T.L.K. v. J.T.S. Date:, 2014 BCPC 354

Citation: T.L.K. v. J.T.S. Date: 20140514 2014 BCPC 0354 File No: F14796 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: T. L. K. APPLICANT AND: J. T. S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Applicant: K. Repstock Counsel for the Respondent: D. Smith Place of Hearing: Prince George , B.C.

Date of Hearing: January 14, 15, 2014 Date of Judgment: May 14, 2014 BACKGROUND [ 1 ] The Parties, T. L. K. and J. T. S., come to Court for a decision relating to Ms. K.’s claim for child support and spousal support. By way of background Mr. S. was born (D.O.B.) and is currently 37 years of age. Ms. K. was born on (D.O.B.) and is presently 35 years of age. [ 2 ] The couple began living together in or about 1999 after having dated in high school. The Parties separated for a time in 2001 but reconciled and were married in Mexico in May of 2003. [ 3 ] The Parties' children, J. M.

S. ("J."), was born on (D.O.B.), and is presently 13 years of age and H. A. S. ("H."), was born on (D.O.B), and is presently 11 years of age. (The Children) [ 4 ] Mr. S. and Ms. K. separated in April of 2013, when Ms. K. asked Mr. S. to the leave the family residence. Mr. S. departed the family residence at Clucuz Lake in May of 2013. [ 5 ] An Order was made for child support on an interim without prejudice basis on August 15, 2013. The Children were residing with Ms. K. and the Order mandated that Mr. S. pay $880.00 per month. [ 6 ] The trial of this matter was heard on January 14 and 15, 2014.

THE CLAIM FOR CHILD SUPPORT [ 7 ] It is submitted by Ms. K.’s counsel that Mr. S.’s Guideline Income should be set at $80,000.00. This is based on Mr. S.’s Income Tax Returns for the years 2010, 2011 and 2012. [ 8 ] It has been suggested that Mr. S.’s history of employment reveals that at times he may have been intentionally underemployed and not working at his full capacity. It is argued that the Court consider Mr. S.’s income of $80,000.00 earned in 2012, while working for L.M.I. on a special project at the M. M. M., be accepted as an indicator of his earning capacity.

Such an income would, according to the Child Support Guidelines , call for monthly payments in the amount of $1,209.00. [ 9 ] Mr. S.’s counsel argues that the appropriate income on which to base Mr. S.’s child support obligations should be based on his earnings from 2011, 2012 and 2013. The Court is asked to consider earnings from all these years and a reversal of fortune, to determine a more realistic earning capability. I note the Interim Order for child support in the amount of $880.00 per month was based on an annual Guideline Income of $58,000.00. [ 10 ] Mr.

S.’s income for the last three years is as follows: a) 2011 - $43,876.00 (as per Financial Statement); b) 2012 - $80,027.00 (as per Financial Statement);

c) Early 2013 - $58,000.00 (annual equivalent with C.N.R. per pay stubs attached to Financial Statement) ($27.85 x 40 x 52); or

d) Late 2013 - $34,320.00 (annual equivalent under C.N.R. short term disability payments (Exhibits 5 and 6) ($660 x 52). [ 11 ] The Federal Child Support Guidelines set out the criteria to be used by the Court in determining monthly child support. I also note Section 17(1) of the Child Support Guidelines states: If the Court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine in an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of nonrecurring amount during those years. [ 12 ] I note the following commentary from Dr. Julien Payne writing in CHILD SUPPORT GUIDELINES IN CANADA – SOME LANDMARK CASES 2012 (Toronto: Irwin Law, 2012): Section17 of the Federal Child Support Guidelines provides various means whereby a court can address non-recurring or fluctuating annual incomes. The most widely used means of dealing with this

problem under s. 17 of the Guidelines is by way of averaging the annual income over the three most recent taxation years. Section17 of the Guidelines confers discretionary, not mandatory, powers on the court that are exercisable in the search for the fairest determination of a spouse’s income. When averaging a parent’s income over the three preceding taxation years pursuant to s. 17 of the Federal Child Support Guidelines, s. 16 of the Guidelines does not require the court to rely on the pattern of income revealed in the parent’s income tax returns.

Additional income may be imputed to the parent pursuant to s. 19 of the Guidelines before the averaging of the last three years of income is undertaken. Factors that have governed Mr. S.’s earning capacity [ 13 ] Apparent from the evidence, the death of Mr. S.’s father had a great impact on him emotionally. Mr. S. took care of his father during the terminal phase of his cancer and after his father’s death was obliged to take stress leave in late 2008 and early 2009. Mr.

S. did receive a $95,000.00 inheritance from his father’s estate but these funds were used to pay family debts and for the purchase of a SUV sport-utility vehicle for Ms. K. The point from this is that I accept that Mr. S.’s employment history is subject to two emotion charged events, namely the death of his father and the failure of his marriage. [ 14 ] The employment in 2012 with L.M.I. at the M. M. M. was a singular opportunity with 12 hour shifts and substantial over time. It is a highpoint in his earning career that balances out his recent decreased earning capabilities. [ 15 ] The separation from Ms.

K. in 2013 was no easy matter for Mr. S. to deal with and eventually this led to substance abuse and addiction to non-prescription drugs. He advised his employer C.N.R. of his problem and was placed on short term disability in September of 2013. He also enrolled in rehabilitation at the P. T. C. in the lower mainland between early November and early December 2013. [ 16 ] Upon his return to Prince George, after successfully completing the residential rehabilitation program, he was obliged by C.N.R. to the take a further 90 days off work after the completion of the program to demonstrate that he was “clean”.

