T.M.S. v. S.D.J. Date:, 2016 BCPC 3

Citation: T.M.S. v. S.D.J. Date: 20160104 2016 BCPC 0003 File No: 1435 Registry: Masset IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.M.S. APPLICANT AND: S.D.J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Appearing on their own behalf: T. M. S. Appearing on their own behalf: S. D. J. Place of Hearing: Masset , B.C.

Date of Hearing: October 21, 2015 Date of Judgment: January 4, 2016 INTRODUCTION [ 1 ] On January 9, 2013 T.M.S. filed an Application to Change or Cancel an Order (the Application) in which she sought a review of an Order granted January 9, 2007 as it pertains to child support and providing for medical and dental coverage for the child, S.S., born [DOB] (S.). [ 2 ] On February 21, 2014 S.D.J. filed a Reply (the Reply) where he agreed that there should be a parenting time

schedule which he suggested it be two weekends per month plus two weeks of parenting time at the beginning of the summer school vacation and two weeks at the end of the summer school vacation. He disagreed with Ms. S.’s Applications concerning child support or variation to the January 9, 2007 Order. [ 3 ] When the matter came on for hearing on October 21, 2015 Ms. S. was also claiming the following relief:

a) extended medical and dental coverage for S.;

b) special expenses, reimbursement for medical expenses already incurred for S.;

c) child support for S. retroactive to 2011;

d) ongoing child support based on a determination of Mr. J.’s income tax-free status as a First Nations person; and

e) specified parenting time between Mr. J. and S. based on Mr. J.’s lack of regular involvement in the past. [ 4 ] When the matter came on for hearing Mr. J. refined his position to seek the following relief:

a) a determination that there is no basis for retroactive support to 2011 because that issue had already been resolved by the Court;

b) a recognition that he was fully paid up on child support as ordered to March 2015;

c) a reduction in the child support he should pay for S. based on the termination of his employment in early 2015;

d) reasonable parenting time with S. [ 5 ] Mr. J. also suggested to the Court that he was unaware that the attendance of October 21, 2015 would be for a hearing even though he and Ms. S. had attended before the Judicial Case Manager by telephone on September 22, 2015 when the matter was scheduled for a hearing. [ 6 ] However, based on the possibility (albeit remote) that Mr.

J. may have been somehow confused about the purpose of the hearing and the orders arising, these reasons will be interim orders only so as to permit either of the parties to file further evidence or documents to substantiate any issues they claim this Court did not have the appropriate evidence before it at the time of the hearing. EVIDENCE Family Background [ 7 ] Ms. S. is 43 and she works as a part-time special education teacher for the local school district. She estimated her income to be approximately $20,000 per year. [ 8 ] Mr.

J. is 41 and for many years, until he was terminated in February 2015, he worked for [omitted for publication]. as a marine engine mechanic at [omitted for publication] stationed in Skidegate. [ 9 ] The parties resided in a common-law relationship for a period of time until approximately March 2002, six months before S. was born. After S.’s birth, Mr. J. did not participate in his upbringing for over four years. [ 10 ] Since 2007 there have been various court ordered parenting arrangements which Ms. S. says never resulted in Mr.

J. exercising, on a regular basis, his parenting time with S. which caused inconvenience to her and distress to S. [ 11 ] Mr. J. said that his time with S. is difficult to arrange given that he lives in Skidegate and Ms. S. and S. lived in Masset approximately 100 kms away. Ms. S. replied that both she and Mr. J. have family members in both communities who are ready and able to assist in transporting S. if Mr. J. will agree to a parenting time schedule. Mr. J. said he did not want family members involved in S.’s transportation but gave no reason for that position. [ 12 ] Mr.

J. said he had not had regular parenting time since 2007 and last saw S. before the hearing in September 2015. Litigation History [ 13 ] On April 4, 2006 Ms. S. filed an Application to Obtain and Order in which she claimed guardianship, custody, and child support for S. In that Application she disclosed that she had been requesting support from Mr. J. for four years with no success.

[ 14 ] On May 15, 2006 Mr. J. filed a Reply in which he denied any responsibility to pay child support for S. until it was determined whether or not he was S.’s father. [ 15 ] On January 9, 2007 the Court granted Ms. S. sole custody of S., set out a process for Mr. J.’s reunification with S. including the utilization of third parties to assist, ordered Mr. J. to pay child support for S. in the amount of $547.00 per month commencing January 1, 2007 based on an income of $58,578.00, required Mr.

