H.C.F. v. S.A.F.

2013 BCSC 988 H.C.F. v. S.A.F. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: H.C.F. v. S.A.F., 2013 BCSC 988 Date: 20130605 Docket: 77039 Registry: Kelowna Between: H.C.F. Claimant And S.A.F. Respondent Before: The Honourable Mr. Justice Rogers Reasons for Judgment Counsel for the Claimant: D.L. Polley Counsel for the Respondent: W.T. Clarke Place and Date of Hearing: Kelowna, B.C. May 2, 2013 Place and Date of Judgment: Kelowna, B.C. June 5, 2013 Introduction [1] This is an application to retroactively vary a final order concerning the respondent's obligation to pay child and spousal support. The issue is whether the doubling of the claimant's income over the past year constitutes a change of circumstances so as to merit a variation order. The problem for the parties is that there is no way to predict whether the claimant's income will continue at its current level in future, be reduced to half or some other fraction, or be eliminated altogether. The Facts [2] The parties were married in July 1998. They had two children together: C.R.F., born February 15, 2001; and I.J.F., born June 15, 2004. The parties separated in or around the middle of 2007. They were divorced on November 27, 2008. The divorce order stipulated that the children would spend equal time in their parents' households. The order required a review of the parties' child and spousal support obligations in October 2009. [3] The review was conducted by me in May 2010. My reasons for judgment may be found at H.C.F. v. S.A.F., 2010 BCSC 727. The parties incomes at that time were: the claimant $37,000; the respondent $127,000. I found that the claimant had sacrificed her career as a school teacher in order to bear and nurture the parties' children. I also found that her economic circumstances were less advantageous than the respondent's; she was working only part-time as a teacher and her income was only a third of his. The compensatory model of spousal support clearly applied to the claimant's situation, and her means and needs demanded that she receive spousal support. [4] In 2010 the claimant had no tenure or job security with the Golden School District. The School District was the only employer in the area that could offer employment commensurate with the claimant's training, aptitude, and experience. In any given year, if a position came open, the School District would offer it to various potential candidates. The claimant would receive that offer only if other candidates more senior to her refused it. There was no guarantee that the claimant would receive an offer in any given year, and if she did whether it would be for full or part-time work. As of the review, the claimant was working under a one-year contract for half-time work. [5] Upon considering all of the factors in play, I ordered that the respondent pay to the claimant spousal support of $1,500 per month. [6] I also found that that the shared parenting regime, the children's circumstances, and the parties' resources required that the respondent pay basic child support of $1,100 per month. [7] The review order did not include a provision for a further review. It may therefore be treated as a final order for support made pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [8] The respondent asserts that since 2010, two material changes of circumstances have occurred. [9] The first alleged material change concerns the respondent's income. He says that in April 2012 the respondent's employer stopped paying him an allowance for vehicle use, thus reducing his income by $20,000. He says that in July 2012 he changed job positions with the result that his 2012 base salary was reduced to $105,708. Taking into account his higher income before July 2012, his total 2012 income was $112,253. Further, in March 2013 the respondent's base income was increased to $109,936 and he was advised that he would be paid a bonus of $13,827 for the previous year. The respondent's 2013 income will therefore be $123,763. [10] The second alleged material change is that in July 2012 the claimant took a temporary full-time position with the Golden School District. Her income for the period July 2012 to July 2013 will be approximately $85,000. [11] There have been no other changes in the parties' or the children's circumstances. The Parties' Positions [12] The respondent maintains that the decrease in his income and the more than doubling of the claimant's income give rise to a circumstance which, had it been the case in 2010, would have resulted in different (and lower) support orders. [13] The claimant argues that the circumstances which gave rise to her entitlement to spousal support have not materially changed. The fact that she has no tenure and no security of income was known to the parties and to the Court in May 2010. She says that she still cannot count on receiving an offer to work in any given year. Her full-time work in 2012-2013 may be an aberration; it may be that she will have no work at all in 2013-2014. The claimant maintains that the May 2010 order was made on the premise that part-time work was a reasonable pre-estimate of her future income given the