J.P. v. E.M. Date:, 2016 BCPC 404

Citation: J.P. v. E.M. Date: 20161118 2016 BCPC 404 File No: 0729335 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: J.P. APPLICANT AND: E.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Appearing on their own behalf: J.P. Appearing on their own behalf: E.M. Place of Hearing: Prince George , B.C.

Date of Hearing: November 18, 2016 Date of Judgment: November 18, 2016 [ 1 ] THE COURT: This is my decision on file number 0729335, the matter of J.P. and E.M. The Court has before it today an Application brought by Mr. M. on February 22, 2016 to: a. cancel arrears, interest and penalties arising from the Court's Order of March 22, 2011; and b. to re-assess his child support obligations based on his present income. [ 2 ] Ms.

P. filed a Reply on March 24, 2016 opposing the Application. [ 3 ] The matters before the Court concern child support only for their child, E.R.M., born (omitted for publication). [ 4 ] Since Mr. M. filed his Application, time has erased some of the issues, since the Court was advised that all the arrears under the March 22, 2011 Order have now been paid, save and except for the sum of $6,435.98 on account of interest accruing on the outstanding support payments and default penalties of $800. Both Mr. M. and Ms.

P. have confirmed to the Court that those monies are presently being held by the Family Maintenance Enforcement Plan pending the decision of this Court on the Application. [ 5 ] The circumstances surrounding the March 22, 2011 Order are as follows: it was meant to be an order by consent. The Court is unable to ascertain at this time whether it was meant to be an interim order, or a final order, although the Order itself seems to indicate that it is interim with regard to access, but final with regard to everything else. Within that Order, Mr. M. was ordered to pay child support to Ms.

P. for E.'s benefit, in the amount of $930 per month. There is no mention as to whether that amount was based on the Child Support Guidelines , but for today's purposes I am assuming that it was. [ 6 ] No income was attributed to for Mr. M., but if indeed, the amount was arrived at based on the Child Support Guidelines , it would have meant that the parties agreed at that time that they had an income of $101,100 per year. In addition to that, Mr. M. was ordered to pay $400 in extraordinary expenses for E.

Those expenses were not specified for a particular purpose, but the parties have acknowledged to the Court that E. used to play both hockey and baseball, but has for the time being discontinued those activities. [ 7 ] The Order further provided that spousal support was terminated, and that arrears of support would be paid at a rate of $600 per month. The amount of the arrears were neither fixed by the Court, or divided as between support, interest, or penalties.

However, documents from the Family Maintenance Enforcement Program suggest that the arrears as of March 22, 2011 were $39,861.39, with interest until that date of a further $2,636.97 and default fees of $800. As I mentioned earlier, Mr. M. has paid the principal amount of the arrears, leaving outstanding the interest and penalties. [ 8 ] However, during the time he was paying off the arrears, the interest would have continued to accumulate on the outstanding amount until the full arrears had been paid.

Based on the information provided by the Family Maintenance Enforcement Program, it would appear that the arrears at this time, as it pertains to interest only, is $5,835.98, being the interest on the outstanding amount of $39,861.39, until the full amount had been paid. MR. M.'S FINANCIAL SITUATION [ 9 ] Although Mr. M.'s obligations to his son were based on an income of $101,000, he has not made that amount of income in any of the years since that date.

His Income Tax Returns for past years indicate the following, and he advised the Court as to where he was working on each of those occasions. [ 10 ] In 2011, he was working as a superintendent for Ledcor, but there is no Tax Return to indicate what his income was in that year; 2012 he was again working as a superintendent for Ledcor, but again there is no information before the Court as to what his income was in that year; 2013, his Tax Return indicates an income of $171,390 and at that point he was engaged as a general foreman for Ledcor; 2014, he had an income of $161,021 and he again was engaged as a general foreman for Ledcor.

In 2015, his income was $93,395, in that year he advised the Court he was working as an operator for Ledcor. [ 11 ] Mr. M. also advised the Court that a general foreman got paid less than a superintendent and from that the Court presumes that in the years 2011 and 2012, he would have been making more than a general foreman. Operators work in 2015 was taken by Mr. M. because, he advised the Court, that no foreman positions were available and he had been out of work for some time. [ 12 ] In the past years, Mr.

M. advised that he had been working in what is commonly referred to as the “oil patch", but when times turned in that sector of the economy, he had to look for other employment. In 2016, he worked for a brief period of time for Ledcor, but was laid off from that position. He then took a position with a company called Cantex and he advises that he is a superintendent of road construction for that company.

He collected employment insurance from January until May of 2016. [ 13 ] At the present time there is no accurate indication of what his total income for 2016 is or will be, so it is necessary for the Court to impute an income from the documents that are presently available. He was on employment insurance from January 1st to May 28, 2016, according to the documentation from the Government of Canada. He received a net amount of $6,334, but the net is not what the Court calculates child support based on.

By taking the tax component out of the net amount, I estimate his income during that period from employment insurance was approximately $11,000 gross. [ 14 ] In June and July he was employed by Ledcor. I estimate that to be approximately two months’ worth of work and based on the

one pay stub from Ledcor provided, I estimate the gross income for those two months to be approximately $16,000. From July to the end of November, Mr. M. said that he had been working for Cantex. Based on the pay stubs he has provided from that operation, it appears he gets paid a salary which approximates to $13,500 per month. He worked four months at that job this year, which would mean an income of $54,000. That would mean a total estimated income for him of $81,000 for 2016. [ 15 ] Mr.

M. also said that everything else being equal, he expects to be employed with Cantex throughout the construction season of 2017, which he estimates would be from May until November, which is a seven month period of full-time employment, which would result in an income estimated at approximately $94,000 for the year. [ 16 ] In the past years, Mr. M. paid the $930 he was required to pay by Court Order, even though his income fluctuated.

If he had been paying the Guideline Child Support amount for each of the years in which he was working, he should have paid approximately the following: 2013, on an income of $171,000, $1,478 per month; 2014, on an amount of $161,021, $1,405 per month; 2015, with an estimated income of $93,395, $864 per month; 2016 with an estimated income of $81,000, $758 per month; and 2017 with an estimated income of $94,000, an amount of $870 per month. [ 17 ] However, given that Mr.

M.'s income has fluctuated wildly over the past several years, the Court is entitled to look at what is described as the pattern of income over a three year period. This is provided for in s. 17 of the Child Support Guidelines . So, if one was to take a look at the year 2016 and take the average of the years 2014, 2015 and 2016, Mr. M.'s average income over that period of time would have been $111,805, which would have required him to pay child support in the amount of $1,019 per month.

For 2017, to impute an income on average over the three years of 2015, 2016 and 2017, that would result in an average income of $89,465, which would require him to pay child support in the amount of $832 per month. [ 18 ] Based on the three year averaging for the period of 2014, 2015 and 2016, Mr. M. has actually underpaid, according to the Child Support Guidelines , by $89 per month. That amount can be accommodated either by making a finding of arrears and requiring Mr. M. to pay those arrears, or by simply taking that amount for the year 2016, adding it back in to what he should be paying for 2017.

So if one was to add $832, which is the average estimated amount payable for 2017, to the $89 that he has underpaid in 2016, that would amount to $921 per month. [ 19 ] But given that the incomes for 2016 and 2017 are not yet confirmed by tax records, it would not be inappropriate to leave the amount of child support he should be paying at the present $930 per month. [ 20 ] At the time of the Order in 2011, Mr. M. was also required to pay $400 per month for what are called extraordinary expenses. Those extraordinary expenses were for hockey and baseball for E. and they are no longer expenses incurred by Ms.

P. for those uses. Ms. P. says she now uses the money for extras for E., such as clothes and lifestyle enhancements. Mr. M. objects to that, saying that it is no longer a proper expense. DISCUSSION, ARREARS, INTEREST AND PENALTIES [ 21 ] Mr. M. says the Court should cancel those amounts because he has paid the principal amount outstanding. Ms. P. says the money, if it is to be paid out from FMEP, will, for the most part, come to her with $800 being held back by FMEP for default fees. [ 22 ] The interest which has arisen arose, in part, because Mr.

M. did not pay the proper amount of support, at the proper time, until he was forced to confront the arrears in the 2011 Order. In effect, he borrowed that money from Ms. P. and, like anything else in life, if one borrows money and creates a debt interest usually accumulates until that debt is paid. [ 23 ] The default fees that the FMEP are seeking offset the cost incurred by FMEP to enforce the Court's Orders that are being ignored or not complied with and should not be lightly dismissed. [ 24 ] Ms. P. did not raise the issue or question of whether or not Mr.

M. was intentionally under-employed as described in s. 19(1)(

a) of the Child Support Guidelines . Based on the evidence presented today, I am unable to conclude that he was intentionally under- employed at any time since 2011. He worked for many years in the oil and gas industry and when that industry dried up, he sought out similar work in other fields, and he has held a position, as much as he could, both last year and this year and apparently into next year as he is able to find employment. This year and next year it is meant to be seasonal road construction. He appears to be doing what he is capable of, given his skills and experience. [ 25 ] Mr.

M. also raised the issue of him having to attend a trial arising from another child's murder. It is scheduled to start in March of 2017 and may last several months. He may suffer a reverse of economic fortune during that period of time if he attends the trial. However, the criminal justice system often operates in mysterious ways. It is possible that the trial may be adjourned or there may be a guilty plea; there are lots of variables to be considered. Therefore, my decision today does not take into account what may happen in the future or when it may occur.

If things change, for either of the parties, they can bring whatever applications they deem to be fit at that time. [ 26 ] Ms. P. wished to have the s. 7 Child Support Guidelines special and extraordinary expenses continue, but they cannot be sustained in the present amount.

Section 7 expenses are not meant to be a top-up to maintain lifestyle. They are meant to address the specific expenses set out in s. 7, namely, and I will summarize, child care expenses, proportion of medical and dental insurance premiums attributable to the child, health related expenses that exceed $100 annually for such things as orthodontia, professional counselling, social work, psychiatrist, physiotherapist, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses or contact lenses.

Extraordinary expenses for primary or secondary school education or any other educational programs that meets the child's particular needs. Expenses for post-secondary education or extraordinary expenses for extracurricular activities. [ 27 ] Most, but not all of the expenses that the $400 per month were meant to address no longer exist. However, some, such as eyeglasses and dental expenses mentioned by Ms. P. and potentially some school expenses, remain.

[ 28 ] Ms. P. also pointed to an earlier Order dated September 8th, 2010, requiring Mr. M. to pay for a cellphone for E. and advised that Mr. M. had stopped doing so in December 2015, which she says is contrary to that Order. The ongoing cost for the cellphone, she says, was $60 per month. [ 29 ] Although the parties may have interpreted the Order in a particular fashion, that is not what the Order actually requires. It is part of a larger term concerning Mr. M.'s access or parenting time with E. and was made to ensure that E. and Ms. P. could communicate when he wasn't with her.

I cannot conclude that it was meant to be an ongoing legal liability on Mr. M. However, Mr. M. did say in his evidence that he wants to be able to buy gifts and better communicate with E., so perhaps applying the costs for E.'s cellphone so that he can remain in contact with Mr. M. would be an appropriate matter for him to address and assist in that communication. Mr. M. also said that he was prepared to put E. on any health plans available to him through his employment.

DECISION [ 30 ] Madam Clerk, where applicable, I am going to mention the pick list, so A1: the child we are dealing with here is E.R.M., born (omitted for publication). [ 31 ] Mr. M.'s application to cancel the arrears of support in the amount of $6,435.98 is dismissed. If those funds are presently being held by the Family Maintenance Enforcement Program, they shall be immediately dispersed as follows: a. $800 to the Family Maintenance Enforcement Program; b. $5,635.98 to Ms. P. [ 32 ] If the funds are not being held by FMEP, Mr.

M. shall pay $350 per month towards these arrears, commencing on January 1, 2017, and payable on the first of each month thereafter, until the arrears are paid in full. [ 33 ] J1, Madam Clerk: Mr. M. is found to be a resident of British Columbia and to have a gross annual income in the following amounts for the following years: 2014, $161,021; 2015, $93,395. [ 34 ] J2, Madam Clerk: Mr. M. is found to be a resident of British Columbia and to have an imputed income in a gross amount for the following years: 2016, $81,000; 2017, $94,000. [ 35 ] Mr. M.'s application to vary the basic child support is dismissed. Mr.

M. shall pay to Ms. P. for E.'s benefit, the sum of $930 per month, commencing on January 1, 2017 and payable on the first day of each month thereafter until further court order. [ 36 ] Mr. M.'s application to vary the special and extraordinary expenses amount as described in s. 7 of the Child Support Guidelines is granted. Mr. M. shall pay to Ms. P. the sum of $120 per month for special and extraordinary expenses, commencing January 1, 2017 and payable on the first day of each month thereafter until further court order. [ 37 ] No later than December 31st, 2016, Mr.

M. shall enroll the child in all health plans available to him through his employer, and shall provide to Ms. P. documentary proof of the plans that are available, what they cover, and the reimbursement policy. [ 38 ] K2, Madam Clerk: For so long as the child is eligible to receive child support, Mr. M. will provide copies of his respective Income Tax Returns for the previous year, including all attachments, not later than July 1 each year, and copies of any notice of assessment or reassessment provided to him by Canada Revenue Agency, immediately upon receipt. [ 39 ] K3, Madam Clerk: Under s. 213(2)(

d) of the Family Law Act , Mr. M. will pay $1,000 to Ms. P. if he fails to file the financial information in accordance with this order. This award is in addition to and not in place of any other remedy. [ 40 ] Now, folks, you will note that I have made these Orders to commence on January 1st. The Order of 2011 remains in effect for the month of December, the new Order will come into effect on January 1st. [ 41 ] You will receive a copy of the Order in the mail as soon as it has been typed up by the clerk and signed by me. That is probably going to be about ten days to two weeks from now.

Madam Clerk, I will direct that a copy of the Order be sent directly to Family Maintenance Enforcement Program. (REASONS FOR JUDGMENT CONCLUDED)