N.M.B. v. G.J.B. Date:, 2016 BCPC 272

Citation: N.M.B. v. G.J.B. Date: 20160419 2016 BCPC 272 File No: 6627 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.M.B. APPLICANT AND: G.J.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Applicant: A.M. Gaudette

Counsel for the Respondent: J.J. Peterson Place of Hearing: Vernon , B.C. Date of Hearing: April 14, 2016 Date of Judgment: April 19, 2016 [ 1 ] This is an application by Mr. B. for an order varying an order made by Takahashi P.C.J. on May 15, 2015. The variation he seeks is a reduction or cancellation of the child support and spousal support amounts, and a cancellation of the arrears. [ 2 ] The application is based on the change in Mr. B.'s circumstances, when he was laid off from his employment as an ironworker in September, 2015. BACKGROUND [ 3 ] Mr. and Ms. B. were in a relationship for fifteen years.

They had one child, a daughter named T.B. who was born [omitted for publication]. [ 4 ] They separated in January 2013. [ 5 ] Ms. B. and the Director under the Child, Family and Community Service Act, entered into a Voluntary Care Agreement with respect to T.B. The date of that agreement is April 24, 2015. [ 6 ] The parties sold the matrimonial home. Mr. and Ms. B. each have a claim to half the proceeds. The proceeds amount to $11,692.21. A law firm in Vernon is holding that amount in trust for them. [ 7 ] In September 2014, Wyatt P.C.J. made an order with respect to child support and spousal support.

Takahashi P.C.J. varied her order on March 27, 2015 by increasing the child support amount to $586 per month, effective January 1, 2015. [ 8 ] Takahashi P.C.J. made a second order with respect to this matter on May 15, 2015. At that time, he ordered that Mr. B. pay spousal support of $1019 per month, effective January 1, 2015. CURRENT CIRCUMSTANCES [ 9 ] Ms. B. suffers from a number of medical conditions. She is on long-term disability due to mental health and back problems. She testified that she has received no child support or spousal support payments since September 2015.

Her sworn financial statement, filed on April 14, 2016, indicates that her annual income is $7,206. [ 10 ] Mr. B. is a structural high-rise ironworker. He is a member of Union Hall [omitted for publication], and is unable to take iron work outside of the work assigned to him by his union. He was laid off in September 2015, and has been on Employment Insurance since then. He receives $936 every two weeks under his Employment Insurance claim. He had no employment from September 2015 until April 2016, when he started to work at a mill shut down for seven days.

His Employment Insurance benefits will expire in about fourteen weeks. [ 11 ] Mr. B. lives in rented accommodation. He owns a boat, on which there is a loan outstanding. He pays $1150 per month for rent. He owns a 2012 Ford F350 pickup truck, and makes payments of $800 per month on the vehicle. He testified that he is supporting himself by drawing down his line of credit. Mr. B. is optimistic that he will be able to find employment in the near future. [ 12 ] Mr. B.'s earnings in 2015 amounted to $36,000.

He testified that he had been paying $300 a month since September 2015, but that amount is not reflected in the Family Maintenance Enforcement Program Statement of Payments Dispersed. POSITIONS OF THE PARTIES [ 13 ] Mr. B. is asking that the Court base his child support and spousal support obligations on his 2015 income. In addition, he is asking that the Court cancel the accumulated arrears. [ 14 ] Ms. B. is opposed to his applications.

She asks that they be dismissed, or in the alternative, that the application for cancellation of arrears be dismissed and the child support and spousal support orders be varied, based on his average income over the past three years. In addition, Ms. B. asks that Mr. B. be subject to an ongoing disclosure order. CHILD SUPPORT AND SPOUSAL SUPPORT [ 15 ] Section 152 (2) of the Family Law Act gives a court the authority to cancel, vary, or suspend an order for child support where one of three conditions is met.

One of the three conditions is that there be a change in circumstances since the court made the order respecting child support. [ 16 ] Section 167 (1) of the Family Law Act gives a court the authority to change, suspend or terminate an order respecting spousal support, and to do so either prospectively or retroactively. Section 167 (2) sets out three preconditions, at least one of which must be met.

The three preconditions include a change in the condition, means, needs or other circumstances of either spouse since the order respecting spousal support was made. [ 17 ] I accept, on a balance of probabilities, that Mr. B. has been unable to find employment since September 2015, and I am satisfied

that the lengthy inability to find employment has affected his means and is a change in circumstances. Therefore, I have the authority tomake changes to the child and spousal support orders. [18] That brings me to the question of determining the level of income on which the court should base child support and spousalsupport orders. With respect to child support, in a judgment in this matter dated September 10, 2014, Wyatt P.C.J. said: [18] The decisions of the British Columbia Court of Appeal in Bell v. Bell,

(1999) BCCA 497 and Wallace v. Wallace,

(2000) BCCA81 are authority for the proposition that wherever possible, the court must base Guideline income on current information before thecourt. In Bell, supra, the court said that the amount that the payor parent is actually earning at the time of the hearing is a betterdetermination of income than averaging previous years' income, and the court found that the trial judge erred in fixing the payer'sincome at an amount far in excess of what he was actually earning at the time of the hearing.

In Wallace, supra, the Court of Appealfound that the trial judge erred in taking the average of the payor's last three years of earnings when the payor was unemployed at thetime of the hearing. [19] Since September 2015, Mr. B.'s income has consisted of Employment Insurance benefits supplemented by brief periods ofemployment like his employment at the mill shut down earlier this month. He receives $936 every two weeks. If he were to receivethose benefits for an entire year, his annual income would be $24,336.

However, he is a skilled, experienced tradesman, capable ofearning income at casual jobs between periods of union employment. I am satisfied that it is appropriate to base his support obligationson an income of $36,000, which is also the amount that he earned in 2015. [20] According to the Child Support Guidelines, Mr. B. should pay Ms. B. child support of $327 per month. [21] The Spousal Support Advisory Guidelines generate a range of spousal support. The low-end is $268 per month, the midpoint is$375 per month, and the high-end is $485 per month. [22] Ms. B. has an extremely limited capacity to earn income.

According to the affidavits of her doctors and psychiatrists, it is notprobable that she will be employable in the foreseeable future. That factor makes an award of spousal support at the high end of therange appropriate. [23] Based on that analysis, I will order a variation to the existing child support and spousal support orders. Mr. B. will pay to Ms.B. for her support the sum of $485 per month, commencing on May 1, 2016 and continuing on the first day of each month thereafter,until further court order. Mr. B. will pay to Ms.

B. the sum of $327 per month for the support of the child, commencing on May 1, 2016and continuing on the first day of each month thereafter for as long as the child is eligible for support under the Family Law Act, or untilfurther court order. [24] Mr. B. is optimistic that he will return to full employment in the near future, as the economy picks up. When he returns to fullemployment, he will be expected to pay child support and spousal support based on his actual income. In order to determine what thatincome will be, I will direct the Judicial Case Manager to

schedule this matter for a review before me in the month of July 2016. Inorder to expedite that review, I will order that Mr. B. complete, file with the Registry of this Court, and deliver to Ms. B. a swornfinancial statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form, by July 1,2016. ARREARS OF CHILD SUPPORT AND SPOUSAL SUPPORT [25] The remaining issue is the treatment of the arrears of child support and spousal support that accumulated between September2015, when Mr.

B. was laid off, and the date of this hearing in April 2016. [26] Section 174 (1) of the Family Law Act provides that a court may reduce or cancel arrears owing under an order respecting childsupport or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears. Mr. B., the applicant on thishearing, bears the onus of establishing on a balance of probabilities that it would be grossly unfair not to reduce or cancel the arrears. [27] In L.B. v. J.K., 2012 BCPC 231, Hamilton P.C.J. outlined some of the principles to consider in determining the meaning of"grossly unfair".

He concluded, at paragraph 64, that, "[g]rossly unfair" therefore means that the injustice to the payor spouse inmaintaining the maintenance arrears is so unfair that the court cannot countenance that unfairness in the face of the payor's failure toobey a court order and the deprivation and injustice visited upon the child and former spouse flowing from that failure." [28] Mr. B. takes the position that he could not pay child support or spousal support in the period of time between September 2015and the hearing because his financial circumstances had changed. In Earle v.

Earle, (BC SC), [1999] BCJ No. 383(BCSC), Martinson J. addressed that argument. She said: [27] People making this argument have a heavy onus. It is not good enough just to say that they could not pay because they earned less.

They can only get a reduction or a cancellation of arrears if they present detailed and full financial disclosure, under oath (usually in theform of an affidavit) that: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. [29] On the basis of the evidence before me, I am satisfied that the change in Mr. B.'s means and circumstances was significant andnot one of choice.

However, I am not satisfied that it can be described as "long-lasting", given the cyclical nature of his employment inthe past and his optimism about finding work in the near future. I am also not satisfied that he has made every effort to earn moremoney during the time in question. He is a skilled, experienced tradesman, and although his preferred line of employment is ironwork,

he is not limited to that. [ 30 ] Mr. B. has not provided complete and up-to-date financial disclosure. [ 31 ] Finally, I am aware that a law firm in Vernon is holding over $11,000 in trust on behalf of Mr. B. and Ms. B., and that he is entitled to claim half of it. While I have no jurisdiction to order that that money be paid out to the parties, the apparent availability of the funds is a factor that I can take into account in determining whether or not it would be grossly unfair to not cancel or reduce the arrears. [ 32 ] Accordingly, I find that Mr.

B. has not met the onus on him of establishing that it would be grossly unfair to require him to pay the arrears of child support and spousal support. The application to cancel or reduce the arrears is dismissed. [ 33 ] I am grateful to both counsel for the efficient manner in which they conducted their cases, and for their helpful submissions. _____________________________ The Honourable Judge R. Hewson