J.A.S. v. A.C.S. Date:, 2016 BCPC 433

Citation: J.A.S. v. A.C.S. Date: 20161228 2016 BCPC 433 File No: 15867 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.A.S. APPLICANT AND: A.C.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Applicant: D. Vanderende Appearing on their own behalf: Mr. A.C.S. Place of Hearing: Quesnel , B.C.

Date of Hearing: December 6, 7 & 8, 2016 Date of Judgment: December 28, 2016 [ 1 ] This is my ruling at the conclusion of a hearing of an application for retroactive child support extending over a 3½ year period: 1 February, 2013 to 30 August, 2016. [ 2 ] Ms . J.A.S. and Mr. A.C.S. met in the fall of 2002 when they were students at universities in the Lower Mainland. They were married on August 17 th , 2003.

They went on to have 3 children: Z.J.S., born [omitted for publishing] (now nearly 12 years old) A.E.S., born [omitted for publishing] (now nearly 10 years old) L.B.S., born [omitted for publishing] (now 6½ years old) [ 3 ] J.A.S. and A.C.S. separated on February 1 st , 2013 when Ms. S. moved away from the family home, located at that time on Vancouver Island. Ms. S. took the couple’s three young children with her. In due course she moved back to Quesnel, where her parents lived, and where she had been raised. Mr. S. remained on the Island, where he was employed as a teacher, until about August, 2013.

He then took an unpaid leave of absence and moved to Quesnel in order to be close to the children. Both parents, and the children, continue to reside in Quesnel. [ 4 ] Three and a half years have now gone by since the separation. Mr. and Ms. S. are devoted parents, and good parents. As far as parenting arrangements go, they have been flexible and done a good job of putting the interests of their children ahead of their own, and of keeping conflict to a minimum. However, they have never addressed the issue of child support. Ms.

S. knew that she could apply for child support but delayed doing so until February, 2016. Mr. S. made various payments and bought many goods and services for the children, but did not make regular monthly payments of child support. He says he did not know about the Federal Child Support Guidelines, nor understand what the law required regarding child support, until after he was served with Ms. S.’s court application in February of this year.

Summary of Decision [ 5 ] For the reasons which I set out below, I have decided that retroactive child support is payable by Mr. S. in the amount of $26,460.00. I have set out a repayment plan of $500/month payable in two equal instalments of $250 on the 1 st and the 15 th of each month commencing on February 1 st and 15 th , 2017 and continuing on the 1 st and 15 th of each month thereafter until the sum of $26,460.00 is paid in full.

The Law [ 6 ] The duty of each parent to provide support for their children is set out in legislation and in the common law (judge-made law). [ 7 ] There are two pieces of legislation that govern this issue. One is the B.C. Family Law Act .

Sections 147, 150 and 170 set out the bare bones of the law as it applies in this case: * Each parent and guardian of a child has a duty to provide support for the child… (s. 147(1)); * …the amount of child support must be determined in accordance with the child support guidelines.” (s. 150(1)); and * In an order respecting child support…, the court may provide for… the following: … (

b) that child support…be paid respecting any period of time before the date the application for the order was made.” (s. 170(1)(b)). [ 8 ] The “child support guidelines” referred to in the Family Law Act are, of course, the Federal Child Support Guidelines. The “ Guidelines ” were enacted in order to, among other things, “establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation.” (s. 1(a)).

The amount of child support payable is based on the parenting arrangements, the number of children and the total income of the payor spouse. [ 9 ] In addition to these pieces of legislation there is also a great deal of common law (also called “case law” or judge-made law) on the issue of child support. I will refer to only one these many cases - a leading decision from the Supreme Court of Canada dealing with the issue of retroactive child support: D.B.S. V.

S.R.G. et.al., 2006 SCC 37 . [ 10 ] In that case Justice Bastarache notes that an application for retroactive child support raises different issues than an application for child support going forward. For a payor parent, such as Mr. S., an order to pay retroactive support will almost always be highly disruptive to his or her finances and can feel very unfair. It is hard to be told that one owes a large amount of “back pay”, when one received no notice that such pay would ever be sought.

