Harrison v. Harrison, 2019 BCSC 1579

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Harrison v. Harrison, 2019 BCSC 1579 Date: 20190918 Docket: E12505 Registry: Duncan Between: Lynda Harrison Claimant And David Charles Harrison Respondent Corrected Judgment: The text of the judgment was corrected at paragraph 101 on September 27, 2019 Before: The Honourable Mr. Justice A. Ross (In Chambers) Reasons for Judgment Counsel for the Claimant: J.B. Fraser Counsel for the Respondent: J.M. Hutchison, Q.C. Place and Date of Hearing: Victoria, B.C. August 2, 2019 Place and Date of Judgment: Duncan, B.C.

September 18, 2019 [ 1 ] These cross-applications came on for hearing before me in a matrimonial action almost eight years after Madam Justice Griffin (then at this Court) released reasons for judgment indexed at 2011 BCSC 1139 (the “Trial Reasons”). The Trial Reasons were released following a seven-day trial. No appeal was taken from those reasons. Both parties were self-represented at trial. Both parties were represented at this application. [ 2 ] The Trial Reasons awarded custody, divided the assets of the couple, and made provision for Mr.

Harrison to pay child support, spousal support, and extraordinary expenses. A yearly income of $120,000 per year was imputed to Mr. Harrison. The orders flowing from the Trial Reasons were filed on August 22, 2011 (the “Trial Order”). [ 3 ] Madam Justice Griffin made findings regarding the credibility and motives of Mr. Harrison that resonate in this application. In particular, Griffin J. wrote: [58] The claimant said that when she told the respondent she wanted a divorce, he threatened her that he would see to it that she would end up with nothing. He denies having said this.

I note that often things can be said in the heat of a personal crisis which are improvident but not truly intended. Yet in this case I accept the claimant’s evidence and find that it unfortunately accords with the respondent’s conduct. [ 4 ] As set out below, the respondent’s conduct has not changed in the years since 2011. To the contrary, he continued in the same pattern for eight years. [ 5 ] Following the trial, the respondent went back to school and obtained a PhD. He is now Dr. Harrison. He has not paid the arrears of either child or spousal support that were due in 2011, as of the date of the trial.

He has not paid any of the spousal or child support that has accrued since the Trial Reasons, apart from a small amount that was “extracted” by the Family Maintenance Enforcement Program. [ 6 ] Despite his continued breach of the orders arising from the Trial Reasons, the respondent seeks relief from this Court and a variance of those orders relating to his income and child support. He does not seek any order regarding spousal support. [ 7 ] In this application the respondent also seeks costs from the claimant.

[ 8 ] For the reasons set out below, I do not grant any of the relief sought by Dr. Harrison, and I award costs to the claimant. I. RELIEF SOUGHT [ 9 ] Dr. Harrison seeks the following forms of relief: 1. An order that each of his three children ceased to be a child of the marriage on the date of his or her 19th birthday or such earlier date as set out in the notice of application. He argues that the middle child ceased to be a child of the marriage five months prior to his 19th birthday. 2. A declaration that Dr.

Harrison ceased to have an obligation to pay child support for any of the said children as of September 1, 2017, which was the 19th birthday of the youngest child. 3. A declaration that his income for the years 2011 through 2018, and for the first six months of 2019 to be in the amounts set out in the respondent’s affidavit material. In this regard, Dr. Harrison seeks relief from the imputation of an annual income of $120,000. 4.

An order that his past child support obligations be recalculated on the basis of the income that the court determines under para. 3 (above) for the periods of time that each child was a child of the marriage, and a corresponding variance of the Trial Order. 5. An order that all arrears of child support be set aside and the respondent be released therefrom absolutely. In this regard, the respondent seeks an order whereby payments he made in the past eight years be offset against his financial obligations under the order following trial.

The payments were made directly to the children by the respondent or from a trust established by the respondent for the benefit of the children (the “2009 Trust”). The total amount of those combined payments was approximately $153,000. 6. The costs of this application. [ 10 ] Counsel for the respondent concedes that the burden on him in this application is high, but he urges a “holistic” approach to the financial circumstances of the parties since the trial. [ 11 ] The claimant opposes the majority of the relief sought by the respondent and brings her own application for relief.

Using the same numbering as set out above for the respondent’s application, the claimant’s position on the respondent’s application is as follows: 1. She agrees that the oldest child ceased to be a child of the marriage on his 19th birthday. She says that the middle child did not cease to be a child of the marriage until his 19th birthday. She says that the youngest child did not cease to be a child of the marriage until July 2019, which was 23 months after she turned 19. 2.

The claimant consents to an order that the respondent does not have any future obligation to pay child support after July 2019, but seeks payment of the full amount of the arrears. 3. She opposes any variance of the income imputed to the respondent in the order following trial. 4. She opposes the recalculation of the past child support obligations and any variance of the order flowing from the Trial Reasons. She calculates the full amount of the past support payments to the date of the hearing at $359,957.38. 5. She opposes any order setting aside or setting off the arrears of child support obligations.

She says that any payments made by the respondent were gifts to his children or the payment of extraordinary expenses which he was obligated to pay in addition to the child support obligations. Further, she argues that the original corpus of the trust consisted of family property and the respondent should not be given credit for payments out of that trust. [ 12 ] In a cross-application, the claimant sought surrender of the respondent’s passports and/or travel authorizations until such time as he had paid the arrears. That application was dismissed.

