A.M.P. v. T.W.P. Date:, 2017 BCPC 335

Citation: A.M.P. v. T.W.P. Date: 20171114 2017 BCPC 335 File No: F76592 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.M.P. APPLICANT AND: T.W.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: A.M.P.

Counsel for the Respondent: B.C. McCutcheon Place of Hearing: Nanaimo , B.C. Dates of Hearing: June 28, August 30, 2017 Date of Judgment: November 14, 2017 The Issue [ 1 ] T.W.P. (“Mr. P.”) and A.M.P. (“Ms. P.”) are the parents of H., who had her 19 th birthday in May of this year. H. suffers from Down Syndrome, and will never be able to live independently. Mr. P. concedes that she continues to be a “child”, as defined by

section 146 of the Family Law Act SBC 2011, c 25 (“the FLA” ), and that he has a continuing obligation to pay child support for her benefit. However, he contends that it would be “inappropriate” to assess his child support obligation under sections 3(1) (

a) and 3(2) (

a) of the Federal Child Support Guidelines SOR/97-175 (“the Guidelines ”), which provide that his child support obligation is the amount set out for payors of his income level in the British Columbia table annexed to the Guidelines (the “Table Amount”). Rather, Mr. P. says, his child support obligation should be assessed under section 3(2)(

b) of the Guidelines ; i.e. … the amount that [the court] considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. The Facts [ 2 ] Mr. and Ms. P. married in 1986, separated in 1999 and divorced in 2001. They have three children, of whom H. is the youngest. H. has resided with her mother since the parents separated. [ 3 ] Ms. P. worked in the home for most of the marriage, caring for the children and keeping the books for a construction business then owned and operated by Mr. P.

Since 2001, she has completed an undergraduate degree and a master’s degree in clinical psychology. However, she is not now employed. Her 2016 income comprised $11,468 in disability benefits, $12,400 in social assistance benefits and $18,500 in child support payments from Mr. P. [ 4 ] On her 19 th birthday, H. became eligible for, and has since received, disability benefits from the Province of British Columbia in the amount of $1033.42 per month and federal and provincial tax rebates of $400 annually. Her monthly income is therefore $1066.75.

Because of her disability, her mother manages her financial affairs. [ 5 ] In the jurisprudence to which I refer below, disability benefits of the kind which H. and her mother now receive are referred to as “PWD benefits”. [ 6 ] The PWD benefits payable to H. and her mother are unaffected by the amount of child support payable by Mr. P. - the government does not “claw back” the PWD benefits if the court orders child support to be paid. [ 7 ] Mr. P. remarried after his divorce.

He and his second wife each own 50% of the shares of a holding company, which, in turn, is a substantial shareholder of a large construction company. Mr. P. is employed as an executive in that business. His income varies from year to year, depending on the success of that enterprise. In 2016, he received a salary of a little over $150,000 and his holding company received dividends of approximately $148,000 from the construction company. In his financial statement filed on August 18, 2017, Mr. P. stated: My salary increased to $185,000 as of February, 2017.

I am also eligible to receive discretionary year-end bonuses. … I now receive director’s fees separately from the bonus. I do not know whether I will receive a year-end bonus for 2017. Making due allowance for the business cycle, Mr. P.’s gross annual income for the foreseeable future is likely to be $250,000 to $300,000, and his net annual income (i.e. net of income tax) is likely to be $150,000 to $180,000. A childless couple can live very comfortably on Vancouver Island on an after-tax income of $75,000. In his financial statement, Mr. P. estimates his annual expenses at $62,600.

It follows that, after meeting the expenses of a very comfortable lifestyle, Mr. P. has $90,000 to $120,000 per year (roughly $7500 - $10,000 per month) to spend or save as he chooses. [ 8 ] H. has the ability to attend to her personal hygiene, perform basic housework and prepare simple meals. Mr. P. asserts that she can be left alone for a few hours per day. Ms. P. says that she requires constant adult supervision. [ 9 ] H. attends adult day care, provided without charge by the Nanaimo Association for Community Living (“CLBC”) on Wednesdays and Fridays from 9:00 a.m. to 3:00 p.m. CLBC also pays Ms.

