K.B. v. J.O. Date:, 2014 BCPC 212

Citation: K.B. v. J.O. Date: 20140507 2014 BCPC 0212 File No: 11883 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.B. APPLICANT AND: J.O. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Applicant: Mr. C. Soll

Appearing on their own behalf: Ms. J. Olineck Place of Hearing: Kamloops , B.C. Date of Hearing: May 7, 2014 Date of Judgment: May 7, 2014 [ 1 ] THE COURT: This is an application by the father, K.B., to reduce the amount of child support he is presently required to pay and to reduce arrears. The mother, J.O., opposes this application. Circumstances [ 2 ] The father is presently age 38. The child, L.B., is age seven, born [omitted for posting]. Shortly after the birth of the child the mother applied for child support from the father.

On September 4, 2008, the court imputed income to K.B. in the amount of $46,000 per year and ordered that he pay the mother child support in the amount of $427 per month. [ 3 ] The imputed income of K.B. was based on his receipt of funds from his parents and employment at a gym. The money from his parents was made available during a period in which K.B. was attending university. He graduated in 2008 with his Bachelor of Arts in English. The evidence is that shortly after the court order K.B. stopped receiving money from his parents and became employed during most periods between then and now.

During this time he has regularly earned significantly less than the imputed income and for short periods more. [ 4 ] In September 2009 he left his work at the gym and began working as a family support youth worker, at which he worked for three months. He was then involved in a very serious motor vehicle accident on December 14, 2009, and remained unemployed until May of 2010. In May he returned to his work as a youth worker.

This employment only lasted two to three weeks. [ 5 ] In July 2010 he began working as a general labourer at [omitted for posting], a business owned by his stepfather, until September of 2012. In October of 2012 he again was employed as a family support youth worker until January 2013. From February to August of 2013 he received Employment Insurance. From September 2013 until present he has been employed as a teacher’s aide at the [omitted for posting], with an increase in the days and hours of his weekly shifts in January of this year.

He says he hopes to increase this work to full-time. [ 6 ] K.B.’s highest earning periods were during those times that he was employed as a family support youth worker. It is of note that both of these periods were quite short. K.B. testified that he went back too early, as he was anxious, still using a cane, in a lot of pain, and the job required him to deal with dangerous and violent youths. He said that at times this work would result in him breaking down and crying. [ 7 ] The motor vehicle accident in December of 2009 occurred when he was driving while very intoxicated.

This resulted in K.B. striking a light pole. He sustained serious injuries including to his head, fractured left clavicle and leg, a crush injury to his chest and the loss of his spleen. He was unconscious for one-and-one-half weeks. He was in hospital until the middle of January and then required 24 hour care for the first couple of months following his release. He says that as his injuries healed emotional issues arose, including depression and anxiety. He continued to suffer from pain. He says he is still dealing with these issues today. [ 8 ] He has had six surgeries since the accident.

In January of 2013 he left his employment as a family support youth worker after he was found by the police attempting to jump off one of the local bridges. He was admitted to the local psychiatric ward. He says that this was not the first such episode. He said that he was told not to return to work by Dr. Baker, his family doctor, and by friends and family. [ 9 ] K.B. says he originally saw a psychologist once per week, and now once every two weeks. He also sees a psychiatrist once every two weeks. [ 10 ] K.B. has provided three expert reports. All three reports were filed without cross-examination. Dr.

Baker, in a report dated November 1, 2011, stated that K.B. struggles with anxiety and depression, which may in the near future limit his employability. Dr. Baker also supported his record of employability to that date. [ 11 ] Dr. Baker then provided an update in a report dated February 25, 2013. In this report he advised that K.B. continued to struggle with anxiety and depression. He noted that he had referred K.B. to a Dr. Marke, a local psychiatrist. Dr. Baker was of the opinion that as of February 4, 2013, K.B. was not fit to be in the workplace and should withdraw from work until further notice.

