IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Galpin v. Galpin, |
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2018 BCSC 1572 |
Date: 20180913
Docket: S200352
Registry: New Westminster
Between:
Brad Ogden Galpin
Appellant
And
Stephanie Nancy Galpin
Respondent
Before: The Honourable Mr. Justice Riley
On appeal from: An order of the Provincial Court of British Columbia, dated February 6, 2018 (Galpin v. Galpin, Surrey Registry File No. F38693).
Reasons for Judgment
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Counsel for the Appellant: |
M. Campbell |
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Counsel for the Respondent: |
J. Page |
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Place and Dates of Hearing: |
New Westminster, B.C. August 21, 2018 |
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Place and Date of Judgment: |
New Westminster, B.C. September 13, 2018 |
[1] The appellant Brad Ogden Galpin appeals from the decision of a Provincial Court Judge requiring him to pay child support in specified monthly amounts to the respondent Stephanie Nancy Galpin for the support of their two children. Mr. Galpin argues that the Provincial Court Judge (i) failed to consider whether there was a basis for revisiting the existing child support arrangement, (ii) erred in his consideration of the legal principles governing imputation of income for the purposes of calculating child support, (iii) misapprehended the evidence relating to imputation of income, and (iv) reached a manifestly unreasonable conclusion in finding that Mr. Galpin was required to pay monthly child support in the amount specified.
[2] For her part, Ms. Galpin has raised a preliminary objection, arguing that the appeal should not be heard because Mr. Galpin is in arrears of child support. With regard to the merits of the appeal, Ms. Galpin argues that (i) it was common ground between the parties in the court below that there was a basis for revisiting the existing child support arrangement, (ii) the trial judge considered and applied the proper legal principles when determining the incomes of both parties for child support purposes, (iii) there is no reviewable error in the trial judge’s assessment of the evidence, and (iv) this Court must show deference to the trial judge’s decision, and the judge’s conclusion that Mr. Galpin is required to pay monthly child support in the specified amount is neither tainted by any error nor manifestly unreasonable.
[3] In order to understand what was in issue before the Provincial Court Judge, it is necessary to briefly review the procedural history of the case. The key points in the history of the relationship and ensuing family law litigation are as follows:
a) The parties were married and had two children together. Their son Theron Galpin was born in 2009. Their daughter Verona Galpin was born in 2011.
b) Following the breakdown of the relationship, the parties entered into a written separation agreement dated 15 September 2014. The agreement provided that the children were to live with each parent half of the time. The parties also agreed that since their incomes were more or less equal, neither of them would be required to pay child support.
c) The parties later entered into a written shared parenting agreement dated 27 January 2016, which was then filed with the Provincial Court on 5 February 2016. The agreement provided that the children would continue to live with each parent 50% of the time, and the parties agreed that the child support arrangements met the objectives of the Federal Child Support Guidelines, SOR/97-175.
d) On 1 March 2016, Ms. Galpin filed an application in the Provincial Court, seeking to set aside or vary the separation agreement, to require Mr. Galpin to pay both child support and spousal support. He asserted that Ms. Galpin’s income had gone down considerably, and that Mr. Galpin should therefore be required to pay child support. Ms. Galpin served the application on Mr. Galpin, who did not respond in the time provided. Ms. Galpin’s application was scheduled to be heard on 21 June 2016. Since Mr. Galpin had not filed a response, he was not notified of the hearing date.
e) On 21 June 2016, Ms. Galpin’s application was heard by the Honourable Judge Phillips. Mr. Galpin had not filed a response and did not attend the hearing. Ms. Galpin presented evidence that her income was $16,345, and that Mr. Galpin’s income was $65,000. On that basis, Phillips P.C.J. made an order requiring Mr. Galpin to pay $719 per month in child support to Ms. Galpin. I will call this order the “initial support order”. It appears that Phillips P.C.J. did not deal with Ms. Galpin’s application for spousal support.
f) On 17 August 2016, Mr. Galpin filed an application in the Provincial Court, seeking to set aside the initial support order, on the basis that the income evidence Ms. Galpin had submitted to Phillips P.C.J. was incomplete. In the same application, Mr. Galpin sought to vary the parenting arrangements.
