Muir v. Lipton

2002BCSC0296 Citation: Muir v. Lipton Date: 20020222 2002 BCSC 296 Docket: D109280 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ANDREW ERIC MUIR PETITIONER AND: RUTH GAIL LIPTON RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE BROOKE Appearing on his own behalf: Andrew Eric Muir Counsel for the Respondent: Barbara Bulmer Date and Place of Hearing (via telephone conference): February 21, 2002 Kelowna, B.C. [1] Mr. Muir applies to vary his child support obligation pursuant to section 96 of the Family Relations Act, R.S.B.C. 1996, c. 128, and section 17(4) of the Divorce Act, R.S. 1985, c. 3 (2nd Supp.). The order that he seeks to vary was settled on January 16, 2002 following Reasons for Judgment filed October 26, 2001. The application was made by telephone conference. [2] The underlying reason for the application being brought before me was that Mr. Muir applied to vary the order before Mr. Justice Tysoe on December 20, 2001 alleging that in the interval between the conclusion of the trial on April 12, 2001 and the filing of the Reasons for Judgment, his employment status was dramatically changed when he lost his position as an investment analyst. I am advised that Tysoe, J. declined to vary the order but gave Mr. Muir leave to revive the application before me. [3] It is important, I think, to set out the procedural history of the action. The trial commenced in August, 2000 but, because of Mr. Muir's failure to make full and complete disclosure with respect to property and financial issues, Ms. Lipton's claims in respect of child support and spousal maintenance and the property issues were adjourned and the trial proceeded on the custody and access issues only. The trial of the support, maintenance, and property issues resumed in April, 2001. [4] Mr. Muir seeks an order varying the child support obligation by fixing that obligation with reference to his present income which is primarily employment insurance benefits which he says began on December 22, 2001 at a rate of $1,612.00 a month. At the trial of the child support issue, Mr. Muir argued that his income was based upon salary and bonuses which varied widely year over year such that he urged upon the court that his income for Guideline purposes should be determined with reference to a three year moving average on May 1st in each year. He pointed to an income that varied from $114,000.00 a year to $291,000.00 a year as support for that approach. I was satisfied that that was reasonable and, for the three years ending May 1, 2001, his Guideline income was fixed at $180,631.00. [5] Mr. Muir now says that he lost his employment as an investment analyst on September 15, 2001 and that his present income is limited to employment insurance and that this is sufficient to support an order varying his Guideline income and his child support obligation. [6] Counsel for Ms. Lipton submits that this application is but another example of Mr. Muir's persistent efforts to delay and defeat the payment of child support calculated within the Guidelines and the orders of the court. She emphasizes that he is presently in arrears of his child support obligations and that, for that reason alone, his application should not be heard. Counsel for Ms. Lipton also points to the severance package that Mr. Muir obtained from his former employer which is the equivalent of 30 weeks salary from September 15, 2001. Disclosure of this settlement package was ordered by me when Mr. Muir's application to vary first came before me by telephone conference on January 16, 2002. The amount of compensation was $77,403.85 based upon Mr. Muir's original remuneration of $175,000.00 per annum. [7] I am not satisfied that the change in Mr. Muir's needs, means, capacities, and economic circumstances is sufficient to support the variation order that he seeks. It was at his urging, first of all, that his Guideline income was fixed with reference to a three year moving average. His Guideline income was fixed for the three years ending May 1, 2001 at $180,631.00. His severance remuneration was based upon an income of $175,000.00, only slightly less than the three year average. Most significantly, however, the compensation package which Mr. Muir obtained from his former employer replaces his remuneration to the middle of April, 2002. In the result, Mr. Muir has been afforded almost seven months within which to find alternate employment that will replace the significant income which he is, I am satisfied, capable of earning. His application to vary, based on a change of circumstances, can therefore be seen as premature. [8] I am also mindful of the fact that Mr. Muir has failed to satisfy his child support obligations under the existing order and he now comes to court seeking not only variation but cancellation of the arrears. I am satisfied that it is within Mr. Muir's means to satisfy his ongoing child support obligations but that he has chosen not to do so. I am also satisfied that there is no change in circumstances sufficient to vary the existing order. [9] In the result, the petitioner's application is dismissed with costs at Scale 3. "T.R. Brooke, J." The Honourable Mr. Justice T.R. Brooke