S.G.M. v. P.K.M. Date:, 2017 BCPC 257

Citation: S.G.M. v. P.K.M. Date: 20170719 2017 BCPC 257 File No: 2000-13523 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.G.M. APPLICANT AND: P.K.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: Richard Yalowsky

Appearing for the Applicant: P. Pirgheibi Articling Student Counsel for the Respondent: Mark Rozenberg Place of Hearing: Vancouver , B.C. Date of Hearing: June 1, 2017 Date of Judgment: July 19, 2017 INTRODUCTION [ 1 ] This is an application by P.K.M. to cancel arrears of support owing pursuant to an order of His Honour Judge Gillis dated November 20, 2002. The order provided that P.K.M. pay child support of $250.00 a month to S.G.M. for the support of two children, L., born [omitted for publication], and T., born [omitted for publication].

The order was based on a finding of income of $16,731.00 and the payments were to start December 15, 2002. [ 2 ] The Family Maintenance Enforcement Program (“FMEP”) has been involved to enforce collection of the support. According to an FMEP statement called a “Statement of Payments Disbursed” dated April 3, 2017, the support arrears, inclusive of statutory interest, totals $28,560.63. FMEP has collected and is holding the sum of $28,560.63 pending the results of this decision. THE EVIDENCE [ 3 ] P.K.M. testified that at the time the November 20, 2002 support order was made, he was working in construction.

P.K.M. said that approximately one month later he suffered a workplace injury to his back. He returned to work shortly after and re-injured his back. He then had a magnetic resonance imaging scan, more commonly referred to as an MRI, performed.

The scan showed that P.K.M. had a degenerative spine disease and that he was unable to lift more than 5 to 10 lbs. [ 4 ] P.K.M. says that to this day he takes various forms of pain medication to deal with the symptoms of his back condition. [ 5 ] A medical report filed by P.K.M. also indicates that as of 2005, P.K.M. suffered from COPD, which I understand refers to chronic obstructive pulmonary disease. Such a condition makes it hard for one to breathe. [ 6 ] P.K.M. testified that he has been unable to work since 2002.

He did not qualify for employment insurance benefits and so his father sent him $800.00 a month for some 10 months. P.K.M. says he has received Income Assistance benefits since 2005 although he filed an affidavit stating that he received the benefits since 2004. P.K.M. is currently receiving income assistance through a Persons with Disability designation through the BC Employment and Assistance Program. [ 7 ] P.K.M. only has income records dating back to the year 2007.

Those records show the following income: 2007 $7,637.12 2008 $7,930.00 2009 $7,930.00 2010 $11,570.00 2011 $7,907.00 2012 $14,274.25 2013 $8,755.00 2014 $7,930.00 2015 $7,930.04 [ 8 ] P.K.M. has supplied limited financial information. He was unable to obtain his tax returns for all of the years dating back to 2002 because he says they were not available from the Canada Revenue Agency due to their age.

The failure to provide full disclosure rests with P.K.M. who delayed filing an application to deal with the support arrears until now. [ 9 ] P.K.M. explained his delay in making his court application by the fact he needed legal assistance to make his application and he lacked any funds to do so. He was aware that FMEP was attaching some of his Federal benefits and he felt that so long as some money was being paid he need not concern himself with an application to vary the support order.

The difficulty with that reasoning is that P.K.M. is in contravention a court order resulting in the accumulation of the support arrears. The only reason P.K.M. is now pursuing an application to cancel the arrears is because he has inherited funds from his late father and FMEP has attached a portion of the inheritance money to pay the arrears. [ 10 ] Over the years and despite his circumstances P.K.M. said he was still able to give some funds to S.G.M. He thinks that during the years 2008 to 2010, for some two years, he gave S.G.M. on average $40.00 a month.

S.G.M. confirmed that she did receive funds although she did not think it was monthly and that the amounts ranged from $20.00 to $50.00.

[11] P.K.M. also said that on two occasions he gave $50.00 to the boyfriend of S.G.M.’s mother to help with costs because at a timethe children were staying with S.G.M.’s mother and the boyfriend. [12] FMEP has also been able to attach funds otherwise payable to P.K.M. It appears that this was a result of a notice of attachmentissued to Her Majesty the Queen in Right of Canada. According to the FMEP records, funds were attached starting in April 2011 andthe total of $5,332.76 has been paid to S.G.M. to date. [13] P.K.M. says that the two children came to live with him in August 2010. S.G.M. agrees with this.

