Director of Maintenance Enforcement v. R.G.S. Date:, 2015 BCPC 293

Citation: Director of Maintenance Enforcement v. R.G.S. Date: 20151006 2015 BCPC 0293 File No: F08-32079 Registry: Fort St. James IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY MAINTENANCE AND ENFORCEMENT ACT , R.S.B.C. 1996 c. 46 BETWEEN: DIRECTOR OF MAINTENANCE ENFORCEMENT, on behalf of ANL APPLICANTS AND: RGS RESPONDENT AND THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: ANL APPLICANT AND: RGS RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF

Counsel for the Director: R. Bjarnason Appearing on her own behalf: ANL Counsel for the Respondent: P. Newman Place of Hearing: Fort St. James , B.C. Date of Hearing: September 22, 2015 Date of Judgment: October 6, 2015 [ 1 ] This is my decision at the conclusion of RGS’s application to reduce or cancel arrears of child support, and to vary ongoing child support pursuant to ss. 174 and 152, respectively, of the Family Law Act of B.C. His application is opposed by ANL, the mother of their child, AGS, born ( removed for publishing) . AGS is now 9 years old.

The relevant pleadings are marked documents 30 and 31 in the file. [ 2 ] As well, this is my decision at the conclusion of a Default Hearing brought by the Director pursuant to s. 21 of the Family Maintenance Enforcement Act. The relevant pleading is marked document 14 in the file. [ 3 ] By agreement of all parties, the two proceedings were heard at the same time. [ 4 ] I have attached two draft Orders in this matter as Appendix A and B. These set out my decisions on the points raised by each application. [ 5 ] I will now set out my reasons.

Background and Positions of the Parties [ 6 ] The existing Order was made 7 years ago by the Honourable Judge D. H. Weatherly on September 16 th , 2008 (‘the September 2008 Order’). RGS did not attend court that day. Only ANL was there.

Judge Weatherly imputed to RGS an income of $30,000 and ordered that he pay the Table amount of support ($280/month) applicable to that income, to ANL for the support of their son, AGS. [ 7 ] RGS admitted at the current hearing that he had received notices for court back in 2008 but had decided not to attend. [ 8 ] Since then it would appear that RGS has only made one or two voluntary payments.

See the Family Maintenance Enforcement Program (‘FMEP’) account statement, Exhibit 1. [ 9 ] It would appear that most of the “payment received” entries were the result of collection action by the FMEP because they are of varying amounts and they coincide with RGS’s work at ( removed for publishing) in 2012 and ( removed for publishing) in 2014. The “payment from Federal Government” entries are also clearly the result of collection action rather than voluntary payment. [ 10 ] In total, ANL has received $5,509.73 from RGS for the support of AGS from 2008 to present.

This falls some $18,300 short of what ANL should have received had RGS paid as ordered by the September 2008 Order. [ 11 ] RGS applies to have these arrears of child maintenance, totaling, as I say, about $18,300, reduced or cancelled. His argument, as advanced by Ms. Newman on his behalf, is that he has never made the $30,000 per year income which Judge Weatherly imputed to him and, that he is never likely to make such an income.

He argues that it is grossly unfair to require him to pay child support arrears calculated on an income that is so unrealistically high compared to what his actual income has been over the past 7 years. [ 12 ] ANL, representing herself, passionately opposes RGS’s application. She says RGS should, quite simply, “get a job!” She says that she has had to get jobs to support their son and it makes her angry that RGS somehow seems to expect that he should not have to share in the financial burden of raising their son. She says she has had very little help from RGS or his family.

In fact, she says, she has been harassed by them for insisting on AGS’s right to receive the financial support of not just his mother, but also his father. She asks the court not to reduce the arrears even though she concedes that, on the evidence, the court may feel it appropriate to reduce the amount of ongoing child support payable by RGS. [ 13 ] Mr. Bjarnason, on behalf of the Director, argues that any arrears the court finds owing should be paid by RGS over the next 9 or 10 years, which are the years when AGS, currently age 9, would actually be most in need of his father’s help.

He suggests that payments towards arrears be put off for perhaps 6 months to allow RGS time to find work. After that, he argues, RGS needs to pay off whatever arrears are owed on a reasonable time line, plus regular child support. And, given that RGS has a poor track record of paying regular child support and arrears in the past, he asks the court to impose a penalty of jail of 10 days, or more, for each missed payment from this point on. Analysis 1. The Test for Reducing or Cancelling Arrears

[ 14 ] Before I can reduce or cancel the $18,300 of child support that RGS has accumulated under the September, 2008 Order, I must be satisfied that it would be “grossly unfair” not to do so. In deciding whether it would be “grossly unfair” to RGS to pay the $18,300 owing under the September, 2008 Order, I may consider: (

a) RGS’s efforts to comply with the September 2008 Order; (

b) The reasons why RGS says he cannot pay the $18,300 owing under that Order; and (

c) Any circumstances the court considers relevant. [ 15 ] I will review the evidence on each of these three points. (

a) RGS’s efforts to comply with the September, 2008 Order: [ 16 ] As noted, RGS has only made one or two voluntary payments over the past 7 years. [ 17 ] As for employment, RGS has held a series of quite good jobs over the years but has quit each one of them. According to the evidence, the jobs he has held are: 2003/2004: Mill at ( removed for publishing) [ 18 ] RGS testified that the longest he’d ever worked at one job was with the mill located ( removed for publishing) . He quit this job, he said, because he didn’t want to work in a mill for the rest of his life. He wanted to better himself.

He would have been in his late 20’s at the time and he had not yet fathered AGS, though his daughter from an earlier relationship had been born by that time; 2011: ( removed for publishing) [ 19 ] After completing culinary arts training at the College of New Caledonia, ( removed for publishing) campus, in 2010, RGS was immediately successful in getting a job as a cook at the construction camp associated with the ( removed for publishing) development. He did not say what he earned per hour but later in his evidence said it would be no problem to earn $15/hour for this type of work.

RGS quit this job after about two months for reasons that are not quite clear to me. He said something about having to prepare 700 sandwiches in one shift and also about a personality conflict with one or more people working there; 2012: ( removed for publishing) [ 20 ] In late 2012 RGS obtained employment in the meat department of the band run food store in ( removed for publishing) . From the pay stubs filed [1] he was earning $10.25/hour for this work. He quit this job after a few months, apparently because he felt he was not advancing in the position.

He had asked the manager if he could move from wrapping meat to cutting meat and was told “no, not for a long time” and so he quit. 2014: ( removed for publishing) [ 21 ] RGS obtained employment at the gas station run by his band. From the pay stubs filed [2] he was earning $10.25/hour for this work, the same as at the Market. He quit this job after five months, apparently because the way the supervisor set up the

schedule and called people in to work was disorganized and unfair. [ 22 ] In between these jobs RGS has had long periods of unemployment with the occasional few weeks of fire-fighting or employment incentive work. [ 23 ] To his credit RGS has taken various steps to improve his education and employability.

He took the year-long culinary course back in 2010 and this past winter of 2014/2015 he and his girlfriend took a course in Burns Lake to train people for environmental assessment work in anticipation of various pipe line projects projected to pass through this area. [ 24 ] RGS completed the environmental assessment course in March of this year. Within a week or so of his graduation his younger sister tragically died of a chronic disease. RGS is still emotionally distraught over the loss of his sister.

He testified that he felt “numb and depressed”. [ 25 ] Although he speaks optimistically of getting a job in the fields in which he has training - culinary work and environmental assessment - as of now, RGS has no actual job lined up, nor even any expression of interest by a prospective employer.

[ 26 ] There are large gaps in the financial disclosure provided by RGS, but it would appear that when he is living on his home reserve of ( removed for publishing) , and is not working, he receives Band social assistance payments of $235/month. I gather this is his current source of income. He survives by staying in his mother’s house and sharing expenses with her for basic life needs such as food and heat. [ 27 ] I must conclude, from this history, that RGS has made few efforts to comply with the September, 2008 Order. (

b) The reasons why RGS says he cannot pay the $18,300 owing under the September, 2008 Order: [ 28 ] Ms. Newman says that the reason why RGS cannot pay the $18,300 in arrears owing under the September, 2008 Order is that he has never made an annual income as high as the $30,000 the Order was based on, nor is he ever likely to. ANL, on the other hand, says that RGS has been intentionally under-employed for years and this is why he has had a low income.

She points to his employment history as set out above and the fact that, time after time, he has quit jobs that he had, for no good reason. [ 29 ] The following table summarizes the evidence about RGS’s income over the 8 years from 2008 to the present: Year Testimony Documents Total 2008 “Can’t recall, maybe some fire fighting” None. Unknown. 2009 “Can’t recall, maybe some firefighting” None. Unknown. 2010 Culinary school. Obtained a Student Loan. Statement of Account, Human Resources Canada [3] $7,346.15 still owing in 2015. 2011 ( removed for publishing) camp cook.

T4 (removed for publishing) $7,615.94 and 2011 Income Tax Return Information sheet showing Total Income of $7,974. $7,974 2012 ( removed for publishing) Pay stubs for 2 pay periods in Nov, 2012, T4 slip and 2012 Income Tax Return line 5478 “EI insurable earnings $4,890” $4,890 $5,868 [4]

2013 ( removed for publishing) “stopped working at the Market in April 2013” Nothing documenting employment at the Market in 2013 but earnings would, presumably, have been in the range of $8,000 for 4 months of work, extrapolating from what was earned for 2 months of work at the Market in late, 2012. T4’s from PG Employment Service $1,620 and Wet’sueten F.N. for $230. 2013 Notice of Assessment shows “0” Total Income. [? 8,000?] $1,850 $9,850 $11,820 ? [5] 2014 ( removed for publishing) for March to July, ’14. One week of environmental assessment work in October.

Pay stubs for 5 months (Mar to July, incl) at (removed for publishing) showing “YTD of $7,711” as of last pay stub. CIBC account statement for October showing a deposit of $1,090 on October 17 th at a location in Burns Lake. $7,711 $1,090 $8,801 $10,561 [6]

2015 Environmental Assessment Course November, 14 to March, ’15. No living allowance or Band support. No work since. On Band social assistance of $235/month. None.

Unknown. [ 30 ] As this table makes clear, the highest annual income actually earned by RGS in any year since the September, 2008 Order was made is in the range of $10,000 to $12,000 which is well below the $30,000 imputed to him in the September, 2008 Order. [ 31 ] It is also clear that had RGS stuck with any one of his jobs he would easily have made at least $20,000 a year on reserve and well more than that at a job like the one he had at ( removed for publishing) . [ 32 ] RGS is physically healthy. He is well educated. He is intelligent and well spoken.

I have not been told that he suffers from an addiction to drugs or alcohol. However, he does seem to lack what is often called “the work ethic”. When a job proves to be hard and boring, when he does not get a promotion as quickly as he would wish, when a co-worker is difficult or a supervisor is disorganized, RGS quickly gives up and quits. [ 33 ] To some extent RGS’s habit of quitting is, as ANL says, intentional under-employment. However, when I take into account the following pieces of evidence, I conclude that it does go deeper than that and, as Ms.

Newman has essentially argued, does actually indicate a limitation on RGS’s capacity to earn an income. [ 34 ] First, RGS comes across as someone who is quite sensitive and emotional; easily hurt and discouraged. For example, he became emotional as he talked of his younger sister’s tragic death and said that he had felt “numb and depressed” since her death in the spring. It appeared that he had taken very few steps to find employment in 2015 at least in part because he was grieving his sister’s loss.

As well, on three of the four occasions where he quit good jobs, RGS gave, as his reason, something that had its root in emotional sensitivity. For example, he talked of conflict with co-workers at ( removed for publishing) , and of conflict with a supervisor at ( removed for publishing) , or in the case of the job at the ( removed for publishing) , disappointment of his ambitions. [ 35 ] Second, RGS appears to have unreasonably high expectations of the job market and the work place. For example, he spoke optimistically of environmental assessment work on the projected pipe lines.

My understanding of current events is that it is far from clear if any of the pipeline projects will proceed. He spoke of good work to be had in the oil & gas industry in Alberta. My understanding of current events is that there has been a downturn in the oil & gas industry that has resulted in many lay-offs. And, his apparent expectation of interesting, well paid work, with quick promotion and pleasant, supportive co-workers and supervisors also seems quite unrealistic.

I think most people who work for a living would say that, at times, it is far from easy and that it requires a lot of courage and determination to keep going to work every day. On the plus side, those same people would also probably say that they derive a lot of pride and pleasure from the things they do, the people they meet and the money they make while working. [ 36 ] Third, RGS comes across as someone who is quite reluctant to leave his home and community and go out into the larger world, if that is necessary to find work.

He is 39 years old but has not, apparently, lived anywhere else than ( removed for publishing) or for short periods of time, at ( removed for publishing) communities near Burns Lake. [ 37 ] I don’t know what influences RGS had in his own upbringing. Did he have a father or grandfather who worked to support the family? He may not have had those examples when he was young. When I sit in criminal court I often hear evidence to the effect that colonialism has been very destructive of the family unit amongst First Nations.

If RGS grew up without a father who showed him how it is not only the women, but also the men, that work to support kids, then it might be extra hard for him to really embrace the idea that, as AGS’s father, he has a responsibility to look after his son and provide for him financially, to the best of his ability, even if work is sometimes annoying, frustrating and disappointing. [ 38 ] In

summary, I find that RGS’s capacity to earn an income is somewhat limited by his attitude to work - his sensitivity, his unrealistic expectations - and by the limited job opportunities in the geographic location where he lives and feels most comfortable. On the other hand, the evidence fails to satisfy me that he is entirely incapable of earning an income at a level where he could contribute, to some degree, to the support of his son. 2.

Conclusion: Application to Reduce or Cancel Arrears [ 39 ] What I have decided to do is to impute to RGS an income that will require him to pay some child support for AGS but it will be at a lower income than Judge Weatherly imputed to him back in 2008. [ 40 ] For the years 2008 and 2009, prior to his culinary arts course, I will impute to RGS an income of $15,000 per year. This is a little less than a minimum wage income.

It is my view that had he really applied himself to the task, RGS could have obtained work in those two years that would have earned him at least an income of this amount. [ 41 ] For the year 2010, when he was taking the culinary arts course, financed by a Canada Student Loan (which he has yet to pay back), I will impute to RGS the lower income of $10,000. [ 42 ] For the years 2011 to the present, RGS was equipped with a good job qualification (Culinary arts, Levels I and II) and he had at

least three good job opportunities, (( removed for publishing) ). Therefore, I will impute to RGS the somewhat higher income of $20,000 per year.

At $10.25/hour, which was his base rate at both of the Band jobs, RGS would have had no trouble earning more than this each year, if he had just stuck with either job. [ 43 ] The following table sets out the income I have imputed to RGS for each year, the child support that he would have been required to pay each year at that income, and the right hand column sets out the amount that he actually did pay as recorded by the FMEP in their Account Statement ( Exhibit 1): Year Imputed Income Child Support Due/Month Child Support Due/Year Child Support Paid/Year 2008 $15,000 $125 $ 1,500 $ 0.00 2009 $15,000 $125 $ 1,500 $ 737.38 2010 $10,000 $ 29 $ 348 $ 865.94 2011 $20,000 $180 $ 2,160 $ 163.51 2012 $20,000 $174 [7] $ 2,088 $1,004.50 2013 $20,000 $174 $ 2,088 $ 553.44 2014 $20,000 $174 $ 2,088 $1,454.64 2015 $20,000 $174 $ 2,088 $ 730.32 [8] Totals: $13,860 $5,509.73 [ 44 ] Amount of child support due at reduced imputed incomes 2008 - 2015 inclusive: $13,860.00 Less Amount of child support already paid by RGS: $ 5,509.73 Amount of arrears: $ 8,350.27 [ 45 ] I find that it would be grossly unfair not to reduce the arrears of child support owing by RGS from $18,300 to $8,350.27. [ 46 ] Despite little or no effort by RGS to comply with the September, 2008 Order, I am satisfied that he could not pay child support at the rate required by that Order because he did not have the capacity to earn an income at the level imputed to him in that Order. [ 47 ] Although RGS’s actual income has always been considerably lower than even the reduced income I now impute to him, I am not satisfied that this means I should cancel all arrears.

I decline to cancel all arrears because I find that RGS has been, to some extent, intentionally under-employed because he has repeatedly quit jobs that he had, for no good reason. 3. Ongoing Child Support [ 48 ] For the purposes of regular or ongoing child support for AGS, I impute to RGS a total, annual income for Guidelines purposes of $20,000. As I said earlier, RGS would have had no trouble making an income of this amount at either his job at the ( removed for publishing) or his job at ( removed for publishing) if he had just stuck with it and not quit.

I impute this income to him going forward because the evidence I have heard fails to satisfy me that RGS is incapable of finding and sticking with a full time job earning at least $10.25/hour. [ 49 ] The table amount of child support payable for one child at an annual income of $20,000 is $174/month and this is the amount of regular child support RGS will be required to pay starting October 1 st , 2015 and continuing on the 1 st day of each and every month thereafter. [ 50 ] Finally, RGS must keep ANL informed by January 31 st of each year starting with January 31 st , 2016, of his financial situation by preparing a Financial Statement in Form 4 with pay stubs, receipts and T4’s from any and all sources of income attached.

This is so that both RGS and ANL can keep track of how the Federal Child Support Guidelines apply to their situation. 4. Default Hearing [ 51 ] I will move now to the issues raised at the Default Hearing which, as noted, was held at the same time as RGS’s Application to Reduce or Cancel Arrears. [ 52 ] For the reasons stated, I am reducing arrears to $8,350.27 as of September 15 th , 2015. [ 53 ] As for how and when RGS is to repay those arrears, I agree with Mr. Bjarnason’s suggestion that payments towards arrears should not start for 6 months. This will give RGS a few months to find work again.

Starting on March 1 st , 2016 RGS will be required to

pay $100/month towards the arrears. [ 54 ] In his evidence, RGS offered to pay “$1,000 a month if I get a good paying camp job”. If he does find a job that allows him to pay that much a month then RGS should go ahead and do so. It would be a great help to AGS by allowing his mother, ANL, to give him a better standard of living and more opportunities. However, I am not going to require RGS to pay any more than $100/month towards arrears (starting March 1 st ) because, based on the history, I don’t think any higher figure would be realistic. [ 55 ] Mr.

Bjarnason asks the court to back up its order with a jail penalty of between 10 and 30 days for every payment that is missed. I agree. Given RGS’s history of failing to pay either regular child support or to make payments towards arrears, as well as the fact that he has quit jobs he’s had without good reason, jail is necessary as a consequence for failing to make the payments ordered. My hope is that this jail penalty will serve as an incentive to RGS to (

a) find work, and (

b) to stick with whatever work he finds, unless he has a guarantee of another job to go to, with equal or better pay. [ 56 ] Pursuant to s. 21(1)(

e) of the Family Maintenance Enforcement Act, I order that RGS be imprisoned for a period of 10 days each time he fails to pay by March 1 st , 2016 and the 1 st day of each and every month thereafter, (

i) the $100.00 towards arrears; plus (ii) the $174.00 of regular child support. [ 57 ] I will also require RGS to keep the Director of Maintenance Enforcement informed by January 31 st of each year, starting with January 31 st , 2016 of what he has earned in the preceding year.

He is to do that by completing a Financial Statement in Form 4 with pay stubs, receipts and T4’s from any and all sources of income attached. [ 58 ] RGS is also to keep the Director informed of any changes in his residential address or phone number as well as details of any job he gets, including pay rate, job responsibilities, employer’s name and address.

If he quits, or if his employment is terminated for any reason, RGS is to provide the Director with a copy of his Record of Employment. [ 59 ] In closing, I would like to encourage RGS to spend time with his son AGS so he can get to know him and teach him the things he’s going to need as he grows older. If RGS did not have a father figure in his life as a boy, it lies within his power to give his son the gift of a father. I would also like to encourage RGS to try to feel a sense of pride in being the kind of Dad that supports his son financially. RGS is a capable, well-educated man.

I believe he can find work, and keep it and, if he does that he will have no difficulty doing his financial duty as a parent by paying the modest amount of ongoing child support I have ordered plus the arrears, as ordered. _____________________________ E. L. Bayliff Provincial Court Judge Appendix A - Draft Order in Family Law Act Application (documents 30 & 31) THIS MATTER coming on for Hearing on September 22 nd , 2015 at Fort St. James and upon hearing the evidence of RGS and the submissions of Ms. P.

Newman, counsel for RGS, and of ANL, on her own behalf, and reviewing the financial statements and exhibit filed; THIS COURT ORDERS: 1. Pursuant to s. 174(1) of the Family Law Act, S.B.C. 2011, c. 25, arrears of child support are hereby reduced to the sum of $8,350.27 as of September 15 th , 2015 (‘the reduced arrears’);

2. Pursuant to s. 174(4) interest that has accrued, under s. 11.1 of the Family Maintenance Enforcement Act , on any arrears in excess of the amount of the reduced arrears is hereby cancelled; 3. Pursuant to s. 14(6)(

b) of the Family Maintenance Enforcement Act legislated fees owing are reduced in an amount that is proportionate to the reduction in the arrears; 4. Pursuant to s. 152, paragraph 3 of the Order of the Honourable Judge D.H. Weatherly made September 16 th , 2008 is changed as it concerns child support to the following: (

a) The court imputes to RGS a total income for Guidelines purposes of $20,000 per year; (

b) RGS is ordered to pay ANL support for the child, AGS, born ( removed for publishing) at the table amount of $174/month, payable on the 1 st day of October, 2015 and continuing on the 1 st day of each month thereafter; and (

c) RGS is to provide ANL with a completed Financial Statement in Form 4 with attachments including paystubs, receipts, plus T4’s from any and all sources of income in the previous year, not later than January 31 st , of each year starting with January 31 st of 2016. The purpose of this provision is so that ANL and RGS can monitor the application of the Federal Child Support Guidelines to their son’s situation. * * * Appendix B - Draft Order in Default Hearing pursuant to s. 21 of the Family Maintenance Enforcement Act THIS MATTER coming on for Default Hearing at Fort St.

James on September 22 nd , 2015 and upon hearing the evidence of RGS, the submissions of Ms. P. Newman, Counsel for RGS and of Mr. Bjarnason, Counsel for the Director of Maintenance Enforcement, and reviewing the financial statements and exhibit filed; THIS COURT ORDERS: 1. The Interim Order of the Honourable Judge S. K. Keyes made the 16 th day of June, 2014 is hereby cancelled; 2. Arrears of maintenance owing from RGS to ANL are fixed at the sum of $8,350.27 as at September 15 th , 2015, plus statutorily accrued interest on the said arrears to that date, plus legislated fees; 3.

Pursuant to s. 21(1)(d)(ii) of the Family Maintenance Enforcement Act (‘the Act’), RGS shall pay to ANL, the sum of $100.00 per month towards the discharge of the arrears of maintenance commencing on March 1 st , 2016 and continuing on the 1 st day of each and every month thereafter until the arrears of maintenance plus statutorily accrued interest are paid in full; 4. Pursuant to s. 21(1)(

e) of the Act, RGS shall be imprisoned for a period of 10 days each time he fails to pay to ANL by 1 st March, 2016 and the 1 st day of each and every month thereafter:

(a) $100.00 towards the discharge of arrears; (b) $174.00 in ongoing child maintenance. 5. Pursuant to s. 21(1)(

a) RGS shall complete a statement of income and expenses in Form 4 with attachments including pay stubs or receipts, plus T4’s, from any and all sources of income in the previous year, not later than January 31 st of each year starting with January 31 st , 2016; 6. Pursuant to s. 21(1)(

b) RGS shall provide promptly to the Director each of the following pieces of information: (

i) any change of residential address or phone number; (ii) pay rate, job responsibilities and employer name and address of any paid employment that he obtains, as well as any changes he undergoes in his employment including change in pay rate, or responsibilities, or termination of employment. In the event of termination he shall provide to the Director a copy of his record of employment.