B.G.M. v C.L.M. Date:, 2015 BCPC 435

Citation: B.G.M. v C.L.M. Date: 20151117 2015 BCPC 0435 File No: 15-46599 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B. G. M. APPLICANT AND: C. L. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Applicant: J. Cluff Appearing on their own behalf: C. L. M. Place of Hearing: Prince George , B.C.

Date of Hearing: October 13, 2015 Date of Judgment: November 17, 2015 [ 1 ] This is my Ruling following a hearing about child support for twin girls, M.G.M. and B.A.M., who are in their late teens. [ 2 ] A draft Order is attached as Appendix A and sets out my decision. My reasons for making this Order are as follows. Background [ 3 ] C.L.M. and B.G.M. were married in 1990. They had 3 children. Only their two youngest, the twins, M.G.M. and B.A.M., born on [omitted for publishing], are the subject of this proceeding. [ 4 ] The parties separated back in September, 2002.

They entered into a Separation Agreement in January, 2004. See Tab 16 of Exhibit 1. Both parties had legal advice before signing off on the Separation Agreement. [ 5 ] Under the terms of this Agreement the parties shared in the parenting of their children on an approximately 50%/50% basis. As it concerned child support, they agreed in s. 21 that: “Neither Party will pay child support to the other.” [ 6 ] With respect to M.G.M. and B.A.M., this equal parenting arrangement, with no child support payable by either parent, continued for 12 years until July, 2014, just after the girls graduated from high school.

At that point the parenting arrangement changed because C.L.M. sold her house in Prince George and moved to Kelowna. The girls both chose to remain in Prince George because of their friends, and they began living full time with their father, B.G.M. [ 7 ] In September, 2014 M.G.M. and B.A.M. entered post-secondary education in Prince George. At the end of the first semester M.G.M. decided to stop attending university or college and get a job. She has been employed full time since then, though it is possible that she will decide to go back to university or college.

B.A.M. continued with her studies and is now more than half way through the fall term of her second year. [ 8 ] In July of this year the girls turned 19. [ 9 ] For the past 17 months, since July of 2014, when C.L.M. moved away, both girls have resided primarily with B.G.M. [ 10 ] In October, 2014 B.G.M. asked C.L.M. to help him with the cost of feeding and housing the girls by paying child support. C.L.M. initially refused because her income was low as she attempted to establish herself in the job market in Kelowna. [ 11 ] In February, 2015 B.G.M. filed an Application in court seeking an order for child support.

C.L.M. had obtained better paying work by then but she still refused to pay any child support. In her Reply she wrote that B.G.M. was making an “unfair request” of her. She cited s. 21 of the Separation Agreement which said that no support was payable by either parent. His request was also unfair, she said, because he had earned a considerably higher income than her during their 12 years of co-parenting, but had paid her no child support over that time.

On the basis of this latter assertion C.L.M. brought a cross-application for retro-active child support from B.G.M. going back to when they first separated in 2002. [ 12 ] The parents both filed Financial Statements and the matter came on for hearing on October 13 th of this year. [ 13 ] The issues in this case are as follows: 1. The effect of the Separation Agreement on the payment of child support by either parent, now and in the past; 2. Entitlement to support - M.G.M. and B.A.M.; 3. Determination of C.L.M.’s income, and quantum of support, retro-actively; 4. Ongoing child support; 5.

Special and extra-ordinary expenses (s. 7, Guidelines) ; and

6. C.L.M.’s cross-application for retro-active child support from B.G.M. for the period 2002 to 2014. 1. The Effect of the Separation Agreement on the Payment of Child Support [ 14 ] The Separation Agreement provided that neither parent should pay child support (s. 21). If the parties are still bound by this provision of the Agreement then B.G.M.’s Application must be dismissed. I conclude that s. 21 is no longer applicable and it is open to the court to make an order that C.L.M. pay child support to B.G.M. for M.G.M. and B.A.M. [ 15 ] Sections 148 and 150 of the Family Law Act of B.C. are applicable.

Section 148(3) provides that: “ On application by a party , the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in s. 150 .” [emphasis added] [ 16 ] Section 150(1) provides that where a court makes an order respecting child support “the amount of child support must be determined in accordance with the child support guidelines.” The reference is to the Federal Child Support Guidelines (the ‘Guidelines’ ). [ 17 ] Applying the Guidelines, particularly ss. 3 and 9, to the case at hand, C.L.M. and B.G.M. were free to enter into an agreement not to pay child support, but this ceased to be in accordance with the Guidelines once the parenting arrangements changed from a shared parenting situation (50/50) to a primary residence situation with the father, B.G.M.

This change took place when C.L.M. moved away from Prince George at the end of June, 2014. At that point the Guidelines require that the parent who does not have primary residence of the children - C.L.M. in this case - must pay child support to the parent who has primary care - B.G.M. [ 18 ] It was argued during submissions that s. 21 of the Separation Agreement was invalidated for a different reason.

Section 16 required that both parents reside in the Prince George area “to give effect to the residency provisions of this Agreement.” I agree that when C.L.M. moved away from Prince George she violated this term and for that reason, as well, the court is free to set aside or replace s. 21 with an order for child support that is made in accordance with the Guidelines. 2.

Entitlement to Child Support - M.G.M. and B.A.M. [ 19 ] Because M.G.M. and B.A.M. were in their late teens when the parenting arrangements changed and they have since reached the age of majority (19) their entitlement to child support from time to time must be examined. - July, 2014 to December 31 st , 2014 [ 20 ] M.G.M. and B.A.M. were under the age of majority and were full time students (apart from the summer break) in post- secondary educational programs during this period. Both were residing primarily with B.G.M. The presumptive rule set out in s. 3(1) of the Guidelines applies.

Child support is potentially payable by C.L.M. to B.G.M. in the table amount for 2 children applicable to her income for this time period. [ 21 ] The only issue is that of notice. I find that C.L.M. did not receive effective notice of B.G.M.’s request that she start paying child support for the twins until October, 2014. B.G.M. does not seek child support prior to that date and I agree that November, 2014 was the first month in which C.L.M. ought to have started paying child support. [ 22 ] In

summary, during this period, C.L.M. was required to pay the table amount of child support for 2 children for the months November and December, 2015. - January 1 st , 2015 to July 31 st , 2015 [ 23 ] B.A.M. remained a full time student through this period (apart from the regular summer break). Child support in the table amount was therefore payable for her throughout this period. [ 24 ] M.G.M., however, decided to stop her studies and go to work. She started full time work sometime early in 2015. By February B.G.M. was charging her $200 per month for room and board.

This appears to be something that the parties had agreed to because C.L.M. testified that as long as the girls were attending post-secondary education full time they could live for “free” at either parents’ residence - that is, without contributing anything financially to the cost of their food, shelter and other expenses. However, if they stopped their studies for any reason then they would have to pay room and board. [ 25 ] For the month of January, 2015 I will require C.L.M. to continue to pay the table amount for 2 children, because, as I

understand the evidence, during this month M.G.M. was getting established in her job but was not yet in a position to pay her father for room and board. Therefore, I conclude that for this month she was not yet entirely able to withdraw from her parents’ charge. [ 26 ] From February, 2015 when M.G.M. was employed full time and paying B.G.M. $200/month room and board, to the end of July, 2015, when she reached the age of majority (19), I have decided that s. 150(2) applies and I may order child support for her in an amount different from that required by the Guidelines.

I will reduce the table amount payable for 2 children by $200/month for the months of February through July, 2015. [ 27 ] I conclude that this is a reasonable arrangement that flows out of the parents’ agreement the girls should pay room and board once they started working. B.G.M. began receiving $200/month directly from M.G.M. so it is reasonable to reduce the amount payable by C.L.M. by that much. [ 28 ] In

summary, during this period, C.L.M. was required to pay child support as follows: (

a) The table amount for 2 children for January 2015; (

b) The table amount for 2 children less $200/month for February through July, 2015. - August, 2015 to present (November, 2015) [ 29 ] B.A.M. has now reached the age of majority (19). But, she remains a “child” within the meaning of s. 146 of the Family Law Act because she is a full time student and, for this reason, has not been “able to withdraw from the charge of …her parents”. I conclude from the evidence that it was the intention of both these parents that the girls could live for “free” with either parent as long as they were “in school”.

It is therefore “appropriate” within the meaning of s. 3(2) of the Guidelines that B.A.M. continue to receive the table amount of child support. [ 30 ] M.G.M.’s situation is different. She has reached the age of majority; she is employed full time and, to her credit, is contributing to her own support by paying $200/month room and board. In my view she is able to “withdraw from the charge of …her parents” and is no longer a “child” entitled to child support - see s. 146 of the Act . [ 31 ] If I approach the analysis from the perspective of s. 3(2) of the Guidelines , I reach the same conclusion.

Considering the “condition, means, needs and other circumstances” of M.G.M. and each of her parents, I conclude that it would be “inappropriate” to require C.L.M. to pay child support for M.G.M. after July when M.G.M. reached the age of majority. Neither C.L.M. nor B.G.M. are wealthy people. C.L.M. put herself through university while working and raising the children. She has large student loan debt. Even though she is once again making a good income as a social worker it will be a very onerous additional expense to pay monthly child support as well as the retro-active support owing back to October, 2014.

Bearing all these things in mind, I conclude that it is “inappropriate” to require her to pay child support for M.G.M. after July, 2014. [ 32 ] The one exception would be if M.G.M. decides to return to college or university as a full time student. M.G.M. would then, once again, meet the definition of “child” in s. 146 of the Act and I would consider it “appropriate” that she receive support from the parent who is not her primary care giver. [ 33 ] I agree with B.G.M.’s suggestion that there should be a time limit on how long M.G.M. has to make up her mind whether or not she wants to go back to school.

The end of 2016 is proposed and I think that is reasonable. If M.G.M. goes back to college or university before that date child support will be payable for as long as she is a full time student working on her first degree/certificate or diploma. But, if she decides not to go back to school until after that date, then child support will not be payable. [ 34 ] In

summary, during this period, C.L.M. was required to pay child support in the table amount for one child. 3. Determination of C.L.M.’s income and quantum of support retro-actively - November and December, 2014 [ 35 ] I find that in 2014 C.L.M.’s “total income” within the meaning of ss. 16 to 20 of the Guidelines was $47,000. I derive this figure from her line 150 income ($47,600) minus union dues of approximately $700. See Financial Statement of C.L.M. filed June 24 th , 2015. [ 36 ] The table amount of child support for 2 children at an income of $47,000 is $713/month.

For the months of November and December, 2014 this totals $1,426.00 in retro-active support payable by C.L.M. - January 1 st , 2015 to July 31 st , 2015 [ 37 ] The evidence about C.L.M.’s total income in 2015 is, necessarily, given the date of this hearing, incomplete. I have decided to impute to her an income of $65,000.00. I will explain why.

[ 38 ] First, C.L.M. has been successful in obtaining a contract with Interior Health in her field of expertise which is social work dealing specifically with persons with addictions. A pay stub current to May 21 st , 2015 is included in her Financial Statement and it indicates an hourly rate of $33.76. Assuming a 40 hour week over 52 weeks of the year this would add up to a gross annual income of about $70,000.00.

Unfortunately, C.L.M., who was self-represented, did not bring a current pay stub with her to court. (This would have provided a “year to date” total as of October that would have allowed a more precise projection of her income for this year.) [ 39 ] Second, C.L.M. herself estimates that her income in 2015 will amount to something in the range of $60,000. [ 40 ] Third, I note that in 2012 and 2013 when, as I understand it, she was working in her field of expertise for the health authority in Prince George, her total income was $62,600 and $63,100 respectively. [ 41 ] Bearing each of these pieces of evidence in mind I have decided that it would be fair and reasonable to impute to C.L.M. a total income of $65,000.00 for 2015. [ 42 ] The table amount of child support for 2 children (M.G.M. and B.A.M.) at an income of $65,000 is $986/month.

This is the sum that C.L.M. ought to have paid for the month of January, 2015. [ 43 ] For the months of February through July, 2015 the sum payable was $986/month minus the $200/month paid by M.G.M. for her room and board = $786/month x 5 months = $3,930.00. [ 44 ] The total payable for this period is $986 + $3,930.00 = $4,916.00 in retro-active child support payable by C.L.M. - August, 2015 to present (November, 2015) [ 45 ] The table amount of child support for 1 child (B.A.M.) at an income of $65,000 is $605/month.

For the months of August, 2015 to the present (November, 2015) the sum payable was $605/month x 4 months = $2,420.00 in retro-active child support payable by C.L.M.

Summary: retro-active child support payable by C.L.M. to B.G.M. November & December, 2014 $ 1,412.00 January to July, 2015 $ 4,916.00 August to November, 2015 $ 2,420.00 Total: $ 8,762.00 [ 46 ] It may be difficult for C.L.M. to come up with money to pay this sum. However, she has known for more than a year that it was very likely that she would be required to pay child support for M.G.M. and B.A.M., so I am going to require that this retro-active amount be paid, in full, to B.G.M. not later than January 1 st , 2016. 4.

Ongoing Child Support [ 47 ] It is difficult in every case to predict future income and future entitlement to child support. In this case there is somewhat more uncertainty than usual because C.L.M. is still trying to get established in her field of expertise in the Kelowna work place. She is currently on contract which will expire in January, 2016. As I understand her evidence, it is likely that her contract will either be renewed or that she will be able to find other work at a comparable rate of pay - but this cannot be guaranteed.

Similarly, the plans of both girls may change over the next year or two. [ 48 ] Based on the evidence I have heard, it is reasonable to continue to impute to C.L.M. a total annual income of $65,000.00 per year.

Ongoing child support will be payable at that income for one or both of the girls if they are continuing with post-secondary education. (In the case of M.G.M. she will have to return to college or university full time before the end of 2016 in order to be eligible for child support.) I will make it a term of my order that child support will be payable only until the conclusion of the girls’ first degree/certificate or diploma. Put another way, if they wish to pursue a second degree, such as a Master’s degree, they will have to finance this through their own savings, employment income or student loan.

I place this “to the end of the first degree” limit on child support for M.G.M. and B.A.M. bearing in mind, once again, the “conditions, means, needs and other circumstances” of the girls and of both their parents. 5. Special and Extra-ordinary Expenses (s. 7, Guidelines) [ 49 ] The only special and extra-ordinary expenses addressed in the evidence were tuition fees for college or university. As I understand the evidence, both M.G.M. and B.A.M. had an R.E.S.P. which paid for their tuition during the first 6 months of their studies.

It is unclear to me just what B.G.M. meant in referring to “the first 6 months” of the twins’ post-secondary studies. Did he mean that the

first semester was paid for? Or was it the first and part of the second semester? [ 50 ] I will assume that the tuition fees for the girls’ first semester - between September and December, 2014 - for both M.G.M. and B.A.M. has been paid for by their R.E.S.P.’s.

My order will therefore only pertain to tuition fees incurred for B.A.M. for her studies taking place in 2015 and to tuition fees for both girls incurred in subsequent years (provided however that M.G.M. must re-commence her full time studies not later than the end of 2016 to be entitled to assistance with her tuition fees.) [ 51 ] It is clear to me, both from the agreement C.L.M. referred to about the girls being able to live for “free” as long as they were in post-secondary “school”, as well as from the definition of “child” in s. 146 referred to earlier, that the law does require C.L.M. and B.G.M. to share in the payment of M.G.M. and B.A.M.’s tuition fees.

S. 7 of the Guidelines provides that such expenses be shared in proportion to the parents’ income. [ 52 ] B.G.M.’s Guideline income for 2015 is anticipated to be $67,200. See Financial Statement filed June 18 th , 2015.

C.L.M.’s imputed income for 2015 is $65,000. [ 53 ] My order is that the parents share in the payment of tuition fees incurred for B.A.M.’s studies in 2015 and for tuition fees incurred for either child for studies in 2016 and beyond, (provided that, in the case of M.G.M., she has returned to being a full time student prior to the end of 2016) in proportion to their incomes, which for present purposes is 51% payable by B.G.M. and 49% payable by C.L.M. [ 54 ] I will also require each parent to make annual disclosure to the other of their income tax returns and Notice of Assessment or Re-assessment from Canada Revenue Agency not later than May 30 th annually starting with 2016.

This is a routine term for a child support order and its purpose is so that the parents can make adjustments in the amount of child support paid and in the proportionate sharing of tuition fees depending on changes in their incomes, without having to return to court. [ 55 ] The other disclosure I will require will be from B.G.M. He is required to provide to C.L.M. from time to time, proof of registration by either child as a full time student in post-secondary education and of the child’s transcript of marks.

This is so that C.L.M. can satisfy herself that B.A.M. and/or M.G.M. are still entitled to child support because they are full-time student(

s) and therefore unable “to withdraw from the charge of … her parents”. 6. C.L.M.’s Cross-Application for Retro-active Child Support Back to 2002 [ 56 ] C.L.M. argues that B.G.M. owes her retro-active child support for the 12 years between 2002 and 2014 when they shared in the parenting of the children and neither paid the other child support. She says this amount should be set off against any child support she may owe B.G.M. for the period since July 2014. [ 57 ] Her argument is essentially one of “fairness”.

She testified that over the 12 years of shared parenting, all told, B.G.M. made about $180,000 more than she did. See Tab 23 of Exhibit 1, plus the income documents marked Exhibit 2. Therefore, she says, s. 21 of their Separation Agreement which said “neither Party will pay child support to the other” was not fair. She asks the court to go back 15 years and, in those years where B.G.M. made significantly more than she did, make an order for retro-active child support.

C.L.M., who as I said earlier, is self-represented, does not specify exactly how the court should re-calculate support for all those years - whether the court should use the “simple set off” approach referred to in s. 9(

a) of the Guidelines, or some more nuanced calculation under sub- sections (

b) and (c). [ 58 ] After considering the evidence that touches on this issue, and the law, I have concluded that there is no unfairness here. In my view s. 21 of the Separation Agreement was valid until July 2014 when the shared parenting arrangement came to an end. Accordingly, no retro-active child support is payable by either parent for the period from 2002 to July, 2014. [ 59 ] As a first point, the court will generally not order retro-active support for more than 3 years prior to the date of “effective notice”. See S.(D.B.) v. G.(S.R.) , 2006 SCC 37 .

The reason for this rule is that persons must have some certainty in their financial affairs. Thus, in the case at bar, the longest the court will look back to examine “fairness” and comparative income is to the years, 2012, 2013 and 2014. [ 60 ] In 2012 and 2013 C.L.M. and B.G.M. had rather similar incomes - in the range of $62,000 to $68,000. S. 21 of the agreement operated fairly in those years. In 2014 C.L.M.’s income dropped significantly - to $47,000. However, this was due to her choice to move away from Prince George and leave behind well-paying work in her chosen field.

And, of course, B.G.M. did assume the full time care of the children starting in July of that year. [ 61 ] As well, I bear in mind the evidence about the couple’s oldest child, M.M. The evidence was that, for various reasons, M.M. went to live full time with B.G.M. when she was 16 and remained in his primary care for the next 5 years or so until she left home and got married. B.G.M. did not ask C.L.M. to assist with the support of M.M. during those years.

This may have been, in part, because he recognized that C.L.M. was a student and was already doing everything she could to contribute to the support of their children. [ 62 ] In my view there is no historical unfairness to s. 21 of the Separation Agreement and accordingly I must dismiss C.L.M.’s cross- application. Conclusion [ 63 ] B.G.M.’s application for child support for M.G.M. and B.A.M. is allowed to the extent set out in my reasons and the appended draft Order. C.L.M.’s cross-application for retro-active support back to the date of their separation is dismissed.

[ 64 ] In light of this result I would ask that counsel for B.G.M. prepare the Order. Given that I have spelled out the terms of the Order in Appendix ‘A’, I dispense with the need for C.L.M.’s approval of the form of the Order. ___________________________ E. L. Bayliff Provincial Court Judge Appendix A Draft Order Final UPON the Application of B.G.M. (# 1), the Reply of C.L.M. (# 3) and the further Reply of B.G.M. (# 4) coming on for hearing on October 13 th , 2015; AND UPON hearing the evidence of both parties and their submissions; THIS COURT ORDERS: Retro-active child support payable by C.L.M. 1.

C.L.M. is ordered to pay retro-active child support to B.G.M. for the children B.A.M. and M.G.M., both born [omitted for publishing], (‘B.A.M.’ and ‘M.G.M.’) totaling $8,762.00 (‘the retro-active child support’). 2. C.L.M. shall pay the retro-active child support to B.G.M., in full, on or before January 1 st , 2016. Ongoing child support 3. (

a) C.L.M. is imputed to have a total income for Guidelines purposes of $65,000.00 and is ordered to pay the table amount of child support for one child, B.A.M., of $605.00 per month commencing December 1 st , 2015 and continuing on the 1 st day of each and

every month thereafter for so long as the following circumstances exist: (

i) B.A.M. remains a full time student at a post-secondary educational institution working to attain her first degree/certificate/diploma; and (ii) B.A.M. remains primarily resident with B.G.M. and is not paying him for room and board. (

b) In the event that M.G.M. resumes her post-secondary education as a full time student prior to the end of 2016, C.L.M. shall pay the table amount of child support for two children, of $986.00 per month commencing on the first month M.G.M. resumes her studies and continuing on the 1 st day of each and every month thereafter for so long as the following circumstances exist: (

i) B.A.M. and M.G.M. remain full time students at post-secondary educational institutions working to attain their first degree/certificate/diploma; and (ii) Both girls remain primarily resident with B.G.M. and are not paying him for room and board. Special and Extraordinary Expenses 4. B.G.M. and C.L.M. shall share the cost of tuition for one or both children in proportion to their respective incomes, less any contribution from B.A.M. and M.G.M. For present purposes B.G.M.’s contribution would be 51% and C.L.M.’s contribution would be 49%. Financial Disclosure 5.

In order to monitor the effect of the Guidelines on B.A.M. and M.G.M.’s situation and to make appropriate adjustments in ongoing child support (paragraph 3 above) and the proportionate sharing of special and extra-ordinary expenses (paragraph 4 above), B.G.M. and C.L.M. shall make the following disclosure to each other: (

a) each shall provide the other with a copy of their filed income tax return for the preceding taxation year, including attachments, together with their notice of assessment or re-assessment from the Canada Revenue Agency not later than May 30 th each year commencing with May 30 th , 2016; (

b) B.G.M. shall provide C.L.M. with proof that B.A.M. and/or M.G.M. is/are registered as full time students at a post- secondary educational institution and of the marks that each has obtained at the end of each semester; and (

c) B.G.M. shall provide C.L.M. with statements, invoices or receipts to prove the cost of tuition referred to in paragraph 4 above. C.L.M.’s application for retro-active child support from B.G.M. 6. C.L.M.’s cross-application for retro-active child support from B.G.M. for the years 2002 to 2014 is hereby dismissed.