M.E. v. D.G., 2021 BCPC 154

Citation: M.E. v. D.G. 2021 BCPC 154 Date: 20210527 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.E. APPLICANT AND: D.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.J. JACKSON Counsel for the Applicant: I. Lawson Counsel for the Respondent: J. Davis Place of Hearing: [Omitted for publication] , B.C.

Date of Hearing: January 26, 27, May 13, 2021 Date of Judgment: May 27, 2021 HISTORY [ 1 ] The parties started a relationship in December of 1998. There are three children born of the relationship: A.G. born [omitted for publication], C.G. born [omitted for publication], and, B.G. born [omitted for publication]. A.G. is now an adult and is not subject of these proceedings concerning parenting time [ 2 ] D.G. is a journeyman mechanic. He was initially employed in his parents’ garage.

He went to school while M.E. was pregnant with their son A.G. and then qualified as a journeyman after four years. [ 3 ] In 2014-2015, the parties bought the garage from D.G.’s parents. For approximately eighteen months before the purchase, M.E. had worked with her mother-in-law learning the books. M.E. then worked in the business ordering parts, doing the books, and generally running the office. [ 4 ] The relationship deteriorated to the point that, by August 2018, M.E. told D.G. that she wanted to separate.

The parties did separate although they continued to both work for the family business, [omitted for publication]. [ 5 ] This court, in an ex parte order dated March 2, 2020, has stated that the parties separated September 6, 2018. There have been failed attempts at reconciliation after that date. [ 6 ] The end of the marriage was volatile. Both parties complained to the police about the actions of the other. The work relationship finally ended in January 2020. [ 7 ] From September 2018 to present, the children have lived with their mother.

For a period, M.E. relocated from the [omitted for publication] area and D.G. brought an application to have the children returned to [omitted for publication]. [ 8 ] On September 10, 2020, M.E. filed an amended application for guardianship, parenting time, parenting responsibilities, child support, spousal support, and a protection order. [ 9 ] On February 5, 2021, D.G. filed a reply disagreeing with all relief sought and claiming: guardianship, parenting time, and parenting responsibilities. [ 10 ] There is a Supreme Court of British Columbia Prince George action (file [omitted for publication]) that deals with matrimonial property.

Parenting time, parenting responsibilities, child support, and spousal support remain to be determined by this court. [ 11 ] A “ Views of the Children ” report for the two younger children was ordered on August 26, 2020. [ 12 ] This matter came on for trial on January 26 and 27, 2021. The trial was adjourned to May 13, 2021 to await the receipt of the Views of the Children report, to hear evidence in response to that report, and to hear evidence on the issues of child support and spousal support for M.E.

ISSUES [ 13 ] Both counsel advised that the issues remaining for this court are parenting time for D.G., child support (in what amount and for what period), and spousal support for M.E. EVIDENCE AND SUBMISSIONS CONCERNING PARENTING TIME [ 14 ] Both parties testified to a high level of hostility between them, including various incidents involving police investigations. Both parties also blame the other for the collapse of the family business after the separation.

Both parties complained bitterly about the difficulty they have in communicating with the other. [ 15 ] Despite the acrimony, both parties’ ultimate position on the question of parenting time is to leave M.E. as the primary caregiver with parenting time for D.G. The dispute is over how to implement the positions of their two teenage sons as recorded in the Views of the Children report. [ 16 ] The

summary of the Views of the Children report states that M.E. wants D.G. to have parenting time every second weekend. It continues that D.G. wants every second weekend and to have mid-week parenting time after school. [ 17 ] Their son C.G.’s position is summarized in the Views of the Children report as wishing to spend every second weekend during the day only at his father’s house. He also wanted time with his father without his father’s girlfriend being present. [ 18 ] Their son B.G.’s position is summarized as wishing to spend every second weekend at his father’s house with one overnight visit.

He would like to spend time with his father without his father’s girlfriend being present. He also would like to connect with his father during the school week, perhaps by playing PlayStation online together.

[ 19 ] D.G. testified that his girlfriend does not spend a lot of time with him when his sons are present. [ 20 ] M.E.’s counsel submitted that because their sons are teenagers it would be best if parenting time were flexible. To that end, it was submitted that the court order reasonable parenting time as agreed by the parents.

M.E. had earlier testified that she opposed having the boys have different schedules of time with their father. [ 21 ] D.G.’s counsel submitted that B.G. should spend every second weekend with his father from Saturday at 10:00 a.m. until Sunday at 7:00 p.m.; and C.G. should spend every second weekend with his father on Saturday from 10:00 a.m. until 7:00 p.m. and on Sunday from 10:00 a.m. until 7:00 p.m. It was also submitted that it should be open to C.G. to spend Saturday night with his father if he wished. Finally, it was submitted that B.G. should have parenting time by phone or electronically on Wednesdays.

D.G. testified that he had stopped requesting parenting time as the requests were always denied or ignored. Conclusion Concerning Parenting Time [ 22 ] In light of the high conflict between the parents, I must conclude that specified parenting time is necessary. In light of the ages of their two sons, their views are very important. Accordingly, there shall be defined and structured parenting time for D.G. based on the summarized positions of the two boys. EVIDENCE AND SUBMISSIONS CONCERNING CHILD SUPPORT [ 23 ] On January 8, 2021, D.G. filed a copy of his financial statement from the Supreme Court file.

It was marked as Exhibit 2 in this proceeding. He also filed an updated financial statement on May 10, 2021. It was not marked as an exhibit. [ 24 ] D.G. testified that he estimates his 2021 income will be approximately $46,000 based on his contract for eight months employment with [omitted for publication. He confirmed that: his income in 2018 was $93,400 from operating [omitted for publication].

He confirmed that his income in 2019 was $103,960 from operating [omitted for publication]. [ 25 ] D.G. testified that his income in 2020 was $28,560 because of the collapse of [omitted for publication]. [ 26 ] In cross-examination, D.G. admitted that he had approximately $15,000 in a bank account from his snowplowing business. He added that he expected to clear $5,000 from that business after paying wages and expenses. [ 27 ] He stated in cross-examination that he sold two snowplows from [omitted for publication] to his new company [omitted for publication].

That transaction was explained as necessary to obtain cash to meet the mortgage on [omitted for publication]. [ 28 ] In cross-examination, D.G. admitted he was qualified as a journeyman mechanic and could make higher wages as a mechanic than working in construction for [omitted for publication].

He explained that he did not work as a mechanic because he was both angry because M.E. had destroyed [omitted for publication] by refusing to sign cheques and because he was too old to do mechanic work anymore. [ 29 ] In cross-examination, D.G. stated that he did not understand what it meant when he estimated his 2020 income to be $103,960 in Exhibit 2 page 4 line 11. [ 30 ] In cross-examination D.G. stated, concerning his 2020 income, that the $14,000 listed as other income was CERB from the Federal government but he had no such income in 2021. [ 31 ] M.E. testified that her estimate of her income for 2021 would be $31,411.

She added that she is studying to be a Social Worker and expects to start that job in September. [ 32 ] M.E. filed her B.C. Supreme Court financial statement in this court in January 2021. It was marked as Exhibit 1 in these proceedings. From the various financial statements and testimony, the parties’ income were stated to be as follows: D.G. M.E. 2017 $ 87,400 2017 $ 77,850 2018 $ 93,400 2018 $ 79,300 2019 $103,960 2019 $ 63,390 2020 $ 28,560 2020 $ 31,411 2021 $ 46,091 2021 $ 31,411 [ 33 ] M.E.’s counsel submitted that this court should not find D.G. to be underemployed and impute income.

While it was suggested that D.G. was underemployed, it was also submitted that the court should use the average income for the last three years. In the alternative, it was suggested the court use his 2021 estimate of $46,091 plus Employment Insurance receipts. These receipts were estimated by M.E.’s counsel to be $9,200. [ 34 ] Counsel for D.G. submitted that there should be no retroactive child support ordered as the parties had reconciled for short periods in 2019, nor were there any requests for increases during those years.

It was submitted that the court should order child support on the current year estimate of $46,091 plus the estimated Employment Insurance receipt of $9,500. In the alternative, it was submitted that the court should estimate D.G.’s income based on his hourly wage of $32.96 times 40 hours/week times 50 weeks. This was suggested to be equal to $65,920. [ 35 ] It was agreed between the parties that D.G. had paid child support since the separation in September 2018 at a rate of $600/month. Conclusion concerning child support

[ 36 ] It is clear that D.G. is under-employed as a self-described “grunt” for [omitted for publication]. His job skills could earn an income higher than it is this year. However, no evidence was lead concerning what income a journeyman mechanic would average. His income while [omitted for publication] was operating is not an accurate basis for what a mechanic should earn as an employee.

His income in 2017 through 2019 when considered with the income for M.E. for the same period is obviously income splitting from the profits of the business that employed four mechanics. [ 37 ] Accordingly, the court must estimate his income for 2021. M.E.’s counsel suggested averaging the last three years.

I find that would create an artificially high estimate as the income has declined since the collapse of [omitted for publication]. [ 38 ] M.E.’s counsel suggested in the alternative to use D.G.’s estimate plus counsel’s estimate of Employment Insurance for the four months after the end of the [omitted for publication] contract. There was no evidence tendered to support counsel’s estimate of the Employment Insurance receipts. [ 39 ] There were three children of the union until A.G. turned 19 in [omitted for publication] 2019. The parties separated in September 2018.

D.G. paid child support at the rate of $600 per month from separation onwards. This court shall use the income listed in D.G.’s tax returns and financial statement for 2018 through 2020. [ 40 ] For 2018, D.G.’s shall pay support for three children for October, November, and December. With an income of $93,400 the monthly child support is $1,862/month which comes to $5,586 in total for 2018 ($1,862 x 3). Subtracting the $1,800 in child support actually paid ($1,800 x 3) leaves arrears for the period of $3,786 . [ 41 ] For 2019, D.G. shall pay for three children for January through September.

With an income of $103,960 the monthly child support is $2,033/month which comes to $20,330 in total for January through October 2019 ($2,033x10). Subtracting the $6,000 in child support actually paid ($600x10) leaves arrears for the period of $14,330 . [ 42 ] For the balance of 2019, D.G. shall pay for two children (November and December). With an income of $103,960 the monthly child support is $1,562/month which comes to $3,124 in total for November and December 2019 ($1,562x2).

Subtracting the $1,200 in child support actually paid ($600x2) leaves arrears for the period of $1,924 . [ 43 ] For 2020, D.G. shall pay for two children. With an income of $28,560 the monthly child support is $447/month which comes to $5,364 in total for 2020 ($447x12). Subtracting the $7,200 in child support actually paid ($600x12) results in an overpayment by D.G. of $1,836 . [ 44 ] For 2021, I impute income to D.G. on the following basis. In his financial statement filed on May 10, 2021, he attached pay stubs from [omitted for publication] on pages 64 through 66.

These bi-weekly salaries are $2,702, $2,735, and $2,636. The rough average of these amounts is $2,700 every two weeks. I impute income to D.G. for 2021 as follows, $2,700 x 26 pay periods to equal $70,200 in total. With an income of $70,200 the monthly child support is $1,086/month which comes to $5,430 for January through May 2021 ($1,086x5). Subtracting the $3,000 in child support actually paid ($600x5) leaves arrears for the period of $2,430 . [ 45 ] The total arrears are $3,786 plus $14,330 plus $1,924 minus $1,836 plus $2,430 equalling $20,634 .

