M.L.D. v. K.J.E. Date:, 2014 BCPC 221

Citation: M.L.D. v. K.J.E. Date: 20140930 2014 BCPC 0221 File No: 1138599 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: M. L. D. APPLICANT AND: K. J. E. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Appearing on their own behalf: M. D. Counsel for the Defendant: J. Wolcott

Place of Hearing: Prince George , B.C. Date of Hearing: August 15 and September 19, 2014 Date of Judgment: September 30, 2014 A corrigendum was released by the Court on October 20, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] K. J. E. (Mr. E.) applies to retroactively vary two Orders of the Court requiring him to pay child support, based on an imputed income, to M. L. D. (Ms. D.) and to cancel, or reduce, any arrears that have arisen as a result of those Court Orders. [ 2 ] Ms. D. opposes Mr. E.’s Applications and alleges that Mr.

E. is underemployed and that his income should be determined to be that which was earlier imputed by the Court. ISSUES TO BE DETERMINED [ 3 ] Based on the submissions made, the following matters must be determined by the Court to resolve the issues between Mr. E. and Ms. D.: 1. What is the correct date of separation for the calculation of retroactive support? 2. Should Mr. E. pay a penalty for failing to file a Financial Statement? 3. Was the payment from Mr. E. to Ms. D. of a $3,000.00 lump sum in 2010 a payment of child support or for some other purpose? 4. Has Mr.

E. been, and is he now, intentionally underemployed? 5. If the answer to Issue 4 is no, what is the correct income for Mr. E. for the past years and 2014? 6. If arrears remain after applying the correct income for Mr. E., should they be cancelled or reduced? FAMILY BACKGROUND [ 4 ] Mr. E. is 34 years old and has worked in a variety of occupations during his adult life including in aquaculture, a landscaper, commercial truck driver, labourer, and most recently as a geotechnical materials technician. [ 5 ] Ms. D. is 34 years old and since 2005 has worked as a long term care aide. [ 6 ] Mr. E. and Ms.

D. entered into a common-law relationship in 1995. That relationship was tumultuous and included some periods of separation. They married in the summer of 2008 and separated in the fall of 2009. [ 7 ] They have three children namely C. O. E. born June 11, 1999, M. G. E. born June 30, 2001 and M. L. E. born October 1, 2007 (the Children). The Children have resided with Ms. D. since the separation and Mr. E. has had some parenting time with them. [ 8 ] Mr. E. entered into a new relationship in November 2010 with a woman who is a telephone company representative.

He lives with her and her two daughters from a previous relationship in Victoria. [ 9 ] Ms. D. has also entered into a new relationship with a man who resides with her and the Children in Prince George. HISTORY OF LITIGATION [ 10 ] On February 9, 2011 Ms. D. filed an Application to Obtain an Order (the Application) seeking guardianship and custody of the

Children, child support and spousal support. On that day she also filed an Affidavit in support of some of her Applications. [ 11 ] On February 9, 2011 the Court granted Ms. D. Orders for interim guardianship and custody as well as primary residence of the Children and further ordered that the Children’s residence not be changed from Prince George. That Order also required Ms. D. to personally serve Mr. E. with the Application, Affidavit and Order. [ 12 ] On May 9, 2013 Ms. D. filed a Notice of Motion seeking to serve Mr. E. by mail. [ 13 ] On May 23, 2013 Ms.

D. appeared before the Court and upon hearing her evidence and representations, the Court was satisfied that she had served Mr. E. with the Application and imputed an income to Mr. E. of $65,000.00 and made an Interim Order that he pay child support for the Children in amount of $1,291.00 per month commencing June 1, 2013. The Court also adjourned Ms. D.’s Application for retroactive child support. [ 14 ] On July 4, 2013, based on Ms. D.’s further representations, the Court further ordered that the child support payable by Mr. E. to Ms.

