IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is E.M.C.’s application for spousal support. T.C.K. was represented by counsel until the day of trial.  On that day his counsel withdrew from the record but assisted T.C.K. in filing an application to reduce his child support payments.  Despite the lack of notice, Ms. Oliver was prepared to proceed on E.M.C.’s behalf in order to resolve the outstanding issues of support overall. 

[2]           E.M.C. testified that she and T.C.K. moved in together in January, 2010 and separated on June 22, 2014.  She has two children, one with R.C. and one from a prior relationship. M.A.K. was born [omitted for posting] and N.E.C. was born [omitted for posting].

[3]           N.E.C.’s father, R.C., is in significant arrears to E.M.C.  Despite those arrears, the Family Maintenance Enforcement Program, with whom she has registered, do not seem to be taking any action other than attaching any government sourced payments to R.C. and holding issuance of his driver’s licence.

[4]           E.M.C. had a long work history in the logging industry.  She was running a log processor at the time she met T.C.K.  This was camp work requiring her to be away from home five days of the week.  E.M.C. would work in camp while her son stayed with family during the week.  A.P. was N.E.C.’s nanny from the time N.E.C. was 10 months old.  E.M.C. even followed her when Ms. P. moved to the Kamloops area in order to keep the same childcare arrangements.

[5]           After E.M.C. and T.C.K. moved in together, E.M.C. continued to work in camp.  Together they decided in May, 2010 to have a child.  At that time, E.M.C. expressed her concern that if she were to have a child, she would not be going back to logging, given the lifestyle.  T.C.K. agreed with this arrangement.  E.M.C. became pregnant in October, 2010 and worked until March, 2011.  She was required to leave work early because it was difficult to climb around the equipment.  She was on maternity sick leave from March, 2011 until M.A.K.’s birth in July, 2011.  She was then on regular maternity leave until July, 2012.

[6]           According to the arrangement made with T.C.K., E.M.C. stayed at home after the maternity leave was over to raise their daughter and her son.  This decision was premised not only on the lifestyle that came with logging but on the extremely high daycare costs and their desire for her to raise their children.  E.M.C. made it clear that she would not have had a second child if it was necessary for her to continue working in the bush.  She had experienced how difficult it had become with N.E.C. when she was gone extended times.  He was unable to be engaged in sports or other activities because there was no way to get him to those activities, and other people were essentially raising her son.

[7]           E.M.C. is confident that with her high level of skill and her steady work record, she would have easily obtained other employment if she had returned to work.

[8]           When E.M.C. met T.C.K., he was driving long-haul for [omitted for posting] of Armstrong.  In 2011, he switched to a Kamloops company but continued to drive long haul.  At one point, he switched to road construction in Cranbrook.  Typically, he would be gone a week or two and then back for 24 to 36 hours.  This became a matter of contention for T.C.K. after he and E.M.C. ended their relationship.

[9]           During the course of their relationship, T.C.K. worked steadily.  At the most, he would be out of work for a month, but even then would get short-term work for a week or two in between.

[10]        In July, 2012, the family moved to Pritchard.  They were in a subdivision in Pritchard for about a year and then moved to a five acre property on [omitted for posting].  This property has a large house with a big garden. They moved there because E.M.C. was not returning to work and they felt it would be a better lifestyle for the children.  Rent at this property was $1,650.  T.C.K. paid all of the household expenses when they were together.  E.M.C., apart from raising the children and doing the housework, sewed and created crafts for sales to supplement their income.  She also grew a garden to help with the grocery bills and did home canning to assist through the winter months.  She did all of the cooking and canning, as well as gardening and housework.  She said on occasion T.C.K. would help her but this was not regular given the amount of time he was away.

[11]        The couple separated in June, 2014.  T.C.K. left the property and E.M.C. could no longer afford the rent.  She moved as well in September, 2014.  By that time, she was able to sell enough furniture and borrow enough money from her church and family for her rent.

[12]        She now lives on [omitted for posting] in a cabin with two bedrooms on acreage.  The rent is extremely modest at $575 per month.  She stayed in Pritchard so that N.E.C. could continue to go to his current school.  The cost of living is also believed to be lower in Pritchard than in Kamloops.

[13]        E.M.C. was compelled to apply for social assistance when the couple were separated.  She had never been on social assistance before.   owever, she recently received two child support payments in a row from R.C., which put her over the allowable income for her social assistance.

