H.M. v. A.M., 2019 BCPC 371

Citation: H.M. v. A.M. 2019 BCPC 371 Date: 20191213 File No: 21696 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: H.M. APPLICANT AND: A.M. RESPONDENT APPLICATION TO CHANGE, SUSPEND OR TERMINATE ORDER OF MAY 25, 2016 REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. LEVEN

Counsel for the Applicant: P. Boles Counsel for the Respondent: K. Parker Place of Hearing: Dawson Creek , B.C. Date of Hearing: December 5, 2019 Date of Judgment: December 13, 2019 Introduction [ 1 ] Mr. M. brought an application to change, suspend or terminate the terms of an interim order of Judge Bowry granted on May 25, 2016, respecting child and spousal support. That application was originally brought by notice of motion, filed on June 30, 2017, and adjourned generally by consent on August 2, 2017. On September 18, 2019, Mr. M. brought an application to reset the matter for hearing. [ 2 ] Mr.

M. filed an affidavit on October 11, 2019, in support of his application (“Mr. M.'s first affidavit”). Ms. M. filed an affidavit on December 2, 2019 in opposition to the application (“Ms. M.'s affidavit”). Mr. M. filed a further affidavit in response on December 3, 2019 (“Mr. M.’s second affidavit”). No viva voce evidence was called. [ 3 ] The application was argued on December 5, 2019, and I reserved my decision to give written reasons. Background [ 4 ] The parties began a relationship in July 1995 and separated in January 2014.

Two children were born of that relationship; C.M., born [omitted for publication] and L.M., born [omitted for publication]. The litigation in this matter was commenced by Ms. M. on September 3, 2014, and is ongoing. At issue are parenting time, parental responsibilities, prospective and retroactive child support, prospective and retroactive spousal support, and special and extraordinary expenses. [ 5 ] A hearing on these issues commenced before me on October 12, 2018, and was to have continued in June 2019.

The hearing did not continue in June 2019 and a four-day continuation has now been set from March 2 through March 5, 2020. [ 6 ] On May 25, 2016, Judge Bowry pronounced an interim order on the issues of child support and spousal support.

The clauses of that Order pertinent to this application read as follows: 1) A.M. will pay on a without prejudice basis to H.M. the sum of $1000 per month for the support of the children, commencing on May 1, 2016 and continuing on the 1 st day of each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until further Court order. 2) A.M. will pay on a without prejudice basis to H.M. for her support the sum of $144 per month, commencing on May 1, 2016 and continuing on the 1 st day of each and every month thereafter until further Court order. [ 7 ] It is not entirely clear to me on what basis Judge Bowry determined the child support and spousal support amounts in her Order.

The Order is silent about actual or imputed incomes. Mr. M.'s first affidavit attached as “exhibit A”, the submissions of Ms. M. on the issue of Mr. M.'s income when the Order was made. In those submissions, she submits that Mr. M.'s 2014 line 150 income was $109,892 (RRSP purchased). [ 8 ] In those same submissions, Ms. M. alleged that Mr. M. failed to disclose accounting records for his company, [omitted for publication] (“the Company”) in both 2015 and 2016. Ms. M. submits that Mr. M.'s non-disclosure of his Company’s accounting records has made it difficult to ascertain his true income.

In June 2019, when the hearing was to have continued, Mr. M. had recently produced volumes of materials purporting to be all the financial information for the Company. Counsel for Ms. M. objected to the late disclosure of these materials at the time. [ 9 ] Based on submissions made to date, I expect the Company’s accounting records to be contentious and an important aspect of all of the financial relief being sought by Ms. M. At this stage however, it has not been pointed out to me that anything in those records suggests that Mr.

M.'s income should be significantly higher than what he purports it to be. [ 10 ] In his first affidavit, Mr. M. states that his line 150 annual income since 2015 has been as follows: a) 2015: $80,221 b) 2016: $61,449 c) 2017: $56,749 d) 2018: $74,964 [ 11 ] He attaches portions of his 2015 T1 General, 2016 notice of assessment, portions of his 2017 T1 General, and portions of his 2018 income tax return in support of his declared incomes for those years. [ 12 ] In his first affidavit, he also provides evidence of Ms. M.'s income as follows: a) 2015: $75,456 b) 2016: $73,618

c) 2017: $80,395 d) 2018: $81,303 [ 13 ] He attaches a notice of assessment for 2015 and income tax returns for 2016, 2017, and 2018 to support those figures. [ 14 ] Mr. M. argues that income information since 2015 is now available. Due to the passage of time and the availability of financial information to the end of 2018, Judge Bowry’s 2016 Order based on 2014 incomes, should be reviewed. [ 15 ] Due to the passage of time since Judge Bowry’s Order, two other issues have arisen. The first is whether C.M., who turned nineteen years of age on [omitted for publication], still meets the definition of a “child” under

section 146 of the Family Law Act . Ms. M. argues that C.M. still meets the definition of a child, whereas Mr. M. argues that she does not. Both parties provided evidence in their affidavits supporting their respective positions. The second issue is whether the current parenting time arrangements for both children meet the definition of a shared custody agreement therefore justifying a reduction in child support payable. Mr. M. argues that both of these issues justify a review and reduction of the child support payable under Judge Bowry’s Order. [ 16 ] Mr.

M. expresses frustration over the delays in the hearing which is now scheduled to continue in March 2020. He submits that given the history of this litigation, he does not believe it will ultimately conclude in March 2020, and that he should not be left paying $1,000 a month in child support and $144 a month in spousal support indefinitely when circumstances have changed materially since Judge Bowry's Order. [ 17 ] Ms. M. submits that Judge Bowry's Interim Order should stand until the conclusion of the hearing of the matter in March 2020. She says Mr.

M. initially failed to disclose his true income and for that reason, Judge Bowry imputed an income which the Court should not interfere with at this stage. She argues that Mr. M. has likely not been paying enough child support for a number of years. She also argues that Mr. M. has not paid her any support for the months of October, November, and December, 2019 and because he is in breach of Judge Bowry's Order, he should not be granted any relief from its terms.

Issues [ 18 ] The following issues need to be decided on this application: 1) Have circumstances changed sufficiently to justify a review of the child and spousal support terms of the Order? 2) If a review is justified, should the child and/or spousal support provisions of the Order be changed, suspended or terminated? Analysis 1. Have circumstances changed materially to justify a review of the child and spousal support terms of Judge Bowry's Order? [ 19 ]

Section 216 of the Family Law Act reads as follows: 216

(1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for.

(2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.

(3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists: (

a) a change in circumstances has occurred since the interim order was made; (

b) evidence of a substantial nature that was not available at the time the interim order was made has become available.

(4) In making an order under subsection (3), the court must take into account all of the following: (

a) the change in circumstances or the evidence, or both, referred to in subsection (3); (

b) the length of time that has passed since the interim order was made; (

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (

i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [ 20 ] In B.K. v. J.B. , [2015] B.C.J. No. 1808 , Justice Holmes wrote: [34] On the

interpretation of s. 216 I have outlined, s. 216(3) creates a threshold for an application to vary an interim order. If there is a

material change in circumstances or new evidence of a substantial nature and the threshold is therefore reached, the Court will determinethe application according to the factors in section 216(4). The provisions of

section 216 therefore provide the complete basis andframework for an application to vary an interim order. [21] I am satisfied that material changes in circumstances have occurred since Judge Bowry granted her Interim Order. That Orderwas made in 2016 and was based on incomes from 2014. Incomes to the end of 2018 are now available.

This updated financialinformation not only represents a change in circumstances but is also evidence of a substantial nature that was not available at the timethe Interim Order was made. [22] Furthermore, C.M. has turned 19 and it is necessary to consider whether she still meets the definition of a child under the FamilyLaw Act and whether Ms. M. is still entitled to any child support for her. [23] I am satisfied that the threshold for determining this application according to the factors in section 216(4) has been reached andjustifies a review of Judge Bowry's Order. 2.

If a review is justified, should the Child or Spousal support provisions of the Order be changed, suspended or terminated? [24] I keep in mind that this is an interim application and adopt the following comments from the British Columbia Court of Appeal inNewson v. Newson, (BC CA), [1998] B.C.J. No. 2906: [11] The principle to be followed on an interlocutory application for relief pending trial was well expressed by Mr. Justice Wright of theOntario Supreme Court, then sitting as a local judge, in B.(

R) v. B.(M) (1989) 19 R.F.L.M. (3d) 92 at 98:… I do not believe that this is an issue to be determined on interim proceedings. Interim proceedings are not geared for the finaldetermination of issues. Interim proceedings are

summary in their nature and provide a rough justice at best. Interim proceedings cannotbe bogged down and traditionally have never been bogged down with the merits of the case. I see nothing different in the situation before me today. The merits of the case are not to be thrashed out on interim proceedings. Thecourts have not the time nor the facilities to render justice at that stage of the proceedings on matters of substance. Issues such as “causalconnection” are too important to be allowed to be determined on what are otherwise interim proceedings.

