O.C. v. M.V.G.

2019 BCSC 1892 O.C. v. M.V.G. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: O.C. v. M.V.G., 2019 BCSC 1892 Date: 20191105 Docket: E056989 Registry: New Westminster Between: O.C. Claimant And M.V.G. Respondent Before: Master Muir Reasons for Judgment Counsel for the Claimant: C. Linde Counsel for the Respondent : I. Turaglio Place and Date of Hearing: Vancouver, B.C. October 25, 2019 Place and Date of Judgment: New Westminster, B.C. November 5, 2019 introduction [1] This was an application by the respondent for various orders, including: a) pursuant to s. 211 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], a Views of the Children Report be prepared by a Family Justice Counsellor; b) that the claimant pay interim child and spousal support; c) terms regarding rental of rooms in the family home; d) that, on a without prejudice basis, the respondent pay one-half of the household overhead expenses and each party pay their own personal expenses; e) that the claimant is to reside in the suite of the family home and the respondent and the children in the rest of the family home; f) that each party is to be responsible for feeding the children on their parenting time; g) that the orders are without prejudice to parenting arrangements when the family home is sold; and h) costs. Background [2] The parties are originally from Mexico. The claimant came to Canada in June 1985. He sponsored the respondent to come to Canada after they met in Canada, and the respondent came in July 1998. They began to live together in Canada in November 1998, and married May 8, 1999. [3] There are three children of the marriage: a daughter age 15, and two sons aged 12 and 9. [4] There is dispute as to the date of separation, but the respondent asserts that the parties separated August 18, 2018 when the claimant moved to a bedroom converted from some garage space in the lower part of the family home, while the respondent stayed in the upstairs portion of the family home with the children. [5] The claimant is presently an electronic technician for TransLink SkyTrain, where he has been working since 2015. In his Form F8 financial statement sworn April 12, 2019, he declares his present annual income to be $113,824. [6] The claimant apparently worked at various jobs prior to that, and the respondent alleges he was occasionally unemployed and her income supported the family and supported the claimant in upgrading his education. [7] The respondent began working at the former Edgewater Casino in 2008 and continued on at the Parq Casino. By 2009, she was working full-time. In 2014, she noticed a deterioration in her health and switched from working night shift to day shift. [8] She alleges that her health continued to deteriorate, resulting in the need for an operation in Mexico in 2016 for an esophageal hernia. She has only worked part-time since. [9] The respondent says, presently, she is only able to work about three days per week due to her health and the need to be available to see to the children's needs. [10] According to the respondent's Form F8 financial statement sworn March 19, 2019, her present annual income is $13,635. [11] The claimant questions the extent of the respondent's disability and submits that she should be capable of working significantly greater hours than she does. [12] Although it is not totally clear from the affidavit evidence, I gather that the matrimonial home was originally a three bedroom home, with an additional self-contained one bedroom suite on the main floor. The parties apparently have renovated to convert some garage space into a bedroom space and have converted a walk-in closet in the suite to a bedroom. [13] Prior to separation, the parties were able to rent the one bedroom suite, the closet room, and the room in the garage space and receive rental income. [14] Since separation, I gather that the claimant has been sleeping in the room in the garage. The one bedroom suite has been rented. The two boys each have separate bedrooms and the daughter was sleeping in the master bedroom with the respondent. That proved to be unsatisfactory and I gather the respondent arranged for a deck area to be renovated for the daughter to sleep there. [15] The respondent says it is a totally inappropriate place for the daughter to be sleeping but it was necessary because of the respondent's need to have rental income as the claimant would not pay child and spousal support. She alleges that she bears a disproportionate share of the day-to-day expenses, without any contribution from the claimant. As a result, she claims to have been in a severe financial crisis since separation. [16] The claimant suggests that the two boys could share a bedroom, but the respondent says that is not possible as the rooms are too small and the boys do not get along. [17] The respondent submits that the claimant should pay appropriate child and spousal support and that he should reside in the one bedroom suite. She would then pay one-half of the fixed household expenses and both parties would be responsible for their personal expenses and would share the children's expenses. [18] Presumably, the daughter would reside in the room in the garage. That would leave only the renovated closet room available for rental to a student. [19] The respondent proposes that she be responsible for renting the closet room and dividing any income equally with the claimant. [20] The claimant says this is a case where no spousal support or child support is justified. He argues that the parties are essentially living as they did before separation and that all of the parties' expenses are being taken care of between them. He also argues that, whether one looks at the objectives of spousal support under s. 