LEH v YMT, 2019 BCPC 146

Citation: LEH v YMT 2019 BCPC 146 Date: 20190625 File No: 42902 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: LEH APPLICANT AND: YMT RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE G. KOTURBASH Appearing on his own behalf: LEH Counsel for the Respondent: M. McLeod Place of Hearing: [omitted for publication] , B.C. Date of Hearing: May 17, 2019 Date of Ruling: June 25, 2019

Introduction [1] Mr H (“the father”) and Ms T (“the mother”) separated in 2006. They entered into a separation agreement. The agreementprovided that their daughter’s primary residence would be with the mother and the father would pay child support of $300 per monthcommencing on July 1, 2006, with a single adjustment to that amount occurring on or before January 1, 2007.

The agreement did notprovide for any further annual income disclosure or adjustments. [2] The separation agreement was never filed with the court and its terms were never incorporated into a court order. [3] The father stopped making support payments after September 2007. [4] The mother applies to have the arrears enforced and also seeks retroactive support consistent with the father’s Guidelineincome dating back to September 1, 2007. [5] The father, who has children in another relationship, opposes the application. He seeks an order either cancelling or reducingthe arrears and opposes any retroactive relief.

Issues 1. Are the tests for enforcement of outstanding arrears and claims for retroactive relief the same? 2. How much are the arrears pursuant to the obligation under the separation agreement? 3. Should the arrears pursuant to the obligation under the separation agreement be cancelled or reduced? 4. Can the separation agreement be varied? 5. Should the separation agreement be varied? 6. Can a separation agreement be varied retroactively? 7. What is the test for retroactive relief? 8. Should retroactive relief be ordered? 9. When should the retroactive relief begin and how much is it? 10.

Should any adjustments be made to the start date for retroactive relief to ensure a fair and just result? Analysis 1. Are the tests for enforcement of outstanding arrears and claims for retroactive relief the same? [6] No. [7] One of the primary factors that drive the analysis for retroactive relief is the need for certainty and predictability in the payor’sability to manage his or her financial affairs. Payors need to have some confidence that if they comply with an order or agreement, theycan direct money to other things.

However, for obvious reasons, when it comes to noncompliance and enforcement, certainty andpredictability are not a consideration. [8] To require a recipient parent to satisfy the complex test for retroactive relief to compel compliance with an existing order oragreement would undermine the integrity of the order or agreement. The burden is not on the recipient parent to justify why they shouldbe granted the court’s assistance in ensuring compliance.

Instead, the onus is on the payor to establish why he/she should not have topay. [9] In MacCarthy v MacCarthy, 2015 BCCA 496, the British Columbia Court of Appeal concluded that the chambers judge erredby applying the factors for retroactive relief and cancelling arrears flowing from the payor’s noncompliance of a support order. The courtobserved that instead of using the test for retroactive relief, the chambers judge should have applied a more simple one: i. Whether there is a material change in circumstances; and ii.

Whether it would be “grossly unfair” not to cancel or reduce the arrears. [10] The court also emphasized that arrears should only be cancelled if the payor demonstrates that he/she is unable to pay “now”and in the future. [11] The court went on to reject Mr MacCarthy’s submission that he should not be required to pay arrears because of MsMacCarthy’s delay in pursuing an application for their payment and because the award would provide no discernible benefit to their adultchildren. In doing so, the court cited with approval Madam Justice Martinson’s comments in Earle v Earle, (SC),which are worth repeating:

Basic Principles There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so.

a) If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away. Examples a. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future. b.

A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. d.

Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears. e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance. f. Judges will not cancel arrears because the children were looked after in spite of the non payment. g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed. h.

An agreement between parents that the maintenance for the children does not have to be paid will not be considered. i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears. j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children. k.

The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears. [ 12 ] Delay in applying for enforcement will only be relevant if the obligor can demonstrate prejudice and an inability to pay at the time of the application or in the future. Because the right of support belongs to the child, not the parent, the right to enforce the agreement should not be easily displaced by a parent's delay or lack of diligence in enforcing the right.

MacCarthy v MacCarthy , 2015 BCCA 496 ; Daniels v Lakes , [1987] BCJ No 237 . 2. How much are the arrears pursuant to the obligation under the separation agreement? [ 13 ] Under the separation agreement, the father was required to pay $300 per month and the parties were to adjust the amount on or before January 1, 2007, but failed to do so. According to the father, and the mother’s pleadings, the father complied with the agreement until September 1, 2007.

The arrears are as follows: • From October 1, 2007, until December 1, 2018 (Effective date of Daneliuk J’s interim order adjusting support to $922 per month) or 134 months, the total arrears are $40,800. • For the period from December 1, 2018, to the present, the father is in arrears of $1,571. [ 14 ] The total arrears flowing solely from the separation agreement and the interim court order are $42,371. 3.

Should the arrears pursuant to the obligation under the separation agreement be cancelled or reduced? [ 15 ] No. [ 16 ] The onus is on the father to demonstrate that it would be grossly unfair not to cancel or reduce the arrears.

Section 174, Family Law Act ( the “Act”). [ 17 ] T he onus is a heavy one, and the bar for establishing gross unfairness is particularly high. Luney v Luney , 2007 BCCA 567 leave to appeal refused [2008] SCCA No 90. [ 18 ] The father argues that because he has two other children to support, it would be grossly unfair for him to have to pay the arrears. [ 19 ] The father’s other support obligations are insufficient to meet the test of gross unfairness. [ 20 ] The father committed to having more children knowing that he was in default concerning his support obligations for his first child. His daughter is not under a responsibility to subsidize the father’s other two children.

[ 21 ] The father earns almost $100,000 per year and has substantial equity in his home, and vehicles. He has the ability to pay now and in the future. 4. Can the separation agreement be varied? [ 22 ] Yes. [ 23 ] Although the pleadings are not explicit, I take from the mother’s application that she is applying for a variation of the parties’ separation agreement under section 148(3) of the Act . [ 24 ] The Act provides that a separation agreement can be varied, but only if the presiding judge is satisfied that he/she would have made a different order after considering the matters set out in

section 150 of the Act . [ 25 ] Where an agreement deals with child support and a payor has complied with it, the court will give considerable weight and deference to the agreement reached. However, child support is the right of the child and parties should not be permitted to easily displace that right by bargaining it away for something less. [ 26 ] Unlike a variation of a court order,

section 150 does not require the applicant to demonstrate a material change in circumstances to vary a separation agreement; the applicant is only required to show that the agreement does not provide “reasonable arrangements for the support of the child.” [ 27 ] Subsection 150(3) of the Act says I must consider the support Guidelines in determining whether reasonable arrangements have been made. However, I must not find the arrangements to be unreasonable “solely” because the amount required under the Guidelines differs from those arrangements. 5.

Should the separation agreement be varied? [ 28 ] Yes. [ 29 ] The father argues that the agreement should not be varied. He says that deference should be given to the agreement and support should remain payable in the amount of $300 per month. He says the arrangement was reasonable at the time and remains reasonable today. He points out that even despite his failure to fulfil his obligation under the agreement, his daughter was not disadvantaged and suffered no hardship. [ 30 ] The mother argues that the arrangement is not reasonable.

The father’s income has more than doubled and the agreement does not provide for any adjustments. Under the current Guidelines , the father’s support obligation is more than $900 per month; an increase of more than 300%. [ 31 ] There is no question that I would have made a different order than the terms set out in the separation agreement.

I do not reach this conclusion “solely” because the Guideline amount differs from the arrangement, but instead, because the difference is so substantial. [ 32 ] There is no explanation in the agreement, nor was any explanation provided by the parties, why they would have bargained away even the minimum guideline amount at the outset and any requirement for future adjustments.

There is no other provision for the child in the agreement that would have made such an arrangement reasonable. [ 33 ] Although the child has been well cared for over the years by her mother, she did not enjoy the sort of lifestyle she could have if the father had lived up to his obligations to pay child support consistent with his income. 6.

Can a separation agreement be varied retroactively? [ 34 ] Yes. [ 35 ] Although there is a divergence of opinion whether a court has authority to vary a separation agreement retroactively, I am satisfied that it can. [ 36 ] The courts in RM v NM , 2014 BCSC 1755 , and Chutter v Chutter , 2016 BCSC 2407 , both appear to suggest that separation agreements cannot be varied retroactively. However, Mr Justice Schultes in GJL v MJL , 2017 BCSC 688 says they can. I find his reasoning persuasive and after carefully reviewing all three decisions, prefer it.

Two other decisions that I find instructive on this issue are A(TL) v R(M), 2015 BCPC 151 , and D(SL) v G(SA), 2015 BCPC 370 . 7. What is the test for retroactive relief? [ 37 ] In deciding under 148(3) whether I should set aside the parties’ agreement on child support, and order retroactive relief, I am guided by the considerations identified by the Supreme Court of Canada in DBS v SRG, 2006 SCC 37 . [ 38 ] In that case, the court identifies the general principles that guide the determination and four factors that must always be considered. [ 39 ] The general principles are: i.

The need on the part of the child and custodial parent for financial support; ii. The payor’s interest in certainty and predictability when financial obligations appear to be settled; and iii. The need for flexibility in order to ensure a just result.

[ 40 ] Notwithstanding these general principles, I am required under the Family Law Act to maintain my focus on the best interest of the child. In this regard, the court in DBS reminds me that it is essential to acknowledge that: i. Child support is the right of the child which arises upon birth and exists independent of any statute, court order, or agreement. ii. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. The amount of child support owed will vary based upon the income of the payor parent. iii.

It is the responsibility of both parents to ensure that a payor parent satisfies their child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the court may grant relief to correct the failure. iv. Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it.

Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated. [ 41 ] The four factors that are to be considered along with the general principles in assessing the claim are: i. Whether there was a reasonable excuse for why the claimant did not pursue increased child support earlier; ii. The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support; iii.

Consideration of the past and present circumstances of the child, and the extent to which they may benefit from a retroactive award; and iv. Any hardship that may be occasioned by a retroactive order. [ 42 ] Because the overarching principles remain key to the analysis, none of the factors are decisive; instead, a holistic approach must be taken and all of the circumstances considered in reaching a fair and just result. 8. Should retroactive relief be ordered? [ 43 ] Yes. [ 44 ] I begin my analysis by considering each of the factors identified by the Supreme Court. a.

Was there a reasonable excuse for the delay in pursuing increased support? [ 45 ] Unlike arrears, unreasonable delay in commencing court proceedings can militate against a retroactive award. [ 46 ] In Brown v Kucher , 2015 BCSC 1258 , aff’d 2016 BCCA 267 , Justice Fisher explains at para. 34 that “[t]his factor responds to two important concerns: the payor parent’s interest in certainty and the child’s interest in discouraging delay by the recipient parent in seeking the appropriate amount of support.” Justice Fisher explains further: [35] The payor parent's interest in certainty is diminished where his conduct is blameworthy, such as where he fails to inform the recipient parent about increases to his income or where he pressures or intimidates the recipient parent.

An absence of this kind of blameworthy conduct may ensure that a delay is characterized as unreasonable, and "[i]n this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met." [36] For the child, a retroactive award is a poor substitute for past obligations not met, which is why recipient parents must act promptly and responsibly in monitoring the amount of child support paid: Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children. [37] Unreasonable delay does not have the effect of eliminating the payor parent's obligation but is a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. [ 47 ] Since child support is the right of the child, unreasonable delay by the recipient in advancing a claim is only one factor to consider in balancing the competing interests of the parties and the child, and determining the most appropriate action for the court to take.

Therefore, even where there is a very long delay in advancing the claim for which there is no reasonable excuse, the court can still order retroactive relief based on other considerations. [ 48 ] In particular, where there is blameworthy conduct on the part of the payor, coupled with unreasonable delay by the recipient, the court is more likely to award retroactive relief despite the delay. Albeit, the court may decide to reduce the period of retroactivity or delay its implementation to achieve a just result. [ 49 ] An applicant’s reasons for the delay must be subjectively honest and objectively reasonable.

The longer the delay, the more robust the excuse must be to qualify as a reasonable one. [ 50 ] The mother provides a few reasons for not pursuing the application sooner. [ 51 ] First, she describes the father as intimidating and vindictive. She said she believed that merely initiating an application to enforce the $300 obligation under the agreement would provoke the father.

[ 52 ] She described their relationship as dysfunctional with the father bullying, pushing and pinning her against walls during arguments.

The father disagreed with her characterization and denied any physical violence during the relationship. [ 53 ] Although there may have been some degree of dysfunction and even physical violence during the relationship, since 2007 the mother has lived several hundred miles away from the father, for many of those years she was living with a partner, and there is no evidence of any intimidation, threats or suggestion of violence by the father. [ 54 ] Although the mother may honestly fear physical harm by the father, it is not a fear that is well-grounded and able to provide a reasonable excuse. [ 55 ] The mother also said she feared the father would disrupt the current parenting arrangement by not returning their daughter after his parenting time, or apply to change their daughter’s primary residence to [omitted for publication].

She presented no evidence that he had done so in the past.

When the parties separated, he consented to her relocating from [omitted for publication] to [omitted for publication] with their daughter. [ 56 ] The mother said her fear of the father being successful with such a claim diminished as their daughter grew older and was in a position to decide for herself where she would live, implying that her daughter would most likely choose to remain living with her. [ 57 ] Although I accept the mother feared disruption of the current parenting arrangement, I do not accept her fear is reasonably placed and can provide a reasonable excuse. [ 58 ] The mother also said that she lacked the financial ability to pursue even the barest of application for enforcement of the agreement.

I reject this as a reasonable excuse. Since the separation, she has earned as much as $50,000 per year. Although not a significant income, for most of the time she was in a relationship and in 2010 sold a house freeing up a substantial portion of the money that could have been put towards an application. [ 59 ] Finally, the mother said she did not apply for increased support sooner because she was unaware of the changes in the father’s income.

The father did not challenge this assertion and admits not sharing any information with the mother. [ 60 ] The mother has not lived in the same community as the father for several years, and the father has not changed companies since the breakdown of their relationship. There were no reasons for the mother to even suspect his income had changed in any measurable way. [ 61 ] A recipient parent’s lack of knowledge about the true magnitude of a payor’s income increase can support a finding that a delay in filing is reasonable.

Burchill v Roberts , 2013 BCCA 39 and Reis v Bucholtz , 2010 BCCA 115 ; DBS v GSR, 2006 SCC 37 . [ 62 ] I find the mother’s last excuse the most compelling and reasonable in the circumstances. It was not until she pursued the application for arrears that she learned about the substantial increase in the father’s income. It was only then that there would have been a reason and incentive to pursue an application for a retroactive increase in support. b.

Conduct of the Payor [ 63 ] The mother argues that the father engaged in blameworthy conduct by not complying with his obligation under the agreement and by failing to disclose and adjust support when his income increased. [ 64 ] A payor’s interest in certainty and predictability will be at its lowest when the payor has engaged in blameworthy conduct concerning his or her child support obligations. [ 65 ] The court in DBS encourages an expansive view of what constitutes blameworthy conduct in the context of analysing retroactive support claims, and characterizes the phrase as including “anything that privileges the payor parent’s interest over his child’s right to an appropriate amount of child support.” [ 66 ] A payor who knowingly avoids or diminishes his or her support obligation should not be allowed to profit from such irresponsible conduct.

The payor will not be absolved of any retroactive liability by merely stating that the recipient did not ask for disclosure, especially when the increase in income is so substantial. [ 67 ] Like this case, where the separation agreement does not provide for annual automatic income disclosure and adjustments, the cases have gone both ways in deciding whether a failure to do so amounts to blameworthy conduct.

The cases that say that failing to pay higher amounts voluntarily does not amount to blameworthy conduct typically are ones where there is no other blameworthy conduct, like requests for disclosure that are ignored, misleading information, or intimidation. [ 68 ] In other cases, courts have said a simple failure to disclose and adjust is blameworthy, even in the absence of a clause requiring the same.

Greene v Greene , 2010 BCCA 595 ; Hinds v Hinds, 2008 BCCA 547 . [ 69 ] In each case whether a payor has engaged in blameworthy conduct will be a subjective question that is ultimately a matter of judicial discretion. [ 70 ] Indeed, it will be less blameworthy if the payor is complying with terms of an existing order or agreement.

Dyck v Bell, 2015 BCCA 520 . [ 71 ] An important consideration will always be whether the payor had a reasonably held belief that he was meeting his support obligations. [ 72 ] A helpful indicator for assessing the reasonableness of their belief on this issue is the extent to which the child support the payor was paying diverges from the amount he/she should have been paying; the closer the two amounts are, the more reasonable the

payor’s belief will be that he/she was meeting his or her obligation and vice versa. [ 73 ] By not disclosing and adjusting, and ignoring, his obligation to support his daughter for more than ten years despite his income almost doubling, the father engaged in blameworthy conduct. [ 74 ] The father’s blameworthy conduct favours a retroactive award. c. Past and Present Circumstances of the Child [ 75 ] The past and present circumstances of the child must also be considered to determine the extent to which the child would benefit from a retroactive award.

If there is no evidence of need, the court may assume that other sources are meeting any increases in the child's expenses. On the other hand, proof that the child suffered hardship due to insufficient support in the past will support an award. [ 76 ] In Swiderski v Dussault , 2009 BCCA 461 , the British Columbia Court of Appeal observed that the requirement of considering the circumstances of the child does not impose a burden on the recipient parent to prove “significant need” on the part of the child to succeed.

A payor parent cannot avoid a retroactive award by merely arguing that, despite his or her past default, the recipient was able to care for the child sufficiently. [ 77 ] In Hartshorne v Hartshorne , 2010 BCCA 327 , the court also emphasizes that past and current needs of the child are only one factor to consider, and the fact that the child’s needs may have been met despite the payor’s shortcoming concerning support will not be determinative.

Child support is the right of the child and the child is entitled to share in the financial position of the payor parent, even though their basic needs have already been met. [ 78 ] Typically, where there has a been a significant increase in the payor’s income, the court will conclude as a matter of common sense that the child suffered as a result of the payor’s failure to pay increased support. Burchill v Roberts , 2013 BCCA 39 ; Swiderski v Dussault , 2009 BCCA 461 . [ 79 ] The parties’ daughter is now [omitted for publication] years old.

According to the mother, there were times throughout the child’s life when she could not participate in extracurricular activities, sports, go to summer camps, or on vacations. When the child was in elementary school, the mother said she did not have enough money to buy their daughter winter boots.

When she asked the father to assist, she was rebuffed. [ 80 ] Although the mother currently earns around $50,000, there were years that she made much less, sometimes close to minimum wage. [ 81 ] The mother testified that their daughter expresses plans to attend university, but she has been unable to put away any savings. [ 82 ] I cannot conclude in the circumstances that the child has or is enjoying even a modest standard of living. The circumstances of the child favour a retroactive award. d.

Hardship Occasioned by a Retroactive Award [ 83 ] Finally, the Supreme Court of Canada noted in DBS that a broad consideration of hardship is also required in determining whether a retroactive award is appropriate. [ 84 ] The hardship to the payor for a retroactive support analysis is distinguishable from the notion of undue hardship referred to in

section 10 of the Guidelines for prospective support orders. The assessment when considering retroactive relief is less stringent. T(LC) v K(R) , 2017 BCCA 64 . [ 85 ] Income earned during the retroactive period may no longer be available and new family obligations need to be considered. [ 86 ] The onus is on the payor to establish evidence of hardship.

Hardship cannot be inferred and it is insufficient to raise vague allegations of alleged hardship without providing concrete proof. [ 87 ] Hardship for the payor parent will not be given significant weight in the analysis where the hardship is the result of the parent’s blameworthy conduct, including improperly stopping the payment of all child support. [ 88 ] Where a payor like the father has not complied with an existing agreement, he or she cannot use the principle of predictability as a shield.

He or she cannot claim reliance on the agreement for managing his financial affairs, and a successful defence will have to be founded on other considerations. Gray v Rizzi , 2016 ONCA 152 ; Collins v Collins , 2017 ONSC 2232 [ 89 ] Given the size of the arrears, the amount of retroactive relief, and the adjustment of his support obligations going forward, there is no doubt that the father and his current family will experience some hardship.

However, I must temper these findings of hardship with the blameworthy conduct engaged by the father. [ 90 ] I am not satisfied that the potential hardship to the father and his current family ought to stand in the way of an award. 9. When should the retroactive relief begin and how much is it? [ 91 ] Generally, a retroactive child support order should commence as of the date that effective notice is given to the payor.

The court in DBS described effective notice very broadly as “any indication by the recipient parent that child support should be paid or re- negotiated.” All that needs to be established to satisfy this requirement is that the topic of child support is raised. [ 92 ] Once effective notice has been provided, the payor parent can no longer assume the status quo is fair, and any interest he/she

has in certainty becomes less compelling. [ 93 ] The mother separated from her recent partner about three years ago. At that time she asked the father to pay child support. He refused and suggested she pursue her former partner. [ 94 ] Several years earlier she also asked the father to pay for winter boots, again this would have put the father on notice that support needed to be paid. [ 95 ] In DBS the court observed that where there was no effective notice, the starting point will be when the formal notice was given to the payor.

Formal notice is when the application is served on the other party and not the commencement of the application. [ 96 ] The court also said that in the interests of certainty, predictability and ensuring the child support claims are pursued in a reasonably timely manner, as a general guideline, retroactive support should not go back further than three years from the date of formal notice. [ 97 ] However, like any guideline, the Guidelines is not absolute.

In appropriate circumstances, retroactive relief can extend further back, even as far back as when the child support should have first been adjusted. [ 98 ] In DBS the court cites blameworthy conduct, like a failure to disclose increases in income, as an example of when a court might be inclined to go further back. [ 99 ] Evidence of such blameworthy conduct, according to the court, will usually move the presumptive date of retroactivity back to the time when the circumstances materially changed, to disentitle the payor parent from using his or her informational advantage to justify deficient child support payments. [ 100 ] However, courts are generally reluctant to go too far back.

In Brown v Kucher, 2016 BCCA 267 , leave to appeal dismissed [2016] SCCA No 381, in overturning the trial judge’s decision to award retroactive child support for 19 years, the court noted that the longest period of retroactive support was seven years in Swiderski v Dussault , 2009 BCCA 461 . [ 101 ] In the case at hand, the circumstances regarding the father’s income materially changed in 2012. It was in 2012 that one would have reasonably expected the father to disclose to the mother that his income had increased substantially from when they entered the separation agreement.

Although his income changed before this time, the changes were much less significant. [ 102 ] As a starting point, I am satisfied that retroactive relief should begin on June1, 2012. [ 103 ] Using June 1, 2012 as the starting point the retroactive relief is $34,398 which is in addition to the arrears arising from his original obligation to pay $300 per month. Alternatively, if the retroactive relief were to apply to January 1, 2007, the amount would be in excess of $45,000. 10.

Should any adjustments be made to the start date for retroactive relief to ensure a fair and just result? [ 104 ] Yes. [ 105 ] In DBS the court held that judges retain a broad discretion concerning the quantum of retroactive awards and emphasized that they should not order a retroactive award in an unfair amount, having regard to all of the circumstances of the case. Judges should always strive to craft awards in a way that minimize hardship to the payor and any other children requiring support. [ 106 ] Using the Guidelines as a starting point, the award for retroactive relief from June 1, 2012, is $34,398.

The father is also obliged to pay $42,371 in arrears, and $922 per month in support going forward. [ 107 ] The father argues that ordering all the retroactive relief sought by the mother will overwhelm him financially and pose a hardship for him because he has two children from another relationship. The children are four and seven.

According to the father, he recently separated from the mother of his children, but no formal child support arrangement has been made. [ 108 ] He has expressed a willingness to provide for his two other children, an assertion I accept with some guarded scepticism. [ 109 ] He also argues that his income is less than what it was last year because he was demoted as a result of an industrial accident and is currently on stress leave. According to the evidence presented by the father, his company intends to have him return to his original position and pay scale once he is fit to operate the machinery.

Unfortunately, it is not clear how long that might be. [ 110 ] The evidence does not demonstrate that the reduction in income will be indefinite or even long-lasting. If it does become so, it could constitute a material change in circumstance necessitating a variation of this order. [ 111 ] The father also owns a home with approximately $270,000 equity and $253,000 owing. He has approximately $60,000 in vehicles and farm equipment and $5,000 in RRSPs.

He owes $5,000 on a line of credit. [ 112 ] The father has $345,000 in assets and $258,000 in debts, for net a worth of $87,000. [ 113 ] The mother on the other hand has assets totalling $70,539 and debts of $47,955, for a net worth of $22,583. [ 114 ] After considering all of the circumstances, I am satisfied an adjustment of the start date for retroactive relief should be made to June 1, 2014. Doing so will achieve a fair and just result.

The total retroactive relief award is $29,946. [ 115 ] The total arrears including those flowing from the obligation under the existing agreement and Judge Daneliuk’s order of December 1, 2018, is $72,317.

Order 1. The father is a resident of British Columbia and has a gross annual income of $97,238. 2. The father will pay to the mother the sum of $922 per month for the support of [omitted for publication] commencing on December 1, 2018, and continuing on the first day of each month thereafter, for as long as the child is eligible for support under the Family Law Act , or until further court order. 3. The arrears owing from the father to the mother are $72,317 for the period of October 1, 2007, to and including June 30, 2019. 4.

The father will pay to the mother a minimum of $500 per month towards the arrears of support, in addition to regular monthly support payments, commencing on July 1, 2019, and continuing on the first day of each month thereafter until all the arrears are paid in full or until further court order. 5. For as long as [omitted for publication] 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, no later than June 1 of each year; and (

b) copies of any notice of assessment or reassessment provided to them by Canada Revenue Agency, immediately upon receipt. 6. Under

section 222 of the Family Law Act, upon exchange of their income tax returns and notices of assessment, the parties are required to discuss any material change in circumstances which warrant a change in the amount of support payable. If the parties are unable to agree on whether the amount of support payable should be changed, the parties must consult with a family justice counsellor before bringing an application to change this order. _____________________________ The Honourable Judge G.

Koturbash Provincial Court of British Columbia Appendix A Year Guideline Income Guideline Amount Obligation per AG Obligation per Guide Difference Between AG Obligation and Guideline Dec – June 2018 $97,238 $922 $0 $6,454 June – Nov 2018 $97,238 $922 $1,800 $5,532 $3,732 June – May 2018 $87,740 $816 $839 (Dec) $3,600 $9,930 $6,330 June – May 2017 $79,885 $747 $3,600 $8,964 $5,364 June – May 2016 $82,035 $767 $3,600 $9,204 $5,604 June – May 2015 $71,098 $663 $3,600 $7,956 $4,524 June – May 2014 $70,180 $666 $3,600 $7,992 $4,392 June – May 2013 $71,848 $671 $3,600 $8,052 $4,452 June – May 2012 $60,582 $565 $3,600 $6,780 $3,180 June – May 2011 $61,833 $575 $3,600 $6,900 $3,300 June – May 2010 $47,598 $442 $3,600 $5,304 $1,704 June – May 2009 $57,515 $537 $3,600 $6,444 $2,844 Oct – May 2008 $3,000 Jan – Oct 2007 $3,000 (Pd) Total $40,800 $45,426