E.D.W. v. A.R.Y., 2022 BCPC 234

Citation: E.D.W. v. A.R.Y. 2022 BCPC 234 Date: 20221024 File No: 18379 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.D.W. APPLICANT AND: A.R.Y. RESPONDENT APPLICATION BY FATHER TO REDUCE CHILD SUPPORT PAYMENTS AND ELIMINATE OR REDUCE CHILD SUPPORT ARREARS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Applicant: J. Maxwell Counsel for the Respondent: S. Davidson Counsel for the Director of Family Maintenance Enforcement Program: A. Lax Place of Hearing: Terrace , B.C. Date of Hearing: June 17 and August 29, 2022 Date of Judgment: October 24, 2022

[ 1 ] On October 17, 2019, A.R.Y.[the Father], an Indigenous man, filed an Application Respecting Existing Orders or Agreements (document 72). The Father seeks to significantly reduce his child support payments and eliminate or reduce his child support arrears because, as stated in document 72, "My income was imputed higher than it actually was for some years.

I want to make this right but I need to be able to pay what I can afford to pay." [ 2 ] As set out in her Reply (document 82), E.D.W., the mother of their now [omitted for publication] year-old son D.Y., born [omitted for publication], opposes the Father's application.

INTRODUCTION [ 3 ] On July 26, 2011, in the absence of the Father, Judge Weatherly made the following final Order: 1. [E.D.W.] shall have Sole Custody and Sole Guardianship of the Child, [D.Y.], born [omitted for publication] (hereinafter referred to as "the Child"). 2. [A.R.Y.] shall have reasonable access to the Child. 3. [A.R.Y.] having to been found a resident of British Columbia, this Court imputes an annual income of $53,750.00 for the purpose of determining the table amount of child support. [A.R.Y.] shall pay Child Support to [E.D.Y.] in the amount of $500.00 per month commencing June 1, 2011 and continuing on the first day of each month thereafter until further Order of this Honourable Court.

This Order is made on a Without Prejudice basis to [E.D.W.] to make an application for retroactive Child Support. 4. [omitted for publication] Registry File No. [omitted for publication] pertaining to the above proceeding be transferred forthwith to the [omitted for publication] Family Court for all purposes. 5. The approval as to the form of this Order by [E.D.W.] is hereby dispensed with.

Applicable Law [ 4 ] It is settled law in British Columbia that the relevant sections of the Family Law Act ( F.L.A. ) when a party seeks to reduce child support payments and cancel or reduce child support arrears are ss. 152 and 174. The leading cases are Earle v. Earle , 1999 BCSC 283, Colucci v. Colucci , 2021 SCC 24 , and D.D. v. Y.M. , 2021 BCPC 187 . [ 5 ] As noted by Justice Martin in paragraph 3 of Colucci v.

Colucci , "The courts have and need wide discretion to vary child support orders to ensure the correct amount of child support is being paid and to adapt to the enormous diversity of individual circumstances that families face." [ 6 ] Section 152(1) of the F.L.A. allows prospectively and retroactively changing, suspending or terminating child support. However, subsection (2) requires that before making an order under subsection (1), the court must be satisfied that at least one of the following exists and consider it: 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. [ 7 ] In support of his s. 152 argument, the Father submits that there has been a material change in circumstances and evidence of a substantial nature has become available since Judge Weatherly made the Order respecting child support eleven years ago.

Specifically, the Father argues that his income has not come close to what the Order impugns. In support of his argument, the Father says, i. Several years of his tax returns are now available that did not exist on July 26, 2011; ii. The tax returns confirm that the income impugned by Judge Weatherly is inaccurate, as the Father's actual income is significantly lower. iii.

