L.B. v. J.K. Date:, 2012 BCPC 231

Citation: L.B. v. J.K. Date: 20120703 2012 BCPC 0231 File No: F14964 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: L.B. APPLICANT AND: J.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.N. HAMILTON Appearing in person: L.B.

Counsel for the Respondent: F. Tromans Place of Hearing: Surrey , B.C. Date of Hearing: June 13, 2012 Date of Judgment: July 3, 2012 INTRODUCTION [ 1 ] L.B. and J.K. are the parents of two children: E.B.(1) born [date of birth] (“E.(1)”); and E.B.(2) born [date of birth] (“E.(2)”). [ 2 ] The two children are 19 and 11 years old respectively. [ 3 ] The parties were never married, but lived together in a common law relationship. J.K. says the couple separated in 2003 and L.B. says they separated in May, 2005.

Regardless of the date of separation, they entered into a consent order on November 8, 2005 the terms of which provide that L.B. is to have sole custody and sole guardianship of the children, J.K. is to have reasonable and generous access to the children, and based upon J.K.’s gross annual income of $60,000, he agreed to pay L.B. $800 per month in child maintenance and $400 per month in spousal maintenance for a total monthly payment of $1,200 (the “Consent Order”). [ 4 ] At the time the parties entered into the Consent Order, J.K. had returned to Quebec to live with his parents where he remains today.

L.B. remained in British Columbia with the children. [ 5 ] J.K. failed to make the full maintenance payments as ordered and he presently owes L.B. $34,310.94 in maintenance arrears. [ 6 ] J.K. applies in this proceeding to: (

a) Reduce or cancel maintenance arrears that have accumulated since January 1, 2008 which he calculates to be $16,150.00; (

b) Vary his prospective child maintenance payments to reflect his actual annual income and to take into account the fact that E.(1) is now 19 years old; and (

c) Cancel his spousal maintenance payments. [ 7 ] L.B. agrees that the spousal maintenance payments can cease effective March 1, 2012, but otherwise she opposes the relief sought by J.K. [ 8 ] As I discuss below, the resolution of J.K.’s application to reduce or cancel the maintenance arrears requires me to apply the “gross unfairness” test set out in section 96(2) of the Family Relations Act R.S.B.C. 1996, c. 128 (the “ F.R.A. ”).

His application with respect to prospective child maintenance payments requires me to determine if E.(1) continues to qualify for child maintenance and if so whether the child support Tables of the Federal Child Support Guidelines (the “Guidelines”) apply or whether I should award some other amount of child maintenance for E.(1). BACKGROUND [ 9 ] L.B. and J.K. are both 46 years old. [ 10 ] They commenced their relationship in 1990 in Quebec and over the years they have separated and reconciled a few times. [ 11 ] J.K. has been employed in the construction industry for over 20 years.

In 1995 he decided to move from Quebec to British Columbia to search for better employment opportunities. The parties were separated at that time and E.(1) was living with L.B. E.(1) was 2 years old at that time. [ 12 ] L.B. followed J.K. to British Columbia shortly after his move here and the couple reconciled. The couple separated again in 1999 and L.B. relocated to England where she married an individual, but the marriage only lasted a couple of weeks and she returned to British Columbia.

L.B. and J.K. reconciled. [ 13 ] E.(2) was born [date of birth] and the couple then separated for the final time in either 2003 or on the May long weekend in 2005. The actual date of their separation is not material to the applications before me. [ 14 ] In September and October, 2005 the parties executed a number of documents setting out the agreement they reached with respect to custody, guardianship, access and maintenance for the children, and spousal support. The terms agreed to were set out in a written agreement executed by both parties in October, 2005.

L.B. then appeared in court on November 8, 2005 and obtained the Consent Order in the same terms as those in their written agreement except that there was an additional term by which the court made a finding that J.K.’s annual Guideline income was $60,000. J.K.

[ 15 ] At the time of the Consent Order, J.K. had relocated back to Quebec and was living with his parents in the town of Dollard des Ormeaux where he remains today. He moved back to Quebec in September, 2004 after he lost his job that month working for a company called [name of company]. While he was working for [name of company], J.K. was earning approximately $50,000 per year. He had been employed with [name of company] for five years at the time he was terminated.

Prior to joining [name of company], J.K. had been a self-employed contractor in the construction industry. [ 16 ] Upon his return to Quebec, J.K. moved into the basement of his parent’s home and completed some renovations for his parents. [ 17 ] J.K. stated in his affidavit filed in Exhibit 1 before me that he decided to move back to Quebec because he had better business connections in Quebec than he had in British Columbia, and also because he felt the cost of living was cheaper in Quebec.

His expenses would be limited while living with his parents. [ 18 ] J.K. decided to start up a construction company in Quebec called [name of company]. He struggled to find construction or renovation projects for over six years with his company.

Looking at his reported earnings more recently, in 2008 he reported earnings of $10,220.00, in 2009 he reported earnings of $6,932.00, and in 2010 he reported earnings of $5,656.00. [ 19 ] In December, 2010, J.K. began to do some contract work with a company called [name of company] which is owned and operated by his brother. [ 20 ] J.K. worked fairly steadily for [name of company] as a contractor until June, 2011 when he became an employee of [name of company]. His starting wage was $25.00 per hour and he currently earns $26.00 per hour.

He works on average thirty hours per week, but said he expects to be working full-time, or forty hours per week, soon because [name of company] has work booked throughout 2012. In 2011, J.K. reported earnings of $32,142.00. At $26.00 per hour working forty hours per week over fifty weeks in the year, J.K. could earn a gross annual income from [name of company] of $52,000. [ 21 ] Between January 1, 2006 and June 4, 2012, J.K. paid L.B. $60,589.06 in maintenance payments.

