S.P.D. v. L.S.J. Date:, 2015 BCPC 121

Citation: S.P.D. v. L.S.J. Date: 20150511 2015 BCPC 0121 File No: 14352 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.P.D. APPLICANT AND: L.S.J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. C. Le Beau

Appearing on their own behalf: L.S.J. Place of Hearing: Kamloops, B.C. Date of Hearing: March 31, 2015 Date of Judgment: May 11, 2015 A Corrigendum was released by the Court on May 20, 2015. The corrections have been made to the text and the Corrigendum isappended to this document. [1] This is an application by L.S.J. for retroactive child support and extraordinary expenses and S.P.D.’s application to vary anorder of October 15, 2014. At the commencement of the hearing, Ms. Le Beau advised that L.S.J. consents to varying the order fromNovember 1, 2014 to March 1, 2015.

That variation provides that S.P.D. has an annual income of $34,320 for the purposes of thosemonths only. This puts his child support obligation for two children at $529 per month for those months. [2] L.S.J. originally calculated the amount S.P.D. owes for arrears at $26,374.78. She is seeking retroactive child support to 2009,being the date of their separation. This claim is excessive because they have an agreement for a division of assets that included childsupport reconciliation for that year. The retroactive support includes a claim for unpaid daycare expenses.

She has abandoned her claimfor his contribution toward the hockey expenses. [3] The issues remaining are not complicated. I reserved Judgment because L.S.J. is unrepresented and was unable to addresscertain legal issues that arise from these applications. The issues I must resolve for the parties is whether L.S.J. is entitled to seekretroactive child support to 2009; what S.P.D.’s contributions ought to have been for whatever period of retroactivity I allow; and whathis child support will be going forward. [4] There is conflicting evidence about who set the agreed child support over time since separation.

What is not in dispute is thatboth parties were represented by counsel in 2009 when they separated. The legal representation resulted in an agreement with respect tothe division of assets. S.P.D. was not in any position to pay child support at the time and so, although L.S.J. sought child support in herclaim, there was no agreement to pay it. [5] As a term of that agreement, child support was paid through the life insurance proceeds and the sale of the family residence upto January, 2010. It is not a matter which I can now review in hindsight.

There can be no claim for 2009 regardless of whether it isappropriate to reach back that far. [6] L.S.J. said that S.P.D. only paid part of what he ought to have been paying over time. There was disputed evidence aboutwhether she set the child support amounts based on what he told her he was making or whether he set the child support based on what heknew he had to pay under the Child Support Guidelines. Regardless of which evidence is accurate, both parties were aware that he oughtto have been adjusting his child support payments in accordance with what he earned from time to time.

S.P.D. was under the misguidednotion that he only had to pay child support if he was actually working. This is not the law. He remains obligated to pay child support inaccordance with what he earns or in accordance with what he is capable of earning. [7] Absent some compelling reason, the appropriate date to determine retroactive child support is typically the date of filing theapplication. In this case, that would be July, 2014. Apart from the significant unfairness to L.S.J.’s children, there is no compellingreason at law to adjust that date back to 2010.

L.S.J. ought to have made an application much sooner than she did, regardless of theinformation she was receiving from whatever sources. It is clear that both of the parties knew it was appropriate to adjust child support. [8] Citing the Supreme Court of Canada’s decision in D.B.S. v. S.R.G. 2006 SCC 37 , [2006] S.C.J. No. 37, the court inD.M.P. v. G.E.A., 2013 BCPC 117 , 2013 B.C.P.C. 0117, said this at paragraph 10 and 11: [10] The Supreme Court of Canada set out the law pertaining to applications for retroactive variation of child support orders in itsdecision in D.B.S. v. S.R.G. 2006 SCC 37 , [2006] S.C.J.

No. 37. I will summarize the law as set out in this case as follows: 1. With parenthood comes financial responsibility: When a child is born, that child has a right of child support and that rightsurvives the breakdown of the relationship. The level of support will vary depending on the income of the payor parent. (See para. 38). 2. The Federal Child Support Guidelines (the "guidelines") quantify the level of support: Under the guidelines, only two numbersare relevant: the number of children and the income of the payor parent.

Except for cases of shared custody (where additionalconsiderations apply), an increase in the payor parent's income increases the total amount of child support owed. When a payor parentdoes not increase the level of child support when his or her income goes up, it is the child who loses. (See paras. 43 to 45.) 3. A parent's child support obligation will only be enforceable once an application to court has been made.

But this does not meanthat a child is without a remedy if a parent does not vigilantly pursue the child's right to support: Once parents are properly before thecourt, the court has jurisdiction to make retroactive orders so that if a parent does not adequately defend the rights of the child, the courtcan defend that right. (See paras. 56 and 60.) 4. Orders for retroactive child support may be made in three situations: (

a) where there has already been a court order made -- insuch cases, the court order made should reflect the order which should have been made at the time. (See paras. 62, 68 and 69); (

b) where

there has been a previous agreement between the parties; (

c) where there is no court order. In the third situation, it is difficult for the non-paying parent to show that he or she was meeting his or her obligations to the child, in the absence of special circumstances such as hardship. (See para. 80.) 5. Retroactive child support can only be ordered for a child who is a "child" as defined in the legislation at the time of the application : (See para. 89). 6.

Retroactive orders may not be appropriate in certain circumstances : for example, if the child would get no discernable benefit from the award, or if a retroactive award causes hardship to the payor parent, it may not be appropriate for a court to enforce the support obligation retroactively. (See para. 95). 7. Retroactive awards should not be considered as exceptional : retroactive awards are often justified by the fact that the payor parent chose to bring hardship upon him or herself by not meeting the support obligation due to the child. (See para. 97). 8.

If the payor parent is in arrears under the existing order, the factors against making retroactive orders are less likely to apply. (See para. 98). 9. Delay in making an application for retroactive child support is a consideration, but delay does not automatically rule out a r etroactive order : Delay may be excused in the following cases: (

a) if the applicant harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; (

b) if the applicant lacked the financial ability to bring the application; (

c) if the applicant experienced emotional impediments to bringing the application; (

d) if the applicant received inadequate legal advice. (See para. 101.) 10. Delay in applying for retroactive child support is less likely to be excused if the applicant knew that higher child support was warranted, but chose not to apply for it arbitrarily : (See para. 101). 11. There are two main factors against awarding retroactive child support : (

a) the payor parent's interest in certainty -- if the payor parent informs the applicant of income increases in a timely manner and is not otherwise blameworthy, a retroactive order is less likely (see para. 102); (

b) the recipient parent should not be encouraged to delay seeking appropriate support for the child (see para. 103). 12. Child support is the right of the child and cannot be waived by the recipient parent : therefore delay does not eliminate the payor parent's obligation; it is merely a factor for the court to consider in exercising its discretion to make a retroactive order (see para. 104). 13.

Each parent's behaviour should be considered in balancing the competing factors for and against retroactive orders : courts should take an expansive view of what is blameworthy conduct, which is defined as "anything that privileges the payor parent's own interests over his/her children's right to an appropriate level of support (see para. 106). 14.

A payor parent who does not increase support automatically is not necessarily guilty of blameworthy conduct : the gap between what a parent should be paying and what that parent actually is paying, in a good indicator of whether or not blameworthy conduct exists, with a small gap suggesting no blameworthy conduct and a large gap suggesting blameworthy conduct (see para 108). 15.

The present circumstances of the child must be considered in the exercise of the discretion to award retroactive child support : a child enjoying a high standard of living will benefit less from a retroactive award than a child who is in need (see paras. 111 and 113. 16. A court must also consider any hardship that will result from a retroactive award in exercising its discretion : for example, if a retroactive award adversely affects a payor parent's other children, this must be considered.

Hardship of a payor parent is less of a concern if it results from his or her blameworthy conduct. (See paras. 115-116). 17. When should a retroactive order commence? : There are four options: (

a) the date when the application was made; (

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

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

d) the date when the amount of child support should have increased. As a general rule, the proper date is the date of effective notice. (See para. 118). The first two options should not be selected because parents should not be penalized for using an application to court as a last resort. (See para 120). 18. The "effective date" is the date when it was indicated to the payor parent that child support needs to be recalculated : (see para. 121). 19.

The date when child support should have increased is a fairer option when the payor parent has engaged in blameworthy conduct : once a payor parent engages in blameworthy conduct, he or she can no longer assume that the child's support entitlement is being met (see para 124). 20. Examples of blameworthy conduct : (

a) where the payor parent intimidates the recipient parent; (

b) where the payor lies to the recipient; (

c) where the payor withholds information; (

d) where the payor fails to disclose an increase in income from which one would expect to alter the child support payable (see para. 124). 21. Blameworthy conduct will move the presumptive date of retroactivity to the time when circumstances changed materially : (see para. 124). 22.

In the majority of circumstances, a retroactive order will be limited to three years, provided that the payor parent has acted responsibly and has not engaged in any blameworthy conduct : but if the payor parent has not disclosed any changes in circumstances such as increased in income, the presumptive date of retroactivity should be moved back to the date when circumstances changed materially (see para. 125). 23. In fixing the amount of retroactive child support, the guidelines should generally be followed : if the date of retroactivity is not

prior to May 1, 1997 (when the guidelines came into force) the guidelines should be followed. However courts ordering retroactive support pursuant to provincial statutes have greater flexibility in tailoring the award to fit the circumstances (see para. 127). The presence of undue hardship can yield a lesser award (see para 128). A court can also adjust the effective date if there has been unreasonable delay in bringing an application after effective notice was given (see para. 130). 24.

The Supreme Court of Canada suggests that a general discretion exists concerning the amount of a retroactive award : at para. 130 the court states "unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case." 25.

Summary of factors for a court to consider in applications for retroactive child support : in considering these applications, a court should look at all of the relevant circumstances. The payor parent's interest in certainty must be balanced with fairness to the child. The court should consider if the applicant has supplied a reasonable excuse for any delay, as well as the conduct of the payor parent, the needs and circumstances of the child and any hardship occasioned by the granting of a retroactive order (see para. 133.) [11] The concluding paragraph (135) of the court's

summary of the law sums up the difficulty with the problem posed by applications for retroactive child support, and the responsibility of parents to insure that they continue to support their children to the level that the children are entitled: "The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand.

But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them.

Thus while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed. (Emphasis added). [ 9 ] The most that can be said in this case is that because of S.P.D.’s inconsistent and disrupted work history, the parties were largely resolving the issue of how much child support S.P.D. should be paying over time. It cannot be said that he withheld information. It cannot be said that L.S.J. operated under any misconceptions about his obligations to pay.

It cannot be said that either party kept the other party uninformed. They discussed from time to time how much S.P.D. was to pay. Regardless of who set that amount, they were both aware of what his employment involved, how much he was paid, and how much he was obligated to pay. In circumstances such as that, L.S.J. ought to have made an application sooner when she realized S.P.D. was not going to pay the child support she expected him to pay. S.P.D. went into significant debt to his mother to pay his obligations including child support obligations.

It was not a matter of him refusing to pay his appropriate amounts. S.P.D. now also has other children in his subsequent relationship. [ 10 ] Effective notice may be more difficult to identify in this case. That is the date back to which retroactive child support ought to be awarded. Given the conduct of the parties over time, and the discussions they had from time to time about how much the child support should be, I am satisfied that January 1, 2014 is the appropriate date. [ 11 ] However, it is also clear that the parties were in a dispute about how much child support should be.

I am backdating the retroactive child support to January, 2014. In 2014, S.P.D.’s income to October 31, 2014 was $54,408. His child support obligation for two children was $825 per month. He ought to have paid $8,250 in that time. He paid $5,740 leaving a shortfall of $2,510 from January to October, 2014. By agreement, the parties reduced the child support obligation for November and December to $529 per month. If this remains unpaid, this is an additional shortfall of $1,058. His total annual income for 2014 was $54,390.33.

This is the amount that ought to be used in determining the proportionate amount of special or extraordinary expenses the parties will need to share. [ 12 ] S.P.D. has had a very unstable employment history. He began working with CN Rail in August, 2013. This proved to be good employment but his addictions resulted in him having to take disability leave following an ill-fated trip to the Dominican Republic. S.P.D. has now successfully completed his programs and was slated to return to work after the date of this hearing.

The parties have agreed that, up to March 1, 2015, the child support would continue at the reduced amount of $529 per month. Effective April 1, 2015, S.P.D.’s income will resume at the annual income net of union dues of $54,408. His child support obligation will accordingly return to $825 per month for two children. [ 13 ] The parties shall exchange their income tax returns and notices of assessment each year not later than June 15, commencing June 15, 2015. The child support shall be adjusted effective July 1 each year commencing July 1, 2015 in accordance with S.P.D.’s annual income.

A proportionate share of special or extraordinary expenses shall accordingly also adjust on July 1 each year. This is particularly with a view to the daycare expenses L.S.J. incurs. It will additionally include any other special or extraordinary expenses the parties agree are appropriate for these children. This may include extraordinary medical expenses related to E.’s psoriasis. [ 14 ] I also make an order for retroactive special or extraordinary expenses related to daycare costs for 2014.

So that there is no further dispute between the parties, all payments made in 2014 and 2015 must first be applied against the amount owing for child support. L.S.J.’s income, as set out in her financial statement, is $48,000 per annum. [ 15 ] I also indicated to the parties that I would set out in my Reasons for Judgment what are appropriate special or extraordinary expenses pursuant to the Guidelines .

Section 7 provides as follows: 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 following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

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

(

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, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy 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’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities.

(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 into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that 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 would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise 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. [ 16 ] In other words, not every expense that a parent incurs for activities, medical expenses or otherwise will be automatically considered a special or extraordinary expense.

Presumably, this will assist the parties in determining when they need to consult one another about expenses that will be incurred, and what expenses meet the definition of special or extraordinary. [ 17 ] At present, with L.S.J.’s income at $48,000 and S.P.D.’s at $54,408, the proportionate special and extraordinary expenses are 47% to L.S.J. and 53% to S.P.D. ______________________________________ S.D.

Frame Provincial Court Judge CORRIGENDUM - RELEASED MAY 20, 2015 [1] Please note the corrected change to Paragraph [13] of the original Reasons for Judgment issued May 11, 2015 as per the following: [13] The parties shall exchange their income tax returns and notices of assessment each year not later than June 15, commencing June 15, 2015. The child support shall be adjusted effective July 1 each year commencing July 1, 2015 in accordance with S.P.D.’s annual income. A proportionate share of special or extraordinary expenses shall accordingly also adjust on July 1 each year.

This is particularly with a view to the daycare expenses L.S.J. incurs. It will additionally include any other special or extraordinary expenses the parties agree are appropriate for these children. This may include extraordinary medical expenses related to E.’s psoriasis.