C.A.K. v. B.D.K., 2018 BCPC 404

Citation: C.A.K. v. B.D.K. 2018 BCPC 404 Date: 20180201 File No: 0525673 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.A.K. APPLICANT AND: B.D.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for C.A.K.: J. Thorne Appearing in person: B.D.K. Place of Hearing: Prince George , B.C. Date of Hearing: November 27, 2017 Date of Judgment: February 1, 2018

[ 1 ] This is an application by Mr. K. to cancel arrears of child support. Mr. K. was not represented by counsel. It became evident in the course of the proceeding that Mr. K. effectively sought to retrospectively vary the terms of an earlier child support order to reflect his actual income for the period 2007 to date which would necessarily have the effect of reducing arrears accumulated under that order. [ 2 ] The parties married in 1997 and separated in 2005. They only have one child, L.K., born [omitted for publication], who has always resided with Ms. K. Mr.

K. has had limited contact with his daughter since separation. L.K. turned 19 years old on [omitted for publication] and her circumstances are not such that she would meet the criteria for continuing to be eligible for support. Accordingly, Mr. K.’s obligation to pay child support ceased [omitted for publication]. [ 3 ] Pursuant to a Final Order pronounced April 13, 2006, which found Mr. K. to have an annual income of $56,252.70, Mr.

K. was ordered to pay child support in the amount of $478 per month in accordance with the Child Support Guidelines , plus annual special expenses of $326.20 for L.K.’s extracurricular activities (the “Child Support Order”). The commencement date for payment of child support was backdated to December 1, 2005. [ 4 ] The Child Support Order was enrolled with the Family Maintenance Enforcement Program (“FMEP”). According to FMEP’s records, which are not contested, Mr.

K. had $3,824 of child support arrears at the time of enrollment due to his failure to make any of the $478 monthly payments for the time period December 1, 2005 to July 1, 2006. Mr. K. continued to fail to make his child support payments regularly after enrollment. For the balance of 2006 he only paid $435. He paid $1,756.10 in 2007, and nothing from 2008 to 2014. He paid $6,128.25 in 2015, $132.64 in 2016 and $179.25 in 2017. He has paid a total of $8,631.24 in child support since the order was made. [ 5 ] Under the terms of the Child Support Order, Mr.

K. has accumulated child support arrears of $51,441.40 before taking into account any interest or FMEP default fees, calculated as follows: • 2005/2006: $5,854 owed, $435 paid, net arrears of $5,419.00 • 2007: $5,376 owed, $1,756.10 paid, net arrears of $3,619.90 • 2008: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2009: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2010: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2011: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2012: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2013: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2014: $5,376 owed, nothing paid, net arrears of $5,376.00 • 2015: $5,376 owed, $6,128.25 paid, net arrears of ($752.25) • 2016: $5,376 owed, $132 paid, net arrears of $5,244.00 • 2017: $458 owed, $179.25 paid, net arrears of $278.75 TOTAL ARREARS $51,441.40 [ 6 ] Mr.

K. is also in arrears of his obligation to pay $326.20 per year towards L.K.’s softball, skating, and swimming classes. No evidence was adduced indicating whether L.K. continued to engage in any of these activities since the Child Support Order was pronounced or otherwise required contributions of S. 7 expenses. Mr. K. is $3,262 in arrears on these expenses. At this hearing Ms. K. stated she is only pursuing arrears of child support and is not seeking payment of historical s. 7 expenses. Issues [ 7 ] The issues I must decide are:

a) what income ought to be attributed or imputed to Mr. K. from January 1, 2007 until [omitted for publication];

b) whether or not the Child Support Order should be retroactively varied to reflect Mr. K.’s historical income; and

c) what arrears of child support and interest, if any, ought to be payable to Ms. K. Mr. K.’s Historical Income [ 8 ] Mr. K. explained that his failure to pay child support was linked to a significant period of economic hardship he suffered after being injured at work. He was homeless for a lengthy period and did not turn his mind to his obligations under the Child Support Order or addressing its terms. Once he returned to work in 2015, FMEP commenced enforcement proceedings against him for the arrears, prompting him to make this application. [ 9 ] Mr.