D. be made retroactive to August 1, 2009 in the amount of $400.00 per month up to and including May 1, 2013; that Mr. E. receive credit for any money he had paid to Ms. D.; that Mr. E. maintain the Children on his medical and dental plan; that Ms. D.’s Application for spousal support and a penalty arising from Mr. E. not filing a Financial Statement be adjourned generally; and that Mr. E. file a Financial Statement and all the necessary attachments before August 15, 2013. [ 15 ] On December 2, 2013 Mr. E. filed a Notice of Motion seeking to set aside the Orders of May 23 and July 4, 2013 made in his absence.

On the same day Mr. E. filed an Affidavit in which he deposed that he was never served with the Application in 2011 but that he was served with the Interim Custody Order. He also deposed that he knew nothing of the Orders for child support, except for a brief comment made by Ms. D. to him in the summer of 2013, until he was contacted by the Family Maintenance Enforcement Program (FMEP). He maintained he was never served with any documents regarding child support before that. [ 16 ] On December 19, 2013 the Court ordered Mr.

E. to file a Reply in response to the Application and file a Financial Statement with all the necessary attachments by January 23, 2014. The Court also dismissed Mr. E.’s Notice of Motion. [ 17 ] On January 21, 2014 Mr. E. filed a Reply in which he requested the Court to revisit the issue of child support due to his income being incorrectly imputed, that the arrears that have arisen as a result of the miscalculation be cancelled and that Ms. D.’s claim for spousal support be dismissed. On April 10, 2014 Ms. D. withdrew her spousal support claim. EVIDENCE Mr.

E.’s Mental Health [ 18 ] The status of, and the treatment for, Mr. E.’s mental health issues are relevant to Ms. D.’s allegations that he is intentionally underemployed. [ 19 ] Mr. E. comes from a family where mental health issues were prevalent. Both of his parents suffered from depression; as did a brother who committed suicide in 2008 while he was living with Mr. E. and Ms. D. [ 20 ] Mr. E. sought medical assistance for his depression and was prescribed antidepressants in late 2008.

His depression also caused him to seek emergency services from the Prince George Regional Hospital (PGRH) in the summer of 2009 where it was noted in the medical records that he had previous bouts of depression and had been prescribed antidepressants. [ 21 ] Mr. E. stated that he had a breakdown and became depressed and suicidal in 2009 when Ms. D. told him that she was having an affair.

After first receiving treatment at PGRH, he was referred back to his family doctor for further treatment. [ 22 ] He said that at about that time his doctor told him that it would be healthier for him to move closer to his family or he would have to be put into the hospital. As such, he decided to move to Vancouver Island where he was originally from. [ 23 ] Although he had been prescribed antidepressants from time to time, Mr. E. said they caused him problems, making him agitated and “not himself”.

He felt unable to operate heavy equipment and was worried that he would be a safety danger to himself and others if he drove commercial trucks. However, he did make another attempt to be a commercial truck driver but he had an additional bout of depression when his mother died. He eventually stopped taking his antidepressants and said that he was able to assist himself and largely control his depression by working out more. [ 24 ] Ms. D. contends that Mr. E.’s claims of severe depression are meant to mask the fact that when she told him she was leaving him in 2009 he quit his driving job.

She acknowledged that Mr. E. would be upset by their separation, his brother’s suicide and his mother’s death, but contends that he should get back to taking his prescription medications to stabilize his mood. [ 25 ] She says that Mr. E. is not working to his potential as a commercial truck driver which he could be doing if he was properly medicated and decided to return to that type of work. Mr. E.’s Employment History [ 26 ] Given Ms. D.’s allegation that Mr. E. is intentionally underemployed, an examination of his employment history is relevant. Mr. E.’s evidence on that issue includes:

a) from 1995 and 1999 he was employed in the aquaculture industry on Vancouver Island;

b) in 2000 he worked as a landscaper and did other general labouring jobs for an undetermined period of

time;

