T.L.G. v. L.B.G.

2015 BCSC 1439 T.L.G. v. L.B.G. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: T.L.G. v. L.B.G., 2015 BCSC 1439 Date: 20150814 Docket: 37826 Registry: Penticton Between: T.L.G. Claimant And L.B.G. Respondent Before: The Honourable Madam Justice Barbara Young Corrected Judgment: The front page of the judgment was corrected on October 9, 2015 Reasons for Judgment Counsel for Claimant: V.J. Bonga Counsel for Respondent: C.D. Goodrich Place and Date of Hearing: Penticton, B.C. July 16, 2015 Place and Date of Judgment: Penticton, B.C. August 14, 2015 [1] This application is brought by the respondent to vary a final order made by this court on April 9, 2014. He seeks the following orders: A. Vary the respondent's child support and spousal support arrears as of January 31, 2015. including all interest be cancelled; B. The respondent's spousal support obligations be cancelled as of January 31, 2015 until further order of this court; C. For a declaration that the parties' child J.G., born September 12, 1995, ceased being a child of the marriage as of November 1, 2014; D. Based on the respondent being found to have an imputed annual taxable income of $65,755 ($52,557 non-taxable), the respondent will pay the claimant child support of $997 per month for the support of E.G., born September 24, 1999 and A.G., born September 24, 2002 applied retroactively to February 1, 2015 and continuing on the first day in each and every month thereafter until further order of this Court; E. The respondent will immediately notify the claimant in the event that he returns to work or his monthly income changes; and F. In the event J.G. remains a child of the marriage for child support purposes, the claimant will sign authorizations as necessary to allow the respondent access J.G.'s medical records and the status of his ICBC claim. No submissions were made about paragraph F. BACKGROUND INFORMATION [2] The parties have three children namely: A. J.D.D.G., born September 2, 1995 ("J.G."); B. E.L.G., born September 24, 1999 ("E.G.:); and C. A.D.G., born September 24, 2002 ("A.G."), (collectively the "Children"). [3] The parties commenced cohabitation on May 15, 1999 and separated on July 20, 2012. THE AGREEMENT [4] The parties signed an agreement on May 1, 2013 at the Family Justice Centre and neither party received independent legal advice. (The "Agreement"). [5] The Agreement stated that the respondent's guideline income was $143,540. For the purpose of determining the table amount of child support, the respondent agreed to pay $2,626 per month for the support of the Children commencing April 19, 2013 and continuing for so long as the Children are children as defined in the Family Law Act, S.B.C. 2011, c. 25. [6] The parties were to assess each of the parties' income information on June 1 each year for the purpose of assessing child support obligations. [7] The parties were to share special extraordinary expenses on an equal basis with each party being responsible for 50% of the Children's special expenses. The parties were to engage in discussion as to what the expenses shall be prior to incurring the expenses and the claimant agreed to provide receipts or invoices to the respondent for those expenses. [8] The Agreement only deals with child support, however, the respondent had also agreed to pay spousal support of $600 bi-weekly as a verbal agreement. His failure to comply with this verbal agreement was the reason that the claimant decided to proceed with the notice of family claim and obtain a court order for spousal support and child support. DIVORCE [9] On or about October 31, 2013, the claimant filed a notice of family claim in this family law proceeding. The respondent did not file a response and an order for divorce was made on April 9, 2014 finding the respondent's yearly income to be $143,500 and ordering him to pay the agreed to amount of $2,648 per month in child support and $2,500 per month in spousal support. [10] The respondent did receive a copy of the court order shortly after it was made and because the order backdated support to January 1, 2014 and included spousal support, he was immediately in arrears. The Family Maintenance Enforcement Program started garnishing his wages in June 2014. After the garnishment started, the respondent tried to work more hours in order to keep up with the payments. He was working five to eight week shifts before taking a week off. This increased his income from $119,244.17 in 2013 to $181,516.18 in 2014 because of the long hours he was putting in to meet the support obligations. [11] By the end of 2014 he was in arrears in the amount of $10,287. CHANGE IN CIRCUMSTANCES [12] The order that the respondent seeks to vary is the final order of divorce granted April 9, 2014 by a judge of the court and so the child support and spousal support provisions were made pursuant to the Divorce Act.. [13] I will deal with the application for variation of support based on the respondent's change of financial circumstances first in this decision. The Statutory Provisions [14] Section 17.