S.V.C. v. P.M.D., 2019 BCPC 256

Citation: S.V.C. v. P.M.D. 2019 BCPC 256 Date: 20191101 File No: 10423 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.V.C. APPLICANT AND: P.M.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK

Appearing in person: S.V.C. Counsel for the Respondent: D. Cho (Articled Student) Place of Hearing: Abbotsford , B.C. Date of Hearing: October 18, 2019 Date of Judgment: November 1, 2019 Introduction [ 1 ] The Applicant, S.V.C., and the Respondent. P.M.D., are the parents of S.M.D., who was born on [omitted for publication]. S. will turn 19 years of age next [omitted for publication]. As the current circumstances exist, child support obligations for S. will end on her next birthday. [ 2 ] There is now a child support order in place requiring the Respondent to pay child support to the Applicant.

The reality of the situation seems to be that since sometime in early 2018, S. has been living primarily with the Respondent. This is acknowledged by almost everyone. Both the Respondent and S. say that she has been living primarily in the Respondent’s home since January of 2018. The Applicant’s mother recalls that S. moved into her dad’s home sometime around her birthday [omitted for publication]. Only the Applicant disputes this. [ 3 ] The Respondent is asking for two changes to the existing court orders.

Firstly, he would like the child support adjusted so that his payments terminate from and after January of 2018, with appropriate credit being given for the child support payments he has made. Next he is asking for an order requiring the Applicant to pay him child support, as the child’s primary caregiver, from and after January of 2018. Finally, he says that it is impossible for him to parent collaboratively with the Applicant because of her severe anger problem. He asks for an order giving him all parental responsibilities for S. until she reaches adulthood.

The Applicant is opposed to all of this. [ 4 ] Following is a

summary of the evidence presented at the hearing of this matter and the reasons for the order now being made.

Summary of Evidence [ 5 ] The Applicant is 51 years of age and the Respondent is 65. According to his evidence, the two began a common law relationship sometime in 2000 that ended about five years later. While they were living together S. was born. After they separated S. remained in the Applicant’s care. On March 22, 2005, an order was made by the Honourable Judge R. B. Caryer of this Court which imputed to the Respondent an annual income of $54,396.44. He was ordered to pay the Applicant monthly child support of $463 until further order of the court.

That order appears to have remained in place until August 6, 2009, at which time it was changed. The Honourable Judge C.G. Maltby of this court reduced the Respondent’s monthly child support payment to $370 after imputing an annual income to him of $40,000. The reduced payment commenced as of September 1, 2009. Also at that time, Judge Maltby found that the Respondent was in arrears of child support in the amount of $14,197.94. [ 6 ] Things changed in early 2018.

The evidence is clearly accepted by everyone (except for the Applicant) that S. left the Applicant’s home and went to live primarily with the Respondent. Everyone does not agree precisely as to when this happened. In an affidavit filed with the court, S. says that she has been living with the Respondent since January of 2018. This matches the Respondent’s recollection. The Applicant’s mother thinks that S. moved into the Respondent’s home sometime around her birthday in [omitted for publication] of 2018. The Applicant says that the Respondent is lying about this.

She claims that S. has been coerced into signing a false affidavit. When her mother was called as the Applicant’s own witness and gave her evidence, the Applicant became upset with the witness and had to be admonished for attempting to pressure her own witness. She told her witness “you must mean 2019!” Her mother disagreed, and was clear that the move had taken place in early 2018.

The evidence is clear that S. has been living primarily with the Respondent since early 2018 and the Applicant’s aggressive denial of this fact does not alter that reality. [ 7 ] The Respondent testified that the child left the Applicant’s home because of the Applicant’s problems with anger. In the Respondent’s evidence, he said that S. called him and was very upset because she reported that the Applicant was having “a tantrum”. S. told him that “she had to leave”. He said that he thought that things might calm down and that S. might change her mind, but she has not done so.

In her affidavit, S. says that she left the Applicant’s home because “my mother and I had our differences.” The Applicant’s mother appears to have a close relationship with her granddaughter. She testified that “right now S. just wants to stay in [omitted for publication]” (where the Respondent lives). [ 8 ] The Applicant is currently living in her mother’s home.

The Applicant’s mother testified that the strain in the relationship appears to be continuing because S. comes to visit her grandmother at times when the Applicant is not home, often at lunch time when the Applicant is at work. [ 9 ] The Applicant’s evidence was in direct contradiction to much of that presented by the other witnesses, including her own mother. She claims that S. was “forced to say” that she is living with the Respondent. The Applicant attributes her excitable nature and her deep anger to outrage over the Respondent’s behaviour.

She took offence to the suggestion that perhaps she throws around the term “liar” too liberally to describe those who disagree with her. She accuses the Respondent of all manner of sins including criminal activity, hiding income, and being an alcoholic, but is unable to offer any supporting evidence of this. Her anger was even directed at Mr. Cho, counsel for the Respondent, despite the fact that Mr.

Cho cross-examined the Applicant and her mother in a very gentle and respectful manner. [ 10 ] The Respondent argues that the Applicant’s inability to manage her anger is an impediment to a sharing of parental responsibilities. He alleges that the Applicant has attended at his home in a rage demanding money from him. This accusation was corroborated by the Respondent’s boarder, Mr. F., who testified to seeing the Applicant act in this manner. He also confirmed that S. moved into the Respondent’s home sometime in early 2018. [ 11 ] S. presents as a very mature, accomplished and industrious young woman.

She has graduated from grade 12 and works full-time

as a nanny for a family in [omitted for publication] where she cares for three small children when their parents are at work. In her affidavit S. expresses a reluctance to get in the middle of her parents’ conflict. She says that the Respondent has not discussed court proceedings with her, but is silent on the question of whether or not the Applicant has done so in the past. The Applicant would like S. to attend for counselling, but the Respondent does not see this as necessary. [ 12 ] The parties have filed financial statements earlier this year.

In a financial statement filed on April 30, 2019, the Respondent swore that his annual income was $8,533.03 from pension income. The Applicant believes that he is hiding income. She also points to some disingenuousness on the part of the Respondent when he swears in his financial statement that the five acre piece of property that he lives on in [omitted for publication] is worth only $212,000. This does not sound credible and I suspect that if he was to list his property at that price, most buyers would consider this a steal.

He says that was the value set out on the municipal assessment, but when asked what he really thought it was worth, he could not be pinned down to a true value. [ 13 ] The Applicant swears in her financial statement (sworn on August 27, 2019) that she earns approximately $32,392 per year. This accords with her notice of assessment from the Canada Revenue Agency for the tax year of 2018. [ 14 ] There is an issue about whether or not the Respondent has been properly credited for all of the child support payments he has made. The Respondent has been in the habit of making some of his child support payments in cash.

He wisely had the Applicant give him a receipt for each payment he made. He is alleging that the Applicant received $30,240 of child support payments that have not been credited on the statement of arrears provided by the Family Maintenance Enforcement Program (FMEP). The FMEP statement calculates the arrears of child support and other charges owing by the Respondent to be $23,313.59 as of October 8, 2019. [ 15 ] There are some obvious problems with the FMEP statement.

Firstly, it presumes that S. has been primarily in the Applicant’s care for the past two years, something that is contradicted by the evidence in this case. Secondly, it appears that many of the payments which the Applicant has acknowledged receiving have not been credited on the FMEP statement. I have compared the receipts submitted by the Respondent in evidence, and the payments credited by FMEP on their statement.

For the purposes of the application now before the court, I am only considering those payments made after August 6, 2009 (the day on which Judge Maltby made an order recalculating the arrears of child maintenance.) [ 16 ] The following

summary compares the payments for which the Respondent has provided receipts (or which include direct payments to FMEP) with those which the Applicant reported to FMEP. For the calendar year 2009 (after the August order was made) the Respondent is not claiming that any payments he made were not included in the FMEP calculations. 1. For 2010, the Respondent has provided receipts for payments totalling $5,060. The FMEP statement shows that the Applicant reported payments of $7,247.01, and so there does not appear to be any overpayment for this calendar year. 2.

For 2011, the Respondent has provided receipts for payments acknowledged by the Applicant totalling $9,600. The FMEP statement only acknowledges payment of $6,550, meaning that the Respondent is due a credit on the arrears for 2011 in the sum of $3,050. 3. For 2012, the Respondent has provided receipts for payments totalling $5,300. FMEP credits him with having paid $5000, so it appears that the Respondent is due a credit of $300 for 2012. 4. For 2013, the Respondent has provided receipts for payments totalling $3,870.

The FMEP statement shows no payments made for that year, so makes it appear that the Respondent is due a credit on the arrears of $3,870. [ 17 ] The Respondent did not provide any receipts after 2013.

For the years from 2009 (after the order reducing the arrears) until the end of 2013, the evidence suggests that the Respondent paid the Applicant (and the Applicant acknowledged receiving) $7,220 in child support payments that were not credited on the FMEP statement of arrears. [ 18 ] The FMEP statement of arrears shows that at the end of January 2018, FMEP calculated the balance owing by the Respondent to the Applicant for child support and other charges to be $14,067.79.

From and after February 1, 2018 (the next payment date after which S. says she was no longer residing with the Applicant), FMEP continued to assess arrears of child maintenance against the Respondent, even though S. was living primarily in his home. The Applicant did not confirm the change of residence with FMEP. While some leeway might be given to account for the possibility that S. might someday change her mind and return to live with the Applicant, at some point the Applicant ought to have informed FMEP that S. was no longer living with her and that arrears of child support should stop accruing.

She did not do so. The balance claimed to be owing to FMEP as of October 8, 2019 is $23,314.59. But this amount includes $9,246.68 that accrued during the time that the Respondent was S.’s primary caregiver. [ 19 ] On October 2, 2019, the FMEP Program cancelled the Respondent’s driver’s license, despite the fact that he had been S.’s primary caregiver for over 20 months. [ 20 ] Since S. has been living in the Respondent’s home, the Applicant has not been paying the Applicant any child support.

This is understandable, given that initially the parties were unsure how long S. would stay in her father’s home, and given that the Respondent was in arrears of child support. Under the federal Child Support Guidelines, a payor parent with an annual income of $32,392 is obliged to pay the other parent a monthly child support payment of $293 per month. The Respondent is asking for an order requiring the Applicant to pay child support in this amount, retroactive to February 1 of 2018, when S. came to live with him.

Analysis [ 21 ] There are two aspects to this application that must be addressed: (1) child support and (2) parental responsibilities. On the issue of child support, the evidence clearly supports the conclusion that the arrears of child support, calculated by FMEP as of October 8, 2019 at $23,314.59, should be reduced. This sum should be reduced by at least two amounts:

(1) By the sum of $7,220 which the Applicant has acknowledged to have received from the Respondent but for which he has not

been credited;

(2) By the further sum of $9,246.68, which the Applicant has claimed as child support owing to her when in fact the Respondent was S.’s primary caregiver. [ 22 ] These sums total $16,466.68. If the arrears are reduced by this amount, this leaves a balance owing to the Applicant of $6,847.91. [ 23 ] Since S. has been living primarily in the Respondent’s care, the Applicant should have been paying child support to the Respondent, in much the same way that the Respondent was required to do so.

The Federal Child Support Guidelines are gender neutral, they do not apply differently regardless of whether the payor parent is male or female. As the old adage goes, what is sauce for the goose is sauce for the gander. Since S. has been in the Respondent’s care, the Applicant ought to have paid the Respondent $293 per month for 22 months (February of 2018 to November of 2019, both inclusive) for a total of $6,446.

The arrears owing by the Respondent to the Applicant should be further reduced by this amount, leaving a balance owing of $401.91. [ 24 ] On strict math, between now and the time that S. turns 19 [omitted for publication], four more child support payments will fall due and owing to the Respondent by the Applicant (for a total of $1172.) This will exceed the amount of the arrears, leaving a balance owing by the Applicant to the Respondent of $770.10. I am not ordering her to pay this. The Guidelines and the Family Law Act allow me to depart from the guidelines when doing so is in the best interests of the child.

I find that to be the case here. I reach this conclusion for two reasons: 1. What S. desires most is to be kept out of her parents’ conflict. Leaving even a small balance owing by one party to the other will give them something to fight about. Taking that away will give S. more peace than leaving these parties the ability to quarrel about a small amount of money. 2. Depriving the Respondent of $770.10 is small compensation to the Applicant for how tardy the Respondent was in making his child support payments over the years.

After many years of his being in arrears, he does not deserve to be in the position of being the creditor parent, even for a couple of months. [ 25 ] The final remaining issue is as to who will have parental responsibilities for S. between now and her 19 th birthday. On a consideration of the factors set out in

section 37 of the Family Law Act, I am satisfied that it is not in S.’s best interests to force her parents to share these responsibilities. The conflict shown between the parties is something that S. is best to do without. The anger shown by the Applicant does not support giving this responsibility to the Applicant. As S. says in her own words, “my mother and I have our differences.” S. is living in her father’s home and appears to be happier there. Her father should have parental responsibilities for S. until she becomes an adult early next year. Order [ 26 ] For the foregoing reasons, Mr.

Cho can prepare the following order, dispensing with the requirement of the approval of the formal order by the Applicant: Upon the Court being advised that the name and birth date of the child is S.M.D. born on [omitted for publication]; 1. The Court is satisfied that S.V.C. and P.M.D. are the guardians of the child under s. 39(1) of the Family Law Act (FLA). 2. Under s. 40(3) (

a) of the FLA, P.M.D. will have all of the parental responsibilities for the child. 3. The obligation of P.M.D. to pay child support for the child to S.V.C. shall terminate effective January 31, 2018. 4. The arrears of child support owing by P.M.D. to S.V.C. are fixed at $0. This takes into account any child support which may otherwise be owing for the support of the child by S.V.C. to P.M.D. from February 1, 2018 until the child reaches the age of 19. No ongoing child support or arrears of child support are due and owing by either party. ________________________________ The Honourable Judge K.D. Skilnick Provincial Court of British Columbia