S.K.W. v. J.N.Z.W., 2021 BCPC 122

Citation: S.K.W. v. J.N.Z.W. 2021 BCPC 122 Date: 20210416 File No: [Omitted for publication] 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: S.K.W. APPLICANT AND: J.N.Z.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Appearing on her own behalf: S.K.W. Appearing on his own behalf: J.N.Z.W. Place of Hearing: Prince George , B.C.

Date of Hearing: February 1, 2021 Date of Judgment: April 16, 2021 INTRODUCTION [ 1 ] This is an application by J.N.Z.W. to vary a separation agreement between the parties to reduce the quantum of child support payable for the parties’ son, A.J.N.W., born [omitted for publication], (“A.J.N.W.”) effective January 1, 2018. S.K.W. counterclaims for a conduct order and enforcement of the special expenses provisions of that same agreement. [ 2 ] The parties commenced living in a marriage-like relationship on June 27, 2005, married [omitted for publication], and separated June 10, 2017.

Pursuant to the terms of their separation agreement dated June 28, 2018, (the “Agreement”) A.J.N.W. lives primarily with S.K.W. and she has primary parenting responsibilities for him. J.N.Z.W.’s Guideline income was fixed at $62,000 and he agreed to pay $600 per month for A.J.N.W.’s support. [ 3 ] J.N.Z.W.’s income has dropped substantially since 2016 and he seeks to reduce his child-support obligations.

S.K.W. says J.N.Z.W. is underemployed and therefore the full $62,000 income amount ought to be imputed to him for the purposes of determining child support. [ 4 ] For the reasons set out below, I dismiss J.N.Z.W.’s application to vary the child support and special expenses provisions of the Agreement and those terms remain in force. [ 5 ] S.K.W. also sought a conduct order and an order that J.N.Z.W. make bi-weekly payments of $50 into A.J.N.W.’s RESP account. J.N.Z.W. consents to those orders. The issues I must determine are: 1 .

Can the court vary the Separation Agreement to change the amount of child support payable to accord with J.N.Z.W.’s actual income from 2018 to present? 2 . Should the court order a lower amount of child support or daycare expenses on the basis of an agreement to unequally distribute the sale proceeds of the family home in favour of S.K.W.? 3 . Should a higher income be imputed to J.N.Z.W. for the purposes of determining child support? 4 . What special and extraordinary expenses ought to be paid by J.N.Z.W.?

Issue 1: Can the Separation Agreement be varied? [ 6 ] The Separation Agreement provides that J.N.Z.W. would pay $600 per month for A.J.N.W.’s support based on a Guideline income of $62,000. The Agreement also contemplates J.N.Z.W. was to pay $7,200 in retroactive child support for the period starting from the date of separation to the date of the Agreement, being June 28, 2018.

He seeks to retroactively decrease the child support payment as of January 1, 2018. [ 7 ] The court’s power to change the child-support provisions of a Separation Agreement arises from s. 148 of the Family Law Act , which allows the court to set aside or replace an agreement for child support if the court would make a different order on consideration of the matters set out in

section 150 of the FLA.

Section 150 of the Family Law Act provides that child support is to be determined in accordance with the Child Support Guidelines . The Guidelines provide that the amount of child support payable is based on the payor’s annual income. That is typically determined by reference to line 150 of the payor’s tax return. [ 8 ] It appears J.N.Z.W.’s Guideline income as set out in the Separation Agreement was based on his anticipated 2016 income.

His actual 2016 and subsequent annual income as disclosed at line 150 of the tax returns attached to his Financial Statement has been as follows: 2016: $63,780; 2017: $36,933; 2018: $36,069.57; 2019: $14,709.95. [ 9 ] In 2020, J.N.Z.W. believes he was on track to earn $33,000. [ 10 ] J.N.Z.W. did not earn $62,000 in 2018 nor has he earned that much since. As such, I may order a different or lesser amount of child support than the amount provided for in the Separation Agreement in accordance with the Guidelines .

This raises the issue of whether the child support amount provided for in the Agreement ought to be reduced to reflect J.N.Z.W.’s actual income since 2018, or whether a higher amount of income ought to be imputed to him for the purposes of determining child support. Issue #2: Should a lower child support and daycare expense payment be ordered due to the unequal distribution of the sale proceeds of the family home? [ 11 ] The Separation Agreement provides that the parties would share daycare costs for A.J.N.W. which, as of the date of hearing, totalled $10,620 for the period June 22, 2017, to September 9, 2020.

J.N.Z.W. asserts that he should not have to contribute to A.J.N.W.’s daycare costs and a lower child support amount ought to be payable on the basis that it was agreed his obligations would be met in part by the unequal distribution of the sale proceeds of the family home in favour of S.K.W. [ 12 ] J.N.Z.W. says that when the parties sold the family home $12,000 of the proceeds was used to pay off his arrears of child support and $1,800 was used to pay off his student loan. The balance of $80,000 was paid to S.K.W.

J.N.Z.W. says this payment was intended to provide support for A.J.N.W. and pay for expenses such as daycare. [ 13 ] S.K.W. says there was no agreement or discussion that she would receive the sale proceeds in lieu of child support or payment of

A.J.N.W.’s expenses. She says J.N.Z.W. wanted to walk away from the family home with no obligation. At the time there were numerous outstanding utility bills and the house insurance had been cancelled for non-payment. The intention was to put the house solely in her name but she did not qualify for the mortgage alone, so it remained in both parties’ names; however, in practice it was treated as her house. For two years she assumed full responsibility for the mortgage, maintenance, taxes and renovations necessary to sell the home. In consideration, she was to receive any upside from the sale.

J.N.Z.W. conceded in cross-examination that the agreement was he would sign over everything to her and the house would become “her problem”; however, he complains that at the time the agreement was made, he did not anticipate how much the house would sell for. [ 14 ] The Separation Agreement provides that J.N.Z.W. would transfer his interest in the family home to S.K.W., following which S.K.W. would assume all costs relating to the home.

That same Agreement specified J.N.Z.W. would pay $600 per month in child support and his proportional share of A.J.N.W.’s special and extraordinary expenses, including daycare expenses. There was no reference to any child support adjustment to account for an unequal distribution of proceeds of sale of the family home to S.K.W. [ 15 ] The Separation Agreement has an addendum which specifically addresses the sale of the family home. It sets out that the balance of any proceeds of sale were to go solely to S.K.W. There is no mention of any adjustment to support obligations.

J.N.Z.W. could offer no explanation as to why the Separation Agreement or addendum were silent on the issue of why these proceeds were to be distributed only to S.K.W. and why they did not refer to any adjustment for child support. [ 16 ] On all of the evidence I find the reason the parties agreed to allocate any net sale proceeds of the family home to S.K.W. was in consideration of her solely assuming all of the costs, liabilities and renovations necessary to maintain the home, not as payment in lieu of child support and expenses.

Issue #2: Should a higher income be imputed to J.N.Z.W.? [ 17 ] If I were to award child support based solely on his actual line 150 income, J.N.Z.W.’s child support payment would be reduced to $340 for 2018; $70 for 2019; and $309 for 2020. [ 18 ] Section 19(1) of the Guidelines provides a non-exhaustive list of circumstances where the court may impute income to a spouse, such as when the spouse is intentionally under-employed or unemployed. The principles relating to imputation of income were summarized by the court in El-Jaroudi v.

El-Mikati , 2020 BCSC 868 , at para. 238 : [238] The following principles for income imputation emerge from the authorities:

a) The court must have a rational and evidentiary basis for imputing income: Windle v. Windle , 2010 BCSC 18 at para. 88 .

b) The onus lies on the party seeking to have income imputed to the other spouse: MacCarthy v. MacCarthy , 2015 BCCA 496 at para. 35 .

c) Bad faith is not required for a finding that a party is intentionally underemployed. What is required is a finding that the party is not earning to their capacity: Beissner v. Matheusik , 2014 BCSC 1785 at para. 37 , aff’d 2015 BCCA 308 .

d) When imputing income, the court must consider what is reasonable given the age, education, skills, health of the parents, and availability of work: Yeung at para. 47.

e) A parent who chooses to work less than full-time must justify the choice by the needs of the children: Yeung at para. 47.

f) Limited experience and skills do not justify a failure to pursue employment: Fong v. Fong , 2011 BCSC 42 at para. 82 .

g) A court may impute income where a person pursues unremunerated employment or unrealistic career aspirations: Fong at para. 82 . [ 19 ] J.N.Z.W. has training as a professional truck driver, a career he pursued during his marriage to S.K.W. His job primarily entailed working shut-downs and projects which required J.N.Z.W. to work out of town for stretches of time. He says that after separation he no longer wanted to work out of town so he left that career in favour of local opportunities.

J.N.Z.W. says that local employment was not as lucrative or stable, accounting for his drop in income after 2016. [ 20 ] In 2018, J.N.Z.W. was working in town for [omitted for publication] and [omitted for publication]. [Omitted for publication] let J.N.Z.W. go before the end of his three-month probation period. He then started working with [omitted for publication]. His salary was $1,392 every two weeks. J.N.Z.W. was let go from that job after around three months of work. He then obtained a job working part time with an asphalt company.