He was of the opinion that as of the writing of the report that an accurate date of his return to work could not be estimated. [ 12 ] Finally, there is a report from the psychiatrist, Dr. Marke, that is undated. It appears to have been faxed to counsel on April 24, 2013. He noted at this time that he was of the opinion that K.B. was unable to return to his job as a care aide due to his clinical symptoms impacting significantly on his ability to function. In Dr.

Marke’s opinion K.B. presents with features of Major Depressive Disorder, Post-Traumatic Stress Disorder, against a background of a mixed personality type. He says that the nature of his Major Depressive Disorder is that there will be remission with frequent periods of relapses. He also said that his mood disorder is associated with significant episodes of overwhelming anxiety. In conclusion, Dr. Marke was of the opinion that K.B.’s clinical picture, including both the physical and emotional, has led to a significant deterioration in his level of functioning. Law [ 13 ] K.B. relies on s. 152(2)(

a) of the Family Law Act to argue that his child support should be reduced. This subsection states that

an order for child support can be changed, terminated or suspended, if the court is satisfied: . . . 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 wasmade . . . [14] K.B. relies on s. 174 to argue that his arrears should be reduced. The court, pursuant to this section, can reduce arrears if thecourt is satisfied that: . . . it would be grossly unfair not to reduce or cancel the arrears. [15] Subsection (2) states the Court in making this assessment may consider the following: (

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. [16] K.B. also referred me to the often cited decision of Earle v. Earle, BCSC.

Madam Justice Martinson sets outat paragraph 27 of this decision that when a payor argues that arrears should be reduced because their financial circumstances havechanged that such an application should only be successful when the applicant provides under oath detailed and full financial disclosureof the following: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. [17] J.O. referred me first to the decision of S.G. v.

G.W., 2006 BCSC 991 CanLII. In this case the father brought a similarapplication as the one presently before me. Madam Justice Martinson applied the same requirements as noted above in Earle. She notesthe applicant has a heavy onus where they argue that their financial circumstances have changed (see paragraph 27). She also states thatit is not a valid reason for the applicant to argue that they cannot afford to pay at the time. She says that arrears will only be cancelled ifthe person is unable to pay now and in the future (see paragraph 26).

The court in S.G. held that the father had not proven the elementsrequired by Earle. [18] J.O. also referred me to the decision of Labell v. Labell, 2006 BCCA 45. This case stands for the principle that a person’spresent or future inability to pay arrears is not a valid reason to cancel the arrears. This principle applies even where there is a very slimchance that the person will be able to pay the arrears in the present or future. The court appears to draw a distinction between presentand future ability to pay and the change of previous circumstances that have resulted in arrears accumulating.

The result is, if the courtfinds it would be grossly unfair to cancel arrears, then such arrears should not be cancelled just because the payor appears to have only aslim ability to pay such arrears at present or in the future. Analysis [19] K.B. argues that three changes occurred which were significant, long-lasting, real and not of his choice.

These three changeswere the ending of the support from his parents while he was in school, the serious car accident and the mental health issues that hesuffered from. [20] With respect to the car accident he says that although he acted recklessly, he did not choose the injuries or symptoms thatresulted. He admits that his choice to drive intoxicated increased the risk that such injuries could occur and affect his ability to pay childsupport, but he argues that certainly was not his choice.

He further argues that he has done everything he could to return to the level ofincome he earned at the time of the original order. [21] J.O. argues that he has been able to provide support in the required amount and it is grossly unfair to the child not to pay thearrears. She says it is also unfair to her to reduce the arrears, as she has fulfilled her obligations and has sacrificed to provide for herchild. She feels the present child support is reasonable. [22] As noted previously, I must apply the analysis found in Earle to determine if the arrears should be reduced. I find, based on the

evidence of the doctors and the sworn evidence of K.B., that the change in his financial circumstances was real, significant and long- lasting. His original income on which child support was originally ordered was simply assistance from his parents to help him pay for his education. Once his education had been completed his parents ended the support, requiring K.B. to support himself. He made efforts to do this. He has been employed regularly since, except when he was seriously injured, suffering both emotional and physical disability. These injuries were real and have impacted his financial circumstances.

I also find that every effort was made by K.B. following the accident to earn an income and to increase his income. [ 23 ] J.O. argues that this change was one of choice by K.B. because he chose to drink and drive, causing his injuries and thereby reduction in his income. [ 24 ] There is no evidence that K.B. chose to drink and drive to change his financial circumstances. K.B. certainly did accept a financial risk by his actions. I have no evidence nor can I infer that this was a risk, however, that would probably cause a change to his financial circumstances.

I am therefore unable to accept that K.B. chose this change. [ 25 ] In applying the Earle analysis and s. 174 of the Family Law Act , all of the circumstances, I find that it would be grossly unfair not to reduce the arrears of K.B. [ 26 ] Counsel for Mr. Bissat has calculated his child support obligations based on these different periods of employment and their associated incomes from the time of the order until April 7, 2014. He submits that K.B. should have paid $15,392, has paid $13,677.97, and therefore is in arrears of $1,714.03.

I accept this calculation. [ 27 ] K.B. also seeks to reduce his child support for his daughter going forward. As noted previously, s. 152 of the FLA applies to this analysis. I am satisfied that there has been a change in circumstances since the order respecting child support has been made and therefore variation is appropriate. [ 28 ] K.B. argues that his present yearly income is $24,970.04, and therefore he should be required to pay child support in the amount of $213 per month pursuant to the Guidelines.

On the evidence of K.B. his yearly income should increase, as he is attempting to increase his hours to a full-time position. My order, therefore, will be as follows. [ 29 ] Madam Clerk, number A1.

Upon the court being advised that the name and birthdate of the child is L.B., born [omitted for posting]. [ 30 ] Then G1: K.B. is found to be a resident of British Columbia and is found to have a gross annual income of $24,970.04. [ 31 ] G3: K.B. will pay to J.O. the sum of $213 per month commencing on May 1, 2014, and continuing on the first day of each month and every month thereafter for as long as the child is eligible for support under the Family Law Act or until further order of this court. [ 32 ] J1: The arrears owing from K.B. to J.O., as of April 7, 2014, is $1,714.03. [ 33 ] The next issue is how much K.B. should pay and whether there is a

schedule required or whether he can pay the full amount. Any submissions with respect to that first, Mr. Soll? [ 34 ] MR. SOLL: K.B.’s car burned down some time ago. He has received an insurance cheque. He anticipates he will be able to pay the full amount of the arrears of $1,700, so that can probably be made today. K.B., the arrears can be paid today? [ 35 ] K.B.: I will send a cheque to -- for her. [ 36 ] MR. SOLL: Today or shortly thereafter, but he can pay the full amount. [ 37 ] THE COURT: Okay, how about if I do it by the end of this month? [ 38 ] MR. SOLL: That is fine. [ 39 ] THE COURT: Okay.

K.B. will pay to J.O. the sum of $1,714.03 by no later than May 31, 2014, as payment of the arrears that he presently owes. [ 40 ] The other terms will be as follows. [ 41 ] K.B. shall provide to J.O. notice of any increase in hours worked or hourly payment rate within 30 days of such change and provide copies of his paystubs within 30 days of receipt for the first three months following such change. [ 42 ] The next term is K2, Madam Clerk.

For as long as the child is eligible to receive child support the parties will exchange a copy of their respective income tax returns for the previous year, including attachments, not later than May 15 of each year, and copies of any notice of assessment or reassessment provided to them by Canada Revenue Agency immediately upon receipt. [ 43 ] I have not made it a term, but certainly there is an expectation, K.B., that if your income does increase, as you advise me that it is your intention to do so by working more hours, then at the same time the child support payment should also increase to reflect that higher income; and again, it is just with respect to the Guidelines.

So I would ask that you do that. As I said, I have not made it a term of the order, but certainly there is an expectation of that. [ 44 ] Okay, that is my decision. [ 45 ] MR. SOLL: Thank you, Your Honour. Can we dispense with J.O.’s signature and approval as to the form of the order?

[ 46 ] THE COURT: Yes. (REASONS CONCLUDED)