H.C.A. v. A.P.M., 2020 BCPC 31

Citation: H.C.A. v. A.P.M. 2020 BCPC 31 Date: 20200227 File No: 13591 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Interjurisdictional Support Order Act IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.C.A. APPLICANT AND: A.P.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS

Appearing on their own behalf: H.C.A. Appearing on their own behalf: A.P.M. Amicus Curiae P. Reimer Place of Hearing: Smithers , B.C. Date of Hearing: February 21, 2010 Date of Judgment: February 27, 2020 Introduction: [ 1 ] H.C.A. is before the Court seeking a reduction of his child support payments to A.P.M. for their daughter, D.D.M., born [omitted for publication]. As H.C.A. resides in Edmonton, Alberta, where he has lived his entire adult life with his spouse of 40 years and their five children, who are all now adults. A.P.M. resides with D.D.M. in [omitted for publication], BC.

H.C.A. and A.P.M. are the biological parents of D.D.M. as a result of a brief affair in August 2003. D.D.M. will be 16 years old this spring. [ 2 ] H.C.A. makes this application pursuant to the Interjurisdictional Support Orders Act, S.A. 2002. He has been paying child support pursuant to a final order of Judge Milne made February 19, 2009. Since that time, H.C.A.’s income has changed significantly, sometimes increasing, sometimes decreasing, and sometimes non-existent. H.C.A. is now disabled and unemployable, as is his wife.

H.C.A.’s meagre Canada Pension Plan disability benefit is persistently garnished and the Director of Maintenance Enforcement has now taken away his driver’s licence for failing to keep up with his child support and imposed even more fines H.C.A. has no ability to pay. Issue: [ 3 ] The issue before the Court is whether Judge Milne’s February 19, 2009 order ought to be varied, and if so, how and from when? [ 4 ] H.C.A.’s August 16, 2018 Support Variation Application came to hearing before me on February 21, 2020. Mr.

Reimer appeared as amicus curiae to provide information to the Court about the application before the Court and the Interjurisdictional Support Orders Act (the “ IJSOA ”) process. H.C.A. and A.P.M. have appeared on their own behalf. I have also reviewed the documents filed and orders made in Smithers Family Court file 13591. [ 5 ] Neither H.C.A. nor A.P.M. were represented by legal counsel. I am guided by

section 199 of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”) which mandates a holistic approach to resolving family disputes that minimizes delay, formality, and conflict between the parties . It states: 199

(1) A court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible, and (

b) in a manner that strives to (

i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and (ii) protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must (

a) consider the impact of the proceeding on the child, and (

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties. Background Facts and Procedural History [ 6 ] A.P.M. was born [omitted for publication] and is now 51 years old. A.P.M. is a member of the [omitted for publication] Nation and resides in [omitted for publication], BC. A.P.M. works for the [omitted for publication] Society in [omitted for publication]. She earns $51,300 per year, tax free as she works in the [omitted for publication] community. [ 7 ] H.C.A. was born on [omitted for publication].

He is 59 years old and lives in Edmonton, Alberta. He has lived in Alberta for most of his adult life. Up until 2015, H.C.A. worked seasonably as an assistant driller in the Alberta oil industry. He is now disabled and unemployed. [ 8 ] H.C.A. lives with S.M.A., his partner and wife of almost 40 years. H.C.A. and S.M.A. were married in 1987. They have five children, all of who are now adults. S.M.A. is also disabled and both she and her husband survive on disability benefits. [ 9 ] H.C.A. met A.P.M. in August 2003, while on a trip to Prince George.

They began a brief, but intimate relationship, and in September 2003, A.P.M. told H.C.A. she was pregnant with his child. [ 10 ] H.C.A. separated from S.M.A. and lived with A.P.M. in [omitted for publication], for about a month in the beginning of 2004. In February 2004, H.C.A. reconciled with his wife and returned to live with her and their family in Alberta. [ 11 ] In May 2004, H.C.A. learned A.P.M. had given birth to their daughter D.D.M. on [omitted for publication]. H.C.A. asked A.P.M. for a paternity test, which A.P.M. refused, not wanting anything more to do with H.C.A.

[ 12 ] On September 29, 2004, A.P.M. filed an Application to Obtain an Order for custody, guardianship of, and child maintenance for D.D.M. in accordance with the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”). In her application S.M.A. indicated she did not know of H.C.A.’s whereabouts.

She stated H.C.A. had provided her with pay stubs and expressed to her his annual income was between $80,000 - $100,000 per year. [ 13 ] Also on September 29, 2004, A.P.M. filed a Notice of Motion for an order granting her interim custody and guardianship of D.D.M. and for an order permitting her to serve H.C.A. substitutionally with the court documents. [ 14 ] A.P.M.’s September 29, 2004 Notice of Motion came before Judge Seidemann III on October 13, 2004 in Smithers Provincial Court.

Judge Seidemann ordered A.P.M. have interim custody of D.D.M. and granted A.P.M.’s application she serve H.C.A. the court documents substitutionally by leaving them with H.C.A.’s parents, D.A. and C.A., who lived in Prince George, BC. [ 15 ] A.P.M.’s September 29, 2004 Application came before Judge Jack for hearing in Smithers Provincial Court on March 31, 2005. A.P.M. attended represented by Ms. L. Locke, acting as duty counsel; H.C.A. did not attend in person nor was he represented by counsel.

On that date, Judge Jack imputed H.C.A. to have an annual Guideline income of $100,000, and ordered him to pay ongoing monthly child support to A.P.M. for D.D.M. commencing November 1, 2004, in the amount of $761 per month. Judge Jack further ordered H.C.A. to pay 60% of D.D.M.’s extraordinary $210 per month day-care expense. H.C.A.’s share of the days-care expenses was $126 per month and A.P.M.’s was $84 based on her annual income of $36,000 tax free. [ 16 ] On April 13, 2005, Ms. S.

Westwood, legal counsel for H.C.A., filed a Notice of Motion returnable April 19, 2005, seeking to set aside Judge Jack’s March 31, 2005 order made in H.C.A.’s absence. H.C.A. also disputed paternity and requested DNA testing to determine D.D.M.’s parentage. [ 17 ] On April 19, 2005, and May 16, 2005, H.C.A. filed Affidavits in support of his April 13, 2005 Notice of Motion. H.C.A. claims he never received a copy of A.P.M.’s September 29, 2004 Application and Notice of Motion. He was unaware of the October 13, 2003 and March 31, 2005 court proceedings.

