R.A.B. v. J.L.T. Date:, 2013 BCPC 318

Citation: R.A.B. v. J.L.T. Date: 20131129 2013 BCPC 0318 File No: 30705 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R. A. B. APPLICANT AND: J. L. T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: R. A. B.

Counsel for the Respondent: D. Jahani Place of Hearing: Surrey , B.C. Dates of Hearing: October 7, November 4, 2013 Date of Judgment: November 29, 2013 [ 1 ] The Applicant R. A. B. and the Respondent J. L. T. are the parents of a son named M. M. was born on (d.o.b.), 2006 and is now seven years old, soon to be eight. By all accounts M. is a very bright and personable little boy and he is fortunate to have two parents who love him very much as well as a loving extended family on both of his parents’ sides. [ 2 ] The parties commenced cohabitation in January of 1995, and lived together until October of 2008.

M. lived with his the Respondent until the summer of 2009. At that time the parties entered into a voluntary care agreement with the Ministry of Children and Families and M. went to live his maternal grandparents. At the time the parents were struggling with some issues concerning the use of non-prescribed drugs. A lot of the evidence presented at trial recalled the actions of the parents during this time in their life, but I don’t intend to spend any time going over that because it is not relevant to the issues that I have to decide.

Suffice it to say that the parties have each addressed their problem, they are no longer active in that lifestyle, and they are much better people today than they were then. As might be expected, looking back on those times has resurrected a number of past hurts and resentments, and that in turn has impeded the resolution of this matter. However I think that both of the parties agree that nothing is to be gained by reopening old wounds. [ 3 ] Both of these parties have moved on to become much better people than they were at the time that M. was placed in the care of his grandparents.

The Respondent entered into a new relationship in July of 2010 and she has had a second child with her new partner. The Applicant spoke complimentary and respectfully in his opinion of the Respondent’s new partner. The Applicant has found gainful employment as a car salesman. He is a productive employee and has expressed a willingness to live up to his parental obligations to support his son. [ 4 ] On January 26, 2009, the parties entered into a written agreement for the support of their child. The agreement was negotiated with the assistance of the Surrey Family Justice Counsellor.

The parties differ in their recollection as to where and under what circumstances this agreement was signed, but not much turns on that. The agreement provided that the parties would have joint custody and joint guardianship of the child, and that the child’s primary residence would be with the Respondent. It was agreed that the Applicant would have reasonable access to the child.

On the issue of child support, the agreement read as follows: “[C]hild support of $120 per month is payable starting April 1, 2009, increasing to $200 per month January 1, 2010 and $20 per month January 1, 2011.” [ 5 ] The agreement was filed in the Surrey Provincial Court Registry as an order of the court on March 2, 2009. The filed copy shows a number of alterations to the original typed version, and each alteration appears to have been initialled by the parties. One of these alterations is the provision about child support.

The Applicant testified that the filed document was only a draft and not a concluded agreement. With respect, I believe that he is mistaken about that. The document has been properly filed, and I accept the evidence of the Respondent and of her father who was a witness to the document, that the written agreement was properly executed and filed with this court, and that pursuant to

section 121 of the Family Relations Act (which was in force at the time), the agreement was enforceable as an order of this court. [ 6 ] Both of the parties are in agreement that all they simply want is for the Applicant to be ordered to support the child according to the Federal Child Support Guidelines . They agree that M. should have the same level of support as any other child in Canada and the Applicant is willing to meet this obligation. This doesn’t solve the problem however, because the Applicant is a commissioned salesman and his income fluctuates from year to year.

The Applicant is advocating for some sort of averaging of his income, while the Respondent seeks an adjustment based on what the Respondent’s actual earnings have been, and fixing the future amount based on the Applicant’s projected 2013 earnings. [ 7 ]

Section 16 of the Federal Child Support Guidelines states that, as a general rule, a paying parent’s annual income for the purposes of the guidelines is the total amount of income set out in theT-1 tax form under the heading “Total Income.” This is the total appearing at line 150 of the tax form.

Schedule III of the Guidelines permit certain sales expenses to be deducted from this amount. From the evidence presented at trial, I calculate the Applicant’s income, for the purpose of applying the Federal Child Support Guidelines, as follows: YEAR Line 150 Income

Schedule III Deductions Guideline Income Guideline Table Amount (Monthly) 2009 13,840 13,373 467 $0 2010 35,072 9,490 25,582 N/A 2011 29,470 1,836 27,634 $257 2012 36,262 1,465 34,797 $316 2013 42,618 $388 [ 8 ] For 2009 and for a portion of 2010 the Applicant was receiving income assistance payments. Under

section 4 of

Schedule III of the Guidelines, the social assistance income is deducted for the purpose of arriving at the correct guideline amount. To calculate the income for the current year, I have used the Applicant’s income tor the year to date, which is $40,368. He testified that he has three more pay periods and that he does not expect to sell a lot of cars between now and then, but that he will receive draws of $750. Accordingly I

have added his draw for the three remaining pay periods (3 x $750, or $2250) to his year to date income and used a figure of $42,618 to calculate what the Applicant owes to meet his obligation to his child for this calendar year. [ 9 ] The parties acknowledge that there was a period from June of 2009 until the spring of 2011 when M. was not in the Respondent’s care. The parties disagree precisely on what months are being addressed. I am resolving any discrepancy in the evidence by accepting the evidence of the paternal grandfather.

Applying that evidence, I find that the Applicant was obliged to provide for the support of his son to the Respondent for the period from April to June of 2009, and from and after February of 2011. However for the calendar year of 2009, the Applicant did not earn a sufficient income to attract the legal obligation to make child support payments under the guidelines. Accordingly, I am recalculating the arrears based on the Applicant’s guideline income from February of 2011 to the present.

The intent is that M. should receive every dollar of support that he is entitled to from the Applicant under the guidelines. [ 10 ] Applying this formula, I calculate the arrears of maintenance owing by the Applicant to the Respondent to be the sum of $4,812. This calculation assumes that the Applicant has paid the Respondent $280 in November 2013, as he has been doing each month in 2013. If that assumption is not correct, this figure should be adjusted accordingly.

This amount of arrears is calculated in accordance with the following table: Year Guideline Amount Months Payable Total Amount Owing Total Amount Paid Difference 2011 257 11 2,827 1,080 1,747 2012 316 12 3,792 1,915 1,877 2013 388 11 4,268 3,080 1,188 Total 4,812 [ 11 ] I am going to order that the amount of arrears owing by the Applicant to the Respondent as at the date of this order be fixed at $4,812 (subject to adjustment in the event that the Applicant has paid some amount other than $280 for November of 2013).

In arriving at this amount, I have been guided by one central principle: this amount is not calculated with the intention of punishing the Applicant, or with the intention of benefitting the Respondent. It is calculated with the intention of enforcing M.’s right to support from the Applicant, commensurate with the income earned by the Applicant over the relevant period.

Having said that, I acknowledge that there is some unfairness to M. because I have not included any outstanding interest, nor any provincial government fees, so in that sense, the scales are slightly tipped in the Applicant’s favour. [ 12 ] The issue then becomes what should happen going forward. The Applicant asks that payments be adjusted based on the average of his income for the previous three years.

The Respondent asks that the ongoing payment be set based on the Applicant’s 2013 income and that any adjustments be made when we know with certainty what the Applicant has actually earned. [ 13 ] In deciding this question, I return to the guiding principle that the intent of any order is not to reward or punish any party, but to insure that M.’s right of support is upheld. To insure that M. receives as close to the level of support that he is entitled to, the monthly payment of $388 will continue.

The monthly payment can be readjusted annually, once the Applicant has received his annual Notice of Assessment from the Canada Revenue Agency. Any credit or debit in the amount owing to M. can then be adjusted and applied to any arrears that may be outstanding.

As long as there are arrears owing, I would rather have the Applicant overpay than underpay, so that his responsibility to M. can be met sooner rather than later. [ 14 ] I will order that in each year henceforth, after the Applicant has received his Notice of Assessment from the Canada Revenue agency for the previous calendar year, the order for child support can be amended to adjust the child support payment to reflect what the Applicant actually earned.

I would recommend that, in order to save costs and avoid having to attend court, the parties may wish to ask the Family Justice Counsellor to make the calculations for them and file a consent desk order. I will illustrate what future adjustments to the order might look like with two examples. The first example will presume that the Notice of Assessment shows that the Applicant’s income has increased. The second example will assume that his income has decreased.

Example 1: Increase in Income 2013 income used to calculate child maintenance: $42,618 Monthly Child Support Payment: $388 2013 income shown on Notice of Assessment: $44,000 Corrected Monthly Child Support Payment: $402 (an increase of $14 per month) Result: the Applicant’s monthly child support payment will increase to $402 commencing with the July 15, 2014 payment. The arrears owing will be increased by $252, representing $14 per month from January of 2013 to June of 2014.

Example 2: Decrease in Income 2014 income used to calculate child maintenance: $44,000 Monthly Child Support Payment: $402 2014 income shown on Notice of Assessment: $39,000

Corrected Monthly Child Support Payment: $355 (a decrease of $47 per month) Result: the Applicant’s monthly child support payment will decrease to $402 commencing with the July 15, 2015 payment. The arrears owing will be decreased by $846, representing $47 per month from January of 2014 to June of 2015. [ 15 ] The foregoing example of a decrease presumes that the Applicant is not intentionally under-employing himself. The net result of these annual adjustments will ensure a fair result for M.

If, as the year progresses, the Applicant is aware that he is having an exceptionally good year, he would be wise to voluntarily increase his payments so as not to have to play catch up when he is called to account the following July. Similarly, if the Applicant is having an exceptionally poor year, and makes full financial disclosure of this to the Respondent, she is encouraged to cooperate in a temporary reduction to reflect the reality of the situation, but should do so only after getting advice from counsel, duty counsel or a Family Justice Counsellor.

Order [ 16 ] For the foregoing reasons, it is ordered as follows: (

a) The amount of the arrears of child support owing by the Applicant R. A. B. to the Respondent J. L. T. for the support of the child M., born (d.o.b.) 2006, is fixed in the amount of $4,812, (provided that in the event that the Applicant has not paid the Respondent the sum of $280 for the support of the child for the month of November, 2013, or has paid some other amount, then the amount fixed for the arrears shall be adjusted accordingly). (

b) The Applicant shall pay to the Respondent for the support of the child, ongoing child maintenance in the sum of $388 per month, payable on the 15 th day of each month commencing on December 15, 2013, and continuing on the 15 th day of each month thereafter until further order of this court. In addition, the Applicant shall pay to the Respondent the further sum of $100 per month commencing on December 15, 2013, and continuing on the 15 th day of each month thereafter, to be applied in reduction of any arrears of child support which may be owing by the Applicant to the Respondent, until the arrears have been paid in full, or until further order of this court. (

c) On or before July 8 of each year (commencing in 2014), the Applicant shall file with this court, and deliver to the Respondent, a copy of his Notice of Assessment provided by the Canada Revenue Agency in respect of the previous calendar year. Upon receipt of the Notice of Assessment by the Respondent, either party may apply to this court to adjust this order to recalculate the amount of the ongoing child support and of the arrears owing. Dated at the City of Abbotsford, in the Province of British Columbia this 29 th day of November, 2013. _______________________________ The Honourable Judge K. D. Skilnick