IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           SM brings claims against her former spouse, JM, for the payment of child support for their daughter BM, born [omitted for posting] 1999; for payment of section 7 Special and Extraordinary expenses for BM; and for JM to pay spousal support.  JM opposes any payment for spousal support and he disputes the finding of his income which was made in an ex parte interim order on May 26, 2015. 

[2]           The parties reached an agreement on the payment of Special and Extraordinary expenses just prior to the commencement of the hearing, so that matter is not considered in these reasons.

[3]           The parties commenced their relationship in 1997.  Their daughter, BM, was born [omitted for posting] 1999.  The parties married on July 6, 2006 and separated in October of 2014.  The relationship continued for 17 years.  BM is currently 16 ½ years old and is entering grade 12 in September 2015.

[4]           SM is 39 years of age and JM is 49 years of age.

[5]           Early on in the relationship, it was agreed between the spouses SM would quit her job and stay at home as the primary care giver for JM’s three children from another relationship.  She did this for about the first year of their relationship.  SM then became pregnant with BM.  By agreement between the parties, SM continued to stay at home as the primary care giver of BM, only working out of the home in the work force in a few part time temporary jobs, and this continued throughout the relationship until the parties’ separation.

[6]           The parties separated as of October 2014, but JM continued to reside in the former matrimonial home until around December 28, 2014.  Even after he moved out, JM continued allowing his pay cheques to go into the joint account where SM could access the funds.

[7]           This changed around March 2015, when JM stopped depositing his cheques into the account. The bank statement provided shows a deposit on February 20, 2015 and then the bank statement ends.  At the time of the deposit, after some expenses were paid, there remained in the account $2,746.96.

[8]           SM provided copies of the bank account showing the deposits and the expenditures up to February 20, 2015, but she did not provide the final bank statement entries showing the closing of the account.  She stated that she printed off the information and then she later closed the account, but when she went back to get further information, she was not able to obtain it.

[9]           From the date of the last deposit of his paycheque, presumably February 20, 2015, JM did not provide any child support or spousal support to SM until SM obtained a court order for child support on May 29, 2015.  JM had not responded to any of the court materials and the application went ahead ex parte, that is, without JM being present.

[10]        On May 29^th, 2015, the court made an interim order, finding JM to be a resident of British Columbia and imputed income to JM of $100,000.00, with an order for child support of $921.00 per month commencing June 1, 2015 and continuing payable on the first of each month until further order of the court.

[11]        JM made one payment of $921.00 of child support for June of 2015, and a $300.00 payment in July of 2015, with no further payments up to the hearing of this matter on August 26, 2015.  JM made some payments directly to BM, in the estimated amount of $400.00 from January 2015 to the date of this hearing.

[12]        The issues to be decided are as follows:

[13]        At the commencement of the relationship, SM was working at a grocery store, and she and JM agreed that she would quit and stay home to look after his three children from another relationship.  She was the primary caregiver of the children for about one year.  SM then became pregnant with the parties’ child, BM, and she remained a home maker and the primary caregiver of BM.

[14]        Throughout the 17 years of the relationship, SM did go into the work force on several occasions.  The positions she worked at were predominantly temporary and she never stayed working outside the home for very long.  She stated she sometimes got a job because JM was behind on his payment of child support for his three children from another relationship and she would help out.

[15]        The parties moved several times as a result of JM’s work.  Both parties acknowledged JM is a very hard worker and provided well for the family.

[16]        SM provided evidence of her income:

[17]        For her 2015 income, SM has been working at two part time jobs: a security job with [omitted for posting]; and doing deliveries for [omitted for posting], an ice cream company owned by her father. 

[18]        SM works about 15 - 20 hours per week.  She submits she has some health issues that prevent her from working more than about half time, specifically wrist pain which she has had for about 15 years, and lower back pain which she has had for about 2 years.

[19]        SM provided a letter, dated June 12, 2015, from her family doctor, Dr Louw, which simply states:

[20]        There are several difficulties with the letter:  It was submitted by SM and Dr Louw was not called as a witness, and therefore is hearsay.  I do not find that the contents of the letter comprise an exception to the hearsay rule.  Even if I did accept the contents of the letter as evidence as to the truth of the contents, the letter is so general it does not assist. What it does confirm is SM attended at her doctor’s office for complaints of pain in her wrists and her back.  There is no diagnosis.  There is no prognosis.  There are no specifics as to the treatment, or the type of specialist with whom SM was waiting to have an appointment. 

