R.E.B. v. B.A.L. Date:, 2014 BCPC 389

Citation: R.E.B. v. B.A.L. Date: 20140730 2014 BCPC 0389 File No: 02-2323 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: REB (formerly

S) APPLICANT AND: BAL RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing on their own behalf: REB Appearing on their own behalf: BAL Place of Hearing: Williams Lake , B.C.

Date of Hearing: February 19, 2014 Date of Judgment: July 30, 2014 [ 1 ] REB (formerly

S) and BAL are the parents of MDLS, born [omitted for publishing] . MDLS has just turned 13. [ 2 ] MDLS’s father, BAL, has applied to reduce or cancel arrears of child support (document # 31) which have accumulated under court orders made on April 18 th , 2002 and June 7 th , 2004. REB opposes his application. [ 3 ] On February 19 th , 2014 I heard evidence from BAL, his mother SL, from REB (formerly Ms.

S) and her mother, LS. I also reviewed certain documents filed at that time ( Exhibit 1) plus the Financial Statements of BAL which were filed on November 14 th and December 5 th , 2013. After hearing the evidence on February 19 th I reserved judgment. It became clear to me that I required further information from BAL so I requested the Court Registry to require him to come back to court. On July 17 th he attended in court and on that date I told BAL that in order to decide the case I needed his tax information for 2002 to 2010 as the tax information in his Financial Statements only goes back to 2011.

BAL or SL obtained the tax information and left it at the Court Registry a few days later.

I hereby direct that these tax documents (Notices of Assessment for 2003 to 2010 inclusive) be marked as the next exhibit in this matter: Exhibit 2. [ 4 ] Another important document is the Family Maintenance Enforcement Program (‘FMEP’) account statement current to the date of trial, February 19 th , 2014 and I direct that be marked as Exhibit 3. [ 5 ] With the verbal evidence of the witnesses and the documentary evidence, I am now able to give my decision on the child support issues raised by BAL’s application. [ 6 ] I have concluded that BAL’s actual income over the past 10 to 12 years varied considerably from the income figures set out in the child support Orders made on April 18 th , 2002 and June 7 th , 2004.

I therefore cancel arrears owing under the earlier Orders pursuant to s. 174 of the Family Law Act, S.B.C. 2011, c. 25 . [ 7 ] Regarding ongoing child support I impute to BAL an income of $12,500 for 2014 and subsequent years. The Guideline amount of support for 1 child at that income is $50/month. However, I will not require BAL to start paying that sum per month until July 25 th of next year, 2015.

The reason for this delay is that I find the sum of $2,246.88 collected by the FMEP from ICBC in January of 2014 is a “reasonable arrangement” for the support of the child until July of next year. [ 8 ] I will now review the evidence and explain my decisions on these various contested points. [ 9 ] From the evidence of each of the 4 witnesses who testified I conclude that BAL, while an intelligent man, does suffer from a mental health condition that makes it very difficult for him to maintain steady employment.

He was a clever, even gifted, child but has limited ability to actually follow through and complete tasks. He has held many jobs but never been able to successfully stick with any of them. He was 32 years old at the time of the trial in February and I am satisfied that this is a well-established pattern in his life and there is no evidence to suggest that this pattern is going to change, other than for short periods of time, in the future.

I found the evidence of his mother particularly persuasive in that regard as she comes across as someone very interested in the well-being of her grandson, MDLS, but also as someone with a very intimate knowledge of her son’s difficulties fitting in with society over the years. [ 10 ] Recently, BAL was diagnosed with bi-polar disorder and to his mother, SL, this seems likely to be a correct diagnosis given her son’s ability to start but not finish things - his cleverness yet also, his rage, and his inability to really understand his role and his obligations in this world. [ 11 ] The evidence was that BAL began receiving Social Assistance in April, 2013 at the rate of $610 per month (of which $375 was a shelter allowance paid directly to his parents and $235 was the living allowance portion, which was paid to him).

In February, 2014 he was approved for “Persons With Disabilities” Social Assistance in the sum of $906.42 per month plus certain medical and dental benefits. [ 12 ] REB (formerly

S) and MDLS’s other grandmother, LS, both recognize that BAL does suffer from a mental disability. However, both of them make the point that, in spite of that, BAL is very intelligent and has various skills that would allow him to earn some money that could go towards the support of his son. As LS put it: “BAL sells himself short in saying he can’t work. He is so smart and he is a hard worker. ….So, I do believe you [BAL] are very employable. … He does have trouble keeping a job but if he can have as a goal ‘to support MDLS’ then I think he can achieve this.

He does have talents.” [ 13 ] Another factor in all of this is that BAL has a girlfriend in Quesnel who is expecting his baby. The baby was due in June, 2014 and so, hopefully, there has been a successful birth of a younger half sibling to MDLS since I saw the parties at trial on February 19 th . My sense of matters on February 19 th was that BAL really did not grasp that MDLS was just as much entitled to support from his father as the new baby is. BAL seemed to feel that it was enough that he was emotionally supportive of MDLS and that his parents helped out REB from time to time with the costs of raising MDLS.

Everyone who testified said that BAL is a good father to MDLS in an emotional sense and MDLS enjoys spending time with his father. However, it is my duty to point out to BAL, in case it is not already completely clear to him, that rearing a child involves more than just emotional support. BAL does need to contribute financially to the support of MDLS also - to the extent that he is able. I hope BAL’s girlfriend and the mother of his second child understands that as well. BAL has

two children and both of them need their dad’s love, guidance, companionship and his financial help to the extent that he is able. [ 14 ] Bearing all of these factors in mind I have gone through the evidence about each year between 2002 and the present (2014) and made a finding about what BAL’s income was that year, what the Federal Child Support Guidelines required him to pay for one child at that income, what he actually paid, and what the difference is for each year (did he pay less than he should have, or more than he should have, or exactly the right amount for the year)? [ 15 ] My calculations for the years 2002 to 2011 are set out in Appendix A to this decision.

My calculations for 2012 to present are set out later in these reasons. [ 16 ] The calculations reveal that some years BAL under paid based on what his income actually proved to be by the end of the year. Other times he over paid. In the end though, things more or less evened out and he owed only about $4.67 in “back pay”, or arrears of child support, by the end of 2011. [ 17 ] The provision of the Family Law Act , S. B. C. 2011, c. 25 which governs this application is s. 174 :

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing , and (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued , under

section 11.1 of the Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [ 18 ] Based on the Notices of Assessment filed by BAL and the evidence I have heard from all of the witnesses who testified, I am conclude that BAL’s actual income over the years 2002 to 2011 was sometimes higher and sometimes lower than the income the court used in its 2002 and 2004 Orders.

As a result, BAL actually owed sometimes more than what the court orders said (and what FMEP kept track of in their calculations) and sometimes less than what the court order said (and what FMEP kept track of). [ 19 ] In my view it would be grossly unfair not to take into account BAL`s actual income over the years and therefore I find that it would be grossly unfair not to cancel arrears that accrued using the estimated income figures contained in the 2002 and 2004 Orders. The calculations using his actual income from year to year reveal a very small sum of arrears ($4.67) as of December 31 st , 2011.

Given this very small sum I order that these arrears be cancelled and find that as of December 31 st , 2011 BAL owed no arrears of child support for his son, MDLS. [ 20 ] I will now deal with the final 3 years, 2012, 2013 and 2014 up to the 19 th of February, the date of the trial. [ 21 ] Up until the end of 2011 I have relied on BAL’s tax information as being accurate. It seems to accord with what SL and BAL said about his employment history - he is smart and can get good jobs but sticking with them is something he is not so good at.

As a result, his annual income was between $20,000 and $30,000 in the years 2004, 2006, 2007 and 2009 but in 2003, 2005, 2008, 2010 and 2011 his annual income was less than $20,000, and in some cases less than $10,000. [ 22 ] For the year 2012 the tax information provided by BAL shows him as having zero income. This is hard to accept as everyone needs to eat and clothe themselves and to have a roof over their heads - and all those things cost money. I do realize that BAL’s mother and step father have helped him out a lot over the years and possibly they were entirely supporting him in 2012.

However, in the absence of any clear evidence on what was going on in 2012 I have decided to impute to BAL an annual income of $16,000. The monthly child support payment at this income would be $116/month for a total over 12 months of $1,392.00. This is about the sum BAL ended up paying for the support of MDLS in 2012 thanks to the collection efforts of the Family Maintenance Enforcement Program (‘FMEP’). [ 23 ] I therefore find that BAL owes no arrears for the year 2012 - he neither underpaid nor overpaid in 2012. [ 24 ] For the year 2013, I reach a similar conclusion.

There is no tax information before me about 2013 so I don’t know what income BAL declared for that year. I do know that BAL was accepted onto the welfare rolls in April, 2013. This is according to his sworn testimony and a document prepared by the Ministry of Social Development dated September 6 th , 2013 and attached to BAL’s November 14 th , 2013 Financial Statement. [ 25 ] In the absence of clear evidence about his total income for 2013 I have decided to impute to BAL an annual income of $16,000. The monthly child support at this amount would be $116/month for a total, over 12 months, of $1,392.00.

This is almost exactly the sum BAL ended up paying for the support of MDLS in 2012 - again, thanks to the collection efforts of the FMEP. [ 26 ] I therefore find that BAL owes no arrears for the year 2013 - he neither underpaid nor overpaid in 2013.

[ 27 ] In

summary - for the years 2002 to 2013 inclusive - I find that BAL owes no arrears of child support. [ 28 ] Moving now to the current year, 2014, and ongoing child support for MDLS for future years, BAL has provided evidence that he has been accepted onto the “Persons With Disabilities” (‘PWD’) welfare rolls as of February, 2014. This differs from regular welfare in that he receives a greater sum - $906.42 per month rather than $610 per month - and he is allowed to earn up to $800 per month from employment income over and above the monthly payment.

Thus, he could earn up to $1,706.42 per month on this program ($906.42 base payment + $800 earned income = $1,706.42). [ 29 ] SL testified that, based on her son’s history in the work force, she thought it unlikely that BAL would earn the maximum $800 worth of income each month allowed by the welfare authorities in addition to the base rate, on any sort of regular basis.

On another occasion in her evidence, SL testified that she had proposed to REB that her son pay $50 per month for the support of MDLS plus a lump sum of $1,800 but this offer was refused. [ 30 ] An additional factor is the payment - on January 17 th of this year - of the sum of $2,246.88. This is recorded on the FMEP Account statement. From the evidence of BAL and with the assistance of Ms. Williams, counsel for the FMEP who appeared by telephone at my request, I have learned the following about this payment. [ 31 ] Back in November, 2010 BAL collided with a deer while driving.

He made a claim through ICBC and, in due course, received a settlement in the sum of $2,246.88. BAL used this money for his own purposes - I believe he said it went towards purchasing another vehicle. He did not pay any of the money to FMEP even though he did owe some arrears of child support (according to the 2002 and 2004 Orders) at the time he received the money. [ 32 ] In paying the money directly to BAL, ICBC made an error. They had been served with an Attachment Order by FMEP back in 2008 and therefore they were legally required to send the money to the FMEP rather than to BAL.

When this error was discovered, ICBC then had to pay the money a second time - this time to the FMEP, as required by the Attachment Order.

They made this second payment in January of this year and this is the payment recorded on the Account statement as being received by the FMEP on January 17 th , 2014. [ 33 ] By this time the arrears that had accumulated under the 2002 and 2004 Orders had climbed to $3,770.95 so the FMEP kept all of the money paid in by ICBC and, I assume, sent all of it on to LS for the support of MDLS. [ 34 ] Since ICBC made a mistake in paying the sum of $2,246.88 to BAL in the first place (they should have sent it straight in to the FMEP to pay down BAL debt for arrears of child support), they are now trying to get the money back from BAL.

On January 30 th of this year they issued him a Claim Recovery Invoice in the amount of $2,246.88 (see Exhibit 1). [ 35 ] BAL finds it difficult to understand why ICBC is now coming after him for this sum of money and he questions whether it is fair given that he disputes the amount of arrears owing. His anxiety level is heightened by the fact that his Driver’s License expires in a few days, on his birthday, and he has been told that ICBC will not allow him to renew his license unless he pays them back the sum of $2,246.88.

He says that if he does not have a license he will not be able to go back and forth to Quesnel to visit his girlfriend and baby there, and he will not be able to take MDLS out for visits. [ 36 ] I therefore approach the issue of imputing an income to BAL for 2014 and years following bearing in mind the following points which seem to emerge from this body of evidence: (

a) at the time ICBC paid the $2,246.88 to FMEP in January of this year, it now appears that there were no arrears of child support owing by BAL. However, no one knew that at the time. BAL was arguing that this was the case but, until the release of my decision, today, some 7 months later, there was no legal finding to this effect. Therefore, the FMEP was absolutely correct in collecting that sum from ICBC and then paying it on to REB for the support of MDLS; (

b) I am assuming that the sum collected from ICBC in January has been paid out in full to REB and no longer remains in the control of the FMEP; (

c) It would be unfair to REB to ask for the money back. But, on the other hand, it would be unfair to BAL not to recognize that he actually owed no arrears at the time the sum of $2,246.88 was collected from ICBC by the FMEP. [ 37 ] Bearing these factors in mind and bearing in mind also the provisions of ss. 149 and 150 of the Family Law Act , I am going to impute to BAL an income of $12,500 for 2014 and the years following. This assumes he will continue to receive PWD welfare of $906 per month plus some additional employment income.

I have estimated that this additional income will average about $136/month or about $1,600 additional money per year. This is a modest sum but, in my view, the evidence does not establish that BAL is likely to be able to consistently earn much more than this over and above the PWD welfare. The Guideline amount for 1 child at the imputed income of $12,500 is $50/month. [ 38 ] However, I am not going to require BAL to start making these $50/month child support payments until July 25 th , 2015, approximately 1 year from now.

For greater clarity, the only child support I am requiring BAL to pay between January 1 st , 2014 and July 25 th , 2015 is the sum of $2,246.88 collected by the FMEP from ICBC on January 17 th of this year.

I am satisfied that, given my findings about arrears and BAL’s income as outlined in this judgment, such sum constitutes a special provision for the support of MDLS for the 18 month time period between January 1 st , 2014 and July 25 th , 2015 as per s. 150(4) of the Family Law Act . [ 39 ] BAL is still going to have to come up with the $2,246.88 to pay back ICBC but I hope this will be slightly easier for him to do since he will not be required to pay any further child support until July 25 th , 2015. As of that date he will have to start paying monthly child support again at the rate of $50/month.

[ 40 ] There are several other issues to address. The first is accrued interest on the arrears which the FMEP calculated as of the date of the hearing, February 19 th , 2014 to amount to $166.62. Given my conclusion that no arrears actually do exist, it seems unlikely that any interest will be payable. However, I will simply order that interest on the recalculated arrears is payable in accordance with s.11.1 of the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127 and associated regulations. [ 41 ] The second issue is the default fees which totalled $850 as of February 19 th , 2014. When Ms.

Williams spoke to the court by phone at the February hearing, she indicated that if it was the court`s decision to reduce or cancel arrears in this case, the Director would not be sending counsel to oppose an application by BAL to cancel the default fees (pursuant to s. 14.4(6) (

a) of the Family Maintenance Enforcement Act ). In light of this, and in light of my decision to cancel arrears, I do also order that the default fees of $850 be cancelled. [ 42 ] The third issue is ongoing financial disclosure. I will require BAL to provide a copy of his filed income tax return and Notice of Assessment or Re-Assessment for the preceding taxation year to REB by May 30 th of each year, starting in 2015.

This is for the purpose of monitoring the accuracy of the income of $12,500 which I have imputed to BAL, going forward. [ 43 ] The fourth issue is the Director of Maintenance Enforcement`s Default Hearing. This has been adjourned from time to time awaiting the outcome of this hearing. I order that the Default Hearing be further adjourned to the family remand day in Williams Lake on August 28 th , 2014 for consent or to fix a date. [ 44 ] My draft Order in this matter is attached as Appendix B to these reasons. ________________________ E. L.

Bayliff Provincial Court Judge Appendix A 2002 ORDER, 18 April 2002 Total Income: $9,000 $57/month * I find BAL’s total income for calendar year 2002 was $9,000 Basis for finding: - No other evidence about income in 2002 - Order recent thus income set out therein likely to be current. * Amount payable for 1 child at that income (1997 Table) from when Order came into force (June, 2002) to end of year (7 months): $57/mo x 7 mo = $399.00 * Amount paid in 2002 as per FMEP Account statement: $285.00 * Difference: $399 - $285 = $114 arrears in 2002 2003 * I find BAL’s total income for 2003 was $6,888 Basis: - 2003 Notice of Assessment * Amount payable for 1 child at that income over 12 months: 0 Note: BAL’s income in 2003 ($6,888) fell below the minimum income ($10,819) at which child support was payable under the 1997 Table of the Guidelines.

* Amount paid in 2003 as per Account statement: $378.00 * Difference: $0 - $378.00 = ( $378) overpayment in 2003 2004 ORDER, 7 June 2004 Total income: $19,938 $170/month (2 installments of $85 each) * I find BAL’s total income for calendar year 2004 was $27,654 Basis: - 2004 Notice of Assessment * Amount payable for 1 child at that income over 12 months: $239/mo x 12 mo = $2,868 * Amount paid in 2004 as per Account statement: $1,448.17 * Difference: $2,868 - $1,448.17 = $1,419.83 arrears in 2004 2005 * I find BAL’s total income for calendar year 2005 was $9,800 Basis: - 2005 Notice of Assessment * Amount payable for 1 child at that income over 12 months: $0 Note: BAL’s income in 2005 ($9,800) fell below the minimum income ($10,819) at which child support was payable under the 1997 Table of the Guidelines. * Amount paid in 2005 as per Account statement: $1,217 * Difference: $0 - $1,217 = ( $1,217) overpayment in 2005 2006 * I find BAL’s income for calendar year 2006 was $27,888 Basis: - 2006 Notice of Assessment * Amount payable for 1 child at that income Jan to Apr, 2006: $239 per mo x 4 mo = $956. * Amount payable for 1 child at that income May to Dec, 2006 (2006 Table): $257 per mo. = $2,056 * Total amount payable for 1 child at this income for 2006: $956 + $2,056 = $3,012 * Amount paid in 2006 as per Account statement: $1,731.60 * Difference: $3,012 - $1,731 = $1,280.40 arrears in 2006 2007 * I find BAL’s income for calendar year 2007 was $24,473 Basis: - 2007 Notice of Assessment * Amount payable for 1 child at that income over 12 months: $224 x 12 mo = $2,688

