K.L.M. v. K.P.Z. Date:, 2017 BCPC 171

Citation: K.L.M. v. K.P.Z. Date: 20170530 2017 BCPC 171 File No: 15158 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: K.L.M. CLAIMANT AND: K.P.Z. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: K.L.M. Appearing on their own behalf: K.P.Z. Place of Hearing: Terrace , B.C. Date of Hearing: May 23, 24, 2017 Date of Judgment: May 30, 2017 History [ 1 ] The parties have two children: R.K.Z. born [omitted for publication] and J.L.Z. born [omitted for publication].

[2] There was an order of this court made without hearing on January 31st, 2006 which, amongst other things, made an orderconcerning child support payable by K.P.Z. for the two children. [3] There was a consent order made December 29th, 2008 which varied the order of 2006 reducing the child support based on alower income and specifying terms concerning the costs of extra-curricular activities of the children. [4] There was a third order made without a hearing on July 3rd, 2009 which reduced the child support payable by K.P.Z. based ona yet lower income. [5] On January 25th 2017 K.L.M. brought this application to change the order of July 3rd, 2009 concerning K.P.Z.’s current annualincome “retro to 2012” plus seeking contribution from K.P.Z. for extracurricular sports for their daughter. [6] The reasons given for the application were that K.P.Z.’s employment had changed from seasonal to full-time and that he hadstarted his own business. [7] On February 12, 2017, K.P.Z. filed a reply which stated that he agreed with child support although he disagreed that hisemployment status had changed from seasonal with the past three years.

The reply also stated that the first year of his own business wasin 2015. It also stated that he would be “offering” his last three years of tax statements “as required” by the form 4 and not all the yearscovering the period 2012 to the present. [8] The reply also disagreed with any payment of extracurricular activities relying on the terms of the order of December 29th,2009. [9] On March 21st, 2017, this court ordered that both parties complete, file, and exchange Form 4 Financial statements includingall attachments listed in that form.

Both parties did so although K.L.M. included her tax returns for the years 2012 through 2016 andK.P.Z. only included the last three years referenced in the Form 4. [10] Both parties testified at the hearing of this application. As well, K.L.M. included a brief history of the relationship of thechildren and K.P.Z. within the Form 4 affidavit she filed. Evidence [11] K.P.Z. testified that after mediation he had been paying child support in the amount of $496.50 every two weeks. Neither partywas able to advise when the higher payments of $496.50 started.

K.P.Z. stated that FMEP had reduced the payments back to $432.00when they became involved in July 2015. [12] K.P.Z. testified that on January 2nd, 2015 he had emailed K.L.M. requesting a reduction in his child support as his income wasreduced. [13] K.L.M. testified that sometime after June 2015 she learned that K.P.Z. had taken a trip to New Orleans so she believed thatK.P.Z. was able to pay the ordered amount.

Accordingly, she registered the order with the Family Maintenance Enforcement Office andthey are still involved in the payments. [14] K.P.Z. testified that there are currently no arrears of child support at the rate ordered in 2009. That was not disputed by K.L.M. [15] The court enquired of the parties if they wished a determination of the amount of child support to be paid in the future as their son R.K.Z. had reached 19 years of age on January 18th, 2017. [16] K.L.M. testified that K.P.Z. had unilaterally reduced his child support to that for their daughter only.

She added that she wasnot seeking further child support for R.K.Z. as he was employed although he was still living with her. [17] K.L.M. testified that in the order of December 29th, 2009 the parties had agreed to share the costs of R.K.Z.’s hockey but noagreement was reached concerning J.L.Z. as she had no interest in sports at that time because she was only nine years of age. [18] K.L.M. testified that J.L.Z. became involved in curling at school when she was in grade five and now was actively involved inthat sport at a high level. [19] K.L.M. testified that J.L.Z. was on the provincial high school championship team for two years and that she has been attendinga curling school for a number of years.

She added that she intended on enrolling J.L.Z. again this year but that she was not seekingretroactive curling expenses, only in the future. The Law [20] The British Columbia Court of Appeal, in L.S. v E.P. 1999 BCCA 393 , [1999] B.C.J. 1451, laid out a number offactors for a court to consider concerning a retroactive variation of child support. [21] The nine factors are laid out in paragraphs 68 through 81 of the above decision. The factors are: (1) need of the child and a corresponding ability to pay (2) blameworthy conduct on the part of the paying parent (3) incomplete or misleading financial disclosure

(4) encroaching on capital or incurring debt (5) excuse for delay where the delay is significant (6) evidence of ongoing negotiation (7) creating an unreasonable burden on the paying parent (8) redistributing capital or awarding disguised spousal support (9) significant and unexplained delay Analysis [22] There is a lack of evidence of need of the children aside from the curling expenses. K.L.M. did state that she did what she hadto in order to meet the needs of the children. The court cannot conclude that the children’s needs were met from that remark alone.

Thefinancial statement filed by K.L.M. shows that her income for the years 2012 through 2016 slowly rose from $31,253 to $60,012. It isonly in the last year that her income has become approximately 75% of K.P.Z.’s and was less than 50% in 2012 and 2013. The courtmust conclude that there was some need for financial balancing for the children’s lifestyle to approximate that of K.P.Z.’s household. [23] There is no evidence of any blameworthy conduct on the part of K.P.Z. [24] There has been at times since 2012 incomplete financial disclosure by K.P.Z.

The fact that there was a variation in childsupport through a mediator supports a finding that there was complete financial disclosure until 2015 when FMEP became involved. [25] There is no evidence of K.L.M. being forced to encroach on her capital or incur debt to meet the needs of the children. [26] There is no evidence of why K.L.M. delayed bringing an application to vary the child support except for the ongoingnegotiations through a mediator or by emails which overlaps with factor (6) above. [27] K.P.Z. did testify that a lump sum award of retroactive child support would create a hardship for him and that he also issupporting a younger third child. [28] There is no evidence that this application is a disguised attempt to seek spousal maintenance or a disguised attempt toretroactively divide matrimonial property. [29] There is some delay in bringing this application as stated in paragraph 26 above.

However, the courts have consistently heldthat “unexplained delay, even when significant, will rarely preclude an order for retroactive child support. This is because it is wrong inprinciple to visit a parent’s delay on a child’s need for proper support” as per Rozen v. Rozen, BCCA 2002 BCCA 537 , [2002]B.C.J. 2192, at paragraph 43. [30] This court will make an order to retroactively vary the child support payable by K.P.Z. for a portion of the period claimed. Itdoes appear that either directly or through a mediator, K.L.M. was aware of K.P.Z.’s income until she registered the order with FMEP.

In fact she received child support greater than the court order of 2009 for some part of that period. Accordingly, the order will be variedto reflect K.P.Z.’s income for the years 2014, 2015, and 2016. [31] Concerning the application for “extraordinary expenses” regarding the curling expenses, this court declines to make such anorder. Extracurricular expenses are allowed under

section seven of the Federal Child support guidelines. As defined in the case lawconcerning child support “extraordinary expenses” are unforeseen at the time of separation and/or are so unusual as to be extraordinary. [32] Extracurricular activities were specifically considered in the order of December 2008 and were not varied in the order of 2009. On the wording of that order, K.P.Z. would pay half of the extracurricular expenses of sports for which he agreed. On its wording theterm of the order contemplates extracurricular expenses arising in the future but limits the sharing to agreed sports.

Accordingly, thecurling expenses sought are neither unforeseen nor unusual. [33] K.P.Z.’s income stated in his form 4 and monthly payments are per the guidelines is as follows: a) 2014 $73,156 $1108/month X 12 = $13,296 b) 2015 $72,522 $1099/month X 12 = $13,188 c) 2016 $83,607 $1259/month X 12 = $15,108 [34] As per paragraph 11 above, K.P.Z. paid child support in the amount of $496.50 every two weeks for 2014. Accordingly, hepaid $496.50 X 26 = $12,909 child support for 2014. [35] As per paragraph 11 above, K.P.Z. paid child support in the amount of $496.50 every two weeks for the first half of 2015.

Hepaid $432 every two weeks for half the year. Accordingly, he paid $496.50 X 13 = $6,454.50. Plus he paid $432 X 13 = $5,616. Thusthe total paid in 2015 was $6,454.50 + $5,616 = $12,070.50. [36] In 2016 K.P.Z. paid $432 X 26 = $11,232. [37] In 2017, K.P.Z. made one payment of $432 in January before his son turned nineteen on January 18th. Based on his 2016income his payment for two children as per the guidelines would be $1,259/month which is multiplied by 12 and divided into 26payments would be $581. Accordingly, he is in arrears $581 less $432 = $149 for that short period.

[ 38 ] Based on his 2016 income of $83,607, his child support for his daughter J.L.Z. only starting with the second biweekly payment in January would be $781/month X 12 = $9,372 divided by 26 = $360. [ 39 ] K.P.Z. is in retroactive arrears of child support as follows:

a) In 2014 he should have paid, $13,296 less his payments of $12,909 = $387.

b) In 2015 he should have paid $13,188 less $12,070.50 = $1,117.50.

c) In 2016 he should have paid $15,108 less $11,232 = $3,876.

d) In 2017 as per paragraph 37 above his arrears = $149.

e) Total arrears are $387 + $1,117.50 + $3,876 + $149 = $5,529.00. [ 40 ] As a lump sum payment of the arrears may be a hardship on K.P.Z. in light of the pending completion of his seasonal work, the court will order that they be paid on the same biweekly

schedule as the child support for J.L.Z. in the amount $150. These shall commence on the date of the first biweekly payment of child support for J.L.Z. in July 2017.

Order [ 41 ] The arrears owed by K.P.Z. for child support are fixed at $5,529 for the period ending January 18 th , 2017. [ 42 ] The arrears shall be payable in biweekly installments of $150 commencing on the same date as the first biweekly payment of child support for the child J.L.Z. in July 2017. [ 43 ] K.P.Z. shall pay child support in the amount of $360 every two weeks commencing in January 2017 until further order of the court as long as J.L.Z. is a dependent under the Family Law Act of British Columbia. [ 44 ] The parties shall exchange copies of their filed income tax returns on the first of June 2018 and on the first of June each year thereafter so long as J.L.Z. remains a dependent under the Family Law Act of British Columbia. ___________________________ W.

F. M. Jackson Provincial Court Judge