Cook v. Schlase, 2013 BCSC 393

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cook v. Schlase, 2013 BCSC 393 Date: 20130308 Docket: E13734 Registry: New Westminster Between: Brenda Kathryn Cook Claimant And Robert Gene Schlase Respondent Before: The Honourable Madam Justice Kloegman Reasons for Judgment In Chambers The Claimant/Applicant, Ms. Cook: In Person Counsel for the Respondent: J-P.E. Boyd Place and Date of Hearing: Vancouver, B.C. March 1, 2013 Place and Date of Judgment: New Westminster, B.C. March 8, 2013 THE APPLICATION [ 1 ] Ms. Cook applies for an order that Mr.

Schlase pay to her the Guidelines amount of monthly child support for their daughter Brooke and son Riley, retroactively from June 9, 2005, and prospectively for as long as they are children of the marriage. She also applies for an order that Mr. Schlase pay her his proportionate share of special expenses for Brooke and Riley, specifically, post- secondary education expenses. Finally, she seeks an order that Mr. Schlase’s annual Guidelines income be imputed to be $113,000 for each year since 2005. [ 2 ] Mr.

Schlase does not object to an ongoing order that he pay to Brooke a share of her tuition fees, student fees and textbook costs (net of any contributions from her) on condition that Ms. Cook also contribute a proportionate share toward these costs. He opposes an order for retroactive or prospective child support for either child, as they are both over the age of 19 and working. [ 3 ] The parties were married on August 10, 1991. They had three children, one of whom was born of a former relationship of Ms. Cook’s.

He is now 26 years old and is living independently and self-sufficiently. [ 4 ] Their second child, Brooke, is 20 years old and is attending her third year at Kwantlen University. She has recently changed her focus of study and expects to graduate in 2015. She studies two days a week and works five days a week, currently as a bartender. She earns about $13,000 per year, exclusive of tips. [ 5 ] The third child, Riley, is 19 years old and works full time at Boston Pizza. In the summer of 2012, he broke his arm and drew employment insurance benefits while recovering.

He has applied a couple of times for the welding program at Kwantlen University, but to date has been unsuccessful in obtaining acceptance. [ 6 ] The parties were divorced in June 2005 by order of Madam Justice Smith, granting custody of the children to Ms. Cook and requiring Mr. Schlase to pay $906 per month child support, based on a Guidelines income of $68,752. [ 7 ] Mr. Schlase’s income increased over the years as a result of a series of promotions within the City of White Rock Fire/Rescue Department where he is employed. He currently earns about $107,000 per annum.

He has continued to pay the same amount of child support since 2005, and since 2010, he has paid one-third of Brooke’s costs of post-secondary education. [ 8 ] In 2008, Mr. Schlase remarried a woman with four children and an ailing father, all of whom reside with him and his wife. Mr. Schlase’s wife earns approximately $28,000 per annum, giving them a combined household income of $135,000 per year. Mr. Schlase’s property and financial statement indicates that they have expenses of $170,000 per year for the family and an ever-increasing debt load to make ends meet.

[ 9 ] Ms. Cook earns $61,342 as a social worker. She says she can no longer afford to contribute to the cost of Brooke’s education. She brought this application on August 2, 2012. Due to unavailability of court time, the parties were not able to be heard until March 1, 2013. I. Retroactive child maintenance A. General Principles [ 10 ] Ms. Cook argues that Mr. Schlase had the obligation to increase his child support over the years commensurate with his increase in salary.

She submits his failure to do so amounts to blameworthy conduct entitling her to retroactive child support, based on an average imputed income of $113,000 per year. She further submits that the order of Smith J. does not provide for child maintenance to stop once the children reach 19 years of age.

She says her children have suffered hardship from their father’s failure to pay proper support and that their interests should be paramount over the interests of his new family, who are now reaping the benefit of his increased salary to the detriment of both Brooke and Riley. [ 11 ] As is evident from the lack of legal foundation for many of Ms. Cook’s arguments, she is self-represented.

I have no doubt she has the best interests of her own children at heart, but she needs to understand that it is the role of the court to consider the best interests of all children who will be affected by the outcome of these proceedings. Furthermore, she needs to understand that simply stating conduct to be “blameworthy”, or “hardship” to have been suffered, does not make it so. There must be a sound evidentiary basis for such findings and the onus is on her to provide it. [ 12 ] The Supreme Court of Canada decision in D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v.

Hiemstra , [2006] 2 S.C.R. 231, 2006 SCC 37 , with which Ms. Cook seemed to have some familiarity, makes clear that the following principles will apply when retroactive child support is sought: 1. Parents have the moral and legal obligation to care for, protect and rear their children. This does not change upon the breakdown of marriage. 2. Parents have an obligation to support financially their children commensurate with their income. 3. A parent’s increase in income will increase his or her share of child support and the total amount of support owed. 4.

A court’s jurisdiction over child support arises only upon application by a person authorized to pursue it on behalf of the children (My emphasis). 5. The Guidelines do not burden a payor parent with automatic disclosure every time his or her income increases.

Section 25 of the Guidelines mandates disclosure only upon request by the recipient parent, and then only once a year (My emphasis). 6. Where one or both parents fail to vigilantly monitor child support, the children must not suffer. 7. Factors to consider where there has already been a court order for child support are:

a) a payor parent who diligently pays the child support amount ordered by a court must be presumed to have fulfilled his support obligations towards his children;

b) acting consistently with the court order provides the payor parent with the benefit of predictability, and a degree of certainty in managing his affairs;

c) the court order does not absolve the payor parent or the recipient parent of the responsibility of continually ensuring that the children are receiving an appropriate amount of support;

d) as the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes;

e) where the payor parent is found to be deficient in his support obligation to his children it will be open for a court to vary an existing order retroactively and amounts that should have been paid earlier will become immediately enforceable. [ 13 ] With these general principles in mind, I turn to the specific issues in this case that militate for or against the granting of retroactive support. B.

Status of the Children [ 14 ] It is trite law that to be the object of child support, a child must be a child of the marriage, that is under the age of 19, or over 19 but unable to withdraw from his or her parents’ charge. [ 15 ] In the case at bar, both children are no longer under the age of 19, although Riley was only 18 at the time this application was filed.

The issue is whether the children are “unable, by reason of illness, disability or other cause to withdraw from their parents’ charge or to obtain the necessaries of life.” ( s. 2(1) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp).) [ 16 ] The only evidence proffered by Ms. Cook with respect to Riley’s inability to withdraw from her charge is the amount which he is earning, his intention to attend Kwantlen University and the fact that he is still living with her. In effect, she wishes me to take judicial

notice that a waiter at Boston Pizza cannot be self-sufficient nor afford a post-secondary education. [ 17 ] In my opinion, there is insufficient material for me to draw a conclusion that Riley is still a child of the marriage. He dropped out of high school in grade 11 to go to work. The evidence indicates that in 2011 Riley worked anywhere from 14 hours to 48 hours per week. There was no evidence as to his earnings for 2012, either from Boston Pizza or employment insurance. The plan to attend Kwantlen University has not yet materialized, nor has the plan to work with Fraser River Pile & Dredge. [ 18 ] Ms.

Cook may feel she has a moral obligation to continue to support her son by allowing him to live at home, but this cannot be elevated to a legal obligation on the part of Mr. Schlase to pay child support either retroactively or prospectively. Riley is not attending a post-secondary institution and is working full time. He is over the age of 19 and is not a dependant by reason of any infirmity or disability. Even if he should have received greater amounts of child support earlier in his life, he cannot make that claim as an independent adult ( D.B.S. , para. 89 ; and Budden v.

Budden , 2001 BCSC 236 ). [ 19 ] However, in my view, Brooke is still a child of the marriage. I do not accept Mr. Schlase’s contention that Brooke is living in a marital-like relationship with her boyfriend. There is direct evidence from Brooke’s boyfriend and his mother that she does not live with them either part-time or at all. I accept that Brooke resides with Ms. Cook. [ 20 ] Brooke has been carrying a full course load at Kwantlen University and working as well.

Given her relatively low earnings (of which there was evidence), and the continuing costs of her post-secondary education (of which there was evidence), it is unlikely that she would be able to support herself completely. She remains a child of the marriage at the time of this application. [ 21 ] Therefore, I dismiss Ms. Cook’s application with respect to Riley based on his lack of status as a child of the marriage, but I will go on to consider whether a retroactive increase to child support should be made in respect to Brooke.

Orders for retroactive support are discretionary and that discretion must be exercised after considering: 1. The reasonableness of the excuse why child support was not sought earlier; 2. Conduct of the payor; 3. Circumstances of the child; and 4. Hardship to the payor. ( D.B.S. ) 1. Reasonableness of excuse [ 22 ] Delay in seeking child support is not presumptively justifiable ( D.B.S. , para. 101 ). There are a variety of ways in which a delay may be reasonably excused, but not where a recipient parent knows higher child support payments were warranted, but decides arbitrarily not to apply.

In the case at bar, Ms. Cook is very candid about learning of Mr. Schlase’s promotion within a few months after the order of 2005. She says she sent an e-mail to him about a year later (2006) requiring increased child support. She cannot produce a copy of the e-mail and Mr. Schlase vehemently denies ever receiving such communication. There is no explanation or excuse offered up by Ms. Cook to explain why she waited six years before pursuing this claim. I find that she has not proved on a balance of probabilities that she requested income information or increased child support from Mr.

Schlase until she brought this application. I further find she has not provided the Court with a reasonable excuse for this long delay. 2. Conduct of the payor [ 23 ] A payor parent cannot hide income increases, or intimidate a recipient parent into abstaining from bringing an application for increased support, or mislead a recipient into believing his support obligations are being met when he knows they are not.

Such conduct is considered “blameworthy” and will not be countenanced ( D.B.S. , para. 107 ). [ 24 ] However, a payor parent who does not automatically increase support payments when his income rises is not necessarily engaged in blameworthy conduct. He is following a valid court order and must be presumed to be acting reasonably, unless the evidence shows that he cannot reasonably rely on the order and is avoiding disclosure of income. [ 25 ] In the case before me, there is no evidence of deliberate misrepresentation of income by Mr.

Schlase, or any other dishonesty or deception by him that could constitute blameworthy conduct ( Price v. Price , 2010 BCCA 452 ). There is no evidence of intimidation of Ms. Cook or her lack of fortitude in being unable to bring this application ( Greene v. Greene , 2010 BCCA 595 ). Mr. Schlase has continually paid child support and has paid one-third of Brooke’s post-secondary education costs. I cannot find blameworthy conduct on the part of Mr. Schlase. 3.

Circumstances of the child [ 26 ] A court must consider both the past and the present circumstances of the child in deciding whether a retroactive award is justified. A child who underwent hardship in the past may be compensated through a retroactive award, but a child who already enjoyed the advantages she would have received is less likely to be so entitled ( D.B.S. , para. 113 ). [ 27 ] In the case at bar, there is no evidence that the reasonable material needs of Brooke were not or are not now being met, or that she suffered or suffers from a lack of financial support. Ms.

Cook has not shown she has incurred debt or encroached on capital to meet Brooke’s needs ( Baldwin v. Funston , 2007 ONCA 381 ). Ms. Cook has not proved that Brooke suffered hardship in the legal sense required to receive retroactive support.

4. Hardship to the payor [ 28 ] When a payor has a new family, as in the case of Mr. Schlase, with new family obligations to meet, a retroactive lump sum award can wreak havoc on the family finances. There is uncontradicted evidence that Mr. Schlase is already seriously in debt, and to impose retroactive support would not only cause him and his wife to suffer financial hardship, but their children also. C.

Conclusion on Retroactive Maintenance [ 29 ] Riley is no longer a child of the marriage and has no status to receive retroactive maintenance. [ 30 ] Brooke has the status of a child of the marriage, but when I weigh all the above factors, I am of the view that they militate against a retroactive award for increased maintenance. Ms. Cook has no reasonable excuse for the inordinate delay in bringing this application; Mr. Schlase is not responsible for the delay and has not engaged in blameworthy conduct; there is no evidence of deprivation to Brooke, now or in the past; and there would be financial hardship to Mr.

Schlase and his new family if an award for retroactive maintenance was imposed. I dismiss this part of Ms. Cook’s application. II. Prospective support [ 31 ] Prospectively, Mr. Schlase must pay to Ms. Cook child support for Brooke based on his Guidelines income of $106,824 until she is no longer a child of the marriage. I am advised by counsel this amounts to $978 per month. In addition, both he and Ms. Cook must pay a share of Brooke’s tuition fees, student fees and textbook costs, net of any bursaries or grants (but not student loans).

Brooke, too, must contribute to the cost of her post-secondary education but fairness dictates that it be in proportion to her earnings. Thus Mr. Schlase’s contribution should be based on an income of $106,824, Ms.

Cook’s contribution should be based on an income of $61,342, and Brooke’s contribution should be based on an income of $13,000. [ 32 ] Finally, from now until Brooke is no longer a child of the marriage, both parties must exchange Notice of Assessments annually, on July 1, and the monthly child support and proportionate payment of special expenses shall be adjusted in accordance with the parties’ incomes and the Guidelines . “Kloegman J.”