S.J. v. D.F. Date:, 2011 BCPC 45

Citation: S.J. v. D.F. Date: 20110223 2011 BCPC 0045 File No: F14210 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S.J. APPLICANT AND: D.F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Applicant S.J.: A. Lees Appearing in person: The Respondent D.F. Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: December 9, 2010; February 15, 2011 Date of Judgment: February 23, 2011 INTRODUCTION [ 1 ] This case is about child support and the legal obligation that parents have to contribute to the cost of providing for their children in the wake of the dissolution of a spousal or quasi-spousal relationship. [ 2 ] The applicant, S.J. (“Ms. J”), applies for orders compelling the respondent, D.F. (“Mr. F.”), to pay both retroactive and prospective child support.

The children who are the subject of the application are L.F., born [d.o.b.] (“Child L”) and D.F., born [d.o.b.] (“Child D”) (collectively, the “Children”). Child L turned 19 in November of 2010 and, given her age and independence, Ms. J does not assert any claim for child support for her from and after then. Child D is 17 at present, is not yet independent and thus is the subject of both applications for retroactive and prospective child support orders. [ 3 ] Ms. J’s claim for retroactive child support dates back to August 2008, when she moved into her own townhouse.

The retroactive claim is asserted with respect to Child L from then until November 2010. With respect to Child D it is asserted from August 2008 to the date of judgment. [ 4 ] Ms. J’s claim for prospective child support, as noted, is limited to Child D. She seeks an order that Mr. F pay the table amount

in the Federal Child Support Guidelines, SOR/97-175 as amended to SOR/2007-59 that corresponds to his income for so long as ChildD remains a “child” as defined in s. 87 of the Family Relations Act, R.S.B.C. 1996, c. 128. THE FACTS The History of the Relationship [5] Ms. J and Mr. F began living together in 1986 and were married in 1998. They started living separate and apart in October of2007, although they did so within the matrimonial home from the time of their de facto separation until August of 2008. Thatarrangement was forced upon them by financial constraints, including the loss by Mr.

F of a job he had held at S & R Sawmills for 23years. The downturn in the forest industry in this province at that time accounts for that setback for Mr. F. [6] Ms. J and Mr. F tried upon separation to sell the matrimonial home. That effort did not meet with success and, in June of 2008,Mr. F refinanced and bought Ms. J out of her interest in the home for $155,000. Ms. J found herself a townhouse and in August 2008 shepurchased and moved into it. During the interregnum between October of 2007 and August of 2008 — despite the fact that they weretechnically separated — Ms. J and Mr.

F each continued to contribute to the cost of running the household in the way they had over theyears they were together. [7] Mr. F tried to stay in the matrimonial home after the departure of Ms. J for her new residence in August 2008. However, hefound the cost burden unmanageable. He eventually sold it in August of 2009 and took the comparatively small amount of equity thatwas left after all encumbrances were paid out and used it mainly to retire other debts. He now resides in a rented basement suite.

The Separation Agreement [8] The parties documented the terms of their separation in an agreement dated October 1, 2007 (the “Separation Agreement”) thathas been filed in this proceeding pursuant to s. 121 of the Family Relations Act. So far as its terms are material that agreement providedthat: (

a) Child L would reside primarily with Ms. J; (

b) Child D would reside equally with Ms. J. and Mr. F. pursuant to a shared parenting arrangement; and (

c) no monies would change hands between the parties on account of child support. The Abortive Shared Parenting Experiment [9] Child L did go to live primarily with Ms. J when she moved into her townhouse in August of 2008, as the parties had planned. However, the shared parenting arrangement for Child D did not unfold as expected and as was provided for in the SeparationAgreement. Child D did have as many as three overnight stays per week at his father’s home for a number of months following Ms.

J.’sdeparture in August 2008, but his time there steadily diminished and I find as a fact that, from and after January 2009 the pattern resolvedto one in which Child D resided primarily with Ms. J. That is how matters remain today. The Parties’ Dynamic Plans Regarding Child Support [10] It is Ms. J’s uncontradicted evidence — notwithstanding the contrary intention reflected in the Separation Agreement — thatupon moving into her new townhouse in August of 2008, she advised Mr. F that she did expect him to begin contributing something inthe nature of child support payments.

Her expectations, as she expressed them, were generic and unquantified. Mr. F responded bymaking some payments on account of child support. Those payments were erratic given, among other things, the facts that he was livingon employment insurance benefits, carrying greater debt in the wake of the refinancing and thus coping with a substantially restrictedcash flow. [11] As I have found above, the shared parenting experiment involving Child D continued from August until the end of December of2008. In January 2009, Ms. J became Child D’s primary caregiver.

I must therefore consider how this unforeseen development can beviewed against the background of the parties’ original intentions regarding child support, as expressed in the Separation Agreement, andtheir later conduct. [12]

Section 9 of the Federal Child Support Guidelines makes special provision for shared parenting and substitutes for conventionaltable-based support, presumptively, an offset method for determining the net guideline amount that will be paid by the better- paid parentto the one who is less well paid: see Green v. Green (2000), 2000 BCCA 310 , 75 B.C.L.R. (3d) 306 (C.A.) and Reber v.Reber, 2002 BCSC 884 , [2002] B.C.J. No. 1281 (S.C.) (QL). However, during the months governed by the shared parentingexperiment in this case the evidence shows that Ms. J and Ms.

F did not approach the issue of child support for Child D from a s. 9perspective. Indeed, as the Separation Agreement reveals, they had agreed at least initially that no claims for child support would bemade by either against the other. Ms. J spoke during her testimony to having begun to make generic requests for child support from Mr.F soon after moving into her own townhouse. I cannot find in those generic references, or in Mr. F’s testimony on the subject, anysuggestion of a s. 9 approach being in the contemplation of either party. The only reasonable

interpretation I can impose on the evidenceoverall in this regard is one that is consistent, as regards Child D during the currency of the shared parenting experiment, with what theSeparation Agreement provided — namely, that no child support would change hands. Accordingly, I do not recognise any survivingclaim by Ms. J for child support for Child D for the period between August and December 2008, inclusive. [13] I do recognise, however, in Ms.

J’s early, generic requests for child support an intention to depart from the original plan, asreflected in the Separation Agreement, that no child support monies would change hands for any reason. I interpret Ms. J’s early requestsfor child support as having been focused initially upon Child L and I find that, though erratic and unrelated to the Guidelines specifiedamounts, the payments that Mr. F did make in response to Ms. J’s requests confirm that they agreed in the early fall of 2008 to amendtheir bargain and that he would pay child support for Child L since Ms. J was serving as Child L’s primary caregiver.

[ 14 ] I also see in the parties’ oral testimony and the evidence of Mr. F’s periodic (though irregular) payments support for a finding that, in January 2009 — when the shared parenting experiment was at an end and Ms. J became Child D’s primary caregiver — Mr. F intended to make at least some child support payments for Child D and Child L to Ms. J for the reason that, by then, she had become the primary caregiver for both. Mr. F’s Employment: Past, Present and Future [ 15 ] As I have noted, Mr.

F’s long-term position with S & R Sawmills was a casualty of the problems that befell the entire forest industry in this province. He was laid off and out of the work force between March 2008 and June 2010. To his credit, during that time he took some government-funded training to upgrade his skills and credentials as a welder and steel fabricator. To sustain himself through this fallow period he claimed employment insurance benefits. [ 16 ] In June of 2010 things turned a corner for Mr. F.

He secured a brief, but handsomely remunerative, short-term assignment with a company in Alberta and then, beginning in August 2010, he was hired to work on the extensive renovations to B.C. Place that, when completed, will leave it with a retractable roof. [ 17 ] Mr. F does not have full status with the Ironworker’s Union but, at least since August of 2010, he has had steady, high-paying and mostly full-time employment on the B.C. Place project. Substantial overtime has been added to his earnings. Mr.

F is cautious in his predictions about what the future holds, recognising that that project will be completed by the fall of 2011 if it is completed on time. I believe it is fair to say that he expects to continue as he has been on this project at least until June, and possibly a few months longer. While the evidence does not specifically address his prospects thereafter, Mr. F is a skilled and reliable worker who has a long history of stable employment at S & R Sawmills.

After a hiatus of a little over a year following his lay-off he successfully re-entered the workforce having upgraded his skills and credentials and it is reasonable to anticipate that he will be diligent in his efforts to continue working and generate an income roughly in the range of what has been coming in since August of 2010. [ 18 ] Mr. F’s past earnings for 2008, 2009 and 2010 are material to Ms. J’s child support arrears claims. Some of that income over those years came from paid employment and some came from employment insurance benefits. [ 19 ] Mr.

F’s sworn financial disclosure statements (and particularly the Notices of Assessment that are attachments to them), reveal gross annual incomes of: (a) $62,876 in 2008; and (b) $43,042 in 2009. [ 20 ] The figure for 2010 is less clear, in part because Mr. F’s income has not yet been reported for that year. He started out on employment insurance; then he had a brief return to paid employment in Alberta during June; and lastly he obtained essentially full time work at B.C. Place in August. That latter position however does not generate uniform earnings. [ 21 ] The complete history of Mr.

F’s employment insurance benefits forming part of his financial disclosure materials confirms that he drew $12,069 in such benefits during 2010. Pay stubs confirm that the Alberta assignment in June returned him $8,894. The calculation of Mr. F’s gross monthly earnings while on the B.C.

Place project during 2010 is more complex but, having regard to his testimony, pay stubs, overtime and the variability of his hours from week to week I find his average gross monthly income from August through December 2010, inclusive, to have been $6,500, or $32,500 for all five of those months. [ 22 ] Adding these figures together — that is, $12,069 (E.I.), $8,894 (Alberta) and $32,500 (B.C. Place)— I arrive at a gross annual income for Mr. F for 2010 of $53,463. [ 23 ] Mr. F agreed that his monthly earnings on the B.C.

Place project have, so far, been higher in 2011 than they were in 2010, in part because the construction work is “ramping up” given the looming deadline for completion. He also acknowledged, however, that the nature of the work changes as completion is approached and — given his particular role as a welder and steel fabricator — his earnings may not necessarily increase or even maintain their current level in the final finishing phases of the project. Taking all of this into account, and building in a contingency to address the risk that Mr. F may be out of work for a time once the B.C.

Place project is ended and may not quickly find work that is as remunerative thereafter, I project his average gross monthly income for all of 2011 to be modestly lower than the average of $6,500 per month that he earned for the last five months of 2010. The figure I have arrived at is $6,000. Projected out over the entire 12 months of 2011, that yields a total for 2011 of $72,000. Credit for Child Support Already Paid [ 24 ] Neither Mr. F nor Ms. J kept good records of the amounts that Mr. F paid to Ms. J, from time to time since September 2008 on account of child support.

Those payments were, as I have said, erratic, sometimes delivered directly to the Children and, as one would expect, they became larger and more regular when Mr. F finally found himself a job generating a regular wage. Some documentation was filed on the second day of trial that brought this aspect of the facts into clearer focus but there remains some conflict in the parties’ testimony that cannot be resolved by recourse to independent evidence. Inasmuch as Ms. J forgot altogether the $1,000 payment that Mr.

F made to her by way of a bank draft in October of 2009 — a payment that she quickly acknowledged having received when the counterfoil for the draft was introduced as an exhibit during her cross-examination — I consider Mr. F to have the more reliable memory concerning those payments. Based on his testimony I find that he made three $200 payments, one $100 payment, one $400 payment, one $1,000 payment (the draft) and three $500 payments. He also gave Ms. J the bed that he had purchased for Child D when it became evident that the shared parenting plan for Child D was not going to govern long term. Mr.

F stated a value for that bed of $700 and, as the one who purchased it, he is in the best position to know what he paid for it. I saw no tendency toward exaggeration here or anywhere in Mr. F’s testimony. [ 25 ] Adding these amounts together, I find that Mr. F is entitled to credit for $4,300 on account of child support paid by him to Ms. J between August 2008 and the date of judgment.

THE LAW The Child Support Obligation Generally [ 26 ] The Family Relations Act prescribes in s. 88(1) that, for so long as their offspring remain “child[ren]” as defined in s. 87 , both parents are “responsible and liable for the reasonable and necessary support and maintenance” of their offspring. A primary caregiver (like Ms.

J) typically fulfils s. 88(1) obligations by providing for children’s day to day needs in his or her home. A non-custodial parent (like Mr.

F) typically meets s. 88(1) obligations is by making payments of child support to the custodial parent in accordance with the Federal Child Support Guidelines . Claims for Retroactive Child Support [ 27 ] In D.B.S. v. S.R.G. ; L.J.W. v. T.A.R. ; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 , Bastarache J. authored a majority judgment in which the Supreme Court of Canada laid down the factors that a court must consider when deciding whether an order for retroactive child support should be made. They are: (

a) Delay. Can the party seeking an award of retroactive child support provide a reasonable excuse for not seeking support sooner?; (

b) Payor conduct. Has the paying parent engaged in blameworthy conduct that would support the making of a retroactive child support order?; (

c) Circumstances of the child. Do the child's past and present needs and circumstances support the making of a retroactive child support order?; and (

d) Hardship for the payor. Would the making of a retroactive child support order impose undue hardship on the paying parent? [ 28 ] None of these factors is definitive in and of itself. The question of whether and how much should be paid by way of retroactive child support must be assessed holistically and by reference to the unique facts revealed in individual cases: D.B.S. at para. 99 APPLICATION OF THE LAW TO THE FACTS IN THIS CASE Child Support for Child L [ 29 ] As I have noted, Child L reached the age of 19 in November of 2010 and Ms. J seeks only a retroactive order of child support for her.

As sought, that order would cover the period from August 2008 to November 2010, inclusive, given that Ms. J was the primary caregiver for Child L and that Child L was a “child” as contemplated by s. 87 of the Family Relations Act for that entire period. [ 30 ] I see nothing in the reasoning of the court in D.B.S. that would preclude Ms. J from obtaining the order concerning Child L that she seeks. [ 31 ] While it is true that Ms. J deferred filing her application until February 9, 2010, Mr. F cannot claim that he has suffered prejudice based upon that delay.

He had “effective notice” that the status quo regarding child support for Child L was not acceptable very soon after Ms. J moved into her new townhouse with Child L. Indeed, on the facts I have found, Mr. F began making child support payments — albeit insufficient ones and on an erratic basis — soon after Ms. J made requests for child support for Child L in the early fall of 2008. Some amounts continued to flow from Mr. F to Ms. J, from time to time, thereafter, showing that not only was he on notice of Ms. J’s child support expectations but that he acted on that notice.

In such circumstances no unfairness to the payor parent can be ascribed to delay: see D.B.S. at paras. 118-125 . [ 32 ] Mr. F’s spotty and irregular efforts to pay child support never involved payments that approximated the table amounts in the Guidelines corresponding to his income. This was so before and after an interim order was made against him in June of 2010 and before and after there was a marked increase in his earnings performance beginning that June.

This, in D.B.S. terms, is “blameworthy conduct” that, alongside other considerations, favours the making a retroactive order. [ 33 ] The evidence before the court persuades me that Ms. J lived and lives in somewhat straitened financial circumstances. Her landscaping business returns her a modest annual income and I take judicial notice of the notorious fact that raising teenagers in the modern world is a costly venture. While, given Mr. F’s testimony, I am not entirely persuaded that every penny of Ms. J’s income from her business has been reported, Mr.

F could not give particulars from personal knowledge of earnings generated “under the table” nor, more importantly, could he quantify those unreported earnings. [ 34 ] The evidence bearing upon the circumstances of Child L prevailing between August of 2008 and November 2010 persuades me that there was an overall diminution in the funds available to meet her needs following the move she and her mother made to the townhouse. Ms. J was called upon twice to cash in RRSPs in order to meet quotidian cash flow requirements.

She supplemented her modest earnings in her landscaping business in 2008 by doing housecleaning work on the side. Those are the kinds of steps that Ms. J took, to her credit, to provide as best she could for Child L. Plainly, the gap between what was needed and what was available to cover Child L’s reasonable expenses could have been closed, to a degree, by Guideline -based child support payments from Mr.

F between August of 2008 and November of 2010. [ 35 ] Lastly, with respect to the D.B.S. criteria, I do not consider that the imposition of a retroactive order respecting Child L would work undue hardship upon Mr. F. He testified that he has largely cleared away past debts. His financial disclosure materials reveal that his living costs are modest and, as has been shown above, since June of 2010 he has returned to work and generated a comparatively high income. [ 36 ] Viewing the entire body of the evidence before me holistically, I am persuaded that the retroactive child support order that Ms.

J seeks concerning Child L is warranted. I find it just that I should require that Mr. F pay retroactive Guidelines -based child support for

Child L covering the period from August 2008 to November 2010 — the month when she turned 19 — inclusive. Child Support for Child D Retroactive [ 37 ] Adopting the analysis I have employed above in respect of Child L, I consider that there are no reasons, having regard to the D.B.S. criteria, why Mr. F should not also pay retroactive child support to Ms. J for the benefit of Child D. [ 38 ] The timing differs, however, with respect to the commencement of the obligation concerning Child D.

On the reasoning set out earlier in this decision I have concluded that, owing to the abortive shared parenting experiment, Ms. J did not become Child D’s primary caregiver until January of 2009 and that, indeed, it was not until then that her requests that Mr. F pay child support — contrary to the plan reflected in the Separation Agreement — embraced Child D as well. [ 39 ] Accordingly, I find it just that I should require that Mr. F pay retroactive Guidelines -based child support for Child D covering the period from January 2009 to February 2011 — the month when judgment is given — inclusive.

Prospective [ 40 ] Child D is still a “child” as defined in s. 87 of the Family Relations Act and he will remain so at least until his 19 th birthday in 2012 and possibly thereafter. Part of the analysis that yielded the conclusion that a retroactive order was appropriate concerning Child D similarly yields the conclusion that the obligation to pay that support is a continuing obligation. Child D’s needs remain considerable and Ms. J’s means remain limited. Ms. J is entitled to look to Mr.

F to contribute to the ongoing cost of making provision for Child D for so long as his status remains unchanged. [ 41 ] The monthly Guidelines amount for support for one child that corresponds to the gross annual income of $72,000 that I have projected for Mr. F for 2011 is $672. THE RETROACTIVE CHILD SUPPORT CALCULATIONS [ 42 ] Only the retroactive child support award for Child L reaches back to 2008. The Guideline amount for one child for a person earning what I have found Mr. F to have earned in 2008 — that is, $62,876 — is $588.

Multiplied by five to reflect the five months during which the obligation was in place in 2008, the retroactive award for 2008 with regard to Child L is $2,940. [ 43 ] Throughout the entirety of 2009, both Child L and Child D were entitled to Guidelines child support. Mr. F’s total earnings in 2009 were $43,042. The table amount for two children that corresponds to that income is $655.

Multiplied by 12 to get the total for the year, the retroactive award for 2009 for Child L and Child D, together, is $7,860. [ 44 ] For the first 11 months of 2010, both Child L and Child D were entitled to Guidelines child support. I have fixed Mr. F’s total earnings in 2010 at $53,463. The table amount for two children that corresponds to that income is $811. Multiplied by 11 to get the total for January to November, inclusive, the retroactive award for 2010 for Child L and Child D, together, is $8,921. [ 45 ] For December 2010, only Child D was entitled to Guidelines child support.

Again, based on a gross annual income of $53,463 for Mr. F in that year, the table amount that Mr. F must pay on account of child support for Child D for that last month is $498. [ 46 ] For January and February of 2011, Child D should have received Guidelines child support based on Mr. F’s gross annual income for 2011. I have projected that income to be $72,000.

When the table amount of $672 is multiplied by two to reflect the months in 2011 that are the subject of the retroactive obligation, the total is $1,344. [ 47 ] The foregoing figures, added together, and then reduced to reflect credits for child support payments already made by Mr. F, yield a net total owing on account of retroactive child support by him to Ms.

J of $17,263, viz : Subject of Retroactive Award Amount Child L, 2008 $2,940 Child L and Child D, 2009 7,860 Child L and Child D, first 11 months of 2010 8,921 Child D, December 2010 498 Child D, January and February 2011 1,344 Subtotal 21,563 Less credits for child support payments made <4,300> TOTAL $17,263

SUMMARY AND ORDERS [ 48 ] Based upon all of the foregoing I have determined that Mr. F’s retroactive child support obligations with respect to the Children, crystallised as of the date of judgment, total $17,263, and I order that Mr. F pay that amount to Ms. J as arrears of child support. The parties have leave to apply for orders governing the manner in which that outstanding debt is to be retired. [ 49 ] I have also determined that Mr. F has an obligation to continue to pay prospective child support to Ms. J for the benefit of Child D in the Guidelines amount that corresponds to his gross annual income.

For the year 2011 the monthly payment dictated by the table, based on the $72,000 that I have projected as Mr. F’s gross income for that year, is $672. I order that Mr. F pay $672 to Ms. J on

account of child support for Child D on March 1, 2011, and on the first day of every month thereafter for so long as Child D remains a “child” under s. 87 of the Family Relations Act and entitled, as such, to child support, or until further order of the court. [ 50 ] I further order that Mr. F shall deliver to Ms. J his Notice of Assessment, as generated by the Canada Revenue Agency, on or before August 15, 2011, and on the 15 th day of August on each year thereafter for so long as Child D remains a “child” under s. 87 of the Family Relations Act . I make this order so as to enable either or both of Ms. J and Mr.

F to seek to vary the part of this order concerning prospective child support for Child D, either by consent order or application, should changes in Mr. F’s earnings as revealed by his Notices of Assessment appear to justify such variation. _______________________ Thomas S. Woods, P.C.J.