Because of the unique issues of fairness and financial disruption posed by an application for retroactive child support, Justice Bastarache said that a court must consider 4 factors in determining the threshold issue of whether an order for retroactive child support should even be made. See paragraphs 94 to 116 of the D.B.S. case: 1. Is there a reasonable excuse for why support was not sought earlier? 2. The conduct of the payor parent; 3. The circumstances of the children;

4. Hardship occasioned by a retroactive award. [ 11 ] If, after considering these 4 factors, the court decides that an order of retroactive child support should be made, then paragraphs 117 and 130 of the decision list factors to consider in calculating the amount of retroactive child support. [ 12 ] I will base my analysis in the case of Mr. S. and Ms. S. around the factors and considerations set out in the D.B.S. case. Analysis A. Should an order for retroactive child support be made? 1. Is there a reasonable excuse why Ms. S. did not seek child support sooner? [ 13 ] Ms.

S. was aware from the time of separation that Mr. S. was probably obligated to pay her child support. She testified that the reasons she did not apply until 3 years after their separation were as follows: (

a) a desire to maintain good communication with Mr. S. regarding their children. She feared that if she applied for child support, it would result in a higher level of conflict with him which would have a negative effect on their ability to co-parent; (

b) a sense of guilt because Mr. S. had to leave his home and a good job on Vancouver Island in order to follow the children to Quesnel; (c) “it was just too daunting” - by which I take Ms. S. to mean that she was reluctant to bring an application because the cost to her - emotional and financial - was more than she could face up to. [ 14 ] There is no evidence that Mr. S. ever did or said anything to discourage Ms. S. from asking for child support. [ 15 ] In my view, this is a case in which the recipient parent, Ms. S., lacked the emotional strength to make an application for child support at any earlier date.

I find this to be a reasonable excuse in the circumstances of this case. 2. Conduct of Mr. S. [ 16 ] As noted, there is no evidence that Mr. S. did or said anything to discourage Ms. S. from pursuing him for child support. [ 17 ] As for taking the initiative - as the law requires - and figuring out what he was required to pay by law and paying it, Mr. S. testified that he knew he had a duty to help support his children. He emphasizes that he did make many payments and bought many items for the children in an attempt to fulfill that duty.

However, he says he did not know about the Federal Child Support Guidelines, and the tables which set out the exact amount which must be paid each month. [ 18 ] As the saying goes, ‘ignorance of the law is no defence’. Citizens are deemed to know the law. I believe Mr. S. when he says he honestly did not know about the child support tables, but this does not relieve him of the obligation to comply with those tables. [ 19 ] On the positive side, as I have said, Mr. S. did nothing to discourage Ms. S. from seeking a greater amount of child support from him.

This is not a case in which the conduct of either parent is blameworthy in any real sense. 3. Circumstances of the Children [ 20 ] The couple’s three children appear to be happy, healthy, and well cared for. However, it is important to recognize that the children’s standard of living since the separation, has been, in part, paid for by Ms. S’s parents. In 2013, in the 6 months or so following the separation, her parents paid credit card debt of about $3,500, bought much of the food for Ms. S. and the children, provided housing and utilities, a vehicle, and likely a good deal of the gas to run that vehicle.

In subsequent years, they have continued to help out from time to time with, among other things, the out of pocket cost for Z.’s dental surgery ($1,500) and money for another vehicle ($6,500). [ 21 ] The children have also been supported on debt incurred by Ms. S. and, to some extent, by Mr. S. [ 22 ] Ms. S. currently has about $26,000 in debt ($5,000 in line of credit debt to pay off a credit card, about $15,000 in student loans, and the $6,500 paid by her parents for the vehicle she drives. Her parents are not asking for re-payment but she would like to reimburse them sometime.) [ 23 ] Mr.

S. also has debt in that range (RBC Visa of about $4,500, Canadian Tire Master Card at $10,000 and a vehicle loan currently at about $10,000). 4. Hardship to the payor parent? [ 24 ] There is no question that an order to pay retroactive child support will be a significant financial burden for Mr. S. However, the evidence supports the view that, with time, it is a burden he can sustain. [ 25 ] Mr. S. is in his early 40’s. He has a professional qualification as a teacher. He is also skilled in trades and construction. He is willing, and able, to turn his hand to more than his professional line of work.

He seems to get jobs quickly, and to be able to hold them. This is a testament to his intelligence, skill and hard work. Although he has been working in construction rather than as a teacher for most of the past 3 years, he has been able to pay down some $30,000 of his own student loan debt during that time. He was paying more than $600 a month towards his student loans and was successful in finally getting rid of this debt in September of this year. See Exhibit 7. [ 26 ] Mr. S. is trying to get back into teaching full time. The evidence did not touch on what his income would be if he was

successful in this, but I have little difficulty in concluding that such a position would provide stable employment over the long term plus work related benefits including a pension plan. [ 27 ] In my view, an order for retroactive child support would not constitute an unreasonable burden or hardship to Mr. S., particularly if he is given plenty of time to pay. [ 28 ] I will now move on to consider the amount of retroactive child support that must be ordered in this case. B. Amount of Retroactive Support 1. Date of Retroactivity [ 29 ] Mr.

S. testified that he did not receive “effective notice” of the requirement to pay child support according to the Guidelines until he was served with the current application in February of this year. However, as noted, “ignorance of the law is no excuse”. The law required the payment of child support in accordance with the Guidelines as of the date of separation. Every parent must be deemed to know that. Therefore, I find that the date of “effective notice” was February 1 st , 2013, the date of separation, rather than the date of formal notice, when the application was served on Mr.

S., sometime in February of 2016. [ 30 ] The date I have chosen - 1 February, 2013 - as the start date for retroactive child support takes the start date back about 3½ years. This slightly exceeds the rough guideline of 3 years spoken of by Justice Bastarache in the D.B.S. v. S.R.G. case at paragraph 123 : …it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent. [ 31 ] In light of this, I have decided to choose September 1 st , 2013 as the start date for retroactive child support.

This is exactly 3 years prior to the end date of any such order as Mr. S. began paying child support pursuant to Judge Doulis’ interim order as of September 1 st , 2016. [ 32 ] There is a second reason why September 1 st , 2013 is a fair starting point for retroactive child support. In the 7 months or so between the date of separation on February 1 st and the beginning of September of that year, Mr. S. had been commuting back and forth between Quesnel and Vancouver Island about once a month so that he could visit with the children.

I am satisfied that he incurred significant costs in doing so, and this likely would have entitled him to a reduction in child support in any case, on a claim of undue hardship, pursuant to s. 10 of the Guidelines. 2. Amount of the Retroactive Award [ 33 ] Having decided that retro-active child support is payable between September 1 st , 2013 and August 30 th , 2016, I will now turn to the calculation of the amount that is payable. This requires consideration of several factors: parenting arrangements from time to time, the parents’ income from time to time, whether amounts already paid by Mr.

S. can be properly described as “child support” under the Guidelines rather than “special and extra-ordinary expenses” or family debt and, finally, whether there should be some allocation for undocumented cash payments which Mr. S. insists were made. (

a) Parenting Arrangements [ 34 ] The evidence was somewhat vague about the percentage of time each parent had the care of the children in each of the 3½ years since separation. These parents have focussed more on providing their children with a flexible, fulsome relationship with both parents rather than on rigid schedules and record keeping. Recognizing this, counsel for Ms. S. proposed that I simply assume a shared parenting regime from the date of separation even though it is likely that Ms. S. took on a somewhat higher percentage of the care up until Judge Galbraith’s order on September 27 th of this year.

I will, therefore, treat this as a shared parenting arrangement from the date of retroactivity (September 1 st , 2013), forward. (

b) The Parents Income From Time to Time [ 35 ] Because I have decided to treat this as a shared parenting arrangement, the income of both parents is relevant. See s. 9(

a) of the Federal Child Support Guidelines. Where possible, I will use the line 150 figure on their filed income tax returns or T4 slips attached to their Financial Statements filed with the court in February and March of this year. See also Exhibit 1 , a binder containing various documents filed by Ms. S. [ 36 ] As it concerns Ms. S.’s income for 2016, I will use the figure of $25,944.84 imputed to her by Judge Doulis in the order of August 30 th , 2016. [ 37 ] Mr. S.’s income for 2016 is a bit more complicated. He testified that he expected it to total about $47,000. Counsel for Ms.

S. takes issue with this figure, saying that Mr. S. was deliberately under-employed in 2016. She argues that the court should impute an income of about $59,000 to Mr. S., similar to what he earned in 2015. [ 38 ] The reason for Mr. S.’s drop in income in 2016 is that he has decided to get back into teaching. He was trained as a teacher and, as noted, had a contract position with a school district on Vancouver Island. After the separation in 2013, he took an unpaid leave of absence from that job so that he could move to Quesnel to be near the children.

Upon arrival in Quesnel he got a job in construction and continued in that line of work until the spring of 2016. By then his leave of absence from the Vancouver Island school district had expired. He decided that he should try to get back into teaching because of the pension plan and benefits such a career offers. He also thought it would be easier on him physically. In order to make contacts and become known within the Quesnel school district, Mr. S. signed up as a “teacher on call”. This was in March, 2016. Initially he set aside 3 days of the week for “teacher on call” work and the

remainder of the work week, or, if not called in to teach, he continued with his job in construction. Rather naturally, his employer on the construction job was only prepared to accommodate this arrangement for a few months before requiring him to make a choice. Mr. S. chose to leave his job in construction at the end of July, 2016, to focus on teaching. [ 39 ] Mr. S. took the month of August off and went to the Island with the children. He went back to work as a “teacher on call” in the Quesnel district starting in September.

He is currently teaching almost full time though still on an “on call” basis rather than as a contract teacher with full benefits. He hopes to be able to find a contract position in the Quesnel school district sometime within the next year. [ 40 ] Counsel for Ms. S. argues that Mr. S. knew his income would drop once he became a “teacher on call”. She argues that he should have done more to supplement his income in 2016, such as working in construction throughout the summer rather than taking August off.

She argues that he was deliberately under-employed and that the court should impute to him an income equivalent to what he earned in 2015. [ 41 ] I am not prepared to impute an income to Mr. S. for 2016 over and above the $47,000 he has testified that he expects to earn. I cannot find that his choice to leave construction work and try to get back into teaching is either irresponsible or improperly motivated. It seems to me that if Mr.

S. can get back on as a teacher it will provide him with stable, decently paid employment with benefits and plenty of time off and this will be to the children’s advantage as well as to his own advantage over the long term. [ 42 ] As for Mr. S.’s choice to take the month of August off and spend it with the children on Vancouver Island, I cannot find that this represents any real negligence of his duty to support his children, such as would warrant the imputation of income. [ 43 ] In

summary, I decline to impute additional income to Mr. S. for 2016. I find that his income for 2016 is $47,000. (

c) How to Characterize Payments Already Made [ 44 ] Payments to CIBC Visa - In Exhibits 5, 2 and 3, Mr. S. is able to document payments in 2013 and 2014 to CIBC Visa totalling $4,900 made up of payments of $200/month in October, November and December, 2013, $300/month January to June, 2014 inclusive, and a payment of $2,500 in December, 2014. He argues that this entire sum of $4,900 should be viewed as child support. Ms.

S., on the other hand, through counsel, argues that at least $1,500 of this sum must be viewed as a payment towards a $5,000 family credit card debt the couple had at the time of separation rather than as child support. Ms. S.’s evidence about the purpose of these payments to CIBC Visa was somewhat variable. In examination in chief, and again on re-examination, she said that part of the sum paid by Mr. S. to CIBC Visa was to retire the family credit card debt rather than for ongoing child support. However, on cross examination, Ms. S. agreed with Mr.

S. that initially, in the fall of 2013, he was transferring money into her account for the support of the children but then she asked him if he could use the money to make payments on the Visa bill instead. So, he started doing that at the beginning of 2014. Ms. S. seemed to agree on cross examination that, at the time, she and Mr. S. saw the payments on the CIBC Visa more in the nature of ongoing child support (presumably by allowing her to continue to make purchases using the Visa credit card) rather than as payment of debt incurred by the family prior to separation. Certainly, this appears to have been Mr.

S.’s understanding. On cross examination, he said the following about the purpose of these payments as he understood it at the time: To me they were an attempt to support [the children] rather than simply paying down my share of family debt. [ 45 ] In my view the evidence falls short of establishing that any of the money paid by Mr. S. to CIBC Visa in 2013 or 2014 was solely for the purposes of paying off family debt. At the time, I find these payments were intended by both parents as a form of ongoing child support. [ 46 ] The full amount of $4,900 will therefore be credited to Mr.

S. as child support already paid. [ 47 ] Money transferred - Mr. S. is able to document $500 in money transferred from his account in October and December, 2013 and it is not contested that this went to Ms. S. to help with the support of the children. See Exhibit 5. $500 will be credited to Mr. S. as child support already paid. [ 48 ] Payments for daycare and swimming - At some point - the evidence was unclear as to whether it was in 2014 or in 2015 - there were two significant monthly expenses related to the children - daycare and swim club. Mr.

S. took on the monthly payment for daycare ($125/month after subsidy) and Ms. S. took on the monthly payment for swim club for their oldest child, Z. ($100/month). I gather that this arrangement continued for about a year. The daycare cost then came to an end but the swim club cost increased because their second child, A., joined the club. Therefore, at that point, Mr. S. took on the monthly payment for A’s swim club membership and Ms. S. continued to pay the monthly cost of Z.’s membership. [ 49 ] I agree with counsel for Ms.

S. that these payments for daycare and swim club membership are properly characterized as “special or extraordinary expenses” rather than as regular child support. “Special and extraordinary expenses” are dealt with in s. 7 of the Federal Child Support Guidelines . These are expenses that parents incur over and above the day to day costs of raising children.

In the financial circumstances of this family I am satisfied that the costs of services such as daycare and the more intensive, specialized sporting activities such as swim club memberships are properly characterized as “special and extraordinary expenses”. [ 50 ] The amount Mr. S. paid over the years for daycare costs and swim club membership will therefore not be credited to him as child support already paid. [ 51 ] Other expenditures for the children - Mr. S. is not able to document any other expenditures for the support of the children than those I have listed.

However, he insists that he did pay money for the support of the children that does not show up in the banking records. He asks me to credit him with some amount for these undocumented payments. Understandably, counsel for Ms. S. argues that no such credit should be granted, because there is simply no evidentiary basis to support Mr. S.’s rather vague recollection that he “paid more than what the records show.” [ 52 ] Ms. S. appeared to be very fair - even generous - to Mr. S. in her testimony. I conclude that had Mr. S. made significant

additional cash payments in connection with the children she would have told me of them. What Ms. S. did acknowledge was that Mr. S. contributed to the support of the children by helping to purchase goods and services for them. For example, she said he would purchase things like winter jackets and boots for the children, as well as other clothes. He may also have bought sporting equipment.

As well, as I understand it, he was the one to take the children to winter activities such as skiing or snow-boarding, and, in the summer, he would take the children to Vancouver Island for a month, bearing all costs associated with their care including any recreational activities. [ 53 ] I have considered whether it would be fair to credit Mr. S. with some amount - I had thought about the figure of $1,800 ($600 per year) - as child support already paid, in light of these expenditures on goods and services.

I have decided that it would not be right to do so because, firstly, there is just no evidentiary basis for choosing this particular figure rather than some other figure - it would be nothing more than a “guesstimate” on my part. Also, in light of the finding that these parents had a shared parenting arrangement (“50/50”) throughout the three years in question, there is a strong argument that any money Mr. S. spent on things like clothing and recreation, was simply part of his own costs of supporting the children during his 50% parenting time, and should not be characterized as a contribution by him to Ms.

S.’s support of the children. [ 54 ] I will therefore not credit Mr. S. with any amount towards retroactive child support for “other expenditures for the children.” (

d) S. 9 of the Guidelines [ 55 ]

Section 9 of the Federal Child Support Guidelines explains how child support is to be calculated in the case of a shared parenting arrangement. In this case, I have been invited by both parties to calculate retroactive child support using the “simple set-off” as it was termed in Contino v. Leonelli-Contino, 2005 SCC 63 .

The other factors listed in s. 9 - the increased costs of shared parenting and the parties’ conditions, needs, means and other circumstances - were not addressed in either the evidence or the submissions of the parties, so I will not consider them. [ 56 ] The “set off” approach requires that I calculate the amount of child support that would have been payable by each parent, at their respective incomes, for 3 children, over the 3 year time period. The amount payable by the lower income earner is then “set off”, or subtracted, from the amount payable by the higher income earner.

The difference is the amount the higher income earner (Mr. S. in this case) must pay in child support to the lower income earner (Ms. S.). (

e) Calculation of Retroactive Child Support Payable [ 57 ] Appendix A summarizes my calculation of retroactive child support based on the findings I have made on the various contested issues. Conclusion [ 58 ] Retro-active child support is payable by Mr. S. to Ms. S. covering the period 1 September, 2013 to 31 August, 2016 in the amount of $26,460.00. [ 59 ] Mr. S. will require time to repay this amount. He is now paying ongoing child support of $611.00/month pursuant to Judge Doulis’ Order of August 30 th , 2016. (The parties may have since agreed to some reduction in this figure because of the drop in Mr.

S.’s income in 2016.) [ 60 ] I have decided to order that Mr. S. repay the retroactive child support at the rate of $500/month by way of two equal instalments of $250 on the 1 st and the 15 th of each month beginning with the 1 st and 15 th of February, 2017 until the full sum of $26,460.00 is paid in full. If Mr. S. is able to pay the debt off more quickly from sources such as income tax refunds, he is certainly encouraged to do so. The Honourable Judge E. L.

Bayliff Provincial Court of British Columbia See Appendix A attached. #15867 Quesnel Registry APPENDIX ‘A’: CALCULATION OF RETROACTIVE CHILD SUPPORT 1 SEPT 2013 TO 31 AUG 2016 A: Table amount payable by each parent for 3 children (s. 9(

a) Guidelines) : MR. S. Year Total Income [1] Table Amount 3 Children/Month Total Child Support Payable/Year 2013 $55,553.00 $1,105.00 $ 4,420.00 (Sept, Oct, Nov, Dec) 2014 $52,619.00 $1,049.00 $12,588.00 2015 $59,175.00 $1,175.00 $14,100.00 2016 $47,000.00 $ 939.00 $ 7,512.00 (Jan to Aug incl.)

Total Payable by Mr. S.: $38,620.00 MS. S. Year Total Income [2] Table Amount 3 Children/Month Total Child Support Payable/Year 2013 $ 1,568.00 $ 0.00 $ 0.00 2014 $ 4,510.00 $ 0.00 $ 0.00 2015 $13,764.00 $196.00 $2,352.00 2016 $25,944.84 $551.00 $4,408.00 (Jan to Aug incl.) Total Payable by Ms. S.: $ 6,760.00 B: “Set Off” or Difference between these amounts = amount payable by the higher income earner (Mr. S.): $38,620.00 - $6,760.00 = $31,860.00 C: Less amount of child support already paid by Mr.

S (see paras. 44 to 54 of my Ruling): $ 31,860.00 - $ 4,900.00 (CIBC Visa payments in 2013 and 2014) - $500 (Transfers in fall 2013) = $26,460.00 D: Amount of retroactive child support payable by Mr. S. to Ms. S.: $ 26,460.00