P. $466 per month to purchase respite care services for H. Ms. P. has been paying the respite care worker $15 per hour, but recently increased the wage to $20 per hour. At $15 per hour, the CLBC subsidy would purchase 31 hours per month of respite care. At $20 per hour, it would purchase 23 hours per month. [ 10 ] Mr. P. has not had a consistent

schedule of parenting time with H. in the past. However, he expresses a desire to have regular parenting time in the future, and proposes every second weekend from 6:00 p.m. Friday to 6:00 p.m. Sunday. Because of his obligations to his business, he may not be able avail himself of all of that time. He proposes that, if he is unable to care for H. on any of his scheduled weekends, he will pay for respite care during the time when he is unavailable. Mr. P. also wishes to have an annual vacation with H. and her adult siblings, and proposes one week each year on dates to be agreed. The Statutes

[11]

Section 150 of the Family Law Act SBC 2011, c 25 provides:

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the childsupport guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if (

a) the parties consent under

section 219 … or have an agreement respecting child support, and (

b) the court is satisfied that reasonable arrangements have been made for the support of the child. The “guidelines” referred to in

section 150 are the Federal Child Support Guidelines: Family Law Act Regulation BC Reg 347-2012,section 8. In this case, the parties have not agreed to an amount different from that mandated by the Guidelines. I am therefore obligedto order child support in the amount mandated by the Guidelines. [12] Sections 3(2) and 4 of the Guidelines provide: 3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority orover, the amount of the child support order is (

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. * * * 4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child supportorder is (

a) the amount determined under

section 3; or (

b) if the court considers that amount to be inappropriate, (

i) in respect of the first $150,000 of the spouse’s income, the … [Table Amount] … ; (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition,means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute tothe support of the children; and (iii) the amount, if any, determined under

section 7. It will be observed that very similar language is found in sections 3(2)(

b) and 4(b)(ii). [13] I am required to choose between two options: a. Option “A”: I can apply section 3(2)(a). If I do that, I should award the Table Amount; i.e. $1323 per month plus 0.74% of the portion of Mr. P.’sincome which exceeds $150,000 annually. That approach would require an annual reassessment of Mr. P.’s child support obligationbecause his income varies from year to year. Solely for purposes of illustration: (

i) if Mr. P.’s annual income were $250,000, the Table Amount would be [$1323 + ($100,000 x 0.0074 = $740)]; i.e. $2063 permonth; (ii) if Mr. P.’s annual income were $300,000, the Table Amount would be [$1323 + ($150,000 x 0.0074 = $1110]; i.e. $2433 permonth. b. Option “B”: If option “A” is “inappropriate”, I must apply section 3(2)(b). I must then award the amount that I consider appropriate, having regard toH.’s condition, means, needs and other circumstances and the financial ability of each of Mr. & Ms. P. to contribute to H’s support,disregarding the tables and taking into account all of Mr. P.’s income.

The Jurisprudence [14] The meaning of “inappropriate”, in this context, was discussed by Justice Bastarache, speaking for the court, in Francis v. Baker (SCC), [1999] 3 SCR 250 at paragraph 40: A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced withthose of fairness, flexibility and recognition of the actual "condition, means, needs and other circumstances of the children" on the other. Furthermore, this balancing must take into account the ordinary meaning of the word "inappropriate", as well as its use elsewhere in thestatute.

In my opinion, the plain language of s. 4 is consistent with such an

interpretation. Accordingly, the word "inappropriate" in thissection must be broadly defined to mean "unsuitable" rather than merely "inadequate". Courts thus have the discretion to both increaseand reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an

annual income exceeding $150,000. [15] The leading British Columbia authority considering

section 4 of the Guidelines is J.E.H. v. P.L.H. 2014 BCCA 310; [2014] BCJNo. 1996. At paragraphs 28 - 29, Justice Harris, speaking for the court, said (underlining added): The leading authority on the principles governing a judge's discretion under s. 4 of the FCSG is Francis v. Baker, (SCC), [1999] 3 S.C.R. 250. Madam Justice Newbury provided a concise

summary of these principles in Metzner v.

Metzner, 2000BCCA 474 at para. 30: 1) It was Parliament's intention that there be a presumption in favour of the Table amounts in all cases (para.42); 2) The Guidelines figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumptionthat the applicable Table amount is appropriate (para.42); 3) There must be clear and compelling evidence for departing from the Guidelines figures (para.43); 4) Parliament expressly listed in s. 4(b)(ii) the factors relevant to determining both appropriateness and inappropriateness of the Tableamounts or any deviation therefrom (para.44); 5) Courts should determine Table amounts to be inappropriate and so create more suitable awards only after examining all circumstancesincluding the factors expressly set out in s. 4(b)(ii) (para.44); 6)

Section 4(b)(ii) emphasizes the "centrality" of the actual situation of the children. The actual circumstances of the children are at leastas important as any single element of the legislative purpose underlying the

section (para.39). A proper construction of s. 4 requires thatthe objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognitionof the actual "condition, means, needs and other circumstances of the children" on the other. (para.40) 7) While child support payments unquestionably result in some kind of wealth transfer to the children which results in an indirect benefitto the non-paying parent, the objectives of child support payments must be kept in mind.

