K.H.M. et al. v. J.M.F. et al. Date:, 2014 BCPC 246

Citation: K.H.M. et al. v. J.M.F. et al. Date: 20141016 2014 BCPC 0246 File No: 7841 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.H.M. and E.N.G. APPLICANTS AND: J.M.F. and M.E. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Appearing on their own behalf: Ms. K.H.M. and Mr. E.N.G. Appearing on their own behalf: Mr. J.M.F. and Ms. M.E. Place of Hearing: Kamloops , B.C.

Dates of Hearing: September 11, 12, October 28, November 7, 2013, February 11, March 20, and April 25, 2014 Written Arguments Filed: May 9 and June 13, 2014 Date of Judgment: October 16, 2014 [ 1 ] This application was brought by E.N.G. on September 11, 2012 under the provisions of the Family Relations Act . E.N.G. seeks to change or cancel an order for child support made against him by the Honourable Judge Donegan, as she then was, on September 22, 2011. [ 2 ] The child, K.M.F., is 18 years old and resides weekdays with his father, J.M.F., and his stepmother, M.E.

On weekends, K.M.F. resides with his mother, K.H.M. and his stepfather, E.N.G. [ 3 ] E.N.G.’s application to change or cancel the child support order of Judge Donegan is opposed by J.M.F., who has filed his own application for an order restricting E.N.G.’s ability to make further applications to the court under s. 221 of the Family Law Act . That

section may restrict the ability of a litigant to frustrate or misuse court processes by prohibiting that litigant from making further applications without leave of the court. [ 4 ] The hearing on this matter was conducted after the enactment of the Family Law Act and the concurrent repeal of the Family Relations Act . Background [ 5 ] J.M.F. and K.H.M. were in a relationship between 1994 and 1999.

The child of that relationship, K.M.F., was born on [omitted for posting]. [ 6 ] After J.M.F. and K.H.M. separated in 1999, K.M.F. spent time with his father on a regular basis but resided with his mother until September, 2009. [ 7 ] Following the separation, K.H.M. began a relationship with E.N.G. which led to their marriage in 2005 and the birth of their daughter, now 10. E.N.G. was a stepfather to K.M.F. over a period of years and provided for him.

K.H.M. also has a 23 year old son, a student, whom she and E.N.G. assist from time to time. [ 8 ] In November, 2000 J.M.F. was found to have an income of $17,680 and was ordered to pay K.H.M. $146 per month in support of K.M.F. At times J.M.F. was in arrears on those payments. [ 9 ] In September, 2009 K.M.F. went to live with his father and visited the G.-M. home on weekends.

As a result K.H.M. began paying child support to J.M.F. at $120 per month, which was less than the Guideline amount as later determined by Judge Donegan. [ 10 ] In the application before Judge Donegan, J.M.F. sought retroactive Guideline support from both K.H.M. and E.N.G., even though E.N.G., the stepfather, continued to reside with K.H.M. K.H.M. in turn sought an order for arrears of child support from J.M.F. for the period 2007 - 2009. [ 11 ] Judge Donegan’s Reasons for Judgment were given September 22, 2011 and are reported at F. v. M. and G. , 2011 BCPC 451 .

In her reasons Judge Donegan described this application for an order of child support against E.N.G., a stepfather still residing with a mother paying child support, as “novel”. Although no cases were cited on J.M.F.’s application, after argument Judge Donegan had the benefit of the reasons of the Honourable Judge Dickey in K.A.L. v. J.P.R. 2011 BCPC 183 . In similar circumstances, Judge Dickey found an obligation to pay support on the part of the still-resident stepparent. Judge Donegan agreed with the “children first” analysis in K.A.L. v.

J.P.R. and issued a support order against E.N.G. [ 12 ] Judge Donegan found E.N.G.’s annual income for 2010 to be $103,711.12 including a good deal of voluntary overtime. He was ordered to pay child support for K.M.F. at $664.50 per month as a “top up”.