This could be set off against the matrimonial property division currently before the court. What the matrimonial assets are, or what the division might be, are as of yet unknown. [ 46 ] This court shall order D.G. to commence paying the arrears by payments of $200 per month commencing January 1, 2022, and continuing until C.G. ceases to be a child of the marriage.

If the arrears are not already extinguished before C.G. ceases to be a child of the marriage, the payments of arrears shall increase to $600 per month. [ 47 ] Based on an estimated annual income of $70,200 for D.G. in 2021, he should pay child support for two children at the rate of $1,086 per month commencing June 1 st , 2021 and continuing until varied by the court. EVIDENCE AND SUBMISSIONS ON SPOUSAL SUPPORT [ 48 ] M.E. sought spousal support on both a compensatory and non-compensatory basis. The objectives of spousal support are laid out in

section 161 of the Family Law Act . Briefly, these are to recognize economic advantages or disadvantages of the spouses arising from the relationship, apportion financial consequences for the care of the children; relieve any economic hardship of the spouses arising from the marital breakdown, and promote economic self-sufficiency of each spouse. [ 49 ]

Section 162 of the Family Law Act lays out the factors the court is to consider in quantifying spousal support. These include the length of the relationship and the functions performed by each spouse during the period they lived together. [ 50 ]

Section 166 of the Family Law Act directs the court to not consider misconduct of either party, excepting if that conduct unreasonably caused or prolonged the need for spousal support or affected the ability of the payor spouse to provide spousal support. [ 51 ] There was some evidence lead touching on the objectives and factors found in sections 161, 162, and 166 of the Family Law Act .

There was insufficient evidence provided to this court to consider fully the question of spousal support. [ 52 ] As well, as the division of matrimonial property remains to be determined in the Supreme Court of British Columbia, I find that the question of spousal support would be more efficiently considered in conjunction with the matrimonial property issue in the Supreme Court. DECISION [ 53 ] M.E. and D.G. are joint guardians of the children:

C.G., born [omitted for publication], and B.G., born [omitted for publication] (the “Children”). [ 54 ] M.E. is the primary caregiver for the children with all parental responsibilities. She shall also have all parenting time except that specifically granted to D.G. [ 55 ] Commencing June 5, 2021, D.G. shall have parenting time with the children as follows:

a) With C.G. every second weekend from 10:00 a.m. until 7:00 p.m. on Saturday and from 10:00 a.m. until 7:00 p.m. on Sunday. It is specified that C.G. may spend Saturday night at his father’s home if he wishes.

b) With B.G. every second weekend from 10:00 a.m. on Saturday until 7:00 p.m. on Sunday. Also two hours each week electronically such as by playing video games. [ 56 ] Having imputed income to D.G. for 2021in the amount of $70,200, he shall pay to M.E. for the children, support in the amount of $1,086 on the first of each month commencing June 1 st , 2021, until varied by this court or by agreement. [ 57 ] Arrears of child support payable by D.G. is fixed at $20,634 as of this judgment.

Commencing on January 1, 2022, D.G. shall pay $200 on the first of each month until the arrears are extinguished or the child C.G. ceases to be a child of the marriage after which D.G. shall pay $600 on the first of each month. [ 58 ] Pursuant to

section 225 of the Family Law Act , the parties shall communicate with each other only in writing, which may include email or text messaging and only for the purposes of communicating issues with respect to the children. The parties may also communicate through legal counsel. They may be physically in the same location for court appearances and examinations for discovery. [ 59 ] The parties shall make a real effort to maintain polite, respectful communications with each other. [ 60 ] The parties shall not:

a) Question the children about the other parent or time spent with the other parent beyond simple conversational questions:

b) Discuss with the children any inappropriate court or legal matters; or

c) Blame, criticize or disparage the other parent to the children. [ 61 ] The parties shall encourage their respective families to refrain from any negative comments about the other parent and his or her extended family and from discussions in front of the children concerning family issues or litigation. __________________________ W.F.M. Jackson, P.C.J.