E.J.V. v. A.L.K., 2022 BCPC 256

Citation: E.J.V. v. A.L.K. 2022 BCPC 256 Date: 20221115 File No: 15262 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.J.V. APPLICANT AND: A.L.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J.BROWN Counsel for the Applicant: C.Ferguson Appearing on their own behalf: A.L.K. Place of Hearing: Abbotsford , B.C. Date of Hearing: May 29, October 14, 2022 Date of Judgment: November 15, 2022

INTRODUCTION [1] A.L.K. and E.J.V. married on April 18, 2001, and separated on February 18, 2008. They had two children, D.V. born [omittedfor publication], and A.V. born [omitted for publication]. [2] The parties entered into a divorce and property contract in Lethbridge, Alberta on December 15, 2008. This contract was filed inAbbotsford Provincial Court on December 5, 2012 to enforce, or at least address, child support issues. [3] The contract settled all issues of custody and access (referred to as guardianship and parenting arrangements under our FamilyLaw Act), as well as child support. Ms.

K. was permitted to move with the children to Chilliwack, BC, and Mr. V. had specifiedparenting time, including two weekends per month. They were to share the driving responsibilities between Lethbridge and Chilliwackby meeting at Roger’s Pass. [4] Mr. V. agreed to pay $646 in child support per month, commencing December 1, 2008. He was also ordered to pay spousalsupport, but that is no longer payable by agreement. The child support was based on Mr.

V. earning $45,000 per year. [5] According to the Family Maintenance Enforcement Program (“FMEP”), the child support arrears as of October 12, 2022,exceeded $64,000 with interest. Mr. V. brought an application in 2019 to cancel or reduce those arrears, and for a number of reasonsoutside the parties’ control, the hearing was held this year. [6] Mr. V. was a car salesman in Lethbridge until he became a mortgage broker in 2006. Unfortunately, he was no longer permittedto work in the mortgage industry in early 2012, because he violated lending regulations. [7] Mr. V. married Ms.

K.’s cousin in 2012, and needless to say, that development did not improve relations between the parties.Mr. V. and his spouse had two children, and he decided to be a stay-at-home parent while his spouse worked outside the home. Yetanother unfortunate event occurred in the spring of 2020 when Mr. V.’s spouse suffered a mild brain injury. His family now relies onrental income from his spouse’s properties. [8] Ms. K. has always been the children’s primary caregiver.

She now lives in Abbotsford with her partner, his son and a newborn.D. still lives at her home, but he is 21 and working, so child support stopped running for him in October of 2019. The parties concedethat A. has not been a child under the Family Law Act (“FLA”) since October of 2021, although she recently moved back to her mother’shome and is 18. ISSUES [9] It is clear from counsel’s submissions that Mr. V.’s application is to cancel or reduce arrears of child support under s. 174 of theFLA, as opposed to varying child support retroactively under s.152.

The application speaks of reducing or cancelling arrears since 2012,and the father’s application was made seven years later. [10] In any event, applications to vary retroactively must be made in a timely manner as outlined in L.B. v. J.K., 2012 BCPC 231. In this case, financial circumstances changed for Mr. V. in 2012 when he lost his ability to be a mortgage broker. Later thatyear, he married his current spouse and decided to be a stay-at home father. These events are long ago. [11] It is true that Mr.

V.’s spouse suffered a brain injury in 2020, but this recent change in circumstances postdates when most of thechild support arrears accumulated. Accordingly, I am framing the issues here under s.174, as an arrears case not a variation case. Theissues are as follows: 1. Does the BC Provincial Court have jurisdiction in this case? I raise this issue because of the agreement and proceedings occurring inAlberta, and the Interjurisdictional Support Orders Act. Counsel for the father and the mother want to proceed here in BC. 2. Should the court reduce or cancel $64,000 in child support arrears?

The test is an onerous one. There are several matters to consider,including Mr. V.’s negligence or misconduct in losing his mortgage associate work, his choice to be a stay-at-home father, his spouse’sinjury, and travel expenses to visit the children. JURISDICTION [12] I have decided this court does have jurisdiction to hear this matter. The divorce and property contract made in Alberta onDecember 15, 2008, was filed in our court on December 5, 2012. Section 148(2) of the FLA indicates that a written agreement respectingchild support filed in our court is enforceable as if it were an order of this court.

Under s.148(3), our court may set aside or replace withan order all or part of an agreement respecting child support, if our court would make a different order on consideration of matters ins.150.

Section 150 requires child support to be determined in accordance with the child support guidelines, with certain exceptions. [13] Section 174(1) of the FLA states “On application, a court may reduce or cancel arrears owing under an agreement or orderrespecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.” That sectionspecifically refers to agreements. [14] I also carefully canvassed with the parties whether any orders were made in the Alberta Queen’s Bench, action 4806 017014, andI was told no orders were made other than a divorce.

I also note the children have resided in BC when the arrears accumulated. [15] Finally, there is the issue of the father’s residence in Alberta. The Interjurisdictional Support Orders Act could apply here, butthe father has attorned to the jurisdiction and appeared here in person. In conclusion, there is no impediment to our court assuming

jurisdiction. FINANCIAL CIRCUMSTANCES SINCE THE CONTRACT [ 16 ] Before addressing the analysis under s.174 of the FLA , I should set out the parties’ financial circumstances since the contract was made in December of 2008. Father’s Financial Circumstances Since the Contract [ 17 ] Mr. V. has lived in [omitted for publication], Alberta since 2012. He has a Grade 12 education with no post-secondary certificates or diplomas. As explained below, he has not been employed since 2012. [ 18 ] During the marriage with Ms. K., Mr. V. was the sole income earner after the children were born.

He worked in computer consulting but was involved in a major motor vehicle accident in 2003. He still has lower back difficulties now at 45 years of age. Mr. V. became a car salesman around 2003. He also did straw baling until 2009 or 2010. [ 19 ] In 2006 or 2007, he became a mortgage associate. He earned about $35,000 per year but worked less hours than he did as a car salesman. In 2011, he opened his own mortgage brokerage firm and earned $64,000 after business expenses but before home use expenses.

As outlined above, he testified he inadvertently violated lending regulations in 2012 when involved with a builder and bare land loans. He was not permitted to engage in mortgage lending thereafter. [ 20 ] Mr. V. met Ms .K.’s cousin, J.V., in 2008 and they married on August 22, 2012. They now have two children aged 6 and 8. Mr. V. was initially reluctant to have more children, but he agreed to be the stay-at-home parent as J.V. had a good job with Scotiabank. He was struggling mentally after losing his career. Ms. K. claimed she only became aware Mr. V. was going to be a stay-at-home dad in 2019, and even Mr.

V. admitted there was minimal communication between the parties. [ 21 ] In the Spring of 2020, J.V. had two falls and suffered a mild traumatic brain injury. She is now unable to drive, so Mr. V. drives her to her weekly appointments for massage therapy, physiotherapy and chiropractic appointments. He also does all the household chores like cooking and cleaning, because J.V. has migraines, she cannot climb stairs, and she easily gets dizzy. She can help with the children only on a limited basis. Her short-term memory has greatly declined. [ 22 ] A medical report from Dr.

Zhang dated April 30, 2020, sets out J.V.’s injuries and indicates she has post-concussion syndrome. An updated report from Dr. Kennedy on April 14, 2022 indicates J.V. still has poor short-term memory and that computer work for more than 10 minutes causes blurry vision, nausea and headache. She can watch hockey on television for brief periods of time. [ 23 ] J.V. had short-term disability benefits and time limited COVID-19 benefits, but her primary income - and the family’s primary income - is rental income. J.V. owns three properties, including the family home. Mr.

V. has no interest in these properties based on a prenuptial agreement. J.V. comes from a family with money, but Mr. V.’s finances are separate. [ 24 ] The monthly rental from one property is $1500 per month less a mortgage payment of $1089 per month. The rental from another property is $2060 per month less a mortgage payment of $1191 per month. J.V. also rents out the basement of the family home for $600 per month, and she has a mortgage payment of $1700 per month. The mortgage payments do not include property taxes.

Without tenants, the rental properties would be facing foreclosure. [ 25 ] J.V. has applied for long-term disability on four occasions, but all such claims have been denied so far. The short-term disability from Scotiabank ended in November 2020, and if she were to receive long-term disability, Mr. V. estimated the payments to be $537 per month, running from November of 2020 but decreasing to $417 per month next year. She does not receive CPP disability at this time, and neither she nor Mr. V. qualify for loans. [ 26 ] Mr.

V. would like to work again, but right now he has to take his wife to medical appointments and care for his two youngest children. He is the only one who can help them with homework like spelling, and as indicated above, he does the household chores. Before his wife’s injury, his plan was to return to work when the youngest was in Grade 1. He worries his wife’s injury could be for her lifetime. [ 27 ] Mr. V.’s total line 150 income for 2018 and 2019 was zero. It was $1,146 for 2020, and zero again for 2021. He is financially dependant on his wife.

He had a tax debt of over $9000 but it was redacted in his 2021 notice of assessment. He also owes considerable sums to two private schools. [ 28 ] J.V.’s 2019 to 2021 notices of assessment show a line 150 income ranging from $27,318 to a high of $28,827. Her 2022 income will likely be lower. [ 29 ] Mr. V. brought proceedings in Alberta as early as December of 2009 to vary the child support, but no orders were ever made. [ 30 ] He also had difficulties exercising visits with D. and A. over the years. Initially, he saw the children every other weekend but as time progressed, he saw them less than once per year.

He said he drove to Roger’s Pass on two occasions, and Ms. K. never showed up. She always had excuses as to why the children could not come. He was not invited to D.’s high school graduation ceremony. [ 31 ] Mr. V. also provided travel expenses he incurred when exercising parenting time with D. and A. up to 2020. These expenses were for fuel, repairs, clothing and lodging, and the grand total was over $24,000. [ 32 ] Mr. V. has a chart of payments he has made between 2010 and 2013 totalling $13,425, which he says are not included in the FMEP records. The chart is supported by bank records. Ms.

K. does not appear to be contesting these payments, although she is saying the payments do not much affect the FMEP totals.

[ 33 ] FMEP records show Mr. V. was assessed child support of $646 per month under the agreement until October 1, 2019, when D. aged out. He was assessed $367 per month for A. right up to October of this year, even though the parties agree A. was living independently as of October 2021. Mr. V. was paying various amounts per month, sometimes as much as $467 per month. Mother’s Financial Circumstances Since the Contract [ 34 ] As indicated above, Ms. K. has always been the children’s primary caregiver. Between 2008 and 2012, she was a single mother.

She did not work before 2010 and relied on child support, the child tax benefit, and division of property proceeds. [ 35 ] In 2010, when D. was 9 and A. was 6, Ms. K. worked part-time at a butchery plant. She was also taking courses to become a licenced practical nurse. It was hard being a single mother, working and studying part-time, and juggling the father’s visits every other weekend in Alberta. She never finished her schooling because of a motor vehicle accident in 2011 and the travel requirements under the divorce and property contract. After the accident, she collected employment insurance. [ 36 ] Ms.

K. moved in with her current partner, R.B., in 2012. Mr. B. is a self-employed contractor. He assisted with expenses but had his own child support to pay. Ms. K. and Mr. B. have two children, a 5-year-old son and a newborn. [ 37 ] After 2012, Ms. K. worked at Tim Horton’s, and had multiple jobs. She looked after an autistic nephew on weekends and received respite pay. She also did car detailing. [ 38 ] Ms. K. stopped receiving child support in February of 2013. However, she only became aware that Mr. V. decided to be a stay- at-home dad in 2019, when this court application began.

She also did not know about his wife’s head injuries. She received no child support between early 2013 to 2018. She often requested a few hundred dollars by text, but the answer was always no. [ 39 ] Ms. K. suggests that Mr. V.’s bills for the children’s private school have likely been written off. She needed but did not get help with their daughter’s dental bills and their son’s ambulance bill. [ 40 ] Ms. K. filed the Alberta agreement in our court in Abbotsford in 2012, but FMEP did not locate Mr. V. until 2018. Strangely, Ms. K. did not have a physical address for him.

Earlier in 2010, she started but did not proceed with a motion in Alberta Court of Queen’s Bench to vary access arrangements and to get financial disclosure for a spousal support review. [ 41 ] In 2011, Mr. V.’s visits went from every second weekend to three times per year, including Christmas, Spring Break, and all of the summer. [ 42 ] Regarding travel expenses to see the children, Ms. K. pointed out that she too incurred expenses to meet at Roger’s Pass. Sometimes, Mr.

V. claimed expenses from Calgary all the way to Chilliwack, even though she had occasions when she travelled with the children the entire other way to Alberta. [ 43 ] Ms. K. also says there were many reasons why earlier visits with the father did not occur, including inclement weather. Since 2016, Mr. V. did the driving for his parenting time. [ 44 ] D. is now 21 and he still lives with Ms. K. and her current husband, but he pays rent. He graduated in 2018 and works full time. A. moved out of her mother’s home in November of 2021, and was living at the home of her boyfriend’s parents. She worked at A & W.

She recently returned to her mother’s home, works part time and pays rent. THE CURRENT CHILD SUPPORT ARREARS [ 45 ] Based on FMEP records, the child support arrears were $64,786.24 as of October 12, 2022. Earlier records suggest this sum includes over $1000 in interest and some penalties and service charges. [ 46 ] Both parties agree that child support should not be calculated for A. after October of 2021, so there should be a deduction of $4,404 (12 months x $367). [ 47 ] I am also satisfied that FMEP did not fully take into account payments made by the father between 2010 and 2013. In a chart prepared by Ms.

K., she assumes there were no arrears up to and including 2011. In 2012, she asserts that $2,685 was paid, but the father’s chart shows payments of $3759 (7 x $537). In 2013, her chart misses one payment of $537. Nothing was paid for the rest of 2013 and all of 2014 to 2018. [ 48 ] The sum of $7,752 is owing per year under the agreement, so from 2012 to 2018, $54,264 was owing in child support less payments of $4,296 (father’s figures), leaving $49,968 unpaid. Ms. K. enrolled with FMEP on May 7, 2019, and nothing was shown as paid for the first four months of 2019.

Child support owing for the first four months of 2019 would be another $2,584, so the total owing on enrolment should have been $52,552. Ms. K. gave FMEP the figure of $56,848 as total declared arrears on enrolment.

I find that to be in error, and there should be a deduction of $4,296. [ 49 ] The total FMEP balance of $64,786.24 as of October 12, 2022 should therefore be reduced by $4,404 for overcharging for A., and the $4,296 adjustment on enrolment, resulting in a new balance of $56,086.24, which includes some interest and other charges. [ 50 ] No evidence has been presented to suggest that FMEP’s records after enrolment are incorrect. SHOULD THE CHILD SUPPORT ARREARS BE CANCELLED OR REDUCED? [ 51 ]

Section 174 of the FLA states that child support arrears may be reduced or cancelled if it would be grossly unfair not to do so. Under subsection 2, I am to consider the efforts of the payor to comply with the agreement, the reasons why he cannot pay the arrears, and any other relevant circumstances.

[52] As indicated in Earle v. Earle, (BC SC), persons alleging that they cannot pay child support when they weresupposed to bear a heavy onus. Also, arrears will only be reduced or cancelled if they cannot pay now or in the future. Importantly, as.174 application is an exercise in a possible lump sum adjustment, not a back-dated annual adjustment as under s.152 (see Beavis v.Beavis, 2014 BCSC 422). [53] When I look at Mr. V.’s efforts to pay under the agreement, they were sadly lacking after 2012. He basically paid nothingbetween 2013 and 2018, when the children were entering their early teens. Mr.

V. paid some monies more recently but this was afterFMEP became actively involved. [54] The reasons why Mr. V. could not pay the arrears are more worthy of attention but are not straight forward. First, Mr. V. lost hisbusiness as a mortgage associate because he failed to follow lending regulations. I accept that this adverse event was more due tonegligence than a deliberate course of misconduct. In N.D.S. v J.A.S., 2020 BCSC 1034, when a spouse lost a job due to misconduct, thecourt found it must exercise discretion when determining whether to impute income under s.19(1)(

a) of the Federal Child SupportGuidelines. Conduct will be viewed on a continuum, based on the degree of the employee’s culpability. [55] I accept that Mr. V. lost his business due to negligence, but I do not accept that this means his income should go from $64,000(after business expenses) to nothing. Mr. V. is willing to treat his new family’s income of about $28,000 as his income, though earned byhis present spouse, but that is still much lower than his agreed income of $45,000 in 2008. [56] Mr. V. raises a second issue about his choice to be a stay-at-home dad.

His new spouse had rental income and work atScotiabank, and he was not in a good place mentally after losing his mortgage business. As indicated in Earle above, responsibility for asecond family will not relieve the parent of his obligation to his first family. In the case of Koch v. Koch, 2012 BCCA 378, the court didnot accept that it was necessary for the husband payor, who had lost his employment, to remain home with the children. There was noevidence in that case that the children of the payor’s second marriage had special needs. [57] Mr.

V. made a deliberate choice to be a stay-at-home dad for his second family, and those children were very young, but he hadlittle consideration for his first two children. I say that because he stopped paying child support in 2013, shortly after his secondmarriage. Again, he is prepared to have the court use his family’s income as his income, but that concession now does not alleviate thechildren’s financial needs when they were young. [58] Mr. V.’s third issue concerning his wife’s health is perhaps his strongest point.

As of 2020, she suffered a mild traumatic braininjury and he says he needs to be home to care for her and their two children. I accept that an outside care aide would be expensive andmay be required most of the day. The children are now of school age, but daycare and care aide costs could be prohibitive if he chose toreturn to work. [59] However, I note that Mr. V.’s spouse suffered these injuries in 2020, when the arrears were already well over $50,000. I alsomust consider Mr. V.’s ability to pay these arrears in the future.

His current spouse may recover or she may get long-term disability,events which may increase the family income or allow Mr. V. to more easily get work. [60] I also note that his current spouse has financial resources and owns three properties. Although Mr. V. apparently has no financialinterest in these assets, I can rely on the fact that he has financial assistance from his current spouse (see Shih v. Shih, 2015 BCSC 2108). [61] Mr. V. placed some emphasis on his travel costs to exercise access to his children.

Those travel costs were considerable.However, the original agreement sets out his child support at $646 per month taking into account shared travel arrangements betweenAlberta and the BC Lower Mainland. His visits undoubtedly did not proceed as he planned, but a lack of or decrease in access does notaffect support obligations, as set out in Earle. [62] More to the point, Mr. V.’s costs to exercise access are only relevant if he could show that he had an undue hardship claim due tohis unusually high expenses to exercise access.

He says his expenses increased because the mother did not always share in the drivingresponsibilities, but the mother denies this assertion. In fact, Mr. V.’s access costs went down over time as he saw the children less oftenbut for longer periods. In any event, Mr. V. would likely not be successful on a s.10 form of undue hardship claim, because he would notbe able to show his household standard of living was lower than that of the mother’s. They each have new families with two furtherchildren, and Ms. K. has no rental income. [63] I also do not see delay in enforcement as a big factor here.

It is peculiar that FMEP could not find Mr. V. until 2018, but Ms. K.filed the agreement in Abbotsford Court in 2012. Mr. V. had no reason to believe his child support obligations had ended, and Earlemakes clear that child support is the right of the child not the parent, and a parent cannot waive that right. [64] When I examine all the factors above, I find that it would be grossly unfair not to reduce the child support arrears, but only to asmall degree. Mr. V. had an unexpected loss of his career in 2012, and he chose to become a stay-at-home dad with his new family.

Heis willing for the court to treat the family rental income as his income, an income not much more than half of his income set out in theagreement. His wife then suffered a traumatic brain injury in 2020, making his financial situation more difficult. [65] However, most of the arrears had accumulated before 2020, and he paid virtually no child support between 2013 and 2018. Hischoice to be a stay-at-home dad for his second family was at the detriment of first family.

His ability to pay arrears in the future is lessthan clear, although his present wife’s injury has been long lasting and she is dependent on him. [66] I find that the current arrears of $56,086.24 should be reduced by $16,086.24, leaving a balance of $40,000. Interest, penaltiesand service charges are cancelled under s.174(4) of the FLA and s.14.4(6)(

c) of the Family Maintenance Enforcement Act. [67] I realize that Mr. V. cannot acquire a loan at this time to pay the sum of $40,000, but his circumstances may change and he hashad the advantage of relying upon his wife’s resources which are not inconsiderable. Mr. V. wanted the arrears cancelled and I appreciatehis new family faces adversity at this time, but on the other hand, Ms. K. was unnecessarily required to be the children’s sole providerfor many of their formative years.

ORDER [ 68 ] This Court orders that the child support arrears payable by E.J.V. to A.L.K. under the agreement made December 15, 2008, shall be reduced to the sum of $40,000. All interest, default fees, service charges and penalties to date are cancelled. [ 69 ] This Court further orders that E.J.V. is no longer obligated to pay ongoing monthly support for A.V. _____________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia