S. S. C. v. S. S. K. L. Date:, 2011 BCPC 513

Citation: S. S. C. v. S. S. K. L. Date: 20110708 2011 BCPC 0513 File No: F 31835 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: S. S. C. APPLICANT AND: S. S. K. L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Applicant: C.K. Sabharwal on March 18, 2011 only;

S. S. C. in person thereafter Counsel for the Respondent: M. Metzner Place of Hearing: Surrey , B.C. Date of Hearing: March 18, June 24, 2011 Date of Judgment: July 8, 2011 [ 1 ] SSC has applied to cancel or reduce the arrears of child support he owes to his former wife, SSKL, under a separation agreement dated August 23, 2008, and filed in Provincial Court on November 20, 2009, and to reduce the amount of child support the agreement requires him to pay each month. The issues in this hearing are whether Mr.

SSC has met the legal requirement for cancelling or reducing arrears by establishing that it would be grossly unfair not to do so; and whether his on-going maintenance payments should be based on his actual income or on a higher imputed income. If I decide it should be based on actual income I must also decide what his current actual income is. [ 2 ] The Honourable Judge Borowicz began the hearing on March 18, 2011, and I continued it with the consent of the parties on June 24, 2011, after Judge Borowicz became ill.

I have therefore considered the transcript of the evidence on March 18, as well as the evidence presented in court on June 24. Throughout the hearing, I was impressed by the fact that although these parents have a financial dispute, they respect one another. Ms. SSKL and her lawyer made it very clear that she considers Mr. SSC a very good father to his children and that she respects and appreciates the extent to which he has succeeded in his battle with alcoholism. She also expressed appreciation for Mr. SSC’s parents who care for the children and pay half their extra-curricular expenses.

Facts [ 3 ] The evidence establishes the following facts on the balance of probabilities. Mr. SSC is an alcoholic who has now been in recovery since March 2009. He has worked in the trucking industry since 1989. The parties separated in 2005 when he had his second alcohol-related motor vehicle accident. In their September 2008 separation agreement, Mr. SSC, who was represented by a lawyer, agreed to pay Ms. SSKL $729 a month for the support of their two children based on his gross annual income of $48,000. While Mr.

SSC says he did not actually make that much money in 2008 and because of his alcoholism did not exercise good judgment in agreeing to that figure for his annual income, he is bound by his agreement and I cannot look behind it. He also acknowledges having income in that range as a sub-contractor in 2006 and 2007. [ 4 ] Mr. SSC worked and paid child support in October and half of November, 2008.

In November, he was sentenced to a 16 month conditional sentence order and 24 month driving prohibition for the offences of impaired driving causing bodily harm and refusing to provide breath samples, both arising from the motor vehicle accident. In December 2008, he went to detox, had a seizure, went to hospital, and then to Path to Freedom Treatment Centre for five weeks. He then returned to work and began drinking again after a few days. [ 5 ] However, in February 2009 he checked himself into a hospital and then returned to Path to Freedom where he stayed for ninety days.

This time, on leaving the treatment centre he worked very hard to maintain his sobriety, attending seven to ten twelve step meetings weekly, meeting with sponsors, doing volunteer service work, and avoiding situations that triggered his drinking. His work in trucking provided such triggers and he did not have a driver’s licence, so he did not return to trucking work until he regained his licence in November 2010. [ 6 ] Whether or not Mr. SSC ought to have sought work in some other field between May 2009 and November 2010 is a matter of dispute between the parties.

He didn’t need to work to support himself because his parents have provided him with free room and board in their home since 2005. At the suggestion of a relative, he worked as a security guard for CN for a week in January 2010 and paid $500 child support from his earnings, but did not seek any other employment. He says working before he was ready would have jeopardized his recovery, and Steven Gill, a counselor at Path to Freedom, testified about the need for time to break an alcoholic’s thought patterns and learn to deal with the symptoms of post acute withdrawal. Ms. SSKL believes Mr.

SSC could have obtained other work, even a part time minimum wage job, without sabotaging his recovery and ought to have done so in order to contribute financially to his children’s support. [ 7 ] In September 2009, Ms. SSKL moved the children from Abbotsford to Surrey to be closer to their father and his parents. I accept Ms. SSKL’s evidence that she made the move, thereby increasing her rent and commuting expenses, because Mr. SSC’s mother agreed to provide before and after school care for the children and Mr. SSC promised to start work and pay child support.

He did neither, but he did participate with his parents in caring for the children before and after school and taking the children to after school activities. [ 8 ] The trial appears to have been lengthened by some aspects of the Financial Statement sworn March 15, 2011, and filed by Mr. SSC’s then-lawyer. Its calculation of his income was inaccurate and it included expenses he was not actually incurring. I therefore give it little weight. On-going Child Support [ 9 ] Ms. SSKL’s lawyer, Ms. Metzner, argues that I should impute income of $48,000 to Mr.

SSC and not change the monthly child support payment for the following reasons. She submits that Mr. SSC’s work hours should have increased in 2011, citing his testimony that he was hired last November 29 by a friend who suggested he come and drive for him, and see how he felt, saying “Christmas is coming, the economy’s not great, and we’ll see where it goes from there”. She also suggests Mr. SSC’s employer might have under- reported his income, relying on Ms. SSKL’s testimony that Mr. SSC under-reported his income to evade tax when they lived together.

Finally, she argues that he had the ability to earn $48,000 in years past and could still do so. [ 10 ] The evidence does not establish that the pay stubs filed by Mr. SSC under-report his income, or that he could work additional hours. On March 18, Mr. SSC filed seven paystubs from his current employment. On June 24, he filed an additional six paystubs, but three of them were duplicates of the previously filed paystubs. The ten paystubs that were not duplicates show that for the twenty weeks to which they apply, Mr. SSC has worked an average of 44.025 hours a week including overtime.

His income is higher in the later paystubs than in some of the earlier ones, reflecting increased work since the winter holiday season. [ 11 ] I find that Mr. SSC’s circumstances have changed since the agreement was made in 2008. He now has a criminal record for serious driving offences, and he testified that potential employers want a criminal record check. I accept that Mr. SSC’s criminal record could make it more difficult for him to be hired by someone who is not a friend. In addition, as a recovering alcoholic he should manage stress and ensure that his overtime work leaves time to attend AA meetings.

I consider a 44 hour work week ample for Mr. SSC. [ 12 ] For these reasons, I conclude that the circumstances here do not justify imputing additional income to Mr. SSC, and that his child support should be based on his actual income. [ 13 ] What then is his actual income? Extrapolating from the ten unduplicated paystubs in Exhibits 3B and 10 yields an annual income of $43,447.95. I calculated this as follows: I totaled the gross incomes on the ten bi-weekly paystubs to get $16,710.75, divided by 20 to get a weekly gross income of $835.54, and multiplied by 52 weeks to get gross annual income of $43,447.95.

This is different from the calculations made in court during the hearing because those calculations counted some of the paystubs twice. [ 14 ] Applying the Guidelines to this income, the monthly payment for two children is $660. I therefore find that the evidence establishes a change of circumstances sufficient to justify varying the separation agreement by reducing child support to $660 a month. The change should take effect August 1, 2010, as Ms. SSKL was served with the application on June 30, 2010, had notice then that Mr.

SSC was seeking a reduction, and could incorporate that information in her financial planning. Arrears [ 15 ] I find that Mr. SSC could not work when hospitalized, during his three months in Path to Freedom, and for some months after that while he continued recovery at home. However the evidence does not establish that he was unable to earn any income at all as of, say, November 2009, six months after leaving Path to Freedom. By that time I conclude from the evidence that he could have managed at least part time work to earn some income to pay child support. [ 16 ] While I appreciate Mr.

SSC’s need to solidify his recovery and avoid situations that could trigger drinking, some of his reasons for not seeking work were not believable. For example, he cited a “house arrest” term of his conditional sentence order as one of the factors preventing him from working before November 2010, and said his conditional sentence supervisor was not happy about him working during the Olympics. However, he was not under house arrest. Instead, he had a curfew of 8:00 p.m. to 5:00 a.m. that could be changed by his supervisor, and it was a term of the conditional sentence order that he maintain employment.

Although there was evidence that Mr. SSC had pain in his foot in the summer of 2010 that would interfere with work, there was also evidence that he was able to play golf, walk the children to school, and do volunteer service work. In addition, under cross examination Mr. SSC said he didn’t know why he didn’t seek work after the Olympics. [ 17 ] S. 96(2) of the Family Relations Act says that a court may only reduce or cancel arrears if it is satisfied that it would be grossly unfair not to do so. In Luney v. Luney , 2007 BCCA 567 , at paragraph 43 , the B. C.

Court of Appeal said “Cases in which arrears have been cancelled are rare, and generally speaking, this court has continued to hold the bar of ‘gross unfairness’ at a high level ...”. [ 18 ] While Mr. SSC struggled with his alcoholism in 2009 and 2010, the children were deprived of their father’s financial support and Ms. SSKL struggled financially as their sole supporting parent. Fortunately, Mr. SSC is able to pay the arrears from his current salary, if given time. Based on the ten paystubs filed, Mr. SSC averages $642.60 weekly, or $2,784.60 monthly take home pay.

This leaves him $2,124 a month disposable income after paying child support. That is enough to make monthly payments on arrears, make payments if there is debt remaining to CRA, insure and fuel the vehicle he’s been lent, and even pay his parents something for room and board. Since he is now able to pay the arrears of child support, it is fair that he do so. [ 19 ] In these circumstances, it is canceling or reducing arrears that would be grossly unfair. In addition to the unfairness of Ms. SSKL shouldering the entire burden of supporting their children for over two years, I find Mr.

SSC had some ability to work during about twelve months when he did not seek employment; he repaid money borrowed from a friend to pay his criminal defence lawyer rather than paying child support; he promised to begin paying “to get her off my back” but did not do so; and Ms. SSKL increased her expenses and moved in reliance on his promise. [ 20 ] Support for not canceling arrears when a debtor has the ability to pay them is found in the decision of the B.C. Court of Appeal in Ward v.

Ward, BCCA, Victoria Registry # CA V03015 , March 5, 1998 , where a father who did not pay child support while retraining was required to pay once he obtained employment. [ 21 ] For all these reasons, I dismiss the application to cancel or reduce arrears that totaled $17,702.26 including interest ($17,851.88 less $149.62 being held as shown in Exhibit 11) as of June 20, 2011. The arrears total will need to be recalculated to take into account the variation order I am making. [ 22 ] Ms.

Metzner submitted that I should order the arrears paid in a lump sum but I have been unable to find an application for enforcement of arrears in the court file. I am not satisfied that Mr. SSC could pay the arrears in full by borrowing as Ms. Metzner suggests. However, if the parties wished to agree on an amount for monthly arrears payments in addition to the on-going child support payments, I could perhaps make an order by consent. Otherwise, I expect that the Family Maintenance Enforcement Programme will contact Mr. SSC to enforce the arrears, now that his applications have been concluded.

[ 23 ] This matter was adjourned to August 16, 2011, for the parties to attend by telephone for my decision. Since I completed these Reasons well before then, I will direct that copies be sent to both parties. I do not require them to attend court on August 16, but if either party feels it necessary to do so, they should contact the other party and contact the Judicial Case Manager at 604-572-2303 to confirm that court appearance. Orders [ 24 ] I therefore make the following orders. Ms. Metzner should have the orders prepared and submit them for signature.

THIS COURT FINDS that SSC has a Guideline annual income of $43,447.25 as of June 24, 2011. THIS COURT ORDERS that SSC pay to SSKL the sum of $660 a month for the support of the two children, CKC and CKSC, commencing August 1, 2010, and continuing on the first day of each month thereafter for as long as the children are eligible for support under the Family Relations Act or until further Court order.

THIS COURT ORDERS that SSC provide to SSKL copies of his filed income tax return for the previous year with all attachments including T4 slips, his Notice of Assessment from CRA, and his last three pay stubs, on or before June 1, 2012, and on or before June 1 of each year thereafter for as long as any of the children is eligible to receive child support. The Honourable Judge A. E. Rounthwaite Provincial Court of British Columbia