P.K.M. says that T. returnedto his mother in October 2012, who was living in [omitted for publication] at the time. P.K.M. says that T. had in fact enrolled in[omitted for publication] Secondary School in [omitted for publication] in September 2012. Ms. Maze disagrees and she tenders recordsfrom the [omitted for publication] Public Schools indicating that T. was enrolled in an [omitted for publication] school in September2012.

She also provided a report card for T. showing test results as early as September 11, 2012. [14] P.K.M. also says that T. did return to live with him for one month in February 2013. [15] S.G.M. agrees that L. moved in with P.K.M. in August 2010 and he did not return to her care. [16] P.K.M.’s father passed away and P.K.M. is a beneficiary under the Will. P.K.M. is to inherit approximately $60,000.00 andpossibly more under the Will.

FMEP issued a notice of attachment to the estate of P.K.M.’s father and have collected the sum of$28,560.63 which is the amount of the arrears that the Director of Maintenance Enforcement is seeking to have paid. This sum is beingheld pending this court decision. ANALYSIS [17] The medical evidence regarding P.K.M.’s inability to work is very limited. There is only one brief medical report and it appearsto have been a report prepared in support of the continuation of income assistance benefits. Typically, there would be a more detailedreport prepared and submitted to obtain a Persons with Disability designation.

Such a report was not submitted into evidence. I am ableto infer though that because P.K.M. is receipt of such benefits, the Ministry has accepted that he is disabled from working at least tosome degree. [18] S.G.M. has suggested that P.K.M. has not made his best efforts to seek alternative employment. P.K.M. argues that due to hislack of education his prospects are limited and he is unable to obtain any other forms of employment.

P.K.M. indicated that he madelittle or no effort to seek employment once he was injured and he certainly gave no evidence of any such efforts. [19] This is an application pursuant to s. 174 of the Family Law Act to cancel or reduce support arrears. This is not an application tovary or change a support order which entails a different legal test under s. 152 of the Family Law Act. The differences between thesetwo types of applications are discussed in the decision Beavis v. Beavis 2014 BCSC 422: [40] The trial judge made one error which I conclude is significant.

She determined that, before turning to the question of reductionor cancellation of arrears, she should first recalculate the arrears in accordance with the term of the separation agreement requiring anannual review of child support. She wrote at para. 32 of the Trial Decision: [32] Before I am able to consider whether some or all of the child support arrears ought to be cancelled, it is necessary for me to fixthe arrears. I do not accept that the arrears should be calculated at $1,000 per month. The agreement contemplated annual reviews of theappropriate amount of child support to be paid by Mrs.

Beavis based on the factors governing child support payments contained inthe Family Relations Act and the Child Support Guidelines. This was never done. I conclude that it would be grossly unfair not toconsider these facts in this application to reduce or cancel the arrears. [41] This recalculation is an error in principle. On an application to reduce or cancel arrears, the trial judge should not firstrecalculate arrears based on the parties’ actual or imputed income. That is so even where the court order or separation agreementpursuant to which arrears have accumulated provides for such a review.

I note that the trial judge did not have the benefit of two recentdecisions on this issue, one of which was released after her decision. [42] In L.B., a recalculation of arrears based on actual or imputed income was rejected on the following basis at paras. 42: [42] …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.

Toaccede 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 periodof several years and allow a significant sum of arrears of maintenance payments to accumulate, and then when it suits the payor, bring anapplication for an order which not only deprives the recipient of the maintenance she has a court order to receive, but also uses thisretroactive recalculation to deprive the recipient and the children of future maintenance payments they are entitled to receive.

I do notbelieve such an approach would do justice between the parties, nor do I believe such an approach accords with the law and theobligations the payor parent has to financially support the children. [43] P.L. v. J.D.L., 2013 BCSC 1492 , confirms that recalculating arrears is not appropriate. This is so even when childsupport is payable under a consent order that, as in this case, requires the exchange of financial information and an annual adjustment ofchild support in accordance with the Child Support Guidelines.

Fleming J. states at paras. 41-42: [41] In seeking to cancel or reduce his child support arrears, the respondent argues that the arrears ought to be calculated based uponhis line 150 income for each of the years subsequent to the 2010 Order. He submits the language of the order requires this approach. Idisagree. The 2010 Order, and paragraph 19 of the 2008 Order which it incorporates, contemplate an exchange of tax and other financialinformation as required by the Guidelines for the purpose of reviewing the quantum and making changes to quantum.

The requirementfor proper financial disclosure prior to a review of quantum is far from a requirement that quantum be subject to automatic annualvariation based solely upon the respondent’s line 150 income. In the absence of agreement of the parties or further order of the court,

paragraph 9 of the 2010 Order continues. [42] I note in addition the respondent provided no authority to establish that the court can retroactively calculate child supportpayments based upon the payor’s line 150 income, and then set the arrears based upon the difference between what was paid and whatshould have been paid according to the line 150 income. In similar circumstances, the Provincial Court in L.B. v.

J.K., 2012 BCPC 231, 2012 BCPC 0231, refused to adopt this approach in part because to do so encourages payors to do nothing in the face of areduction in income and disobey a court order over an extended period of time, allowing significant arrears to accumulate.

Then, when itsuits the payor, he or she may bring an application for an order that deprives the children in question of child support that they wereentitled to receive and relied upon receiving (para. 42). [44] The starting point on an application to reduce or cancel arrears is thus the arrears as they stand under the order or separationagreement, not what they would be if the annual adjustments contemplated by the agreement or order had been made.

The court maycancel or reduce the arrears as they stand, but only if it would be grossly unfair not to do so. [45] A trial judge can assess the appropriate magnitude of any reduction in arrears by considering differences between the income onwhich the order or agreement is based and the payor’s actual income in the same period. However, this analysis must take place afterdetermining that it would be grossly unfair not to reduce arrears.

In some cases (for example where a child has lived with the payor foran extended period) taking into account actual income levels could be a principled basis upon which to determine a reduction in arrears. A more general assessment or percentage discount may be appropriate in other cases. [20] Based on this authority then, on an application to cancel or reduce arrears, the proper approach is not to adjust the arrears basedon an annual adjustment of the support payable based on income. To do so would simply encourage a payor to disobey a court order andthen seek a variation at a later time.

This is why on an application to vary a support order the court takes into account the reasons for anydelay in making the application to vary. In an application to cancel or reduce arrears, the delay in making an application is notspecifically named as a consideration under s. 174 although such may still be a relevant consideration depending on the facts of the case.

Ultimately the test under s. 174 is whether it would grossly unfair not to cancel or reduce the arrears and it is a much more onerous testthan that required to be met on an application to change or vary the support order. [21] The basic principles dealing with cancellation of arrears are set out in the leading decision Earle v. Earle, (BC SC), where Madam Justice Martinson stated at paragraph 21: 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 longlasting change in circumstances.

Arrears will not be reduced or cancelled unless it is grossly unfair not to do so. [22] What is meant by “grossly unfair” has been considered in the decision L.B. v. J.K., 2012 BCPC 231, a decision dealing with theFamily Relations Act. The court stated: [51] So, what does “grossly unfair” mean? [52] I was unable to find any helpful authority that sets out what the phrase “grossly unfair” means. Obviously to meet the grosslyunfair test the applicant must establish more than it would be unfair to maintain the maintenance arrears.

Establishing gross unfair isclearly a more onerous test that proving simple unfairness. [53] I am of the view that gross unfairness means more than something that is a significant financial burden. [54] In order to meet the gross unfairness test, I am of the opinion that the applicant must establish that maintaining the maintenancearrears is so unfair that to enforce payment of the arrears would serve an injustice on the payor that the court cannot countenance.

Ifenforcing payment of the arrears leaves a payor in strained financial circumstances, that is not enough. [55] Circumstances in which a court might conclude that an applicant has met the gross unfairness test might include situations wherechild maintenance arrears have accumulated during a time when the child was living with the payor and not the recipient, or where thechild was removed from the recipient’s care by child welfare authorities, or was living with other extended family members.

Grossunfairness might be established in circumstances where enforcing the payment of the maintenance arrears would force the payor intobankruptcy. A determination of gross unfairness in these examples would depend on the facts of each individual case. However, what isclear from the authorities is that cases in which maintenance arrears will be reduced or cancelled are rare: see Luney, supra, at para. 43. [56] There is a reason for the test being as onerous as it is. The test is onerous because parents have a duty to their children tofinancially support those children throughout their childhood.

This duty imposes an obligation on both parents to financially support theirchildren commensurate with the parents’ financial circumstances – Earle, supra, at para. 16. This duty exists whether or not a courtorder is in place. [57] When a parent fails to fulfil their duty, the children are deprived of the financial support they are entitled to receive, but whichthey cannot enforce. The children cannot go to court to secure the payment of the support they are due.

The children suffer adeprivation, an injustice. [58] When the parent’s duty is secured by a court order, the failure to fulfil that duty not only serves an injustice to the child, but theparent is disobeying a court order.

Our courts cannot, and will not, tolerate such conduct except in the rarest of cases. [59] So, when a parent comes to court having failed in their duty to their child, deprived the child of that which the child is entitled toreceive but cannot enforce, and disobeyed a court order, our courts will not condone that parent’s behaviour unless, and only unless, toinsist that the parent fulfil his or her duty would be grossly unfair. For these reasons, the grossly unfair test is not an easy test to meet. [23] The approach I will take in dealing with a

section 174 application is as follows:

1. What is the amount of the arrears payable pursuant to the court order? 2. What has been paid towards the support obligation? 3. Should any arrears be cancelled or reduced? (

a) Has there been a significant and long lasting change in circumstances? (

b) Would it be grossly unfair to not cancel or reduce the arrears? 4. Is statutory interest owed on the arrears? If so, should the statutory interest be cancelled or reduced? 5. Are any statutory default fees owing? If so, should any statutory default fees be cancelled or reduced? WHAT IS THE AMOUNT OF THE ARREARS PAYABLE PURSUANT TO THE COURT ORDER? [ 24 ] The support payable pursuant to the court order is $250.00 a month for two children starting December 15, 2002. This order has not been varied or cancelled. Child support also does not automatically end at the age of 19.

Strictly speaking the current arrears are based on $250.00 a month starting December 15, 2002 to date, less payments made. From December 2002 to July 2017, there are 176 months and the support due under the terms of the court order totals $44,000.00 as of July 1, 2017. [ 25 ] The FMEP record of the arrears must be looked at with caution because that record does not necessarily provide an accurate statement of the arrears owed pursuant to the court order.

Section 4(

d) of the Family Maintenance Enforcement Act gives the Director of Maintenance Enforcement the discretion to enforce all or part of the arrears of support owing under an order. Accordingly, the Director has discretion to decide if support should be reduced or stopped. The FMEP record of the arrears only sets out the amount the Director is enforcing for. The exercise of the Director’s discretion is not a variation of the support order. See for instance the decision C. (C.L.) v.

C. (B.T.) 2006 BCSC 1787 where the court held that a decision by FMEP to not enforce ongoing support under a court order does not act to change that order. [ 26 ] I add that the Family Maintenance Enforcement Act refers to payments due as “maintenance” whereas the Family Law Act refers to payments as “support”. Both terms have the same meaning and I use the terms interchangeably. WHAT HAS BEEN PAID TOWARDS THE SUPPORT OBLIGATION? [ 27 ] The FMEP records show payments collected of $5,332.76. P.K.M. will be credited for this sum. SHOULD ANY ARREARS BE CANCELLED OR REDUCED? (

a) Has there been a significant and long lasting change in circumstances? [ 28 ] Shortly after the support order was made, P.K.M. suffered an injury. The injury left him unable to lift more than a few pounds. As a result of this injury, P.K.M. has been in receipt of disability benefits for many years now. I accept then that there has been a significant and long lasting change in his circumstances. (

b) Would it be grossly unfair to not cancel or reduce the arrears? [ 29 ] As this is not an application to vary or change the support order pursuant to

section 152 of the Family Law Act , I cannot simply set a date when the monthly child support should be lowered or when the monthly child support should end. I can however determine if certain support arrears should be cancelled or reduced pursuant to

section 174 of the Family Law Act . The termination of the ongoing monthly support as of a certain date (a

section 152 order) and the cancellation of support arrears arising after the same date (a

section 174 order) leads to the same result.

The method of reaching that result is what differs. [ 30 ] Applying this approach to the facts of this case, the parties agree that both children came to live with P.K.M. in August 2010 and so there should not be support payable during this time. [ 31 ] I also accept the records from the [omitted for publication] school showing that T. was in attendance in September 2012 and so I find that T. returned to his mother’s care in September 2012. [ 32 ] P.K.M. said that T. came back to live with him for one month in February 2013 but this was not a move of any permanence and so support will still be payable for that month. [ 33 ] The decision L.B. v.

J.K . (supra) , stated that gross unfairness may exist when the arrears arose during a time when the child was living with the payor rather than the recipient. I agree with that proposition. [ 34 ] It is my finding that it would be grossly unfair to require P.K.M. to pay for support when the children were not in S.G.M.’s care. The children came into P.K.M.’s care in August 2010. One child returned to the care of S.G.M. in September 2012.

The arrears of support that arose between the dates August 2010 to August 2012 will be cancelled. [ 35 ] Effective September 2012, one child was with P.K.M. and one child was with S.G.M. agrees that the child support should be reduced at this time so that P.K.M. was only required to pay support for the one child T. In the circumstances, I find it would be grossly unfair to P.K.M. to require that he pay for support for the child who was in his care. [ 36 ] The support that was payable for two children was $250.00 a month.

Relying upon the Guideline income amount set out in the support order of Judge Gillis, that being $16,731.00, P.K.M. would have had to pay $128.00 a month for the support of one child. I will therefore reduce the support arrears by the difference between $250.00 a month and $128.00 a month, being $122.00 a month, for the

period starting September 1, 2012. [ 37 ] S.G.M. is content for ongoing child support to end when T. turned 19 years of age on May 12, 2015. I understand that he was no longer in need of support at that time.

I find then that it would be grossly unfair to not cancel any arrears of support arising after May 12, 2015 and I will cancel those arrears. [ 38 ] I will also cancel the support order effective May 12, 2015 because in the circumstances of this case, no further support should be payable. [ 39 ] Based on the above analysis, the support arrears are calculated as follows: 2002 $250.00 due December 15, 2002 per the court order 2003 $3,000.00 ($250.00 x 12 months) 2004 $3,000.00 2005 $3,000.00 2006 $3,000.00 2007 $3,000.00 2008 $3,000.00 2009 $3,000.00 2010 $1,750.00 (January to July - $250.00 x 7 months) 2011 nil 2012 $512.00 (September to December - $128.00 x 4 months) 2013 $1,536.00 ($128.00 x 12 months) 2014 $1,536.00 2015 $512.00 (January to April - $128.00 x 4 months) [ 40 ] The total sum is $27,096.00 and from this must still be deducted the payments collected by FMEP in the amount of $5,332.76, leaving $21,763.24 due. [ 41 ] P.K.M. also testified to some small payments made by him which have not been credited to him by FMEP.

Those payments, which total $1,060.00, were as follows: 1. Payments averaging $40.00 a month over a two-year period in 2008 and 2009, which totals $960.00. 2. Two payments of $50.00, for a total of $100.00, paid to the boyfriend of S.G.M.’s mother when the children were staying with the boyfriend and S.G.M.’s mother. [ 42 ]

Section 10 of the Family Maintenance Enforcement Act requires that when a support order is enrolled with the Director of Maintenance Enforcement payments must be sent and be made payable to the Director unless permission is given to allow payments in another manner. Despite the fact that these payments were not made to the Director of Maintenance Enforcement, given P.K.M.’s limited income and because S.G.M. has admitted that at least some of the payments were made, I find it would be grossly unfair to not cancel further arrears in the amount of $1,060.00.

With this deduction, the remaining amount owing is now $20,703.24. [ 43 ] I turn now to consider whether it would be grossly unfair to not cancel or further reduce this sum. [ 44 ] P.K.M. argues the following: 1. Given his financial circumstances and his inability to work, his limited income was always below the Child Support Guidelines threshold to require him to pay child support. I do note that for the year 2010, P.K.M.’s income was in fact above the threshold Guideline income to pay support. However that was also the year the children came to live with him.

P.K.M. said he received additional income because of the Child Tax Benefit that he received that year. 2. P.K.M. remains disabled and cannot earn any income over and above his current level of income assistance benefits. His income is not enough to allow him to pay the arrears now or in future. [ 45 ] S.G.M. argues that P.K.M. has not met the obligation upon him to make his best efforts to seek employment. She argues that in fact he has made no efforts to seek any kind of employment. P.K.M. admits as much in stating that given his limited education and his inability to lift objects he is not employable.

