D.H. v. R.H. Date:, 2017 BCPC 360

Citation: D.H. v. R.H. Date: 20171123 2017 BCPC 360 File No: F34320 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D. H. APPLICANT AND: R. H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Applicant: N. Hillary

Counsel for the Respondent: Self-Represented Place of Hearing: Surrey , B.C. Dates of Hearing: January 4, April 27, July 21, August 30, 2017 Date of Judgment: November 23, 2017 [ 1 ] The parties are the biological parents of the child, R., who is 12 years old. [ 2 ] In 2012, Mr. R.H. was ordered to pay child support and spousal support. At this hearing he now seeks an order re-calculating the amounts accumulated pursuant to that order. Going forward, he seeks to vary his child support obligation and to terminate the spousal support.

He also seeks to vary the manner in which extraordinary expenses for the child ought to be paid. [ 3 ] Ms. D.H. opposes the foregoing, except that she agrees the spousal support paid to her can be reduced and eventually terminated. [ 4 ] The matters of guardianship, parental responsibilities, and parenting time are also before the court, albeit, in a less contested fashion. BACKGROUND [ 5 ] The parties began their relationship in 2001. At that time, Mr. H. was 31 and Ms. H. was 26 years old. She was then working full-time in a temporary position with the federal government, doing accounts payable work. Mr.

H. was also working. Their child, R., was born in 2003 and the parties married in 2004. They cohabited with their daughter, eventually moving to Williams Lake and then to MacKenzie until their separation in December 2011, when Ms. H. left the family residence. Mr. H. remained in MacKenzie and Ms. H. returned to the Lower Mainland with their child, R. [ 6 ] In December of 2011, Ms. H. filed and served Mr. H. with an application seeking an order for child and spousal support. Mr.

H. failed to file a Reply within the prescribed period of time and was, therefore, not notified of the court appearance date of February 28, 2012. On that date, Ms. H. attended and obtained a Default Order (“the Default Order”) before the Honourable Judge Cohen. [ 7 ] The late Reply, dated April 26, 2012, and sent in by Mr. H. was returned to him by the court registry, unfiled, in June of 2012, along with a copy of the Default Order earlier obtained by Ms. H. [ 8 ] The Default Order grants sole custody and guardianship of R. to Ms. H. The order requires that Mr. H. pay to Ms.

H. monthly child support of $816 per month and monthly spousal support of $2,066 per month, commencing January 1, 2012. The support order is based on a guideline income then imputed to Mr. H. at $87,722 per annum. [ 9 ] The Default Order further grants Mr. H. liberty to apply to vary the terms of the order, “at any time upon filing full financial disclosure, in Form 4, including all required attachments.” [ 10 ] Mr. H. filed an application to vary the Default Order and to cancel or reduce accumulated arrears on September 18, 2012. In that application he stated having an annual income of $75,000.

He did not proceed with that application, allowing it to remain unserved and not taking any further steps on it. [ 11 ] Mr. H. filed the current application on March 30, 2016. On that same date he formally withdrew the application to vary earlier filed in 2012. [ 12 ] On April 7, 2017, Judge Gaffar reduced the spousal support obligation to $794 per month, using Mr. H.’s 2014 income, and reduced the child support obligation to $664 per month, using Mr. H.'s 2016 guideline income. These orders were made effective May 1, 2017, on a without prejudice basis until the matter could be more thoroughly canvassed.

EVIDENCE TENDERED BY MR. H. [ 13 ] Mr. H. seeks the retroactive recalculation of his support obligation for the period covering the time from the making of the Default Order in February 2012 until June 30, 2016. He submits that this should be recalculated on the basis of his actual, rather than imputed, income-tax based earnings as filed for each applicable year. [ 14 ] Mr.

