B.G. v. S.G. Date:, 2018 BCPC 41

Citation: B.G. v. S.G. Date: 20180206 2018 BCPC 41 File No: F38693 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.G. APPLICANT AND: S.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. GILL Counsel for the Applicant: M. Campbell

Appearing on their own behalf: S.G. Place of Hearing: Surrey , B.C. Dates of Hearing: February 5, 6, 2018 Date of Judgment: February 6, 2018 Introduction [ 1 ] The applicant, B.G., seeks a recalculation of his child support obligation to the respondent, S.G. in respect of the two children of their marriage, T. aged [omitted for publication] and V. aged [omitted for publication]. The parties have a shared parenting arrangement whereby the income of each parent is offset against the amount owed to the other parent. In this regard Mr. G. seeks an imputation of income to Ms.

G. in an amount greater than she currently earns, so as to reduce the net amount he currently pays to her. [ 2 ] The specific question is whether Ms. G. is intentionally underemployed pursuant to s. 19(1)(

a) of the Federal Child Support Guidelines . Facts [ 3 ] On June 21, 2016, Ms. G. obtained an ex-parte order of child support against Mr. G. on the basis of his annual income being imputed at $65,000 and hers fixed at $16,345. The offset resulted in a net order of child support payable by Mr. G. in the amount of $719 per month. [ 4 ] On August 11, 2017, the parties agreed to a without prejudice consent order reducing Mr. G.’s net child support obligation to the amount of $410 per month. [ 5 ] Neither Mr. G. nor Ms. G. is currently earning the maximum annual income they have earned in the past. On the part of Mr.

G., he transitioned out of his former employment of many years in the printing industry and into his present employment as an alarm and security company technician. His income from this employment in recent years has been as follows: • 2017 $52,780 • 2016 $52,242 • 2015 $54,506 [ 6 ] Mr. G. agreed that he earned more in his former job in printing. For example, his Notice of Assessment for the year 2011 placed his total income at $71,961.

Although he testified that part of that sum represented not income from employment but rather an RRSP he had cashed in, he was unable to recall the specific amount involved. [ 7 ] Mr. G. testified that his current job, even though paying him less, offers him what he regards as a happier and healthier workplace, not having to work nights or weekends with more time to spend with the children, and greater opportunity for growth. [ 8 ] Ms. G. has earned varying amounts of income over the years, in work that has involved administrative support.

She has no specific job training other than what she learned in her various jobs, starting out in the photocopy room and working her way up to through reception work, working for a number of years for an architect, and at her peak earning, in or about the years 2013 and 2014 working as administrative support in the security and fire alarm industry where she earned approximately $43,000 per year. This is the amount Mr. G. believes ought to be imputed to her. [ 9 ] Ms. G. maintains she left her peak earning employment for many of the same reasons that Mr. G. did.

She found the work stressful, with little opportunity for further growth, and having insufficient flexibility to accommodate the needs of their children. She is currently completing her Grade 12 diploma.

Thereafter, she wishes to pursue a career in midwifery or as a registered nurse, either of which is a four-year program in which she must compete for admission. [ 10 ] The children have been diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) and in that respect they have special needs that I believe would be assisted by the job flexibility that both parents also appear to recognize as desirable. [ 11 ] Ms. G. does a number of part-time jobs to fill the time when she is not at school.

Although she does currently work, it is only on a part-time basis in order that she may devote the time needed to complete her Grade 12. She currently works a number of jobs concurrently, including cleaning offices, waiting tables at a restaurant, and working for a naturopath. She provided her CRA Notices of Assessment of her income from employment from all sources, over the years as follows: • 2008 $17,054 • 2009 $18,034 • 2010 $21,002 • 2011 $23,752 • 2012 $1,289

• 2013 $24,282 • 2014 $50,752 • 2015 $39,645 • 2016 $22,470 [12] Ms. G.’s total income for the 2017 calendar year, according to her sworn financial statement, is in the amount of $17,000. [13] As will be seen from the foregoing, there is considerable variation in the income earned by Ms. G. spanning these years. Muchof the variation arises from various periods of time she did not work following the birth of their two children. It also reflects her generalincrease in income attributable to the on-the-job development of her office skills over the years. [14] As earlier noted, the main issue is whether Ms.

G. is underemployed such that a higher amount of income ought to be attributedto her for the purpose of reducing the offsetting child support obligation payable by Mr. G. Law [15] Section 19 (1)(

a) of the guidelines provide as follows: 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally underemployed or unemployed, other than where the underemployment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [16] In Barker v. Barker, 2005 BCCA 177, the respondent, a dentist, was found by the trial court to be intentionally underemployedby working only four days per week when he could work a full week of five days.

Recognizing the respondent’s understandabledecision to reduce his hours worked in order to assist his ailing common-law spouse, the court affirmed this nonetheless did notconstitute legal justification justifying his underemployment for the purposes of determining his guideline income for calculating childsupport. [17] In McCaffrey v.