The top up figure was calculated to be the amount of the shortfall between the monthly cost of keeping K.M.F. (found to be $1,158.50) and the applicable monthly table amounts for both J.M.F. ($322) and K.H.M. ($172). [ 13 ] Judge Donegan noted that this was less than the table amount of support for E.N.G.’s income, which would have been $936 per month, and said it also took into account that E.N.G. had another dependent child at home. [ 14 ] Judge Donegan’s order also provided that: • Effective September 1, 2011, K.H.M. was to pay J.M.F. $172.00 per month in child support based on an income of $19,233.50. • K.H.M.’s arrears of child support payable to J.M.F. were set at $1,181.00 for the period from October, 2009 to September, 2011.

• J.M.F.’s arrears of child support payable to K.H.M. were set at $3,066 for the period 2007- September, 2009. • E.N.G., the stepfather still resident with the child’s mother, was found to have an annual income of $103,711.12 in 2010.

He was to pay to J.M.F. a “top-up” in the amount of $664.50 per month for the support of K.M.F. effective September 1, 2011. [ 15 ] Consequently E.N.G. and K.H.M. appealed to the Supreme Court on the basis that Judge Donegan had erred in concluding that E.N.G., as a still-resident stepparent, was obligated to pay child support and that in any event she had erred in determining the quantum of child support. [ 16 ] On March 12, 2012, the Honourable Mr. Justice Blair upheld the decision of Judge Donegan. His reasons are reported as K.H.M. v.

J.M.F. , 2012 BCSC 426 . [ 17 ] J.M.F. commenced a relationship with his current partner, M.E. They entered into a common law relationship and by mid-2010, were living together in the rental home they still share. K.M.F. resides there, as do two of M.E.’s three children. The two younger E. children, aged 15 and 13, divide their time equally between the residences of their parents. M.E. has helped to support K.M.F. since mid- 2010. [ 18 ] On July 30, 2012, E.N.G. and K.H.M. filed a notice of motion to add M.E. as a party to the action.

That application was brought before the Honourable Judge Cleaveley on the basis that since the hearing before Judge Donegan, M.E. had become a stepparent and parent of K.M.F. within the meaning of s. 1 of the Family Relations Act . It was submitted that the incomes of all parents should be taken into account in determining a fair standard of support for E.N.G. That application was granted on October 9, 2012 and M.E. was made a party to the action. [ 19 ] E.N.G. then brought an application to suspend the payment of child support ordered against him by Judge Donegan in March, 2012.

This application was heard before the Honourable Judge Frame on February 26, 2013. Judge Frame’s Reasons for Judgment in granting the application and ordering suspension of the child support order were given March 11, 2013. Judge Frame, whose reasons and findings are not binding upon me, expressed the view that on these facts, the new Family Law Act provisions would likely serve to end the support obligations of E.N.G. That suspension order took effect on April 1, 2013. The reasons are reported at F. et al. v.

G. et al. , 2013 BCPC 56 . [ 20 ] I will review the circumstances of K.M.F. and the parties and then I will review the law. K.M.F.’s Circumstances [ 21 ] K.M.F. is 18 and graduated from high school in June, 2014. Evidence established that K.M.F. is a good student and that he has expressed an interest in pursuing post-secondary education after working for a year. Since 2009, K.M.F.’s primary residence has been in the F.-E. household with weekends in the M.-G. home. It has not been suggested that K.M.F. is not dependent on his parents for support.

E.N.G. [ 22 ] E.N.G. asserts that there have been material changes in circumstance since the child support order against him was made. He argues firstly that the financial situations of the parties have changed materially. E.N.G. gave evidence that his income has been diminished through the loss of overtime previously available to him. [ 23 ] Secondly, he says that since Judge Donegan’s order, M.E. has become a stepparent under the Family Law Act .

E.N.G. submitted that any calculation to determine what level of child support, if any, should be paid by him to J.M.F., is discretionary and should take into account the impact of the presence of M.E. and her children to the finances of the F.-E. household and the support required for K.M.F. [ 24 ] E.N.G. also submits that Judge Donegan’s order has created an undue hardship within the meaning of s. 10 of the Federal Child Support Guidelines (“the Guidelines ”). [ 25 ] Child support was paid by E.N.G. pursuant to Judge Donegan’s order monthly from September 1, 2011 until the payment was suspended by Judge Frame effective April 1, 2013 after payments were made over that period totalling $12,625.50. [ 26 ] Judge Donegan found E.N.G.’s 2010 income to be $103,711.12.

E.N.G.’s income since has been relatively simple to determine as he has had only one source of employment income, his wages from his work at Domtar. [ 27 ] In the course of this hearing E.N.G. provided evidence as to his income in following years. In 2011, E.N.G.’s line 150 income reached $127,064. In 2012, E.N.G. had an income of $113,132.29. In 2013, E.N.G.’s income fell nearly $18,000 to $95,518.25, due to a reduction in the amount of overtime worked. [ 28 ] It was suggested that E.N.G. may have refused overtime opportunities in order to reduce his income and so his support obligations.

Given E.N.G.’s evidence on the point, I consider it far more likely that his employer’s broad efforts to cut back on overtime costs reduced E.N.G.’s 2013 income, and that this was not down to any refusal on his part to work overtime.

K.H.M. [ 29 ] Judge Donegan had found K.H.M.’s 2010 employment income as a bartender to be $19,233.50, including $2,000 in tips. Judge Donegan ruled that evidence called by J.M.F. fell short of establishing that K.H.M. received a greater amount in tips than she had disclosed.

Judge Donegan did not impute any additional income to K.H.M. and ordered the Guideline amount of $172 per month for child support against K.H.M. [ 30 ] K.H.M. gave evidence here that she could make more money as a server than as a bartender, but she was physically limited by fibromyalgia, a painful condition she had been diagnosed with some years before. As a bartender, she said, she walked less than a server and found that exertion more manageable.

K.H.M. also does volunteer work at her daughter’s school on an occasional basis. [ 31 ] K.H.M. said that she estimated that she earned about $2,000 per year in tips, or about 10% of her annual wage. She stated that she felt this was a reasonable estimate for a bartender in her position. Servers make more in tips, she said, because they have greater contact with customers.

She said that her opportunity to make income through tips was impacted by the fact that she now worked at the Rayleigh Pub, a small establishment in her quiet residential neighbourhood, often for short shifts. [ 32 ] K.H.M. said that due to a misunderstanding with her accountant, she had not declared her tips income for 2010 and 2011 and had since filed a request with the Canada Revenue Agency for an income adjustment of plus $2,000 for each of those two years. [ 33 ] In 2011, K.H.M. declared an income of $17,408 at a variety of jobs, including employment as a bartender at two pubs and a position at a car dealership.

With the requested income adjustment, her declared income for 2011 was stated to be $19,408. [ 34 ] In 2012, K.H.M. claimed an annual income, from bartending and occasional catering, of $18,413 including tips. She described her income as fairly consistent over time. [ 35 ] K.H.M.’s evidence as to her tip income was contradicted by Lonnie Langille, a witness called by J.M.F. Ms. Langille gave evidence that she had worked in pubs for 15 years, and had worked in five or six Kamloops pubs over the past 13 years. At the Pogue Mahone Pub, Ms.

Langille had been a manager over several months in 2011 when K.H.M. had been bartending there. As a manager, Ms. Langille was responsible for cashing out employees, including K.H.M. She said she worked with K.H.M. about two days per week for perhaps 12 shifts in total, she said. [ 36 ] Ms. Langille said that bartenders at Pogue Mahone at that time made tips between $60 and $100 each shift. Cash tips were not reported to Ms. Langille, however Ms. Langille was responsible for paying out credit and debit card tips to employees.