Because of his inability to understand and navigate the legal system, he has brought his application to change, suspend or terminate the order within a reasonable time after the material change in circumstances. [ 8 ] The case law that has developed concerning s. 152(2)(

a) requires that the application to change, suspend or terminate a child support order be made within a reasonable time after the material change in circumstances. [ 9 ] The Father is also relying upon s. 174 in seeking to reduce or cancel his child support arrears. He submits that it would be grossly unfair not to reduce or cancel the child support arrears, given the reality of his past and present income and overall financial situation . [ 10 ]

Section 174 of the F.L.A. states,

(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. [ 11 ] The law has different tests for ss. 152(2)(

a) and 174, as explained by Judge Lee in D.D. v. Y.M. : [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 onerous test. The distinction is that a payor must make an application under s. 152(2)(

a) in a timely manner. Without this requirement, a payor could delay any variation application, accumulate arrears in defiance of a court order and then pursue relief at a time the payor found convenient. This is an injustice to the support recipient, who is entitled to expect compliance with an existing support order. To take advantage of the less onerous test found under s. 152(2)(a), the application to vary an order must be made within a reasonable time after the 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 Hamilton discussed 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 income falls below the income upon which the maintenance payments are calculated, then it is incumbent on the payor to bring the necessary application in a timely manner to have the maintenance payments adjusted.

To accede to J.K.'s proposal would encourage payors to do nothing 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 of maintenance payments to accumulate, and then when it suits the payor, bring an application for an order which not only deprives the recipient of the maintenance she has a court order to receive, but also uses this retroactive recalculation to deprive the recipient and the children of future maintenance payments they are entitled to receive.

I do not believe such an approach would do justice between the parties, nor do I believe such an approach accords with the law and the obligations the payor parent has to financially support the children. Background [ 12 ] The Father was the lone witness who testified during the hearing. [ 13 ] In addition to the evidence of the Father, I have reviewed and considered the contents of the entire physical court file, which is approximately 20 centimetres (eight inches) thick. The court file contains the history of the child support litigation involving the Father, Mother and Director of Maintenance Enforcement.

Furthermore, since the Father and the Son are Indigenous, in addition to the F.L.A. and the United Nations Convention on the Rights of the Child , I have also considered the provisions of the United Nations Declaration on the Rights of Indigenous Peoples . [ 14 ] In setting out his woes over the past 11 years, the Father represented himself as an individual beset with financial bad luck, despite an incredible will to survive against the odds. [ 15 ] The Father agonizes over the problematic relationships he has experienced with the Mother and Son.

The Mother and Son reside in a small First Nations community in Northern British Columbia, an approximate six-hour drive in good weather from the Father's current residence in Prince George. [ 16 ] In explaining his relationship with the Mother, the Father testified that, i. The Mother assaulted him in his home in the fall of 2011 during his parenting time with the Son. ii. Since then, there has been a lack of amicable or reasonable communication between himself and the Mother. iii. The Mother regularly fails to reply to his requests to see the Son and does not give reasons. iv.

The Mother has gotten on with her life. She is a [omitted for publication] at a small [omitted for publication] School in an isolated First Nations community. v. The Mother does not use the Father's failure to pay child support as a reason to deny the Father time with the Son. [ 17 ] In explaining his relationship with the Son, the Father noted that, i. The Son has a stepfather and two half-brothers. ii. He sees the Son approximately once every two years and only for an hour or two. The last time he spoke to the Son was in 2018, when the son was on a field trip in Vancouver. iii.

He does not know precisely where the Son's home is. iv. The distance between Prince George and the Son's First Nations community makes it difficult to maintain a relationship with his Son.

[ 18 ] Nonetheless, since Judge Weatherly made his Order on July 26, 2011, the Father has consistently failed to comply with his child support obligations. The Father's failure to pay child support as required has necessitated considerable court time and expense to the parties. In December 2011, the Mother enrolled in British Columbia's Family Maintenance Enforcement Program. Since January 2012, the Director of Maintenance Enforcement has taken action against the Father on behalf of the Mother.

Five warrants issued between 2016 and 2020 for the arrest of the Father due to the Father's failure to attend court proceedings. And the child support arrears have continued to grow, reaching $44,638.28 in principal and interest, plus $4,000.00 in fees, as of June 15, 2022. Issues [ 19 ] The issues for the court to decide are: 1. Has there been a material change in circumstances since July 26, 2011? 2. If yes, there has been a material change in circumstances since July 26, 2011, has the Father made his application under s. 152(2)(

a) in a timely manner? 3. Is there now evidence of a substantial nature that was not available to Judge Weatherly on July 26, 2011? 4. Is the court satisfied that it would be grossly unfair not to reduce or cancel the child support arrears ? Synopsis of Decision [ 20 ] For the reasons below, 1. To the extent the Father relies on drops in his income as a change in material circumstances before October 17, 2019, I agree with the Mother that the Father's poor communication, inadequate evidence and insufficient disclosure are fatal to his s. 152(2)(

a) application. 2. I do not accept that the Father's circumstances over the past 11 years are such as to exempt him from the Colucci v. Colucci framework. The Father has made few voluntary child support payments and has shown no willingness to support the Son. Accordingly, the Father's conduct over the past eleven years shows bad faith efforts to evade the enforcement of the July 26, 2011, Order. 3. Applying the Colucci v.

Colucci framework to the facts of this case, there is no reason for this court to intervene to reduce or forgive the child support debt accrued before March 1, 2020, under the July 26, 2011, Order. 4. Given the worldwide Covid-19 pandemic and the financial information provided by the Father for the period of October 17, 2019, to June 17, 2022, there is e vidence of a substantial nature that was not available on July 26, 2011, that has become available.

Accordingly, this is an appropriate case for the court to recalculate and reduce the child support payable by the Father to the Mother prospectively and retroactively to March 1, 2020. 5. The Father's failure to adduce adequate evidence of his financial, housing and medical circumstances before March 1, 2020, is fatal to his s. 174 application to rescind arrears. As such, he has not discharged his onus of showing that he will be unable to pay the child support arrears now or in the future. [ 21 ] I conclude, i. Child support payments owed before March 1, 2020, will not be reduced retroactively. ii.

Child support payments owed from March 1, 2020, to December 31, 2020, are reduced retroactively to $57.00 per month. iii. Child support payments owed from January 1, 2021, to December 31, 2021, are reduced retroactively to $290.00 per month. iv. Child support payments owed from January 1, 2022, to October 31, 2022, are reduced retroactively to $301.00 per month. v. As of November 1, 2022, until further court order, monthly child support payable by the Father to the Mother is $301.00 per month. vi.

I find that it is not grossly unfair not to reduce or cancel the child support arrears owed by the Father to the Mother before March 1, 2020. "Exceptional circumstances," as Justice Martin uses the term in Colucci v. Colucci , do not exist. DISCUSSION 1.

Has there Been a Material Change in Circumstances Since July 26, 2011? [ 22 ] According to the Father's testimony, tax returns, and T-4 slips, his line 150 total income over the past 12 years has fluctuated dramatically: • In 2010, the Father had a total income of $26,211. • In 2011, the Father had a total income of $40,405. • In 2012, the Father had a total income of $34,403.

• In 2013, the Father had a total income of $4,089. • In 2014, the Father had a negative income of -$9,945. • In 2015, the Father had a total income of $18,491. • In 2016, the Father had a total income of $6,116. • In 2017, the Father had a total income of $24,168. • In 2018, the Father had a total income of $16,298. • In 2019, the Father had a total income of $19,019. • In 2020, the Father had a total income of $14,000. • In 2021, the Father had a total income of $1,402. • In 2022, the Father testified that he had earned no income. [ 23 ] In reviewing the events that brought him before the court seeking relief from his past and present child support obligations, the Father testified that while he has lived a troubled life, he has done the best he can given the unfortunate hand life has dealt him. [ 24 ] The Father graduated from high school in 1997.