He paid $34,310.94 less than he was obliged to pay pursuant to the Consent Order. [ 22 ] J.K.’s maintenance payments, however, were not made from his own funds. Instead he says the payments came from money loaned to him by his parents. In fact, on his sworn Financial Statement, J.K. lists as his only debt, $60,000 owing to his parents. I will have more to say about this debt later in these Reasons. [ 23 ] In addition to the maintenance arrears owing to L.B. and the debt owed to his parents, J.K. has accumulated a tax debt owing to the Canada Revenue Agency (the “C.R.A.”).

His 2010 Notice of Assessment shows a balance owing to C.R.A. of $10,121. His 2011 tax return shows a balance owing for 2011 taxes of $794.40. I was not told if J.K. has paid down any of the balance owing on his tax debt. If he has not, the new balance owing after adding his unpaid balance from 2011 is $10,916.18. Oddly, J.K. did not list this tax debt in his sworn Financial Statement. I do not know if he did not list the tax debt because he has repaid it, or if there was some other reason he did not list the tax debt in his Financial Statement. L.B. [ 24 ] When the parties met, L.B. was working as a secretary.

After E.(1) was born she stayed at home to look after their daughter. She remained a stay-at-home mom throughout the relationship after E.(1) was born. [ 25 ] Following the separation, L.B. found work at [name of company]. She began working at [name of company] in November, 2006 and she continues to work there today. Her job is to change the prices of goods for sale in the store. [ 26 ] L.B. starts work at 5:30 a.m. in order that she can be finished by 2:00 p.m. all in an effort to reduce her child care costs for E. (2).

In the mornings after L.B. has left for work, E.(1) is responsible for getting E.(2) up, fed, and off to school. L.B. finishes work early enough to be at home when E.(2) finishes school. [ 27 ] L.B. earns $16.25 per hour and works forty hours per week. She has been with [name of company] for six years, and she earns $33,000 annually. E.(1) [ 28 ] E.(1) is 19 years old and is attending [name of college] taking courses in Business Management and working towards a business degree.

I am told she wants to work in the media. [ 29 ] E.(1) started [name of college] in September, 2011 and has taken a total of six courses over the Fall, Spring, and Summer semesters. After two years at [name of college], she plans to transfer to Simon Fraser University. [ 30 ] E.(1) is achieving good grades at [name of college] with an overall grade point average of 2.72. Her grades range between a “C” and a “B+”. [ 31 ] Some of E.(1)’s financial information was tendered in evidence before me. [ 32 ] Like her mother, E.(1) works for [name of company].

She is employed in the produce department earning $12.55 per hour. She works, on average, 18.75 hours per week. In 2011, she earned $12,505. The arrangement E.(1) has with L.B. is that E.(1) pays for her schooling expenses including tuition, books, and parking. L.B. covers the cost of car insurance, and E.(1) pays for her gas. E.(1) does not pay L.B. any money for room and board. [ 33 ] I find it interesting that E.(1) is able to attend school and work part-time, and earns more money annually that J.K. earned in each of 2008, 2009, and 2010.

In fact, in 2011 E.(1) earned about the same income that J.K. reported earning in 2009 and 2010

combined. DISCUSSION A. J.K.’s Application to Reduce or Cancel the Maintenance Arrears [ 34 ] J.K. presently owes L.B. $34,310.94 in maintenance arrears. His application to reduce or cancel the arrears is only with respect to the arrears that have accumulated since January 1, 2008 which he says total $16,150. The accumulated arrears as at January 1, 2008 were $17,375.50.

By my calculation, the arrears that have accumulated since January 1, 2008 total $16,935.44. [ 35 ] J.K. says that his maintenance payments in the Consent Order were based upon an annual Guideline income of $60,000 and that he never earned that income. Nonetheless, he says that he paid L.B. roughly two thirds of the court ordered payments. The Account Statement from the Family Maintenance Enforcement Program (“F.M.E.P.”) indicates that between January 13, 2006 (the date L.B. enrolled with F.M.E.P.) and June 4, 2012, J.K. paid L.B. a total of $60,589.06 in maintenance payments.

J.K. argues further that if his maintenance payments were based upon his actual income rather than the $60,000, then he has significantly overpaid maintenance to L.B. i.

Maintenance Arrears Accumulated Between January, 2006 and January, 2008 [ 36 ] With respect to the accumulated arrears as at January 1, 2008, while J.K. is not seeking to reduce or cancel those arrears, he says that those arrears accumulated based upon maintenance payments calculated from an income ($60,000) that he never earned. [ 37 ] His counsel submitted that J.K. should receive a credit for the overpayment because the amount J.K. paid to L.B. exceeded the amount he should have paid her if his maintenance payments were based upon the income he actually earned.

That credit, so goes the argument, should be applied to reduce or eliminate future maintenance payments. [ 38 ] I must admit, this is a very novel argument.

No case law was presented to establish that I can retroactively recalculate the maintenance payments based upon a payor’s actual income, then take the difference between what was actually paid against what should have been paid as calculated with reference to his actual income, and then apply the difference as a credit towards future maintenance payments. [ 39 ] The net effect of this retroactive recalculation of the maintenance payments is to turn what is presently a debt owed to L.B. by J.K. for his failure to abide by a court order, into a credit owed to J.K. which credit will be paid back to him by reducing or eliminating future maintenance payments to L.B. until the credit is repaid. [ 40 ] I am not prepared to accede to this proposal by J.K.

The parties did not place before me J.K.’s tax returns for the years 2005, 2006, and 2007, so I do not have any income information for those years.

With no income information for those years it would be impossible for me to apply the Guidelines and determine the monthly support payment based upon actual income earned and then go through this recalculation exercise to determine the credit owing to J.K. [ 41 ] More importantly, however, I would not give effect to this proposal in any event because the result would have me doing the very thing I am told J.K. is not asking me to do, namely, reduce the maintenance arrears accumulated prior to January 1, 2008.

The reduction would be the amount of the credit applied against his future maintenance payments. [ 42 ] Another reason why I am not prepared to go through this exercise is because I am of the view that if a payor’s annual income falls below the income upon which the maintenance payments are calculated, then it is incumbent on the payor to bring the necessary application in a timely manner to have the maintenance payments adjusted.

To accede to J.K.’s proposal would encourage payors to do nothing in the face of a reduction in income, disobey a court order over a period of several years and allow a significant sum of arrears of maintenance payments to accumulate, and then when it suits the payor, bring an application for an order which not only deprives the recipient of the maintenance she has a court order to receive, but also uses this retroactive recalculation to deprive the recipient and the children of future maintenance payments they are entitled to receive.

I do not believe such an approach would do justice between the parties, nor do I believe such an approach accords with the law and the obligations the payor parent has to financially support the children. [ 43 ] I was neither provided with any case law nor have I found any case law that endorses J.K.’s proposal. In fact, in Dubreuil v .

Poloway , 2010 BCCA 297 , the Court of Appeal allowed an appeal and restored maintenance arrears that had been cancelled by a Judge in Chambers where the Court of Appeal concluded that the Chambers Judge had erred in law when he performed what appears to be a similar retroactive recalculation of the maintenance payments based upon what the payor actually earned. In his analysis, the Chambers Judge made no reference to the gross unfairness test and did not apply the factors set out in section 96(3) of the F.R.A. For those and other reasons, the Court of Appeal reinstated the maintenance arrears.

Accordingly, I am of the view, based upon the decision in Dubreuil , supra , that it would be reversible error for me to accede to J.K.’s proposal with respect to the maintenance arrears accumulated prior to January 1, 2008. [ 44 ] For the foregoing reasons I decline to grant this part of J.K.’s application. [ 45 ] In addition to the foregoing, J.K. argued that, in considering the “grossly unfair” test, I could take into account his overpayment of maintenance between January, 2006 and January, 2008 when considering whether to cancel or reduce the maintenance arrears that have accumulated since January 1, 2008.

I will address this submission below. ii. Maintenance Arrears Accumulated since January 1, 2008 [ 46 ] J.K. seeks a reduction or cancellation of the maintenance arrears accumulated since January 1, 2008. His application is brought pursuant to

section 96 of the F.R.A. the relevant portions of which state as follows:

Variation proceedings 96

(2) If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears butonly if it is satisfied that it would be grossly unfair not to do so.

(3) For the purpose of subsection (2), the court may take into consideration (

a) the efforts the applicant has made to comply with the maintenance order, (

b) the applicant's explanation for any delay in applying for variation of the maintenance order, and (

c) any special circumstances that the court considers relevant.

(3.1) If the court reduces arrears under a maintenance order, the court may order that interest does not accrue on the reduced amount ofarrears but only if, taking into consideration the factors listed in subsection (3), the court is satisfied it would be grossly unfair not tomake that order.

(3.2) If the court cancels arrears under a maintenance order, the court may cancel interest that has accrued on the arrears under section11.1 of the Family Maintenance Enforcement Act but only if, taking into consideration the factors listed in subsection (3), the court issatisfied it would be grossly unfair not to make that order. [47] As can be seen from the foregoing, I may only reduce or cancel the maintenance arrears if I find that it would be grossly unfairnot to reduce or cancel the arrears.

In determining whether J.K. has met this gross unfairness test, I am to consider the three factors setout in section 96(3) of the F.R.A. J.K. bears the onus of establishing that maintaining the arrears is grossly unfair. [48] In preparing these Reasons I have read a number of decisions that consider the gross unfairness test: Earle v. Earle, (BC SC), [1999] B.C.J. No. 383 (QL) (S.C.); Luney v. Luney, 2007 BCCA 567; Jones v. Anhorn, 2000 BCCA 213; Ward v. Ward (1998), (BC CA), 37 R.F.L. (4th) 163 (B.C.C.A.); Longstaff v. Longstaff (1993), (BC CA), 49R.F.L. (3d) 1 (B.C.C.A.); and Dubreuil v.

Poloway, supra. [49] In addition to those authorities, I reviewed the cases presented by J.K. which included the following: Berekoff v. Sealy, [1995]B.C.J. No. 704 (BCSC); Daniel v. Daniel, [1991] B.C.J. No. 371 (BCCA); Hanssens v. Hanssens, [2008] B.C.J. No. 526 (BCSC);Martin v. Ahhrens, [2011] B.C.J. No. 185 (BCCA); and Misener v. Muir, [2007] B.C.J No. 2029 (BCSC). [50] What is clear from these cases is that a determination of gross unfairness is a factual determination.

As well, it is clear that thegross unfairness test applies to applications to reduce or cancel arrears of both child and spousal maintenance. [51] So, what does “grossly unfair” mean? [52] I was unable to find any helpful authority that sets out what the phrase “grossly unfair” means. Obviously to meet the grosslyunfair test the applicant must establish more than it would be unfair to maintain the maintenance arrears.

Establishing gross unfair isclearly a more onerous test that proving simple unfairness. [53] I am of the view that gross unfairness means more than something that is a significant financial burden. [54] In order to meet the gross unfairness test, I am of the opinion that the applicant must establish that maintaining the maintenancearrears is so unfair that to enforce payment of the arrears would serve an injustice on the payor that the court cannot countenance.

Ifenforcing payment of the arrears leaves a payor in strained financial circumstances, that is not enough. [55] Circumstances in which a court might conclude that an applicant has met the gross unfairness test might include situationswhere child maintenance arrears have accumulated during a time when the child was living with the payor and not the recipient, or wherethe child was removed from the recipient’s care by child welfare authorities, or was living with other extended family members.

Grossunfairness might be established in circumstances where enforcing the payment of the maintenance arrears would force the payor intobankruptcy. A determination of gross unfairness in these examples would depend on the facts of each individual case. However, what isclear from the authorities is that cases in which maintenance arrears will be reduced or cancelled are rare: see Luney, supra, at para. 43. [56] There is a reason for the test being as onerous as it is. The test is onerous because parents have a duty to their children tofinancially support those children throughout their childhood.

This duty imposes an obligation on both parents to financially support theirchildren commensurate with the parents’ financial circumstances – Earle, supra, at para. 16. This duty exists whether or not a courtorder is in place. [57] When a parent fails to fulfil their duty, the children are deprived of the financial support they are entitled to receive, but whichthey cannot enforce. The children cannot go to court to secure the payment of the support they are due. The children suffer adeprivation, an injustice.

[ 58 ] When the parent’s duty is secured by a court order, the failure to fulfil that duty not only serves an injustice to the child, but the parent is disobeying a court order. Our courts cannot, and will not, tolerate such conduct except in the rarest of cases. [ 59 ] So, when a parent comes to court having failed in their duty to their child, deprived the child of that which the child is entitled to receive but cannot enforce, and disobeyed a court order, our courts will not condone that parent’s behaviour unless, and only unless, to insist that the parent fulfil his or her duty would be grossly unfair.

For these reasons, the grossly unfair test is not an easy test to meet. [ 60 ] Similar considerations apply with respect to spousal maintenance. A partnership between two spouses, whether married or common law, involves a commitment to support each other, both emotionally and financially throughout their lives together. [ 61 ] As a couple, decisions are made during the course of their union as to whether one or both of the spouses will work to earn a living, and whether one spouse will stay at home to raise children or tend to homemaking duties.

Often sacrifices are made by the spouses to enhance one spouse’s chosen career. Financial dependency can flow from these decisions which can lead to vulnerability upon the dissolution of the relationship. [ 62 ] Because of the stated or implied commitments made by each of the spouses to one another, when the relationship comes to an end our courts will strive to ensure that the manner in which the spouses separate is financially fair. Financially dependent, and thus vulnerable, spouses will seek financial support from the more financially secure spouse.

Spousal maintenance payments are one mechanism used by our courts to ensure that the financially secure spouse fulfils his or her duty to the financially dependent and vulnerable spouse. Failure to make court ordered spousal maintenance payments is therefore a failure in the duty owed by one spouse to his or her vulnerable former spouse. Such a failure leads to a deprivation and an injustice. When the duty is secured by a court order the failure to pay the court ordered maintenance is

an act of disobeying the authority of the court. [ 63 ] For the reasons I stated earlier with respect to child maintenance payments, this failure in the spouse’s duty, leading to the deprivation of a vulnerable spouse which amounts to an injustice, coupled with

an act of disobeying the authority of the court, all justify the very onerous grossly unfair test which applies to an application to reduce or cancel arrears of spousal maintenance. [ 64 ] “Grossly unfair” therefore means that the injustice to the payor spouse in maintaining the maintenance arrears is so unfair that the court cannot countenance that unfairness in the face of the payor’s failure to obey a court order and the deprivation and injustice visited upon the child and former spouse flowing from that failure. [ 65 ] A number of principles have been enunciated in the case law to which I have earlier referred where the courts have ruled upon applications to reduce or cancel maintenance arrears. [ 66 ] In Earle v.

Earle , supra , Madam Justice Martinson reviewed a number of arguments raised by payors on applications to reduce or cancel maintenance arrears. Justice Martinson sets out the law that applies to those arguments. With reference to the kinds of arguments raised by J.K. before me, Justice Martinson said: COMMON ARGUMENTS MADE TO CANCEL OR REDUCE ARREARS " I cannot afford to pay now " [26] Not being able to pay now is not a valid legal reason to cancel or reduce arrears. They will only be cancelled if the person is unable to pay now and will be unable to pay in the future.

" I could not pay when I was supposed to because my financial circumstances changed" [27] People making this argument have a heavy onus. It is not good enough just to say that they could not pay because they earned less.

They can only get a reduction or a cancellation of arrears if they present detailed and full financial disclosure, under oath (usually in the form of an affidavit) that: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. [28] The requirement that the information be under oath is an important one. A decision to cancel or reduce arrears can only be made on reliable, accurate and complete information.

The Rules of the Supreme Court say that this can only be made based on sworn evidence unless a judge says otherwise. No judge will allow evidence that is not reliable and accurate. [29] If there is no such sworn evidence, it is as if the judge has no evidence at all on which to base a reduction or a cancellation of arrears.

... " I did not have legal advice when the order was made or during the time when the payments were not made " [43] The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears. [ 67 ] I will apply these principles to J.K.’s argument below. [ 68 ] In Longstaff v. Longstaff , supra , the Court of Appeal reversed the trial judge’s decision to cancel a portion of maintenance arrears. The facts in Longstaff , supra , are quite similar to the case at bar.

The payor husband was self-employed in a business that was not very successful. At the time of his application to cancel the maintenance arrears he was only working part-time. He did not adduce any evidence of his efforts to find alternate employment, but rather, he kept working at his business meeting his personal needs and underpaying his support obligations. [ 69 ] At paragraph 54, the Court of Appeal said the following about payors like Mr. Longstaff and J.K.: In Victory v. Victory , this Court quoted with approval a passage from the judgment of Huddart, L.J.S.C. (as she then was) in Barton v.

Barton , at page 10: To cancel arrears on a child maintenance order merely because that order, never sought to be varied, cannot at a moment in time be enforced, encourages a lack of diligent effort to pay in the hope that the more diligent parent will give up any attempt to enforce the order at whatever cost in lost savings and extra effort.

If the Courts are to respect the principle that parents share equally the responsibility for the care of their children, no result should be permitted that gives any appearance of favouring a parent whose efforts to fulfil that responsibility have been less than those of the other who shoulders it by dint of energetic and sustained application of his or her resources. B. Appplication of the Law to the Facts [ 70 ] J.K. seeks to cancel a portion of his maintenance arrears.

His main arguments are that his maintenance payments were based upon an income he never earned and as a result he was unable to afford to make those payments at the time, and he is unable to afford to pay the arrears now. In addition, he says that if his maintenance payments were calculated based upon his actual income then not only would there be no accumulated arrears since January 1, 2008, but, in fact, he has overpaid his maintenance obligation.

Lastly, he argues that at that time he entered into the Consent Order, he did not have the benefit of legal advice. [ 71 ] Madam Justice Martinson addressed these arguments in Earle , supra . Not being able to afford to pay the arrears now is not a valid legal reason to cancel maintenance arrears. J.K. must establish that he is unable to pay now and in the future. [ 72 ] I am not satisfied that J.K. is unable to pay his maintenance arrears now and into the future. He is working steadily for his brother and has been so employed for about 18 months.

He expects to be working forty hours per week regularly in the near future. At his hourly wage, J.K. can earn $52,000 annually which is significantly more than he has earned in the preceding five or six years. His brother’s company, [name of company], has work lined up through the end of 2012. J.K.’s employment is secure. [ 73 ] J.K. spent six years trying to turn his business, [name of company], into a profitable business. He was unable to do so. It is not clear why he was so unsuccessful. He has been employed in the construction/renovation industry for over twenty years.

He said he prepared 20,000 flyers for [name of company] and mailed them out to homes hoping to attract inquiries for quotations. Those marketing efforts were not productive. [ 74 ] J.K. adduced no evidence of newspaper advertisements, lawn signs, or his participation at home shows or trade shows where people attend for home renovation ideas. [ 75 ] I am of the view that the reason J.K. did not try harder to get his business up and running is because he did not have to. [ 76 ] J.K. has been living with his parents with free room and board since September, 2004.

His parents have made whatever maintenance payments were paid to L.B. As I stated earlier, in his Financial Statement, J.K. lists a current debt owing to his parents of $60,000. The total maintenance paid by J.K. between January, 2006 and June 4, 2012 is $60,589.06. In other words, J.K., himself, has not made any of the maintenance payments to L.B. over the past six and a half years; his parents made those payments. [ 77 ] In effect, what J.K. has accomplished over the past six and a half years is: (

a) Accrue a debt to his parents of $60,000.00;

(

b) Accrue a debt to L.B. of $34,310.94; and (

c) Accrue a debt to the government for unpaid taxes of nearly $11,000. [ 78 ] He has accomplished this while having all of his room and board paid for by his parents, while working at a failing if not failed business, and while earning such a meagre income that any reasonable person looking out for their own financial security and striving to fulfil their moral and legal obligations to their former spouse and children would never tolerate. [ 79 ] Referring back to Justice Martinson’s comments in Earle , supra, about the requirement of the applicant to adduce accurate and reliable information in support of an application to reduce or cancel arrears, I have some concerns about the evidence tendered by J.K. [ 80 ] First, in his Financial Statement sworn on December 6, 2011, J.K. lists his annual income as $5,527.05.

J.K. earned $32,142 in 2011. He corrected his income in his viva voce evidence before me, but I did not get a satisfactory explanation why he misstated his income in his Financial Statement, other than some difficulties with information going back and forth between British Columbia and Quebec. Regardless, when J.K. swore his Financial Statement to be true in December, 2011 he knew he had earned more than $5,527.05 from his employment with [name of company]. [ 81 ] Second, J.K. listed his personal transportation expenses in his Financial Statement at $9,000 annually.

However, his tax returns show that his vehicle expenses are paid by [name of company]. Accordingly, he has overstated his personal vehicle expenses in his sworn Financial Statement. [ 82 ] Third, J.K. listed his annual income taxes in his Financial Statement as $11,782.68, J.K.’s T4 Statement of Remuneration Paid attached to his 2011 tax return shows tax deducted of $1,646.51 on $17,912.50 of employment income from [name of company]. Even if his employment income from [name of company] was $32,142, he would not pay $11,782.68 in income tax.

J.K. certainly has not paid over $11,000 in income tax in 2008, 2009, 2010 because he did not even earn $11,000 in each of those years. As well, J.K. lists his CPP and EI contributions in his Financial Statement in amounts inconsistent with his 2011 T4 from [name of company]. [ 83 ] I conclude, therefore, that there is both inaccurate and unreliable information contained within J.K.’s sworn Financial Statement.

As Justice Martinson stated in Earle , supra , courts will not allow evidence on an application to reduce or cancel maintenance arrears that is not reliable and accurate. [ 84 ] This brings me to J.K.’s alleged $60,000 debt owing to his parents. J.K. did not adduce any evidence from his parents confirming this debt.

It is clear that many, if not most, of J.K.’s maintenance payments did not come from his bank account because the payments do not correspond to withdrawals in his bank account statements. [ 85 ] However, given the problems I have noted above with respect to the reliability and accuracy of J.K.’s evidence in his Financial Statement, I am of the view that without evidence from his parents confirming that this $60,000 debt is owed and must be repaid, I am unable to conclude that this debt, in fact, exists. [ 86 ] I am of this view because I am unable to conclude that this debt will be collected or paid.

J.K. has been living for eight years with his parents without paying any room and board. J.K.’s parents appear to be very generous. In fact, possibly a bit too generous. [ 87 ] I believe that J.K.’s parents’ generosity has enabled J.K. to continue to avoid his financial obligations to his children, L.B., to the government, and to his parents. [ 88 ] My concern is that J.K. is using the substantial alleged debt owed to his parents to further his “gross unfairness” argument when, in fact, J.K.’s parents will never insist on being repaid. Their history of generosity would suggest this is so.

J.K. led no evidence that over the past six years he has taken any steps to repay his parents for the maintenance payments they have made to L.B. on his behalf. The only evidence J.K. led with respect to payments made to his parents was annual rent paid by [name of company] to J.K.’s parents for the use of their garage for the business. The annual rent payment is approximately $600 and is a business expense deducted before calculating J.K.’s annual income from his company. [ 89 ] I am of the opinion that J.K.’s parents’ generosity is a significant contributing factor to his current circumstances.

Their generosity has led J.K. to rely upon his parents to cover his ongoing financial obligations without any pressure to secure a job that would pay J.K. an income commensurate with his skills and ability.

I also am of the view that it is highly unlikely that J.K. will repay his parents the money he owes them or that his parents will ever seek to be repaid the money owed to them by their son. [ 90 ] Lastly with respect to the arguments raised by J.K. on this application, he says that he entered into the Consent Order without obtaining any legal advice. [ 91 ] As Justice Martinson stated in Earle , supra , not obtaining legal advice prior to the maintenance order being made, is not, on its own, sufficient reason to cancel or reduce the maintenance arrears. [ 92 ] Turning to section 96(3) of the F.R.A.

I make the following observations: (

a) The efforts the applicant has made to comply with the maintenance order. J.K. has, with the generosity of his parents, paid roughly two thirds of the maintenance payments due to L.B. J.K.’s efforts, however, have been noticeably lacking. As I have already mentioned, I am of the view that he persisted in his failed business enterprise with [name of company] much longer than any reasonable person would have because there was no financial pressure on him to provide for himself, L.B., or his children.

While it is true, he came up with the money, he has also listed the debt to his parents as part of his grossly unfair argument, and I have concluded that I do not believe that is a bona fide debt.

In short, J.K.’s efforts to comply with the maintenance order are inadequate. He could have, and should have, been earning significantly more than he has reported earning in his tax returns. Had he made the necessary efforts to earn a reasonable income, then he could have complied with the maintenance order rather than rely on his parents to pay whatever amounts they could afford to pay to support their grandchildren. (

b) The applicant’s explanation for any delay in applying for variation of the maintenance order. J.K. had no explanation for his delay in applying to vary the maintenance order. I asked him why he did not apply sooner, and he said he had no explanation for his delay. (

c) Any special circumstances that the court considers relevant. J.K. argues that the fact that he has overpaid his maintenance both before January 1, 2008 and after that date is the kind of circumstance the court should consider in determining whether to reduce or cancel his maintenance arrears. I have already stated that without income information for the years prior to January 1, 2008, I am unable to determine that he overpaid his maintenance and if he did, to what extent he overpaid.

With respect to the arrears that have accumulated since January 1, 2008, I have concluded that J.K. has not adduced sufficient reliable or accurate evidence upon which I can conclude that he was unable to earn the income necessary to meet his maintenance obligations. I have concluded that no reasonable person would continue to operate a business that only produced an annual personal income of $10,000 or less for as long as J.K. operated [name of company].

In short, I do not believe that J.K., on the evidence adduced in this hearing, has established that he has overpaid his maintenance obligations. [ 93 ] For all of the foregoing reasons, I am satisfied, based upon the evidence before me, the factors set out in section 96(3) of the F.R.A. , and the relevant case law with respect to applications to reduce or cancel maintenance arrears, that J.K. has not met the burden upon him to establish that it would be grossly unfair not to cancel the maintenance arrears and I decline to do so. J.K. is able to pay the maintenance arrears now – he has a good paying steady job.

J.K. has not established anything more than he has a large debt owing to L.B. Payment of that debt may be difficult. It may take a long time. But I am not satisfied that maintaining the maintenance arrears would visit an injustice on J.K. amounting to gross unfairness. Accordingly I dismiss this part of his application, subject to the slight reduction in the spousal maintenance arrears arising out of the termination of J.K.’s obligation to pay L.B. spousal maintenance effective March 1, 2012 which I address below. C. Application to Vary Prospective Maintenance Payments i.

Spousal Maintenance [ 94 ] As I indicated at the outset of these Reasons, J.K. seeks an order terminating his obligation to pay spousal maintenance. [ 95 ] L.B. consents to an order terminating spousal maintenance effective March 1, 2012. [ 96 ] Accordingly, I will order that effective March 1, 2012, J.K. is no longer obligated to pay spousal maintenance to L.B. [ 97 ] In the result, the spousal maintenance arrears that have accumulated since March 1, 2012 must be deducted from the maintenance arrears. [ 98 ] Accordingly I will reduce the maintenance arrears by $1,600 to reflect spousal maintenance from March 1, 2012 until June 1 2012.

I therefore fix J.K.’s maintenance arrears at $32,710.94. ii. Child Maintenance [ 99 ] For the purpose of calculating J.K.’s ongoing obligation to pay child maintenance I impute an annual Guideline income to him of $52,000. [ 100 ] I find that he is underemployed on the basis that he is not employed full-time working forty hours each week. In his evidence before me he indicated that he expected to be working full-time in the near future. I find that during the period of time that he has been working part-time he could have been working at a second job to supplement his income.

J.K. cited no personal reasons why he could not work full-time, or work at two different jobs to maximize his earning potential. He has no health problems and no other obligations that occupy his time and would keep him from working full-time. [ 101 ] There is no dispute that J.K. is obliged to continue child maintenance payments for E.(2). The issue with respect to prospective child support is whether J.K. is obliged to continue child maintenance payments for E.(1) and if so, in what amount. [ 102 ] E.(1) is presently living at home with L.B. and E.(2) while attending [name of college] and working part-time.

E.(1) assists L.B. with caring for E.(2) in the mornings and she gets E.(2) up and fed and off to school on time. [ 103 ] E.(1)’s earnings from her part-time work are insufficient to support herself without assistance from her parents. She remains financially dependent upon her parents.

As E.(1) is the age of majority, section 3(2) of the Child Support Guidelines applies to determine the amount of child support, if any, J.K. is obliged to pay for the support and maintenance of his daughter. [ 104 ] Given that E.(1) is the age of majority, remains financially dependent upon her parents, and is attending a post secondary school, I conclude that she remains entitled to receive child maintenance payments from J.K. [ 105 ] Section 3(2) of the Child Support Guidelines states: S. 3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(

a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (

b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition,means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [106] In W.P.N. v. B.J.N., 2005 BCCA 7, the Court of Appeal considered section 3(2) of the Guidelines and held that the Tableamount of child support is presumptively applicable in calculating the child maintenance payable for a child the age of majority or older. The court went further and held that the onus is on the party seeking to exclude the application of section 3(2)(

a) of the Guidelines toestablish that the application of section 3(2)(

a) would be inappropriate. [107] In Wesermann v. Wesermann (1999), (BC SC), 49 R.F.L. (4th) 435, Madam Justice Martinson set out a four-part test when applying section 3(2) of the Guidelines as follows: Step One Decide whether the child is a "child of the marriage" as defined in the Divorce Act? If s/he is not, that ends the matter. Step Two Determine whether the approach of applying the Guidelines as if the child were under the age of majority ("the usual Guidelinesapproach") is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach.

Step Three If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach isinappropriate. If not, the usual Guidelines amount applies. Step Four If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needsand other circumstances of the child and the financial ability of each spouse to contribute to the support of the child? [108] Lastly with reference to the established case law on this issue, Master Joyce (as he then was) in Farden v.

Farden (1993), (BC SC), 48 R.F.L. (3d) 60 set out eight factors a court should consider when determining child maintenance payments fora child the age of majority or older who is enrolled in a post secondary educational program.

Master Joyce’s “Farden factors” are: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college becausethere is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (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. [109] In W.P.N., supra, the Court of Appeal noted that it had approved the Farden factors in its earlier decision in Darlington v.

Darlington (1997), (BC CA), 32 R.F.L. (4th) 406. The Court of Appeal’s decision in Darlington, supra, went furtherwhere the court held that it is not necessary to lead evidence on all of the Farden factors in order to establish that the child remains a“child of the marriage” and thus qualifies for ongoing child maintenance payments. [110] Applying this law to the facts of the case before me, L.B. led evidence with respect to seven of the eight Farden factors, asfollows: 1. E.(1) is enrolled in studies at [name of college] taking a total of six courses over the 2011 – 2012 academic year;

2. E.(1) has not applied for student loans – she is financing her education through earnings from her part-time job; 3. E.(1) is pursuing a Business Degree and plans to seek a career in the media; 4. E.(1) is currently paying all of her schooling expenses except for a $200 contribution from J.K. towards her books; 5. E.(1) is 19 years old; 6. As I indicated earlier, E.(1) is achieving a 2.72 grade point average with grades ranging from a “C” to a “B+”; 7. L.B. led no evidence with respect to plans she and J.K. made for the education of their children; and 8.

E.(1) has not unilaterally terminated her relationship with her father. J.K. comes to British Columbia once each year to visit with the children.

He stays in L.B.’s home when he visits. [ 111 ] Applying the Farden factors I am satisfied that E.(1) continues to be a child of the marriage and thus qualifies for ongoing child maintenance payments from J.K. [ 112 ] Applying the Wesermann four-step test for the calculation of the amount of child maintenance I conclude as follows: Step 1: E.(1) remains a child of the marriage; Step 2: J.K.’s position is that he should no longer have to pay any child maintenance for E.(1), or, if he does, the quantum of maintenance should be less than the Table amount of support.

Accordingly, the application of the Table amount of support is challenged; Step 3: I am not satisfied that J.K. has established that the Table amount of support is inappropriate. First, the Table amount of support for two children is $749 where the payor lives in Quebec. That is $50 less than what J.K. is obliged to pay under the November 8, 2005 Consent Order. In addition, E.(1)’s care of E.(2) on school day mornings is a valuable contribution to this family. If she did not assist with E. (2)’s morning care, the family would have to pay for before-school care for E.(2) given L.B.’s hours of work.

J.K. would be obliged to pay his pro-rata share of those child care expenses. Lastly on this point, J.K. seems to be saying that because he does not earn $60,000 per year as set out in the November 8, 2005 Consent Order, and because E.(1) is earning her own part-time income, he should pay something less than the Table amount of support. I am not satisfied that conclusion necessarily follows. Again, J.K. bears the onus of establishing that the Table amount of support is inappropriate. J.K. has not adduced any evidence or made a convincing argument that the Table amount of support is inappropriate.

E.(1) continues to require financial support from her parents. She is not costing her parents less money today than she was six or twelve months ago. She does not earn enough money to cover her educational expenses and contribute to her housing and food costs. E.(1)’s income is being used to pay for her schooling, her fuel costs, and, I suspect, to cover her own out of pocket and discretionary spending. I conclude that J.K. has not discharged the onus that he bears to establish that the Table amount of support for two children is inappropriate.

Step 4: Given my conclusion above it is not necessary for me to consider Step 4. [ 113 ] Accordingly, I order that on an annual Guideline income of $52,000, J.K. will pay child maintenance of $749 per month commencing July 1, 2012 and continuing on the first day of each and every month thereafter until further order of the court. D.

Repayment Of The Arrears [ 114 ] I have fixed J.K.’s maintenance arrears at $32,710.94. [ 115 ] Those maintenance arrears represent money that L.B. has been entitled to receive for the support and maintenance of herself and the children over the course of the past six and a half years. She should not have to wait for several more years to be repaid that money. However, the reality is that it is going to take J.K. a significant period of time to repay this debt.

[ 116 ] If J.K. pays back the arrears at the rate of $200 per month it will take him about thirteen and a half years to pay off the arrears. If he pays the arrears at the rate of $300 per month it will take him about nine years to satisfy his debt to L.B. If he pays the arrears at the rate of $500 per month it will take him about five and a half years to pay off his debt. [ 117 ] In his Financial Statement, J.K. lists his annual expenses at $42,335.96. Those expenses include the $11,000 in annual income tax that he reports he pays.

His expenses also include $14,400 in support payments which reflect a payment of $1,200 each month – the amount of the support payment J.K. agreed to pay to L.B. in the Consent Order, but which he has failed to pay thus resulting in the maintenance arrears.

Those expenses do not include any annual cost to J.K. for housing or food due to the generosity of J.K.’s parents. [ 118 ] I have concluded that J.K. is able to earn $52,000 annually, which leaves him with a $10,000 surplus each year after taxes and a $1,200 a month support payment to L.B. [ 119 ] Under these circumstances, I find that J.K. should pay $500 per month to L.B. towards the repayment of the maintenance arrears. Combined with the child support payment of $749, J.K. will be paying $1,249 to L.B. each month.

J.K. will be left with an annual surplus of over $9,000 so he should be able to contribute something to his housing and food costs currently covered by his parents. E. E.(1)’s Post Secondary Educational Costs [ 120 ] I have a concern that E.(1) is shouldering nearly all of her post secondary educational expenses. L.B. is covering room and board and pays the annual car insurance for the vehicle E.(1) uses to commute to and from school. E.(1) pays her own fuel costs. J.K. voluntarily contributed $200 toward E.(1)’s school books.

There is no application before me with respect to determining the pro-rata share of E.(1)’s post secondary educational expenses, but if there was, I would resolve that issue as follows. [ 121 ] Each of the parties’ incomes are as follows: J.K.: $52,000 L.B.: $33,000 E.(1): $12,000 Total family income: $97,000 [ 122 ] Accordingly the pro-rata division for

section 7 expenses would be J.K. – 54%, L.B. – 34%, and E.(1) – 12%. However, E.(1) is working in order that she can afford to attend [name of college] and continue thereafter at S.F.U. She is earning sufficient money to make more than a 12% contribution to her educational expenses. [ 123 ] E.(1)’s tuition fees for the 2011/2012 Fall/Spring/Summer semesters were $2,594.55. Her total charges for the school year were $3,631.75. The additional costs over and above her tuition included a $40 per month multi-pass, fees for an extended health and dental plan, as well as a number of student fees.

Those charges do not include the cost of books. The multi-pass provides benefits such as reduced fares when using transit. [ 124 ] If an application for a division of E.(1)’s post secondary educational expenses was before me, it is my view that E.(1) can, and should, contribute 50% of her educational expenses while continuing to be responsible for her fuel costs and discretionary spending money. J.K. should cover the remaining 50% of E.(1)’s educational expenses.

I am satisfied that L.B.’s contribution to those expenses is reflected in her provision of free room and board, and the insurance on the family vehicle that E.(1) uses to commute to and from school. Given the surplus money J.K. has each year of about $9,000 after his expenses, I am satisfied that he can, and should, pay for half of E.(1)’s educational expenses. [ 125 ] If L.B. wishes to bring an application for a determination of the parties’ respective responsibilities for E.(1)’s educational expenses, and if J.K. opposes that application, the matter can be set down before me for a one hour hearing.

CONCLUSION [ 126 ] I make the following orders on the applications that are before me in this matter: 1. Subject to what I say below, I dismiss J.K.’s application to reduce or cancel the arrears of both child and spousal maintenance because he has failed to meet the grossly unfair test set out in section 96(2) of the F.R.A .; 2. By consent I will, however, reduce the maintenance arrears by $1,600 to reflect the termination of spousal maintenance effective March 1, 2012; 3. I fix the maintenance arrears that J.K. owes to L.B. at $32,710.94; 4.

I terminate J.K.’s obligation to pay L.B. spousal maintenance effective March 1, 2012, by consent; 5. I impute an annual Guideline income to J.K. of $52,000; 6. I order that J.K. is to pay to L.B. $749 per month in child maintenance for the support and maintenance of E.(1) and E.(2) commencing July 1, 2012 and on the first of each and every month thereafter until further order of the court; 7.

I order that J.K. is to pay $500 per month to L.B. towards repayment of the maintenance arrears commencing July 15, 2012 and on the 15 th of each and every month thereafter until the arrears have been fully paid to L.B.; and

8. If the parties are unable to agree on how they will share the

section 7 expenses for E.(1)’s post secondary educational costs, they are at liberty to set the matter before me for a one hour hearing to resolve that issue. ________________________________ The Honourable Judge R.N. Hamilton Provincial Court of British Columbia