c) in approximately 2005 he moved to Fort St. John and began working in the oil and gas industry, eventually being trained to be a commercial truck driver and earning between 65,000.00 to $100,000.00 per year until he left that employment in November 2009;

d) between February 2010 and April 2011 he returned to work in the aquaculture industry on Vancouver Island but he left that employment to return to commercial truck driving;

e) in the summer and early winter of 2011 he was a commercial truck driver in eastern Canada but his mother fell ill and died resulting in a further period of depression. He was only a probationary employee at the time and lost that position;

f) he moved to Victoria to look for work and found a job in March 2012. He changed to a different job in May 2012 and worked there for approximately ten months at a wage of between $13.00 per hour and $15.00 per hour. He was laid off from that work in February 2013;

g) in March 2013 he obtained his present employment as a geotechnical materials technician where he had a starting wage of $18.00 per hour. This employment is stable full- time work with good benefits and he has been trained in, and received certifications for, his job duties. His wages were increased to $19.50 per hour. He intends to remain at that employment for the foreseeable future because he believes it has good prospects;

h) he has looked for other types of work including a garbage truck driver and shipping and receiving. However, those opportunities were either unavailable to him or were not as stable and permanent as his present employment. FMEP Recognized Support Payments [ 27 ] Mr. E. contends he made some support payments soon after the separation. Those payments, if made, were not documented and as such cannot be considered here. [ 28 ] There were other payments made by Mr. E. which were not initially accepted by FMEP because Ms.

D. did not disclose them but when advised of them she accepted most of them as support payments. [ 29 ] There was one payment of $3,000.00 made by Mr. E. which he contends was for child support but Ms. D. disputes that saying that it was her share of the sale of a vehicle. That amount has not been credited to Mr. E. by FMEP. [ 30 ] Based on the FMEP records, and certain documentation accepted by Ms. D., it appears Mr. E. made the following payments, either directly or by attachment, during the following periods of time:

a) September - December 2010 - $1,775.00 b) 2011 - $6,500.00 c) 2012 - $4,300.00

d) January - May 15, 2013 - $1,970.00

e) May 15 - October 30, 2013 - $2,400.00

f) October 30 - December 31, 2013 - $1,729.87

g) January 1 - September 16, 2014 - $9,828.00 [ 31 ] The total amount of payments credited to Mr. E. by FMEP up to September 16, 2014 is $28,502.87. Mr. E.’s Income [ 32 ] Ms. D. is only claiming basic Guideline child support. As such, only Mr. E.’s income is relevant. According to Mr. E.’s tax documentation he earned the following amounts in the years set out below: a) 2010 - $46,666.00 b) 2011 - $39,161.00 c) 2012 - $29,550.00 d) 2013 - $35,093.00 [ 33 ] If those incomes are accepted by the Court and the Guideline support for each year applied, the amounts due would be:

a) 2010 - $934.00 x 12 = $11,208.00 b) 2011 - $795.00 x 12 = $9,540.00 c) 2012 - $611.00 x 12 = $7,332.00 d) 2013 - $719.00 x 12 = $8,628.00 [ 34 ] Mr. E. said that he had received a pay raise from his employer which would increase his income to an annualized amount of approximately $41,000.00 per year. On that income the Guideline support up to September 16, 2014 would be $830.00 x 9 = $7,440.00. THE LAW Family Law Act [ 35 ] The sections of the Family Law Act (FLA) that have application to this case include: 152

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

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

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

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. 174

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support 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 it would 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 Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. 213

(1) This

section applies if a person (

a) fails to comply with (

i) an order for disclosure made under

section 212 [orders respecting disclosure] , or (ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, within the time or in the manner required by the order or Rules, or (

b) provides information that is incomplete, false or misleading.

(2) In the circumstances set out in subsection (1), the court may do one or more of the following: (

a) make an order under

section 212; (

b) draw an inference that is adverse to the person, including attributing income to that person in an amount that the court considers appropriate, and make an order based on the inference; (

c) require a party to give security in any form that the court directs; (

d) make an order requiring the person described in subsection (1) to pay

(

i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or theincomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, or (iii) a fine not exceeding $5 000; (

e) make any other order the court considers appropriate Child Support Guidelines [36] The sections of the Child Support Guidelines (the Guidelines) that have application here include: 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to themaking of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table,any change in circumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, anychange in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and (

c) in the case of an order made before May 1, 1997, the coming into force of

section 15.1 of the Act, enacted by

section 2 ofchapter 1 of the Statutes of Canada, (1997). 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; Case Law [37] Counsel for Mr. E. referred the Court to the following cases:

a) Windle v. Windle 2010 BCSC 18

b) Stiver v. Mercer [2000] O.J. 568

c) Earle v. Earle 1999 BCSC 283

d) Hanson v. Hanson (BC SC), [1999] B.C.J. No.2532 [38] The Court also considered the following additional cases:

a) MacGrotty v. MacGrotty 2014 BCSC 317

b) Carriere v. Carriere 2013 BCSC 2357

c) Bourque v. Gerlach 2006 BCCA 157

d) Brandner v. Brandner 2001 BCSC 284 SUBMISSIONS Mr. E. [39] Mr. E.’s counsel’s submissions can be summarized as follows:

a) pursuant to

section 152 of the FLA the Court may change an order retroactively taking into account evidenceof a substantial nature (Mr. E.’s true income) not available at the previoushearings;

b) as set out in Windle “the onus of proof is on the party seeking to impute income on a balance of probabilities that income should be imputed”. This would require some evidence of Mr. E.’s intentional underemployment and Ms. D. has not met that burden by presenting such evidence;

c) as described in Hanson , given Mr. E.’s age, education, experience, skills, health and job opportunities realistically available to him in southern Vancouver island, he is earning up to his capacity;

d) in the event the Court concludes Mr. E. should be earning more than he is, an imputed income should be appropriate and realistically achievable ( Stiver );

e) Mr. E. has other obligations to his new partner and her children that must also be considered and, as such, his actual income should be utilized to determine his obligations to the Children;

f) the Court should utilize Mr. E.’s 2013 income to set his 2013 and 2014 Guideline support obligations;

g) any arrears arising from the support due based on income imputed by the Court in the May 23, 2013 Order should be cancelled or reduced because failure to do so would be “grossly unfair”. Mr. E. was not made aware of the Order until October 2013 by FMEP. He has no ability to pay the amount in the Order now or in the future;

h) despite Ms. D.’s earlier information to the Court she could not provide the Court with the firm date of separation. She accompanied Mr. E. to PGRH in August 2009 and on a family vacation about the same time. The Court should accept Mr. E.’s evidence that the separation occurred in November and cancel the arrears for the months of August to November 2009;

i) the $3,000.00 paid in December 2010 by Mr. E. to Ms. D. was child support and Ms. D. has no proof it was anything but. Although the wording was faint on the photocopied bank draft provided to the Court, it does say “child support”, like several of the other bank drafts;

j) the Court, if it varies the child support or cancels any arrears, should also cancel all penalties and interest which has been charged by FMEP. Ms. D. [ 40 ] Ms. D.’s submissions can be summarized as follows:

a) Mr. E. was properly served with the Application in February 2011 and, as such, should have been aware of her request for child support and the requirement that he file a Financial Statement;

b) Mr. E. took no immediate steps when he did find out about the May 23 and July 4, 2013 Orders;

c) Mr. E. did not provide her with a Financial Statement for three years although he was obliged to do so when served with the Application and subsequently when ordered by the Court and, as such, he should pay a penalty of $5,000.00;

d) she has taken all the necessary and proper steps through the court process to obtain orders required;

e) as described in Earle , Mr. E.’s first obligations are to his first family, the Children;

f) Mr. E. moved to Vancouver Island because he chose to do so and he uses his depression to do what he wants, when he wants, and to take whatever job he wants;

g) the $3,000.00 paid to her on December 2010 was what Mr. E. gave her from the sale of a truck he took when he left. She was never given any documents regarding that sale. DISCUSSION General Matters [ 41 ] In any family case the onus to prove any issue, on a balance of probabilities, falls on the person asserting a certain set of circumstances. Given the nature of this case, with its long historical underpinnings, it is quite possible that although Mr. E. or Ms.

