L.A.F. v. B.D.S. Date:, 2015 BCPC 220

Citation: L.A.F. v. B.D.S. Date: 2015 BCPC 0220 File No: 10524 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.A.F. APPLICANT AND: B.D.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. J. Mariona

Appearing on their own behalf: B.D.S. Place of Hearing: Kamloops , B.C. Date of Hearing: May 12, 2015 Date of Judgment: July 22, 2015 [ 1 ] This is an application by L.A.F. to cancel his arrears and ongoing child support. Primarily, L.A.F. argued that he has never earned the income that has been imputed to him. This is not the first attempt L.A.F. has made to reduce or cancel arrears and to adjust child support. On the last occasion, he failed to attend court. He had apparently sent a letter indicating that he was ill. However, the court was not moved to grant an adjournment.

His income was imputed based on full time employment at almost minimum wage. That was a final order. [ 2 ] B.D.S. has worked hard but encountered several obstacles along the way as she raised their daughter on her own. Not the least significant obstacle has been L.A.F.’s persistent inability to contribute in any meaningful way to the support and raising of their daughter. [ 3 ] L.A.F. is 61 years old. He lives in Victoria with two roommates in a house owned by one of them. He testified that he does not pay rent but pays for his keep by doing odd jobs around the house.

B.D.S. believes the owner of the house is his partner. L.A.F. denies this. [ 4 ] L.A.F. finished high school in 1971. He worked for his father’s company for a time. He then worked for Texaco pumping gas and driving a tow truck. After working with another company as a spray painter for a time, he then moved to Victoria. Upon arriving in Victoria, he worked at various jobs including as a chimney sweeper. In the late 1970s, he received training to go into the automotive business. He worked as a salesman for a couple of years, going back and forth between Toyota and Nissan. Ultimately, he was with Toyota until 1988.

His tenure ended when the dealership transitioned to a Jim Pattison outfit. He worked briefly with another dealership in a smaller car lot until 1990. [ 5 ] It was in 1990 that the automotive business began to suffer. With the advent of the GST, there was a downturn in sales. He would be able to get work for six month contracts a time or two. Thereafter, things became harder and L.A.F. was unable to find any further work in that business. [ 6 ] Since that time, L.A.F.’s work has been primarily sporadic and much like temporary coverage as opposed to anything permanent or full time.

He said that in 1995 his steady employment ended and he began to just exist after that. He would sometimes drive vehicles if someone needed a car taken somewhere but it did not pay well. He began to live off his credit cards. In 1998, he lost his home that he had been in for 16 years. He suffered a financial collapse and was no longer able to pay rent. He depleted his lines of credit and sold off his assets. Ultimately, he filed for bankruptcy in 1999 and was discharged in 2000. [ 7 ] From the 2000s, L.A.F.’s work became even more sporadic. He worked for a time with his brother in his upholstery business.

He also worked for someone in a laminating company. He was never full time. He also worked at a copy centre. He only worked “a few days here and a few days there”. He was paid cash for these jobs. Another friend hired him periodically to help build houses. He also looked after a friend’s fishing boat when the friend was in the Philippines. For that, he received $100 a week. He did this every year until the friend moved his boat to Ladner in 2006 or 2007. [ 8 ] L.A.F. put an ad in Craig’s List to do odd jobs. These would arise occasionally. The copy centre closed in 2007. The laminating business sold in 2008.

His friend with the fishing boat died in 2010. [ 9 ] L.A.F.’s efforts to find permanent full time work, considering his obligations not only to B.D.S.’s child with him but also to his child with another person, was lacklustre at best. He claimed he would go to the library to do searches for work. He found that most larger companies required applications to be done online. Every year he applied for seasonal work with the post office. He claimed he would take any type of job but did not have any success of any note in the last 15 years. [ 10 ] L.A.F. saw an ad for Job Options British Columbia.

He applied for the training with Get On Board to work with BC Ferries. He felt it was a good course and that he had a decent interview with BC Ferries. Although a wage subsidy was offered to help with any employer who may hire him, L.A.F. was never hired. BC Ferries said that they did not participate in that program. [ 11 ] L.A.F. also tried to obtain his First Aid Training Level 3. His job counsellor felt it was expensive but got him in with funding. It has not produced employment. He has also applied to Urban Older Workers Program. He was paid a $250 a week stipend to go to the course.

They also found him a contact at Camosun College to enter the British Columbia Waste Water Association training. With that training, he also received a job shadow which also paid him. He worked with that company for 14 days on his job shadowing. However, he waited for a year after that to approach them about work. He is waiting to hear back whether or not any employment will come out of that effort. He does not want any proper follow up or active pursuit of employment. [ 12 ] L.A.F. said that while going through all these courses, he continued to apply for jobs as part of his daily ritual.