K. testified that on or about 2005 he was working as a lumber grader at a mill in Merritt earning $29.83 per hour for a 40 hour work week. His 2005 income, which was found to be $56,252.70 on April 13, 2006, was based on that employment. [ 10 ] In 2007, Mr. K. developed carpal tunnel syndrome in his wrists and elbows which made it impossible to work as a lumber grader as this job required repeatedly flipping over large volumes of boards every day. Mr. K. had surgery in August 2007, and took time off work while he recovered. He collected short term disability for around 12-14 weeks. According to Mr.

K, he was unable to obtain a clearance letter from a specialist to meet his employer’s criteria for a return to work, so he was given a Record of Employment and laid off permanently after his disability payments ended. The surgery was unsuccessful. The surgeon attempted to correct his carpal tunnel by relocating nerves in his elbow, but this resulted in Mr. K. having two fingers which lock up. He still suffers from the painful effects of his carpal tunnel syndrome. [ 11 ] Mr. K. acknowledges that he was working until his surgery in 2007, and collected around $6300 in disability income for the last

quarter of 2007. He did not file an income tax assessment notice or return for 2007. It was agreed by the parties that Mr. K.’s 2007 income for the purpose of these proceedings was $48,489.53. [ 12 ] Mr. K. testified that after his disability payments ran out he became unemployed, homeless, and living on the streets. He explained that once homeless it became very difficult to try and secure other employment due to his lack of address and stability. FMEP withheld his driver’s license as part of its enforcement action which significantly hampered Mr.

K.’s ability to obtain employment as he could not secure transportation to worksites. Mr. K. says he developed “mental issues” from the stress of his situation and “gave up on life.” He did not take steps to collect social assistance. I understand Mr. K.’s description of his attitude and persistent homelessness at the time to reflect a generally depressive mental state. [ 13 ] Mr. K.’s tax returns show that from 2008 until 2012 Mr. K. had zero income. The Court file also shows that in 2010 FMEP attempted to commence default proceedings against Mr. K. but were unable to locate Mr. K. to serve him.

I find that consistent with Mr. K. being homeless and devoid of any stable social connection, such as a regular employer or social service agency. [ 14 ] In 2013, Mr. K. got a job with a friend who owns a small renovation company working as a construction labourer. His work is intermittent depending on what project is available. Mr. K. is still impacted by the effects of his carpal tunnel syndrome and disability in his fingers, but Mr. K’s friend is accommodating of his physical limitations. Mr.

K. testified that once he got “back on his feet” in 2013, he contacted FMEP about his situation and the support arrears but was unable to reach a satisfactory arrangement with them. FMEP started attaching Mr. K.’s wages in 2014. Mr. K. eventually made this application in January 2017, at the suggestion of FMEP. [ 15 ] Mr. K. says he earns $20 per hour as a construction labourer. The Notices of Assessment attached to his Financial Statement show he earned $4,950 in 2013, $28,007 in 2014, $37,776 in 2015, and $22,692 in 2016. His child support obligation ended January 10, 2017.

Despite earning income in these last 4 years, Mr. K. has not made any voluntary child support payments and all payments were obtained as a result of enforcement action by FMEP. [ 16 ] Ms. K. concedes that Mr. K’s child support obligation for the years 2007, 2014, 2015, and 2016/2017 should be adjusted to reflect his actual income in those years. She takes issue with Mr. K’s reported of income of zero from 2008-2012 and $4,950 in 2013, and argues Mr. K. should not be absolved of his responsibility for paying child support in those years. [ 17 ] Ms. K. is a heavy equipment operator. She has since remarried.