They are factual in nature andnormally would call for a trial of the issue. Such issues must be determined only after all of the facts have been laid before the trial tribunal and any attempt to short-circuit thesystem by having these issues thrashed out on interlocutory proceedings can only serve to work an injustice in the long run…. [25] When considering the factors under section 216(4) of the Family Law Act, I consider the now available evidence of income since2014 as well as the fact that C.M. is now nineteen years of age, to be significant changes in circumstances.

Also, over 3 1/2 years havenow passed since Judge Bowry's Interim Order. The terms of the Order for child and spousal support were made on an interim “withoutprejudice” basis. These terms were clearly made for the purpose of having a temporary arrangement in place that would not adverselyaffect the position of either party during negotiations, future family dispute resolution or at trial. The Order was clearly not intended toreflect the final arrangement between the parties. [26] I consider that a trial has been scheduled with continuation dates in March 2020.

I also consider the history of these proceedingsand the expressed concern of Mr. M. that the litigation has been ongoing for years and that there is a real possibility that the matter willnot conclude in March 2020. [27] Finally, I keep in mind that the right to child support is the right of the child. Arguably, by terminating or suspending JudgeBowry's Order with respect to child support, there may be a potential adverse effect on a child, in particular, L.M. who still clearly meetsthe definition of a child under the Family Law Act and continues to reside with Ms. M. for a significant period of time.

L.M. has had thebenefit of residing in Ms. M.'s household while receiving child support from his father. Suspending or terminating that support will havea potential adverse effect on him. Spousal Support [28] In D.R.M. v R.B.M., 2006 BCSC 1921, Justice Martinson addressed the rationale for the application of the Spousal SupportAdvisory Guidelines to interim spousal support orders as follows: [19] They are a useful tool when determining interim spousal support. By focusing on income differences they provide a helpfulmeasure of needs and means.

Their use is consistent with the purposes of interim orders: to bridge the gap between the start of thelitigation and the time when a resolution is reached at trial or by agreement; to avoid lengthy and costly interim litigation; to move thelitigation to a timely resolution; and to reduce conflict. [29] It is noteworthy that Mr. M. has been paying spousal support to Ms. M. in the amount of $144 per month since May 1, 2016, withthe exception of October, November, and December 2019, when he has apparently made no payments. [30] Mr.

M. has attached as exhibit E to his first affidavit, calculations from the DivorceMate software. Using the parties’ declaredincomes from 2018 and considering the length of marriage, cohabitation, the recipient's age and that there is one child in Ms. M.'shousehold for which she is receiving child support, the software suggests that no spousal support should be payable. [31] Counsel for Ms. M. has argued that I should not reconsider the terms of the Order because Mr. M. has not made child or spousalsupport payments for the last three months. She provided authorities in support of that proposition; McGinn v.

McGinn 2010 BCSC 1483and Besic v. Kerenyi 2012 BCCA 187. [32] In the McGinn matter, the court concluded that Mr. McGinn had been in breach of multiple provisions of previous court orders,

had not paid any child support and had committed bankruptcy and not advised his trustee in bankruptcy of liability for child support and existing support orders thereby potentially frustrating any ability to collect significant arrears. The court dismissed an application by Mr. McGinn concluding that: [10] This application is abusive of the process of the court inasmuch as the plaintiff applicant continues to be in breach of the order of the Master from which no appeal has been taken. [ 33 ] Besic v.

Kerenyi , concerned an appeal of a Supreme Court judge’s decision to strike an appearance and statement of defence of Mr. Kerenyi where Mr. Kerenyi was in breach of a previous order for failure to pay court ordered costs. The British Columbia Court of Appeal cited with approval the following passage from Larkin v. Glase , 2009 BCCA 321 : [7] A court order must be obeyed until and unless it is reversed. Refusal to obey court orders strikes at the heart of the rule of law, at the core of the organization of our society. If court orders can be disregarded with impunity, no one will be safe.

Our free society cannot be sustained if citizens can decide individually what laws to obey and what laws to disregard… [ 34 ] In Besic , the British Columbia Court of Appeal concludes that: [21] … Larkin establishes that it is within the court's discretion to refuse to hear a party that is in breach of a court order. [ 35 ] In this case, I find the authorities relied on by Ms. M. to be distinguishable. It is clear that it is within a court's discretion to refuse relief to a party where that party is in breach of a previous court order.

That discretion should be exercised according to the circumstances of each case. Here, I am unable to find that Mr. M.'s failure to pay support for the last three months constitutes such a blatant disregard of a previous court order that I should refuse to consider his application. I consider that Mr. M. has apparently abided by all of the other terms of Judge Bowry's Order for over three years. I am not condoning Mr. M.'s failure to pay the court ordered amounts over the last three months. For the purposes of this application only, I am exercising my discretion in his favour. I may reconsider Ms.

M.'s submission on this point in the future should Mr. M. not comply with the Order I will be making. [ 36 ] Considering all of the factors listed in section 216(4) of the Family Law Act, It is appropriate to suspend Mr. M.'s requirement to pay spousal support under the Order effective January 1, 2020. Child Support C.M. [ 37 ] C.M. has now reached the age of majority and may no longer meet the definition of a child under

section 146 of the Family Law Act . The law is clear that the party seeking child support for a child who has reached nineteen years of age bears the onus of proving that the child is still a child as defined in the Family Law Act ( see Nitchie v. Nitchie , 2014 BCSC 468 at para. 18 and T.A.P. v. J.T.P ., 2014 BCSC 2265 at para. 21 ). [ 38 ] I have contradictory evidence before me about whether C.M. continues to meet the definition of a child under the Family Law Act. Ms.

M. attached a letter written by C.M. on October 9, 2019, to her affidavit where in C.M. writes that she intends to return to school in the fall of 2020 and intends to live full time with her mother when she once again attends school, and in February and March 2020. Ms. M. also attached a receipt for and interact transfer she sent to C.M. for $300 on September 27, 2019, for rent. There is also a further receipt for twenty-five dollars for C.M.’s registration at [omitted for publication] College in September 2020. [ 39 ] In Mr. M.'s second affidavit, he attaches a letter written by C.M. on November 21, 2019.

In that letter, she confirms that she lives with her boyfriend and pays her own rent and groceries. She wrote that both her mother and father have helped her out financially since she turned nineteen. She also confirms that she does not have a plan for where she will be living when she returns back to school. [ 40 ] I am not satisfied that Ms. M. has met the onus on this application to establish that C.M. continues to meet the definition of a child under the Family Law Act . It is appropriate to suspend Mr. M.'s obligation to pay any child support for her effective [omitted for publication], 2019.

L.M. [ 41 ] I consider that L.M. has been receiving child support from Mr. M. pursuant to Judge Bowry's Order at least until October 2019. I take into account section 216(4)(

e) of the Family Law Act which requires me to consider any potential adverse effect on a child when changing an existing order. I also consider that a change in circumstances has occurred and that there is now evidence of Mr. M.'s income which was not available at the time the Interim Order was made. [ 42 ] Mr. M. says that circumstances have further changed since Judge Bowry's Order and that the parties now have a shared parenting arrangement with respect to L.M. He submits that his parenting time with L.M. is somewhere between 38% and 43% and that

section 9 of the Child Support Guidelines ("the Guidelines ”) should be engaged. I note that there is no direct evidence before me about the percentage of parenting time each parent currently has. [ 43 ] While I do have evidence of the parties’ respective incomes before me, I am not satisfied that I should simply cancel child support on an interim basis keeping in mind s. 216(4)(

e) and that there is a status quo where a child is receiving assistance in one household. I also note that the application of

section 9 of the Guidelines to reduce child support in a shared custody situation is discretionary and requires me to consider the increased costs of shared custody arrangements and the conditions, means, needs, and other circumstances of each spouse and of any child for whom support is sought. No evidence of these factors was put before me on this application. [ 44 ] The onus is on the payor spouse, in this case Mr. M., to establish that the situation is one of shared custody: Collier v. Campbell 2013 BCSC 825 at para. 81 . I do not find that Mr. M. has met that onus at this time.

Conclusion [ 45 ] In balancing all of the above factors, it is my view that the appropriate interim remedy in this case is to suspend child support for C.M. as well as spousal support for Ms. M. I also find it appropriate to vary the child support payable by Mr. M. for L.M. to reflect the current financial circumstances of the parties without finding at this time that a shared custody situation exists pursuant to

section 9 of the Guidelines. [ 46 ] There will be the following Interim Order: 1) The Order of Judge Bowry dated May 25, 2016 is suspended effective January 1, 2020 regarding spousal support and effective September 10, 2019 regarding child support for C.M. 2) Upon the Court being advised that the name and birth date of each child is as follows: L.M., born [omitted for publication]. 3) A.M. is found to be a resident of British Columbia and is found to have a gross annual income of $74,964 4) A.M. will pay to H.M. the sum of $715 per month for the support of the child commencing on October 1, 2019, and continuing on the first day of each and every month thereafter for as long as the child is eligible for support under the Family Law Act or until further court order. 5) For as long as the child is eligible to receive child support, the parties will exchange: (

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

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt. [ 47 ] Mr. Parker shall draft the Order. ______________________________ The Honourable Judge G. Leven Provincial Court of British Columbia