H.C.A. attached to his Affidavit his income tax returns for 2002, 2003, and 2004 indicating he had never earned $100,000 as imputed to him by Judge Jack on March 31, 2005. H.C.A. also stated he did not believe he was D.D.M.’s biological father and requested DNA paternity testing. In the fall of 2003, H.C.A. was drinking heavily and using cocaine. He has been sober since he returned to living with his wife and family in Alberta in February 2004. [ 18 ] H.C.A.’s April 13, 2005 Notice of Motion came before Judge Milne on June 2, 2005.

At that time Judge Milne suspended Judge Jack’s March 31, 2005 order and ordered DNA testing to confirm D.D.M.’s parentage. [ 19 ] On May 19, 2005, H.C.A. filed a Financial Statement admitting to a Guideline income of $47,027 from his employment as assistant driller with [omitted for publication] in Alberta. H.C.A. attached his Income Tax Returns indicating he had a Guideline income of $68,148 in 2002, $69,611 in 2003, and $50,833 in 2004. [ 20 ] On April 18, 2006, H.C.A. filed an Application to Obtain an Order for custody, guardianship of, and access to D.D.M. Also on April 18, 2006, Ms.

Westwood, legal counsel for H.C.A., filed an affidavit in relation to H.C.A.’s April 18, 2006 Application. [ 21 ] On May 16, 2006, A.P.M. filed a Reply opposing H.C.A.’s April 18, 2006 Application. [ 22 ] In 2007, H.C.A. provided A.P.M. through her then lawyer, Mr. I. Lawson, with his 2002, 2003, and 2004 income tax returns. H.C.A. also provide a Dr. Siva P. Sivalingam’s medical consultation report of October 28, 2005 describing H.C.A.’s ongoing medical issues with his right knee. [ 23 ] On October 25, 2007, this matter came before Judge Skilnick. A.P.M. was represented by legal counsel, Mr. I.

Lawson; H.C.A. did not attend in person or by agent. Judge Skilnick ordered Judge Milne’s June 2, 2005 order set aside and reinstated Judge Jack’s March 31, 2005 order.

In other words, H.C.A.’s income was again imputed to be $100,000 as for 2004, and he was required to pay $761 per month in ongoing child support, retroactive to November 1, 2004, as well as an additional $126 per month in extraordinary expenses. [ 24 ] H.C.A. attached to his November 25, 2019 Affidavit a statement of the Alberta Maintenance Enforcement Program (“ABMEP”) showing that on February 2, 2008, ABMEP declared H.C.A.’s arrears in child support to be $34,593. [ 25 ] On March 27, 2008, H.C.A. filed a Form 1 Financial Statement stating he anticipated his annual gross income for 2008 to be $58,158.96.

At that time, H.C.A. worked for [omitted for publication], in Alberta, earning a base pay of $3,800 per month together with a $1,000 per month motor vehicle allowance. H.C.A. attached his income tax returns indicating that his Guideline income was: (a) $62,252 in 2001 (b) $68,148 in 2002 (c) $69 ,611 in 2003; (d) $50,933 in 2004; (e) $68,922 in 2005; (f) $90,238 in 2006. H.C.A. also provided (

a) Dr. Siva P. Sivalingam’s October 28, 2005 medical consultation report describing H.C.A.’s medical problem with his right knee; (

b) H.C.A.’s October 3, 2006 report to the Alberta Workers’ Compensation Board; and (

c) H.C.A.’s correspondence from [omitted for publication], dated November 18, 2005, and December 29, 2005, indicating H.C.A. was temporarily disabled and in receipt of short-term disability benefits. [ 26 ] On April 3, 2008, H.C.A. filed a Form “A” Support Variation Application in Alberta. This application was refiled in Smithers Registry on June 12, 2008. In this application, H.C.A. asserted hardship ( s. 10 of the Federal Child Support Guidelines ) on the basis of his legal obligations to his wife and three youngest children in Alberta.

H.C.A. sought to reduce his support from $887 per month to $400, and to fix the amount of unpaid support arrears at $2,000 as of November 1, 2007. H.C.A. stated he earned $90,000 in 2007 and $90,149 in 2006, and was in receipt of disability benefits from August 2005 to January 2006. [ 27 ] On August 8, 2009, Judge Milne ordered H.C.A. to file with the Smithers Court Registry, his complete income tax returns with attachments for 2005 and 2007 and his three most recent pay stubs.

Judge Milne also ordered H.C.A. to provide financial information with respect to S.M.A., if she was working. [ 28 ] On January 26, 2009, S.M.A. filed an affidavit in these proceedings. She attached H.C.A.’s 2005 Notice of Assessment

indicating he earned a total income for 2005 of $68,547. She also attached H.C.A.’s Notice of Reassessment for the 2007 taxation year indicating his total income was $85,276 and Earnings Statement showing that for the 11 months ending November 28, 2008, H.C.A. had earned $69,637.50, from his employment with [omitted for publication] in Alberta. S.M.A. also provided her own income tax returns showing: (

a) in 2005 she earned $1,149; (

b) in 2006, she earned $4,481; and (

c) in 2007, she earned $24,161. S.M.A. said she had been on medical leave from her job as a Youth Worker for most of 2008 and was still on leave as of the date of her affidavit. [ 29 ] H.C.A. provided the Court with a copy of his Employment Benefit Statement dated February 3, 2009, indicating his weekly EI benefit was $435, from which $216 had been garnished pursuant to a family court order. [ 30 ] On February 19, 2009, H.C.A.’s April 3, 2008 Support Variation Application came before Judge Milne in Smithers Provincial Court. A.P.M. was present and represented by legal counsel, Mr. I.

Lawson; H.C.A. attended by telephone on his own behalf. After a hearing, Judge Milne made a final and superseding varying Judge Jack’s March 31, 2005 Order as follows: a. H.C.A. will pay child support to A.P.M. through the Family Maintenance Enforcement Program for the child D.D.M., born [omitted for publication], in the amount of $400 per month commencing March 1, 2009, and continuing on the first day of each and every month thereafter for so long as D.D.M. remains a child under the Family Relations Act of British Columbia ; b.

The amount of arrears owing by H.C.A. pursuant Judge Jack’s March 31, 2005 order are hereby reduced to $17,710, inclusive of any interest or statutory penalties or charges; c. H.C.A. will pay to A.P.M. ( through the Family Maintenance Enforcement Program) $200 per month towards the arrears commencing March 1, 2009 and continuing on the first day of each and every month thereafter until the arrears are paid in full; d.