I granted an order that the respondent’s address for delivery be his email address. II. BACKGROUND [ 13 ] The parties were born and raised in Great Britain. They met in 1990 and married in 1992. They had three children in 1994, 1996, and 1998. Following the birth of their first child, Ms. Harrison took on the role of raising the children. Mr. Harrison worked in the information technology field and was successful. He performed contract work for high pay. The couple incorporated a company through which they divided the income earned by the husband.

Much of the company’s work was done for clients in countries other than the United Kingdom. Mr. Harrison established a bank account on the tax haven Channel Island of Jersey and deposited the income from foreign clients into that account (the “Jersey Account”). Neither he nor his wife paid income tax on the income derived from the company during significant periods of time that are described in the Trial Reasons. [ 14 ] In 2006, the family moved to Canada and settled on Vancouver Island.

The proceeds of the sale of their home in Britain were deposited into the Jersey Account along with the profits from the company. [ 15 ] By 2006, Mr. Harrison had suffered two insults to his health: injuries suffered in a motor vehicle accident in 2003, and a heart attack in 2006 after the family moved to British Columbia. In this application, Mr. Harrison asks that the court take his ongoing health into account. He says that these health concerns have resulted in him being less able to earn significant income.

However, those health issues both existed prior to the trial and were considered by Griffin J. when arriving at the Trial Reasons (see para. 121).

[ 16 ] The parties separated in 2009. The circumstances of the separation are described in the Trial Reasons. For the purpose of this application, it is notable that the family had considerable savings deposited in the Jersey Account. [ 17 ] In the months following the separation, Mr. Harrison took the funds in the Jersey Account and settled the 2009 Trust. Mr. Harrison says that he settled the trust for the benefit of his children. Madam Justice Griffin found that he settled the trust to keep the funds away from his ex-wife and to buy favour with his children (at para. 151).

The Trial Reasons further state that, prior to settlement, the corpus of the 2009 Trust would clearly have been a family asset. The settling of the 2009 Trust seconded those funds away from the claimant and removed them from the jurisdiction of the British Columbia courts. The existence of the 2009 Trust and payments made from it since the trial are relevant to this application and are discussed below. 1. The Trial [ 18 ] At the trial, Griffin J. found that Mr. Harrison was deliberately under-employed or under-reporting his income.

For that reason, she imputed an income of $120,000 to him. [ 19 ] With respect to credibility, Griffin J. found that Mr. Harrison’s evidence could not be accepted. Where it was in conflict with Ms. Harrison’s evidence, the latter was preferred. Madam Justice Griffin noted that there were difficulties in getting Mr. Harrison to provide full and open financial disclosure.

On the basis of the evidence at trial, the assets of the parties were divided, and custody was awarded. [ 20 ] Because the respondent seeks a variation of the orders of Griffin J. arising from the Trial Reasons, I have set out long and significant passages from that decision below. [ 21 ] Regarding credibility, Griffin J. commented: [52] This is a convenient point to address credibility of the parties. I found that the respondent’s evidence and conduct regarding the trust undermined his credibility generally. He maintained at trial that the trust had been agreed to by the claimant. I did not believe him.

His story was internally inconsistent and contrary to common sense. It is not believable that the claimant would ever have agreed to such a trust placing her own life savings out of reach and making her have to go “cap in hand” to her ex-father-in-law and ex-sister-in-law, giving them the complete power to decide what expenses for the children were appropriate or not. The terms of the Trust Deed are not something she ever would have agreed to as it is so obviously impractical and slanted to cause difficulties for the claimant.

I accept her evidence that she did not agree to it. … [58] The claimant said that when she told the respondent she wanted a divorce, he threatened her that he would see to it that she would end up with nothing. He denies having said this. I note that often things can be said in the heat of a personal crisis which are improvident but not truly intended. Yet in this case I accept the claimant’s evidence and find that it unfortunately accords with the respondent’s conduct. [59] I also found that the respondent’s evidence was often exaggerated and mischaracterized to serve his own interest.

I further found that the respondent was very manipulative in terms of how much information he was willing to disclose pre-trial, and during the trial. [60] Where the claimant’s and respondent’s evidence was in conflict, I preferred the claimant’s evidence. She came across as straightforward and she did not attempt to manipulate the facts or the evidence. … [ 22 ] Regarding the imputation of income to the respondent, Griffin J. found: [114] The respondent has had a long history of making over $200,000 per year prior to separation. In 2008 he earned $466,729.

He told the claimant that he was earning $20,000 per month when she first told him she wanted a divorce. While in 2009, the year of separation, he made only $64,500, this was because he quit working after separation which occurred in July 2009 and then according to him, Transputec refused to pay some of his earlier invoices. [115] The respondent has argued all along that since separation he has been able to make no more than $60,000 a year.

He therefore refused to pay the amount of child support ordered in the Interim Order and instead he paid on a sporadic basis some lump sums of child support over the last approximately two years. There is therefore an issue of whether or not the respondent should be ordered to pay arrears in child support, or should be relieved of this obligation.

In this regard, the respondent did give adequate notice that he would be seeking to cancel arrears, and the claimant gave adequate notice that she would be claiming arrears, and it is because of delays in the trial that the issue has not been determined before now. [116] The respondent has paid child support of $21,023 in total from after the date of the Interim Order of Walker J. up to June 2011. This was paid over 22 months and so equates to approximately $955 per month.

I do not include in this the amount of $10,000 paid back to the claimant from the couple’s joint account just before the hearing before Walker J. (the respondent retained $30,000 of the $40,000 he had taken from the account, and I have considered this in the division of assets). The $10,000 payment was not child support but simply partial re-payment of a family asset which the respondent had unilaterally taken. [117] Returning to Mr. Harrison’s income, his reported income is considerably less than it was before separation.

He claims that he has been unable to find the same level of paid employment, or consulting contracts, as he used to obtain, as he lost his key client, Transputec. He says he was unable to work for them or find alternative work of equivalent value because of the stresses of the marriage breakdown, which affected his mental state. However, it appears from the evidence that Transputec takes the position that he in fact unilaterally quit working for Transputec after separation. …

[121] I do not accept that the respondent is only able to earn $60,000 per year, given his earnings history before the marriage breakdown. The respondent has very little credibility given his post-separation conduct and admitted willingness to hide income when it suits his purpose. I accept the claimant’s evidence that the respondent told her that she would get nothing on separation, and I find that this has motivated him to earn or report less income than he is otherwise capable of earning.

There was some suggestion in the respondent’s evidence that he does not want to work to the same capacity as he used to do, and that he would like to pursue a career in teaching.

Considering the respondent’s past history, the lack of medical evidence that would suggest that he is unable to work to the same capacity as previously, the lack of supportive documentation that would explain the respondent’s earnings, and the lack of independent evidence that would corroborate the respondent’s suggestion that he is earning at his maximum capacity, I find that the respondent is deliberately under-employed or under-reporting his income, so as to subvert his obligation to pay child support and spousal support. [122] I consider it appropriate to impute income to the respondent of $120,000 per year, which is still considerably less than what he has historically earned pre-separation, but double what he is currently reporting as his income. [ 23 ] Regarding the respondent’s conversion of funds held in the Jersey Account into the 2009 Trust, Griffin J. concluded: [38] It is clear that the respondent has a history of arranging his finances so as to try to avoid his obligations.

For example, on his own evidence, he arranged the finances of his business for the last year in the U.K., and his income earned in Canada, to be hidden from the relevant tax authorities so that he would not have to pay tax. He arranged for his income, earned while he was living in Canada, to be paid into the Jersey Account. [39] When the claimant and respondent separated, the respondent arranged to have all of the offshore funds in the Jersey Account transferred out of the reach of his wife. [40] In June 2009, the balance in the Jersey Account was £509,316.00.

Using the exchange rate of 1.73, which was the exchange rate in July 2009 according to the respondent’s foreign exchange account records placed in evidence, this was roughly equivalent to CAD $881,116.68. … [81] In addition to the approximately CAD $881,116.68 taken from the Jersey Account by the respondent, the respondent also had the benefit of an additional $20,000 more than the plaintiff which he took from their local joint account.

The total of dissipated assets by the respondent is therefore approximately $900,000. [ 24 ] With respect to any future variation in child support, the Trial Reasons anticipated that the parties would share parenting responsibilities 60% to the claimant and 40% to the respondent.

If there was a change in those circumstances, the Trial Reasons set out the following: [129] If there is a significant change in the children’s living arrangements for an extended period of time, for example, if the children spend over 40% of their time with their father for at least eight months, I recommend that the parties negotiate an appropriate amount of child support going forward, based on the claimant’s income as reported at line 150 of her tax return and the respondent’s imputed income of $120,000 per year.

If such a material change in the amount of time the children spend with their father occurs and is an established pattern over an extended length of time, such as eight months or more, and the parties cannot agree to vary child support, then of course the respondent is free to return to court and to seek a variation in the child support order. [ 25 ] I now turn to discuss the developments that have occurred since 2011 in the context of the respondent’s submission that there has been a material change in circumstances. 2. Since the Trial [ 26 ] As noted, the Trial Reasons were delivered in August 2011.

According to Ms. Harrison, at some point soon after the Trial Reasons were released, the respondent came to the family home and told the children that he was leaving Canada. He had decided to pursue further education. He did, in fact, leave Canada. First, he obtained a Master’s degree in Advanced Software Engineering at University College Dublin. He then pursued his PhD at Victoria University of Wellington, New Zealand. [ 27 ] Dr.

Harrison has seen the children on a few limited occasions when he has been in Canada since 2011. [ 28 ] As a result of the respondent’s move away from Canada, the claimant took full parenting obligations for the three children. Hence, viewed from a holistic perspective, I must consider that the 60/40 division of parenting responsibilities never materialized. The claimant assumed a much greater role than anticipated. This consideration does not assist the respondent. [ 29 ] Prior to separation, the claimant was not employed outside of the home. When the couple met, she worked in human resources.

After the separation, she managed to obtain work in that field again. The Trial Reasons assume that she will earn income of approximately $40,000. The claimant deposed that her income was, in fact, approximately $40,000 until 2015. From 2015 to 2018, her income has increased approximately 50%. There is no submission indicating that the change in the claimant’s income constitutes or contributes to a material change in circumstances. The respondent submits that the claimant’s affidavit material is not fully forthcoming regarding her earnings.

He points out that her profile on the work-related social media website “Linked In” shows that she is at a different job than she deposes in her affidavit. That submission has no merit. III. ANALYSIS [ 30 ] I now turn to deal with the relief sought by the respondent.

1. A Declaration that Dr. Harrison Ceased to Have an Obligation to Pay OngoingChild Support on the Date of Each Child’s 19th Birthday [31] Dr. Harrison seeks a declaration that each of his three children ceased to be a child of the marriage on or before his or her 19thbirthday. As a result, his obligation to pay child support for that child would end on that date. [32] The factors to consider in determining whether a child ceased to be a child of the marriage were set out in W.P.N. v. B.J.N.,2005 BCCA 7: [19] A list of relevant circumstances was formulated by Master Joyce (as he then was) in Farden v.

