Pearson v. Pearson

2011 BCSC 1388 Pearson v. Pearson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Pearson v. Pearson, 2011 BCSC 1388 Date: 20111017 Docket: 21516 Registry: Cranbrook Between: Tara Layne Pearson Claimant And Edward Stephen Pearson Respondent Before: The Honourable Mr. Justice Melnick Reasons for Judgment Counsel for the Claimant: A. Etheridge Counsel for the Respondent: M. Fuchs Place and Date of Hearing: Cranbrook, B.C. September 20, 2011 Place and Date of Judgment: Cranbrook, B.C. October 17, 2011 [1] The claimant, Tara Layne Pearson ("Ms. Pearson"), seeks to move to Red Deer, Alberta from Cranbrook with the two young children of her former marriage to the respondent, Edward Stephen Pearson ("Mr. Pearson"). She also seeks child and spousal support. He opposes the move and the quantity of support she seeks. I. BACKGROUND [2] The parties met in 2002. At the time, both were living in Red Deer. Ms. Pearson became pregnant shortly afterwards. That precipitated their commencing to cohabit in June 2002. [3] They moved to Cranbrook in 2004, then to Sparwood later that year for Mr. Pearson's employment. While in Sparwood, the parties had their second child. [4] Mr. Pearson is from Cranbrook and his parents live there. His parents offered to subdivide their rural property so that the parties could construct a home on it. The parties moved to Cranbrook in 2008 with this in mind. They invested in a modular home and improved the property. As often happens, this ended up costing more than originally budgeted for. But the home and its location provided convenient access to Mr. Pearson's parents who lived next door, a place to keep a horse, and so on. [5] Given the lack of available employment in the Cranbrook area, Mr. Pearson took a job in the oil fields in northern Alberta. He works one week on, one week off. Ms. Pearson is a part-time recreation and care aid at a retirement home in Cranbrook. [6] In July 2010, Ms. Pearson told Mr. Pearson that she wanted out of the marriage. The timing was inconvenient because they had just signed a mortgage to increase the financing on their home. Ms. Pearson wanted to be bought out. To keep the home and property, Mr. Pearson paid her her equity. This involved increasing the mortgage and paying a penalty in the process. This, he said, tied him to his well-paying job in Alberta more than he wanted. He keeps it out of economic necessity, he says, not because he likes the working conditions. [7] When they separated, the parties entered into a separation agreement with the advice of counsel. Among other things, they agreed to joint custody of the children, that the children would initially be with each party approximately 50% of the time, but that the day to day residence, care and upbringing should be with Ms. Pearson with reasonable access to Mr. Pearson. This apparent contradiction was explained by counsel for Mr. Pearson as apparently being for the purpose of ensuring Ms. Pearson received the Federal Child Tax Credit. In fact, the children have been alternating their residence between those of the parties. Mr. Pearson has them on his weeks off, although Ms. Pearson alleges that some of that time the children are with Mr. Pearson's parents while he recreates with friends. [8] The parties also agreed to a somewhat unusual arrangement whereby Mr. Pearson agreed to pay Ms. Pearson $700 every two weeks for what was described as child and spousal support. The agreement did not distinguish what portion of the payment was for one or the other. But, says Ms. Pearson, it does establish her entitlement to spousal support. [9] Ms. Pearson is now engaged to be married to a man, Mark Graham ("Mr. Graham"), of Red Deer. He is a special education teacher with a 2,500 square foot home that is eight blocks away from a school that the children would attend. Other than those facts, I know nothing about Mr. Graham other than that he is capable of and willing to help the children with schoolwork. I do not know if Mr. Graham has been previously married, has children from a prior relationship, or the extent of interaction the children may have with his extended family. [10] Ms. Pearson claims that on March 22, 2011, after receiving the Notice of Claim in this action, Mr. Pearson contacted her and threatened her, her horse, her dog and Mr. Graham with physical harm. Mr. Pearson has since been charged with a criminal offence or offences arising out of the incident. Mr. Pearson denies the incident but says little else about it as the trial is to take place on December 1, 2011. [11] Arising from this incident, Mr. Pearson is under a no-contact order respecting Ms. Pearson other than what is required to arrange the exchanges of the children. Thus, says Ms. Pearson, co-parenting is presently impossible. [12] Ms. Pearson lives in a mobile home in Cranbrook. The children share a bedroom. In Red Deer, they would each have their own bedroom at the home of Mr. Graham, she says. She says she will be happy in Red Deer too as she has friends there and her family, although not in Red Deer, will largely be closer. She finds Mr. Pearson's mother adversarial now; they no longer have a good relationship. She claims she has no friends in Cranbrook, but has friends in Red Deer. Mr. Pearson responds by saying she never had friends in Red Deer when they were there, so why would she now? He also disputes her claim that she has no friends in Cranbrook, pointing to activities she does with persons he says are friends. [13] Ms. Pearson says the principal driver of her desired move to Red Deer is the need of employment. She claims that she is unable to get full-time employment in Cranbrook. Mr. Pearson says she makes little or no effort to get extra employment and is not available for it anyway as she goes to Red Deer to be with Mr. Graham most weeks when he has the children. Thus, she is not available for any extra work hours that might become available during those weeks. [14] What is not much in dispute is that, for whatever all the reasons may be, there is a great disparity in the incomes of the parties. There is dispute over the extent of the disparity, but not the fact of the disparity. Mr. Pearson says his future income will be in the range of $130,000 a year. Ms. Pearson says that recently it has been more like $155,000 a year, with bonuses. Ms. Pearson's income is in the range of $13,500 to $22,000. Mr. Pearson suggests that I impute income to her of about $35,000 as, in his view, she is capable of earning that much, particularly if she returns to part-time waitressing to supplement her income. Ms. Pearson says that because she is unable to afford childcare, she sometimes cannot accept extra shifts as a result. [15] Ms. Pearson really takes two positions on income respecting her desired move to Red Deer. The first is that she would have work readily available in the $35,000 a year range and the second is that she would not really require spousal support anyway as she would be married to and supported by Mr. Graham. Mr. Pearson argues that there is no proof that Ms. Pearson's employment prospects would be better in Red Deer. He has a point, but Ms. Pearson is more confident of her prospects there. II. DECISION [16] To a certain extent, the elephant in the corner of the room in this case is the pending criminal trial in December. Is Ms. Pearson exaggerating the extent of the incident for tactical advantage or is it a serious matter that points to the possibility of Mr. Pearson not being a person who is an appropriate co-parent? Will the result continue to cripple their ability to communicate, as is the case now under the no-contact order? [17] This case has been put forward as a summary trial to make final determinations on a range of issues affecting the future lives of the parties and their children. However, in my view, two months before something as potentially important to the outcome as the criminal trial is not the time to decide such issues as whether the equal co-parenting should continue; whether one parent or the other should provide the principal residence for the children - that is the home in which the children would live most of the time, not half of the time; whether, despite the lack of evidence about Mr. Graham, a move to another community might be positive for the children despite their removal from frequent contact with Mr. Pearson's parents and other family. [18] I can say that, from the facts outlined above, this will be a difficult decision whenever it is made. But it is a decision that should not be taken prior to knowing the outcome of the criminal trial. I therefore adjourn the summary trial with respect to making a final determination until the result of the criminal proceedings is known. I expect that counsel will set a new date before me for a continuation with such additional evidence as is required to update me with respect to any changes in the parties' situations. [19] In the meantime, it is appropriate to make the following interim orders. [20] On the basis of his past income and evidence concerning his likely future income, I impute income to Mr. Pearson of $140,000 a year. As to Ms. Pearson, I impute income to her of $20,000 a year. I find that, even in Cranbrook, she is capable of earning at least that much and that her recent income level of $13,500 a year is more a reflection of her involvement with Mr. Graham than a lack of available work. As I will be increasing child and spousal support, she will not have an argument that she cannot afford childcare. [21] Thus, I award interim child support to Ms. Pearson for the two children of the marriage in the amount of $1,940 per month, effective October 1, 2011. As for spousal support, I award $2,100 a month, in the low end of the range of $2,089 to $2,866 of the Spousal Support Advisory Guidelines. I have chosen the low end of the range because Mr. Pearson has been put in a position of financial inflexibility due to Ms. Pearson wanting to have her equity out of the house (and, to be fair to her, Mr. Pearson's decision to keep it rather than sell it). This, too, will be effective October 1, 2011. [22] The parties shall have interim joint custody and joint guardianship (on the Joyce model) of the children. On an interim basis, the existing week on, week off exchange of the children should continue until I can finally resolve the mobility issue in dispute. Essentially, neither party will have primary care of the children until further order. Until that final resolution, Ms. Pearson shall not move to Red Deer with the children but shall continue to maintain a residence in Cranbrook. [23] Ms. Pearson wants ownership and possession of the horse. That cannot be resolved at this time. The horse will stay where it is on the former matrimonial property in the meantime. "Melnick J."