S.K.R. v. N.S.B., 2020 BCPC 21

Citation: S.K.R. v. N.S.B. 2020 BCPC 21 Date: 20200213 File No: 15567 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.K.R. APPLICANT AND: N.S.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK

Appearing in person: S.K.R. Appearing in person: N.S.B Place of Hearing: Abbotsford , B.C. Date of Hearing: February 12, 2020 Date of Judgment: February 13, 2020 Introduction [ 1 ] The Applicant, S.K.R. is the mother of a little boy named D.S.B., who was born on [omitted for publication]. The Respondent, N.S.B. is the child’s father. The parties were married in May of 2008 and lived together until December of 2009 when they separated. They have lived separate and apart ever since then and the child has been in the Applicant’s care. [ 2 ] On June 25, 2013, the Applicant filed an application for child support.

That matter is only now coming for a hearing. The Applicant says that she delayed proceeding on the application because the Respondent threatened to stop seeing the child if she went ahead with the application. She testified that she was concerned about emotional harm that would come to the child if she went ahead with the application. The parties also attempted resolution of the support issue through the Family Justice Counsellor, but they were unsuccessful in resolving the issue through those means.

The Applicant now seeks an order from this court. [ 3 ] Since the time of separation, the Respondent agrees with the Applicant that he has only paid $630 in child support payments. This was paid pursuant to an interim order made by the Honourable Judge G. J.

Brown of this court, which required the Respondent to pay the Applicant the sum of $210 per month for the support of the child commencing on December 1, 2019 and continuing on the first day of each month thereafter until further order of this court. [ 4 ] The Respondent does not think that he should have to pay any child support, or at best, only a modest amount of support for the child going forward. In his words, “I don’t see the sense of retroactive support.

I’ve paid for karate lessons and video games.” He concedes that some of these things were paid for by his parents, but in his opinion this amounts to the same thing as if he had paid them. [ 5 ] On October 29, 2019, the Honourable Judge Jamieson of this court made an order that the Respondent was to file a Financial Statement as required by the Provincial Court (Family) Rules by December 15, 2019.

The Respondent is in breach of that order and on the morning of the hearing, the Respondent furnished an unsworn financial statement with some papers loosely attached, but he had not shown these to the Applicant prior to the hearing. [ 6 ] At the hearing of this matter, the parties both testified. At the conclusion of the hearing, the Applicant sought an order for retroactive child support from the time of separation, and ongoing, based on the amount set out under the Federal Child Support Guidelines. She seeks to have an income imputed to the Respondent in the amount of $50,000.

The Respondent asks for the application for retroactive support to be dismissed and that ongoing child support remain at $210 based on the order of Judge Brown. [ 7 ] At the conclusion of the hearing, decision was reserved, but the parties were advised that the Respondent would be treated in the same manner as any other parent in Canada in his position. These reasons for judgement will set out the law that the parties are subject to and how any retroactive and ongoing child support has been calculated. Applicable Law 1.

The Obligation to Pay Child Support [ 8 ] When parents bring a child into the world, they have a joint and ongoing legal obligation to support their children according to their income earning ability. This is not something that the parties can bargain away. It is the child’s right to be supported in this manner. This is considered such an important obligation that a divorce cannot be granted until parents make satisfactory arrangements for the care of their children.

It is the child, not the parent with primary care of the child, who has the right to maintenance. [ 9 ] The purpose of the Federal Child Support Guidelines is to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation. [ 10 ] The payment of maintenance is based on the ability of the parent that is not providing the day-to-day care of the child (in this case the Respondent) to pay. Ability to pay is based not only on what that parent earns, but also what the parent can earn.

The law places the responsibility on parents who bring a child into the world to earn as much as they are capable of earning to meet their obligation to support their children. [ 11 ] The obligation to support one’s child takes priority over other financial obligations. A payor parent can’t use as an excuse for not paying child support that “I can’t afford child support because I have too many other bills.” Parents are expected to live within their means and make the obligation to support their children a priority.

Even when the person required to pay has a second family, the law is clear that responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. In this case, the Respondent has a second family and is the father of two children with his current partner. However, in his evidence, he testified that his new partner works in a specialized field and he said that he had no idea what she earns. [ 12 ] Delay in seeking or enforcement of a claim for child support is generally not a relevant factor.

A child cannot waive his or her right to maintenance, and a parent cannot give up that right on behalf of a child. The obligation to pay child support should be enforced in fairness to the parent who has had to bear a disproportionate part of the expenses of raising the child. Both parents are jointly responsible for the cost of raising the child and this responsibility should not be avoided by delay. [ 13 ] The payor parent is not excused from meeting his or her obligation to pay for the support of a child because others have provided assistance.

The payor parent is also not excused from paying child support at law because he or she spent money on the child in other ways. The law is clear that it is up to the parent who is entitled to receive child support to decide how that child support should be

spent in the best interests of the children. 2. Retroactive Child Support [ 14 ] Retroactive child support orders are not considered to be exceptional. They are often justified by the fact that the payor parent has chosen not to meet his or her support obligation due to a child.

Delay in making an application for retroactive child support may be excused if the applicant held reasonable fears that the payor parent would react vindictively to the application to the detriment of the child or to the family, or if the applicant lacked the financial ability to bring the application or experienced emotional impediments to bringing the application.

Since child support is the right of the child and cannot be waived by the recipient parent, delay does not eliminate the payor parent’s obligation. [ 15 ] Each parent’s behaviour should be considered in balancing the competing factors for and against retroactive orders. If a parent has an obligation to pay child support but refuses or neglects to do so, that conduct can be considered to be blameworthy if it privileges the payor parent’s own interests over his or her children’s right to an appropriate level of support.

Where the payor withholds disclosing information, this is a clear example of blameworthy conduct. A court must also consider any hardship that will result from a retroactive award in ordering retroactive support. However hardship for a payor parent is less of a concern if it results from his or her blameworthy conduct. [ 16 ] There are four options for when a retroactive support order can begin: (

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. The first two options should generally not be selected because parents should not be penalized for using an application to court as a last resort. The “effective date” is the date when it was indicated to the payor parent that child support needs to be calculated or recalculated. 3. How Child Support is Calculated [ 17 ] As a general rule, the Guidelines provide (in

section 16) that a payor parent’s annual income is determined using the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. But the guidelines go on to state that if the court is of the opinion that the determination of a spouse’s annual income under

section 16 would not be the fairest determination of that income, the court may use other methods to arrive at a fair number. A court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [ 18 ] In appropriate cases, a court can impute annual income to a spouse. This is allowed under

section 19 of the Guidelines in a number of situations. These include: 1. Where the payor is intentionally under-employed or unemployed, (other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse); 2. If the payor has failed to provide income information when under a legal obligation to do so. 3.

If the payor derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax. [ 19 ] In this case, the Respondent is in breach of a court order to provide the proper financial disclosure to properly assess his financial ability to support his child. He was ordered to file a proper financial statement by December 19, 2019, and has not complied with that order. Even on the morning of the hearing, which was scheduled in December of 2019, he had not complied with that order.

The financial statement he provided to the court was unsigned and unsworn. It only attached a Notice of Assessment for 2018. He did not provide copies of his income tax returns, something that would be vital in determining what deductions he has made in arriving at his income, in disclosing the sources of his income, and the rate of tax.

He also testified to having rental income but did not disclose this on his financial statement or provide any details about this. [ 20 ] Where the payor parent fails to provide information that is required by law to properly assess what a fair level of child support should be, an adverse inference can be drawn against that party. A payor cannot be sheltered from his or her responsibility to the child because of an unwillingness to be provide honest and open financial disclosure. When the payor does so, the benefit of any doubt may be given to the parent who is in receipt of child support.

Applying the Law to These Facts [ 21 ] In the present case, the Respondent has not furnished any valid excuse for his refusal to pay child support for his child (other than the recent payment of $630). The excuses he gives do not justify him from refusing to do so. Specifically he gives four reasons for not paying support for his child: 1. He does not see the sense of it: This is clearly not a valid excuse. His child has a right to be supported by both of his parents. It is not something that is optional for the Respondent, it is his responsibility to his child. He does not evade this responsibility just because

he doesn’t feel like it or agree with it. He is subject to the same law as every other parent in his position. 2. He has paid other expenses for the child: This is also not an excuse for non-payment. Once the responsibility to pay child support arises, the payor does not get to decide how that money should be spent. In this case it is up to the Applicant to decide how the child support owed by the Respondent can best be spent in the best interests of the child. Most likely, that is not by spending it on video games. 3.

Others have provided for the support of this child: This is all the more reason for the Respondent to own up to his responsibility. Others should not have to do what he is legally and morally obliged to do, and this is not a legal excuse for his failure to pay child support. 4. Child support was never requested: This is obviously untrue. The Applicant first filed an application for child support in June of 2013.

The issue was also discussed with the Family Justice Counsellor. [ 22 ] On the evidence, the reasons for non-payment of child support thus far have been for purely selfish reasons on the part of the Respondent. He has shown no valid reason whatsoever for failing to meet his financial, legal and moral obligation to support this child. [ 23 ] The next issue to decide is whether the Respondent should be paying retroactive child support. It is remarkable that he has not paid child support for almost ten years. Clearly he has had the ability to do so. He is asset rich and has little debt in proportion to his assets.

Although the Respondent has been secretive about his financial position, he admitted in his evidence that he is the owner of two rental properties and that he has approximately $900,000 worth of equity in these two properties. He also has a relatively new vehicle, an expensive motorcycle, a trailer, and a $7000 watch. He claims to have $23,000 worth of credit card debt, but did not supply any independent proof of this. The Applicant suspects that he has also under-reported all of his real estate holdings, as well as his jewellery.

In light of the fact that the Respondent is in breach of the order to provide financial information in the required form and on time, her suspicions appear to be reasonable. The Respondent also testified that he may or may not have registered retirement savings plans but was unsure about this. This seems highly incredible.

He also claimed to have bank accounts with about $8,000, but did not produce any bank statements. [ 24 ] The lack of proper disclosure of his financial affairs, the selfish reasons for refusing to pay child support, and the emotional blackmail of threatening to stop seeing his child if the Applicant pursued her claim for child support all amount to clear evidence of blameworthy conduct on the part of the Respondent. This blameworthy conduct supports the imposition of an award for retroactive support from the time of separation (i.e. commencing in January of 2010).

The Respondent had the means to support his child and had no valid reason for refusing to do so. That this will now result in a large retroactive support order is something for which the Respondent only has himself to blame. [ 25 ] The Applicant asks for a finding that the Respondent should have an imputed income of $50,000 per annum attributed to him. The only Notices of Assessment that the Respondent has produced (for 2017 and 2018) shows line 150 income of $12,051 and $20,763 respectively.

The Respondent has not disclosed how this income is arrived at, and whether it is the product of huge depreciation claims from his rental properties or is the product of some other artificial reduction. No income information has been furnished for 2019. The Respondent simply states that he is employed for a company that does “real estate consulting.” [ 26 ] The Respondent is also a real estate agent, but he claims that he is unable to work in that profession because of “car accidents”.

He was vague about how he is prevented from working as a realtor, and did not furnish any medical evidence or reports confirming that his injuries prevent him from doing so. [ 27 ] This case falls squarely within

section 19 of the Guidelines, which allow for an income to be imputed to the Respondent, rather than relying on his Notices of Assessment. He has failed to meet his obligations to furnish full and complete financial disclosure, even to the point of being in breach of an order of this court to do so. He has not provided the supporting income tax documents to properly assess and verify the income shown on his Notices of Assessment. Where there has been a failure to be open about a payor parent’s financial disclosure, this Court can draw an adverse inference against the Respondent.

The case is all the more strong for doing so here where the Respondent has demonstrated an intention to refuse to meet his obligations to support his child without good excuse for doing so. [ 28 ] While the Applicant has had to support her child without any significant help from the Respondent, he has been able to build his own financial position to a point where he has built a net worth of over a million dollars. The Respondent did not provide any evidence on how he was able to do so while earning in the twelve to twenty thousand dollar range annually.

Under these circumstances, it is reasonable to draw an adverse inference against the Respondent and to attribute an annual income to him in the range suggested by the Applicant. [ 29 ] Imputing an annual income of $50,000 per annum to the Respondent from and after January 1, 2010, it is reasonable and fair to this child to assess retroactive child support from and after that date, based on the imputed income, at the guideline amount. From January 1, 2010 to December 1, 2011 an annual income of $50,000 attracted a monthly child support amount for one child in the sum of $465 per month.

In late December of 2011 the Guidelines were changed such that an imputed income of $50,000 attracted a child support payment of $458 per month. The tables were changed again on November 22, 2017 and from and after that date, the monthly child support order for these circumstances is $470. [ 30 ] The amount of retroactive child support owing by the Respondent to the Applicant is the sum of $55,738 calculated as follows:

a) From January 2010 to December 2011, 24 months at $465 per month: $11,160;

b) From January 2012 to November 2017, 71 months at $458 per month: $32,518;

c) From December 2017 to February 2020, 27 months at $470 per month: $12,690

d) Less child support received to date: ($630) TOTAL ARREARS OF CHILD SUPPORT: $55,738. [ 31 ] The Respondent has assets to mortgage or sell in order to once and for all meet his obligation to support his child. In order to incentivize him to do so, a high monthly payment will be set to be paid toward the arrears.

The intention is for this, and the fact that the Family Maintenance Employment Program will assess a higher rate of interest than a bank would on a mortgage, to prod him to get these arrears paid off sooner rather than later. [ 32 ] An order will be made for payment of retroactive maintenance as calculated above, for ongoing child maintenance based on the imputed income, and for the requirement to make full and open financial disclosure in future to that the level of support that this child is entitled to can be properly assessed.

The Respondent will also be ordered to pay his proportionate share of the child’s expenses under

section 7 of the Guidelines. Based on the Applicant’s reported annual income of $32,720 and the Respondent’s imputed annual income of $50,000, the Respondent’s share of these expenses will be 60.44%. Order [ 33 ] For the foregoing reasons, it is ordered as follows: Upon the Court being advised that the name and birth date of the child is D.S.B., born on [omitted for publication]; 1. The Respondent, N.S.B. is found to be a resident of British Columbia and is imputed to have a gross annual income of $50,000. 2. N.S.B. will pay to the Applicant, S.K.R., for the support of the child, the following amounts:

a) From January of 2010 to December of 2011, both inclusive, the sum of $465 per month, payable on the 1 st day of each of those months;

b) From January of 2012 to November of 2017, both inclusive, the sum of $458 per month, payable on the 1 st day of each of those months;

c) From December 1, 2017 and continuing on the 1 st day of each and every month thereafter, the sum of $470 per month for as long as the child is eligible for support under the Family Law Act or until further Court order. 3. N.S.B. will pay to S.K.R. his proportional share for the child’s special or extraordinary expenses. The parties’ respective proportional shares are, for N.S.B., 60.44% and for S.K.R., 39.56%. The following expenses will be special or extraordinary expenses:

a) child care expenses incurred as a result of the Applicant’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; and

e) expenses for post-secondary education. 4. The arrears of child support owing from N.S.B. to S.K.R. as of the date of this order are $55,738, including principal and interest and default fees. 5. N.S.B. will pay to S.K.R. a minimum of $1,500 per month towards the arrears of support, in addition to his regular monthly support payments, commencing on March 1, 2020 and continuing on the 1 st day of each month thereafter until the arrears are paid in full or until further Court Order. 6. For as long as the child is eligible to receive child support, the parties will exchange:

a) copies of their respective income tax returns for the previous year, including all attachments, not later than May 31 st of each year; and

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, within 7 days of receipt. In the event that the N.S.B. fails to provide financial disclosure as required by the terms of this order, then pursuant to s. 213(2)(d)(ii) of the FLA, he shall pay to S.K.R. an additional sum of $500 as a penalty for failure to comply with this term of the order. Dated at the City of Abbotsford, in the Province of British Columbia, this 13 th day of February, 2020.

______________________________________ The Honourable Judge K. D. Skilnick Provincial Court of British Columbia