D. may have a recollection of how or when or why things occurred, without the substantiation of some documentation, they will not be able to satisfy the Court of their assertions. [ 42 ] This does not mean that either of them are trying to mislead the Court, but rather that due to the passage of time, their recollections may not meet the necessary level of reliability. Furthermore, the Court is permitted to accept all, some, or none of the evidence of any witness on any particular topic. [ 43 ] The Court recognizes that Ms. D. is not a lawyer, nor is she represented by counsel.

However, the fact that she did not cross-

examine Mr. E. on any of his evidence requires the Court to carefully consider how much weight can be given to her contrary version of events when she did not put those versions of events to Mr. E. and allow him to provide his explanation. Correct Date of Separation [ 44 ] Ms. D. contends the separation occurred in July 2009 and, as such, seeks support retroactive to August 2009. However, in August 2009 she was with Mr. E. when he was briefly admitted to PGRH and, at about the same time, she accompanied Mr. E. and the Children on a family vacation. [ 45 ] During her evidence Ms.

D. stated that she would not be pursuing retroactive support for the month of August 2009. [ 46 ] Mr. E. contends that the parties did not separate until November 2009 when he left his commercial truck driving position, having been off on some form of medical leave for several months before. [ 47 ] Having considered all the evidence on this point the Court determines that the parties separated somewhere in September or October 2009 and fixes the retroactive date for support at November 1, 2009. Penalty for Failing to File a Financial Statement [ 48 ] Ms. D. contends that Mr.

E. was properly served with the Application soon after she obtained the initial Order from the Court in February 2011. Mr. E. states that he only received a copy of the Order made in February 2011 and had no knowledge of the other portions of the claim. [ 49 ] The Court accepts Ms. D.’s assertion that Mr. E. was properly served with the Application soon after the February 2011 Order was granted. It should be noted that Mr. E., at that time, was in the throes of his depression and may or may not have been taking antidepressants. As such, his reliability concerning his recollections cannot be relied upon.

Having been served with the Application, if he had read it carefully, he would have known that he was required to file a Financial Statement. [ 50 ] On July 4, 2013 the Court also ordered Mr. E. to file a Financial Statement by August 15, 2013. He did not do so until January 21, 2014 pursuant to the Order of the Court made on December 19, 2013. On that basis Ms. D. contends that Mr. E. should pay a penalty of $5,000.00. [ 51 ] However, there was no convincing evidence that Mr. E. knew anything about the Order of July 4, 2013 to file a Financial Statement until the fall of 2013 when he was contacted by FMEP.

Very quickly after that he filed his Notice of Motion which, although not in the correct form, clearly indicated that he was not further ignoring the Court’s process. [ 52 ] Ms. D.’s claim for a penalty of $5,000.00 is excessive despite the fact that Mr. E. did not comply with the direction set out in the Application. A more appropriate penalty in the circumstances as described in

section 213 of the FLA is to impose a penalty on Mr. E. to pay the sum of $500.00 to Ms. D. for her benefit. The $3,000.00 Payment [ 53 ] Mr. E. contends that the $3,000.00 paid in December 2010 was for child support and relies on the faint wording that seems to indicate that on the photocopy of bank draft presented evidence. Ms. D. contends that the $3,000.00 was her share of the sale of a truck but acknowledges she has no documentation to verify that. In addition, she acknowledges that she retained most of the household goods and furnishings after she and Mr.

