A.-L.H.H. v. T.R.H. Date:, 2014 BCPC 209

Citation: A.-L.H.H. v. T.R.H. Date: 20140917 2014 BCPC 0209 File No: F25019 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.-L. H. H. APPLICANT AND: T. R. H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Appearing on their own behalf: A.-L.H.H. Appearing on their own behalf: T. R. H.

Place of Hearing: Prince George , B.C. Date of Hearing: December 27, 2013; July 23, 2014 Date of Judgment: September 17, 2014 INTRODUCTION [ 1 ] T. R. H. (Mr. H.), applies to cancel the requirement for him to pay child support for his daughter, J. A. M. H., born January 23, 1991, (J.) as required under the Order of December 27, 2007. He also seeks to have cancelled all arrears of support, interest, default fees or other penalties.

He states as a reason for his Application that his income has changed and he is no longer able to work at his old occupation and he does not know what is occurring in J.’s life. [ 2 ] Mr. H.’s Application is opposed by his former spouse, A.-L. H. (Ms. H.), on the basis that J. is still attending university and requires support and that a previous Application brought by Mr. H. was dismissed by the Court. LITIGATION HISTORY [ 3 ] Although there is a long history of litigation between the Parties concerning J., support the matters that were addressed by a hearing before the Honourable Judge D.

O’Byrne on November 3, 2011. After hearing evidence and submissions on that date Judge O’Byrne found that J. remained a child of the marriage, declined to amend the child support payable by Mr. H. to Ms. H. for J.’s benefit and declined to cancel the arrears of child support. [ 4 ] Judge O’Byrne also permitted Mr. H. to bring further Application in 2012 if his income changed or if there is a material change in J.’s circumstances. [ 5 ] Judge O’Byrne’s oral reasons was played in open Court during this proceeding and at the conclusion of those reasons and upon hearing submissions of both Mr. H. and Ms.

H., the Court determined that Mr. H.’s Application could only apply to events that occurred subsequent to November 3, 2011. [ 6 ] Although it predates the hearing before Judge O’Byrne on November 3, 2011, the Affidavit of J. dated October 12, 2011 has some application to this matter. At that time J. deposed the following:

a) Mr. H. was not an active parent and did not exercise access regularly;

b) Mr. H. did not attend her events and had very little contact with her over the years;

c) in August 2011 she spoke to Mr. H. at his workplace and he told her he did not believe he should still financially support her while she pursued her university studies. [ 7 ] According to the records of the Family Maintenance Enforcement Program (FMEP) filed in this proceeding, the child support arrears as at December 31, 2011 were $10,055.35, inclusive of principal and interest with an additional balance for default fees of $1200.00 for a total of $11,255.35. EVIDENCE IN PRESENT HEARING The Parties Circumstances [ 8 ] At the hearings held on December 23, 2013 and July 23, 2014, Mr.

H. said he was employed at a mechanical and tire shop. He was previously employed as a logging truck driver but left that employment due to substance abuse issues. He attempted various forms of counselling and treatment without success. [ 9 ] Ms. H. is employed by an insurance appraisal business operated by herself and her new spouse. Her income fluctuates depending on the economic climate. [ 10 ] J. is a full-time student at Thompson Rivers University (TRU) where she is studying Tourism Management.

She commenced those studies in 2010 and anticipates completing them in the spring of 2015. [ 11 ] During the hearings Ms. H. acknowledged that Mr. H. was probably no longer capable of driving a logging truck safely due to his substance abuse issues. She also acknowledged that if Mr. H. would simply pay the appropriate amount of child support based on his income plus a contribution to J.’s ongoing university expenses that would satisfy the issues she raises in this proceeding. [ 12 ] On July 30, 2014, one week after the last hearing date, an Affidavit sworn by B. K. B. was filed. There is no proof that Ms.

B.’s Affidavit was served on Mr. H. but Ms. H. obtained a copy. That Affidavit alleges that on July 26, 2014 Mr. H. left his employment at the mechanical and tire shop and obtained employment as a logging truck driver (his previous employment) with room and board supplied in Chetwynd, B.C. [ 13 ] Given that the veracity of Ms. B.’s Affidavit has not been tested in Court it will be given limited consideration as part of this decision. However, if Mr. H.’s new employment provides a higher income to him than what the Court is imputing for 2014, he will be

called upon to pay a greater amount of child support than he otherwise would have. J.’s Situation [ 14 ] J. is 23 and has been a fulltime university student, including continued attendance during the summer months throughout the time period at issue in this proceeding. She has also had the benefit of a variety of employment, both part time and full time, related to her university studies throughout that time. She appears to have diligently applied herself to her studies and her career related employment but Ms.

H. maintains that J. still cannot meet all of her reasonable living and education related expenses. [ 15 ] As set out in the various documents filed in this proceeding J.’s tuition and ancillary fees and expenses plus the cost of textbooks and sundries for each of the last four calendar years has been: a) 2012 - $5,600.00; b) 2013 -$4,000.00; c) 2014 - $4,900.00; d) 2015 - $2,200.00 (est.) based on projected graduation of April 2015. [ 16 ] In addition to those expenses, Ms. H. also pays approximately $400.00 per year for medical insurance for J. [ 17 ] As detailed in Ms.

H.’s Financial Statement filed July 25, 2013, J.’s personal living expenses for such things as food, shelter, vehicle operation, clothing and personal sundries, entertainment and recreation, and other miscellaneous expenses totals approximately $24,000.00 per year. Incomes [ 18 ] In order to properly address the issues raised by the Parties in the hearing it is necessary to examine their income as well as J.’s income in order to arrive at the appropriate amount of child support, if any, to be paid by Mr. H. since January 1, 2012. [ 19 ] Mr.

H. had the following income over the time period in question: a) 2012 - $31,258.00; b) 2013 - $39,291.00; c) 2014 - $48,000.00 (imputed). [ 20 ] Ms. H. had the following income over the time period in question: a) 2012 - $50,746.00; b) 2013 - $49,241.00; d) 2014 - $50,000.00 (imputed). [ 21 ] J. had the following income over the time period in question: a) 2012 - $18,614.00; b) 2013 - $27,500.00; c) 2014 - $27,500.00 (imputed). [ 22 ] Based on his income if Mr.

H. was ordered to pay only basic Guideline support for J. he would have been required to pay the following amounts in the following years: a) 2012 - $282.00 per month or $3,384.00 for the year; b) 2013 - $358.00 per month or $4,296.00 for the year; c) 2014 - $439.00 per month or $5,268.00 for the year. [ 23 ] In the event that Mr. H. was also ordered to pay his proportionate share of J.’s extraordinary expenses pursuant to s. 7 of the Guidelines based on the incomes detailed for himself and Ms. H., he would have been required to pay the following amounts in the

following years: a) 2012 - 38.1% of $6,000.00 = $2,286.00; b) 2013 - 44.4% of $4,400.00 = $1,954.00; c) 2014 - 49.0% of $5,300.00 = $2,600.00 (based in part on imputed incomes); d) 2015 - 49% of $2,460.00 = $1,205.00 (based in part on imputed incomes and anticipated graduation date). [ 24 ] Based on the figures above, Mr.

H.’s contributions to J.’s support would total for each of the years: a) 2012 - $3,384.00 + $2,286.00 = $5,670.00; b) 2013 - $4,296.00 + $1,954.00 = $6,250.00; c) 2014 - $3,073.00 + $1,517.00 = $4,590.00 as at July 31, 2014. [ 25 ] The ongoing monthly support based on those figures would be $439.00 basic Guideline support and $217.00 for extraordinary expenses for a total of $656.00. [ 26 ] The following amounts were obtained from Mr. H. by FMEP in the following years: a) 2012 - $1,906.00; b) 2013 - $7,881.39; c) 2014 - $5,212.49 as at July 31, 2014.

THE LAW [ 27 ] Given J.’s age, her educational pursuits, and her income various provisions of the Family Law Act (the FLA ) the Child Support Guidelines (the Guidelines) and cases interpreting those provisions must be considered. [ 28 ] The following sections of the FLA have application here: 146 In this Part and

section 247 [regulations respecting child support] : "child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians; 150

(1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied tha t (

b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so . 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; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. 174

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [ 29 ] The following sections of the Guidelines have application here: Presumptive rule 3 .

(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7. Child the age of majority or over

(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. Special or extraordinary expenses 7 .

(1) In a child support order the 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: (

b) that portion of the medical and dental insurance premiums attributable to the child (

e) expenses for post-secondary education;

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for theextraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount thatthe spouse would receive under the applicable table or, where the court has determined thatthe table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers areextraordinary taking into account (

i) the amount of the expense in relation to the income of the spouserequesting the amount, including the amount that the spouse would receive under the applicable table or,where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricularactivities, (iv) the overall cost of the programs and activities; [30] The Court also considered the following cases which interpret or apply those sections:

a) DeBeck v. DeBeck 2012 BCCA 465

b) M. (P.R.) v. M. (B.J.) 2012 BCSC 1795

c) Schreiber v. Schreiber 2009 BCSC 366

d) Bickerton v. Bickerton 2004 BCSC 1632

e) Wesemann v. Wesemann (1999) (BC SC), 49 R.F.L. (4th) 435 (B.C.S.C.) DISCUSSION AND DECISION [31] The first issue that must be resolved is whether or not J. remains a child of the marriage as described by the Family Law Act. She is in full time attendance at university obtaining suitable grades and she has chosen to be employed as much as possible to defray herexpenses rather than obtaining student loans. Based on the evidence presented J. remains a child of the marriage although hercircumstances, and those of Mr. H.’s, have changed somewhat since the order of Judge O’Byrne. Therefore, Mr.

H.’s Application toterminate the child support payments is dismissed. [32] However, the change in circumstances does permit the Court to reconsider the amount of child support that should be paid byMr. H. in order to assist with J.’s regular support and extraordinary expenses of university tuition and books. [33] The next matter to be determined is whether or not J. should be entitled to continue to receive support from Mr.

H. in thepresumptive amount set out in s. 3 of the Guidelines plus extraordinary expenses for her university expenses as set out in s. 7 of theGuidelines or, if those amounts are inappropriate the amount of support that should be required of Mr. H. having regard to the condition,means, needs and other circumstances of J. and the financial ability of each of Mr. H. and Ms.

H. to contribute to J.’s support. [34] In the circumstances of this case and upon a review of the applicable sections of the FLA, the Guidelines and the case lawreferred to applying the table amount as described in s. 3 and the extraordinary expenses as described in s. 7 of the Guidelines it would beinappropriate to utilize that approach. [35] The appropriate approach having regard to J.’s means, needs, and other circumstances and Mr. H.’s and Ms. H.’s financialabilities to assist J. in this case involves the following steps for the years 2012, 2013 and 2014:

a) total J.’s living expenses (including the medical premiums paid by Ms. H.) and her educationexpenses (including her tuition and books);

b) deduct from those total expenses 60% of J.’s gross income as her contribution;

c) proportionately divide J.’s remaining expenses between Mr. H. and Ms. H. based on their respective incomes;

d) give Mr. H. credit for any amounts collected by FMEP for each year and adjust his arrears accordingly;

e) fix the arrears owed as at July 31, 2014;

f) calculate the monthly amount for Mr. H. to pay as his proportionate share for the ongoing support of J.; and

g) fix an amount to be paid by Mr. H. on a monthly basis to address the arrears. [ 36 ] The selection of 60% of J.'s a gross income is reflective of the taxes she must pay on her income and is meant be a meaningful contribution by her to her own expenses in light of her employment opportunities without requiring her to contribute every last dollar she makes to those expenses when both her parents have the financial capacity to assist her with her education and career objectives. [ 37 ] Based on that approach the following calculations can be made for each year: a) 2012: arrears at January 1, 2012 = $11,255.35.

Total education and living expenses $30,000.00. J.'s contribution $18,614.00 x 60% = $11,168.00. $30,000.00 - $11,168.00 = $18,832.00. Mr. H.’s proportionate share of support $18,832.00 x 38.1% = $7175.00. Support due less amount collected by FMEP $7,175.00 - $1906.00 = $5269.00. Arrears at December 31, 2012 $11,255.35 + $5,269.00 = $16,524.35. b) 2013: arrears at January 1, 2013 = $16,524.35. Total education and living expenses $28,400.00. J.’s contribution $27,500.00 x 60% = $16,500.00. $28,400.00 - $16,500.00 = $11,900.00. Mr. H.’s proportionate share of support $11,900.00 x 44.4% = $5,283.60.

Support due less amount collected by FMEP $5,283.60 - $7,881.39 = (-2597.79). Arrears at December 31, 2013 $16,524.35 - $2,597.79 = $13,926.56. c) 2014: arrears at January 1, 2014 $13,926.56. Total education and living expenses to July 31, 2014 $17,092.00. J.’s contribution to July 31, 2014 $16,042.00 x 60% = $9,625.20. $17,092.00 - $9,625.20 = $7,466.80. Mr. H.’s proportionate share of support $7,466.80 x 49.0% = $3,658.73. Support due less amount collected by FMEP $3,678.73 - 5,212.49 = (- $1,533.76).

Arrears at July 31, 2014 $13,926.56 - $1,533.76 = $12,392.80. [ 38 ] In order to meet his proportionate share of J.’s support for the remainder of 2014, Mr. H. will be required to pay Ms. H. $523.00 per month commencing on August 1, 2014 and payable the first day of each and every month thereafter until further order of the Court. [ 39 ] In addition, Mr. H. will be ordered to make payments to address the arrears outstanding in the amount of $377.00 per month commencing August 1, 2014 and payable the first day of each and every month thereafter until further order of the Court.

At that rate it will take almost three years for Mr. H. to retire the outstanding arrears. ORDER [ 40 ] The Application by Mr. H. to cancel on going child support and any arrears of that support is dismissed. [ 41 ] The arrears of child support payable by Mr. H. to Ms. H. for the benefit of the adult child, J. A. M. H., are fixed at $12,392.80 as at July 31, 2014. [ 42 ] Commencing August 1, 2014 and on the first day of each month thereafter until further order of the Court, Mr. H. shall pay to Ms. H. his proportionate share of support for the benefit of the adult child, J. A. M.

H., the sum of $523.00 per month. [ 43 ] Commencing August 1, 2014 and on the first day of each month thereafter until further order of the Court, Mr. H. shall pay to Ms. H. a payment on the arrears of child support outstanding in the amount of $377.00 per month until the arrears are paid in full. [ 44 ] Commencing in 2015, on or before July 1 of each year, Mr. H. and Ms. H. shall provide to the other a copy of their previous year’s Tax Return and any Notices of Assessment or Notices of Reassessment forwarded to them by the Canada Revenue Agency. [ 45 ] Either Mr. H. or Ms.

H. may review the amounts of support due and payable under this Order upon application to the Court after September 1, 2015 and such review shall consider the incomes of each of them, the status of J.'s educational progress and her employment situation. _________________________ M. J. Brecknell Regional Administrative Judge

Northern Region Provincial Court of BC