D.D. v. Y.M., 2021 BCPC 187

Citation: D.D. v. Y.M. 2021 BCPC 187 Date: 20210720 File No: 1629406 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.D APPLICANT AND: Y.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE

Appearing on their own behalf: D.D., by telecommunication Counsel for the Respondent: A. Jaffer-Jeraj, by telecommunication Place of Hearing: Vancouver , B.C.

Date of Hearing: June 15, 2021 Date of Judgment: July 20, 2021 Background [ 1 ] D.D. and Y.M. are the parents of a child born in 2013. [ 2 ] Y.M. is also known as Y.K. and Y.M.K., and he has filed affidavits with this court where his name is given as Y.K.M. [ 3 ] The parties never lived together and only had a short relationship. [ 4 ] On December 8, 2016, D.D. filed an Application to Obtain an Order to seek an order for the court to recognize her as the sole guardian of the child, that she have all parental responsibilities and for child support. [ 5 ] A review of the court file shows an affidavit of service stating that Y.M. was served in February 2017.

Y.M. did not file a Reply. [ 6 ] D.D.’s application went before Judge Rideout on June 15, 2017. As Y.M. never filed a Reply, he would not have received notice of the hearing. Judge Rideout made an order in the absence of Y.M. confirming that D.D. was the sole guardian of the child and that she had all parental responsibilities.

Judge Rideout imputed income to Y.M. of $30,000 annually and made an order for payment of child support of $269 a month. [ 7 ] On November 13, 2018, Y.M. filed an application to vary Judge Rideout’s order but for some reason, he did not pursue the application. [ 8 ] On December 19, 2019, Y.M. filed a notice of motion to ask to set aside an order made in his absence and for a paternity test. [ 9 ] On February 10, 2020, Chief Judge Gillespie made an order for a paternity test, which confirmed Y.M. as the father of the child. [ 10 ] On March 4, 2021, Judge Phillips ordered that this matter proceed to a 2-hour hearing conducted by way of MS Teams.

She also made a consent order on an interim, without prejudice basis that Y.M. pay child support of $96 a month starting March 1, 2021. The order of Judge Phillips did not set out a Child Support Guidelines income amount but under the Child Support Guidelines, a payment of child support of $96 a month for one child would be based on an income of $16,170. [ 11 ] Counsel for Y.M. said that I should treat this matter as an application to cancel arrears under s. 174 of the Family Law Act .

Y.M. asked that I cancel all arrears for the period from the June 15, 2017 order to December 31, 2000, and set child support at $96 a month based on income of $16,170, effective January 1, 2021. Y.M. also asked for an annual exchange of financial information so that there can be future adjustments of the support payable and possibly an agreement on the sharing of special and extraordinary expenses. [ 12 ] D.D. opposed the request to cancel arrears. Decision [ 13 ] Y.M. will pay ongoing child support of $269 a month based on an annual income of $30,000.

I dismiss the application to cancel or reduce the support arrears, which I fix as of June 9, 2021, in the amount set out in the Family Maintenance Enforcement Program (“FMEP”) Account Statement. Y.M. will pay off the arrears at the rate of a minimum $31 a month starting August 15, 2021, and continuing on the 15 th day of each month thereafter until paid in full. Y.M. will also be required to provide D.D. with his income information each year starting July 1, 2022. [ 14 ] My reasons for this decision follow.

The Law [ 15 ] Before I deal with Y.M.’s application to cancel or reduce arrears pursuant to s. 174 of the Family Law Act , I will discuss the distinction between the s. 174 application and an application to change, suspend or terminate a child support order under s. 152. An Application to Change, Suspend or Terminate an Order [ 16 ]

Section 152 of the Family Law Act governs an application to change, suspend or terminate a child support order. Before making such an order, the court must be satisfied that at least one of the following exists since the child support order was made: 1. There has been a material change of circumstances since the child support order was made (s. 152(2)(a)); 2. There is evidence of a substantial nature that was not available during the previous hearing and which has now become available (s. 152(2)(b)); or 3.

There is evidence of a lack of financial disclosure by a party that was discovered after the child support order was made (s. 152(2) (c)). [ 17 ] Under s. 152, the most common reason to change a support order is due to a material change of circumstances. I contrast this type of application with an application to cancel or reduce arrears under s. 174, which requires both a material change of circumstances and

the requirement that a refusal to cancel or reduce arrears would be grossly unfair to the support payor. I will discuss s. 174 in detail laterin my decision. [18] The natural question to ask is why a party would apply under s. 174 when the s. 152(2)(

a) application involves a less oneroustest. The distinction is that a payor must make an application under s. 152(2)(

a) in a timely manner. Without this requirement, a payorcould delay any variation application, accumulate arrears in defiance of a court order and then pursue relief at a time the payor foundconvenient. This is an injustice to the support recipient, who is entitled to expect compliance with an existing support order. To takeadvantage of the less onerous test found under s. 152(2)(a), the application to vary an order must be made within a reasonable time afterthe material change in circumstances. [19] I find support for this position in the decision in L.B. v.

J.K., 2012 BCPC 231 at paragraph 42, where His Honour Judge Hamiltondiscussed the request of a support payor to reduce a support order retroactively: [42] Another reason why I am not prepared to go through this exercise is because I am of the view that if a payor’s annual incomefalls below the income upon which the maintenance payments are calculated, then it is incumbent on the payor to bring the necessaryapplication in a timely manner to have the maintenance payments adjusted.

To accede to J.K.’s proposal would encourage payors to donothing in the face of a reduction in income, disobey a court order over a period of several years and allow a significant sum of arrears ofmaintenance payments to accumulate, and then when it suits the payor, bring an application for an order which not only deprives therecipient of the maintenance she has a court order to receive, but also uses this retroactive recalculation to deprive the recipient and thechildren of future maintenance payments they are entitled to receive.

I do not believe such an approach would do justice between theparties, nor do I believe such an approach accords with the law and the obligations the payor parent has to financially support thechildren. An Application to Cancel or Reduce Arrears [20]

Section 174 of the Family Law Act governs an application to cancel or reduce support arrears. The

section reads as follows: 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 spousalsupport 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 itwould 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 FamilyMaintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [21] The starting point when considering an application to cancel or reduce support arrears is the seminal decision of Madam JusticeMartinson in Earle v. Earle, (BC SC), where the court stated at paragraph 46: 3. Arrears Basic Principles a. There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant andlong lasting change in circumstances.

Arrears will not be reduced or cancelled unless it is grossly unfair not to do so. b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid rightaway. [22] This test has been confirmed in such decisions as Semancik v. Saunders, 2011 BCCA 264, P.L. v. J.D.L., 2013 BCSC 1492 andHolmstrom v. Holmstrom, 2014 BCSC 545.

In Holmstrom, the court stated at paragraph 36: [36] In other words, there are two criteria for determining whether a cancellation or reduction of child support arrears is appropriate:(1) a material change in circumstances; and (2) that it would be grossly unfair not to reduce or cancel the arrears. [23] The Supreme Court of Canada decision in Colucci v. Colucci, 2021 SCC 24, at paragraphs 133 to 141, set out a frameworkregarding retroactive decreases and increases in child support, and for the recission or cancellation of arrears. The stated principles areuseful and I summarize them as follows: 1.

There is a presumption against rescinding any arrears of support. 2. A payor can rebut this presumption by proving on a balance of probabilities that, even with a flexible payment plan, they cannot andwill not ever be able to pay the arrears. A present inability to pay the arrears is not sufficient; there must be a future inability to pay thearrears.

If an order for the immediate payment of the full arrears will cause the payor a hardship, then can that hardship be mitigated by anyalternative measures such as a temporary suspension of the obligation to pay the arrears, periodic payment of the arrears or some othercreative option? [24] At paragraphs 136 and 137, the court specifically referred to the child’s interests in setting out the framework: [136] Courts have taken a highly restrictive approach to the availability of rescission or suspension of child support based solely oncurrent and ongoing inability to pay (see, e.g., Haisman, at paras. 26-27; Gray, at para. 58; C.L.W. v.

S.V.W., 2017 ABCA 121, atpara. 30 ; Punzo, at para. 46; Blanchard v. Blanchard, 2019 ABCA 53, at para. 32 ; S.A.L. v. B.J.L., 2019 ABCA 350,31 R.F.L. (8th) 299, at para. 12; Semancik v. Saunders, 2011 BCCA 264, 19 B.C.L.R. (5th) 219, at para. 25; Mayotte v. Salthouse(1997), 1997 ABCA 145 , 29 R.F.L. (4th) 38 (Alta. C.A.), at para. 2; Heiden v. British Columbia (Director of MaintenanceEnforcement) (1995), (BC CA), 16 B.C.L.R. (3d) 48 (C.A.), at paras. 10 and 13).

These cases demonstrate that anydiscretion to grant relief in this context is narrow. [137] This strict approach to rescission and suspension of arrears based on current inability to pay is justified. The interests of therecipient and child in certainty and predictability are paramount, as the payor has failed to comply with a court order or agreementwithout any “excuse for non-payment of support when it came due” (Templeton, at para. 47).

The child’s interest in a fair standard ofsupport is subverted when the payor directs support elsewhere; in such circumstances, “the child effectively subsidizes the payor’simproved standard of living” (Walsh v. Walsh (2004), (ON CA), 69 O.R. (3d) 577 (C.A.), at para. 25, with additionalreasons (2004), (ON CA), 6 R.F.L. (6th) 432).

The payor parent, on the other hand, “cannot argue that the amountsclaimed disrupt his/her interest in certainty and predictability” (D.B.S., at para. 98). [25] Because the Colucci decision dealt with the Divorce Act, I need to determine if those principles apply to cases under the FamilyLaw Act. [26] I start with the Supreme Court of Canada decision D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006SCC 37, [2006] 2 S.C.R. 231, which set out principles for making a retroactive support order under the Divorce Act. [27] The subsequent Supreme Court of Canada decision Michel v.

Graydon, 2020 SCC 24 discussed whether the D.B.S. principlesapplied to Provincial legislation, such as the British Columbia Family Law Act. At paragraph 16, the court stated: [16] Nor do I accept that the Court in D.B.S. stated a sweeping principle that transcends the Divorce Act to embrace all other statutoryschemes and operates irrespective of legislative intent. Indeed, the Court insisted that provinces remain “free to espouse a differentparadigm” than that adopted by Parliament in the Divorce Act (para. 54).

And where they do so via legislation establishing anapplication-based regime such as the FLA, and where an application for retroactive child support is brought thereunder, it is thatlegislation which governs a court’s authority to grant retroactive child support (paras. 55-56). [28] In Chartier v. Chartier, , the Supreme Court of Canada said that an

interpretation of the Divorce Act must takeinto account the best interests of the children. The court stated at para. 32: The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The

interpretation that will best servechildren is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing andthat these persons will continue to act as parents toward them. [29] Returning to the Michel v. Graydon decision, the Supreme Court of Canada referred to Chartier at para. 72: [72] Grounded in these principles, the Court sought the “interpretation that will best serve children” (at para. 32) and chose a measurefor child support which allowed recovery from a step-parent. This same approach should also inform the

interpretation of s. 152 of theFamily Law Act. An analysis that takes into account the policies and values of contemporary Canadian society, focuses on the bestinterests of the child, and interprets s. 152 in a fair, large, and liberal manner to best ensure the attainment of the objects of child supportclearly supports permitting historical child support claims to be heard by a court to determine if monies are owing and what amounts maybe fairly recovered.

This conclusion is supported by the fact that the jurisdictional bar imposed in this case prevents access to justice,runs counter to the best interest of many children, gives rise to an under-inclusive outcome, and reinforces patterns of socio-economicinequality. [30] Michel v. Graydon confirms that the best interests of the child is a consideration when making an order under

section 152 of theFamily Law Act, which deals with applications to change, suspend or terminate child support orders. In my view, an approach thatconsiders the best interests of the children should also apply to an application under s. 174 when dealing with an application to cancelarrears under a child support order. This is consistent with the approach of the Supreme Court of Canada to cases involving child support.I conclude that the principles I have set out above also apply to the case before me involving an application to cancel or reduce arrearsunder s. 174.

Analysis Was There a Material Change in Income? [31] Y.M. testified that he came to Canada on a scholarship to study political science at UBC. He graduated in 2015. He also studiedbusiness administration at a school in Fort McMurray, Alberta. [32] Y.M. said he held a job on Annacis Island packing fish that he left after developing carpel tunnel syndrome. Y.M. did not provideany proof of this by way of medical evidence. He said he subsequently held other jobs as a cleaner, painter and courier.

Y.M. said that hespent much of his time doing volunteer work so that he could make connections and eventually find employment related to his politicalscience degree. To that end, he submitted job applications to the City of Vancouver, the Ministry of Social Development and to some

youth and human rights organizations. Y.M. did not provide evidence of his job search efforts. [ 33 ] For 2020, Y.M.’s income was $16,170, mostly from the Canada Emergency Response Benefit. In November 2020, he obtained employment with the [omitted for publication] where he is still working. The job pays him $2,500 a month or $30,000 per year. Y.M. said this was the first time he has earned this level of income. [ 34 ] Judge Rideout’s June 15, 2017 order has never been cancelled and the imputation of income at $30,000 remains in place.

Evidence of Y.M.’s actual income in June 2017 is not a change in circumstances since the imputation of income is based on Y.M.’s ability to earn $30,000, and not whether he was actually receiving that level of income. [ 35 ] I refer to para. 63 of the Colucci decision, where the Supreme Court of Canada stated: [63] Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income.

The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order ( Gray , at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” ( Trang v. Trang , 2013 ONSC 1980 , 29 R.F.L. (7th) 364, at para. 53 ). [ 36 ] I also refer to the decision in Janiten v. Moran , 2019 ABCA 380 , where the payor father failed to comply with an order for financial disclosure and did not attend the hearing of the mother’s application for child support.

The court made a child support order in the father’s absence, imputing income to the father. Approximately one year later, in response to enforcement proceedings, the father applied to set aside the order. At that time, he provided the court with financial information, and he succeeded in having the support order and the arrears reduced.

The mother appealed this decision and the Alberta Court of Appeal overturned the order, stating: [19] The father had failed to comply with the disclosure requirements imposed upon him by the January 22, 2018 Order and he failed to attend court both on January 26, 2018 and February 28, 2018. In our opinion, the father’s application was not based upon a proper change of circumstances but rather based upon his remedying his own previous delinquent behaviour.

A party who ignores a court order requiring disclosure and/or who fails to attend court when required, absent a reasonable explanation, does so at his or her own peril. In this case the father’s very tardy disclosure compliance should not ground a successful application to vary or vacate either the January 26, 2018 Order or the February 28, 2018 Order. [ 37 ] In the case before me, Y.M.’s late provision of financial information is an effort to remedy his failure to file a Reply to D.D.’s application for support and ultimately attend the hearing. It is not evidence of a proper change of circumstances.

Was There a Material Change in the Ability to Work? [ 38 ] During his testimony, Y.M. spoke of potential heart problems. The only medical evidence before me came from hospital clinical records that Y.M. attached to his Financial Statement filed November 13, 2018. Those records were from 2016 and so pre-dated Judge Rideout’s order. The records referred to Y.M.’s complaints of chest pain but there was no indication Y.M. suffered from any cardiac- related ailment.

For instance, a coronary CT angiogram patient result dated April 29, 2016 said, “no coronary artery atheroschlerosis or stenosis is noted.” [ 39 ] Y.M. also did not provide any medical evidence showing any temporary disability affecting his ability to earn income. [ 40 ] In the decision R.C. v. P.V ., 2021 BCPC 48 , I stated at paragraph 56 that medical evidence is not necessary to show an inability to work. However, in R.C. v. P.V. , the applicant payor had evidence that he was in receipt of disability benefits.

Y.M. did not have such evidence. [ 41 ] I find that Y.M. has not proven on the balance of probabilities that a material change of circumstances occurred since the June 15, 2017 support order resulting in an inability to work. Would it be grossly unfair not to cancel or reduce the arrears? [ 42 ] Applying the Colucci principles to this case, I start with the presumption that arrears of support should not be rescinded.

I will now consider whether Y.M. has rebutted this presumption. [ 43 ] I am satisfied that given Y.M. ’s level of income and lack of savings, he is unable to pay off the arrears immediately. [ 44 ] The next question is whether the arrears can be paid off through some alternative measures. If the hardship of paying the arrears cannot be mitigated by some alternative measures, then it would be grossly unfair to not cancel or reduce the arrears. [ 45 ] A temporary suspension of the obligation to pay the arrears will not serve any purpose unless there is a prospect that Y.M. ’s income will increase in the future.

There is no evidence before me that this may occur. Y.M. did testify about his hope to become self- employed but that was really just an expression of his wish without any solid plans in place. [ 46 ] I turn now to consider whether Y.M. can pay off the arrears through a payment plan. Y.M. ’s Financial Statement filed March 2, 2021 suggests his income is $16,170 and his expected annual expenses are $23,200.

However, his testimony was that he is being paid $2,500 a month from employment and so his actual income is $30,000 per annum. [ 47 ] Y.M. has considerable debts although he does not indicate what payments, if any, he is making toward these debts. I think it likely though that he will be required to pay off at least some of the debts. Despite this, Y.M. has available funds after payment of expenses that he can apply toward paying down the support arrears. I will therefore order that Y.M. make monthly payments toward the support arrears until he pays the arrears off in full.

These payments will be in addition to the regular monthly child support. The payment of the arrears over time will alleviate any hardship that Y.M. would suffer if he were required to pay off the entire arrears immediately.

[ 48 ] Given that Y.M. has the capacity to pay off the arrears over time, I find that it would not be grossly unfair if I did not cancel or reduce the arrears. Result [ 49 ] The two requirements to determine whether arrears of child support should be reduced or cancelled are: (1) there has been a material change in circumstances since the support order was made; and (2) it would be grossly unfair not to reduce or cancel the arrears. [ 50 ] Y.M. has not met either of these two criteria and so I dismiss the application to cancel or reduce arrears.

The Amount of the Arrears [ 51 ] According to an FMEP Account Statement dated June 9, 2021, the arrears of ongoing maintenance total $20,573.44. Interest on the arrears owing to D.D. was $2,143.06. Statutory default fees payable to the Provincial Government totalled $807. [ 52 ] The FMEP Account Statement records monthly support at $269 a month until March 1, 2021 when FMEP recorded the monthly support as $96 a month. This is in keeping with Judge Phillips’ order of March 4, 2021. [ 53 ] I accept the accuracy of the FMEP Account Statement and I fix the arrears in the amounts set out above as of June 9, 2021.

Required Payments [ 54 ] Y.M.’s current income is $30,000 per annum. For one child, the support payable pursuant to the Child Support Guidelines is $269 a month, which will be payable commencing August 1, 2021. [ 55 ] Given Y.M.’s income, I will set the payment toward the arrears at a minimum sum of $31 a month starting August 15, 2021 and continuing on the 15 th day of each month thereafter until paid in full or further order of the court. This sum is payable in addition to the regular monthly support.

Exchange of Financial Information [ 56 ] Y.M. asked that the parties exchange financial information in the future. I will require Y.M. to provide financial information to D.D. so that she can monitor his income and decide if it is appropriate to seek increased support or a greater payment toward the support arrears. [ 57 ] I will not require D.D. to provide financial information to Y.M., as he has no need of it at this time. If an order should be made in future for the sharing of special or extraordinary expenses, then D.D.’s financial information would be required. At this point, such an order is premature.

Adjustment of Support [ 58 ] Y.M. suggested that an order be made for an automatic adjustment of support based on Y.M.’s income each year. I am not prepared to make such as order because child support can be based on imputed income, as was the case with Judge Rideout’s order. Order [ 59 ] I order as follows: 1. Y.M., also known as Y.K. and also known as Y.M.K., is found to be a resident of British Columbia and is found to have a guideline annual income of $30,000. 2.

Y.M., also known as Y.K. and also known as Y.M.K., shall pay to D.D. the sum of $269 per month for the support of the child, A.M.T.D., born [omitted for publication], commencing on August 1, 2021 and continuing on the 1st day of each and every month thereafter, for as long as the child is eligible for support under the Family Law Act or until further court order. 3. The application of Y.M., also known as Y.K. and also known as Y.M.K., to cancel or reduce support arrears is dismissed. 4.

The arrears are fixed as of June 9, 2021 in the amount of $20,573.44 in regular maintenance payable by Y.M., also known as Y.K. and also known as Y.M.K., to D.D., plus statutory interest charged pursuant to

section 11.1 of the Family Maintenance Enforcement Act and statutory default fees charged pursuant to

section 14.4 of the Family Maintenance Enforcement Act . 5. Y.M., also known as Y.K. and also known as Y.M.K., shall pay to D.D. towards the arrears in maintenance and in addition to the regular monthly maintenance payments, the minimum sum of $31 per month starting August 15, 2021 and continuing on the 15th of each month thereafter until the arrears are paid in full or further order of the court. 6. For as long as the child is eligible to receive child support, Y.M., also known as Y.K. and also known as Y.M.K., shall provide to D.D. with (

a) copies of his income tax return for the previous year, including all attachments, not later than July 1 of each year starting July 1, 2022; and (

b) copies of any related Notice of Assessment or Reassessment provided by the Canada Revenue Agency, immediately upon receipt.

____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia