Agar v. Healey, 2018 BCSC 991

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Agar v. Healey, 2018 BCSC 991 Date: 20180615 Docket: E051169 Registry: New Westminster Between: Lisa Kathleen Agar Claimant And: Jamie Allan Healey Respondent Before: The Honourable Madam Justice Morellato Reasons for Judgment Counsel for Ms. Agar: S. Beesley Counsel for the Respondent: A.T. Briscoe Place and Date of Hearing: New Westminster, B.C. December 13, 2017 Place and Date of Judgment: Vancouver, B.C. June 15, 2018 I. Introduction [ 1 ] The parties have agreed to this

summary trial proceeding and both seek a divorce order. The claimant, Ms. Lisa Agar, also seeks orders regarding retroactive child and spousal support, ongoing child and spousal support, a proportionate sharing of

section 7 expenses under the Family Law Act , S.B.C. 2011, c. 25 [ FLA ], and the division of family assets and debt, including pension benefits. [ 2 ] Ms. Agar is 38-years-old and the respondent, Mr. Healey, is 42-years-old. The parties began living in a marriage-like relationship in January 2010, were married on April 23, 2011 and separated in the spring of 2016. They have two young children (“Children”). The oldest boy was born July 2012 and the youngest boy was born January 2014. [ 3 ] Mr. Jamie Healey, agrees to pay monthly child support, including his proportionate share of

section 7 expenses. He also agrees to pay spousal support, although at the time of trial he had not paid any spousal support. The parties join issue with regard to each other’s income. Ms. Agar submits that the Court ought to impute an annual income to Mr. Healey in the amount of $123,901. Mr. Healey submits his annual income reduced significantly in 2017, to $78,004, due to limited job opportunities. Mr. Healey further submits that Ms. Agar’s income should be imputed at $25,000. Ms.

Agar asserts that her employment income in 2017 was $16,032 and that she anticipates her income for 2018 will be $19,560. [ 4 ] The parties have agreed on a number of consent orders including how pension benefits are to be divided and, for the most part, have also agreed on how family assets and debts are to be apportioned. The outstanding issues before me are: 1. Should retroactive child support be paid by Mr. Healey? If so, what is the proper amount to be paid? 2. Should retroactive spousal support be paid by Mr. Healey? If so, what is the proper amount to be paid? 3.

What are the monthly amounts of spousal support Mr. Healey must pay commencing January 1, 2018? 4. What are the monthly amounts of child support Mr. Healey must pay commencing January 1, 2018? What are the parties’ proportionate shares of

section 7 expenses? 5. Does Ms. Agar owe Mr. Healey the sum of $3,021.59 with respect to funds used to pay off the RBC Line of Credit? [ 5 ] Each of these issues will be addressed below, following a

summary of the background facts.

II. Background Facts [ 6 ] At the beginning of their relationship in 2010, Ms. Agar worked full-time as a Food Services Manager at a retirement residence. Following the birth of her first son in July 2012, Ms. Agar took a full year of maternity leave. During that year, she became pregnant with the couple’s second son. She returned to work at the retirement residence for five months, between the birth of the parties’ first and second son, in order to contribute to her employment insurance earnings for her second maternity leave.

When their youngest son was born in January 2014, the parties both acknowledge their agreement that Ms. Agar would stay home full-time to take care of the Children. Mr. Healey deposes, however, that the parties also agreed that Ms. Agar would return to work once the Children both reached school age; Ms. Agar modifies his statement, deposing in response, that the parties were in fact trying to have another baby during the eight months prior to their separation. [ 7 ] Ms. Agar has been and continues to be the primary caregiver for the Children. There is no set parenting

schedule or plan because Mr. Healey works as a sheet metal worker on various construction projects at various out-of-town locations throughout the year. His work

schedule is not static and changes from construction project to construction project. Nonetheless, the parties have agreed that Mr. Healey will have parenting time with the Children on weekends on a regular basis when he is in town. Last summer, for example, Mr. Healey had parenting time with the children from Tuesdays to Thursdays and during some weekends. [ 8 ] Mr. Healey has continued to reside in the former family home in Chilliwack. Ms. Agar and the Children moved to her parents’ home in Maple Ridge after the parties separated and continue to reside there. [ 9 ] Mr.

Healey currently works in Alberta for a company called Kaefer Industrial Services Inc. In 2017, he worked considerably less than the previous three years. From 2014-2016, Mr. Healey earned the following income: 2014: $102,795.62 2015: $120,658.34 2016: $130,328.39 [ 10 ] Mr. Healey deposes that his earnings for 2017, as of November 29, 2017, were $71,227.57, in addition to employment insurance benefits of $6,776, for a total of $78,003.57. He further deposes that: “Most of my work is related to the oil sands and things have not been good.” [ 11 ] At the time of trial, Ms.