Farden (1993), (BC SC), 48 R.F.L. (3d) 60 at para. 15 (B.C.S.C.) and referred to by this Court in Darlington v. Darlington (1997), (BC CA), 32 R.F.L. (4th) 406 at para. 14 (B.C.C.A.). These factors were considered by the chambers judge, who noted that inDarlington, this Court made it clear that there does not have to be evidence on all of the factors in order to establish that a child is a"child of the marriage" because she is pursuing an education.

Nor should this list be considered to be exhaustive of the relevant factors. [20] The factors outlined in Farden are: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college becausethere is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated arelationship from the parent from whom support is sought. [33] I have considered these factors in the discussion below. [34] As noted, the claimant consents to this order in relation to the oldest child. [35] With respect to the second child, the difference between the parties’ positions is five months.

The respondent says that thesecond child ceased to be a child of the marriage on December 31, 2014, which was five months before he turned 19 years of age. Theclaimant argues that he should remain a child of the marriage until his 19th birthday in May 2015. [36] The respondent points to the fact that the second child travelled to New Zealand to live with him from January through April2015, work at two jobs, and travel around in a vehicle purchased for him by the respondent. During these months, he lived with therespondent on a rent-free basis.

In May 2015, he returned to British Columbia where he lived independently and supported himself. Thatwas the month of his 19th birthday. [37] Considering that the second child was residing with his father, rent-free, during the months of January–April 2015, I find that hecontinued to be a child of the marriage during that period. Although he was working and travelling, he was not independent in respect ofliving expenses.

The fact that he lived with his father does not mean that he ceased to be a child of the marriage. [38] It follows that the second child continued to be a child of the marriage until May 2015, and the respondent’s child supportobligations for that child continued until that time. [39] With respect to the third child, the difference between the positions of the parties is almost two years. The third child turned 19on August 10, 2017. She completed her degree at the University of Durham in England in the spring of 2019.

Although it was unclear atthe time of the preparation of the affidavit material for this application, there was a prospect that she would be returning to live with theclaimant. That did not occur, and the claimant agrees that the third child is now independent such that she is no longer a child of themarriage. [40] However, applying the factors from Farden set out in para. 32 above, I am satisfied that the third child remained a child of themarriage during university. She attended university on a full-time basis and lived, rent-free, with her mother during the summers.

Theparents both assisted, at times, with tuition and expenses. That assistance was supplemented by student loans and part-time work. Shehad not terminated the relationship with her father. In fact, her father travelled with her to help her choose a university in England. It isclear that both parents wanted her to pursue higher education in England. Based on the Farden factors, I find that the third child was achild of the marriage until July 2019 when she returned from university in England. [41] I decline to grant the relief Dr. Harrison seeks in respect of declarations regarding children of the marriage. 2.

A Declaration that Dr. Harrison Ceased to Have an Obligation to Pay ChildSupport

[ 42 ] As noted, the claimant agrees that, as of July 2019, all of their children are no longer children of the marriage. Given my ruling regarding the age at which each child ceased to be a child of the marriage, Dr. Harrison is entitled to this declaration as of July 2019. 3. Respondent’s Application to Alter the Imputed Income of $120,000 Per Year [ 43 ] Dr. Harrison seeks to have his imputed income recalculated based upon the income he declared in his affidavit in support of this application. In the Trial Reasons, Griffin J. imputed an income of $120,000 per year to the respondent.

That figure constituted a reduction from $200,000 per year that had been imputed in an interim support order. [ 44 ] Dr. Harrison’s argument on this issue involved two considerations. First, he argues that it was reasonable for him to undertake the path that he took following the trial. He argues that he was not under-employed. Second, he argues that his actual income was less than the imputed income. [ 45 ] Dr. Harrison’s counsel urges upon me the argument that it was reasonable for the respondent to seek higher education in order to improve his earning potential. Dr.

Harrison’s affidavit material states that he has earned a total of $235,457 in the past eight years. In 2018, he declared $99,550 in income, a substantial increase. On this basis, he argues that through his higher education, he has been able to achieve higher income. To foreshadow my reasoning below, Griffin J. noted that the respondent had earned as much as $466,000 in his best year before the separation. At the time of the separation, he was earning £19,000 per month. [ 46 ] Dr. Harrison’s affidavit describes his thought process in deciding to seek higher education.

There are internal inconsistencies within his explanation:

a) he says that he was informed that he was over-qualified for positions in Victoria. Having received that advice, he decided to increase his qualifications by pursuing a PhD;

b) he says that he had no money and was not employed. He described those facts as part of the reason he decided to go back to school. I note that having no money would be a barrier to most people seeking further education. In Dr. Harrison’s case, he says he had no money and he had newly acquired financial obligations to his children and his ex-wife following the release of the Trial Reasons; and

c) Dr. Harrison’s affidavit #4 states that he did not have any funds to appeal or apply to vary the orders arising from the Trial Reasons. However, in the same affidavit, he says that he has made payments to his children over the past eight years “in excess of the income that I was earning at the time. I did so by exhausting my savings.” [ 47 ] I draw the very obvious inference that Dr. Harrison decided to pursue further education primarily to avoid any financial obligations to his family.

His conduct in this regard continued the pattern that he established before the trial, which was noted by Griffin J. in the Trial Reasons. [ 48 ] For that reason, I find that if Dr. Harrison’s earnings are accurately reflected in his affidavit material, then he has been under- employed for the past eight years and he continues to be under-employed. As noted, he says that he has earned zero income in 2019. It is hard to imagine a reasonable argument that he is currently employed to his capacity. [ 49 ] That leads me to discussion of the second issue, Dr.

Harrison’s actual income and the accuracy of the reporting thereof. [ 50 ] As noted, Dr. Harrison says that his income has been substantially lower than the imputed income in the years since 2011. As noted, he says that his actual income during those years was a total of $235,387. That total figure represents slightly less than $30,000 per year. He provided income tax returns for some of the intervening years. He says that in the other years, he was not required to file income tax returns.

The returns he did file are based on income that he earned in the Republic of Ireland and Great Britain (2011-2012), New Zealand (2013-2017), and the United States (2017-2018). He says that his income for 2018 was $99,550 but that he has been unemployed in 2019. [ 51 ] I note again Dr. Harrison’s statement that he had no funds after the trial. The Trial Reasons assessed and divided the assets of the parties. There was no mention that Dr. Harrison had accumulated any savings. In this application, he says that he did not appeal the Trial Reasons because he had no funds at that time.

Hence, he declared his impecuniosity as of 2011, both in 2011 and again in 2019. He then declared that he has paid out more than $80,000 from his savings. Obviously, if he had savings in 2011, those funds were not considered in the division of assets. [ 52 ] At the very least, if he realized this apparent inconsistency in these application materials, Dr. Harrison should have provided some explanation for the appearance of the “savings” that have made the payments available to his children.

Without any explanation of the inconsistencies in his material, the court is left to draw the inference, if not the conclusion, that he either under-reported his assets at the time of the trial or he has under-reported his income since. [ 53 ] Further, it is clear on Dr. Harrison’s own evidence that he had funds available to pay the support obligations that were ordered following the trial, but he chose not to comply with this Court’s order. He paid more than $80,000 directly to his children but refused to pay any amount to the claimant. This conduct by Dr.

Harrison was entirely consistent with the conduct noted by Griffin J. in the Trial Reasons. Either way, it does not assist Dr. Harrison in meeting the burden required for this application. [ 54 ] The claimant disputes the respondent’s contention that his actual income in the years 2011–2019 was as he declared in his supporting affidavit, or in the attached income tax returns. For obvious reasons, she has no way to investigate or verify his actual income.

However, she notes that in the period between August 2011 and the present, the respondent has travelled to, lived in, or studied in Ireland, New Zealand, California, the United Kingdom (at Cambridge), India, China, the United States, and the United Arab Emirates. The claimant notes that the respondent has always had funds available to travel extensively and pursue his education. He also travelled with each child to cities in the United States and travelled with the youngest child to investigate universities in Britain.

[55] The claimant argues that these travels, and the obvious expenses associated with them, belie the respondent’s declared earningssince the trial. [56] The test for altering the imputation of income requires sufficient evidence from the respondent that there has been a materialchange. The facts under consideration include the credibility of the respondent, whether the respondent has been “reasonablyunemployed” or under-employed (see K.P.B. v. A.S.R., 2016 BCCA 382 at paras. 24–25).

Ultimately, the respondent must establish thatthe circumstances that have transpired after trial were materially different than the situation prevailing when the Trial Order was made. [57] I find that the situation is not materially different from the scenario anticipated in the Trial Reasons. It is evident that Griffin J.found that Dr. Harrison was deliberately under-employed and was attempting to avoid his financial obligations arising from theseparation and the divorce.

The Trial Reasons note that the respondent is aware of how to hide income and had engaged in that practicebefore the trial. [58] Over the past eight years, Dr. Harrison’s actions have mirrored the trajectory that was anticipated in the Trial Reasons. I haveevery confidence that if Griffin J. were faced with this application, with the clarity of hindsight, she would find nothing that unfolded inthe intervening years to be surprising. [59] For these reasons, I find that there has not been a material change of circumstances since the Trial Order. The respondent has notmet the high burden placed upon him.

I decline the application to vary the order relating to the imputed income of $120,000 per year. 4. Recalculation of the Arrears of Child Support Obligations [60] Dr. Harrison seeks an order that his past child support obligations be recalculated based on the income determined by the courtfor those periods of time that the court determines he had child support obligations, and a corresponding variance of the Trial Order. [61] Having declined to vary Dr.

Harrison’s imputed income or the age at which each child ceased to be a child of the marriage, thereis no basis for me to make an order varying the child support obligations on this basis. I have not found that Dr. Harrison’s income waslower or that his obligation to pay child support ended earlier than anticipated. [62] Were I wrong on the issue of imputation of income, I still would not decide in Dr. Harrison’s favour on this issue. If I were toconsider the application to vary the child support obligations of Dr. Harrison, the test for variation of child support has been discussed inmany cases.

The respondent cites as an example Earle v. Earle (1999), (BC SC), 86 A.C.W.S. (3d) 764 (B.C.S.C.),which provides that: [19] Before a judge can change a maintenance order that has already been made, there has to be a material change of circumstancessince the original order was made. That is, the change must be of the kind that, if known by the judge when the last order was made,would have resulted in a different order. The change must be significant and long lasting.

Otherwise, there will be uncertainty, which isnot in the best interests of children. [20] A judge does not have to change an order granted before the Guidelines came into force, to conform with the Guidelines justbecause a parent asks.

Instead, an order will only be changed where the arrangements the parents or a previous court made are seen asunreasonable when compared with the arrangements that would result from the application of the Guidelines after taking into account allthe relevant factors. [Emphasis in original.] [63] I also note the following paragraphs from Earle regarding common arguments made in support of an application to cancel orreduce arrears of child support.

