L.L. v. T.H., 2019 BCPC 86

Citation: L.L. v. T.H. 2019 BCPC 86 Date: 20190109 File No: 20143 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.L. APPLICANT AND: T.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. LEVEN Counsel for the Applicant: S.L. Specht Counsel for the Respondent: M. Katerberg Place of Hearing: Fort St. John , B.C. Dates of Hearing: July 24, 2018 and November 13, 2018 Date of Judgment: January 09, 2019

[ 1 ] These are my reasons in the matter of L.L. and T.H. Court file number 20143 Fort St. John Registry. The hearing proceeded on July 24 and November 13, 2018. Both L.L. and T.H. testified in these proceedings. ISSUES [ 2 ] L.L. seeks the following relief: 1. An order for retroactive child support for the parties’ two children to January 1, 2012; 2. An order for retroactive

Section 7 expenses, specifically daycare costs for the parties’ two children to January 1, 2012. 3. An order for prospective child support for the parties’ two children. [ 3 ] T.H. opposed L.L.’s applications for retroactive child support and retroactive

Section 7 expenses. BACKGROUND [ 4 ] The parties were in a common-law relationship from December 2006, until January 10, 2010. Two children were born of that relationship: A.W.H. on [omitted for publication]; and A.E.H. on [omitted for publication]. [ 5 ] L.L. initially filed an application to obtain an order in these proceedings on June 9, 2010, for joint custody, joint guardianship, child maintenance, primary residence for the children, and payment of one half of extraordinary expenses for the children.

In this application, L.L. stated that she believed T.H.'s gross annual income to be $100,000 because this had been his average income over the past few years. [ 6 ] The parties entered into a separation agreement on June 9, 2010, which agreement was filed in Provincial Court on June 21, 2010 (“the Agreement”). The Agreement gave the parties joint custody but gave L.L. primary residency of the children.

The Agreement declared T.H.'s income to be $105,000 annually and required him to pay the sum of $1,508 per month to L.L. for the support of the two children pursuant to the Federal Child Support Guidelines (“Guidelines”) . The Agreement made no mention of special or extraordinary expenses. Despite the separation in January 2010, child support payments by T.H. were to commence on September 1, 2010. The Agreement also dealt with the division of debts and assets as well as the sale of the matrimonial home. All debts and assets were divided relatively equally.

The precedent separation agreement was purchased at a stationery store and neither party received independent legal advice before signing the Agreement. [ 7 ] The parties filed an amended separation agreement on August 2, 2011, which reflected a change in T.H.'s Guidelines income from $105,000 to $95,000 (“the First Amendment”). This amendment was initiated by T.H. and it reduced the monthly amount of child support payable by T.H. from $1,508 to the Guidelines appropriate amount of $1,300 per month based on his new declared income of $95,000.

This reduction in T.H.'s child support payments came into effect on July 1, 2011. Clause 7(

a) of the First Amendment states that “agreement to be re-evaluated April 30 of each calendar year or significant change in income if required”. Clause 7(

b) of the agreement states “father agrees to pay 50% of all mutually agreed upon extracurricular activities for the children including dental and medical”. [ 8 ] The Agreement was then once again amended on November 1, 2011, and filed on November 4, 2011 (“the Second Amendment”). This further amendment gave T.H. reasonable and liberal access to the children for 35% of each calendar month and reduced T.H.'s child support obligations for the children to $200 per month commencing on November 1, 2011. Although T.H. now had 35% parenting time with the children, this arrangement fell short of a shared custody situation of 40% where, under

Section 9 of the Guidelines , T.H.’s child support could have been reduced from the Guidelines amount. The Second Amendment came about because L.L. had found new employment at [omitted for publication] which required her to work shift work. As a result, she needed additional help with child care. The clause in the Second Amendment requiring T.H. to now pay $200 per month in child support was silent as to T.H.'s Guidelines income. Clause 7(

a) of the Second Amendment reads: “extracurriculars and medical expenses not covered by benefits split 50% (for children)”. [ 9 ] There were no further steps in the proceedings until T.H. filed an application seeking to vary existing orders or agreements on September 29, 2015. This application sought primary residence for the children and gave as a reason for the application “to provide a more stable consistent living environment for the children and ensure the children aren't displaced from Fort St.

John by either parent”. [ 10 ] L.L. filed a reply to T.H.'s application on October 13, 2015, disagreeing with T.H.'s application for primary residence of the children and seeking that T.H. pay Guidelines child support retroactive to November 30, 2011 because: “the amount needs to be in accordance with child support guidelines”. [ 11 ] On January 28, 2016, the parties attended a family case conference. The child support payable by T.H. was adjusted by way of an interim order from $200 per month to $1,478 per month commencing on February 1, 2016. That order was silent as to T.H.'s Guidelines income. A

Section 211 report was ordered and the matter was adjourned for a further case conference awaiting receipt of the

Section 211 report. [ 12 ] The parties attended a further family case conference on February 1, 2017, and consented to another interim order. Here, the parties agreed to equal (50%) parenting time for both children. They also agreed that L.L. had a Guidelines income of $54,000 and T.H. had a Guidelines income of $109,000. The offset amount of child support payable by T.H. to L.L. was set at $774 per month.

Payments commenced on May 1, 2017. [ 13 ] The February 1, 2017 order also required T.H. to pay L.L. 75% of net medical and dental expenses for the children and 75% of the children's special or extraordinary expenses for amounts that exceeded $100, excluding childcare expenses with such payments to also commence on May 1, 2017, and to continue on the first day of each and every month thereafter. The issues of retroactive child support, special and extraordinary expenses and childcare expenses were adjourned for hearing.

THE LAW [14] Section 147(1) of the Family Law Act states that “each parent of a child has a duty to provide support for the child”. [15] In the case of Earl v Earl, (BCSC) the Hon. Mdm. Justice Martinson of the Supreme Court of BritishColumbia wrote the following: [16] Parents have a joint and ongoing legal obligation to support their children. It is considered such an important obligation that adivorce cannot be granted until parents make satisfactory arrangements for the care of their children. [17] It is the right of the child, not the parent with custody, who has the right to maintenance.

This has long been the case and hasbeen confirmed in the Federal Child Support Guidelines. The first objective of the Guidelines is to establish a fair standard of supportfor children that ensures that they continue to benefit from the financial means of both spouses after separation. [18] The payment of maintenance is based on ability to pay. That means that it is based not only on what the parent does earn but alsowhat the parent can earn.

The result is that parents have a legal obligation to earn as much as they are capable of earning to meet theirobligation to support their children. [16] Section 148(3) of the Family Law Act states that: On application by a party, the court may set aside or replace with an order made under this division, all or part of an agreementrespecting child support if the court would make a different order on consideration of the matters set out in

section 150 [determiningchild support]. [17]

Section 150 of the Family Law Act states the following: 1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the childsupport guidelines. 2) Despite subsection (1), a court may order child support in an amount different from that required by the child supportguidelines if

a) The parties consent under

section 219 [persons may consent to order being made] or have an agreement respecting childsupport, and

b) The court is satisfied that reasonable arrangements have been made for the support of the child. 3) The court must consider the child support guidelines for the purpose of subsection (2) but must not consider arrangementsmade for the support of the child to be unreasonable only because the amount required under the child support guidelines differs fromthose arrangements. 4) Despite subsection (1), a court may order child support in an amount different from that required by the child supportguidelines if satisfied that

a) An agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property otherthan an agreement respecting child support benefits the child directly or indirectly or that special provisions have otherwise been madefor the benefit of the child, and

b) Applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions. 5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines,it must give reasons for doing so. [18] I have been referred to the case of G.J.L. v. M.J.L. 2017 BCSC 688 for authority that a child support agreement or supportpayable thereunder can be varied retroactively by applying the principles under

Section 150 of the Family Law Act. [19]

Section 7 of the Federal Child Support Guidelines reads as follows: 7(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of thefollowing expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's bestinterests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spendingpattern prior to the separation: (

a) childcare expenses incurred as a result of the custodial parent's employment, illness, disability or education or training foremployment; [20] The leading case for retroactive child support and

Section 7 expense variation applications is the Supreme Court of Canada’sdecision of D.B.S. v S.R.G., 2006 SCC 37 (D.B.S.). In determining whether retroactive child support and

Section 7 expenses are to beawarded, a court must consider the following test established in D.B.S. at paragraphs 94 to 116: 1. Whether there is any reasonable explanation for why appropriate child support (or

Section 7 expenses) were not sought earlier; 2. The conduct of the payor parent as to blameworthy conduct; 3. The circumstances of the children including whether the children have suffered financially;

4. Whether a retroactive award of child support (or

Section 7 expenses) will cause the payor hardship. [21] Beginning at paragraph 95 of the D.B.S. decision, Bastarache J. comments as follows: [95] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with thepurposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactiveawards may also cause hardship to a payor parent in ways that a prospective award would not.

In short, while a free-standing obligationto support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevanttime period has passed. [96] Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of thelaw. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairnessalso demands that they not be gratuitously disrupted.

Prospective and retroactive awards are thus very different in this regard.Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it. [97] Lest I be interpreted as discouraging retroactive awards, I also want to emphasize that they need not be seen as exceptional. Itcannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result inunpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability uponhim/herself.

A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts ofsupport first arose. . . . [99] I will now proceed to discuss the factors that a court should consider before awarding retroactive child support. None of thesefactors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in noblameworthy conduct.

Thus, the British Columbia Court of Appeal has ordered retroactive support where an interim support award wasbased on incorrect financial information, even though the initial underestimate was honestly made: see Tedham v. Tedham (2003), 20B.C.L.R. (4th) 56, 2003 BCCA 600. At all times, a court should strive for a holistic view of the matter and decide each case on the basisof its particular factual matrix. . . . [117] Once a court determines that a retroactive child support award should be ordered, it must decide the amount of that award.

Thereare two elements to this decision: first, the court must decide the date to which the award should be retroactive, and second, the courtmust decide the amount of support that would adequately quantify the payor parent’s deficient obligations during that time. … ANALYSIS [22] I now turn to the four factors established in D.B.S. to determine whether a retroactive child support award and retroactiveSection 7 expenses should be ordered. Is there any reasonable explanation for why appropriate child support or

Section 7 expenses were not sought earlier? [23] It is important to consider why L.L. saw fit to accept $200 a month in child support in the Second Amendment on November 1,2011, and continue to accept such support payments until her application for retroactive support on October 13, 2015. [24] L.L. testified that she was in a relationship which ended at about this time. The arrears in child support alone claimed during thisperiod are over $58,000.

Some of these arrears are due to fluctuations in T.H.'s income but the vast majority are due to the fact that T.H.paid, and L.L. accepted, $200 in child support and not an amount of support based on his Guidelines income. [25] In D.B.S., Bastarache J. states the following at paragraph 101: [101] Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practicalconcerns associated with a child support application.

They should not hesitate to find a reasonable excuse where the recipient parentharboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absentany such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked thefinancial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), (ON SC), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245.

On the other hand, a recipient parent will generally lack areasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply. [26] In Brown v Kucher 2015, BCSC 1258 the Hon. Mdm.

Justice Fisher wrote the following: [36] For the child, a retroactive award is a poor substitute for past obligations not met, which is why recipient parents must ask actpromptly and responsibly in monitoring the amount of child support paid: Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent thefailure of both parents to fulfil their obligations to their children. (Quote from D.B.S para 103) [38] Mr.

Brown submits that an applicant's reasons for delay must be objectively reasonable and the longer the delay, the more robustthe excuse must be to qualify it as reasonable. He submits that decisions of this and other superior courts have required evidence morespecific than general emotional fragility or un-particularized allegations of abusive conduct to constitute reasonable excuse for delay. [39] Generally, I accept this submission. In Kramer v Kramer, 2014 ONSC 5952, the court noted at paragraph 100 that the word“reasonable” requires an objective approach.

I agree with this, in that there should be some objective basis on which to assess an

applicant's reason for delay: [ 27 ] L.L. argues that she did not seek Guidelines child support or

Section 7 expenses earlier for the following reasons:

a) She did not receive legal advice before signing the amended agreement in November 2011, and until October 15, 2015, when she filed her claim for retroactive support;

b) She was terrified to ask T.H. for money because she knew it would make him angry and she wanted peace for her sake and for the sake of the children. [ 28 ] With respect to the first reason, L.L. argues that the legal advice she had as it related to child support at the time the parties came to their initial agreement, was limited to a pamphlet from Staples and that this did not change until she obtained legal advice from counsel late in 2015.

T.H. argues that L.L. nevertheless had a good understanding of T.H.'s legal child support obligations because she had brought an application in court for support, had entered into a separation agreement requiring T.H. to pay guideline support based on his income and had once varied this agreement to reflect a change in T.H.'s income.

It is also noteworthy that the agreement in its original and amended forms contains the following disclaimer: The husband and wife further acknowledge and agree that being aware of their entitlement to full and independent legal advice, they have, none the less, chosen to waive same and elect to proceed with the execution of this agreement absent such advice. [ 29 ] I am not satisfied that L.L.'s delay in bringing this application can be justified by not having had or sought independent legal advice. [ 30 ] With respect to the second reason, namely L.L.’s apprehension to approach T.H. for money, she testified as follows: Q.

I am going to ask you, why did you not file for child support prior to October 2015? A. I was scared. Q. Scared of what? A. The situation. I didn't want - I don't want to be here. I don't want my children to have to deal with this. I don't want to deal with this. They feed off of my emotions. They feed off T.H.'s emotions. I was - nobody wants to go to court. I especially did not want to go to court. And then after he filed, I figured well we’re already in the process, I guess now is a good time then. Q. Okay.

Were you concerned about how T.H. would react prior to October 2015 or September 2015 if you sought a court application for child support? A. I knew he would be angry. Money has always been an issue for T.H. and me. And when there is little monetary value between us, for example, dropping down to twenty – 200 a month we get along and that's fantastic, I love being able to get along with him. But as soon as money comes into the picture, then it's – the situation is – I feel like he is angry at me or he resents me. He treats me differently. I am treated differently also in front of the kids.

And that's not fair to them either. I just – I just want peace, that's all I want. [ 31 ] On the issue of

Section 7 expenses, L.L. testified as follows: Q. And have you kept the receipts for the kinds of things that you think he should pay? A. No, I did not. Q. And I'm going to suggest to you that that's because there wasn't an expectation of any payment for those kinds of things, right? A. That's because I was terrified to ask him for money. [ 32 ] As an example of not being able to get along with T.H. when money was an issue, L.L. filed a text message received from T.H. on February 16, 2016 after his child support payments were increased at the January 28, 2016 family case conference.

That text message is contained in Exhibit 5 at Tab 28, is dated February 16, 2016 and contains the following: T. Kids will be ready to go around 7 L. Assuming u want me to come get them? T. As you are enjoying 28% of my income now, I'm sure you can spend a bit of my hard earned money on coming to get the kids. [ 33 ] This text message was sent more than two weeks after the family case conference and in it, T.H. clearly expressed resentment for his increased child support payments. Counsel for L.L. has suggested that this text speaks volumes about T.H.'s attitude towards child support.

In cross-examination, T.H. admitted that the message was emotionally charged and apologized for it. I agree that the message suggests that T.H. at the time the text was sent, displayed a poor attitude towards his child support obligations. [ 34 ] L.L. testified in direct examination that there was also an angry email sent by T.H. In cross-examination, a two page email exchange was shown to L.L. and she agreed that this was the angry email to which she referred. That email was marked as Exhibit 1 in these proceedings and was dated January 28, 2018. It contained suggestions from T.H. regarding the parenting

schedule and included a proposal that the parties simply let the courts decide on an appropriate parenting schedule. L.L. responded saying she preferred that the court resolve the issues. I am unable to find anything “angry” in this email. [ 35 ] Only two electronic communication exhibits were filed in support of L.L.'s contention that T.H. made her terrified to ask for

money. L.L. was unable to particularize any verbal communications between herself and T.H. where T.H. intimidated her when issues ofmoney arose. T.H. testified that communications between himself and L.L. were very limited after their separation. I accept his evidencethat there was a general lack of communication between the parties.

If T.H. was as difficult to get along with as L.L. suggests, I wouldhave expected to receive some further evidence on this point [36] In this case, although the delay was less than four years, significant amounts of unpaid support accrued in part as a result ofL.L.’s delay in bringing her application. Although four years may not in and of itself be a lengthy temporal delay, I find the delay lengthyin this instance, considering the amount of unpaid support being accrued. L.L. may very well have had a subjective reluctance to askT.H. for money.

I do not find it objectively reasonable in all of the circumstances that L.L. waited until she did to bring her application. Ialso note that her application was only brought in reply and as a counterclaim to T.H.'s application for primary residence of the children. Ifind that she has not established an objective reasonable explanation for why increased child support or

Section 7 expenses were notsought earlier. The conduct of the payor parent. [37] In D.B.S., Bastarache J. writes the following: [105] This factor approaches the same concerns as the last one from the opposite perspective. Just as the payor parent’s interest incertainty is most compelling where the recipient parent delayed unreasonably in seeking an award, the payor parent’s interest in certaintyis least compelling where (s)he engaged in blameworthy conduct.

Put differently, this factor combined with the last establish that eachparent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case. [106] Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactiveaward. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context.

I wouldcharacterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to anappropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), (ON CA), 72 O.R. (3d) 561, at para. 85, where children’s broad “interests” — rather than their “right to an appropriate amount ofsupport” — were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ supportobligations.

Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger childsupport payments: see Hess v. Hess (1994), (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt(2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuade him/her frombringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 , 178 A.R. 119 (C.A.).

And a payor parentcannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. [107] No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active toavoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, apayor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from suchconduct: see A. (J.) v.

A. (P.) (1997), (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz. [108] On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging inblameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny thatobjective indicators remain helpful in determining whether a payor parent is blameworthy.

For instance, the existence of a reasonablyheld belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging inblameworthy conduct.

In this context, a court could compare how much the payor parent should have been paying and how much (s)heactually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were beingmet. … [38] In D.B.S., Bastarache J. gives as examples of blameworthy conduct where a payor parent hides their income, intimidates arecipient parent in order to dissuade them from bringing an application for support or where a payor parent misleads a recipient parentinto believing that his/her child support obligations are being met when (s)he knows that they are not. [paragraph 106] [39] I do not find that T.H. hid his income, intimidated L.L. in order to dissuade her for bringing an application, or that he in anyother way misled her into believing that she was receiving an appropriate amount of support.

While T.H.’s income fluctuated over theyears, the evidence suggests that his average annual income from 2010 to 2018 was $100,970. The evidence also suggests that L.L. wasaware at least of his approximate earnings. [40] I do, however, find that T.H. engaged in blameworthy conduct by failing to meet his obligations to his children under the childsupport guidelines.

T.H. was sufficiently aware of his obligations to his children and of the guidelines because he had agreed to paysupport pursuant to the Guidelines in the initial separation agreement and had taken steps to lower his support obligations with the firstamended agreement when his income decreased. In cross-examination, he acknowledged his understanding of the Guidelines and hisobligation to pay an appropriate amount of support.

Despite agreeing to increased parenting time with the children to assist L.L. withchild care when she took her new job, the reduction of support from the average Guidelines amount of $1,490 to $200 a month is, toquote Bastarache J. in D.B.S., “privileging the payor's own interests over his or her children's rights to an appropriate amount of support”.I rely on Bastarache J's comments at paragraph 108 in D.B.S. that T.H. could not possibly have held a reasonable belief that he wasmeeting his child support payments.

The difference between what he was paying and what he should have been paying was so great thatit amounts to objective evidence of blameworthy conduct. The circumstances of the children including whether the children have suffered financially [41] L.L. testified that it has been a financial struggle for her and the children since 2011: Q. Just in terms of financial situation, I am going to ask you what, if any, financial hardship did you and the kids suffer between2011 and January 2016?

A. Just living paycheck to paycheck barely. We couldn't do anything. We couldn't go anywhere. We couldn't always eat out at fancy restaurants. We couldn't – I couldn't engage them in extracurriculars. I mean I – even just support in clothing, I would wait for my sisters or a friends and family members to do hand-me-downs and not just for the children, but for myself. Most of my money went to rent, and daycare, and there really was never much left over for anything else. A. Struggling paycheck to paycheck is not – it's hard to do.

You just survive day to day because you have kids and you try to put on a strong face. And you move forward and you find ways to make it. I don't ever want to do that again. But it has probably been the toughest part of my life because I didn't have any support. I had family here, but they don't make millions of dollars. They could help me with what little they had. And I couldn't ask for help from him because it became an issue all the time. And I didn't want to fight. I just wanted to get along. And trying to maintain a job while trying to deal with daycare all of the time was not easy.

So, no, I don't ever want to do that again. Q. Did you observe in terms of the children's situation any difference between your household and T.H.'s household during this period of time? A. He – he could do more. He could splurge for more. Basically, he could have his lobster dinners, and his seafood nights, and he can go on fishing trips, and he can go camping. And he has got more freedom with the children which is great for them. I don't. I am still trying – I have been trying to save up for a house for years, and that's just not going to happen. I am trying to take them on a vacation to go camping.

I have had very few visits – or visits with the kids and it's usually just to go visit a family member. That is not a vacation, that's ... or just a lot more limited, I guess, in what we can do together. Q. Do you believe that there would be any benefit to your children from the payment of these arrears? A. Definitely. Q. What kind of benefits? A. I can actually take them on a vacation. I could – I could buy them those things that they always ask for. I can put them in extracurriculars. And I – I can be there to enjoy it with them and not have to stress or worry.

I could give them the home that we always talked about, the ones that they are going to pick and paint; paint their colours. It would – that would be a stable environment. That is what I have always wanted to be able to provide for those kids, and that is not something I have not been able to do it yet. [ 42 ] I accept L.L.’s evidence that she struggled financially and the children did not have the standard of living in her household that they should have and would have had had T.H. paid support pursuant to the guidelines from 2011 to 2016. [ 43 ] I do however, keep in mind Mdm.

Justice Fisher's comments in Brown v Kucher (infra) at paragraph 36: For the child, a retroactive award is a poor substitute for past obligations not met, which is why recipient parents must act promptly and responsibly in monitoring the amount of child support paid. [ 44 ] T.H. asks me to consider that the imposition of a large retroactive award against him may in fact be contrary to the best interests of the children. Since the family case conference of January 28, 2016, he has been paying appropriate amounts of child support.

Since the second family case conference on February 1, 2017, he has had 50% of the parenting time for the children and has been paying an appropriate amount of offset child support. This argument is somewhat compelling and must be considered in light of whether a retroactive award will cause hardship. [ 45 ] T.H. also testified that he considered the children’s living environment with L.L. to be unstable because they moved so much. This was the reason for his application for primary residency filed on September 29, 2015. In cross examination he gave the following evidence: Q.

In 2015 you brought an application for primary residence? A. Yes I sought a more stable living environment for the children, they moved often. Q. You knew they had to move because L.L. was struggling financially. A. I was looking for 50/50. [ 46 ] In considering the circumstances of the children, I consider that they are still relatively young now aged 11 and 9 and that they would benefit from increased stability in both households should some additional funds be made available to them while in the care of L.L. Will a retroactive award for child support and

Section 7 expenses cause the payor hardship? [ 47 ] In D.B.S. , Bastarache J. writes the following: [114] While the guidelines already detail the role of undue hardship in determining the quantum of a child support award, a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified. [115] … The calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet.

On this point, courts should consider that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a children first policy where it would cause hardship for the payor parent's other children. In short, retroactive awards disrupt payor parent's management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact.

[ 48 ] I am mindful that a retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. I am also mindful that both children are now residing with T.H. 50% of the time and that a significant retroactive award may also be a hardship on them while they are residing with him. On the other hand, the children continue to reside with L.L. 50% of the time and I accept her evidence that the children would benefit from some additional monies while they are residing with her. [ 49 ] T.H. testified that he works in the oil and gas industry and is licensed as a [omitted for publication].

He considers his career stable and he expects his 2018 income to be close to $100,000 with the potential to earn $120,000 in the future. He recently incurred a line of credit or student loan for $59,450.00 to become trained as a [omitted for publication]. He testified that he is currently paying interest only on that loan. He also carries a vehicle loan and has been loaned about $10,000 from a relative. He admitted in his evidence in cross-examination, that he is not paying rent or a mortgage for the residence in which he now resides and is the registered owner.

He owns a 1/3 share of that home as a joint tenant with his uncle and Grandfather and expects to inherit his Grandfather’s share. He has a partner who is sharing some of the expenses relating to the upkeep of their home. He admitted in cross-examination that he has been on notice since October 2015 that L.L. is seeking a significant sum of money from him for retroactive child support and that he is aware of the approximate amount she seeks.

He admitted that he has been planning his financial affairs accordingly. [ 50 ] L.L. suggests that T.H. has previously been able to borrow monies and could do so again to satisfy any debt he may owe to her. I accept that T.H. has stable lucrative employment, owns his own home outright and has manageable debts. I find that he could pay some amount in retroactive child support and/or

Section 7 expenses without causing significant hardship to himself or his children. APPLICATION OF D.B.S. FACTORS TO THIS CASE. Retroactive Child Support [ 51 ] L.L.’s claim for retroactive child support accrued between January 1, 2012, and April 30, 2017, is $63,852. T.H.'s income between 2012 and February 1, 2017 is not contentious nor is the amount of child support he has paid.

The difference between the amount T.H. paid and what he should have paid pursuant to the guidelines between January 1, 2012 and February 1, 2017 appears in Exhibit 5 at Tab 27 and is in fact $63,852 by my calculation. [ 52 ] I found that L.L. did not have a reasonable excuse for not seeking an appropriate amount of child support sooner. On the other hand, I find that T.H. did not fulfil his child support obligations between January 2012 and January 2016 by paying only $200 per month instead the guideline average of $1,490 a month and that this constituted blameworthy conduct.

I also consider the circumstances of the children and the argument that they may suffer financially from a retroactive payment because they are now in T.H.'s care 50% of the time. I consider L.L.’s evidence, which I accept, that the children suffered hardship as a result of T.H. not fulfilling his child support obligations for a number of years. I also consider and accept her evidence that the children would benefit in her home from a retroactive award. T.H. is financially stable and can afford to pay a retroactive amount.

Considering all the factors holistically, I find that T.H. should pay retroactive child support. Retroactive

Section 7 Expenses [ 53 ] L.L. is claiming a total of $14,733.90 in retroactive

Section 7 expenses from 2012 through 2017 for child care costs. In direct examination, L.L. stated the following: A. I had asked him if he would be willing to help out with daycare, and his response was to take the children, which of course I said, “no”, because he was trying to take full custody and I was then served papers. [ 54 ] T.H. filed his application seeking primary residence for the children on September 29, 2015. There is no evidence that L.L. raised the issue of daycare costs with T.H. at any earlier time. [ 55 ] In cross-examination, L.L. testified as follows: Q.

Did you ever at any time send to T.H. receipts for daycare and ask him for payment? A. No. Because any time money was brought up, it was an argument and he told me that he was not a cash cow. [ 56 ] T.H. testified that he first received receipts for daycare as part of L.L.'s financial statement filed on January 31, 2017. He testified that he first saw those receipts at the family case conference on February 1, 2017. [ 57 ] The First Amendment of August 2, 2011, and Second Amendment of November 1, 2011 state that T.H. agreed to cover 50% of extracurricular activities and medical and dental.

The agreements were silent about child care. It is clear on the evidence that T.H. never asked L.L. for daycare receipts and never volunteered to pay his share of such costs. What is also clear, is that L.L. on her own evidence, never raised the issue of daycare costs with T.H. until around September 2015. She never sought reimbursement for daycare expenses and never provided T.H. any receipts until she attached them to her financial statement filed January 31, 2017 and disclosed them at the family case conference on February 1, 2017. [ 58 ] In Semencik v.

Saunders , 2011 BCCA 264 , the Court of Appeal noted at paragraph 57: … In the case of

Section 7 expenses, it is the recipient parent who knows the details of the expenses. If that parent does not communicate that information to the payor parent, the payor parent cannot fulfil his or her legal obligation to contribute… [ 59 ] Unlike child support which is presumptive, Section 7(1) of the Guidelines is discretionary. T.H. did not engage in any blameworthy conduct by not paying daycare costs to L.L., since he did not know the details.

Considering the four factors in D.B.S. , I will not require T.H. to pay any amount of retroactive daycare costs until after the family case conference held on February 1, 2017. [ 60 ] I have come to this decision in part because I will be requiring T.H. to pay an amount of retroactive child support and that

fairness limits the overall amount that he should be required to pay. Child care expenses are legitimate, claimable expenses if they are incurred pursuant to Section 7 (1)(

a) of the Guidelines . After February 1, 2017, T.H. will pay an offset proportionate amount of child care costs for the children. I leave it to counsel to do the calculations and if necessary, the matter can be rescheduled before me for submissions. Retroactive Child Support Award [ 61 ] Having found that a retroactive child support award should be ordered, I must now decide the amount of the award. As stated by Bastarache J. in D.B.S. , I must first decide the date to which the award should be retroactive and second, decide the amount of support that would adequately quantify T.H.'s deficient obligations.

Date Of Retroactivity [ 62 ] At paragraph 118 in D.B.S. , Bastarache J. indicates that the date of retroactivity should generally be the date of effective notice. At paragraph 121 he writes as follows: …By effective notice, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be renegotiated.

Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. [ 63 ] At paragraph 123, Bastarache J. writes as follows: It will usually be inappropriate to make a support order retroactive to a date more than three years before formal notice was given to the payor parent. [ 64 ] At paragraph 125 Bastarache J. writes: The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start.

This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that he reasonably believed his/her child's support entitlement was being met. … The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when the circumstances changed materially. [ 65 ] I have found that T.H. engaged in blameworthy conduct by reducing his child support payments to $200 a month in November 2011.

From January 2012 until February 1 of 2016, he paid only $200 per month when the Guidelines required him to pay an average of $1,490 per month. I therefore find that circumstances changed materially in November 2011 when the amended separation agreement was signed. This claim dates back to January 2012 and I find that to be the date of retroactivity.

Amount Of Support Payable [ 66 ] At paragraph 130 in D.B.S. , Bastarache J. writes: …Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case. [ 67 ]

Section 150 of the Family Law Act requires child support to be determined in accordance with the Guidelines unless there is a principled reason to order otherwise. [ 68 ]

Section 9(

c) of the Guidelines requires me to consider in a shared custody arrangement: The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 69 ] I am also mindful of Bastarache J.’s comment at paragraph 130 in D.B.S. that I may affect the quantum of a retroactive award by altering the time period that the retroactive award captures. [ 70 ] I have found that T.H. engaged in blameworthy conduct however, I have also found that L.L. did not have a reasonable excuse for delaying her application.

Also, this case presents a unique set of facts in that the children are now in the 50% care of T.H. T.H. is currently paying an appropriate amount of offset child support and I must assume that the children are now enjoying a relatively equal standard of living in both households. I consider that any award will benefit the children while they are in the care of L.L. but may be to their detriment while they are in the care of T.H. Of particular relevance is the evidence of L.L. where she indicated she could use retroactive child support payments to help purchase a home which she has to date been unable to do.

T.H.'s evidence was that he brought his application for custody of the children in September 2015 because the children moved often and the living situation with L.L. was unstable for them. The children would receive a great benefit from the added stability should L.L. be able to purchase a home. T.H. is financially stable and should be able to afford to partially correct his past failed child support obligations. [ 71 ] I also received submissions from L.L. that I should consider imputing income on T.H. for periods of time when he was unemployed, underemployed or receiving training as a [omitted for publication].

I decline to impute any income on T.H. and find that changes to his employment were involuntary or were made in good faith to secure financial stability. L.L. argues that T.H. was able to invest a significant amount of money in becoming trained for his dream job as a [omitted for publication]. This was during a time when he was failing to meet his child support obligations.

Such stability now makes it more likely that he can pay an amount of retroactive support without such payment causing him significant hardship. [ 72 ] In all of the circumstances of this case, I consider it fair that T.H. pay to L.L. the sum of $50,000 of the $63,852 of claimed child support. This payment is intended to address all deficiencies and overpayments to May 1, 2017, including any prejudgment interest.

This amount shall be payable forthwith. After considering all of the evidence, I have reduced a claim for approximately $75,000 in retroactive child support and daycare expenses to $50,000. I have done so considering all of the factors established in D.B.S. and, in particular, overall fairness. I also feel strongly that this money should be made available to the children as soon as possible so they may receive the maximum benefit from it while in L.L.'s care. T.H. was able to enjoy a higher standard of living and able to retrain for his dream job while not paying appropriate amounts of child support.

He has also been on notice since October 2015 of this claim and has had time to arrange his financial affairs in the event that the claim against him was successful. He has been able to arrange his resources for other purposes and should be able to do so once again for the benefit of his children. If he is unable to pay this amount forthwith, a payment hearing can be scheduled before me. [ 73 ] I have also been asked to make an order for prospective child support.

I decline to do so because the interim order of Judge Bowry dated February 1, 2017, ordered an appropriate amount of offset child support payable by T.H. which payments commenced on May 1, 2017, and have continued monthly. That order also stated that the issues of retroactive child support and child care expenses only be set for a hearing. Although the child support in that order was on an interim basis, the order was based on non-contentious financial information. The order also contains a review clause requiring parties to exchange by no later than June 1 of each year their financial information.

Financial information for all of 2017 and 2018 should now be available and be exchanged between the parties. Any discrepancies between the guideline amounts and amounts paid including any overpayments since February 1, 2017 should be examined by counsel and settled by consent. [ 74 ] If a consent cannot be reached, or in the event that T.H. wishes me to consider a payment

schedule for the arrears, I invite the parties to reschedule the matter before me. [ 75 ] I have prepared written reasons and will make these available for counsel through the registry in due course. [ 76 ] I thank both counsel for their able assistance. ________________________________ The Honourable G. Leven Provincial Court of British Columbia