She testified that she worked as a labourer after separation until 2013 when she went on disability. She was re-trained as a heavy equipment operator through programs offered by EI. [ 18 ] Ms. K. argues that I should infer that Mr. K. was working under the table for cash during the years where he claimed to have no or little income. I have no evidence of that, and Mr. K. denied working under the table after the parties separated. Even if Mr.

K. was picking up some extra income for small cash jobs from 2008-2014, I find it unlikely this revenue would have brought his baseline income up to the minimum threshold amount necessary under the Child Support Guidelines to trigger a parent’s child support payment obligations, especially given his physical limitations. In the time period at issue, that threshold amount was $13,000, which corresponded to a monthly payment obligation of $39. [ 19 ] Ms. K. challenged Mr. K. about not taking further steps to correct his carpal tunnel syndrome. Mr.

K. explained he has difficulty getting to see specialists in Kamloops, and in any event, he does not want to undergo surgery again. Based on his past surgical experience and discussions with others who have undergone the same surgery, Mr. K. fears he could come out of surgery more disabled than when he went in. In the circumstances I find Mr. K.’s rationale for declining to undergo further surgeries to be reasonable. [ 20 ] Ms. K. also questioned Mr. K. about his other employment skills.

He took an automotive course through the College of New Caledonia and knows his way around cars but is not a certified auto mechanic. He also worked in 2004 and 2005 as a painter, installed insulation, and spent time working on tree farms. I note these are all labour intensive jobs some of which, like auto mechanics, require finger dexterity. Mr. K. had an airbrakes license in 2007 but FMEP withheld it as part of its enforcement action and Mr. K. is unsure if it has now expired. [ 21 ] I find Mr.

K.’s ability to work was negatively impacted by his physical and mental disabilities and FMEP’s decision to withhold his driver’s license, making it more difficult for Mr. K. to get to worksites. I agree with Ms. K. that Mr. K.’s physical disability and lack of a driver’s license did not make him totally unemployable, however, I am satisfied that Mr. K. was in fact depressed, homeless, and in not in a sufficiently healthy mental state to meaningfully seek out and maintain employment from 2008 until 2014.

I do not believe a person would relegate themselves to a state of abject poverty and homelessness except in the most extreme of circumstances. This is not comparable to situations where a parent works just enough to meet their basic needs, or relies on a partner to meet those needs, and chooses to be underemployed without regard to their support obligations. Mr. K. was not sufficiently functional during that time to apply for social assistance. It is difficult to conceive how, in those circumstances, it could be said he was of sufficient state of mind to work. [ 22 ] I find Mr.

K’s historical annual guideline income to be as follows: • December 1, 2005 and 2006: $56,252.70 • 2007: $46,489 • 2008-2012: $ 0 • 2013: $4,950 • 2014: $28,007 • 2015: $37,776 • 2016 and January, 2017: $22,692

Should the Child Support Order be Retroactively Varied? [23] Mr. K. agrees he ought to pay child support back to December 1, 2005, however, he argues that his payment obligation shouldreflect his actual guideline income for the years 2006-2015, not the previously ordered amount of $478 per month which was based onan income of $56,252.70.

Those calculations would be as follows: • 2005/2006 (13 mos): income of $56,252.70; $478 per month ordered • 2007: income of $46,489; $451 per month guideline amount • 2008-2012: income of $0; no child support payable • 2013: income of $4,950; no child support payable • 2014 - income of $28,007; $249 per month guideline amount • 2015 - income of $37,776; $345 per month guideline amount • 2016/17 (13 months) - income of $22,692; $196 per month guideline $6,214 $5,412 $0 $0 $2,988 $4,140 $2,548TOTAL $21,302 [24] If the Court were to retroactively vary Mr.

