IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
L.M. v. J.J.M., |
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2017 BCSC 853 |
Date: 20170523
Docket: E051462
Registry: Vancouver
Between:
L.M. (now L.B.)
Claimant
And
J.J.M.
Respondent
Corrected Judgment: The text of the judgment was corrected at paragraphs 2, 3, 4, and 53 on June 26, 2017.
Before: The Honourable Madam Justice H. Holmes
Ruling
(In Chambers)
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Counsel for the Claimant: |
K. Wince |
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Counsel for the Respondent: |
K. Pepper |
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Place and Date of Hearing: |
Vancouver, B.C. May 3 - 4, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. May 23, 2017 |
[1] When the parties divorced in January 2006, after a relatively short marriage, their son S. was 5 years old. Unfortunately, litigation continued, on and off, focussed mainly on the parenting arrangement and on child support. After about five years, and usually over Ms. M.’s objections, the parenting arrangement gradually evolved to alternating weeks with each parent. Disputes nonetheless continued about the adequacy of the parties’ disclosure about their respective incomes (for the purpose of the set-off formula for child support under s. 9 of the Federal Child Support Guidelines), and about whether Ms. M., who is a registered nurse, was and is under-employed, in working less than full-time and in having changed to a career as a realtor. Ms. M. is now Ms. B., and I will refer to her by that name.
[2] S. is now 15 years old. In December 2016, he told each of the parties, separately, that he no longer wished to spend alternating weeks with Mr. M.; he would live continuously with Ms. B. only. After a while, S. also stopped contacting Mr. M., and rejected Mr. M.’s attempts at contacting him and, it seems, those of members of Mr. M.’s family as well. According to the evidence, S. had previously had fairly frequent contact with Mr. M.’s second spouse and their three young children, as well as with Mr. M.’s parents and the parents of his spouse, during an alternating weeks parenting arrangement.
[3] Mr. M. now applies under s. 61(2)(b) and s. 224(1)(b) of the Family Law Act for orders that S. take counseling with Nancy Devries (who has seen S. once since December 2016 and who worked with him and the family in 2011), and that the parties also undertake counseling, in separate appointments, to hear Ms. Devries’ recommendations about parenting and the parenting schedule.
[4] Ms. B. opposes on the basis that S. has made his views clear. She submits that, other than by the Court interviewing S. about his views (which she proposes in her alternative position), it is not in S.’s best interests to involve S. in the court process in any way, including through court-ordered counselling. Ms. B. also applies for variation of the child support order to reflect the changed parenting arrangement since December 2016; she argues that, from January 1, 2017 forward, Mr. M. should pay child support in the full amount set out in the Guidelines tables, in place of support according to a set-off formula under s. 9. She asks for an order varying the parenting arrangement to reflect the new situation. Ms. B. also asks that the amount of child support Mr. M. is to have paid in the years since 2013 be adjusted retroactively to reflect his actual income in those years. Ms. B. contends that Mr. M. has understated his income over the years by deducting excessive amounts for automobile expenses.
[5] Mr. M. responds that the current order for child support, being a final order, cannot be varied without a material change in circumstances. He submits that, without a court order changing the parenting arrangement, there can be no material change in circumstances. He submits that no order changing the parenting arrangement should be made without, first, counselling for S. and for the parties to help them overcome the current estrangement.
[6] I have decided to ask for a report giving more information about S.’s views about the parenting arrangement and about ongoing contact with Mr. M. and relatives on his side of the family, and making recommendations about how contact may be re-established.
[7] For that reason, the dispute about whether the parenting arrangement should be changed, and child support no longer be based on a set-off formula, will be adjourned generally, until the Court and counsel have received the report mentioned above. However, certain aspects of the applications concerning child support can be determined now, as I will explain.
[8] There can be no doubt that S.’s views play an important part determining whether his parenting arrangement should change. As I mentioned, S. is now 15 — indeed, nearly 16 — and by all accounts is a mature and thoughtful young man. The FLA expressly recognizes (in s. 37(1)(b)) that a court should consider a child’s views when determining the child’s best interests, unless it is not appropriate to consider those views — and that is not the case here.
[9] A child’s views and wishes are not determinative, but will be given considerable weight, especially when the child is older and more mature. Indeed, a child’s newly-formed views may amount to a material change in circumstances, sufficient to allow a variation of the parenting arrangement: see S.M.M. v J.P.H., 2016 BCCA 284 at para. 22.
[10] Furthermore, there will be circumstances where a child’s views will prevail to avoid “pushing the child to the point of rebellion”. The Court of Appeal used that phrase in Alexander v. Alexander, (1988) 15 R.F.L. (3d) 363 (B.C.C.A.) at p. 365-66, in upholding a change in custody of a 14-year old who had been unswerving for three years in wanting the change. The Court also said this:
What the child wishes is not necessarily best for the child, but there does come a point when at near adult years a child capable of responsible thought must now be deemed to be able to settle his own future in this important matter. Concomitant with that he must take the responsibility for his own actions.
[11] In this case, I find that further detail is needed about S.’s views before the Court can determine whether, on the basis of those views and any other factors relating to his best interests, the parenting arrangement should change.
[12] There is no evidence of alienation or wrongdoing by Ms. B. concerning S.’s attitude toward the parenting arrangement.
[13] Mr. M. suggests that Ms. B. actively promotes the estrangement from him, even if she did not initiate it. However, his opinions on this point are no more than speculation; they are not admissible evidence and should not have been included in his affidavits. Moreover, the evidence to which Mr. M. refers does not, in my view, support his stated opinions.
[14] In this regard, I give little, if any, weight to Mr. M.’s evidence that S.’s voice sounded “strained” in the telephone conversation in which S. told him that he no longer wished to spend alternating weeks with him. S. must have known this would cause Mr. M. emotional distress, and it is no surprise that S. found the message to be a difficult one to give. The fact that S.’s voice betrayed this difficulty does not indicate that the decision was not his own.
[15] The fact that Ms. B. was evidently nearby, during the phone call, also does not indicate that she encouraged the call. The call would obviously be a distressing one to make, and it is unsurprising that S. made it in the presence of or near his mother.
[16] Nor do I infer that S.’s December 2016 decision cannot have reflected his true wishes because he sent affectionate text messages to Mr. M. both before (and, for a short time, after) the telephone call. By saying that he did not wish to continue the alternating weeks arrangement, and even by later cutting off contact with Mr. M. to avoid further discussion of the topic, S. did not deny his affection for Mr. M.
[17] In my view, the opinions Mr. M. gives about Ms. B.’s conduct likely contribute to the conflict between the parties that has, in turn, led S. to act as he has done since December 2016.
[18] Also unhelpful was Mr. M.’s telephone call to the police shortly after S. delivered the message about his wishes and the telephone connection was broken. Mr. M. may well have been concerned about S.’s wellbeing, as he deposes, but he had other, more appropriate avenues of inquiry or reassurance. Even accepting Mr. M.’s evidence that he said nothing about child abuse when he telephoned the police (such that any mention of it to Ms. B. must have resulted from miscommunication somewhere along the way), it is unsurprising that S. was upset that his phone call to his father caused the police to arrive at his mother’s home.
[19] At the same time, I am troubled by what appears to be Ms. B.’s complete failure to attempt to help improve the relationship between S. and his father, or to heal the estrangement with him and, it seems, with other members of his family. Ms. B. deposes simply that S. has expressed his wishes clearly, and that she will support him in whatever decision he makes, whether it is to live entirely with her, or with Mr. M., or alternating between them. Entirely lacking from Ms. B.’s evidence is any indication that, in her role as one of S.’s guardians and as a parent, she has tried to guide him toward a better relationship with his father, or that she proposes to do so. Ms. B. offers no reason for that failure.
[20] It will help the Court make a decision about S.’s parenting arrangement to have a detailed report about S.’s wishes, prepared by a neutral professional. As I noted earlier, Ms. Devries met recently with S., with the parties’ consent. If S. is comfortable meeting with her again, she should be asked to prepare a “views of the child” report concerning S.’s wishes about his parenting arrangement, as well as about ongoing contact with Mr. M. and with members of his family. S. should also be asked whether he is willing to meet with a counsellor to receive emotional support and to explore methods of restoring a relationship with his father and other members of the M. family. Ms. Devries’ recommendations, taking into account S.’s wishes, are also requested about whether, when, and how contact with Mr. M. or with other members of his family may be resumed.
[21] If S. is not comfortable meeting again with Ms. Devries, the parties may agree on a different professional, agreeable also to S., to prepare the report. Failing that agreement, either party may contact Supreme Court Scheduling and request to appear back before me.
[22] The report is ordered under s. 211 of the Family Law Act, but should be limited in its scope to the topics I have outlined above.
[23] I expect the process of preparing the report to begin almost immediately. If it is not underway within 14 days of these reasons, either party may request to appear back before me.
[24] The parties are to share the net costs of the report, and any counselling for S., in proportion to their Guidelines incomes, which I will discuss later.
[25] With S. no longer spending alternating weeks with Mr. M., Ms. B. seeks (as of January 1, 2017) the full table amount of child support according to s. 3 of the Guidelines, instead of support according to a set-off formula under s. 9. The parties read the governing court order, which is a final order, as contemplating the use of a set-off formula each year, setting off Ms. B.’s obligation under the Guidelines against Mr. M.’s.
[26] As I said earlier, I will adjourn this application. Ms. B. may request to appear back before me after the report concerning S.’s views is available, without prejudice to that portion of her claim that relates to the period between now and then.
[27] Ms. B. contends that Mr. M.’s actual income was higher each year from 2013 to 2016 than the income on which his child support obligation was based. She applies for an order adjusting the child support Mr. M. should have paid to accord with the incomes she alleges.
[28] This application is dismissed for the following reasons.
[29] The consent order for child support provides in these terms for the parties to negotiate and agree each year about the amount of child support to be payable in the following year:
By consent, the parties shall continue to exchange their annual income tax information by July 30 each year in accordance with the terms of the Consent Order, and the amount of child support payable for S. shall be set by agreement of the parties by September 1 of each year. If the parties are unable to agree on the amount of child support payable either party will have liberty to apply to Court to determine the amount of child support payable for the year in question.
[30] This provision for establishing the amount of child support each year was included, at Ms. B.’s request, in Mr. Justice N. Smith’s October 1, 2010 order, varying the January 3, 2006 consent order. It was repeated in N. Smith J.’s August 22, 2012 order, which, by consent, varied some of the terms of the January 2006 consent order.
[31] The amount of child support has thus been a matter for discussion and agreement each year, with liberty to apply to the court if the parties were unable to agree. Until September 2016, in their discussions about the amount of support for the year 2017, the parties reached agreement, and child support was paid on the basis of the agreement.
[32] Ms. B. deposes that the agreement each year was one-sided, because Mr. M. stated how much he would pay, and she did not have the emotional strength or financial ability to resist him or to apply to the Court. However, the fact remains that a remedy was available to Ms. B. if she took issue with Mr. M.’s position — indeed, the very remedy she had asked be included in the consent order — and she did not pursue it.
[33] In these circumstances, it would be unfair and inconsistent with the order based on Ms. B.’s request and the parties’ consent, to now reopen retroactively the issue of how much child support Mr. M. should have paid.
[34] Ms. B.’s application for an assessment of arrears of child support and an order for their payment is therefore denied.
[35] I turn next to issues concerning the amount of child support to be paid for 2017.
[36] Ms. B. agrees that Mr. M. properly deducts his union dues from his income for Guidelines purposes.
[37] She submits, however, that the expenses he deducts for the use of a personal vehicle during his employment are improperly deducted, and in any event are obviously excessive. I do not agree.
[38] Mr. M.’s vehicle expenses are large. However, I am satisfied that they properly reduce his Guidelines income through the effect of s. 16 of the Guidelines in combination with s. 1(f.1) of Schedule III and s. 8(1)(h)(i) of the Income Tax Act. The evidence establishes that Mr. M. has an employment contract that requires him to use his own vehicle during the course of his employment — as a longshoreman in a managerial position, he is required to travel from location to location during the course of a day — and Mr. M.’s own evidence satisfactorily explains why the expenses are as high as he reports.
[39] Where a payor spouse’s income is over $150,000, s. 4 of the Guidelines allows a court to order a different amount from that set out in the applicable table. If the court considers the table amount to be inappropriate, the court may order the table amount in respect of the first $150,000 of the payor’s income, plus, in respect of the balance, “the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children”.
[40] Mr. M.’s Guidelines income has exceeded $150,000 for some years. It was $226,353 in 2015, and rose slightly in 2016.
[41] Mr. M. submits that, for the purposes of s. 4, his income should be treated as though it is $150,000, because much of his income is from overtime work which he is only able to take on because his second spouse is at home with their three young children. For the most recent year, for example, Mr. M.’s regular hours were paid at $139,718, and his overtime hours at $83,243. He deposes that he could not work as much as he does without his second spouse being at home with the children. He submits that his income is significantly higher than it would otherwise be because of her indirect contribution.
[42] Mr. M.’s position on this point does not reflect the analysis required by s. 4 of the “condition, means, needs and other circumstances” of the child who is entitled to support; it focuses only on the circumstances of his second family. Moreover, the reasoning by which an indirect contribution by Mr. M.’s second spouse would have the effect of reducing his financial obligation to the child of his first family could, it seems, apply equally to support based on an income less than $150,000; however, the Guidelines do not permit such an approach (except, perhaps, in situations of undue hardship, which is not the situation here).
[43] To the extent that Mr. M.’s position may reflect “the financial ability of each spouse to contribute to the support of the children”, as s. 4 goes on to recognize as a basis for concluding that support according to the tables may not be appropriate, it is a position largely unsupported by evidence that would allow it to be applied. Mr. M. deposes simply that his second spouse left her employment (which is not described in the evidence) in order to stay home to care for their three young daughters, and that her assistance in this way allows him to work as much as he does, including by being available to respond to after-hours calls. Mr. M. offers no further detail to relate this assistance to, specifically, the amount of his overtime or other working hours; or about why other, more economic, alternatives would not be available to him.
[44] There is no clear or compelling evidence to support a departure from s. 3, as the basis for determining the amount of child support Mr. M. should pay. Mr. M.’s annual income for 2017 will be the amount calculated under s. 3 of the Guidelines.
[45] Mr. M. contends that Ms. B. is under-employed as a realtor because she reports annual incomes that are less than she could earn as a registered nurse. He submits also that the business expenses Ms. B. deducts for income tax purposes from her income as a realtor are unsubstantiated and excessive.
[46] Much of the evidence Mr. M. tendered about the average or expected earnings of registered nurses is not admissible in the form tendered, as I indicated during the hearing. However, there is no dispute that Ms. B., as a registered nurse working only part-time, earned, or could have earned, at least $64,000, which was the income imputed to her in an earlier order. The logical inference is that working full-time as a registered nurse, Ms. B. could expect an annual income comparable to the income she now reports, which is $111,708 for 2016.
[47] Ms. B. gives no reason for having changed careers, and therefore having reduced her income. However, on the basis I have just outlined — and without reopening the child support issues for previous years, for the reasons I explained earlier — Ms. B. appears now to earn an amount at least comparable to the amount she could have earned as a registered nurse. After the deductions, Ms. B.’s stated annual income as a realtor (including, also, a small amount of part-time work as a nurse most or all years) has risen from approximately $67,600 in 2013 to approximately $111,700 in 2016, except for a dip to $35,144 in 2014 for reasons specific to her employment situation that year.
[48] I therefore find no basis for a conclusion that Ms. B. is under-employed as a realtor.
[49] I turn, then, to whether Ms. B. unreasonably deducts business expenses from her income for Guidelines purposes. Subsection 19(2) of the Guidelines recognizes that expenses legitimately deducted for income tax purposes may nonetheless be considered part of a payor’s income for the purposes of child support. In the aggregate, Ms. B.’s expenses reduce her income by almost half in most years.
[50] Ms. B. gives little detail about the expenses, and almost no explanation for why they are as large as they are. Some of them are not self-evidently reasonable expenses for earning income as a realtor, without conferring financial benefit on Ms. B. personally as well.
[51] Ms. B.’s responses to requests through counsel for information about the expenses has been largely, though not entirely, unhelpful, despite the form of order (which I discussed earlier) that necessarily assumes a full exchange of information each year so that the parties may establish an amount of child support that each is satisfied is appropriate.
[52] In the absence of the evidence required to permit a closer analysis of the expenses, I can take only a rough and pragmatic approach to assessing whether they are reasonably deducted for child support purposes. I conclude that, to an extent, they are not.
[53] The expenses Ms. B. deducts for 2016 will be reduced by the amount that increases her Guidelines income by $5,000. Ms. B.’s income will accordingly be increased for that year to $116,708.
[54] As I indicated earlier, the set-off formula, ordered under s. 9, will continue to apply until further order, without prejudice to Ms. B.’s ability to resume her application for a change to table support, payable by Mr. M. alone, as of January 1, 2017.
[55] The parties’ 2016 incomes will be calculated according to the determinations I have discussed above.
[56] Ms. B. seeks orders expressly allowing each party to travel outside Canada with S. without the other’s consent, and requiring Mr. M. to maintain S. on his extended medical benefits plan for as long as the plan is available to him through his employment.
[57] I see no basis for these orders.
[58] There is no reason to conclude that either party would unreasonably withhold consent for S. to travel. For S.’s sake, as well as their own, the parties must learn to communicate on this and other topics, as the current unfortunate situation demonstrates only too well.
[59] Nothing in the evidence suggests that Mr. M. would remove S. from his medical benefits plan. Every indication is that Mr. M. wants the best for S.
[60] Ms. B.’s applications on these points are denied.
[61] If there are matters requiring clarification or further attention, the parties may arrange to appear back before me.
[62] I will remain seized of all issues relating to S.’s parenting arrangement and child support.
H. Holmes J.