g) Mr. Galpin’s application to set aside the initial support order was set for hearing and adjourned several times for various reasons. It was first set to be heard on 23 June 2017, but was adjourned on that date so that Mr. Galpin could obtain legal advice. It was next set to be heard on 11 August 2017, but on that date there was insufficient court time, so the matter was adjourned and re-scheduled for 5 February 2016. Both parties agreed to an interim without prejudice order reducing Mr. Galpin’s child support obligation to $410 per month.
h) On 5 February 2018, there were two applications before the Provincial Court. First, there was Mr. Galpin’s application, in which he sought to set aside the initial child support order, and also to vary the parenting arrangements in the written agreements. Second, there was Ms. Galpin’s application for spousal support, which was part of Ms. Galpin’s initial court application but had never been ruled upon. Both applications came before the Honourable Judge Gill, who I will refer to hereafter as the trial judge.
i) At the outset of the proceedings on 5 February 2018, the trial judge heard submissions from each of the parties regarding what was in issue. In particular:
i. Mr. Galpin took the position that there was only enough court time to deal with one issue, namely his request to set aside the initial child support order based on further evidence as to the income of the parties. Mr. Galpin’s counsel told the court that “[f]rom our position, we are seeking a limited application that the court look at the parties’ actual income and make a determination of income, and we will be asking the court, as well, to impute income to Ms. Galpin under s. 19(1) of the Guidelines.”
ii. Ms. Galpin initially wanted the court to rule on three issues, namely child support (per Mr. Galpin’s application), parenting arrangements (per Mr. Galpin’s application), and spousal support (per Ms. Galpin’s application). However, in the course of the submissions, Ms. Galpin acknowledged that there was insufficient court time to deal with all three issues, and appeared to accept the suggestion that the hearing should focus on the issue of child support.
j) At the conclusion of this discussion, the trial judge made it clear that the Court would be dealing “just with the question of child support”. The trial judge then held a two-day hearing that included testimony under oath from Mr. Galpin (as the applicant) and Ms. Galpin (as the respondent), followed by submissions from both parties.
k) It later turned out that there was also time for the trial judge to hear evidence about and rule on Mr. Galpin’s request to vary the parenting arrangements. However, nothing more needs to be said about that aspect of the matter because there is no challenge to the trial judge’s decision on parenting arrangements.
[4] At the outset of his reasons, the trial judge noted that what was before him was Mr. Galpin’s request for a “recalculation of his child support obligations”, seeking “imputation of income to Ms. Galpin in an amount greater than she currently earns, so as to reduce the net amount he currently pays to her”. Thus, the “specific question” for the trial judge to decide was “whether Ms. Galpin is intentionally underemployed pursuant to s. 19(1)(a) of the Federal Child Support Guidelines”.
[5] In recounting the facts of the case, the trial judge found that:
a) On 21 June 2016, Ms. Galpin obtained an “ex parte” order requiring Mr. Galpin to pay child support, on the basis that Mr. Galpin’s annual income was $65,000, and Ms. Galpin’s annual income was $16,345. This produced offsetting child support obligations resulting in an order requiring Mr. Galpin to pay $719 per month. (The trial judge’s use of the term “ex parte” is questionable, since Mr. Galpin had notice and failed to file a timely response; it might be more accurate to say the order was granted with no one appearing on behalf of Mr. Galpin.)
b) On 11 August 2017, the parties entered into a without prejudice interim order, reducing Mr. Galpin’s child support obligation to $410 per month.
c) By the time of the trial, neither Mr. Galpin nor Ms. Galpin were earning the maximum annual income that they had earned in the past.
d) Mr. Galpin formerly worked in the printing industry. His peak taxable income was $71,961 in 2011, a figure which included some funds withdrawn from an RRSP account. Mr. Galpin later “transitioned” into a new job as an alarm and security company technician, where his annual income in the years 2015 to 2017 ranged from $54,506 to $52,780. Mr. Galpin testified that although he now earns less than he did in the printing industry, his new job offers a “healthier and happier workplace”, presents “greater opportunity for growth”, and gives him “more time to spend with the children”.
