C.B. v. M.B. Date:, 2014 BCPC 75

Citation: C.B. v. M.B. Date: 20140502 2014 BCPC 0075 File No: 52970 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.B. APPLICANT AND: M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE

Appearing in person: Ms. B. Appearing in person: Mr. B. Place of Hearing: Nanaimo , B.C. Date of Hearing: April 25, 2014 Date of Judgment: May 2, 2014 The Application [ 1 ] Mr. B. [“the Applicant”] applies to vary a consent order made by His Honour Judge Doherty of this court on November 20, 2012. Each of Ms. B [“the Mother”] and the Applicant were represented by counsel at the hearing before Judge Doherty.

Neither was represented by counsel at the hearing before me. [ 2 ] Judge Doherty’s order requires the Applicant to pay: a. child support of $264 per month for his step-son, C. [“the Son”], now age 15; b. child support of $736 per month for his daughter, C. [“the Daughter”], now age 12; c. 25% of special or extraordinary expenses for the Son; d. 50% of special or extraordinary expenses for the Daughter. [ 3 ] Judge Doherty’s order was premised on imputed incomes for the Applicant and the Mother of $78,676 and $41,600, respectively. As will be seen, each of them now earns significantly less than that.

As a consequence, the court has jurisdiction to review and reassess the Applicant’s child-support obligations under section 152(2) (

a) of the Family Law Act SBC 2011, c 25. The Facts [ 4 ] The Mother is the mother of both the Daughter and the Son. The Son’s biological father is Mr. L. [ 5 ] The Applicant and the Mother married in September, 2001, when the Son was 2, and separated in January, 2007, when the Son was 7 and the Daughter was 4. They are now divorced. The Mother has since remarried, to Mr. G. The Son and the Daughter reside with them.

The Mother does not plan to have any more children. [ 6 ] In an affidavit sworn on June 1, 1999, the Applicant described his relationship with the Son in the following terms: Although I am not the biological father of [the Son], [the Mother] and I have cohabited since [the Son] was one year old, and I would like to retain my close relationship with [the Son]. Both [the Mother] and I were equally involved in the children’s upbringing and care since we began cohabiting, in [the Son’s] case, and since birth, in [the Daughter’s] case.

I was very involved with the children’s care since the date of separation and had shared care for several months. [The Son’s] biological father is involved with the Son and they see each other on alternate weekends. I fully support this arrangement continuing. The Applicant and Mr. L continue to have parenting time with the Son on alternate weekends. [ 7 ] The Applicant is employed as a manager in the retail grocery industry. During the period 2000–2007, when he lived with the Mother, he worked as a store manager in several different small communities in British Columbia.

When he met the Mother, his annual salary was about $29,000. When they separated, his annual salary was about $45,000. During the same period, the Mother earned about $25,000-$30,000 annually as a care aide. When they separated, the family income of about $75,000 was sufficient to provide a comfortable standard of living for a family of four. [ 8 ] The Applicant has prospered since he and the Mother separated. He was promoted to the position of regional manager, in which he earned employment income (salary and bonuses) of $85,820 in 2012.

However, in July, 2013, his employer decided to consolidate several regions, as a result of which the Applicant’s position as regional manager ceased to exist and he returned to his former position of store manager. He now earns a base salary of $65,000 per year, and is likely to earn a bonus each year, although the amount of the bonus is unpredictable. He says that a reasonable estimate of his annual income-earning capacity is $65,000-$70,000. The Mother suggests that $70,000-$75,000 would be a more reasonable estimate. [ 9 ] The Mother now earns about $34,000 annually as a licensed practical nurse. [ 10 ] Mr.

L’s ability to provide for the Son’s support is a factor which must be considered on this application. In U.V.H. vs M.W.H. 2008 BCCA 177 ; [2008] BCJ #717; 86 BCLR (4 th ) 199; 292 DLR (4 th ) 433 @ paragraph 38, the Court of Appeal said that trial judges

should decline to assess the support obligations of a step-parent unless: (

i) the biological parents are brought before the court and made parties to the proceeding; or (ii) “… other evidence satisfactory to the court relating to that parent's status …” is presented to the court. In this case, the facts pertinent to Mr. L are not in dispute. Mr. L earned taxable income of $17,700 (comprised of employment income of $12,600 and workers’ compensation benefits of $5100) in 2013. Neither the Applicant nor the Mother suggested to me that Mr. L is capable of earning more. In the absence of such a suggestion, I do not think it necessary to bring Mr.

L before the court, and I will proceed to decide the case on that basis. [ 11 ] Mr. L pays the Mother $188 per month on account of child maintenance for the Son. The Guideline figure for support of one child by a parent with an income of $17,700 is $146 per month. It follows that Mr. L is making an appropriate contribution to the Son’s support. [ 12 ] Mr. G earns about $65,000 per year as a pipefitter. He pays $1987 per month to a former spouse as child maintenance for his three children from that previous relationship. The child-support payments are not deductible.

As a result, he pays tax on an income of $65,000, but receives only about $41,000 before tax after allowance for his child-support payments. As a rough approximation, the after-tax income available for him to spend is about $20,000 annually. The Applicant’s Obligation to Pay Support for the Daughter [ 13 ] The Applicant does not dispute his obligation to pay support for the Daughter, who is his biological daughter. That obligation is imposed by

section 147 of the Family Law Act , and is manifest. The Applicant’s Obligation to Pay Support for the Son [ 14 ] The Applicant’s obligations to the Son arise from sections 147(4)–147(5) of the Family Law Act :

(4) A child's stepparent does not have a duty to provide support for the child unless (

a) the stepparent contributed to the support of the child for at least one year, and (

b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty (

a) is secondary to that of the child's parents and guardians, and (

b) extends only as appropriate on consideration of (

i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and (ii) the length of time during which the child lived with the stepparent. [ 15 ] The Applicant concedes that each of the two threshold conditions set out in section 147(4) are met in this case, and that he may, therefore, be responsible to pay support for the Son. However, he points out that there have been many changes in his life, and in the life of the Mother. He questions the justice of an order which will require him to continue to pay maintenance until the Son becomes an adult.

In my view, there are two answers to the Applicant’s question: a. The collective judgment of the Legislature, the courts and the citizenry is that the welfare of children is an imperative of primary importance, and that a person who accepts parental responsibility in relation to a child cannot divest himself of that responsibility at will. We accept that many intimate relationships do not last, and that intimate partners may feel a need to move on in their lives. Generally speaking, we, as a society, are not critical of that.

However, we do expect, and require, that adults honour their obligations to children, regardless of the state of relations among the adults. As noted below, those obligations fall first upon the parents (biological or adoptive). However, step-parents are often important, financially and emotionally to children. Once accepted, the responsibilities of a step-parent cannot be surrendered or avoided at the pleasure of the step-parent. b. The governing statute and jurisprudence provide no basis upon which I could excuse Mr. B from the support obligations which they impose.

It necessarily follows that the Applicant has an ongoing obligation to pay support for the Son. Quantum of Support [ 16 ]

Section 150 of the Family Law Act provides that, with certain exceptions (none of which apply in this case):

If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines. [ 17 ] The approach to be taken in a case of this kind was stated by the Court of Appeal in U.V.H. vs M.W.H. 2008 BCCA 177 ; [2008] BCJ #717; 86 BCLR (4 th ) 199; 292 DLR (4 th ) 433 @ paragraph 41 (underlining added): Given the "children-first" perspective of the Guidelines …, primacy should be given to the children's standard of living.

Where for example the stepparent provided a standard to the children during the period of cohabitation that was materially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find it appropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, "on top of" the other parents' support.

However, where the 'piling' of Guidelines amounts would result in a standard beyond one that is reasonable in the context of the standard the children have previously enjoyed, such a 'windfall' or "wealth transfer" … is unlikely to be "appropriate". At the other end of the spectrum, where the three (or more) parents' Guidelines "contributions" together are needed to provide the children with a reasonable standard of living, then both the stepparent and the non-custodial parent(

s) may well be required to pay full Guidelines amounts . Or, where one of the natural or adoptive parents is not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has left it to the judgment of trial and chambers judges in the first instance to fashion orders that are "appropriate" …. At the same time, the Guidelines system is not thereby jettisoned in favour of a wide open discretion. The inquiry must, like the Guidelines themselves, focus on the children and their needs. I interpret this to mean that: a.

The primary objective is to ensure, so far as practicable, that the children will enjoy a reasonably consistent, and reasonably adequate, standard of living, unaffected, so far as is practicable, by changes in the relationships among their parents and step-parents. b. The primary financial responsibility for that rests upon the parents (biological or adoptive). If the parents are able to provide the appropriate standard of living from their own resources, step-parents should not be asked to contribute. c.

If the parents lack the financial capacity to provide the appropriate standard of living for the children, step-parents who have a duty, under section 147(4), to provide support may be ordered to make a monthly contribution. The contribution should be the lesser of: (

i) the amount which, when added to the contributions reasonably to be expected from the parents and from other step-parents, will provide the appropriate standard of living; and (ii) the Guideline amount determined by reference to the step-parent’s income-earning capacity. [ 18 ] In considering such questions, it may be appropriate to take into account the income of a parent’s new spouse. In this case, if Mr. G were earning a very large income and providing a very comfortable lifestyle for the Son and the Daughter, it might be inappropriate to order the Applicant to pay support for the Son.

However, it would be appropriate, even in that circumstance, to order the Applicant to pay support, in the amount mandated by the Guidelines, for the Daughter, because: (

i) he is the Daughter’s parent; and (ii) a parent carries primary responsibility for the support of his child. [ 19 ] I analyse the problem in this way: a. The upper end of the range of family incomes earned by the Mother and the Applicant during the time that they lived together was about $75,000. Consumer price inflation during the interval between 2007 and 2014 has been very low. A standard of living comparable to that enjoyed by the children while the Mother and the Applicant were together could probably be purchased today with a pre-tax annual income of about $80,000.

However, as noted, that represents the upper end of the range of the children’s life experience. I think that it would be fair to do what can be done, within the constraints of the Guidelines, to assist the Mother and Mr. G to attain a pre-tax annual family income of $70,000, representing, in today’s dollars, a lifestyle more representative of the median lifestyle enjoyed by the family during the period during which the Mother and the Applicant lived together. b. The Mother earns about $34,000 annually. Mr. L contributes $2256. It is appropriate to recognize that Mr.

G contributes financially to the household expenses, as he should - after all, he lives there. Given his other obligations, it is apparent that Mr. G’s contribution is unlikely to exceed $20,000. That leaves a balance of a little over $13,000 annually, to be funded, subject to the constraints imposed by the Guidelines, by contributions from the Applicant. c. I assess the Applicant’s present pre-tax income-earning capacity at $70,000.

The Guideline figure for two children at that income level is $1062 per month, or $12,744 annually, a little less than the amount necessary to bridge the gap between the annual pre-tax income of Ms. B’s household and that which would be necessary fund a standard of living comparable to that which they enjoyed when the Applicant and the Mother lived together.

d. Because child support at the figure indicated by the Guidelines is insufficient to fund the gap, the Applicant should be ordered topay the Guideline figure, but not more. Accordingly, I would vary Judge Doherty’s order by substituting an order for child support in the amount of $1062 per month for bothchildren. [20] In this case, the Mother did not apply for an increase in the amount of child support. It may seem anomalous to award anincrease in support when no application was made for such an increase.

However, in Johnston vs Embree 2013 BCCA 74; [2013] BCJ #262; 41 BCLR (5th) 239; 26 RFL (7th) 29, the Court of Appeal stated: … three fundamental principles: first, child support is the right of the child, not the parents; second, the child is entitled to support in theamount stipulated by the Guidelines; and third, the court is charged with ensuring a child's right to Guideline support is enforced. I consider myself to be bound by those principles to make an appropriate award on the evidence, regardless of the positions taken by theparties.

Special or Extraordinary Expenses [21] The Mother says, and the Applicant does not dispute, that the Daughter incurs a number of special and extraordinary expensesbecause of medical conditions from which she suffers. I was given no particulars of those expenses. I was not told that the Son incursany special or extraordinary expenses. [22] Section 7(2) of the Guidelines provides: The guiding principle in determining the amount of [special or extraordinary expenses] is that the expense is shared by the spouses inproportion to their respective incomes ….

Given their relative incomes, the Applicant should pay two-thirds of each extraordinary expense and the Mother should pay one-third. Given the principles stated in U.V.H. vs M.W.H., and Mr. L’s very limited financial capacity, that apportionment should apply equally toboth children.

Effective Date of the Order [23] The governing principle was stated in D.B.S. vs S.R.G. 2006 SCC 37 , [2006] 2 S.C.R. 231 @ paragraph 5: ... an award [of child maintenance] should generally be retroactive to the date when the recipient parent gave the payor parent effectivenotice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility. In this case, the order which I make represents an increase in the support payable by the Applicant. No such increase was sought by theMother. For that reason, the increase should not be retroactive.

Disposition [24] The order of Judge Doherty pronounced on November 20, 2012 is varied, effective on May 2, 2014 by: a. rescinding the child-support provisions of Judge Doherty’s order; and b. substituting an order that the Applicant pay to the Mother child support in the amount of $1062 per month, plus two-thirds ofspecial or extraordinary expenses, for both children, commencing June 1, 2014 and continuing until further order of this court. [25] It is clear that future changes in the positions of the parties will occur.

Changes in relative income levels, or in the needs of thechildren, may render it appropriate to make further adjustments to the Applicant’s support obligation. Sooner or later, the children willbecome self-sufficient adults, and no longer eligible for support. I suggest that it would be useful and appropriate for each of theApplicant, the Mother, Mr. L and Mr. G to provide each of the others with copies of his or her notice of assessment from CanadaRevenue Agency each year.

That exchange should be followed by a discussion among the parties, based on the principles stated in thisjudgment, with a view to making appropriate adjustments to the Applicant’s payment obligations. If the parties are unable to agree, anyof them may make an application to the court to resolve the dispute. ___________________________________ T. Gouge, PCJ May 2, 2014