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H.A.J.R. v. D.L., 2021 BCPC 20 (CanLII)

Date:
2021-02-08
File number:
F76677
Citation:
H.A.J.R. v. D.L., 2021 BCPC 20 (CanLII), <https://canlii.ca/t/jd4zv>, retrieved on 2024-03-28

Citation:

H.A.J.R. v. D.L.

 

2021 BCPC 20

Date:

20210208

File No:

F76677

Registry:

Nanaimo

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

H.A.J.R.

APPLICANT

 

AND:

D.L.

RESPONDENT

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE GOUGE



 

Counsel for the Applicant:

G.D.S. Ball

Counsel for the Respondent:

E.L. Brook

Place of Hearing:

Nanaimo, B.C.

Date of Hearing:

February 3, 2021

Date of Judgment:

February 8, 2021


A Corrigendum was released by the Court on February 11, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

The Issues

[1]         Mr. L. and Ms. R. are the parents of one child, C., now age 7.

[2]         Mr. L. seeks a change to the existing parenting time schedule. 

[3]         Mr. L. has been making interim payments on account of child support under the terms of several interim orders.  He seeks a retroactive determination of his child support obligations for the period since July, 2019, and an order determining his child support obligation for the period February to June, 2021. 

[4]         A review of the parties’ child support obligations is scheduled for June, 2021, at which time their Notices of Assessment for the 2020 tax year will be available and the parties’ ongoing child support obligations will be assessed.

History of the Proceedings

[5]         On December 16, 2016, the parties agreed to a consent order which declared both parents to be C.’s guardians, provided for shared parental responsibilities and for Mr. L. to have “… reasonable parenting time at dates and times to be agreed between the guardians …”.

[6]         In September, 2017, I presided at a 2-day trial, during which Ms. R. alleged that Mr. L. was not a safe or suitable caregiver for C.  I referred the matter to the Ministry of Children & Family Development for investigation, and suspended Mr. L.’s parenting time pending the outcome of that investigation.  I assessed arrears of child support payable by Mr. L. at $14,447, and ordered that he pay the arrears at the rate of $250 per month.  I also ordered that he make interim payments on account of his ongoing child support obligation at the rate of $600 per month, and that his ongoing child support obligation be assessed and determined at a hearing to be held in June, 2018.

[7]         The hearing scheduled for June, 2018 did not occur.  Instead, Ms. R. agreed to an increase in Mr. L.’s parenting time in exchange for Mr. L.’s agreement to pay the full table amount of child support, without the reduction of child support which would normally result if he had parenting time in excess of 40%.  That agreement was implemented by a consent order made on March 15, 2018, which provided for Mr. L. to have parenting time every week from 10:30 a.m. on Friday to 8:00 p.m. on Sunday and for 4 hours every Thursday.  The agreement was to remain in effect until the hearing to determine Mr. L.’s child support obligation.

[8]         On September 24, 2018, His Honour Judge Cowling ordered that Mr. L.’s parenting time be increased to a 4-week rotation, in which Mr. L. would have parenting time during each of the first two weeks from 4:00 p.m. on Thursday to 8:00 p.m. on Sunday and during each of the second two weeks from 9:00 a.m. on Friday to 3:00 p.m. on Sunday.

[9]         On June 26, 2019, Mr. L. filed an application to determine his child support obligation.  The hearing of that application was delayed by the pandemic, and finally came on for hearing before me on February 3, 2021.

Parenting Time Schedule

[10]      Ms. R. says that C. is often reluctant to go to his father’s house, and that he suffers emotionally when he is out of her care for more than a few days.  Mr. L. says that C. enjoys his time in Mr. L.’s care, and frequently expresses a wish for longer visits with his father.  C. has not been interviewed by an independent professional, and the parties did not accept my offer to interview C. in an informal setting.  Accordingly, C.’s views are unknown, and there is no evidence upon which I could assess the impact of the existing parenting schedule.  I am sceptical in relation to Ms. R.’s evidence on the point.  She has made many allegations of parental misconduct against Mr. L.  All of them have been investigated.  None of them have been substantiated.  She bears a clear animus toward Mr. L.

[11]      The evidence discloses no reason to think that one parent is more significant to C. than the other, or that the parenting skills of one are superior to those of the other.  In that circumstance, I think that C.’s interests are best-served by having equal, or approximately equal, time with each parent.

[12]      The determination of an appropriate parenting schedule is complicated by the hostile relations between the parents.  Their dislike, each for the other, is manifest, and any meeting between them will be fraught with hostility.  Steps should be taken to insulate C. from such confrontations as much as possible.  With that in mind, I have attempted to devise a parenting schedule which minimizes the risk that C. will be in the presence of both parents at the same time.  In so doing, I will use the following nomenclature:

“First Christmas Period” means the interval between the end of the school day on the last school day before Christmas and noon on Christmas Day.

“Second Christmas Period” means the interval between noon on Christmas Day and the opening of school on the first school day after Christmas.

“First Spring Break Period” means the interval between the end of the school day on last school day before Spring Break until noon on the ensuing Saturday.

“Second Spring Break Period” means the interval between the end of the First Spring Break Period and the opening of school on the first school day following Spring Break.

“First Summer Period” means the interval between the end of the last school day before the summer holiday and noon on the second Saturday in July.

“Second Summer Period” means the interval between the end of the First Summer Period and noon on the second Saturday in August.

“Third Summer Period” means the interval between the end of the Second Summer Period and opening of school on the first school day in September.

[13]      Mr. L. and Ms. R. will each have parenting time in alternating weeks, commencing March 1, 2021.  Ms. R. will have parenting time beginning at the end of the school day on Monday, March 1, 2021 until the opening of the school day on Monday, March 8, 2021.  Mr. L. will have parenting time from the end of the school day on March 8, 2021 until the opening of the school day on March 15, 2021.  Thereafter, the parents will have parenting time during alternating weeks on the same schedule.  If school is closed on a Monday, the parenting time of the parent who had parenting time with C. during the preceding week will be extended to the opening of the school day on Tuesday.

[14]      Mr. L. will have parenting time during the First Spring Break Period each year and Ms. R. will have parenting time during the Second Spring Break Period each year.  Mr. L. will drop off C. at Ms. R.’s home at noon on the Saturday at the end of the First Spring Break Period.  When he does so, he will simply drop C. off on the sidewalk in front of Ms. R.’s home, wait to see that he enters Ms. R.’s home safely, and then drive away without speaking to Ms. R.  Ms. R. will have parenting time with C. during:

a.            the First Summer Period and the Third Summer Period in each odd-numbered year; and

b.            the Second Summer Period in each even-numbered year.

Mr. L. will have parenting time with C. during:

c.            the First Summer Period and the Third Summer Period in each even-numbered year; and

d.            the Second Summer Period in each odd-numbered year.

The parent who has parenting time during the First Summer Period will drop off C. at the home of the other parent at noon on the Saturday which is the last day of the First Summer Period. The parent who has parenting time during the Second Summer Period will drop off C. at the home of the other parent at noon on the Saturday which is the last day of the Second Summer Period.  In each case, the parent who is dropping off C. will simply drop C. off on the sidewalk in front of the other parent’s home, wait to see that he enters the home safely, and then drive away without speaking to the other parent.

[15]      Mr. L. will have parenting time during the First Christmas Period in each odd-numbered year and during the Second Christmas Period in each even-numbered year. Ms. R. will have parenting time with C. during the First Christmas Period in each even-numbered year and during the Second Christmas Period in each odd-numbered year.  The parent who has parenting time during the First Christmas Period will simply drop C. off on the sidewalk in front of the other parent’s home at noon on Christmas Day, wait to see that he enters the home safely, and then drive away without speaking to the other parent.

[16]      At the end of the Second Christmas Period, the Second Spring Break Period and the Third Summer Period, the weekly parenting rotation will reset; i.e.

a.            The parent who did not have parenting time during the Second Christmas Period will have parenting time for the first week following the Second Christmas Period, and the parents will alternate weeks thereafter until the beginning of the First Spring Break Period.

b.            The parent who did not have parenting time during the Second Spring Break Period will have parenting time for the first week following the Second Spring Break Period, and the parents will alternate weeks thereafter until the beginning of the First Summer Period.

c.            The parent who did not have parenting time during the Third Summer Period will have parenting time for the first week following the Third Summer Period, and the parents will alternate weeks thereafter until the beginning of the First Christmas Period.

[17]      The parties asked me to make specific provisions for parenting time on C.’s birthday, the parents’ birthdays, Father’s Day, Mother’s Day and Hallowe’en.  I decline to make such orders at this stage of the proceedings.  Such orders would require cooperation between the parents and frequent transitions from one parent’s home to the other.  For the reasons given above, that would be undesirable.  Given the parenting schedule set out above, those occasions will be evenly divided between the parents over time.  The parents are, of course, at liberty to negotiate arrangements for those occasions if they wish.

Communications and Conduct

[18]      Mr. L. and Ms. R. are to communicate only in writing, by letter, e-mail or text.