K.’s Child Support Order to reflect his actual income as proposed, having already paid$8,630.60 this would reduce his arrears to $12,671.40 before any adjustment for interest. [25] While Mr. K. indicated on his application that he wishes to reduce or cancel arrears, it was clear from his submissions andconcessions that he is in fact seeking to retroactively vary the Child Support Order based on a material change in circumstances, namely,the significant decline in his actual income from 2007-2017. He agrees he ought to pay arrears of Child Support, in full, based on hisactual historical income. Mr.

K.’s application is properly characterized as being brought under s. 152 of the FLA, which provides: 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively orretroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it intoconsideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support wasmade; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [26] Ms. K. argues Mr. K.’s application ought to be properly characterized as being brought under s. 174 of the Act, which states: 174

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousalsupport 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 itwould 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 FamilyMaintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [27] There is some question as to whether the “gross unfairness” test articulated in s. 174 of the Act applies to applications toretroactively reduce a child support award, as opposed to applications to cancel arrears without finding that a lower child support amountwas historically payable. In Bowes v. Bowes, 2010 BCSC 63 and Beavis v. Beavis, 2014 BCSC 422 relied upon by Ms.

K, the Court heldthat in addition to a change in circumstances, the applicant must establish “gross unfairness” as contemplated in Earle v. Earle, (BCSC) before the Court may retroactively reduce the amount of child support payable and reduce arrears accordingly.However, those cases were decided before the decision of the Court of Appeal in G.P.W. v. D.M.W., 2014 BCCA 282, which holds thatthe proper test in such applications is as articulated by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37.

G.P.W. wasdecided under the Divorce Act, however, Schultes, J. found that its principles were equally applicable to applications under the FLA inN.M. v. G.M., 2015 BCSC 1732, explaining at paras. 35-37: [35] The Supreme Court of Canada dealt comprehensively with application to retroactively vary support orders in D.B.S. v. S.R.G.;L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 , [2006] 2 S.C.R. 231 [D.B.S.].

Although D.B.S. dealtwith applications by a recipient parent to retroactively increase the amount of support being paid, our Court of Appeal has made it clearthat the same analysis applies to an application by a payor to reduce support: G.M.W. v. D.P.W., 2014 BCCA 282 at paras. 40-44. In

G.M.W. Madam Justice Smith summarized the relevant considerations when applying D.B.S. to such a situation: [42] The Court [in D.B.S. ] went on to identify four factors to be considered in determining the appropriateness of such an order: (

i) the circumstances surrounding the delay in bringing the application; (ii) the payor parent's conduct; (iii) the children's circumstances; and (iv) any hardship caused by a retroactive child support order. [43] A finding of unreasonable delay will militate against a retroactive child support award (para. 104). Similarly, a payor parent's blameworthy conduct, defined as "anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support" will also militate against a retroactive order (paras. 106-109).

The circumstances of the children are also relevant in order to ensure that they receive the benefit of a support order to which they are entitled, in a timely manner (paras. 110-113). Lastly, consideration of the hardship that may be occasioned by a retroactive order is not limited to the payor parent (paras. 114-116). [36 ] D.B.S. dealt with cases both under the Divorce Act and under provincial legislation, so its principles are applicable to Mr. M.'s situation. [37] Although a retroactive variation would have the effect of reducing Mr.

M.'s arrears, such an application can be distinguished from an application to reduce or cancel his arrears "as they stand" (that is, without any finding that the amounts that he was required to pay in the past should have been lower), pursuant to s. 174 of the FLA . In that situation there can be no reduction or cancellation unless it would be "grossly unfair" not to do so: A.B.Z. v. A.L.F.A. , 2014 BCSC 1453 at paras. 233-237 .

There has been some uncertainty on this point, with decisions suggesting that all retroactive reductions of support must fall within the regime of applications to reduce or cancel arrears (see for example Luney v. Luney , 2007 BCCA 567 at para. 47 and Semancik v. Saunders , 2011 BCCA 264 at para. 33 ), but I think that the decision in G.M.W. has resolved it in favour of the distinction I have described. [ 28 ] Justice Schultes’ reasoning in N.M. was subsequently adopted by the Court in C.A.O. v. P.A.O, 2017 BCPC 361 , at par. 88 ; Sijercic v. Kazic, 2016 BCSC 186 at par. 63 ; and M.H. v.

A.M. , 2016 BCSC 1664 at par. 170 , which all hold that in the case of an application for a retroactive reduction of support based on a change of circumstances, it is necessary to consider the four factors set out in D.B.S. , namely: (

i) the circumstances surrounding the delay in bringing the application; (ii) the payor parent's conduct; (ii) the children's circumstances; and (iv) any hardship caused by a retroactive child support order. [ 29 ] Earle continues to be applied by the Court in cases where a payor seeks to reduce or cancel arrears for hardship type of considerations without seeking retroactive reduction of the child support amount based on historical levels of income (see for example, McCarthy v. McCarthy, 2015 BCCA 4960 ). [ 30 ] Ms. K. relies on N.M. B. v.

G.J.B., 2016 BCPC 272 , in which the Court affirmed its authority under s. 152(2) of the FLA to retroactively reduce child support (and, accordingly, any accumulated arrears) in circumstances where the payor had been laid off and was on EI, unable to find employment for the preceding 9 months. Ms. K. submits this case stands as authority that I should impute income to Mr. K. on the basis that he is a “skilled experienced tradesman” who was capable of earning income at casual jobs between periods of employment.

In that case, however, the payor was a union hall tradesman who had been laid off and was expecting to be fully employed in the near future. The facts are distinguishable from this case, where Mr. K.’s ability to work was impaired by the development of a physical disability and, as I have found, a period of mental disability associated with his homelessness. [ 31 ] Ms. K. argues I should find Mr. K. simply did not do enough to employ himself and support his child.

It is argued that he ought to have taken steps to find employment before he descended into a state of homelessness, or should have worked with EI to re-train for a new profession. Ms. K. submits that because he did not take those steps I should ignore his actual economic circumstances from 2007- 2013 and impute an annual income to him in the amount of $22,000. [ 32 ] I am not convinced Mr. K. had the ability to earn an income during that time period. Homelessness creates significant barriers to obtaining employment.

I accept that someone who is psychologically defeated to the extent that he cannot even take the requisite steps to obtain social assistance to meet his basic needs is likely not in a mental state conducive to finding and maintaining employment. [ 33 ] Ms. K. also relies on the decision of Sewell v. Sewell , 2012 BCSC 1562 in which Tindale, J. imputed income to a payor who failed to explain why he was unemployed and underemployed for a number of years. In this case, I have an explanation from Mr. K. under oath, which I accept, and which is supported by reliable financial information.

Material Change in Circumstances [ 34 ] I find that Mr. K.’s development of a physical disability, followed by his lengthy period of unemployment, homelessness and mental disability, does constitute a material change in circumstances that was protracted and significant. His reduced ability to work due to his physical disability continues to be an enduring material change in circumstances from the time the original order was made. I am satisfied that had Mr.

K.’s economic and personal circumstances been brought to the attention of the Court during the relevant time period, the Court would have made a different support order. Given his disability, there is no reason to believe Mr. K. will earn a significantly higher income in the future which would enable him to pay large sums of arrears. Circumstances Surrounding the Delay In Bringing The Application [ 35 ] I find that Mr. K.’s descent into unemployment and homelessness occurred quite rapidly over the last quarter of 2007. Once he was in that state, I accept that Mr.

K.’s life and mental condition became highly dysfunctional. The urgency in meeting his immediate

basic needs would have significantly distracted from attending to his legal obligations under the Child Support Order. I am satisfied that given he was too defeated to even apply for social assistance, he did not possess the requisite mental state to undertake a complicated variation application in a court proceeding. I find he had a reasonable explanation for not making the requisite variation application from 2008-2013. Once Mr. K. started working again in 2014 he should have brought this application more promptly, however, I accept that Mr.