positive and negative risks that apply to her particular situation. So, she says, the doubling of her income in one school year would be no more reason to change the support regime than would her having no income at all in the next school year. [14] At its basic level, the claimant's argument is that she sacrificed her career to the parties' marriage, thus putting her in a position of having no job security and of being subject to potentially wild swings in her income depending upon what jobs become available from time to time. She says that the compensatory model of spousal support most closely fits the circumstances she finds herself in due to the marriage and its breakdown. She argues that she should continue to receive spousal support in accord with the May 2010 order regardless of whether she has a full-time job or no job at all. Discussion [15] The test to be used for variation of child support in a shared parenting regime (s. 14(b) of the Guidelines) and the test to be used for variation of spousal support (s. 17(4.1) of the Divorce Act) are basically the same. The issue is whether there has been a change in the condition, needs, means, or other circumstances of either former spouse. I will not discuss a change in the circumstances of the children noted in s. 14(b) of the Guidelines because no such changes exist here. [16] A temporary or ephemeral change of spousal income is not sufficient to merit a variation of a final support order. That is because final orders are meant to provide, well, finality to the parties' dispute. If every little blip in the incomes of the parties could be employed to change a final order, the object of finality and predictability would be eroded and eventually lost. A change, if one occurs, must be of such magnitude and persistence as to make it plain that if the current data had been before the original judge, a different support order would have been made. [17] In this case, the data are changed in one respect and the same in another. As to the first, for the past year the claimant's income more than doubled. It went from $37,000 to $85,000. By any reasonable standard, that increase constitutes a significant and material change in the claimant's circumstances. As to the latter, the claimant cannot count on having that or any income in the upcoming school year. There may be no positions available to her in 2013-2014. So the data relating to the unpredictable nature of the claimant's income remains unchanged. Further, the respondent's income has changed, but not materially. [18] To her credit, the claimant admits that complying with a retroactive adjustment would not visit hardship on her. [19] The claimant may currently be sincere when, through her counsel, she says that she would not seek an increase of spousal or child support if she does not get a contract in 2013-2014 - that on the theory that that risk was a determinative factor in the court's decision to make the support orders that it did - but I doubt that her resolve would actually survive a whole year of unemployment. In any event, whether or not she would seek a change in spousal support, she would most likely look for a change in child support, and I think that in that circumstance she and the respondent would owe it to their children to make changes to the child support order. For that reason I believe that it makes sense to bring the support order in line with the reality of the parties' earnings in 2012-2013, and to vary the 2010 order. [20] Accordingly, there will be an order retroactively varying the 2010 order. The retroactive period will be from September 1, 2012 to May 31, 2013. Child support in this case must be determined by application of s. 9 of the Guidelines. The factors set out in s. 9(b) and (c) do not require an adjustment of support. Based on the parties' incomes during the retroactive period, a set off of the parties' Table amounts produces a support amount of $504 per month. [21] Using the same data and $504 child support of per month, the Spousal Support Advisory Guidelines ("S.S.A.G.") indicated a range for spousal support between a low of $0 and a high of $599. [22] During the retroactive period and through to June 30, 2013 child support will be $504 per month. I will somewhat arbitrarily set spousal support at the middle of the S.S.G.A. range: $300 per month. [23] The income that the claimant will earn in 2013-2014 is presently unknowable. For that reason, the original 2010 order will come back into effect on July 1, 2013. [24] The parties may wish to consider the outcome of the current application when the terms of the claimant's 2013-2014 employment become known to them. The parties may also wish to consider the fact that many final support orders contain a provision for an annual exchange of financial information and an automatic adjustment of support based on those data. Neither party sought an order to that effect in the present application but nothing would prevent them in the future from consenting to an order on such terms. [25] The respondent has been successful in this matter. He is entitled to his costs on Scale B. "P.J. Rogers J." The Honourable Mr. Justice Rogers