R.C.M. v. M.G.H. Date:, 2017 BCPC 305

Citation: R.C.M. v. M.G.H. Date: 20170929 2017 BCPC 305 File No: 15696 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.C.M. APPLICANT AND: M.G.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: J. Kenacan Q.C. Appearing on their own behalf: R.C.M.

Place of Hearing: Terrace, B.C. Date of Hearing: August 18, 2017 Date of Judgment: September 29, 2017 Introduction [1] On August 18, 2017, I heard M.G.H.’s application to retroactively amend Judge Skilnick’s child support order made almost adecade ago. [2] M.G.H. is the biological father of E.J.M., born [omitted for publication]. R.C.M. is E.J.M.’s biological mother and primarycare giver. E.J.M. is the only child of a brief relationship between M.G.H. and R.C.M. over 17 years ago. [3] M.G.H. and R.C.M. separated when E.J.M. was six months old (roughly November 2000) and M.G.H. moved to Nanaimo,B.C.

Between 2001 to 2006, M.G.H. worked seasonally as a fish cutter at [omitted for publication] Cannery Warehouse. During thisperiod, M.G.H. did not see E.J.M. and did not pay R.C.M. any child support. [4] On November 14, 2007, Judge Skilnick ordered M.G.H. pay R.C.M. child support for E.J.M. in the amount of $300 per monthcommencing December 1, 2007. Although personally served with R.C.M.’s application, M.G.H. neither filed a Reply nor appeared atthe hearing of the application. In his absence, Judge Skilnick imputed M.G.H. to have an annual income of $32,080. [5] M.G.H. never earned $32,080 in 2007, or ever.

Consequently, M.G.H. amassed substantial arrears of child support over theensuing years. [6] M.G.H. now seeks to reduce his arrears of child support by way of a retroactive amendment to Judge Skilnick’s November 14,2007 order. If granted, the amendment could result in M.G.H. having overpaid child support. Nevertheless, M.G.H. is not seekingreimbursement for any overpayment of child support which R.C.M. has already received.

He simply wishes to go forward withoutarrears he can ill afford to pay. [7] On August 18, 2017, I heard oral evidence from M.G.H. and R.C.M. and received into evidence the following documentation: a. M.G.H.’s affidavit sworn June 27, 2017 and filed on June 28, 2017. His affidavit attaches 13 exhibits from “A” to “M”; b. M.G.H.’s Financial Statement sworn June 27, 2017, and filed June 28, 2017; c. Mr. Norman von Penz’s Affidavit of Personal Service sworn July 4, 2017 and filed July 5, 2017, confirming he personally servedR.C.M. with M.G.H.’s Affidavit and Financial Statement; d.

M.G.H.’s Statement of Income and Earnings for 2017, which was marked Exhibit 1 in the hearing; e. Correspondence dated April 10, 2017 from the Family Maintenance Enforcement Program to Counsel for M.G.H., confirming itreceived over $5,000 in income tax refunds for M.G.H., which it is holding pending the outcome of this application. Thiscorrespondence was marked as Exhibit 2 in the hearing. [8] Ms. Kenacan also provided me with the following authorities: AP v. HP, 2017 BCSC 955, C.A.O. v. S.J.O., 2012 BCSC 378;Carriere v. Carriere, 2013 BCSC 2357, D.J.C. v. C.C., 2006 BCPC 75 , 2006 BCPC 0075; DBS v.

SRG et al 2006 SCC 37;Earle v. Earle 199 CanLII 6914 BCSC; GMW v. DPW 2014 BCCA 282; Haq v. Haq, 2011 ONCJ 664 ; N.M. v. G.M., 2015BCSC 1732; PMB v. MLB 2010 NBCA 5. [9] R.C.M. was unrepresented at the August 18, 2017 hearing. She had been personally served with M.G.H.’s February 14, 2017application and a copy of M.G.H.’s June 28, 2017 affidavit. R.C.M. confirmed she had received and read these documents. [10] I have considered all the oral and documentary evidence, submissions of Counsel and R.C.M. and the authorities. I have alsoreviewed the history of the proceedings from the court file.

This is my decision and reasons for judgment. Issues [11] The issues before the court are as follows: a. Has there been a material change of circumstances? b. Should this court amend Judge Skilnick’s November 14, 2007 order retroactively? In this regard: i. What are the circumstances surrounding M.G.H.’s delay in bringing the application? ii. What is M.G.H.’s conduct? iii. What are E.J.M.’s circumstances? iv. Is there any hardship with respect to a retroactive child support order? c. If the court should retroactively amend Judge Skilnick’s November 14, 2007 order, how should it be amended?

History of Proceedings [ 12 ] On April 25, 2007, the Minister of the Employment and Income Assistance Act filed an Application to Obtain an Order on behalf of R.C.M. seeking maintenance for E.J.M.

The application states: Take notice that if you do not reply to this application and file a financial statement to prove what your gross income is, then the applicant will be requesting that the court impute income to you in the amount of $32,080 per year for the average annual income of a cannery worker as per information obtained from British Columbia Occupational Outlooks 2000 Edition produced by the Human Resources Development of Canada and that your child support obligations be based on that amount. [ 13 ] In April 2007, M.G.H. did not work for a cannery.

Moreover, although M.G.H. had worked previously for [omitted for publication] Cannery, he did so only seasonally. [ 14 ] On April 25, 2007, the Ministry of Employment and Income Assistance filed an affidavit attaching as Exhibit “A” an Assignment of Maintenance Rights made by R.C.M. to the Ministry on April 5, 2001, and as Exhibit “B”, an Assignment of Maintenance Rights made by R.C.M. on March 2, 2007. [ 15 ] On September 24, 2007, William Wellman, a process server, personally served M.G.H. with a copy of the April 25, 2007 application, a blank Reply and a blank Financial Statement.

At that time, M.G.H. was working at [omitted for publication] Food Company, a restaurant located at [omitted for publication] , in Nanaimo, B.C. [ 16 ] M.G.H. did not file a Reply, and R.C.M.’s application for child support was scheduled for hearing in Terrace Provincial Court on November 14, 2007.

The Court Registry notified only R.C.M. of the court date. [ 17 ] On November 14, 2007, R.C.M. filed an affidavit confirming M.G.H. was E.J.M.’s natural father and she had no knowledge of M.G.H.’s employment. [ 18 ] R.C.M.’s April 25, 2007 application for child support came before Judge Skilnick in the Terrace Provincial Court on November 14, 2007. Wade MacGregor appeared as counsel on behalf of the Ministry of Employment & Income Assistance and R.C.M. M.G.H. did not appear and in his absence Judge Skilnick made the following final order: a. R.C.M. has sole custody and guardianship of E.J.M.; b.

M.G.H. pay R.C.M. $300 per month for child support for E.J.M. commencing December 1, 2007; and c. M.G.H. is imputed to have an annual income of $32,080. [ 19 ] By way of a letter filed March 11, 2008, the Family Maintenance Enforcement Program (“FMEP”) advised the court registry that an order between M.G.H. and R.C.M. had been filed with the Director of Maintenance Enforcement. [ 20 ] On May 12, 2008, Director of Maintenance Enforcement filed a Notice of Attachment to Her Majesty the Queen in Right of Canada with respect to any monies owing to M.G.H.

As of May 5, 2008, M.G.H.’s arrears for E.J.M.’s child support totalled $1,814.23. [ 21 ] On May 14, 2008, the Director of Maintenance Enforcement filed a Notice of Attachment to [omitted for publication] Holdings Ltd. of [omitted for publication] , Nanaimo, B.C. ( [omitted for publication] ) with respect to any monies owing to M.G.H.

As of May 7, 2008, M.G.H.’s arrears for E.J.M.’s child support totalled $1,814.73. [ 22 ] On October 23, 2008, the Director of Maintenance Enforcement filed a Notice of Attachment to [omitted for publication] Restaurant Inc. of [omitted for publication] , Nanaimo, B.C. with respect to any monies owing to M.G.H.

As of October 15, 2008, M.G.H.’s arrears for E.J.M.’s child support totalled $1,523.63. [ 23 ] On December 12, 2008, the Director of Maintenance Enforcement filed a Notice of Attachments to the [omitted for publication] Restaurant Inc. of [omitted for publication] Street, Nanaimo, B.C. and [omitted for publication] , at [omitted for publication] Avenue North, Nanaimo, B.C. with respect to any monies owing to M.G.H.

As of December 5, 2008, M.G.H.’s arrears for E.J.M.’s child support totalled $2,134.47. [ 24 ] On February 2, 2009, the Director of Maintenance Enforcement filed a Notice of Attachment to BMO Bank of Montreal, HSBC Bank Canada, Royal Bank of Canada, TD Canada Trust, The Bank of Nova Scotia, Coast Capital Savings Credit Union, Coastal Community Credit Union, Island Savings Credit Union, Canadian Imperial Bank of Commerce with respect to any monies M.G.H. may have on deposit in those institutions.

As of January 26, 2009, M.G.H.’s arrears for E.J.M.’s child support totalled $2,747.63. [ 25 ] On March 4, 2009, the Ministry of Housing and Social Development filed with the court a document dated December 17, 2008 assigning to the Ministry R.C.M.’s rights to child support for E.J.M. [ 26 ] On June 11, 2014, the Director of Maintenance Enforcement filed a Notice of Motion in Maintenance Enforcement Proceedings seeking an order requiring M.G.H. to file a statement of finances and prescribed documents. [ 27 ] Also on June 11, 2014, the Director of Maintenance Enforcement filed a request for court enforcement under the Family Maintenance Enforcement Act by way of a summons requiring M.G.H. to attend a default hearing.

In support of its application, the Director of Maintenance Enforcement filed a Statement of Arrears stating that as of June 5, 2014, M.G.H.’s arrears of child support totalled $18,667.07, inclusive of statutorily accrued interest and legislated fees. [ 28 ] On June 13, 2014, M.G.H. was summoned to attend a default hearing scheduled in Terrace Family Court on July 22, 2014. The Director of Maintenance Enforcement asked a sheriff to personally serve M.G.H. the summons. At the time, M.G.H. resided at [omitted for publication] Avenue, Coquitlam, B.C.

[ 29 ] On June 25, 2014, Deputy Sheriff Rodney Bonthoux filed a Certificate of Service indicating that on June 23, 2014 he had served M.G.H. with the Director of Maintenance Enforcement’s Summons to a Default Hearing, Notice of Motion, Statement of Arrears, Order, Blank Financial Statement, at the Port Coquitlam Courts, 2620 Mary Hill Road, Port Coquitlam, B.C. [ 30 ] On July 22, 2014, M.G.H. appeared before Judge Struyk in the Terrace Provincial Court for a default hearing. M.G.H. had the assistance of Duty Counsel Roth. R.C.M. was not present; however, Mr.

MacGregor was present as Counsel for the Director of Maintenance Enforcement and presumably agent for R.C.M. On that day, Judge Struyk ordered M.G.H. to produce his statement of finances and adjourned the default hearing to September 16, 2014. [ 31 ] On September 8, 2014, M.G.H. filed a Financial Statement in which he indicated he was working as a line cook for [omitted for publication] Inn. He stated he received $11,000 from his employment and $900 from social assistance. [ 32 ] On September 16, 2014, the default hearing proceeded in Terrace Provincial Court before Judge Struyk.

Wade MacGregor appeared as counsel on behalf of the Director of Maintenance Enforcement and agent for R.C.M. M.G.H. was also present and assisted by Bryan Crampton, appearing as duty counsel.

Judge Struyk ordered by consent: a. the arrears of child support M.G.H. owed R.C.M. are fixed at $19,690.35 as of September 8, 2014, inclusive of statutorily accrued interest and legislated fees; b. commencing October 1, 2014, M.G.H. pay $1.00 per month toward the retirement of the arrears of maintenance; c. commencing October 1, 2014, M.G.H. pay ongoing child support in the amount of $300 per month; and d. in the event he defaulted in his child support payments, M.G.H. was to be imprisoned for three days for each default, with the time served consecutively. [ 33 ] The Clerks notes from the September 16, 2014 default hearing state: “M.G.H. may wish to make an Application to Reduce Arrears.” [ 34 ] On September 30, 2014, M.G.H. filed an Application Respecting Existing Orders or Agreements in the Terrace Provincial Court seeking to vary Judge Skilnick’s November 14, 2007 order on the basis he did not earn $32,080 per year.

The application indicates notice to R.C.M., Director of Maintenance Enforcement and the Ministry under the Employment and Assistance Act and Employment and Assistance for Persons with Disabilities Act. [ 35 ] On September 30, 2014, M.G.H. filed a further Financial Statement indicating his annual income from his employment was $14,379.76. To this document, M.G.H. appended: a. Statement of Benefits paid to M.G.H. by the Government of British Columbia in the 2012 taxation year in the amount of $3,845; b.

Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Inn Ltd. for the 2012 taxation year in the amount of $5,220.57; c. Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Inc. for the 2012 taxation year in the amount of $601.64; d. Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Services Ltd. in the 2012 taxation year the amount of $40.02; e.

Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Inc. for the 2012 taxation year in the amount of $168; f. Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Holdings Ltd. in the 2011 taxation year in the amount of $18,079.16; g. Statement of Benefits paid to M.G.H. from the Government of British Columbia for the 2010 taxation year in the amount of $3,230; h. Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Holdings Ltd. in the 2010 taxation year in the amount of $8,047.71; i.

Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] B.C. Ltd. in the 2009 taxation year in the amount of $12,639; j. Statement of Remuneration paid to M.G.H. as employment income from [omitted for publication] Holdings Ltd. in the 2009 taxation year in the amount of $643; k. M.G.H.’s Statement of Earnings from [omitted for publication] Inn for the two pay periods August 23, 2014 and September 20, 2014. These statements indicate that M.G.H. earned $13.00 per hour.

In the pay period ending August 23, 2014, M.G.H. earned $292.50 plus holiday pay of $11.70 and for the pay period ending September 20, 2014, he earned $191.70 plus holiday pay of $7.67; l. M.G.H.’s Record of Employment from [omitted for publication] Ltd. from January 16, 2014 to July 18, 2014, during which he earned $11,112.76.

The ROE indicates M.G.H. was laid off due to shortage of work. [ 36 ] On February 9, 2016, the Director of Maintenance Enforcement sought and obtained a Summons to Committal Hearing compelling M.G.H. to appear before the court on March 22, 2016, to give reasons why he should not be imprisoned for disobeying the court’s order. The Director of Maintenance Enforcement also filed a Statement of Arrears indicating that as of February 2, 2016, M.G.H.

was in arrears for child support owing to R.C.M. totalling $19,326.42. At this time, M.G.H.’s address was [omitted for publication] , Terrace, B.C. [ 37 ] On February 10, 2016, the Sheriff personally served M.G.H. with the Summons to the Committal Hearing at [omitted for publication] , Terrace B.C. [ 38 ] On March 22, 2016, M.G.H. attended the Committal Hearing in Terrace Provincial Court before Judge Wright. Beverly Slater assisted M.G.H. as duty Counsel. Darryl M. Wightman appeared as agent on behalf of Andrea Penner, counsel for the Director of Maintenance Enforcement and agent for R.C.M.

On March 22, 2016, Judge Wright ordered, on an interim basis, by consent: a.

M.G.H. file a Statement of Finances in Form 4 (Provincial Court (Family) Rules), in the prescribed form on or before April 30, 2016; b. the arrears of child support owing from M.G.H. to R.C.M. are fixed in the amount of $17,687.65 as of March 16, 2016; inclusive of statutorily accrued interest and legislated fees; c. commencing April 1, 2016, M.G.H. pay $1.00 per month toward the retirement of the arrears in maintenance owing to R.C.M. together with the $300 per month in ongoing child support; d. if he defaults in payments of the arrears or child support M.G.H. will be imprisoned for three days for each default, with time to be served consecutively (pursuant to s. 21(1)(

e) FMEA ); e. M.G.H. pay immediately the sum of $1,252.93, of which $952.93 will be allocated towards the arrears and $300 towards his March 2016 maintenance payment; f. Judge Struyk’s September 16, 2014 order is cancelled; and g. the show cause committal hearing is adjourned to May 17, 2016. [ 39 ] On May 2, 2016, M.G.H. filed a further Financial Statement indicating he was working at [omitted for publication] Manufacturing Ltd. and earned $29,000 per annum. To this document, M.G.H. attached his Tax

Summary for the 2015 taxation year indicating he earned $12,664.53 and his statement of earnings from [omitted for publication] Manufacturing Ltd. indicating he earned $14.00 per hour for the two week pay period ending April 16, 2016. M.G.H. did not complete

Part 2 setting out his expenses. [ 40 ] On May 17, 2016, M.G.H. attended the Terrace Provincial Court before Judge Wright. The Director of Maintenance Enforcement and R.C.M. were represented by Sean Davidson. M.G.H. was present but unrepresented. Judge Wright ordered on an interim basis, by consent: a. M.G.H. complete, file with the registry and deliver to counsel for the Family Maintenance Enforcement Program, a sworn Financial Statement in Form 5; b.

On or before May 31, 2016, M.G.H. was to pay to R.C.M. $461, being the default amount accrued under Judge Wright’s March 22, 2016 order; c. the show cause committal hearing was adjourned to June 7, 2016. [ 41 ] On May 27, 2016, M.G.H. re-filed his May 2, 2016 Financial Statement in which he declared employment income of $29,000. At the time, M.G.H. earned $14 per hour as an apprentice cabinet maker for [omitted for publication] Manufacturing Ltd. in Terrace, B.C.

On this form, M.G.H. set out his annual expenses as $36,351. [ 42 ] On June 7, 2016, M.G.H. appeared in person and unrepresented before Judge Daley in the Terrace Provincial Court. Mr. Davidson appeared as agent for the Director of Maintenance Enforcement and R.C.M. At that time Judge Daley adjourned the Director’s application filed February 9, 2016 for court enforcement of the November 14, 2007 and September 16, 2014 child support orders. [ 43 ] On July 5, 2016, M.G.H. appeared before Judge Wright in the Terrace Provincial Court; Ms.

Andrea Penner appeared as counsel for Director of Maintenance and Enforcement for the benefit of R.C.M. M.G.H. was present and unrepresented. On July 5, 2016, Judge Wright ordered, on an interim basis, by consent: a. M.G.H. provide copies of his last ten years of Income Tax Returns with all attachments to counsel for the Director of Maintenance Enforcement by August 1, 2016; b.

M.G.H. provide his paystubs for the months of June, July and August 2016, to the Director of Maintenance Enforcement by September 15, 2016; and c. the matter be scheduled for hearing on September 20, 2016. [ 44 ] On September 20, 2016, M.G.H. attended unrepresented before Judge Wright at the Terrace Provincial Court. Ms. A. Penner represented the Director of Maintenance and Enforcement for the benefit of R.C.M.

The Director’s application filed February 9, 2016 for court enforcement of the November 14, 2007 and September 16, 2014 child support orders was further adjourned to November 1, 2016. [ 45 ] On November 1, 2016, M.G.H. attended before Judge Struyk in the Terrace Provincial Court. At this time he was represented by Ms. Kenacan, his current counsel. Ms. A. Penner represented the Director of Maintenance and Enforcement for the benefit of R.C.M.

The Director’s application filed February 9, 2016 for court enforcement of the November 14, 2007 and September 16, 2014 child support orders was further adjourned to December 6, 2016.

[ 46 ] On February 14, 2017, Ms.

Kenacan, on M.G.H.’s behalf, filed an application to obtain an order seeking the following relief: a. an order varying Judge Skilnick’s November 14, 2007 order to reflect M.G.H.’s actual, rather than imputed income; b. an order suspending the November 14, 2007 order and terminating the September 16, 2014 order; c. an order terminating Judge Struyk’s September 16, 2014 order. [Judge Struyk’s September 16, 2014 order was cancelled by Judge Wright on March 22, 2016.] [ 47 ] On March 16, 2017, Norman von Pentz filed an affidavit attesting to having personally served R.C.M. with M.G.H.’s February 14, 2017 application and a blank reply. [ 48 ] On March 30, 2017, R.C.M. filed a Reply disputing M.G.H.’s application to change Judge Skilnick’s November 14, 2007 order. [ 49 ] On April 18, 2017, the Director’s application filed February 9, 2016 for court enforcement of the November 14, 2007 and September 16, 2014 child support orders was further adjourned to September 5, 2017.

At that time, M.G.H. was represented by Ms. Kenacan and the Director of Maintenance and Enforcement and R.C.M. were represented by S. Van Dyke. [ 50 ] On May 2, 2017, Ms. Kenacan, M.G.H. and R.C.M. attended before Judge Wright in the Terrace Provincial Court with respect to the M.G.H.’s application to vary Judge Skilnick’s November 14, 2007 order. At that time, Judge Wright ordered Ms.

Kenacan provide R.C.M. with any documents she intended to rely upon at hearing by noon on July 14, 2017. [ 51 ] On June 28, 2017, M.G.H. filed his affidavit and Financial Statement indicating his annual guideline income is $17,300 from his most recent employment with [omitted for publication] in Terrace, B.C. Background facts [ 52 ] M.G.H. is 40 years old.

He was born [omitted for publication] in in Greenville B.C. and is a member of the Nisga’a First Nations. [ 53 ] M.G.H. suffered childhood trauma in various forms, including: a. from an early age, he was raised in foster care; b. both his parents attended residential school; c. both his parents abused alcohol; d. when only six or seven years old, he was run over by a pickup truck and suffered a concussion, broken pelvis and internal bleeding; and e. he spent years of homelessness after he aged out of foster care at 18. [ 54 ] As a result of these childhood traumas, M.G.H. was unable to complete high school.

He suffered memory problems throughout his life. [ 55 ] When he was 22, M.G.H. and R.C.M. entered into an intimate relationship. As R.C.M. was born on [omitted for publication], she would have been 21 years old. E.J.M. was born a year later on [omitted for publication] . [ 56 ] While they cohabitated M.G.H. and R.C.M. resided with R.C.M.’s family in Gitwanga​ak. They separated when E.J.M. was six months old. [ 57 ] E.J.M. has always lived primarily with his mother, R.C.M.

M.G.H. has made little effort to establish a relationship with E.J.M. and has had minimal involvement in E.J.M.’s life. [ 58 ] Before being ordered to do so, M.G.H. provided R.C.M. with virtually no financial support or E.J.M. When he did send R.C.M. money, it was very little. Occasionally, he bought E.J.M. clothing or toys for Christmas. [ 59 ] It was not until November 14, 2007, that R.C.M. obtained a court order compelling M.G.H. to pay child support. Even then, M.G.H. did not voluntarily or regularly pay R.C.M. child support.

For the past ten years, FMEP has been actively attempting to collect child support from M.G.H. through various methods, including garnishing his wages and summoning him to court to attend default and committal hearings. [ 60 ] In 2013, while working in Vancouver, B.C., M.G.H. commenced a relationship with R.F. In 2014, M.G.H. and R.F. moved from Vancouver to Terrace, B.C. where they now reside. They now have three children, ages one, two and three. [ 61 ] M.G.H. and R.F. separated at the end of April 2017. [ 62 ] Throughout his adult life, M.G.H. worked intermittently at various low level and seasonal jobs.

From time-to-time and at various times, M.G.H. has been a fish cutter, dishwasher, prep or line cook, janitor, labourer, apprentice and light construction worker. None of these positions paid M.G.H. much more than minimum wage. M.G.H.’s highest paying job was with [omitted for publication] Manufacturing Ltd. in Terrace, B.C. Even then he earned $16 per hour just before he was laid off in April 2017. [ 63 ] M.G.H. attached as Exhibit “A” to his affidavit his Income Tax Returns and Statement of Remuneration for 2007 showing he

earned $21,400 for the 2007 taxation year. [ 64 ] M.G.H. did not file a Reply to R.C.M.’s original application for child support and was not present in Terrace Provincial Court when Judge Skilnick made his November 14, 2007 order. [ 65 ] I was not provided with Judge Skilnick’s Reasons for Judgment, however I assume M.G.H. was imputed to earn $32,080 per annum for the reasons set out in R.C.M.’s April 25, 2007 application.

As there was no evidence of M.G.H.’s actual income before the court, the applications Judge imputed to M.G.H. the generic average annual income of a cannery worker, which M.G.H. was thought to be. [ 66 ] On November 14, 2007, M.G.H. was living in Nanaimo and earning $10 per hour as a dishwasher in a local restaurant, the [omitted for publication] Food Company. He had no money to retain legal counsel or to travel to Terrace to attend court. [ 67 ] M.G.H. has never earned an annual wage close to $32,080 and there is no documentation suggesting otherwise.

M.G.H. attached to his Jun 28, 2017 affidavit Canadian Revenue Agency Income Tax Returns and T4 Statements of Remuneration Paid showing his annual income between 2007 and 2016: a. 2007: $21,400 b. 2008: $16,881 c. 2009: $13,282 d. 2010: $11,277, of which $3,230 was from social assistance e. 2011: $18,079 f. 2012: $ 9,875, of which $3,845 was from social assistance g. 2013: $ 3,737 h. 2014: $20,008, of which $1,585 was from social assistance i. 2015: $15,808, of which $2,812 was from social assistance j. 2016: $17,308 [ 68 ] At the August 18, 2017 hearing, M.G.H. confirmed his employment over the years was that set out in his income tax returns attached as exhibits to his June 28, 2017 affidavit.

M.G.H. testified he never received any income outside that employment. He did receive some undeclared tips, but these did not amount to more than $30 to $50 biweekly. [ 69 ] For the past ten years, M.G.H.’s income for the purposes of calculating his guideline child support payable to R.C.M. was imputed to be $32,080. Based on this sum, M.G.H. was ordered to pay $300 per month in child support to R.C.M. for E.J.M. on and after December 1, 2007. [ 70 ] Between December 1, 2007 and June 1, 2017, M.G.H. was ordered to pay a total of $34,500 in child support under Judge Skilnick’s November 14, 2007 order.

During this ten year period, M.G.H. paid a total of $23,442.56 in child support, which meant he accrued arrears in the amount of $11,057.44 together with FMEP interest of $2,281.06. As of June 1, 2017, M.G.H.’s arrears in child support totalled $13,338.50. [ 71 ] M.G.H.’s actual income for 2007 to June 2017, inclusive, as set out in his Income Tax Returns, indicates M.G.H. ought to have paid child support totalling $13,650.

As he has paid $23,442.56, M.G.H. has overpaid child support in the amount of $9,792.56. [ 72 ] Although he filed an application to vary Judge Skilnick’s November 14, 2007 order on September 30, 2014, M.G.H. could not pursue this application without assistance. First and foremost he needed to file his income tax returns for several years. M.G.H. sought help from the Legal Services Society, but was ineligible for legal aid until he faced the possibility of going to jail. This did not happen until M.G.H. was summoned to a committal hearing on February 9, 2016.

Eventually, M.G.H. obtained assistance from the Legal Services Society. [ 73 ] In order to bring this application the Legal Services Society helped M.G.H. file his income tax returns for many years. Needless-to-say, this was a difficult and time consuming process. M.G.H.’s income tax returns for 2007, 2008, 2009, 2013, 2014, and 2016 were not assessed until March 2017.

M.G.H.’s income tax returns for 2010, 2011 were assessed on November 10, 2014, which was almost two months after Judge Struyk’s September 16, 2014 order. [ 74 ] I do note, however, M.G.H.’s income tax return for 2012 was assessed on October 3, 2013, indicating he earned $ 9,875 for the 2012 taxation year. M.G.H.’s current financial circumstances [ 75 ] In 2016, M.G.H. earned between $14 per hour as an apprentice cabinet maker with [omitted for publication] Manufacturing Ltd. in Terrace, B.C.

His total 2016 income from this employment was $17,308.72. [ 76 ] M.G.H. continued to work for [omitted for publication] Manufacturing Ltd. until April 2017, when he was laid off due to a slowdown in work. By 2017, M.G.H. was earning $16 per hour. In total, M.G.H. earned $7,200 from [omitted for publication] Manufacturing Ltd. in 2017 before he was laid off in April.

[ 77 ] On May 6, 2017, M.G.H. began working at [omitted for publication] Ltd. as a sawyer cutting lumber for trusses at $15.00 per hour. M.G.H. has since been promoted to the position of constructing trusses, which requires him to read blueprints and hone his mathematical skills. M.G.H. is hopeful this position will lead to more challenging work with a higher rate of pay. M.G.H. anticipates his income from [omitted for publication] Ltd. will be $600 per week. As he cannot work all months of the year, M.G.H. anticipates earning $16,800 for 2017.

M.G.H. projects his income from May 2017 to May 2018 to be $27,000: See Exhibit 1) [ 78 ] The evidence suggests that M.G.H.’s employment opportunities have improved now that he has transitioned from the restaurant industry into skilled construction work.

Applicable Legislation [ 79 ] The principles on which child support is based are: a. the parents of a child have a joint and ongoing obligation to support their children; b. child support belongs to the child; c. the amount of child support is based, not only on the parents’ earnings, but also on what the parent can earn - the latter of which is the imputing of income described in the Federal Child Support Guidelines (the “ Guidelines ”). See Carriere v. Carriere , 2013 BCSC 235 , at para. 21 , citing Earle v.

Earle , 1999 BCSC 283. [ 80 ] The provisions set out in the Guidelines are presumptive unless one of the specified exceptions applies. Accordingly, s. 3(1) of the Guidelines requires the court to order the amount set forth in the table. This amount is set according to the annual income of the payor parent. The presumptive rule contained in s. 3(1) of the Guidelines may be excepted if certain conditions apply. [ 81 ] A payor parent who accumulates arrears in child support can apply to court to reduce or cancel arrears under sections 174 or 152 of the FLA .

Section 174 empowers a court to reduce or cancel arrears owing under an order respecting child support if satisfied it would be grossly unfair not to do so. It states: Reducing or cancelling arrears 174

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [ 82 ]

Section 152 of the Family Law Act, empowers the court to change, suspend or terminate an order respecting child support retroactively. Before making such an order, the judge must be satisfied there has been a change in circumstances and there is evidence of a substantial nature that was not available when the prior order was made.

Section 152 states: Changing, suspending or terminating orders respecting child support 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. Cancellation or reduction of child support arrears [ 83 ] An applicant seeking to cancel or reduce arrears under s. 174 of the FLA bears a heavy burden. In Earle, Martinson J. held that payors can only obtain a reduction or cancellation of arrears if they provide detailed and full financial disclosure that: (

a) the change he or she points to is significant and long lasting; (

b) the change was real and not one of choice; and (

c) every effort was made to earn money (or more money) during the time in question and those efforts were not successful: para. 27.

[84] In Semancik v. Saunders, 2011 BCCA 264 , at para. 25, Levine J.A. endorsed Justice Martinson’s approach in Earle: [25] In Earle, Madam Justice Martinson reviewed the principles that apply in determining whether arrears of child support should bereduced or cancelled, concluding that there are two requirements for a successful application to reduce or cancel arrears. The applicantmust prove a material (which Martinson J. defined as “significant and long lasting”) change in circumstances and that it would be grosslyunfair not to cancel the arrears.

Generally, arrears will only be cancelled if the applicant shows he is unable to pay “now and in thefuture”. [85] This approach was again confirmed in MacCarthy v. MacCarthy, 2015 BCCA 496 at para. 54: [54] The factors to be considered in granting an order cancelling arrears are set out in Burgie v. Argent, 2013 BCCA 247 , atparas. 15 and 23, namely, (

a) whether there is a material change in circumstances, and (

b) whether it would be “grossly unfair” not tocancel or reduce the arrears. In general, arrears will only be cancelled if the applicant shows he is unable to pay “now and in thefuture”: Semancik v. Saunders, 2011 BCCA 264 at para. 25. The test for cancelling arrears of child support is more stringentthan that for refusing to make a retroactive child support order. It is a “higher threshold”. [86] What constitutes “gross unfairness” is contextual. In Ohlsen v. Chester, 2016 BCSC 605 , Butler J. in held: [12] It is not possible to summarize the kind of circumstances which will satisfy the test of gross unfairness.

The assessment must bedetermined on a case by case basis. What is certain is that the bar is set very high and that it will be a rare case where arrears arecancelled or reduced. Establishing gross unfairness is a more onerous test than proving simple unfairness: L.B. v. J.K., 2012 BCPC231 at paras. 52-54. Before cancelling arrears, a court must conclude that maintaining the arrears is so unfair that it wouldserve to impose an injustice on the payor which the court could not countenance. This test was adopted by Madam Justice Donegan in D.W.T. v.

B.S.T., 2016 BCSC 1978 , at para. 74 Retroactive reduction in child support [87] M.G.H. is not seeking debt relief under s. 174; rather, he seeks to amend Judge Skilnick’s November 14, 2007 order toretroactively reduce his child support payments to those which would have been payable based on his actual rather than imputedguideline income. In this context the principles set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 areapposite. [88] The principles espoused in D.B.S. are applicable both under the Divorce Act and the FLA: N.M. v. G.M., 2015 BCSC 1732, at para. 36; Sijercic v.

Kazic, 2016 BCSC 186 ; Haq v. Haq, 2011 ONCJ 664 . [89] Although D.B.S. dealt with applications by a recipient parent to retroactively increase support, the B.C. Court of Appeal has heldthe same applies to an application by a payor to reduce support. In G.M.W. v. D.P.W., 2014 BCCA 282, D.M. Smith J.A., for theunanimous appellate court, summarized the relevant considerations when applying D.B.S. principles to applications to retroactivelydecrease child support orders by amending the payor’s guideline income. She states at paras. 42 and 43: 42.

The Court went on to identify four factors to be considered in determining the appropriateness of such an order: (

i) thecircumstances surrounding the delay in bringing the application; (ii) the payor parent’s conduct; (iii) the children’s circumstances; and(iv) any hardship caused by a retroactive child support order. 43. A finding of unreasonable delay will militate against a retroactive child support award (para. 104). Similarly, a payor parent’sblameworthy conduct, defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriateamount of support” will also militate against a retroactive order (paras. 106-109).

The circumstances of the children are also relevant inorder to ensure that they receive the benefit of a support order to which they are entitled, in a timely manner (paras. 110-113). Lastly,consideration of the hardship that may be occasioned by a retroactive order is not limited to the payor parent (paras. 114-116). Cited in by Justice Schultes in N.M. v. G.M., at para. 35.

Analysis [90] In order to succeed with an application to vary an order under s. 152 of the FLA, M.G.H. would have to prove a material changeof circumstances since the original order was made, such that the judge knowing of this change would have made a different order. Thechange must be significant and long-standing: See P.M.B. v. M.L.B., at para. 21, Justice Robertson for the unanimous court held: 21 In

summary, the jurisdiction to order a partial or full remission of support arrears is dependent on the answer to two discretequestions: Was there a material change in circumstances during the period of retroactivity and, having regard to all other relevantcircumstances during this period, would the applicant have been granted a reduction in his or her support obligation but for his or heruntimely application?

As a general proposition, the court will be asking whether the change was significant and long lasting; whether itwas real and not one of choice. [91] M.G.H. bears the burden of proof with respect to his application for a variation of the monthly amount or for the cancellation ofarrears: Carriere v. Carriere, 2013 BCSC 2357 , para. 20; G.M.W. v. D.P.W., at paras. 32-33. Issue # 1: Has there been a material change of circumstances? [92]

Section 152 of the FLA empowers the court to retroactively change a child support order; however, M.G.H. must first establisha material change in circumstances within the meaning of the Child Support Guidelines: G.M.W. at paras. 32-33; Willick v. Willick, (SCC), [1994] 3 S.C.R. 670.

[93] The test of materiality for a change of circumstances was described at p. 688 in Willick follows: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. … [94]

Section 14 of the Guidelines defines the change in circumstances necessary to justify a variation of child support: 14. For the purposes of [section 152 of the FLA], any one of the following constitutes a change of circumstances that gives rise to themaking of a variation order in respect of a child support order: (

a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change incircumstances that would result in a different child support order or any provision thereof; (

b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and … [95] The “material change of circumstances” test has not been displaced by s. 14 of the Guidelines: G.M.W. v. D.P.W., para. 32:P.M.B. v.

M.L.B., 2010 NBCA 5 , at para. 16, 18-19. [96] I understand that the material change of circumstances M.G.H. asserts is his actual guideline income is significantly less thanthe $32,080 per annum imputed to him for 2007 and each and every year thereafter. [97] R.C.M. does not dispute M.G.H. did not earn the monies imputed to him for the past ten years. Her arguments focus onM.G.H.’s failure to engage E.J.M. as a father and to participate in the court process. [98] I accept M.G.H.’s evidence that he has never earned the amount imputed to him by Judge Skilnick in the November 14, 2007,child support order.

If his income tax returns accurately record all M.G.H.’s sources of income, the most he ever earned in a calendaryear was $21,400 in 2007. Since then he has earned less, and in some years, less than the lowest guideline income. I find that M.G.H.’sinability to earn income in the amount imputed to him was long-lasting and, if known, to Judge Skilnick in November 2007, a differentorder would have resulted for the period November 14, 2007 forward. [99] In sum, I am satisfied M.G.H. has established a material change in his financial circumstances which is significant and longlasting.

It is a change that was not actually contemplated at the time of the original orders and would have resulted in different ordershad the change been known. Issue #2: Should this court amend Judge Skilnick’s November 14, 2007 order retroactively? [100] As discussed above, M.G.H. is not seeking to reduce or cancel child support arrears; he is seeking to retroactively amend JudgeSkilnick’s November 14, 2007 order. The test for this application is less stringent than one for cancelling arrears: N.M. v. G.M., at 35-37; and G.M.W. v.

D.P.W. at paras. 40-44; nevertheless, it requires me to consider M.G.H.’s application in light of the D.B.S. factors. The circumstances surrounding the delay in bringing the application [101] M.G.H. did not have financial capacity to retain legal counsel to bring an application to vary Judge Skilnick’s November 14,2007 order.

Legal Services Society does not provide legal representation to assist persons applying to vary child support orders unlessthey are both financially eligible and are facing imprisonment. [102] It was not until FMEP brought an application to have M.G.H. committed to a term of imprisonment for failing to pay childsupport in 2016 that M.G.H. qualified for legal aid.

Even then, further delay ensued because M.G.H. had to file retroactively years ofincome tax returns. [103] M.G.H. says he lacked the education and cognitive ability to navigate the legal system on his own. [104] I do note that M.G.H. did attend court in response to FMEP initiated summons to attend a default and committal hearings.

Thesecourt appearances resulted in four interim consent orders, all of which confirmed the existing arrears and existing child supportpayments. [105] I also note that the issues of M.G.H. making an application with respect to the arrears in child support arose in the September 16,2014 hearing before Judge Struyk. M.G.H. did make an effort at the end of September 2014 to address the situation. It is unclear fromthe court file what steps M.G.H. took in furtherance of that application. [106] I accept M.G.H. was baffled by the process and needed intense legal assistance to rectify the situation.

It is also apparent that by2014, M.G.H. engaged in the court process and generally appeared in court in person and often unrepresented. R.C.M. was representedin the court proceedings with respect to the issue of child support by Counsel for the Director of Maintenance and Enforcement. The payor parent's conduct [107] Blameworthy conduct on the part of the payor can militate against a retroactive reduction in child support payments. [108] In D.B.S. v. S.R.G., the Supreme Court held that “blameworthy conduct” is made out at any time that a parent puts his owninterests ahead of his child’s interest.

In the context of a case requesting a support decrease, blameworthy conduct would include thefollowing:

• Failure to pay the amount of support which corresponds to the payor’s reduced income; • Failure to comply with any temporary support order made while the request to reduce the original support order is under consideration; • Failure to make proper disclosure of new employment or increased income in a timely fashion. See: Haq , at para. 38 , citing D.B.S. [ 109 ] E.J.M. is 17 years old. In 2000 he was born to young inexperienced parents, neither of whom had graduated from high school. In E.J.M.’s early years, both parents worked sporadically in low paying entry level jobs.

From time-to-time, both have relied on social assistance for support. I suspect like many young parents, they did not grasp the enormity of the obligation they undertook given their circumstances. [ 110 ] The evidence suggests that until Judge Skilnick’s November 14, 2007 order, M.G.H. provided little if any financial support for E.J.M. Because of his lack of education, work experience and formal qualifications, M.G.H. was forced to work in short-term low paying entry level jobs. Nevertheless M.G.H. could and did work. [ 111 ] M.G.H.’s income fluctuated over the years, and in some years his earnings were minimal.

For example, in 2012, M.G.H. earned $9,875 and in 2013 he earned $3,737. In 2015, when he was 38 years old and had years of work experience, M.G.H. earned only $15,808. M.G.H. did not satisfactorily explain why this was the case or what efforts he made to obtain work in times of unemployment. [ 112 ] M.G.H.’s work history and income tax returns indicate he was capable of earning more than he did in the past ten years. Still, there is no evidence M.G.H. was deliberately under-employed in order to avoid paying child support.

Such a finding is counter-indicated by M.G.H. consenting to orders requiring him to pay far more child support than required under the Guidelines . [ 113 ] In considering M.G.H.’s conduct I have taken guidance from G.M.W. in which the Court of Appeal found the payor’s conduct militated against a retroactive reduction of child support. In G.M.W. , the payor father filed his application to amend a final order several years after it was made. Because he failed to make the required financial disclosure or even file his tax returns, the trial judge imputed to him a guideline income of $80,000.

After a number of years the payor filed the requisite returns showing his actual income was far less than the court imputed amount. By then, the payor’s child support obligation had ended as the children were no longer dependant. The trial judge reviewed the payor’s actual income against the income the court had imputed to him four years earlier and concluded the payor had established a material change in circumstances. The trial judge retroactively ordered the recipient mother to repay $31,719.

This sum was set off against a compensation order representing part of the division of the property in the parties’ divorce. [ 114 ] The Court of Appeal allowed the mother’s appeal, taking into the following considerations: a. the mother had relied upon the child support she received because of her limited earning capacity; b. the father failed to notify the mother of a change in his financial circumstances; and c. spousal support had been terminated in years earlier. [ 115 ] Madam Justice Smith, for the Court of Appeal, found that in these circumstances, the retroactive nature of the application provided no opportunity for the recipient mother to prepare to meet the financial consequences of the order.

The appellate court found the trial ruling inappropriate and set aside the order requiring the mother to the repay $31,719. [ 116 ] R.C.M. acknowledges that M.G.H. had a troubled childhood and a tough life. She does not contest that M.G.H. has never earned the income imputed to him in 2007. Still, she does not agree M.G.H. suffers serious memory or cognitive problems. She believes M.G.H.’s difficulties in maintaining steady employment relate to his anger issues.

The child's circumstances [ 117 ] E.J.M. is now 17 years old and lives with his mother, her new partner and his two half-brothers, D., who is 12 years old and E., who is seven months. [ 118 ] E.J.M. struggles in school and suffers from anger and anxiety issues. R.C.M. would like M.G.H. to make an effort to cultivate a relationship with E.J.M. M.G.H. said he has tried to bond with E.J.M., but E.J.M. is fixated on video games and has not shown an interest in developing a relationship with him.

I gather M.G.H. has given up trying to establish a meaningful father-son relationship with E.J.M. [ 119 ] M.G.H. is not seeking reimbursement of any overpayment of child support arising from this application nor is he seeking to cease ongoing child support payments. I do not have evidence before me what impact a retroactive reduction of child support would have on E.J.M. in these circumstances. Specifically, R.C.M. has not indicated she had earmarked any significant portion of the accumulated arrears for some particular expenditure for E.J.M.’s benefit.

Any hardship caused by a retroactive child support order [ 120 ] In considering M.G.H.’s application, I must take into account the potential hardship created by such an order on M.G.H. and R.C.M. This is distinct from an application for a retroactive increase in child support where the issue of hardship is limited to its impact on the payor. Potential hardship to R.C.M. [ 121 ] R.C.M. has struggled financially over the years to support herself and E.J.M. She has only a grade 11 education. She has

worked as a cashier in [omitted for publication] until she fractured her back and had to rely on her parents and brothers to help her make ends meet. R.C.M. works casually earning $16 per hour, which includes holiday pay. Because she worked only part time, R.C.M. often had to borrow money from Money Mart just to pay the rent. It was not until recently that E.J.M. even had his own room. [ 122 ] The court record indicates R.C.M. has had to rely on social assistance at various times.

In fact, the originating April 25, 2007 application was filed by the Minister under the Employment and Assistance Act because R.C.M. had assigned her rights to child support for E.J.M. to the Minister on April 5, 2001 and again on March 2, 2007. [ 123 ] R.C.M. is doing better financially since she obtained employment at the Terrace [omitted for publication] . She now has a new partner and three children.

At the time of the hearing of this application, R.C.M. was on maternity leave for the youngest of her three children, E., who is seven months old. [ 124 ] Clearly R.C.M. could use the money collected by FMEP; however, she has not mentioned any debts she occurred in expectation of receiving the amount set out in Judge Skilnick’s November 14, 2007 order. Potential Hardship to M.G.H. [ 125 ] The potential hardship to M.G.H. if I deny his request for a retroactive decrease is obvious.

M.G.H. earns less than $20,000 per year and has himself and four children to support, one with R.C.M. and three children with R.F. [ 126 ] In his Financial Statement filed May 27, 2016, M.G.H. indicates R.F.’s annual income as $6,571.36. [ 127 ] Although M.G.H. and R.F. separated in April 2017, M.G.H. did not indicate in his June 28, 2017 Financial Statement whether he had any child support obligations to R.F.

M.G.H. did set out annual expenses of $20,128.93, inclusive of child support in the amount of $3,600 payable to R.C.M. [ 128 ] I am satisfied that it would cause M.G.H. hardship to enforce all the outstanding arrears ($13,338.50 inclusive of interest) despite the delay in getting the matter before the court. At $15 per hour, M.G.H. earns an income not significantly more than minimum wage, which I understand is now $11.35 per hour. [ 129 ] I am also satisfied it would cause R.C.M. hardship to have to reimburse M.G.H. for any monies which she has already received as child support.

For what period should the Court amend Judge Skilnick’s order? [ 130 ] M.G.H. filed his initial application to amend Judge Skilnick’s November 14, 2007 order on September 30, 2014.

Although it is unclear from the court record when or whether M.G.H. served R.C.M. or her counsel with a copy of his September 30, 2014 application, it is a safe inference he raised this issue at the September 16, 2014 hearing before Judge Struyk. [ 131 ] M.G.H. filed his next application to seek a retroactive reduction in child support for E.J.M. on February 14, 2017, which was personally served on R.C.M. on March 9, 2017. [ 132 ] In D.B.S. , the Supreme Court held that a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment.

It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given. [ 133 ] In Haq , Justice Ellen Murray of the Ontario Court of Justice held at para. 49, the date of the effective notice as to the presumptive start date of a retroactive increase in support is equally applicable to a retroactive decrease. She states at paras. 50-52: [50] Selecting the date of effective notice as the presumptive date for retroactivity promotes proper disclosure and timely negotiation.

It discourages the “hide and seek” mentality that too often prevails in cases in which a change in support may be required. It promotes a culture in which parents work together to insure that the consequences that may result from a decrease in income are managed as sensitively as possible. [51] Selection of the date of effective notice as the presumptive start date for a retroactive decrease order may seem harsh if viewed only from the perspective of the payor whose income was reduced at an earlier date. But the issue must be viewed from a perspective that takes into account the child’s situation.

As already noted, allowing retroactive decreases prior to the date of effective notice raises the prospect already noted of overpayments, and claims for repayment. Allowing retroactive decreases prior to the date of effective notice means that a custodial parent may incur financial obligations based on the assumption of receipt of income from the existing support order. Such an approach will ultimately impact on the home in which the child resides. It is not in a child’s interest to promote such instability. [52] There will be factors which support selection of an earlier or of a later date for retroactivity.

For example, serious illness which prevents a payor from communicating with the recipient expeditiously may indicate an earlier start date. An unreasonable delay in pursuing the issue of a decrease after the matter was initially raised with the recipient may indicate that a later start date is appropriate. Blameworthy behaviour that caused difficulties for the child involved may also support a later start date. [ 134 ] I also take guidance from Mr. Justice Johnston’s words in C.A.O. v.

S.J.O. , 2012 BCSC 378 : [36] . . . during a marriage or other relationship, the amount available to raise children would be susceptible to the ordinary vicissitudes of life: unemployment, illness interrupting income, increases in income following promotion, overtime work, etc. [37] There seems little reason to isolate the children from those normal vicissitudes after separation of the parents, so long as the vicissitudes occur naturally, and are not the product of manipulation by the payor parent.

[ 135 ] If I were to limit a retroactive reassessment of M.G.H.’s child support payments for E.J.M. to three years prior to formal notice, then the effective date would be September 30, 2011, or March 9, 2014. This, however, would not be the end of the analysis. I must then consider whether to accept M.G.H.’s income as set out in his tax return for the years of reassessment or to impute income on the basis he was capable of earning more during that period than he did.

Disposition [ 136 ] I am satisfied that it is appropriate to amend Judge Skilnick’s November 14, 2007 order from the date it was made principally because M.G.H. is not seeking reimbursement of any overpayment in child support R.C.M. has already received nor is he seeking to terminate or suspend future child support payments.

I have also taken into consideration all the evidence before me, the history of these proceedings, the relevant legislation and case authorities. [ 137 ] I am satisfied Judge Skilnick’s November 14, 2007 order ought to be varied to reflect M.G.H.’s actual 2007 income of $21,400 and monthly child support payments of $185 commencing December 1, 2007. [ 138 ] I do not belief it fair or appropriate to allow a year-by-year retroactive variation to M.G.H.’s actual reported income after 2007. I do not accept M.G.H. was incapable of earning at least $18,000 per year.

Accordingly, I will order the following amendment to paragraph 2 of Judge Skilnick’s November 14, 2007 order so M.G.H. will pay to R.C.M. guideline child support basis on his actual income or $18,000, whichever is greater. [ 139 ] I have calculated his child support payments in the table below: Year Actual Income Earned Child Support Payable Child support Paid Imputed Income Child support Payable on imputed income 2007 1 month $ 1,783 $ 300 $ 0 $21,400 $ 185 2008 $ 16,881 $ 1,788 $1,828.65 $18,000 $1,824 2009 $ 13,282 $1,104 $1,154.75 $18,000 $1,824 2010 $ 11,277 $ 648 $ 119.00 $18,000 $1,824 2011 $ 18,079 $1,836 $ 0 $18,079 $1,836 2012 $ 9,875 $ 0 $ 0 $18,000 $1,824 2013 $ 3,737 $ 0 $4,634.84 $18,000 $1,824 2014 $ 20,081 $2,100 $4,224.22 $20,081 $2,100 2015 $ 15,808 $1,344 1,625.15 $18,000 $1,824 2016 $ 17,308 $1,668 $6,636.35 $18,000 $1,824 Total $128,111 $10,788 $20,222.96 $185,560 $16,889 [ 140 ] For 2007, I have calculated M.G.H.’s actual income for the month of December 2007, as 1/12 th his annual income for that year.

December 1, 2007 was the date of his first child support payment: $21,400 ÷ 12 = $1,783. [ 141 ] For the period commencing December 1, 2007 and ending December 31, 2016, M.G.H. earned $128,111 and paid child support in the amount of $20,222.96. During this 9 year 1 month period based on his total reported annual income of $128,111, M.G.H. was liable for a total of $10,788 in child support. [ 142 ] As set out above, I do not accept M.G.H. was unable to earn substantially less than $18,000 per year.

Accordingly, I am of the view that from December 1, 2007 to December 31, 2016, M.G.H. ought to have paid child support in the amount of $16,889. M.G.H. actually paid $20,222.96, which means that prior to January 1, 2017, he overpaid child support in the amount of $3,333.96 less any interest that would be payable. [ 143 ] For the 2017 income tax year and for the purposes of determining M.G.H.’s child support, I will once again impute to him a guideline income of $18,000. From January 1, 2017 until December 31, 2017, M.G.H.’s child support payments will be $152 per month.

To date, M.G.H. has paid $2,889.60 for 2017, which is $965.50 more than required under the guidelines on an imputed income of $18,000: ($2,789.60 - ($152 x $12 = $1,824) = $965.60). [ 144 ] M.G.H.’s total overpayment of child support based on his imputed income from December 1, 2007 to December 31, 2017, is $4,299.56: ($3,333.96 + $965.60 = $4,299.56). [ 145 ] As previously set out in decision, M.G.H. agrees there should be no order requiring R.C.M. to reimburse him for any overpayment of child support. Even without this concession, I would not make such an order.

M.G.H. paid very little by way of child support since E.J.M. was born. He has invested no time and effort in raising E.J.M. nor has otherwise contributed to E.J.M.’s physical and emotional well-being. This is not a situation where any overpayment in child support resulted in a windfall to R.C.M. Security for future child support [ 146 ] FMEP has received over $5,000 in tax refunds as a result of M.G.H. filing his outstanding tax returns in anticipation of this application: Exhibit 3. I understand that it was the staff of the Legal Services Society which undertook this herculean task.

[ 147 ] I am of the view that any money FMEP currently holds in excess of what M.G.H. owes for child support pursuant to this order ought to continue to be held by FMEP as security for M.G.H.’s future child support payments for E.J.M.

Section 227(

a) of the FLA permits such an order and given M.G.H.’s dismal record of paying child support voluntarily in a timely manner, I find a conduct order of this nature appropriate. Disposition [ 148 ] I grant M.G.H.’s application to retroactively vary paragraph 2 of Judge Skilnick’s November 14, 2007 order as follows: a. M.G.H. has a guideline income for 2007 in the amount of $21,400; b. M.G.H. will pay to R.C.M. $185 on December 1, 2007, for the child support of E.J.M.; c. From January 1, 2007 to December 31, 2010, M.G.H. has an imputed guideline annual income of $18,000; d.

M.G.H. will pay to R.C.M. the sum of $152 per month for the support to E.J.M., commencing on January 1, 2008, and continuing on the first day of each and every month until December 31, 2010; e. M.G.H. has a guideline income of $18,079 for 2011; f. M.G.H. will pay to R.C.M. the sum of $152 per month for the support to E.J.M., commencing on January 1, 2011, and continuing on the first day of each and every month until December 31, 2011; g. From January 1, 2012 to December 31, 2013, M.G.H. has an imputed annual guideline income of $18,000; h.

M.G.H. will pay to R.C.M. the sum of $152 per month for the support to E.J.M., commencing on January 1, 2012, and continuing on the first day of each and every month until December 31, 2013; i. M.G.H. has a guideline income of $20,081 per annum for 2014; j. M.G.H. will pay to R.C.M. the sum of $175 per month for the support to E.J.M., commencing on January 1, 2014, and continuing on the first day of each and every month until December 31, 2014; k. M.G.H. has an imputed annual guideline income of $18,000 for 2015, 2016 and 2017; l.

M.G.H. will pay to R.C.M. the sum of $152 per month for the support to E.J.M., commencing on January 1, 2015, and continuing on the first day of each and every month thereafter as long as E.J.M. is eligible for support under the Family Law Act or until further Court order; m. For as long as E.J.M. is eligible to receive child support, M.G.H. will provide R.C.M. with a copy of his income tax return for the previous year, including all attachments, no later than June 1 of each year and a copy of any Notice of Assessment or Reassessment he receives from Canada Revenue Agency, immediately upon receipt; n.

M.G.H. is not in arrears for the payment of child support as of December 31, 2017, and that any enforcement procedures implemented by FMEP for arrears in child support are dismissed; o. M.G.H. is not entitled to reimbursement from R.C.M. for any overpayment of child support up to and including December 31, 2017; p. R.C.M. is not liable to repay to M.G.H. any overpayment of child support up to and including December 31, 2017; q.

M.G.H. will post as security with FMEP for his future child support payments for E.J.M. an amount equal to the sum which FMEP is currently holding in excess of what M.G.H. owes in child support to date; r. If M.G.H. fails to make a child support payment after December 31, 2017, FMEP may make that payment on his behalf from the fund of excess monies; s. Any excess funds remaining with FMEP after E.J.M. is no longer eligible for child support will be repaid to M.G.H. “Judith Doulis” _____________________ J. T. Doulis A Provincial Court Judge