[19]      Neither Mr. L. nor Ms. R. is to approach within 100 metres of the home of the other, except when dropping off C. at the end of an interval of parenting time.

[20]      Neither Mr. L. nor Ms. R. is to attend at the other’s workplace.

Child Support

[21]      Section 150(1) of the Family Law Act SBC 2011 (“the FLA”), c 25 provides that “…  the amount of child support must be determined in accordance with the child support guidelines.”  Sections 150(2) –(4) of the FLA empower the court to order amounts different from those mandated by the guidelines in various circumstances, none of which pertain in this case.  Section 7 of the Family Law Act Regulation BC Reg 347/2012 provides that the “child support guidelines” referred to in the FLA are the Federal Child Support Guidelines SOR 97/175 (“the Guidelines).

[22]      Mr. L. points out that C. has been in his care for more than 40% of the period in question (June, 2019 to February, 2021), and seeks an apportionment of child support under section 9 of the Guidelines, which provides:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year, the amount of the child support order must be determined by taking into account:

a.   the amounts set out it the applicable tables for each of the spouses;

b.   the increased costs of shared custody arrangements;

c.   the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[23]      Counsel suggested that I should approach this issue by determining the amount of child support:

(i)            which Ms. R. would be obliged to pay if Mr. L. had sole custody; and

(ii)         which Mr. L. would be obliged to pay if Ms. R. had sole custody,

and deducting one from the other.

[24]      Mr. L. asserts that Ms. R. is intentionally under-employed, and asks that I impute to her, pursuant to section 19 of the Guidelines, the income which she could earn if she were employed full-time.  Ms. R. now works part-time as a server in a local pub.  She concedes that she could work additional shifts if she chose – she is a competent and highly-valued employee - but chooses to work part-time so as to allow her more time with C. and more time to pursue her artistic interests.

[25]      The approach suggested by counsel is often referred to as the “set-off” approach to quantifying child support in shared-custody situations.  However, that approach was rejected in A.J.B. v. J.M. 2020 BCSC 242; [2020] BCJ No. 294.  At paragraph 79(f), Justice Sharma said (underlining added):

The set-off amount …  is a useful starting point, but it has no presumptive value; a court should depart from it, or make adjustments to it, if it is inappropriate in light of the other two factors and these must be examined  ….

“The other two factors …” mentioned by Justice Sharma are those set out in subsections “b” and “c” of section 9 of the Guidelines.  I am required to consider all three factors.

[26]      As I construe the judgment in A.J.B. v. J.M, I am required to make a subjective assessment of the sources of income of each parent, the costs of providing for C. in each parent’s home, and other pertinent circumstances with two objectives in mind:

a.            to provide C. with a comparable standard of living in each home;

b.            to apportion the cost of achieving that objective fairly between the two parents.

The evidence in this case is insufficient to enable me to do that.  For example, Ms. R. lives in her mother’s home.  It may be that her mother provides child care while Ms. R. is at work.  If Mr. L. pays for child care and Ms. R. does not, that would be a factor to consider in the assessment which I am required to make.  I do not know whether either parent pays rent, or, if so, how much.  I do not know whether Mr. L. shares household expenses with his new intimate partner, or in what proportions.

[27]      Because fairness as between the parents is an objective of the process, it is necessary to consider both the actual income and the income-earning capacity of each parent.  However, the arithmetic set-off suggested by counsel was rejected in A.J.B. v. J.M. , and I may not apply it here.  Rather, I must consider Ms. R.’s income-earning capacity as one factor in the broader matrix of the resources and circumstances of both parents.

[28]      All of these matters can and should be addressed at the hearing now scheduled for June, 2021.  I have considered whether I should give directions for pretrial disclosure of the evidence to be tendered at that hearing.  I think that I should leave that matter to be discussed between counsel.  If counsel are unable to agree on the details of disclosure, either may apply for directions.

Disposition

[29]      The parents will have parenting time on the schedule set out in paragraphs 13 - 16 of these reasons.

[30]      There will be a conduct order in the terms set out in paragraphs 18 - 20 of these reasons.

[31]      All issues of child support are adjourned to the hearing in June, 2021.

[32]      I will be available for the hearing in June, 2021, but will not be seized of the matter.  Any Judge of the Court may be assigned to that hearing.

February 8, 2021

 

 

___________________________

T. Gouge, PCJ

CORRIGENDUM - Released February 11, 2021

In the Reasons for Judgment dated February 10, 2021, the following changes have been made:

[1]         The date of judgment should read:

February 8, 2021.

 

 

_____________________________

The Honourable Judge T. Gouge

Provincial Court of British Columbia