The Guidelines have not displaced the DivorceAct which has as its objective the maintenance of children rather than household equalization or spousal support (para.41). 8) The court must have all necessary information before it in order to determine inappropriateness under s. 4.

If the evidence provided isa child expense budget, then "the unique economic situation of high income earners" must be considered. 9) The test for reasonableness of expenses will be a demonstration by the paying parent that the budgeted expense is so high "as toexceed the generous ambit within which reasonable disagreement is possible": Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 at 345. I would add to this list the comment from Hollenbach v.

Hollenbach, 2000 BCCA 620 at para. 45, in which this Court interpretedFrancis as creating a "formidable onus" for wealthy payors seeking to establish that the FCSG amount is inappropriate. [16] Justice Smith considered sections 3(2) and 4 of the Guidelines in Schreiber v. Schreiber [2009] BCJ No. 540; 2009 BCSC 366. He said, at paragraphs 11 - 13 (underlining in the original): Each

section begins with a presumption in favour of the Guidelines and the onus is on the party seeking to depart from this to prove thatthey are inappropriate (Francis v. Baker, (SCC), [1999] 3 S.C.R. 250; and Wesemann v. Wesemann, (BC SC), 49 R.F.L. (4th) 435). However, the two sections set out different tests for determining what is inappropriate. Under s. 4, the question is whether the Guidelines amount is inappropriate. The paying spouse must show that application of the supporttable to the relevant income produces an amount beyond what will be useful for the child (Hollenbach v.

Hollenbach, 2000 BCCA 620,194 D.L.R. (4th) 151). However, the analysis under s. 3(2) focuses not on the amount set out in the Guidelines, but on whether the Guidelines approach isinappropriate. That is because the basic assumptions on which the table amounts are based may not apply to the living situation andneeds of an older child. In Wesemann, Martinson J. said: 16. The usual Guidelines approach is based on certain factors that normally apply to a child under the age of majority. That is, the childresides with one or both parents.

The child is generally not earning an income and is dependent on his or her parents. 17. The usual Guidelines approach is, in most cases, based on the understanding that, though only the income of the person paying isused to calculate the amount payable, the other parent makes a significant contribution to the costs of that child's care because the childis residing with him or her. 18. The closer the circumstances of the child are to those upon which the usual Guidelines approach is based, the less likely it is that theusual Guidelines calculation will be inappropriate. The opposite is also true.

Children over the age of majority may reside away fromhome and/or earn a significant income. If a child is not residing at home, the nature of the contribution towards the child's expenses maybe quite different. [17] A comprehensive review of the authorities relevant to children with permanent disabilities is to be found in the judgment ofJustice Voith in Kolmuss v. Kolmuss 2015 BCSC 1101; [2015] BCJ No. 1361. At paragraphs 38 - 39, Justice Voith said (underliningadded): In

summary, these five cases establish that the receipt of PWD benefits is often considered sufficient to trigger a s. 3(2)(

b) analysis. Thiswill particularly be so where, as in this case, the incomes of the parties are modest. * * *

The party requesting the change has the onus of establishing that the usual Guidelines approach is inappropriate. It may be inappropriatewhere the child's circumstances differ from the circumstances upon which the usual Guidelines approach is based. Some disabilitybenefit cases have held that the receipt of the benefit itself renders the usual Guidelines approach inappropriate; Briard at para.22; Poehlke at para. 51; Ross at para. 25. Others engage in an initial consideration of the financial significance of the benefit amount inthe context of the case; C.L.C. at para. 62; Carten at para. 21.

Expressing the same thought slightly differently: a. Briard, Poehike and Ross support the conclusion that, where the child receives PWD benefits, option “B” (defined in paragraph13, above) is applicable; b. C.L.C. and Carten support the inference that, where the child receives PWD benefits, option “A” or option “B” may beapplicable, depending on the circumstances of the case. In Kolmuss, Justice Voith found himself unable to decide the case on the basis of the evidence provided by the parties, and directed theparties to assemble and present further evidence.