[14]        R.C. is in arrears to E.M.C. for $66,000.  She is supposed to receive $869 per month, but he does not pay this regularly.  The Family Maintenance Enforcement Program statement shows a sporadic payment record.  Although E.M.C. is not aware of where R.C. is or what he is doing at present, his income in 2007 was $80,000 per year running a buncher.  

[15]        E.M.C. wishes to continue with the plan that she had made with T.C.K. that she would continue to raise the children until M.A.K. was starting school. I n the meantime, she has been working with [omitted for posting] in Chase to go back to school to do horticulture.  She enjoys gardening and believes she can make a living in this area.  The hours are also more reasonable for a family.  She could not now return to logging in any event because she would have to recertify for heavy duty equipment operating.  Given T.C.K.’s lack of success in obtaining employment in this field - which I will come to - it does not seem a sensible course for E.M.C. to pursue.  She is also re-doing her resume.  She has applied to a local greenhouse and to fields to farm businesses.

[16]        The horticulture program is 36 weeks, running from August to April.  She does not yet have the exact dates or know if she will get the funding to attend the course.  If she does take that course, she will have travel, daycare and parking expenses in relation to it, as it is held in Kamloops.  Daycare costs researched by E.M.C. average in the range of $173 to $400 per month just for N.E.C.’s after-school care.  Ms. P. may be able to take M.A.K. for full time daycare.  That will also have a cost.  T.C.K. will have to pay his proportionate share for these daycare costs when the time comes.

[17]        E.M.C. has also received a posting for a housecleaning job for three to five hours per week.  She has to do the research, though, to determine how much this is going to cost her in daycare before taking it.

[18]        Since separating, T.C.K. has not been forthcoming with E.M.C. about his state of employment.  She said he has been sporadic with M.A.K., seeing her for one week in July, four days in August, and then up to two or six weeks between visits thereafter.  In March, T.C.K. wrote a note to E.M.C. asking that they return to every other weekend for his parenting time.  They have done so.  He has spent no time with his stepson, N.E.C.

[19]        As far as E.M.C. knows, T.C.K. is living with his parents.  They, through the course of their relationship, would loan their son money.  As far as she knows, he has not repaid his debt to them.  They also purchased him a vehicle.

[20]        T.C.K. has been paying E.M.C. $839 per month in child support.  She also receives $600 for child tax credit.  She grows and sells tomatoes at this time of year for a little bit more income of around $100 per annum.  From her craft sales, canning and sewing, she receives another $300 to $500 per year.  She also receives gifts of beef from her neighbours and others let her pick fruit from their trees.  Her expenses are extremely modest and she does not spend what she does not have.

[21]        There was an issue raised about horses.  There are three of them.  They belong to members of E.M.C.’s family.  The horses were dear to the children so they were moved to the Pritchard area.  E.M.C.’s parents pay for the boarding of those horses and so they are not an expense issue.

[22]        For reasons that are unclear, T.C.K. cross-examined E.M.C. about why she did not simply return the horses to her parents.  The horses are not costing E.M.C. anything other than her time to attend to their trimming and other care.  Her mother pays those expenses.  It does not matter what it costs her mother so long as her mother is prepared to continue paying those expenses.

[23]        E.M.C.’s work history shows the following:

[24]        Under cross-examination, E.M.C. testified that she did not change her work during years when N.E.C. was in 24-hour daycare because she felt she had no other option at the time.

[25]        She also clarified that the income she quoted for her crafts, canning and sewing are gross figures.  With respect to the crafts, she breaks even between time and materials. It is unclear whether there is a net profit from the sale of the garden produce.  It would be very modest if there is a profit.

[26]        T.C.K. testified that he had been driving trucks for 14 years.  In doing that work, he was home for no more than 36 hours at a time. In the time that he was home, he helped as much as he was able with only a day and a half to spend with his family.  T.C.K. was dismissive and snide about E.M.C.’s contributions to the household, observing that she had plenty of time during the day to go shopping and spend money.  If that were so, he should have had plenty of energy on his time off to take over or at least assist with the cooking, cleaning, laundry, gardening and child care that E.M.C. engaged in every day.

[27]        After the separation, T.C.K. decided to quit driving trucks.  He took heavy equipment training and then went north to work in Alberta in the oil patch.  He was three weeks on and one week off in that work.  On his days off, he would also have to drive back and forth.  This left him with about four days to spend with M.A.K.  His only explanation for not spending any time with his stepson is that when the couple first split up, he was told N.E.C. did not want to come on a particular camping trip and so he has not pushed it since then.

[28]        After the oil crash, the effects of which are almost reaching the point of judicial notice in these courts, T.C.K.’s work ended.  He is now doing landscaping in Salmon Arm.

[29]        T.C.K. said that he quit long haul trucking because he lost his passion for the road.  He enrolled in the heavy equipment training course a couple of weeks after giving notice to his employer.  The course lasted for eight weeks.  He had no income while he was on training.  He borrowed money from his parents to pay for the education.

[30]        After the course was completed, it took him about four weeks to get work.  He was employed by [omitted for posting] in Peace River.  He said the pay varied a lot, with cheques being anywhere from $2,500 to $5,000 every two weeks.  While the cheques varied, it was nothing less than he earned as a long haul driver, where he earned about $2,500 every two weeks.

[31]        The oil collapse started in January, 2015, with the big crash coming in April, 2015.  He stopped working in March.

[32]        After returning to this area, T.C.K. was working within about a week and a half making roughly $2,000 per month at [omitted for posting].  He prefers to stay with the landscaping work because he enjoys working outside and it gives him a chance to have more of a life.  He wants to continue having evenings and weekends off and time for his friends and family.  He has heard that work is picking up in the oil patch by summertime but he has no intention of returning back north because he is tired of living in a hotel room.

[33]        His financial statement says that he will earn $35,000 per annum, based on a rough estimate of what he expects to make this year.  This takes into consideration the considerable money he made from January to March.  If he continues to work in the landscaping job he currently has, his annual income will drop considerably, even from $35,000.

[34]        His explanations for his expenses are not good.  He pays $6,000 per annum to his mother to stay at her house.  He plans to move as soon as he knows how much he will be able to afford for rent.  He spends about $300 per month to eat outside the home, which he explained was while he was working up north.  This would obviously not be an ongoing expense.  However, he maintains that his gas expenses are the same because he has to drive to Salmon Arm every day for work.  He also still has his loan to pay for his Interior Heavy Equipment course.  He spends a considerable amount of money on gifts apart from what he spends on his children.  He is also still taking vacations despite his financial obligations.  While that is acceptable, it is not an acceptable factor to decrease his child support or spousal support obligations.

[35]        T.C.K. said that he has been “applying like crazy” for equipment operator positions.  Most of them require three years’ experience, and so far he has had no luck.  For the time being, in his landscaping he is able to run a bobcat and a mini excavator which will give him some experience.  While he enjoys what he is doing, he will look for local employment that will permit him to ride a loader or an excavator.  He has his resume and application with eight different recruiting companies.  He has had a number of offers to drive but he is not driving anymore.  He is even considering letting his Class 1 driver’s licence lapse.

[36]        While T.C.K. admitted that E.M.C. and he had agreed that she would stay at home raising the children until M.A.K. started school, it was a matter over which they argued in the final months of their relationship.  He felt it would be preferable for her to return to work at that time.  This does not change the fact that this was an agreement the two made as a couple resulting in a significant compromise by E.M.C.

[37]        The benefit to T.C.K. leaving the oil patch and long haul driving is that he is now able to spend more time with M.A.K., as well as his friends and family.  He is back to seeing her every second weekend.  He is less tired and stressed so he is able to have more quality time with M.A.K.

[38]        T.C.K. expects that if he is able to obtain employment in the heavy equipment industry, he will receive income from $25 per hour to $43 per hour.

[39]        T.C.K. acknowledges that his parents have loaned him money to keep up with his child support and his expenses while he attended school.  However, he denied that they had loaned him money previously.  He said he worked for the money that his parents paid him.

[40]        T.C.K. was otherwise very scattered and unfocussed about what his expenses were and what the cost of the relationship ending had been.  His expenses do not align with the events that were occurring.  He has also made no reductions in his personal expenses.  This is despite his income dropping from $58,000 per annum to $35,000 per annum.

[41]        T.C.K. seeks to reduce his child support obligations because of his change in financial circumstances.  Again, while T.C.K. may well be entitled to make employment choices when he has no other obligations to meet, he is not entitled to place himself in circumstances where his income is drastically reduced and he can no longer meet his obligations to his children.  Leaving his employment as a long haul truck driver was a matter of choice.  While it was not his choice to find himself without work in March, 2015 as a result of the “oil crash”, it is his choice not to return to that work when it resumes in the summer of 2015.  These are not choices he is entitled to make while compromising the best interests of his children.

[42]        T.C.K. has, for four years, been the stepparent of N.E.C.  Section 5 of the Federal Child Support Guidelines provides:

[43]        T.C.K. remains obligated as the primary support payor in circumstances where a support obligation cannot be enforced against the biological parent, being R.C.  In this case, E.M.C. has registered with Family Maintenance.  The schedule provided at trial shows that their collection efforts have been unsatisfactory.  While R.C. has had his driver’s licence suspended, payments are few and far between.  By consent, T.C.K. agreed to pay $200 per month toward support for N.E.C.  Absent that agreement, I would have found T.C.K. to be the primary obligor and his child support payments would be assessed on the basis of two children. 

[44]        T.C.K.’s income over the years has been as follows:

[45]        It is not logical to include the one bumper year if I am to average his income in order to impute income to T.C.K.  I average the remaining years and determine he is able to earn an income - with his skills and experience - of $57,415 per annum.

[46]        While it is a fact that T.C.K. is earning significantly less than this amount, he is doing so as a matter of choice.  His children and E.M.C. are not the appropriate people to bear the burden of those choices.  At $57,415 per annum, T.C.K.’s child support obligation for two children would be $870 per month.  He is paying, by court order, the sum of $839 per month.  This was based on a higher income and an apportionment of $200 per month for the support of N.E.C.  T.C.K. was to provide E.M.C. with a copy of his financial records each year but a deduction in child support obligations is not automatic.

[47]        If I followed the same process followed by Judge Harrison in his order, T.C.K.’s child support obligation for M.A.K. is $531 per month, plus $200 per month for the support of N.E.C., for a total of $731 per month.  In accordance with the order of November 14, 2014, this is the amount at which I set T.C.K.’s ongoing child support obligation effective July 1, 2015.  T.C.K.’s obligation to provide his financial information to E.M.C. under the order made in November, 2014 continues.

[48]        In addition to that child support, T.C.K. must pay spousal support.

[49]        Section 162 of the Family Law Act provides:

[50]        While E.M.C. and T.C.K. did not reside together for a very long period of time, they did have a child together during the course of their relationship.  By agreement of the parties, E.M.C. left her fairly lucrative employment to raise their child and her son.  It was intended that E.M.C. would continue being a stay-at-home mother until M.A.K. returned to school.  Given the costs of daycare researched by E.M.C. and the age of the children, it is not feasible for her to return to her log processing career.  As a result, she is going to have to find alternative employment that will permit her to raise the children largely on her own.  She intends to do this by taking a horticulture course which will hopefully result in some satisfactory income.

[51]        Ms. Oliver prepared calculations based on T.C.K.’s declared income of $35,000 with E.M.C. having no annual income and contemplating the current child support he pays of $839 per month, which would provide a low, medium and high range spousal support obligation of $88, $172 and $256 per month, respectively.  She performed a similar calculation based upon an average income of $68,484 and no income to E.M.C. with a resulting obligation of $955, $1,118 and $1,285, respectively.  As a result, Ms. Oliver proposes a spousal support allowance of $1,000, subject to review on M.A.K. commencing full time in school.

[52]        In my view, a single bumper year does not warrant calculation within a three-year average.  On the other hand, in the face of the obligations T.C.K. has, he was not entitled to leave gainful employment for what amounts to barely subsistence employment.  He cannot, after 14 years in an industry, decide to change careers in the face of his separation and his obligations both to E.M.C. and to the children.  This was compounded when he entered an industry which, while it may have seemed viable at the time, resulted in an unexpected downturn in 2015.  Be that as it may, it was work he can return to but refuses to do so.  Again, this is not a decision he can make in the face of his financial obligations.

[53]        E.M.C. forfeited gainful employment in order to have a child.  She cannot return to that employment now because of the certification process she would have to undergo.  Even if she underwent the certification, it would require her to work such hours that her children would be literally raised in 24 hour daycare.  This is not in the best interests of the children.  She is going to have to incur some costs to re-enter the workforce.  She is currently making active steps toward doing what needs to be done in order to get that further training. M.A.K. is now three.  Presumably by the time she starts Grade 1, E.M.C. will have taken the necessary training she needs to take and may even be engaged in new employment.

[54]        It is therefore appropriate that I set a spousal support amount which will see E.M.C. through the agreed period of time until M.A.K. enters school; giving her a window of opportunity in which to re-train and look for gainful employment while raising the children.  The spousal support I set is reviewable upon M.A.K. entering Grade 1 in September, 2017.

[55]        T.C.K.’s spousal support obligations based on an annual income of $57,415, ranges between $645 and $920. I set his spousal support obligation at $785 per month retroactive to July 1, 2014. As I have said, this spousal support order is reviewable when M.A.K. commences school.