S.R.H. v. B.A.G.H., 2003 BCSC 473

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.R.H. v. B.A.G.H., 2003 BCSC 473 Date: 20030328 Docket: E006504 Registry: New Westminster Between: S.R.H. Petitioner And B.A.G.H. Respondent Before: The Honourable Mr. Justice Crawford Reasons for Judgment S.R.H.: Appearing in person B.A.G.H.: Appearing in person Date and Place of Hearing: March 14, 2003 New Westminster, B.C. [ 1 ] Mr. S.R.H. brought an application to: (1) cancel arrears of maintenance; (2) vary his child support and special expenses on the basis of undue hardship, and (3) vary access. BACKGROUND [ 2 ] The parties were married in 1989.

There are two children of the union, M. aged 10 and N. aged 4. [ 3 ] The parties separated in January 1999. A "desk order" was made Monday, June 5, 2000, ordering divorce and providing sole custody of the children to Mrs. B.A.G.H. and shared joint guardianship, access, and child maintenance based on Mr.

S.R.H.'s Guideline income of $49,000, with payments of $683 a month, commencing March 1, 2000 and continuing for so long as the children are "children of the marriage" as defined in the Divorce Act . [ 4 ] Special expenses, primarily daycare in the amount of $373.95 were ordered for as long as those expenses were required for the children. Both parties were to provide medical and dental insurance so long as it was available through employment. [ 5 ] Mr. S.R.H. makes prosthetics. He was laid off from his job with G.F.

Strong Rehab Centre in mid-2002 but found new employment beginning in Sooke on Vancouver Island on August 26, 2002. His very brief affidavit makes little mention of his re-

marriage to a lady with two children. They have had a new baby, i.e. he now has a new house with three children, as well as M. and N.. [6] As I gathered from his argument, he is saying he is being caused economic hardship due to the fact that his wife's employmentinsurance benefit will expire. On the other hand, he says she is an experienced secretary and she is looking for employment. [7] Mr. S.R.H. has not been availing himself of his stipulated access in part due to his new responsibilities, and in part due to themove to Vancouver Island.

I do note he has a sister living in Richmond and his father resides in Langley, while the defendant lives on 58th Avenue in Surrey. [8] His income originally declared at $49,000 has remained consistent. While he has not provided written confirmation, he says hispresent income now is $48,758. 1. CANCELLATION OF ARREARS OF MAINTENANCE [9] Mr. S.R.H. has made his maintenance payments regularly until recently. Mrs. B.A.G.H. says arrears are $1,056.50. Mrs.B.A.G.H. referred the court to the decision of Martinson J. in Earle v. Earle, (BC SC), [1999] B.C.J. No. 383(B.C.S.C.). That useful

summary of the applicable law reiterates there must be a significant and long lasting change in circumstances. Inthis case the change in circumstances is more of time and distance and temporary rather than long-lasting. [10] As Martinson J. succinctly puts it: "common arguments made to counsel or reduce arrears" and which I replicate: a. "I cannot afford to pay now" [11] Not being able to pay now is not a valid legal reason to cancel or reduce arrears. They will only be cancelled if a person is unableto pay now and will be unable to pay in the future. b.

"I could not pay when I was supposed to because my financial circumstances changed" [12] People making this argument have a heavy onus. It is not good enough just to say they cannot pay because they had earned less. They can only get a reduction or cancellation of arrears if they present detailed and full financial disclosure under oath, usually in theform of affidavit that (1) the change was significant and long-lasting; (2) the change was real and not one of choice; and (3) every effortwas made to earn money (or more money) during the time in question and those efforts were not successful. c.

"I could not pay when I was supposed to because I had new obligations". [13] This raises questions of priority. Which obligations come first? It is often argued that the person required to pay has a secondfamily. The law is clear that the responsibility for a second family cannot relieve the parent of his or her legal obligation to support thefirst family. [14] In any case, clear evidence, under oath, would be required to determine what the new obligations were so that it can be decidedwhether they are obligations that should take priority over child maintenance obligations.

Few do. [15] There is no basis to cancel arrears of maintenance. 2. VARIATION OF CHILD SUPORT and SPECIAL EXPENSES [16] Mr. S.R.H. seeks to vary his child support and special expenses on the basis of undue hardship. [17] In Cook v. Hare, [1999] B.C.J. No. 1065 (S.C.), Martinson J. noted that s. 10(1) of the Federal Child Support Guidelinespermitted an amount of child maintenance to be varied if the person required to pay would suffer undue hardship. [18] She noted there must be a two-stage test. First, that the person required to pay would suffer undue hardship.

If that cannot beshown, that is the end of the matter and the Guidelines apply. At the first stage it is only the circum-stances of the person required topay that are considered, not the circumstances of the person receiving the maintenance. [19] Secondly, if undue hardship is shown, there still must be a standard of living comparison between the household of the personpaying maintenance and the household of the person receiving maintenance. [20] But the first stage of finding undue hardship is a difficult one for the payor. The British Columbia Court of Appeal in Van Gool v.Van Gool, (BC CA), [1998] B.C.J.

No. 2513, decided that hardship must be "exceptional", "excessive", or"disproportionate" in all of the circumstances, because the Guideline amounts are designated to be a "floor" for the amount ofmaintenance payable, rather than a "ceiling".

Thus, the Guideline is considered a minimum not a maximum and the payor must leadconvincing evidence to show why the Guideline amount would cause undue hardship. [21] Martinson J. considered a number of authorities and concluded that those authorities clearly established that while the assumptionof new family obligations may create hardship and a lower standard of living, those factors do not automatically establish unduehardship.

[ 22 ] There are circumstances that s. 10 of the Guidelines provide for consideration by the court and I take it Mr. S.R.H. is relying on s. 10(2)(d), namely, that he has a legal duty to support a child, other than a child of the marriage, who is (1) under the age of majority. [ 23 ] Considering the circumstances of Mr. S.R.H., as briefly as they are put which is in reality just his present financial statement showing a shortfall, they do not meet the legal tests that have been laid down by the Court of Appeal.

It is not the kind of excessive hardship that the Guidelines have in mind. [ 24 ] In the circumstances, undue hardship as it is provided in the Guidelines is not met. On the other hand, Mrs. B.A.G.H. has substantially improved her situation and is now making employment income of $56,620 and with child support and child tax benefit, her total income for spousal or parental support claim is $70,648.66. That change will affect the sharing of special expenses. The special expenses, taking out the medical/dental premiums, are for N. $402.23 and M. $367.17, for a total of $769.40.

Using income figures of $70,648 and $48,758, results in the monthly special expenses obligation of Mr. S.R.H. now being $312.97. [ 25 ] The Guideline payment of $683 per month will continue, giving a present monthly payment of $993.97. 3. VARIATION OF ACCESS [ 26 ] The third application by Mr. S.R.H. is for variation of access. [ 27 ] Mrs.

B.A.G.H. says that N. has never stayed overnight with the plaintiff and M. has not stayed overnight with the plaintiff since the Spring of 2000. [ 28 ] She says between October 7, 2002 and February 9, 2003, the plaintiff has visited the children approximately 15 times for an average of five hours each visit. [ 29 ] Since moving to Sooke in September 2002, Mr. S.R.H. has seen the children three times in the Lower Mainland. She says that the plaintiff has a father, sister and brother living in the Lower Mainland and he could come over from Sooke and stay with them. [ 30 ] She further says Mr.

S.R.H. could walk onto the ferry and have the children meet him at the ferry terminal. [ 31 ] Mr. S.R.H. proposed to have access on one weekend a month, Saturday 9:00 a.m., with Mrs. B.A.G.H. taking the children from Tsawwassen to the Swartz Bay terminal, meeting at the ferry and picking up the children, and then returning the children to Tsawwassen on the Sunday 3:00 p.m. ferry; one week during the child's summer vacation; access when he is on the mainland on due notice, and such other arrangements as the parties might agree upon. [ 32 ] It seems to me, given Mr.

S.R.H.'s relative lack of access over the past two years, that he needs to re-establish his relationship with the children. [ 33 ] I direct the parties arrange for Mr. S.R.H. to have a weekend day visit two times in April 2003; two times in May 2003; and in June 2003 he have two day visits at his house on the basis as he suggested. [ 34 ] I note that in that regard that Mr.

S.R.H.'s father is a retired ferry-man and may well be a suitable supervisor for the children on the ferry trips. [ 35 ] Subject to agreement, the children then have one week with their father during the summer on a week to be agreed upon between the parties. If the parties cannot agree, the parties have liberty to apply to set summer access. [ 36 ] From September onwards, one weekend a month at times to be arranged and keeping in mind the children's activities and disparate needs, given M. is 10 and N. is 4. [ 37 ] Mrs. B.A.G.H. has sought costs to which she is entitled. I set the amount at $400. “R.

Crawford, J.” The Honourable Mr. Justice R. Crawford