Agar was employed as an on-call, part-time cafeteria assistant for School District 42 in Maple Ridge. She began looking for a job approximately a month following the parties’ separation. She applied for several positions but did not secure this job until November 6, 2016; she is paid an hourly rate of $20.90 per hour. [ 12 ] Ms. Agar earned $485.73 in employment income in 2016.

She has applied for positions as a red seal chef, a full-time or part- time cook, and a cook for a residential care home; however, she was not called for an interview for any of these positions. [ 13 ] When the 2016/2017 school year ended, Ms. Agar continued to look for work in the summer to secure fixed hours with a higher hourly wage. She was called for an interview in August 2017 at Sage Dining Services as lead cook but was not offered the position. [ 14 ] I accept Ms.

Agar’s evidence that she has not limited her search to school positions; however, the on-call, part-time employment position at School District 42 was the only position that she had been offered, between her separation and the trial. Ms. Agar continues to apply for positions that offer fixed hours and a higher hourly wage. Her ultimate career goal is to become a qualified head chef instructor. [ 15 ] Ms. Agar’s Line 150 income for 2016 was $2,405.73, including her Universal Child Care Benefit of $1,920. She deposes that, as of November 22, 2017, her income for that year totalled $16,032.51.

Commencing January 1, 2018, as noted above, she agrees that her income under the Federal Child Support Guidelines , S.O.R. 197-175 [ Guidelines ], should be imputed at $19,560. [ 16 ] Mr. Healey currently pays child support in the amount of $1,471 per month for the Children. The amount was agreed upon, on a “without prejudice” basis, at a Judicial Case Conference that took place on September 15, 2016. Ms. Agar now seeks an order that, commencing January 1, 2018, Mr.

Healey pay child support in the amount of $1,831 for the Children on the basis that this amount is more aligned with his income earning capacity. [ 17 ] The table amount of $1,831 requested by Ms. Agar for child support is based on the Guidelines that came into effect on November 22, 2017 and Mr. Healey’s income as set out in his 2016 income tax return of $130,328.39, less the $6,427.39 of RRSP income (that he received that year by withdrawing funds from the RRSP) for a total of $123,901.11. [ 18 ] Ms. Agar deposes that in June 2016, approximately a month after the parties separated, she asked Mr.

Healey to pay child support in the amount of $1,742 monthly. She based this request on his 2015 income of $120,000. Notably, in 2016, Mr. Healey actually earned more than this amount. [ 19 ] Ms. Agar underscores that even though Mr. Healey earned nearly $124,000 in 2016, he continued to pay child support of $1,471 throughout that year, which was below the requisite table amount. She deposes that she thought Mr. Healey would increase his child support payments voluntarily because he earned more in 2016 than he thought he would. In June 2017, through her legal counsel, Ms. Agar asked Mr.

Healey to increase the child support payments given the increase in his income in 2016. Mr. Healey responded by increasing his support payment to $1,741 for the months of July and August 2017, but he then reduced his child support payment to $1,000 for September 2017. In October and November 2017, Mr. Healey resumed paying $1,471 per month. Ms. Agar states that this resulted in the following shortfalls: $270 per month from June to December 2016; $270 per month from January to June 2017; $270 per month from October to November 2017; and $740 for September 2017.

She calculates the total shortfall of child support since their separation at $4,790.

[ 20 ] Ms. Agar acknowledges she owes her share of the parenting coordinator fees and asks that the $4,790 shortfall of child support payments owed to her be reduced by her 50% share of the parenting coordinator fees. She deposes that she owes the sum of $2,500 in regard to the $5,000 retainer Mr. Healey provided to the parenting coordinator and an additional $991.46 of the $1,982.92 balance that is owed to the parenting coordinator. She submits that this leaves a net amount of retroactive child support to be paid by Mr. Healey of $1,298.54. [ 21 ] Mr.

Healey purchased the former family home in Chilliwack before the parties began living together. When the parties began living together this home was appraised at $275,540.78 as of January 1, 2010. The balance of the mortgage at that time was $275,540.78. [ 22 ] Ms. Agar is not a registered owner of the home and is not responsible under the mortgage. The current value of the former family home as of November 9, 2017 was $400,000. The balance of the mortgage on November 27, 2017 was $239,664.27, resulting in a net equity of $160,335.73. [ 23 ] The parties have agreed that Mr. Healey may purchase Ms.

Agar’s interest in the former family home. Ms. Agar sought an order that Mr. Healey purchase her interest in the former family home for the price of $77,938.25 which was acceptable to Mr. Healey. An order in this regard has been issued. [ 24 ] Mr. Healey seeks reimbursement for the sum of $3,021.59. This sum represents the difference between Ms. Agar’s equal interest in Mr. Healey’s income tax refund for 2015 in the amount of $13,971.82 (“Tax Refund”) and the amount she used to pay off her RBC line of credit (“LOC”). Mr. Healey deposes that Ms.

Agar’s LOC was approximately $10,000 at the commencement of the relationship and remained at that level until the parties separated. He opposed Ms. Agar using his Tax Refund to pay off the principal on her LOC debt. Ms. Agar deposes that she did so with Mr. Healey’s consent before the parties separated. [ 25 ] Ms. Agar deposes that the parties actually relied upon and used the LOC during their relationship. Specifically, she states that the LOC was used during the marriage “on random occasions for groceries, spending money, Christmas gifts, meals outside the home and taking [Mr. Healey’s] parents out to dinner”.

These expenditures resulted in total withdrawals of $3,456 from the LOC during the time the parties lived together. [ 26 ] Mr. Healey deposes that he did not consent to Ms. Agar using his Tax Refund to pay off the LOC debt. He deposes that this matter was not discussed between the parties before they separated. He denies that the parties used the LOC during their relationship. [ 27 ] Ms. Agar has submitted financial statements which documented the use of the LOC since the parties began residing together. The principal balance on Ms. Agar’s LOC debt, when she first started living with Mr.

Healey in January 2010, was $9,702.03. However, that balance moved up and down over the course of time that the couple lived together; these fluctuations were based on various withdrawals from the LOC as well as payments made on its principal balance. [ 28 ] At the time the LOC debt was entirely paid off in April 2016, the principal amount of the debt was $9,879. An LOC bank statement provides that the LOC debt was reduced to zero on April 25, 2016, which would have been four days after Mr. Healey deposes the parties separated and 15 days before Ms. Agar deposes the parties separated. [ 29 ] At Mr.

Healey’s examination for discovery, he was questioned about whether he had a discussion with Ms. Agar about paying off the LOC. He testified at that time that: There was a discussion, but there was nothing said she [Ms. Agar] could take out the $10,000 to pay off only hers. It was to pay off all different bills. [ 30 ] This evidence suggests that Mr. Healey effectively agreed that some, although not all, of his Tax Refund could be used to pay off the LOC. In any event, Ms.

Agar is claiming that only the portion of the LOC used for family purposes, while the parties lived together, be recognized as a family debt. [ 31 ] The parties were both in debt when they first started living together. After the parties married, Mr. Healey suggested that they obtain a consolidation loan to take advantage of a lower interest rate to pay their debts. They obtained a consolidation loan in the amount of $35,000 on November 16, 2011 (“Consolidated Loan”). [ 32 ] Ms. Agar deposes that the couple had planned to use the Consolidated Loan to pay her VISA debt and her LOC, along with Mr.

Healey’s credit card debt but that this loan was actually used to pay for other debts and expenses instead. The debts that the parties paid off using the Consolidated Loan included: 1. $6,000 in regard to Mr. Healey’s Future Shop credit card debt; 2. $7,992.67 in regard to Ms. Agar’s VISA credit card debt; 3. $12,849.09 in regard to Mr. Healey’s credit card debt which Ms. Agar deposed was incurred before the parties began living together; and 4. $1,000 in regard to Mr. Healey’s income tax debt for 2010. [ 33 ] Ms.

Agar deposes that instead of using the Consolidated Loan to pay off her LOC, the parties continued to make withdrawals from the LOC and to make monthly payments on the LOC which the parties could afford to make. The documentary evidence before me supports this assertion. She further deposes that in 2016, prior to their separation, the parties met with an accountant to prepare their respective income tax returns for 2015. While at the accountant’s office, the parties learned that Mr. Healey would receive a significant Tax Refund for 2015. Ms. Agar deposes that she and Mr.

Healey were “pleased to hear this news and decided that we would use the income tax refund to pay in full the [LOC] in my name and the balance owing on the [Consolidated Loan] of $4,000”.

[ 34 ] Mr. Healey agrees, in his supporting affidavit, that the parties did take out a Consolidated Loan and that part of it was used to pay off his Future Shop credit card and his other credit card of $12,849.09. He also agreed that most if not all of his credit card debt was a debt he incurred prior to the parties’ marriage. Further, Mr. Healey agrees that part of the Consolidated Loan was used to pay off another income tax debt. However, Mr. Healey deposes he “believed” that the Future Shop credit card debt was less than $1,000 and the parties used $8,000 to replace the engine on his truck.

Further, he deposes that he “never agreed” to pay off Ms. Agar’s LOC with his Tax Refund and that he paid off the Consolidated Loan through monthly payments that he made through his own employment earnings. Mr. Healey produced a 2016 Bank Statement regarding the Consolidated Loan which supports his evidence in this regard; it does not show a lump sum payment of $4,000 in April 2016, contrary to Ms. Agar’s submission that the Tax Refund was used to pay off $4,000 of the Consolidated Loan. [ 35 ] Ms.

Agar deposes that she received an inheritance of $27,000 from her great-grandfather prior to the time the parties began living together and that she used approximately $20,000 of the inheritance to pay for the parties’ wedding expenses, as well as an additional $5,000 from her inheritance to help Mr. Healey pay for his income tax debt in 2011. Ms. Agar does not seek any reimbursement for the funds she used from her inheritance that she spent on the parties’ wedding or to assist Mr. Healey with his 2011 taxes.

However, she submits that these expenditures are relevant to the Court’s determination of whether it is reasonable to require her to reimburse Mr. Healey for paying off the LOC with a portion of his Tax Refund. [ 36 ] In addition, Ms. Agar points out that Mr. Healey withdrew $2,000 from the parties’ joint account after the date of separation. She submits this is also relevant to whether she should now be required to compensate Mr. Healey for the LOC payment, when she has not been compensated for the funds which Mr. Healey removed from their joint account for his own purposes. [ 37 ] Mr.

Healey acknowledges that Ms. Agar helped cover some of his income tax debt in 2011 from her inheritance. Further, does not take issue with her affidavit that she gave him $5,000 for this purpose, stating: “I do not recall the exact figures, but what [Ms. Agar] has said is probably true”. [ 38 ] Mr. Healey’s affidavit evidence is different than that of Ms. Agar in regard to the amount of her inheritance. He deposes that she: “told me she had inherited $35,000. She also told me that she thought she had $10,000 to $15,000 left when we began living together in 2010.” He further deposes, that Ms.

Agar “did not pay for our wedding as she claims.” [ 39 ] Mr. Healey’s evidence that Ms. Agar’s inheritance was in the amount of $35,000 (rather than $27,000 as she deposes), is inconsistent with Ms. Agar’s evidence including the bank statements she provided which show that the sum of approximately $27,000 was deposited into one of her accounts in 2007 when she received the inheritance. [ 40 ] The Court was not provided with bank statements regarding specific withdrawals relating to the wedding expenses. However, in a response affidavit, Ms.

Agar provided a very detailed list of wedding expenses she deposes she paid for, from her inheritance, which she claims totalled “approximately $20,000”. Ms. Agar also provided additional details regarding specific wedding expenses paid for by Mr. Healey, his parents and her parents. Her evidence persuades me that she not only paid for most of the parties’ wedding expenses, but did so by a large margin in the thousands of dollars. [ 41 ] The parties each gave considerable detailed accounts of when they separated in 2016.

I do not intend to outline their inconsistent and contrary recollections and views presented in their affidavit material; I find it unnecessary to do so. [ 42 ] The parties have agreed to the following consent orders: 1. Special or extraordinary expenses are limited to : (

a) preschool; (

b) childcare expenses of at least $100.00 per month; (

c) reasonable and necessary health related expenses that exceed insurance reimbursement by $100.00 annually, including dental expenses, prescriptions and optical expenses; (

d) extraordinary expenses for primary or secondary school education and other educational programs as agreed by the parties in writing in advance of the expense being incurred; and (

e) expenses for such extracurricular activities as the parties may expressly agree upon in advance of the expense being incurred or as determined by order of the court. 2. By June 1st of each year each party will provide the other with copies of: (

a) their most recent income tax return; (

b) their corresponding notice of assessment; (

c) their most recent annual statement of earnings; and (

d) any other relevant information, to facilitate determination of the adjustment, if any, to child support or special or extraordinary expenses. 3. Each party is under an obligation to notify the other immediately upon becoming aware of a material change of circumstances that may affect the child support obligations, which may include: (

a) a change of a child’s primary residence;

(

b) a child ceasing to be eligible for support; (

c) a child who ceased to be eligible for support becoming dependent again; and (

d) an increase or decrease in either party’s income in the amount of $10,000.00 or more. 4. If on any review of child support the parties are unable to reach an agreement within 60 days, either party may apply to the court for variation of child support. 5. Mr. Healey will pay Ms. Agar the sum of $4,430.03 as compensation for Ms. Agar’s entitlement to an equal share of the value of Mr. Healey’s employment pension with the Christian Labour Association of Canada earned during the marriage. 6. Mr. Healey will transfer to Ms.

Agar by way of a spousal rollover the sum of $13,580.69 from his Registered Retirement Savings Plan with the Christian Labour Association of Canada. 7. Mr. Healey will transfer to Ms. Agar by way of spousal rollover the sum of $5,293.00, from his Registered Retirement Savings Plan with Fisgard Investments. 8. Mr, Healey will transfer to Ms. Agar by way of spousal rollover the sum of $2,913.00, from his Tax-Free Savings Account with Fisgard Investments. 9. Mr. Healey will pay Ms. Agar the sum of $1,069.44 as his share of the family debt that was in Ms. Agar’s name and Ms. Agar will pay Mr.

Healey the sum of $5,577.36 as her share of the family debt in Mr. Healey’s name. 10. Pursuant to sections 55 , 55.1 , and 55.2 of the Canada Pension Plan , R.S.C. 1985, c. C-8, the parties’ unadjusted pensionable earnings shall be divided and either party may apply for that division. 11. Each party will assist in the division of the unadjusted pensionable earnings under the Canada Pension Plan , including but not limited to, providing copies of any government identification necessary to the division. III. DISCUSSION Issue 1: Should retroactive child support be paid by Mr. Healey?

If so, what is the proper amount to be paid? [ 43 ] Ms. Agar submits that although a consent order is in place, it was made on a without prejudice basis and, further, there has been a shortfall of child support in the amount of $4,790, as delineated above at para. 20 of these Reasons. She relies on the Supreme Court of Canada decision, in D.B.S. v. S.R.G., 2006 SCC 37 , to support her claim for retroactive child support. [ 44 ] In D.B.S . , the Court sets out the analytical framework for assessing the entitlement and quantum of retroactive awards.

At paras. 99-116 of D.B.S. , the Court outlines four factors which inform the question of whether a retroactive order should be made: 1. the reasons for the recipient’s delay in asking for child support; 2. the conduct of the payor (e.g., non-disclosure of income or pressuring the recipient to not ask for more support); 3. the circumstances of the child; and 4. any hardship the payor might suffer if required to pay retroactive child support. [ 45 ] The Court in D.B.S. also provides guidance on the date to which a retroactive child support order should begin: [5] …Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility. [ 46 ] More specifically the Court in D.B.S. further reasons at para. 121 : [121] …By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated.

Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached.

Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling. [ 47 ] In addition, the Court states that while the issue is discretionary and fact dependant, an award of retroactive child support should not generally exceed three years before formal notice has been given: [125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable.

In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially.

A payor parent should not be permitted to profit from his/her wrongdoing.

[Emphasis added.] [ 48 ] In this case, the three year ceiling has not been exceeded. I accept Ms. Agar’s evidence that in June 2016, approximately a month after the parties separated, she asked Mr. Healey for child support. She did not delay. In addition, I am satisfied that the other D.B.S. factors of need, the conduct of the payor, and hardship favour granting a retroactive award. Ms. Agar deposes that following her separation, she and the Children were forced to move in with her parents as she did not have the financial means to afford her own accommodations.

She deposes that, while she is immensely grateful to her parents, the current living arrangement is challenging for all concerned and she is “keen to move out of my parents’ home with the boys to suitable accommodations as soon as I am financially able to do so.” [ 49 ] Ms. Agar further deposes that by the end of May 2016, the parties only had $46.39 in their joint bank account. As noted above, she was a stay-at-home mother and, when the parties separated, the Children were three-years-old and two-years-old. Ms. Agar was in a vulnerable position financially, having relied on Mr.

Healey to support her and the Children since their birth. [ 50 ] While Ms. Agar began looking for work in June 2016, her income earning potential and her income was very limited. As noted above, her Line 150 income for that year was $2,405.73, although $1,920 of that amount constituted her Universal Child Care Benefit. She earned $485 from her employment that year. [ 51 ] Mr. Healey has not paid for any

section 7 expenses since the separation. Ms. Agar deposes she can only afford to take the Children to the dentist once a year for a cleaning. Further, she would have liked to enroll the boys in swimming lessons since the parties separated but can only afford one session per year because she has also paid for all her son’s preschool fees of $140 per month and for all of her other son’s school fees last year.

She deposes that her oldest son’s field trips, school supplies, hot lunches and fundraisers, and his prescriptions for his skin condition, when coupled with the Children’s Tae Kwan Do fees, amount to nearly $200 per month. [ 52 ] Ms. Agar testified that Mr. Healey misrepresented his income in 2016 by deposing that he expected to earn “significantly less” income in 2016 than the previous year when, in fact, he actually earned more. She further deposes that she is not aware of any hardship Mr.

Healey would suffer from paying retroactive child support, noting his significant income-earning capacity and his equity in the former family home which he intends to retain by purchasing her interest. I will address Mr. Healey’s income earning potential in greater detail later in these Reasons. For present purposes, suffice it to say that I agree that Mr. Healey’s income earning potential is such that an order requiring him to pay the retroactive child support sought would not work a hardship on him.

I am also of the view that the payment of such retroactive child support will fill a real and continuing need, and is in the best interests of the Children. [ 53 ] Further, in D.B.S , the Supreme Court of Canada found that it may be appropriate for a court to order retroactive support where there has already been a court order for child support made previously. In this case, the order in question was made by consent, on a without prejudice, interim basis; moreover, the circumstances of this case justify an increase in retroactive child support beyond that interim order. [ 54 ] Ms. Agar acknowledges that Mr.

Healey has paid all of the fees for the parenting coordinator for which she is equally responsible. She submits that the sum of $2,500 be deducted from the $4,790 sum of retroactive child support owed to her, as $2,500 represents 50% of the $5,000 retainer paid by Mr. Healey to the parenting coordinator. She also agrees that she ought to pay her half- share of the balance owing to the parenting coordinator of $1,298.54; that is, $991.46. The amount of retroactive child support owing with these agreed upon deductions is $1,298.54. This is a reasonable set-off approach and I so order.

Issue 2: Should retroactive spousal support be paid by Mr. Healey? If so, what is the proper amount to be paid? [ 55 ]

Section 170 (

b) of the FLA provides that an order for spousal support may include “any period of time before the date the application for the order is made”. The applicable

section of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), is section 17(1) (a). The statutory provisions respecting entitlement to spousal support in the FLA and the Divorce Act are: Family Law Act Duty to provide support for entitled spouse 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 ]. Objectives of 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; … (

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. Divorce Act Spousal support order

15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secureor pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for thesupport of the other spouse. … Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; … (

c) any order, agreement or arrangement relating to support of either spouse. … Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [56] Counsel for Ms. Agar advances her entitlement to spousal support both on a compensatory and non-compensatory basis. Sherelies in part on the following reasons of the Supreme Court of Canada in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 atpage 867, in support of Ms. Agar’s claim for spousal support, where the Court addresses the economic impact of childrearing: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children.

Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being.

In such situations, spousal support maybe a way to compensate such economic disadvantage. [57] The Court in Moge further addresses the challenges of childcare responsibilities following the dissolution of a marriage asfollows, at page 868: If childcare responsibilities continue past the dissolution of the marriage, the existing disadvantages continue, only to be exacerbated bythe need to accommodate and integrate those demands with the requirements of paid employment…. [58] In this light and, having reviewed the undisputed facts of this case, I have concluded that Ms. Agar is entitled to spousalsupport.

The parties agreed that she need not return to work after their second child was born and that she could stay at home to raise theChildren, at least until they both went to school. Even though her youngest son was only two-years-old when the parties separated, shesearched for and found work, although her income earning potential has been and remains quite limited. [59] Mr. Healey does not dispute that Ms. Agar has had full-time care and responsibility for the Children while he was at work andsince they have been separated.

Indeed, she has been the primary caregiver for the Children, including significant periods of time sincetheir birth where his work has taken him out of town. [60] Ms. Agar seeks retroactive spousal support for the period from June 2016 to December 2016 in the amount of $13,958. For2017, she seeks retroactive spousal support in the amount of $16,812. These amounts are based on the parties’ respective incomes andthe Spousal Support Advisory Guidelines (“SSAG”). [61] The amount of retroactive spousal support Ms. Agar seeks from June 2016 to December 2016 is based on Mr.

Healey’s actualincome in 2016 of $123,901.11 and her actual income for that year of $485.73. Ms. Agar calculated the amount of retroactive spousalsupport as follows based on the SSAG: 2016 Amount based onmid-range spousalsupportJune $1,994July $1,994August $1,994September $1,994October $1,994November $1,994December $1,994

TOTAL for 2016 (seven months) $13,958 2016 Amount based onmid-range spousalsupport [62] For 2017, Ms. Agar submits that Mr. Healey’s income ought to be imputed at $123,901.11. Her income for 2017 was$16,032.51, leading to the following calculations based on the SSAG: 2017 Amount based onmid-rangeJanuary $1,401February $1,401March $1,401April $1,401May $1,401June $1,401July $1,401August $1,401September $1,401October $1,401November $1,401December $1,401TOTAL for 2017 (twelve months) $16,812 [63] Having considered the record before me, I am of the view that additional income ought to be imputed to Mr.

Healey for 2017 inassessing the quantum of retroactive spousal support. In so deciding, I have considered not simply what Mr. Healey has actually earned,but also his capacity to earn income. This principle that I ought to consider not only the amount of income a spouse payor has actuallyearned, but also the amount of income a spouse could earn if working to capacity is well established: see Marquez v. Zapiola, 2013BCCA 433 at para. 37; Van Gool v. Van Gool (1998), (BC CA), 64 B.C.L.R. (3d) 94 (C.A.); Barker v. Barker, 2005BCCA 177 at para. 19. [64] The reasons of this Court in Hanson v.

Hanson (1999), (BC SC), 92 A.C.W.S. (3d) 1024 (B.C.S.C.), are alsoof assistance in discerning whether income should be imputed. In that case, the legal principles set out by Madam Justice Martinsonrelating to imputing income may be summarized as follows: a. Section19(1) of the Guidelines allows the court to impute such amount of income to a parent as it considers appropriate in thecircumstances. b. Imputing income is the way in which the court gives effect to the legal requirement that a parent must earn what the parent iscapable of earning. c.

The court must consider not only the amount of income a spouse actually earns, but “the amount of income a spouse could earn ifworking to capacity.” d. Bad faith is not required. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he orshe is capable of earning. e. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. [65] In Marquez at para. 38, our Court of Appeal reasoned that the test for imputing income for under-employment orunemployment is one of reasonableness, having regard to the parties’ capacity to earn income in light of age, education, health, workhistory and work availability. [66] Mr.

Healey asserts that his Guidelines income in 2017 was $78,004 and that this significant reduction in his income, incomparison to 2016, was due to a shortage of work. While I was provided with a description of Mr. Healey’s actual employmentsituation in 2017, I was not provided with a clear or substantive explanation that persuaded me his reduced income was likely to continueor reflected a diminished capacity to earn income in the future. Mr.

