W.Z. and L.J.A. Date:, 2011 BCPC 279

Citation: W.Z. and L.J.A. Date: 20110404 2011 BCPC 0279 File No: F13447 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: W. Z. APPLICANT AND: L.J.A. RESPONDENT ORDER OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Applicant: D. Maser Counsel for the Respondent: F. Nudel Place of Hearing: Abbotsford , B.C. Date of Hearing: March 30, 31, 2011 Date of Order: April 4, 2011 [ 1 ] THE COURT : This trial deals with the question of child maintenance and whether income should be imputed. Section 19(1) (

a) of the Federal Child Support Guidelines is considered in this hearing. [ 2 ] L.J.A., the mother, and W.Z., the father, commenced cohabitation in August 1998 and separated in May 2009. By their union they have one child, J.K.A., born [DOB]. He is currently 12 years old. The parties settled their property division by a separation agreement dated November 2nd, 2009. On May 18th, 2010 an interim order of maintenance was entered into by consent in the sum of $210 per month.

By informal agreement maintenance had previously been paid at the rate of $446 per month. [ 3 ] The father's work experience was for several years focused on a pipe company. He started there in 1988 working on their production line. He worked his way through the company and became manager of shipping in 2001. The company was purchased in 2007 and shortly afterwards the father, along with other administrators were dismissed. He received a severance of approximately $70,000 in October 2007.

There was a period of about nine months that lapsed until he decided upon self-employment as an owner/operator of a dump truck business. He borrowed money from his mother to purchase a dump truck. The business started in July 2008. A review of his financial statement filed April 27th, 2010 reveals that in 2009 his income was $22,966.30. From an updated financial statement filed March 21st, 2011 his 2010 income was $14,163.47. [ 4 ] The father understands his current self-employment is not economically viable. As a consequence, he is now in the process of upgrading his driver's licence to a Class 1.

He has an exam scheduled for April 21st, 2011 and assuming all goes well, he has employment lined up as a truck driver. He expects his rate of pay will be either $22 or $23 per hour. As for the amount of work available, it is unknown. He also anticipates a probationary period of three to six months. It is observed his change of employment occurred while the parties were together. The mother was well aware of the dynamics that occurred that resulted in the father's loss of

employment. She would also have been aware of the decision to pursue self-employment. At the time she was working fulltime in a care home earning about 50,000 per year. [ 5 ] In evaluating this matter, there is another significant economic factor which requires consideration. The mother stated in her evidence that the father lives a lifestyle that would exceed expectations, given his level of income. She observed that he frequently goes out for dinner and has a new Harley motorcycle, along with its paraphernalia.

From a review of his financial statement it is quite evident that the father's income does not support the expenses. The motorcycle in particular defies logic, given his finances. It was purchased about April 2010. He borrowed approximately $24,000 for this purchase, which he pays $409 per month. There is a credit application form from Harley Davidson Financial Services where the father declared his income at $50,000. In explanation of the conflict concerning his income he says that the credit application was based on his hourly rate of income.

Overall, his other various monthly expenses, including a mortgage, taxes and other household expenses demonstrate a significant monthly shortfall. [ 6 ] It appears that this shortfall is made up from the financial support he receives from his mother. This is disclosed on his financial statement. The evidence further confirms that she would give her son about 2,000 to $2500 every two weeks. The sum is based on the father's calculations of his monthly expenses. This included the household mortgage and other expenses, such as telephone, cable and heat.

As well, she would assist him from time to time on other expenses, such as fuel for his dump truck, along with its insurance costs and the insurance for his motorcycle. This financial support was also being provided prior to the parties' separation, although unbeknownst to the mother. She evidently would occasionally pay for some of the mortgage expenses. The monies for this stems from an estate when her husband died about eight years ago. Of note, the terms of inheritance are not before the court. The father says it was money that was bequested to his mother alone.

However, he adds that this is his joint inheritance, as well, and draws upon it whenever he requests his mother to cover his monthly expenses. [ 7 ] The evidence indicates that the monies are held in joint accounts and investments, but their particulars are unknown. Of interest, there are no declarations of income earned in the father's financial statement for any of these items. It is also noted that after the separation agreement the tenancy of the former matrimonial home was changed to joint ownership between him and his mother. Furthermore, she lives in a trailer on their jointly owned property.

This property is currently for sale and whenever it is sold, the intention is to have her live with the father. One final aspect that is considered is the fact that a friend of the father's currently resides in the residence. She evidently pays what she can. That income, whatever it might be, is not before the court. [ 8 ] From these circumstances, this is not a situation where I can make any clear findings of fact that the father is indeed entitled to share jointly in his father's estate. There is obvious conflict as to how the evidence is to be viewed. Is it a life interest?

Is it meant to be in some form of trust? Is there in fact a gift over, or is this indeed an equal share of an estate? What is somewhat more certain, however, is that he is entitled to some sort of a share of the investments given their joint ownership. But the particulars of this again, are vague. [ 9 ] Reflecting upon the provisions of s. 19, I find this is a situation where the father is underemployed. He has the capacity to earn greater income, given his successful career with his former employer. He has from that the experience and skills of management.

This is not to say that his attempt at self-employment is unreasonable. However, more than two-and-a-half years have elapsed until he came to appreciate the futility of his self-employment pursuits. The delay in coming to this understanding comes as a result of his clear reliance on monies from his mother. [ 10 ] For the purposes of this evaluation, it does not matter that the nature of his interest in his inheritance is unclear. Rather, I find from the evidence he did not pursue other meaningful employment in a timely manner, and instead relied on his mother for his monthly expense shortfalls.

Furthermore, there is other evidence which establishes he was nonchalant about his financial circumstances presupposing he had some interest in the estate and investments or his potential landlord and tenant relationship with a person in his home; it appears he did not pursue either of these diligently to generate income. Other evidence which points me to conclude that he was cavalier in his monetary expenditures without regard to his obligations for support of his child is his purchase of the Harley Davidson.

This was an extravagance that is not justified, given his paramount economic obligations to his child. [ 11 ] In all the circumstances, I impute income in the amount of $45,000 per year. This is based on his new pending employment of between 22 and $23 per hour. By guideline amounts this yields $417 per month. I note the date of filing of this application was towards the end of December 2009. This order shall commence January 1st, 2010 and on the first day of each and every month thereafter. [ 12 ] Thank you. That is my order. __________________________ B.G.

HOY Provincial Court Judge Appendix A Cases Considered: Hanson, SCBC 19991015, New Westminster, Docket E006672, Martinson, Madam Justice

M.A.B.D. V. L.R.S.S. 2006 BCPC 11 , 2006 BCPC 0011, Vancouver, Werier, J., PCJ