B.W. v. J.G., 2014 NLCA 5

Date: 20140205 Docket: 13/35 Citation: B.W. v. J.G. , 2014 NLCA 5 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : B. W. APPELLANT AND : J. G. RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division (U) 200602U0889 Appeal Heard: November 7, 2013 Judgment Rendered: February 5, 2014 Reasons for Judgment by Welsh J.A. Concurred in by White J.A. Dissenting Reasons by Hoegg J.A. Counsel for the Appellant: Lori Savory Counsel for the Respondent: Self-Represented Welsh J.A.:

[ 1 ] B.W. and J.G. are the unmarried parents of one child born in 2005. They shared custody of the child until 2009 when the mother, J.G., relocated to Ontario with the child. The focus of this appeal is a variation order imposing retroactive child support. BACKGROUND [ 2 ] On August 26, 2009, prior to the mother moving to Ontario with the child, a judge of the Supreme Court (Family Division) of this Province made an order to which the parties, both of whom were represented by legal counsel, had consented.

Among other things, the order provided for joint custody with the child’s primary residence being with her mother. The child’s father, B.W., who continued to reside in this Province, gave his consent for the relocation of the child to Ontario. The father was to have six continuous weeks of access during the summer months and seven continuous days during the school Christmas and Easter/spring breaks. Regarding access costs and child support, the consent order provided: 10.

The [mother] shall be responsible to fund the travel costs for the child for the purpose of the spring access visit, as well as a companion plane ticket for every Christmas, spring and summer access visit, until the child is reasonably capable of travel on an unaccompanied basis. 11. The [father] shall be responsible to fund the travel cost for the child for every Christmas access visit and summer access visit. 12.

There shall be no child support paid by the [father]. [ 3 ] The matter again came before the courts of this Province when the mother made an application, filed November 30, 2011, to vary the order to require the father to pay child support of $300 per month. In an oral decision, pursuant to the Interjurisdictional Support Orders Act , SNL 2002, c.

I-19.2, the applications judge made an order, dated December 17, 2012, ordering retroactive child support in the amounts of $1,176 for the months of June 1, 2011 to December 31, 2011, calculated on the basis of $168 per month, based on an income of $23,338, and $1,518 for the months of January 1, 2012 to November 1, 2012, on the basis of $138 per month, based on an income of $18,210. Having determined these amounts, the judge ordered: 3. THAT there shall be no further order for child support in this matter; 4.

THAT the Order for retroactive child support as set out in Paragraphs 1 and 2 hereof shall be placed in abeyance until further Order of this Court. The December 17, 2012 order was varied by the Ontario court by order dated June 12, 2013, but there is no mention of child support or access costs in that order. [ 4 ] The father appeals the December 17, 2012 order regarding retroactive support ordered for 2011 and 2012.

ISSUE [ 5 ] At issue is whether, in ordering the father to make retroactive child support payments, the applications judge erred in principle by failing to apply the relevant legislation and judicial authority. ANALYSIS Applicable Legislation [ 6 ] The obligation of unmarried parents to provide child support is specified in

section 37 of the Family Law Act , RSNL 1990, c. F-2. This appeal engages the following subsections:

(1) Every parent has an obligation, to the extent that the parent is capable of doing so, to provide support for his or her child.

(2) A court shall, upon application, make an order for support of a child in accordance with the child support guidelines. …

(5) Notwithstanding subsection (2), a court may make an order for support of a child in an amount that differs from the amount that would be in accordance with the child support guidelines if (

a) the parents of the child consent; and (

b) the court is satisfied that reasonable arrangements have been made for the support of the child. [ 7 ]

Section 10 of the Child Support Guidelines under the Family Law Act provides, in relevant parts:

(1) On application of either parent, a court may award an amount of child support that is different from the amount determined under sections 3 to 5, 8 or 9 if the court finds that the parent 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 parent or child to suffer undue hardship include … (

b) the parent has unusually high expenses in relation to exercising access to a child; …

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection shall be denied by the court if itis of the opinion that the household of the parent who claims undue hardship would, after determining the amount of child support undersection 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent. … The Law [8] The principles applicable to the exercise of discretion to award retroactive child support, as distinguished from arrears, arediscussed in detail in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.

Bastarache J., for the majority, wrote: [1] … These appeals do not concern the non-payment of arrears; they concern the enforceability and quantification of support thatwas neither paid nor claimed when it was supposedly due. [2] … Still, I must observe that these “retroactive” awards are not truly retroactive. They do not hold parents to a legal standard thatdid not exist at the relevant time: see MacMinn v. MacMinn (1995), (AB CA), 174 A.R. 261 (C.A.).

But they are“retroactive” in the sense that they are not being made on a go-forward basis: the parents who owe support (the “payor parents”) arebeing ordered to pay what, in hindsight, should have been paid before: see S. (L.) v. P. (E.) (1999), 67 B.C.L.R. (3d) 254, 1999 BCCA393, at paras. 55-57. Unlike prospective child support awards, then, retroactive awards implicate the delicate balance between certaintyand flexibility in this area of the law. … [5] … A modern approach compels consideration of all relevant factors in order to determine whether a retroactive award isappropriate in the circumstances.

Thus, while the propriety of a retroactive award should not be presumed, it will not only be found inrare cases either. Unreasonable delay by the recipient parent in seeking an increase in support will militate against a retroactive award,while blameworthy conduct by the payor parent will have the opposite effect.

Where ordered, an award should generally be retroactiveto the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments;this date represents a fair balance between certainty and flexibility. [6] … Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of thecertainty that fairness to payor parents often demands.

It is only after a detailed examination of the facts in a particular case that theappropriateness of a retroactive award can be evaluated. [9] Bastarache J. went on to reiterate relevant principles underlying child support legislation: [38] … These core principles animate the support obligations that parents have towards their children.

They include: child support isthe right of the child; … child support should, as much as possible, provide children with the same standard of living they enjoyed whentheir parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent. [10] After noting that child support legislation is an application-based regime, Bastarache J. dealt specifically with the retroactivevariation of an order of the court. While the focus in D.B.S. was the Divorce Act, the principles would apply equally under the FamilyLaw Act.

Indeed, two of the four appeals dealt with in D.B.S. involved provincial legislation. Bastarache J. explained: [63] … A payor parent who diligently follows the instructions of a court order may expect that (s)he would not be confronted with aclaim that (s)he was deficient in meeting his/her obligations. After all, until it is varied, a court order is legally binding. It providescomfort and security to the recipient parent, but it also provides predictability to the payor parent.

Put most simply, the payor parent’sinterest in certainty appears to be most compelling where (s)he has been following a court order. [64] On the other hand, parents should not have the impression that child support orders are set in stone. … The certainty offered bya court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount ofsupport. … [74] In

summary, a payor parent who diligently pays the child support amount ordered by a court must be presumed to have fulfilledhis/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with thebenefit of predictability, and a degree of certainty in managing his/her affairs. However, the court order does not absolve the payorparent – or the recipient parent, for that matter – of the responsibility of continually ensuring that the children are receiving anappropriate amount of support.

As the circumstances underlying the original award change, the value of that award in defining parents’obligations necessarily diminishes. In a situation where the payor parent is found to be deficient in his/her support obligation to his/herchildren, it will be open for a court, acting pursuant to the Divorce Act …, to vary an existing order retroactively. The consequence willbe that amounts that should have been paid earlier will become immediately enforceable. [11] There follows a full discussion of when retroactive support should properly be ordered, including factors to be taken intoaccount.

Again referring to the difference between retroactive support and arrears, the latter being a debt that has been incurred but notpaid, Bastarche J. noted that retroactive orders may cause hardship to the payor in ways that a prospective award, which is directed to “anew and predictable status quo”, would not (paragraph 96). [12] Regarding appropriate factors to be considered in determining whether discretion should be exercised to order retroactivesupport, Bastarache J. explained: [99] I will now proceed to discuss the factors that a court should consider before awarding retroactive child support.

None of thesefactors is decisive. For instance, it is entirely conceivable that retroactive support should be ordered where a payor parent engages in no

blameworthy conduct. … At all times, a court should strive for a holistic view of the matter and decide each case on the basis of itsparticular factual matrix. [13] In

summary: [133] In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in frontof it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility.

In doing so, a court shouldconsider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, thecircumstances of the child, and the hardship the retroactive award might entail. [14] Regarding the first factor, unreasonable delay in applying for a variation of the order, Bastarache J. explained: [104] In deciding that unreasonable delay militates against a retroactive child support award, I am keeping in mind this Court’sjurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, [(SCC), [1987] 1 S.C.R. 857] at p. 869.

In fact, I am not suggesting that unreasonable delay by the recipient parent has the effect ofeliminating the payor parent’s obligation. Rather, unreasonable delay by the recipient parent is merely a factor to consider in decidingwhether a court should exercise its discretion in ordering a retroactive award.

This factor gives judges the opportunity to examine thebalance between the payor parent’s interest in certainty and fairness to his/her children, and to determine the most appropriate course ofaction on the facts. [15] Regarding the second factor, conduct of the payor parent, Bastarache J. specified: [106] … Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context.

I wouldcharacterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to anappropriate amount of support. [16] While a payor parent should not be allowed to profit from knowingly avoiding or diminishing his/her responsibility for childsupport, Bastarache J. noted: [108] On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging inblameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question.

But I would not deny thatobjective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonablyheld belief that s(he) is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging inblameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much s(he)actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were beingmet.

Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably byconforming with the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficientlypronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. [17] The third factor is the circumstances of the child.

This includes the child’s standard of living before the separation and asbetween the two households. [18] The fourth factor is hardship occasioned by a retroactive order. Bastarache J. explained: [114] While the Guidelines already detail the role of undue hardship in determining the quantum of a child support award, a broadconsideration of hardship is also appropriate in determining whether a retroactive award is justified. [115] There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not.

For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlikeprospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. … Inshort, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courtsshould be attentive to this fact. [19] Further to the question of undue hardship,

section 10 of the Guidelines authorizes the exercise of discretion to award an amountof support different from that which would otherwise be ordered assuming the Guidelines were applied. One of the circumstances to beconsidered is “unusually high” access costs, provided the court is satisfied that the household of the parent claiming undue hardshipwould not, in the result, have a higher standard of living than the household of the other parent. Application of the Law [20] In the instant case, on August 26, 2009, the Court made an order, with the consent of the parties who both had legalrepresentation.

The order not only specified which parent would bear access costs, but stated that no child support was payable by thefather. It must be presumed that the judge making the order was satisfied that reasonable arrangements had been made for the child’ssupport (subsection 37(5) of the Act) and that the comparative living standards referenced in

section 10 of the Guidelines was not a bar tothe arrangement. [21] When the mother applied for a variation, by order dated December 17, 2012, the applications judge required the father to payretroactive child support for specified periods of 2011 and 2012. In oral reasons for that decision, no mention was made of thelegislation or the law as set out above.

Without any reference to the access costs or the terms of the August 2009 order, the judgeappears to have decided, solely on the basis of an increase in income, that the father should be ordered to pay the Guidelines amount ofsupport for the specified periods of time. [22] Failure to consider and apply the relevant legislation and judicial authority amounts to an error in principle. It is necessary,

then, to assess the facts of this case in light of the principles set out in the Act and in D.B.S. [ 23 ] The first factor, unreasonable delay by the mother in bringing the variation application, is not a significant consideration in this case. In the circumstances, there is no reason to override the principle that, in general, where retroactive support is ordered, the operative date is when the payor parent had notice of the recipient parent’s intention to seek a variation.

This provides a fair balance between certainty and flexibility as discussed in D.B.S. [ 24 ] The second factor identified in D.B.S. is the conduct of the payor parent. In this case, prior to being varied, the August 26, 2009 order specified that the father’s obligation was to pay for the costs of summer and Christmas access and that no child support was payable. The father complied with the terms of that order. He attested in his affidavit that travel costs for the child’s access visits average approximately $1,600 per year.

This amount is properly compared with the $1,518 calculated using the Guidelines and specified in the December 17, 2012 order as retroactive support for January 1 to November 1, 2012. This comparison demonstrates the apparent basis for the August 26, 2009 order.

As noted in D.B.S. , it is appropriate for a court to “compare how much the payor parent should have been paying and how much s(he) actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met” (paragraph 108). [ 25 ] An additional consideration is that, over the years, there was not a significant change in the father’s income, which is at the lower end of the economic scale. He attested that his income was $17,035 in 2009, $23,338 in 2010, and $25,634 in 2011.

The income used by the applications judge to calculate retroactive support for 2012 was $18,210. The fluctuations in income were not “sufficiently pronounced” to lead to the conclusion that, by conforming to the August 2009 order, the father was acting unreasonably ( D.B.S. , at paragraph 108 ). [ 26 ] The third factor is the circumstances of the child. The child benefitted in that the access visits promoted the father-daughter relationship. However, the costs of the visits were significant consequent upon the mother and child moving to Ontario.

There is no indication that the standard of living in the mother’s house was less than that of the father who lived with his parents. Neither the mother, who has married and has another child, nor the father has significant financial resources. [ 27 ] The fourth factor to be considered is the hardship that the retroactive order might entail. It is clear from the applications judge’s decision that hardship in this context is relevant in the circumstances.

Indeed, he concluded that payment of the retroactive amounts must be placed in abeyance, and ordered that “there shall be no further order for child support in this matter” (paragraph 3, above). The applications judge clearly was satisfied that the father does not have the financial resources to pay child support in addition to access costs, and that he is not in a position to pay retroactive support. [ 28 ] The conclusion follows that an order for the payment of retroactive support is not warranted in the circumstances of this case.

SUMMARY AND DISPOSITION [ 29 ] In ordering the father to make retroactive child support payments, the applications judge erred in principle by failing to apply the relevant legislation and judicial authority. Accordingly, his decision must be set aside. A proper analysis of the factual circumstances leads to the conclusion that a variation of the August 26, 2009 order to require the payment of retroactive child support is not warranted. [ 30 ] Accordingly, I would allow the appeal. There will be no order as to costs. __________________________________ B. G. Welsh J.A.

I Concur: ____________________________________ C. W. White J.A. Dissenting Reasons by Hoegg J.A. BACKGROUND [ 31 ] H.W. was born to J.G. (the “mother”) and B.W. (the “father”) on June 5, 2005. The parents lived together from time to time and in 2007, when the parents were living apart, the father was ordered to pay child support. However, no order to this effect was filed and the parents reconciled. The parents permanently separated in May 2008. In the late summer of 2009, when H.W. was four years old, she and the mother re-located to Ontario.

Prior to their departure, the parents entered into the Consent Order dated August 31, 2009 which provided for the father’s access to H.W. and stated that the mother was to bear two-thirds and the father one-third of the associated costs. The Consent Order also provided that no child support was payable. [ 32 ] On March 31, 2011, the mother applied pursuant to the Interjurisdictional Support Orders Act (the ISOA ) for child support for H.W. The matter was called at the Family Division of the Supreme Court of Newfoundland and Labrador on August 11, 2011. The father appeared with his counsel.

He filed a response to the mother’s application in which he claimed undue hardship due to high access costs. The mother was not present or represented as is usual in such proceedings. A judge heard the father and directed that the matter should proceed by way of a variation application due to the existence of the August 31, 2009 Consent Order. He adjourned the matter sine die . The mother was advised of this direction by the Support Enforcement Agency in October 2011.

She deposed in her affidavit that she received a transcript of the August 11, 2011 hearing in the mail on or about October 4, 2011 and a handwritten notation on

correspondence explaining the judge’s direction from the Family Division of the Court to the Support Enforcement Agency states“Received by Applicant October 21, 2011.” The mother subsequently filed a support variation application dated November 30, 2011. Inthis application, she responded to the father’s claim of undue hardship by also claiming undue hardship on the basis that her costs forarranging H.W.’s access to her father were high and that she had a legal duty to support another child. [33] Various filings were entered and the matter was eventually heard on December 17, 2012.

The father and his counsel werepresent. The mother was not present or represented. [34] A different judge heard the variation application on December 17, 2012. The mother sought child support arrears between 2007and August 31, 2009, child support retroactive to August 31, 2009, as well as child support on a go-forward basis. The Hearing [35] At the hearing, the judge rejected the mother’s claim for child support predating August 31, 2009 on the basis that he had nojurisdiction to consider it because no order had been filed in 2007. [36] The issue then became whether child support from August 31, 2009 was payable.

The father’s position was that the parties hadentered into the Consent Order on August 31, 2009 and had agreed that no child support was payable. He maintained that the reason heand the mother agreed that no child support was payable was because the mother relocated to Ontario with the child, causing him to haveto pay for two airline tickets per year to exercise access.

He argued that this cost – approximately $1,600 annually – offset hisresponsibility for child support and claimed that the mother had agreed with this position at the time of the Consent Order. [37] The mother was not heard on why she had agreed to no child support being payable by the father at the time the Consent Orderwas filed as she was not present.

However, in her documentation filed in this Court and at the hearing of the appeal, she maintained thatthe reason she agreed to no child support being payable in August 2009 was because she understood that the father was not working atthe time she and H.W. moved to Ontario and, further, that she had never agreed to forego child support in order to move.

She advisedthat she learned that the father was working in the fall of 2010 and she filed her application for child support on March 31, 2011. [38] At this juncture, it is appropriate to note that the procedures under the ISOA do not lend themselves well to the resolution offactual questions or disputes which may arise during the hearing.

Only one party is present and the absent party is therefore not heard onthe factual disputes or questions unless the matter is adjourned and he or she is formally directed to respond to the question (see section31 of the ISOA). [39] At the hearing, counsel for the father brought the father’s present circumstances to the Court’s attention, those being that hewas not well and was no longer working.

The father’s position on the mother’s application was that the provisions of the August 2009order respecting child support and access should remain in effect. [40] The judge then indicated to the father and his counsel that the issue of retroactive child support for the period between August2009 and the date when the father ceased working could be determined but that the father’s present circumstances would result inplacing any such order in abeyance and a decision not to order child support on a go-forward basis. [41] The father maintained his position that the term of the August 2009 Consent Order that he not pay child support was agreed tobecause his access costs were in lieu of child support.

The father also argued that the increases in his income were not sufficient to justifya material change of circumstances. [42] The judge approached the variation application on the basis of whether there had been a material change of circumstances sincethe terms of the August 31, 2009 order had been agreed.

If so, he reasoned, the Court would be justified in varying the August 31, 2009Consent Order. [43] The judge decided that there had been a material change in circumstances for three reasons: 1) the increases in the father’sincome since 2009 when the Consent Order was issued, 2) the fact that the child was now cared for by her mother for 44 of 52 weeks ofthe year (as opposed to the joint custody arrangement which was in place prior to the move to Ontario), and 3) the mother had a secondchild to support and was expecting another baby.

The judge observed that a Court’s obligation to the child was at issue and hereferenced Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670, saying that he “would be reluctant to leave these childrenwithout the future possibility down the road of having support.” He was of the view that support is the right of children and said “… ifthey’re left out of the picture and the Court confirms that then the Court has to be pretty satisfied seems to me that there is very goodreason to leave it alone to the parents and that doesn’t appear to be the case.” He stated that “a change in either of means orcircumstances can attract a basis for the Court to intervene… and that the Court is always free to intervene and determine the appropriatelevel of support for the child”.

He went on to order that retroactive support be paid for H.W. from June 1, 2011 to November 1, 2012when the father ceased working. He did not conduct an undue hardship analysis under

section 10 of the Child Support Guidelines. Rather, he treated undue hardship as context for his decision. He also said that “it does appear to me on the record that I see, that [J.G.]possibly or probably did move or in her move, did compromise her obligation to secure child support.” Analysis [44] I agree with Welsh J.A. that the trial judge did not apply the law respecting the ordering of retroactive child support and that heerred in not having done so.

However, in my view, his decision is in accordance with the law as stipulated in D.B.S. and I would notdisturb it. [45] On a variation application, the issue is whether there is a material change in circumstances which justifies varying the existingorder. I agree with the judge’s decision that there was a material change in circumstances justifying varying the August 31, 2009Consent Order. The increases in the father’s income alone, from $17,035 in 2009 to $23,338 in 2010 and to $25,634 in 2011, can justify amaterial change in circumstances.

The increase of $6,303 is 37 percent more than his income was in 2009, the year in which the ConsentOrder was filed. The $8,599 increase is 50 percent more. In the context of this case, such increases are significant. I also agree that

H.W.’s change in living circumstances and the fact that her mother had to support another child can constitute a material change in circumstances. [ 46 ] As noted by Welsh J.A., D.B.S. sets out four factors for consideration in ordering retroactive child support. I agree with her that the first factor, unreasonable delay on the part of the applicant, is not significant in this case. However, I do not agree that the operative date for commencement of payment of retroactive support is December 11, 2011.

The father had notice of the mother’s application for child support for H.W. when the mother’s original application of March 31, 2011 was served on him on May 26, 2011. The father responded to this application and appeared with counsel on August 11, 2011. The fact that the judge hearing the matter on that date directed a different procedure with the result that the mother filed a new application in November, 2011 does not vitiate the fact that notice was given to the father on May 26, 2011.

Effective notice to the father is the issue and he had it when the mother’s original application was served on him in May. (See D.B.S. at paragraphs 121 and 123 .) I therefore agree with the judge that the commencement date for payment of retroactive support is June 1, 2011. In this regard, I note that child support from this date was originally sought by the mother on a go-forward basis, but it became retroactive due to the 18 month delay between the mother’s original application and the December 17, 2012 hearing date. [ 47 ] The conduct of the father as the payor parent is the second factor.

The judge did not address the issue of the father’s conduct but neither did he ascribe any improper conduct to him. [ 48 ] The father acted in accordance with the terms of the August 31, 2009 Consent Order at all times. I note that there was no provision in that order which obliged him to advise this Court or the Support Enforcement Agency of his annual income. However, the father knew his income in 2010 increased over his 2009 income, and he knew from previous court proceedings that he was obliged to support his child on the basis of his income.

I also note that he did not account for the economic benefit of living with his parents in his response to the mother’s original application in which he claimed undue hardship, or in his response to the mother’s variation application, as stipulated in the responding forms.

To my mind, these factors, while not demonstrating egregious conduct, show blameworthy conduct in the D.B.S. sense of knowingly avoiding or diminishing his obligation to support his child (paragraph 107) and, accordingly, weigh against the father in the “factual matrix” ( D.B.S. paragraph 99 ) of the case. [ 49 ] With respect to the circumstances of the child, I agree with Welsh J.A. that the access visits promoted the father-daughter relationship and that neither parent had significant financial resources. I also agree that the third factor includes consideration of the child’s standard of living.

In my view, the resources available in the mother’s household to support four people were so modest that H.W.’s standard of living can be presumed to have been wanting and that she needed whatever support she could rightfully obtain from both parents. (See D.B.S. at paragraphs 110 to 113 .) [ 50 ] I do not agree with my colleague that D.B.S. invites a standard of living comparison between the mother’s household where H.W. lives and the father’s household.

Even if it did, I cannot agree, as my colleague suggests, that “there is no indication that the standard of living in the mother’s house was less than that of the father.” [ 51 ] The documents filed by the mother respecting her income and that of her husband show their combined income for 2010 to be $20,150. For 2011, the mother’s anticipated income was $7,900, composed totally of Child Tax Benefits, and her husband’s 2011 income was $18,210, for a total of $26,110. By contrast, the father’s incomes for 2010 and 2011 were $23,338 and $25,634, respectively.

The incomes of the mother and her husband were meant to support two parents and two children, while the father’s income was meant to support him alone, and this is without accounting for the financial benefit he derived from living with his parents. I am therefore not convinced that a standard of living comparison between the respective households would show the standard of living in the mother’s home to be the same or more than that in the father’s home. [ 52 ] The fourth factor for consideration is the hardship that a retroactive payment could entail.

I agree with my colleague that the judge’s conclusion to place the order in abeyance shows that he considered this issue and decided that the father’s situation was such that he would be caused hardship, in the D.B.S. sense of “general hardship” (see D.B.S. at paragraphs 114 to 116 ), were he ordered to pay the retroactive support following the issuance of the order. [ 53 ] The general hardship in D.B.S. is to be distinguished from a

section 10 undue hardship analysis, which D.B.S. does not require. General hardship in the D.B.S. sense is frequently visited upon the payor parent for retroactive awards are based on income which has already been spent. This general hardship must be contrasted with the hardship visited upon the child who did not receive the support he or she ought to have received. In this case, as noted in paragraph 49 above, H.W. can be presumed to have also suffered hardship due to lack of support from her father. [ 54 ] In this case, the judge placed his order for retroactive child support in abeyance.

While this is an unusual procedure, the judge did it in fairness to the father’s situation at the time of the hearing on December 17, 2012. He allowed for the matter to be reactivated saying it would be up to either the mother or the father to apply to the Family Division to enforce the order. If and when that happens, a payment

schedule tailored to the parties’ needs can be determined. [ 55 ] Child support is the right of the child. To my mind, both parents are obliged to support their children insofar as they are able, and it is not for one parent to give up the child’s right to support, even if that is what happened when the mother moved to Ontario, of which I am not convinced. In this case, although the resources available to support H.W. are not great, each parent should support H.W. to the extent required by law.

In my view, this was what governed the judge’s decision to order the father to pay retroactive support for her. [ 56 ] In conclusion, it is my view that “a holistic view of this matter on the basis of its particular factual matrix” (see D.B.S. at paragraph 99 ) ought to result in an order for retroactive support for H.W. from June 1, 2011 to November 1, 2012. [ 57 ] I am compelled to state my concern that the majority decision could be interpreted to mean that a parent’s access costs can be offset against his or her responsibility to pay child support.

To the extent that the majority judgment could be so interpreted, I respectfully disagree. The child lives where the child lives, and each parent bears responsibility for supporting him or her and for facilitating access. In this case, access costs are shared with the mother bearing two-thirds of the cost of access and the father bearing

one-third. Child support is not to be traded off against the cost of exercising access. Access costs affect payable child support only insofar as they are a factor in an undue hardship analysis under

section 10 of the Child Support Guidelines . In this regard, I note that although the father claimed undue hardship in his August 11, 2011 response to the mother’s original application and the mother subsequently claimed undue hardship in her variation application, the father did not claim undue hardship in his response to the mother’s variation application or press such a claim at the hearing and the court did not conduct an undue hardship analysis. Had a

section 10 undue hardship analysis been conducted, I am far from convinced that it would have resulted in a finding favourable to the father. [ 58 ] In this regard, I agree with the reasoning in Greene v. Greene , 2010 BCCA 595 , [2010] 12 B.C.L.R. (5th) 330, in which the payor father argued that his child support payments were reduced by an agreement which was the foundation for a consent order respecting child support when the mother relocated to another city with their children.

The father submitted that despite his increases in income, he should obtain accommodation from the court for his high access costs by way of an order for reduced child support. [ 59 ] In deciding that the payor father could not rely on the consent agreement given the material change in circumstances, the British Columbia Court of Appeal had this to say: [51] It is fair to infer from the circumstances disclosed in the record that Ms.

Hauptman gave up a claim to the applicable Guidelines amount of child support, her right to spousal support, and her right to have s. 7 expenses shared, in order to facilitate her move to Vernon. I assume she regarded this move to be not only in her own best interests, but also in the best interests of the children. I also assume that Mr. Greene agreed with that proposition, albeit reluctantly. While Ms.

Hauptman was entitled to make sacrifices with respect to her own rights in that regard, she was not entitled to give up the rights of the children to an appropriate level of child support. [52] It is, of course, open to parents to reach their own agreements with respect to sharing access costs, as long as those agreements do not short-change the children with respect to child support. For example, parents may take into account access costs as a set-off against the quantum of spousal support, or by way of adjustments to property division.

But, in my view, such adjustments should not be accomplished by way of a reduction of the amount provided for under the Act and Guidelines . In other words, sharing of these costs should not be at the expense of child support, but may, in some cases, be justified on some other basis. [53] In the result, I do not find that the agreement reached between the parties, or the consent order, can be relied upon by Mr. Greene to deprive the children of the amount of child support they would otherwise be entitled to under the Guidelines. To the extent the chambers judge found otherwise, I conclude that he erred.

There is no basis on these facts for Mr. Greene’s access costs to have been used as a basis for reducing the table amount of child support in relation to the period for which Ms. Hauptman is seeking retroactive child support. [ 60 ] In my view, H.W. should not be denied support from her father because, as a four-year-old child, she moved with her mother to Ontario, which move the father acknowledges in his affidavit was in her best interests. As an aside, I note that there are copies of pay stubs showing the father’s earnings from employment during 2013 in documentation filed by the mother on this appeal.

This documentation suggests that the father has returned to work. [ 61 ] There were errors made by the judge in calculating the quantum of the retroactive award. The evidence is that the father earned $25,634 in 2011. The retroactive award ought to have been calculated on the basis of child support payable at $187 per month for seven months (from June 1, 2011 to December 31, 2011) for a total of $1,309. [ 62 ] The evidence of the father’s income during 2012 is incomplete.

There is some information showing that he collected $381 per week in employment insurance benefits, but incomplete information about when he stopped work and began collecting benefits and if and when his benefits terminated. His counsel advised the Court that his benefits ceased November 1, 2012. The trial judge mistakenly used the mother’s husband’s 2012 income to calculate retroactive child support for 2012.

For the purposes of this appeal, I would accept the father’s counsel’s submission that his total income for 2012 was $13,242, which would result in support of $119 per month for 11 months, making the total retroactive award $1,309 + $1,309 = $2,618. [ 63 ] Accordingly, I would amend paragraph 1 of the trial judge’s order dated December 17, 2012 (and filed April 18, 2013) to read $1,309 and paragraph 2 to read $1,309 and dismiss the father’s appeal. I would also order the father to file a statement of his income, including a copy of his annual income tax return, with this Court on May 31 of each calendar year. L.

R. Hoegg J.A.