* Amount paid in 2007 as per Account statement: $3,361.45 * Difference: $2,688 - $3,361.45 = ($673.45) overpayment in 2007 2008 * I find BAL’s income for calendar year 2008 was $15,270 Basis: - 2008 Notice of Assessment * Amount payable for 1 child at that income over 12 months: $128 x 12 mo = $1,536 * Amount paid in 2008 as per Account statement: $2,339.61 * Difference: $1,536 - $2,339.61 = ($803.61) overpayment in 2008 2009 * I find BAL’s income for calendar year 2009 was $22,983 Basis: - 2009 Notice of Assessment * Amount payable for 1 child at that income over 12 months: $209 x 12 mo = $2,508 * Amount paid in 2009 as per Account statement: $1,343.25 * Difference: $2,508 - $1,343.25 = $1,164.75 arrears in 2009 2010 * I find BAL’s income for calendar year 2010 was $17,815 Basis: - 2010 Notice of Assessment * Amount payable for 1 child at that income for 12 months: $158 x 12 months = $1,896.00 * Amount paid in 2010 as per Account statement: $2,626.19 * Difference: $1,896.00 - $2,626.19 = ($730.19) overpayment in 2010 2011 * I find BAL’s income for calendar year 2011 was $7,681.00 * Amount payable for 1 child at that income for 12 months: $0 Note: BAL’s income in 2011 ($7,681) fell below the minimum income ($8,000) at which child support was payable under the 2006 Table of the Guidelines . * Amount paid in 2011 as per Account statement: $172.06 * Difference: $0 - $172.06 = ($172.06) overpayment in 2011

Year Arrears Overpayment 2002 114.00 2003 378.00 2004 1,419.83 2005 1,217.00 2006 1,280.40 2007 673.45 2008 803.61 2009 1,164.75 2010 730.19 2011 172.06 TOTAL $3,978.98 ($3,974.31) TOTAL ARREARS TO DEC. 31, 2011: $4.67 ($3,978.98 - $3,974.31 = $4.67) 2012, 2013 & 2014 see text of Reasons for Judgment for findings re: total income, amount payable, amounts paid and the difference for each year. Appendix B Draft Order REB (formerly

S) v. BAL THIS MATTER COMING ON FOR HEARING on February 19 th , 2014 and upon hearing the evidence and submissions of the parties and upon judgment being reserved; THIS COURT ORDERS: 1. This Order replaces the Orders of April 18 th , 2002 and June 7 th , 2004 as they concern child support for MDLS, born [omitted for publishing] (“the child”); 2. This Court finds that, as of August 1 st , 2014 BAL owes no arrears of support for the child; 3. This Court imputes to BAL a total income of $12,500 for 2014 and subsequent years; 4. BAL shall pay REB (formerly

S) the sum of $50/month for the support of the child commencing on July 25 th , 2015 and continuing on the 25 th day of each and every month thereafter until the child ceases to be a child within the relevant statutory

definitions;

5. This Court finds that special provision has been made for the support of the child for the time period January 1 st , 2014 to July 25 th , 2015 by way of payment (by ICBC on BAL’s behalf), of the sum of $2,246.88 on January 17 th , 2014; 6. Interest, if any, on the arrears of child support owing from time to time by BAL, as re-calculated under this Order, is owing by BAL to REB, pursuant to s. 11.1 of the Family Maintenance Enforcement Act and applicable Regulation; 7. Default fees are cancelled pursuant to s. 14.4(6) (

a) of the Family Maintenance Enforcement Act ; 8. BAL shall provide financial disclosure to REB consisting of a copy of his filed income tax return and Notice of Assessment or Re-Assessment for the preceding taxation year by May 30 th of each year, starting on May 30 th , 2015; 9. The Default Hearing in this matter is adjourned to August 28 th , 2014 at 0930 for consent or to fix a date.