A.N. v. C.D.R. Date:, 2014 BCPC 201

Citation: A.N. v. C.D.R. Date: 20140903 2014 BCPC 0201 File No: F71923 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011, c. 25 BETWEEN: DIRECTOR OF MAINTENANCE ENFORCEMENT, on behalf of A.N. APPLICANT AND: C.D.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE

Counsel for the Minister under the B.C. Employment & Assistance Act on behalf of A.N.: K. Rongve Counsel for the Respondent: L. Wansbrough Place of Hearing: Nanaimo , B.C. Date of Hearing: August 28, 2014 Date of Judgment: September 3, 2014 A Corrigendum was released by the Court on September 9, 2014 . The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] Mr.

R applies to cancel arrears of child support, and for a reduction in future monthly payments of child support, for his son, J, on the ground that his actual income-earning capacity is significantly less than that imputed to him when the child-support order was made in 2007. If his income-earning capacity is assessed by reference to employment opportunities available to him on central Vancouver Island, he is entitled to the order which he seeks. If his income-earning capacity is assessed by reference to employment opportunities elsewhere, the question is more complex. Ms.

Wansbrough says that it would be unreasonable to expect him to relocate. I am not satisfied that there is a sufficient evidentiary basis to support that conclusion. [ 2 ] Mr. R is the father of two children who have different mothers. Mr. R’s son, J, now age 7, lives with his mother. Mr. R’s daughter, B, now age 6, lives with Mr. R. [ 3 ] On December 19, 2007, His Honour Judge Klaver of this court granted an order, imputing to Mr. R an annual income of $40,000 and directing that he pay to J’s mother the sum of $370 per month on account of child support. J’s mother is a recipient of government income assistance.

As a result, the Ministry of Social Development and Social Assistance has a pecuniary interest in enforcing Mr. R’s obligations under that order. As at February 13, 2014, the accumulated arrears and interest owing by Mr. R under the order were $13,339.14. Mr. R has made no payments since February, 2014. The Director of Maintenance Enforcement also has a claim for $740 in default fees. [ 4 ] Mr. R’s annual income since 2007 has been substantially lower than $40,000. His actual income in each year was: 2006 $19,854 2007 $16,725 2008 $29,053 2009 $17,579 2010 $28,746 2011 $20,740 2012 $15,739 2013 $2,291 [ 5 ] Mr.

R is a drywaller by trade, and also works for a local moving company. His financial situation became more difficult in January, 2013, when he gained custody of B, who had previously resided with her mother. B’s mother is unable to care for her because of substance-abuse and related issues. Drywallers usually start work early in the morning, which presents serious challenges for a single parent with a young child. [ 6 ] Mr. R did not work in March, 2014, and does not recall whether he worked at all in April or May.

In June, he found part-time work as a drywaller with a construction company in Nanaimo, and part-time work as a mover with a local moving company. Both jobs are casual, in the sense that his employers call him in when there is work for him to do. In June, 2014, he earned about $800 working for the moving company and about $280 working for the construction company. He hopes to work longer hours later in the year. [ 7 ] Mr. R’s mother is a heavy equipment operator, who works in Fort McMurray, Alberta.

She gives him about $800 per month, as a voluntary contribution to his living expenses, and pays his monthly telephone bill. Mr. R’s girlfriend, who lives in Nanaimo, also gives him money from time to time to assist him with living expenses. [ 8 ] As one would expect from the figures quoted, Mr. R and B experience a very modest standard of living. [ 9 ] Mr. R has not sought employment outside the Nanaimo area.

He said that he has made a diligent search for employment in Nanaimo, and found only the opportunities mentioned above. [ 10 ] As a family court judge on central Vancouver Island, I see many families who live on Vancouver Island, while one spouse works in northern Alberta. I have heard evidence in many cases about employment opportunities and wage rates on Vancouver Island

and in northern Alberta, particularly in the construction industry. I consider myself to be entitled to draw upon that experience in assessing Mr. R’s present application. The basic facts are that construction jobs are few, and relatively poorly paid, on Vancouver Island. Construction jobs are plentiful, and very well paid, in northern Alberta. I am not surprised that Mr. R’s job search in Nanaimo has been unfruitful. I do not share his optimism that things will improve in the near future. That being so, I enquired of Mr.

R why he had not sought employment in Fort McMurray, having particular regard to his mother’s residence there and her apparent willingness to assist him in his parenting duties. He replied that: a. He is resolved to foster B’s relationship with her mother (who resides in Nanaimo). That is a more challenging task than in other families because of the mother’s substance-abuse issues. b. He is determined to maintain his relationship with J, who resides with his mother in Nanaimo. I have adjudicated many family disputes in which similar issues have arisen, and mediated many others.

In some cases, long-distance parenting is viable, and in others it is not. Each family is unique. [ 11 ] I offered counsel the opportunity of a family case conference with the two mothers, in the hope of fashioning an arrangement which would allow Mr. R to maximize his income-earning opportunities, while simultaneously fostering B’s relationship with her mother and Mr. R’s relationship with J. Counsel firmly declined that opportunity. I observe that many other families have succeeded in devising and implementing functional parenting arrangements when faced with similar challenges.

I was not told why that could not be done in this case. [ 12 ] The following principles were adopted in Hanson vs Hanson [1999] BCJ #2532: 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 "no answer 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 income is an irrelevant factor." … 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability 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 end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because 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.

When assessing income-earning capacity, it may be appropriate to consider career opportunities available to the payor parent in other provinces, even if they would require the payor parent to relocate: Hein vs Hein 2009 SKQB 23 ; [2009] SJ #156 @ paragraph 10; Monkman vs Monkman 2013 SKBQ 80; [2-13] SJ #138 @ paragraph 23. Whether that is appropriate depends on the circumstances of each individual case. [ 13 ] In this case, I was provided only with the bare outline of facts recited above, and with Ms. Wansbrough’s resolute assertion that: (

i) Mr. R has no intention of relocating; and (ii) I have no jurisdiction to require him to do so. Ms. Wansbrough is, of course, correct in the latter assertion. However, I can, and should, take into account his refusal to consider relocation opportunities in my adjudication of his present application.

If I were given more information about his family situation, the efforts which have been made to agree on family arrangements which would allow him to relocate, and why his situation differs significantly from that of many other families, similarly situate, who have managed to agree upon workable arrangements, I might be persuaded that I should not consider relocation opportunities in assessing Mr. R’s imputed income. However, I find an unexplained refusal to consider the prospect of relocation to be unpersuasive. [ 14 ] At present, I am not persuaded to grant Mr. R’s application.

However, rather than dismiss the application outright (which would end the matter), I think it appropriate to allow Ms. Wansbrough the opportunity to apply to re-open the case for Mr. R if she is so instructed. Unless such an application is filed by September 30, 2014, the present application will be dismissed. September 3, 2014 __________________________ T.

Gouge, PCJ CORRIGENDUM - Released September 9, 2014 In the Reasons for Judgment dated September 3, 2014, the following changes have been made. [ 15 ] The cover page be amended to reflect “In the Matter of The Family Law Act, S.B.C. 2011, c. 25 ” in place of “In the Matter of

The Family Maintenance and Enforcement Act, R.S.B.C. 1996. c.46 ” and also to reflect “Counsel for the Minister under the B.C. Employment & Assistance Act on behalf of A.N.: K. Rongve” in place of “Counsel for the Director: K. Rongve”. [ 16 ] On Page 1, paragraph [3], line 8 should be replaced with the following sentence: “The Director of Maintenance Enforcement also has a claim for $740 in default fees.”