A.U. v. G.W. Date:, 2011 BCPC 512

Citation: A.U. v. G.W. Date: 20110714 2011 BCPC 0512 File No: F 30439 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: A. U. APPLICANT AND: G. W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Applicant: K. Bowman Counsel for the Respondent: N. Muirhead

Place of Hearing: Surrey, B.C. Date of Hearing: July 13, 2011 Date of Judgment: July 14, 2011 [ 1 ] AU and G(T)W are the parents of NFU-A born May 24, 2002. Ms. AU filed an application on September 9, 2009, seeking to change the access and child support terms of a written agreement she made with Mr. GW dated July 3, 2008, and filed in Provincial Court on September 26, 2008. [ 2 ] I dealt with the access issues in oral reasons at the conclusion of the evidence. The financial issues remaining to be decided are whether retroactive child support should be ordered; what amount Mr.

GW should be required to pay for ongoing child support; and whether he should be required to contribute NFU-A’s dance, music and gym expenses. Child Support: Retroactivity [ 3 ] In D.B.S. v . S.R.G. et al , 2006 SCC 37 , the Supreme Court of Canada directed judges deciding whether to make retroactive child support orders to balance the payor’s interest in certainty with fairness to the child, and to consider the following factors: − the statutory scheme, in this case the B.C.

Family Relations Act ; − the applicant’s reason for delay in applying to change child support; − the payor’s conduct; − the children’s circumstances; and − whether a retroactive award would cause hardship to the payor. [ 4 ] The Court said that retroactive orders should generally be limited to three years, although if the payor has engaged in blameworthy conduct retroactivity may extend for a longer period. Finally, any retroactive award must fit the circumstances of the case. [ 5 ] The agreement the parents signed in 2008 provided that Mr. GW pay $1,000 a month child support.

I find that it was not a fair agreement for the following reasons: • Mr. GW suggested that if they made an agreement outside court, he would pay an agreed amount voluntarily; • The agreement was drafted by Mr. GW’s lawyer; • Although the agreement said Ms. AU represented that she had obtained independent legal advice she did not do so, and there is no certificate of independent legal advice for her attached to the agreement; • Mr. GW did not give Ms. AU his income tax returns or any proof of his income when the agreement was negotiated; although Mr.

GW said the $1,000 monthly child support in the agreement was discussed with Ms. AU knowing what he made, she said she didn’t know; • The agreement does not state Mr. GW’s Guideline income and it does not state why child support is less than the Guideline amount which would have been $1,377 based on his 2007 income; • Mr. GW knew about the Child Support Guidelines and knew that $1,000 was below the Guideline amount; • Before the agreement was made Mr. GW had paid only $150, then $300 and $350 a month for child support. [ 6 ] Ms.

AU’s explanation for her delay in failing to seek adequate child support seems to be that she didn’t consult a lawyer until 2009. She said she didn’t consult a lawyer about the agreement because she couldn’t afford to do so. While Mr. GW’s conduct regarding the child support agreement took advantage of Ms. AU, she bears some responsibility for not having taken the necessary steps to get legal advice. There are sources of free legal advice in the community, and the Lawyer Referral Programme provides very inexpensive brief legal advice. Additionally, Ms.

AU had seen a Family Justice Counsellor who told her they would need information from Mr. GW in order to work out child support, so she ought to have been alerted to the need to obtain financial disclosure from him as a result of her dealings with the Family Justice Counsellor. Ms AU also signed the agreement saying she was representing to Mr.

GW that she had obtained independent legal advice even though she had not done so. [ 7 ] I conclude that the parents share responsibility for the fact that the agreement does not provide their daughter with the financial support she is entitled to from her father, but that Mr. GW’s share of the responsibility is much greater than Ms. AU’s. [ 8 ] Mr. GW says it would be a hardship for him to pay retroactive child support in the Guideline amount. He now has a significant level of debt, but it is not clear to me why, given his substantial income and his responsibilities.

He has been paying half the post secondary expenses of his 22 year old daughter, who has lived with him for the last three years, but her theatre course ends in August. She works. If she takes additional courses, I would expect that both she and her mother would contribute to their cost. Mr. GW and his spouse have four foster children, some of whom have special needs, but the family receives some payment for the foster children. His mother lives in a basement suite in their house but she is not elderly and there is no evidence he supports her.

[ 9 ] Moreover, by October 24, 2009, when Ms. AU’s application was served on him, Mr. GW had notice that Ms. AU was seeking to increase child support to the Guideline amount, and he ought to have based his financial planning on this information from then on. [ 10 ] I also note that Mr. GW has been slow to provide financial disclosure. He said when they were negotiating the agreement, he saw no need to show Ms. AU his income tax returns because they were working things out.

Although the application was served in October 2009, he didn’t file a financial statement until September 2010, and didn’t provide some of the documents requested by Mr. Bowman until the day of trial. He hasn’t filed his 2010 income tax return. Mr.

GW seemed not to understand that the law requires him to provide his tax returns and other financial information before child support is agreed or ordered so that the Child Support Guidelines can be applied fairly and accurately to his income, for the support of his child. [ 11 ] Retroactive child support should generally be limited to three years before the application is filed. In this case, that would take it back to September 2006. Ms. AU asks only for an increase retroactive to 2007.

Balancing the relevant factors, I give most weight to the payor’s conduct in obtaining an unfair agreement that provides for inadequate child support. I conclude that child support should be retroactive to January 2007, but that there should be a reduction of $5,000 in the retroactive amount to reflect Ms. AU’s share of responsibility for the delay in applying for an appropriate amount of child support, and the effects of retroactive change on Mr. GW. Child Support: Determination of Income [ 12 ] I accept Mr. Muirhead’s submission that RRSP income should not be included when determining Mr.

GW’s Guideline income for 2008 and 2009, either because it amounted to a form of savings used to pay debts, or as an exercise of my discretion under the Federal Child Support Guidelines s. 4(b)(ii) with regard to incomes over $150,000. [ 13 ] With regard to his 2011 income, Mr. GW testified that his 2010 income was exceptionally high and he expects to earn less this year because the available work will be shared among more longshoremen foremen and because he must take 24 days holidays before the end of the year.

However, he grossed $115,000 for the first half of 2011, so even if he earns less in the second half, it still seems likely that his total annual income for 2011 will be much closer to that of 2010 than to that of previous years. On all the evidence, I am satisfied on the balance of probabilities that Mr. GW’s 2011 income will probably be similar to that of 2010, and that it is appropriate to base his ongoing child support on his 2010 income. [ 14 ] Mr. Muirhead submits that because Mr.

GW’s 2010 income was significantly higher than his income in preceding years, I should use the average of his last three years incomes as his 2011 income. However, if I do that, in fairness I should use the same average income for all three years, thereby increasing his Guideline income for the previous two years.

When I calculate the total child support payable using his three actual incomes, and then using a three year average, the results are very close. [ 15 ] For these reasons I consider his 2010 income the most appropriate basis for an order for ongoing child support, and I find that he has the following relevant Guideline incomes. Income Guideline monthly payment 2007 $159,570 $1,377 2008 $167,419 $1,438 2009 $171,558 $1,470 2010 $202,131 $1,709 2011 $202,131 $1,709 Child Support Orders [ 16 ] I calculate retroactive child support as follows: Mr.

GW must pay retroactive child support at the table amounts from January 1, 2007, until July 1, 2011. This totals $83,891. I deduct $5,000 from that total to reflect Ms. AU’s shared responsibility for the delay in applying for adequate child support. This leaves $78,891 in retroactive child support, of which Mr. GW has actually paid $46,000 in monthly payments pursuant to the agreement and an interim order made without prejudice in September 2010.

The balance owing is $32,891. [ 17 ] I therefore make the following orders: THIS COURT ORDERS that GW pay retroactive child support to AU in the amount of $32,891 at the rate of $500 a month, in addition to his regular child support, commencing August 1, payable in two equal instalments on the 1 st and 15 th of the month, and continuing on the 1 st and 15 th of each month thereafter until the sum of $32,891 is paid in full. THIS COURT FINDS that GW has a current Guideline income of $202,131.

THIS COURT ORDERS that the agreement dated July 3, 2008, be varied to provide that GW pay to AU child support for NFU-A in the amount of $1,709 per month, commencing August 1, 2010, payable in two equal instalments on the 1 st and 15 th of the month, and continuing on the 1 st and 15 th of each month thereafter until NFU-A is no longer eligible for support under the Family Relations Act or until further court order.

THIS COURT ORDERS that GW provide to AU copies of his filed income tax return for the previous year with all attachments including T4 slips, his Notice of Assessment from the Canada Revenue Agency, and his last three pay stubs, on or before September 1, 2011, on or before June 1, 2012, and on or before June 1 of each year thereafter for as long as NFU-A is eligible to receive child support.

Special Expenses [18]

Section 7(

f) of the Federal Child Support Guidelines permits a court to order a parent to contribute to “extraordinary” expenses forextracurricular activities and directs a judge to consider the necessity of the expense in relation to the child's best interests and thereasonableness of the expense, having regard to the means of the parents and those of the child and to the family's spending pattern priorto the separation.

Section 7 (1.1) defines “extraordinary” extracurricular expenses as expenses exceeding those that the recipient spousecan reasonably cover using their income and child support payments. [19] In McLaughlin v.

McLaughlin (1998), 1999 BCCA 135 , 44 RFL (4th) 176 and 1999 BCCA 135, decided before s. 7(1.1)was enacted, the BC Court of Appeal held that when deciding whether extracurricular expenses are extraordinary, a judge must use asubjective analysis of factors including: • the expense in relation to the combined incomes of the parents, • the nature and amount of the expense, • the nature and number of activities, • the child’s special needs or talents, and • overall cost. [20] In Piper v.

Piper 2010 BCSC 1718, at paragraph 93, Justice Chamberlist said: The McLaughlin case was decided before s. 7(1.1) was added to the Guidelines. Under s. 7(1.1)(

a) the court is first required to considerwhether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whetherthe expense exceeds her ability to pay without any consideration of the factors enumerated in s. 7(1.1)(b). If the income cannot cover theexpense, the expense is deemed to be extraordinary and the court’s next analysis turns to consideration of the factors enumerated in s.7(1) which, of course, brings into consideration the parties’ means and pre-separation spending pattern. [21] Ms. AU’s 2010 income was $53,336. She seeks an order that Mr.

GW contribute a proportional share, being 4/5, of NFU-A’sexpenses for gymnastics, dance, swimming and music lessons during the 2010/2011 school year, totalling approximately $4,222. [22] I am satisfied that Ms. AU can reasonably cover NFU-A’s extracurricular activities with her monthly take home pay ofapproximately $3,100 plus $1,709 monthly child support. The extracurricular expenses claimed therefore do not meet the statutorydefinition of “extraordinary”. [23] If the other considerations were relevant, I would find that the parents never lived together, so there was no pre-separationspending pattern.

NFU-A is nine and these are not unusual activities for a girl her age, although she must have a busy after schoolschedule. The expenses are not unreasonable, but I am satisfied that they are the type of expenses that Ms. AU is expected to pay fromthe combination of her own income and the Guideline amount of child support. I therefore dismiss the application for contribution byMr. GW to these expenses. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia Corrigendum: After these reasons were completed, counsel advised that Mr.

GW had paid $46,000 in child support from 2007 through July 1, 2011,rather than $45,000. Deducting $46,000 from the retroactive child support leaves a balance owing of $32,891. I have amended myreasons and orders to reflect that correction.