X .F .M. v. R .E. H. Date:, 2011 BCPC 106

Citation: X .F .M. v. R .E. H. Date: 20110324 2011 BCPC 0106 File No: F30360 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: X. F. M. APPLICANT AND: R. E. H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. O.'C. WINGHAM Appearing in person: X. F. M. Counsel for the Respondent: M. Parent Place of Hearing: Surrey , B.C.

Date of Hearing: Oct. 15, Nov 17, Dec. 14, 2010 Date of Judgment: March 24, 2011 [ 1 ] THE COURT : On October 15, November 17, and December 14, 2010, I heard applications in this matter to vary an order that I had made on April 14, 2010. I reserved my decision and advised the parties that I would give it in writing. I prepared written reasons and I was about to file them when I received information, through the registry, that R.E.H., the mother of the child L., died, and I have just today been told that the date of her death was March 9, 2011. [ 2 ] Ms. R.E.H.'s lawyer, Mr.

Parent, at my request attended today and confirmed the information that I had received that Ms. R.E.H. had died. As a result of that, I will not be making orders concerning the custody, guardianship, residence of the child L. On April 14, 2010, in the written reasons that I filed on that date, I made an order for joint custody and joint guardianship of L. As a result of the operation of law, in my view, Mr.

X.F.M. now has sole custody and sole guardianship of L. as the survivor and no orders are necessary in that regard and I am not making any orders in that regard today. [ 3 ] The other issues that remain concern support. There were three issues: The first was Mr. X.F.M.’s application to terminate his obligation to pay spousal support; the second was whether there had been a change in circumstance which would result in a change in the level of support paid by Mr. X.F.M. ; and the third was whether child support should be awarded retroactively to the date that Ms.

R.E.H. filed her application for support. [ 4 ] The issue of termination of spousal support now becomes moot, as well, as Ms. R.E.H. is deceased. With respect to the variation of the quantum of support, the evidence that I heard on the application to vary indicates that Mr. X.F.M. had been off work and in receipt of disability payments since September 10, 2010. He was receiving $1,084.15 per week, or $56,375.80 per year in disability payments, and he continues to receive a Workers Compensation Pension of $1,169.80 per month, or $14,037.60 per year.

As of September 1, 2010 then, his annual income for Guideline purposes and for the purposes of calculating the quantum of spousal support, at that time was

$70,413.40 per year. I am satisfied that Mr. X.F.M. demonstrated a change in his circumstances which would justify a reduction in the amount of support that he should be required to pay, commencing September 1, 2010. [ 5 ] Based on a Guideline income of $70,413.40, the order of April 14, 2010, is varied to provide that from September 1, 2010 until February 1, 2011, Mr. X.F.M. 's obligation to pay child support was $658 per month. I make that only until February 1 because Ms.

R.E.H. died early in March of this year. [ 6 ] With respect to spousal support, in my reasons for judgment dated April 14, 2010, I determined that given Ms. R.E.H. 's limited income, her limited earning capacity and her responsibilities relating to L., a spousal support order in the middle range as provided by the Spousal Support Advisory Guidelines would be appropriate. [ 7 ] There is no evidence that Ms. R.E.H. 's expenses for herself and for L. had changed at the time of the hearing of this matter. They continued to appear, in my view, to be modest.

In my view, a variation in the support order to reflect the change in Mr. X.F.M. 's income should result in the quantum of that order remaining in the mid-range. The quantum of spousal support payable by Mr. X.F.M. for the period from September 1, 2010 until February 1, 2011, will be $1,534 per month. That would result in a net monthly disposable income during that period to Ms. R.E.H. of $2,696, or 49.9 percent of the parties' net disposable income, leaving Mr. X.F.M. with a net disposable income of $2,702 per month during that period. [ 8 ] With respect to retroactive child support, Ms.

R.E.H. filed her application for child support on September 12, 2008. On December 16, 2008, a consent order was made that Mr. X.F.M. pay $550 per month in child support. The evidence indicates that at the time there had been no financial information provided by Mr. X.F.M. and that the order was made without prejudice to the party's right to vary it. [ 9 ] The evidence in the court record makes it clear that it was not until September 29, 2009, that Mr. X.F.M. filed his financial statement with his income information for the previous three years.

That information makes it clear that in 2008 he had an income of $106,173.57. His income in 2009 was $94,441.06. [ 10 ] In my view, if it were not for the recent demise of Ms. R.E.H. , this is a case where a retroactive child support order would be appropriate, applying the principles enunciated by the Supreme Court of Canada in D.B.S. v. S.R.G., et al. Given the comments by Mr. Justice Bastarache in that case, however, I am of the view that given the fact that Mr.

X.F.M. now has the sole responsibility for the care of L., that to impose a retroactive child support order to September 2008, which was the date of the filing of the application, would create a hardship, so I decline to make the child support order variation retroactive to that date. Had it not been for Ms. R.E.H. 's demise, there would have been a retroactive support order made. [ 11 ] So in

summary then, the orders that I have made today are paragraphs 13 and 14 of my order of April 14, 2010, are varied to provide that based on a Guideline income of $70,413.40, the amount of child support payable by Mr. X.F.M. will be reduced to $658 per month for the period September 1, 2010 to February 1, 2011, inclusive, and paragraph 15 is varied to provide that the amount of spousal support payable by Mr. X.F.M. to Ms. R.E.H. will be reduced to $1,534 for the period September 1, 2010 to February 1, 2011. [ 12 ] I will ask the registry to prepare that order, given that Mr.

Parent no longer has any responsibility in this case and Mr. X.F.M. is self-represented. [ 13 ] That concludes this matter, Mr. X.F.M . If you have any further applications -- I will also, sorry, Madam Registrar, one other order just to be clear. I had made an interim order that Mr. X.F.M. not file further applications in this proceeding without leave. That was an interim order and my view is that it expired when I gave my decision, which is today, but just for clarity, the interim order of October 16, 2010 that he not file further applications without permission is cancelled. [ 14 ] So Mr.

X.F.M. , if there are any other applications that you feel that you need to bring, you can. I am not seized with anything in this case. I have concluded my decision on the variation application today so it does not have to come back before me if you have any other applications that you feel that you want to bring.

I expect though, and I am just telling you this, and you can confirm this by getting some legal advice if you wish to but, if you have an application to deal with any arrears of support that exist, and I think there are some but I am not making that finding, then you will likely have a judge ask you whether you served the personal representative of Ms. R.E.H. , that would be her administrator or her executor.

I do not know what is happening with that, but you likely will have to do that because her estate has an interest in those arrears and I would expect that the court will require you, if you are going to apply to reduce or cancel them, to serve her estate. You can get some legal advice about that, sir. That's all for today. (ORDER CONCLUDED)