For that reason it was unnecessary for him to decide which of the two lines of authorityto which he referred should be followed, and, as I read his judgment, he did not do so. However, the point arose for decision in Wright v.Frederickson 2017 BCSC 1062; [2017] BCJ No. 1225. At paragraphs 88 - 94, Justice Grauer concluded that the fact that the child inquestion was entitled to receive PWD benefits on attaining the age of the majority was not, alone, sufficient to support the inference thatOption “A” is inappropriate.

At paragraph 94, Justice Grauer said: Here, B, like a much younger child, is wholly dependent upon his parents, and even less capable of looking after his own needs. In all ofthe circumstances, including the financial ability of Mr. Frederickson to contribute to B's support, I conclude that theusual Guidelines calculation remains appropriate for B. The PWD benefit, taken in context, is a relatively insignificant contributiontowards B's considerable expenses and an insufficient basis for departing from the Guidelines. I am bound to apply the law as stated in Wright v.

Frederickson, and so to follow the second of the two lines of authority described byJustice Voith in the passage quoted above. As a consequence, either option “A” or option “B” may be appropriate, depending on thecircumstances of the case. Discussion [18] Two aspects of the matter deserve express recognition: a. Mr. P.’s large income is the product of his very significant personal achievements. He works hard for his money, and bringsvaluable professional skills to his work. Such qualities deserve respect. b.

Most parents look forward to the day when their children will become responsible, self-sufficient adults, allowing the parents tolay down some burdens and move gracefully toward retirement. Those aspirations are more significant to people of Mr. P.’s age thanthey are to younger people. H. will remain dependent on her parents for her entire life. As a society, we demand a lot of high achievers like Mr. P., and we should acknowledge the contributions which they make.

With thatacknowledged, the question before me is the quantum of child support which reasonable and well-informed Canadians would consider“appropriate” to require of Mr. P. in all of the circumstances of this case. [19] In Kolmuss, Justice Voith observed that the Table Amount will often be found to be inappropriate where “… the incomes of theparties are modest …”. If Mr. P.’s annual income were $20,000, it would be barely sufficient to provide the necessaries of life for Mr. P.and his present wife.

The Table Amount for an income of $20,000 and one child is $174 per month, plus a share of special andextraordinary expenses. Such an amount would be a very significant burden for a family with that income. By contrast, Mr. P. has$90,000 to $120,000 per year to spend after paying his family’s living expenses at a very comfortable standard. It is apparent that theburden of child support falls much more heavily on payor parents of modest means than it does on high-income earners like Mr.

P. [20] Many, perhaps most, of the individuals who have attained the age of majority, but continue to be “children” as defined bysection 146 of the Family Law Act, suffer from no disability. Most of them are post-secondary students. Many of them do not live witheither parent because they are attending educational institutions away from their parents’ homes. Those cases give rise to considerationsdifferent from those of children, like H., with permanent disabilities. For example: a.

It may be reasonable to expect a student with no permanent disability to fund part or all of her education from part-timeemployment earnings or student loans: Farden v. Farden (BC SC), [1993] BCJ No. 1315; (BC CA), 32 RFL (4th) 406; Darlington v. Darlington [1997] BCJ No. 2534; 32 RFL (4th) 406. In many cases, a wise parent will require thechild to do so, because children who pay part or all of their own way through college value the experience more highly than those whodo not. It is not always good parenting to make things too easy for children. No such issue arises in relation to H. b.

The objective for such students is to assist them to become self-sufficient through higher education. H. will never be self-sufficient. c. Those children’s needs are temporary, while H.’s will be life-long. d. Most significantly, such children require little care or supervision. H. requires full-time supervision, or something close to that,from her custodial parent. Because the means, needs and circumstances of such “children” are diverse, there will be many cases in which it would be“inappropriate” to order the Table Amount of child support.

[ 21 ] Option “A” is to order the Table Amount. In this case, the “Table Amount” will be of the order of $2000 - $2400 per month (paragraph 13, above). As noted in the authorities, there is a presumption in favour of Option “A”, and “… clear and compelling evidence …” is required to justify a rejection of Option “A” in favour of Option “B”. [ 22 ] Option “B” requires me to consider the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. a. H.’s condition is that she is unable to live independently.

