F.H. v. D.G., 2019 BCPC 64

Citation: F.H. v. D.G. 2019 BCPC 64 Date: 20190408 File No: F17626 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: F.H. APPLICANT AND: D.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK

Appearing in person: F. H. Counsel for the Respondent: E.M. Bowman Place of Hearing: Abbotsford , B.C. Date of Hearing: March 21, 2019 Date of Judgment: April 8, 2019 Background [ 1 ] On July 4, 2017, the Applicant F.H. brought an application for guardianship of her three children, as well as for parental responsibilities for the children, child support and spousal support, both retroactive to May 1, 2017. She also asked for an order for the sharing of expenses under

section 7 of the Federal Child Support Guidelines. [ 2 ] On September 19, 2017, the Respondent D.G. filed a Reply in which he expressed his opposition to most of what the Applicant was asking for. He also asked for certain conduct orders under

section 225 of the Family Law Act concerning how the parties communicated with one another and with the children. He also sought a Protection Order restraining the Applicant from attending at his residence or work place. The Applicant in turn filed a Reply to the Respondent’s applications, agreeing to the issuance of some of the conduct orders he was asking for, but opposing the others, including the Protection Order he was asking for. [ 3 ] The parties had a Family Case Conference on October 6, 2017 and they were able to arrive at a consent order for parenting time.

But ten days later on October 16, 2017, the Applicant filed another application, asking for that order to be changed by reducing the Respondent’s parenting time. The Respondent filed a Reply to this new application on November 10, 2017, opposing this. [ 4 ] On December 7, 2017, the Respondent filed a Notice of Motion asking for a report to be prepared under

section 211 of the Family Law Act and for adjustments to the parenting time, such that the children would reside primarily with the Respondent. He also asked for a number of Conduct Orders. The parties had another Family Case Conference on January 12, 2018 at which time it was ordered that a report be prepared under

section 211 of the Family Law Act. [ 5 ] On April 5, 2018, a hearing was held before the Honourable Judge K. D. Mundstock of this court. At that time Judge Mundstock made an order that the Respondent was to pay the Applicant $1,443 per month for the support of the children, retroactive to July 1, 2017, as well as a further sum of $640 for what was found to be a special expense. Judge Mundstock dismissed the Applicant’s application for spousal support. [ 6 ] Yet another Family Case Conference was held on April 12, 2018, but the Applicant was the only party who turned up for it.

At that time an order was made giving the Applicant all of the parental responsibilities for the children, pursuant to section 40(3) (

a) of the Family Law Act. [ 7 ] The parties’ respective applications had been scheduled for three days of trial, but on February 5, 2019, at a pre-trial conference, the parties reached a consent on most of the issues before the court. The issue of parenting time was worked out, and they also agreed to exchange financial information by May 1 st of each year, with each party having the right to review the order for child support based on what was disclosed by that information. It was agreed that what had been intended to be a three day trial would now be a one day trial.

The consent order specified that the issue at trial would be child support, with a review of the order made by Judge Mundstock on April 5, 2018. [ 8 ] On March 15, 2019, the Applicant filed another Notice of Motion in which she asked for a “new spousal support order”. Although this application had not been scheduled as part of the trial in this matter, the Applicant and Counsel for the Respondent agreed that this issue should addressed in the hearing held in this matter on March 21, 2019 as well, in order to resolve all of the outstanding issues between the parties.

Summary of Evidence [ 9 ] The Applicant and Respondent began living in a common law relationship sometime in 2001. They were married on June 30, 2007. Together they are the parents of three children: O.G., born [omitted for publication]; S.G., born [omitted for publication], and C.G., born [omitted for publication]. [ 10 ] The parties formally separated when their house was sold in April of 2017, although the Respondent takes the position that they were really living separate and apart, but under the same roof, since December 31, 2016.

The parties disagree about how much time the Respondent spent in the home for the first four months of 2017. The Applicant says he was never around, while the Respondent says that he was home looking after the children when the Applicant was delivering mail. [ 11 ] The Applicant had worked delivering mail for Canada Post, but she lost that position in June of 2018, more than a year after the parties had separated, because her health was such that she could no longer perform that job.

She testified that she has been diagnosed with Celiac Disease, an autoimmune disorder. [ 12 ] When the house sold, the sale proceeds were not apportioned equally. The Respondent testified that when the house was sold, the Applicant refused to sign to transfer the home unless she received a net sale proceeds of $100,000. The Applicant agrees that she received this amount from the sale proceeds, while the Respondent only received $85,588.89 from the sale proceeds. She received $14,411.11 more than the Respondent.

