H.A.F. v. R.R.W., 2018 BCPC 93

Citation: H.A.F. v. R.R.W. 2018 BCPC 93 Date: 20180418 File No: 16251 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.A.F. APPLICANT AND: R.R.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: H.A.F. Appearing on their own behalf: R.R.W. Place of Hearing: Kamloops , B.C. Date of Hearing: April 10, 2018 Date of Judgment: April 18, 2018 [ 1 ] This is H.A.F.’s application for child support retroactive to May 2014 with respect to her child, R.R.W.(2), born [omitted for

[ 1 ] This is H.A.F.’s application for child support retroactive to May 2014 with respect to her child, R.R.W.(2), born [omitted for publication]. R.R.W.(1) is the biological father. He does not dispute that he owes child support and that he will have arrears of child support. He asks that the child support be set in accordance with his Guideline income which is presently $0. [ 2 ] H.A.F. has been frustrated in her pursuit of child support.

While R.R.W.(1) was employed in the oil industry following their separation and was able to pay child support fairly continuously up until April 2014, he lost that employment and simply disappeared from H.A.F.’s perspective for some time. [ 3 ] Part of H.A.F.’s frustrations was R.R.W.(1)’s unwillingness to give her an address where he could be served. She testified that on one occasion he threatened to call the City of Kamloops to tell them about a suite in her home. This was not a suite but in fact a rented room.

H.A.F. could not afford to lose the income so she relented to some degree. [ 4 ] Ultimately, H.A.F. ran into R.R.W.(1)’s aunt who told her that he was living in Terrace and was logging. So H.A.F. proceeded with the court filings, called around to logging companies until one could tell her where he was working, and came to court to have the sheriffs serve him. [ 5 ] Since filing and serving the application, H.A.F. has had difficulty getting R.R.W.(1) to provide her with the necessary paperwork to determine what the child support payments ought to be.

The history of the orders on this file support her frustrated efforts. On September 21, 2016, H.A.F. was granted an order to serve to R.R.W.(1) substitutionally by e-mail and by having a copy of the application and the order left with an address in Kamloops. On December 21, 2016, H.A.F. obtained an order with respect to guardianship and responsibilities. The court also imputed income to R.R.W.(1) in the sum of $80,000 per annum and ordered R.R.W.(1) pay H.A.F. the sum of $835 per month for the support of the child.

R.R.W.(1) was also ordered to file a financial statement by January 31, 2017 and the case was adjourned to February 1, 2017. However, on that same day, a summons was issued to compel the attendance of R.R.W.(1) on February 8, 2016 (which is likely a typographical error). The summons that was issued did state February 1, 2017. Apparently, it was not served. Evidently, the Sheriff Services were unable to locate R.R.W.(1). [ 6 ] On February 1, 2017, a further summons was issued and a date set for March 1, 2017.

Attempts were made to serve the summons but no one ever answered the door of the home believed to be R.R.W.(1)’s on the occasions that the sheriffs attended. A further summons was issued compelling R.R.W.(1) to appear in court on March 29, 2017. [ 7 ] It appears that the Terrace Sheriff Services were unable to serve the summons until March 28, but R.R.W.(1) did attend on March 29. At that time, the court ordered R.R.W.(1) to complete, file with the Registry, and deliver to H.A.F. a sworn financial statement in Form 4, including all attachments listed on page 2 of that form by May 1, 2017.

It is unclear what happened on May 1, 2017 but the parties appeared again on May 10, 2017, with R.R.W.(1) appearing by telephone. The next appearance was set for May 24, 2017, at which time R.R.W.(1) did not attend, although he had been granted leave again to appear by telephone. A warrant was issued, which warrant was executed by the Terrace Sheriff Services. [ 8 ] R.R.W.(1) was released on November 6, 2017 to appear on November 14, 2017. R.R.W.(1) did appear and a further order was given for him to complete and file by January 15, 2018 a proper financial statement in Form 4.

R.R.W.(1) appeared on January 17, 2018 without having completed his financial statements once again. At that time, he was given a further order to produce the financial statement by January 31, 2018. The court adjourned the file to set a three hour maintenance hearing and H.A.F.’s application for penalties was adjourned to the same date. That date was this hearing before me. When R.R.W.(1) arrived, he had still not completed his financial statement in Form 4. He did have some of the attachments but certainly not going back to the dates that H.A.F. sought in her application.

R.R.W.(1)’s excuses for not having done so are very poor. [ 9 ] R.R.W.(1) testified that when he and his then partner split up, he moved out with nothing. He quit his employment and did not work for the following year. This was in 2014. He estimated his income between his employment in the first part of the year and his contract work in the subsequent days to be $170,000 for 2014.

He does not have his income tax returns for that time. [ 10 ] R.R.W.(1) had made a considerable amount more than this in the two years prior ($305,000 in 2012 and $310,000 in 2013), but the oil industry had collapsed and that work was no longer available. [ 11 ] Having left his employment and his relationship, R.R.W.(1) sold his assets and lived with a friend. He was suffering from depression and saw a counsellor, whom he believes to have a doctorate.

He provided no evidence of this medical condition or of his visits to the psychologist. [ 12 ] In the beginning of 2015, R.R.W.(1) moved to Terrace to work for a company. He arrived on February 14 and worked until April 1. The camp was then shut down and R.R.W.(1) was only paid between $2,000 and $3,000 of the income he had earned. He has never been paid the rest. [ 13 ] Following the shutdown of the camp, he applied to all of the logging companies in the area. In the meantime, his former partner had filed with Family Maintenance Enforcement Program. He did not start working again until the end of October 2015.

His driver’s licence and passport were pulled by Family Maintenance Enforcement Program. However, he continued to work with Canada Forest Industrial Group until July 2016. At this point, Family Maintenance Enforcement Program was attaching 45% of his wages based on his gross income. This left him with as little as a $100 on a paycheque. He could not live on this income and so he quit his employment.

R.R.W.(1)’s financial statement attaches his 2015 income tax return showing a Line 150 income of $19,406.40 and 2016 income of $40,549.60. [ 14 ] Rather than taking immediate steps to have his support order for his other two children reduced to an accurate level, R.R.W.(1) simply stopped working. He ignored H.A.F.’s needs and failed to meet his obligations to any of his three children. He claimed to work “a couple jobs here and there” but could not afford to continue with those attachments consuming so much of his income. He is currently being supported by his father and the woman he now resides with.

He says that he has asked Family Maintenance Enforcement Program to return his passport so that he could work overseas. He said he has applied to oil companies but there is no work. He could get work with Canada Forest Industrial Group but not with the attachments continuing. Despite having all of this available time, R.R.W.(1) has

made less than half-hearted efforts to file the necessary applications to get his finances in order and his child support orders set accurately. [ 15 ] R.R.W.(1) has no good excuse for his failure to pay adequate child support for his child. He has not filed his current income tax returns and he has failed to provide the proper documentation to allow H.A.F. to make an accurate assessment of what his obligations are to their child. [ 16 ] In all likelihood R.R.W.(1) will continue to have his wages attached so long as he fails to do anything about the outstanding child support order in Alberta.

He was given specific direction by the court about how to go about speaking to duty counsel, applying for legal aid and making an application under the interjurisdictional support orders to review his child support obligations.

H.A.F. has been given leave to apply to vary the order I am about to make in the event that she should learn his evidence has been inaccurate. [ 17 ] In the meantime, I make an order for the support of the child based on the following income of R.R.W.(1) in the following years: a) 2014 - Based on an income of $170,000 per annum, the sum of $1,575 per month commencing May 1, 2014 to December 1, 2014.

This is calculated based upon the Child Support Guidelines for one child on an income of $150,000, plus 1.26% of R.R.W.(1)’s income over $150,000. b) 2015 - Based on an income of $19,400 per annum, the sum of $169 per month commencing January 1, 2015 to December 1, 2015. c) 2016 - Based on an imputed income of $85,000 per annum, the sum of $793 per month commencing January 1, 2016 to December 1, 2016. d) 2017 - Based on an imputed income of $85,000 per annum, the sum of $793 per month commencing January 1, 2017 to December 1, 2017. e) 2018 - Based on an imputed income $85,000 per annum, the sum of $793 per month commencing January 1, 2018 until further order of the court. [ 18 ] R.R.W.(1) has wilfully and consistently failed to produce financial income information to H.A.F.

I am awarding her the sum of $1,000 in penalty against R.R.W.(1). R.R.W.(1) must file his income tax returns by April 30 each year, commencing April 30, 2018, and provide a copy of his income tax return and notice of assessment to H.A.F. not later than May 31 each year commencing May 31, 2018. R.R.W.(1) must be aware that each time he fails to produce that financial information in accordance with this order, he may be subject to a financial penalty.

To the extent that he has not done so already, R.R.W.(1) must produce to H.A.F. a copy of all income tax returns and notices of assessment from 2014 to 2016 not later than June 30, 2018. R.R.W.(1) must also file either a report from his doctor or his counsellor supporting the claim he has made related to his mental health condition disabling him from work. This must be produced not later than August 31, 2018. [ 19 ] R.R.W.(1) must also complete and file any application he intends to make to vary his child support order to his former partner in Alberta not later than July 31, 2018.

R.R.W.(1) must provide a copy of that application to H.A.F. and apprise her of the progress of his application until it reaches its conclusion. Upon completion of that application, H.A.F. has liberty to apply to vary this order to reflect not only R.R.W.(1)’s accurate income but taking into consideration any variation he may have received on his former order. [ 20 ] R.R.W.(1) will have, in the meantime, considerable arrears owing to H.A.F. Those arrears shall be paid at a rate of $100 per month, commencing May 1, 2018, in addition to the child support obligation R.R.W.(1) owes.

This is reviewable upon R.R.W.(1) obtaining employment and upon R.R.W.(1) concluding his application to vary the other child support order. R.R.W.(1) shall immediately provide H.A.F. notice of any employment or contract work he obtains. ______________________________ S.D. Frame Provincial Court Judge