J.R. v. J.S. (1) Date:, 2013 BCPC 404

Citation: J.R. v. J.S. (1) Date: 20130821 2013 BCPC 0404 File No: 17833 Registry: Kitimat IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN : J. R. APPLICANT AND: J. S. (1) RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: J. R. Appearing on their own behalf: J. S. (1) Place of Hearing: Kitimat , B.C.

Date of Hearing: August 13, 2013 Date of Judgment: August 21, 2013 Background [ 1 ] This file contains an Application for “custody” and child maintenance by JR as well as a Counterclaim for custody and to vary an earlier interim child maintenance Order brought by JS (1). [ 2 ] The parties were in a long term relationship, during which two children were born, JS (2), born [omitted for publishing], and AS, born [omitted for publishing]. [ 3 ] The parties separated in 2002.

In 2004, JR advised JS (1) that he was not the biological father of AS. [ 4 ] In February 2012, JR made Application for child support for JS (2). [ 5 ] There was an Interim Order by consent August 23 rd , 2012 that JS (1) pay child maintenance of $1,525 per month commencing Sept 1 st , 2012 for both JS (2) and AS combined.

That amount was based on estimated income of JS (1) of $106,000 for 2012. [ 6 ] On October 11 th , 2012 JR applied for sole guardianship and custody of both girls. [ 7 ] On October 19 th , 2012 JS (1) applied to cancel the Order of August 23 rd , 2012 on the basis that he was not the biological father of AS. [ 8 ] On October 23 rd , 2012 JR filed a Reply to that application indicating that JS (1) had known that he was not AS’s biological father for ten years. [ 9 ] On November 14 th , 2012 a “Views of the child report was filed.

To summarize that report, both girls felt that residence with their mother was “normal” but that their relationship with JS (1) was very important to them and that they wished it to continue.” Evidence [ 10 ] JS (1) testified as to the dates of the separation of the parties and when he learned that he was not the biological father of AS. [ 11 ] JS (1) produced a T4 for his employment income in 2012 which was marked as Exhibit 1. It showed employment income for 2012 of $98,536.84. [ 12 ] JS (1) also produced six extracts from his new employer [omitted for publishing]. These were collectively marked as Exhibit 2.

These show an approximate average income of $1,200 twice a month. [ 13 ] JS (1) testified that he quit his job at [omitted for publishing] effective January 9 th , 2013. He stated that he was unemployed from then until March 24 th , 2013 when he started to work for [omitted for publishing].

He indicated that his take home pay was approximately $2,000 per month. [ 14 ] JS (1) stated that the girls were his daughters and he wanted to “keep them in his life.” He added that he had not seen either girl since September or October 2012 and that he believed that the girls were turned against him by JR’s parents. [ 15 ] In cross-examination, JS (1) said that he had removed the girls from his medical coverage at [omitted for publishing] in May 2012 after the Application for child maintenance had been filed. [ 16 ] In cross-examination, JS (1) said that he quit [omitted for publishing] because he had not been happy there since [omitted for publishing] had taken over.

He then stated that he sold his house in Kitimat and moved to the Lower Mainland. [ 17 ] In cross-examination, JS (1) agreed that the August 23 rd , 2012 Order had been filed at the Family Maintenance Enforcement Office and that he had not directly paid any money on the Order.

However, he added that the Maintenance Enforcement office had filed a lien on his house in Kitimat and so $7,800 had been paid towards the Order in January 2013 which he believed had satisfied the arrears to that date. [ 18 ] In cross-examination, JS (1) testified that at age 65 he would be entitled to a pension from [omitted for publishing] but that he was only 50 years old at this time. [ 19 ] In cross-examination, JS (1) also produced a copy of his 2012 Income Tax assessment. It was marked as Exhibit 3.

It showed a total income for 2012 of $100,427. [ 20 ] JR testified that AS was not JS (1)’s biological daughter. She added that the biological father is PS and there is a child support Order by which he must pay $840 per month for AS.

[ 21 ] JR testified that from the separation onwards the informal arrangement was that JS (1) did not pay child maintenance but did contribute to extraordinary expenses such as costs of competitive swimming by AS. That payment ceased in February 2013. [ 22 ] JR produced a printout of the account balance calculated by the B.C. Family Maintenance Enforcement Program. It was marked as Exhibit 4. It showed arrears as of August 11, 1013 of $10,440.58 based on the August 23 rd , 2012 Order. JR also indicated that she did not wish child maintenance to be paid by JS (1) in the future for AS.

Analysis [ 23 ] Sections 23 through 33 of the Family Law Act deal with determining the parentage of children. The term parentage means biological parent.

Section 31 of the Family Law Act mandates that only the Supreme Court of British Columbia can make an order of parentage unless “such an order is necessary to determine another family law dispute over which the provincial court has jurisdiction.” Then a provincial court may make such an order. [ 24 ] In this case, it is necessary to determine parentage to determine guardianship, parenting responsibilities, parenting time and child support.

Therefore, this Court has jurisdiction to make that determination. [ 25 ] On the common evidence of the parties the Court finds that both parties are the parents of JS (2) and only JR is the parent of AS. That is not to say that JS (1) has not been acting in the place of a parent toward AS for years. [ 26 ]

Section 39 of the Family Law Act defines who guardians of children are. Subsection one reads: “while a child’s parents are living together and after the child’s parents separate, each parent is the child’s guardian.” [ 27 ] Therefore, both parties are guardians of JS (2). However, concerning AS only JR is a guardian. [ 28 ] From the informal arrangement that existed from the time of separation in 2002 onward combined with the views of the children report it is clear that JR has been the primary caregiver of both girls since the separation. Further, that is what the two teenage children view as normal. Accordingly, all the parental responsibilities are to be exercised by JR as per

section 40 of the Family Law Act . [ 29 ] Concerning JS (2), as a guardian, JS (1) should have reasonable and generous parenting time as agreed between the parties. [ 30 ] Concerning AS, because JS (1) has had a long standing parent-like relationship with her, he should have reasonable and generous contact with AS as per

section 48 of the Family Law Act . This contact is also mandated by

section 59 of the Family Law Act . [ 31 ] While JS (1) is not a guardian of AS, he is a stepparent under the Family Law Act. Under s146 of that Act, a stepparent is defined as “a person who is a spouse of the child’s parent and lived with the child’s parent during the life of the child.” [ 32 ]

Section 147 of the Family Law Act deals with the duty to pay child support. Subsection one mandates that each parent and guardian of a child has a duty to pay support unless the child has married or has voluntarily left the care of all the parents and guardians. [ 33 ] Subsection 4 of s147 states that a stepparent does not have a duty to provide support for the child unless: “

a) the stepparent contributed to the support of the child for at least one year and

b) a proceeding for an order under this Part against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.” [ 34 ] In the case at hand, JS (1) had supported AS for the two years they lived as a family between 2000 and 2002. He then contributed to extraordinary expenses such as swimming costs for a number of years.

Critically, he only ceased to contribute to her support by removing her from his medical benefits in May 2012 and this application for child support was commenced earlier in February 2012. [ 35 ] However, as a step parent, JS (1)’s duty to pay child support for AS is secondary to that of her parents and guardians and is only in an amount appropriate on a consideration of the standard of living of the child during the relationship between JS (1) and JR and the length of time AS lived with JS (1) (subsection 5 of s147 Family Law Act ).

Accordingly, JS (1) should pay child support for AS at a rate less than the Federal Guidelines. [ 36 ] There is another issue for the Court to consider. JR has requested the child support be made retroactive to February 2012 when the application was launched.

The term retroactive concerning support is used in the legal context to refer to awards for periods earlier than the application date itself. [ 37 ] In this case it is not retroactive to adjust the Order of August 2012 to cover the period back to the application in February 2012 and an Order shall be made for child maintenance starting March 1 st , 2012. [ 38 ] Concerning any claim for child support before February 2012, the Court should consider the factors laid out in DBS v SRG [2006] SCR 213 . That Supreme Court of Canada decision lays out the factors to determine a retroactive claim, starting at paragraph 94.

These include whether there was an excuse for not seeking support earlier, the conduct of the payor in forestalling the bringing of a claim, the circumstances of the child and the hardship that might be caused by a retroactive award. [ 39 ] As no claim was made from 2004 until 2012, JS (1) did nothing during that time to block the application, the children’s standard of living suffered no major change and to award retroactively what would be in the range of $18,000 per year over a seven year period would certainly be a hardship for JS (1).

Therefore, there shall be no award of child support before the application in February 2012. [ 40 ] The final issue is whether JS (1) has under-employed himself. This was raised by JR.

Section 19 of the Annotated Federal

Child Support Guidelines allows the court to impute an amount of income to a spouse as it considers appropriate in the circumstances. These circumstances include whether the spouse is intentionally under-employed or unemployed. [ 41 ] In the case at hand, JS (1) was employed with [omitted for publishing] for many years. He quit in January 2013 after child maintenance was first awarded. Since then he has relocated to Surrey where he was unemployed until March 2013. His income had been approximately $100,000 per annum. It is now estimated to be approximately $24,000 per annum.

On a consideration of the whole of this evidence the Court finds that JS (1) is deliberately under-employed. Annual income for 2013 shall be imputed at $62,000 being the average of the 2012 income and the estimate of what his income for 2013 would have been had he been employed at [omitted for publishing] for the entire calendar year.

Decision [ 42 ] The Court finds that JR and JS (1) are both guardians of JS (2). [ 43 ] JR shall have all parenting responsibilities for JS (2). [ 44 ] JS (1) shall have reasonable and generous parenting time with JS (2) as agreed between the parties. [ 45 ] JS (1) shall pay child support for JS (2) from March 1, 2012 to December 31, 2012 at the rate of $924 per month based on annual income of $100,427. [ 46 ] JS (1) shall pay child support for JS (2) commencing January 1, 2013 at the rate of $576 per month based on imputed income of $62,000 per annum for 2013 until further order of this Court. [ 47 ] The Court finds that JR is the guardian of AS. [ 48 ] The Court finds that JS (1) is a stepparent of AS and shall have reasonable and generous contact with AS as agreed between the parties. [ 49 ] JS (1) shall pay child support for AS commencing March 1 st , 2012 at the rate of $100 per month forward considering the child’s relatively stable standard of living and the length of time of her cohabitation with JS (1) for so long as she remains a child within the meaning of the Family Law Act or until varied by this Court. [ 50 ] Arrears owing by JS (1) to JR are calculated as follows: JS

(2) Mar 1/12 to Dec 31/12 $924 X 10= $ 9,240 AS Mar 1/12 to Dec 31/12 $100 X 10= $ 1,000 JS

(2) Jan 1/13 to Aug 31/13 $576 X 8= $ 4,608 AS Jan 1/13 to Aug 31/13 $100 X 8= $ 800 Total $15,648 [ 51 ] From the total of $15,648 shall be deducted the sum of $7,800 collected from JS (1) by the Family Maintenance Enforcement Program. Accordingly, the arrears as of August 31 st , 2013 are fixed at $7,848. ________________________ W. F. M. Jackson Provincial Court Judge