For as long as the arrears remained unpaid in full, H.C.A. will pay to A.P.M. (through the Family Maintenance Enforcement Program) the amount of each and every income tax refund he receives from the Canada Revenue Agency each year commencing in 2009; and e.

H.C.A. will provide to A.P.M. a copy of each income tax return he files with the Canada Revenue Agency, or before August 1, each year commencing in 2010. [ 31 ] On April 7, 2011, H.C.A. filed an Application to Change or Cancel Existing Order of October 13, 2004, seeking joint custody of D.D.M. on the basis A.P.M. denied him access. [ 32 ] On April 29, 2011, A.P.M. filed a Reply to H.C.A.’s April 7, 2011 Application.

She agreed he could have supervised access in [omitted for publication] , but opposed him having joint custody. [ 33 ] H.C.A.’s April 7, 2011 Application came before the Court on June 2, 2011, October 6, 2011, and November 22, 2011, for subsequent appearances and family case conferences. On October 6, 2011, Judge Milne ordered H.C.A. have limited access to D.D.M. Specifically, H.C.A. was allowed contact with D.D.M. in A.P.M.’s presence at the Subway fast food restaurant in Smithers at 6:00 pm on October 6, 2011.

H.C.A.’s only ongoing contact was by telephone at 7:00 pm PST each Wednesday. [ 34 ] On March 26, 2015, A.P.M. filed an Application Respecting Existing Orders and a Notice of Motion returnable April 30, 2015, seeking an order she be permitted to travel with D.D.M. to South Dakoda from May 4 to 15, 2015, and a final order granting her guardianship of D.D.M. On April 30, 2015, Judge Wright granted A.P.M. the orders sought in her March 26, 2015 Application.

H.C.A.’s August 16, 2018 Support Variation Application [ 35 ] On August 16, 2018, H.C.A. filed a Support Variation Application with the Judicial Centre of Edmonton pursuant to the IJSOA . This application was subsequently filed in the Smithers, BC Court Registry on January 28, 2019. [ 36 ] H.C.A.’s August 16, 2018 Application came before this Court on April 26, 2019. At that time Judge Jackson made a direction pursuant to section 37(2) of the IJSOA , that the designated authority request production of: (

a) H.C.A.’s amended filed 2017 tax return Notice of Assessment or Notice of Revised Assessment; (

b) H.C.A.’s 2018 filed tax return; and (

c) whatever information he can provide for H.C.A.’s 2019 income. [ 37 ] H.C.A.’s August 16, 2018 Application came before me for hearing September 18, 2019, in Smithers Provincial Court. Mr. Reimer appeared by telephone as amicus curiae , A.P.M. appeared in person on her own behalf and H.C.A. appeared by telephone. H.C.A. said that he has been given almost no contact with D.D.M. whatsoever.

He does not even know what she looks like. [ 38 ] At this appearance I ordered H.C.A. to provide: a. a current and up-to-date printout from the ABMEP showing the status of child support arrears and payments; b. copies of documents from his disability insurer indicating the gross amount he receives on a monthly basis prior to income tax and other deductions; and c. an updated medical letter as to any limits on his ability to be gainfully employed. [ 39 ] Also on September 18, 2018, I ordered that H.C.A. was at liberty to file a separate application regarding parenting time with D.D.M. [ 40 ] The hearing of H.C.A.’s August 16, 2018 Application continued before me on February 21, 2020.

At that time I heard from H.C.A., A.P.M., and Mr. P.J. Reimer, amicus curiae . In support of his August 16, 2018 Application, H.C.A. also provided the following documents:

a. H.C.A.’s Form B Identification; b. H.C.A.’s Form K Financial Statement as of August 16, 2018. In this financial statement, H.C.A. states his income is $0.0 for 2018 and S.M.A.’s was $1,588 per month which she receives from disability benefits. H.C.A. also indicates K.H. resides in his household. K.H. receives $1,500 per month from AISH (Assured Income for the Severely Handicapped) and pays 25% of the household expense; c. H.C.A.’s 2014 Tax Return and

Summary showing he had a Guideline Income in 2014 of $132,431.94, all of which was from employment income with [omitted for publication]; d. H.C.A.’s 2015 Tax Return

Summary showing had a Guideline Income in 2015 of $59,162.56, of which $46,181.32 was from his employment income with [omitted for publication] and $12,941.00 was from Employment Insurance, and $40.24 from RRSP Income; e. H.C.A.’s 2016 Notice of Assessment, showing he had a Guideline Income in 2016, of $10,177, from social assistance benefits; f. H.C.A.’s 2017 Tax Return

Summary showing he had a Guideline Income in 2017 of $0.00; g. Form M Evidence to Support Variation of a Support Order, in which H.C.A. states: i. He is no longer working in the oil field as a derrick hand because his body was in bad shape. He has arthritis and had three knee replacements. He cannot work on the rigs because he is in continuous pain; ii. He is not making the money he used to make and was in the process of applying for disability benefits; iii. He is taking care of his wife who has suffered three aneurysms and two strokes. She is paralyzed on the right side; iv.

He cannot drive his wife to her medical because Maintenance Enforcement took away his driver’s licence; and v. He has not been able to talk to D.D.M. because A.P.M. does not comply with the court order. h. ABMEP transaction record from January 1, 2008 until August 2, 2018, which shows that on February 19, 2008, H.C.A. was declared in arrears $34,593, which was reduced pursuant to Judge Milne’s February 19, 2009 order.

The ABMEP transaction record further indicates that as of August 1, 2018, H.C.A. was being charged $445.32 per month, consisting of $400 per month in child support, $40 as a default penalty and $5.32 per month in interest. On August 1, 2018, H.C.A. was in arrears $9,176.86; i. H.C.A.’s affidavit filed August 16, 2018, in which he asks the Court to change his order because his wife, S.M.A., needs him to care for her “24-7.” He says S.M.A. suffered three aneurysms and two strokes and is paralyzed on one side of her body. She also has a brain injury. H.C.A. says his wife needs help with everything.

H.C.A. too has a disability arising from his arthritis. He says that he had just had a knee replacement and expects to receive a disability pension in August 2018; j. Correspondence from a social worker and a physiatrist (Physical Medicine and Rehabilitation physician) with Alberta Health Services asking Alberta Works assist S.M.A. DOB October 15 [1962]. It states, in part: As you are aware, S.M.A. suffered a brain aneurysm rupture leading to a subarachnoid hemorrhage and a left MCA ischemic stroke on October 21, 2015. She was discharged home this week to be with her husband and sons.

S.M.A. has made good progress but at this time she still uses a WC for mobility mostly and requires 1 person assist for walking and doing stairs. Her right side has been significantly affected including her leg and arm. She is unable to do meal preparation on her own. She is right hand dominant. She has pre-existing issues with her right knee. She is unable to stand unsupported or unassisted for long periods of time. She requires set up and cueing for getting dressed and shower assist . . . k. A medical letter from Dr. Siva P.

Sivalingam, dated April 25, 2016, in which he states that had an intracranial hemorrhage followed by a ruptured aneurysm. He states she is wheelchair bound with hemiplegia and needs a caregiver at home to look after her 24 hours a day; l. A medical report of Dr. Siva P. Sivalingam, dated March 13, 2018, prepared for Service Canada in support of H.C.A.’s application for Canada Pension Plan disability benefits. This report indicates that Dr. Sivalingam had been H.C.A.’s physician for 12.5 years. His reports: i. H.C.A. suffers severe osteoarthritis in his right knee.

H.C.A. had a right knee replacement in 2009 and a revision of the total knee replacement in 2013; ii. H.C.A. had a torn medial and lateral meniscus in his right knee and a meniscectomy in 2005; iii. H.C.A. now suffers from chronic pain in his hips and knees; iv. H.C.A. had several operations to his right knee including ACL reconstruction, removal of the meniscus and total knee replacement, twice; v. H.C.A. worked in oil rigs until 2015 and was unable to carry on with heavy work due to severe pain in his hips and knees due to severe osteoarthritis; vi. In his recent examination, Dr.

Sivalingam, found H.C.A. suffered swelling of the right knee and restricted

knee movements; vii. H.C.A. walks with a limp due to his right leg weakness; viii. H.C.A. is unable to lift or carry any weight over 50 pounds; ix. H.C.A. was on the following medications:

(1) Oxyneo (a form of oxycodone), 20 mg for pain;

(2) Nabilone, 25 mg (for nausea);

(3) Quetiapine, 25 mg ( antipsychotic medicine); and

(4) Trazodone, 50 mg (antidepressant); and x. H.C.A. suffers chronic pain as a result of the number of operations on his right knee. He will have to live with chronic pain and weakness in his right knee and undergo long term pain management; m. The affidavit of H.C.A. sworn January 14, 2019, attaching: i. his 2015, 2016, and 2017 Tax Return Summaries; ii. Notices of Assessment showing H.C.A.’s Line 150 income was $59,162.56 in 2015, $10,177 in 2016 and $.0 in 2017; iii. a

summary of H.C.A.’s medical condition; iv. a

summary of S.M.A.’s medical condition; n. an undated report from Service Canada indicating H.C.A. received a Canada Pension Plan Disability retroactive payment as follows: Year Monthly Amount Months Annual Amount 2018 $1,137.27 7 $ 7,960.89 2017 $1,120.46 10 $11,204.60 Total $19,165.49 o. The affidavit of H.C.A. filed August 6, 2018, in which he states he and his wife are still disabled. He attached his 2017 and 2018 Notice of Assessment indicating H.C.A.’s total income for 2017, was $0.0 and his total income for 2018 was $32,800.

Revenue Canada assessed H.C.A.’s 2018 income at $11,204 less than that declared in his 2018 tax return because in 2018 H.C.A. received a lump-sum payment for CPP disability benefits for previous years; p. An updated transaction record from ABMEP H.C.A. filed with this Court on November 21, 2019. This transaction record indicates: i. as of September 1, 2019, H.C.A. had arrears of unpaid child arrears totalling $1,349.21; ii. H.C.A. is charged $440 per month, consisting of $400 for child support, $40, default penalty, as well as interest; iii.

H.C.A.’s Canada Pension Disability benefits are being garnished for $300 per month; q. Correspondence from Canada Pension Plan dated February 19, 2019, confirming H.C.A.’s monthly disability pension was $1,163.43, from which $400 per month would be paid to ABMEP; r. H.C.A.’s 2018 Income Tax Summery indicating in 2018 he received $24,851.84 in CCP disability benefits (which included retroactive benefits for 2017) and $19,153 in social assistance; s.

H.C.A.’s affidavit filed November 25, 2019, attaching: i. a letter from the ABMEP confirming that as of that date, H.C.A. was in arrears for child support in the amount of $1,374.19; ii. H.C.A.’s 2017 and 2018 Tax assessments; iii. H.C.A.’s benefit statement from Canada Pension Plan; and iv. Dr. Sivalingam’s March 13, 2018 medical report to Service Canada; and v.

The ABMEP Transaction record showing that on October 9, 2018, CCP paid $8,517.50 of the retroactive disability benefits owing to H.C.A. to the ABMEP and the Federal Government continued to pay to ABMEP monies deducted from H.C.A.’s CCP disability benefits and income tax returns. [ 41 ] On April 17, 2019, A.P.M. filed a Form 1 Financial Statement indicating her 2017 Income was $51,300.

A.P.M. states she has not filed her 2018 Income Tax Returns and anticipates her income for 2019 will be $11,118, which is surprising given her attached Statement of Earnings from the [omitted for publication] Society indicates her year to date salary as of April 5, 2019 was $14,973. A.P.M.’s 2019 Statement of Earnings indicate she earns $2,170 bi-weekly. A.P.M.’s $51,300 grosses up to approximately $58,000. [ 42 ] A.P.M. believes H.C.A. needs to be retrained in order to obtain full time employment and to be held accountable for providing adequate support for D.D.M.

She states in her April 17, 2019 Response that H.C.A. raised five sons who are now the age of majority and

he should provide the same support for his daughter. [43] If H.C.A.’s son, K.H., is receiving AISH, then I assume he is “severely handicapped.” Legislative framework [44]

Section 147 of the FLA imposes a duty on each parent and guardian to support a child under the age of 19 except incircumstances that are not present in this case. [45] When making an order respecting child support, s. 150 of the FLA compels a Court to determine the amount in accordance withGuidelines unless the parties have an agreement for some other amount and the Court is satisfied that reasonable arrangements have beenmade for the support of the child. The principles on which child support is based as espoused Earle v.

Earle, 1999 BCSC 283, are asfollows: a. the parents of a child have a joint and ongoing obligation to support their children; b. child support belongs to the child; and c. the amount of child support is based, not only on the parents’ earnings, but also on what the parent can earn. See Carriere v.

