D.J.H. v. J.D. Date:, 2011 BCPC 105

Citation: D.J.H. v. J.D. Date: 20110426 2011 BCPC 0105 File No: 0524529 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: D.J.H. APPLICANT AND: J.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Appearing on their own behalf: D.J.H. Appearing on their own behalf: J.D. Place of Hearing: Prince George , B.C. Date of Hearing: March 31, 2011 Date of Judgment: April 26, 2011 INTRODUCTION [ 1 ] D.J.H. (Ms. H.) brings application for a review of child maintenance payable by J.D. (Mr.

D.) for the benefit of their son, T.J.H., born March 16, 2005. [ 2 ] Ms. H. seeks to review the child maintenance payable back to the date the original order in 2005 on the basis that Mr. D. has, over the years, misinformed both her and the Court with regard to his true annual income. [ 3 ] Mr. D. opposes Ms. H.’s claim for retroactive child maintenance on the basis that he has provided all the information the Court requested of him for each application and that the Court made Orders with regard to his maintenance obligation based on his best estimate of his income throughout the years.

BACKGROUND INFORMATION [ 4 ] Ms. H. and Mr. D. were involved in an intermittent relationship that occurred both before and after T.J.H.’s birth. [ 5 ] Since T.J.H.’s birth, Mr. D. has worked for JV Logging as an equipment operator and recently as an equipment operator and shop worker, except for a brief period of time in 2009 when he worked for an electrical company in Edmonton.

[ 6 ] Each time maintenance applications were brought by Ms. H. in which a maintenance Order was made, Mr. D. has paid the exact amount due and owing under the Order without complaint. [ 7 ] In the years since the original Order was made in 2005, Mr. D.’s income has increased. Mr. D. claimed that Ms. H. had knowledge of his income increases and told him from time to time that he did not have to pay more, describing the increased maintenance resulting from his increased income as being “way too much”. Ms. H. did not agree with Mr. D.’s assertion in that regard. [ 8 ] Ms. H. alleged that Mr.

D. received from his employer under the table cash income and other benefits including payment of vehicle insurance, assistance with his bankruptcy, the purchase of recreational vehicles and other items. Mr. D. denied those allegations. [ 9 ] Ms. H. alleges that from time to time throughout the years she requested additional financial assistance from Mr. D. for T.J.H.’s benefit. Mr. D. states that he occasionally purchased items for T.J.H. but did not recall any request made by Ms. H. for additional financial assistance. [ 10 ] Ms. H. alleges that Mr.

D. has been working for his employer on an under employed basis, alleging that other people with similar skills and experiences to Mr. D. as an equipment operator earn up to $100,000.00 per year. [ 11 ] Ms. H. also alleges that Mr. D. has refused to supply her with information concerning his income from time to time and as such has misled both her and the Court on occasions when applications were brought. LITIGATION HISTORY [ 12 ] On April 22, 2005, Ms. H. applied for maintenance from Mr. D. for T.J.H.’s benefit. [ 13 ] On July 13, 2005, Mr. D. filed a Reply agreeing to pay maintenance.

At that time, he also filed a Financial Statement wherein he stated his income for 2005 would less than 2004 due to a job change and estimated his income would be $63,000.00. He attached to that Financial Statement a 2004 Tax

Summary indicating his income in that year was $77,695.00. [ 14 ] On August 10, 2005, maintenance Order, by consent, was made based on a finding that Mr. D.’s income was $63,993.00 and requiring maintenance in the amount of $528.00 per month for T.J.H.’s benefit effective September 1, 2005. [ 15 ] There were no further applications for review of the child maintenance payable by Mr. D. until 2009. In those intervening years Mr.

D. paid maintenance based on an income of $63,993.00. [ 16 ] In fact, his income was as follows during those years: a) 2005 - $83,668.00 b) 2006 - $96,269.00 c) 2007 - $97,872.00 d) 2008 - $80,504.00 [ 17 ] In 2009, Ms. H. applied to vary the maintenance payable by Mr. D. for T.J.H.’s benefit to reflect his correct income and in addition claimed for child care expenses. [ 18 ] On April 3, 2009, Mr. D. filed a Reply noting that he was unemployed and estimated that his income for that year would be $55,260.00. In a Financial Statement filed at the same time, Mr.

D. indicated his new employment income would result in an annual income of $56,160.00. [ 19 ] On June 8, 2009, Mr. D. filed an Affidavit enclosing a letter from his new employer in Edmonton, Alberta, indicating that his income would be $59,400.00 for that year. Mr. D. remained employed at that employer for a brief period of time and then returned to Prince George and resumed his employment JV Logging. [ 20 ] On June 16, 2009, an Order, by consent, was made requiring Mr. D. to pay maintenance of $555.00 per month and additional child care expenses of $134.00 effective July 1, 2009.

At that time no income was attributed to Mr. D.. [ 21 ] On October 14, 2009, an Order, by consent, was made for child maintenance of $700.00 per month plus $134.00 for child care expenses commencing November 1, 2009, with a review to occur in April 2010. Again, there was no income determined for Mr. D. in that Order. [ 22 ] On April 22, 2010, there was a further Order, based on a finding that Mr. D.’s income was $68,229.00, requiring him to pay maintenance of $638.00 per month and child care expenses of $104.00 commencing May 1, 2010. [ 23 ] In fact, Mr.

D.’s income since 2008 was as follows: a) 2009 - $69,968.00 b) 2010 - $74,646.00 [ 24 ] Mr. D.’s 2010 Income Tax Return also indicated a loss from rental income of $5,246.00 resulting in a Line 150 Income of $69,399.00. Mr. D. did not provide any explanation regarding the loss he incurred from his rental income and provided no

documentation to indicate what amounts, if any, may have been claimable under the Child Support Guidelines . [ 25 ] On March 24, 2011, Mr. D. filed a Financial Statement in which he estimated his income for 2011 at $69,399.00. In addition, for the first time since litigation in this matter commenced, he disclosed his 2005 income of $83,668.00. THE LAW [ 26 ] Both Ms. H. and Mr.

D. were both self-represented and did not present any case authority to support their positions. [ 27 ] However, it is incumbent upon the Court to apply the law as set out in the Family Relations Act , Child Support Guidelines and the case law arising from those statutes. [ 28 ] It is clear from both the Family Relations Act and the Child Support Guidelines that there is an ongoing obligation for payor or spouse to provide financial information to the recipient spouse.

In addition, retroactive variation of court orders is permitted. [ 29 ] However, any retroactive variation must be made based on a material change in the circumstances which if known at the time would likely have resulted in different terms of the court order. ( See Bockhold v. Bockhold 2006 BCCA 472 ). The situations in which to consider ordering retroactive maintenance are set out in the Supreme Court of Canada decision of S(D.B.) v. G.(F.R.) 2006 SCC 37 in which the Court set out the core principles underlying child maintenance obligations which include:

a) Child maintenance is the right of the child;

b) The right to maintenance survives the breakdown of the child’s parents’ relationship;

c) Child maintenance should as much as possible provide the child with the same standard of living they enjoyed throughout their lives;

d) Specific amounts of child maintenance payable are based on the income of the payor parent. [ 30 ] The court also went on to describe the circumstances in which retroactive maintenance will be considered, namely:

a) Any delay in bringing the application;

b) The payor parent’s conduct;

c) The child’s circumstances; and

d) Any hardship a retroactive award might bring upon the payor parent. [ 31 ] The court also considered that in most cases the date that a retroactive order may be commenced is the effective date of notice to the payor parent of a request for an increase. However, in most cases, that retroactivity will date back no more than three years before effective notice was provided. POSITION OF THE PARTIES [ 32 ] Ms. H. maintains that the retroactive award should date back to 2005 or until at least January 1, 2006. She also submitted that the maintenance award should be based on the three year average income for Mr.

D. from time to time and that he could pay any arrears found by the Court to be owing in either a lump sum or monthly basis. [ 33 ] Mr. D. maintains that there should be no retroactive variation of the maintenance stating that he has always provided the Court with the best information he had and he has made all the payments as required and that given the uncertainty of his employment situation estimates of his income were the best that could be provided to the Court at the time. [ 34 ] Both Ms. H. and Mr.

D. agree that in the future they should each be required to exchange either income information on annual basis. DISCUSSION [ 35 ] It is clear from the documentary evidence that Mr. D. has not been forthright and frank with regard to his ongoing responsibility to disclosure his income to Ms. H. and to the Court. His obligation to T.J.H. includes paying maintenance at a level commensurate with his actual income, adjusted annually as that might occur. [ 36 ] On the other hand, Ms. H. was not diligent in pursuing Mr.

D. when, based on their intermittent relationship, she had some knowledge of his improving financial circumstances from time to time. [ 37 ] However, based on the law as I have described above, T.J.H. is not to be deprived of appropriate child maintenance unless some undue hardship to Mr. D. can be demonstrated. From the evidence presented Mr. D. has not made any such cogent representations in that regard. [ 38 ] Based on the evidence presented, the history of Mr. D.’s stated income, actual income, maintenance paid and maintenance due is set out below:

YEAR EST. INC. MAINT. PAID ACT. INC. MAINT.

DUE MONTHLY DIFFERENCE ANNUAL DIFFERENCE CUM DIFF. 2005-2011 CUM DIFF. 2011-2005 2004 -- -- 77,695 -- -- --- --- --- 2005 63,993 528 x 4 83,668 770 x 4 242 x 4 968 968 13,628 2006 63,993 528 96,269 875 347 4,164 5,132 12,660 2007 63,993 528 97,862 888 360 4,320 9,452 8,496 2008 63,993 528 80,504 744 216 2,592 12,044 4,176 2009 55,260 59,400 528 x 6 535 x 4 700 x 2 69,968 654 126 x 6 = 756 99 x 4 = 396 - 46 x 2 = - 92 1,060 13,104 1,584 2010 68,228 700 x 4 638 x 8 74,646 694 -6 x 4 = - 24 56 x 8 = 448 424 13,528 524 2011 74,646 638 x 2 700 x 2 -- 694 56 x 2 = 112 -6 x 2 = - 12 100 13,628 100 DECISION [ 39 ] Based on the evidence presented and the law I have described, I make the following orders:

a) Starting in 2012, on or before July 1 st of each year, the parties must exchange their completed Tax Returns, Canada Revenue Agency Notice of Assessment or Re-Assessment for the previous taxation year;

b) I determine Mr. D.’s present income to be $74,646.00 and on that basis he shall be ordered to pay maintenance in the amount of $694.00 per month for T.J.H.’s benefit to Ms. H. commencing May 1 st , 2011, and payable on the first day of each and every month thereafter until further order of the Court. If Mr. D. and Ms. H. agree those payments can be divided into two equal semi-monthly payments;

c) I determine that Mr. D. had effective notice of Ms. H.’s claim for appropriate child maintenance for T.J.H. throughout but particularly since early 2009. Taking into account the factors I have to consider as set out by the case law, I determine that an appropriate amount to fix for arrears of maintenance as at April 26, 2011 to be $10,800.00. Mr. D. will be required to pay that arrears amount at a rate of no less than $225.00 per month commencing May 1 st , 2011, and payable on the first day of each and every month until the entire amount of arrears have been retired. Mr. D. may choose to pay lump sums to Ms.

H. which would accelerate the retirement of the arrears of amount. ___________________ M. J. Brecknell Associate Chief Judge of the Provincial Court of British Columbia