C.L.E.H. v. D.W.H, 2018 BCSC 950

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.L.E.H. v. D.W.H, 2018 BCSC 950 Date: 20180611 Docket: ED57974 Registry: Nanaimo Between: C.L.E.H. Claimant And D.W.H. also known as D.W.D. Respondent Before: The Honourable Mr. Justice Baird Reasons for Judgment Counsel for the claimant: K.G. Walker Counsel for the respondent: S. Yeudall Place and Date of Hearing: Nanaimo, B.C. May 28, 2018 Place and Date of Judgment: Nanaimo, B.C.

June 11, 2018 INTRODUCTION [ 1 ] The issues in this family law case are the respondent’s liability for prospective and retrospective child support and payment of special and extraordinary expenses under the Federal Child Support Guidelines , SOR/97-175 (“the Guidelines ”) . BACKGROUND [ 2 ] The claimant is a 48 year old occupational therapist employed three days per week by the Vancouver Island Health Authority in Port Alberni. The respondent is 54 years old and currently employed full-time as a truck driver. [ 3 ] The parties began living together in September 1996 and were married August 19, 1997.

They have three children, D.H. (born August 17, 1998); M.H. (born January 7, 2001); and E.H. (born May 21, 2004). D.H. is enrolled in an undergraduate degree program at university, M.H. is in high school about to complete grade 11, and E.H. is finishing grade 8. [ 4 ] The parties separated on July 8, 2008. This followed revelations that the respondent had been committing acts of sexual interference on D.H. He was later charged, convicted, and sentenced to two years less one day in provincial jail for these crimes. The parties have had no direct contact in years. The claimant is the sole guardian of the children.

The children want nothing to do with their father. The respondent accepts this, as he must, while recognising that he remains obliged by law to support his children despite their permanent estrangement from him. [ 5 ] On November 16, 2011, the parties entered into a consent divorce order. Its terms required the respondent to pay $1,108 per month for the support of his three children based on an imputed income of $56,000. It also provided for payment of a set amount of $150 per month for special and extraordinary expenses. There was a reapportionment of family assets in the claimant’s favour.

The support order did not include a review provision or an ongoing annual obligation to disclose and exchange tax and financial information. [ 6 ] It seems that recently the claimant instructed her lawyer to inquire about the respondent’s current earnings. The respondent, as I understand it, readily and truthfully answered all requests for updated financial information. The claimant learned that in 2016 and 2017 the respondent earned a higher income than that specified in the consent divorce order: $83,600 in 2016 and $63,200 in 2017. BASIC CHILD SUPPORT

[7] Because of this change in the respondent’s circumstances, the claimant is seeking an upward retrospective variation of childsupport for the last two years. The present application was filed on March 21, 2018, and amended by consent on May 10, 2018. This isthe first court activity on this file since the consent divorce order. [8] The parties have agreed that D.H. remains a “child of the marriage” but the claimant is not seeking periodic child support forhim.

She told me that D.H.’s financial needs while at university are being met through his own earnings and the proceeds of a RegisteredEducation Savings Plan to which both parties contributed while married. [9] The parties’ joint submission concerning D.H., which I accept, is that his situation falls under s. 3(2)(

b) of the Guidelines, andthat given his condition, means, needs and other circumstances, no monthly support should be paid for him. The parties mutuallyunderstand that D.H.’s situation may change in the future and the issue of support for him may have to be revisited. For the time being,by consent, I will order that the respondent’s obligation to pay periodic support for D.H. ceased on September 1, 2017. [10] The respondent concedes that he made $83,600 in 2016 and that he must pay more child support because of it. He says,however, that 2016 was an unusual year.

He accepted an assignment to work in Alberta which involved longer hours and higher pay thanhe was accustomed to earning. In 2017 he returned to work locally with the same company and earned the lesser amount of $63,200. [11] The respondent claims that his criminal history has made it difficult for him to find and maintain employment. He alleges, and Ican easily see how this would be true, that employers become suddenly uninterested in keeping him when they discover that he is aconvicted child sexual offender.

He must bear the consequences not only of the convictions related to his own son, but of priorconvictions for sexual offences against pupils while he was a school teacher in the 1990s. [12] Recently the respondent feels that his past must have caught up with him again, because all of a sudden, for reasons unrelated tojob performance, his last employer called him into work less and less. It got to the point where he was not earning enough to survive andhad to make other plans. His present job as a truck driver involves delivering gasoline and diesel fuel to service stations.

Based on his paystubs so far this year he projects that his income for 2018 will be in the range of $46,000. [13] As I have said, the claimant seeks an upwards adjustment in child support for 2016 based on the respondent’s actual income of$83,600, and for 2017 on his income of $63,200, and I am satisfied that a variation of the consent divorce order is justified by thesechanges in earnings.

The respondent agrees subject to an argument about the date upon which the income changes should impact theamount of child support due. [14] The respondent says that it would make sense if support adjustments were made effective on July 1 of every year, especiallynow that the parties have agreed to an annual exchange of financial information every May 30 for the purpose of re-evaluating supportpayable. I can certainly see the sense of this when it comes to prospective payment of support. As for the past, however, I intend to relyon the following well-known observation of our highest court in D.B.S. v.

S.R.G., 2006 SCC 37 at para. 54: [P]arents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like thechildren's concomitant right to support, exists independent of any statute or court order. To the extent the federal regime has eschewed apurely need-based analysis, this free-standing obligation has come to imply that the total amount of child support owed will generallyfluctuate based on the payor parent's income.

Thus, under the federal scheme, a payor parent who does not increase his/her child supportpayments to correspond with his/her income will not have fulfilled his/her obligation to his/her children. [15] This statement is clear and leads promptly to the result, in my view, that the respondent should have paid and must make upmonthly child support payments for three children on an income of $83,600 for every month in 2016. The amount that the respondentactually paid was $1,108 per month when he should have been paying $1,642.

There was a shortfall of $534 per month or $6,408 on theyear. [16] From January 1, 2017, until August 1, 2017, the respondent should have been paying support for three children on his actualincome of $63,200, or $1,287 per month. From September 1, 2017, onwards, because the parties have agreed that support for D.H. wasnot needed after that date, he should have paid $981 for two children over the remainder of the year. The respondent underpaid by$1,432 from January to August and overpaid $508 from September through December.

Setting off these amounts the shortfall is $924. [17] I hereby order, therefore, that the respondent owes the claimant the cumulative total amount of $7,332 in arrears of childsupport. Having reviewed the respondent’s financial statement filed on this hearing, I am satisfied that he has the present means to paythis amount without undue hardship, and I order him to do so forthwith. [18] The parties have a difference of opinion concerning the respondent’s prospective obligations.

The claimant maintains that forthe present year, 2018, the respondent should be paying support based on his 2017 income of $63,200, as this is the last full year forwhich tax information is available.

She says, as well, that it is too early in the present tax year to infer that the respondent will not beable to earn a comparable income. [19] The respondent, for his part, maintains that his present employment as a truck driver pays much less pay than his previous job.He has produced pay stubs for this year indicating that, assuming that he is able to maintain his present position and is not maderedundant or fired, he will earn in the range of $46,350. There is no evidence to suggest that he is underemployed.

He says that it wouldbe unfair to proceed on the assumption that he will earn as much this year as last when the most recent available financial evidencesuggests that he likely will not. He relies on Fuzi v. Fuzi (BC SC), [1999] B.C.J. No. 2263, and I have concluded thathe is on solid ground in doing so. [20] Accordingly the respondent’s monthly child support obligation starting on January 1, 2018, will be the Guidelines amountpayable for two children on an anticipated income of $46,350, which is $728. The respondent will continue paying this monthly amountuntil the parties agree or this court orders otherwise.

SPECIAL AND EXTRAORDINARY EXPENSES [ 21 ] The claimant has also made a demand for retrospective payment of what she claims are “special and extraordinary expenses” under s. 7 of the Guidelines . For the following reasons I dismiss this part of her application. [ 22 ] First of all, the consent divorce order included a specific provision dealing with these expenses, fixing a set amount of $150 per month that the respondent has paid without fail for years. This was part of a multi-faceted agreement between the parties which included, as previously stated, an unequal division of property.

Both parties were represented by counsel. In my view, their consent agreements should not be disturbed but given considerable weight: Dyck v. Bell 2015 BCCA 520 . I will heed, as well, the warning in D.B.S . at para. 78 that it is often unwise for the court to disrupt the equilibrium achieved voluntarily by the parties. [ 23 ] Secondly, in my view many of the expenses for which compensation is being sought are not special or extraordinary .

The claimant has demanded amounts for D.H.’s vehicle, transportation and moving expenses, and for such things as clothing, passport applications and international travel costs.

These in my view do not fall within the exhaustive list of expenses listed in s. 7 of the Guidelines , and it is not clear that the fixed payment of $150 per month did not cover those that do or might do. [ 24 ] Thirdly, even when it comes to expense claims that might be eligible for s. 7 Guidelines treatment, such as mileage costs for transporting M.H. to a school program on Saturna Island, the claimant made no attempt to establish that the expenses were "necessary" as defined in relation to the child's best interests, or "reasonable" as measured against the combined financial means of the parents: see, generally, Clarke v.

Clarke , 2014 BCSC 824 at paras. 48-53 . The claimant bears the burden of proof on these points and she has not discharged it here: see Yensen v. Yensen , 2003 BCSC 1372 . [ 25 ] By consent, I hereby order that the parties will share future s. 7 expenses in proportion to their respective incomes as established by the annual exchange of financial information to which they agreed at the outset of this hearing.

I realise that the history of the parties makes communication between them impracticable, but at their request I will endorse this arrangement requiring them to exchange information and, if necessary, to negotiate and agree upon payment of such expenses. [ 26 ] On this subject, I agree with the observations made by respondent’s counsel that it is undesirable for the claimant to incur expenses unilaterally for two or three years and then come to court seeking a contribution from the respondent.

It would be far better if there were an agreement in advance about the kind of expenditures to be shared, other, perhaps, than obvious ones such as medical and dental treatment, and the terms of prompt payment. The claimant is on notice, finally, that her part-time work

schedule is an issue. An imputation will likely be sought in future for the establishment of a fair and realistic proportional sharing of expenses. COSTS [ 27 ] In my view success has been mixed. The parties will bear their own costs. “Baird J.”