H. provided proof of the income he earned over the years, as follows: 2010 $99,028.00 (This included bonus and rental income.) 2011 $90,500.00 (This included an amount received for relocation.) 2012 $60,383.00 2013 $85,629.00 2014 $53,655.00 2015 $80,881.00

2016 $71,082.69 [ 15 ] Mr. H. believes the Default Order erroneously failed to use his disposable income and did not take into account proper reductions, including family debts that he says would have resulted in a smaller support obligation. [ 16 ] Based on the above income figures, Mr. H. submitted that his child and spousal support calculations should be recalculated to lower amounts. [ 17 ] As regards spousal support, he provided detailed support calculations (Exhibit 1) indicating ranges of spousal support lower than the amount ordered in the Default Order.

These lower ranges were based on the income he said he actually earned from 2010 to 2016 noted above rather than the amount that was imputed to him in the Default Order. Mr. H. also factored in the existence of his other child support obligations, the existence of prior family debt, income he attributed to Ms. H., government benefits, and additional expenses he paid for the child. [ 18 ] Mr. H.’s resulting calculation provides a lower and upper range of recalculated spousal support. Based on those calculations, for example, the amount that Mr.

H. arrives at for the year 2012 amounts to a spousal support obligation ranging from $15,197.02 to $18,045.66, with a mid-point calculation of $16,621.34 per year. [ 19 ] Apart entirely from the question of any legal foundation for the re-calculation sought by Mr. H. , which I will analyze later in these reasons, a significant problem with relying exclusively on the calculations relied on by him is that they include inputs that are disputed by Ms. H. , including the value and allocation of family assets and debts, which they are disputed before the Supreme Court. [ 20 ] As regards child support, Mr.

H. provided calculations (Exhibit 2) that incorporated a guideline income that he attributed to Ms. H. , with a resulting table amount of child support that she would pay to him in what he described as “notional child support.” [ 21 ] Mr. H. also filed (Exhibits 3 and 4) the family debts he said were shouldered entirely by him and which eventually resulted in him declaring bankruptcy in 2014. He submitted that these obligations shouldered by him should have been taken into account to reduce any spousal support that would have otherwise been payable. [ 22 ] Mr.

H. also provided summaries from the Family Maintenance Enforcement Program listing how much he has paid, including interest and penalties. [ 23 ] Exhibit 7 was a calculation of comparative net incomes of himself and Ms. H., based on his calculations. [ 24 ] Exhibit 8 was an orthodontist invoice for braces for the child. The total cost was $7,100, which Mr. H. undertook to pay in its entirety. Having paid this off at $200 per month, $3,000 remained outstanding as of the date of the hearing.

He testified, and I accept, that he decided to undertake this on his own because the child would have otherwise gone without the needed treatment. [ 25 ] Exhibits 9 and 10 comprised a number of emails between the parties. I find these communications relate mostly to conduct alleged between the parties but having little or no bearing on the issues for determination. [ 26 ] Exhibit 11 was a

summary of money paid for counselling sessions for the child. Mr. H. testified he is paying at least 80% of the cost, and during some months as much as all of it. He seeks re-adjustment of the relative amounts he and Ms. H. pay towards this obligation. [ 27 ] Mr. H. maintained that Ms. H. did not make diligent efforts to work during their marriage and that any discussions they had during their cohabitation about her working would result in them arguing. He felt this should also be taken into account in calculating any support otherwise payable to her. EVIDENCE TENDERED BY MS. H. [ 28 ] Ms.

H. presented evidence confirming that when making the Default Order in February 2012, the Court used Mr. H.’s then recent pay stubs that she placed before the Court. A transcript of the proceedings confirms that the Default Order was made for a duration of between 5 to 10 years, and reviewable after roughly 5 years, but capable of being varied sooner in the event that Mr. H. wished to apply to the court upon the filing of completed financial disclosure. As earlier noted, Mr.

H. did not finally pursue any such application until March 2016, approximately three years and nine months after he had received notice of the Default Order. [ 29 ] Counsel on behalf of Ms. H. submitted that even if Mr. H. had been present at the time of the making of the Default Order, it is not likely that the results would have been any different because of the use of Mr. H.’s then current pay stubs. On that basis it cannot be said that the order was made on an amount that could be called guesswork or having no basis in reality. [ 30 ] Ms. H. contested the accuracy of much of Mr. H.’s testimony.

She disputed the amounts he testified to actually earning during the years following the making of the Default Order, suggesting the earnings to be understated. [ 31 ] Additionally and as noted above, it would appear that the allocation of the parties’ family assets and debts is presently before the Supreme Court. In this regard, Mr.

H. acknowledged that in addition to seeking, before this Court, the historical reduction of his support payments due to what he said was his disproportionate shouldering of the family debts; he may also seek at the Supreme Court a reallocation of those same debts. [ 32 ] Part of the dispute over family assets and debts includes the management and disposition of homes the parties owned in Williams Lake and MacKenzie. The question of whether, for how long, and for how much money these homes were rented by Mr. H. after the parties’ separation was very much contested and, at this hearing, incapable of resolution.

The difficulty in this regard was

compounded by Mr. H. having provided bank statements with large portions redacted. He also admitted to not having declared some rental income on his tax returns. [ 33 ] Following their separation and Ms. H.’s move to the Lower Mainland, she remained a stay-at-home mother to their child, residing initially with her sister, and eventually renting a basement suite after obtaining the support order. The child was placed into counselling. [ 34 ] The counsellor recommended Ms. H. spend as much time with the child as possible. This limited her work opportunities to only during school hours. As well, Ms.

H. testified that she could not afford daycare for R., due to the sporadic nature of Mr. H.’s support payments. [ 35 ] She did some part-time work in the years immediately following separation, but the longer term plan was to start working longer hours only after the child was in high school and having gained greater independence. In the meantime, Ms. H. worked on upgrading her computer and typing skills. [ 36 ] Ms. H. opposes any reduction in child support payments and arrears, noting the total arrears to be in the vicinity of $56,000. [ 37 ] Ms. H. cited issues regarding the late timing and adequacy of Mr.

H.’s financial disclosure, noting the difficulty in now examining the events of the past years. She maintains this has compromised her ability to examine any better efforts Mr. H. could have made to earn additional income during those years. [ 38 ] Ms. H. noted she was left with considerable amounts of student loan debt, as well as family debt, and that she had to rely on charities and family members to get by. She notes her financial statement at Tab 5 to indicate still having significant debt. Her expenses still considerably exceed her current income.

She claims the family asset and debt situation today is considerably different from that which it would have been had Mr. H. sought to have the spousal support adjusted earlier, as he should have; at that time the parties still had two homes and other assets, the disposition of and proceeds from which are now in dispute. [ 39 ] Ms. H. also alleges Mr. H. received significant undisclosed rental income following their separation, which information is not before the court at this hearing.

Years after the fact, she maintains it to be very difficult, if not impossible, to reconstruct the financial picture as it actually existed over those intervening years. [ 40 ] Overall, a great deal of time was spent on the matter of family assets and debts, and their various alleged allocations and appropriations; however, there was very little offered by either party in the way of any concrete proof of their positions. The matter was further exacerbated by the large number of redactions in the financial information provided by Mr. H. For example, she points out with reference to Exhibit 4 that Mr.

H.’s bank assets, showing mortgage payments in 2013, have much of that content redacted so it is not a full picture of his financial situation. CHILD SUPPORT, SPOUSAL SUPPORT AND SPECIAL EXPENSES INTO THE FUTURE [ 41 ] For child support going forward, Mr. H. suggests the amount be set for the period from January 2016 until June 30, 2018, based on his 2017 income tax as filed in the amount of $71,082.69.

After that period, he proposes that child support from July 1, 2018 until June 30, 2019, be based on his 2017 income tax return and that it be adjusted on July 1 st of each year based on the income earned in the previous calendar year, the particulars of which the parties must exchange with one another by not later than June 1 st of each year. [ 42 ] Mr. H. submits his payment of spousal support to Ms. H. should now conclude. He says she is employable, having had many such opportunities over the years, but that she merely chose to not work.

He noted that she now has a new job since the beginning of 2017 which further supports his position. [ 43 ] Mr. H. seeks a complete termination of his spousal support obligation after March 2016. [ 44 ] Ms. H. opposes any reduction of child support. [ 45 ] She further suggests if spousal support is to now be varied to reflect her employment, that it should not take effect until July 2016. She notes that the Default Order required Mr. H.’s financial disclosure as a pre-condition for reviewing any spousal support obligation and that he did not provide this information until July 2016. [ 46 ] Finally, Mr.

H. suggests that any contribution to extraordinary expenses be limited to $50 per month on his part without any need of Ms. H. producing any receipts, but commencing only after he completes paying for the child's braces, which he is paying down at the rate of $200 per month, which should conclude by March 2018; so the $50 monthly payment for extraordinary expenses would thereby start April 1, 2018. GOVERNING LEGISLATION [ 47 ]

Section 152 of the Family Law Act provides, as follows, regarding changes to child support: Changing, suspending or terminating orders respecting child support 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [ 48 ]

Section 167 of the Family Law Act provides as follows regarding changes to spousal support: Changing, suspending or terminating orders respecting spousal support 167

(1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made. [ 49 ]

Section 168 of the Family Law Act provides as follows regarding the review of spousal support: Review of spousal support 168

(1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for (

a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred, (

b) the type of family dispute resolution by which the review will take place, (

c) the grounds on which a review will be permitted, and (

d) the matters to be considered for the purposes of a review.

(2) On review, a court, on application, may do one or more of the following: (

e) confirm an agreement or order respecting spousal support;

(

f) set aside all or part of an agreement, or terminate an order, respecting spousal support; (

g) make an order under

section 165 [orders respecting spousal support].

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting asideagreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support]. [50]

Section 174 of the Family Law Act provides as follows regarding arrears: Reducing or cancelling arrears 174

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousalsupport if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that itwould be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the FamilyMaintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. ANALYSIS [51] The first question for the court to consider is precisely what type of relief Mr. H. is seeking in the form of the retroactivereview, as opposed to the forward looking one. This is because different legislative provisions, and hence, different corresponding legalrequirements apply, depending on what is being sought to be changed. [52] Dealing firstly with the question of the historical support obligations, what Mr.

H. is seeking is a re-writing of the Default Orderin a way that he says more fairly reflects what he actually earned during the years following. He does not characterize such an exercisenecessarily as reducing or cancelling arrears, which would involve the application of s. 174 noted above. [53] Having regard to the forgoing as well as to the unresolved questions surrounding Mr. H.’s income during the previous fouryears, I am not satisfied that the spousal support order made in 2012 should be recalculated using a different income for him.

There issimply too much uncertainty in light of the parties’ broader and, as yet, unresolved dispute regarding family assets, debts and income.The one exception, as will be noted below, relates to calculations derived from his 2016 income, which is mostly on a go forward basis,and on which there appears to be more common ground. [54] The greater difficulty in Mr. H.’s position seeking retroactive variation is that it is not supported by law.

There is no authority,based on the legislation and on the case authorities interpreting it, that allows for a support order to be recalculated based on new incomefigures now sought to be applied during those previous years. [55] In L.B. v. J.K., 2012 BCPC 231 , [2012] BCJ No. 1437, the Honourable Judge Hamilton considered a similarapplication, whereby the payor spouse sought to have his court ordered support obligation historically recalculated to reflect what hemaintained was his actual income, and to then apply the resulting surplus in payments that he had already made credited as an offset

against any future support obligations. The court made the following pertinent observations, at paras. 42 and 43: 42 Another reason why I am not prepared to go through this exercise is because I am of the view that if a payor's annual income fallsbelow the income upon which the maintenance payments are calculated, then it is incumbent on the payor to bring the necessaryapplication in a timely manner to have the maintenance payments adjusted.

To accede to J.K.'s proposal would encourage payors to donothing in the face of a reduction in income, disobey a court order over a period of several years and allow a significant sum of arrears ofmaintenance payments to accumulate, and then when it suits the payor, bring an application for an order which not only deprives therecipient of the maintenance she has a court order to receive, but also uses this retroactive recalculation to deprive the recipient and thechildren of future maintenance payments they are entitled to receive.

I do not believe such an approach would do justice between theparties, nor do I believe such an approach accords with the law and the obligations the payor parent has to financially support thechildren. 43 I was neither provided with any case law nor have I found any case law that endorses J.K.'s proposal.

In fact, in Dubreuil v.Poloway, 2010 BCCA 297 , 2010 BCCA 297, the Court of Appeal allowed an appeal and restored maintenance arrears that hadbeen cancelled by a Judge in Chambers where the Court of Appeal concluded that the Chambers Judge had erred in law when heperformed what appears to be a similar retroactive recalculation of the maintenance payments based upon what the payor actually earned.In his analysis, the Chambers Judge made no reference to the gross unfairness test and did not apply the factors set out in section 96(3) ofthe F.R.A.

For those and other reasons, the Court of Appeal reinstated the maintenance arrears. Accordingly, I am of the view, basedupon the decision in Dubreuil, supra, that it would be reversible error for me to accede to J.K.'s proposal with respect to the maintenancearrears accumulated prior to January 1, 2008. [56] On the analysis set out above, I conclude that Mr.

H. is seeking the same type of relief, namely to look behind and challenge avalid court order many years after it was made under circumstances that cannot be countenanced. [57] Even if this Court were able to recalculate the historical support obligation, it would not be fair or even possible to do so,practically speaking for the following reasons. [58] Mr. H. delayed the bringing of his application for a period of just over four years. I am mindful that Mr. H. was desirous ofseeking the relief now sought at an earlier date; however, his explanation for not doing so lacks merit.

Having missed the time limitedfor Reply, he could have brought on an application to vary immediately, but chose not to. Some months later into 2012, he did indeedfile such an application, but then chose to not pursue it.

That he attributes this to insufficient knowledge, lack of legal representation, nothaving caught up on filing his income tax returns until in or about 2015, not being able to afford a lawyer and not knowing how torepresent himself do not in my view constitute reasonable explanations for the delay. [59] As also noted earlier in these reasons, the resulting delay makes it very difficult, on a practical basis, to now properly examinewhatever might have been the actual state of financial affairs between the parties. Here, I readily acknowledge that Mr.

H. also pointedout what he felt to be discrepancies in the financial disclosure provided by Ms. H. To the extent that family assets, debts and betterfinancial disclosure could bear on any recalculation, that very issue is currently in litigation before the Supreme Court. [60] I would also note that based on Mr. H.’s own testimony, during some of the years following the Default Order he earnedincome, while not quite equal to the amount imputed to him in the 2012 order, nonetheless in an amount high enough that he may nothave felt compelled to seek variation.

For example, in 2013 he claims to have earned over $85,000. [61] Having dismissed Mr. H.’s application to recalculate his support obligation, I must now consider whether, nonetheless, hisapplication can succeed if characterized as one seeking to reduce arrears. Those arrears, as noted earlier, are in the vicinity of $56,000. [62] The test to reduce both child and spousal support arrears pursuant to s. 174 is that it must be proven grossly unfair to not do so.

This involves a consideration of what efforts the applicant made comply with the order, the reasons why any arrears cannot now be paid,and any other relevant circumstances. It is a finding of fact. [63] In Earle v. Earle, (BC SC), [1999] B.C.J. No. 383, Madam Justice Martinson canvassed the considerationsrelevant to an application to reduce arrears. The features notable in the present case are that Mr.

H. has not made complete financialdisclosure, his income in the years following the making of the Default Order could well be higher than he claims, depending on thedetermination of rental income which he admitted to not including and depending on the outcome of the Supreme Court litigationinvolving allocation of family assets and debts, and as will be seen later in these Reasons, his resulting disposable income will increaseon the date that his spousal support obligation is further reduced or eliminated. [64] While Mr.

H. undoubtedly made some efforts to pay the ordered support, the filed Family Maintenance Enforcement paymentschedule discloses significant periods of time when no support payments were made. Mr. H. did not adequately explain many of thesegaps. Ms. H. testified to her current debts arising from the accumulation of these arrears over time. [65] To the extent that Mr. H. declared bankruptcy in 2014, I understood his testimony to relate that event to what he described as hisdisproportionate shouldering of family debts, as opposed to his child and spousal support obligation.

Regardless, that event occurredroughly 3 years ago and his income situation now appears much improved. [66] Regarding the legal test to reduce arrears, the Honourable Judge Hamilton in L.B. v. J.K., supra at paras. 52 to 54, inclusivenoted as follows: 52 I was unable to find any helpful authority that sets out what the phrase "grossly unfair" means. Obviously to meet the grosslyunfair test the applicant must establish more than it would be unfair to maintain the maintenance arrears. Establishing gross unfair is

clearly a more onerous test that proving simple unfairness. 53 I am of the view that gross unfairness means more than something that is a significant financial burden. 54 In order to meet the gross unfairness test, I am of the opinion that the applicant must establish that maintaining the maintenance arrears is so unfair that to enforce payment of the arrears would serve an injustice on the payor that the court cannot countenance. If enforcing payment of the arrears leaves a payor in strained financial circumstances, that is not enough. [ 67 ] Based on all of the foregoing, and applying the applicable tests, Mr.

H. has not established that it would be grossly unfair to not reduce the arrears in child and spousal support. There is no reason advanced during the hearing why the arrears cannot be repaid over time. [ 68 ] The next question is that of whether or to what extent the child and spousal support obligation ought to be adjusted with reference to a more recent time frame, and going forward. [ 69 ] Although the 2012 Default Order allowed Mr.

H. to apply to vary the order any time after providing full financial disclosure, the reasons then accompanying that order also contemplated the spousal support order to be reviewable within a 5 to 10 year time frame. The current hearing falls within that time frame. [ 70 ] Based on the foregoing, Mr. H.’s application could be characterized as either a variation application going forward, or an application for review. This is particularly important to point out given the different legal tests applicable for each of these modes of relief. [ 71 ] This point was particularly made in the case of Miolla v.

Miolla , [2014] B.C.J. No. 600, where at paragraph 30 , Armstrong, J. described it the following way: There are limitations to applications seeking review of spousal support obligations. In Westergaard v. Buttress , 2012 BCCA 38 the court explained the difference between reviews and variation applications regarding spousal support claims and said at paragraph 21: As I read the trial judge but in this matter, and particularly paragraph 74, the judge did circumscribe the review. His purpose in providing for a review was to allow a determination to be made as to whether Ms.

Westergaard had realized her goal of achieving self- sufficiency and whether she continued to be entitled to support. To the extent that any review of quantum was contemplated, it could only be a consequence of Ms. Westergaard’s partial achievement of self-sufficiency, or her failure to comply with the requirements of section 96(4) of the Family Relations Act to make reasonable efforts to achieve self-sufficiency.

Any change to quantum of support that was not related to efforts to achieve self-sufficiency could only be accomplished through a variation application under section 96(1) of the Family Relations Act . [ 72 ] Based on the passage of 5 years since the making of the order, and based on evidence provided by Ms. H. regarding her progress in achieving self-sufficiency, I am of the view that any consideration of changing the amount of spousal support is properly characterized as any application by Mr.

H. to review the obligation pursuant to s. 168, as opposed to an application to vary it pursuant to s. 167. [ 73 ] Any examination of Mr. H.’s child support obligation going forward would still be regarded as an application to vary, pursuant to s. 152. [ 74 ] I will now turn to the circumstances of Ms. H., which for the reasons that follow, I conclude, have changed so as to merit a re- adjustment of the spousal support she receives. [ 75 ]

Section 160 of the Family Law Act sets out the objectives of spousal support: Objectives of Spousal Support 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.

[76] Ms. H. was 26 when she met and commenced her 10-year cohabitation with Mr. H. She was, at that time, working at a federalgovernment job in downtown Vancouver in what I take to be a clerical position in the accounts payable department. [77] Ms. H. testified that during their cohabitation, Mr. H. requested that she not work, but rather, that she stay at home, manage thehousehold and look after their child. She maintains this was their agreed relationship as a result of which she did not seek employment,forgoing work opportunities.

As such she maintains that her case for spousal support was not only needs-based but also on acompensatory basis. [78] Mr. H. disputed that he asked Ms. H. to not work, alleging he wanted her to work but that the discussions led to them arguing. In assessing this conflict in the evidence, I take note that the nature of Mr. H.’s work, at times, had him away from home or working lateshifts, which would have necessarily required Ms. H. to care for the child. In this regard, the words of Madame Justice L’Heureux-Dubeare apt in Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813, at page 867: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support maybe a way to compensate such economic disadvantage. [79] Ms.

H. has, in the past, taken some university-level courses but did not achieve any completed degrees, diplomas orcertifications. She testified wanting to return to her education following the birth of their child in 2003. She tried to do this but theyconcluded the child would benefit from her mother’s presence in the home so the schooling was discontinued. In any event, Mr. H. wasspending considerable periods of time working late nights, long hours and being on the road and away from home so Ms. H.discontinued her schooling. [80] Following the parties’ separation near the end of 2011, Ms.

H. moved with the child to the Lower Mainland, and in 2012obtained the aforementioned order for spousal support and child support. She undertook some counselling to deal with the marriagebreakup and to assist their child to also cope but was limited in looking for work only during hours the child would be at school. She dida few months of clerical work in 2012, and some work with a church for about a month. She eventually took on work with a home-basedbusiness operated by a friend and her husband.

She did this for about 6 months but finding this to be insufficient to make ends meet, sheeventually applied to a local school board, obtaining an entry-level noon-hour supervisor position and then upgrading her clerical skills toeventually qualify for, what is now essentially, full-time work with the school board. [81] I find it more probable than not that Ms. H. did indeed refrain from finding work during the marriage in order to care for thechild, R., and in order that Mr.

H. could devote his energies to supporting the family. [82] Based on her full-time earnings with the school board thus far into 2017, and on the fixed hours that she works at this job,earning $840 per week, I find overall that her projected earnings of $34,500 per year to be a realistic estimate. [83] Ms. H., herself recognizing the financial independence she has now attained, has suggested her spousal support be reduced to$143 per month until December of 2018, when it would terminate entirely. Her counsel submits that this

schedule would be consistentwith case authorities that establish spousal support in a case such as this for a period of between 5 and 10 years duration. [84] The fixing of spousal support is guided by the spousal support advisory guidelines [SSAG]. These guidelines are not bindingbut rather advisory, to provide greater predictability in determining quantum. [85] Spousal support can be based on economic disadvantage arising from the marriage itself (compensatory), or based on needarising following separation (non-compensatory), or contractual. See in this regard, Bracklow v.

Bracklow, (SCC),[1999] 1 S.C.R. 420. [86] It would appear that in the present case, given the history between the parties during their cohabitation, as one where Ms. H.stayed at home to look after the household and the child while Mr. H. earned the family income, and further given her continuing needfollowing the separation in terms of obligations to raise the child still in her younger years, the original spousal support order in favour ofMs. H. would have been made on the basis of both compensatory and non-compensatory elements. [87] I find that Ms.

H. was entitled to continuing spousal support in the years following her separation, and that such support wasmerited on both a compensatory and a non-compensatory basis. Her 2016 income was still only $3,366.80. [88] It is equally clear that by the end of 2016, Ms. H. found full-time employment, such that she no longer requires spousal supporton either a compensatory or a non-compensatory basis. She has largely attained the self-sufficiency that is the objective of spousalsupport pursuant to s. 161(

d) of the Family Law Act. [89] Given the foregoing, I am satisfied that Ms. H.’s need for spousal support ended at the time she commenced her full-time workwith the school board, in mid-January 2017. Mr. H.’s obligation to support her will therefore be deemed to have terminated on January31, 2017. CHILD SUPPORT [90] The child of the marriage, R., is now 14 years old. The matter of her support, going forward appears less contentious, theparties appearing to be in agreement to using Mr. H.’s 2016 income of $71,082.69 as claimed by him as a guideline income for thepurpose of the child support calculation going forward. That amount, being a sufficiently recent and reliable figure, represents a

sufficient change in circumstances as contemplated by s. 152(

a) to justify a new child support order. That income translates to a child support obligation of $664 dollars per month. As such, Mr. H.’s obligation to pay child support for the child, R., shall be in the amount of $664 dollars per month. The effective date in this case should be with reference to the date of his application, being March 2016. As such, the new child support order will take effect retroactively starting April 1, 2016 and shall be in the same amount for each month thereafter until written agreement between the parties or further order of the court.

ADJUSTMENT IN SPOUSAL SUPPORT ARREARS [ 91 ] Given Ms. H.’s agreement to use Mr. H.’s 2016 income for the purposes of recalculating the child support obligation following Mr. H.’s application, it seems only fair that the spousal support owed by him for the period April 1, 2016 until January 31, 2017 be recalculated on the same income. [ 92 ] Based on DivorceMate calculations supplied designating Mr. H.’s income at $71,082 in 2016 and for Ms. H. in the amount of $3,366 for that year, these result in a new midpoint spousal support obligation in the amount of $1,360 per month.

This will be the new monthly spousal support order, effective April 1, 2016 until December 31, 2016, when the obligation to pay spousal support terminates as earlier noted. EXTRAORDINARY EXPENSES [ 93 ]

Section 7 of the Federal Child Support Guidelines provides for the sharing between parents of any special or extraordinary expenses relating to the child. [ 94 ] In this regard, Ms. H. submitted that Mr. H. agreed to pay 100% of the cost for the child’s braces and that he should be held to completing that commitment. I respectfully disagree. Now that Ms. H. is gainfully employed, there is no longer any reason to distinguish that cost from any other relating to the child.

As such, the unpaid portion of the orthodontist bill, commencing December 1, 2017, will be shared between them in the ratio of their incomes, that is to say 66% by Mr. H. and 34% by Ms. H. [ 95 ] The cost for any other s. 7 expenses, including counselling for the child, will be shared in the same proportion, after deduction of any portion of such costs that may be covered by medical or other coverage held by either of the parties.

Unless otherwise agreed between the parties, the s. 7 expenses will be limited to the cost of insurance premiums for the child, any expenses related to medical or dental treatment, or those reasonably related to the child’s schooling. [ 96 ] Finally, the parties shall exchange financial information by no later than June 1 st of each year for the purpose of readjusting any payment obligations by agreement, or failing such agreement, by attendance before a Family Justice Counselor and if required thereafter, by court application. GUARDIANSHIP, PARENTAL RESPONSIBILITIES AND PARENTING TIME [ 97 ] Mr.

H. in his application also sought an order to be named as a guardian of the child as well as an order for parenting time. I see no reason why he should not be a guardian, and as such order that both parents are guardians of the child, R. [ 98 ] Given the parties largely did not address the issues of parental responsibilities and parenting time, those aspects are adjourned generally. The parties may wish to resolve those aspects of these proceedings by agreement, failing which either of them are at liberty to obtain a further court date from the Judicial Case Managers. The Honourable Judge G.S.

Gill Provincial Court of British Columbia