IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101013

Docket: 29124

Registry:
Penticton

Between:

K.L.K.

Plaintiff

And

E.J.G.K.

Defendant

Before:
The Honourable Mr. Justice Brooke

Reasons for Judgment

Issues

[1]            
This is a family proceeding involving custody and access, property
division and support. A central feature of the trial was the plaintiff’s
allegation that the defendant sexually abused one of the children.

Facts

[2]            
The parties started living together in October 2001 and married the
following year in August 2002. They separated in February 2007. The plaintiff
is 32 years of age; the defendant is 39. There are two children of the
marriage: S, born November 10, 2002; and J, born November 2, 2005.

[3]            
The defendant was badly injured in a motor vehicle accident in 1999 in
which he lost both legs. He also lost the use of his arms and hands, but as a
result of intensive therapy and perseverance he has regained the use of his
arms and all but three fingers of each hand. The defendant received $1.3
million in compensation for his injuries. Prior to his injury, the defendant
worked in construction and as a mechanic, as well as pursuing a career in
acting and modelling in which he had some aptitude. Since the accident, and
after moving to Bridesville, he operated a restaurant in Osoyoos which
ultimately failed. At the time of trial he lived in Osoyoos where he was
employed as a strata property manager. Despite the mobility challenges the
defendant faces, he is able to drive a motor vehicle as well as operate a
wheelchair, and, as he calls it, “scoot” on a floor or other level surface,
making use of his upper body strength.

[4]            
The plaintiff has a Grade 11 education, and prior to the marriage she
worked in a business where her employer supported her decision to qualify as a
certified general accountant. The reasons for her leaving this position are in
dispute, but she has not further pursued a CGA qualification. Once the children
were born, she remained in the home as a full‑time mother.

[5]            
The parties began living together in the defendant’s West Vancouver home
in October 2001. They married in August 2002. They decided to move to a more
rural life after S was born, where the plaintiff could have a horse and the
children could enjoy farm life. They found a home and acreage in Bridesville,
where they moved to in 2003. While the home in Bridesville had some
attractions, it was remote from the small community of Bridesville as well as
Osoyoos, the largest town in the vicinity. The Bridesville property was also
remote from nearby neighbours. The defendant acquired and operated a restaurant
in Osoyoos and the plaintiff and ultimately two children (J was born in
November 2005) led a reclusive life in which she became overprotective of the
children by her own admission. Unhappily, the relationship between the parties
deteriorated, leading to their separation in February 2007. While the plaintiff
and the children remained in the Bridesville property, they ultimately moved to
Castlegar near the maternal grandparents, where the plaintiff’s father provided
a home. The defendant resided in Osoyoos at the time of trial. The defendant
had access to the children, pursuant to a Provincial Court order, and that
access continued unsupervised every two weeks until May 2007. During that
interval S’s behaviour changed in ways that caused concern. That led the
plaintiff to seek counselling. The counselling suggested that the defendant had
been sexually abusing the child S. In the result, an order was made in
Provincial Court on April 25, 2008 for supervised access by the defendant. In
the spring of 2009 S, in the course of counselling, prepared drawings which,
with the assistance of the counsellor, were said to point to evidence of
inappropriate touching by the defendant. In turn, this led to continuing
complaints to the Ministry of Children, Family and Community Services which
found pursuant to s. 13 of the Act that S had been, or was likely
to be, sexually abused by the defendant.

[6]            
During the course of trial the entire record of the Ministry was
introduced into evidence – it runs to 325 pages (many of which it is noted are
duplicated). Ultimately, a complaint was made to the Police and an investigation
undertaken by the RCMP, and a s. 15 custody and access report was prepared
by Dr. Michael Elterman dated January 26, 2009. In his report, Dr. Elterman
declined to recommend supervised access, nor did he find evidence of parental
alienation on the part of the plaintiff, who he considered overprotective of S.

[7]            
On March 8, 2008 Corporal (then Constable) Mysko of the RCMP interviewed
S and reviewed with her the pictures she was said to have drawn. Corporal Mysko,
who impressed me as a person who was skilled and sensitive in his interview of
a child, gave evidence that S denied that any abuse took place. Corporal Mysko
reviewed the picture said to be drawn by S showing a female displaying large
round breasts and genitalia. S denied that she had drawn the breasts and
genitalia on the picture, and that she did not know who had put them there. The
breasts depicted were shown as disproportionately large and round. Corporal
Mysko then drew a picture of Bart Simpson, showing his characteristic large and
disproportionate eyes and showed that picture to S. He then drew a second
picture of a faceless Bart Simpson on which he asked S to draw Bart Simpson’s face,
but in doing so he did not specifically refer to his eyes. S drew in a face but
the eyes drawn by her were small, perhaps even disproportionately so. Corporal
Mysko indicated that in his experience using drawings as an aid in interviewing
children, children generally do not draw large round circles. In the result of
all of this, no further investigation was undertaken, although the file
remained open.

[8]            
I indicated earlier that an investigation was undertaken by the RCMP,
and in connection with that investigation S was referred to Dr. Okano of
the SCAN unit in Kamloops on April 10, 2008. Dr. Okano conducted a
physical examination and reported there was no physical evidence of sexual
abuse.

[9]            
Much of the evidence led on the issue of sexual touching is
contradictory and inconsistent. The governing principle in custody and access
is the best interests of the child.

[10]        
I find that the acting out by S after her mother and father separated
has been magnified out of proportion, and that magnification has in turn
encouraged exaggerated and bizarre behaviour on the part of S. I was particularly
impressed by the evidence of Dr. Helen Beresford in her report of April 7,
2008 where she notes that in three sessions with S no reference was made by her
to anything that would indicate any abuse occurring. This is entirely
consistent with the evidence of Dr. Elterman and his report of January 26,
2009 and that of Corporal Mysko. In the result, in assessing the best interests
of the children, and particularly S, I am unable to find that the defendant has
been or is at risk of being sexually abusive of S. At the same time, I do not
find that the plaintiff has deliberately fostered parental alienation. I do find
that she was overprotective throughout and unwittingly contributed to the
overreaction and bizarre behaviour of S which she attributes wrongly to the
misconduct of the defendant.

Custody and Access

[11]        
The plaintiff seeks sole custody and guardianship of the children, with
no access to the defendant or, in the alternative, restricted or supervised
access with the defendant responsible for any related costs.

[12]        
The defendant seeks sole custody of the children or, in the alternative,
joint custody. He proposes that the children reside primarily with him, and
that the plaintiff have reasonable and generous access. In the event the
Court grants primary residence to the plaintiff, he seeks an order that he have
reasonable and generous specified access to the children and a police clause to
enforce access. The defendant also seeks joint guardianship of the
children.

[13]        
The defendant additionally seeks an order that the plaintiff not remove
the children from the province without first receiving his written consent or
an order of the court. In the event primary residence of the children is with
the plaintiff, the defendant seeks an order that she not move the residence of
the children without first providing him with at least 60 days’ written notice.
Although the defendant is not opposed in principle to these orders applying
equally to him, he expresses concern that the plaintiff may not be reasonable
in granting him permission to take the children out of the province, for
example, for a holiday.

[14]        
The sole consideration in determining custody of or access to a child is
the best interests of the child. As the Divorce Act prescribes:

16(8)    In making an order
under this section, the court shall take into consideration only the best
interests of the chid of the marriage as determined by reference to the
condition, means, needs and other circumstances of the child.

16(9)    In making an order under this section, the court shall
not take into consideration the past conduct of any person unless the conduct
is relevant to the ability of the person to act as a parent of a child.

16(10)  In making an order under
this section, the court shall give effect to the principle that a child of the
marriage should have as much contact with each spouse as is consistent with the
best interests of the child and, for that purpose, shall take into
consideration the willingness of the person for whom custody is sought to
facilitate such contact.

[15]        
A principal issue in the present proceedings is the plaintiff’s
allegation that the defendant sexually abused S. This is a very serious
allegation with consequences. As Macaulay J. observed in R.R.W.E.S-V. v.
S.E.D.V., 2008 BCSC 1136 at para. 6, also a family proceeding
involving allegations of abuse by the father:

A finding adverse to either
parent on these issues bears significantly on determining the current best
interests of the children. No court can countenance the obvious risks of
abusive behaviour but equally cannot countenance the emotional and
developmental harm to children associated with encouraging or enabling false
accusations of abuse so as to cause or risk estrangement between children and
innocent parents.

[16]        
A parent who alleges abuse must prove her allegations on a balance of
probabilities (R.R.W.E.S-V, at para. 23).

[17]        
I am satisfied that the best interests of the children require that the parties
shall have joint custody and joint guardianship of the children, with the
children in the primary care of the plaintiff. The defendant shall have
reasonable and generous access to the children as the parties may agree. Access
should begin during the day at or near Castlegar or where the plaintiff resides
in British Columbia, in the presence of an adult agreeable to both parties –
the defendant’s mother, for example, impressed me as a responsible and
supportive person, and despite that she resides a considerable distance from
Castlegar I would have no hesitation in naming her as a person who could support
the reintroduction of the defendant and the children. If the parties cannot
agree, then his aspect of the order may be brought before me by telephone if
that would be convenient. It seems to me that a “professional supervisor” is
not necessary, so long as a sensitive, supportive and vigilant adult is
present. I consider that after a relatively short period (perhaps a month or
two), access continue for a further month or two in an unsupervised way during
the day. Because of the distance between Osoyoos and Castlegar, I see
unsupervised access developing into overnight access as the parties may agree,
or failing agreement the court may order.

[18]        
I recognize that this order for access may give rise to difficulties,
but in the best interests of the children the parties must diligently work to
overcome those difficulties in order that the children have a close and
supportive relationship with each of their parents. There will also be an order
that other than in an emergency, all communication between the parties shall be
by email. To the extent that issues arise, then the parties shall seek
mediation within the Family Justice Centre. If they remain unable to resolve an
issue, then the parties shall cause a parenting coordinator to be appointed to
assist them in reaching an agreement. If the parties remain at odds, the issue
can be brought before the court and a report by the parenting coordinator
filed.

[19]        
There will be an order that the parties not remove the children from the
province of British Columbia without the consent of the other parent or a court
order. The defendant seeks an order for specified access and a Police
enforcement clause. I decline to make such an order (McMaster v. McMaster,
[1993] B.C.J. No. 1563 (S.C.)).

Division of Assets

[20]        
The parties seek orders with respect to both division of assets and
support. It is necessary to first address the property claims before deciding
the quantum, if any, of spousal support (Toth v. Toth (1995), 13
B.C.L.R. (3d) 1 (C.A.), approved in Hartshorne v. Hartshorne, 2004 SCC
22).

[21]        
The primary asset at issue is the proceeds from the sale of the former
matrimonial home.

[22]        
The defendant was in a motor vehicle accident in 1999 as a result of
which he lost his legs. In June 2001, he received a personal injury settlement
of approximately $1.6 million. He purchased a home in West Vancouver with
$640,000 from the settlement funds. When the parties resided in the home when
they began cohabiting in October 2001.

[23]        
In May 2004, the parties moved to Bridesville. The defendant sold the
house in West Vancouver and used the sale proceeds to purchase the parties’
home in Bridesville. They resided in the home with their children until
February 2007.

[24]        
The matrimonial home has since been sold and the sale proceeds are in
trust with the parties’ solicitors. The proceeds of sale were $219,568.20. One
half of this amount, $109,784.10, was paid into the trust account of each
party’s solicitor on a without prejudice basis.

[25]        
The sum of $55,997.52 was then paid from the defendant’s solicitor’s
account to satisfy a Family Maintenance Enforcement Program lien against the
property for child support arrears the defendant owed to his ex-wife from a
previous marriage. One of the issues I address below is whether this is a debt
that should be borne solely by the defendant or shared between the parties.

[26]        
The defendant appears to concede that the proceeds are a family asset. As
he notes in his written submissions, personal injury awards are generally not
considered to be family assets since they represent compensation for pain,
suffering, loss of amenities of life and future care, all of which are personal
to the injured person (Drean v. Drean, [1997] B.C.J. No. 737 (S.C.)).
They may change their character over time, however, and if used for family
purposes, may properly be characterized as family assets (Witges v. Witges,
[1998] B.C.J. No. 3130 (S.C.)). I find that the proceeds do constitute a
family asset. The more challenging issue is reapportionment.

[27]        
Section 65 of the Family Relations Act governs the
reapportionment of assets. It provides in material part as follows:

65 (1) If the provisions for division of property
between spouses under section 56, Part 6 or their marriage agreement, as the
case may be, would be unfair having regard to

(a)        the
duration of the marriage,

(b)        the
duration of the period during which the spouses have lived separate and apart,

(c)        the
date when property was acquired or disposed of,

(d)        the
extent to which property was acquired by one spouse through inheritance or
gift,

(e)        the
needs of each spouse to become or remain economically independent and self
sufficient, or

(f)         any
other circumstances relating to the acquisition, preservation, maintenance,
improvement or use of property or the capacity or liabilities of a spouse,

the Supreme Court, on
application, may order that the property covered by section 56,
Part 6 or the marriage agreement, as the case may be, be divided into
shares fixed by the court.

[28]        
The plaintiff says that a consideration of these factors in the
circumstances of this case justifies a reapportionment of the proceeds
($219,412.30 plus interest) 55 percent to 45 percent in her favour. The
defendant counters that the proceeds should be reapportioned 100 percent, or
otherwise significantly, in his favour.

[29]        
The plaintiff relies primarily on s. 65(1)(e) and (f) in arguing
for a reapportionment in her favour. With respect to her economic independence
and self‑sufficiency, she submits that she was employed at the time she
began cohabiting with the defendant and left the workforce when she became
pregnant with S. She registered in an online medical transcription course in
2002 but has not completed the course to date; her current goal is to complete
the medical transcription course during 2010. The plaintiff assumed the
traditional roles of homemaker and caregiver for the children, and says she
gave up her pursuit of education and a career to do so. She has limited
employable skills and requires retraining to attain gainful employment. She
relies on her parents to pay for the necessaries of life for herself and the
children.

[30]        
The plaintiff contrasts this with the circumstances of the defendant. He
testified that following his motor vehicle accident in 1999, he did not search
for employment until moving to Bridesville in 2004. He owned and operated a
restaurant in Osoyoos but closed it due to financial difficulties. He was
unemployed thereafter until finding employment with a strata property
management company in August 2009. The defendant further testified that there
are few things he is unable to do because of his disability. He lives alone and
does not list any debt payments as expenses in his financial statement of
November 5, 2009.

[31]        
Accordingly, the plaintiff contends that she has a greater need to
become and remain economically independent and self-sufficient in the
circumstances.

[32]        
With respect to s. 65(1)(f), the plaintiff accepts that the family
home was acquired with funds that can be traced to the defendant’s personal
injury settlement. However, she says that her father ensured the property was
preserved as a family asset when he guaranteed the refinancing of the property
and made two mortgage payments when the mortgage was in default.

[33]        
In arguing that the proceeds should be reapportioned exclusively or
predominantly in his favour, the defendant relies primarily on the short
duration of the marriage and his need for economic independence and
self-sufficiency.

[34]        
The defendant submits that he purchased the matrimonial home in
Bridesville from funds initially derived from his personal injury settlement. He
also used his savings from the settlement to maintain the property and meet
household expenses. Following separation, he was the sole party who maintained
the property. With the exception of two payments, he paid the mortgage.

[35]        
The marriage between the parties was of short duration. The defendant submits
that the plaintiff did little more than care for the children. She chose not to
work even though the parties had jointly decided to operate a restaurant and
she could have assisted with its operation. She has not suffered any
significant departure from the job market or reduction in income earning
capacity as a result of the marriage. The defendant cites a number of
authorities involving short marriages in which assets were reapportioned
largely in favour of the spouse who brought them into the marriage (Meissnitzer
v. Olsen, 2005 BCSC 233; Nicolette v. Nicolette, [1984] B.C.J. No. 127
(S.C.), Magyar v. Magyar (1996), 21 R.F.L. (4th) 146 (B.C.C.A.), and Zaurrini
v. Zaurrini (1981), 22 R.F.L. (2d) 161 (B.C.C.A.)).

[36]        
As the proceeds are the only significant asset remaining from his
personal injury settlement, the defendant also relies heavily on his need for
economic independence and self-sufficiency. He cites Boel v. Boel
(1994), 4 R.F.L. (4th) 266 (B.C.C.A.), and G.W.G. v. S.L.G., 2004 BCSC
747, in this regard. In Boel, the appellant wife had been left paralyzed
as a result of a motor vehicle accident that occurred before the marriage. The
matrimonial home had been paid for solely out of her settlement funds. The
trial judge found the property to be a family asset and reapportioned it 70
percent in her favour. The Court of Appeal held that he had erred in principle
in not reapportioning the matrimonial home 100 percent to her. Hollinrake J.A.,
speaking for the Court, concluded that as a result of her paraplegia, the
appellant faced many future risks in terms of her capacity and need to remain
economically independent and self‑sufficient. The only way to accommodate
those needs was to award her 100 percent of the matrimonial home by way of
reapportionment.

[37]        
In G.W.G., the Court reapportioned an annuity purchased with
funds from the husband’s personal injury claim 100 percent in his favour, the
primary factor being his need to remain economically independent and
self-sufficient. The annuity was the only asset of significance, the former
family home being worth less than the balance of the mortgage owing on it. Notwithstanding
that the marriage had been of long duration and the wife had been out of the
workforce for over 20 years, the Court held those factors were not sufficient
to avoid reapportionment of the annuity to the husband.

[38]        
The defendant’s debt payment to the Family Maintenance Enforcement
Program is an issue of contention between the parties. The plaintiff submits
that the defendant should be solely responsible for that debt, whereas the
defendant argues that each party should be equally responsible for the arrears
which accrued during marriage.

[39]        
 The plaintiff points out that the defendant did not borrow funds but,
rather, failed to pay an ongoing obligation. It is significant, she says, that
he had the means to discharge the burden on an ongoing basis at the
commencement of the child support obligation. For instance, he could have
invested in a fund to ensure child support would be available until his son
reached the age of majority. Instead, he chose not to and the arrears
accumulated. The plaintiff submits that she could have altered the family’s
spending had she know she was equally responsible for the defendant failing to
pay child support to a third party. An equal sharing of the arrears now would
result in a windfall to the defendant.

[40]        
The plaintiff compares her situation to that in Cheng v. Cheng
(1988), 13 R.F.L. (3d) 140 (B.C.C.A.). There, the matrimonial home was
encumbered by a lien in favour of the tax authorities. The trial judge
concluded that the husband had let his income tax obligations go unpaid to
repay moral, and in some cases actual, indebtedness to members of his family,
and that it was not a family liability. On appeal, Taggart J.A. held there was
evidence before the trial judge upon which he could reach the conclusion that
the liability for income tax was the husband’s alone and that the wife should
receive her half share of the proceeds of sale unencumbered by that liability.

[41]        
The defendant’s position is that each party should be equally
responsible for the arrears which accrued during the marriage, and that he
should be responsible for the arrears which accrued prior to their relationship
and after their separation. This is justified, he argues, because significant
child support arrears accrued during the marriage as a result of a joint
decision by the parties that the defendant not pay support for his son. Instead,
the defendant’s financial resources were used to meet the parties’ living
expenses, as well as the expenses incurred by the plaintiff through her
excessive online shopping.

[42]        
The amount of $54,353.39 [sic] paid to the Family Maintenance
Enforcement Program was calculated as follows (Ex. 21, Tab 9, p. 4):

a)    arrears as of
March 20, 2007 – $31,238.29

b)    arrears from
April 1, 2009 and future child support  – $23,115.51

[43]        
When the parties separated in December 2006, the arrears would have been
approximately $3,000 less ($825.30 maintenance plus interest for the months of
January, February and March).

[44]        
As for whether the debt should be addressed through an accounting of the
division of the proceeds, which is the defendant’s position, or by way of
reapportionment under s. 65(1)(f), the plaintiff’s position, I observe the
comments of Lambert J.A. in Mallen v. Mallen (1992), 40 R.F.L. (3d) 114
(B.C.C.A.), that while the legislative authority for considering debts at all
lies in s. 65(1)(a), the approach should be the one which is appropriate
to the circumstances and the scheme of the legislation. At para. 6, he
described the test for determining whether a debt should be shared in this way:

The proper focus for the
examination of a debt should be a focus on the nature and purpose of the
borrowing and on the expenditure of the borrowed funds. If the funds were used
to acquire a family asset, to maintain a family asset, to discharge a family
burden, or to maintain the family members, then it is likely that equality and
fairness will require an equal sharing of the debt or liability and its adjustment
in the division of the assets in such a way as to carry out the principles of
equality and fairness. If the funds were used entirely for the personal
purposes of the spouse who borrowed them, it is likely that equality and
fairness will require that spouse to bear the whole burden of the debt after
the triggering event…

[45]        
I am satisfied that the family home at Bridesville, and the proceeds of
its sale in the amount of $219,412.30, represents a family asset in which each
of the parties has, pursuant to s. 56 of the Family Relations Act,
an undivided one‑half interest as a tenant in common. When I apply
s. 65, I cannot conclude, despite the marriage being relatively short, and
the great physical challenge to the defendant of becoming economically
independent and self‑sufficient, that an equal division is unfair.
Moreover, I do not consider that the payment out of the defendant’s share of
his family maintenance enforcement program obligation represents the payment of
a family debt. Nor do I consider that an equal division (excluding the FMEP
payment) is unfair to the plaintiff. There will be an order for an equal
division of the proceeds of the sale of the home, with the FMEP payment shown
as a credit to the defendant.

Child and Spousal Support

[46]        
The plaintiff seeks both child and spousal support paid as a lump sum
from the defendant’s interest, if any, in the proceeds of the sale of the
former matrimonial home.

[47]        
With respect to the defendant’s income for the purposes of assessing
support, the plaintiff contends it should be imputed to an amount no less than
$35,000. She says, firstly, that the past wage loss and future earning capacity
components of a personal injury settlement should be imputed as income when
determining a parent’s obligations under the Federal Child Support
Guidelines. She cites M.K. v. R.A.S., 2004 BCSC 1798. That was a
case in which the father sustained a catastrophic brain injury in a motor
vehicle accident. His claim was settled as a structured settlement, reflecting
compensation for non-pecuniary loss, loss of income-earning capacity and cost
of care. At issue was whether the entire amount of the father’s annual
structured settlement benefit ought to be imputed as income for the purposes of
the Guidelines. After reviewing the limited authorities which had
considered the issue, Wedge J. concluded that the income stream from an annuity
put in place to facilitate a structured settlement for non-pecuniary loss and
costs of future care was not income under the Guidelines. However, the
portion of the damages award attributable to loss of earning capacity, as well
as monthly CPP disability benefit, were properly characterized as income.

[48]        
In the present case, a letter from the lawyer who represented the
defendant in negotiating a settlement with ICBC confirms that the settlement
was in excess of $1.6 million. Although he does not break the settlement down
into specific heads of damages, the plaintiff submits that given the defendant’s
young age at the time of the accident (29 years old), awards for past and
future wage loss must have necessarily formed a substantial part of the award.

[49]        
Secondly, the plaintiff argues that the defendant has been intentionally
under-employed or unemployed since the sale of the Osoyoos restaurant. She
points to his evidence regarding his diverse employment background and skills,
and the evidence of his mother regarding his intelligence and competency. As
held in Barker v. Barker, 2005 BCCA 177, an intent to evade or minimize
the payment of child support is not necessary for a finding of intentional
underemployment or unemployment; what matters is whether the parent is earning
what he or she is capable of earning.

[50]        
The plaintiff seeks a lump‑sum payment of spousal support in the
amount of $5,000 from the defendant’s interest in the proceeds. She
additionally claims lump‑sum child support, both retroactive from March
2009 until the date of these reasons, and a sum for future support covering a
period of at least four years.

[51]        
With respect to why a lump‑sum payment is appropriate is this
case, the plaintiff submits that the defendant has demonstrated that he is not
prepared to do what is necessary to support his children, as he has not
contributed any money toward their support while they have been in her care. Moreover,
he has a history of failure to make support payments, as exemplified by his
arrears to his ex-wife, Ms. H. The plaintiff says that the proceeds
represent the only remaining asset through which support can be ensured to flow
to the children.

[52]        
The defendant proposes that child support payments be based on the Federal
Child Support Guidelines with his income set at $23,000. Since August 2009,
he has been employed as a strata manager and has an annual income of
approximately $22,000 to $24,000 per year. He argues that the plaintiff should
be imputed an income of at least $19,000 for the purposes of child and spousal
support, citing Van Gool v. Van Gool, [1998] B.C.J. No. 2513
(C.A.). She is healthy and capable of earning an income but has made no effort
to support herself.

[53]        
The defendant resists lump‑sum child support. He says he paid
support for his son until the date of his motor vehicle accident, and paid all
support owing upon receiving his settlement. It was not until January 2004 that
he began incurring arrears. As for the present case, he explains that he was
ordered to pay child support to the plaintiff in the amount of $159 by an order
of the Provincial Court dated July 27, 2007. He made all payments. On July 23,
2008, the Provincial Court suspended his support obligations, and on April 24,
2009, the Court changed the payment amount to $17.

[54]        
The defendant proposes that there be no spousal support paid by either
party to the other. Since separation, the plaintiff has relied on the financial
resources of her parents. They purchased a property in Castlegar which is
registered in the names of the plaintiff and her mother. She is at least as
capable of earning an income as the defendant, in which case their incomes will
be similar and no spousal support should be ordered.

[55]        
A child support order will generally require periodic payments
determined in accordance with the paying parent’s Guideline income. Lump‑sum
orders, although exceptional, can be made when specific circumstances make it
appropriate. These circumstances were summarized in Aubry v. Thurber,
2008 BCSC 1060, at paras. 21-22:

[21]      Generally a child support order will require
periodic payments determined in accordance with the paying parent’s Guideline
income under s. 93(5)(a) of the Family Relations Act. However,
s. 93(5)(b) of the Family Relations Act specifically provides for
the making of a lump sum order, either in place of or in addition to an order
for periodic payments. Section 11 of the Guidelines also authorizes the
payment of child support on a lump sum basis.

[22]  In Myatt v. Myatt (1993), 45 R.F.L.
(3d) 45 (BCSC) the court, having noted that lump sum support orders are
exceptional and should be made only when there is some special need, or when
specific circumstances make it appropriate, identified a number of
circumstances in which lump sum orders had been made:

(1)        Where
there is animosity between the parties (Hayre v. Hayre (1973), 11 R.F.L.
188 (BCSC));

(2)        Where
the payor was not in a position to make any periodic payments (Dart v. Dart
(1974), 14 R.F.L. 97 (Ont. S.C.));

(3)        Where
the ability to provide support was through the payor’s interest in the family
home (Lawson v. Lawson and Dufresne (1973), 9 R.F.L. 294 (Ont. H.C.));

(4)        Where
it was neither practical nor feasible for the payor to pay periodic maintenance
considering her earning capacity (Donovan v. Donovan (1986), 5 R.F.L.
(3d) 1 (BCSC));

(5)        Where
the father had disobeyed a previous maintenance order and had not demonstrated
"prudent financial management" (McLean v. McLean, [1991]
B.C.J. No. 14, January 4, 1991, Vancouver Registry Nos. A892598 and
D076500 (BCSC));

(6)        Where the payor had limited
means to earn income by reason of his recent turbulent past and the only
reliable, practical means of providing support for his child was from the only
financial asset the payor had (Myatt v. Myatt, supra).

[56]        
I find that the defendant’s Guideline income is $25,000 and that
child support must be paid to the plaintiff at the table amount. I decline to
make a lump‑sum order as submitted by the plaintiff.

[57]        
I am not persuaded that having regard to the defendant’s modest income,
the challenges of his disability, and the equal disposition of the family
assets, that this is a case for spousal support.

[58]        
In summary, there will be an order for joint custody and guardianship,
with primary residence of the children with the plaintiff, and reasonable
access to the defendant; child support for two children, payable by the
defendant, at the table amount based on a Guideline income of $25,000
and commencing December 1, 2009. There will be an order for the equal division
of the proceeds of the sale of the Bridesville property. The plaintiff’s claim
for spousal support is dismissed.

[59]        
On the basis of the pleadings and the evidence, both parties have enjoyed
some measure of success. Subject to any matters of which I am unaware,
each party must bear his or her own costs.

“T.R. Brooke J.”