Carriere, 2013 BCSC 235, at para. 21. [46] The Guidelines objectives are: a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of bothspouses after separation; b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective; c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support ordersand encouraging settlement; and d. to ensure consistent treatment of spouses and children who are in similar circumstances. [47] The authority for changing a child support order is found in s.152 (1) of the FLA, which states, in part: 152

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

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

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

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. [48] The “change in circumstances as provided for under the child support guidelines” refers to s. 14 of the Guidelines asincorporated by reference by

Part 4 of Family Law Act Regulation, BC Reg 347/201.

Section 14 states, in part: 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 incircumstances 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, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; . . . [49] In G.M.W. v. D.P.W., 2014 BCCA 282 the BC Court of Appeal confirmed (at para. 32) s. 14 of the Guidelines doesnot supplant the test of materiality for a change in circumstances as set out in Willick v. Willick, (SCC).

The thresholdrequirement for variation of an existing order as described in Willick (at 688) is as follows: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [50] The appellate court in G.M.W distilled (at para. 33) the following relevant principles from Willick: a. the onus is on the applicant to establish a material change of circumstances; b. the existing order is presumed to have accurately assessed the needs of the children and therefore the correctness of that order must notbe reviewed in the variation proceeding (at 687);

c. the actual circumstances of the parties will determine if there has been a material change of circumstances during the relevant period;and d. the approach to the making of child support orders is child-centred and requires consideration of the children’s needs, the relativeability of the spouses to pay and the joint obligation of the parents toward their children. [51] In my view, H.C.A.’s August 16, 2018 Order to vary Judge Milne’s February 19, 2009 Order and must satisfy one of the threecriteria set out in s. 152(2) of the FLA.

One of those criterion (152(2)(a)) is a change in circumstances that would result in a differentchild support order under the Guidelines since the Court made the order. This provision has been interpreted to be a material change incircumstances. [52] I am satisfied the evidence shows the criteria in s. 152 (2)(

a) is engaged and Judge Milne’s February 19, 2009 Order for childsupport can be varied. [53] I understand from his August 16, 2018 Financial Statement and November 25, 2019 Affidavit H.C.A. and S.M.A. survive ontheir respective disability pensions of $1,163.43 and $1,588 per month. Their handicapped son K.H., also receives a monthly disabilitypension of $1,500. H.C.A. now has a Guideline of $13,961.16 which, subject to my decision on his hardship claim, he ought to payongoing child support in the amount of $117 per month. [54] A.P.M. contests H.C.A.’s inability to work at any job.

In his November 25, 2019, H.C.A. states that Dr. Sivalingam has retiredand returned to England. H.C.A. has not yet obtained a new family physician. A.P.M. called his former medical clinic and has confirmedthat Dr. Sivalingam has in fact retired. [55] Although Dr. Sivalingam’s medical report is now almost two years old (it is dated March 13, 2018), his diagnosis does notsuggest that H.C.A.’s condition was likely to improve in the foreseeable future. I am also cognizant of the fact Dr. Sivalingam reportedH.C.A. suffering problems with his right knee in his October 28, 2005 report.

I doubt Canada Pension Plan would continue to pay H.C.A.disability benefits if its physicians were of the view he was able to work. I accept his disability and medications do not make H.C.A. anattractive prospect for employers. I also note from his conduct in these proceeding that H.C.A. literary skills are poor and given he is 59years old, he is unlikely to be able to obtain a “desk job.” H.C.A. had the assistance of ABMEP in assembling the information he neededto file his August 16, 2018 Application.

I do agree with A.P.M. that H.C.A. ought to provide updated medical reports from time to timeso the Court can reassess his ability to work. For now, I accept that H.C.A. is unemployable. Retroactive child support [56] H.C.A. seeks to vary Judge Milne’s February 9, 2009 order to retroactively reduce his child support payments to those whichwould have been payable based on his actual rather than imputed guideline income. A retroactive order is discretionary but notexceptional: Williams v Williams, 2015 BCSC 928 at paras 108-112. It engages the principles set out in D.B.S. v. S.R.G. et al, 2006 SCC37 .

Although D.B.S. dealt with applications by a recipient parent to retroactively increase support, the B.C. Court of Appeal hasheld the same applies to an application by a payor to reduce support. In G.M.W. v. D.P.W., 2014 BCCA 282, D.M. Smith J.A., for theunanimous appellate court, summarized the relevant considerations when applying D.B.S. principles to applications to retroactivelydecrease child support orders by amending the payor’s guideline income. She states at paras. 42 and 43: 42. The Court went on to identify four factors to be considered in determining the appropriateness of such an order: (

i) thecircumstances surrounding the delay in bringing the application; (ii) the payor parent’s conduct; (iii) the children’s circumstances; and(iv) any hardship caused by a retroactive child support order. 43. A finding of unreasonable delay will militate against a retroactive child support award (para. 104). Similarly, a payor parent’sblameworthy conduct, defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriateamount of support” will also militate against a retroactive order (paras. 106-109).

The circumstances of the children are also relevant inorder to ensure that they receive the benefit of a support order to which they are entitled, in a timely manner (paras. 110-113). Lastly,consideration of the hardship that may be occasioned by a retroactive order is not limited to the payor parent (paras. 114-116). Cited in by Justice Schultes in N.M. v. G.M., 2015 BCSC 1732 , at para. 35. [57] The date of retroactivity where the Court finds a retroactive award is due is (

a) the date when an application was made to acourt; or (

b) the date when formal notice was given to the payor parent; or (

c) the date when effective notice was given to the payorparent; or (

d) the date when the amount of child support should have increased or decreased: D.B.S., para. 118. Typically, the Court willnot make a retroactive award for more than three years prior to when “formal notice was given to the payor parent”: D.B.S., para. 123.This is consistent with s. 25(1)(

a) of the Guidelines, which limits requests for a payor’s historical income information to a three-yearperiod. [58] In D.B.S., Justice Bastarache (at para. 99) cautioned that no factor is determinative on its own and the trial judge must strive fora “holistic view of … each case on the basis of its particular factual matrix” in determining whether to make a retroactive support award. [59] H.C.A.’s financial circumstances changed significantly in 2015 when he was no longer able to work. His income went from ahigh of $132,431 in 2014, down to $59,162 in 2015, $10,177 in 2016, $0.00 in 2017 and $32,800 in 2018.