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) deals with variation applications. Variation, Rescission or Suspension of Orders Order for variation, rescission or suspension 17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; or Terms and conditions (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. Factors for child support order (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. Factors for spousal support order (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. Guidelines apply (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines. Objectives of variation order varying spousal support order (7) A variation order varying a spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. (8) [Repealed, 1997, c. 1, s. 5] [15] The respondent suffered a pinched nerve in his neck on January 12, 2015 which has prevented him from working ever since. This pinched nerve was developing over time after 20 years of physically demanding work. [16] Dr. Susan Severide wrote a letter on April 10, 2015 to whom it may concern saying the following: Bruce is unable to work since January 12 for medical reasons. He remains unable to work and is requiring further investigation and treatment. Thank you. Yours sincerely Dr. Susan Severide. [17] The respondent went on short-term disability from January 13, 2015 to May 11, 2015 which is the maximum term available for short-term disability. He attached his pay stub for his short-term disability which showed that over 110 days he earned $20,328. This disability benefit is taxable. [18] The respondent applied for and is receiving long-term disability and has attached the application form prepared by his family physician, Dr. Susan Severide. He suffers from a pinched nerve in his neck, depression, hypertension and diabetes. Dr. Severide characterizes the respondent is very cooperative and wanting to go back to work. At the time of preparing the letter, she found he was unable to do his own occupation or any occupation. [19] He also attaches a letter he received from Sun Life Financial that approved him for long-term disability effective May 12, 2015. His monthly benefit is $4,379.05, and it is non-taxable. [20] According to s. 17.1(4) of the Divorce Act, before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [21] At the time of the divorce order the respondent's income was found to be $143,500. He says his actual line 150 income for 2012 was $140,632 and his income for 2013 was $119,244. [22] The respondent received a living out allowance when he was working in camp. If he remained in camp he received $50 a day. When his employer did not provide him with the camp, he was given a living allowance of $140 per day to cover accommodation that he had to finance with this money. On the occasions when he had to pay for a hotel it was usually about 45 minutes away from the camp and he had to pay for his fuel cost as well. [23] The living out allowance shows up on box 30 of his T4 slip. On some occasions he was able to save some of this money and not use it all on living expenses. [24] Now, because of his disability, his income will reduce to $71,045. This amount does include the non-taxable long-term disability payment and has been grossed up using the DivorceMate calculator for the purpose of determining his guideline income. According to the child support guidelines, if the respondent was continuing to pay child support for three children under the age of majority, he would be paying $1,409 dollars per month. If he is required to pay for two children then his child support would be $1,078 per month. [25] The respondent relies on the case of Allan v. Allan, 2005 BCSC 424 where the respondent's inability to work for medical reasons and receipt of long-term disability was found to be a material change in circumstance which had not been anticipated at the time the original order was made. [26] The respondent seeks a variation of spousal support based on his change in financial circumstances. Mid-range for spousal support based on his income of $71,045 would be $627 per month. [27] The claimant seeks an increase in spousal support because the respondent's income was $181,516 in 2014 and she did not receive an increase in support of that time. The respondent notes that he did not apply for a decrease in spousal support in 2013 when his income decreased . [28] Now the respondent's financial circumstances have dramatically changed and I find that it would be unreasonable to increase support at this time. [29] As an alternative, the claimant proposes that the respondent's income over the last three years be averaged to determine his guideline income. His 2013 income was $119,244. His 2014 income was $181,516. His 2015 income is likely to be $71,045. The three-year average would be $147,130. [30] If the three-year average were used to assess the respondent's current financial situation, his spousal support would go down to $2,284 and his child-support would go down to $2,683. At the present time, he would be unable to pay this amount. It is not known whether the disability is temporary or permanent. If he is able to return to work this may be a reasonable proposal. [31] The claimant's position is that there is no evidence of a significant and long lasting change in circumstance yet. She is not denying that the respondent has a disability, which is being investigated, but says that we do not know if he is able to recover from this disability and return to work or if he is able to return to some other form of work. [32] The claimant cites the leading case of Earle v. Earle 1999 BCSC 283, where Madam Justice Martinson (as she then was) set out some important legal principles used to make decisions about child maintenance and