K.M.Q. v. P.T. Date:, 2013 BCPC 400

Citation: K.M.Q. v. P.T. Date: 20131030 2013 BCPC 0400 File No: 2282 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K. M. Q. APPLICANT AND: P. T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: KQ Appearing on their own behalf: PT Place of Hearing: Burns Lake , B.C.

Date of Hearing: October 29, 2013 Date of Judgment: October 30, 2013 Background [ 1 ] This is KMQ’s application to cancel his arrears of child maintenance and reduce his future child maintenance. The parties entered a long term relationship which ended February 3 rd , 2004. Two children were born of the relationship: JLQ [omitted for publishing] and SAQ born [omitted for publishing]. There was a court order March 25 th , 2004 that KMQ pay maintenance for the children to PT until further order of the court. [ 2 ] There was a separation agreement signed in April 2007.

It provided for child maintenance for the two children in the amount of $784 per month commencing March 1 st , 2007. This was based on agreed annual income of KMQ of $57,000. [ 3 ] KMQ paid $784 a month until August 1 st , 2009. At that time JLQ moved from her mother’s home to live with her sister S in Calgary. Both parties told the court that her intention was to go to university in Calgary. PT testified that JLQ worked from August through December 2009 to earn money for university. JLQ started university in January 2010 because of late registration.

JLQ is still attending university and has taken classes during the summer in 2010, 2011 and 2012. She did not take classes in the summer of 2013. [ 4 ] When JLQ moved to Calgary, KMQ contacted the Family Maintenance Enforcement Program. Based on his information that JLQ had moved from PT’s home and was working they advised KMQ that JLQ was no longer entitled to maintenance. The office advised him to pay $530 a month for SAQ only based on an annual income of $57,000. [ 5 ] KMQ paid the $530 a month from September 1 st , 2009 until February 2012. At that time KMQ’s place of employment burnt down.

At that time KMQ reduced his maintenance payments as follows: $265 in March 2012; $300 in April through July 2012; $400 in August through November 2012; $530 in December 2012; $400 in January 2013; and $200 a month February through October 2013. The Family Maintenance Enforcement Program calculated that KMQ was $5,289.67 in arrears (including interest and fees) as of October 23 rd , 2013. Evidence [ 6 ] KMQ filed a financial statement (exhibit 3) and a separate 2011 Income Tax assessment (exhibit 1).

He also filed an extract of his Family Maintenance Enforcement statement of account for the period December 2011 to July 2013 (Exhibit 2). [ 7 ] From the Income Tax Assessments in Exhibits 1 and 3 the court is satisfied that KMQ’s income was as follows: 2009---------------------------$47,864 2010---------------------------$58,713 2011---------------------------$51,478 2012---------------------------$39,107 [ 8 ] Based on these numbers, the change in KMQ’s annual income requires a variation in the amount of child maintenance payable. [ 9 ] There is some evidence before the court as to what KMQ’s income shall be in 2013.

It would be the Employment Insurance payment in January, 2013 (which is approximately $3,260 as 1/12 of his 2012 income) plus his Union Pension February through December at $939.57/month and his suite rental income for 4.5 months of $2,700. That results in a projected estimate of $16,995 for the entire year. The court rounds the estimate to $17,000 for the year. Analysis [ 10 ] PT suggested that KMQ’s various trips support a finding by the court that he has hidden assets. Similarly, PT suggested that KMQ has deliberately reduced his income by not finding work.

If the court is satisfied of that it can “attribute” a larger income. KMQ testified that he is 58 years of age. His employment history is thirty years working in the local saw mill until it burnt down. He testified that he has applied for two other similar jobs without success. He hopes to be rehired when the mill reopens in January or February 2014. He also explained his ability to travel and to make ends meet as the result of support from his family. There is no evidence to support an intentional underemployment.

In light of his age and narrow job skills, finding alternate employment in a small community is difficult. Similarly, while his trips raise a reasonable suspicion, there is no evidence of hidden assets. While the court will make an interim finding of KMQ’s income for 2013 the final determination of what amount of maintenance he should pay will be left until after he files his 2013 Income Tax return. [ 11 ] The question whether JLQ is still eligible for child maintenance depends on the facts. She was born [omitted for publishing]. She left her mother’s home to go to university in late July 2009.

She worked to earn money for university and started classes in January 2010. The decision C.A.M.T. v A.P.G.T. 2011 BCSC 1456 determined that KMQ must establish that JLQ is no longer a child as defined in the Federal Child Support Guidelines. That case is also authority that breaks in attendance at post secondary school does not automatically end the right to child maintenance. Rather the parent paying maintenance would be liable to pay an amount towards maintenance during the time of attendance in school or living with her mother, less the child’s ability to make a reasonable contribution to her own education.

The duty to pay maintenance is suspended for the period when the child is both not in her mother’s home and not attending post-secondary education which in this case is only the period from August through December 2009.

[ 12 ] JLQ’s time at university has been largely paid for by a Registered Education Plan, student loans and part-time work. She moved to Calgary with the intention to start university the following January. Accordingly, the court finds that JLQ has and still remains a child of the relationship entitled to maintenance. [ 13 ] However, JLQ’s maintenance, because of her attendance at university does not automatically entitle her to the full amount under the guidelines.

Section 3(2)b of the Federal Child Support Guidelines allows the court to vary from the guidelines, if the court considers it appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. This

section of the Guidelines was considered in the C.A.M.T. v A.G.P.T case to set a lower amount of maintenance for the university student. [ 14 ] In light of the RESP, student loans, part-time jobs of JLQ and the currently reduced income of her father, the court is fixing her child maintenance at $100/month for the period January 1 st , 2010 forward and continuing at that rate until further order of the court for as long as she remains a child as defined in the Guidelines.

Decision [ 15 ] The court is not going to vary the maintenance payable up to December 31 st , 2008 as this is KMQ’s application to vary future child maintenance and cancel arrears. There were no arrears as of December 31 st , 2008. [ 16 ] KMQ shall pay maintenance for JLQ and SAQ for 2009 based on income of $47,864. As per the Federal Guidelines that is $725/month for January through July. For August through December, 2009 JLQ is not entitled to maintenance as she was not living with her mother nor was she in university. Therefore, KMQ shall pay maintenance for SAQ only in the amount of $437/month.

Accordingly, he was required to pay $725x7 plus $437x5 for a total of $8,260. In 2009 he paid $8,392. Therefore, he has a surplus of maintenance for 2009 of $132. [ 17 ] KMQ shall pay maintenance for SAQ for 2010 based on income of $58,713. As per the Federal Guidelines that is $544/month. Accordingly, he was required to pay $544x12=$6,528 for SAQ. He shall pay $100/month for JLQ for a sub-total of $1,200. His total child maintenance for 2010 is $6,528+$1,200=$7,728. He paid $5,300 so his arrears for 2010 is $7,728-$5,300=$2,428. [ 18 ] KMQ shall pay maintenance for SAQ for 2011 based on income of $51,478.

As per the Federal Guidelines that is $472/month. He shall pay for JLQ $100/month. Accordingly, he is required to pay total maintenance of $572x12=$6,864. In 2011 he paid $6,360. Therefore, he owes arrears of $504 for 2011. [ 19 ] KMQ shall pay maintenance for SAQ for 2012 based on income of $39,107. As per the Federal Guidelines that is $356/month. He shall pay $100/month for JLQ. Accordingly he is required to pay $456x12=$5,472. In 2012 he paid $4,655. Therefore, his arrears for 2012 are $817. [ 20 ] KMQ shall pay maintenance for SAQ for 2013 based on estimate income of $17,000.

As per the Federal Guidelines that is $133/month. He shall pay $100/month for JLQ. Accordingly, he is required to pay $233x12 for a total of $2,330 as of October 31 st , 2013. He has paid in 2013 up to October 31 st , maintenance in the amount of $2,000. Therefore, he owes arrears of $330. [ 21 ] The total arrears as of October 31 st , 2013 are $2,428 plus $504 plus $817 plus $330 minus $132 equals $3,847. KMQ shall pay maintenance from November 1 st , 2013 at the rate of $133/month for SAQ plus $100/month for JLQ until further order of the court. [ 22 ] KMQ also sought the cancellation of his arrears.

Despite his current reduced income the court is not satisfied that the amount of $3,847 is an amount so great as to be an impossible burden if he has time to pay. As well, KMQ testified that he was hopeful of going back to work when the mill opens in February 2014. Accordingly, the court declines to cancel the arrears and orders that they be paid at the rate of $100/month commencing March 1 st , 2014. [ 23 ] This order should be reviewed in a Family Case Conference in the summer of 2014 to determine if there has been a change in KMQ’s ability to pay child maintenance by an increase in income.

To facilitate this, KMQ shall provide to PT and file with this court a copy of his filed full 2013 Income Tax return (not just the assessment) on or before May 31 st , 2014. Either party can bring that Family Case Conference review after production of the full Income Tax return. If a Family Case Conference is requested, it would be preferable if the Judicial Case Manager put the matter back before me, although I am not seized of the matter.

Order [ 24 ] KMQ shall pay maintenance for SAQ in the amount of $133/month commencing November 1 st , 2013 until further order of the court. [ 25 ] KMQ shall pay maintenance for JLQ in the amount of $100/month commencing November 1 st , 2013 until further order of the court. [ 26 ] The amount of child maintenance arrears payable by KMQ is fixed at $3,847.

That is payable by installments of $100/month commencing March 1 st , 2014. [ 27 ] KMQ shall provide to PT and file with this court a copy of his filed full 2013 Income Tax return before May 31 st , 2014 and subsequent filed full Income Tax returns before May 31 st each following year so long as either SAQ and or JLQ remain children under the Federal Child Support Guidelines. [ 28 ] Either party may apply to have this order reviewed in a Family Case Conference after May 31 st , 2014. It would be preferable if

the Judicial Case Manager scheduled the matter before me, although I am not seized of the matter. ________________________ W. F. M. Jackson Provincial Court Judge