W.J.M. v. H.M.M., 2017 BCSC 948

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: W.J.M. v. H.M.M., 2017 BCSC 948 Date: 20170118 Docket: E113513 Registry: Kelowna Between: W.J.M. Claimant And H.M.M. Respondent Before: The Honourable Mr. Justice Cole Oral Reasons for Judgment Counsel for the Claimant: E. Neary Appearing on her own behalf: H.M.M. Place and Date of Hearing: Kelowna, B.C. January 18, 2017 Place and Date of Judgment: Kelowna, B.C. January 18, 2017 [ 1 ] THE COURT: We have made various orders concerning retroactive payment of child support and an order that the child support payments be made directly to the infant J.

Those go back through 2014. There is presently outstanding, according to Family Maintenance Enforcement, about $30,000 in arrears; $2,000 has been dealt with as the father has agreed to finally pay his

Section 7 expenses, which he failed to do. Some of the arrears, as I said, have already been dealt with by this court on this occasion. [ 2 ] The mother filed child support orders with Family Maintenance Enforcement in June of 2015. The father applied on October 9, 2015, in the Queen's Bench of Alberta to reduce the arrears. Family Maintenance Enforcement was calculating the arrears on the basis that he failed to pay child support because he made a unilateral decision to pay directly to the children $200 per month when they were in school which was not the amount owing under the Guidelines.

He says that he made that decision based on the fact that at the time of the original order he was to pay $200 per month to the mother when the children were in school. He took it upon himself to change the order. Consequently, this is one of the reasons why the arrears have accumulated. [ 3 ] I am satisfied that the father has not acted in good faith. He has failed to provide in a timely fashion his income tax returns as ordered by the court. He is a school teacher. He makes very good money, and the children were entitled to the increase in support based on his increase in salary.

He has not provided his income tax returns as ordered. [ 4 ] The mother wrote him and asked for his income tax returns of 2014. He did not provide them until 2015 when he provided three income tax returns. Even today he has not provided his current income tax return. [ 5 ] The mother has suffered financially as a result of his failure to provide current up-to-date information and consequently he has not paid Guideline support. She has had to re-mortgage her house for $10,000. She has incurred additional debts of $18,000. It has been a difficult time for her.

She has also had to deal with her children’s emotional problems. [ 6 ] Unfortunately when she finally made her application last year the children, save and except for J., were no longer children of the marriage. I am satisfied that she should have brought her application in any event for the production of the income tax returns in order to move forward with proper support. [ 7 ] I am satisfied that the orders that I have made will reduce the amount calculated by Family Maintenance Enforcement.

What I think is fair and reasonable in these circumstances in view of this long history is that I cancel all the arrears calculated according to Family Maintenance Enforcement save and except for the sum of $5,000. The father will pay $5,000 to the mother on February 1, 2018. [ 8 ] The arrears and adjustments to the support have been incorporated in my current order and Family Maintenance Enforcement will be able to enforce those provisions if and when necessary.

I am satisfied that J. is still a child of the marriage if he returns to school next year and the father has agreed that J. will still be a child of the marriage and pay support based on the Guidelines. [ 9 ] I am going to ask that the father's counsel draw the order, and provide a copy to the mother. [ 10 ] Madam, you should read over the order that she sends you. If you have any questions you can ask the clerk for copies of notes

that the clerk has made, and if you have any disagreement, you write to counsel pointing out what you disagree with. If you two cannot resolve it, it will be brought back before a master in this court and the master will settle the order. Do you understand that? Anything else? [ 11 ] MS. NEARY: Just to make sure that the terms of the order are accurate, the point that I would mentioned earlier about payments for summer of 2017, is that also part of the order? I just -- [ 12 ] THE COURT: Yes. [ 13 ] MS. NEARY: Perfect.

I just wanted to be clear. [ 14 ] THE COURT: The only thing that is not going to be paid on a monthly basis according to my notes is the $224. [ 15 ] MS. NEARY: $224 and the $5,000 that -- just ordered is not being paid on a monthly basis. That is on a lump sum. But I just want to be clear that can I -- that for the clerk's notes that a term of the order will be that if J. returns home to live with the respondent for the summer months of 2017, he will pay the Guideline amount for him. [ 16 ] THE COURT: Yes, that is exactly what I intended to say. [ 17 ] MS. NEARY: Perfect.

And my only other comment in the hopefully very unlikely event that we have to return before a master to have discussions about this, I am 21 weeks pregnant and I am not allowed to fly in another two weeks. Can I appear by telephone if that is required to settle the terms of the order? [ 18 ] THE COURT: I think you should make the request to the master. [ 19 ] MS. NEARY: To the master. [ 20 ] THE COURT: Yes. [ 21 ] MS. NEARY: Okay. I just -- it would be difficult if someone else had to come in and -- [ 22 ] THE COURT: No. No, I am sure they would agree. [ 23 ] MS.

NEARY: Okay. [ 24 ] THE COURT: I just do not feel comfortable making that decision for the master. You will have to make an application before him to appear by phone. [ 25 ] MS. NEARY: Of course. I will. Thank you. [ 26 ] And I will draft that order forthwith and provide it to Ms. M. [ 27 ] THE COURT: Yes. [ 28 ] MS. NEARY: And then to the court. [ 29 ] THE COURT: Thank you. Anything else? [ 30 ] MS. NEARY: I believe I have got detailed notes of everything else that was ordered today. [ 31 ] THE COURT: Thank you. [ 32 ] Yes. [ 33 ] MS.

M.: Can I just make a question about J.'s payment, the payments that were going to J. Are they going through FMEP first? [ 34 ] THE COURT: No. They are going to be made directly to him. [ 35 ] MS. M.: Right. [ 36 ] MS. NEARY: They cannot -- I do not think they can go through -- [ 37 ] THE COURT: Excuse me. [ 38 ] MS. NEARY: Sorry. My apologies. [ 39 ] THE COURT: They are going to be made directly to him. [ 40 ] MS. M.: Okay. [ 41 ] THE COURT: And if he does not receive the cheque or it bounces, he can apply to Family Maintenance Enforcement to enforce it. [ 42 ] MS. M.: Okay. [ 43 ] THE COURT: Okay?

[ 44 ] MS. NEARY: Thank you very much, sir. And thank you to the clerks. [ 45 ] THE COURT: The only other comment I intended to make was in my view the $5,000 lump sum for the arrears is payable on February 1 of next year, I am of the view it would not be grossly unfair to make that order. Thank you. Anything else? We are adjourned, then. The Honourable Mr. Justice F.W. Cole