Cutcliffe, 2009 BCSC 242, at para. 35 the Court noted that a parent’s desire to be available for children beforeand after school is not a sufficient reason to justify underemployment in the absence of a child’s special needs, and income can beimputed to that parent. [18] At para. 35, the principles applicable to imputation of income were noted to have been endorsed by the Appeal Court in the caseof Watts v. Willie, in the following terms: [35] In this case Mr. McCaffrey has cited the decision of our Court of Appeal in Watts v. Willie, 2004 BCCA 600. In that case, afterreferring to s. 19(1) (

a) of the guidelines, the Court said this at para. 16: 16 In Donovan v. Donovan (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80, Madam Justice Steel gave the judgment of the court andwrote at para. 21: The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income,"Determination of Income, Disclosure of Income", Child Support in Canada, Canrab Inc., August 3, 1999). 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work.

It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor" (Van Gool v. Van Gool (1998), (BC CA), 166 D.L.R. (4th) 528 (B.C.C.A.)). 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. 3.

A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower endof the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simplybecause the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5.

A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. [19] In Van Gool v. Van Gool, (BC CA), [1998] B.C.J. No. 2513, the Appeal Court at para. 30 made it clear thatany imputation of income should not necessarily be restricted to actual income but rather should take into account potential earningcapacity.

At para. 34 the Court further noted that limited job experience should not be a bar to seeking work not requiring significantskills. [20] Finally, in McNaught v. Friedman, [2011] B.C.J. No. 1166, Gopel, J. (as he then was) articulated helpful guidance on theconsideration of whether to impute income to a spouse who is under-employed because of schooling. In McNaught, the payor spouse

sold his business and was seeking to re-train. The Court described the situation in the following terms: [87] Mr. Friedman has chosen to go to school as opposed to immediately returning to the work force. This is a voluntary decision.

Unless his intentional unemployment is caused by reasonable educational needs, the court must impute income. [88] Once it has been established that a spouse is intentionally unemployed, the burden shifts to that spouse to establish that the educational needs are reasonable and that the unemployment is required by virtue of the reasonable educational needs: Drygala at para. 39-40. [89] Mr. Friedman operated the Music Store for more than 25 years. Its collapse was not of his making. His plan to return to school to obtain trade skills is a reasonable one. Sequoia is but 8 years old.

She is going to require support for many years. The training that Mr. Friedman has now embarked on will leave him better able to make increased financial contributions to Sequoia in future years. I find his present unemployment to be required by his reasonable educational needs. [90] In the result, I decline to impute income to him during the course of his studies. Accordingly, Mr. Friedman's obligation to pay child support will be suspended for 12 months commencing June 1, 2011. The suspension is premised on Mr. Friedman's attendance during that time at the trade school course.

If he does not register and attend then his child support obligations will continue. Analysis [ 21 ] The foregoing authorities establish that pursuant to s. 19(1)(

a) of the Guidelines , there must be an honest effort to meet one’s earning potential and anything falling short of that can justify the Court considering whether to exercise its discretion to impute any deemed shortfall. [ 22 ] It is clear that Ms. G.’s current job skills enable her to earn up to $43,000 per year if she engaged in full-time employment of the type she has previously done. [ 23 ] What is equally clear is that not all cases of underemployment will necessarily result in the imputation of income. To so qualify, the underemployment must be found to be intentional, and not excused by any stipulated exceptions. [ 24 ] The exceptions pursuant to s. 19(1)(

a) include underemployment where it is required by the needs of a child of the marriage or by the reasonable educational or health needs of the spouse. The question is therefore whether Ms. G. qualifies under any of those exceptions. There are two aspects requiring such consideration, firstly the special needs of the children, and secondly whether her stated educational needs are reasonable. [ 25 ] Although she was on a stress leave at the end of 2015 for two months, there is no evidence before me currently supporting underemployment for health reasons.

As well, none of the other subsections under s. 19 were raised by either party as being relevant to this case. [ 26 ] Ms. G. maintains that her underemployment is required for her to attend to the special needs of their children. While I agree that the children do indeed have needs that would benefit from job flexibility on the part of both parents, I am not persuaded that this constitutes a reasonable excuse for her to be underemployed. [ 27 ] Ms. G. is also in the process of obtaining her Grade 12 diploma. That is perfectly reasonable.

Without it, many opportunities will be closed to her and it could be said that her past employment reflects the most she could ever likely earn. [ 28 ] In my view, it is equally reasonable for Ms. G. to want to pursue higher learning, beyond her Grade 12 diploma to further increase her earning potential. Her Grade 12 diploma will open the door, as it does for many, to further educational pursuits that could afford her even higher income, as well as providing other benefits. This additional income and other benefits will accrue to not only her, but to the children and indirectly, to Mr. G. [ 29 ] Mr.

G. submits that Ms. G.’s career aspirations to be a midwife or a registered nurse are unrealistic. Once underemployment has been established, and as per McNaught, supra , the onus shifts to her to establish that her educational plan is reasonable. [ 30 ] Ms. G. presented a body of materials outlining the programming she wants to take. Her employment as a midwife, or as a registered nurse, would increase her income considerably in the years to come. She also presented proof of her academic performance thus far. She has achieved straight “A’s” in her courses taken thus far.

She has also presented reference letters from her teachers describing her as capable, hard-working and diligent in her attendance at classes. Another reference letter describes her assignments as illustrating her dedication to presenting her work in a clear, neat and organized manner.

The author in particular notes that, “Many students juggle school with other parts of their lives and are often not successful; however, S.G. successfully balanced her academic goals with life outside of school to complete this course with an excellent understanding of the biology 12 learning outcomes.” [ 31 ] Despite her schooling and child rearing responsibilities, Ms. G. has not relinquished employment altogether. She is carrying 3 part-time jobs to allow her to earn as much income as is reasonably compatible with her other obligations.

To reduce her living expenses, she has sought out subsidized, low income co-op housing. Like Mr. G., she appears to be a highly organized, motivated, intelligent person genuinely motivated to do what is in the best interests of their children. She is not idle as a result of her underemployment, but rather fully engaged. [ 32 ] Ms.

G. has a realistic view of the challenges associated with gaining admission to the midwifery or R.N. program, but she is confident that with her grades, teacher references, experience and mature student status, her chances of gaining admission should not be regarded as unreasonable or unrealistic. While it is impossible to predict anyone’s chances of admission into these types of programs, I tend to agree that her pursuit of this goal constitutes a reasonable exception to imputing to her a full-time income reflecting her current capacity.

To that extent, I find that she is not intentionally underemployed within the meaning of s. 19(1)(

a) of the Guidelines .

[ 33 ] Based on the foregoing, the income attributed to Ms. G. during the course of her studies will be in an amount that reasonably reflects what she can earn from part-time employment during that time. I believe that this amount should be roughly between the amounts she actually earned in the years 2016 and 2017. As such, I determine her income for child support calculations during the course of her Grade 12 completion as well as for her midwifery or registered nursing program thereafter, in the sum of $20,000 per annum. [ 34 ] During any period of time that Ms.

G. is not engaged in the foregoing studies, her income will be imputed in a higher amount. During such periods, I do not believe it to be any fairer to impute at her highest previous salary ($43,000), than it would be to do so for Mr. G. A more realistic imputation of income, based on her current job skills and in the context of what she has in the past earned while working full-time between the years 2008 and 2015 for a job that would provide her with the same type of daytime work schedule, healthy work environment, freedom from having to work overtime or on weekends, and general flexibility as enjoyed by Mr.

G., would in my view be in the sum of $35,000 per year. [ 35 ] Ms. G. must diligently pursue her studies, and must keep Mr. G. fully appraised of her academic program and progress therein, and any change in her academic enrolment status at all times. During any periods of time that she is not engaged in the schooling plan she is currently completing and has put forth, including in the event that she is not successful in gaining admission to those programs she has cited, her income will be imputed at the higher amount above noted, with the offsetting child support to be calculated accordingly. [ 36 ] Mr.

G.’s Guideline income, for child support calculation purposes, will be fixed at $52,800, which is the amount he earned in 2017. [ 37 ] As a result of the foregoing, and effective March 1, 2018, the offsetting amount for child support paid by Mr. G. in to Ms. G. will be $497 per month during Ms. G.’s academic studies as above contemplated, and otherwise it will be $259 per month when she is not. Parenting

Schedule [ 38 ] The final matter for determination is that of the parenting schedule. Mr. G. seeks a small change that would allow him, on the Fridays when he is returning the children to Ms. G., to drop them off directly at school as opposed to taking them to her residence. He says this would save the children from having to get up so early and would cut down on their time transiting between different locations. If this change were allowed, Mr. G.’s current partner would often, if not always, be the one taking the children to the school on the Friday mornings. [ 39 ] Ms. G. opposes this change.

She maintains that dropping off the children is an important opportunity to connect with the teachers and that she would therefore support the change only if Mr. G. himself were to be the one doing the transporting, so he could see the teachers. [ 40 ] Throughout the hearing, Mr. G. portrayed Ms. G. in as being overly controlling and unfairly accusing him of not doing his

part in scheduling and attending to the various activities and appointments for the children. Ms. G. in turn felt that she was more than happy to have Mr. G. assist in these roles, but that he didn’t want to. [ 41 ] Having carefully observed the parties, there is no doubt that both parties are devoted to their children. Ms. G. presented as an individual who was highly organized,

schedule oriented, and one willing and able to assume control when needed. Whether or not she is doing so excessively is difficult to say with any certainty; however I do not believe that Mr. G. is consciously shirking from his parental responsibilities. Fortunately, both parties have the commitment and the maturity, despite this friction, to largely rise above their differences and put the children first. In that, they are to be both commended. [ 42 ] I have concluded it to be in the best interest of the children that their father drops them off directly at the school on the relevant Fridays.

Even if his current partner, rather than he, is the one doing the drop off, the children will be better served by not having to get up so early, and by eliminating having to be first dropped off at their mother’s, only to almost immediately thereafter be taken by her to the school. Any need to communicate with the teachers can still be accomplished by either parent in other ways. The Honourable Judge Gill Provincial Court of British Columbia