S.H. v. I.H., 2013 BCSC 2473

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.H. v. I.H., 2013 BCSC 2473 Date: 20130222 Docket: 11-3745 Registry: Victoria Between: S.H. Claimant And: I. H. Respondent Notice: This judgment was edited for publication purposes on March 6, 2014 Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Counsel for the Claimant: S. Loney Counsel for the Respondent: I. Morley Place and Date of Trial/Hearing: Victoria, B.C. February 22, 2013 Place and Date of Judgment: Victoria, B.C.

February 22, 2013 [ 1 ] THE COURT: By way of notice of application filed 17 December 2012 in this family law matter, the defendant, I.H., seeks to have the claims of the plaintiff, S.H., determined by means of a

summary trial. [ 2 ] The parties have reached an agreement on most of the terms of the order sought in the notice of application. I will deal with those at the end of these reasons. [ 3 ] The one remaining point of contention relates to I.H.’s desire to retroactively and prospectively change his child support obligation. Specifically, I.H. wishes to amend his Guideline income so that it more accurately reflects what he says his income has been in the past and will be in the future. [ 4 ] S.H. opposes I.H.’s application on two grounds. First, she says the issue of child support is not one that can be properly decided in a

summary trial format. On this point S.H. says the affidavit evidence before me clashes to such an extent that cross-examination on those affidavits is necessary. Second, S.H. argues that even if I proceed with a

summary trial on the question of I.H.’s child support obligation, the evidence before me provides no justifiable reason to readjust the monthly amount I.H. is required to pay. Facts [ 5 ] The parties began cohabitating in or around 2002 and they were married in February 2003. There is one child of the marriage and she is the focal point of today's hearing. K. is seven years old and will be eight very soon. [ 6 ] The parties separated in or around May of 2010 and they executed a comprehensive separation agreement on 6 October 2010 (the “Separation Agreement”). The parties specifically acknowledged in the Separation Agreement that as of the date the agreement was signed:

a) I.H. was unemployed or was about to become unemployed [Recital paragraph C1];

b) I.H.'s Guideline Income was $35,000 (Canadian dollars) [Recital paragraph C1];

c) I.H. expected to be able to earn a similar income in the future [Recital paragraph C2];

d) The Federal Child Support Guidelines table for British Columbia was used to calculate the child support for K. [Recital paragraph

H];

e) I.H. warranted that the statement of facts in Recitals C and H were true, and he knew S.H. was relying upon them;

f) S.H. would have sole custody of K. [Paragraph 4];

g) Commencing on 1 November 2010, I.H. would pay S.H. child support for K. in the amount of $326 per month [Paragraphs 8 and 9]. [7] The Separation Agreement also provides at paragraph 14(2) for a yearly review of child support and, if necessary, a revision tothe amount payable in accordance with the Federal and Provincial Child Support Guidelines.

Paragraph 14(3) of the SeparationAgreement provides further that either party may request a review of child support in the event there is a material change incircumstances, such as a change in either party's income. [8] I.H. relocated to the Republic of South Africa shortly after the parties executed the Separation Agreement.

Since that time hehas worked at various jobs in South Africa; however, his income, when converted into Canadian dollars, has not reached the $35,000 thathe agreed to in the Separation Agreement. [9] I.H. has been attempting to make monthly support payments; however, they have been sporadic and not in the full amountowing. As of January of this year, I.H. has combined child support and spousal support arrears of approximately $12,000.

Argument [10] I.H. says he has been unable to obtain employment in South Africa that provides him with an income that allows him to makethe child support payments he agreed to in the Separation Agreement. I have no doubt whatsoever that I.H. wishes to make the childsupport payments that he feels are required but, given his current income level in South Africa, he cannot easily do that. He says he earnsthe equivalent of approximately $1,220 (Canadian dollars) per month and it is from this amount that he must pay his personal livingexpenses, including his support obligations.

In essence, I.H. says the financial burden he is carrying cannot be sustained on his presentsalary, and for that reason he seeks a retroactive recalculation of his child support obligation, as well as a lower monthly amount on a go-forward basis. [11] I.H. also points to the deterioration in the exchange rate between the South African Rand and the Canadian Dollar as anotherreason why paying $326 in monthly child support is no longer fair or feasible for him. [12] S.H. argues that I.H. chose to move to South Africa of his own volition, that he did not have to do so, and that he does not haveto remain there.

That is, he could return to British Columbia and obtain employment here. She also points out that while he has chosen topursue employment opportunities in South Africa that have not been very remunerative, there is insufficient evidence before me to justifya finding that he is employed at the level and income that he should be, particularly given what he warranted would be his Guidelineincome in the Separation Agreement. Finally, S.H. argues I.H. has failed to provide any convincing evidence of his efforts to find morelucrative employment in South Africa.

For all these reasons, S.H. submits the child support facet of I.H.’s application should bedismissed or, in the alternative, I should impute an income of $35,000 to I.H. and essentially order that child support payments continueas the parties agreed to in the Separation Agreement. Decision [13] I begin with the question of whether I.H.’s application to reduce his child support obligation can be determined on a

summarytrial. If I decide it cannot, then the parties are back to square one, having spent a good portion of today in court. They would also befacing the prospect of having to resolve this last issue by means of a trial, with all of its associated costs. [14] Counsel for S.H. did not vigorously press her objection to proceeding with a

summary trial and I take it that was because ofI.H.’s genuine desire to have everything resolved today in a prompt and cost effective way. I think that was a proper tack for S.H.’scounsel to take. [15] Our Court of Appeal in the oft cited case of Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), (BC CA), 36 B.C.L.R. (2d) 202 (C.A.), explained that when a court can determine the necessary facts and reach a judgment bymeans of a

summary trial, then it should do so unless proceeding in that fashion would result in an injustice. I have considered thegeneral principles relating to

summary trials articulated in Inspiration Management,and I have also kept in mind the object of theSupreme Court Civil Rules and in particular the desirability of securing a just, speedy and inexpensive resolution for the litigants. In myview both parties need and want to resolve the issue of I.H.’s child support obligation in a fair, expeditious, and cost-effective manner. Iam satisfied that, based upon the affidavit evidence before me, I can make the findings of fact necessary to reach a decision and that itwould not be unjust to either party to do so. Consequently, I will proceed with the

summary trial. [16] In S.G. v. G.W, 2006 BCSC 991, Martinson J. explained the principles that apply to child support applications at para. 20: [20] Three fundamental principles apply to all child support applications: Earle at ¶16 to 18. First, parents have a joint andongoing legal obligation to support their children. It is considered such an important obligation that a divorce cannot be granted untilparents make satisfactory arrangements for the care of their children: Divorce Act, R.S.C. 1985 (2d Supp.), c. 3, s. 11(1)(b).

Second, it isthe child, not the parent with custody, who has the right to maintenance; this has long been the case and has been confirmed in theFederal Child Support Guidelines. The first objective of the Guidelines is to “establish a fair standard of support for children that ensuresthat they continue to benefit from the financial means of both spouses after separation”: s. 1(a). Third, and perhaps the most important,the payment of maintenance is based on ability to pay. It is based not only on what the parent does earn, but also what the parent canearn.

The result is that a parent has a legal obligation to earn as much as they are capable of earning to meet their obligation to supporttheir children. [17] In my view, the position advanced by S.H. is the correct one on this application. The parties had legal counsel when they

negotiated and agreed to the terms of the Separation Agreement. The parties knew I.H. was no longer employed or was about to lose his employment. Notwithstanding this fact, I.H. agreed and warranted that he expected to maintain his Guideline income at $35,000, even when he knew or expected he would be relocating to South Africa. I.H. also understood that S.H. was relying upon his representations about his Guideline income. [ 18 ] Having proceeded with this

summary trial, I am not convinced on the evidence before me that I.H.'s Guideline income or child support obligation should be amended. I.H. is a healthy individual with no apparent impediments to obtaining employment. He is, according to what is before me, a dual citizen of Canada and the Republic of South Africa, though, on account of his support arrears, he has had to relinquish his Canadian passport to the Canadian authorities. He chose to relocate to South Africa so he could be closer to his family, following the dissolution of the marriage.

In my view, it is understandable why I.H. wished to return to South Africa after the collapse of the marriage. However, to say that his family resides in South Africa is only partially accurate. I am sure I.H., were he present in court today, would agree that a key member of his family resides in British Columbia, and that is K. [ 19 ] When the parties separated, I.H. was prepared to agree that his income for support purposes would be $35,000, even though he had lost his employment or was about to lose his employment in British Columbia and was about to relocate to South Africa.

He was obviously confident at that point that he would obtain work in South Africa that would allow him to pay the agreed upon amount of child support. I have nothing before me that convinces me he is not able to obtain such work. While relocating to South Africa may well be what I.H. thinks is in his best interests, in my view, the financial consequences of that decision should not be borne by K. [ 20 ] I.H. had a life in British Columbia before he met S.H., and that life continued when the parties were married. For one reason or another, that life came to an end and I.H. decided his future was in South Africa.

Aside from the fact that he may have to make arrangements to regain his Canadian passport, I see nothing that prevents I.H. from returning to British Columbia and obtaining gainful employment here. That would also provide him with the opportunity of building a healthy relationship with his daughter, something that I find, upon my reading of his affidavits, is something that he wishes. In other words, I am not convinced that he has to stay in South Africa. That is a decision he has made. [ 21 ] For these reasons, I am dismissing the application of I.H.

His Guideline income for child support purposes will remain at $35,000. I believe, having considered the provisions of the Federal Child Support Guidelines , that is a reasonable income for a person of I.H.’s age, health, and abilities. [ 22 ] I will note parenthetically that S.H.’s proposed compromise, set out at paragraph 33 of her Affidavit Number 1 sworn 9 January 2013, is, in my view, a reasonable one. I would encourage the parties to adopt it or something close to it.

In my opinion, the proposal is an acknowledgment by S.H. that I.H. is presently facing financial difficulties and it is to her credit that she recognizes that fact. I.H. may well wish to consider S.H.’s proposal. I will not order that, because S.H.’s proposal appears to be contingent on there being continued and consistent payments from I.H.

Having reviewed the materials before me, I find there is no such a history of consistent payments from I.H. [ 23 ] I am satisfied that the terms of the Separation Agreement and my order today maintaining I.H.’s Guideline income at $35,000 adequately provide for the support of K. With the question of child support resolved, I am satisfied that there are justifiable grounds to grant the divorce order both parties seek. [ 24 ] Most of the issues on this

summary trial were resolved by consent. The one issue in dispute that required a judicial determination related to child support. Unless I hear otherwise from counsel, I propose to exercise my discretion on the issue of costs and order that both parties bear their own costs of this application. [DISCUSSION] Order [ 25 ] Thank you counsel. The terms of my order will be as follows:

a) The divorce order sought by both parties is granted on the usual terms;

b) By consent, the relief sought in paragraphs 1(b), (c), (d), (e)(i), (e)(v), (

f) and (

g) of the Notice of Application is granted;

c) The balance of the relief sought in the Notice of Application is dismissed;

d) The defendant’s Guideline income for the purposes of child support will remain at $35,000, as set out in the Separation Agreement;

e) Each party will bear their own costs of this application;

f) For a period of one year from the date of this decision, the parties may appear before Gaul J. if the need arises. In such an event, I.H. has leave to attend the hearing by telephone. “G.R.J. Gaul, J.”