was divided. Accordingly, the parties will bear their own costs. “Affleck J.”