He checked job sites including Canada Job Bank, Indy Jobs, Wow Jobs and GT Hiring. [ 13 ] It seems that only in the last couple of years has he made any significant effort toward finding employment and only now that he is reaching the outer edge of an employable age. These are the kind of efforts he should have been making perhaps as early as 1995 but certainly as early as 2000. [ 14 ] L.A.F. qualifies for CPP but is holding off until he is 70 so that he can get more than the $244.46 he would get if he applied now.

[15] While it can be said that L.A.F. is not presently employed, he is employable. He has some prospects for the future and can, withincreased effort, at least obtain minimum wage employment to support himself and pay his obligations to B.D.S. It would not be grosslyunfair not to reduce or cancel the arrears. L.A.F.’s efforts to meet his obligations have been wholly inadequate for reasons that are notcompelling. [16] N.B.D.S. was born in 1992. L.A.F. has not made very significant efforts to be part of her life. He has essentially waited forB.D.S. to bring N.B.D.S. to him. He has visited N.B.D.S. once in Kamloops.

He claimed that the only contact he has with his daughter isthrough B.D.S. by e-mail. If he had any genuine interest in having a relationship with his daughter he would have made much moresignificant efforts to be part of her life. This is particularly so since B.D.S. was encouraging that relationship in the early days. [17] B.D.S. has been less than appropriate sending the most appalling e-mails to L.A.F. While her feelings may have been genuineand her frustrations great, they certainly did not encourage L.A.F. to make any serious approaches.

However, that frustration is borne ofhis lack of efforts, not a desire to keep him out N.B.D.S.’s life. [18] Even L.A.F.’s efforts to reduce his child support obligations have been less than energetic. At one point, he was ordered tospend time in jail because he had not been paying on his obligations. He was more concerned about the embarrassment to his neighboursfor having to spend a night in jail than he was about the serious repercussions associated with failing to pay child support. [19] As Mr. Komori argued on behalf of L.A.F., the applicable legislation is s.19(1)(

a) of the Federal Child Support Guidelines ands. 174 of the Family Law Act. [20] Referring to Koch v. Koch, 2012 BCCA 378 , 2012 B.C.C.A. 378, at paragraph 36, the test for imputing income is asfollows: [36] After first noting that each parent bears responsibility for the support of their children under s. 19 of the Guidelines, JusticeChiasson, writing for the court in McCaffrey, referred to the general principles concerning the imputation of income from Donovan v.Donovan, 2000 MBCA 80, 190 D.L.R. (4th) 696 at para. 21 as follows: (adopted by this court in Watts v. Willie, 2004 BCCA 600) (atpara 46): 1.

There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor" (Van Gool v. Van Gool (1998), (BC CA), 166 D.L.R. (4th) 528 (B.C.C.A.)). 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. 3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her childrensimply because the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5.

A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. [21] L.A.F. was last assessed at $28,000 per annum as imputed income based upon “anyone can get a job at $15 per hour for 40hours a week”. L.A.F. says he has never earned that much money. He certainly ought to have. This is particularly so given that he isobligated to help support two children. [22] An income of $28,800 per annum is based upon a 48 week year at 40 hours per week. On the one hand, it seems only 48 weeksis generous for a person in that income bracket.

On the other hand, $15 per hour is a high expectation for someone with so few skills andlacking any significant job history following the decline of the automotive sales industry. L.A.F. is entirely responsible for thisimputation of income. He failed to attend court on both occasions when he had an opportunity to persuade the court that his income wasactually lower. That being said, the evidence suggests that the more appropriate imputation of income is based on something closer to$10 per hour. It more closely matches his lack of skill and lack of recent basic experience.

While that is no excuse per Koch, supra, it isthe reality the parties find themselves in. L.A.F. wants the imputation of income to date back as far as possible. I am not prepared to dothat. He had an excuse for not appearing in court that was not acceptable to the judge. He subsequently did not make a move to addresshis imputed income until he filed this application when Family Maintenance Enforcement Program began to actively enforce the order. [23] Judge Rohrmoser dismissed L.A.F.’s application filed April 27, 2012 on January 30, 2013. This was the occasion that L.A.F.failed to attend court.

At that time he was assessed $14,000 for extraordinary expenses at $500 per month until paid in full. His

application to change or cancel an order was dismissed. The next application was filed in October, 2014. I am prepared to backdate thenew imputation of income to January 1, 2014. His income is imputed for that year and this one at $19,200 per annum. His Guidelineincome for one child is $168 per month, commencing January 1, 2014 and up to and including December 1, 2014. In November, 2014,N.B.D.S. stopped going to university. As an adult, she made the decision to leave her education in pursuit of employment. That is anadult decision she is entitled to make.

Her parents are no longer obligated to support her in her university pursuits. Specifically, L.A.F.’schild support obligation ended on December 31, 2014. [24] Mr. Komori provided the following decisions for the proposition that I should reduce or cancel L.A.F.’s arrears: Burgie v.Argent, 2014 BCSC 364 , 2014 B.C.S.C. 364 ; Earle v. Earle, 1999 B.C.S.C. 283; Rouleau v. Fawkes, 2009 BCSC 257, 2009 B.C.S.C. 257 ; and Van Gool v. Van Gool, (B.C.C.A.). There is no question that L.A.F. meetsthe test in Van Gool, but he does not meet the test under s. 174(1) of the Family Law Act.

He has been intentionally under or unemployedfor many years despite his significant obligations to his children. The facts set out in Burgie do not align with the facts of this case.B.D.S. has made efforts to encourage the relationship between L.A.F. and their child, as well as pursue child support, includingregistering with the Family Maintenance Enforcement Program. L.A.F. has made attempts to challenge the imputed income previouslybut has not been successful. It is not open to me to go behind that order no matter the reason for L.A.F.’s non-attendance at the hearing.

Ican only look at the global picture going forward. Similarly, this is not an interim order such as was the case in Rouleau, supra. Atparagraph 41 of the Rouleau decision, the court quotes from W.(L.E.) v. W.(R.), 2008 BCPC 277 , 2008 B.C.P.C. 277 as follows: [41] At para. 37-39 Judge Wingham reviewed the authorities including Earle v. Earle, (BC SC), [1999] B.C.J. No.383 (S.C.) [Earle], that applied to the facts of that case: The superior courts of this Province have made it clear that there is a heavy onus on the person seeking to cancel or reduce arrears(Longstaff v.

Longstaff (1993), (BC CA), 49 R.F.L. (3d) 1 (B.C.C.A.); Earle v. Earle, supra). [25] At paragraph 43, the court also quotes from Jones v. Anhorn, [1998] B.C.J. No. 1274 (S.C.) as follows: [43] The reasoning employed by Martinson J. in this regard was reached with reference to the trial decision in Jones v. Anhorn,[1998] B.C.J. No. 1274 (S.C.) [Jones], which she recognized was then under appeal. The trial decision in Jones was overturned by theBritish Columbia Court of Appeal at 2000 BCCA 213, 6 R.F.L. (5th) 258.

Hall J.A., for the court, distinguished between the test forvariation of an award of maintenance and the test for reduction or cancellation of arrears. The latter, he said, was not to be considered asvariation proceedings, but was to be dealt with pursuant to s 96(2) and 96(3) of the Act. At para 13, Hall J.A. said, in part: ... Of course, to support an argument that the court ought to make an order varying maintenance payments in such a case (a variationproceeding), a change in circumstances would have to be demonstrated by an applicant and such change would have to be a materialchange.

Willick, (SCC), [1994] 3 S.C.R. 670, is a leading authority on a variation application. I do not however see thatline of cases as particularly applicable in the circumstances of the case at bar which involves instead an application to reduce or cancelarrears that have accumulated under a maintenance order. The applicable provisions which form in effect a separate code governing thisclass of application are to be found in s. 96(2) and s. 96(3) of the Family Relations Act set out above.

It may well be that in some cases achange in circumstances concerning the situation of any party involved in the application could amount to "any special circumstancesthat the court considers relevant", the words that are found in s. 96(3)(

c) of the statute. Possible circumstances might include greatlyenhanced financial resources on the part of the payor or payee or something like severe present disability on the part of a payor. I wouldthink that subparagraph (

c) could encompass a myriad of circumstances. [26] There has been no material change in circumstances for L.A.F. The only significant change of any note is that he is now makingmuch more significant efforts to find employment. That is no reason to reduce or cancel arrears. It is early days yet and he may well findgainful employment. He has many years of employability ahead of him as well as his Canada Pension to look forward to. [27] The proportionate share of special or extraordinary expenses will be adjusted accordingly.

On that note, L.A.F. argued that hisdaughter had chosen not to have a relationship with him and therefore he should not have to contribute to her post-secondary costs. Thatis not the case. He has never had a meaningful relationship with his daughter. She has merely chosen to maintain that status quo. Anotherjudge has already assessed him as liable. I am only adjusting that obligation to reflect the imputation of income for 2014. [28] L.A.F.’s arrears shall be adjusted in accordance with his imputed income, and his special or extraordinary expenses contributionadjusted accordingly. ___________________________ S.D.

Frame Provincial Court Judge