M.L.W. v. N.E.W. Date:, 2015 BCPC 307

Citation: M.L.W. v. N.E.W. Date: 20151030 2015 BCPC 0307 File No: F14025 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M. L. W. APPLICANT AND: N. E. W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Appearing on their own behalf: M. W. Counsel for the Respondent: C. Christiansen, Place of Hearing: Prince George , B.C.

Dates of Hearing: May 5 and September 18, 2015 Date of Judgment: October 30, 2015 BACKGROUND [ 1 ] The Applicant, M. L. W., who now goes by the name of M. J., originally launched her claim for 12 years of retroactive child support. Her case however was amended into an Application for the following relief: 1. Increased child support for her daughters, L.-L. and K.; 2. Retroactive child support for her two daughters; 3. Payment of special expenses related to post-secondary education for L.-L. and K. [ 2 ] Mr. W. recognizes an obligation with regard to the three heads of claim.

He disputes the quantum of the amounts claimed by Ms. J. [ 3 ] Their marriage has a tragic history. The parties separated around Christmas of 2000. During the course of the separation, Ms. J. accused Mr. W. of molesting their youngest daughter, K. Mr. W. denied the allegations. No action was taken against Mr. W. by either the RCMP or the Ministry of Child and Family Development. Mr. W. felt his reputation in Prince George was tarnished. The accusations made him an object of scorn and so he moved to Vernon, British Columbia. [ 4 ] Sadly, Mr. W. has not seen the three children of the marriage, namely K. J.

W., [dob], L.-L. M. W., [dob], or K. J. W(2), [dob], since the date of separation. During the hearing there were accusations between the parties as to whether this state of affairs had been engineered by Ms. J. or whether Mr. W. made a conscious choice. Neither party called any witnesses on this issue and their evidence is contradictory. [ 5 ] Ms. J. also alleges that Mr. W. was hiding to avoid his child support responsibilities. One reason she gave for this belief is that Mr. W. is not on any kind of social media. Mr. W. said he only uses computers for email and banking. [ 6 ] Mr.

W. pointed out he paid the child support through the Family Maintenance Enforcement Program (FMEP). He lives in a house he owns with his new partner in Vernon. If anyone really was interested in locating Mr. W., it would not be difficult. I agree with Mr. W., just because one does not subscribe to social media, does not mean one is hiding. [ 7 ] Mr. W. began making payments to the Family Maintenance Enforcement Program (FMEP) in 2002 based on an income of $49,500.00. He has made his payments steadily over the last 12 years as indicated by Tab 6 at Exhibit 3.

These payments have been increased from time to time by FMEP. ISSUES [ 8 ] Whether L.-L. [dob] is a child of the marriage for the purposes of child support under the Family Law Act? [ 9 ] Whether Mr. W. is obliged to pay retroactive child support and if so, how much? [ 10 ] Whether Mr. W. has current child support obligations? PRELIMINARY FINDINGS 1. There is no evidence that Mr. W. was taking steps to avoid his child support obligations; 2. Mr. W. agrees to pay 50% of the expenses for books and tuition for L.-L.; 3. On the second day of the hearing on September 18, 2015, Ms.

J. told the court she is only seeking three years retroactive child support. She bases this on Mr. W.’s three best earning years 2011, 2012, and 2013. 4. Mr. W. had no notice of this potential claim for retroactive child support until he was served with Ms. J.’s application filed on July 16, 2014. He had always paid his child support in good faith to FMEP since the separation. 5. There is no relationship between Mr. W. and his children. This is a by-product of the toxic manner in which the marriage between the parties ended. Is L.-L., who is now twenty years old, a “child of the marriage” under the Family Law Act

[11] The Family Law Act of s. 146 , defines “child” as follows: “Child” includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain thenecessaries of life or withdraw from the charge of his or her parents or guardians; [12] L.-L. turned 20 years old on September 2015. The claim put forward by Ms. J. is that L.-L. still needs financial support fromher father as she is attending post-secondary education.

She is studying social work at the [omitted for publication]. [13] The only evidence provided to the Court concerning L.-L.’s studies was provided by Ms. J. in her evidence. Ms. J. was the onlywitness in her case. In support of her testimony, Ms. J. filed a Book of Documents entered as Exhibit 2 in these proceedings. Uponreview of the booklet of documents I note the following: 1. The notarized letters from L.-L. to Mr. W. at Tab 1 are of no use to the Court. They are self-serving hearsay.

However, I noteabout three quarters of the way down the page of the letter dated February 24, (no year is provided), L.-L. writes as follows: “I did wantyou at my wedding.” Given that this phrase is written in the past tense it raises the suspicion that L.-L. is married. 2. The second document is a Family Maintenance Enforcement Program letter written to Ms. J. on September 11, 2014. It suggeststhat “based on the information provided we will continue to enforce child support for the child”. There is no indication as to what theinformation provided was or who provide it.

I put little reliance on the evidentiary value of this letter. 3. At Tab 3 of Exhibit 2 there are clinical notes from the University Hospital of Northern British Columbia. The notes are dated2012-05 - 24. They relate to a suicide attempt by L.-L. No testimony was provided by Ms. J. that would put these documents intocontext. 4. The documents at Tab 4 outline that L.-L. was accepted for admission into the social service worker program at the [omitted forpublication] for September 2015. The attached documents at Tab 4 set out information regarding the curriculum and the cost of tuition. 5.

Exhibit 3 is L.-L.’s T4 for taxation year 2014, indicating she worked for the [omitted for publication], a local hockey team,[omitted for publication], and the [omitted for publication]. These documents indicate that L.-L. has been working and earningapproximately $12,000.00. [14] It should be noted that on each T4, L.-L.’s social insurance number and address have been whited out on the document. L.-L.’saddress has also been whited out on Exhibit 4 from the St. Vincent de Paul Society. Exhibit 4 indicates that in 2015 L.-L. earned$6,415.50 before deductions.

From these Exhibits I have determined that the L.-L. is self-supporting. On cross-examination by counselfor Mr. W., Ms. J. said she whited out the addresses as she and Mr. J. had separated. She was embarrassed she was living in a newaddress with L.-L. Ms. J. and Mr. J. have since reconciled and she has moved back to the family residence. [15] I do not find this explanation persuasive and draw an adverse inference as to whether L.-L. still lives with Ms. J. [16] Consider the decision in Farden v. Farden (BC SC), [1993] B. C. J. No 1315, a decision from Master Joyce.

This was an application for continued financial support by a child who is enrolled in a part-time post-secondary education program. Inthe last paragraph of page for the decision Master Joyce writes: “Whether or not attendance in a post-secondary institution will be sufficient cause for finding that a child is still a “child of the marriage”requires examination of all the circumstances.

It is not a conclusion which follows automatically from proof of attendance at theinstitution. [McNulty v McNulty (1976) (BC SC), 25 R.F.L. 29 (BCSC)]” [17] Master Joyce enumerated a number of criteria that included the child’s enrollment in the course of studies, the career plans ofthe child, financial support due to the child, whether the child is working part-time or obtaining student loans, the age of the child and thechild’s academic performance.

The eighth criteria states: “(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. The last factor enumerated above was dealt with in Law v. Law where at page 462, Fleury L.J. S.C. said: “In the case at bar, Kimberly Ruth Law has reached the age of 22.

She has not seen fit to contact her father to keep him appraised of herprogress in university and no evidence was made to the respondent until unilaterally ceased making maintenance payments for herbenefit when she turned 21 in 1985... Kimberly has certainly withdrawn from the applicant’s charge as a result of her failure to maintainany contact with him.

Although it is sufficient that she be in the custodial parent’s charge, I am of the view that, whereas here, a maturechild unilaterally terminates relationship with one of the parents without any apparent reason, that is a factor to be considered by the trialjudge in determining whether it would be “fit and just” to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with a heavy financial responsibilities and the child has very few duties inreturn.

It seems reasonable to demand that a child who expects to receive certain support entertain some type of relationship with his orher father in the absence of any conduct by the father which might justify the child neglect of his or her filial duties.”

[ 18 ] In the case of L.-L., I accept the evidence that she is now 20 years old. She did not come to court to testify and provide the necessary evidence discussed by Master Joyce in the Farden decision. Such evidence would have assisted the court to determine whether she is in fact a “child of the marriage”. Ms. J. testified that L.-L. was emotionally fragile. She was not called as a witness by Ms.

J. as she wanted to spare her daughter the burden of having to present evidence in court and seeing her father. [ 19 ] Besides not having any evidence as to these factors, there is no satisfactory explanation why L.-L.’s address was “whited out” on the documents at Exhibit 4 and 5. [ 20 ] The W.’s separated after Christmas 2000. According to Mr. W., the cause of their arguing was family finances. Mr. W. worked in the logging industry and was away from Prince George weeks at a time. Mr. W. was puzzled that he was receiving telephone calls from creditors when he left Ms.

J. with enough money to satisfy the family debts. On one occasion Ms. J. called Mr. W. at his place of work which was outside of Prince George and told him the marriage was finished. Ms. J. then moved out of the family home with the children to live with her parents. [ 21 ] The court record shows a number of Orders by the Provincial Court providing Mr. W. access to his children. A review of the Court Orders would indicate that throughout 2002 there are also a number of court appearances concerning child maintenance. [ 22 ] At some point in 2002, Ms. J. accused Mr. W. of molesting his youngest daughter, K. Ms.

J. says in her testimony that the accusations were thoroughly investigated by the RCMP and MCFD. From the words she used in describing the event I conclude that there are a number of interviews and examinations of the girls to determine whether there is a basis to this accusation. [ 23 ] In cross-examination, Ms. J. stated that no charges were laid against Mr. W. by the RCMP. Ms. J. also stated she was told by MCFD that they required, pending their investigation, that Mr. W. could only have supervised weekend access with the girls. [ 24 ] Mr. W.’s version of events is quite different.

He was devastated by the accusations. He was never interviewed by either the RCMP or MCFD. On December 18, 2002, he entered into a Consent Order in which Ms. W. would have sole custody of the children, but that both of them would have joint guardianship. Mr. W. was to have supervised access with the children on a weekend basis. [ 25 ] The next year, Mr. W. was unable to work as he was suffering from depression regarding the breakup of his marriage and the allegations against him of molesting his daughter [ 26 ] Hearing of the evidence of Ms. J. and Mr.

W., and my review of the court record, leads me to conclude that the separation was a toxic event which had devastating consequences for Mr. W. and his relationship with his children. I accept his evidence that he was never interviewed by either the RCMP or the Ministry of Child and Family Development. I also accept Mr. W.’s testimony that he was reluctant to contact his children as a result of this chain of events. [ 27 ] These tragic consequences have led to Mr. W. not seeing his children for 13 years.

My conclusion on this subject is that even if there had been evidence to prove to the Court that L.-L. was in fact going to school to be a social worker and had financial need, the lack of a relationship between L.-L. and Mr. W. would have precluded Mr. W. having to pay her child support. [ 28 ] As I have no evidence from L.-L. as outlined in Farden v. Farden (supra), I conclude that she ceased to be a child of the marriage in 2014, when she turned 19 years of age. Future post-secondary school expenses [ 29 ] Mr.

W. has agreed to pay 50% of the tuition and books for L.-L. upon presentation of the appropriate invoices from Ms. J. Retroactive child support [ 30 ] Ms. J.’s initial claim was for retroactive child support for 12 years. She has amended her claim to retroactive child support for three years but selects income earned by Mr. W. for the years 2011, 2012, and 2013 total of $24,546.72. Mr. W. has been paying a monthly amount of $757.41, based on his previous income at the time of separation. I note from the facts in this case that Mr.

W. was making his payments for child support through the Family Maintenance Enforcement Program. Looking at his statement from FMEP at Tab 6, Exhibit 6, Mr. W. was dutifully making his payments over the last thirteen years. He thought all was in order and that FMEP would advise him if it was not. [ 31 ] The leading Canadian case on the issue is D.B.S. v S.R.G. 2006 SCC 37 , the decision of the Supreme Court of Canada. I note paragraph 130: [130] “a second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures.

While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance for a court finds that there is been unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair having regard to all circumstances in the case.” [ 32 ] In the circumstances of this case I do not find that Mr.

W. was hiding or evading Ms. J. He had a reasonable belief that the he was meeting his obligations for child support until he was served with the Application which was filed on July 16, 2014. It was up to Ms. J. to bring her Application for increased child maintenance in a timely manner. I also find that to make an award of retroactive child

support as sought by Ms. J. would inflict unreasonable hardship on Mr. W. based on his evidence on his financial circumstances and the financial statement filed in court. [ 33 ] I accept that Mr. W. earned $78,989.00 in 2014. The Guidelines indicate that the monthly payment for two children is $1,194.00 and for a single child is $738.00. Given the circumstances, Mr. W. will pay retroactive child support for August and September 2014, in the amount of $1,194.00 per month for a total of $3,388.00 less the $1,514.00, he paid FMEP for a total $1,824.00. [ 34 ] Commencing October 1, 2014, Mr.

W. was obliged to only pay child support for K. W. in the amount of $738.00 per month. [ 35 ] I make the following Orders: 1. Ms. J.’s Application for retroactive child support to 2002 is dismissed; 2. L.-L. W. ceased to be a child of the marriage on September 2014; 3. Mr. W. will pay 50% of tuition and books for future post-secondary education of L.-L. W., upon presentation of appropriate invoices. The same will apply for K. W. if she attends post-secondary education; 4. Mr. W.’s arrears for child support are $1,824.00. This shall be paid to Ms. J. not later than September 20, 2016. 5. Mr.

W.’s ongoing child support for K. W. commences October 1, 2014, in the amount of $738.00 per month payable through FMEP. 6. Mr. W. will provide to Ms. J. by June 1, 2016 and on the 1st day of June every year thereafter so long as there is a child of the marriage, a copy of his income tax return and his assessment from the Canada Revenue Agency for the previous taxation year. _______________________ R. W. Callan Provincial Court Judge Province of British Columbia