J. to place S. on his medical and dental benefit plan through his employer, required both parties to cooperate in obtaining a birth registration for S. naming both of them as parents. [ 16 ] On August 29, 2007 the Court ordered Mr. J. to pay for airplane tickets to allow S. to attend for medical specialist appointments in Vancouver. [ 17 ] On November 6, 2007 the Court ordered a third party to act as a mediator between the parties concerning Mr. J.’s time with S. as a result of allegations by Mr. J. in various Affidavits that Ms.

S. was being uncooperative with the efforts to have a third-party assist in that regard. [ 18 ] On December 4, 2007 the Court ordered the parties to meet with a different third-party to plan for Mr. J.’s reunification with S. In that Order the court also determined Mr. J.’s income to have a “grossed up” imputed value of $74,000.00 and required him to pay child support in amount of $689.00 per month commencing on September 1, 2007. [ 19 ] On January 15, 2008 the Court determined that Mr. J. was in arrears of child support and imposed a repayment scheme for those arrears. [ 20 ] On January 9, 2013 Ms.

S. brought the Application. On October 21, 2014 Mr. J. filed the Reply. [ 21 ] On March 14, 2014 the Court ordered Mr. J. to file, by May 2, 2014, an updated Financial Statement, copies of his 2013 Tax Return, copies of his 2013 T-4’s, and his most recent pay stubs from his employer, [omitted for publication]. Mr. J. did not comply with that Order. [ 22 ] On May 16, 2014 the Court imputed an income to Mr. J. of $92,000.00 and ordered that he pay child support for S. in the amount of $853.00 per month commencing February 1, 2014. [ 23 ] On May 16, 2014 the Court also ordered Mr.

J. to file, by June 13, 2014, a complete Financial Statement and all bank statements from all bank accounts in his name for the years 2011, 2012, 2013 and 2014 to date. Mr. J. did not comply with that Order insofar as he did not file a Financial Statement. On July 16, 2014 he did file a series of documents including some pay stubs, letters from his employer setting out his income and bank statements from January 2010 to May 2014. He has not provided any further financial disclosure after July 16, 2014. [ 24 ] On July 18, 2014 Ms. S. filed a Notice of Motion seeking an order that Mr.

J. be fined for any missed child support payments. [ 25 ] On August 15, 2014 Ms. S. filed a Notice of Motion seeking orders including: that Mr. J. disclose financial information including explanations of various amounts of money deposited to his bank accounts; that he disclose rental income; that Mr. J.’s name be placed on S.’s birth registration; that Mr. J. be responsible for one half of the medical expenses and transportation for S.’s medical appointments; that Mr. J. pay retroactive child support for 2011, 2012 and 2013; and that Mr.

J. have specified parenting time. [ 26 ] On November 21, 2014 the Court ordered Mr. J. to file, by the end of December 2014, a completed Financial Statement and attach copies of his Income Tax Returns for the past three years and his most recent pay stub from [omitted for publication]. Mr. J. did not comply with that Order. Financial Disclosure [ 27 ] Despite the Orders of the Court made on March 14, 2014, May 16, 2014 and November 21, 2014 requiring Mr. J. to file Financial Statements disclosing his Tax Returns and his income stream, he did not do so. [ 28 ] At the hearing Mr.

J.’s explanation for failing to comply with the Court’s Orders included:

a) he did not think that providing the information required would help him one bit;

b) he did not know how to properly complete the Financial Statements; and

c) his Income Tax Returns and Notices of Assessment show zero income for the years at issue because he pays no income taxes as a First Nation’s person who receives their income on reserve. [ 29 ] Mr. J. did send copies of his Tax Returns and Notices of Assessment for the tax years 2010 through 2013 to the court registry at various times. All these documents provided no real information to the court or Ms. S. because, as a First Nation’s person receiving their income on reserve, those tax documents indicate no taxable income. Mr. J.’s Employment in 2015 [ 30 ] On February 26, 2015 a letter was sent to Mr.

J. by [omitted for publication] indicating that his employment with them was terminated for cause, misconduct. Ms. S. contended the termination was due to Mr. J. utilizing [omitted for publication] property for personal use and because he sold a marine engine belonging to [omitted for publication]. [ 31 ] Mr. J. said that he has done nothing wrong and that there is a grievance process in place which is not yet completed. He was unable to provide the Court with any details about the status of that process other than to say that there may be an upcoming hearing on the matter.