[ 13 ] In addition, the Respondent also paid a joint loan that the parties had, owing to a financial company. On June 1, 2017, the Respondent paid the financial company the sum of $14,527. He was able to provide a receipt showing his payment of the loan. The loan documentation shows the loan in the name of the Applicant only, but it was likely taken out at a time when the parties lived together. [ 14 ] The parties have offered differing explanations as to why the Respondent paid a disproportionate share of the family debt and received a smaller portion of the sale proceeds from the home.

At the time that all of this was taking place, nobody bothered to create any sort of written agreement as to why these things occurred. Now, almost two years later, each party is alleging a different explanation for the financial discrepancy. Both claim that a different “verbal agreement” was reached, overlooking one obvious problem with this. For an agreement to exist, all sides have to agree to the same thing.

If each side has a different understanding, it’s not an agreement. [ 15 ] The Applicant says that the Respondent agreed to a smaller share of the sale proceeds and a larger share of the debt was so that the Applicant could afford to live in a home big enough for her and the three children. The Respondent disagrees. His plan was for him to also buy a home that would be large enough for him and the children, and close to the Applicant’s home. According to the Respondent, the plan was for the parties to share parenting time with the children living with each parent half of the time.

The Applicant denies that this was ever the case. [ 16 ] The Respondent testified that he understood that his payment of the loan to the finance company and his accepting a lesser share of the sale proceeds was intended to be an advance on child support. From his own evidence however, it appears that there was never any formal agreement, and that the Respondent made assumptions rather than an agreement. Several times in his evidence he said that the goal of shared parenting was something he assumed would happen, not something that was agreed upon.

He said, “I expected to share parenting” and “I assumed” that this would happen. He also testified, “I voluntarily decided to pay out the loan”, adding, “to me, I thought it was part of child support.” This was why he has since paid child support at a rate below the guideline amount, despite being told on a number of occasions, including by a Judge of this court, that he should be paying child support according to the guidelines. Claim for Child Support [ 17 ] Child support is the right of the child, as well as the obligation of the payor parent.

This is the reason that agreements made between parents for one parent to pay a lower rate of child support are reviewed by a court. The child’s interests are to be looked after. When parents agree to a lower rate of child support, it is not the recipient parent who is being cheated, it is the child.

The Federal Child Support Guidelines are intended to set the same standard for all parents who are paying child support and to insure that all children entitled to child support receive that support on the same standard as other children, according to that parent’s ability to pay. [ 18 ] The guidelines make allowances for reduced payments by parents who suffer from undue hardship, but undue hardship is more than simply difficulty in living at a standard that person would like to enjoy. Payor parents are expected to adjust their priorities to meet their obligations under the guidelines.

Parents who have more children have to expect that their first priority will be supporting their children. They also have to expect that this in turn will mean a lower standard of living for them personally. More children means more sacrifices, financial and otherwise. These payor parents will not be able to live in as nice of a home or drive as nice of a vehicle as someone without children to support. [ 19 ] In this case, the Respondent’s financial information shows his annual income for 2017 to be $73,713.67 and for 2018 it is $73,406.

For three children, this attracts a child support payment of $1459 per month for 2017 and $1454 for 2018. That is the amount of child support that the Respondent should have been paying. [ 20 ] To these amounts, counsel for the Respondent asks for two adjustments to be made. Firstly, she asks that these amounts should be deferred a year, such that the Respondent should pay child support in 2017 based on his 2016 income, he should pay support in 2018 based on his 2017 income, and should pay support in 2019 based on his 2018 income. In essence, he should be assessed in each year based on last year’s income.

Counsel offered no authority for this proposition. Respectfully, this is flawed logic for several reasons. Firstly, the guidelines in

section 21 (

c) require disclosure of current financial information, including the most recent payment information (something that the Respondent neglected to include in the financial statement he swore on March 12, 2019). If the guidelines intended parents to be a year behind in their rate of payment, they would not call for disclosure of such current information. Secondly, this

interpretation would be unfair to payor parents who suddenly experienced a drastic drop in their income for reasons beyond their control. For example, if the Respondent was suddenly injured and unable to work because of a disability, he could apply for reduction of his child support retroactive to the change in income.

It would be reasonable under those circumstances for the court to say “come back next year and we’ll reduce your payment then”, but this is what would happen if the Respondent is correct. [ 21 ] The second reason that the Respondent’s counsel asks for her client’s child support to be reduced is because of the adjustment in the division of their family property. Specifically, she asks that her client be credited with one half of the amount of the loan he paid off, as well as half of the additional money that the Applicant received from the sale of the family home.

The biggest problem with this is that the evidence does not show that this inequity in the division of the family property was ever agreed to be in lieu of child support as the Respondent asserts. The Applicant denies that this was the case. Even the Respondent has testified that this was not an agreement, but rather an assumption on his part, something that, in his own words, he “expected” to happen. The expectation of one party is not a valid reason for reducing that party’s child support obligation.

Doing as the Respondent asks would be making the children kick in for the property division, something that runs counter to the purpose of child support. [ 22 ] This does not mean that the Respondent has to eat this loss, especially where there does not appear to be any agreement. His counsel can advise him on what his remedies are for resolving issues concerning family property, something that

section 88 of the Family Law Act requires to be decided by the BC Supreme Court, and not by this court. [ 23 ] The Respondent has not been paying child support at the required level, assuming that he would be successful in his application to have the credits he claims applied against the arrears of child support. Neither party chose to provide this court with a statement of what his arrears are, even though this can be accessed by them online. Accordingly, the arrears cannot be fixed.

The Family Maintenance Enforcement Program can recalculate the amount of the arrears based on the adjustments to child support made in this order. The Respondent would be wise to pay an additional sum on account of these arrears, otherwise he will have to address interest and penalties

under the Family Maintenance Enforcement Act . Application for Spousal Support [ 24 ] The Applicant brought an application for spousal support before the Honourable Judge Mundstock on April 5, 2018. That application was dismissed. The Applicant has brought another application for the same relief. Her remedy would normally be in the form of an appeal of the order of Judge Mundstock, but for the fact that in the consent order reached on February 5, 2019, the parties agreed that the order of Judge Mundstock could be reviewed at this hearing.

At the time of making of that order, the Applicant had not yet brought her new application for spousal support, and the order of February 5, 2019 provided that this hearing was only for the issue of child support.

However, in the course of this application, both sides agreed that the new application for spousal support could also be addressed so that the outstanding issues could be resolved at one hearing instead of two. [ 25 ] In the hearing held on April 5, 2018, the Honourable Judge Mundstock dismissed the Applicant’s application for spousal support, holding that the Respondent lacked the capacity to pay spousal support because of the significant level of child support, the means and abilities of the parties, and the property division.

The Applicant has asserted that there has been a change of circumstances, namely the loss of her job at the post office. She concedes however that this occurred after separation, so it is difficult to attribute this to the breakdown of the marriage, [ 26 ] In determining entitlement to spousal support,

section 161 of the Family Law Act requires the court to consider certain objectives. The first of these is to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship. In this case, each of the parties have experienced significant economic disadvantage from the breakdown of their relationship, something that Judge Mundstock recognized. A second objective is to apportion between the spouses any financial consequences arising from the care of their children, beyond the duty to provide support for the children.

This is not a case where either party appears to have benefitted economically since the breakdown of the relationship. The Respondent does have a better income, but he also has shouldered a larger portion of the family debt as well as a smaller share of the house sale proceeds. This is not a case where the breakdown of the marriage has left one party in a superior financial position. [ 27 ] Spousal support seeks to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses.

It also seeks, as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. Since the separation, the Applicant has experienced some financial setbacks, but these do not flow directly from the breakdown of the marriage. The Applicant lost her job over a year after the separation. She used a significant portion of her funds to purchase a business that turned out to be a bad investment.

While these events have worsened her financial position, they are not the fault of the Respondent or the marriage breakdown. [ 28 ] Nothing has really changed such that the decision of Judge Mundstock should be viewed in a different light. The Applicant has not proven grounds for entitlement to spousal support.

Section 162 of the Family Law Act requires that the amount and duration of spousal support “must be determined on consideration of the conditions, means, needs and other circumstances of each spouse”. Judge Mundstock concluded that the Respondent did not have the ability to pay spousal support, based on the respective conditions of the parties. Nothing in the evidence before me suggests that this finding should be altered.

Order [ 29 ] For the foregoing reasons, it is now ordered as follows: Upon the Court being advised that the name and birth date of each child is as follows: O.G., [omitted for publication]; S.G., [omitted for publication], and C.G., [omitted for publication]; The Order of the Honourable Judge K. D. Mundstock dated April 5, 2018 is amended to provide as follows: The Respondent D.G. shall pay to the Applicant F.H. for the support of the children, the following amounts: (

a) For the period from July to December, 2017, the sum of $1,495 per month, payable on the first day of each of these months, based on an annual income of $73,713; (

b) For the period from and after January 1, 2018, the sum of $1,489 per month, payable on the first day of each of these months, based on an annual income of $73,405. It is further ordered that neither party is being ordered to pay to the other any portion of expenses under

section 7 of the Federal Child Support Guideline. It is further ordered that the application brought by the Applicant for spousal support and filed on March 15, 2019, is dismissed. Dated at the City of Abbotsford, in the Province of British Columbia, this 8 th day of April, 2019. ___________________________________________

The Honourable Judge K.D. Skilnick Provincial Court of British Columbia