Healey is a healthy 42-year-old man with over 20 years ofexperience in the construction trade; his income earning potential has, with the exception of 2017, been rising over recent years upwardsof $120,000. As such, I agree with counsel for Ms. Agar’s submission that Mr. Healey’s income in 2017 does not reflect his actualcapacity to earn income. Ms. Agar submits that Mr. Healey is under-employed and that an income in the amount of $123,901.11 shouldbe imputed to him. I agree. [67] Mr. Healey submits that Ms.

Agar’s income should be imputed at $25,000 a year, arguing that she has not made sufficientefforts to find work. I am not of the view that Ms. Agar’s income should be imputed beyond her reported earnings in 2016 and 2017 asMr. Healey submits. Based on the record before me, I conclude that she has made considerable effort “to get back up on her feet” sincethe separation, to re-enter the work force and to increase her earning capacity. I also note that she has agreed to an increase of herGuidelines income for 2018 to $19,560.

This latter increase is a reasonable number to impute, recognizing the low hourly wages she iscapable of commanding at this time.

[ 68 ] Before awarding retroactive spousal support, I must also consider whether a retroactive award is justified or appropriate in the circumstances before me. Counsel for Ms. Agar relies on the Supreme Court of Canada decision Kerr v. Baranow , 2011 SCC 10 at para. 207 , where the Court found that similar considerations and factors as those set out the context of child support are also relevant in deciding the suitability of retroactive awards of spousal support.

That is, the court must assess the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. [ 69 ] Mr. Healey asserts that Ms. Agar has not demonstrated the requisite need. He also asserts that Ms. Agar did not make a timely application for interim spousal support in 2017. In response, Ms.

Agar underscores that she made an application in April 2017 for parenting orders and for an order that the former family home be listed for sale but did not apply for interim spousal support at that particular point in time because it was her understanding that Mr. Healey was unemployed; instead, because she needed money to support herself and the Children, she applied for an order that the home be listed for sale. Mr. Healey’s position at the hearing in the spring of 2017 was that the home should not be sold because he planned to purchase her interest. [ 70 ] Ms.

Agar gave formal notice of her claim for spousal support in her Notice of Family Claim filed June 16, 2016. Accordingly, Mr. Healey was aware, approximately a month after the parties’ separation, that Ms. Agar was claiming both spousal support and child support. The requirement of an interim application for support was discussed in Kerr at para. 216 . In that case, Ms. Kerr commenced her proceedings promptly after separation, just as Ms. Agar did in the case before me. Further, in the instant case, a

summary trial application was also brought promptly by Ms. Agar, within a year-and-a-half of the commencement of these proceedings. In this context, I am unable to conclude that Ms. Agar delayed in such a manner that retroactive spousal support ought not be awarded. [ 71 ] As regards the factor relating to need, the reasons of this Court in Reay v. Reay , 2016 BCSC 92 , are of assistance. In Reay at para. 47 , the Court considered the fact that the claimant was unable to obtain her own residence, whether rented or owned, but instead was required to rely on the charity of friends. In the instant case, Ms.

Agar has had no choice but to rely on the generosity and support of her parents. She and the Children have been in considerable financial need. It is no answer for Mr. Healey to say that because the financial burden and economic consequences of the parties’ separation were borne, at least in part by Ms. Agar’s parents, that she or the Children were not in need. The need was clearly there and the authorities contemplate a corresponding obligation on Mr. Healey’s part to meet it. [ 72 ] With respect to the hardship factor, Mr.

Healey submits that he has little in the way of assets, save for his investment accounts and his share of the equity in the former family home, which amounts to approximately $78,000. Accordingly, he resists paying any retroactive spousal support. Ms. Agar submits that Mr. Healey had a year-and-a-half to plan for the possibility that he would be ordered to pay spousal support from the day formal notice was given. I am not persuaded that requiring Mr.

Healey to pay retroactive spousal support in the amount of $13,958 for six months in 2016 and an additional amount of $16,812 for twelve months in 2017 will result in hardship, given Mr. Healey’s earning capacity and assets. [ 73 ] Accordingly, Ms. Agar in entitled to a total sum of $30,770 in retroactive spousal support. Issue 3: What are the monthly amounts of spousal support Mr. Healey must pay commencing January 1, 2018? [ 74 ] Having decided that Ms. Agar is entitled to spousal support, I am of the view that the record before me supports the conclusion that Mr.