I understand H.C.A.’s 2018income is a result of him receiving retroactive CCP disability benefits for 2017 and 2018. I also note that a significant portion of hisretroactive award was paid to ABMEP to decrease H.C.A.’s accumulated arrears in child support. [60] “Effective notice” is described in D.B.S. as “any indication by the recipient parent that child support should be paid or if italready is, that the current amount of child support needs to be renegotiated.” Effective notice only requires the topic be broached; it doesnot require the recipient parent take any legal action.

Once that has occurred, the payor parent can no longer assume “that the status quois fair, and his interest in certainty becomes less compelling” (see D.B.S., para. 121).

[61] The evidence before me indicates H.C.A. first provided notice to A.P.M. of his intention to seek an order decreasing the amountof child support payable when he made his application to the Court on August 16, 2018. H.C.A. does not argue otherwise. Undue Hardship [62]

Section 10 of the Federal Child Support Guidelines recognizes that, sometimes, a parent (or child) can suffer undue hardship ifthe parent pays the table amount, or the table amount plus special expenses. In such cases, s. 10 permits the application judge to set adifferent amount.

Section 10 states: 1. On either spouse's application, a court may award an amount of child support that is different from the amount determinedunder any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request ismade, would otherwise suffer undue hardship. 2.

Circumstances that may cause a spouse or child to suffer undue hardship include the following: a. the spouse has the responsibility for an unusually high level of debts reasonably incurred to support the spouses and theirchildren prior to the separation or to earn a living; b. the spouse has unusually high expenses in relation to exercising access to a child; c. the spouse has a legal duty under a judgment, order or written separation agreement to support any person; d. the spouse has a legal duty to support a child, other than a child of the marriage, who is: i. under the age of majority, or ii. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtainthe necessaries of life; and e. the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. 3.

Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by thecourt if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of childsupport under any of the sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. 4. In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards ofliving test set out in

Schedule II. 5. Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, areasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable atthe end of that time. 6. Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [63] In order to succeed with an undue hardship claim, H.C.A. must satisfy three distinct steps: a. He must show that paying the table amount would cause him undue hardship; b.

He must show that his household standard of living is lower than that of A.P.M.; and c. If he satisfies the Court the first two steps have been met, the Court then decides on a new support amount. The Court has thediscretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties. [64] As set out above, Section 10(2) lists five circumstances that may cause a parent to suffer undue hardship.

H.C.A. appears to berelying on the fact he has a legal duty to his wife, S.M.A., who cannot get the necessaries of life due to her disability. [65] Undue hardship is a high threshold to meet. Courts have narrowly interpreted each element of the test. The applicant bears theonus of providing adequate supporting documentation to prove his undue hardship claim. The tables are the "floor" for the amount ofchild support payable, not the ceiling. Hardship is not sufficient; the hardship must be undue, that is, exceptional, excessive, ordisproportionate in all of the circumstances: Van Gool v.

Van Gool, (BCCA), para. 51. [66] It is difficult to compare H.C.A.’s household standard of living to A.P.M.’s given the scant information she has provided. I canonly assume she will earn approximately the same salary she has in the past, namely $51,300, tax free. I estimate that would gross up toapproximately $60,000. [67] In her Reply filed April 17, 2019, A.P.M. provides some information as to her personal circumstances.

She states: My full-time position, with [omitted for publication], allows me to cover my basic household expenses, mortgage payments, utilities,transportation, food and clothing; My part-time position, as [omitted for publication], allows me to cover extra-ordinary expenses very minimally. I requested extra-ordinary expenses at the onset of the maintenance hearings, but sadly it was denied; . . .

We do not travel on holidays, as the two incomes I receive only cover the basic necessities and does not allow me the extra funds to plana holiday either on Spring Break or summer. [68] A.P.M. says D.D.M. is now in high school and very active. She has difficulty covering D.D.M.’s travel expenses associatedwith her extracurricular activities. She says that she may have been able to plan for trips if the child support was more consistent andreliable. [69] I am prepared to accept from the financial information he did provide that H.C.A. and his wife are living a fairly modestlifestyle.

Their combined disability pension totals $2,751 per month. I understand his son, K.H., also lives in and contributes to thehousehold from the pension he receives for his disability. [70] I cannot reach conclusions about A.P.M.’s household living standard as compared to H.C.A.’s. Although he bears the burden ofproving undue hardship, H.C.A. is not required to provide information as to A.P.M. household standard of living which is solely withinher purview. [71] I accept paying child support above the Guideline income as he has done for the past few years would cause H.C.A. unduehardship.

Given H.C.A.’s 2019 and 2020 annual Guideline income is $13,961, his ongoing child support at the Guideline level is $117per month. I am not satisfied H.C.A. has established paying ongoing Guideline child support will cause him undue hardship.

Section 7 extraordinary expenses [72] A.P.M. has indicated she would like H.C.A. to assist with D.D.M.’s travel expenses associated with her extracurricular activities.In the past these expenses related to D.D.M.’s participation on the girl’s rugby team. This year, they relate to D.D.M.’s participation inChoir. A.P.M. says she will have to pay $400 to cover D.D.M.’s travel and accommodation to Edmonton. Additionally, she will have toprovide D.D.M. with money for food for four days.

If D.D.M. participates in Choir in Grade 10, A.P.M. will have to cover her travel toCuba, which is anticipated to be $2,000 together with the costs of obtaining her passport. [73] A.P.M. has not specifically counterclaimed for s. 7 expenses, however, I have addressed the issue below. [74] The basic Guideline table amounts of child support are designed to cover all the “ordinary” costs of raising a child. This includefood, shelter, clothing, as well as many educational, extracurricular, and recreational expenses: McLaughlin v. McLaughlin, (BC CA).

Section 7 of the Federal Child Support Guidelines gives the Court the discretion to order payment of an amount over andabove the regular table amount. However, in order to qualify for a s. 7 order, the expenses must be proven to be “special” or“extraordinary” in some way.

Section 7 states: Special or extraordinary expenses 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the followingexpenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests andthe reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern priorto the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training foremployment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professionalcounselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speechtherapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’sparticular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. [75] In Clarke v. Clarke, 2014 BCSC 824 , Mr. Justice states (at para. 51) the list set out in s. 7 is exhaustive. If the expensedoes not fit into any of the enumerated categories, it cannot be a special or extraordinary expense complicated. Still, what is and is not anextraordinary expense is not always straightforward.

Section 7.1 provides some guidance, which states: 7(1.1) For the purposes of paragraphs (1)(

d) and (f), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking intoaccount that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determinedthat the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse wouldreceive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court hasotherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [76] In Bodine-Shah v. Shah, 2014 BCCA 191, the Court of Appeal distinguished between special expenses, as listed in in ss. 7(1)(a)-(

c) and (

e) from extraordinary expenses referred to in ss. 7(1)(

d) and (f). Justice D. Smith for the appellate court explains in para. 66: [66] Special expenses listed in ss. 7(1)(a)-(

c) and (

e) are distinct from extraordinary expenses referred to in ss. 7(1)(

d) and (f).Special expenses are defined as relating to child care, medical or dental insurance premiums, health-related costs, and post-secondaryeducation. They must be found to be reasonable and necessary. Extraordinary expenses are not defined. Their extraordinariness isdetermined in the context of the combined income of the spouses, as well as other considerations, including the nature and amount of theindividual expense, the nature and number of the activities, any special needs or talents of the child, and the overall cost of the activities.They also must be found to be reasonable and necessary.

Relevant considerations for the tests of necessity and reasonableness includewhether the expenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, thechild, and to the family’s spending pattern prior to separation. See McLaughlin v. McLaughlin (1998), (BC CA), 57B.C.L.R. (3d) 186 at paras. 81-82 (C.A.). In assessing “means”, the court may consider the parties’ capital assets, income distribution,debts, third-party resources, access costs, support obligations, receipt of support, and any other relevant factor: Delichte v.

Rogers, 2013MBCA 106,37 R.F.L. (7th) 81 at para. 38. Courts may consider whether the non-custodial parent was consulted regarding the expense,though a lack of consultation does not automatically preclude a finding that the expense is reasonable and necessary: Delichte atparas. 39, 44. [77] In L.A.M. v S.C.M, 2020 BCSC 67 , Justice Weatherill, canvassed the law on what constitutes an “extraordinary”expense. He states, at para. 30: [30] To summarize, before a recreational or extracurricular expense will be considered as a s. 7 expense, it must meet the thresholdof being necessary, reasonable and affordable.

It must be “extraordinary” in the sense that it is over and above what should be considered“ordinary”. Then, the court must consider if the recipient of child support can reasonably cover the expense out of income, includingtable child support. If “yes”, it will usually not be considered an extraordinary expense.

Nevertheless, it may still be considered anextraordinary expense depending on the amount of the expense in relation to the claimant’s income, the kind and number ofprograms/activities that the children are enrolled in, any special needs or special talents the children have, the overall costs of theprograms/activities and other relevant/similar factors. [78] A.P.M. bears the onus of establishing D.D.M.’s extracurricular activities are “extraordinary” and they are reasonable andnecessary and in D.D.M.’s best interests: L.A.M. v S.C.M, at para. 31.

In his March 31, 2005 order, Judge Jack required H.C.A. to pay60% of D.D.M.’s day-care expenses. These expenses were clearly special expenses under s. 7(1)(a). In his February 19, 2009 order,Judge Milne declined to order H.C.A. pay any extraordinary expenses. I have no information as to what A.P.M. claimed as D.D.M.’sextraordinary expenses in 2009 or why Judge Milne refused her claim. [79] If A.P.M. intends to pursue an order H.C.A. contribute to D.D.M.’s travel, she must first prove these expenses are anythingmore than ordinary expenses related to regular extracurricular activities.

In L.A.M. v S.C.M, Justice Weatherill sets out succinctly in para.29, a two-pronged approach in assessing whether an extracurricular expense ought to be considered an extraordinary expense under s.7(1)(

f) of the Guidelines. He states:

a) First, the court should determine whether the expense claimed under section 7(1)(

f) of the Guidelines is an extraordinary expense orextracurricular activity by considering the following factors: i. the combined income of the parties; ii. the nature and amount of the individual expense; iii. the nature and number of the activities; iv. any special needs or talents of the children; v. the overall cost of the activities; and vi. other similar factor that the court considers relevant.

b) Once the court determines that an expense falls within section 7(1)(

f) of the Guidelines, a court must then determine whether theexpenses are necessary in relation to the child's best interests and reasonable in the circumstances having regard to the following factors: i. the means of the spouses and those of the child; and ii. the family spending pattern prior to separation. [80] In Clarke v.

Clarke, 2014 BCSC 824 (at para. 54) Justice Baird provided a list of expenses which do not qualify as special orextraordinary, which include extracurricular activities where the child’s participation does not go beyond that of an “average child.” [81] Where the Court does find an extracurricular activity constitutes an extraordinary expense under s. 7, it generally requires eachparent to pay this expense proportionate to their relative incomes. Nevertheless, the Court may order a different proportion if required bythe parent’s financial circumstances.

If the Court were to characterize D.D.M.’s extracurricular travel expenses as “extraordinaryexpenses” A.P.M.’s proportionate share of those expenses would be approximately 77% and H.C.A.’s 23%.

[ 82 ] In sum, I am not prepared to make any order under s. 7 of the Guidelines that H.C.A. contribute to D.D.M.’s extracurricular travel costs. A.P.M. is at liberty to bring such an application in the future, however, she will need to provide an evidentiary basis for the Court to make such an award. Analysis [ 83 ] In determining the issues before the Court I have taken the following facts: a. Pursuant to Judge Jack’s March 31, 2005 Order, H.C.A. was required to pay child support to A.P.M. based on an imputed income of $100,000 for a BC payor, retroactive to November 1, 2004.

H.C.A.’s income tax returns from 2001 to 2005 show that he earned significantly less than $100,000; b. H.C.A. fell hopelessly into arrears; c. On February 19, 2009, Judge Milne reduced H.C.A.’s child support to $400 per month, which suggest either: (

a) H.C.A. had an annual Guideline income of $47,400 for an Alberta payor based on the May 1, 2006 Tables; or (

b) Judge Milne accepted H.C.A.’s hardship claim and ordered H.C.A. pay less than the table amount of child support; d. Judge Milne declined to make an order H.C.A. pay a portion of D.D.M.’s extraordinary expenses, whatever there were asserted to be; e. Also on February 19, 2009, Judge Milne fixed H.C.A.’s arrears at $17,710 which was a reduction of $27,361.92; f. In 2005 2006, 2007, 2008, 2014 and 2015, H.C.A. paid less than the table amount of child support. The Court has no information as to H.C.A.’s income for 2009, 2010, 2011, 2012 or 2013. Specifically: i.

In 2005, H.C.A. earned $68,922, which gives rise to a Guideline child support payment for an Alberta payor of $578 per month, using the May 1, 1997 Federal Child Support Guidelines . H.C.A. paid $400 per month, which is $2,136 less than the annual Guideline amount ($178 x 12 = $2,136); ii. In 2006, H.C.A. earned $90,238, which gives rise to a Guideline child support payment of $738 per month using the May 1, 1997 Federal Child Support Guidelines and $793 using the May 1, 2006 Guidelines .

H.C.A. paid $400 per month, which is $5,100 less than the annual Guideline amount (($338 x 4 = $1,352) + ($393 x 8 = $3,144) = $4,496); iii. In 2007, H.C.A. earned $85,276, which gives rise to a Guideline child support payment of $750 per month for an Alberta payor using the May 1, 2006 Federal Child Support Guidelines . H.C.A. paid $400 per month, which is $4,200 less than the annual Guideline amount ($350 x 12 = $4,200); iv.

In 2008, H.C.A. earned $85,276 and that for the 11 months ending November 28, 2008 which would be approximately $93,028 for the year, which gives rise to a Guideline child support payment of $818 per month for an Alberta payor using the May 1, 2006 Federal Child Support Guidelines . H.C.A. paid $400 per month, which is $5,016 less than the annual Guideline amount ($418 x 12 = $5,016); v. In 2014, H.C.A. earned $132,431 which gives rise to a Guideline child support payment of $1,154 per month for an Alberta payor using the December 31, 2011 Federal Child Support Guidelines .

H.C.A. paid $400 per month, which is $9,048 less than the annual Guideline amount ($754 x 12 = $9,048); vi. In 2015, H.C.A. earned $ 59,162 which gives rise to a Guideline child support payment of $492 per month for an Alberta payor using the December 31, 2011 Federal Child Support Guidelines . H.C.A. paid $400 per month, which is $1,104 less than the annual Guideline amount ($92 x 12 = $1,104); g.

Based on the documentation before the Court, it is a safe inference that H.C.A. paid less than the Guideline amount of child support based on his annual income for the years for which the Court has no documentation, namely 2009 to 2013, inclusive; h. In 2016 H.C.A. earned $10,177, which exempted him from paying any child support under the Guidelines . He paid $400 per month, which is $4,800 more than the annual Guideline amount ($400 x 12 = $4,800); i. In 2017, H.C.A. earned $0.0, which exempted him from paying any child support under the Guidelines .

Even if H.C.A.’s 2017 income was $11,204 from CPP benefits, his child support payment would be $0.00. He paid $400 per month, which is $4,800 more than the annual Guideline amount; j. H.C.A.’s 2018 Notice of Assessment attached to his August 6, 2019 affidavit states his total Line 150 Income for 2018 was $32,800, which I accept to be his Guideline income for the year. A Guideline income of $32,800 per month gives rise to a Guideline child support obligation of $275 per month for an Alberta payor under the November 22, 2017 Federal Child Support Tables .

H.C.A. paid $400 per month, which is $1,500 more than the annual Guideline amount ($125 x 12 = $1,116); k. In 2019, H.C.A. earned $13,961.16, which gives rise to a guideline child support obligation of $117 per month for an Alberta payor under the November 22, 2017 , Federal Child Support Tables . H.C.A. paid $400 per month, which is $3,396 more than the annual Guideline amount ($283 x 12 = $3,396); l. In 2020, H.C.A. is expected to earn $13,961.16. He will continue to be charged $400 per month until Judge Milne’s February 19, 2009 order is varied; m.

In addition to the $400 month ABMEP assessed H.C.A. for child support payments, he has also been charged default fees and interest;

n. H.C.A. has rarely voluntarily paid child support for D.D.M. The vast majority of support flowed from ABMEP garnishment orders served on third parties . ( D. B.S. held that the payor’s conduct can be relevant: paras. 105-109)’ o. H.C.A. is $1,374.19 in arrears of child support as of November 25, 2019, based on the sums he was ordered to pay on Judge Milne’s February 19, 2009 order; p. Because of his arrears, H.C.A. had lost his driver’s licence and has been assessed a further $2,000 fine.

Conclusion [ 84 ] I am not satisfied H.C.A. has met the threshold test for hardship claim and I make no orders in that regard. [ 85 ] To the extent it was before me, I am not satisfied A.P.M. has established a claim for extraordinary expenses for D.D.M., and I make no orders in that regard. [ 86 ] I am satisfied H.C.A.’s disability and subsequent unemployment constitutes a material change of circumstances and that Judge Milne’s March 19, 2009 order ought to be varied.

Although H.C.A. became disabled in mid-2015 and has little to no income in 2016 and 2017, given the number of years he paid child support to A.P.M. for D.D.M. far below the Guideline level, I am not prepared to reduce H.C.A.’s child support payments prior to his bringing his August 16, 2018 Support Variation Application. [ 87 ] I made the following Court Orders: a. H.C.A. is a resident of Alberta. b. Commencing September 1, 2018 and ending December 31, 2018, H.C.A. has an annual Guideline Income of $32,800. c.

H.C.A. will pay child support to A.P.M. for D.D.M. born [omitted for publication], in the amount of $275, on the 1 day of September 2018, and continuing on the 1st day of each and every month to and including December 31, 2018; d. Commencing January 1, 2019, H.C.A. has an annual Guideline Income of $13,961.16; e. H.C.A. will pay child support to A.P.M. for D.D.M., in the amount of $117, on the 1st day of January 2019, and continuing on the 1st day of each and every month for so long as D.D.M. is eligible for child support under the Family Law Act , or until further order of this Court; f.

For as long as D.D.M. is eligible to receive child support, H.C.A. will provide to A.P.M.: i. copies of his Income Tax Returns for the previous year, including all attachments, not later than June 1 each year; ii. copies of any Notice of Assessment or Reassessment provided to him by Canada Revenue Agency, immediately upon receipt; g. If upon recalculation of his support payments for D.D.M, H.C.A. is entitled to a credit, the entire credited sum will be held in trust by ABMEP and used to pay H.C.A.’s future child support payments as they become owing to A.P.M. until the credit is exhausted; h.

Either H.C.A. or A.P.M. can apply to clarify, settle, review, or vary the terms of this Order upon reasonable notice to the other; i. Neither H.C.A. nor A.P.M. is required to approve the form of this order. ______________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia