C.E. v. G.C., 2024 BCPC 18

Citation: C.E. v. G.C. 2024 BCPC 18 Date: 20240205 File No: 3803 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.E. APPLICANT AND: G.C. RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE GOUGE

Counsel for the Applicant: C. OwenCounsel for the Respondent: B.A. McLeodPlace of Hearing: Colwood, B.C.Date of Hearing: December 7, 2023Date of Judgment: February 5, 2024 [1] G.C. and C.E. each ask me to correct errors which they say that I made in an earlier decision in this case: C.E. v. G.C., [2023]BCJ No. 2363; 2023 BCPC 254. [2] The jurisdiction so to do was described as “unfettered” in Buschau v. Rogers Communications Inc., 2004 BCCA 142 ,[2004] BCJ No. 461; 2004 BCCA 142 (leave to appeal refused at 2004 SCC 221). In Cheema v.

Cheema {2001] BCJ No. 337; 2001BCSC 298, Justice Bennett said at paragraph 5: … new evidence is not the only basis, or a necessary prerequisite, on which this unfettered discretion, may be properly exercised.Failure to consider material evidence before the court or the misapplication of the applicable law are alternative bases on which to re-open. I add at this point, parenthetically, that the father submitted that I had misinterpreted the evidence regarding his work on Fridaynights.

He submitted that I found he worked every Friday night, when he works Friday night during the "wedding season". [3] As noted in paragraph 4 of my earlier decision, C.E. and G.C. agreed during the hearing that G.C. would pay two-thirds oforthodontic expenses incurred by their daughter, M.C., and that C.E. would pay one-third. I erred in paragraph 32 of my earlier decisionby allocating 63% to G.C. and 37% to C.E. That was simply my mistake, and the figures in paragraph 32 should have been 67% to G.C.and 33% to C.E. [4] G.C. asserts that I made two other errors in my earlier decision:

a) He says that I erred in assessing his income-earning capacity for the purposes of spousal support.

b) He says that I erred by declining to order a retroactive reduction in his child support obligation. [5] The Spousal Support Advisory Guidelines are not a statutory instrument. Rather, they are a worthy effort by a group of scholarsto bring consistency to awards of spousal support: Redpath v. Redpath 2006 BCCA 338 , [2006] BCJ No. 1550; 2006 BCCA 338; 62 BCLR (4th) 233; 33 RFL (6th) 91. In Beninger v.

Beninger [2009] BCJ No. 2917; 2009 BCCA 458; 77 RFL (6th) 56, JusticeHuddart said at paragraph 28: In my view, the appellant overstates the power of the Spousal Support Advisory Guidelines in her circumstances when she argues thechambers judge was required to apply them unless she justified not doing so. While it is preferable for a court to organize its analysis byreference to the Guidelines as well as the statutory requirements and authorities applying them, neither the Divorce Act nor the authoritiesrequire justification for deviation from them.

The appellant's proposition does apply to the Child Support Guidelines because of therequirements in s. 17(6.1) and 17(6.3) of the Act to apply the Guidelines and to give reasons for deviating from them where deviation ispermitted. Nowhere in the Divorce Act are there comparable provisions requiring compliance with the Spousal Support AdvisoryGuidelines or reasons for deviating from them. As their name indicates, they are advisory and without statutory effect.

That said, theyprovide helpful advice and this Court has been clear that their advice must be taken seriously and that best practice would include anexplanation of any deviation from them. [6] In my earlier decision, I concluded that G.C.’s ongoing spousal support obligation should be assessed by reference to hisincome-earning capacity in his former occupation as a manager of retail food stores, rather than his present income-earning capacity asthe manager of an industrial operation which manufactures pet food from fish. In so doing, I applied the principles stated in Kohan v.

Kohan [2016] AJ No. 411; 2016 ABCA 125; [2016] 8 WWR 489; 398 DLR (4th) 282; 77 RFL (7th) 44 at paragraphs 34 – 39. [7] G.C. asserts that I over-estimated his income-earning capacity in his last year as a retail grocery manager by including amountswhich were non-recurring and did not form part of his regular salary as a grocery store manager. [8] G.C.’s last year as a grocery store manager was 2014. That was both his first and last year with a new employer, [omitted forpublication].

His tax return for that year indicates employment income of $72,000, which is the figure which I used for his income atparagraph 22 of my earlier decision in this case. G.C. says that I should have used a figure of $50,000 instead because of the followingpassage from his evidence in chief: Q. So, in 2014, you were working at [omitted for publication]? A. Yes Q. And you indicated that your income was about $50,000 from them? A. It was. Q. And this [his tax return] says 72. Can you explain the difference?

A. … I don’t know if it’s in here, but that money that C.E. referenced that they didn’t - that she would not let them apply to her,there was an accounting at the lake in 2014 when they took the shares away from myself and C.E., they did some accounting back andthey found that there was unallocated income and they - as she mentioned, they tried to apply it to her income and she wouldn’t let them,even though it probably should have been split income-wise, but they applied the income to me. It was implied income and it wasn’tearned income.

* * * Q. Okay, so of the 72,000, about 22 and change of that was income attributed to you … from the marina and store? A. From the marina and the store, it was … attributed, yes. Q Did you receive that $22,000 in 2014? A. No, no. It was just implied income, yeah.

The references to “… the marina and the store …” are to two businesses jointly owned and operated by G.C. and C.E. in years prior to 2014. [ 9 ] There was no reference to the evidence quoted in paragraph 8 during G.C. s cross-examination. [ 10 ] G.C. asserts, correctly, that I failed to consider that evidence when assessing G.C.’s income-earning capacity as a store manager in the retail food industry. [ 11 ] The reader will observe that the evidence quoted in paragraph 8 was less clear and precise than one would have hoped.

However, I proceed to analyse the present issue on the premise that G.C.’s income as a grocery store manager in 2014 was $50,000, rather than $72,000. Applying the math set out in paragraph 22 of my earlier decision: a. a $50,000 salary in 2014, grossed up by 25% to allow for intervening inflation, would have been a salary of $62,500 in 2023; b. the range of spousal support recommended by the Spousal Support Guidelines in this case is 35% to 47% of the payor spouse’s income; c. 30% of $62,500 is $18,750 annually, or $1,562.50 per month; d. 47% of $62,500 is $29,375 annually, or $2,448 per month.

In my earlier decision, I awarded spousal support of $3,000 per month. [ 12 ] The figure of $3,000 per month is one which I reached by a subjective assessment of the parties’ present needs, abilities and circumstances, and one which I considered, and still consider, to be fair, having particular regard to G.C.’s present annual income of $150,000. However, the principles stated in Kohan direct me to consider what level of spousal support would be fair if G.C. were still employed as a grocery store manager (at a salary of $62,500).

If that were so, an award of $36,000 annually in spousal support would be manifestly unfair. If G.C. were now earning $62,500, the figure of $1,562.50 to $2,448 per month suggested by the Guidelines would be fair. [ 13 ] That being so, the award of spousal support in this case should be $2,400 per month, rather than $3,000. [ 14 ] G.C. directs my attention to a series of interim orders of this Court which required him to make monthly payments on account of his child support obligation, and directed that his final child support obligation be adjudicated and adjusted retroactively at trial.

He says that, because M.C. has renounced any claim to child support, his child support obligation should be retroactively adjusted to zero as of M.C’s 19 th birthday, which was in 2019. He claims a refund of child support payments made to C.E. since that date. [ 15 ] In April, 2022, I rendered reasons in which I concluded that the right to pursue a claim for child support belonged to M.C., and only to M.C.: C.E. v. G.C. [2022] BCJ No. 641 ; 2022 BCPC 65 . M.C. did not renounce her right to child support until the trial of this case in July, 2023.

It is worthy of note that, before renouncing her right to child support, M.C. had the benefit of advice from Ms. Scotland, a very able and experienced counsel. There is no doubt that, given her circumstances, M.C. was entitled to child support until the date on which she renounced that right, and that she would continue to be entitled to child support today had she not done so. The amounts paid were those mandated by the Child Support Guidelines , having regard to G.C.’s income .

That being so, there was no overpayment until July, 2023. [ 16 ] The interim payments of child support were paid to C.E., who spent the money to maintain herself and M.C. in a very modest lifestyle. It would be no exaggeration to refer to them as poor people. Their personal health challenges render each of them unemployable. They subsist on government benefits and the child support payments of G.C. C.E. has no surplus income, and no assets, from which to make payments to G.C. on account of any overpayment of child support.

For that reason, I decline to order a refund of child support payments made during the period July – December, 2023. . [ 17 ] In the result: a. Paragraph 22 of my earlier reasons will be amended to refer to 67% and 33%, rather than 63% and 37%. b. G.C.’s spousal support obligation will be assessed at $2,400 per month, rather than $3,000 per month. c. G.C.’s claim for a refund of past overpayments of child support is dismissed. _____________________________

The Honourable Judge T. Gouge Provincial Court of British Columbia