Healey’s income ought to be imputed at $123,901 for 2018 as well. I find that it is also reasonable, in light of the record before me, that Ms. Agar’s income ought to be increased and imputed at $19,560 for 2018. Applying the SSAG, at the mid-range, Mr. Healey is required to pay monthly spousal support in the amount of $1,332 commencing January 1, 2018. Issue 4: What are the monthly amounts of child support Mr. Healey must pay commencing January 1, 2018? What are the parties’ proportionate shares of

section 7 expenses? [ 75 ] Based on the parties’ imputed Guidelines incomes, and applying the Guidelines at the mid-range, Mr. Healey is required to pay $1,831 per month in child support payments monthly commencing January 1, 2018. Mr. Healey will pay 75% of the Children’s

section 7 expenses and Ms. Agar will be responsible for the remaining 25%. Issue 5: Does Ms. Agar owe Mr. Healey the sum of $3,021.59 with respect to funds used to pay off the RBC Line of Credit? [ 76 ] Ms. Agar acknowledges that the amount of $3,021.59 is the difference between her one-half interest in Mr. Healey’s Tax Refund and the amount used to pay off the LOC debt that she brought into the marriage. She submits, however, that this debt ought to be reduced by $1,728 which is half of the amount of withdrawals (i.e., $3,456) made from the LOC during the marriage. She submits that the $3,456 constitutes family debt pursuant to

section 86 of the FLA . [ 77 ] Ms. Agar further submits that an additional reduction of $1,000 is warranted which represents Mr. Healey’s equal share of the $2,000 sum he withdrew from the parties’ joint account after their separation since the joint account constituted family property pursuant to

section 84 of the FLA . [ 78 ] Ms. Agar submits this approach is justified and fair, particularly when one considers that she has not made any claim for occupational rent and, further, that she contributed a significant proportion of her inheritance to pay off a portion of his income tax and credit card debts as well as their wedding. [ 79 ] The monies in the parties’ joint bank account at the time of separation constitutes family property under

section 84 of the FLA . Accordingly, any monies owed by Ms. Agar to Mr. Healey must account for the $2,000 he removed from the parties’ joint account for his own purposes.

[ 80 ]

Section 86 of the FLA states that family debt includes all financial obligations incurred by a spouse “during the period beginning when the relationship between the spouses begins and ends when the spouses separate.” I find that the withdrawals of $3,456 made from the LOC during the marriage constitute family debt as these withdrawals were used for family purposes and in the normal course of the relationship between the parties. [ 81 ]

Section 95 of the FLA provides for judicial discretion to depart from an equal division of debt if it would be significantly unfair to do so. In my view, the evidence before me does not persuade me that Ms. Agar should be responsible for more than 50% of the portion of the LOC that was expended while the parties lived together. In addition, the monies in their joint back account constitutes family property which should also be split evenly.

In the result, the amount of $3,021.59 must be reduced by the sum of $1,728, representing half the family debt incurred through the LOC, and by an additional $1,000, representing half the monies taken from the parties’ joint bank account by Mr. Healey following their separation. IV. Disposition [ 82 ] I am satisfied on the evidence and record before me that a divorce order should be granted pursuant to

section 8 of the Divorce Act . I have reviewed the record and I find that the requisite criteria for granting a divorce have been satisfied. Subject to section 12(1) of the Divorce Act , I hereby order that the parties are divorced from each other, the divorce to take effect 31 days from the date of these Reasons. [ 83 ] The consent orders are set out at para. 42 of these Reasons and need not be repeated here. [ 84 ] Ms. Agar is entitled to $4,790 in retroactive child support. However, the sums of $2,500 and $991.46 will be deducted from this award; these sums represent Ms.

Agar’s portion of half the costs of the parenting coordinator. Accordingly, Mr. Healey must pay Ms. Agar retroactive child support for the remaining amount of $1,298.54 (i.e., $4,790 – $2,500 – $991.46). [ 85 ] Ms. Agar is entitled to retroactive spousal support in the amount of $30,770 (i.e., $13,958 for 2016 and $16,812 for 2017). [ 86 ] Commencing January 1, 2018, Mr. Healey will pay spousal support of $1,332 on the 15th day of each month until further order of the court; the parties may also vary the amount of spousal support by agreement. [ 87 ] Commencing January 1, 2018, Mr.

Healey will pay child support in the amount of $1,831 on the first day of each month and thereafter, for so long as the Children remain children of the marriage as defined by the Divorce Act , or until further agreement of the parties or by court order. Mr. Healey will pay 75% of

section 7 expenses and Ms. Agar will be responsible for the remaining 25%, until further agreement of the parties or by court order. [ 88 ] Mr. Healey is entitled to be compensated for the sum of $3,021.59 in relation to the funds Ms. Agar used to pay off the LOC. However, two amounts must be deducted from this sum: (1) $1,728 representing half the withdrawals made from the LOC during the time the parties lived together; and (2) $1,000, representing Ms. Agar’s one-half share of Mr. Healey’s $2,000 withdrawal from the parties’ joint bank account following their separation. Accordingly, Ms. Agar must pay Mr.

Healey the remaining amount of $293.59 (i.e., $3,021.59 – $1,728 – $1,000). [ 89 ] Ms. Agar shall be entitled to her costs at Appendix B. “MORELLATO J.”