K.A. v. W.Z., 2022 BCPC 17

Citation: K.A. v. W.Z. 2022 BCPC 17 Date: 20220126 File No: 6941 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.A. APPLICANT AND: W.Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. M. MAH Appearing on their own behalf: K.A. Counsel for the Respondent: C. Wayne Place of Hearing: Richmond , B.C. Date of Hearing: December 8, 2021 Date of Judgment: January 26, 2022

Introduction [ 1 ] The applicant father, K.A., seeks to vary court orders and decrease his child support payments and reduce his arrears on the basis that he is unemployed now and suffers from undue hardship. The respondent mother, W.Z., opposes this application and brings a counter application pursuant to

section 221 of the Family Law Act to prohibit K.A. from making further applications or to continue a proceeding without leave of the court. In closing, W.Z. withdrew her

section 221 application in order to present further evidence and was granted leave to re-apply. Issues [ 2 ] The triable issues are: 1. Should K.A.’s court ordered child support payments be decreased and his arrears reduced? 2. Does K.A. suffer from undue hardship? Should K.A.’s court ordered child support payments be decreased and his arrears reduced? Background Facts [ 3 ] The parties married on [omitted for publication], 2015, and separated on July 15, 2016.

They have a son, J.A., who was born on [omitted for publication], and lives with W.Z. [ 4 ] On June 14, 2021, following a hearing, Judge Vandor made several findings and orders related to K.A.’s income. With respect to child support, Judge Vandor ordered that K.A. pay $530 per month for 2019 and $559 per month for 2020 with pro rata payments for extraordinary expenses. These orders were consented to by the parties. Judge Vandor also ordered retroactive child support in the amounts of $432 total for 2019 and $756 total for 2020 along with pro rata payment of retroactive extraordinary expenses.

Finally, Judge Vandor ordered that K.A. pay ongoing child support, based on a gross income of $60,662 in 2020, in the amount of $574 per month commencing on January 1, 2021. [ 5 ] On cross examination, K.A. admitted that he consented to the income and child support amounts and “everything” except for after school care and occupational therapy.

He also admitted that Judge Vandor’s orders reflected all of the money owed to W.Z. up to the point of trial and was still enforceable in this court. [ 6 ] Nine days following Judge Vandor’s orders, on June 23, 2021, K.A. submitted his resignation letter to his employer, [omitted for publication], for whom he worked as a [omitted for publication]. He indicated that his last day of work would be on July 7, 2021, and wrote in this letter: “I have given this decision a lot of though [sic].

Due to personal family issues and the stress that I am going through for the past couple of months, I have had a hard time focusing. I can not deal with over 750 residents. I also know that [omitted for publication] received a few complaints from residents in the building about my impatient [sic] and not up to standard performance while on my duty. Please accept my apology for that.” [ 7 ] K.A. became unemployed as of July 8, 2021, and testified that he quit his job due to stress and complaints from the residents.

He interacted with about 800 people including residents, vendors, and staff and said that the work was stressful. Law [ 8 ]

Section 152 of the Family Law Act governs the change, suspension, or termination of a court order for child support and states: 152 1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively. 2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

b) evidence of a substantial nature that was not available during the previous hearing has become available;

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. [ 9 ]

Section 14 of the Federal Child Support Guidelines states: “For the purposes of subsection 17(4) of the Act , any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

a) In the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof.

[10] The reference to subsection 17(4) is with respect to the Divorce Act which stipulates that before a court varies a child supportorder, the court must be satisfied that a change of circumstances has occurred since the making of the child support order. While thiscourt does not have jurisdiction under the Divorce Act, the applicable principle is that to substantiate any change, suspension, ortermination of a child support order, a court can consider if the change in circumstances would result in a different amount of childsupport. [11]

Section 174 of the Family Law Act applies to the reduction or cancellation of arrears of child support owing under an agreementor court order: 174 1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal supportif satisfied that it would be grossly unfair not to reduce or cancel the arrears. 2) For the purposes of this section, the court may consider

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,

b) the reasons why the person responsible for paying support cannot pay the arrears owing, and

c) any circumstances that the court considers relevant. 3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that itwould be grossly unfair not to make such an order. 4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the FamilyMaintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [12] The leading case governing both applications to change, suspend, or terminate a child support order or to cancel or reduce childsupport arrears remains the decision of Earle v. Earle, : 46 These basic principles can be summarized this way: 1) Maintenance Generally

a) Parents have a joint and ongoing legal obligation to support their children.

b) It is the child, not the other parent, who has the right to maintenance.

c) The payment of maintenance is based on not just what a parent does earn but what a parent can earn. 2) Variation

a) There has to be a material change of circumstances, a change that is significant and long lasting.

b) A change to the Guideline amount is not automatic. 3) Arrears Basic Principles

a) 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 andlong lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so.

b) If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid rightaway. 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 thetime 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 thoseefforts 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 theymissed.

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, byitself, a reason to reduce or cancel arrears. [13] In Beissner v. Matheusik 2015 BCCA 308, the father brought an application to vary child support based on a material change ofcircumstances. The subject order was made in September, 2012 and the father applied to change it about 18 months later. The Court ofAppeal defined a material change in circumstances at para. 39: [39] A material change of circumstances is the threshold issue for varying a child support order. In L.M.P. v.

L.S., 2011 SCC 64, theSupreme Court of Canada confirmed the legal test in Willick v. Willick, (SCC), [1994] 3 S.C.R. 670 for the variation of achild support order, stating: [30] In our view, the proper approach under s. 17 [of the Divorce Act] to the variation of existing orders is found in Willick [citationomitted] ... [31] Willick described the proper analysis as requiring a court to "determine first, whether the conditions for variation exist and if theydo exist what variation of the existing order ought to be made in light of the change in circumstances" (p. 688).

In determining whetherthe conditions for variation exist, the court must be satisfied that there has been a change of circumstance since the making of the priororder or variation. The onus is on the party seeking a variation to establish such a change. [32] That "change of circumstances", the majority of the Court concluded in Willick, had to be a "material" one, meaning a change that,"if known at the time, would likely have resulted in different terms" (p. 688). ... [33] The focus of the analysis is on the prior order and the circumstances in which it was made.

Willick clarifies that a court ought not toconsider the correctness of that order, nor is it to be departed from lightly (p. 687). The test is whether any given change "would likelyhave resulted in different terms" to the order. It is presumed that the judge who granted the initial order knew and applied the law, andthat, accordingly, the prior support order met the objectives set out in s. 15.2(6).

In this way, the Willick approach to variationapplications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement. [Emphasis added.] [14] Then, at para. 44: [44] Third, the judge found that the father was underemployed. In reaching that finding, the court did not have to conclude that thefather was intentionally evading or minimizing his child support obligation or that he was intentionally underemployed or unemployed. Itonly had to determine what income the father was capable of earning: Barker v. Barker, 2005 BCCA 177.

The test for a finding ofunderemployment from Donovan v. Donovan, 2000 MBCA 80, was adopted by this Court in Watts v. Willie, 2004 BCCA 600at para.16, and followed in McCaffrey v. Paleolog, 2011 BCCA 378at para. 46: [16] In Donovan v. Donovan (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80, Madam Justice Steel gave the judgment of the court andwrote at para. 21: The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income,"Determination of Income, Disclosure of Income", Child Support in Canada, Canrab Inc., August 3, 1999). 1.

There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor" (Van Gool v. Van Gool (1998), (BC CA), 166 D.L.R. (4th) 528 (B.C.C.A.)). 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances.

The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations. 3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at the lower endof the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simplybecause the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

[Emphasis in original.] [15] In Falconer v. Falconer, 2017 BCSC 2355, the court stated: [31] On a variation application, the court proceeds on the assumption that the order was correct at the time it was made and confinesitself to examining whether subsequent changes justify a variation under s. 17: Oakley v. Oakley (1985), (BC CA), 48R.F.L. (2d) 307 (B.C.C.A.). [32] In Powell v. Levesque, 2014 BCCA 33at para. 23, the Court of Appeal summarized the material change of circumstances test asstated by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64: … [33] In Dedes v.

Dedes, 2015 BCCA 194, Bennett J.A. stated at para. 25: 25 As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on whatthe parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is toprevent parties from re-litigating issues that were already considered and rejected; in such cases, an application to vary would amount toan appeal of the original order (see Gordon at para. 15).

As was stated by L'Heureux-Dube J. in Willick at p. 734, "the diversity ofpossible scenarios in family law dictates that courts maintain a flexible standard of judicial discretion which does not artificially limit theadaptability of the Divorce Act provisions". See also G. (L.) v. B. (G.), (SCC), [1995] 3 S.C.R. 370 at paras. 49-51and Jakob v. Jakob, 2010 BCCA 136 at para. 40. [34] In order to be material, the change, rather than being merely temporary, must be substantial and unforeseen and must have somedegree of continuity: L.M.P. at para. 35.

Whether voluntary retirement constitutes a material change in circumstances [35] Whether voluntary retirement constitutes a material change of circumstances for the purpose of varying an order for spousal supportdepends upon a careful scrutiny of the individual circumstances of each case: Gajdzik v. Gajdzik, 2008 BCSC 160at para. 35; Greco v.Greco, 2017 BCSC 172at para. 30. [36] In Vennels v. Vennels (1993), (BC SC), 76 BCLR (2d) 69 at paras. 31 and 34, Justice Coultas observed: Retirement of a payor under a maintenance order usually results in a significant reduction of income; that is so in this case.

Courts are notguided by legislation to enquire into the circumstances of retirement. Courts have no power to compel people to work. However, courtsshould, in the interests of justice, refuse to consider a reduced income resulting from retirement to be a material change in circumstancesjustifying a variation of a support order, where a payor spouse has intentionally put him or herself out of the money in order to frustrate amaintenance order. Any such deliberate self-induced impecuniosity constitutes deceit. . . .

When voluntary retirement is advanced as a reason for seeking a reduction in maintenance, a court must consider the circumstancesof the retirement carefully and ensure that the payor has not been prompted by deceit to avoid support orders. [37] If the court finds that a party's retirement was motivated by the desire to avoid a maintenance obligation, it will most likely imputeincome: Szczerbaniwicz v. Szczerbaniwicz, 2010 BCSC 421at para. 26. Continuing at paras. 26 and 27, Justice Punnett stated: [26] . . .

Even if the party's motivation was not to avoid maintenance, the court will likely impute income so long as the party has theability to earn an income. [27] If the retirement is not voluntary because of economic circumstances, medical reasons or an employer's actions and the payor isunable to work, the court will tend to reduce the maintenance payable; otherwise, if the payor is still capable of earning an income, hisapplication to terminate or vary spousal support will likely fail: Bentley v. Bentley, (Ont.

S.C.J.); Bullock v.Bullock, 2007 BCSC 318, 36 R.F.L. (6th) 150 at para. 7. [16] As K.A. relied only on a change of circumstances as set out in section 152(2) of the Family Law Act, in order to justify a variationof a child support order, K.A. must prove that: • there has been a material change of circumstances, which would have likely resulted in different terms and is significant and longlasting, since the order was made.

The court proceeds on the assumption that the order was correct at the time it was made; • the change is substantial and unforeseen and has some degree of continuity; and • the change is not self-induced as generally, a payor cannot avoid child support obligations by a self-induced reduction of income. [17] For a reduction or a cancellation of arrears, K.A. must prove that: • there is a significant and long lasting change in circumstances resulting in his inability to pay now and in the future.

Considerationis given to K.A.’s efforts to comply with the order, reasons why he cannot pay the arrears, and any other relevant circumstances. K.A.bears a heavy onus of proof; • it would be grossly unfair not to reduce or cancel the arrears; and • that at the time the payments were to be made, the change was significant and long lasting, was real and not one of choice, andevery effort was made to earn money during the time in question and those efforts were not successful. This evidence requires detailedand full financial disclosure under oath and usually in the form of an affidavit.

Analysis [ 18 ] The court can rely on Judge Vandor’s order as being made in the best interests of J.A. and I have no doubt in this regard. J.A.’s best interests are of paramount concern and one cannot lose sight of the fact that child support is paid for J.A.’s benefit and not W.Z.’s. [ 19 ] After resigning, K.A. applied for EI payments on July 11, 2021, and he testified that the payments began in late July.

Since December 1, 2021, FMEP has garnished his EI payments in the amount of $374 per month. [ 20 ] K.A. put several documents into evidence which demonstrated 4 to 5 complaints made prior to this application: 1. A work colleague whom K.A. managed made a BC Human Rights Tribunal complaint in December, 2017 along with Employment Standards and WorkSafe BC complaints; 2. A couple who were tenants of the building that K.A. [omitted for publication] sent emails in October, 2018; April, 2019; and November, 2020 describing their unhappiness with his professionalism; 3.

Another tenant sent an email in May, 2020 accusing the strata management of dishonesty and harassment; 4. Another tenant sent an email in January, 2021 complaining of poor management and dishonesty. K.A. was not identified in this email which was sent to a general information address; and 5. Another tenant sent an email in June, 2021 with “serious complaints” about K.A.’s conduct as a [omitted for publication]. [ 21 ] K.A. relied on these complaints as evidence of his stress.

It was put to him in cross-examination that only 4 people had complained about him in 4 years and he said that there were more but he did not have that evidence as he was no longer employed at [omitted for publication].

K.A. also relied on a screenshot dated September 20, 2018, which was of a Craigslist ad seeking a [omitted for publication] for the building that he [omitted for publication] and speculated that this ad was proof of his dismissal but could not provide any other evidence in this regard. [ 22 ] K.A. testified that he looked for other employment before quitting and put into evidence jobs that he applied for before he quit: 1. An email thread showed that K.A. applied for a property management role on May 22, 2019, and the prospective employer replied on May 24, 2019, asking for more information if he was interested.

There was no evidence that K.A. responded to this request; 2. A June 7, 2021, email showed that K.A. applied to be a live in rental manager in New Westminster; 3. A June 8, 2021, email from K.A.’s current wife forwarded a job opening for a resident manager in Richmond. There was no evidence that K.A. followed up on this opportunity; 4. A June 8, 2021, email showed that K.A. applied to be a concierge in Coquitlam; 5. A June 9, 2021, email showed that K.A. applied to be a prep cook or kitchen helper in Vancouver; 6. A June 10, 2021, email showed that K.A. applied to be a live in building manager in Burnaby; 7.

A June 11, 2021, email showed that K.A. applied to be a resident manager couple in downtown Vancouver; and 8. A text message exchange from June 13, 2021, and June 15, 2021, showed that K.A. declined an offer to be a live in property manager with BC Strata. It was not clarified if this was in relation to the job applied for on June 11, 2021. K.A. said that he had an interview with BC Strata and turned down the job because he would have had to downsize from a 2 bedroom to a 1 bedroom apartment and the pay was not as high.

He said that this interview was the only one he received and he had no replies to his other applications. [ 23 ] K.A. put into evidence jobs that he had applied for since quitting: 1. An August 10, 2021, email showed that K.A. applied for a warehouse and parts delivery job in North Vancouver; 2. A September 20, 2021, email showed that K.A. applied to be a residential rental property manager in downtown Vancouver; 3. An October 10, 2021, email showed that K.A. applied for a warehouse shipping/order picker position in Burnaby; 4.

An October 12, 2021, email showed that K.A. applied to be a pizza and pasta chef in Vancouver; 5. An October 15, 2021, email was sent to K.A. with an inquiry of interest for a residential property manager position but there was no evidence that K.A. responded; 6. An October 24, 2021, email showed that K.A. applied for a building cleaner and caretaker position in Vancouver, Richmond, and White Rock; 7. An October 24, 2021, email showed that K.A. applied to be a line cook in Kitsilano; 8. An October 25, 2021, email showed that K.A. applied to be a front desk administration assistant in Richmond; 9.

An October 28, 2021, email was sent to K.A. inquiring about interest in a property maintenance technician position in Vancouver. A follow up email to K.A. asking for a response was sent on November 4, 2021, but there was no evidence that K.A. responded;

10. A November 5, 2021, email showed that K.A. applied for a head building manager position in Burnaby; and 11. A November 5, 2021, email was sent to K.A. inquiring about his interest in a residential/rental property manager opening at Oakes. There was no evidence that K.A. responded. [24] K.A. agreed in cross-examination that he had made 5 job applications in 5 months. When asked when he intended to get a job, hesaid that he had been applying but with COVID and a new virus, not many people were hiring.

He was also concerned about his age,being 55, and that “people don’t hire people over 50.” [25] K.A. testified that he was not evading his responsibilities to pay child support but needed a “break”. On cross-examination, heagreed that he had no medical evidence about his stress. No medical records, letters, or reports were provided to show a diagnosis ormedical explanation of K.A.’s stress or why it was necessary for K.A. to quit work for health reasons.

There was also no evidence aboutthe specific family issues that caused him to quit as identified in the resignation letter to his employer. [26] K.A. bears the burden of proof to establish a material change of circumstances since Judge Vandor’s order was made. In thisregard, the window of time is quite narrow as Judge Vandor made her order on June 14, 2021, and K.A. quit his job on June 23, 2021,and filed this application just weeks after. [27] W.Z. argued that the test is not met and that Judge Vandor’s order should not be changed.

But if the order should be changed,W.Z. argued that income should be imputed to K.A. for intentional underemployment pursuant to Hanson v. Hanson 1999 Can LII 6307and Drygala v. Pauli (ON CA), 2002 61 O.R. 3d 711. [28] I have considered the evidence provided by K.A. and find that it falls well short of establishing a material change ofcircumstances since Judge Vandor’s June 14, 2021, order. [29] The material change that K.A. relies on is his unemployment.

While I accept that unemployment generally is a significant andsubstantial change and in this case, may have resulted in different terms, namely a different amount of child support, there was noevidence that this change would be long lasting, carried some degree of continuity, or was unforeseen.

In fact, all of the complaints thatK.A. relied on to substantiate his stress and resignation were known to him at the time of Judge Vandor’s order and he cannot say thatthis change was not known or reasonably foreseen at the time of the order. [30] Moreover, I am more troubled by the reason for this change and find that K.A.’s unemployment was self-induced. I make thisfinding because K.A. produced no expert or medical evidence to prove that he was suffering from work stress which necessitated hisresignation or that he would be disabled due to stress, anxiety, depression, or another psychological illness.

There was also no evidenceand only K.A.’s speculation that K.A.’s employer was going to terminate him imminently. K.A.’s change in circumstances is self-induced and he cannot avoid child support obligations by a self-induced reduction of income. While K.A.’s unemployment continues, theevidence raises concerns about his efforts to secure new employment. K.A. was approached on multiple occasions about employmentopportunities but did not respond to these requests.

In addition, he was offered a job which would have ended his unemployment butdeclined the offer. [31] For these reasons, I find that K.A. has failed to prove a material change of circumstances to justify a variation of Judge Vandor’sJune 14, 2021, child support order. [32] With respect to K.A.’s arrears, a December 6, 2021, statement from FMEP set arrears as of that date at $9,163.74. W.Z. testifiedthat the last payment was made on June 4, 2021. She also swore an affidavit, dated November 4, 2021, which attached K.A.’s Record ofEmployment.

The Record of Employment showed that K.A. was paid about $41,736.41 up until the time that he quit. On that basis, shecalculated the EI payments for 2021 at $14,875 resulting in a total income of $56,611 and $533 per month for the support of one child. Incross-examination, K.A. said that the EI payments would total $11,000 rather than $14,000. [33] Again, K.A. bears the burden of proof with respect to a reduction or cancellation of arrears and I find that this burden has not beenmet.

For the same reasons set out above, K.A. has not established a significant and long lasting change in circumstances which hasresulted in an inability to pay now and in the future. I have considered K.A.’s efforts to comply with the child support order and find thathe declined to accept a job and failed to respond to inquiries about his interests in jobs. There was no medical evidence that K.A. neededto resign and as such, I find that K.A. made a choice to be unemployed and has failed to make every effort to earn money since beingunemployed.

Further, I find that K.A. has not proven that it would be grossly unfair not to reduce or cancel the arrears.

His expectedincome for 2021, including being unemployed since July, is very close to the amount that Judge Vandor based the child supportpayments on had he chosen to keep his employment. [34] Before I turn to the issue of undue hardship, I wish to address K.A.’s arguments that he paid about $6,000 in arrears previously,that he supported his present wife who was an immigrant and was in school to learn English, that he needed a “break”, that he did notwant “debt to be dragged into the new year,” and that “other single mothers with many kids have no support.” These arguments are anattempt to re-litigate child support itself and are not considerations that a court should make with respect to the legal test to vary a supportorder or cancel or reduce arrears. [35] In particular, K.A. argued that it was W.Z.’s failure to come to court on a timely basis which led to his arrears and that should bea consideration to reduce or suspend the arrears.

As the court in Earle v. Earle stated: [34] Delay in enforcement is not, in itself, a relevant factor. There are two reasons for this. First, a child cannot waive his or her rightto maintenance, nor can a parent with custody make such a waiver on behalf of a child. Second, very often, all of the resources of theparent with custody -- financial, physical and emotional -- are used up in caring for the child. That parent is not in a position to bringenforcement proceedings. [35] A court may consider delay as a factor if the person required to pay can show that the delay has prejudiced him or her in somematerial way.

In order to establish prejudice however, the person required to pay must show not only that he or she could not pay at the

time of the application, but also that he or she is unlikely to be able to pay in the future. [ 36 ] K.A. has not demonstrated any prejudice and there was nothing preventing K.A., who has represented himself previously, from bringing his own application to update the amount of child support payable. In fact, in October, 2019, K.A. emailed W.Z. to confirm updated child support amounts based on his wage increase and suggested that W.Z. speak to her counsel but if she wanted “to go through court that is fine with me” but did nothing when he received no reply. Does K.A. suffer from undue hardship? [ 37 ]

Section 10 of the Federal Child Support Guidelines states: 1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. 2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: a. the spouse has the responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; b. the spouse has unusually high expenses in relation to exercising access to a child; c. the spouse has a legal duty under a judgment, order or written separation agreement to support any person; d. the spouse has a legal duty to support a child, other than a child of the marriage, who is: i. under the age of majority, or ii. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and e. the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. 3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of the sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. 4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in

Schedule II. 5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. 6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [ 38 ] The legislation sets out a 3 step test: i. does K.A. meet the threshold set out in section 10(2) of the Federal Child Support Guidelines ? If not, then the application is dismissed.

If he has, then move to the next stage; ii. has K.A. shown that his household standard of living is less than W.Z.’s household standard of living? If not, then the application is dismissed. If yes, then move to the next stage; iii. is the court satisfied that there would be undue hardship, which is more than hardship? [ 39 ] In his Financial Statement filed on July 12, 2021, under

Part 5 at page 18, K.A. listed his debts in relation to his undue hardship claim. These debts total about $28,000 and are owed to CIBC, PC Master Card, and Capital One as credit card debts, Home Depot as a loan, and Canada Revenue Agency for overpayment. On cross-examination, K.A. admitted that these debts were not related to W.Z. and had nothing to do with her but were his personal debts. He also admitted that there were no significant expenses incurred to exercise access to his son.

K.A. gave no evidence given about any legal duty to support another person, another child, or a child or person who is unable to obtain the necessaries of life. K.A.’s obligation for financial disclosure included a requirement to disclose income for the entire household including his present wife. However, no documentary disclosure was made in this regard but K.A. testified that his wife began working in mid November, 2021, earned $15.20 per hour, and worked 30 hours per week. [ 40 ] W.Z. argued that no case of undue hardship has been made out as K.A. has not satisfied the criteria in

section 10 of the Federal Child Support Guidelines . I agree and find that K.A., who carries the onus of proof, provided no evidence that he had the responsibility for an unusually high level of debts which were reasonably incurred to support W.Z., J.A., and him prior to the separation, that he had unusually high expenses in relation to exercising access to J.A., or that he had a legal duty to support someone else. As such, it is not necessary to consider the other steps of the test and K.A.’s application for undue hardship is dismissed .

Summary [ 41 ] K.A.’s application to vary Judge Vandor’s June 14, 2021, order and decrease his child support payments and reduce or cancel his child support arrears is dismissed. As well, K.A.’s application for relief due to undue hardship is dismissed.

__________________________ The Honourable Judge D. Mah Provincial Court of British Columbia