She gave evidence that K.H.M.’s credit or debit card tips, excluding cash tips, amounted to $50 or $60 per shift. Ms. Langille could not comment specifically on the situation at the Rayleigh Pub. [ 37 ] K.H.M.’s 2011 T4 slip for 2011 from Pogue Mahone showed employment income of $1,938. If K.H.M.’s estimates are correct, she would have made a total of about $200 in tips while at Pogue Mahone. If Ms.

Langille’s evidence is correct with respect to earnings at that pub, and I’m satisfied it is, K.H.M. should have made $200 in tips in as few as two shifts and in any event not more than four shifts. [ 38 ] I am satisfied that it has been established on a balance of probabilities that K.H.M.’s tip income at the Pogue Mahone Pub has been understated by K.H.M. Her wages, if paid at the then applicable minimum wage of $8.50, represent 228 hours worked or 28.5 eight hour shifts. At a minimum of $50 in tips per shift for 28.5 shifts, K.H.M. earned not less than $1,225 in additional untaxed income in 2011.

Allowing an additional $200 to arrive at an approximated taxable income, K.H.M.’s annual income that year was at least $20,833. [ 39 ] This inaccuracy in reporting reflects only a portion of K.H.M.’s bartending in 2011.

Bearing this in mind, as well as the fact that K.H.M. had declared no tip income at all for 2010 and 2011 until she filed a later request for income readjustment, I am satisfied that K.H.M.’s estimates of her tips are unreasonably low. [ 40 ] Accepting that the Rayleigh Pub may generate less in tips for bartenders than Pogue Mahone or other pubs in busier areas, I consider that an annual income of $22,000, including tips, may fairly be imputed to K.H.M. The table amount of child support for one child at that income is $190 per month.

J.M.F. [ 41 ] J.M.F. has also worked in the food service industry for many years, at times as cook and other times as manager, both without formal qualification. When he gave evidence, J.M.F. had been unemployed for several months. He had quit his penultimate job as a cook after a disagreement with his boss. He quit his last job because he wasn’t getting enough hours. He described himself as looking daily for positions in restaurants, hotel and retail.

Given his experience and background, it was difficult to explain why J.M.F. had not been able to find employment. [ 42 ] In the hearing before her, Judge Donegan found that J.M.F., having occupied a position as manager of a Denny’s restaurant, voluntarily reduced his rate of pay, his hours and his income when he left that position to become a cook in the same restaurant. This finding led Judge Donegan in 2011 to impute an income of $34,500 to J.M.F. This was the value of the position he vacated. She noted that the Guideline amount of child support for that income was $322 per month.

[43] J.M.F. takes no issue with the income imputed to him by Judge Donegan or that this imputed income should be continuedfollowing his voluntary demotion. His evidence demonstrated actual annual incomes of $23,666 in 2011 and $23,226 in 2012. J.M.F. hasnot remedied the underemployment found by Judge Donegan and has left jobs he has had since. I am satisfied that the income imputedshould continue in the amount assessed by Judge Donegan. [44] J.M.F. was quite clear that he was not making an undue hardship application or any argument for an award of child supportgreater than the Guideline amount.

J.M.F. did not submit that he or K.M.F. would suffer undue hardship, but said that M.E. wassupporting them both. M.E. [45] M.E. gave evidence that she is K.M.F.’s stepmother and has supported him as she does her own children. Of her three children,the two youngest divide their time equally between their parents’ homes. M.E.’s son is now 13 years of age and her daughter is 15.

Hereldest daughter, aged 19, lives with her father. [46] M.E. said that the family expenses in the F.-E. household were generally equally divided between herself and J.M.F. [47] M.E. stated that as part of her divorce settlement, which included a property division, it was agreed that no child support wouldbe paid. Although her ex-husband earned more than she did, her income showed as higher than that of her ex-husband. She said this wasbecause she had disclosed her tip income but her ex-husband had not. In the result, a settlement was reached whereby M.E. received$75,000 in the division of assets.

There was no provision made for child or spousal support to be paid, though if M.E.’s evidence iscorrect, she would have been entitled to child support for her time caring for the younger two children. She has elected not to pursue herex-husband for that child support. [48] M.E. is an experienced server and has worked in restaurants including Denny’s, Cora, and ABC, where she has earned hourlywages and tips. She swore a financial statement on March 4, 2013 and attached tax returns for preceding years. [49] M.E. agrees that her declared income has been lower than her actual income.

For example, M.E. declared a 2012 income of$22,744.05. This declared income was comprised of the hourly wages reflected in her T4 slips and totalled $20,676.41 plus tips whichshe claimed at 10% of her wages ($2,067.64). M.E. said this method of declaring tip income was common in the food service industryand was one which she had followed for years. [50] However, as M.E. explained in her evidence, this figure likely underestimated her tip income by about $16,000. She did nottrack her tip income but estimated that her tips would have amounted to about $18,000 annually over and above her wages.

In theseproceedings, she put her actual 2012 income at $38,676. [51] M.E. estimated that she made about $1,500 per month in tips. She said that the tip situation at ABC was very similar to that atDenny’s and Cora restaurants. She agreed that she had given evidence in 2011 that she had earned about $500 per week in tips atDenny’s. That would have amounted to $25,000 per annum in addition to her line 150 income of $17,752 in wages and with tips onlydeclared at 10% of wages.

On reflection, M.E. thought that tips at Denny’s had dropped off at the end of her time there and that tips atCora’s had also been less. [52] Given marginal tax rates, M.E.’s untaxed income would require some grossing up in order to arrive at a taxable incomeequivalent. I consider a reasonable imputation of her 2012 income for comparative purposes to be $41,676. This income figure for M.E.is, I’m satisfied, in line with her income for previous years. [53] I’m satisfied that their financial circumstances, imputed at $34,500 for J.M.F. and $41,676 for M.E. in 2012 are largelyunchanged.

For comparative purposes I find the total income to be imputed to the F.-E. household to be $76,176. A Change in Circumstances [54] Section 215(1) of the Family Law Act applies generally to applications to change, suspend or terminate an existing order.

Itprovides that: 215(1) Subject to this Act, a court on application by a party may change, suspend or terminate an order; if there has been a change incircumstances since the order was made. [55] An application to change, suspend or terminate an order based on a change of circumstances must meet a threshold test: thechange of circumstances must be found to be a material change: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27,paragraphs 10 - 16. [56] Since the hearing before Judge Donegan, there has been a change in circumstances.

Firstly, E.N.G. has suffered a reduction inhis 2013 income of about $8,000 from the finding of income made by Judge Donegan.

[ 57 ] Secondly, M.E. has become a stepparent to K.M.F., and has met the requirements of section 147(4) in

Part 7 of the Family Law Act . She has contributed to K.M.F.’s support for at least a year and has effectively been made the subject of a

Part 7 action. Accordingly, she has a duty to support K.M.F., like E.N.G. Unlike E.N.G., however, she will not be subject to a child support order for K.M.F. unless she stops living with K.M.F.’s parent, J.M.F. That is a new requirement found in Family Law Act s. 149(3). [ 58 ] By virtue of s. 254, the coming into force of the Family Law Act “is not in itself a change in circumstances for the purposes of any

section of this Act in relation to the changing, suspending or terminating of orders.” [ 59 ] The threshold test for a material change in circumstances must be met on the facts of each case and not in the statute alone. [ 60 ] There is a further change. There is evidence before the court that M.E.’s two youngest children, 15 and 13, both live half-time in the F.-E. home.

M.E. is not receiving and has not sought any support from the father of the children, though her evidence is that it is likely that he has the greater income. [ 61 ] This represents a change from the circumstances found by Judge Donegan who stated: 53 In his most recent Financial Statement, Mr. F. reported his annual housing, utilities, household and transportation expenses to be $22,404.00.

Given K.'s age and activity level, I find it appropriate to attribute one half of those expenses to K. [ 62 ] Though J.M.F.’s expenses are substantially the same, it would seem a materially different circumstance where K.M.F. is now effectively only one half of the teenaged complement in the F.-E. household and is now graduated from high school. Under these circumstances it would no longer be appropriate to attribute one-half those various common expenses to K.M.F.

This calculation, along with an allowance for clothing, school fees, entertainment and gifts at $2,700, was at the heart of Judge Donegan’s “top up” analysis. [ 63 ] All of this represents a material change in circumstances. The Impact of the Family Law Act [ 64 ] On March 18, 2013, the Family Relations Act was repealed and the new Family Law Act came into effect. The legislative scheme provides generally that matters such as this commenced under the Family Relations Act are to be continued in conformity with the Family Law Act so far as possible. [ 65 ] Section 36(1)(

b) of the

Interpretation Act sets out that: 36

(1) If an enactment (the "former enactment") is repealed and another enactment (the "new enactment") is substituted for it… (

b) every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment…. [ 66 ] The transitional provisions contained in sections 252 and 253 of the Family Law Act create specific exceptions for the continuation of proceedings under the Family Relations Act , when dealing with property division and pension benefits. [ 67 ] Under the current provisions of the Family Law Act , and in contrast with the former Family Relations Act , a child support order is no longer available against a stepparent who is still resident with the child’s parent. Section 149(3)(

b) provides that a child support order “may only be made against a stepparent if the stepparent and the child's parent are separated.” [ 68 ] The effect of 149(3)(

b) is that if K.M.F. were to return to his mother’s home, M.E., as a step parent who has not separated from the child’s father, could not be the subject of a child support order in respect of K.M.F. For the same reason, E.N.G. as a still-resident stepparent could not be made the subject of a support order today under the Family Law Act in respect of K.M.F.

[ 69 ] Family Law Act section 147(4) sets out the circumstances which are necessary to establish the duty of a stepparent to provide support to the child. Once the duty is established, subsection (5) defines the secondary nature of the child support obligation of the stepparent and the factors to be considered in determining the appropriate extent of the duty.

(4) A child's stepparent does not have a duty to provide support for the child unless (

a) the stepparent contributed to the support of the child for at least one year, and (

b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty (

a) is secondary to that of the child's parents and guardians, and (

b) extends only as appropriate on consideration of (

i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and (ii) the length of time during which the child lived with the stepparent. [ 70 ] Section 149(3) of the Family Law Act provides that even where a stepparent has a duty to provide for the child:

(3) An order under subsection (1) may only be made against a stepparent if (

a) the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child] , and (

b) the stepparent and the child's parent are separated. [ 71 ] The Family Law Act is silent as to what, if anything, is to be done with existing child support orders issued under the former Act and which are no longer available under 149(3). [ 72 ]

Section 8 of the

Interpretation Act states that: Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. [ 73 ] It seems clear that the legislature has identified and remedied a flaw in the scheme created under the former Act by proscribing new child support orders against still-resident stepparents. Presumably such orders, in the view of the legislature, were overbroad and caught up stepparents who should have remained outside the ambit of child support orders. [ 74 ] In D.J. v. C.K. , 2013 BCPC 197 , an application was brought to vary an existing Family Relations Act order against a stepparent who had not separated from the child’s parent.

In a preliminary motion, it was submitted that the court’s only options in light of Family Law Act, s. 149(3)(b), were to affirm the existing order or cancel it. The order, it was submitted, could not be varied as such an order could not issue under the new act. [ 75 ] The Honourable Judge Birnie disagreed with that submission. She held that the right to child support established by a Family Relations Act order against a stepparent still living with the child’s parent (“SPLWP”) was a vested right and was neither expressly nor by necessary implication extinguished by the enactment of the Family Law Act .

The ability of either party to bring an application to vary that order was an ancillary right. [ 76 ] As she stated: 26 The fact that as of March 18, 2013 a SPLWP has no obligation to pay child support does not erase an obligation imposed prior to that date and this is so regardless of whether the legislature's intent was to narrow what they considered to be an overbroad application of child support obligations in relation to step parents. 27 The Family Law Act does not expressly state that a pre-existing order requiring a SPLWP to pay child support may not be varied and can only be understood to do so implicitly if the right to vary a support order is a right separate and distinct from the right to support which underlies it.

For the reasons set out above, it is not. 28 This

interpretation of legislative intent avoids the unfairness to both payor and recipient, of a child support order which cannot be varied in accordance with the circumstances of the parties, but can only be affirmed or terminated. It does not undermine the policy implemented by the Family Law Act toward a step parent's obligation to pay child support. It simply means that the very few SPLWPs who were bound by valid maintenance orders prior to March 18, 2013 continue to be bound to pay maintenance in accordance with their

ability to earn income and the child's needs and subject to the other factors which a court may consider in determining a step parent's obligations. [ 77 ] Judge Birnie referred to other factors which a court may consider in determining a stepparent’s obligations. Those will include the Federal Child Support Guidelines . The Guidelines are largely incorporated (with some changes) into the law of the province by the Family Law Act Regulation (B.C. Reg. 347/2012 as amended) . In setting out Guidelines sections 1 and 5 below, I have substituted in brackets the words required to be read in by s. 9(1) of the Regulation . 1. The objectives of these Guidelines are (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both (parents) after separation; (

b) to reduce conflict and tension between (parents) by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and (parents) guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of (parents) and children who are in similar circumstances. 5. Where the (person) against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child. [ 78 ] In U.V.H. v. M.W.H. , 2008 BCCA 177 , the Court of Appeal considered s. 5 of the Guidelines and contrasted it with the presumptive rule set out in s. 3. Madam Justice Newberry wrote for the court at paragraph 29:

Section 5 is clearly one of the exceptions to the presumptive rule, importing a discretion to determine what is "appropriate, having regard to these Guidelines and any other parent's legal duty to support the child." [ 79 ] In the same paragraph, Justice Newberry also referred to Russenberger v. Rebagliati , [2000] B.C.J. No. 282 ; 2000 BCSC 82 .

She said that in that case Preston J. did not regard the considerations mentioned in s. 5 as exhaustive of the factors that should guide a court under that section, and took the view that all the circumstances of the case were relevant to determining the appropriate child support order. [ 80 ] Justice Newberry did not agree that the discretion afforded by s. 5 of the Guidelines was broad enough to encompass “ all the circumstances of a case”. (Emphasis in original, para. 40.) The discretion afforded the court by s. 5 was not unfettered but would certainly include consideration of the objectives set out in s. 1. [ 81 ] Presumably it is also guided by s. 147(5) of the Family Law Act which establishes that where a stepparent has a duty to provide child support, that obligation is secondary to that of the child's parents and guardians. [ 82 ] There is a tension between those objectives set out in s. 1 of the Guidelines and the circumstances of those “very few SPLWPs” who continue to be bound to pay child support indefinitely, notwithstanding a clear legislative intention to prohibit the issuance of any further such support orders.

[ 83 ] The legislature has created a new scheme, which, it must be concluded, establishes in the words of s.1(a) “a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation.” Going forward, this fair standard is to be achieved without the benefit child support orders against those stepparents who continue to live with a parent of the child concerned. [ 84 ]

Section 1(

b) of the Guidelines sets out the object of reducing conflict and tension between parents by making the calculation of child support orders more objective. If this lacunae in the law results in a two tier system for stepparents, it must surely create a source of conflict and tension between parents and make the calculation of support orders apparently less objective. [ 85 ] The final objective set out in s. 1(

d) is “to ensure consistent treatment of parents and children who are in similar circumstances”.

That objective will certainly be harder to achieve if still-resident stepparents are treated differently according to whether they were or were not subject to a support order on March 18, 2013. [ 86 ] The legislature has left the question as to whether and in what circumstances orders against still-resident step-parents will be varied or terminated to be determined by the courts in each case as may be appropriate. [ 87 ] In the instant case, I am satisfied that it is appropriate to terminate the child support order made against E.N.G.

In doing so I consider the factors set out above and in particular K.M.F.’s needs and his relative maturity, the fair standard of support he receives from his natural parents and the support of his still-resident step-mother, M.E. Undue Hardship, s. 10 of the Guidelines [ 88 ] As E.N.G. also sought relief on the ground of undue hardship under s. 10 of the Guidelines .

He submitted the support order against him had created undue hardship for him and his family. [ 89 ] More specifically, he said that as a result of the child support order against him along with the costs of associated litigation, he and K.H.M. have had to extend their line of credit and refinance their mortgage, increasing their amortisation period and reducing the equity in their home. [ 90 ] K.H.M. commented on the impact that the support order against E.N.G. and the significant costs of litigation has had on her family and said it has impacted all members, including their 10 year old daughter.

Money saved for K.M.F.’s post-secondary education had gone, equity had been drained from the home and there was a question as to whether they would have to sell their home. [ 91 ] E.N.G. also put the hardship into non-pecuniary terms, saying that the order had effectively forced him to work over-time in order to pay the support ordered and that this created a hardship by removing him too frequently from the family home and from the life of his young daughter. [ 92 ] Although s. 10(1) of the Guidelines does not expressly require that any undue hardship be purely financial in nature, the circumstances listed in s. 10(2) that may cause undue hardship all bear on financial issues.

Furthermore, s. 10(3) provides that an application under s. 10(1) will be denied where the court is of the view that the household of the person who claims undue hardship would, after the amount of support is determined, have a higher standard of living than the household of the other spouse. [ 93 ] As I have made an order terminating the child support order against E.N.G. I need not determine these issues.

I will say that given the disparities in respective household incomes, even at the amount of support fixed by Judge Donegan, I consider it unlikely that E.N.G.’s s. 10 argument would have been made out. [ 94 ] After some discussion of the issue, J.M.F. was perfectly clear in his position that he was not making any application under s. 10 of the Guidelines . Misuse of Court Process [ 95 ] J.M.F. alleged that E.N.G. had wasted court time with a number of applications, motions and affidavits that amounted to a misuse of court process.

He seeks a remedy under s. 221(1) of the Family Law Act which provides as follows: A court may make an order prohibiting a party from making further applications or continuing a proceeding without leave of the court if satisfied that the party (

a) has made an application that is trivial, (

b) is conducting a proceeding in a manner that is a misuse of the court process, or

(

c) is otherwise acting in a manner that frustrates or misuses the court process. [ 96 ] I have reviewed the filings made by the parties and there is no doubt that some of the filings by E.N.G. were repetitive and unnecessary. Unhelpful affidavits were filed by both parties which amounted more to argument than allegations of fact. [ 97 ] It is however necessary to remember that for significant portions of this litigation, the parties, including E.N.G., have been self- represented.

Despite the efforts of the legislature and the courts to streamline and simplify necessary court procedures, the rules will remain arcane for some. [ 98 ] The issues before the court have been at times both complex and novel, as noted by Judge Donegan. Matters have been further complicated by the subsequent repeal of the Family Relations Act and the enactment of the Family Law Act . [ 99 ] Taking all this into account, I’m not satisfied that it has been established that E.N.G. has conducted proceedings in a manner that has frustrated or misused the court process.

Order [ 100 ] There will be an order in terms to the following effect: 1. The order for child support in respect of K.M.F., born [omitted for posting], made against E.N.G. on September 22, 2011 and suspended effective April 1, 2013 is terminated; 2. K.H.M., having been found to be a resident of British Columbia, and to have an imputed income of $22,000; 3.

K.H.M., shall pay to J.M.F. the table amount of $190 per month for the support of K.M.F., born [omitted for posting], (‘the child”) commencing October 1, 2012 and continuing on the first day of each and every month thereafter for so long as the child remains a child within the meaning of the Family Law Act . 4. The application of J.M.F. for an order pursuant to s. 221(1) of the Family Law Act is dismissed. ______________________________ S.R. Harrison Provincial Court Judge