I note these paragraphs because, in one form or another, the respondent made each one of thesearguments (among others) at the hearing: e. “My former spouse (partner) will get a windfall” [36] This is sometimes called the rule against hoarding. The law is now clear that it does not apply to the payment of child supportarrears.

This is because the rule against hoarding invites the person required to pay to disobey the court order directing him or her to pay.It assures the person that if he or she can avoid making those payments for long enough, a court will vary the order for payment so as toreduce or eliminate any arrears. This is contrary to public policy. [37] The rule also does not apply because the courts feel that the obligation to pay arrears of maintenance should be enforced in fairnessto the parent with custody who has had to bear a disproportionate part of the child rearing expenses.

It is also in recognition of theimportant principle that parents are jointly responsible for child support, and that this responsibility cannot be avoided by delay. f. “The children have not suffered because others provided assistance” [38] This argument suggests that no harm has really been done. This has also been rejected by the courts. A variation order that reducesor eliminates arrears of maintenance of a child because someone else has provided this financial support, does not recognize the financialobligation of the person against whom the order was made to maintain the child.

Such a variation order is inconsistent with the DivorceAct. g. “My child does not need the money now” [39] This is like the last argument. It also has been rejected. If the quality of life of the child has been diminished, it may be appropriateto compensate the child. This could be done directly by payment to him or her, or indirectly by payments to the parent with custody, forthe child.

… j. “I spent a lot of money on my children, even though I was not paying all that was required by the Court Order” [42] This does not provide a valid legal excuse for not paying maintenance and does not provide a reason for reducing or cancellingarrears. Maintenance for children is required for many reasons and it is up to the parent who is entitled to receive it, not the person whois required to pay, to decide how it should be spent in the best interests of the children. [64] The respondent also cites P.G. v.

D.D.G., 2017 BCSC 724, where Madam Justice Morellato comments: [38] Counsel for P.G. submits that D.D.G. seeks to vary the 2015 Order in relation to S.G. but, in order to succeed on her application,she must demonstrate that there has been a material change of circumstances since the making of that Order. Counsel refers to ss. 17(1)and (4) of the Divorce Act and relies on the following passage from the Supreme Court of Canada’s decision in Willick v. Willick, (SCC), [1994] 3 S.C.R. 670 (S.C.C.), where the court considers the application of this subsection: 21.

This subsection authorizes the court to vary a previous support order if a change of circumstances occurs. The approach which acourt should take is to determine first, whether the conditions for variation exist, and if they do exist, what variation of the existing orderought to be made in light of the change of circumstance. 22. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change ofcircumstances. This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this isthat if the matter which is relied upon as constituting a change was known at the relevant time, it cannot be relied on as the basis forvariation. [Emphasis added by Morellato J.] [65] The respondent acknowledges that the burden on him in seeking the variation is high. As set out above, since I have found thatthere is no reason to change the imputed income, there has been no material change in circumstances that would warrant an alteration toDr.

Harrison’s child support obligations. [66] I note again that the Trial Reasons addressed the issue of child support obligations on the basis that the children would live 60%with their mother and 40% with their father. As noted above, soon after the trial, the respondent left Canada. As a result, while they werechildren of the marriage, the children lived 100% of the time with their mother.

Hence, if there were changes in circumstances asenvisioned in the Trial Reasons, one significant change was that the claimant took on a greater share of the responsibility for raising thechildren than was anticipated by the trial judge. I find that that is a factor that I must take into account in assessing whether I should varythe orders relating to child support. [67] I find that the respondent has not met the burden of demonstrating that there has been a material change of circumstances sincethe Trial Reasons were released.

I note particularly the sentence from Willick at para. 22, quoted in P.G. at para. 38, that “if the matterwhich is relied upon as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation.” I find thatsituation to exist in this case. The trial judge anticipated the respondent’s conduct. [68] On the basis set out above, I decline to vary the income imputed to the respondent. If I am wrong in that analysis, I decline tovary the arrears of child support that has accumulated. 5.

Cancellation of the Arrears [69] Regardless of my findings on the first three claims for relief, Dr. Harrison seeks to have the amounts that were paid directly tothe children deducted from the child support obligations that have accrued over the eight years since the trial. [70] The respondent says that, although he is in breach of his obligations to pay the support payments awarded at trial, he is stillentitled to receive consideration of the amounts that he paid directly to the children. He cites H.(U.V.) v.

H.(M.W.), 2008 BCCA 177 atpara. 46: [46] It is tempting to respond to this argument by saying that it ill lies in the stepfather’s mouth to complain about the father’s conductwhen he, the stepfather, failed to comply with a court order in favour of the children. However, the cold logic of the law perhapsdemands a more objective approach. In [D.B.S. v. S.R.G., 2006 SCC 37], the Supreme Court of Canada reviewed the factors that a courtshould consider in awarding retroactive child support.

In so doing, it emphasized that “At all times, a court should strive for a holisticview of the matter and decide each case on the basis of its particular factual matrix.” (Para. 99.) The factors cited by Bastarache J. werethe reason for the choice of the recipient not to apply for support earlier (this factor was said to be “crucial”); any “blameworthyconduct” on the part of the payor or whether it appears he or she has “contributed to his/her child’s support in a way that satisfied his/herobligation”; the circumstances of the children and in particular their economic needs; and whether hardship would be occasioned by aretroactive award. (Paras. 100-16.) [71] As noted above, the respondent says that the court should take a “holistic” approach to the entire matter.

Also as noted above,there is no holistic approach, in fact, no reasonable approach that will assist the respondent in this case. [72] The respondent seeks the cancellation of the arrears of child support on two bases: 1. he has paid $80,400 to the children directly; and 2. the 2009 Trust that he established paid out $73,150 to the children directly. [73] I note that these payments were made directly to the children and no funds were paid to Ms. Harrison. Again, this conduct

echoed the Trial Reasons. [ 74 ] I will deal first with the payments made directly by Dr. Harrison. [ 75 ] The first issue with respect to the amounts paid by Dr. Harrison is whether they were paid for extraordinary expenses. [ 76 ] The claimant argues that the amounts paid by the respondent were either gifts, extraordinary expenses, or were paid to the children after they turned 19 and fell outside of his obligation to pay child support.

As a starting point for this analysis, she points to the Trial Reasons which specified some items that were to be considered extraordinary expenses: [130] I find that it is appropriate to order that the parties share the extraordinary expenses of the children, pursuant to s. 7 of the Guidelines , in the same proportion as the respondent’s imputed income of $120,000 is to the claimant’s income of approximately $40,000, which is a 75%-25% split.

I consider that the children’s dental care, eye care, school fees, the cost of at least one extracurricular activity per child, and the cost of any other extracurricular activities agreed to by both parents, are extraordinary expenses to be shared on this basis. [ 77 ] Hence, the respondent was responsible to pay 75% of extraordinary expenses. [ 78 ] The claimant further argues that para. 6 of the respondent’s 4th affidavit is determinative. He swore: 6.

From time to time, from 2012 until 2019, I have personally made payments to or on behalf of my said children, from my own savings, in the amount of $80,406.00 in Canadian funds; and now produced and shown to me and annexed hereto as Exhibit “B:” to this my affidavit is a copy of the list of such Extraordinary Expenses that I have paid to or on behalf of my said children. [Emphasis added.] [ 79 ] The claimant argues that the sworn statement means what it says. She says the respondent has acknowledged in his own affidavit that the payments were for extraordinary expenses. Dr.

Harrison’s counsel attempted to argue that the terms used in a litigant’s affidavit cannot be imbued with legal meanings. I reject that submission. Dr. Harrison’s counsel submitted and relied on Affidavit #4 in support of this application. If he thought that it contained incorrect information, he did not have to use it. The affidavit could have been re-sworn with different wording. [ 80 ] Of the $80,400, I note that the vast majority was provided for specific items or trips, which supports the argument that they were extraordinary. I analyze the payments as follows:

a) The respondent acknowledges that $26,789 was spent on extraordinary items. Thus, $53,611 remains in dispute.

b) Approximately $12,400 was paid by the respondent to a child after he or she ceased to be a child of the marriage. Although the respondent argues that he should still receive credit for those amounts, it is clear that those funds were not paid as part of the cost of raising the child or as child support. They were, by definition, gifts to adult children. They cannot reduce the respondent’s obligation to pay child support. That reduction leaves $41,211 in dispute.

c) One expense paid to the third child was $13,800 for university tuition and related expenses in 2015. The respondent asserts that some of those funds went for living expenses. However, the claimant provided evidence that the tuition at the university was £16,500. It is clear that the amount paid by the respondent did not cover the full tuition. That leaves $27,411 in dispute.

d) Approximately $12,400 relates to the purchase, insurance, and repair of vehicles. Those were not payments in the ordinary course of raising each of the children. I find those expenses to be extraordinary, leaving $15,011 in dispute.

e) Approximately $12,500 was paid to the third child for two computers, a trip to England with the respondent to investigate universities, and a four-month trip to Europe. I find those expenses to be extraordinary, leaving approximately $2,500 in dispute. [ 81 ] The respondent made two payments totalling $2,550 to the third child for “emergency” university funds in 2018 and 2019 while she was living in England. There are no specifics on the reason that she needed these funds, but the inference is that the funds were needed for living expenses that she could not otherwise afford.

I find these payments, totalling $2,550, were paid in lieu of regular child support, and I allow the application of that payment against the arrears. [ 82 ] As a result, the arrears of child maintenance are reduced by $2,550. [ 83 ] The respondent further argued that, because the child support obligations are payable for the benefit of the children, and not the claimant, the claimant has no entitlement to the arrears of child support. In the result, he argues that his obligations to pay the arrears of child support should be cancelled.

In this respect, the arguments set out at paras. 36–42 of the Earle decision (set out at para. 64 above) directly address the respondent’s position. Dr. Harrison’s arguments were predicted and debunked 20 years ago. They have no validity. [ 84 ] The respondent further argued that, should I find that these amounts were paid for extraordinary expenses, then he should be given some other form of credit because the Trial Reasons ordered him to pay 75% of extraordinary expenses. He says that there is no evidence that the claimant paid any portion of these amounts.

Hence, he has been forced to over-contribute to these expenses. [ 85 ] This submission, of course, ignores the fact that from 2011 until each child ceased to be a child of the marriage, the claimant was left in the position of having to raise the children without any financial assistance from the respondent. She was in that position because the respondent left Canada and was in breach of the Trial Order. He now resurfaces, seeking an accounting for the amounts that he has paid over the past eight years, noting that he has kept scrupulous recording of those amounts.

He then says that if the claimant cannot prove the expenses that she has incurred on extraordinary expenses over the past eight years, then she should be given no credit for any such expenditures.

[ 86 ] In these circumstances, the respondent’s submissions on this issue cannot be accepted. It would be entirely unfair for the claimant to be forced to take on the entire cost of raising the children, knowing that the respondent would not be assisting, and then reduce the respondent’s obligation to pay the arrears on the basis that the claimant failed to keep records when she thought there was no reason to keep such records. [ 87 ] The respondent submits that if the claimant had paid amounts for extraordinary expenses, then she should provide invoices for those amounts.

To her credit, the claimant did proffer a large number of expenses for extraordinary expenses. I do not accept the respondent’s argument that the claimant must now prove her contribution to the extraordinary expenses of raising the children. However, if she was required to do so, I find that she has established through her receipts that her expenses equalled or exceeded her obligations in this regard. [ 88 ] Having undertaken the analysis described above, I allow the respondent’s application for a cancellation of the arrears of child support to the extent of $2,550. [ 89 ] I turn now to the argument that Dr.

Harrison should get credit for amounts paid by the 2009 Trust directly to the children. The total amount paid by the 2009 Trust was $73,150. [ 90 ] The respondent argues that payments made by the 2009 Trust directly to the children should be taken into account and offset against the arrears of child support. [ 91 ] He says that payments from a trust established for the benefit of the children can be set off against obligations of one of the parties. The respondent points to W.P.N v.

B.J.N ., 2005 BCCA 7 as authority for the proposition that where one parent pays child support directly to the child from a family trust, those payments can be credited against the child support obligations of that parent. However, in that case, the trust was not settled using funds that would otherwise have been a family asset. [ 92 ] To his credit, counsel for the respondent acknowledges that the majority of the payments by the 2009 Trust ($64,578.48) were for special or extraordinary expenses. He argues that amounts paid by the trust totalling $8,571.52 constituted regular maintenance payments.

He further notes that the payment for the oldest child to attend a private school included both tuition (extraordinary), and room and board (not extraordinary). [ 93 ] The claimant argues that there is a fatal flaw in the respondent’s argument about the payments from the 2009 Trust. As found by Griffin J., the respondent improperly removed funds that would, otherwise, have been family property in order to settle the 2009 Trust.

The Trial Reasons found as a fact that those funds were comprised of the proceeds of the sale of the family home in England plus the profits of the company that was half-owned by the claimant. Hence, the claimant argues, the respondent is seeking to achieve the benefit of the payment of funds that, but for his improper actions in 2009, would have been owned at least 50% by the claimant.

Hence, the claimant argues, the payments from the 2009 Trust should be considered to be 50% from her. [ 94 ] The claimant further argues that, to the extent the 2009 Trust paid funds toward extraordinary expenses, the respondent was obligated to pay 75% of those expenses. Arguably, 50% of those funds belonged to her. Hence, she has over contributed to the extent of 25% of those payments. [ 95 ] It was always Dr. Harrison’s contention, both at trial and in this application, that he settled the 2009 Trust for the benefit of the children and he has no control over payments made by the trust or over the trustees.

The claimant, in her submissions, points to her experience over the past eight years in dealing with the respondent and with the trustees of the 2009 Trust. [ 96 ] Ms. Harrison’s evidence suggests that Dr. Harrison has significant control over the 2009 Trust and that decisions of the trustees were not made in the best interests of the children. [ 97 ] In an email exchange between the parties on February 15, 2015, the respondent was urging the claimant to make concessions on an issue between them. At the time, the third child was seeking to have the 2009 Trust pay her expenses to study at a university in England.

The respondent wrote in an email that if the claimant made his requested concessions, “I am more than confident the trust will pay”. The inference to be drawn from this correspondence is that Dr. Harrison had some degree of control over the trust and the trustees. [ 98 ] On more mundane, everyday, expenses, the claimant produced correspondence between herself and the trustee of the 2009 Trust, seeking reimbursement for small expenses required for the children. The specific requests would not meet the test of extraordinary expenses. The trustee advised that the trust would not pay those amounts.

Again, the inference is that the 2009 Trust was not designed to assist Ms. Harrison with the expenses of raising the children and would only pay extraordinary expenses directly to the children. This evidence echoes the findings in the Trial Reasons. [ 99 ] I find no support, either factual or legal, for Dr. Harrison’s contention that the payments from the 2009 Trust should be credited against his accrued child support.

Having protected the family assets into a trust that was outside of the reach of the claimant or the jurisdiction of this Court, the respondent cannot now seek to receive the benefit of payments from that trust. [ 100 ] If I am incorrect on that finding, then I find that all of the payments made by the 2009 Trust were for special or extraordinary expenses relating to private school. IV. CONCLUSION [ 101 ] For the reasons set out above, I order and declare:

a) that the eldest child ceased to be a child of the marriage on the date of his or her 19 th birthday. The second child ceased to be a child of the marriage on his 19 th birthday. The third child ceased to be a child of the marriage as of July 31, 2019;

b) that the respondent ceased to have an obligation to pay child support for any of the said children as of July 31, 2019;

c) that the respondent’s imputed income in the period following the Trial Reasons continued to be $120,000 and the Trial Order in that regard is not varied;

d) that the respondent’s past child support obligations are not to be recalculated and the Trial Order relating to child support is not varied; and

e) that the respondent is entitled to a credit of $2,550 against his arrears of child support on the basis that he made payments directly to the third child that were not for extraordinary expenses. The respondent is not entitled to any credit for payments made from the 2009 Trust. [ 102 ] The claimant has had substantial success on these cross-applications. Subject to further submissions, I find that she is entitled to Costs at Scale B, payable forthwith. “A. Ross J.”