TS v. BB, 2023 BCPC 171

Citation: TS v. BB 2023 BCPC 171 Date: 20230705 File No: 37124 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: TS CLAIMANT AND: BB DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.KEYES Counsel for the Claimant: I. Hill Counsel for the Defendant: M. Patterson Place of Hearing: Penticton, B.C. Dates of Hearing: June 3, October 1, 2021, October 25, 2022, January 10, 11, April 14, 2023 Date of Judgment: July 5, 2023

INTRODUCTION [1] TS (or “Ms S”) and BB (or “Mr B”) are the parents of three children: B, K, and A. The parties separated in 2013, reconciled atsome point and then separated again in the spring of 2014. All of the children lived primarily with Ms S until the end of September 2015,when their son B went to live with a friend. After that, the girls remained with their mother until A left to live with her father inSeptember 2017. Since then, the parents have had split parenting regimes at various times.

On June 3, 2021, I made an order regardingthe imputation of income, arrears and ongoing child support from March 1, 2021 onward, and adjourned the issue of retroactive childsupport. [2] On April 14, 2023, the last day of this hearing, with the assistance of counsel, the parties were able to agree for the most part onthe question of with whom the children have lived since the parties separated in 2014.

The questions before the court at this point arewhether the court should impute income to Mr B, and if so, in what amount; whether Mr B is obliged to pay retroactive child supportback to 2014, and if so, to determine the quantum of child support based on with whom the children lived at various time periods. HISTORY OF APPLICATIONS FOR CHILD SUPPORT BY MS S [3] Ms S has made several applications seeking child support over the years. On April 3, 2014, she filed an application seeking childand spousal support from March 1, 2014. It is not clear whether that application was served on Mr B.

Then on February 19, 2015, Ms Sagain applied for child support for the children. Mr B filed a reply March 25, 2015, in which he agreed with the application, but sought afive-month extension on his obligation to file a financial statement. On May 15, 2015, Judge Klinger amended Ms S’s application toinclude a claim for retroactive child support. [4] Mr B was ordered to provide financial disclosure multiple times. Judge Klinger made an order on May 15, 2015, requiring Mr Bto file a financial statement by June 15, 2015.

Mr B filed a financial statement late (on June 16, 2015), attaching some incomeinformation for 2012, 2013 and 2014, but not his income tax returns, but including information that his employment ended in April 2015and that in June 2015, he applied for social assistance. [5] On June 19, 2015, Judge Koturbash ordered him to file his 2012, 2013 and 2014 income tax returns within 30 days andadjourned the matter to September 25, 2015. Mr B did not comply with Judge Koturbash’s order; he simply submitted a few pages ofsome notices of assessment for those years.

On September 25, 2015, Judge Koturbash again ordered that Mr B provide financialdocuments to Ms S and adjourned the matter to November 27, 2015. On that day, it is not clear from the court records whether Ms S wasin attendance although she testified she was present for the trial date. It is clear from the court records that, in a bewildering turn ofevents, on the trial date, the matter was marked as “concluded”; no order for child support was made, despite Mr B.’s reply havingagreed to the same. [6] On October 11, 2019, Ms S again applied for child support, retroactive to 2013.

It is not clear whether that application wasserved on Mr B. Another application was filed by Ms S on February 4, 2020, seeking child support for the children in her care at thetime. She was at that time represented by counsel, Mr Hill. On September 15, 2020, Judge Cartwright ordered that Mr B providedisclosure for the prior seven years, going back to 2013. [7] On November 23, 2020, Mr B filed a financial statement with the court, attaching tax return information for 2017, 2018 and2019.

On April 6, 2023, he filed another financial statement indicating he was again in receipt of social assistance and attaching hisnotices of assessment for 2021 and 2022. He has never filed any financial information for the year 2020, although he admits he wasworking that year. [8] The hearing before me commenced on June 3, 2021. At that time, Mr B was unrepresented and sought to adjourn.

I ordered thatthe hearing proceed regarding child support ongoing from March 1, 2021, and that the portion of the trial dealing with the retroactivechild-support claim from 2013 to 2019 be adjourned so that Mr B could seek legal advice regarding retroactive claims. I imputed incometo Mr B and ordered ongoing child support commencing March 1, 2021. On October 1, 2021, the trial recommenced on the issue ofretroactive child support. [9] There were many adjournments after October 2021, almost all of which were at the behest of Mr B. Evidence and submissionsfinally concluded on April 14, 2023.

WHETHER TO MAKE A RETROACTIVE ORDER FOR CHILD SUPPORT AND IF SO, TO WHAT DATE? [10] Mr B relies on DBS v SRG, 2006 SCC 37 . Ordinarily, the court is quite cautious when considering applications forretroactive variations to child support. Retroactive orders change the obligations of people when they have already organized their affairsand therefore, retroactive orders can sometimes unfairly take a party by surprise.

Moreover, retroactive orders are typically not to bemade effective more than three years prior to the application, or effective notice of it, being given to the party: DBS v SRG, 2006 SCC 37. [11] However, a failure to seek variation of child support by the recipient does not preclude such an application going beyond thethree-year presumption, where the recipient has not received timely disclosure from the payor as to a change in income. The recipient hasno means to obtain the payor’s income information – that information is entirely within the payor’s control.

A failure to frankly disclosemeaningful financial information, sufficient for the recipient to make an informed decision regarding whether to seek a variation of childsupport, is blameworthy conduct on the part of the payor: Michel v Graydon, 2020 SCC 24 . [12] The court in DBS provided guidance on the factors to take into account when considering whether to make a retroactive child-support order. One factor is whether the payor had actual notice of the application for child support or the need to pay it. Another is the

reason for delay in applying for child support. That is, why did the person seeking a retroactive child-support order not apply immediately or without unreasonable delay? The conduct of the payor is another factor – that is, whether the payor engaged in any blameworthy conduct. The court should also consider the current circumstances of the children and whether the retroactive order will cause hardship to the payor. [ 13 ] Mr B argued that it would be unfair to make a retroactive order beyond 2019, much less to 2014 as sought by Ms S.

He argues that there has been no blameworthy conduct on his part, because he was unable, not unwilling, to provide child support all these years, that the children’s circumstances are different now because two of the three children no longer reside with their mother, and that a retroactive award at this point would only cause him hardship. NOTICE [ 14 ] As noted in the history of this litigation above, Ms S has filed multiple applications for child support since the parties’ separation date in 2014.

Judge Klinger specifically amended her 2015 application to include a claim for retroactive child support, in court, when Mr B was present. Mr B actually agreed to pay child support in his reply, but then repeatedly failed to comply with court orders to provide disclosure, resulting in multiple court appearances. [ 15 ] I find Mr B had notice in 2015 that Ms S was seeking child support retroactive to April 2014 and he had already agreed that he owed it. The fact that he did not meet child-support obligations does not mean he did not have notice of that outstanding obligation.

Ms S’s 2019 application, which is before the court at this time, is nothing new and cannot possibly take Mr B by surprise. I find he has been on notice with respect to Ms S’s claim for child support retroactive to April 2014, ever since March 2015. REASONS THE PAYEE FAILED TO SEEK CHILD SUPPORT CONTEMPORANEOUSLY [ 16 ] Ms S testified that on the trial date in September 2015, the court noted that Mr B was then on welfare and said to her words to the effect of “you can’t get blood from a stone” and did not make an order for child support.

The matter was adjourned to November for Mr B to provide the disclosure that had been previously ordered. Mr B testified that Ms S did not show up at the November appearance, so the matter was dismissed, but she says she never missed a court date. The court record from November 2015 did not record a dismissal of Ms S’s application, only that the matter was “ended” and no order for child support was made despite Mr B.’s reply indicating he did not dispute his obligation to pay. [ 17 ] Ms S testified that Mr B told her he deliberately went on welfare because he was determined not to pay any child support.

She testified he went back to work immediately after her application for child support was dismissed. She said she felt she had been made to look like a fool in court. She testified that after that, she gave up seeking child support through the court and she stopped asking Mr B for child support because she thought he would get mad. [ 18 ] I accept Ms S’s explanation of her reasons. She had made a timely application for child support which was thwarted by Mr B’s failure to comply with multiple court orders for disclosure and by his quitting work and going on welfare.

I accept that Mr B told her he would go on welfare if she pursued child support. Given the response she received from the court in the fall of 2015, to the effect that “you can’t get blood from a stone”, I find her failure to make continued applications for child support was reasonable, but that does not in any way excuse Mr B from his obligation to support his children. BLAMEWORTHY CONDUCT [ 19 ] I look upon Mr B’s repeated failure to comply with court orders requiring him to provide financial disclosure as blameworthy behaviour.

Indeed, that behaviour had the effect of dragging out proceedings until Ms S gave up. I also accept Ms S’s evidence that Mr B told her he would not pay child support and would quit work and go on welfare to avoid paying. I accept that he said those words to Ms S. I find that is blameworthy conduct. [ 20 ] I find Mr B’s solitary payment of $400 to Ms S in April 2014 was an indicator that he was well aware of his obligations to his children.

Mr B frankly acknowledged that after his single payment in 2014, he never contributed any financial support whatsoever to his children in all the years that Ms S had been caring for them. I find he chose to pay nothing even when he was employed – and he chose to claim the child tax benefit for the entire year of 2017 even though his daughter was only with him for three months in that year, which caused additional hardship to Ms S and the child in her care.

I find that blameworthy conduct. [ 21 ] I draw an adverse inference against Mr B for his failure at this hearing to provide income information regarding his employment and EI earnings for 2020. He could have obtained a tax return

summary for that year from the CRA and he chose not to do so. I find that blameworthy conduct. CURRENT CIRCUMSTANCES OF THE CHILDREN [ 22 ] The current circumstances of the children are a relevant consideration in whether to impose a retroactive award. In DBS , the court said: 110 A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most.

But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — in deciding whether such an award is justified. 111 A child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. As I mentioned earlier, it is a core principle of child support that, after separation, a child’s standard of living should approximate as much as possible the standard (s)he enjoyed while his/her parents were together.

Yet, this kind of entitlement is impossible to bestow retroactively. Accordingly, it becomes necessary to consider other factors in order to assess the propriety of a retroactive award. Put differently, because the child must always be the focus of a child support analysis, I see no reason to abstract from

his/her present situation in determining if a retroactive award is appropriate. 112 Consideration of the child’s present circumstances remains consistent with the statutory scheme. While Parliament has moved away from a need-based perspective in child support, it has still generally retained need as a relevant consideration in circumstances where a court’s discretion is being exercised: see ss. 3(2) ( b ), 4 ( b )(ii) and 9 (

c) of the Guidelines . Some provinces, like Quebec, even provide courts with discretion to alter default child support arrangements, within defined limits, on the basis of need: see art. 587.1 of the Civil Code of Québec , S.Q. 1991, c. 64 . Unless the applicable regime eliminates need as a consideration in discretionary child support awards altogether, I believe it remains useful to retain this factor when courts consider retroactive awards. 113 Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid.

A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.) . This is not to suggest that the payor parent’s obligation will disappear where his/her children do not “need” his/her financial support.

Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child.

I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit. [ 23 ] To summarize, if children, deprived of support from a parent, wanted for nothing and enjoyed a high standard of living when the support should have been paid and continue to do so at the present time, the court might decide against making a retroactive award, especially if to do so would impose hardship upon the payor’s other children. [ 24 ] The children have all grown older, naturally, during the time that has passed since this application was filed: B is now [omitted for publication]; K is almost [omitted for publication]; A is almost [omitted for publication].

A lives with her mother. [ 25 ] K was living with her mother until she moved away from home and in with a friend on a “youth agreement” in 2021, under which she was provided some rental and financial assistance to live. K has returned home and then moved out again several times under various renewals of the youth agreement, some of which did not include any residential assistance and provided only $100/m in financial assistance.

Most recently, on March 1, 2023, K moved into her own apartment, under an arrangement with the Ministry of Children and Family Development (“MCFD”) that the Director pays a portion of her rent and her power bill and provides some financial support every two weeks. Ms S helps her pay her internet, paid her second month’s rent and has been buying her groceries. [ 26 ] B lives independently with his girlfriend, but Ms S assists him by helping to furnish his place and she gives him money now and then. Ms S commented that her children cost her more when they are not living at home.

