CLP v. ND Date:, 2014 BCPC 154

Citation: CLP v. ND Date: 20140625 2014 BCPC 0154 File No: F16294 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: CLP APPLICANT AND: ND RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BULLER BENNETT Appearing on their own behalf: The Applicant, CLP

Counsel for the Respondent: The Respondent, ND Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: June 25, 2014 Date of Judgment: June 25, 2014 [ 1 ] THE COURT: This is a ruling on a Notice of Motion filed by CLP for both spousal support and child support. [ 2 ] I note for the record that there is an application to obtain an order for spousal support and child support as well as a reply filed, so my ruling has to do with both the Notice of Motion and application in reply because the same relief is sought. [ 3 ] The facts are as follows. [ 4 ] CLP, her son G, and ND lived together in CLP's house officially, as they describe it, from October 2010 to September 2013.

Because ND was paying a mortgage on a condominium he owned prior to cohabitation, ND paid half the rent for the house from July 2011 to August 2013. He paid the full amount of the rent on the house from September 2013 to January 2014. This was the agreement between ND and CLP. [ 5 ] While cohabitating, they both kept separate bank accounts and kept separate finances. ND paid for large, as he described it, grocery shopping trips. CLP paid for other groceries and utilities.

CLP looked after her own as well as G’s expenses. [ 6 ] During the time that ND and CLP cohabited, G's biological father paid child support sporadically and in small amounts. For the last year or so, G's father has paid $200.00 per month in child support. There are ongoing negotiations for an order for child support considering G's father's income for Guidelines purposes at approximately $25,500. G has been on and continues to be on ND's medical and dental plan. [ 7 ] CLP has worked outside of the home in the past. Prior to living with ND, she worked as a medical transcriber on a part-time basis.

From September 2009 to June 2010, she took the Health Care Assistant course at Douglas College. She looked for work after graduating but did not find much in the way of employment so she went back to doing medical transcription. She did do some casual shift work as a healthcare assistant. This came together about December of 2010. She continued doing both types of work until the summer of 2011. [ 8 ] As a result of depression and mental health issues, she stopped working outside of the home and started receiving disability benefits through Great-West Life in the amount of $1,532 per month.

She remains on this disability pension and will continue to do so indefinitely. She remains under her doctor's care. Currently, she is unable to work but she would like to return to the workforce. She has no immediate plans to do so. [ 9 ] CLP has filed for bankruptcy although she has not received a court order declaring her bankrupt. The cause of the bankruptcy was her debt load. Some debts were accrued while she was cohabitating with ND. Some were accrued, especially a large car loan, prior to cohabitation. [ 10 ] ND has been employed in a lumber mill.

For the past year in particular he started his apprenticeship as a millwright. For the past three years or so, he has been enjoying income in the range of $60,000 to $80,000 annually. Again, because of some mental health issues, his doctor recommended that he take some time off work. April 20th, 2014 was ND's last day of work. Since then, he has been receiving a disability pension also from Great-West Life in the amount of $480.00 weekly since April 20th, 2014. That is a net amount. [ 11 ] ND has no timeframe for his time off work. He is just, as he said, taking it as it comes.

His job is available to him and I understand his employer continues to be quite cooperative. [ 12 ] Since the relationship broke down, CLP and G remain in the same house. CLP and G's biological father did share and still share G's sports and other activity costs. There are no daycare expenses for G who is now eight years old because his mother, CLP, is not working. [ 13 ] I should point out that since separation ND has been living in his condominium. [ 14 ] Turning now to child support. [ 15 ] The relevant law is set out in s. 147 of the Family Law Act .

Specifically, subsection (4) because ND has been in the position of a stepparent. That subsection states:

(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. [ 16 ] As ND paid for all or some of the rent for the house from July 2011 to January 2014, in my view he supported G up to and including January of 2014. So that is certainly for more than a one year period. [ 17 ] The Notice of Motion and the application to obtain an order both were filed on February 12th, 2014 so the filing was within the

time period as required by the law. [ 18 ] Subsection (5) of s. 147 states:

(5) If a stepparent has a duty to provide support for a child under subsection (4) [which ND has], 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. [ 19 ] In this case of course, ND's duty to support G is secondary to G's biological father. The biological father has been paying about $200.00 per month and will likely have to pay roughly that same amount assuming his Guidelines income is $25,500 per year. [ 20 ] I note on the evidence that G has remained in the same home since the breakdown of the relationship. He is still involved in the same range of activities.

He continues to be on ND's medical and dental coverage. G's standard of living during the relationship and then since the separation really has remained the same. There is no evidence of any change. Also, this was a short relationship, officially only for two and a-half years. [ 21 ] In s. 5 of the Guidelines the law states that:

(5) Where the spouse [in this case it would be ND] against whom a child support order is sought stands in the place of a parent for a child [again ND], the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child. [ 22 ] Considering the law in both the Family Law Act and the Guidelines , in my view since this was a short term relationship, that limits ND's obligation to support G.

Also, G's biological father has been paying child support in the amount of $200.00 and will likely continue to pay that same amount. G's biological father will continue to share G's expenses other than that covered by child support. [ 23 ] So, the evidence before me is clear as I have stated that there has been no change in G's standard of living.

This was also a short relationship in my view and G's biological father will likely pay more in child support than ND would at ND's current income level. [ 24 ] So, given those factors, although ND has a duty to support G, in my view there is no amount payable because of the short term relationship, the lack of change in G's standard of living, and also I should note that G's biological father will in all likelihood pay as much if not more than ND would should I have made that order, so the application and the Notice of Motion regarding child support is dismissed. [ 25 ] Turning now to spousal support. [ 26 ] The relevant law is set out in ss. 161 and 162 of the Family Law Act .

The objectives of spousal support are set out in s. 161 of the Family Law Act and that

section states: 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. [ 27 ]

Section 160 says: 160. If, after considering the objectives set out in

section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with

section 162 [determining spousal support]. [ 28 ]

Section 162 states: 162. The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following: (

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. [ 29 ] This was a short-term relationship, officially only for three years. I say officially because both CLP and ND say the cohabitation started at different times. However, they agree on the start date of October 2010. Three years or five years or five-and-a-

half years regardless is still considered in law a short-term relationship. [ 30 ] Throughout cohabitation, both ND and CLP kept their finances entirely separate. CLP remained on disability pension throughout the time that they cohabited and continues to do so. She hopes to return to the work force in the future. ND worked throughout the relationship and since has stopped working and is now receiving disability payments. [ 31 ] Throughout the relationship there were no agreements of any type between ND and CLP that one would support the other for any time period or under any circumstance.

There were no court orders either. [ 32 ] It is noteworthy that since April 2014 there has been a considerable drop in ND's income. [ 33 ] The first test that CLP must meet is entitlement.

In other words, she must prove on the evidence that she is entitled to spousal support. [ 34 ] There were no agreements as I have already stated and this was a short-term relationship. [ 35 ] The case law as well as the Family Law Act state that there can be a compensatory basis for ordering spousal support and that arises where there has been an economic disadvantage to one spouse as a result of the relationship or the breakdown of the relationship and a corresponding economic advantage to the other spouse. [ 36 ] I suppose that because ND did not pay rent for a period of time and was able to keep his condominium, there was some economic disadvantage to CLP as a result of the relationship and an economic advantage to ND.

However, that is supposition only and there is not sufficient evidence in my view to support that as a finding of fact. [ 37 ] Further, CLP did incur debts both prior to and during the cohabitation with ND, but again, there is not sufficient proof to show that she suffered an economic disadvantage because of the breakdown of the relationship and then the corresponding economic advantage to ND.

So, CLP has not proven entitlement on a compensatory basis for spousal support. [ 38 ] Then there is the other branch of spousal support and that is what is commonly referred to as the non-compensatory basis for spousal support.

This has to do with amongst other things economic hardship, the functions of each spouse during the time that they were together, and other aspects of the relationship other than compensatory aspects of the relationship. [ 39 ] Ordinarily, a significant disparity between incomes of the spouses at the time of separation will create some entitlement and in circumstances such as this, it is time limited and really transitional.

In some circumstances, a significant disparity of income at the time of separation can result in neither an economic disadvantage nor economic need on the part of one spouse, one spouse having the lower income of course. [ 40 ] The difficulty with the case before me is this: at the time that the relationship dissolved which was September of 2013, ND was earning an income of approximately $80,000 and CLP was earning considerably less, about $19,600.

In my view, she has made out what we call a prima facie case for entitlement on a non-compensatory basis and so I do make a finding that she has made out entitlement on that basis. [ 41 ] The difficulty in my view is calculating the quantum and duration of the award of spousal support. [ 42 ] I think it is more appropriate to use the most current income for both spouses and that would be ND's income of $24,916 based on his present disability payments, and income of $19,600 for CLP based on her T1 return for 2013.

That leaves a difference between the two annual incomes of $5,300 or $442.00 per month. [ 43 ] In my view, given the finding of entitlement, it is appropriate to award spousal support in the amount of half of the difference between the two monthly incomes. In other words, spousal support in the amount of $221.00 per month.

I make that award commencing July 1st, 2014 and for a period of six months only to reflect the short term nature of the relationship between both CLP and ND. [ 44 ] So that order is for spousal support in the amount of $221.00 per month commencing July 1st, 2014 and the same amount is payable on the 1st of each and every month for a period of six months thereafter. [ 45 ] The registry will draft the order. I will dispense with signatures and copies of that order will come to you in the mail. (ORAL REASONS FOR JUDGMENT CONCLUDED)