G.C. v. R.C. Date:, 2014 BCPC 387

Citation: G.C. v. R.C. Date: 20140218 2014 BCPC 0387 File No: 04-2715 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: GC APPLICANT AND: RC RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing on their own behalf: GC Appearing on their own behalf: RC Place of Hearing: Williams Lake , B.C.

Date of Hearing: February 17, 2014 Date of Judgment: February 18, 2014 [ 1 ] Yesterday, on February 17 th , 2014, I heard evidence from Mr. and Ms. C, reviewed their financial papers and made an Order just at the end of the court day. I explained my reasoning to Mr. and Ms. C as I read out my Order but I said I would follow up with something in writing so that they would have something to go back and look at later if they wanted to.

The way I have laid out my written reasons is to take each term of the Order and put it in bold type and then underneath, in regular type, I have put my reasons for that particular term. 1.

Having concluded that evidence of a substantial nature is now available that was not available at the time of the June 30 th , 2011 Order - namely, details of RC’s income during the relevant years - this Order varies and replaces paragraph 4 of the Order of June 30 th , 2011 concerning child support for Mr. and GC’s granddaughter DRC, born [omitted for publishing] (‘DRC’); [ 2 ] On March 29 th , 2010 GC filed an Application for child support for DRC. This document was served by MM on RC on April 6 th , 2011 at an address on [omitted for publishing] .

RC did not file a Reply and so the court case proceeded in his absence on June 30 th , 2011.

At that time GC testified that, as far as she knew, RC was driving logging truck somewhere and therefore I assigned to him an income of $72,000 and ordered that he pay child support for DRC according to the child support tables which say that for an income of that level the amount of child support for one child is $632 per month. [ 3 ] There have been various applications by both parties in the 2 ½ years since the June 30 th , 2011 Order was made but none of them seems to have actually resulted in a hearing and a decision until now.

The current Application is document 28 in the Court file and it was filed by RC on May 7 th , 2013.

He wrote in his Application that he was asking that “All arrears including interest, default fees and other penalties be cancelled…” and stated as his reasons: “I was not employed when the Order was made and I am currently unemployed.” In her Reply filed on May 29 th , 2013, (document #30) GC wrote that she was disagreeing with any change in the June 30 th , 2011 Order because “RC was able to pay for child support at that time.” [ 4 ] Yesterday, during the hearing, RC testified that he had been a logging truck driver and had actually owned several trucks at one point but then due to a variety of circumstances had to declare bankruptcy back in 2005 and lost his trucks.

He also lost his Driver’s License at some point. He did get a job driving loader at the [omitted for publishing] but he says he lost that job when someone (he suspects it was GC though she denies this) complained that he should not be driving a loader on mill property if he did not have a Driver’s License. He says he more or less gave up at that point and went on Social Assistance. He presented a letter from [omitted for publishing] band saying that he was on Band administered Social Assistance ($235 per month) for 11 months in 2012.

As for 2013 he was on Band Social Assistance for January of that year and then on Social Assistance in Williams Lake (administered by Ministry of Social Development) from May 14 th , 2013 to the present day. The months of February, March and April, 2013 are not accounted for but RC insists that he was on Social Assistance throughout the whole of 2013 and that he has not had paid employment since the job driving a loader at the mill which seems to have been in late 2011. He also said that his sister or mother who received some residential school settlement money have been helping him out.

Since moving to Williams Lake last year he managed to get a place in a B.C. Housing facility known locally as [omitted for publishing] . It is the court’s understanding that facility caters particularly to persons with mental health issues. I asked RC about that and he said he had been suffering from depression because of having “lost everything” and that he had been admitted to the Gateway unit at the local hospital twice. [ 5 ] GC does not, I think, really dispute what RC says about his low income over the past few years.

However, she emphasizes that both she and RC agreed to take on the raising of their granddaughter, back when DRC was a very small child, and they agreed to do it together. Her position is that RC needs to share the financial responsibility with her for DRC even though they are no longer a couple. [ 6 ] I conclude that RC has provided evidence of a substantial nature about his financial situation that was not available when I made the Order of June 30 th , 2011 and as a result I have decided that the June 30 th , 2011 Order ought to be varied. 2. Arrears of Child Support: (

a) RC is found to have had an average total income for Federal Child Support Guideline purposes as follows: * 2011 $24,488.00 * 2012, 2013 <$10,000.00 (

b) RC is found to have been liable to pay child support as follows:

* July, 2011 to Dec. 2011 $ 212.00/month * 2012, 2013 $ 0.00/month (

c) RC is found to have paid a total of $3,587.22 in child support as of today’s date; (

d) All arrears of child support that have accumulated pursuant to the June 30 th , 2011 Order, specifically the sum of $16,636.78, plus accumulated interest, are hereby cancelled; [ 7 ] RC’s Financial Statement reveals the following income information: 2008 Income Tax

Summary $ 26,964.00 2009 Income Tax

Summary $ 7,558.00 2010 Income Tax

Summary $ 39,664.00 2011 T4 [omitted for publishing] T4E Employment Insurance $10,061.72 + $13,706.00 $23,767.72 $ 23,767.72 2012 Letter from [omitted for publishing] Band (11/12 months on Band SA of $235 per month) $ <10,000.00 2013 Letter from [omitted for publishing] Band (January on Band SA) + Letter from Ministry of Social Development (May to Dec on Ministry SA) $ <10,000.00 [ 8 ] I took an average of RC’s income prior to him going on Social Assistance - by adding up the income for 2008, 2009, 2010 and 2011, dividing by the 4 years and I arrived at an average income of $24,488.00.

That is the figure I will use for RC’s income in 2011, rather than the $72,000.00 I used on June 30 th , 2011. [ 9 ] For the years 2012 and 2013 the income is a Social Assistance income of less than $10,000.00 each year. [ 10 ] Applying the Federal Child Support Guidelines tables to these income figures I came up with the following amount of child support: 2011 (June to December) Averaged Income: $24,488.00 Support for 1 child: $212/month 2012 & 2013 Soc. Assist Income: <$10,000 Child support not payable at an income of less than $10,000.00 [ 11 ] In

summary, RC was required to pay child support of $212 per month for DRC up until the end of 2011. After that he went on Social Assistance and his income dropped down to below $10,000 and because his income was so low he was not required to pay child support in any amount. [ 12 ] I then looked at the Family Maintenance Enforcement Program (‘FMEP’) statement of account (which Madam Clerk obtained at my request from the office in Kamloops) to see what RC had paid over the past 2 ½ years. It shows that he has never once paid child support voluntarily.

However, through various attachment processes the FMEP has collected $3,587.22 from RC and that money has all been paid out in small amounts here and there (as it came in) to GC, which has provided her with some assistance with DRC, though not nearly as much as she has needed. [ 13 ] Since I have found that RC’s income was so low in 2012 and 2013 that the law did not require him to pay child support, the figure of $3,587.22 actually represents an overpayment of child support by RC. However, I am not going to require him to be reimbursed in any way for this overpayment. Why not?

The reason is because I am satisfied that RC has been, to some extent, deliberately under- employed over the past two years. He said at one point “I have been on SA since 2010 [it seems to me it is since 2012 rather than 2010]. I didn’t feel like working. I had no [drivers] license. There was no sense in working since she was going to get it all anyways.”

[ 14 ] I accept that RC has been suffering from depression and that he truly has felt a sense of despair over the past two years that has made it very hard to get out of bed in the morning, let alone go out and try to find work. However, I do find that there has also been an element of choice in this. To some extent RC has simply chosen not to work because “there was no sense in working since she [GC] was going to get it all anyways.” I am not going to be very harsh with RC about this.

I am not going to impute to him a big income on the basis that he was deliberately underemployed so as to avoid, at all costs, paying child support. But, I am also not going to set off any overpayment against future child support. Every penny of the $3,587.22 already collected by the FMEP has been incredibly important to GC, as DRC’s primary caregiver, in allowing her to provide just a little bit better for DRC than she could do on her own. [ 15 ] Now, what about the arrears of over $16,000 which have accumulated under my Order of June 30 th , 2011?

I have decided that those arrears should be cancelled along with all accrued interest. The reason is that RC has satisfied me that the income figure of $72,000 per year which I used in the June 30 th , 2011 Order was not accurate. I am satisfied, based on the evidence, that RC’s income each year between 2008 and present was the much lower figure set out in paragraph 7 above. Therefore, in 2011 he ought to have paid child support of $212 per month and in 2012 and 2013 he was not considered able to pay any child support because his income was less than $10,000 per year. 6. Ongoing Child Support: (

a) As of June 1 st , 2014 RC is found to have an imputed, minimum wage income of $16,600.00 and shall pay the table amount of child support for DRC of $126/month payable on the 15 th day of June, 2014 and continuing on the 15 th day of July and August, 2014; (

b) As of September 1 st , 2014 RC is found to have an imputed income of $33,100.00 and shall pay the table amount of child support for DRC of $300/month payable in twice monthly installments of $150 on the 15 th of September, 2014 and $150 on the last day of September, 2014 and continuing on the 15 th day and the last day of each and every month thereafter until DRC no longer fits the definition of a child in the Family Law Act and Federal Child Support Guidelines; [ 16 ] RC testified that he was feeling more hopeful and forward looking in recent times; that the time had come to stop looking backwards “because that’s not the way I’m going” and to start looking forwards.

He hopes to get back on his feet, get some money together, get his Driver’s License back and get back to operating a logging truck as he successfully did in the past. He testified that he did want to support his granddaughter DRC. He said that he did have to pay support in the past when he broke up with his former wife and he had paid $300 per month and he felt that he could afford this amount of money once he got back to work. [ 17 ] So, the Order I have made, looking forward, for ongoing child support for DRC tries to take into account these things RC has said.

First of all, I have allowed him until June 1 st of this year to “get back on his feet” - in other words to find employment that will allow him to start earning at least a minimum wage income ($16,600 per year). Since he does not have his Driver’s License back yet this will make it harder for him to find work.

However, if he really gets out there and looks, including looking out of town for work and looking beyond the forest industry to other industries like mining and oil and gas, I am confident that he will find that with his maturity, character, skills and work ethic he will have no trouble finding work and good work at that. [ 18 ] If RC finds employment before the month of June that`s fine. But he does not have to start paying child support until the month of June, 2014. [ 19 ] As of the month of June I have ordered that RC has to start paying child support for DRC at a minimum wage income of $16,600.

The child support tables say that for 1 child at this income the amount is $126 per month and that is the amount RC is required to pay for DRC starting June 15 th , 2014. I picked the 15 th of the month because I thought that might make it easier for RC than the 1 st of the month because he likely has other bills to pay at the beginning of the month. [ 20 ] For the months of June, July and August child support will be payable at the rate of $126 per month. [ 21 ] Then, starting in September, 2014 child support for DRC will increase to $300 per month. Why?

The reason is that RC feels that he could afford $300 per month for DRC once he gets back to work. I am hoping that by September he will have been able to get good enough paying work that he will be able to pay $300 per month for DRC (in two, equal payments of $150 each on the 15 th and the last day of each month) without too much problem.

If he is able to find work by September that pays about $16 per hour or more (full time) then the $300 per month figure should be about right. [ 22 ] As I stressed to RC yesterday in court if he is not able to find work or the work is paying less than about $16 per hour for full time work then he needs to bring the matter back to court as soon as possible to ask to change this Order rather than letting a lot of arrears build up and having the FMEP start taking enforcement action against him as happened over the past couple of years.

The court and GC will listen if RC comes forward and provides the documents to back up what he is saying about his income. 7. Special and Extraordinary Expenses: (

a) The Court orders that RC and GC shall share equally (50% each) in the payment of special or extraordinary expenses for DRC and the parent who pays the expenses shall provide a copy of the receipt to the other parent who shall

reimburse the parent who paid the expense for their ½ share of the expense; (

b) The Court finds that GC spent $1,600 on orthodontic work (‘braces’) for DRC and that RC’s share of this expense is one half or $800.00; (

c) RC and GC are to share equally (50% each) in paying for all of the costs of DRC’s anticipated High School graduation in 2015 (dress, shoes, hair, photos, dinners and other costs) not later than June 30 th , 2015. For greater clarity, these costs are to be paid for over and above regular child support ; (

d) RC and GC are to keep receipts for any and all costs associated with DRC’s graduation and any other special or extraordinary expenses either of them incurs for DRC; (

e) RC is ordered to reimburse GC for his one-half share of the orthodontic expenses ($800.00) referred to in paragraph 7(

a) above not later than the 30 th day of June, 2015. He may do so either by (

i) paying GC cash or (ii) by paying his ½ share of DRC’s graduation costs plus up to $800 worth of GC’s ½ share of graduation costs. RC and GC are to keep the Family Maintenance Enforcement Program informed of whether RC has paid his share of the orthodontic expenses (7(

a) above) and if so, by which of these two methods. [ 23 ] In this part of the Order I am dealing with the issue of “special or extraordinary” expenses for DRC. These are things that are over and above the basic expenses of everyday life. Basic child support is for things like food, clothing and shelter.