[ 32 ] Ms. S. suggested that Mr. J. engaged in a variety of work in 2015 including:

a) small engine repairs;

b) fish guiding from his boat and other boats;

c) operating a water taxi;

d) selling fish and seafood; and

e) working at a fishing lodge. [ 33 ] Mr. J. said that he did the following things in 2015:

a) he did not sell fish or seafood but his father did;

b) he gave away some fish and seafood that he caught;

c) he did not participate in any commercial fishing, only food fishing;

d) he did some fish guiding but was not paid;

e) he helped to set up a water taxi business for a family member and ran the water taxi for a day or two but was not paid;

f) he worked for one week at a fishing lodge and was paid approximately $700.00;

g) he looked for other odd jobs but with little success;

h) he did not qualify for Employment Insurance because he did not receive a Record of Employment from [omitted for publication] when he was terminated;

i) he hopes to get a sea urchin harvesting license but will have to get a loan to buy a boat if he is successful; and

j) he owns a boat now but it is in disrepair and has no engine. Special and Extraordinary Expenses [ 34 ] S. suffers from a medical condition that requires the use of an EpiPen and occasional visits to both the hospital and a specialist either on a scheduled or emergency basis. [ 35 ] According to Ms. S., Mr. J. has never voluntarily contributed to S.’s medical expenses although he once contributed to some flight costs after being ordered to do so by the court. [ 36 ] In February 2013 S. had to go to a specialist on the mainland. Ms. S. said that trip cost $1,206.00. Ms. S. wants Mr.

J. to contribute to that expense but he has not done so. Ms. S. said S. also requires a new EpiPen on a yearly basis of the cost of $127.00. Extended Medical and Dental Coverage [ 37 ] Mr. J. contends that although S. was able to be put on his extended dental coverage while he was employed he could not put him on his extended medical because he was not named as S.’s father on the birth registration. Mr. J. did not provide any documentary evidence to substantiate his statements in that regard to either Ms. S. or the Court. [ 38 ] Ms. S. did make some attempts at various times to get information from Mr.

J.’s employer concerning what steps needed to be taken in order to ensure S. could be placed on Mr. J.’s extended medical but that never occurred. Parenting Time [ 39 ] Both Ms. S. and Mr. J. accuse the other of a variety of actions or inactions surrounding Mr. J.’s lack of consistent parenting time with S. [ 40 ] Ms. S. wants a regular

schedule of monthly and summer parenting time for Mr. J. to be set out in such a manner so that she and S. can be assured the parenting time will happen on a set

schedule and for the full duration of time that is scheduled. [ 41 ] Mr. J. agrees that there should be a

schedule including monthly, summer and Christmas parenting time, as well as recognition of special cultural events. [ 42 ] Mr. J. acknowledged that there is poor communication between him and Ms. S. and agreed that communication by email or text on matters concerning S. might be more appropriate and effective than the present communication situation. Retroactive Child Support [ 43 ] Ms. S. submits that the child support should be calculated on a retroactive basis back to 2011 for two reasons:

a) her previous counsel said she should; and

b) Mr. J. has had an income increase over the years which he has not fully disclosed to her or to the court.

[ 44 ] Mr. J. contends that the support issues have been addressed several times over the years by the court and that he is paid all the amounts he was ordered to pay up to early 2015. [ 45 ] Ms. S. presented no evidence to indicate that Mr. J. did not comply with any of the previous court ordered child support payments up to the end of 2014. Child Support Arrears [ 46 ] Mr. J.’s position is that he has paid all of the child support due under the most recent Order until March 2015, after he was terminated from his employment.

He claims to have proof of such payments but did not provide any evidence in that regard to the Court. THE LAW Family Law Act [ 47 ] The sections of the Family Law Act ( FLA ) that have application in this case include: a) 150

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines. b) 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively. 2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

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

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. Orders respecting disclosure c) 212

(1) A court may at any stage of a proceeding make an order to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules.

(2) If an order is made under subsection (1), the court may order a party to pay, to the other party or to another person, all or part of the expenses reasonably and necessarily incurred in complying with the order.

