M.R.Y. v. C.M.Y. Date:, 2013 BCPC 419

Citation: M.R.Y. v. C.M.Y. Date: 20130411 2013 BCPC 0419 File No: 03-2600 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: MRY APPLICANT AND: CMY RESPONDENT INTERIM RULING OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing on their own behalf: MRY Counsel for the Respondent: K. O'Brien

Place of Hearing: Williams Lake , B.C. Date of Hearing: April 11, 2013 Date of Judgment: April 11, 2013 [ 1 ] This matter has been adjourned to June 6 th , 2013 for two purposes: (1) so that MRY can provide a print out or statement from the orthodontist’s office setting out the costs and the expected time line for BY’s braces; and (2) to allow Ms.

Nixon, on behalf of CMY, to put together a proposal for how MRY should re-pay the child support arrears I have found that he owes ($3,574.00 of which $2,456.00 accrued prior to January 1 st , 2012, the date when I believe CMY went on Social Assistance). [ 2 ] I thought it might be helpful to all concerned if I were to set out in writing the key elements of the oral decision I gave on April 11 th as well as the terms of the Order I had considered making as well as another possibility proposed by Ms. Nixon on May 24 th . [ 3 ] The two issues before me during the 2 day hearing in April were

(1) MRY’s application for a reduction or cancellation of child support arrears and (2) the appropriate figure for MRY’s to pay by way of ongoing child support for his two daughters.

Child Support Arrears [ 4 ] I found that MRY owed $3,574 in arrears as of April 3 rd , 2013, the date of the FMEP statement, EXH 1 , calculated as follows: 2009 July ORDER $800/mo [would equate to income of $52,800] paid as ordered = 0 arrears 2010 N/A [1] $56,441 $855/mo due $8,550, paid $800/mo for a total of $8,000 = $550 arrears 2011 N/A $37,191 $571/mo due $6,852, paid $800/mo for a total of $8,600 = $1,748 over 2012 Imputed $35,220 $542/mo due $6,504, paid $300/mo for a total of $2,850 = $3,654 arrears 2013 Imputed $35,220 $542/mo due $2,168, paid $300/mo for a total of $1,050 = $1,118 arrears [ 5 ] These figures may be summarized as follows: $ 550.00 arrears accumulated in 2010 $3,654.00 arrears accumulated in 2012 $1,118.00 arrears accumulated in 2013 $5,322.00 sub-total Less $1,748.00 overpayment of child support in 2011 $3,574.00 arrears owing [ 6 ] Any arrears over and above this are cancelled.

It would be grossly unfair not to do so since it appears that MRY’s income was fluctuating due to an injury to his shoulder and was less than what the Order made back in 2009 had assumed. [ 7 ] With respect to accrued interest I will require MRY to pay $150 in interest which is approximately ½ of the interest owing. This is appropriate given that I have found that the amount of arrears actually owing is considerably less than the amount the interest was calculated on. As for the fees I will divide those by one third. MRY must pay $400.00 in fees.

The rest of the interest and fees are cancelled for the reason set out above. Ongoing child support

[ 8 ] I impute an income to MRY of $35,220 for both 2012 and for this year, 2013. The 2012 figure is based, in part, on his evidence about taking home $2,000 to $2,500/mo for 7 months from his business, [omitted for publishing] , plus EI income which would total approximately $27,500. There is also the evidence, from the books of [omitted for publishing] of an “owner’s draw” of $35,220 which, together with the EI income would equal about $47,800. The figure of $35,220 which I have decided to impute to MRY, falls approximately in between these two figures.

It also happens to coincide with the “Owner’s Draw” shown in his business accounts [ 9 ] The Guideline amount of child support for 2 children at an income of $35,220 is $542/month. MRY advised that he would prefer to pay this sum once a month, on the 15 th of each month. I have already made an interim order that he commence paying $542/month for the support of his two daughters on May 15 th , 2013 and continuing on the 15 th day of each and every month thereafter for so long as they remain entitled to child support under the Federal Child Support Guidelines and other relevant legislation.

Re-payment of Child Support Arrears [ 10 ] The issue that has resulted in the adjournment first to yesterday and then to today’s date (May 24 th ) and now, further, to June 6 th , 2013, is how MRY should pay the child support arrears. [ 11 ] I was told during the hearing in April that the couple’s youngest daughter, BY, has been advised that she needs ‘braces’ but neither parent claimed to be able to afford this for her. [ 12 ] I was also aware that CMY was on social assistance and my understanding is that any monies from any source that are paid to persons on social assistance are deducted dollar for dollar from that person’s social assistance cheque.

In other words, if MRY paid CMY $542 in child support on May 15 th as I ordered him to do back in April, and if she declared that, as she is required to do, CMY’s next social assistance cheque would be $542 less than it would have been had he not made the child support payment.

Put another way, no matter what MRY pays to CMY she will not receive any more money per month because the government simply deducts any money she receives from other sources off of her social assistance cheque. [ 13 ] Similarly, it was my understanding that if I ordered MRY to pay off the $3,574 in child support arrears to CMY in, for example, monthly payments of $300/month, this also would be deducted dollar for dollar from her social assistance cheques with the result, once again, that she and the girls would be not one cent better off, financially, than they were when MRY was paying nothing. [ 14 ] Bearing all of these things in mind I proposed that MRY pay for the cost of BY’s braces and that if he successfully followed through on this then I would take that as payment in lieu of the child support arrears.

I felt that there was authority for such an Order under s. 150(4) of the Family Law Act which permits the court to deviate from the Federal Child Support Guidelines if there is “an ... order respecting the financial duties of the parents which benefits the child directly or indirectly...”. [ 15 ] The matter was adjourned from the April dates to May 23 rd so that MRY could talk to the orthodontist and determine just what sort of payment

schedule he or she requires. On May 23 rd MRY advised that because he is self employed the orthodontist will require close to $2,500 “up front” ($990/month x 2 months plus an administration fee of about $350) before installing the braces on BY’s teeth. After that a monthly payment in the range of $220/month is required over 20 to 24 months depending on how long the braces stay on. MRY expressed hesitation about taking this on.

I urged him to think about it carefully and consider the alternative (payment of regular child support plus arrears to CMY but the family would be not one penny better off as a result) and adjourned the matter overnight to May 24 th . On May 24 th MRY expressed his willingness to “make this happen” for BY even if he has to sell some asset to raise the money. [ 16 ] Ms. Nixon, on behalf of CMY, does not disagree with the proposed approach but argues that I should structure the order differently.

Her instructions are that under the rules of the social assistance regime, the arrears which accumulated before CMY went on to social assistance (which I understand to be right around the beginning of January, 2012) would not be deducted from her social assistance cheques. [ 17 ] According to the calculations set out above, the amount of arrears that accumulated before January 1 st , 2012 would be $2,456. $1,118 accumulated after that date. So, it is the $2,456 sum that CMY believes she could receive from MRY without having anything deducted off her social assistance payments. Ms.

Nixon suggests that any set-off of the orthodontic costs should be against ongoing child support rather than against that portion of the arrears that were accumulated prior to January 1 st , 2012. [ 18 ] If I have understood Ms. Nixon’s submission correctly then the order that she is seeking concerning Mr. and CMY would be structured somewhat along the following lines: 1. That MRY would pay the orthodontist all monies necessary to ensure that BY receives the orthodontic treatment recommended for her [believed to be about $6,000 to $7,000 in total, spread over about 2 years]; 2.

That MRY would provide receipts to CMY for any and all such payments not later than 1 month after the payment has been made (so that she can satisfy herself that he is, in fact, paying for BY’s braces); 3. That MRY would receive credit towards ongoing child support of $542/month and for a portion ($1,118) of the child support arrears

for each dollar that he pays towards BY’s orthodontic treatment; and 4. That MRY would pay the remaining $2,456 of the child support arrears to CMY according to some

schedule that makes sense. (Presumably, these payments towards arrears would not start until sometime after MRY had paid the initial large expenditures of $990/month for two months plus an administration fee of about $350 required by the orthodontist which MRY spoke of on May 23 rd .) [ 19 ] I am not necessarily opposed to this approach. I believe it is actually more favourable to MRY than what I had proposed in that he would end up getting credit for about $6 - $7,000 worth of regular child support and child support arrears rather than for only the $3,574 worth of child support arrears under my original plan).

But, the difficulty I was having when this matter was spoken to in court on May 24 th – and continue to have – is in figuring out how to word an Order in a way that is clear and enforceable.

It seems to me that rather than trying to capture all these variables in an Order, it may be simplest, if both parents agree, to adjourn the matter once again to give MRY time to make the initial large payments required by the orthodontist and to suspend the regular payments of child support ($542/month) while this is occurring as I am clear, from the evidence I heard in April, that MRY cannot afford both the large, initial payments and regular child support.

Then, once the much smaller regular monthly payments to the orthodontist start it will be easier to frame an Order concerning payment of arrears and regular child support that is clear and enforceable. [ 20 ] In

summary, on June 6 th I am hoping to receive the following information from each party: 1. MRY will produce a letter or statement (on the orthodontist’s office letterhead) indicating (

a) whether BY does, in fact, require braces in the opinion of the orthodontist and, if so (

b) what it will cost and how and when the payments must be made (MRY had notes of this on May 23 rd and told the court verbally but there is a lack of trust between the parties and so it is necessary that he obtain this information in writing and be able to provide a copy to CMY and Ms. Nixon); 2. CMY should double check to be sure that she is correct in her belief that if MRY re-imburses her for the child support arrears that accrued prior to her going onto social assistance she will be allowed to keep this money (this is the sum of $2,456 referred to in point 4 above); 3. Ms.

Nixon and MRY may make any further submissions they consider appropriate about how the child support arrears should be paid, how and when on going child support should be paid, and how the orthodontist should be paid. ___________________________ E. L. Bayliff Provincial Court Judge