From 2002 to 2005, the Father attended the [omitted for publication] and studied international business. In 2007 and 2008, the Father attended flight school, completed his required 100 hours of flight time, and became a licenced commercial helicopter pilot. [ 25 ] From 1995 to 2012, the Father worked various jobs, including as an assistant boxing/kickboxing instructor, heavy equipment operator, archaeology assistant, helicopter pilot, entrepreneur, and slasher/faller in the logging industry.

He is a trained and veteran operator of various heavy-duty harvester/processor machines utilized in the logging industry. [ 26 ] The Father testified that he first became aware of the July 26, 2011, Order in 2011 or 2012 while trying to build flight time to secure a full-time helicopter pilot position. He was in a hangar when his chief pilot notified him that his helicopter pilot's licence had been suspended under the Family Maintenance Enforcement Act .

Although it is unclear from his testimony, it appears that the Father's pilot's licence was subsequently unsuspended. [ 27 ] The Father testified that since 2012 he has had difficulties finding and maintaining employment. In particular, the Father has found it impossible to secure gainful employment as a pilot due to his lack of flying hours and a general downturn in the market for helicopter pilots.

He maintains that he has searched for helicopter pilot opportunities, often spending 16 hours a day exploring. [ 28 ] Due to having no money and being unable to work as a pilot, the Father says that he became depressed. He could not get legal counsel to assist him with reducing his child support obligations and did not understand his legal jeopardy. [ 29 ] In 2013 the Father registered a sole proprietorship under [omitted for publication]. The nature of the business was environmental consulting services. It made no money.

The Father's only source of income in 2013 was from a brief period working at [omitted for publication]. He earned an income of $4,089. He explained the situation to the court in the following terms, It was a combination of different things. I was working for [omitted for publication]. I'd applied to everybody I could up here, up in the Northern Interior. They were based out of Campbell River. I had worked in Campbell River in the early 2000s.

I didn't have a problem at that time, but I came down to [omitted for publication], and they were on a float camp in the -- I believe it was in the -- it was off [omitted for publication] -- it was off -- it was on the mainland, but off of -- near [omitted for publication], across there. And we were staying in a float camp. I was sort of -- I was sort of zeroed out in that camp. There was a lot of people that were gang members. They had handguns. I was forced -- I was forced to participate in a recreational fight that I didn't consent to.

It was, for all intents and purposed, I made it through that fight, but my door was [indiscernible]. I didn't drink or do any -- or participate in any of the things that they were doing there. My door was kicked in that night, and I was threatened with violence. I was a little bit traumatized by the whole situation, and I continued to -- I left after twenty days. I stayed as long as I dared. And I was a little shook up from that whole affair. [ 30 ] In July 2014, the Father registered a second sole proprietorship under [omitted for publication].

He had a business partner and bookkeeper and retained a business consultant's services. Between [omitted for publication] and other sundry jobs, the Father managed a line 150 negative income of -$9,945 for the year. In the Father's opinion, the businesses failed to take off because he could not get support from his First Nation due to internal politics. Consequently, he suffered business losses. The Father described the business failures in the following terms, I couldn't get support from my band, from my Native, my First Nations band, my nation… In short, I had -- yeah, the chief created obstacles for me.

Like, I couldn't -- just wouldn't -- wouldn't directly acknowledge or affirm the -- my consulting company, in large part due to our history. I was sodomized and -- I was sodomized by him at a very young age. And I attempted to reach out and deny it, but it was -- nothing -- nothing happened as I talked to my -- I talked to a psychologist. I don't know if I was ten years old or something. I was nine when it happened and [indiscernible] with a civil suit on the charging him -- on the charging [indiscernible].

But, he's the chief and, of course, just completely shut down any sort of progress that was made with this consulting company. He is the current chief still. [ 31 ] In 2015, the Father worked for three employers in the logging industry and earned an income of $18,491. [ 32 ] In 2016, the Father worked for three employers in the logging industry and earned an income of $6,116.

[ 33 ] The Father claimed that for 2015 and 2016, he was unable to find regular employment because of chronic pain. During his direct examination, he described his health problems as follows: Q Did you have any other difficulties with being able to work? A Yeah. I had -- in 2000 and -- and chronic pain, ball joint pain, neck pain, starting in the year 1996.

Part time and off and on I worked as a mechanic's assistant and I've actually got, as a teenager, some high school [indiscernible] part-time on [indiscernible], and I'd operated wheel skidders, to start, along with assisting mechanicking [sic], and that sort of thing. It's just several neck injuries due to the machines that I was operating. But, later in 2006, on March 3rd, 2006, I got into a motor vehicular accident. I broke my neck. I came close to severing my left hand. [Indiscernible] injuries, sprained leg, clots in my eyes, [indiscernible] lacerations. It was pretty bad.

I got some -- these things over time took their toll -- chronic pain. Like I was told that I should maybe seek other work, but -- so, [indiscernible] was out of my aspiring profession of piloting, which is difficult, difficult to get [indiscernible]. And you know, like, you apply seed, like, that year, 2015, I was working for [omitted for publication]. Well, if you miss the season, if you get into the company, then you're in, but if you come in halfway through, or something like that, you're probably going to miss the season. They'll probably have a full roster for all their equipment.

But, you know, just got keep applying and trying. So, it was better just to -- I tried my best for a lot of the time. And I couldn't go to the hospital. I mean, I didn't -- I hadn't communicated with my doctor for years. I was just recently diagnosed with advanced diabetes, as well. And I -- the doctor said that I may well have had it for ten to fifteen years, 'cause I hadn't -- I hadn't seen him, and I hadn't had a chance to get diagnosed. But these fears came from the -- some of these fears came from being in that motor vehicular accident.

There was a -- there was a really strong indication that the medical personnel who attended to me were biased in their judgment, if you will, regarding my physical state. They basically suggested that I was drinking and driving. I immediately -- my passengers were. [Indiscernible] was driving in my -- there was a semi that crossed the centre line on a tight corner, and it wasn't much, but it was enough to hit me. And anyway, they had alcohol. The alcohol spilled over and got on me. And I mean, it was just a -- it was just a bloody mess.

I got taken to Prince George University Hospital, and again, the nurses were suggesting that I was drinking and driving. I demanded -- I requested a toxicology report and submitted blood and breathalyzer, and it came back negative. But, it really jostled my trust in any medical personal at all. I was sort of jaded. And then, that was partly due to my [indiscernible]. Q So, you mentioned these injuries from the car accident. How have they affected you being able to work? A It's recurrent, just chronic pain, you know, random, spontaneous neck pain, hip pain, foot pain, leg pain.

I hurt my left leg, and the orthopedic surgeon had fixed me -- who has since dissolved his practice. I've been trying to get the [indiscernible] out. There's several points where screws are not in bone but rather in cartilage. And my doctor can provide those X-rays. But he's -- I mean, I'm required to, you know, I'm operating processors and logging and skidding and that sort of thing. I'm required to be on a machine several times during the day, [indiscernible] to check for computer accuracy and that sort of thing. And that's pretty painful.

I can't walk more than two blocks without my leg swelling up. [ 34 ] In 2017, the Father worked for six employers, mainly in the logging and logging support services industries. He also collected Employment Insurance benefits. He earned an income of $24,168. [ 35 ] In 2018, the Father worked for five employers in the logging and logging support services industries. He earned an income of $16,298. [ 36 ] In 2019, the Father worked for three employers in the logging and logging support services industries. He earned an income of $19,019. [ 37 ] In 2020, the Father did not work.

He had an income of $14,000 from the Canada Emergency Response Benefit. [ 38 ] In 2021, the Father worked briefly at a single employer. He had an income of $1,402. He explained the reasons why, I was only getting -- it was a short season. There were other people employed ahead of me that had more seniority. They weren't able to work at the time that I was employed, and I was sort of filling in.

They came back to work, and I was sort of put on the back burner because I -- they [indiscernible] in the company and I was [indiscernible], and the rest of the -- the rest of the other -- the other companies and subcontractors had [indiscernible] rosters. It was a pretty difficult year. There were other -- other positions available, but I have -- I also have a scoliosis condition. I can [indiscernible]. I have records for this, medical records for this, but unfortunately, I didn't bring those. But there were [indiscernible] operator positions in Cat tracker, like dozer type machines, to operate.

But due to my [indiscernible], I didn't decide -- I couldn't do that. My neck -- I [indiscernible] in my back and neck really frequently, and it's just, it's pretty hard on me. So, I try to stay on the excavator and processor, or in the [indiscernible], if I can. That's it a little bit easier on my back and neck. [ 39 ] The Father testified that in 2022 he hopes to work soon as a heavy equipment operator in the logging industry. Furthermore, having been a daytime student at a residential school, he has submitted a claim as part of the Federal Indian Day School Class Action settlement.

The Father does not know how much money he is entitled to receive as part of the settlement. Still, depending on the severity of their abuse, eligible survivors will receive a payment of between $10,000 to $200,000. [ 40 ] Despite having little to no money, the Father testified that he has survived over the years due to charity from family and friends, often couch surfing and taking handouts when offered. Analysis [ 41 ] The onus is on the Father, on a balance of probabilities, to prove a material change of circumstances.

Looking holistically, I find that the Father has failed to demonstrate a material change of circumstances between July 26, 2011, and March 1, 2020. [ 42 ] Except for i. his Canada Revenue Agency tax documentation,

ii. a curriculum vitae , and iii. nine pages of recent text message screenshots related to the Father's attempts to find employment in 2020, the Father has failed to provide any documentation to support his income or health issues over the past twelve years.

Additionally, there is a complete lack of evidence to support the Father's claims regarding his inability to maintain or secure employment over the years: no Record of Employment from any employer, no lay-off notices, no letters/emails setting out applications for employment and corresponding rejections, no testimony from friends or loved ones as to how they assisted the Father over the past eleven years. [ 43 ] Counsel for the Father summed up the Father's position in the following terms, He has attempted to go through lawyers; he is bewildered by the court process.

He simply just does not have the capability to do these things on his own. He did tell me he reached out to try and have some lawyers assist him. He was unsuccessful, really, in getting an application. [A.R.Y.] did get Ms. Humchitt, and my friend, throughout the course of this file, has detailed many of the issues he's had with Ms. Humchitt. [A.R.Y.] apparently has just had a bit of bad luck ….. [A.R.Y.], in addition to all his physical injuries, he -- he had sexual abuse. That sexual abuse was unfortunately done by the Chief of his Nation. He was trying to start a business plan.

A partner was there to try to help him and do his books to help him get there, but the – the requirement for that plan to succeed was the funding from the band, and that was being blocked by this person because [A.R.Y.] was trying to pursue charges for the abuse he had suffered, and he's again been unsuccessful in moving that forward. But that is simply what his goal was, and he's encountered kind of political interference at that level. [ 44 ] The Father presented as an intelligent individual. He has a university education and had the wherewithal to attend and graduate from helicopter pilot's school.

He has extensive experience as a heavy equipment operator and some experience as a helicopter pilot, often working in remote parts of the province. With respect, I reject the assertion by the Father's counsel that the Father has limited cognitive capabilities, which have affected his ability to find gainful employment. [ 45 ] Much of what the Father did testify to lacked credibility, given the deficiency in supporting evidence and the answers he gave to the Mother's counsel in cross-examination.

Specifically, there is no supporting evidence to authenticate the hypothesis that economic conditions, combined with the Father's poor health, have led to the Father being underemployed between July 26, 2011, and March 1, 2020. Supporting evidence could have been located and presented to the court. Subpoenas could have gone out. Documentation from medical professionals could have been requested and secured.