His return to work was set for mid-March 2014. His income was reduced during this period and he had to apply for Employment Insurance benefits. [ 17 ] It is my opinion that I must take these factors into account in determining Mr. S.’s earning capacity. For that reason, my conclusion is that even after figuring in the highs and lows from the last three years Mr. S.’s current annual income for the purposes of calculating child support is $58,000.00. [ 18 ] Mr. S.’s child support payments shall remain in the amount of $880.00 each month per the Order of August 2013. [ 19 ] Mr. S. will also be obliged to provide Ms.

K. with a copy of his annual Income Tax Assessment from the Canada Revenue Agency on the first day of June 2014 and on the first day of June in every year thereafter. SPOUSAL SUPPORT [ 20 ] Ms. K. also seeks spousal support. Her counsel argues that after she finished high school she worked at a series of minimum wage jobs until she became a stay-at-home mom and this arrangement has caused her an economic disadvantage. [ 21 ] One side of the argument is that she remained home with the children as there was a strong culture in Mr. S.’s family that the mother remains at home with the children.

Employment outside the home was also subject to the location of the S. residence on Clucuz Lake. From testimony it sounds like an idyllic setting, however for a portion of time, Ms. K. was isolated on the property as there was only one family vehicle that Mr. S. took to work. I find that her opportunities to seek employment or educational opportunities beyond the home were restricted by a lack of transport. [ 22 ] Mr. S.’s counsel argues Ms. K. is not without ambition or capability. In 2005 (when the children were ages five and three) Ms.

K. went to Kelowna and attended a six month program in Criminal Investigations and Special Security. She was subsequently hired by F.B.I.G.I. and earned $52,000.00 in her first year there. She later left that employment saying she did not feel safe after monitoring a strike at a local business. [ 23 ] She then did work for C. E. S. as a dispatcher from 2006 - 2007 but did not return to this job after she had surgery. This job paid $18.00 per hour and her employer was impressed enough with her skills to adjust her

schedule around Ms. K.’s dropping off and

picking up the children at school. [ 24 ] Ms. K. gave evidence that besides Mr. S. removing her vehicle from the family home, leaving her marooned, he also allowed the hydro account to fall into arrears to the point power was shut off to the family residence. Her counsel argues the Court should accept these events as evidence of a hierarchical relationship in the relationship between her and Mr. S. I accept this evidence only in support that Ms.

K. was placed in a degree of disadvantage in seeking employment. [ 25 ] Objectives of spousal support as set out in the Family Law Act : 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. . [ 26 ] In concluding submissions, counsel for Ms. K. writes at paragraph 16: 16. It is submitted that the evidence at trial clearly shows that T. K. surrendered economic independence to J. S. through her primary role as homemaker and primary caregiver to the parties Children and that J.S. benefited from this arrangement in being able to maintain an essentially uninterrupted work history. There’s no way to predict when, if ever, T.

S. will ever recover from this economic disadvantage.” [ 27 ] Counsel for Mr. S. argues that Ms. K.’s education and employment in the security field from 2005 to 2007 shows that she has capacity to earn a good income. Given her work history, Ms. K. would be able to earn approximately $10,000.00 a year working at a minimum wage job or at a job that could pay her up to the $52,000.00, a year such as her security job back in 2007. [ 28 ] My conclusion is that Ms. K. did remain at home and to a certain point sacrificed her own ambitions to take care of the children and support Mr. S. in his career.

I do not accept that she has been permanently economically disadvantaged. I note in her testimony that she wishes to become a LPN by attending a two year course at The College of New Caledonia [ 29 ] Ms. K.’s proposal, set out in her submission, suggests that her spousal support is in a range from as low of $1,256.00, to a medium of $1,425.00, and a high of $1,597.00 per month. [ 30 ] Mr. S.’s proposal is based on consideration that Ms. K. will be receiving child support in the amount of $880.00 per month and that she has a capacity, even in her present circumstances, to earn $10,000.00 a year.

The argument is then that the spousal support range would be in the amount of $281.00 as a low, to a medium of $433.00, and $589.00 as a high per month. [ 31 ] I am in agreement that the child support and a minimum wage have to be considered in any formula to determine spousal support. [ 32 ] I also see that in these particular circumstances for the spousal support, the objective is to give Ms. K. an economic boost while she is going to school to become a LPN. The aim is to correct her loss of momentum in obtaining employment of which some of the events described in evidence contributed.

I conclude that with some financial assistance from Mr. S. she can become self-supporting. [ 33 ] For that reason, beginning January 1, 2014 and continuing until May 1, 2016, Mr. S. shall pay Ms. K. $700.00 per month in spousal support. [ 34 ] Commencing June 1, 2015 and on the first day of June every year thereafter Ms. K. shall provide Mr. S. a copy of her Income Tax Assessment for the previous taxation year that she receives from the Canada Revenue Agency. SPECIAL and EXTRAORDINATRY EXPENSES [ 35 ] As contemplated by

Section 7 of the Child Support Guidelines any special or extraordinary expenses relating to the Children in the future should be shared by the Parents in proportion to their current Guideline Incomes as determined by the Court or agreed to by the parties. [ 36 ] The parties must discuss and attempt to reach an agreement on any proposed special or extraordinary expense before it is incurred but if that is not possible, may make an application for the court to decide the issue. [ 37 ] I believe this concludes the matter.

R. W. Callan Provincial Court Judge Province of British Columbia