J.N.Z.W. says he did look for full-time work as a driver but all opportunities involved out-of-town hauling which he did not want to do. [ 21 ] In 2019, J.N.Z.W. started working two days a week at [omitted for publication] as a grocery clerk. He had since re-partnered and in 2019, his fiancée became sick from an iron deficiency. He chose not to pursue further driving opportunities because he preferred to be available to support his partner.

J.N.Z.W. says his fiancée was too ill to get out of bed but her doctors did not want to hospitalize her. [ 22 ] J.N.Z.W. was not very forthcoming in explaining why it fell to him alone to care for his fiancée. She works full time as a family support worker and part time at other jobs. His partner only took 2 – 2.5 months off work for medical reasons but has otherwise continued to work 2 – 3 jobs. She has children whom she supports. She pays the rent on their shared accommodation from her work.

J.N.Z.W.’s fiancée’s work history is inconsistent with her being significantly disabled. [ 23 ] J.N.Z.W.’s fiancée did not testify. No medical evidence was adduced setting out the extent of her illness, any corresponding disability, or her dependence on J.N.Z.W. to meet her needs. I cannot take judicial notice that an iron deficiency is a chronic or disabling condition. When asked about medical evidence detailing his partner’s level of dependence on him, J.N.Z.W. said he had no evidence but he likes to “help her out”. He says his fiancée had a hysterectomy recently which is supposed to help her regain her energy.

[ 24 ] J.N.Z.W. explained that he also prefers not to work out of town because he “misses his family”. J.N.Z.W. says the last time he worked out of town, he was sent a video of his son riding a bike and realized he “missed that” and decided not to work out of town again. However, J.N.Z.W. has not spent a significant amount of parenting time with his son despite working in town and S.K.W. being generous with his parenting-time requests. J.N.Z.W. talks to A.J.N.W. on the phone from time to time and periodically takes him for the weekend.

On average, he sees A.J.N.W. 3 – 4 days a month by his own choosing. [ 25 ] In 2020, J.N.Z.W. obtained a job as a “semi local” logging-truck driver for [omitted for publication]. He worked there for around five months but was laid off. He has otherwise continued working part time at [omitted for publication] and earns extra income assisting an elderly man as a companion 3 – 4 times a week.

As of the date of hearing, he was looking for work and hoped to get a job as a local delivery driver earning $52,000 a year. [ 26 ] J.N.Z.W. was cross-examined on a number of current high-paying job postings for which he is qualified. He offered a multitude of explanations as to why he would not apply for these jobs. With respect to a current job posting at [omitted for publication], J.N.Z.W. says he worked there for six months in 2018 but quit because he was unable to perform some necessary online computer training due to a concussion.

He was not interested in a job at [omitted for publication] because he was opposed to doing out-of-town work. When asked about working for [omitted for publication], J.N.Z.W. suggested the work was unsuitable because the company was “all over the place” and would “steal loads off blocks people left behind”. He says he left the company previously because of that alleged misconduct. [ 27 ] With respect to a number of other jobs, J.N.Z.W. says he has been putting out resumes all around town but is not getting called back; he is not sure why.

He trained in a driver position with [omitted for publication] but says he lost the job after one week because he was “not qualified to turn valves”. He acknowledges he would have far greater employment opportunities if he was willing to work in a position that took him out of town. [ 28 ] S.K.W. says that during their relationship J.N.Z.W. would routinely bounce around jobs. The longest job he ever held was two years. He always had excuses why he would quit or be released. She recalls he would often call in sick or make excuses not to go to work which would cost him his employment.

In the first year after their separation, J.N.Z.W. went through ten jobs. She notes that he fell behind on child support and when FMEP started garnishing his wages in 2018, he quit pursuing skilled work in favour of low paying part-time jobs and staying home. [ 29 ] J.N.Z.W. has a legal obligation to support his child. His explanations for quitting or not pursuing work as a long-haul truck driver are not compelling. His affinity for his new spouse does not outweigh his obligations to A.J.N.W.

He is not incapable of performing the work and there is no evidence the proposed driving jobs would be onerous or unreasonably interfere with the exercise of his parenting or family responsibilities. It is not contested there are numerous job opportunities available to J.N.Z.W. in his field; he just prefers not work for certain employers or jobs which take him out of town.

The timing of J.N.Z.W.’s decision to quit driving to become a grocery clerk, in the wake of FMEP garnishing his wages, suggests J.N.Z.W. is also choosing to be underemployed because he cannot enjoy the full benefit of his income, part of which is required to be available for A.J.N.W.’s support. [ 30 ] If he so chose, J.N.Z.W. could be earning $62,000 per year or more in the truck-driving field. In my view it is appropriate to impute the full $62,000 income to him as contemplated in the Separation Agreement and on that basis, confirm the $600 monthly child- support payment set out in that Agreement.

Issue #4: What special and extraordinary expenses ought to be paid by J.N.Z.W.? [ 31 ] The Separation Agreement provides that the parties are to share the costs of special or extraordinary expenses in proportion to each of their own Guideline incomes. J.N.Z.W. is to pay his share of those expenses on the first day of each month commencing June 10, 2017. The Agreement also states that the parties are to review special and extraordinary expenses by June 30 of each year and any party who has not made their respective contribution must reimburse the other party within 30 days.

The parties agreed that daycare and dental care are special or extraordinary expenses. [ 32 ] S.K.W. works for [omitted for publication] as a Health and Safety Coordinator. She earned $51,364 in 2019 according to her tax return. Extrapolating her 2020 income from her October 31, 2020 pay statement, she is on track to earn $51,118 this year. Based on their respective incomes, under the terms of the Separation Agreement, J.N.Z.W. is required to pay 55% and S.K.W. is required to pay 45% of A.J.N.W.’s special and extraordinary expenses.

Notwithstanding, S.K.W. only seeks a 50% contribution from J.N.Z.W. [ 33 ] I find there is no basis for varying the terms of the Separation Agreement relating to J.N.Z.W.’s obligation to pay special and extraordinary expenses. There was no agreement that the proceeds of sale of the family home would be applied towards those expenses. The income imputed to J.N.Z.W. exceeds S.K.W.’s income. [ 34 ] S.K.W. has paid $10,620 in daycare costs since separation and seeks a 50% contribution from J.N.Z.W., being $5,310, as well as a 50% contribution going forward.

However, pursuant to a consent order proposed by S.K.W., J.N.Z.W. may contribute his 50% of daycare expenses in kind by providing childcare for A.J.N.W. a minimum of two days a week at times S.K.W. is working. No evidence was adduced as to the flexibility of S.K.W.’s childcare arrangements, specifically, whether she can go “day-to-day” as required or if she must commit to longer periods of childcare in order to preserve A.J.N.W.’s spot.

As such, I find it appropriate that any consent order permitting J.N.Z.W. to provide childcare in lieu of payment of daycare expenses requires the written agreement of the parties as to the dates, times and frequency of such childcare. [ 35 ] J.N.Z.W. shall pay $302.52, being 50% of $604.54, for A.J.N.W.’s dental expenses.

Although it is not contemplated in the Separation Agreement, J.N.Z.W. consents to an order requiring him to contribute $50 every two weeks to A.J.N.W.’s RESP. [ 36 ] While J.N.Z.W. agreed in principle to pay half of A.J.N.W.’s $120 monthly MMA expenses, those expenses are not “special or extraordinary expenses” as contemplated in s. 7 of the Guidelines or the Separation Agreement, were not the subject of S.K.W.’s counterclaim, and will not be the subject of an order. CONCLUSION

[ 37 ] For the reasons set out above, I make the following orders: 1. J.N.Z.W.’s application to vary the Separation Agreement is dismissed. The child support provisions of the Separation Agreement are confirmed and restated as follows: a. J.N.Z.W. is found to be a resident of British Columbia and is imputed to have a Guideline income of $62,000 for the years 2017 to present. b.

J.N.Z.W. will pay to S.K.W. the sum of $600 per month for the support of the child, A.J.N.W., commencing on July 1, 2018, and continuing on the first day of each and every month thereafter, for as long as the child is eligible for support under the Family Law Act or until further court order. 2. By consent, J.N.Z.W. shall contribute $50 bi-weekly to A.J.N.W.’s RESP account commencing May 1, 2021, and payable every two weeks thereafter until A.J.N.W. is no longer eligible for support or further court order. 3.

J.N.Z.W.’s arrears of special and extraordinary expenses as of February 1, 2021, are as follows: a. $302.52 for A.J.N.W.’s dental expenses; and b. $5,310 for A.J.N.W.’s daycare expenses. 4. By consent, the Separation Agreement is varied as follows: J.N.Z.W.’s obligation to pay A.J.N.W.’s daycare expenses shall be suspended for any time period where the parties agree in writing that J.N.Z.W. may provide childcare in lieu of payment of such childcare expenses and J.N.Z.W. provides such childcare as agreed. 5.

By consent, the parties will: a. put the best interests of A.J.N.W. before their own interests; b. encourage A.J.N.W. to have a good relationship with the other parent and speak to him about the other parent and that parent’s partner in a positive and respectful manner; and c. make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication, or argument in front of A.J.N.W. ___________________________ The Honourable Judge C. Malfair Provincial Court of British Columbia