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) or s. 161 of the FLA, it is clear that none of the objectives are at play in the present situation, at least at this stage. [21] It appears that ultimately the family home will have to be sold. When that occurs, the claimant suggests that support should be revisited. [22] The respondent says that once the family home is sold, decisions will have to be made about where the children will primarily reside and appropriate parenting time. [23] She says that, presently, she is primarily responsible for the care of the children and that the claimant only has parenting time with them when the respondent is able to work on weekends. [24] The claimant says that the parties should have shared parenting time on a week-on/week-off basis. [25] Each party reports that the children have expressed their desire to stay with them. The respondent says that a FLA s. 211 Views of the Children Report will be necessary in order for the court to determine what is in the best interests of the children. [26] The claimant says no s. 211 Views of the Children Report should be ordered. In his submission, there is no evidence of any need for a s. 211 report. He says the children are simply expressing a healthy desire to see both parents. There is no evidence that either parent is incapable of properly parenting the children or that there is any problem in the relationship between the children and either parent. [27] Further, as there is no application before the court regarding parenting time, the claimant says that, at best, this application is premature. [28] As an alternative, the claimant submits that should a s. 211 report be appropriate, it should be a full report, and not just a Views of the Children Report. Analysis Views of the Children Report [29] Although the threshold is low, I have not seen any evidence that convinces me that a Views of the Children Report is necessary at this time. The need may become evident when the family home is sold but, at this point, that is nothing but speculation. [30] The application for a Views of the Child Report is, therefore, adjourned generally. Child Support [31] In the present circumstances, child support would be payable pursuant to the Federal Child Support Guidelines, SOR-97-175 [Guidelines] unless, pursuant to s. 150(2) or (4) of the FLA, reasonable arrangements have otherwise been made for support of the children. [32] The claimant argues that the parties living under the same roof and living financially as they had prior to separation constitutes reasonable arrangements and, hence, no child support is necessary. [33] That is disputed by the respondent, who claims that she and the children have been living in a financial crisis since separation. [34] It is somewhat curious that, although both parties claim expenses exceeding their income, neither claims significant unsecured debt. The claimant has a line of credit of about $30,000. The respondent claims a loan from a friend of $3,000 from November 2018. Neither party lists credit card debt, although I note that the respondent claims a $250 per month expense for payment of credit card debt. [35] The claimant lists more than $70,000 in financial assets. Both parties list the family home at about $1.2 million with a mortgage of about $150,000. [36] The respondent asserts, however, that she has only made ends meet by renting rooms in the family home. It does not appear to me that either party has included such rental income in their respective Form F8 financial statements. [37] The one solid indication of a concern is that the parties' daughter is sleeping in a makeshift room on the deck. That, as the respondent submits, is not appropriate, but her evidence is that it is necessary so that she can at least have some rental income. [38] On the basis of that evidence, I am satisfied that reasonable arrangements have not been made by the claimant for support of the children, such that his obligation to pay child support should be varied from that required by the Guidelines. [39] The respondent proposes that the amount be calculated as if a shared parenting regime exists, although she claims that is not the actual situation. She does so on the basis that the parties and the children are all residing in the family home and submits such an order should be without prejudice for her to claim otherwise after the home is sold. [40] I have concluded that the claimant should pay interim, without prejudice, child support on that basis. Based on a Guideline income for the claimant of $113,824 and for the respondent of $13,635, with appropriate adjustments, the claimant will pay the respondent child support of $2,185 per month, commencing November 1, 2019 and on the first day of each month thereafter, until agreement or further order. Spousal support [41] In Robles v. Kuhn, 2009 BCSC 1163, Master Keighley reviewed the legislation then in place and applications for interim spousal support and summarized the relevant considerations at para. 12 as follows: [12] On interim support applications, the application of these provisions must be qualified by certain established considerations: 1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance: Gibb v. Gibb, [2005] B.C.J. No. 2730 (S.C.); 2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.); 3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances, which is better left to trial. The court achieves rough justice at best: Randhawa v. Randhawa, [1999] B.C.J. No. 3299; Newson v. Newson, [1998] B.C.J. No. 2906, 65 B.C.L.R. (3d) 22 (C.A.); 4. The courts should not unduly emphasise any one of the statutory considerations above others; 5. On interim applications the need to achieve economic self-sufficiency is often of less significance; 6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise: Ladd v. Ladd, [2006] B.C.J. No. 1930, 2006 BCSC 1280 (S.C.); 7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out: LG.B. v. M.A.C.M., [2005] B.C.J. No. 2966, 2005 BCSC 1786 (S.C.); 8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support: L.G.B. [42] Where the parties are living under the same roof, the analysis has an extra variable. The respondent referred me to an Ontario decision, Henry v. Boyer, 2018 ONSC 6858, where the court reviewed various decisions, including from British Columbia, and concluded: [94] There is not unanimity in the courts' decisions as to whether child support or spousal support is payable in reference to a period after the spouses have separated but while they continued living under the same roof. The decisions appear to have turned, in large part, on the facts of the case, and whether the court found that the payor spouse had paid, or the recipient spouse had received, amounts in lieu of child support or spousal support during the period for which claims were being advanced. [43] Here, although the basic housing expenses are being paid by the claimant, I am satisfied that the respondent has made a case that her expenses and those of the children are not being met by him. [44] In the circumstances, I consider it is appropriate to sever the financial dependency. I am satisfied that, but for the fact that they are living in the same house, the respondent has made a prima facie case for spousal support. [45] The solution proposed by the respondent, that she be responsible to pay one-half of the overhead, but receive spousal support, seems apt. In addition to providing financial independence for the respondent, this will likely have the benefit of a reduced tax burden and, hence, more disposable income for the parties. [46] The evidence provided by the respondent satisfies me for the purposes of this application that she is not intentionally underemployed. I appreciate that full medical disclosure has not been made as yet, so that conclusion is without prejudice to the claimant's ability to apply if additional evidence supports his view. [47] Looking at the Spousal Support Advisory Guidelines calculations provided by the respondent, I note that the mid and upper ranges of the spousal support amounts result in a considerably greater net disposable income for the respondent than for the claimant. I see no reason at present to provide the respondent with that additional income. [48] I, therefore, order that the claimant is to pay interim spousal support to the respondent, based on the guideline incomes set out above, at the low end of the range in the amount of $925 per month, commencing November 1, 2019 and on the first day of each month thereafter until agreement or further order. Additional terms [49] Based on the claimant paying to the respondent the above interim child and spousal support payments, for so long as the parties continue to reside in the family home and until further agreement or order of the court, the parties will each pay one-half of all the expenses relating to the household, including mortgage, property taxes, property insurance, and extended medical/dental, as follows. [50] The respondent shall pay to the claimant $1,112.50 per month commencing October 1, 2019 for one-half of the monthly household expenses set out as follows: a) Mortgage: $1,470.00 b) Property Tax: $247.00 c) House Insurance: $76.00 d) Sewer and garbage: $76.00 e) Heat and electricity: $175.00 f) Cellular phones for the parties and the children: $240.00 g) Internet: $95.00 Total monthly household expenses: $2,379.00 One-half of the total monthly household expenses: $1,189.50 Less: One-half of the respondent's extended health and dental plan premiums: $82.00 Plus: One-half of the claimant's extended health benefit cost: $5.00 Amount payable by the claimant: $1,112.50 [51] The claimant shall make all required payments for the above expenses, other than the respondent's medical and dental premiums, and may set off the amount owing by the respondent against the amounts payable by him for interim spousal and child support. [52] Those orders shall continue as long as the parties continue to reside in the family home with their children, or until further order or agreement. [53] Each party will be responsible to pay for all of their personal expenses, including any costs associated with their respective vehicles. [54] The above is without prejudice to either party to argue, at trial or final hearing, that the payments he or she made for the household and children's expenses should have been shared unequally. [55] The claimant shall move into the bedroom suite of the family home. If he chooses to rent the renovated closet room in that suite, that is his sole responsibility and the rental monies shall be accounted for and split equally, without prejudice to the ability of either party to seek a different allocation. [56] The respondent and children shall remain in the balance of the family home. [57] The parties shall be responsible for feeding the children during their parenting times. As the child support is based on a shared parenting arrangement, the parties will share all other children's expenses, including s. 7 special expenses, equally. [58] This order is without prejudice to what the parenting arrangements will be once the family home is sold. Costs [59] As the respondent was largely successful, she will have her costs of this application in the cause. "Master Muir"