K.D.R. v. J.E.P. Date:, 2015 BCPC 108

Citation: K.D.R. v. J.E.P. Date: 20150213 2015 BCPC 0108 File No: 2115 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K. D. R. APPLICANT AND: J. E. P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: K. D. R. Appearing on their own behalf: J. E. P. Place of Hearing: Burns Lake , B.C.

Date of Hearing: November 14, 2013 and February 11, 2014 Date of Judgment: February 13, 2014 History [ 1 ] The parties had been in a relationship which produced two children, KJP born [removed for publishing] and KRP born [removed for publishing]. [ 2 ] An interim ex-parte order was made September 16 th , 2004 that JEP would have sole “custody and guardianship” of the two children. [ 3 ] Subsequently applications to vary custody and guardianship were brought along with competing applications for child maintenance. [ 4 ] On August 26 th , 2010 by consent an order was made.

It imputed annual income to KDR of $22,650. As per the Federal Child Support Guidelines KDR was ordered to pay $356/month in total for the two children.

The issue of retroactive support was adjourned to the trial of the issues. [ 5 ] October 28 th , 2010 the court ordered a report to be prepared on the views of the children to assist in determining with whom the children should live. [ 6 ] The Family Maintenance Enforcement Program (FMEP) became involved and there were several court appearances without any decision being made. [ 7 ] July 23 rd , 2013 by agreement, an order was made that KDR would be the primary caregiver for KRP and JEP would be the primary caregiver for KJP. [ 8 ] Further applications and court appearances occurred later in 2013 on a number of issues including an application by KDR to cancel any arrears of child support and by JEP to enforce the arrears of maintenance.

Evidence [ 9 ] KDR testified that she lives in Fort St. John, B.C. and that JEP resides near Topley B.C. [ 10 ] KDR testified that FMEP had filed a lien against her house concerning the arrears of maintenance. She had filed a financial statement July 23 rd , 2013 that was marked as Exhibit 1 in this hearing. [ 11 ] Within exhibit 1 was a print out of KDR’s FMEP account for the period January 14 th , 2011 to July 18 th , 2013. It showed that KDR’s child maintenance was up to date until May 1 st , 2012.

At that point arrears plus interest started to accumulate. [ 12 ] In November 2012 KDR started making partial payments, occasionally full payments and occasionally slightly more than the required $356/month payment.

As of July 18 th , 2013 the arrears were $2,592 plus $73.33 interest for a total of $2,665.33. [ 13 ] KDR testified that as of July 23 rd , 2013 order for parenting time it was agreed that neither parent would pay child support as each parent had one child living with him or her thereafter. [ 14 ] KDR testified with reference to her tax returns included in exhibit 1 that her annual income in 2010 was $48,605. In 2011, her annual income was $75,603 and in 2012 her annual income was $41,222. [ 15 ] KDR testified that she had not yet received her T-4s for 2013.

In exhibit 1 she had attached three pay stubs from her employer [removed for publishing] . The pay stub for July 19 th , 2013 showed a gross pay to that date of $32,711.20. [ 16 ] KDR testified that the arrears occurred when she lost her job.

She added that she lost the job as a [removed for publishing] because she had to attend in Burns Lake for a family matter during her work probationary period. [ 17 ] KDR testified that their son KJP lived with her from March through June 2012 and their daughter KRP lived with her throughout July and August 2012. [ 18 ] KDR also testified that she had high expenses in exercising contact with the children.

She added that she made 5 or 6 trips per year during the time that child support was ordered. [ 19 ] KDR testified that she had the children with her for 6-8 weeks each summer. [ 20 ] JEP testified that their son had “visited” with KDR from the end of March until the middle of June 2012 and that their daughter only started staying with KDR in September 2013 after the agreed time for her to live with her mother. The Law [ 21 ] The amount of child support payable is determined by use of the Federal Child Support Guidelines.

Once the annual income of the paying parent is decided the guideline table for each level of income for $10,820 upwards sets the monthly payment.

[ 22 ] Both

section 14 of the Federal Child Support Guidelines and

section 152 of the provincial Family Law Act allow the court to change, suspend or terminate order respecting child support if there has been a change in circumstances “that would result in a different child support order.” These sections also cover applications to vary arrears of maintenance and retroactively vary child support.

However, the case establishes that the onus of proof to retroactively increase arrears is much higher than to reduce arrears. [ 23 ] These variations are generally done each year if there are variations in the paying parent’s income to raise or lower the child support based on the previous year’s total income as set out in line 150 of the Federal Income Tax return. Analysis [ 24 ] During the time that child support was ordered, KDR had annual income more than double the income of $22,650 attributed to her.

She was temporarily unemployed in 2012 but her total income noted in line 150 of her 2012 Income Tax return was $41,222.06. From her 2013 pay stubs, her gross income until July 10 th , 2013 was $32,711.20. Accordingly her annual income for 2013 was more than the imputed income of $22,650. [ 25 ] The case law is clear that monthly drops in income are not the determining factor. Rather the annual income is the determining factor. [ 26 ] As well, KDR has suggested that her costs of visiting the children in Topley should be considered in reviewing the arrears.

Section 10 of the Federal Child Support Guidelines allows the court to vary child support if the payor would “otherwise suffer undue hardship.” Section 10(2) suggests that circumstances that may cause “undue hardship” are “unusually high expenses in relation to exercising access to a child.” [ 27 ] KDR testified using Exhibit 2 that her expenses for a trip to collect and return the children in August 2011 were $763. The number of times she attended from Fort St.

John to Topley to collect the children was disputed by JEP. [ 28 ] On a consideration of this evidence of expenses for the exercise of access, the court is not satisfied that the amounts create an undue hardship. In the case of Llewellyn v Llewellyn 2002 BCCA 182 our Court of Appeal held that even where the payor parent’s net income after paying child support was $1,278/month and there were “access” costs of $350 incurred three or four time a year that the hardship was not undue.

In the case at hand, KDR average monthly income is greater than $1,278 after the support payments. [ 29 ] KDR testified that she had their son in 2012 from March through June. JEP testified that their son was with his mother from the end of March until the middle of June.

In considering this “defacto” parenting time the court must balance the general principle that child support is calculated on annual income not on each month’s separate income against the equitable principle that there has been a temporary change in circumstances. [ 30 ] That consideration is further complicated by the fact that the child support ordered ($356/month) is less than the child support that could have been ordered based on KDR’ actual annual income had JEP made an application to vary in a timely manner. [ 31 ] Once it is determined, as it has been here, that the annual income of the paying parent is equal to or more than the imputed income the court can only cancel or reduce the arrears if the test in

section 174 of the Family Law Act is met.

Section 174 says that the court may only reduce or cancel arrears if it is satisfied that it would be “grossly unfair not to reduce or cancel the arrears”. The use of the term “grossly” imposes a degree of extraordinary unfairness, similar to “undue” greatly increasing the degree of prejudice when it is attached to hardship. [ 32 ] On a consideration of the s174 Family Law Act test and the factors listed above, the court is not satisfied that to not cancel or reduce the arrears is grossly unfair.

Accordingly, the court will not cancel or reduce the principle amount of the arrears. [ 33 ] However, the temporary gap in support payments was caused by unemployment and not a deliberate act of KDR. Accordingly, the court will cancel the interest on the arrears and fix the amount of the arrears at $2,592.00 [ 34 ] JEP had brought an application to enforce the arrears payments under s230 of the Family Law Act . The issues of parenting time and future child support have been resolved by the consent order of July 23 rd , 2013.

The child support was registered with the FMEP as they have intervened in several ways, including the filing of a lien on KDR’s property. KDR stated that she wished to have the arrears cancelled so she could consolidate her finances. This requires the removal of the lien on her property.

Accordingly, this court concludes that no further remedy under s230 or s231 of the Family Law Act is necessary at this time as alternate steps are being taken to collect. [ 35 ] To allow KDR time to take the necessary steps to settle the arrears and get her finances in order this court orders that the arrears of $2,592.00 are not payable until August 31 st , 2014 after which time interest as calculated by FMEP will accrue and other steps may be taken by FMEP and/or JEP to collect.

Order [ 36 ] The application by KDR to cancel the principle of the arrears is dismissed. [ 37 ] The interest on the arrears as calculated by FMEP is cancelled. [ 38 ] The amount of arrears is fixed at $2,592.00. [ 39 ] The payment of the arrears is suspended until August 31 st , 2014. [ 40 ] The application of JEP to enforce the collection of the arrears is dismissed.

__________________________ W. F. M. Jackson Provincial Court Judge