[21]        In her Financial Statement filed May 11, 2015, SM referred to an appointment with a neurosurgeon scheduled for June 1, 2015.  In evidence, she confirmed that the appointment did not occur as she cancelled it.  She further stated she does not have any other scheduled appointments with a specialist at this time, although she said she is waiting for a specialist to get an x-ray, but no details were given.  SM advised she does not attend physio but does ‘physio’ exercises at home when the pain gets bad.  SM was also offered some pain control medication through her family doctor but she declined.

[22]        SM has described that she has difficulty with doing any physically heavy work such as housekeeping and working out in the yard and she mentioned that she has trouble with heavy lifting in her delivery job.

[23]        SM submits that she has a diminished ability to work due to those medical problems.  

[24]        I have reviewed the evidence of SM regarding her medical concerns and diminished ability to work.  Based on the evidence before me, I am not convinced SM cannot find an appropriate full time position. She confirmed she has held previous jobs where she was able to manage, such as being the manager of a small hotel.

[25]        On reviewing the evidence of the income earned by SM in 2015, year to date (as of the middle of August 2015) from her two part time jobs was $1,688 for the [omitted for posting] position and $1,743.75 for the [omitted for posting] position for a total of $3,431.75.  SM states she will be continuing the part time job with her father’s company, [omitted for posting] through the winter but her position with [omitted for posting] will not continue after September 15, 2015 as she loses her licence at that time as she cannot afford the $600.00 to renew it.

[26]        SM and BM currently reside in Naramata where they live with SM’s father at his residence.  SM and consequently BM, would be in a serious financial crisis without SM’s father’s assistance in providing lodging for her and BM. When she was receiving money from JM through the sharing of the bank account, SM paid $500 per month in rent to her father plus groceries.

[27]        SM has a grade 11 education but has recently upgraded to a grade 12 certificate.

[28]        In the past, SM has worked as a cashier, a manager for a small hotel, at a golf course, in a photo lab at a grocery store, and as a food service worker at a hospital.  She had other short term positions as well.  Her salary varied from minimum wage to $20 per hour.  SM testified that she is capable of doing the less physically demanding jobs, but only part time.

[29]        SM’s future plans include wanting to go back to school in September 2015 to up-grade to qualify to enter a course of Criminal and Social Justice through Okanagan College in September of 2016.  She envisions being able to work as a type of counsellor or social worker in addictions with women.  She states she anticipates continuing to work part time while she is up-grading, but does not anticipate she will be able to work for the full two years while she is studying for the Criminal and Social Justice course.  She anticipates being able to work full time once she graduates.  She has not looked into what the salary would be upon graduation working as a counsellor.

[30]        For the purposes of a spousal support claim, it is necessary to determine what the income of the applying spouse is as well as her future prospects.

[31]        I have considered all of the evidence of SM’s income earned in 2015, the details of her two part time jobs, as well as her previous employment history, and the evidence she has provided with respect to her health concerns.

[32]        On reviewing the entirety of the evidence, including the responsibilities SM has with respect to providing primary care to the couple’s 16 ½ year old daughter for at least the next year as BM is in grade 12, as well as considering her age, her past work experience and her educational plans, I find SM is capable of, and should be employed full time. However, SM does not have the education or experience to obtain a job paying much above minimum wage.

[33]        I impute an income to SM in the amount of $11.00 per hour for a 35-hour week for 52 weeks of the year in the amount of $20,000.00 per year (rounded down).

[34]        JM was working for his own excavation company when he met SM.  Over the years he has worked as a logging truck driver, an equipment operator, in paving and at a mill.  In addition to his other fulltime job, JM has worked as a trainer for [omitted for posting] earning $75.00 per hour, which is sporadic contract work that occurs about twice or possibly three times a year, or not at all.

[35]         SM has given evidence that JM regularly earned around $100,000 per year or more over the 17 years they were together.  JM disputes that evidence.

[36]        JM has provided some financial disclosure, but the disclosure is notably lacking.

[37]        He reports income from his submitted tax returns for 2013 and 2014.  However, JM has not provided any Notices of Assessment and his tax returns are incomplete in that they do not include his T4s or all of the schedules.

[38]        The income reported in the two tax returns provided by JM are:

[39]        For the year 2012, SM provided a copy of the first page of her T1 tax return prepared for that tax year which reports JM’s income as $120,308.24.  JM did not dispute that income during evidence.

[40]        For the year 2015, JM states he was working January 1 - February 23 for [omitted for posting].  He states he was then off work for the months of March, April, and most of May 2015 waiting to be called back to work with [omitted for posting].  He was advised in April he would not be called back and he found a job in May 2015 driving a logging truck in Drayton Valley, Alberta.  He worked at that job but the weather was so poor that the job was not paying so he started another job on June 15, 2015 with [omitted for posting] in Drayton Valley, Alberta.  He earned $23.00 per hour and he worked 12 hours a day until July 24, 2015.  He then had an opportunity to work with [omitted for posting] running heavy equipment servicing the oil fields.  He earns $28.00 per hour and works up to 12 hours a day.  JM commenced working with that company on July 28, 2015, and has continued his employment with [omitted for posting] up to the date of this hearing.  JM expects to continue on with this employment, subject to the vagaries of the oil industry. 

[41]        For his 2015 income, JM provided a copy of two paystubs, both from [omitted for posting] dated June 27, 2015, and July 11, 2015. He did not provide any up-to-date pay stubs from [omitted for posting] nor did he provide information on his total income to date in 2015 from all sources.

[42]        JM confirmed that he has a potential opportunity to work as a trainer for [omitted for posting] in the near future, but this opportunity is dependent on his current employer giving him a leave of absence for the two weeks to do the job. He had not received confirmation of any leave of absence by the time of the hearing.

[43]        JM now lives permanently in Drayton Valley, Alberta and he has commenced a new relationship.  He states his new partner is unemployed and he is supporting her.

[44]        JM confirms that SM had access to their joint account until March 2015.  He stated his job ended at the end of February, 2015 and he had no further pay cheques coming in and the deposits stopped.  JM did not fully explain what he lived on from the end of February to about the last week in May while he says he was unemployed.

[45]        JM’s financial disclosure is lacking and given the evidence that has been provided, I find it is appropriate to impute income to JM.

[46]        Reviewing all of the evidence provided, and considering what limited evidence there is for JM’s income, I find an appropriate method of determining what income to impute to JM, is to take his last three years’ income and average them along with an estimated income for 2015, based on his current employment of $28 per hour with some overtime as he often works 12 hours a day.  As well, I considered that he has had 2 ½ months of unemployment in the current calendar year.  Based on all of the considerations, I find an appropriate imputed income for JM is $85,000.00 per year.

[47]        All parents and qualifying guardians have a duty to pay child support.  [s.147 (FLA) and DZM v. SM, 2014 BCPC 198]

[48]        On May 29, 2015, an interim order was granted ex parte for child support payable by JM for the child, BM, based on an imputed income of $100,000 in the amount of $921.00 per month commencing June 1, 2015. 

[49]        Having now received at least some information upon which to make a determination of an income for JM, I find the income to be imputed to JM is $85,000.00.

[50]        SM seeks retroactive child support back to March 1, 2015.  Pursuant to s. 152 of the FLA, child support orders can be made to be retroactive in effect. [SML v. RXR, 2013 BCPC 123]

[51]        I find the appropriate date to commence the payment of child support is April 1, 2015.  JM was unemployed in March of 2015.  Although he had some of the care of BM for the month of March, I do not find that to be a factor supporting his argument that he should not pay child support for March. 

[52]        There was a balance in the shared bank account on February 20, 2015 of over $2,500 after the deposit of the last pay cheque of JM from [omitted for posting].  SM closed the bank account sometime in March 2015.  She testified she was not aware of JM stopping the deposit of cheques until sometime in March 2015, but she did not provide the entire history of the bank account to when it closed. 

[53]        Based on the evidence before me, I find that SM had access to and used the funds in the account and withdrew the balance of any money at the time she closed the account, sometime in March 2015.

[54]        JM shall pay to SM child support for BM based on the Child Support Guideline amount for one child.  Using the income imputed for JM of $85,000, and using the Guideline amounts for a payor who is resident in Alberta, the amount of the support is $734.00 per month.  The child support shall commence April 1, 2015 and is payable on the 1^st of each month thereafter for so long as BM is a child of the marriage or further order of the court.

[55]        JM has not paid the child support that was ordered on May 29, 2015.  In addition, that order is now varied in the amount of child support and the commencement date and so arrears of child support owing by JM must be calculated.

[56]        The arrears of child support up to the date of the hearing are calculated as follows:

[57]        The child support arrears are set at $2,449.00 up to August 30, 2015. 

[58]        SM brings a claim for JM to pay her spousal support.  The claim is brought pursuant to the Family Law Act [S.B.C. 2011, c. 25], (FLA).  JM opposes any claim for spousal support by SM.

[59]        The FLA, and specifically s. 160, imposes a duty on a spouse to provide support to the other spouse when that spouse establishes they are entitled to support.  S. 160 states:

[60]        Section 3 of the FLA defines a “spouse”.  In the circumstances in this matter, SM is a spouse within the meaning of the FLA as she was legally married to JM at the time she brought her claim.

[61]        The first question is whether SM is entitled to spousal support payable by JM.

[62]        In determining entitlement, section 160 directs the court to consider section 161 of the FLA, which section sets out the objectives for spousal support. Section 161 states:

[63]        If the court determines that SM is entitled to spousal support, the court then decides what amount of support JM should pay and the court decides how long JM must pay the support to SM.  To make those decisions of how much and how long, the court is directed to consider the criteria set out in Section 162:

[64]        It is noted that the objectives which are set out in s. 161 of the FLA essentially mirror the objectives set out in s. 15.2(6) of the Divorce Act, and the objectives in section 162 of the FLA essentially mirror the objectives set out in s. 15.2(4) of the Divorce Act, and therefore any case law dealing with the criteria set out in s. 15.2(6) and  s. 15.2(4) of the Divorce Act would be applicable to the considerations under s. 161 and  s. 162 of the FLA respectively for the determination of spousal support.  

[65]        Entitlement to support is a threshold issue to be determined.  Is SM entitled to spousal support?  To determine entitlement, the court looks at the type of support that is available and the reasons for each type of support.

[66]        There are three basic approaches for entitlement to spousal support: compensatory, non-compensatory, and contractual support.  [Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 (compensatory support), and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420 (non-compensatory support), and Miglin v. Miglin, 2003 SCC 24 (contractual support)].  And of course, there are numerous cases following each of the leading cases noted.

[67]        Compensatory support primarily relates to the first two objectives of s. 161, that is the court must consider any economic advantages and disadvantages to the spouse applying for support arising from the relationship as a result of the break-up of that relationship, and the court must consider any consequences resulting from the direct care of the parties’ child. 

[68]        I now review and consider the circumstances of SM and JM and apply the objectives to determine if SM is entitled to spousal support.

[69]        By predominantly remaining out of the work force during those 17 years, SM is disadvantaged in now trying to re-enter the work force.  There are financial consequences of not having had a paid salary for all of those years, and she has been economically disadvantaged by the marriage and its breakdown. Her current earning capacity has been negatively affected by the years of being out of the work force.  She is older, has very little work experience, limited work training and no specialized training.

[70]        I find that SM has established entitlement to compensatory support.

[71]        As entitlement to compensatory support has been established, it should be noted that any compensatory support portion of any spousal support award would not be affected by SM’s future prospects.  (Morigeau v. Moorey, 2013 BCSC 1923; Poole v. Poole, 2011 BCSC 740). 

[72]        Compensatory support is exactly what it sounds like - compensation for the economic losses of a stay-at-home spouse, that is, losses suffered by the spouse as a result of the breakdown of the marriage. The financial loss of the stay-at-home spouse is a lost economic opportunity, and this lost opportunity came about as a result of a joint decision for that spouse to stay at home during the marriage and raise children.  This lost opportunity includes the loss of experience, training, seniority and all of the usual benefits that are enjoyed from full time employment such as medical and dental coverage and possibly a pension.

[73]        Although spouses should share the stay-at-home spouse’s lost economic opportunity, this does not equate to the spouses being guaranteed the same standard of living they enjoyed when living together.  The standard of living the spouses enjoyed when living together is a factor to consider, but there are the financial realities with now two households to support.

[74]        Even where an applying spouse is entitled to compensatory support, this does not mean both parties’ net incomes will be equalized: [Armstrong v. Armstrong, 2012 BCCA 166]

[75]        The basis for non-compensatory support is set out in s. 161 (c) and (d) and the leading case is Bracklow.  Non-compensatory support does not depend on finding any economic losses arising from the breakdown of the marriage, but rather determining if the spouse has suffered or is suffering some hardship, in particular financial hardship, as a result of the breakdown of the marriage.  Need alone may be enough to establish entitlement to non-compensatory support.