K. first attempted to deal with the issue by negotiating with FMEP directly and only brought the application once it was clear no arrangement could be made on a mediated basis. The Payor Parent's conduct [ 36 ] Mr. K.’s conduct has been less than satisfactory to the extent he has made almost no voluntary payments of child support since the Child Support Order was made. He made only one voluntary payment during the two year period when he was working from 2006- 2007, and made no voluntary payments once he resumed regular employment in 2014. Mr.

K. has not paid sufficient attention to his obligations to his daughter when he was in a position to pay support. That being said, it is not a case where Mr. K. has taken steps to deliberately avoid his obligations or has been living comfortably while his children struggled. Since resuming regular work in 2014 he has been living off a meagre income with no other means of support. In my view, Mr. K’s failure to pay support when he had the means to do so can be fairly addressed through the imposition of interest on those arrears which remain payable.

The children's circumstances [ 37 ] L. turned 19 over one year ago and no longer requires support. At this stage payments of arrears would be to compensate Ms. K. for assuming sole financial responsibility for the parties’ daughter for most of her life. L. will not directly benefit from the payment of any large arrears of maintenance. Any hardship caused by a retroactive child support order [ 38 ] There is no suggestion that Ms. K. or L. would suffer hardship if the Child Support Order were retroactively varied to reflect Mr. K.’s historical income. There is no evidence Ms.

K. is suffering financially or that she needs $54,000 in arrears payments to address costs she has incurred for L. since 2006 in expectation the full amounts would be paid. Ms. K. has remarried and has employment as a heavy equipment operator. She has demonstrated great resourcefulness in providing for the couples’ daughter without any contribution from Mr. K. In saying this, I do not suggest that Mr. K. ought to benefit from his own failure to meet his support obligations over such a lengthy period of time. Rather, I merely find there is no evidence of undue hardship which would warrant requiring Mr.

K. to pay large arrears of maintenance which were based on a substantial level of income that he in fact did not earn. Gross Unfairness [ 39 ] In light of G.M.W. and subsequent decisions as cited herein, I doubt that it is necessary for Mr. K. to establish it would be grossly unfair not to reduce or cancel arrears given the nature of this application. However, if such criteria applies, I find Mr. K. has satisfied that onus.

Given his income during the relevant time period, I find he was unable to pay $478 per month given his level of income, lack of assets, and absence of any other means of support, such as a supporting family member or partner. Mr. K. is 55 years old. Given his current annual income of around $23,000, it would take a lifetime to pay off arrears of $65,500. The interest alone on this sum, as calculated by FMEP, is $127.50 per month. I find he has an inability to pay this quantum of arrears in the future.

I also find it would be grossly unfair not to cancel arrears of support in circumstances where his historical inability to pay arose from a career ending injury and lengthy period of impoverishment and homelessness. [ 40 ] I find that the Child Support Order ought to be retroactively varied to state that Mr. K., a resident of British Columbia, was to pay Ms. K. in the following sums for the following time periods for the support of the child, L.K.:

a) From January 1 until December 31, 2007 Mr. K.’s guideline income is found to have been $46,489 and he was to pay Mr. K. $451 per month;

b) From January 1, 2008 until December 31, 2012 Mr. K.’s guideline income is found to have been $0 and no child support was payable;

c) From January 1 until December 31, 2013 Mr. K.’s guideline income is found to have been $4,950 and no child support was payable;

d) From January 1 until December 31, 2014 Mr. K.’s guideline income is found to have been $28,007 and he was to pay Mr. K. $249 per month;

e) From January 1 until December 31, 2015 Mr. K.’s guideline income is found to have been $37,776 and he was to pay Mr. K. $345 per month; and

f) From January 1, 2016 until [omitted for publication] Mr. K.’s guideline income is found to have been $22,692 and he was to pay Mr. K. $196 per month. What Arrears of Child Support are Payable? [ 41 ] Mr. K. has accumulated arrears on all amounts of unpaid child support which I have found to be payable based on his actual historical income, as follows:

2005/2006: $6,214 owed, $435 paid, net arrears of 2007: $5,412 owed, $1756.10, net arrears of 2008-2013: $0 owed; net arrears of 2014: $2,988 owed, $0 paid, net arrears of 2015: $4,140 owed, $6,128.25 paid, net arrears 2016/2017: $2,548 owed, $311.25 paid, net arrears of $5,779.00 $3,655.90 $ 0 $2,988.00 ($1,988.20) $2,236.75 TOTAL $12,671.40 [ 42 ] I am not satisfied that it would be grossly unfair not to cancel interest on arrears which Mr. K. is liable to pay. Mr.

K. has not provided any compelling justification for failing to pay support when he was working, and he has made virtually no voluntary support payments since the Order was made. [ 43 ] Mr. K. was required to pay a total of $11,626 in child support prior to his descent into homelessness in late 2007, of which he had paid only $2,191.10. His total arrears accumulated as of December 31, 2007 were $9,434.90. As the order was registered with FMEP, a rate of 3.2% interest is appropriate. He paid $6,128.25 towards those arrears in 2015, reducing them to $3,306.65.

The total interest owing on those arrears is ($9,434.90*3.2%*9 years) = $2,717.25, plus ($3,306.65*3.2%*1 year) = $86.95, for total interest on the 2007 arrears of $2,804.40 . For 2014, Mr. K. accumulated $2,988 in arrears, amounting to interest from then to the date of this application of ($2,988*3.2%*3 years) = $286.84. For 2015, Mr. K. accumulated arrears of $4,140, amounting to interest of ($4,140*3.2%*2 years) = $264.96.

I find the total amount of interest owing on arrears to be ($2,804.40+$286.84+$264.96) = $3,356.20 [ 44 ] In all of the circumstances I find no default fees are payable to FMEP. [ 45 ] I find that as of the date of this order, Mr. K.’s total arrears owing under the Child Support Order, as varied, to be $12,671.40 in principal plus $3,356.20 in interest, for a total of $16,027.60 in arrears inclusive of principal, and interest. Mr. K. agrees he can pay arrears to Ms. K. in the amount of no less than $300 per month until the arrears are paid in full. Orders [ 46 ] The Order of Judge D.

O’Byrne pronounced April 13, 2006 is varied as follows: 1. Mr. K., is found to be a resident of British Columbia with an annual income under the Child Support Guidelines as follows:

a) From January 1 until December 31, 2007: $46,489;

b) From January 1, 2008 until December 31, 2012: $0;

c) From January 1 until December 31, 2013: $4,950;

d) From January 1 until December 31, 2014: $28,007;

e) From January 1 until December 31, 2015: $37,776; and

f) From January 1, 2016 until January 10, 2017: $22,692. 2. Mr. K. shall pay the following amounts to Ms. K. for the support of the child, L. K. born [omitted for publication], commencing the first day of January and continuing on the first day of each and every month thereafter as follows:

a) From December 1, 2005 until December 31, 2006: $478;

b) From January 1 until December 31, 2007: $451;

c) From January 1, 2008 until December 31, 2013: $0;

d) From January 1 until December 31, 2014: $249;

e) From January 1 until December 31, 2015: $345; and

f) From January 1, 2016 until January 10, 2017: $196. 3. The arrears of child support and special expenses owing from Mr. K. to Ms. K. as of December 1, 2005 are $16,027.60 including principal and interest. 4. Mr. K. will pay to Ms. K. a minimum of $300 per month towards arrears of maintenance commencing March 1, 2018 and continuing on the first day of each month thereafter until the arrears are paid in full or further Court Order. ___________________________

The Honourable Judge C. Malfair Provincial Court of British Columbia