He also admits that he has not sought employment. [ 46 ] S.G.M. also argues that the inheritance that P.K.M. is entitled to is sufficient to pay the support arrears. The fact of the inheritance is a critical factor. I refer to a decision of Her Honour Judge Buller in J.P. v. P.V.L. 2015 BCPC 283 . The circumstances for the payor P.V.L. were described as follows:

[22] In 2009, PVL’s income was $10,786. He paid $2,878.88 for child support. [23] In 2010, PVL’s income was $8,081 and he paid a total of $3,088.25 for child support. [24] In 2011, PVL’s income was $13,760. He paid $1,250 for child support. PVL’s last payment was on June 29, 2011. He did not make a voluntary payment until December 2013. As of this rehearing, he had no idea why he stopped making payments. [25] In 2012, PVL’s income was $12,365. He paid no child support in that year. [26] In 2013, PVL’s income was $11,105.02 and he paid $100 for child support. [27] In 2014, PVL estimated his income was $10,203.

He paid a total of $2,025.43 for child support. In November 2014, PVL had a heart attack. He has been unable to work since then and provided medical evidence in support. As a result, he has received income assistance of $610 per month since then. [28] In January 2015, PVL’s father passed away. After his father’s estate is settled, he will receive an inheritance. PVL anticipates that he will receive an inheritance ranging from $120,000 to $160,000. This would be sufficient to pay the arrears in full. [29] As of August 13, 2015, PVL paid $106.11 for child support, by federal interception.

The arrears total $16,612.13. Adding interest and fees, PVL owes a total of $22,278.21. [30] PVL owes money to the Canada Revenue Agency (the “CRA”). He did not file income tax returns, or pay the taxes he owed when he did file. PVL is not certain about the amount he owes, as some of the debt is statute-barred. He is not certain whether the CRA will try to collect what he does owe. [31] Currently, PVL lives in an apartment in North Vancouver. The income assistance he receives does not cover his rent. As a result, PVL has been selling his tools and will sell his truck in order to make ends meet.

One of PVL’s daughters brings him pre-cooked meals. He has basic cable television and internet. He does little for entertainment. He still carries a business debt of about $1,600. [32] When PVL turns sixty-five years old, he will receive financial supplements that will bring his monthly income to about $1,300 per month. He intends to use his inheritance to buy a small condominium so that he can have a modest lifestyle in his retirement. [ 47 ] At the time of the application PVL was in receipt of income assistance and unable to work.

He was also anticipating receiving an inheritance. [ 48 ] The decision of Judge Buller goes on to state: [33] Counsel for PVL submitted that the evidence shows that there has been a material and long-lasting change in PVL’s income. PVL has never actually earned the income imputed to him. His incomes have been below the threshold for paying child support under the Guidelines. PVL has never had the ability to pay the amounts that have been ordered, although PVL acknowledges his obligation to support his children. PVL does not have any hidden income or assets. The amount that PVL will inherit is uncertain.

He may face collection of his owed income tax. PVL lives in poverty and his only hope for a home in his retirement is his inheritance. [34] PVL’s counsel submitted that I ought to take a poverty-based approach, being consideration of PVL’s standard of living and conclude that it would be grossly unfair to PVL not to cancel the arrears. [ 49 ] The court went on to say: [45] PVL will inherit some money from his father’s estate. Although the exact amount is not known, the range provided would be sufficient to pay the arrears.

PVL’s obligation to the CRA is not clear on the evidence. [ 50 ] After consideration of the caselaw, the court concluded: [51] I accept that PVL does not have the present ability to pay the arrears. He will, however, be able to pay the arrears in the future. Nonetheless, would it be grossly unfair to require that PVL pay the arrears from his inheritance and forego his retirement plans? In L.B. v.

J.K. , [2012] BCPC 231, my colleague Judge Hamilton wrote: “So, when a parent comes to court having failed in their duty to their child, deprived the child of that which the child is entitled to receive but cannot enforce, and disobeyed a court order, our courts will not condone that parent’s behaviour unless, and only unless, to insist that the parent fulfil his or her duty would be grossly unfair. For these reasons the grossly unfair test is not an easy test to meet.” (para. 59) [52] In my view, the importance of PVL’s obligation to support his children outweighs the importance of his plans for retirement.

His obligation to support his children precludes a “poverty approach”. It would be grossly unfair, especially to PVL’s children to reduce or cancel the arrears of child support. [ 51 ] The decision in J.P. v. P.V.L. (supra) , came to my attention after the trial concluded and I sent a copy to each of the counsel for their submissions, which I have received. [ 52 ] Counsel for P.K.M. sought to distinguish the case, focusing on evidence that P.K.M. had a material change in circumstances, unlike the payor in the J.P. v.

P.V.L. decision. [ 53 ] Counsel for S.G.M. argued that the evidence before me did not establish a material change, and that the poverty-based approach, as referred to in the J.P. v. P.V.L. decision, should be rejected by me. Counsel also argued that the receipt of an inheritance should be considered when determining whether there is an ability to pay the support arrears.

[ 54 ] The receipt or anticipated receipt of an inheritance has been cited as a factor in refusing to cancel arrears, whether in full or in part, in the following cases: B.F. v. J.F. 2014 BCSC 1892 Labell v. Labell 2006 BCCA 45 Lewis v. Lewis 2011 BCSC 372 [ 55 ] As stated in Earle v. Earle (supra) , at paragraph 26: Not being able to pay now is not a valid legal reason to cancel or reduce arrears. They will only be cancelled if the person is unable to pay now and will be unable to pay in the future. [ 56 ] Because of P.K.M.’s inheritance he is able to pay the support arrears now.

Accordingly, I find that it is not grossly unfair to refuse to cancel or reduce the support arrears and the arrears of $20,703.24 will remain payable. IS STATUTORY INTEREST OWED ON THE ARREARS? IF SO, SHOULD THE INTEREST BE CANCELLED OR REDUCED? [ 57 ] Statutory interest on support arrears is due pursuant to

section 11.1 of the Family Maintenance Enforcement Act . The FMEP records show that statutory interest of $73.87 has been charged to P.K.M. as of April 3,

Section 6.4 of the Regulations to the Act provides that interest is not to be charged when a person is in receipt of income assistance. The FMEP records show that interest was only charged for the months of October and November 2011. This suggests that P.K.M. was for some reason not in receipt of income assistance during that time. I do not have an explanation for why his income assistance benefits lapsed for those two months. [ 58 ] Section 174(4) of the Family Law Act allows me to cancel interest that accrues under the Family Maintenance Enforcement Act only if arrears have also been cancelled.

I have cancelled arrears and so it is open to me to also cancel the statutory interest. Given my finding though that P.K.M. has the present ability to pay the remaining arrears as well as the interest, it would not be grossly unfair to refuse to cancel the interest, which is intended to be small compensation for S.G.M. for the delay in receiving her court-ordered support payments. Accordingly I will not cancel the statutory interest. ARE STATUTORY DEFAULT FEES OWED? IF SO, SHOULD ANY STATUTORY DEFAULT FEES BE CANCELLED OR REDUCED? [ 59 ] Statutory default fees are assessed pursuant to

section 14.4 of the Family Maintenance Enforcement Act .

Section 14.4(6) allows a court to cancel or reduce default fees if the court reduces or cancel arrears. The FMEP record of the arrears shows that no fees have been assessed against P.K.M. This is likely because no fees are assessed when a person is in receipt of income assistance, pursuant to

section 14.4(4)(

b) of the Family Maintenance Enforcement Act . As no fees are owed I need not concern myself with this question.

SUMMARY [ 60 ] I order as follows: 1. The arrears of support payable by P.K.M. to S.G.M. pursuant to the order of His Honour Judge Gillis dated November 20, 2002 are fixed at $20,703.24 plus statutory interest of $73.87, for a total of $20,777.11. 2. The order of His Honour Judge Gillis dated November 20, 2002 is cancelled effective May 12, 2015. 3. The Director of Maintenance Enforcement is directed to release to S.G.M. the sum of $20,777.11. 4.

The Director of Maintenance Enforcement is directed to release the balance of any funds held in relation to this matter to P.K.M. [ 61 ] Counsel for S.G.M. will prepare the order and submit it to counsel for P.K.M. for approval as to form before having it filed with this court. I also direct counsel for S.G.M. to send a copy of these Reasons for Judgment and a copy of the entered order to the Director of Maintenance Enforcement to facilitate the release of the funds. ______________________ The Honourable W. Lee Provincial Court Judge