E. separated. [ 54 ] In light of the other bank drafts presented in evidence, many of which have the words “child support” included on them, and that Ms. D., when confronted about them, accepted that they were for child support, Mr. E. has satisfied the Court that the $3,000.00 payment should be credited to child support. Has Mr. E. been, and is he now, Intentionally Underemployed [ 55 ] Having asserted that Mr. E. has been and continues to be intentionally underemployed, the onus falls to Ms. D. to provide evidence to prove that allegation. All she points to is the fact that Mr.

E. has, in the past, been employed as a commercial truck driver and she contends that he should be able to seek treatment for his depression, obtain medication and return to that form of employment. [ 56 ] Mr. E. did try to return to commercial trucking after the separation but upon the death of his mother he again fell into depression and was let go from that position. He also provided evidence that he has looked into other trucking related employment but has not found a position where he resides that would provide both the income and stability his present job has. [ 57 ] While it is true that Mr.

E.’s employment situation was quite disrupted from late 2009 through to obtaining his present employment in March 2013, he did regularly look for work and upon obtaining employment did provide some monies to Ms. D. for the Children, although not at the level he should have been throughout that time period. [ 58 ] He has now obtained employment that appears to be continuous and offers opportunities for advancement and income increases in the future. In addition, it provides medical and dental benefits which benefit the Children. [ 59 ] Having considered cases referred to by Mr.

E.’s counsel and the additional cases the Court reviewed, Ms. D. has not met the burden of showing that Mr. E. has been, or is now, intentionally underemployed. Mr. E.’s Correct Income [ 60 ] Based on the findings set out above it becomes necessary to consider whether a variation of the child support based on Mr. E.’s actual income should be entertained. It is important to note that the Order made on May 23, 2013 was specifically designated as an

Interim Order and, as such, varying it based on accurate information is not as onerous a task as attempting to vary a final order after a full hearing. [ 61 ] Mr. E. has satisfied the Court that his income, wherever possible, should not be imputed but rather relied on his actual income earned.

However, he did not provide any income information for 2009 when he did have a child support obligation for the months of November and December. [ 62 ] In that year he was employed as a commercial truck driver, although he was on medical leave for part of the year up to when he quit in November and, as such, would have had some earnings. In previous years he had earned between $65,000.00 and $100,000.00 for that employment. It would not be unreasonable to impute an income to him for 2009 in order to calculate his child support obligations for the months of November and December.

In that regard, the Court imputes an income of $50,100.00 resulting in a Guideline support amount of $1,000.00 per month. [ 63 ] When she sought retroactive support from the Court on July 3, 2013, Ms. D. unintentionally misled or confused the Court in seeking only $400.00 per month for the retroactive months; $400.00 per month for three children would have had to be based on an income for Mr. E. of $19,200.00 per year when by his own tax records later disclosed he earned more than that. [ 64 ] Mr.

E. has satisfied the Court that it should use his actual income for 2013 to calculate his child support obligations so he must not expect less of the Court than to use his actual income for the years 2010, 2011 and 2012 when assessing the appropriate Guideline support for the Children. [ 65 ] Based on those principles, the calculation of amounts due, amounts paid and arrears accumulated are set out on the table below: CALCULATION OF ARREARS BASED ON ACTUAL INCOME YEAR INCOME PREVIOUS ORDERS GUIDELINE AMOUNT AMOUNT PAID ARREARS CUMMULATIVE ARREARS PREVIOUS ORDERS GUIDELINES ORDERS GUIDELINES 2009 $50,100 1 $2,000 2 $2,000 3 0 $2,000 $2,000 $2,000 $2,000 2010 $46,660 $4,800 $11,208 $4,775 4 $25 $6,433 $2,025 $8,433 2011 $39,161 $4,800 $9,540 $6,500 +$1,700 $3,040 $325 $11,473 2012 $29,550 $4,800 $7,332 $4,300 $500 $3,032 $825 $14,505 2013 $35,093 $10,146 $8,628 $6,100 $4,046 $2,528 $4,871 $17,033 2014 $41,000 5 $11,619 6 $7,470 6 $9,828 $1,791 +$2,358 $6,662 $14,675 1 Imputed 2 August to December @ $400 per month 3 November to December @ $1,000 per month 4 Including $3,000 5 Mr.

E.’s estimate 6 To September 16, 2014 Cancellation or Reduction of Arrears? [ 66 ] Mr.

E. also seeks the cancellation of any arrears that may result after the variation of the Guideline child support based on his accurate indication of income. [ 67 ] In effect, he suggests that the Court should vary the child support payable for the year 2013 based on his actual income without acknowledging that the Court should do the same thing for the child support based on his actual income in 2010, 2011 at 2012. [ 68 ] Such an approach would not be fair to the Children and it would, in effect, be grossly unfair to them to do so.

The arrears as calculated and set out in the Table will not be cancelled or reduced. However, the amount of interest presently set out on the FMEP statements will be cancelled and the Court will request of FMEP, if it is able to do so, to recalculate interest based on the arrears that have accumulated as set out in the Table. [ 69 ] The Court recognizes that Mr. E. does not have the capacity to immediately retire all of the arrears and, as such, they will be paid overtime as an additional amount over and above his regular Guideline child support obligations.

At this time the Court determines a reasonable amount to be $170.00 per month which will still take Mr. E. over seven years to retire the arrears. ORDER [ 70 ] Pursuant to

section 213 of the FLA Mr. E. shall pay a penalty to Ms. D. the amount of $500.00 on or before April 30, 2015. [ 71 ] Ms. D.'s Application pursuant to section 19 (1)(

a) of the Guidelines to have the Court determine that Mr. E. has been, and is

now, intentionally underemployed is dismissed. [ 72 ] Mr. E.'s Application pursuant to

section 152 of the FLA to retrospectively changed child support Orders of May 23, 2013 and July 4, 2013 is granted. [ 73 ] Based on the retrospective change to the child support ordered by the Court for the period from November 2009 through September 2014 inclusive, Mr. E. is found to be in arrears of child support in the amount of $14,675.00 as at September 16, 2014. Mr. E.'s Application to cancel or reduce the arrears of support owing is dismissed. [ 74 ] All existing interest charged to Mr. E. by FMEP is cancelled with liberty to FMEP to recalculate the interest owing by Mr.

E. based on the amounts of child support due as calculated by this decision. [ 75 ] Mr. E.'s income for 2014 is imputed at $41,000.00. [ 76 ] Commencing on October 1, 2014 and on the first day of each month thereafter until further order of the Court, Mr. E. shall pay to Ms. D. the Guideline child support for the Children in the amount of $830.00 per month. [ 77 ] Commencing on October 1, 2014 and on the first day of each month thereafter until further order of the Court, Mr. E. shall pay to Ms. D. on account of the child support arrears the amount of $170.00 per month. [ 78 ] Upon notice to Ms. D., Mr.

E. is at liberty to pay the amount due for monthly child support and the amount due as payment on the arrears as set out in this Order in instalments corresponding to his paydays. [ 79 ] Mr. E. shall maintain the Children on all medical, extended medical and dental plans available to him through his employer. [ 80 ] Commencing on July 1, 2015 and by each July 1 thereafter so long as Mr. E. is liable to pay child support to Ms. D., he shall provide to Ms.

D. a copy of his T1 Tax Return and all Notices of Assessment or Reassessment he receives from the Canada Revenue Agency for the previous taxation year. [ 81 ] Ms. D. and Mr. E. are each at liberty to bring an Application to vary the child support and arrears payments at any time after August 1, 2015. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC CORRIGENDUM - Released October 20, 2014 In the Reasons for Judgment dated September 30, 2014, the following change has been made. [1] The Style of Cause “Appearing on their own behalf” was incorrect.

The correct line is “Counsel for the Defendant”. It should now read as follows: Counsel for the Defendant: J. Wolcott