(3) A person must not disclose information obtained under an order made under this

section except (

a) as necessary to resolve a family law dispute, and (

b) in accordance with the order. Enforcing orders respecting disclosure d) 213

(1) This

section applies if a person (

a) fails to comply with (

i) an order for disclosure made under

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

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

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

a) make an order under

section 212; (

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

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

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

i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non- disclosure of information or the incomplete, false or misleading disclosure, or (iii) a fine not exceeding $5,000; (

e) make any other order the court considers appropriate. Case Law [ 48 ] Although not referred to by either party, the leading case on retroactivity of child support is the Supreme Court of Canada decision in D.B.S. v. S.R.G. 2006 SCC 37 . That case was very recently followed and applied in the Supreme Court of British Columbia’s decision of Brown v. Kucher 2015 BCSC 1258 . DISCUSSION Parenting Time [ 49 ] It is clear from the brief period of time the parties appeared before the Court that there is a lack of cooperative and civil communication between them.

Therefore, they require the assistance of the Court to ensure that S. builds a loving and appropriate relationship with both of his parents. In doing so the Court is guided only by what it determines to be in S.’s best interests. [ 50 ] It is necessary in the circumstances pertaining at this time to impose scheduled parenting time for Mr. J. that is both regular and is done in the expectation that he will utilize the full amount of parenting time granted to him in each circumstance. [ 51 ] Commencing on February 1, 2016 and in each and every month thereafter until further order of the court, Mr.

J. will have parenting time with S. on the third full weekend of each month commencing on Friday at 4 PM and running until Sunday at 4 PM (or Monday at 4 PM if it is a long weekend). [ 52 ] In addition to the regular monthly parenting time, Mr. J. will have summer parenting time with S. from June 30, 2016 at 9 AM until July 15, 2016 at 4 PM and August 15, 2016 at 9 AM until August 28, 2016 at 4 PM. If the parties are unable to resolve Mr.

J.’s summer parenting time with S. for the year 2017, either party is at liberty to apply to the court for further orders. [ 53 ] Furthermore, in addition to the regular monthly parenting time, Mr. J. will have Christmas parenting time with S. in 2016 for eight days during the Christmas school vacation as agreed upon between the parties not later than September 30, 2016. If such agreement cannot be reached, either party is at liberty to apply to the court for an order specifying Mr.

J.’s 2016 Christmas parenting time. [ 54 ] In order to permit and encourage S.'s attendance at cultural and community events with Mr. J. there will also be a provision that Mr. J. will have parenting time with S. on any other occasion that the parties may agree to upon Mr. J. providing at least 14 days’ notice to Ms. S. [ 55 ] At the commencement of each parenting time, Mr. J., or his designate, will be responsible for picking S. up at Ms. S.’s residence or other location she may designate in Masset. At the conclusion of Mr. J.’s monthly parenting time, Ms.

S., or her designate, will be responsible for picking S. up at Mr. J.’s residence or other location that he may designate in Skidegate. [ 56 ] Any contact between the parties other than in an emergency shall be by electronic written communication, text or email, and limited to matters concerning S. and his well-being. In the event of an emergency either party may contact the other by telephone. Medical and Dental [ 57 ] Mr. J. has had no employment in a position that provides medical and dental since March 2015.

However, if and when he either recommences employment with [omitted for publication], he will have two options open to him to avoid further sanctions by the court:

a) obtain and maintain both extended medical and dental for S.; or

b) if either or both of extended medical or dental is not available for S., to supply to Ms. S. and the court written verification from either his employer or the medical and dental insurance provider indicating that S. cannot be covered under the plan and the reason for that decision. [ 58 ] In the event Mr. J.’s future employment does not provide the option of extended medical and dental coverage for S., Mr. J. will be required to pay his proportionate share of any extended medical or dental expenses Ms.

S. incurs for S. [ 59 ] In order for the calculation of proportionate sharing of past and future medical and dental expenditures to be made Ms. S. will have to file a Form 4 Financial Statement attaching her income information for the applicable years. [ 60 ] Ms. S. did not provide the Court with any documentations to verify any past expenditures of a special or extraordinary nature including medical expenses for S. so she cannot obtain any relief in that regard at this time. If she has such documentation it is open to her to apply to the court and provide those documents as exhibits to an affidavit.

Financial Disclosure [ 61 ] Mr. J. has been almost completely uncooperative with both Ms. S. and the Court when it comes to the issue of financial disclosure having failed, on multiple occasions, to provide accurate and complete information concerning his income. [ 62 ] That lack of cooperation places the Court in a difficult position in trying to impute income for Mr. J. From that imputed number

Mr. J.’s income has to be “grossed up” to reflect its receipt on a tax-free basis as described in section 19(1)(

b) and (

f) of the Child Support Guidelines (the Guidelines ). [ 63 ] Based on the bank account statements provided, Mr. J. shows the following amounts deposited to his account by [omitted for publication] or Employment Insurance in the following years: a) 2010: $52,578; b) 2011: $70,025; c) 2012: $69,478; and d) 2013: $71,507. [ 64 ] For 2014 there was an undated letter from Mr.

J.’s employer in the materials he provided to the Court indicating he had an annual salary equivalent of $60,733 with additional allowances and cost of living differentials amounting to a further $12,000 for a total income of approximately $72,500. [ 65 ] Mr. J.’s behaviour in refusing to provide financial disclosure in the face of several Court Orders has made the work of the court far more difficult than it should be and clearly indicates that Mr. J. has breached his duty under section 212(1) of the FLA . [ 66 ] The Court must consider whether or not Mr.

J. should face any consequences for his uncooperative behaviour as described in

section 213 of the FLA. [ 67 ] In this case it is appropriate to make orders to rebuke Mr. J. for his past behaviour and encourage his further compliance with court orders. The first remedy is for the court to draw inferences concerning Mr. J.’s income as permitted under section 213(2)(b). Imputed Income [ 68 ] The Court’s Order made December 4, 2007 “grossed up” Mr. J.’s income to $74,000.00 and required him to pay $689.00 per month in child support starting September 1, 2007. [ 69 ] The Court’s Order made May 16, 2014 imputed a “grossed up” income to Mr.

J. of $92,000.00 requiring him to pay $853.00 per month commencing February 1, 2014. [ 70 ] Grossing up of Mr. J.’s income is necessary because of his tax-free income as a First Nations person. That does not require difficult or complicated calculations but can be done through the simple application of the applicable Federal and Provincial income tax rates available at the Canada Revenue Agency and available on the website of Price Waterhouse Coopers LLP. [ 71 ] Utilizing the Canada Revenue Agency tax rates results in the following imputed “grossed up” income for Mr.

J. for the following years: a) 2011: $70,025 grossed up to $92,000; b) 2012: $69,478 grossed up to $91,000; c) 2013: $71,507 grossed up to $93,300; d) 2014: $72,500 grossed up to $95,000; e) 2015: $72,500 grossed up to $95,000; and f) 2016: $72,500 grossed up to $95,000. [ 72 ] Based on those grossed up incomes, Mr. J. would be required to pay child support for S.’s benefit to Ms. S. in the following amounts in the years set out below: a) 2011: $853; b) 2012: $844; c) 2013: $864; d) 2014: $878; e) 2015: $878; and f) 2016: $878. [ 73 ] A second appropriate remedy is to require Mr. J. to compensate Ms.

S. for his lack of compliance with the Court’s Orders. His behaviour in the face of several court orders is inexcusable and deserving of rebuke. In that regard Mr. J. will be required to pay to Ms. S. the following amounts pursuant to section 213(2)(d)(ii):

a) March 14, 2014 Order: $500.00;

b) May 16, 2014 Order: $750.00; and

c) November 21, 2014 Order: $1000.00 for a total of $2,250.00. This amount is to be paid for the benefit of S. and is to be paid by Mr. J. to Ms. S. on or before May 31, 2016. Retroactivity of Child Support [ 74 ] The relevant factors to be considered in an application for retroactive child support are set out in paragraph 5 of D.B.S . where the Supreme Court of Canada says: 5… Unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payor parent will have the opposite effect.

Where ordered, an award should generally be retroactive to the date when the recipient parent gave payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility. [ 75 ] In dealing with the possibility of hardship arising from a retroactive award the court went on to say in paragraphs 95 and 96: 95… In short, while a freestanding obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. 96.

Unlike perspective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard.

Prospective awards serve to define a new and predictable status quo ; retroactive awards serve to supplant it. [ 76 ] D.B.S. and Brown conveniently set out a number of factors for the court to consider when retroactive child support applications are made. No two cases are alike. D.B.S. directs that each case should be decided on the particular circumstances and that the court should take a holistic approach when applying the factors it sets out. 1. Reasonable Excuse for Delaying in Bringing an Application [ 77 ] Ms.

S.’s explanation in bringing her Application until 2013 was that she tried to get cooperation from Mr. J. for several years without success and that when his lack of cooperation continued she felt it necessary to re-commence the litigation. [ 78 ] Overall, Ms. S.’s reasons for her delay in bringing the Application do meet the necessary test of being “a reasonable excuse”. 2.

Conduct of the Payor Parent [ 79 ] In D.B.S. the Supreme Court of Canada took an expansive view of “blameworthy conduct” when it said in Paragraph 106: … Anything that privileges the pay or parent’s own interests over his children’s right to an appropriate amount of support. [ 80 ] The court referred to a number of examples of such conduct including hiding from the recipient parent the payor parent’s increased income. [ 81 ] In this case there was no hiding by Mr. J. of any increase in his income, rather there was just a general hiding from Ms. S. (and later the court) what his income actually was. [ 82 ] Mr.

J.’s reasons for not providing his income information as required by the three orders of the Court are not acceptable and clearly place them into the category of blameworthy conduct. 3. Circumstances of the Child [ 83 ] There was no evidence presented about S.’s living circumstances other than Ms. S.’s assertion about her income, the evidence of Mr. J.’s income, and Ms. S.’s evidence that S. is not treated equitably by Mr. J. when it comes to buying him things. 4.

Hardship Occasioned by a Retroactive Order [ 84 ] In D.B.S . the court recognized that a retroactive award could result in hardship to the payor parent because it might disrupt their financial affairs more adversely than a prospective order, particularly so when the court ordered amounts of support are being paid. However, the court also recognized that hardship was less of a concern where there was blameworthy conduct. 5. Retroactivity Conclusions and Date [ 85 ] In this case there are several of the D.B.S . factors that support a retroactive award, Mr.

J.’s persistent noncompliance with disclosure Orders and the lack of accurate and trustworthy information concerning the nature of the hardship on him if called upon to pay a retroactive amount of support. On that basis a retroactive order may be appropriate. [ 86 ] There are four choices for a retroactivity date set out in D.B.S :

a) the date of the Application;

b) the date when formal notice was given;

c) the date of effective notice to the payor; and

d) the date when the amount of child support should have increased. [ 87 ] Generally, the cases adopt the concept of a “three-year rule” from the date of effective notice described in D.B.S. But if there is blameworthy conduct by the payor the date when increased support should have been paid can also apply. [ 88 ] However, Mr. J.’s blameworthy conduct has already been addressed, in part, through the imposition of a penalty for his flagrant lack of disclosure. [ 89 ] In the circumstances of this case I determine that Mr. J. had effective notice as of the date the Application was served on him.

Given the fact that he has been paying the child support throughout, until early 2015, and the penalty being imposed on him requiring a further retroactive increase in child support payments dating back to 2011 would amount to an unreasonable hardship on Mr. J. Arrears of Child Support [ 90 ] Mr. J. states that he has paid child support up until March 2015. Ms. S. only acknowledges child support payments up to January 2015. The arrears of support will be fixed from February 1, 2015 to the present. Mr.

J. is at liberty to apply to the Court and supply affidavit evidence attaching his bank records to show any support he has paid since January 2015 and if the Court is satisfied with that evidence the support arrears will be adjusted accordingly. [ 91 ] Based on the incomes imputed to Mr.

J. for the years 2013, 2014, 2015 and 2016 and the calculation of the amount of child support he should have been paying during those years compared to the amount he was paying the following amount of child support arrears have accumulated: a) 2013: $864 - $689 = $175 x 12 = $2,100; b) 2014: $878 - $853 = $25 x 12 = $300; c) 2015: $878 - $853 - $25 x 12 = $25 (January 2015 payment); d) 2015: $878 x 11 = $9,658 (remainder of 2015 payments); e) 2016: $878 x 1 = $878 (January 2016 payment).

Total Arrears to January 8, 2016 = $12,961.00. [ 92 ] Commencing on June 1, 2016 and payable on the first day of each and every month thereafter until further order of the Court, Mr. J. shall pay arrears of child support to Ms. S. for S.’s benefit in the amount of $422.00. Ongoing Child Support [ 93 ] Mr. J. has sought a reduction in the child support payable going forward. If at the end of the grievance procedure with his employer Mr. J. is reinstated he will likely suffer no loss of income and will be in a position to pay child support in the appropriate amount for the time since his termination. [ 94 ] If Mr.

J. is not reinstated, his inappropriate actions will have been determined to have caused his loss of income. As such, he would be hard-pressed to convince the court that his actions did not amount to an intentional unemployment as described in section 19(1) (

a) of the Guidelines . [ 95 ] Furthermore, Mr. J. has led no evidence about any steps he has taken to obtain employment in 2015 so as to be able to appropriately provide child support for S.’s benefit. On that basis there is no reason to reduce the child support from the amount found to be appropriate for 2014 until such time as Mr. J. provides complete and accurate financial disclosure along with verifiable information concerning his attempts to seek and maintain employment. [ 96 ] Commencing February 1, 2016 and payable on the first day of each month thereafter until further order of the court Mr.

J. shall pay child support to Ms. S. for S. the benefit in the amount of $878. DECISION [ 97 ] The Court makes the following interim orders in this matter. [ 98 ] Effective February 1, 2016 and in each and every month thereafter until further order of the court Mr. J. will have parenting time with S. as follows:

a) the third full weekend of each month from Friday at 4 PM and until Sunday at 4 PM; or Monday at 4 PM if it is a long weekend;

b) during the summer school vacation from June 30, 2016 at 9 AM until July 15, 2016 at 4 PM and August 15, 2016 at 9 AM until August 28, 2016 at 4 PM. In the event the parties are unable to resolve Mr. J.’s summer parenting time with S. for the year 2017, either party is at liberty to apply to the court for further orders;

c) Christmas school vacation in 2016 for eight days during the Christmas school vacation as agreed upon between the parties not later than September 30, 2016. If such agreement cannot be reached either party is at liberty to apply to the court for an order specifying Mr. J.’s 2016 Christmas parenting time;

d) at such other times as the parties may agree upon Mr. J. providing at least 14 days’ notice of such request;

e) at the commencement of each monthly parenting time Mr. J., or his designate, will be responsible for picking S. up at Ms. S.’s residence or such other location she may designate in Masset. At the conclusion of Mr. J.’s monthly parenting time Ms. S., or her designate, will be responsible for picking S. up at Mr. J.’s residence or such other location that he may designate in Skidegate. [ 99 ] Any contact between the parties other than in an emergency shall be by electronic written communication, text or email, and limited to matters concerning S. and his well-being.

In the event of an emergency either party may contact the other by telephone. [ 100 ] Mr. J.’s imputed income after “grossing up” due to his tax-free income status is the following amounts in the following years: a) 2013: $93,300; b) 2014: $95,000; c) 2015: $95,000; and d) 2016: $95,000. [ 101 ] Pursuant to section 213 (2)(d)(ii) Mr. J. shall pay a penalty to Ms. S. in the following amounts:

a) March 14, 2014 Order: $500.00;

b) May 16, 2014 Order: $750.00; and

c) November 21, 2014 Order: $1000.00 for a total of $2,250.00 on or before May 31, 2016. [ 102 ] Based on the incomes imputed to Mr.

J. for the years 2013, 2014, 2015 and 2016 the following amounts of child support arrears have accumulated: a) 2013: $864 - $689 = $175 x 12 = $2,100; b) 2014: $878 - $853 = $25 x 12 = $300; c) 2015: $878 - $853 - $25 x 12 = $25 (January 2015 payment); d) 2015: $878 x 11 = $9.658 (remainder of 2015 payments); e) 2016: $878 x 1 = $878 (January 2016 payment) Total Arrears to January 8, 2016 = $12,961.00. [ 103 ] Commencing on June 1, 2016 and payable on the first day of each and every month thereafter until further order of the court Mr. J. shall pay arrears of child support to Ms.

S. for S.’s benefit in the amount of $422.00. [ 104 ] Commencing February 1, 2016 and payable on the first day of each month thereafter until further order of the court Mr. J. shall pay child support to Ms. S. for S. the benefit in the amount of $878.00. [ 105 ] Ms. S.’s applications concerning extended medical and dental benefits for S. and for Mr. J. to contribute to any retroactive or prospective special or extraordinary expenses for medical and dental are adjourned generally. __________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC