D.L.H. v. J.V.H. Date:, 2016 BCPC 65

Citation: D.L.H. v. J.V.H. Date: 20160308 2016 BCPC 0065 File No: F8308 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.L.H. APPLICANT AND: J.V.H. RESPONDENT REASONS AFTER HEARING FINAL ORDER OF THE HONOURABLE JUDGE J. CHALLENGER Appearing on her own behalf: D.H.

Appearing on his own behalf: J.H. Place of Hearing: North Vancouver , B.C. Dates of Hearing: September 16, 17, and December 18, 2015 Date of Judgment: March 8, 2016 [ 1 ] D.H. filed an Application on June 23 rd , 2014 for child and spousal support. J.H. has not filed a Reply. However, the matter proceeded to a Family Case Conference and then was set for hearing as though a Reply had been filed. Disclosure and Determining the Income of Mr. H. [ 2 ] Mr. H. has never filed a full and complete Financial Statement as required under the Guidelines or the Family Law Act .

The Court has ordered him to comply with his statutory obligation to do so on October 14 th , 2014, January 20 th , 2015, April 1 st , 2015 and May 26 th , 2015. [ 3 ] He attended Court on December 18 th , 2015 assuming that his application for adjournment would be granted. It was not. The last order for disclosure specifically provided that at the hearing the issue of whether he should be penalized for failure to comply with disclosure and a determination of support would proceed. He provided no up to date income information whatsoever prior to the commencement of the hearing. [ 4 ] Mr.

H. did file a Financial Statement with the Court on March 30 th , 2015. It was incomplete with respect to details and attachments. He works as a realtor. He reported that he expected his income for 2015 to be $91,691.28. He reported expenses of $63,000.00 per year and did not report having any debt. [ 5 ] The attachments consisted of his 2014 T4A for commission income of $91,691.28, his T4A for 2013 showing income of $114,701.43, a year to date pay stub dated December 7 th , 2012 showing net income of $94,038.32 and his T4A for 2011 in the amount of $98,730.21. [ 6 ] Mr.

H. failed to show cause why he should not be penalized for not complying with his statutory duty to disclose or for failing to comply with the four orders made by the Court. He claimed his bookkeeper had been ill for some time and had not provided him with his documents. In evidence he conceded that all of the necessary information for the preparation of his tax returns and to properly complete a Financial Statement could have been obtained again or re-created but he chose not to do so. [ 7 ] Under ss. 22 (1) (

a) and 24 of the Guidelines the Court may draw a negative inference from his failure to comply and I do so. I find that Mr. H. has intentionally concealed his income in this proceeding for the purpose of reducing the amount he should be required to pay. [ 8 ] Pursuant to s. 19 of the Guidelines , the Court may also impute his income for the purposes of determining child and spousal support where he has failed to comply with his duty to disclose.

I impute his line150 income for 2015 to be $100,000.00 which is close to the average of his last four years income and also close to the average of his last three years income. [ 9 ] Furthermore, I impose a penalty against Mr. H. in the amount of $5000.00 for failure to comply with the four Court orders. The penalty is payable forthwith and is enforceable through the Family Maintenance Enforcement Program. Circumstances of the Parents and Children [ 10 ] The date of the marriage is not before the Court. Mr. and Mrs. H. separated in August of 2011. Mrs.

H. gave up her career as a flight attendant in 1992 in order to remain at home to raise their children. Mr. H. supported the family throughout the marriage. [ 11 ] There are two children for whom Mrs. H. is now seeking support: C.J. born [omitted for publication] and C.V. born [omitted for publication]. The family has remained living in the same residence since separation. The parents have kept their finances separate since separation. They have shared the custody or parenting time and responsibilities of the children equally. [ 12 ] Mrs. H. is now 59 years of age.

She obtained a full time job in retail sales in late 2015. She works 40 hours per week earning $14.00 per hour and will receive benefits after a probationary period. She moved into her own residence on December 1 st , 2015 with her son C.V. [ 13 ] C.J. went away to university in the fall of 2011 after her parents separated. She has remained in university full time since. Mrs. H. testified that C.J. has been paying her way through school with scholarships and loans. [ 14 ] C.V. was 15 at the time of separation and graduated from high school in 2014.

Since then he has been working part time at a minimum wage job and is planning on returning to school. [ 15 ] Mrs. H. said that since separation, Mr. H. has been paying the rent and utilities. She has been providing the children with food, clothing, phones and incidentals. C.J. has received support from her only when she is home over the summer.

[ 16 ] Mr. H. has also been contributing to the children’s expenses and paid for C.J.’s hockey expenses. [ 17 ] Mrs. H. has received the Child Tax Credit for the children since separation. She has been employed but has earned only a few thousand dollars a year over the past several years. She reports having $5000.00 in debt to MSP. [ 18 ] In all the circumstances I find that the test which should be applied with respect to child support is that of examining the condition, means, needs and circumstances of the children and the financial ability of the parents to pay pursuant to s. 3(2) of the Guidelines .

I find that the parents must have been contributing to the needs of children according to their respective abilities to do so. I find that neither parent is responsible to pay child support to the other up to December 1 st , 2015. [ 19 ] I grant leave to Mother to apply to review this order and to provide evidence as to whether the Court should consider the debt to MSP she listed in her Financial Statement as a special or extraordinary expense under s.7. [ 20 ] The evidence of Mrs. H. with respect to whether C.J. or C.V. remain dependent children is unclear.

She was not prepared to deal with that issue at the hearing. I also grant her leave to review this order and to provide evidence on this issue or should the circumstances of the children change. Spousal Support [ 21 ] Mrs. H. is entitled to spousal support on a compensatory basis. She is now 59 and is without formal education. She has not been in the workforce since 1992. [ 22 ] Mrs. H. has not been able to gain financial independence since separation as she has been parenting C.V. There is no evidence that Mr. H. provided her with the means to take steps to gain financial independence.

I infer from her evidence that she simply acquiesced to continuing to live in the same home as Mr. H. based on his position that they could not afford to live separate and apart and that he could not pay for her support. [ 23 ] I find Mrs. H. annual income to be $28,000.00. Mr. H. income has been found to be $100,000.00. I have calculated spousal support on a without child support basis according to the Spousal Support Advisory Guidelines . As I do not know the date of the marriage I have used January 1 st , 1992 as the date of marriage. This results in a high end support amount of $2760.00 per month.

I find the high end is appropriate given the strong compensatory factors in Mrs. H.’s claim. [ 24 ] Mr. H. will pay to Mrs. H. the amount of $2760.00 per month commencing December 1 st , 2015 and on the 1 st of each month thereafter until further order of the Court. ____________________________ The Honourable J. Challenger Provincial Court Judge