Special and extraordinary expenses are things like the orthodontic work DRC has undergone (“braces” for her teeth) and, if DRC graduates next year from High School, (this is expected because she is an excellent student), then there will be all the expenses associated with graduation such as a dress, photographs and so on.

School trips are another thing that likely amounts to a special or extraordinary expense. [ 24 ] DRC apparently has a couple of horses as well and that probably qualifies as an “extracurricular” or “extraordinary” expense just like hockey or figure skating would if she were involved in those sports. However, I did caution GC in court saying that she needs to put a limit on DRC’s expenses. It depends how much the horses are costing.

It may be that RC could help out with the cost of buying hay or feed without too much expense and it is probably a lot cheaper to keep horses at Anahim Lake than if they were stabled somewhere in town. Still, GC is going to have to keep a lid on the horse costs because there is only so much she and RC can afford. [ 25 ] RC and GC need to share equally in paying these special or extraordinary expenses for DRC. [ 26 ] Right now the main special or extraordinary expenses for DRC are the braces for her teeth which have already been paid for partly by the federal government and the remaining $1,600 by GC.

RC’s share is ½ of that or $800.00. I will give him until the last day of June in 2015 to get that sum paid to GC. [ 27 ] Instead of paying GC $800 another possible way of dealing with the matter would be if RC paid for all of DRC’s graduation costs. If the graduation costs amounted to $1,600 or more then RC would end up being “even” with GC - she has paid $1,600 for the braces and he would pay $1,600 (or more) for graduation costs. If the graduation costs end up being less than $1,600 then RC would have to pay some additional money directly to GC to reimburse her for the cost of DRC’s braces.

For example, if the graduation costs amount to $1,000 and RC pays all of these costs he would still have to pay to GC $300 calculated as follows: * GC and RC are each responsible for ½ of $1,600 total cost for DRC’s braces on her teeth = $800 each, * GC and RC are each responsible for ½ of $1,000 (for example) total cost for graduation = $500 each, * If RC pays the $1,000 total cost of graduation then he has paid his $500 share plus GC’s $500 share, * $800 is his ½ share of the cost of braces minus $500 paid on behalf of GC for graduation expenses = $300 still owing to GC. [ 28 ] It is important that receipts be kept for all of DRC’s special or extraordinary expenses and that copies of those receipts be given to the other parent as proof of the money spent on DRC.

It is also important that once an expense has been incurred by one parent the other parent reimburse the first parent for ½ the cost in a prompt way. I have imposed a 30 day limit on the payment of such expenses. 8. Family Maintenance Enforcement Program: The Court orders that RC shall continue to make his payments to the Family Maintenance Enforcement Program so that there is

a good record of what he has paid from time to time. [ 29 ] During the hearing GC suggested that RC could pay child support directly to DRC if he felt she, GC, was harassing him or mis- spending the child support money. She said that DRC is an excellent student and, at age 16, is very mature and responsible in how she handles money. RC expressed interest in paying child support directly to DRC. [ 30 ] I am very much in favour of RC spending more time with DRC and getting more involved in her life than has been the case over the last couple of years.

I was upset to hear that RC has hardly spent any time at all with DRC in the last couple of years. [ 31 ] However, I do not support the idea of him paying child support directly to DRC. Why not? The reason is that DRC needs to focus on her studies and her activities at this point in her life and leave the financial issues up to her adoptive parents (and grandparents) RC and GC I understand that in addition to being a good student she also has a part time job. She is still Mr. and Ms. C’s “little girl” and they need to take care of things like child support for a few more years and not bother her with such things.

She should not have to be the one to worry if RC is late with depositing his child support for the month. That is up to Mr. and Ms. C to worry about, not DRC. So, in my view, payments need to continue to be made through the Family Maintenance Enforcement Program and not directly to DRC or into an account held by DRC. [ 32 ] Also, using the FMEP is an excellent way to keep track of what has been paid and when. They prepare an Account Statement and carefully record every single payment that they process through their office.

If RC makes all his payments through the FMEP there is very little room for arguments later about whether a payment was or was not made. It provides protection for RC and for GC. [ 33 ] I know that RC does not have a good impression of the FMEP office because their contact with him has generally taken the form of enforcement action against him such as garnisheeing his wages when he was working and taking his GST and other federal credits. FMEP is just doing its job seeing that child support Orders are complied with.

I have encouraged RC to make contact with the worker who has responsibility for his case and I believe he will find that the worker will help him to know what his obligations are but also what the limits of his obligation are and that FMEP can actually be very helpful to him. _________________________ E. L. Bayliff Provincial Court Judge