variation of child maintenance. [33] I will cite a frequently quoted passage regarding variation of support: 19 before a judge can change a maintenance order that has already been made, there has to be a material change in circumstance since the original order was made. That is, the change must be of a kind that, if known by the judge when the last order was made, would have resulted in a different order. The change must be significant and long lasting. Otherwise there will be uncertainty which is not in the best interest of the children. When dealing with arrears there is a substantial onus (a heavy-duty) on the person asking for a reduction or cancellation of arrears to show that there has been a significant and long lasting change in circumstance the courts are generally reluctant to reduce or cancel arrears. Under the Family Relations Act arrears will not be reduced or cancelled unless it's grossly unfair not to do so. This principle is similar to the one applied to the Divorce Act which requires a material and long lasting change. [34] Martinson J. then goes on to list common arguments made to cancel or reduce arrears. They are as follows: A. "I cannot afford to pay now" Not being able to pay now is not a valid legal reason to cancel or reduce arrears. They will only be cancelled if the person is unable to pay now and will be unable to pay in the future. B. "I could not pay when I was supposed to because my financial circumstances changed" People making this argument have a heavy onus it is not good enough just to say that they should not pay because they earned less they can only get a reduction or cancellation of arrears if they present detailed and full financial disclosure under oath usually in the form of an affidavit that: i. The change was significant and long lasting and ii the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question and those efforts were not successful. [35] She then goes on to discuss the information that must be under oath reliable accurate and complete. [36] Relying on the authority of Earl v. Earl, arrears of child support should only be cancelled if the person is unable to pay and will be unable to pay in the future. We do not have this information nor do we know if this disability is significant and long lasting. [37] The claimant's circumstances are that she has been employed as a teacher's aide with School District #53 in 2011. During her marriage, she did not work outside the home. In 2012 her income at School District #53 was $15,509 and her income was similar in 2013. In 2014, her income dropped to $5,354 after J.G. was in a serious motor vehicle accident which I will discuss below. She did not have enough time at work that year to qualify for employment insurance benefits and had to stay home to help J.G. with his appointments. She does anticipate return to full‑time work in 2015, earning approximately $15,000. [38] All three children live at home. J.G. is back home recovering from the significant motor vehicle accident. [39] The claimant clearly has financial needs and has suffered an economic disadvantage arising from the breakdown of the marriage. [40] The respondent has not been very forthcoming with financial disclosure. The claimant explains the rationale for the imputed income in the divorce order. She was uncertain what his income was. She knew that his income in 2011 was over $179,000. In 2012 the respondent faxed her his T4 slip that showed a taxable income of $120,522 but the T4 slip did not show his name and when she received his financial disclosure recently, she saw that that was not his T4 earning for 2012. The respondent was served with the notice of family claim and did not file a response or financial statement so the claimant thought she should base the order on the amount of income the parties had previously agreed to which was $143,500. Decision [41] There is sufficient evidence before me to reduce the monthly amount of child and spousal support based on a change in circumstance but I find that there is insufficient evidence to alter arrears in child support or spousal support because there is no evidence of a significant long lasting change in circumstance. [42] The respondent is certainly disabled from performing his usual work duties due to the pinched nerve in his neck, however, none of the medical evidence indicates the prognosis for this condition or whether the respondent could train for a different type of work. I will therefore adjourn generally the applications dealing with reduction or cancellation of arrears of spousal support or child support. [43] I will reduce child support and spousal support temporarily based on an imputed guideline income of $71,041. I will determine what to do with spousal support after I address the issue of whether or not J.G. is still a child of the marriage, unable to withdraw from parental support, and I will deal with the duration of this temporary reduction in support at the end of this decision. J.G. [44] J.G. turned 19 years old on September 12, 2014. He was in a serious motor vehicle accident on April 20, 2014 on the Hope-Princeton Highway. He was a passenger in a vehicle which rolled a number of times. He was ejected from the vehicle and was trapped under it. He was airlifted to Kelowna General Hospital. He suffered serious burns to his leg, a punctured spleen, punctured lung and a closed head injury. He was in a coma for a