K.M.Q. v. P.T. Date:, 2014 BCPC 351

Citation: K.M.Q. v. P.T. Date: 20141216 2014 BCPC 0351 File No: 2282 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. M. Q. APPLICANT AND: P. T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: K. M. Q. Appearing on their own behalf: P. T. Place of Hearing: Burns Lake , B.C.

Date of Hearing: August 29 & December 12, 2014 Date of Judgment: December 16, 2014 Background [ 1 ] K.M.Q. has applied to cancel or reduce his arrears of child maintenance. This is based on his direct transfers of money to the bank account of his daughter J.Q. The bank records he produced as Exhibit 1 show eleven payments totalling $2,150 between October 2010 and February 2013. PT filed a response that was marked as Exhibit 2. [ 2 ] This court gave a judgment in October 2013 that dealt with the maintenance payable for K.M.Q.’s two daughters, S.Q. and J.Q.

That order also calculated the arrears payable for both S.Q. and J.Q. up to October 31 st , 2013 which totalled $3,847. [ 3 ] This court had ordered a reduced amount of maintenance for J.Q. from 2009 until today’s date based on “the condition, means, needs, and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child as per section 3(2)b of the Federal Child Support Guidelines. [ 4 ] The breakdown of the maintenance ordered, the actual maintenance paid, the arrears (if any) and the direct payments from Exhibit 1 are in the chart below up to October 31, 2013.

Year Support for S.Q. Support for J.Q. Total actually paid for both Arrears Direct payments to J.Q. 2009 $5075 $6528 $8392 +132 Nil 2010 $6528 $1200 $5300 -2428 $500 2011 $6864 $1200 $6360 -504 $1250 2012 $4272 $1200 $4655 -817 $200 2013 $1330 $1000 $2000 -330 $200 [ 5 ] P.T. submits that all these direct transfers were gifts which would be expected from a loving father. Direct payments to the child rather than as ordered to the spouse are technically not maintenance.

It is also a foolish way of doing things as it leaves the payor (K.M.Q.) subject to collection proceedings by the Maintenance Enforcement office. [ 6 ] However, in equity there are a substantial number of payments. This requires the court to balance the law and equity. One of the principles of equity is that the person claiming equitable relief has to not wait a long period to make the claim. [ 7 ] K.M.Q. has not had the benefit of counsel which explains some of the delay. However, I conclude that he has waited too long to claim some of the payments.

In particular I will not allow him to claim the $500 he paid directly four years ago in 2010 which is when most of the arrears occurred. It was to his benefit at that time to have paid the money as child support to P.T. [ 8 ] I will allow him to claim the direct payments in 2011 up to the actual amount of arrears which is $504. As there was no child maintenance payable above that clearly, the excess must be considered a gift. [ 9 ] I will also allow him to claim the benefit of the direct payments made in 2012 and 2013. These total $400.

Decision [ 10 ] Accordingly, I will reduce the current arrears by $904 and fix the arrears as of October 2, 2014 in the amount of $2,206.78. [ 11 ] I must also point out to K.M.Q. that only future maintenance payments paid to P.T. for their daughters are acceptable and there will be no further credit given for direct transfers of money to either of their daughters. _________________________

W. F. M. Jackson Provincial Court Judge