R.B. v. R.J.P.S. Date:, 2016 BCPC 281

Citation: R.B. v. R.J.P.S. Date: 20160728 2016 BCPC 281 File No: F14549 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.B. APPLICANT AND: R.J.P.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Applicant: S. Loney

Appearing in person: R.J.P.S. Place of Hearing: Victoria , B.C. Date of Hearing: July 15, 2016 Date of Judgment: July 28, 2016 Introduction [ 1 ] This is an application by R.B. for an order for child support payable by Mr. R.J.P.S. from January 1, 2008 to December 31, 2011. Ms. R.B. also seeks an order that this court find certain of her chil d care expenses to be special and extraordinary, and that those be paid proportionately by the parties based on their respective incomes from 2008 to the present. [ 2 ] Mr. R.J.P.S., who represented himself, opposes both these applications. He submits Ms.

R.B. has no explanation for having failed to bring her claim for child support much sooner such that it would be unfair to grant the application at this time. Mr. R.J.P.S. also argues that any retroactive order would constitute an undue hardship. With respect to Ms. R.B.'s application for special and extraordinary expenses, Mr. R.J.P.S. submits that the child support he has provided was ample and intended to cover all of their child's expenses, including day care as well as medical and dental expenses. [ 3 ] Ms. R.B. had one other application before the court which was addressed at the conclusion of the hearing.

I advised that I would reserve on the issues of child support and special and extraordinary expenses so that I could better explain to the parties, particularly Mr. R.J.P.S., what the law requires of him and why I must make the orders I will make at the conclusion of these reasons. The Parties' Background [ 4 ] Ms. R.B. and Mr. R.J.P.S. are the parents of E.R.S., born [omitted for publication] 2003. The parties lived together in Toronto at the time their daughter was born, but separated in March, 2005. Ms. R.B. moved to Victoria in approximately 2006 and filed for child support in May, 2007. Mr.

R.J.P.S. too relocated to Victoria, then to Vancouver in 2008, and then to Kamloops, British Columbia, where he was employed as a trucker. At present, he lives in Edmonton, Alberta. He currently collects WCB benefits arising out of a significant motor vehicle accident which occurred in the course of his work as a truck driver. [ 5 ] The parties had no formal agreement regarding parenting time. It is clear on the evidence that after their separation Ms. R.B. has always been the primary caregiver of their child. Her evidence was that Mr.

R.J.P.S. rarely, if ever, followed through on his weekend parenting time. [ 6 ] In or about 2007, the parties did engage in mediation regarding child support, out of which came an unsigned agreement that Ms. R.B. would receive $280.00 per month in child support pending disclosure of Mr. R.J.P.S.'s financial information. Ms. R.B. testified that though she sought more information concerning Mr. R.J.P.S.'s income and his employer, it was only very recently that he filed any sort of financial disclosure. Ms. R.B. testified further that over the years Mr.

R.J.P.S. did provide her with a fair amount of child support randomly and not consistent with what she believed was his income. She added that Mr. R.J.P.S. regularly threatened her that if she tried to get Family Maintenance involved that he would take her back to court. The procedural history [ 7 ] Though Ms. R.B. filed her application for child support on May 11, 2007, the first order for child support on the court file is dated June 19, 2014. A review of the court file indicates that after a flurry of motions filed in 2007, the court case went dormant until Ms.

R.B. filed an application on October 16, 2013, seeking an order permitting her to travel with her daughter to Disneyland, an allocation of parenting time and responsibilities, child support, and disclosure of Mr. R.J.PS.'s income. Mr. R.J.P.S. opposed the motion and sought a renegotiation and formalization of his parenting arrangement with Ms. R.B.. [9] Thereafter the parties attended a family case conference where the issue of Mr. R.J.P.S.'s parenting time was addressed. Mr. R.J.P.S. then filed an application for an order enforcing the order from the case conference. Ms.

R.B. in turn filed a motion dated June 10, 2014 for an order that her application filed October 16, 2013 be heard regarding child support. What has ensued since is the order for a s. 211 report, and various orders for child support on an ongoing basis. [ 1 0] With respect to child support, this court made an interim order for support dated January 1, 2014. That order was subsequently amended by order dated November 13, 2015 to reflect the parties' understanding of Mr. R.J.P.S.'s income at the time and that order in turn was varied by this court to reflect the evidence concerning Mr. R.J.P.S.'s income. Ms.

R.B.'s application for child support based on her Motion of May, 2007 was adjourned to this hearing. The Parties' Positions [11] Mr. R.J.P.S. maintains that Ms. R.B. only resurrected her application for child support filed in May, 2007 once he gently asked for more visitation rights and to talk about their child support agreement. He testified that from 2007 to 2013, he had been paying child support in accordance with an agreement the parties entered into following mediation. He asks this court to find that if Ms. R.B. was not

satisfied with his child support payments, she would have taken him to court. He submits that to grant her child support now going back even to 2008 would be unfair, make no sense, and would work an undue hardship on him. He added that any further payment, even for special and extraordinary expenses, would be unjustified given the money he has paid to Ms. R.B. to date. [12] Ms. R.B. maintains that throughout Mr. R.J.P.S. has been frustrating and stressful to deal with.

Her attempts at obtaining disclosure of his financial information have been unsuccessful except when ordered by the court and even then the disclosure has not been fulsome. Ms. R.B. submits that she agreed to an amount that was better than nothing, and even then was rarely paid the amount that the parties agreed to contingent on her obtaining financial disclosure of Mr. R.J.P.S.'s actual income. Child Support Under the FLA [13] The obligation to pay child support in British Columbia is found is s. 1 4 7 of the Family Law Act ("FLA") which provides as follows: 1 4 7

(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child (

a) is a spouse, or (

b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable. [14]

Section 150 of the FLA provides that the amount of support owing must be determined in accordance with the child support guidelines. The guidelines in turn fix an amount of child support payable based on the income of the payor parent, or in the case of shared parenting, on the respective incomes of both parents. However, it is axiomatic that child support is tied to parental income. [15]

Section 150 of the FLA allows for some flexibility, in that the courts can vary from the guidelines if the child has been provided for by some other agreement and an adherence to the guidelines would, in the circumstances, be inequitable. [16] As Fisher J. held in Brown v. Kucher, 2015 BCSC 1258 at para 23 , s. 150 implicitly includes the power to order original child support retroactively. [17]

Section 152 of the FLA also permits for retroactive support orders. That

section provides as follows: 152

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection ( 1 ), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; evidence of a lack of financial disclosure by a party was discovered after the last order was made. [18] Like Brown, this is a case that does not fall naturally within s. 152 as Ms. R.B.'s application is for the most part an "application of first instance" for child support going back to 2008. [19] Ms. Loney submits that even so, the court ought to apply the test for a retroactive award as set out in D.B.S. v. S.R.G. 2006 SCC 37 .

In Brown , a case dealing with similar circumstances, Fisher J. held at para 24 that D . B.S. is applicable . As such, it falls to be determined whether, in applying D.B.S. , that a retroactive award is available in this case. [20] D.B.S. provides that a four part test must be applied to determine whether a retroactive award is appropriate. The test was described at para 42 of Semancik v.

Saunders, 2011 BCCA 264 , as follows: .. . whether the recipient parent has a reasonable excuse for why support was not sought earlier; blameworthy conduct of the payor parent; the circumstances of the child; and whether any hardship would be caused by a retroactive award (at paras. 1 00-116). [21] Before turning to each of those aspects of D.B.S., it is important to note at the outset some of the fundamental principles that govern these applications. First, as Madam Justice Martinson wrote in Earle v.

Earle, 1999 BCSC 283 at para 46, the general rule is that parents are legally obligated to support their children, and that child support is the right of the child. Secondly, as Fisher J. reiterated in Brown , at para 25 , "retroactive awards are not to be regarded as exceptional." Rather, they are intended to provide a remedy for the child when "one or both parents fail to vigilantly monitor child support payments." Application Of D.B.S. [23] The first leg of D.B.S. requires the court to consider the reason for the applicant's delay in bringing his or her request for child support well after the fact.

This factor forms the crux of Mr. R.J.P.S.'s defence. As I have noted, he maintains that there is no good reason for the delay and that the application was only brought to punish him for seeking more parenting time and a reconsideration of his child support payments. [24] Ms. R.B. offered little in the way of an explanation for the delay in pursuing her application for child support first filed in 2007. When questioned, Ms. R.B. offered that Mr. R.J.P.S. regularly threatened to take her to court if she tried to get Family Maintenance

involved but I do not find that alone justifies a nearly ten year delay in moving forward with an application for child support. [25] What I find more compelling, and what I accept also contributed to the delay, was that Ms. R.B. did not know what Mr. R.J.P.S. made. Over the years, Mr. R.J.P.S. would give Ms. R.B. money from time to time: some of it in accordance with their unsigned agreement, sometimes more and sometimes less. However there was never any consistency over the years 2008 to 2011 so that Mr. R.J.P.S. cannot be said to have been paying in accordance with any agreement.

This, I find, is exacerbated by the fact that Mr. R.J.P.S. consistently failed to disclose his income. Rather, he gave what he wanted from time to time and assumed from Ms. R.B.'s inaction that he was safe in so doing. [26] The delay in this case is not, I find, fully explained, though there is some basis for it. Still, as the court notes in Brown at para 37 , unreasonable delay is one factor in deciding whether to order a retroactive award. [27] The next factor to consider is the conduct of the payor parent. At para 45 of Brown, Fisher J. quoting from D .

B.S. wrote that courts should take an expansive view of what constitutes blameworthy conduct in this context and characterized such conduct as "anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support": para. 106. [28] In D.B.S. the court held that examples of blameworthy conduct will include intimidating a recipient parent, or hiding income from that parent. In this case, there is evidence of both. While I do not accept that Mr. R.J.P.S.'s threats justified Ms. R.B.'s delay, they are conduct that is blameworthy.

Moreover, though he had ample time to do so, and was urged from time to time to do so, Mr. R.J.P.S. proved very reluctant to disclose his actual income. [ 8 ] In examining the extent to which Mr. R.J.P.S. benefitted from this conduct, the court in D.B.S. did indicate the lower courts should look at the difference between the amount of support paid and the amount that should have been paid in accordance with the payor parent's income. In this case, a disparity exists but it is not dramatic. In 2008, for example, Mr.

R.J.P.S. paid $ 1 ,460 (the parties agreed a table and chair set would equal $280 for the month of January) in child support. With an income of$44,158.00, he should have paid $4,836 over twelve months. In 2009, Mr. R.J.P.S. paid $1,868 in child support. With an income of $58,023, he should have paid $6,444. In 2010, Mr. R.J.P.S. paid $1,015 in child support while being obligated to pay $3,372. Finally, in 2011, Mr. R.J.P.S. paid $1 , 050 while he ought to have paid $2,736. [30] These sums are not large for the years 2010 and 2011. Still, given Ms.

R.B.'s income, they are not insignificant for the years 2008 and 2009. Modest, though, some of these figures may be, I have no difficulty finding that the extra money would have been a welcome addition to Ms. R.B.'s strained budget. [31] The third part of the D.B.S. test is concerned with the circumstances of the child and in particular what impact a retroactive award would have on the standard of living of the child. I have already noted that as E.S. was growing up, good use could have been made of Mr. R.J.P.S.'s child support payments. Her standard of living then and now appears modest.

I do not say E.S. is in need, but she and her mother are in no way enjoying a high standard of living. I find that E.S. will benefit from a retroactive award given her age and her primary caregiver's income. [32] The final issue that must be addressed regarding a retroactive award is the question of hardship occasioned by such an order. Mr. R.J.P.S. argued strenuously that any retroactive award would impact on his ability to parent or at least visit E.S. As Ms. Loney pointed out, there is scant evidence in this case to support a claim of undue hardship. Mr.

R.J.P.S. has provided little evidence of the standard of living he now enjoys with his partner in Edmonton. At present, he appears to have incurred few expenses to see E.S. and there is no real evidence from which I can infer such expenses would be so substantial Mr. R.J.P.S. could not bear the cost of a retroactive award. Conclusion of D.B.S. Factors [33] I find that the majority of the D.B.S. factors favour a retroactive award in this case. It bears noting that while Ms. R.B. filed her motion for child support in 2007, she seeks only support for the years 2008 to 2011.

There is no question in the circumstances that 2008 is the appropriate date for the commencement of the retroactive order. [34] I have found that Mr. R.J.P.S.'s child support payments for the year 2008 based on his line 150 income was deficient in the amount of $3,376. For the year 2009, Mr. R.J.P.S.'s payments were deficient in the amount of $4,576; for 2010, it was $2,357 and for 2011, Mr. R.J.P.S. should have paid an additional $ 1 ,686. In all, I find that Mr. R.J.P.S. underpaid child support for the years 2008 to 2011 in the amount of $11,995 and I fix that amount as arrears owing. Special Expenses [35] Ms.

R.B. also seeks an order that Mr. R.J.P.S. pay his share of special expenses from 2008 to the present. While there are orders governing Mr. R.J.P.S.'s child support obligations from 2012 to the present, there are no such orders respecting special and extraordinary expenses. [36] The issues in regard to these expenses are firstly, whether such expenses are intended to be covered by child support as Mr. R.J.P.S. submitted. Secondly, if not, it must be determined whether all of the expenses claimed by Ms. R.B. constitute special or extraordinary expenses.

Thirdly, to the extent this court finds any special or extraordinary expenses, the parties' proportionate share of special expenses for the years 2008 to the present must be determined. Does Ms. R.B. have a claim for special or extraordinary

expenses? [37] Appended to her financial statement filed July 12, 2016, Ms. R.B. attached records for E.S.'s medical, dental, prescription, day care and activities expenses. She also included claims for other activities such as summer camp, dance, swimming and violin lessons. [38] In regard to all of these expenses, Mr. R.J.P.S. questioned whether they were not in fact covered, or at least intended to be covered by his child support payments. He noted also that Ms. R.B. too was working and in his view could well afford these expenses. [39] The term "special expenses" is set out in s. 7(1) of the federal child support guidelines. That

section provides that in a support order a court may: .. . on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

c) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (

d) expenses for post-secondary education; and (

e) extraordinary expenses for extracurricular activities. [40] Bearing in mind the wording of s. 7(1) of the guidelines, it is clear firstly that the expenses listed by Ms. R.B. are special expenses and not expenses that are covered by the child support payments she receives.

Of the expenses, I find that E.S.'s medical, dental, prescription drug and day care costs are necessary as being in her best interests and reasonable in relation to the means of both parents. [41] Other expenses such as the swimming and violin lessons, late summer camps and dance classes are, I find, not reasonable in the circumstances of this case. [42] For the year 2008, I find Ms. R.B. is entitled to Mr. R.J.P.S.'s proportional share of special expenses for medical premiums, extended health coverage and day care costs in the amount of $2,014.00. Mr.

R.J.P.S.'s share, based on his annual 2008 income of $44,158.00, equals 52% for a total of $ 1 ,047.28. [43] For the year 2009, Ms. R.B.'s special expenses that I accept amount to a total of $ 1 ,993.65. Mr. R.J.P.S.'s share, based on an income of $58,023.00, is 52% for a total of $ 1 ,036.70. For the year 2010, Ms. R.B.'s special expenses amount to a total of $ 1 ,700.96. Mr. R.J.P.S.'s share, based on an income of $34,412.00, is 44.5% for a total of $638.86. [45] For the year 2011, Ms. R.B.'s special expenses equal $ 1 ,434.51. Mr.

R.J.P.S.'s share, based on an annual income of $26,141.00, is 35% for a total of $808.73. [46] For the year 2012, again bearing in mind s. 7(1) of the guidelines, I find that Ms. R.B. incurred special expenses in the amount of $1,557.76 for the cost of medical premiums, extended health and orthodontics. Ms. R.B. testified as to E.S.'s particular dental work and I accept it was and remains in her best interest and an expense that is reasonable in all the circumstances. [47] Mr.

R.J.P.S.'s proportionate share of these expenses, based on an annual income of $49,008, is 58% for a total of $903.50. [48] For the year 2013, I find Ms. R.B. incurred special expenses in the amount of $2,681.02. I have accepted Ms. R.B.'s claim for expenses related to E.S.'s attendance at counselling, as well as her claim for expenses for an air purifier. These are almost certainly in E.S.'s best interest and on balance they are not unreasonable given the parties relative incomes. [49] Mr.

R.J.P.S.'s proportionate share of these expenses, based on an annual income of $74,833 is 60% for a total of $939.57. [50] For the year 2014, I accept that Ms. R.B. incurred special expenses for medical, dental, counselling and orthotics in the amount of $2,407.67. Mr. R.J.P.S.'s proportionate share of these e x penses, based on an annual income of $4 9 , 765, is 4 8 . 8% for a total of $ 1 , 30 8 . 5 8 . Finall y , for the year 2015 , I accept that Ms. R.B. incurred special e x penses for medical, denta l , orthodontics , physio and optometry in the amount of $ 2 , 311.92 . Mr.

R.J.P.S. ' s proportionate share of these e x penses, based on an annual income of $42,160, is 4 6 % for a total of $ 1 ,063.96.

Summary [52] While I accept that Ms. R.B.'s reasons for her delay in pushing on with her application for child support first filed in 2 007 were not entirely compelling, I am convinced, on the balance of the D. B . S . factors, that a retroactive award is appropriate in this cas e . I am not convinced on the evidence that such an award would work an undue hards h i p . Mr. R.J.P.S. simply failed to provide any evidence in

support of that clai m . [53] In total , I find that for the years 2008 to 2015, Mr. R.J.P.S. is responsible for his propor t i onate share of special e x penses in the amount of $ 7 , 7 4 7 .18. I have also fixed his arre a r s for child support from 2008 to 2011 at $1 1 , 99 5 . In tota l , including his share of special and extraordinary expenses, M r . R.J.P.S. is in arrears in the amount of $19,742.18 . The Honourable Judge Mrozinski Provincial Court of British Columbia