J.M. v. S.M., 2019 BCPC 262

Citation: J.M. v. S.M. 2019 BCPC 262 Date: 20191003 File No: F-22034 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M. APPLICANT AND: S.M. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on their own behalf: J.M. Appearing on their own behalf: S.M. Place of Hearing: Victoria , B.C.

Dates of Hearing: September 18, 2019 and October 3, 2019 Date of Judgment: October 3, 2019 Introduction [ 1 ] THE COURT: J.M. and S.M. are before this Court pursuant to an Application to Obtain an Order filed by J.M. on March 28, 2018. In that Application to Obtain an Order, she made various claims, including a claim for retroactive child support for three children of their relationship starting back to the date of their separation in September of 2015, and up to and including January of 2019. [ 2 ] A Reply with Counterclaim was filed by S.M. as the father of the children.

He took issue with the claim for child support.

In his Reply filed on May 28, 2018, he contended that the parties were in a shared parenting arrangement and that there were various payments that he had made contributing to the support of the children and, in addition, he alleged that he had paid for family debts prior to and following the date of separation in September 2015. [ 3 ] The task of this Court is to determine whether or not retroactive child support should be payable by S.M. (hereinafter referred to as the "Father") to J.M. (hereinafter referred to as the "Mother") for the three children of the relationship pursuant to the provisions of the Family Law Act and the Federal Child Support Guidelines .

Background of Court Proceedings [ 4 ] In addition to the Application to Obtain an Order filed March 28, 2018, and the Reply with Counterclaim filed May 28, 2018, the parties have been before this Court on previous occasions. On December 27, 2018, an order was made by the Honourable Judge Barrett. Pursuant to the terms of that order, the Father was ordered to pay child support to the Mother based on a Guideline income of $47,000 per year. That required monthly payments of $987 per month for the three children of the relationship, commencing February 1, 2019, and payable on the 1 st day of each month thereafter.

That order was made without prejudice to any claim relating to retroactive support by either party. [ 5 ] On June 27, 2019, the parties were once again before this Court. At that time, Regional Administrative Judge Rogers made an order. Pursuant to the terms of that order, the Mother and the Father were declared and found to be guardians of the three children of their relationship, namely:

(1) Child S.K., born [omitted for publication];

(2) Child O.M., born [omitted for publication]; and

(3) Child H.M., born [omitted for publication] (herein collectively referred to as the "Children"). [ 6 ] Pursuant to the terms of Judge Rogers' order, the Mother and the Father were ordered to share all parental responsibilities under s. 41 of the Family Law Act . There was a further provision that the Mother and the Father had an obligation to discuss any significant issues involving the Children, and if they were unable to reach an agreement, the Mother was to have the final decision making authority and the Father had the right to ask the Court to review her decision.

Orders for additional financial disclosure were also made, such that the Mother and the Father were required to file updated financial information prior to July 23, 2019. [ 7 ] Further provisions were made in the June 27, 2019 order for the sharing of parenting time for the months of July and August of 2019. An additional provision required that, commencing September 1, 2019, the Children were to reside with the Mother and the Father was to have parenting time with the Children three out of every four weekends.

The pickup and drop off arrangements were also stipulated in that order made by Regional Administrative Judge Rogers. [ 8 ] A further provision contained within Judge Rogers' order was a direction that the parties were to arrange between themselves which weekends the Father was to have the Children.

In doing so, they were further directed that every effort should be made to arrange for the Father to have the Children for his parenting time on weekends where there was a statutory holiday and with a further proviso that the Father's parenting time would be extended to include that statutory holiday. [ 9 ] Under the terms of Judge Rogers' order, the remaining issues of retroactive child support and any reduction in child support for the summer months was to be adjourned to the Judicial Case Manager. That brought this matter before this Court once again on September 18, 2019.

It is noteworthy that the parties are self represented in these proceedings. The Circumstances and Background Facts [ 10 ] The evidence before this Court confirms that the three Children do not have any special needs.

Presently, they are not engaged in extracurricular activities; however, they have had opportunities from time to time to attend day camps during the summer months in order to accommodate the work schedules of each of the parents. [ 11 ] The Child S.K., who is now age 15, is in Grade 10; the Child O.M. is age 12 and, as I understand it, is in middle school; and the Child H.M. is age 9 and is in Grade 4. [ 12 ] The parties (collectively the “Parents”) never married prior to their separation.

There was no formal separation agreement but, according to the evidence, they did discuss child support and parenting time when they separated. The Parents apparently received advice from the Justice Access Centre and an oral arrangement was made such that child support payments of $900 per month would be paid by the Father to the Mother.

The Father made one payment in October 2015, and thereafter the payments became very sporadic with no further payments in 2015, no payments in 2016, payments of $1,700 in 2017, and $4,050 in 2018. [ 13 ] Exhibit 1 is a listing of payments, and the total payments made on account of child support obligations by the Father to the Mother equals $6,350. Since the time of separation, the Mother has made continuous requests to the Father to make his child support payments.

For the most part, these requests have gone unheeded by the Father, resulting in the filing of the Mother's Application to Obtain an Order on March 28, 2018. [ 14 ] The Mother lives in Victoria. As noted above, an order was made with respect to guardianship and shared parental

responsibilities. However, the Mother has been the primary caregiver for the Children since the time of separation. The Father has had parenting time by way of oral arrangements which, at one point, essentially saw him having the Children on alternate weekends with some extended time for statutory weekends and extended times during the summer months. [ 15 ] The Mother’s residence in Victoria is rental accommodation.

Following separation, the Father lived and rented in Victoria and then about February of 2017, he moved to Duncan, British Columbia, because of lower rents and better value for his rental payments. [ 16 ] The Mother is 39 years of age, has a Grade 11 education, and has worked as a barista at a downtown coffee shop for some 10 years. This past year she bought the business from the retiring owner, utilizing vendor financing. She now operates the business through a corporation in which she is the sole shareholder. She continues to be an employee and works for the corporation, along with five other employees.

The Mother limits her wage income taken out of the corporation to $18,000 per annum, which she testified is approximately the same amount that she received as an employee of the previous owner. [ 17 ] The corporation’s business has been losing about $2,000 per month because of the anticipated slow summer months, thus there is an accumulated loss to present date of approximately $6,000.

The Mother is hopeful and confident that the prospects of the business will improve, as has been the traditional pattern. [ 18 ] Following the separation of the Mother and the Father, the Mother received a personal injury settlement of some $65,000. Portions of those monies were used for various things, including loans to other family members. [ 19 ] The Father is presently 40 years of age. He obtained a degree by returning to university while the parties were living together. In order to do so, he obtained student loans to pay for tuition and to help support the family.

During this period of time, the Mother worked part time. The Father obtained a degree in Environmental Science. He then obtained a union job with the Municipality of [omitted for publication] in April 2013 as a Parks Worker, Level 1. That apparently is the lowest classification level for that particular job. He was originally responsible for overseeing the Invasive Plants Program of the Municipality, but due to unhappy differences with his immediate supervisor, he transferred to another

section and now works as a labourer. For the first two years of his employment, he was able to maintain eight or nine months of steady work, and then was seasonally laid off and therefore was required to obtain and rely upon Employment Insurance.

Since that initial period of time, he has now been able to obtain about 11 months of steady work each year, but then continues to be subject to seasonal lay off and is required to obtain and rely upon Employment Insurance. [ 20 ] The Father testified that he finds himself "stuck" in his present job and is unable to successfully apply for other jobs within his present municipal employer.

He has played in a band which is more in the nature of a hobby, and he does not earn any income, or at least not enough to cover expenses. [ 21 ] The Father testified that he had brain surgery for a tumour in 2014 and has from time to time suffered from depression, headaches, and other ailments. He has obtained some treatment and counselling. His health has prevented him from obtaining additional part time work in the areas of gardening and landscaping. He was injured in a car accident in 2003.

Because of his health issues, he finds that the additional extended benefits available through his employment are beneficial and he does not want to sacrifice his present employment with the Municipality for fear of losing those benefits. [ 22 ] The Father testified that he has to rely on the food bank to supplement his income and further that he does not have sufficient money to pay his living expenses.

His evidence is that he struggles to make the payments of child support in accordance with the existing order and states that he will have great difficulty with a retroactive order for child support. [ 23 ] He still has outstanding student loans and although he had to pay some $450 for a period of six months; but prior to making those payments and at present he is on a “relief program” with respect to making monthly payments on his student loans. [ 24 ] He describes himself as being “resentful” when the Mother received her ICBC settlement. He characterizes himself as having "crushing debt".

He recently was able to pay off an amount of money towards his student line of credit, which payments I understand amounted to some $15,000.

As I further understand it, he may have received some assistance from his parents in order to make those payments. [ 25 ] His total debt amount, including his student debt, apparently at one point was in the range of some $45,000. [ 26 ] Notwithstanding that, the financial statements that have been filed by the Father in June of 2019 do not contain details about his monthly expenses and only provide information regarding his income. [ 27 ] The evidence before this Court is clear that the Father does not presently, nor in the past, has he had the Children 40 percent of the time, even though he did have the Children for extended periods of time during this past summer.

Therefore, the Father has not established that the existing parenting arrangement is a shared custody arrangement as contemplated by s. 9 of the Federal Child Support Guidelines . [ 28 ] There have been times since the separation that the Children have been not willing to visit the Father because of a perceived lack of adequate housing. As I understand it, that occurred prior to the Father's move to Duncan, British Columbia. [ 29 ] The evidence is clear that the Father has made some financial contributions for the Children to attend summer camps, the largest amount being in 2017.

The evidence appears to be that he made a payment of some $2,550. The Mother has made the bulk of the payments for other years to attend these camps. There appears to have been a significant lack of consultation between the parents prior to the Father making payments for summer camps. The evidence before this Court is that the summer camp experience for the two younger Children was not successful and resulted in the truncation of their attendance at the summer camp programs.

Issues Before the Court with Respect to Child Support [ 30 ] As noted above, the Court must determine what child support would have been payable on a retroactive basis from the date of

separation up until January of 2019, being the month prior to the commencement of the child support payments in accordance with theorder made by the Honourable Judge Barrett on December 27, 2018. Financial Information Before the Court [31] By way of observation, the Mother has provided financial information which essentially covers the periods from 2016 throughto 2019.

The Mother's financial statement, which was sworn and filed on the day of the commencement of this hearing, being September19, 2019, discloses that her line 150 income was as follows: for the year 2016, the amount of $14,617; for the year 2017, $16,640,83; forthe year 2018, $19,479.38.

For the year 2019, the Mother's evidence is that she estimates that she will be earning income based on thearrangements that she presently has in place with her corporation and that amount will be $18,000 per annum. [32] The Father has provided detailed information with respect to his Guideline income for the years 2015 to 2017 inclusive.

As Iunderstand it, the Father has not filed his income tax returns nor has there been a complete assessment as a result of issues that he says hehas with Canada Revenue Agency and, as I understand it, potential issues of reassessment which have put him in a difficult position. [33] Based on the information before me, I have determined that the Father's Guideline income is as follows for each of the yearsstated, and the monthly child support obligations for three Children and the number of months to which those obligations are as follows:

a) For the year 2015: the Guideline income amount was $45,607, the monthly payments were $914, resulting in four monthlypayments due totalling $3,656.

b) For 2016: the Guideline income amount was $46,022, with the resulting child support payments of $921 for 12 months due,totalling $11,052.

c) For 2017: the Guideline income amount was $46,658, resulting in child support payments of $932 per month for 12 months,totalling $11,184.

d) The imputed income for the Father for 2018, based on the estimate of the available amount is $47,000, resulting in monthlychild support payments of $974 for 12 months, equalling $11,364.

e) For 2019, without available information and based on the Father's evidence that he anticipates earning the same amount, I haveimputed his income to be $47,000, again resulting in child support payments of $974 for the one month of January 2019 thereby theamount due is $974. [34] Totalling up the amount of child support due from September 2015 up to January of 2019, based upon the figures providedabove, the Father would have been required to have paid the gross amount $38,230 in child support before any credits. As noted above,he has made payments totalling $6,350.

Therefore, the net amount of his child support arrears, prior to any further adjustment, is $31,880for that period. Mother's Position [35] The Mother's position is that the Father should have been making child support payments originally as the parties had agreedverbally following a visit to and receiving advice from the Justice Access Centre. The Mother says that the Father has made severalpromises but has failed to fulfil those promises.

She has been required to constantly remind the Father of his child support payments andhe has failed, refused, or neglected to do so. [36] The Mother does acknowledge that due to both health issues, as well as other financial matters, the Father has been presentedwith some challenging issues. Based on that, she indicates that a fair and reasonable compromise would be for the Father to beresponsible for something in the range of about two thirds of the total amount of the arrears of child support as calculated above.

Father's Position [37] The Father made several representations about the financial hardship that he has endured, the problems with his employment,and the problems with his health. He indicated in his submissions that he has endeavoured to provide child support when he was able todo so. He did not nor was he able to provide much in the way of an explanation of where his monies go, other than to say that he has“crushing debt” with which to deal.

Also he made mention on at least a couple of occasions of his requirement to rely on the food bank,notwithstanding the fact that he has a relatively steady union position with a local municipality. Hence, the Father expresses the concernthat he will not be able to meet his existing child support obligations, much less satisfy the payment of arrears of child support. Law as to Retroactive Child Support [38] In the case of Williams v. Mapson, 2015 BCSC 828, Mr. Justice Ball said the following in a useful

summary of the approachwith respect to retroactive child support, quoting from Mapson as follows: [18] At para. 68 of D.B.S., Bastarache J. sets out the justification for retroactive child support orders: The concern associated with retroactivity is that, from the perspective of the person on whom a retroactive obligation is imposed, theorder is arbitrary and unfair: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 553-54.

Yet aretroactive child support order, as considered in the present appeals, does not involve imposing an obligation on a payor parent that didnot exist at the time for which support is being claimed . . . [19] Bastarache J. set out four factors to be considered by the court in assessing whether a retroactive order is appropriate. Thesefactors were outlined by Madam Justice Kirkpatrick in McKenzie v. Perestrelo, 2014 BCCA 161 at para. 106: The four factors to be considered are:

a) whether there is a reasonable excuse for why support was not sought earlier;

b) the conduct of the payor parent;

c) the circumstances of the child or recipient spouse; and

d) any hardship occasioned by a retroactive award on the payor spouse. [20] At para. 101 in D.B.S., Bastarache J. stated as follows: Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family.

Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice… [ 39 ] In de Rooy v. Bergstrom , 2010 BCCA 5 , the court quoted the following passage from the D.B.S. decision: [55] In D.B.S. v.

S.R.G. , Bastarache J. stated that “in general” a retroactive award should not extend back more than three years before formal notice has been given, but, could reach back to an earlier date if the payor parent has engaged in blameworthy conduct: paras. 123 -125. As indicated above, the chambers judge found that Mr. Bergstrom was guilty of such conduct. Having done so, the chambers judge exercised his discretion, and ordered the payments retroactive to the date of effective notice. I am unable to find any error in principle in that determination. Indeed, given Mr.

Bergstrom’s awareness of the difficult circumstances under which his children were living, and his indifference to their benefiting from his improved financial position, the date chosen was entirely reasonable. [ 40 ] In Stuart v. Ganam, 2013 BCSC 849 , Mr. Justice Punnett at paragraph 18 also speaks of the "normal three year limit" for retroactive payments. [ 41 ] In Carreiro v. Carreiro , 2015 BCSC 714 , Madam Justice Humphries said the following: [273] I agree with the comments of the chambers judge who granted the amendments, who told Ms.

Carreiro the retroactive claim would be governed by, at the earliest, the date of the application, that is October of 2013. Ms. Carreiro never questioned the level of child support prior to that date. There is no misconduct on Mr. Carreiro’s part that would justify going back more than three years prior to that date when setting retroactive support (see D.B.S. ), assuming there is a need to adjust the amounts Mr. Carreiro has been paying.

Analysis [ 42 ] In this case, I am satisfied that the evidence supports the submission made by the Mother that she made continuous and repeated claims for child support from the Father. There was initially the oral agreement concerning payment of $900 per month. The Mother received intermittent payments on a rather sporadic basis.

The Father made a series of excuses as to why he was not paying the Mother. [ 43 ] The Mother's formal notice to the Father in this case occurred with the filing of her Application on March 28, 2018. [ 44 ] I am satisfied that there was a reasonable excuse on the part of the Mother why she did not file the Application earlier.

It is clear from the evidence and I so find that the Parents maintained a reasonable on going relationship when trying to deal with the emotional fallout of the termination of their personal relationship, but they were also trying to maintain a civil relationship between themselves for the benefit of the Children. [ 45 ] Hence, I find that the Mother deferred making her Application until such point that it became abundantly clear that the Father was not intending to nor providing any financial information to her nor starting to make and maintain regular payments in accordance with the original arrangement that had been achieved by them at the time of their separation. [ 46 ] I also find that the Father's failure to provide information to the Mother concerning his financial standing and his failure to make sustained payments to be blameworthy conduct on his part.

I do accept that the Father had financial challenges, but those financial challenges were, to a certain extent, arising out of his educational pursuits and what appears to be a lack of attention to dealing with his financial matters in a concrete or positive way.

When questioned by the Court, the Father had a litany of excuses as to why he was unable to improve his financial position and that extended to excuses of being unable to find better work, more satisfying work, or even part time in order to satisfy his child support obligations. [ 47 ] With respect to the circumstances of the Children and the Mother, who should be the recipient of the child support on behalf of the Children, I find that she has been able to make due, but it is clear that she has been unable to secure ongoing, sustained child support from the Father.

She apparently has worked hard in order to make sure that the Children do have stable housing and are able to have at least a reasonable, basic standard of living. However, I am satisfied that if I were to order retroactive child support in this case, that the benefit of any retroactive payments will certainly be of great assistance to the Children in improving their standard of living and their quality of life. [ 48 ] I must then consider any hardships occasioned on the Father by a retroactive award.

There is no doubt that there will be some financial challenges as a result of an award of any retroactive child support.

However, I am of the view that any of those hardships may be ameliorated by a scheduled payment which would permit the Father to make adjustments to his spending priorities in order to make sure that at some point he is able to fully satisfy any amount of arrears, as well as being able to continue with payments of his child support obligations. [ 49 ] I am also taking note of the fact that the Mother is alive to the issue of some of the challenges that the Father has faced and has therefore submitted that an appropriate order by this Court would give the Father a reduction in the total arrears amounts.

Findings and Conclusions [ 50 ] Based on all of the above, I make the following finding: the Father will be subject to an order for retroactive child support. That order will run from September of 2015, being the date of separation and being the date at which the Father agreed to make child support payments based, on the oral arrangement, of some $900 per month.

I am also of the view and therefore order that the child support arrears should be calculated up to and including January of 2019. [ 51 ] Based on those findings, I therefore determine that, prior to any adjustment, the total arrears owed by the Father for child support, will be the amount of $38,230. [ 52 ] I also find that it would be appropriate, and in accordance with the submissions of the Mother, that the Father should be given credit for the payment of $6,350.

Hence, the net amount of the child support arrears totals $31,880. [ 53 ] I am further going to make a finding that the total amount of arrears then will be reduced as requested by the Mother by one third, which amount equals $10,626. [ 54 ] Therefore, I fix the total arrears owed by the Father to the Mother for the period from September 2015 to January 2019 at $21,254. [ 55 ] I will now turn to the issue of payment of the arrears. As has been indicated, the Father has had some financial challenges.

I am of the view that the way that that should be dealt with is that there should be an order for nominal payments for a period of some 12 months. Thereafter, the Father's financial situation and the payment

schedule for arrears will be reviewed in order to take into account any changes in the circumstances. [ 56 ] Accordingly, there will be a further order of this Court that the total arrears of $21,254 will be satisfied by monthly payments of $25 per month commencing November 1, 2019, and continuing on the 1 st day of each month thereafter until further order of the Court. [ 57 ] I am making a further order that the issue of the payment

schedule for the balance of the arrears will be subject to a review of this Court to be scheduled by the parties in November of 2020. In order to assist the Court in that review, I direct that the parties both will file updated financial information, including revised sworn Form 4 Financial Statements, together with updated copies of all T-1 General income tax returns to be completed and filed commencing for the years 2018 onward, and will provide further copies of any Notices of Assessment or Reassessment that have been received.

There will also be information provided to establish the income of each of the parents from January 1, 2020, to the end of October of 2020. All of the financial disclosure information will be filed and delivered two weeks prior to any hearing set in order to review the payment

schedule with respect to the arrears. [ 58 ] In order to assist in the determination of the Mother's available income, I direct that the corporate income tax returns and financial statements of her corporation for the corporate year end immediately preceding the November 2020 review will be also prepared, filed and delivered to the Father two weeks prior to the scheduled November 2020 review. [ 59 ] I am further adjourning any application with respect to the issue of any special or extraordinary expenses, with liberty to either party to make a further application or to raise those issues, either at the review scheduled for November 2020 or such other time as they may choose to do so, provided however, that no such application will be made and heard prior to the determination of the review in November 2020, and provided further that an application may be filed in that regard in order to include consideration of the issue of special and extraordinary expenses at the November 2020 review. [ 60 ] That concludes my reasons with respect to this matter.

Madam Clerk, do you have the orders that I have made or have you been able to follow along? [ 61 ] THE CLERK: Yes, Your Honour. [ 62 ] THE COURT: All right. What I am going to ask you to do is that I am going to make a further direction now that the Registry prepare the form of the order, and I waive the signatures of both parties with respect to the form of that order. I will request that before the order is entered, that it be sent to me for review.

I reserve the right to make any necessary editing in order to reflect the form of order that has been contemplated by my reasons for judgment in this matter. [ 63 ] All right, so that concludes the reasons. So the process from this point on will be that there will be a formal court order prepared. You are both going to be coming back to Court for a review. It will be necessary to make an application or to set, through the judicial case manager, a review date.

You probably want to do that earlier rather than later. [ 64 ] You are both going to have an obligation to provide updated financial information to each other in order to look at where you are at financially. I have not made any order with respect to special or extraordinary expenses, which may include such things as childcare, orthodontic expenses, things of that nature. I am not making an order today about those type of expenses. [ 65 ] I am presuming that the Children are on the Father's extended healthcare through his municipal work.

I do not have any evidence before me which indicates that the Children have a series of extraordinary expenses arising out of appropriate extracurricular activities. I understand that may change, but that is not the case at present time. [ 66 ] So the important thing is that there be continued communication between the Parents in order to keep the order of Judge Rogers, made June 27, 2019, in place and working appropriately. But with respect to the financial matters, I have made the determination of what the arrears amounts are and what the payment of those arrears will look like, but that the payment

schedule is going to be subject to the review in November 2020. [ 67 ] Any questions about that? All right. So you will receive a copy of the order. Make sure that you always have an updated address on file with the Registry. To assist any judge who deals with this matter in the future, I am going to request that a transcript of my

reasons for judgment be ordered and it need not be on any sort of urgency or expedited basis. It will be on the regular basis, which is at least 21 days down the road. If there are any questions that arise out of my reasons, such that you want to reread them for any purpose, they will be likely available in the Court file after some 21 days. (JUDGMENT CONCLUDED)