Ms S has also been helping the children to furnish their homes. [ 27 ] In this case, Mr B has no other children or dependents of any kind. It is reasonable to infer, from the fact that Ms S was herself in receipt of social assistance during the time periods when the children were in her care, that the children did not have an affluent lifestyle. I infer from Ms S’s evidence that the older children continue to need assistance to meet very basic needs, such as rent, groceries, furnishings and internet. Nothing in the evidence suggests that these children enjoy, or have ever enjoyed, an affluent lifestyle.

Indeed, Ms S’s evidence was that when Mr B claimed the 2017 child tax credit for A (despite having her only three months in 2017), Ms S had to repay the 2017 child tax benefit in 2018 which resulted in considerable hardship for her and her other children, including K and B. She had to rely on food coupons from MCFD to be able to feed the children. I find Mr B’s failure to meet his financial obligations to the children deprived them of support which they very much needed at the time and still need to be ready to enter the world of adulthood.

HARDSHIP [ 28 ] Mr B submits that it would not be appropriate to impose on him a retroactive child support order because such an order would cause him hardship. He submits that the fact that he is in receipt of income as a “person with multiple persistent barriers” should satisfy the court that he is incapable of earning anything greater than that amount. He testified that he lives at a bare subsistence level, and that it would be impossible for him to pay anything towards retroactive child support.

In the alternative, he argues that if the court were inclined to make a retroactive award, it should be on the basis of his current income – that is, $985/month, or $11,820 annually, not on any income greater than that. WHETHER TO IMPUTE INCOME TO MR B [ 29 ] The case of MCD v DAD , 2017 BCSC 1832 , provides a helpful

summary of the legal framework and circumstances in which it is appropriate to impute income to a party. Beginning at paragraph 27, the court said: Legal Framework [27] In addition to considering each parties’ declared income, there is a broad judicial discretion to impute income to either or both of the spouses for the purposes of determining child and spousal support. The party seeking to have income imputed must establish an evidentiary basis for such a finding: Marquez v. Zapiola , 2013 BCCA 433 at para. 36 . [28] Both parties are obligated to contribute to the support of their children.

It follows that the imputation of income involves consideration of the guiding principles set out in s. 19(1) (

a) of the Guidelines .

Section 19 of the Guidelines permits the court to impute income in several scenarios, including where a parent is intentionally under-employed or unemployed, appears to have diverted income, or has failed to provide obligatory income information. The court’s power to impute income under s. 19 is not limited by the restrictions set out in ss. 16 - 18 of the Guidelines : Ouellette v. Ouellette , 2012 BCCA 145 at para. 66 . [29] Imputing income for intentional unemployment or under-employment does not require a finding of bad faith on the part of the spouse in respect of whom imputation is sought; it only requires a finding that he or she is not earning to capacity: Beissner v.

Matheusik, 2014 BCSC 1785 at para. 37, aff’d 2015 BCCA 308. [30] In Schmidt v. Sucke, 2013 BCSC 1489, Madam Justice Fisher distilled the principles which inform the court’s analysis of theimputation of income for child support purposes at para. 45: (

a) Parties liable to pay child support cannot avoid their responsibilities simply by virtue of being under-employed (Van Gool v. VanGool (1998), (BC CA), 59 B.C.L.R. (3d) 395 (C.A.) at para. 31). (

b) Parents have a joint and ongoing legal obligation to support their children and must earn what they are capable of earning. The courtgives effect to this obligation by imputing income (Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532 (B.C.S.

C) atparas. 8-9). (

c) Bad faith is not required. A parent is intentionally under-employed if he chooses to earn less than he is capable of earning(Hanson at para. 13). (

d) When imputing income due to intentional under-employment, the court must consider what is reasonable in the circumstances,including the age, education, experience, skills and health of the parent, and other matters such as the availability of work (Hanson atparas. 14 and 20). (

e) A parent who chooses to work less than full time must justify that choice by the needs of the children. (Mahannah v.Mahannah, 2012 BCSC 403 at paras. 122-123; McCaffrey v. Paleolog, 2011 BCCA 378 at para. 49). [30] Mr B was a professional truck driver working for [omitted for publication] until the spring of 2015. He has a Class 1 driver’slicence. Ms S’s uncontradicted evidence was that, when they were together, he was a very good provider and earned over $70,000. In2013 (when the parties first separated), he earned $41,736 and in 2014 (when the parties permanently separated) he earned $31,496.

Inthe spring of 2015, he stopped working and went on social assistance, shortly after his first court appearance regarding Ms S’sapplication for child support. [31] Mr B gave a variety of explanations for stopping work. He told me during his testimony in 2021 that he had been working at[omitted for publication], but the dam blew up at Mount Polley in 2014 so he moved back to [omitted for publication]. He said he had acouple of months’ work for his “old boss” but had to “call in” to work all the time because of trouble managing his daughter who wasliving with him at the time.

I infer that the trouble Mr B had managing his daughter caused him to be unavailable to work. [32] The difficulty with Mr B’s explanation that caring for his daughter prevented him from working in 2014 or 2015 is that theagreed statement of facts provided to court in 2023 indicate that none of the children lived with Mr B in 2014 (except for one month), norin 2015, nor did either of his daughters live with him in 2016.

In fact, Mr B did not have a daughter living with him until September 2017.Thus, Mr B’s explanation that he was unable to work because of difficulties managing his daughter in 2014, 2015 (or even 2016 andmost of 2017) is simply untrue. [33] Mr B also said he went on welfare as a result of a neck injury that happened sometime in 2015, but he did not specify when ithappened, except that it was after he left his residence in [omitted for publication] and returned to [omitted for publication].

Mr B said hewas unable to provide any further details about his neck injury because his papers were all burnt up in a vehicle fire. [34] Mr B testified that he applied for a disability pension recently but did not qualify because that pension required a certification ofhis disability by his doctor. Then in March of 2023, he applied for a form of social assistance called “persons with persistent multiplebarriers”. In the application document, Mr B wrote that he has suffered from neck, shoulder and arm pain since 2012, which isinconsistent with his evidence that it started after a quadding accident in 2015.

He also ticked a box in which he attested that he did nothave basic skills for employment – despite having worked as a professional driver for many years and having a Class 1 driver’s licence. Iinfer that Mr B was unconcerned with the accuracy of the information he provided in order to obtain this form of enhanced socialassistance. Given Mr B’s lack of honesty, I cannot place much, if any, weight on his testimony. [35] Mr B testified in 2021 that he was working at that time one hour per day – for which he was paid in meat. He said he tradedmechanical work and yard work in return for getting rides.

He said he worked the two summers prior to 2021, working five-six hours perday driving a tractor in the evenings at a vineyard, but stopped when his neck injury became worse.

The neck issue did not, however,prevent him from doing mechanical work or yard work in 2021, when he was working odd jobs for cash or kind. [36] I also recall Mr B’s evidence from June 2021 that he had been advised of the option to have surgery to correct the problem in2015 and several times since then, but because he was informed he would have to quit smoking, he chose not to have the surgery becausehe preferred to continue with his two-pack-a-day smoking habit.

Mr B testified more recently that he has no intention of having theproblem surgically repaired because the idea scared him and he “has not looked into it too much.” [37] Mr B has not provided tax returns or any other financial disclosure regarding his income in 2020. Income information about thatyear would assist the court to know what earnings Mr B is capable of even if suffering from a neck injury.

Clearly, it was possible forMr B to provide that information, given that he was able to provide summaries or notices of assessment for the years before and afterthat year and it is not difficult to download the relevant information from the CRA website. [38] I find it is not a coincidence that Mr B failed to provide information for a particular year in which, according to his testimonybefore me in 2021, he admits he was working (although his financial statement indicated he was receiving Employment Insurance as ofNovember 2020). Mr B earned $28,864 in 2019 according to his income tax return

summary. According to his financial statement swornNovember 23, 2020, Mr B claimed to have an annual income of $21,984, declaring that his source of income was Employment Insurancebenefits. Although he did not disclose his 2020 tax return or notice of assessment, he testified that his 2020 income from vineyard workwas “about the same” as 2019. [39] Mr B testified that his failure to return to vineyard work in 2021 was due to his neck pain increasing, and since then he claims he

has been completely disabled from working and is in receipt of a disability pension. I note that in 2021 he was able to carry on working, doing heavy work as a mechanic. His evidence was more recently, he was able to continue enjoying outdoor activities such as quad riding and snowmobile riding. Indeed, his reason for missing trial dates earlier this year included that he had broken some ribs while snowmobiling. [ 40 ] Mr B’s assertion that he is poor and completely disabled from working at any occupation calls for deeper scrutiny.

Mr B testified that, in addition to quadding and snowmobiling, he goes camping and sleeps in the back of his truck or in a tent on a foamy, all of which I think would be very difficult and painful for a person suffering such pain that he cannot work at all. I find it surprising that a person who claims to be unable to work at all due to neck pain is able to enjoy vigorous (and expensive) outdoor activities like quadding and snowmobiling multiple times per year and as recently as January of 2023. [ 41 ] Mr B was able to work in 2013 ($41,736) and in 2014 ($31,360).

If Mr B did indeed suffer from neck and other pain ever since 2012 (as he claimed in his application for “persons with persistent multiple barriers” application), clearly it did not interfere with his ability to work from 2012 until 2015 – which is when Ms S filed her 2015 application for child support. I am not satisfied that Mr B’s current receipt of “persons with persistent multiple barriers” social assistance is based on a physical disability.

It appears to be based, at least in part, on his statement that he has “no basic skills for employment”, which, given he possesses a Class 1 driver’s licence and years of experience as a professional driver, is a patently false statement. Based on Mr B’s evidence that he did not qualify for a disability pension that required a medical certification, I find he is not medically disabled from working. [ 42 ] I place no weight on Mr B’s evidence that he was unable to work in the vineyard in 2021 due to his neck pain.

I find he was doing exactly what he threatened Ms S that he would do – to quit declared employment and work “under the table” if he might be required to pay child support. [ 43 ] I find that it is appropriate to impute income to Mr B for the years 2015-2018. While it may be that Mr B was capable of working to a much higher level than his declared income in 2014 and 2019, I find that his income in those years provide a sufficient basis to conclude that Mr B was certainly capable of earning at least $30,000 annually. I therefore impute to Mr B an income of $30,000 annually for each of 2015, 2016, 2017 and 2018.

CHILDREN’S RESIDENCE [ 44 ] The parties were able to agree, with the assistance of counsel and Ministry records, on most details concerning with whom the children lived in the years from 2014 onward, with some disagreement about where B was living at various times. [ 45 ] In 2014, all of the children were in the care of Ms S after separation, for almost all of the remainder of the year (eight months) and Mr B had the children for one month, in July 2014. [ 46 ] In 2015, all of the children lived with Ms S until B went to live with a family friend from September 30, 2015 to December 2015 and did not live with either parent the remainder of the year.

The girls remained living with their mother. Ms S testified, and I accept, that she paid for B’s living and other expenses when he was living away from her in 2015. [ 47 ] In 2016, K and A remained living with their mother all year, and B lived with his father for June and September (two months). [ 48 ] In 2017, both girls lived with their mother until September (eight months), until A went to live with her father (four months) and B lived elsewhere. [ 49 ] Ms S testified, and I accept, that B returned to live with her in her home in February 2018, which means that Ms S had the care of B for nine of 12 months.

K lived with her mother and A lived with her father in 2018, until all of the children were removed from each parent on November 26, 2018. [ 50 ] In 2019, the children remained in the care of child-protection authorities until they were transitioned back to Ms S in August 2019. B went to live on his own, under a youth agreement with the MCFD, instead of returning home.

Ms S is not seeking child support for 2019 because the children were not in her care until late in the year, and after that, in 2019 and 2020, she and Mr B were splitting the parenting time for the children and the parties agree their incomes for those years were similar. Thus, the period of time to which retroactive orders are sought is January 2014 to November 26, 2018. QUANTUM OF RETROACTIVE CHILD SUPPORT AWARD [ 51 ] Mr B’s declared income in 2014 was $31,491. I have imputed income to Mr B of $30,000 for each of the years 2015 to 2018.

No dispute was raised with respect to Ms S’s income or her income-earning capacity. I therefore accept that her income was as stated in her financial statements for those years. The calculation of child support is as follows: 2014 [ 52 ] Ms S’s income was $13,982, for which Guideline support was $202/month and Mr B’s income was $31,491, for which Guideline support was $650/month. After deducting the one month owed by Ms S to Mr B, plus his solitary child-support payment of $400, the balance owing from Mr B to Ms S is $4,598. 2015 [ 53 ] Mr B’s income is imputed to be $30,000.

None of the children lived with him at any time so this is not a split-parenting situation. Since Ms S provided for B’s expenses even when he was not living in her home in October, November and December, I find it is appropriate that Mr B pay Guideline child support for all three children for the entire year, at $619/month, for a total of $7,428. 2016

[ 54 ] In 2016, Ms S had two of the children for 10 months and all three of the children for two months. Mr B had B for two months. Ms S’s income was below the Guideline cut-off for the payment of child support. Based on his imputed income of $30,000, Mr B owes 10 months’ child support for two children at $463/month, and two months’ child support for three children at $619/month, for a total $5,868. 2017 [ 55 ] In 2017, Mr B’s imputed income was $30,000. Ms S’s income was $8,475, which is below the cut-off for the payment of child support under the Guidelines .

Ms S had both daughters with her until September, after which each parent had one daughter living with them. Commencing December 2017, the Guideline amounts were changed. Accordingly, Mr B owes child support for two children for eight months at $463/month, three months for one child (September, October and November) at $269/m and one month (December) for one child at $279/month, for a total of $4,790. 2018 [ 56 ] In 2018, Ms S earned $13,796 and Mr B’s imputed income was $30,000. It is agreed that Mr B had the care of A and Ms S had the care of K.

I have found that B lived with his mother from February 2018, onwards. All children were removed at the end of November 2018 from both parents. Based on her income, Ms S’s child-support obligation for A would be $53/month for a total of $583 owed to Mr B. Based on his imputed income, Mr B’s child-support obligation was $279/month for two months for one child and $484/month for eleven months for two children, for a total of $5,324. The net amount of child support owed by Mr B to Ms S for 2018 is $4,741. [ 57 ] The total of the aforementioned amounts is $27,425.

The arrears of child support for the period 2014-2018 is fixed at $27,425. [ 58 ] Normally, child support is made payable to the parent to whom it is owed, if it is ongoing, or to whom it should have been paid at the time to which it applies.

There is no doubt that had Mr B been paying child support all along, as he was obliged to do, it would have been payable to Ms S, who would have used the support for the benefit of the children. [ 59 ] Mr B submitted that, if the court saw fit to make an award of retroactive child support, such support be paid directly to the children in question, on the basis that B is now an adult and K is now living separately from her mother.

No authority was provided to me in support of that proposition. [ 60 ] In some circumstances, it is appropriate to pay child support directly to an adult child, but those circumstances generally apply to ongoing support orders for adult children, such as those attending a post-secondary institution. That is not the situation in this case. [ 61 ] It would be difficult, practically, to divide up the amounts owed in respect of each individual child because Guideline child support is not strictly arithmetic in its approach. For example, child support for two children is not double what child support is for one child.

But more importantly, although it is the right of the child to be supported, table child support is intended to help the recipient parent pay the for the overall costs of raising a child – such as rent, heat, light, food, transportation, and all of the things that make up a household in which a child lives.

An order directing the payment of a retroactive award of child support to a child who is now an adult ignores the fundamental fact that it was not the child who met its own needs at the time the support should have been paid – those needs were met by the parent with whom they lived. [ 62 ] Mr B admitted that he did not provide any financial support to the children at all, regardless of where they lived. Ms S testified, and I accept, that even when one or another of the children lived with Mr B, she paid for the things they needed, because Mr B would not.

I have no reason to believe that Mr B’s attitudes will change simply because I have made this order. I expect the recipient will be obliged to undertake enforcement procedures. From a practical perspective, making individual amounts payable to individual children would create an enforcement nightmare. [ 63 ] Child support should have been paid to Ms S at the time, to help support the children at the time. I find that Ms S continues to assist all of the children to this day, regardless of where they live, with what meagre resources she has. Mr B does not.

I am satisfied that if Ms S receives any portion of the award of child support I have made, she will continue to help her children to the best of her ability. I see no reason to depart form the usual practice of making child support payable to the recipient parent. The recipient of this order will be Ms S. _____________________________ The Honourable Judge S.K. Keyes Provincial Court of British Columbia