e) Ms. Galpin “earned varying amounts of income over the years”, working as an administrative assistant, with some time out of the work force following the birth of each of the two children. Ms. Galpin’s peak earnings were in 2014, when her taxable income was $50,752. She “found the work stressful”, with “little opportunity for further growth”, and “insufficient flexibility” to accommodate the needs of the children, at least one of whom has been diagnosed with ADHD.
f) Some time in 2015, Ms. Galpin stopped working full time to upgrade her education. At the time of trial, she was taking classes to obtain her high school diploma. She has one further high school class to complete in the fall of 2018, after which she will apply to university. Concurrently with her studies, Ms. Galpin has worked at a number of part time jobs, including cleaning offices, waiting tables at a restaurant, and working for a naturopath. Her taxable earnings were $22,470 in 2016 and approximately $17,000 in 2017. (While the trial judge did not include this further detail, the transcript of Ms. Galpin’s testimony indicates that at the time of trial, she was working two part time jobs concurrently with her studies. One job was at a diner, and the other was at a midwifery clinic.) Ms. Galpin had also relocated to “subsidized, low income co-op housing”, to reduce her costs of living while upgrading her education.
g) Ms. Galpin’s plan is to attend a four year university program in either midwifery or nursing. Later in the reasons, the trial judge described Ms. Galpin’s educational and career plans in further detail, noting that “Ms. Galpin presented a body of materials outlining the programming she wants to take”. This included “proof of her academic performance so far”, indicating that she had achieved “straight As” in her high school courses. The trial judge also considered reference letters from Ms. Galpin’s teachers “describing her as capable, hard-working, and diligent in her attendance at classes”. One of the reference letters stated that Ms. Galpin had “successfully balanced her academic goals with life outside of school” to complete the particular course with an “excellent understanding” of the subject matter.
h) The trial judge found that “employment as a midwife, or as a registered nurse, would increase [Ms. Galpin’s] income considerably in the years to come”. Although the trial judge’s reasons do not set out the details, there was evidence that a qualified midwife working half time could earn $60,000 per year, with maximum full time earnings as high as $187,000 per year.
[6] The trial judge framed the “main issue” as “whether Ms. Galpin is underemployed such that a higher amount of income ought to be attributed to her for the purpose of reducing the offsetting child support obligation payable by Mr. Galpin”.
[7] In summarizing the law governing imputation of income, the trial judge first set out the text of s. 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175. To paraphrase, the applicable portion of s. 19(1)(a) provides that when determining the income for child support purposes, income may be imputed to a spouse who is “intentionally underemployed or unemployed”, unless the lack of employment is “required” by either “the needs of a child of the marriage” or “the reasonable educational or health needs of the spouse”. The trial judge went on to review of a number cases applying s. 19(1)(a), including Barker v. Barker, 2005 BCCA 177, McCaffrey v. Paleolog, 2009 BCSC 242, Van Gool v. Van Gool (1998), 64 B.C.L.R. (3d) 94 (C.A.) and McNaught v. Friedman, 2011 BCSC 524 [McNaught].
[8] Under the heading “Analysis”, the trial judge began by stating the proposition that under s. 19(1)(a) of the Guidelines, “there must be an honest effort to meet one’s earning potential and anything falling short of that can justify the Court considering whether to exercise its discretion to impute income”. The trial judge was satisfied that based upon her current job skills, Ms. Galpin was capable of earning up to $43,000 per year “if she engaged in full time employment of the type she had previously done”. In other words, the trial judge was satisfied that Ms. Galpin was underemployed. The judge went on to consider whether Ms. Galpin’s underemployment was “intentional”, and “not excused by any of stipulated exceptions” in s. 19(1)(a), namely “special needs of the children” or “educational needs” of Ms. Galpin.
[9] The trial judge considered and rejected Ms. Galpin’s submission that her underemployment was required because of “special needs of the children”. While accepting that the children “do have needs that would benefit from job flexibility on the part of both parents”, the trial judge was not satisfied that this was “a reasonable excuse for [Ms. Galpin] to be underemployed”.
[10] The trial judge next considered Ms. Galpin’s submission that her underemployment was required for reasonable educational needs. The trial judge cited McNaught for the proposition that once underemployment has been established, the onus is on the underemployed spouse to establish that his or her “educational plan is a reasonable one”.
[11] The trial judge determined that it was “perfectly reasonable” for Ms. Galpin to take the steps necessary to obtain her high school diploma. The judge reasoned that without a high school diploma, “many opportunities will be closed to [Ms. Galpin] and it could be said that her past employment reflects the most she could ever likely earn”.
[12] Turning to Ms. Galpin’s post-secondary educational plans, the trial judge held that it was “equally reasonable for Ms. Galpin to want to pursue higher learning” to “further increase her potential”. Higher education could be expected to lead to higher income and other benefits, which would accrue not only to Ms. Galpin, but also to the children, and indirectly to Mr. Galpin.
[13] The trial judge did not agree with the view that “Ms. Galpin’s career aspirations to be a midwife or a nurse are unrealistic”. The judge cited the evidence of Ms. Galpin’s academic performance and references. The judge stated that Ms. Galpin “has a realistic view of the challenges associated with gaining admission to the midwifery or R.N. program, but she is confident that with her grades, teacher references, experience and mature student status, her chances of gaining admission should not be regarded as unreasonable or unrealistic”. The judge found that it was reasonable for Ms. Galpin to pursue her intended course of action.
[14] The trial judge also took into consideration the fact that, despite Ms. Galpin’s schooling and child rearing responsibilities, she has continued with part time employment so as to “earn as much income as is reasonably compatible with her other obligations”. She has also “sought out subsidized, low income co-op housing” to reduce her living expenses. The trial judge was satisfied that Ms. Galpin, like Mr. Galpin, was “genuinely motivated to do what is in the best interests of their children”.
[15] The trial judge reasoned that “while it is impossible to predict anyone’s chances of admission” into a particular educational program, “I tend to agree that [Ms. Galpin’s] pursuit of this goal constitutes a reasonable exception to imputing to her a full-time income reflecting her current capacity”. The trial judge concluded that Ms. Galpin “is not intentionally underemployed within the meaning of s. 19(1)(a) of the Guidelines”.
[16] The trial judge went on to consider what Ms. Galpin’s income should be, in view of the finding that Ms. Galpin was legitimately pursuing reasonable educational needs. The judge reasoned that during periods when Ms. Galpin is engaged in her studies, she would be expected to work part time, earning $20,000 per year. During periods when Ms. Galpin is not engaged in her studies, she would be expected to work full time, earning $35,000 per year.
[17] Ms. Galpin says the Court should not hear Mr. Galpin’s appeal because he is in arrears of his child support obligations. Ms. Galpin’s counsel presented unsworn evidence in the form of a Family Maintenance Enforcement Program (“FMEP”) account statement indicating that Mr. Galpin owes child support arears totalling $1,732.49, and that since the Provincial Court decision on 6 February 2018, he has made payments but has not consistently paid the $410 per month required under the trial judge’s order. For his part, Mr. Galpin did not dispute that he was in arears of child support, but his counsel put forward various reasons or explanations for his failure to make full payments each month.
[18] Mr. Galpin has a statutory right of appeal from the Provincial Court order, because it is a final order subject to appeal under s. 233(1) of the Family Law Act, S.C. 2011 c. 25 [the FLA]. Nevertheless the Court may, in its discretion, refuse to hear an FLA appeal where the moving party is in continuing breach of support obligations and can offer no reasonable explanation for his or her conduct. See J.W.K. v. E.K., 2014 BCSC 1635 at para. 48-55; Wu v. Sun, 2011 BCCA 239 at para. 21.
[19] Ms. Galpin did not file a formal motion asking the Court to dismiss the appeal. Her counsel simply argued at the outset of the hearing that the Court should decline to hear Mr. Galpin’s appeal because he is in breach of his support obligations. I agree with Mr. Justice Punnett’s observation at para. 48 of J.W.K. that a formal application is not required, and indeed it would be open to the Court to raise the issue of non-compliance with an existing court order on its own motion. However, in the absence of a formal motion, the opposing party may be left in a position of having to respond to an alleged default without sworn affidavit evidence. In such circumstances, it is important to ascertain the facts on which the Court is asked to exercise its discretion, by a process that is fair to both litigants. In the case at bar, I was able to deal with the merits of this argument on statements of counsel, because there was no dispute as to the underlying facts.
[20] The general rule is that the Court will not entertain an appeal by a party in breach of a court order, unless that party provides a “convincing reason” for his or her non-compliance: Dorey v. Havens, 2017 BCSC 2206 at para. 76, citing Hokhold v. Gerbrandt, 2015 BCCA 268 at para. 12; see also Bullock v. Bullock, 2008 BCCA 162 at para. 3. The Court may also consider the nature, extent, and duration of the party’s non-compliance, and the efforts that the party has made to bring him or herself into compliance: J.W. v. E.K. at para. 54.
[21] Applying those principles to the facts of this case, I note that this is not a situation where the party seeking to appeal has made no effort to comply with the existing order. Mr. Galpin has made significant child support payments on a relatively regular basis. This is therefore not a circumstance in which an appellant is “deliberately flouting” a court order while at the same time seeking to appeal it.
[22] Another relevant factor is that Mr. Galpin took steps to set aside the initial support order within one month of its issuance, and the hearing of his application was then adjourned a number of times. On at least one occasion, the hearing was adjourned due to lack of court time. In the mean time, Mr. Galpin has been required to make child support payments and has generally done so, although he is not in full compliance with his obligations. Counsel for Mr. Galpin says that even if the trial judge’s conclusion was correct, Mr. Galpin effectively “overpaid” child support between the time of the initial support order and the time of the interim without consent order. This is no justification for Mr. Galpin’s subsequent non-compliance, but it puts the issue in context.
[23] Finally, counsel has explained that there was some confusion about whether, since the trial judge’s final order took effect in April of 2018, Ms. Galpin has been “in school” or “out of school”. Mr. Galpin’s counsel says that based on her understanding of the situation she led Mr. Galpin to believe he was only required to pay support at the “out of school” rate. I have made it clear to Mr. Galpin and his counsel that going forward, he is obliged to make payments as required by FMEP, unless and until he successfully challenges FMEP’s monthly statement setting out the amount. However, counsel’s submission does provide some explanation for Mr. Galpin’s failure to make payments at the “in school” rate for the past four months.
[24] In Dorey, the Court held at para. 77 that notwithstanding the claimant’s non-compliance with an existing court order, it was “in the interests of all concerned” for the Court to decide the case on its merits in view of its lengthy history. In the case at bar, it is similarly in the interests of all concerned to hear the merits of the appeal, in order to conclusively resolve the child support issues. Thus, in all of the circumstances of this case I determined that I would hear Mr. Galpin’s appeal, on the condition that he make a lump sum payment of $252 on the date of the hearing. Part way through the hearing, Mr. Galpin’s counsel confirmed that the payment had been made.
[25] This is an appeal pursuant to s. 233(1) of the FLA, from a final order of the Provincial Court in a family law matter. Under s. 233(3) of the FLA, the Court has the power to affirm, set aside, or vary the Provincial Court order. However, the Court will only intervene where the trial judge is found to have erred in law or in principle, misapprehended the evidence, or reached a conclusion that was manifestly wrong. The standard of review for alleged legal errors, or alleged errors in principle, is correctness. The standard of review for alleged factual errors is palpable and overriding error, meaning the error must be “both obvious on the record, and material to the outcome”: MacCarthy v. MacCarthy, 2015 BCCA 496 at para. 13, citing Housen v. Nikolaisen, 2002 SCC 33.
[26] The necessary corollary of all of this is that deference is owed to the trial judge’s findings of fact, and in the application of the law to those facts. Thus, “it is not for an appellate court to re-weigh the evidence or interfere on the basis that it would have decided the issue differently”: MacCarthy v. MacCarthy at para. 15. This level of defence is important because it “promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge”: Hickey v. Hickey, [1999] 2 S.C.R. 518 at para. 12.
[27] Mr. Galpin argues that the trial judge erred in revisiting the child support arrangement set out in the written agreement between the parties, without first considering whether there was a legal basis for doing so. I do not find any merit in this argument for two reasons.
[28] First, when the matter came before the trial judge both parties invited the court to make a decision on the amount of child support Mr. Galpin should pay. In doing so, both parties implicitly conceded that there was a basis for reconsidering the existing child support arrangement. The central issue was whether income should be imputed to Ms. Galpin on the basis that she was underemployed within the meaning of s 19(1)(a) of the Guidelines. Mr. Galpin’s position was that Ms. Galpin was intentionally and unjustifiably underemployed. Ms. Galpin’s position was that she was not. The judge’s reasons were understandably focused on what was in issue, namely whether to impute income to Ms. Galpin. In these circumstances, it is not at all surprising that the trial judge did not embark upon a discussion of his authority to revisit the existing child support arrangement.
[29] Second, to the extent that the judge had any obligation to consider the issue independent of the position advanced by both parties, the record shows that there was indeed a basis in law for the trial judge to revisit the existing child support arrangement. To explain, the application that Mr. Galpin had placed before the trial judge was governed by s. 152(2) of the FLA, which sets out the circumstances in which a court may revisit an existing child support order. Under s. 152(2)(b), a court may set aside an existing order on the basis that evidence of a substantial nature was not available during the initial hearing. Since Mr. Galpin was not present for the initial hearing, Phillips P.C.J. did not hear his evidence. Before the trial judge, Mr. Galpin indicated that he wanted to present additional evidence about his income, and about Ms. Galpin’s alleged underemployment. This additional evidence furnished a basis on which the trial judge could revisit the initial child support order.
[30] On appeal, Mr. Galpin argues that neither the initial child support order nor the trial judge’s subsequent order took into account the previously agreed upon child support arrangement. In the shared parenting agreement, the parties agreed that neither of them was obliged to pay child support, and acknowledged that this arrangement met the objectives of the Guidelines.
[31] However, while the terms of a written agreement are relevant under s. 148(3), s. 150(2)(b), and s. 150(3) of the FLA, no agreement can bind the court in regards to child support. An agreement on child support is relevant in that it indicates the intention of the parties at time of the agreement: Worsfold v. Worsfold, 2018 BCSC 45 at para. 37-38. Indeed, the agreement may be given “considerable weight”, particularly where altering the child support arrangements might upset the “equilibrium” of the agreement as a whole: Chutter v. Chutter, 2016 BCSC 2407 at para. 90. However, spouses cannot contract out of their child support obligations, and the Court may sometimes be called upon to consider the extent to which the agreement aligns with or departs from the obligation each spouse would otherwise have under the Guidelines. See G.J.L. v. M.J.L., 2017 BCSC 688 at para. 22; Worsfold v. Worsfold at para. 34-38.
[32] The case law indicates that a change in circumstance is not a pre-requisite to revisiting the terms of a written agreement regarding child support. See Worsfold at para. 35. However, a change in circumstance since entering the agreement would be another basis for reconsidering child support obligations. I find support for this conclusion in s. 148(3) and s. 150(1) of the FLA, and in s. 14(a) of the Guidelines, under which a change in spousal income that could result in a different calculation of the amount of child support is a basis for revisiting either a child support order, or an agreement filed with the court pursuant to s. 148(2) of the FLA. Since the income of both parties had changed after the written agreement, there were grounds to revisit their respective child support obligations.
[33] In conclusion, I do not accept Mr. Galpin’s argument that the trial judge erred in failing to consider whether there was a basis to rule on the child support issue. The parties asked the trial judge to revisit the child support arrangement, and the trial judge had a legal basis for doing so.
[34] Mr. Galpin argued in his factum that the trial judge erred in law in ordering spousal support – to allow Ms. Galpin to pursue her educational goals – under the guise of a child support order. I find no merit in this argument, which was not pressed in oral submissions. The trial judge’s entire analysis took place under the framework for imputation of income as set out in s. 19(1)(a) of the Guidelines and the case law dealing with imputation of income for child support purposes.
[35] Mr. Galpin also argues that the trial judge erred in his interpretation of the phrase “reasonable educational or health needs” within the meaning of s. 19(1)(a) of the Guidelines. The premise of the Guidelines is that spouses have an obligation to provide support for their children. Intentional underemployment to pursue education can only be justified where it is “necessary” in light of “reasonable educational needs”. As Steel J.A. stated in Donovan v. Donovan, 2000 MBCA 80 at para. 20, “the concept of reasonableness must be assessed in light of the joint ongoing legal obligation of the parents to maintain their children”.
[36] In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.) at para. 39-40, Gillese J.A. explained that where a spouse seeks to avoid imputation of income based on educational pursuits, there are two aspects to the inquiry under s. 19(1)(a) of the Guidelines. First, the court must determine whether the spouse’s educational needs are reasonable. This involves a consideration of the spouse’s course of study, keeping in mind that a spouse is not excused from support obligations based on “unrealistic or unproductive career aspirations”. Second, the court must determine what is “required” by virtue of the spouse’s reasonable educational needs. This involves a consideration of the demands of the educational program, child care responsibilities, the arrangements in place to meet the spouse’s financial needs, and the spouse’s ability to earn at least some income through part time work.
[37] The trial judge’s analysis in the case at bar is entirely consistent with the approach suggested by Gillese J.A. in Drygala. The trial judge carefully scrutinized Ms. Galpin’s educational plan, finding it to be realistic and reasonable. The trial judge also considered the extent to which Ms. Galpin’s underemployment was “required” for her to pursue her educational needs. The judge concluded that Ms. Galpin was able to work part time during periods when she was studying, and full time during periods when she was not studying. The judge proceeded to impute income to Ms. Galpin on that basis.
[38] Mr. Galpin argues on appeal that the trial judge erroneously focused on what was reasonable solely from Ms. Galpin’s perspective, rather than considering whether she had objectively reasonable educational needs. I agree that the phrase “reasonable educational or heath care needs” contemplates an objective standard, a standard which according to the case law must take into account the spouse’s child support obligations. However, I do not agree that the trial judge applied a subjective test focused solely on Ms. Galpin’s educational aspirations or desires. Read as a whole, the reasons show that the trial judge applied a standard of objective reasonableness. The trial judge carefully scrutinized Ms. Galpin’s rationale for seeking further education, the viability of her educational plan, her prospects of success, her anticipated income, the potential benefits to Ms. Galpin and the children, and the potential indirect benefit to Mr. Galpin.
[39] Finally, Mr. Galpin argues that the trial judge’s analysis failed to account for the “best interests of the children”. As far as child support is concerned, the best interests of the children are generally served when both spouses contribute to the support of the children to the best of their ability. To this end, the Guidelines establish an analytical framework for determining child support based on each spouse’s income, and by providing for imputation of income where a spouse is intentionally underemployed. In applying this analytical framework, the trial judge’s analysis took into account the best interests of the children. I note that in the course of his reasons, the trial judge expressly found that Ms. Galpin was genuinely acting in the best interests of the children. The trial judge also found that the anticipated increase in income associated with Ms. Galpin’s educational plan would directly benefit Ms. Galpin and the children, and indirectly benefit Mr. Galpin. The trial judge’s analysis appropriately accounted for the best interests of the children.
[40] Mr. Galpin argues that the trial judge misapprehended the evidence bearing on the issue of imputation of income. In oral submissions, Mr. Galpin’s counsel focused this argument on the evidence concerning the admissions criteria for University of British Columbia (“UBC”)’s Midwifery Program. This was one of the two educational programs which Ms. Galpin was working toward attending.
[41] Mr. Galpin cites a document tendered as an exhibit at trial, summarizing the admissions standards for UBC’s Midwifery Program. The document states that the “application process is competitive”, and that “it is strongly recommended that all applicants complete a minimum of 24 transferable post secondary credits” so that “their GPA can be calculated at a post-secondary level”. Ms. Galpin intends to apply for admission at the end of 2018, at which point she will have completed all of the necessary high school courses required for university admission, but she will not have completed a minimum of 24 transferable post secondary credits. Mr. Galpin argues that the trial judge misapprehended this evidence in concluding that Ms. Galpin’s education plan was realistic and reasonable.
[42] The trial judge’s finding is not inconsistent with or contrary to the evidence. The admissions criteria document described above does not say that applicants must have a minimum of 24 post secondary credits; the document merely indicates that because the admissions process for UBC’s Midwifery Program is very competitive, it is recommended that applicants have a minimum of 24 post secondary credits. The trial judge was alive to the fact that the admissions process for UBC’s Midwifery Program is very competitive. However, the trial judge was impressed with the fact that Ms. Galpin had obtained “straight A’s” in her high school courses, she had a number of highly supportive references, and she was a “mature student” whose life experience complemented her academic performance. Among other things, there was evidence that Ms. Galpin worked part time at a midwifery clinic. This is the kind of practical work experience that would stand her in good stead in seeking entrance to UBC’s Midwifery Program, notwithstanding her lack of post-secondary course credits.
[43] It is not for the appeal court to revisit or re-weigh the evidence, absent palpable and overriding error on the part of the trial judge. There is no indication that the trial judge overlooked or misconceived the evidence now emphasized by Mr. Galpin. Nor are the trial judge’s findings demonstrably inconsistent with that evidence. I therefore cannot accept Mr. Galpin’s submission that the trial judge misapprehended the evidence.
[44] Mr. Galpin says the trial judge’s conclusion that Ms. Galpin’s underemployment is required by virtue of reasonable educational needs is manifestly unreasonable. From Mr. Galpin’s perspective, Ms. Galpin made a decision to forgo some $42,000 per year in income as an administrative assistant, in pursuit of a seven-year course of study, in an incredibly competitive field, with questionable chances of success. In the interim, Ms. Galpin will be unable to meet her pre-existing obligation to provide support for her children. Mr. Galpin contends that it was manifestly unreasonable for the trial judge to find that this course of action was required in pursuit of reasonable educational needs under s. 19(1)(a) of the Guidelines.
[45] However, the trial judge did not view the matter this way. After scrutinizing Ms. Galpin’s educational plan, her chances of success and potential earnings, her efforts to reduce housing expenses through co-op housing, and her ability to work part time concurrently with her studies, the trial judge was satisfied that Ms. Galpin’s decision was reasonable and realistic. Mr. Galpin’s argument does not fairly account for the trial judge’s view of the evidence. For example, the suggestion that Ms. Galpin chose to forgo $42,000 per year in employment income overlooks her ability to earn income by working part time while pursuing her studies. It also overlooks the fact that Ms. Galpin has been able to reduce her costs by securing subsidized, co-op housing. Similarly, the characterization of Ms. Galpin’s chances of success as poor overlooks her impressive grade 12 marks, her academic references, her work experience in the field of midwifery, and her life experience as a mature student.
[46] As stated in Kane v. Proffitt, 2018 BCCA 106 at para. 42, “[t]he function of appellate review is not to re-try a case or to continue the trial at a different stage”. It is not for an appeal court to substitute its view of the evidence for that of the trial judge.
[47] The question is not whether this Court would conclude that Ms. Galpin’s underemployment is justified by virtue of reasonable educational needs. Absent an error in law, an error in principle, or a misapprehension of the evidence, the Court can only intervene if the trial judge’s conclusion is “clearly wrong”: Simpkins v. Kurz, 2018 BCSC 671 at para. 10, 30; R.E.Q. v. G.J.K., 2012 BCCA 146 at para. 33. When considered in light of the trial judge’s findings of fact, I cannot say the trial judge’s conclusion that Ms. Galpin’s course of action was required in pursuit of reasonable educational needs was clearly wrong.
[48] The appellant Mr. Galpin made no submissions on costs, either in writing or in oral argument. The respondent Ms. Galpin’s written submission says that if the appeal is dismissed, costs should be awarded in her favour.
[49] In Kucher v. Brown, 2016 BCSC 194, the Court held that Rule 16-1 of the Supreme Court Family Rules, B.C. Reg. 169/2009 applies to appeals under s. 233 of the FLA. Rule 16-1(7) provides that “costs of a family law case are to be awarded to a successful party, unless the Court otherwise orders”.
[50] In this case, the respondent Ms. Galpin is the successful party, and would normally be entitled to costs of the appeal. However, I have not heard submissions on costs from Mr. Galpin. I will therefore give the appellant’s counsel two weeks from the date of this decision to file written submissions of two pages or less on costs. The respondent’s counsel will then have a further two weeks to file written submissions of two pages or less in response.
[51] The appeal is dismissed, subject to further submissions on costs.
“Riley J.”