Instead, the court was presented with only a tiny slice of the pie of what has been the Father's life over the past eleven years, including an inadequate explanation of how the Father has managed to survive financially over the last 11 years. [ 46 ] Based on the totality of the evidence presented during the hearing and in the court file, I cannot find a material change of circumstances between July 26, 2011, and March 1, 2020. 2. If yes, there has been a material change in circumstances since July 26, 2011, has the Father made his application under s. 152(2)(

a) in a timely manner? [ 47 ] As I have found that the Father has not proven on a balance of probabilities a material change in circumstances between July 26, 2011, and March 1, 2020, I do not need to consider whether the Father made his application under s. 152(2)(

a) in a timely manner related to child support owed before October 17, 2019. [ 48 ] Likewise, as I have not found a material change of circumstances between July 26, 2011, and March 1, 2020, I do not need to consider whether the Mother was given effective notice of the Father's application to reduce his child support payments and eliminate or reduce his child support arrears before the formal notice was given on October 17, 2019. 3.

Is there now evidence of a substantial nature that was not available to Judge Weatherly on July 26, 2011? [ 49 ] I am of the opinion that there is now evidence of a substantial nature that was not available on July 26, 2011. Specifically, by March 1, 2022, the Covid-19 pandemic had changed the landscape in British Columbia and throughout the world. There is no way that Judge Weatherly could have anticipated or allowed for a pandemic that brought the world to a standstill and resulted in financial ruin for millions of people. There is no reason to think the Father was untouched by the pandemic.

Analysis [ 50 ] In light of the Covid-19 pandemic and the economic crisis that resulted -- combined with the evidence of the Father as to his financial situation since the filing of his application on October 17, 2019 -- I find that the Father has proven on a balance of probabilities that his child support obligations from March 1, 2020, onwards, should be reduced. [ 51 ] For the year 2020, the Father claims an income of $14,000.00 from the Canada Emergency Response Benefit. According to the Child Support Guidelines , the Father's child support obligations would be $57.00 per month.

Accordingly, in 2020, the Father's child support obligation is $500.00 for each of January and February and then reduced to $57.00 per month for each of March through December. I do not believe it would be fair to the Mother or the Son to reduce the $500.00 per month child support obligation before March 1, 2020. [ 52 ] For the year 2021, as British Columbia and the world were moving out of the economic depression caused by the Covid-19 pandemic, I am impugning an income of $31,112.00 to the Father. $31,112.00 represents what the Father would have earned if he had worked full-time at a minimum-wage job.

According to the Child Support Guidelines , an income of $31,112.00 results in a child support obligation of $290.00 per month. Therefore, in 2021, the Father's child support obligation is reduced to $290.00 per month.

[ 53 ] For 2022, I see no reason why the Father cannot be employed full-time. I am impugning an income of $32,174.00 to the Father. $32,174.00 represents what the Father would earn in 2022 if he worked full-time at a minimum-wage job. According to the Child Support Guidelines , an income of $32,174.00 results in a child support obligation of $301.00 per month. Therefore, in 2022, the Father's child support obligation is reduced to $301.00 per month. 4.

Is the court satisfied that it would be grossly unfair not to reduce or cancel the child support arrears under s. 174 ? [ 54 ] The test on an s. 174 F.L.A. application to reduce or cancel child support arrears is not "on a balance of probabilities." The test is "grossly unfair." The Father has not established that it would be grossly unfair for the court not to eliminate or reduce his child support arrears owing before March 1, 2020. Analysis [ 55 ] In his submissions to the court, counsel for the Father stated the following regarding the child support arrears, [A.R.Y.] is not currently working.

He does not have any proposal at this time about how they will be paid. He's still attempting to find work. [A.R.Y.] repeatedly stated he does not wanna be a burden on the system. That's one of the reasons he hasn't applied for social assistance or welfare. He's very limited in his own financial understanding because essentially, he's got -- he's surviving on the generosity of friends and family. He has people helping him with his rent and his other costs. ….. [A.R.Y.] testified that when he got the original document back in 2011, he really wasn't sure what to do.

He was in the plane hangar; he was focusing on his job. He just didn't know how to respond to it, and so he kinda froze and locked up and didn't do anything. He then, later on, tried to find lawyers and was not successful, and that's... He tried and tried, and eventually, he got here today with me and this application. [ 56 ] In Earle v. Earle , Justice Martinson instructed in 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 and long 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 right away. [ 57 ] The Director of Family Maintenance takes no position on the Father's application other than to note that for eight years, the Father has stymied the committal and default hearings by failing to attend court or otherwise meaningfully acting to resolve the issues presently before the court. [ 58 ] The Mother has urged the court to find that the file has gotten out of control due to the Father's inaction and that the Father has gotten what he was looking for: a delay in his accountability.

The Mother submits that the Father has been in child support arrears since 2011 and that the Father has managed to delay a default hearing for about nine years.

The Mother points out that the Father has had four different lawyers over the years and, for various reasons, always to the Father's benefit, the matter gets adjourned, again and again, resulting in additional expense to the Mother, the Director of Family Maintenance, and the court system. [ 59 ] I completely agree that it is not acceptable for a payor parent who is in default of child support to make an application of some sort to prevent the Director of Family Maintenance from moving in and going up the enforcement chain.

Especially when the payer parent fails to make a good-faith effort to advance their application. [ 60 ] From my review of the court file, it appears that the Father in the present case has been less than diligent in pressing his claim for a reduction or elimination of child support arrears. His evidence was unequivocal. He has known of the July 26, 2011, Order since 2011 or 2012. Yet he waited until October 17, 2019, to make his application to eliminate or reduce his child support arrears. And it took another 31 months to start the hearing.

CONCLUSION [ 61 ] Under s. 152(1) of the F.L.A. , I make the following final Order: This Court orders that the final Order made July 26, 2011, by The Honourable Judge Weatherly is amended as follows: 1. [E.D.W.] shall have sole custody and sole guardianship of the Child, [D.Y.], born [omitted for publication] (hereinafter referred to as "the Child"). 2. [A.R.Y.] shall have reasonable access to the Child. 3. [A.R.Y.], having to been found a resident of British Columbia, this Court imputes an annual income of $53,750.00 for the purpose of determining the table amount of child support. [A.R.Y.] shall pay child support to [E.D.W.] in the amount of $500.00 per month commencing June 1, 2011, and continuing on the first day of each month thereafter up to and including February 29, 2020.

This Order is made on a Without Prejudice basis to [E.D.W.] to make an application for retroactive child support. 4. For the year 2020, this court imputes an annual income for [A.R.Y.] of $14,000.00 for the purpose of determining the table

amount of child support. [A.R.Y.] shall pay child support to [E.D.W.] in the amount of $57.00 per month commencing March 1, 2020, and continuing on the first day of each month thereafter up to and including December 31, 2020. 5. For the year 2021, this court imputes an annual income for [A.R.Y.] of $31,112.00 for the purpose of determining the table amount of child support. [A.R.Y.] shall pay child support to [E.D.W] in the amount of $290.00 per month commencing January 1, 2021, and continuing on the first day of each month thereafter up to and including December 31, 2021. 6.

For the year 2022, this court imputes an annual income for [A.R.Y.] of $32,174.00 for the purpose of determining the table amount of child support. [A.R.Y.] shall pay child support to [E.D.W.] in the amount of $301.00 per month commencing January 1, 2022, and continuing on the first day of each month thereafter until further order of this Court. 7. For as long as the Child is eligible to receive child support, [A.R.Y.] shall provide to [E.D.W.]: (

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

b) copies of any Notice of Assessment or Reassessment provided by the Canada Revenue Agency immediately upon receipt. 8. [omitted for publication] Registry File No. [omitted for publication] pertaining to the above proceeding is transferred to the Terrace Family Court for all purposes. _________________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia