M.B. v. A.C. Date:, 2015 BCPC 168

Citation: M.B. v. A.C. Date: 20150602 2015 BCPC 0168 File No: F21972 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.B. APPLICANT AND: A.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING Appearing on their own behalf: M.B.

Appearing on their own behalf: A.C. Place of Hearing: Nanaimo , B.C. Date of Hearing: May 21, 2015 Date of Judgment: June 2, 2015 [ 1 ] This is an application by the Mother (M.B.) of the child, (R.C.) for a determination of on-going and retroactive child support from the Father (A.C.). The application was filed on September 24, 2014. BACKGROUND [ 2 ] M.B. is 42 years old and has worked in a union position with [omitted for publishing] for about 14 years. Besides R.C., she has a son from a previous relationship who is 23. She generally works days with Wednesdays and Thursdays off.

In recent years she has had a guideline income in the range of $32,000 - $37,000. [ 3 ] A.C. is 53 years old and has a full-time position with [omitted for publishing] for the past 7 years. He works days Monday to Friday with frequent overtime. During the time frame in question his income has been in the range of $76,000 - $83,000. A.C. also has a grown son from a previous relationship. [ 4 ] R.C. enjoys a good relationship with both parents and has only the normal extra expenses. Both parents maintain her on their respective medical and dental plans. A.C. has made some contributions to an RESP on her behalf.

M.B. has not as yet been able to afford to do that. [ 5 ] R.C. was conceived in the course of a dating relationship and by the time of her birth M.B. and A.C. were living in the same residence but not co-habiting. This lasted from 1998 to 2002.

This permitted A.C. to have lots of contact with R.C. however, until December of 2013 M.B. was always the primary caregiver. [ 6 ] M.B. and A.C. never entered into any written agreement or court order with respect to R.C. [ 7 ] By verbal agreement A.C. paid M.B. $2,600 per year for R.C.’s support from 2002 - 2007 and has paid $5,200 per year ($433 p/month) since 2007 until about December of 2013.

Between 2004 - 2007, A.C. worked away from Nanaimo and saw R.C. less. [ 8 ] During the time A.C. worked away from Nanaimo his income dropped and he accumulated some $60,000 in debt that he paid off in 2010 by cashing in RRSP’s. [ 9 ] M.B. indicates that she presently has accumulated about $27,000 in debt in part due to expenses related to R.C. [ 10 ] In 2008 A.C. was able to get his present position with [omitted for publishing] in Nanaimo which has given him a better income and also enabled him to take R.C. most weekends as he has them off and M.B. does not.

This has tapered off as R.C. has grown older and requires less direct parental supervision. [ 11 ] In early December of 2013 R.C. had a falling out of sorts with her mother which they were unable to resolve over the Christmas holidays. The result was that R.C. took up residence with A.C. until September of 2014 by which time she had patched things up with her mother and moved home for the start of school. [ 12 ] A.C. in 2013 had been paying M.B. $200 every 2 weeks for the support of R.C.

In December of 2013 and January of 2014 he only made one payment of $200 in each month. [ 13 ] As R.C. continued to stay with M.B. there were tentative discussions about M.B. paying child support to A.C. which were unresolved. At all times M.B. says that she always maintained R.C.’s room for her in her house and continued to buy her some toiletries and clothes. [ 14 ] When R.C. moved back with M.B. she asked A.C. to resume support payments. A.C. wished to have some form of credit for the time R.C. was with him. They were unable to agree about this.

At about the same time M.B. realized that she may have been legally entitled to more support for R.C. than had been paid. [ 15 ] M.B. accordingly filed this application seeking support for R.C. retroactive to 2008. A.C. is opposed to this and wants credit for the months he was the primary caregiver for R.C. [ 16 ] M.B. thought around 2009 - 2010 she asked A.C. about his income and was told it was in the range of $50,000 - $60,000. This was not accurate as per his guideline income but may have been closer to his take home income.

Around this time the parties also each put out monies for Sylvan Learning Tutorials for R.C. with the bulk being paid by M.B. A.C. says that he paid a half-share when asked by M.B. but was not asked to contribute to the second session of this expense. LAW AS TO RETROACTIVITY [ 17 ] In Williams v. Mapson , 2015 BCSC 828 , Mr. Justice Ball said the following in a useful

summary of the approach in British Columbia:

[18] At para. 68 of D.B.S. , Bastarache J. sets out the justification for retroactive child support orders: The concern associated with retroactivity is that, from the perspective of the person on whom a retroactive obligation is imposed, the order is arbitrary and unfair: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 553-54.

Yet a retroactive child support order, as considered in the present appeals, does not involve imposing an obligation on a payor parent that did not exist at the time for which support is being claimed… [19] Bastarache J. set out four factors to be considered by the court in assessing whether a retroactive order is appropriate. These factors were outlined by Madam Justice Kirkpatrick in McKenzie v. Perestrelo , 2014 BCCA 161 at para. 106 : The four factors to be considered are:

a) whether there is a reasonable excuse for why support was not sought earlier;

b) the conduct of the payor parent;

c) the circumstances of the child or recipient spouse; and

d) any hardship occasioned by a retroactive award on the payor spouse. [20] At para. 101 in D.B.S. Bastarache J. stated as follows: Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family.

Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice… [ 18 ] In de Rooy v. Bergstrom , 2010 BCCA 5 , quoted the following passage from the DSB decision: [55] In D.B.S. v.

S.R.G. , Bastarache J. stated that “in general” a retroactive award should not extend back more than three years before formal notice has been given, but, could reach back to an earlier date if the payor parent has engaged in blameworthy conduct: paras. 123 -125. As indicated above, the chambers judge found that Mr. Bergstrom was guilty of such conduct. Having done so, the chambers judge exercised his discretion, and ordered the payments retroactive to the date of effective notice. I am unable to find any error in principle in that determination. Indeed, given Mr.

Bergstrom’s awareness of the difficult circumstances under which his children were living, and his indifference to their benefiting from his improved financial position, the date chosen was entirely reasonable. [ 19 ] In Stuart v. Ganam , 2013 BCSC 849 , Mr. Justice Punnett, at para. 18 also speaks of the “normal three-year limit for retroactive payments.” [ 20 ] In Carreiro v. Carreiro , 2015 BCSC 714 , Madam Justice Humphries said the following: [273] I agree with the comments of the chambers judge who granted the amendments, who told Ms.

Carreiro the retroactive claim would be governed by, at the earliest, the date of the application, that is October of 2013. Ms. Carreiro never questioned the level of child support prior to that date. There is no misconduct on Mr. Carreiro’s part that would justify going back more than three years prior to that date when setting retroactive support (see D.B.S. ), assuming there is a need to adjust the amounts Mr.

Carreiro has been paying. [ 21 ] Based on the above cases and the facts of the case before me I find there is no substantive reason to grant retroactivity beyond the normal practice and that results in October 1, 2011 as the starting point for calculations. [ 22 ] I find the following guideline incomes for A.C.: 2011 - $78,565; 2012 - $73,606; 2013 - $82,294; 2014 - $81,004; 2015 - $83,000. [ 23 ] I have used the current table amounts to calculate for all years as to what should have been paid by A.C: 2011 - 3 x ($735-433) = 3 x $303 = $906 deficiency; 2012 - 12 x $689 = $8,268; less $5,200 paid = $3,068 deficiency;

2013 - 12 x $770 = $9,240; (less 25 x $200 = $5,000) = $4,240 deficiency; 2014 - 4 x $758 = $3,032; (less $200 paid in January 2014) = $2,832 deficiency; 2015 - 6 x $776 (Jan.1 - Jun.1, 2015 inclusive); (0 paid) = $4,656 deficiency. [ 24 ] This yields a total deficiency or underpayment of $15,702. [ 25 ] This amount needs to be reduced by an adjustment for A.C.’s counterclaim for support for the January to September, 2014 period where I find that based on a guideline income of M.B. of $36,887 support of $336 per month for a total of $2,688 would have been payable. [ 26 ] Applying this credit to the figure of $15,702 a net of $13,014 is owing by A.C. to M.B. for arrears of child support for R.C. as of June 1, 2015. [ 27 ] Based on the $83,000 that I estimate to be A.C.’s likely guideline income for 2015 he will be required to pay on-going child support to M.B. for R.C. in the amount of $776 p/month commencing on the 1 st day of July, 2015.

This would be approximately equivalent to $358 every two weeks if the parties mutually agree to go forward on that basis but the formal order will be in the more standard format. [ 28 ] The said payment of $776 p/month is to continue on the 1 st day of each month thereafter so long as R.C. is a child within the meaning of the Family Law Act. [ 29 ] M.B. is entitled to keep the Child Tax Benefits for R.C. for the eight months in 2014 having regard to some apparent under- payment by A.C. prior to October 2011.

PAYMENT OF THE ARREARS [ 30 ] As A.C. has not paid any support for R.C. since her return to M.B.’s home in September of 2014 I order that $6,514 is to be paid to M.B. on or before August 31, 2015 and the balance of $6,500 is to be paid on or before January 31, 2016. [ 31 ] The parties are at liberty to make alternate arrangements for the payment of the arrears as long as it is by mutual agreement and recorded in writing.

GENERAL [ 32 ] I wish to emphasize that both parties impressed me as very reasonable and well-meaning people who have generally been very united and cooperative in regard to any issues concerning R.C. A.C. is not the first and will not be the last payor of child support to under estimate all the actual and hidden costs that come from having the primary care of a child. Most lay persons find the guideline amounts high and the use of “line 150” income as opposed to take home pay problematical as well.

The objective research from the economists and child-care experts who formulated this process tell us that this subjective response is wrong but this is not always readily apparent to the person who has to come up with the actual money. The guidelines are in fact a huge step forward from the old budget and “guesstimate” process that was inconsistent, time-consuming and generally unfair to the recipient parent as many actual costs (such as food) were under estimated and many indirect costs not considered at all. It is to be hoped that A.C. will adjust to the corrected payment

schedule without letting it affect the overall positive nature of the relationship that he has with R.C. or in working collaboratively with M.B. as to matters concerning R.C. FORM OF ORDER [ 33 ] As discussed with M.B. and A.C. during the hearing there will be an order in general terms addressing issues of guardianship and parenting time for the sake of completeness in addition to the specific orders as to child support and possible future extraordinary expenses.

EXTRAORDINARY EXPENSES [ 34 ] These have not been a large issue for the parties with respect to R.C. in the past but as she enters a possibly more expensive period it is advisable to have something in place in this regard. [ 35 ] The parties are reminded that, regardless of which household R.C. may find herself in primarily, issues with respect to such expenses need to be approved as directed by Mr.

Justice Ball in the case of Williams v Mapson , 2015 BCSC 828 where he said the following at paragraph 26: “I point out that it is extremely important that prior to any parent commencing payment of special and extraordinary expenses there is first consultation and an agreement between the parents as to whether the expense is a reasonable expense in the interests of the particular child and the activities the child has undertaken, including a plan of education.” [ 36 ] It will be ordered that, unless a significant change in circumstances occurs, that each of the parties will pay, 1/3 by M.B. and 2/3 by A.C., the following expenses:

a) all medical and dental expenses including but not limited to MSP, prescriptions, eye glasses and contacts, orthodontic

expenses and any other similar expenses related to R.C.’s physical, emotional and mental health;

b) education related expenses such as tutoring recommended by teachers, school field trips and specialty school supplies;

c) any other special or extraordinary expenses such as prom and graduation or driver’s license and programs such as Young Drivers’ of Canada and post-secondary education expenses; [ 37 ] One practical method for dealing with such expenses is set out by Mr.

Justice Kent in the decision of Bennett v Bennett , 2015 BCSC 699 at paragraph 114 : “I also direct that the parties provide an accounting and reconciliation of all special or extraordinary expenses incurred by them every six months on April 1 and October 1 of each year and, in that regard, such party shall provide the other their respective receipts for same on or before March 1 and September 1 of each year.

Thereafter, the parties will make whatever reimbursement is required to the other to account for any overpayment or underpayment of the expenses in question, which reimbursement shall be made within 30 days of the reconciliation being delivered.” FORM OF ORDER [ 38 ] M.B. and A.C. will be the joint guardians of R.C. born the [omitted for publishing]. [ 39 ] M.B. and A.C. will share equally all parental responsibilities for R.C. [ 40 ] M.B. and A.C. will share parenting time with R.C. as mutually agreed between them from time to time with each parent to have liberal and generous parenting time. [ 41 ] As of June 2015, A.C. is found to have a guideline income of $83,000 and is directed to pay to M.B. for the support of R.C. the sum of $776 p/month commencing on the 1 st day of July, 2015 and continuing on the 1 st day of each and every month for so long as R.C. is eligible for support pursuant to the Family Law Act or until further order of the court. [ 42 ] As of the 1 st of June 2015 it is determined that A.C. owes to M.B. for arrears of child support for R.C. the sum of $13,014. [ 43 ] It is ordered that the said arrears are to be paid by A.C. to M.B. as follows:

i) the sum of $6,514 to be paid on or before August 31, 2015; ii) the balance of $6,500 to be paid on or before January 31, 2016. [ 44 ] The parties will share the cost between them of any special or extraordinary expenses for R.C. on the basis of M.B. paying 1/3 of such expenses and A.C. paying 2/3 of such expenses. [ 45 ] For so long as R.C. is eligible to receive child support, the parties will exchange (

a) copies of their respective income returns for the previous year including all attachments by not later than May 1 st each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by the CRA, immediately upon receipt. [ 46 ] Each guardian will cooperate with the other guardian in the provision of passports, consents to travel, and other necessary documents as may be required to allow R.C. to travel. [ 47 ] Either party may apply to set aside or vary this order upon 14 days’ notice to the other party and subject to appropriate compliance with Rule 5 of the Provincial Court (Family) Rules . BY THE COURT __________________________ The Honourable J. Cowling, PCJ