She needs someone to provide her with a home and supervision. b. H.’s means are limited. Her income is just over $1000 per month. c. H.’s needs are great. In addition to food, clothing and shelter, she needs a responsible adult to guide and assist her through life. d. Mr. P.’s financial ability to contribute to H.’s support is very large. e. Ms. P.’s financial ability to contribute to H.’s support is very small. Her gross annual income (aside from child support payments) comprises PWD and social assistance benefits totalling about $23,000.

That is barely sufficient to provide her with her own necessities of life, without regard to expenses which she incurs to enable her to care for H. For example, she rents a 2-bedroom apartment, and could make do with a 1-bedroom apartment if she were not caring for H. f. I think it relevant to note that Ms. P.’s income-earning opportunities are limited by her decision to be H.’s primary caregiver. She provides H. with caregiver services for much more than 40 hours per week, and receives no remuneration for those services. Because she has chosen to do that, she cannot enter the full-time workforce.

I have no doubt that H. has benefitted from that choice. If one were to approach the question, as the parties did in their written submissions, by preparing a budget for H., one line item in that budget would be the fair market value of the supervision services provided by Ms. P. [ 23 ] Ms. P. provides H. with food, shelter and clothing. A fair figure for those services would be about $1000 per month, i.e. roughly equal to H.’s total income. Ms. P. also provides H. with much more than 40 hours per week of loving, attentive care.

If one assumes that she renders only 40 hour per week of such services (a gross underestimate), the fair market value of those services, at the market rate of $15 - $20 per hour, is $600 - $800 per week, or $2400 - $3200 per month. Ms. P.’s income is barely sufficient to meet her own basic needs, in large part because she has chosen to stay out of the workforce to care for H. Mr.

P. enjoys surplus income (after providing himself and his wife with a comfortable lifestyle) of $7500 - $10,000 per month. [ 24 ] In those circumstances, I think that a reasonable and well-informed member of the public would consider it fair to order child support at the rate of $2000 - $3000 per month. In effect, that would allow H. to pay $1000 per month to her mother for room & board, and compensate Ms.

P. at a very modest rate for the child care services which H. needs and which her mother provides. [ 25 ] The assessment of an “appropriate” amount of child support under Option “B” is not an arithmetic calculation. Rather, it is a subjective assessment of what a reasonable and well-informed member of the public would consider to be fair. In this case, that subjective assessment yields a figure of the same order of magnitude as the Table Amount. It follows that there is no clear and compelling reason to award either less or more than the Table Amount.

Special & Extraordinary Expenses [ 26 ] I see no reason to depart in this case from the usual rule that responsibility for H.’s special and extraordinary expenses should be divided between her parents in proportion to their incomes: Guidelines , section 7(2). [ 27 ] Ms. P. must prepare and deliver to Mr. P. by November 30 of each year a budget for H’s special and extraordinary expenses for the ensuing year. The budget must provide a reasonable description of each anticipated special and extraordinary expense, the name of the service provider and an estimate of the monthly cost. Mr.

P. must respond to the budget in writing by December 15 of each year, identifying those items which he accepts as appropriate and those which he disputes. If the parties are unable to agree on a budget for special and extraordinary expenses, either party may apply to the court to resolve the dispute. The cost of respite care is not a recoverable expense in this case because I have allowed for it in assessing Mr. P.’s support obligation under the Guidelines . Once the budget is established, Ms. P. may invoice Mr.

P. for special and extraordinary expenses incurred each month within the budgeted amount, and must attach copies of receipts for each expense to the invoice. The invoices are to be delivered to Mr. P. by the 15 th of the month following the expense, and are payable within 15 days of delivery of the invoice. [ 28 ] Unexpected special and extraordinary expenses, not provided for in the budget, may arise during the year. If the parties are unable to agree respecting them, either party may apply to the court to resolve the disagreement. [ 29 ] For the calendar year 2018, Mr.

P. will be responsible for 90% of special and extraordinary expenses. Parenting Time [ 30 ] There is no application before the court in relation to parenting time. It would clearly be of benefit to H. to have time with her father and siblings. Mr. P.’s proposal on that issue appears to be reasonable. If the parties cannot agree, they may set the matter for hearing. [ 31 ] It may assist the parties to know that my view on the question of child support would probably not change if Mr. P. were awarded, and were able to avail himself of, parenting time on the

schedule he proposes. Disposition [ 32 ] Mr. P.’s child support obligation will continue to be the Table Amount in each year. He will be responsible for special and

extraordinary expenses in the manner set out in paragraphs 27 - 29, above. November 14, 2017 ________________________ T. Gouge, PCJ