week. [45] He was in hospital for an extended period of time from April 21, 2014 to mid‑June 2014. He was at home for a few weeks and then went back to the hospital in mid-July 2014 to have an operation to rebuild his knee. [46] J.G. is suffering from the residual effects of a head injury. He has made great progress with his rehabilitation and as part of his rehabilitation, he was able to spend three months working at Apex Mountain in the Winter of 2015. He had worked there for six years prior to his motor vehicle accident and his employer agreed to find work to accommodate him. [47] The claimant attaches J.G.'s occupational therapist, Hillary Drummond's report and a neurological assessment from Dr. Henry Miller. [48] Ms. Drummond indicates the intention of the Apex Mountain work was to see how J.G. managed in a familiar work environment and to increase his work tolerance. At the time of writing the report on June 10, 2015, she could not give an opinion on whether he could return to the regular workplace without support. [49] Dr. Miller diagnoses J.G.'s brain injury as of at least a moderate degree of severity with some persistent neuropsychological deficits. J.G. has a goal of studying for and writing his first level welding exam, however, he does have some neuropsychological deficits and has been away from the welding program for several months so it is recommended that he has tutoring assistance prior to any examination and that he receive some assistance from Disability Resources Student Services to make arrangements for increased time to complete assignments and examinations and have the opportunity to record lectures if necessary or for consideration for a reduced course load. [50] J.G. has been experiencing problems with irritability and anger. [51] J.G. has qualified for a person with disability designation and is receiving $903 per month from the Ministry of Social Development. With this disability benefit, he is able to earn up to $9,600 per year without having his income reduced. While J.G. worked at Apex Mountain he earned about $2,500 for the ski season. His mother contributed to his rent of $425 per month, groceries, gas and car insurance. [52] ICBC is currently paying for J.G.'s medical expenses and they will pay for his welding training. [53] The claimant notes that J.G. is mentally unable to do tasks like paperwork to apply for disability without assistance. He has no insight into the accident and therefore he insists he is doing fine but she has noted serious memory issues as has Dr. Miller and problems with decision-making. He has difficulty managing money. He spends everything he earns before the month and pays for things for his friends before he pays his own bills. [54] The claimant collects $325 a month from J.G. which is the disability benefit for a rental allowance and she continues to pay his gas, prescriptions, vehicle maintenance, insurance and other necessities as a he runs out of money at the end of each month. At this present time he is not working. [55] The respondent says that J.G. was working full time prior to the accident and had no intention of returning to school. He was renting a residence at Apex Mountain. The respondent describes Joshua's head injuries as minor but his neuropsychologists describes them as moderate. It's possible that the respondent did not have access to the medical reports when he prepared his affidavit. [56] Claimant's counsel referred me to the case of Briard v. Briard 2010 BCCA 431. The case is distinguishable on its facts but it does deal with a disabled child who receives Person with Disability benefits and analyses whether that child remains a child under the Divorce Act. [57] Child of the marriage is defined under the Divorce Act, s.2(1) as follows: child of the marriage means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, Or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life [58] In Briard, the respondent argued that the child was receiving the necessaries of life as income assistance under the Employment and Assistance Act, SBC 2002 c. 40 and additional benefits under the Act and other legislation. His submission was that she no longer came within the definition of a child of the marriage. [59] The trial judge found that the child was a child of the marriage under the Divorce Act for she was in her mother's charge and as a result of her disability, was unable to withdraw herself from her mother's charge. In arriving at that conclusion, the trial judge looked at what was meant by the word "charge". The court relies on the Supreme Court of Canada case of Krangle (by Guardian ad litem) v. Briscoe 2002 SCC 9: [60] At paragraph 34, Chief Justice McLachlan states: In my view when Mervyn leaves his parents' home and goes to a group home he will leave his parents charge. The term charge is not defined in the Family Relations Act either before or after the 1997 amendment. In the Concise Oxford Dictionary of Current English (9th ed 1995), the term "charge" is defined as including: "care, custody, responsible possession" . Black's Law Dictionary (6th Ed.1990), defines "charge" to include "a" person or thing committed to the care of another" McEachern C.J. B.C.. Equated "charge" to "care" and on this basis concluded that when Mervyn left his parents care for the group home, he would leave their charge. FL Woodman in her article "Financial Obligations of Parents to Adult Disabled Children Part One" (1997), 17 EST. TR. And PJ. 131 at page 140 - 42, states that "charge" involves an inquiry into whether or not the adults actually lives independently. On this approach, if Mervyn is living in a group home independent of his parents, he is considered to withdrawn from their charge. It follows that Mervyn will not fall under the section 87 definition of a child when he reaches 19 and that the Family Relations Act could not make his parents responsible for him under section 88 (1) [61] The respondent relies on the case of T.A.P. v. J.T.P. 2014 BCSC 2265 and the decision of Madam Justice Burke. In that case, the applicant asserted that one of the children should no longer be a child of the marriage due to his age and that spousal support should have an end date. "A" was a 21-year-old who received $906.42 from the provincial government benefit for disability. In that case, Burke J. found that "A" was still a child of the marriage, unable to withdraw from parental charge. Burke J. took the disability benefit into consideration and applied s.3(2)(b) of the Child Support Guidelines in order to obtain a reduced amount of child support for "A". [62] The first question to be asked is whether J.G. is able to withdraw from parental charge due to his disability. The evidence before me in this application is fairly sparse. The claimant describes J.G. as being forgetful, having difficulty with paperwork such as disability applications, has serious memory problems and problems making decisions. He is self-medicating. He squanders money. It is possible that J.G. could live independently after a more complete recovery from his brain injury or with supervisory assistance but at this point in time, he is unable to withdraw from his mother's charge. [63] I find that J.G. remains a child of the marriage at this point in time. [64] I believe support for J.G. should be dealt with under s. 3(2) of the Child Support Guidelines as follows: Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, 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. [65] Because J.G. is in receipt of disability benefits, I will first determine what his needs are under s. 3 (2)(b) and then determine whether an order under s. 3(2)(a) or (b) would be appropriate. [66] I have looked at the claimant's financial statement to see if I can determine what J.G.'s needs are. She prepared a new financial statement on July 4, 2015 after J.G. was in the accident. It shows the same amount for rent or mortgage, food, gas, and vehicle expenses and substantially increased child related expenses from $900 to $1,350. These expenses seem to relate to school fees and supplies and activities and lessons and so I'm uncertain how they relate to J.G.'s situation. [67] The claimant indicates that J.G. contributes $325 a month for rent. She must provide his food and clothing. She assists him with his payment for gas, vehicle maintenance and insurance and those medical expenses that are not currently being paid for by ICBC. [68] I have to speculate to determine what J.G.'s budget is. He pays $325 for rent. I surmise that his food costs are about $300 a month. His car insurance is likely $200 a month given he is in the high risk age group for drivers, and his gas expenses are likely low because he is not working so I estimate $80 per month. I assume his mother helps him with clothing and she pays his entertainment, some of his vehicle expenses and perhaps for a cellular phone. My rough estimate is that his monthly expenses are around $1,500. His PWD benefits pay $900 of these expenses leaving $600 to be paid for by his parents. If I apportion that expense between the two parents in proportion to their incomes, the respondent, with his new lower income, would be paying over 80% or over $400 which, if added to the support for the two younger children would bring the amount slightly higher than the Guideline child support for three children. [69] Given that the figures are very close under s. 3(2)(a) and (b), I will make an order under s. 3(2)(a) that the respondent pay the Guideline child support amount for three children which is $1,409 per month. [70] This leaves a small amount of money for spousal support. If I order spousal support at $500 a month, child support at $1,409 for the Children, this leaves the respondent with barely enough money to meet his monthly expenses, if his income remains at $71,041. [71] I will make an order temporarily reducing child support to $1,409 for the Children plus temporarily reduce spousal support to $500. This order will commence on February 1, 2015 and continue up to and including October 1, 2015 at which point child support and spousal support will revert to the amount contained in the divorce order unless prior to November 1, 2015, the respondent has obtained either consent or a court order for further variation of support. This way the onus is on the respondent to provide full and complete medical and financial disclosure before November 1, 2015 and does not place the onus on the claimant to track the respondent down for financial or medical disclosure. [72] If the respondent does return to work, he is to provide proof of income within seven days of returning to work and the child and spousal support amounts will be amended to comply with the applicable guidelines effective on the first day of the month following his return to work. "Young J."