[76]        It has also been found that “need” in this context goes beyond the basic necessities of life.  [Chutter v. Chutter, 2008 BCCA 507]  Further, the quantum of spousal support does not necessarily mean the support will equal or fulfil the need of the recipient spouse. 

[77]        I find, on reviewing the financial information in relation to the parties, SM has demonstrated a need, and I find that JM has an ability to pay some spousal support.

[78]        SM and JM did not have any formal agreement regarding the payment of spousal support and having found that SM has established entitlement with compensatory and non-compensatory spousal support, it is not necessary to canvass this area of support.  

[79]        Once entitlement has been established by the applying spouse, then the amount of support payable and how long the support is payable must be determined.

[80]        The factors to be considered are set out in s.162 of the FLA as follows:

[81]        SM and JM had a relationship and marriage spanning 17 years. 

[82]        SM was a stay-at-home partner to JM, providing primary care to his three children for about a year and then primary care to the parties’ daughter as well as essentially being responsible to run the household.  JM was the financial support of the family and he worked hard with long hours. 

[83]        The objective set out in s. 161 (d) states one of the objectives for spousal support is “as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.”

[84]        In some circumstances, when a recipient spouse is sick or disabled, and that affects their ability to work and become economically self-sufficient, support entitlement will often be based on need. [Bracklow]  With SM’s claim, notwithstanding SM has some stated health concerns, I have determined she is capable of working and I have imputed $20,000 of annual income to her, which will be taken into consideration in calculating her spousal support.

[85]        It is noted that it has been held that a compensatory spousal award should continue to be paid even in circumstances where the recipient has achieved the objective of self-sufficiency. [Tedham v. Tedham, 2005 BCCA 502.]  But in the initial determination of quantum and duration of support, both of the spouse’s incomes are relevant for consideration.

[86]        To determine the quantum or how much JM should pay to SM for spousal support, a helpful tool and guideline is the Spousal Support Advisory Guidelines.  As noted by counsel for SM in submissions, the court in Chutter, a B.C. Court of Appeal case, endorsed the SSAG in determining the amount and duration of spousal support.  Earlier in 2006 in Redpath v. Redpath [2006 BCCA 338] the court stated that a failure to consider the SSAG where spousal support is awarded either substantially higher or lower than the suggested range may be a grounds for an appeal, absent an explanation of the circumstances to explain the departure from the Guideline range.  It is incumbent on the court, then, to consider the SSAG when determining spousal support.

[87]        Going to the SSAG, the range of spousal support, calculated as “with child support” being paid by the payor, as set out in the Guidelines is:  low - $890; mid - $1,172; and high $1,462. 

[88]        I find that the appropriate amount of spousal support is $1,000.00 per month.  As noted, this is spousal support calculated while JM pays child support in the amount of $734 per month.  This spousal support will be indefinite (that is an unspecified duration) but is subject to variation and review, for instance, including but not limited to, when JM is no longer paying child support for BM.  It is noted that JM shall be entitled to claim the spousal support on his annual tax return and SM will be obliged to claim the support as taxable income pursuant to the Income Tax Act.

[89]        I have considered JM’s argument in his submissions that apparently by agreement, SM sold some of his tools, and he argues, the money received by SM from the sale ought to be taken into consideration in any spousal support decision of this court.

[90]        Unfortunately, the sale of the tools cannot be taken into consideration for two reasons: (1) the Provincial Court of British Columbia does not have the legislated authority to deal with division of assets as does the Supreme Court of British Columbia; and (2) even if I accepted that the sale of the tools ought to be considered, which I clearly cannot, there was no cogent evidence of the amount of the sale proceeds or the value of the tools.  I must reject JM’s argument.

[91]        As with the determination of the child support, I have considered all of the evidence and I find the appropriate date to commence the obligation of JM, to pay spousal support, is April 1, 2015.

[92]        JM should have been paying SM some spousal support since April 1, 2015, and I set the arrears of spousal support owing by JM to SM at five months of non-payment, and the total arrears are $5,000.00 from April 1, 2015, to and including August 30^th, 2015.

[93]        The parties have agreed to a consent order for the section 7 Special and Extraordinary expenses of the child, BM and that order will be prepared and entered.

[94]        There is an order as follows: